Save the Date: 2nd Diamond Open Access Workshop!

by Legalnaija | Mar 25, 2025 | Blawg

The President’s Lack of Power to Suspend Governors and Legislators Under the 1999 Constitution

by Legalnaija | Mar 20, 2025 | Blawg

“The President Lacks Power To Suspend An Elected Governor, His Deputy And Members Of The House Of Assembly Under Section 305 Of The 1999 Constitution As Amended Because The Power To Remove A Governor And A Deputy Governor Is Enshrined In Sections 188 And 189 Of The 1999 Constitution Of The Federal Republic Of Nigeria As Amended And Same Can Only Be Exercised By The House Of Assembly Of A State And Not The President”

Since yesterday, I have been reading articles and listening to Lawyers and non-lawyers debating and arguing about the Constitutionality or otherwise of the powers of the President to suspend the Governor of Rivers state, his deputy and all other elected members of the Rivers State House of Assembly. While some have hinged their arguments on the provisions of Section 305 of the 1999 Constitution of the Federal Republic of Nigeria as amended, others, hinged theirs on the provisions of section 218 of the Constitution.

Furthermore, there is also another school of thought, that relied on the provisions of section 180 (1)(d) which provides thus: Subject to the provisions of this Constitution, a person shall hold the office of Governor of a state until- (d) he otherwise ceases to hold office in accordance with the provisions of this constitution.

It is quite regrettable and unfortunate that majority of Nigerians have been massively misled by both Lawyers and non-Lawyers that the President of the Federal Republic of Nigeria can hide under the provisions of Sections 180 (1) (d), 218 and 305 of the 1999 Constitution as amended to suspend an elected governor of a state, his deputy and other elected members of the House of Assembly. For the avoidance of doubt, no such powers exist under the 1999 Constitution as amended.

Premised upon the above, it is important to state that, the provision of Sections 180 (1) (d), 218 and particularly, section 305 of the 1999 Constitution as amended are so clear, plain and direct and do not require any ambiguous or imported interpretation. There is absolutely nothing in any of these Constitutional provisions that empowers the President to suspend or remove an elected Governor of a state, his deputy or the members of the House of Assembly.

As have been held in several authorities, not even Courts can amend the Constitution or even change the words. It is also a principle of interpretation that the language of the Constitution where clear and unambiguous, must be given its plain evident meaning and that a constitutional provision should not be construed so as to defeat its evident purpose. It is also settled law that provisions of the Constitution are not to be interpreted in isolation but that other provisions must be taken into consideration in the exercise. See the case of HON. MICHAEL DAPIANLONG & ORS vs. CHIEF (DR.) JOSHUA CHIBI DARIYE & ANOR (2007) LPELR-928(SC) at PP. 55-57, paras. D-A.

The Supreme Court in Marwa vs. Nyako (2012) 6 NWLR (pt.1296) 199 at 337 SC, restated that when interpreting the provisions of our Constitution, not only should the Court look at this Constitution as a whole, the provisions should be construed in such a way to justify the hope and aspirations of those who made strenuous efforts to provide us with a constitution to ensure good governance, but also to protect the rights of Nigerians who are the beneficiaries of the provisions of the Constitution, particularly to ensure durable democratic institutions.

From the clear, express and direct provisions of the 1999 Constitution as amended, the power to remove a governor and a deputy governor is contained in sections 188 and 189 of the Constitution and only exercisable by the House of Assembly and not the president or even our Courts can exercise such powers. While a member of the House of Assembly can vacate his seat or be recalled from the House of Assembly by the express provisions of sections 109 and 110 of the Constitution. Just like sections 188 and 189, the President lacks the powers to exercise these powers.

Consequent upon the above, it is illogical and highly unreasonable for anyone to submit that the President can suspend an elected governor, deputy governor and members of the House of Assembly.

