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An Analysis Of The Effect And Procedure For Service Of Court Processes Under Nigerian Law

Published: 11 Sep 2017

Service of court processes goes to the jurisdiction of the Court to hear a matter. Parties must as a matter of law and practice ensure that the opposing party not only receives and acknowledge service of processes but also that the service effected is proper under Nigerian law. The power of an appellate Court to set aside the entire judgment of a lower court on the grounds of lack of proper service alone emphasizes the importance of proper service of processes in a legal proceeding.

It is therefore important to know who should effect service, what constitutes proper service on individuals, corporate entities and persons with legal disability, service outside the jurisdiction of a State, service of processes abroad, service of processes of foreign courts, service under the matrimonial causes rules and what constitute proper proof of service under Nigerian law.

Who should effect service of processes?

The Civil Procedure Rules of most States in Nigeria stipulates that service may be effected by a bailiff or other officer of court authorized by the court; a person appointed by a court to effect service; a solicitor who gives an undertaking to a Registrar receiving the process, at the time of filing, that he or his chamber shall serve the processes on the other party or his solicitor, and would also file a proof of the service effected; or service in accordance with an order of a Judge on the mode of service.

How is service effected on individuals?

Court processes are to be served on a party personally.

Nevertheless, where personal service on a party is not possible whether an attempt has been made or not, the other party may apply to court for an order to effect service by substituted means either by delivery of the processes with an adult at the last known address of the party; delivery of the processes to the agent of the party if there is reasonable probability that the processes will come to the knowledge of the party; advertisement in the Federal Gazette or in some newspaper circulating within the jurisdiction of the last known address of the party; notice at a principal court or public resort within the jurisdiction of the last known address of the party; email or any other scientific device; courier service or any other means convenient to the court.

How is service effected on companies?

Service on a company is effected by delivery of the processes at its corporate or registered office or serving its director, secretary or other principal officer of the company.

How is service effected on persons with legal liability?

Service on a prisoner is served on the superintendent or the head of the prison where the prisoner is kept.

Service on a lunatic is served on the superintendent or head of the asylum where the lunatic is kept.

Service on an infant is served on his father, guardian or any person whom the court may direct.

Service on a company in liquidation is served at the registered address of the company, liquidator or receiver as the case may be.

How is service effected outside jurisdiction of State?

A party who wishes to serve an application outside the jurisdiction of the court must bring an application before the court supported by an affidavit stating that it has a good case and the State or Country where the defendant is to be found.

Upon grant of the application, the writ to be served outside jurisdiction of a State will be endorsed thus;

"This summons is to be served out of ........State and in ..................State"

How is service effected abroad?

Upon obtaining an order for service of processes abroad, the party seeking service abroad will deliver the processes at the Court's registry stating whether it requires the processes to be served directly through diplomatic channels or through the foreign judicial authority. The documents to be served shall be under the seal of court for use out of jurisdiction and shall be forwarded to the Permanent Secretary of Foreign Affairs for transmission to the foreign country.

Nevertheless, service may be effected in accordance with a convention to which Nigeria is a member.

How is service of processes from a foreign court effected?

Service is effected by delivering the foreign process as indicated in the order of the foreign court for leave to serve the processes in Nigeria, to the person to be served with the processes and an affidavit of service transmitted to the foreign court as prima facie proof of service of the processes.

How is service effected under matrimonial causes rules?

Processes in matrimonial proceedings are served by a person other than a party to the proceedings but may be effected by that other person in the presence of a party. If it is impracticable for another person to effect service, a party may effect service and depose to an affidavit stating the circumstances which rendered it impracticable for another person to effect service.

Service may also be effected by serving the document on the person by post together with a form in accordance with Form 11 for acknowledging service of the document, a stamped envelope with the name of the person on whose behalf the document is being served, or the name of his legal practitioner and the address for service of that person. It may be sent as a letter to the person at the last address of the person.

Where it is impracticable to effect personal service, the court processes may be served by advertisement of the processes or by pasting them at the last known place address of the person.

What constitutes proper proof of service?

If the service is effected by a bailiff or other officer of the court, a completed acknowledgement form.

If effected by a solicitor, the acknowledgement of service attached to an affidavit of service.

If served by a courier company, the returned acknowledgements form.

Service on a prisoner or a lunatic is acknowledged by the head or superintendent of the prison or asylum.

Service on an infant is acknowledged by the father, guardian or any other person that received the process on behalf of the infant.

Service on a company is acknowledged by a director, secretary or other principal officer of the company.

In a matrimonial cause, if the processes were served by another person, the person shall deliver to the party proof of such service but if the person to whom service was effected refuses to acknowledge service, that other person who effected service will depose to an affidavit stating that the person refused to acknowledge service. Proper service by post shall not be deemed if the person to be served did not sign and return the acknowledgement of service form.

From the foregoing, it is clear that for service to be proper, it must be effected by the persons authorized by the rules of Court to effect service, effected in accordance with the rules of Court or other legislation regulating service of processes and there must proof that the service was effected in accordance with the procedure provided by law.

Emmanuel Ekpenyong

Firm: Fred-Young & Evans LP
Country: Nigeria

Practice Area: Commercial Litigation

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