LINUS OKEREKE V CHINYERE NWANKWO
June 16, 2025CHIEF IGBOAMA EZEKWESILI & ORS V CHIEF BENIAH AGBAPUONWU
June 16, 2025Legalpedia Citation: (2003) Legalpedia (SC) 16182
In the Supreme Court of Nigeria
Fri Apr 11, 2003
Suit Number: SC. 65/1999
CORAM
M. L. UWAIS CHIEF, JUSTICE, NIGERIA
M. E. OGUNDARE, JUSTICE, SUPREME COURT
A. I. IGUH, JUSTICE, SUPREME COURT
A. I. KATSINA-ALU, JUSTICE, SUPREME COURT
D. MUSDAPHER, JUSTICE, SUPREME COURT
PARTIES
SOCIETE GENERALE BANK (NIG.) LTD APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The plaintiff claimed against the defendant the sum of N 66, 216.01, being an outstanding balance of an overdraft which the defendants failed to pay despite repeated demands from the plaintiff. The plaintiff obtained an order of substituted service from the trial court and consequently obtained judgment in the absence of the defendant.
HELD
The Supreme Court dismissed the appeal of the plaintiff against the decision of the Court of Appeal, holding that Proof of service is fundamental to the jurisdiction and Competence of the Court.
ISSUES
Whether the conclusion of findings by the Court below that there was no credible proof that the appellant was served with the Writ of Summons and other court processes etc. is sustainable from the facts and evidence before it.
RATIONES DECIDENDI
PURPOSE OF AFFIDAVIT OF SERVICE AND WHEN TO TENDER SAME
It is to be recognized that the purpose of an affidavit of service is to convince the court that the person on whom the processes are to be served, has been duly served. It must be produced before the learned trial Judge as prima facie evidence of service. It is not to be kept away, where it has been sworn to, to be produced at a later stage on appeal. Per Katsina-Alu, JSC.
DUTY ON COURT RAISING AN ISSUE SUO MOTU
It is settled law that where an Appellate Court raises an issue suo motu before it reaches a decision on such as issue it must give counsel appearing for the parties the benefit of being heard on the point. The jurisdiction of an appellate Court is essentially confined to the correction of errors of the Court from which the appeal emanates. It can only do so naturally where the points argued before it consist of allegations of errors made by that Court and not on matters not canvassed before it, nor on matters not properly based on the issues distilled from the grounds of appeal. Per Dahiru Musdapher, JSC.
EFFECT OF FAILURE TO SERVE PROCESS
It is now trite law that failure to serve process, where service of process is required, is a failure which goes to the root of the case. Service of process on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the court raised of the matter. Clearly due service of process of court is a condition sine qua non to the hearing of any suit. Therefore if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside as a nullity. Per Kastina-Alu, JSC.
CASES CITED
1. Craig V. Kanseen (1943) K.B. 256 at 262
2. Mbadinuju V. Ezuka (1994) 8 NWLR (Pt. 364)5
3. Scott Emuakpor V. Ukabe (1975) NSCC 435, 438
4. Marion Obinonure V. Ojumoola Erinosho and Anor. (I966) All NLR 250
5. Bankole V. Pelu (1991) 6 NWLR (Pt. 211) 523 at 547
6. Kuti Vs. Balogun (1978) 1 LRN 353 at 357
STATUTES REFERRED TO
Order 12 rules 1 and 28 of the High Court Civil Procedure Rules of Kaduna State/…