Finally, for those who have hidden under the omnibus provisions of section 180 (1) (d) to argue that the president can suspend an elected governor and his deputy, I must humbly refer you to the authority of All Progressives Congress (APC) vs. Peoples Democratic Party (PDP) & Ors (2022) LPELR-58952(CA) at PP. 42-44 paras. C-C, wherein it was held thus: Now, the offices of the Governor of a State and Deputy Governor of that State are creations of the Constitution, which is the grundnorm that regulates the conduct of government. Thus, Section 176 (1) of the Constitution stipulates that, there shall be for each State of the Federation, a Governor. The qualifications of a person to be elected Governor of a State are laid down in Section 177 of the Constitution. Where a person qualifies to contest for the Governor of a State, he will be declared duly elected if he satisfies the requirements of Section 179(1) (a) and (b), or 179(2) (a) and (b), or 179(3) (a) and (b), or 179(4) (a) and (b) of the Constitution. The equivalent provisions of the Constitution relating to the office of Deputy Governor of a State are Sections 186 and 187 (1) and (2). In the instant case, the 3rd and 4th Respondents satisfied the requirements of Section 179(2) (a) and (b) of the 1999 Constitution and were accordingly declared duly elected and sworn in on 29/5/2019. The 1st Respondent has hot contested nor denied those facts. It should be noted that the 3rd and 4th were to occupy the offices of Governor and Deputy Governor of Ebonyi State for a term of four (4) years from the 29th day of May, 2019. See Section 180 (2) of the 1999 Constitution (as amended). However, by Section 180(1) of the Constitution, they shall not vacate or deemed to have vacated the office of Governor until: (a) when their successors in office take oath of that office; or (b) the date when their resignation from office take effect; or (d) They otherwise cease to hold office in accordance with the provisions of the Constitution. It is apparent from the above stated provision of the Constitution, that their term of office shall end when their successors in office have been validly elected and sworn in; or where they die during the subsistence of their terms of office; or where they resign; or they otherwise cease to hold office. Section 180(1) (d) appears to be a general or omnibus provision to accommodate other circumstances, which may truncate or terminate the tenure of four (4) years prescribed by the Constitution. It is my view that paragraph (d) of subsection 1 to Section 180 of the Constitution is meant to accommodate a situation where the Governor may be removed from office pursuant to Section 188 and 189 of the Constitution (supra).

See also the decision of Engineer David Nweze Umahi & Anor vs. Peoples Democratic Party (PDP) & Ors, (2022) LPELR-58994(CA) at PP. 67-68, paras. C-F, it was held thus: It should be noted that the Appellants were to occupy the offices of Governor and Deputy Governor of Ebonyi State for a term of four (4) years from the 29th day of May, 2019. See Section 180 (2) of the 1999 Constitution (as amended). However, by Section 180(1) of the Constitution he shall not vacate or be deemed to have vacated the office of Governor until: (a) when his successor in office takes oath of that office; or (b) the date when his resignation from office takes effect; or (d) he otherwise ceases to hold office in accordance with the provisions of the Constitution, ?It is apparent from the above stated provision of the Constitution, that his term of office shall end when his successor in office has been validly elected and sworn in; or where he dies during the subsistence of his term of office; or where he resigns; or he otherwise ceases to hold office. Section 180(1) (d) appears to be a general or omnibus provision to accommodate other circumstances, which may truncate or terminate the tenure of four (4) years prescribed by the Constitution. It is my view that paragraph (d) of subsection 1 to Section 180 of the Constitution is meant to accommodate a situation where the Governor may be removed from office pursuant to Section 188 and 189 of the Constitution (supra). In the instant case, the case of the 1st Respondent leading to the decision of the Court below and subject of this appeal is that, the Appellants having decamped or cross-carpeted from the 1st Respondent’s platform on which they won the election, to the 3rd Respondent, they are deemed to have vacated their offices. It should be noted that by Section 187(2) the issue of inter alia, tenure of office applies to the office of Deputy Governor of a State. 

In conclusion, an elected governor and his deputy can only be removed pursuant to the provisions of sections 188 and 189 of the Constitution only by the House of Assembly of a state. Furthermore, it must be noted that members of the House of Assembly can vacate their seats pursuant to sections 109 or be recalled pursuant to section 110 of the Constitution. The President therefore lacks powers under section 305 of the Constitution to suspend the Governor, Deputy Governor or members of the House of Assembly.

Ojonimi S. Apeh, Esq.

(Notary Public)

08064465541

apehnimibrisk@gmail.com

Accuracy of Employee Records: Ologe v. CAC | Olumide Babalola

by Legalnaija | Mar 18, 2025 | Blawg

Accuracy of Employees Records: Spotting some data protection issues from the facts of Ologe v Corporate Affairs Commission as decided by the National Industrial Court | By Olumide Babalola

Coincidentally, I penned this article today – 18 March 2025) – a day the Nigerian Bar Association Data Protection Committee (which I modestly chair) holds its inaugural webinar titled “Data Protection in Nigeria: Milking A New Practice Area” to further sensitize lawyers on why they should take issues of data protection more seriously.

