Service of Court Processes and Other Legal Documents on a Company in Nigeria: A Review of Mark & Anor v. Eke (2004) LPELR-1841(SC)

Contributor: ANgela Anekwe Esq

1.0 Introduction

Service of court process is fundamental and goes to vesting a court with jurisdiction.^[1] It is a settled principle of Nigerian procedural law that service of originating process is a condition precedent to the exercise of jurisdiction.^[2] Where service is not effected, or where proof of service is deficient, any proceedings conducted are a nullity,^[3] however well conducted. Proper service is therefore not a mere technical requirement; it is a substantive safeguard rooted in the constitutional right to fair hearing.^[4]

The service of court processes which includes originating processes on companies is governed by the provisions of Section 104 of the Companies and Allied Matters Act, 2020^[5]as well as different Rules of Court. Section 104^[6] is to the effect that a Court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to, the registered office or head office of the company.^[7]

By its express wordings, Section 104 delegates the determination of the mode of service of court process on companies to the applicable Rules of Court when it provided in its first limb that a court process shall be served on a company in the manner provided by the Rules of Court. Thus, in determining the propriety of service on a company, recourse must be had to the Rules of Court of the jurisdiction where the action was commenced. The distinction drawn by the section between “court process” and “any other document” has generated judicial interpretation, particularly in cases where service was challenged.

This article examines the principles governing service of court processes on companies in Nigeria through a critical review of the decision of the Supreme Court in Mark v. Eke, and evaluates its continuing relevance under the current CAMA 2020 framework.

2.0 SERVICE OF COURT PROCESSES AND OTHER LEGAL DOCUMENTS ON A COMPANY IN NIGERIA.

A company, being an artificial legal person,^[8] cannot be personally served in the human sense. Service must therefore comply strictly with:

1. The applicable Rules of Court; and
2. Section 104 CAMA 2020.

Section 104 provides: “A court process shall be served on a company in the manner provided by the Rules of Court and Any other document may be served by leaving it at, or sending it by post to, the registered office or head office of the company”.^[9]

This provision establishes a clear statutory distinction between:

1. Court processes: documents that invoke judicial authority; and
2. Other legal documents: such as statutory notices or correspondence.

By delegating the mode of service of court processes to the Rules of Court, the Act reinforces procedural uniformity while preserving jurisdictional safeguards. Thus, the validity of service on a company must always be assessed against the relevant Rules of Court of the jurisdiction where the action was commenced. The Supreme Court has consistently held that service of originating process is fundamental to jurisdiction.

3.0 A REVIEW OF MARK & ANOR v. EKE (2004) LPELR-1841(SC)

Principle:

Practice and Procedure; Service of Court Process(es), Importance/object of service and effect of failure to serve.

The Supreme Court in Mark & Anor v. Eke restated the settled law that:

“It is the service of the process of the Court on the defendant that confers on the Court the competence and the jurisdiction to adjudicate on the matter. It is clear that due service of the process of the Court is a condition precedent to the hearing of the suit. Therefore, if there is a failure to serve the process, where service of the process is required, the person affected by the order but not served with process is entitled ex debito justitiae to have the order set aside as a nullity.”^[10]

The Court relied on its earlier decision in Mbadinuju v. Ezuka^[11] where it was held that a party not served with originating process is entitled as of right (ex debito justitiae) to have the proceedings set aside. The principle in Mark v. Eke^[12] aligns with the long-standing jurisdictional test in Madukolu v. Nkemdilim^[13]. In Madukolu v. Nkemdilim^[14] the Court established that a court is competent only where:

1. It is properly constituted;
2. The subject matter is within its jurisdiction; and
3. The case comes before it initiated by due process of law and upon fulfillment of conditions precedent.

Service of originating process falls squarely within the third requirement. Without service, there is no due process. Courts have insisted on strict compliance where jurisdiction is implicated.

In the case of EMEKA v. OKOROAFOR & ORS^[15] the Supreme Court held that “The settled position of the law was clearly stated by His Lordship, Musdapher, JSC (as he then was) in Kida Vs Ogunmola^[16] thus: “…service of process on a party to an action, particularly an originating process, is crucial and fundamental.”^[17] Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of the Court’s jurisdiction was not fulfilled.^[18] In the case of Ihedioha v Okorocha^[19] the Supreme Court stated as follows: “… I agree that it is not every non-compliance with the Rules of Court that should vitiate the proceedings. However, where the non-compliance robs the Court of its jurisdiction, the processes and the proceedings must be set aside. I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). … Any beach of this principle (of fair hearing) renders the proceedings a nullity.^[20]

It is therefore settled beyond dispute that the service of an originating process on a party to an action is a condition precedent to the exercise of the Court’s jurisdiction, as any party against whom a suit or process is filed has the right to know that a suit had been instituted against him, what the claims are and an opportunity to defend himself if he has a defence thereto.^[21]

The decision in Mark v. Eke therefore did not create new law; rather, it reaffirmed an established constitutional and procedural doctrine.

