Once an action is instituted in Court, it requires the active participation of the parties involved from commencement to conclusion. The Plaintiff or the Claimant is obligated to serve the originating process on the Defendant(s) as part of initiating the suit. This affords the Defendant the opportunity to answer or respond to the claims sought from the Court against him. Service of the originating process on the Defendant is a condition precedent to the Court's exercise of jurisdiction to hear the matter. Non-service entitles a Defendant (against whom any order is made without his knowledge) to have such an order set aside and any Court proceeding conducted without the service of the originating or other process on the adverse party is a nullity. The late Niki Tobi, JSC had this to say on the point:
"...one reason why the respondent did not participate in the proceedings is that he was not served the court process. Service of court process is a precondition to vesting jurisdiction in the court. Where notice of proceedings is required, failure to notify any party is a fundamental omission which entitles the party not served against whom any order is made in his absence to have the order set aside on the ground that a condition precedent in the exercise of jurisdiction for the making of the order has not been fulfilled".1
The underlying principle guiding the service of court process is closely linked to the rules of fair hearing as encapsulated in the Latin maxim audi alterem partem2 which translates loosely as, "hear the other part". No person should be judged without a fair hearing, with each party given an effective opportunity to state his case. Therefore, the adverse party must be put on notice in order for jurisdiction to properly vest on the Court. This requirement is a fundamental principle that must be fulfilled.
The law3 requires personal service of Originating process on a Defendant except for a few exceptions.4 Where personal service is impossible, the Plaintiff is expected to make an application to the Court for an order of substituted service to enable him serve the originating process by delivery of the document to some adult inmate at the usual or last known place of abode or business of the person to be served, through advertisement in a newspaper, by post or pasting on the last known address of the person to be served.5
Substituted service by pasting at the last known address is popularly used by litigants, possibly due to its affordability and convenience.6 This mode requires a Court Bailiff, after an order has been made by the Court, to take the originating process, and paste it at a conspicuous place at the last known address of the Defendant. Upon service of the process on the Defendant by pasting, the Bailiff of the Court is required to prepare an affidavit of service on oath stating the circumstances in which the exercise was carried out and the affidavit would serve as sufficient proof of service. This is the generally accepted practice before Nigerian Courts. However, the reliability of this procedure becomes questionable when a claim of non-service is made by the other party or is raised sua sponte (i.e., suo motu) by the presiding judge. The question this scenario raises is whether the affidavit of service prepared by the Bailiff of Court can serve as conclusive proof where the service was carried out by pasting?
It is trite that affidavit of service is rebuttable prima facie evidence of service of processes.7 The deposition or declaration as to service of Court process by a Bailiff or other officer of the court constitutes evidence of service on first impression until proven otherwise. Bailiffs are human beings, fallible, and liable to perjury. There are indeed occasions when false returns of service have been filed by the Court Bailiffs and erroneous judgments have been entered.8 In a recently concluded case, a learned Justice of the Court of Appeal had this to say:
"Issue of service of originating process is a fundamental jurisdictional issue. Every court therefore has a duty, to ensure that processes are served properly, before it can proceed to adjudicate on a matter. When service of process is in issue, the court should demand for the proof of service and examine same, to ascertain whether there has been proper service or not. The affidavit of service is usually the document the Bailiff produces, to prove service. But even at that, an affidavit of service is not a conclusive proof of service of the process it professed to have served. It is only a prima facie evidence, a rebuttable presumption that the process had been served..."9
In a situation where the Bailiff of the Court has been compromised and prepares an affidavit of service without actually carrying out the service of the process as envisaged, requesting for photographic evidence would be an effective way to verify the authenticity of the exercise.
With modern day advancement in Information Technology, a few Jurisdictions10 have developed the practice of requesting for photographs to be taken upon service of Court processes via pasting which will be used as verifiable evidence. The High Court of Lagos state has taken the lead and most Judges in Lagos now request for photographic evidence in addition to the affidavit of service before arriving at a decision on whether service via the substituted method of pasting has been carried out.11 However, this practice has not been domesticated in our laws.12
The requirement of photographic evidence should be included in the Rules of Courts as a requirement to be complied with by Bailiffs in the preparation of the affidavit of service prepared where the service was carried out by pasting. Stringent measures should also be employed to prevent fraudulent activities by erring officials and until adequate measures are put in place to clear all doubts on proper service. This will protect innocent litigants who are unaware of the pendency of lawsuits issued against them before our courts and will help restore the confidence reposed in the judiciary.
Today, the Courts are flooded with multiplicity of actions for setting aside of decisions based on non-service. Where it can be established that there was no proper service on the Defendant(s), the entire proceedings becomes a nullity and a complete waste of the court's time.
Our Judges are also encouraged to exercise their discretion in ensuring that photographic evidence is provided in establishing proof of substituted service via pasting. This would save the time of the court, remove the element of doubt as regards proper service and prevent multiplicity of applications for setting aside decisions on grounds of non-service.
1. Teno Eng. Ltd. v. Adisa (2005) 10 NWLR (Pt.933) 346 at 353.
2. Alternatively, audiatur et altera pars, i.e., "let the other side be heard as well".
3. Sheriffs and Civil Process Act Cap S6 LFN 2004.
4. Where the Defendant by his Solicitor undertakes in writing to accept service or the Defendant authorizes his solicitor in writing to accept service.
5. Order 11 rule 25 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004. Substituted service may also be made by way of email or couriered delivery.
6. Especially in tenancy matters.
7. Order 11 rule 28 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004.
8. Kennedy V. INEC (2009) 1 NWLR (Pt. 1123) 614 at 639.
9. Abubakar Datti Yahaya, J.C.A in the case of Alhaji Abdulkadir Abacha v. Kurastic Nigeria Limited (2014) LPELR -22703 (CA).
10 Such as Lagos State and Ogun State
11 The High Court of the FCT is yet to adopt this practice.
12 In Lagos State, upon granting an application for substituted service, the Judge usually makes a pronouncement on taking photographs after pasting the processes. Even where there is no pronouncement by the Court on taking photographs, the Bailiffs out of caution have formed the habit of taking pictures which are annexed to the affidavit of service as proof of service. This practice is largely discretionary and not contained in the rules of Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.