In his characteristic manner, Mr. Folabi Kuti, SAN, one of the foremost labour and employment lawyers in our country had shared an interesting decision of the National Industrial Court between Olumide Abayomi Ologe and Corporate Affairs Commission & Anor. (unreported Suit No. NICN/ABJ/375/2024) where the court ruled on the effect of a letter of promotion which was delivered to an ex-employee two years after his resignation. Outside the labour law issues of facts and law, I spotted some quick lessons in data protection from the facts thus:

The Importance of Rectifying Employee Records under the Nigeria Data Protection Act 2023

The Claimant resigned in December 2022, his records ought to have been rectified to reflect his status as ex-employee and his file moved to the appropriate storage section/folder whether manual or electronic. The Nigeria Data Protection Act 2023 (NDPA) mandates organizations to uphold the rights of individuals regarding the processing of personal data, in this case storage. One of the key rights under this Act is the right to rectification (section 34(1)(c), which allows individuals to ensure that their personal data is accurate, complete, and up-to-date.

In the case of an employee who resigns, it is crucial for the employer to update the individual’s records in a timely manner. For instance, if an employee, such as the Claimant, resigns in December 2022, their employment status should be immediately reflected in both manual and electronic records. This is not just a matter of internal housekeeping; it’s a legal obligation to ensure that the employee’s status is accurately documented and that their data is properly handled.

The NDPA envisions that once an employee ceases to be part of an organization, their personal data should no longer be classified as “active” in the organization’s system. The employer must ensure that the former employee’s file is moved to the appropriate storage section or folder—whether in physical archives or electronically. Failure to do so could violate the employee’s right to rectification, which could lead to legal consequences for the organization as a result on the ensuing confusion.

Moving the data to the correct storage ensures the security and privacy of the ex-employee’s data while complying with the principles of data minimization and purpose limitation – these are obligations provided in the Act. Keeping outdated or incorrect employment information can not only result in potential data breaches but also exposes the organization to legal liabilities for non-compliance as well as payment of entitlements to ex-employees as claimed in Ologe’s case.

It is advised that organizations must prioritize the rectification of personal data records and ensure that any data about former employees is appropriately updated, secured, and archived in accordance with the Nigeria Data Protection Act 2023. This step is essential not only for legal compliance but also to protect employees privacy and data subjects rights.

The Principle of Accuracy Under the NDPA: Consequences of Misleading Employment Records

The NDPA provides certain principles designed for entities to ensure that personal data is handled responsibly. One of the principles is the “accuracy” principle (section 24(1)(e), which mandates that personal data must be accurate, complete, and kept up-to-date. This principle is fundamental in safeguarding individuals’ rights to have their data correctly represented, and it holds particular significance in the context of (current or past) employee records.

In the case of a Claimant who resigned in December 2022, his employment status and position within the organization should have been promptly updated to reflect his actual status as an ex-employee. However, an issue arose when the employer issued a letter of promotion to the Claimant – after two years of his resignation, recognising to him as a “Director” rather than his correct position of “Principal Manager” before resignation. The employer explained its position in court, arguing that the Claimant’s last official role was that of Principal Manager and that the Claimant ought not to have countenanced the letter and its contents. This discrepancy raises concerns under the NDPA’s accuracy principle.

The principle of accuracy mandates that all personal data, including employment records, must be kept precise and free from errors. Referring to an individual by a title that does not correspond to their actual position creates misleading information and violates the obligation to maintain accurate records. In this case, addressing the Claimant as a “Director” in the promotion letter, despite their last position being “Principal Manager,” represents an inaccuracy in the personal data of the Claimant, which led to the ex-employee’s demand for arrears of salaries and entitlements as a director. The error in the promotion letter also highlights a failure on the part of the employer to update and rectify the Claimant’s records in a timely manner following his resignation. According to the NDPA, an organization must ensure that any personal data held, such as job titles, is both accurate and up-to-date. Failure to amend such records can be interpreted as non-compliance with the data protection dictates.

Conclusion

Concluding, the failure to correct the Claimant’s employment records, particularly in addressing him as a “Director” in a letter written in January 2024 – two years after his resignation, is misleading as it constitutes a clear violation of the rectification and accuracy principles under the Nigeria Data Protection Act 2023. The Act mandates that personal data must be accurate, complete, and kept up-to-date, especially when an individual’s employment status changes. By continuing to refer to the Claimant by an incorrect job title, the employer has not only breached the legal obligation to rectify and maintain accurate records but has also undermined the integrity of the data processing practices. It is crucial for organizations to prioritize timely updates and ensure that all personal data, including employment titles and statuses, reflect the true and current state of affairs to remain compliant with the NDPA and protect the rights of the data subject. As a result of the misleading letter, the employee can maintain an action under the Nigeria Data Protection Act 2023 especially since he has suffered some injury (financial, psychological, emotional) by the employers’ processing activities.

