LEGAL PRINCIPLE: CIVIL PROCEDURE — Service of Process — Non-Service — Effect on Order Made — Court’s Inherent Power to Set Aside
PRINCIPLE STATEMENT
A court has inherent power to set aside its own order or judgment that is a complete nullity, such as one made without service of process on a party.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Auto Import Export v. Adebayo & Ors (2002) NLC-491997(SC) at pp. 14–15; Paras C–D.
"Additionally, however, a court has inherent power to set aside its own order or judgment which is a complete nullity like the order in issue in this present case. Where, therefore, it is shown that there was a fundamental defect which goes to the issue of jurisdiction or competence of the court, as in the present case, such court has inherent jurisdiction to regard the order made as a nullity and to set it aside upon application. See Ogbu v. Urum (1981) 4 SC 1, Ojiako v. Ogueze (1962) 1 SCNLR 112 or (1962) 1 All NLR 58. In other words, a court has an inherent power to set aside its own judgment or order, which is a complete nullity."
EXPLANATION / SCOPE
A court has inherent jurisdiction to set aside its own order that is a nullity. An order made without service of process on a party is a nullity. The power exists regardless of whether an appeal is filed. The principle ensures that fundamental defects can be corrected. The court may act on application or suo motu. The nullity can be challenged at any time. The rule applies to all courts. The court cannot enforce a nullity. The inherent power is exercised sparingly but is available for fundamental defects. The principle protects the right to be heard. The court will not allow a void order to stand.
