THE IMPLICATIONS OF NON- SERVICE OF A COURT PROCESS ON A PARTY TO AN ACTION WHETHER IT ROBS A COURT OF JURISDICTION TO ENTERTAIN SAME

By Samuel Irusota Administrative Law

INTRODUCTION
Generally, service of Court Processes goes to the jurisdiction of the court to hear a matter. Parties must as a matter of law and practice ensure that the opposing party not only receives and acknowledged service of processes but also that the service effected is proper under Nigerian Law. It is also trite law that service of originating processes is very fundamental to the jurisdiction of the court to hear any case . See the case of BUHARI VS OBASANJO ( 2003) LPELR – 813 ( SC) . See also SAMA VS OMIN & ORS (2018) LPELR – 45170 ( CA) .


Furthermore, the law is well established that service of an originating process such as a writ of summons, a petition, an originating motion or a notice of appeal is very fundamental and a pre-condition to the exercise of jurisdiction by the court. Where there is no service of such process on a party, the court seized with the case lacks the necessary competence to hear and determine the matter. In any circumstance, even where an appearance is entered, the trial court has no jurisdiction to entertain the claim and should decline to hear the plaintiff.

Any Proceedings embarked upon without the required service of an originating process will amount to a nullity.
Ordinarily, the form of service required in law is personal service unless otherwise directed by the court. In other words, where personal service is required and service is effected otherwise without leave of court for substituted service, any such service will be void and will not be countenanced by the court.


See IHEDIOHA & ANOR VS OKOROCHA & ORS (2015) LPELR – 40837 ( SC) . See also NATIONAL BANK OF NIGERIA LTD VS GUTHRIE NIGERIA LTD & ANOR (1993) 3 NWLR ( PT. 284) 643, (1993) 4 SCNJ 1 , (1993) 24 NSCC ( PT. 1 ) 401, (1993) LPELR 1952 ( SC).
In AUTO IMPORT EXPORT VS ADEBAYO the Supreme Court at page 582 paragraph: C – F stated thus :
“ Where as in the present case, service of process is required, failure to serve it is a fundamental vice and the person affected by the order but was not served with the process, again as in the present case is entitled ex debito justitiate to have the order set aside as a nullity. See OBIMONURE VS ERINOSO and ANOR (1966) 1 ALL NLR 250, MBADINUJU VS EZUKA (1994) 8 NWLR (Pt.364) 535, (1994) 10 SCNJ 109 at 128.


As regards the issue of jurisdiction, the Supreme Court stated emphatically that a court is only competent to assume jurisdiction over , and to entertain any suit if inter alia the suit was initiated by due process of law upon the fulfillment of all condition precedent for the court to exercise its jurisdiction. See MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 587 . See also SKEN CONSULT NIG LTD VS UKEY SECONDY ( 1981 ) 1 SC ( REPRINT) 4.


In conclusion, service of a process on a party to an action is very fundamental to the assumption of jurisdiction. It is ipso facto a fundamental vice which renders null and void an order made against a party who should have been served.

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About Author

Samuel Irusota

Samuel Irusota is a constitutional and human Rights Lawyer . He is an associate partner at Advanced Chambers, a leading top-tier law firm based in Owerri. Nigeria providing bespoke, innovative and excellent legal services to both local and international clients. He can be reached via : Email: eromosele360@gmail.com Tel: +2349167114574, +2349050854504,

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