Abisoye Coker Appointed as Alternate Chair of the Fundraising Sub-Committee for #NBALagosLawWeek2025

by Legalnaija | Mar 13, 2025 | Blawg

Abisoye Coker Appointed as Alternate Chair of the Fundraising Sub-Committee for NBA Lagos Law Week 2025

The Nigerian Bar Association (NBA) Lagos Branch has appointed Abisoye Coker as the Alternate Chair of the Fundraising Sub-Committee for the upcoming NBA Lagos Law Week 2025, scheduled for June 14th – 20th, 2025. This year’s theme, “Reimagining the Practice of Law: Ethics, Innovation, and the Future of Legal Services,” will explore the intersection of law, technology, and policy, emphasizing the evolving role of legal practitioners in a rapidly shifting global landscape.

A seasoned corporate lawyer, entrepreneur, and financial policy advocate, Abisoye chairs the board of KiaKia Global Inc., a leading payments solutions company, and also serves as the Managing Director of KiaKia FX UK, the group’s payments systems technology and advisory firm. With a strong focus on FX policy reforms in Africa, he has established himself as a key thought leader in financial regulations and corporate governance.

Speaking on his appointment, Abisoye underscored the importance of innovation and adaptability in the legal profession, particularly in an era of fast-changing financial policies and regulatory frameworks. He noted that as global economic structures continue to evolve, legal practitioners must engage with emerging policies and technologies to remain effective, forward-thinking, and prepared for the future.

Amongst other topical discussions, NBA Lagos Law Week 2025 will feature a high-level roundtable discussion on the impact of the Central Bank of Nigeria’s (CBN) Foreign Exchange Reform Policies introduced in 2024.

Building a Thriving Legal Career: A Guide for Young Lawyers

by Legalnaija | Mar 6, 2025 | Blawg

Building a Thriving Legal Career: A Guide for Young Lawyer

Embarking on a career in law is as exciting as it is challenging. The legal profession offers immense opportunities for growth and impact, but success requires strategy, perseverance, and adaptability. Here are some key pieces of advice for young lawyers looking to build a fulfilling and thriving career:

1. Embrace Lifelong Learning

The legal landscape is constantly evolving with new laws, technologies, and societal changes. Stay ahead by consistently updating your knowledge. Attend seminars, enroll in continuing legal education (CLE) courses, and keep up with landmark cases. Remember, a well-informed lawyer is a valuable lawyer.

2. Find Your Niche

While it’s important to start with a broad understanding of law, identifying a specialty early on can set you apart. Whether it’s corporate law, intellectual property, criminal defense, or tech law, choose an area that aligns with your passion and skills. A niche focus makes you an expert, not just a generalist.

3. Build Strong Relationships

The legal field thrives on connections. Cultivate relationships with colleagues, mentors, and clients. Attend networking events, engage with your professional community, and never underestimate the power of a thoughtful follow-up email. Building a reputation for being approachable and reliable will open doors.

4. Develop Your Soft Skills

Technical legal knowledge is essential, but don’t overlook the importance of soft skills like communication, negotiation, and emotional intelligence. Effective listening and clear articulation are key to understanding clients’ needs and persuading others, whether in court or during negotiations.

5. Master Time Management

The legal profession can be demanding, with tight deadlines and high expectations. Learn to prioritize tasks, delegate when necessary, and avoid burnout. Tools like task managers, calendars, and time-tracking apps can be lifesavers.

6. Stay Ethical

Integrity is the backbone of a lasting legal career. Uphold the highest ethical standards in all your dealings. Trust is hard to build but easy to lose, and your reputation as a lawyer will precede you in all professional interactions.

7. Leverage Technology

The legal industry is rapidly embracing technology. Familiarize yourself with legal research tools, case management software, and emerging fields like artificial intelligence in law. Being tech-savvy will make you more efficient and competitive.

8. Seek Mentorship

Having a mentor can provide invaluable guidance as you navigate the complexities of the legal world. A mentor can offer insights into career decisions, introduce you to their network, and provide a sense of direction when challenges arise.

9. Take Care of Yourself

The demands of a legal career can take a toll on your well-being. Prioritize self-care, maintain a healthy work-life balance, and don’t hesitate to seek help when needed. A happy, well-rested lawyer is a more effective lawyer.

10. Set Long-Term Goals

While focusing on immediate tasks is important, always keep an eye on the bigger picture. Define what success looks like for you, whether it’s becoming a partner, starting your own practice, or advocating for social change. Regularly revisit your goals and adjust your strategies accordingly.

Starting out in law is a journey full of learning and growth. With dedication, resilience, and a focus on both personal and professional development, young lawyers can carve out a path to success and make a meaningful impact. Remember, every case you take on is an opportunity to learn and grow. Your future in law is as bright as you make it!

