Thus, as it was held in MADAYE DUPIN v. OLONINORAN (2013) 1 NWLR (Pt. 1334) 175, non-compliance with conditions precedent for initiating an action vitiates the action ab initio. See alsoODOFIN v. AGU (1992) 3 NWLR (Pt. 229) 350; ATUYEYE v. ASHAMU (supra); UWAZURUIKE v. A.G. FEDERATION (Supra); AJUWA v. S.P.D.C. NIG. LTD. (2008) 10 NWLR (Pt.1094) 64; MADUKOLU v. NKEMDILIM (supra).
This Court per Uwais CJN has stated what a "Condition precedent" entails in the case of J. S. Atolagbe & Anor v. Alhaji Muhammadu Awuni & Ors (1997) 9 NWLR (Pt. 522) 537 at 565 thus:-
"Condition is a provision which makes the existence of a right dependent on the happening of an event, the right is then additional as opposed to an absolute right. A true condition is where the event on which the existence of a right depends is in the future uncertain. A 'condition precedent' is one that delays the vesting of a right until the happening of an event".
For a fuller picture, the Supreme Court has properly elucidated the expression "condition precedent" the case of J.S. Atolagbe & Ors v. Alhaji Muhammadu Awuni & Ors (1997) 9 NWLR (Pt. 522) 537 at 565 per Uwais CJN thus:-
"Condition is a provision which makes the existence of a right dependent on the happening of an event, the right is then additional as opposed to an absolute right. A true condition where the event on which the existence of the right depends is in the future uncertain. A 'condition precedent' is one that delays the vesting of a right until the happening of an event
In both cases, 30 days for service of processes out of jurisdiction and the pre-action notice are for the benefit of the defendant. The position of the law is that where a statute gives a party a benefit he may waive it, thereby conferring jurisdiction on the Court to hear the matter. Put in another way, conditions contained in a statute for the benefit of a person or class of persons can be waived by the person/s to benefit from it. See;
Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) p. 255, Ezomo v. Oyakhire (1981) 1 SC p. 6, Nwabueze v. Okoye (1985) 1 NWLR (Pt. 2) p. 195.
Liquidation is a special circumstance which affects the concerned company and triggers the provision of Section 417 of CAMA, 1990, now Section 580 of CAMA, 2020 which makes it mandatory (by the use of the word “shall”) for leave of either the Court of Appeal or this Court to be sought and obtained by the Appellant for there to be a valid appeal. It is trite that where the law has stipulated in a mandatory provision applicable in specified circumstances, same must be given effect to. It is usually referred to as a condition precedent.
This Court has properly elucidated the expression “condition precedent” in J. S Atolagbe & Ors v Alhaji Muhammadu Awuni & Ors (1997) 9 NWLR (pt.522) 537 at 565 per Uwais CJN thus:- “Condition is a provision which makes the existence of a right dependent on the happening of an event; the right is then additional as opposed to an absolute right A true condition where the event on which the existence of the right depends is in the future uncertain, A “Condition Precedent” is one that delays the vesting of a right until the happening of an event” JOHN INYANG OKORO, J.S.C.
The law is trite that where a Statute or Rules of Court prescribe a condition precedent to the assumption of jurisdiction, that condition precedent must be fulfilled before there is jurisdiction. A case must therefore come before the Court only when initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Shugaba v. U.B.N. Plc (1999) LPELR – 3068 (SC), (1999) 11 NWLR (Pt.627) 459; Drexel Energy & Natural Resources Ltd & Ors v. Trans International Bank Ltd & Ors (2008) LPELR-962 (SC), (2008) 18 NWLR (Pt.1119) 388.
PER PER ADAMU JAURO, J.S.C.
Order 5 thereof with the title Effect of Non-Compliance. “EFFECT OF NON – COMPLIANCE 1. Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein. 2.
