UBA OKEKE V. TIJANI LAWAL & 4 ORS (2018)

Background

Uba Okeke commenced an action at the High Court of Delta State, Warri Judicial Division, against the respondents, claiming special and general damages of four million naira for assault and battery. The alleged tortious conduct was said to have occurred on 25 April 1988 and to have caused the appellant permanent loss of an eye, continuing severe pain and suffering. The action was commenced by writ of summons and other originating processes.

Attempts were made to serve the respondents, who were naval officers. The address endorsed on the writ was the Naval Base, Warri. When personal service could not be effected, applications were made for substituted service, including an application seeking delivery of the processes through the commanding officer of the relevant naval establishment. Although the trial court made an order relating to substituted service, the record contained no satisfactory evidence that the originating processes were actually served. There was also no affidavit or certificate of service demonstrating that service had been completed.

Despite the absence of the respondents and their counsel, and despite the fact that they had not been shown to have received hearing notices, the trial court proceeded with the appellant’s case. The matter was adjourned several times, the appellant’s counsel eventually addressed the court, and judgment was delivered in favour of the appellant. The respondents appealed to the Court of Appeal, which held that there was nothing on the record establishing service of the processes on the first to fifth respondents. It consequently set aside the trial court’s proceedings and judgment. The appellant then appealed to the Supreme Court.

Issue

The principal issue was whether the Court of Appeal was correct in concluding that the originating processes had not been served on the respondents before trial commenced, and whether the resulting proceedings and judgment could stand.

Ratio Decidendi

The Supreme Court unanimously dismissed the appeal. Nweze JSC, delivering the lead judgment, held that service of originating process, where required by law, is a condition precedent to the exercise of jurisdiction over a defendant. Service is not a technical or procedural formality: it informs the defendant of the claim and enables the defendant to prepare and present a defence. Without due service, the court lacks competence to adjudicate against that defendant.

The Court held that failure to serve the writ of summons was a fundamental defect going to the root of the proceedings. It was not a mere irregularity capable of being waived or overlooked. Any judgment or order made against a party who ought to have been served but was not served is, on the application of that party, null and void ex debito justitiae. The trial court therefore acted without jurisdiction when it heard and determined the case in the respondents’ absence.

Fair Hearing and Natural Justice

The failure of service also breached the principle of audi alteram partem, namely, that the other party must be given an opportunity to be heard. The Court emphasized that this principle is central to fair hearing under section 36 of the 1999 Constitution, as amended. A judgment cannot be saved merely because it appears well considered on the merits if the affected defendants were never notified of the proceedings or given an opportunity to defend themselves.

Eko JSC stressed that no court may dispense with this fundamental requirement. Muhammad JSC similarly observed that non-service disentitles a court from assuming jurisdiction and renders the entire proceedings, including the decision, void. The Court of Appeal was therefore right to nullify the trial proceedings rather than attempt to sustain the judgment.

Obiter Dictum and Appellate Review

The Supreme Court also addressed the appellant’s extensive challenge to remarks made by the Court of Appeal concerning possible non-compliance with the Sheriffs and Civil Process Act. The Supreme Court characterized those remarks as an obiter dictum, because the actual basis of the Court of Appeal’s decision was its finding that the record did not establish service of the originating processes. An appeal ordinarily lies against the ratio decidendi—the legal reason essential to the decision—and not against a passing observation that had no bearing on the final order.

Conclusion

The appeal was dismissed as lacking merit. The Supreme Court affirmed the Court of Appeal’s decision setting aside the trial court’s judgment and consequential orders. The case was remitted to the High Court for a trial de novo before another judge, but only after proper service of the originating processes had been effected on the respondents.

Significance

The decision reaffirms the constitutional and jurisdictional importance of service of court processes in Nigerian civil litigation. It establishes that a court cannot acquire jurisdiction over a defendant merely because proceedings have been filed or because the claimant has attempted service. There must be credible evidence of legally effective service. Where such service is absent, every subsequent step, including trial and judgment, is a nullity. The decision also illustrates the distinction between a binding ratio and an obiter dictum in appellate judgments.