WITH BEN IJEOMA ADIGWE ChMC

In connection with legal proceedings, service means the formal delivery of a writ of summons or other processes of court whether originating or interlocu­tory to the defendant or any other person interested in the suit or against whom the court has directed service to be effected on. The issue of service of court processes has over the years contributed to the upturning of otherwise good judgments of courts.

It is by service of court process that the adverse party (the defendant) be­comes aware of the pending litigation against him, in what court and for what claim as well as what is expected of him within what time frame. Service of court processes whether originating or not is very important because where the law requires notice and it is not given then the proceedings could be set aside as the court has no jurisdiction to entertain the suit. It is a foundational issue and failure to comply renders the proceedings void unless of course the opposing party ap­pears and takes part in the proceedings without protesting.

In Olorunyomi v. Akhagbe (2010) 8 NWLR (pt.1195) 48, following the trans­mission of incomplete record of appeal to the court of Appeal by the Registrar of the Lagos High Court, the appellant in this case was faced with a difficulty of not being able to file the appellant brief. He wrote to the Registrar of the High Court Lagos asking that the complete records be transmitted. Meanwhile the court of Ap­peal gave a directive dated the 14th day of February 2001 to the parties to file their briefs of argument, the appellant to file appellant’s brief within 60 days and the respondents to file their briefs within45 days.

The respondent, before the expiry of the 105 days contained in the direc­tive, filed an application to dismiss the appeal for lack of diligent prosecution. The appeal was dismissed by the court of Appeal. The appellant in this appeal against the dismissal contended that he wasn’t served with the directive of 14th February. The Supreme Court held that there was no evidence of service of the directive of the court of Appeal on the appellant. The appeal of the appellant was therefore wrongly dismissed by the court of Appeal.

It is the law that even where the court is satisfied that the defendant has been served with an originating process but he fails to attend court, the court should issue hearing notice. This was so held in C.B.N. v A.T & BS Limited 2010 9 NWLR (pt. 1200) 567 @ 585. It is also the rule as regards hearing notice that a hearing notice shall be served especially where a case was adjourned in the absence of a party. Even where a suit is struck out and there is filed a motion to relist, the law provides that the party relisting must serve the notice to relist on the other party. If this is not done, the whole process could be set aside.

It should be noted here that it is not everyone who is entitled to complain of lack of service of court process. It is only the party that is entitled to be served that can complain. Therefore if a claimant fails to give notice to the defendant and then subsequently the judgment of the court is against him, he cannot be heard to com­plain that the defendant was not served. This, the Supreme Court held in Augusta Chime v Moses Chime 2001 FWLR pt 39 1457.

The law provides for who should serve court process, be it originating or inter­locutory. The rules also provide for how services should be effected. In general, the following persons can in law serve court processes: the sheriff, the deputy sheriff, a bailiff, any other court officer as may be appointed by the judge, any legal practi­tioner so authorized, a law Chambers, a courier company, a special bailiff. Since the aim of service of process is to bring the suit to the attention of the defendant, it appear that if the defendant is served by unauthorized persons and he enters an unconditional appearance and/or takes other steps to defend the suit, then the unauthorized service would not affect the court’s jurisdiction.

There are three modes of effecting service of service of processes, to wit: a).personal service; b).substituted ser­vice; and c).hybrid modes. Service of all originating processes are generally re­quired by law to be personal. This means the delivery of the certified copy of the courts process to the party named therein who in turn is expected to acknowledge the receipt of service. Where an autho­rized person is prevented by violence or threats from personally serving the process, then under the Delta State rules it shall be sufficient to inform the person to be served of the nature of the process as near such person as practicable.

Sometimes, it is either not possible or it is impracticable or simply difficult to ef­fect personal service of the process on the defendant. Many factors may account for this, like the defendant changing address; inaccurate statement of the defendant’s address by the claimant, the defendant avoiding service, the defendant moving out of jurisdiction . The rules of court makes provisions for substituted service which is defined as any other mode of service other than personal service where the rules require personal service.

Under the Delta State rules and the Abuja rules the court can order for sub­stituted service even when no attempt has been made at personal service. The Delta State rules makes provision for the following mode of substituted service: a).by delivery of the process to some adult inmate at the usual or last known place of abode or business of the person to be served; b).by delivery to the party’s agent or to some other person on it being proved that there is reasonable probability that in the ordinary course, the document would through the agent or that other person come to the knowl­edge of the person to be served; c).by advertisement in the State Gazette or in some newspaper circulating within the jurisdiction ; d).by e-mail or any other technological device now known or later developed as may be approved by the Chief Judge.

Since at this stage there is no defendant before the court, it follows that an appli­cation for substituted service should be by motion ex parte supported by affidavit stating out the facts that appellant is rely­ing on to persuade the judge.

The hybrid modes of service are those that do not qualify as personal service because it is not direct. It is also not sub­stituted service because no application or leave is required to serve through any of these modes. Examples of such hybrid modes are: a).service on infants should by the rules be done by service on his father or guardian or if none, then upon the person with whom the infant resides or under whose care he is. b).where a prisoner or a lunatic in any asylum is to be served, it is sufficient to deliver the process at the prison or asylum to the superintendent or person appearing to be the head officer in charge. c). where the person to be served lives or serves on board of any ship, it is sufficient if the process is delivered to such person who is apparently in charge of such ship.

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