Growing Vandalism on Energy Infrastructure, Expert demands Capital Punishment for Vandals | Dr. Tolu Aderemi

by Legalnaija | Mar 5, 2025 | Blawg

Growing Vandalism on Energy Infrastructure, Expert demands Capital Punishment for Vandals.

Lagos, Nigeria – Tolulope Aderemi, a partner at Perchstone & Graeys LP, has raised alarm over the escalating vandalism of critical infrastructure in Nigeria, which has significantly impacted the nation’s liquefied natural gas (LNG) exports. In a recent interview with a national television network, Aderemi revealed that five of the Nigeria LNG Limited (NLNG) trains are currently non-operational due to acts of vandalism, leading to a notable decrease in LNG output.

Aderemi emphasized the need for the NLNG to revisit its original pipeline security strategies, specifically the surveillance and grass-cutting contracts that had previously proven effective. “These strategies have shown to be successful, and there is no justification for abandoning a model that works,” he stated, advocating for the application of technology to enhance the protection of oil and gas infrastructure.

In a more drastic call to action, Aderemi urged the Nigerian Federal Government to implement capital punishment for individuals caught vandalizing pipelines, highlighting the economic significance of these assets, which generate approximately $865 million annually for the country.

The urgency of Aderemi’s message is underscored by the current LNG landscape in Europe, where the European Union imports 17.5 million tonnes of LNG from Russia. With expectations for increased purchases in 2024, the EU is actively seeking to reduce its dependence on Russian LNG by 2030. However, alternatives like Algeria and Nigeria currently meet only 10% and 4.2% of the demand, respectively, forcing Europe to rely heavily on the US and Russia.

Given Nigeria’s substantial gas reserves, Aderemi believes the country must strategically position itself to fulfill the EU’s LNG requirements. With the recent completion of Train 7, NLNG’s total capacity has reached 30 million tonnes, which could potentially satisfy the EU’s demand if all seven trains are operational.

In conclusion, Aderemi called on the government to designate NLNG infrastructure as a ‘critical government asset’ and consider the establishment of a dedicated ‘Marine Army’ for its protection. He reiterated the importance of reverting to effective surveillance and grass-cutting models to safeguard Nigeria’s vital energy resources.

Register: Data Protection Seminar

by Legalnaija | Mar 5, 2025 | Blawg

We are excited to invite you to a webinar hosted by the NBA Data Protection Committee on 18th March 2025 at 4:00 PM (WAT), titled “Data Protection in Nigeria: Milking A New Practice Area.”
As the landscape of data protection continues to evolve globally and within Nigeria, it is becoming increasingly important for legal professionals to understand the key elements driving this emerging field.

Whether you’re a litigator, corporate professional, or simply interested in the field of data protection, this session will provide valuable insights from industry experts and thought leaders.

Please find the event details and flyer attached for more information. We look forward to your participation in what promises to be an engaging and informative discussion.

To register, simply click

https://port-ac-uk.zoom.us/meeting/register/vJnY5MabTvOEERqlz-BRRQ#/registration

Don’t miss out on this opportunity to deepen your understanding of data protection in Nigeria and explore its potential as a growing practice area.

The Dilemma Of Serving Court Processes Via A Courier Company: Does This Constitute Substituted Service In All Circumstances? | Nsikak E. Effiong

by Legalnaija | Feb 24, 2025 | Blawg

THE DILEMMA OF SERVING COURT PROCESSES VIA A COURIER COMPANY: DOES THIS CONSTITUTE SUBSTITUTED SERVICE IN ALL CIRCUMSTANCES?[1]

1. Introduction

The service of a process is of fundamental importance to the jurisdiction and vires of a court.[2] The necessity of this act is hinged on the fundamental right to fair hearing provided for in the Constitution.[3] Where there is no evidence of service of a court process, the legality of the proceedings and any verdict thereof becomes questionable and tantamount to a nullity.[4] The service of a process and how it was effected therefore becomes crucial and paramount in determining the jurisdiction of a court. The purpose of service is for the recipient to become aware of a pending suit or case instituted in court and an opportunity to defend the suit.[5] The rules of the various courts have provided for service and the appropriate mode to effect such service. Nevertheless, the issue of service has elicited debates especially as to the appropriate mode of service which has led to the interpretation of the Rules by the Court. This Article weighs in on the service of an Originating Process by a courier company on a defendant or respondent whose process has been acknowledged by such a receiving party. Does the mere fact of using a “courier company” change the nature of such service to substituted service?

2. What Does the Law say?

An Originating Process must always be served personally to the named defendant or respondent.[6] The High Court of Lagos State (Civil Procedure) Rules, 2019[7] provides for personal service of an Originating Process. It states thus:

“The Process Server shall effect service of an Originating Process on a party by delivering a copy of the process duly certified as prescribed by Order 8 Rule 2(3) and Rule 4 personally on the party to be served.”

