LEGAL PRINCIPLE: CIVIL PROCEDURE — Service of Process — Requirement of Service — Condition Precedent to Jurisdiction
PRINCIPLE STATEMENT
Service of a writ or process is a condition precedent to the exercise of jurisdiction; failure to serve renders the trial a nullity, and the affected party is entitled ex debito justitiae to have the order set aside.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Auto Import Export v. Adebayo & Ors (2002) NLC-491997(SC) at pp. 13–14; Paras A–C.
"It is well settled that service of a writ of summons or process is a condition precedent to the exercise of jurisdiction by the court out of whose registry the writ or process was issued. See Skenconsult (Nig.) Ltd. and Another v. Godwin Ukey (1981) 1 SC 6 at 26. See too Adeigbe and Another v. Guthrie (Nig.) Ltd. (1993) 4 SCNJ 1 at 17. Under our adversary system of jurisprudence, to hear a case without one of the parties having been served with the necessary process except in a proper ex parte proceedings would render the trial a nullity as service of the court's processes are basic and indispensable to any effective adjudication. Whereas in the present case, service of a 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 justitiae to have the order set aside as a nullity."
EXPLANATION / SCOPE
Service of process is a condition precedent to the court’s jurisdiction over a party. Without service, the court cannot validly exercise jurisdiction. A judgment entered without service is a nullity. The affected party is entitled as of right (ex debito justitiae) to have the order set aside. The principle applies to all proceedings where service is required. Ex parte proceedings are an exception. The rule protects the right to be heard. The court cannot assume jurisdiction over an unserved party. The defect is fundamental and cannot be cured by later appearance. The party may challenge the order at any time. The principle is fundamental to civil procedure.
