THE DILEMMA OF SERVING COURT PROCESSES VIA A COURIER COMPANY: DOES THIS CONSTITUTE SUBSTITUTED SERVICE IN ALL CIRCUMSTANCES?[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?
- 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.
- 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:
- Delivery to an adult inmate at the usual or last known place of abode or business of the person to be served.
- Delivery to an agent or someone who can deliver the document to the Defendant.
- Advertisement in federal gazette or newspaper circulating within jurisdiction.
- At the principal courthouse or public resort within the division where the suit is instituted or the last known place of abode.
- 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.
- 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.