However, where a process cannot be served on a defendant or respondent personally due to several reasons, the Rules of Court permit substituted service in order not to frustrate a suit. This position is expressed in the provisions of Order 9 Rule 5 of the Lagos State High Court (Civil Procedure) Rules, 2019 which states as follows:

“Where personal service of an originating Process is required by these Rules and a Judge is satisfied that prompt personal service cannot be effected, the Judge may upon application by the Claimant make such order for substituted service as may seem just, including service by electronic mails.”[8]

An application must be brought before the Court with an affidavit setting forth the grounds upon which the application is made.[9] It is however important to note that an application for substituted service can be brought regardless of whether or not personal service was attempted.[10] This is solely at the discretion of the Court. As it is a discretionary power, it is advisable for a deponent to state reasons why personal service is not possible in the circumstances to enable the Court exercise its discretion in favour of the applicant.

3. Service of a Process by Courier Company on the Defendant

To address this issue, it is pertinent to know who is endorsed, in law, to effect service. The Rules of Court have provided for persons authorized to serve an Originating Process and they include the Sheriff, Deputy Sheriff, Bailiff, Special Marshal, or other officer of the Court.[11] The Chief Judge may also appoint and register any Law Chambers, Courier Company, or any other person to serve Court processes and such person shall be called “a Process Server”.[12] A courier company is thus approved to serve an Originating Process where appointed and registered by the Chief Judge. Surprisingly, most courier companies are not registered as “Process Servers” in several jurisdictions in Nigeria.

In practice, an applicant typically seeks an order of Court to serve a defendant or respondent through substituted means, such as using a courier service. However, where the Plaintiff knows the Defendant’s valid and current address and uses a courier company duly registered as a “Process Server” to deliver Court processes, which the Defendant acknowledges receipt, does this constitute personal service? Or does the mere use of a courier company automatically render it a substituted service, thereby necessitating an order of Court?

3.1       Distinguishing Personal Service from Substituted Service

Personal Service means delivering to a party named therein a copy of the process duly certified as prescribed by the Rules of Court.[13] It has been rightly observed by some legal commentators that to constitute personal service, as a general rule, the process in question must be delivered personally to the person intended to be served. The person served is also required to acknowledge receipt of service.[14] Substituted service means no more than any other mode of service than personal service where the rules require personal service.[15] This distinction is very important, in that while personal service does not require an Order of Court, substituted service does. Where a service is carried out by substituted means without an Order of Court, such service becomes a nullity.[16]

An application for substituted service is usually brought when an applicant finds it difficult or impracticable to serve the defendant in question and also in instances where the defendant has no known address; is evading service; and/or has changed address, etc.[17] Order 7 Rule 11(2) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018 has given various ways, though not exhaustive, through which service by substituted means can be carried out. They include:

1. Delivery to an adult inmate at the usual or last known place of abode or business of the person to be served.
2. Delivery to an agent or someone who can deliver the document to the Defendant.
3. Advertisement in federal gazette or newspaper circulating within jurisdiction.
4. At the principal courthouse or public resort within the division where the suit is instituted or the last known place of abode.
5. Through e-mail and courier service or any other means convenient to the Court.[18]

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3.2       Argument on the Issue

This Article has reviewed the relevant provisions of the High Court (Civil Procedure) Rules of various Courts on personal service. The general definition of what constitutes “personal service” emphasizes direct service to the named defendant(s). An argument could therefore be made that where a Defendant is served with an Originating Process personally, it is indeed personal service, and the agency or medium used for effecting such service is immaterial. It is the view of this author that the mere fact of service of a Court process through a courier company should not ipso facto tantamount to substituted service. The pertinent question that should be asked is: did the defendant receive the process personally? In providing a guide on when substituted service can be employed, the Supreme Court in Kida v. Ogunmola[19], per Dahiru Musdapher, JSC, stated thus:

“Substituted service can only be employed when for any reason, a defendant cannot be served personally with the processes within the jurisdiction of the court for example when the defendant cannot be traced or when it is known that the defendant is evading service.”[20] (Emphasis mine) 

Moreover, in Akeredolu v. Abraham & Ors.[21], the Supreme Court restated the essence of substituted service in the following words:

“Finally, the essence of substituted service is to convey to the relevant party the notice of the pending case in which he is involved and the date he is required to appear in Court, since it is difficult to serve him through formal service. In the instant case, there is evidence that the Court processes were brought to the notice of the appellant. He cannot be heard to urge that the service be set aside for being illegal.”[22] (Emphasis mine)

