CORAM

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IGNATIUS CHUKWUDI PATS-ACHOLONU, JUSTICE, SUPREME COURT

OGBUAGU JUSTICE, SUPREME COURT

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PARTIES

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MOHAMMED MARI KIDA APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The fact is as to whether a court can validly grant an order directing the issuance of an originating process to be served outside jurisdiction and same to be served by substituted means within the jurisdiction of the same court. The Court of Appeal in setting aside the judgment of the trial court held that the issuance and service of the writ did not comply with the law, as such denudes the trial of the jurisdiction to entertain the suit. Apparently dissatisfied with the judgment, the appellant has appealed to the Supreme Court.

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HELD

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Appeal dismissed

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ISSUES

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Whether in the circumstances of this case the court below was right in considering and declaring the Writ of Summons and the service of the Writ of Summons on the respondent was null and void for non-compliance with the rules of court and sections 97, and 99 of the Sheriffs and Civil Process Act.

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RATIONES DECIDENDI

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SUBSTITUTED SERVICE

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“…… where at the time of the issue of the writ, personal service could not in law be effect on a defendant, who is outside the jurisdiction of the court, substituted service should not be ordered…… If the defendants is outside the jurisdiction of the court at the time of the issue of the writ and consequently could not have been personally served in law, not being amenable to that writ, an order for substituted service cannot be made” {Per DAHIRU MUSDAPHER, JSC }

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IMPORTANCE OF SERVICE OF COURT PROCESSES

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“It is trite law, that after its issue a Writ of Summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him. Where service of a process is legally required the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity”. {Per DAHIRU MUSDAPHER, JSC }

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SUBSTITUTED SERVICE

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“There cannot be substituted service of a suit which could not at the time when it was issued by served personally”. {Per Oguntade JSC citing the rationaes in Field V. Bennett 56 L.J. (Q.B) 89 and Hillyard V. Smyth 36 W.R.7}

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CASES CITED

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1. National Bank [Nig.] Ltd vs. John Akinkumi Shayoye and Anor. [1977] 5 SC
2. Fry V. Moor [1889] 23 QBD 395
3. Wilding V. Bean [1891] 2 QB 100.
4. Obiomonure V. Erinosho [1966] 1 ALL NLR 250.
5. SGBN V. Adewunmi [2003] 10 NWLR (Pt [829] 526, [2003] 6 SCM 132
6. Mbadinuju V. Ezuka [1994] 8 NWLR (Pt 364) 535.
7. Scott-Emuakpo V. Ukaube [1975] 12 SC 41
8. UBN Plc V. Okonkwo [2004] 5 NWLR [Pt. 867] 445
9. Mbadinuju V. Ezuka [1994] 10 SCNJ 109,
10. Skenconsult V. Ukey [1980] 1 SC 6,
11. Adeigbe V. Kusimo [1965] NMLR 284.
12. National Bank V. Guthrie [1993] 4 SCNJ 1
13. “Field V. Bennett 56 L.J. (Q.B) 89 and Hillyard V. Smyth 36 W.R.7
14. M. Khatoun V. Hans Mehr (Nigeria) and Anor. [1961] NRNLR 27

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STATUTES REFERRED TO

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The Sheriffs and Civil Process Act.

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