4.0 Modes of Service on a Corporation

Service on a corporation may typically be effected by:

1. Delivering the process to a director, secretary, or principal officer;
2. Leaving the process at the registered office of the company;
3. Any other legally recognized method of serving corporate entities.

The receiver of the process bears the burden of proving that service was duly effected. Acceptable proof may include:

1. An affidavit of service sworn by the process server;
2. Acknowledgment of receipt by an authorized officer;
3. Documentary evidence confirming delivery at the registered office.

Where substituted service is employed, prior judicial authorization is generally required. Absent of such authorization, purported substituted service may be invalid.

Section 168 (1) of the Evidence Act, 2011^[22] provides for the presumption of regularity of official acts. It provides thus; “(1) Where any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” The law is well settled that an affidavit of service deposed to by the bailiff of a Court stating the Fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matter stated in the affidavit.^[23] The law is equally settled that the presumption of regularity in this regard is rebuttable.

A defendant who intends to challenge the affidavit of service deposed to by the bailiff must file an affidavit denying service and detailing specific facts, which show that he could not have been served on the date, or at the time, or at the place or in the manner deposed to. It would then be for the Court to determine whether or not the party complaining was indeed served accordingly.^[24]

5.0 Conclusion

The Supreme Court’s decision in Mark & Anor v. Eke reaffirms a foundational principle of Nigerian procedural law: service of court process is the lifeblood of jurisdiction.

For corporate defendants, Section 104 CAMA 2020 provides the statutory framework, but it does not dilute the judiciary’s insistence on strict compliance. Where a company is not properly served with originating process, the proceedings are void ex debito justitiae.

The decision therefore continues to serve as a guiding authority in corporate litigation, ensuring that jurisdictional integrity and constitutional fairness remain paramount in Nigeria’s justice system.

Reference:

1. Dr. Abiodun Amuda-Kannike, SAN, ‘Issues in Service of Court Process on Companies’ (2016), Vol.7, No. 2, The Gravitas Review of Business and Property Law. ↑
2. See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554 ↑
3. Ihedioha Vs Okorocha (2016) 1 NWLR (Pt.1492) 148 @ 179 D-F ↑
4. Constitution of Federal Republic of Nigeria, 1999 (as amended), section 36 ↑
5. Companies and Allied Matters Act, 2020, Section 104 ↑
6. Ibid. ↑
7. Companies and Allied Matters Act, (CAMA) 2020, section 104 ↑
8. ANYAEGBUNAM v. OSAKA & ORS (2000) LPELR-508(SC) ↑
9. CAMA 2020, section 104 ↑
10. MARK & ANOR v. EKE (2004) LPELR-1841(SC), Per Dahiru Musdapher, JSC (pp. 26–27, paras E–A) ↑
11. (1994) 8 NWLR (Pt. 364) 535, ↑
12. Ibid. ↑
13. (1962) 2 SCNLR 341 ↑
14. (1962) 2 SCNLR 341, ↑
15. (2017) LPELR-41738(SC) ↑
16. (2006) 6 SCNJ 165 @ 174 ↑
17. See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554; S.G.B.N v. Adewunmi (2003) 10 NWLR (Pt. 829) 526; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535. ↑
18. EMEKA v. OKOROAFOR & ORS (Supra) ↑
19. (2016) 1 NWLR (Pt.1492) 148 @ 179 D-F ↑
20. See Chime vs. Onyia (2009) All FWLR (Pt. 480) 673 @ 730-731 Paras H-B; (2009) 2 NWLR (Pt. 1124) 1.” See also: Skenconsult (Nig) Ltd. Vs Ukey (1981) 1 SC 6: Obimonure Vs Erinosho (1966) 1 ALL NLR 250: Craig Vs Kanseen (1943) K.B 256; National Bank (Nig) Ltd. vs. Guthrie (Nig) Ltd. (1993) 3 NWLR (Pt.284) 643. ↑
21. EMEKA v. OKOROAFOR & ORS (Supra) ↑
22. Evidence Act, 2011, section 168 (1) ↑
23. See: Schroeder Vs Major (1989) 2 NWLR (Pt.101) 3 @ 11 E – H; Okoye Vs Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt.1110) 335: Idisi Vs Ecodril (Nig) Ltd. (2016) LPELR- 40438 (SC). ↑
24. EMEKA v. OKOROAFOR & ORS (2017) LPELR-41738(SC), Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC (Pp 46 – 47 Paras F – F) ↑