The various Rules of Court have provided for persons who are authorized to effect service[23] and also for the appointment and registration of Law Chambers, courier companies, or any person for the purposes of service who are called “Process Servers”.[24] Consequently, where an Originating Process or any other Court process cannot be served through a bailiff or other officer of the Court, a party can use a registered Process Server to effect service. This reality was acknowledged by the Supreme Court in the case of State v. Ekuma,[25] thus:

“Service of processes may be affected by registered reputable courier companies, recognised and authorised by the Chief Judge in accordance with the provisions of the Act and the registered courier companies may be assigned to a court with criminal jurisdiction as a process server in accordance with section 242(1). The Attorney-General of the Federation or a person so authorised or the police may serve on a person whom the prosecutor wishes to call as witness, a witness summons or writ of subpoena. Proof of service of a process or document shall be endorsed by the process server effecting the service, and shall be filed in the court’s file.”[26] (Emphasis mine)

It is the position of this author that personal service of a Court process through a “registered” courier company or Law Chambers is proper, valid and acceptable personal service in law.  This position was endorsed by the Court of Appeal in the case of Dike v. Key Key Constr. Limited,[27] where the following was held:

“By virtue of Order 7, rules 1, 2, 3 and 4 of the High Court of Enugu State (Civil Procedure) Rules, 2006, service of originating and other processes shall be made by a Sheriff, Deputy Sheriff, Bailiff, Special Marshal or other officer of the court. The Chief Judge may also appoint and register any courier company or any other person to serve court processes and such person shall be called process server. Where a party is represented by a legal practitioner, service of court process of which personal service is not required may be made on such legal practitioner or any legal practitioner in his chambers or on the clerk or secretary of such chambers. The process server shall serve an originating process by delivering to the party to be served, a copy of the process duly certified as prescribed by Order 6 rule 2(3) of the Rules.” (Emphasis mine)

Since an Order of Court is not needed where an officer of Court effects personal service, it will be indeed superfluous to require an Order of Court for a courier company that is duly appointed as a “Process Server” to effect personal service. However, where a courier company is not registered as a “Process Server” in line with the Rules of Court, it is the view of this author that the proper application to be made to the Court is an application for leave to use the “unregistered” courier company to effect personal service and this, in substance and form, is different from an application for substituted service via a courier company. It is only when personal service proves improbable or impracticable due to evasion of service, threat, or other factors, that an order to serve the Defendant through substituted means becomes necessary and expedient.

4. Conclusion

The essence of service is to put a party on notice; more so, the emphasis on personal service is that a party to a suit is served with the originating documents by direct handing over of the said documents. Where this is done and there is an acknowledgment of such service, fixation on the agent or medium of delivery becomes superfluous. A bailiff or officer of Court should always be used for service, especially within jurisdiction, however, in instances where the Defendant is outside jurisdiction, a courier company is usually used for such service. Direct service on a party by a courier company[28] is personal service and obviates the need for an order for substituted service. The machinery of justice should be efficient and pragmatic and not bogged down by technicalities. This point was reiterated in the case of Abayomi & Anor. v. AG Ondo State,[29] where Honourable Justice Ali Abubakar Babandi Gumel, JCA, opined as follows:

“Rules of Court must be obeyed where they are consistent with fundamental principles of justice and aimed at deciding cases and appeals on the merit. The rules are made to guide the Court in the administration of justice. They should not however be seen as immutable. Rather, they are for convenience and orderly hearing of causes in Court, to help the cause of justice and not to defeat justice. Now, interest of justice will abhor a situation where the parties to an action or even the Courts follow rules slavishly which impede or hinder the promotion of justice.”[30]

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[1] Nsikak E. Effiong, Associate, Oasis Barristers & Solicitors Abuja, Nigeria.

[2] See the following cases: Peterside v. Odili (2022) 17 NWLR (Pt. 1860) 549 (SC); C.G.G. (Nig.) Ltd. v. Aminu (2013) 7 NWLR (Pt. 1459) 577 (SC) at p. 96, paras. D – E; Maduka v. Ubah (2015) 11 NWLR (Pt. 1470) 201 (CA) at p. 331, paras. D – F; Dickson v. Okoi (2003) 16 NWLR (Pt. 846) 397 (CA) at pp. 411, paras. C – E; p. 415, paras. G – H; and Ali v. Albishir (2008) 3 NWLR (Pt. 1073) 94 (CA) at p.134, paras. E – F; p. 137, paras. G – H; p. 154, paras. B – D.

[3] See, Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See also, the case of Akpokiniovo v. Agas (2004) 10 NWLR (Pt. 881) 394 (CA) at p. 422, paras. D – F.