The Court may on the ground that there has been such a failure as mentioned in Rule 1, and on such terms as to costs or otherwise as it, thinks just, set aside either wholly or in part, the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may make an order to rectify or regularize the proceedings, and may allow such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit. 3.
An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings after becoming aware of the irregularity.” PER WILLIAMS-DAWODU, J.C.A.
It has been a settled issue that service of originating processes on a Defendant is a fundamental condition precedent to the Court’s exercise of its jurisdiction to hear and determine any case. Service of originating process is very crucial to the competence and indeed the jurisdiction of the Court because it is the foundation of the structure of litigation. It is a constitutional issue bordering on the principle of fair hearing.
Where an originating process is not served on a Defendant or a Respondent in an appeal, the Court proceedings, including any judgment or decision resulting from such proceedings is rendered a nullity. See Ihedioha & Anor vs. Okorocha & Ors (2015) LPELR-40837 (SC) AT 69-70; Adegbola vs. Osiyi & Ors (2017) LPELR-42471 (SC) AT 18-19; Idisi vs. Ecodril (Nig) Ltd & Ors (2016) LPELR-40438 (SC) AT 23-25; Fidelity Bank Plc vs. MT Tabora & Ors (2018) LPELR-44504 (SC).
The essence of service of Court process is to adequately notify the person served or the defendant of the existence of the suit or claim against him to enable him defend same should he desire so to do. See Okoye & Anor vs. Centre Point Merchant Bank Ltd (2008) LPELR-2505 (SC). The fundamental nature of service of Court process on parties is such that absence of it robes the Court of any jurisdiction that it would otherwise have had, because it is a condition precedent to the exercise of jurisdiction by Court.
Authorities are legion on the point, that service of Court process on the opposing party is crucial and fundamental as it is the service of the process that gives the Court the jurisdiction and the competence to entertain and make pronouncement on such Court process. Without service, the jurisdiction of the Court cannot be activated with respect to such process. Failure to serve process where service of the said is required is a failure which goes to the root of the adjudication process.
The prominent exception to this rule is ex-parte application, where the opposing party is not expected to be put on notice. It is settled law that in proceedings where service of process is required, failure to serve process on the other party or parties is fatal to subsequent proceedings. Therefore, any proceeding that is conducted in the absence of service on the opposing party is a nullity. This is because the Court would be bereft of the necessary vires to adjudicate and pronounce on the matter whose process has not been served. See Isijola vs.
Ekiti State Micro Credit Agency (2014) LPELR-22708 (CA); Ahmed vs. Ahmed (2013) LPELR- 21143 (SC); SGBN Ltd vs. Adewunmi (2003) LPELR- 3081 (SC); Mark vs. Eke (2004) LPELR-1841 (SC); Tsokwa Motors (Nig.) Ltd vs. UBA Plc (2008) LPELR-3266(SC); Ihedioha vs. Okorocha (2015) LPELR- 40837 (SC). In the case of Eimskip Ltd vs. Exquisite Industries (Nig) Ltd (2003) LPELR-1058 (SC), Niki Tobi, JSC, had this to say on the effect of non-service of Court process: “Service is a pre-condition to the exercise of jurisdiction by the Court.
Where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. This is based on the principle of law that a party should know or be aware that there is a suit against him so that he can prepare a defence. If after service he does not put up a defence, the law will assume and rightly too for that matter, that he has no defence. But where a defendant is not aware of a pending litigation because he was not served, the proceedings held outside him will be null and void. In the often cited case of Skenconsult (Nig.) Ltd. v.
Ukey (1981) 1 S.C. 6, Nnnamani, JSC., relying on the English decision of Craig v. Kanseen (1943) 1 QB 256, held that failure to serve Court process goes to the issue of competence and jurisdiction of the Court and in such a case, the proceedings are a nullity and any orders made would also be nullities. In Oke v.
