LEGAL PRINCIPLE: CIVIL PROCEDURE — Service of Process — Non-Service Renders Proceedings Nullity and Confers Jurisdiction on Trial Court to Set Aside
PRINCIPLE STATEMENT
A judgment or order which is a nullity owing to failure to comply with an essential provision, such as service of process, can be set aside by the court which gave it. Non-service breaches the audi alteram partem rule.
RATIO DECIDENDI (SOURCE)
Per Musdapher, JSC, in Mark & Anor v. Eke (2004) NLC-351997(SC) at pp. 13–14; Paras C–A.
"A judgment or order which is a nullity owing to failure to comply with an essential provision, such as, service of process, can be set aside by the court which gave it or made the order. … When an order is made or judgment is entered against a defendant, who claimed not to have been served with the originating process, such an order or judgment becomes a nullity if the defendants prove non-service of the originating process. It is a nullity because the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. If there is no service, the fundamental rule of natural justice audi alteram partem will be breached."
EXPLANATION / SCOPE
Non-service of process renders proceedings a nullity. The principle applies to civil procedure. The trial court has jurisdiction to set aside its own nullity. The rule protects the right to be heard. The affected party may apply to set aside. The principle is fundamental.