[4] See the following cases: Aondoakaa v. Obot (2022) 5 NWLR (Pt. 1824) 523 (SC) at p. 568, paras. A – B; CBN v. Oodo (2021) 18 NWLR (Pt. 1809) 461 (CA) at p.p. 508 – 509, paras. D – A; Ayogu v. Nnamani (2004) 15 NWLR (Pt. 895) 134; Makeri Smelting Co. Ltd. v. Access Bank (Nig.) Plc (2002) 7 NWLR (Pt. 766) 447; Societe General Bank (Nig.) Ltd. v. Adewunmi (2003) 10 NWLR (Pt. 829) 526; ACB Int. Bank Plc v. Otu (2008) 3 NWLR (Pt. 1073) 179.

[5] See the following cases: Otobaimere v. Akporehe (2004) 14 NWLR (Pt. 894) 591 (CA); Ononye v. Chukwuma (2005) 17 NWLR (Pt. 953) 90 (CA) at p. 111, paras. A – B; and Ore v. Akanbi (2021) 14 NWLR (Pt. 1795) 1 (CA) at p. 43, paras. F – B.

[6] See, Nwankwo v. Kano (2010) 6 NWLR (Pt. 1189) 62.

[7] Order 9 Rule 2 of the said Rules of Court. See also, Order 7 Rule 2 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018.

[8] See also, Order 7 Rule 11 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018.

[9] See, Order 9 Rule 5(2) of the High Court of Lagos State (Civil Procedure) Rules, 2019; and Order 7 Rule 11(2) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018.

[10] See, Zakirai v. Muhammad & Ors (2017) LPELR – 42349 (SC) at p. 40.

[11] See, Order 9 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2019; and Order 7 Rule 1 High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018.

[12] See, Order 9 Rule 1 (2) of the   High Court of Lagos State (Civil Procedure) Rules, 2019; and Order 7 Rule 1 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018.

[13] See, Order 9 Rule 2 of the said Rules. See also, Order 7 Rule 2 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018. See the following cases: M.G.F .Nig. Ltd. v. Gwus International Ltd. (2001) 9 NWLR (Pt. 718) 413 (CA); Ononye v. Chukwuma (2005) 17 NWLR (Pt. 953) 90 (CA) at pp. 114 – 115, paras. G – D; and Kenfrank (Nig.) Ltd. v. U.B.N. Plc. (2002) 15 NWLR (Pt. 789) 46 (CA).

[14] Maureen Stanley-Idum and James Agaba, Civil Litigation in Nigeria (Revised edn, Nelag and Company Limited 2017) 298.

[15] Ibid.

[16] See, Ihedioha v. Okorocha (2016) 1 NWLR (Pt. 1492) 147 (SC).

[17] See the following cases: Carribbean Trading Fidelity Corporation v. N.N.P.C (1992) 7 NWLR (Pt. 252) 161 (CA); Mark v. Eke (2004) 5 NWLR (Pt. 865) 54 (SC) at p. 80, paras. E – G; and Peterside v. Odili (2022) 17 NWLR (Pt. 1860) 549 (SC) at p. 573, paras. C – E.

[18] See the following cases where these modes of substituted service were interpreted and applied: Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577) 410 (SC) at pp. 469 – 470, paras. H – C; Abutu v. Onyedima (2003) 17 NWLR (Pt. 849) 359 (CA); Halid Pharm. Ltd. v. Solomon (2015) 5 NWLR (Pt. 1453) 565 (CA); Ore v. Akanbi (2021) 14 NWLR (Pt. 1795) 1 (CA); and Okereke v. Ejiofor (1996) 3 NWLR (Pt. 434) 90 (CA) at pp. 101 – 102, paras. H – B.

[19] (2006) LPELR – 1690 (SC).

[20] Ibid., at pp. 9 – 10, paras. B – A.

[21]  (2018) LPELR – 44067 (SC).

[22] Ibid., at pp. 59 – 60, paras. E _ A, per Honourable Justice Paul Adamu Galumje, JSC.

[23] See, Order 7 Rule 1 of High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018; and Order 9 Rule 5(2) of the High Court of Lagos State (Civil Procedure) Rules, 2019.

[24]  See, Order 9 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2019; and Order 7 Rule 2 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018.

[25] (2022) 18 NWLR (Pt. 1861) 1 (SC).

[26] Ibid., at p. 65, paras. B – G.

[27] (2017) 14 NWLR (Pt. 1584) 1 (CA).

[28] Courier service companies that have achieved significant recognition and are widely used for instance, DHL Express, UPS, FedEx etc. should be automatically recognised by the courts as “process servers”.

[29] (2006) LPELR – 9806 (CA).

[30] Ibid.at pp. 19 – 20, paras. D – B.