Aiyedun (1986) 2 NWLR (Pt. 23) 548, the Supreme Court referred to its earlier decision in Skenconsult and held that it is beyond question that failure to serve process where service of process is required is a failure which goes to the root of our conception of the proper procedure in litigation.” It has equally been held by the apex Court, times without number, that non-service of Court process on a party, where service is required, amounts to breach of the party’s right to fair hearing. See Emeka vs. Okoroafor (2017) LPELR-41738 (SC), Ihedioha vs. Okorocha (supra), Achuzia vs.
Ogbomah (2016) LPELR-40050 (SC); Okeke vs. Lawal & Ors (2018) LPELR-43920. In the recent case of Michael K. Aondoakaa, SAN vs. Emmanuel Bassey Obot (2021) LPELR-56605 (SC) AT 14-15, the Supreme Court, speaking through Kekere-Ekun, JSC, reiterated the trite principle in the following words: “It is well settled beyond any equivocation, that the service of an originating process on a named party, who ought to be served, is an indispensable aspect of any adjudication. It goes to the root of the Court’s competence and jurisdiction to entertain the suit.
Service of an originating process accords with the guarantee of the right to fair hearing as provided for in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. It notifies the party of the institution of an action against him and affords him the opportunity, if he so desires, to defend the claim. Failure to serve an originating process renders the entire proceedings a nullity.
See Kida vs Ogunmola (2006) 13 NWLR (Pt. 997) 377, Obimonure vs Erinosho (1966) 1 ALL NLR 250; Skenconsult vs Ukey (1981) 1 SC 6 AT 26; Mgbenwelu vs Olumba (2016) LPELR-42811 (SC) AT 36-37 E -D. ” PER SIRAJO, J.C.A.
It is to be stated that where leave is required before an appeal is taken but which was not obtained the appeal is incompetent as the Court lacks jurisdiction. Leave is a condition precedent to the exercise of the right of appeal. It goes to the question of jurisdiction of the appellate Court to the appeal. It will be an accepted fact that where this condition precedent is necessary but has not been fulfilled, there is legally speaking no appeal. Mary Ukaego Peter-Odili , J.S.C
Now, leave of Court, where it is required, is a condition precedent to the exercise of the right of appeal. See Nwaolisah v. Nwabufoh (2011) LPELR – 2115 (SC). As such, failure to obtain such leave, where it is required, will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court. Hence, an appeal from the Court of Appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained. See Nalsa Team Associates v.
NNPC [1991] 8 NWLR (pt 212) 652; SPDC (Nig) Ltd V. Katad Nig) Ltd [2006] 1 NWLR (pt 960) 199; Nwaolisah v. Nwabufoh (supra). PER NWEZE, J.S.C.
The service of a suit on a defendant by which claims and reliefs are sought against him is a necessary condition to the competence of the proceedings on the suit. It is not only good law but good sense that a person must be made aware of the pendency of a suit against him before a Court may proceed to hear any claim or question against him or touching his interest. Where a person is unaware of a suit or proceedings against him any order or orders made thereby against him are liable to be set aside ex debitio. See Alhaji Taofeek Alao vs. A. C. B. Ltd (2000) LPELR – 408 (SC). PER GAFAI, J.C.A
A party who contends or alleges improper service of Court Process does not demonstrate so by ignoring the process and neglecting or refusing to honour hearing notice served on him by the Court. The proper settled course is to attend and canvass before the Court any disagreement such a party has against the process issued and served on him by the order of the Court.
Where a party persistently neglects or refuses to attend the Court after due service of hearing notice(s) on him, he cannot be heard successfully complaining of improper or non-service of Court Process talk less of seeking the tall order setting aside a judgment delivered in his wilful absence. See Odey vs. Alaga (2021) 13 NWLR (Pt. 1792) 1 at 63 paras D-E; First Bank of Nig. Plc vs. T.S.A. Industries Ltd (2015) LPELR-25860; Okon vs. Adigwe (2011) LPELR-4528. PER GAFAI, J.C.A