Proper service of a court process is one prerequisite that clothe the court with jurisdiction to hear and determine a matter before it. Thus, non-service of a court process where service is required is a failure which goes to the root of a case and renders void any decision therein.
See, S.G.B (NIG) LTD v. ADEWUNMI (2003) 4 SC (Pt.1) 93 at 98 per Katsina-Alu JSC.
Service of a court process could be done personally or by substituted means. Personal service entails service on the defendant himself or in the case of infants, lunatics or persons of unsound mind, on their guardian. The impracticability of personal service is a prerequisite for substituted service; and the proposed method of service must "in all reasonable probability, if not certainty, be effective to bring knowledge of the writ… to the defendant" (PORTER V. FREUDENBURG [1915] 1 KB 857 at 889). Thus, substituted service comes to play when all attempts on Personal service have failed and leave of court is required to serve the said court process by other means acceptable and allowed by the court. Example, by pasting same at conspicuous part of the defendants last known address, by email, or by courier service, etc. Such substituted service upon proof of service by the bailiff is accepted by the court as proper service in a given case. Service of court process usually becomes an issue when the defendant becomes evasive or cannot reasonably be traced.
With the advancement of technology and more effective electronic means of communication, it is unfortunate that courts in Nigeria have remained adamant and cling tenaciously to the conventional methods of substituted service even where a more effective method is pleaded.
Recently, I moved a motion for substituted service before a High Court Judge in the Lagos Judicial Division wherein the second prayer on the motion paper was for order of court granting leave to serve the said court process on the Respondent via the Respondent's verified email address. My Lord refused the said prayer because there is no rule of court enabling court processes be served through email. Of course, grant of leave is discretional and my lord is always right.
However, a cursory look at other common law countries and the world at large reveals that the world is leaving us behind in embracing technology and more effective methods of communication in their judicial system. In India for instance, the High Court of Delhi in the case of TATA SONS LIMITED & ORS V. JOHN DOE(S) & ORS [CS (COMM) 1601/2016] on the 27th April, 2017 granted prayers of the plaintiffs and ordered that the 9th Defendant in the suit be served with the court's summons by Text message, Whatsapp, as well as by email as substituted service.
Also, Sidharth Mathur, a senior Civil Judge and Rent Controller (North) in Rohini Court, India, recently accepted Whatsapp "blue double-tick" as receipt proof of notice on the Respondents in a case wherein the Appellant sought an injunction against the Respondent "from trespassing into the suit property". Considering the urgency of the matter, the Appellant had obtained leave to serve the court's notice via the Respondents Whatsapp number. The Appellant thereafter took colour prints out of the chats with the "blue double-tick" visible. The court admitted same as proof of service of the notice.
Again, in the Indian case of KROSS TELEVISION INDIA PVT LTD v. VIKHYAT CHITRA PRODUCTION [SUIT (L) No. 162 of 2017] the claimant, producers of the Hindi remake of a Korean movie titled, "Miracle in Cell No. 7" instituted an action for copyright infringement against the defendant, makers of "Pushpaka Viamana". After ascertaining using "Truecaller App" that the mobile number of the Defendant was his own, the court ordered summons to be issued and served on the defendant via "Whatsapp". Justice Gautam Patel of the Bombay High Court in his order dated 23rd March, 2017 noted in the said case that-
"I do not see what more can be done for the purpose of this motion. It cannot be that our rules and procedure are either so ancient or so rigid (or both) that without some antiquated formal service mode through the bailiff or even by beat of drum or pataki, a party cannot be said to have been properly served. The purpose of service is to put the other party on notice and to give him a copy of the papers. The mode is surely irrelevant. We have not formally approved of Email and other modes as acceptable simply because there are inherent limitation to proving service. Where an alternative mode is used, however, and service is shown to be effected, and is acknowledged, then surely it cannot be suggested that the Defendants had "no notice"…. Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion."
In Singapore, the court in the case of STOREY DAVID IAN ANDREW V. PLANET ARKADIA PTE LTD AND OTHERS [2016] SGHCR 7 granted an application for substituted service "through email, Skype, Facebook and an Internet Message Board". The court also formulated the following grounds for such grant-
a. Attempts to effect service personally has failed.
b. Proof that the electronic platform in question is used by the person to be served.
c. Proof that the electronic platform in question was recently used by the person to be served.
d. For email, instant messaging, internet message boards, or smart phone messaging platforms, proof that a message has been sent within a reasonable timeframe from the date of service; or proof that the person was last seen online within a reasonable timeframe.
e. For social media platforms, proof that there has been activity within a reasonable timeframe; this can entail the sharing of photos, the posting of publically-accessible messages, or the sending of private messages, and so on.
Similarly, an English High Court in AKO CAPITAL LLP & ANR v. TFS DERIVATIVES & ORS [2012] permitted the use of Facebook to serve proceedings. TFS had served the proceedings against Mr de Biase (who had been brought into the proceedings as a second defendant) at his last known address but doubts remained as to whether he still lived there. TFS therefore applied to the court for permission to also serve the process via Mr de Biase's Facebook account. TFS were able to show that Mr de Biase was the owner of the Facebook account and that the account was active as recent friend requests were being accepted.
Likewise, a South African High Court sitting in Durban in the case of CMC WOODWORKING MACHINERY (PROPERTY) LTD v. PIETER ODENDAAL KITCHENS (unreported case No. 6846/2006, 3 August, 2012) made an order for substituted service for a notice of set-down and pre-trial directions to be effected on the respondents via a message on Facebook in addition to the notice being published in the local paper. The court per Mr Justice Steyn went on to say- "Changes in the technology of communication have increased exponentially and it is therefore not unreasonable to expect the law to recognise such changes and accommodate them…"
In Ireland, the High Court in RE THE IRISH EDUCATION RESEARCH INSTITUTE IN LIQUIDATION, made an order providing for papers to be served by furnishing a message to the relevant party detailing the case and attaching a link to URL containing the papers using the technical features available on LinkedIn.
It is my submission that though mode of service is relevant, it should however not be too rigid and should conform to the present happenings in communication and global best practices. Thus, where an alternate means can be shown to be used to effect service, and that such service is acknowledged, like in the case of the Whatsapp blue double-tick, then our courts should embrace such as substituted means of service. It is to me, a more satisfactory medium of service than pasting of court process in the last known place of abode or business of the defendant as is mostly the case of substituted service in Nigeria. The truth being that most times the party sought to be served had relocated from the said last known address of abode or business. Also, the bailiff could be bribed to effect a fictitious service via pasting on an address other than that of the defendant.
Worthy to note is the observation of the Singaporean court in STOREY DAVID IAN ANDREW's case (supra). The court observed thus-
"The main counterargument against allowing substituted service through electronic means other than email is the fear that such means may not be effective at bringing notice to the person to be served. But this fear should not be overblown. The only completely way of bringing notice is actual physical service. The law dispenses with physical service and allows substituted service when it would be impracticable to do so, but this is a trade-off and substituted service carries the risk that a document will not actually be brought to the notice of the person to be served. This is true of conventional methods. Posting on the front door may not be effective because an owner is not habitually resident at that particular property; or he has moved out in the interim; or a mischievous neighbour has detached the notice, and so on. Advertising in a national newspaper may not be effective because the person to be served is not in the habit of reading that particular newspaper, even if he does, he may not read the notice section of that newspaper",
With the advancement of technology and more effective electronic methods of communication, a lot can be done to make service of court processes easier, faster, cheaper and direct. Though it is understandable that courts adhere to established procedures in order to promote legal certainty, our courts should not be hesitant in acknowledging and adapting to all the aforesaid changes as in the golden words of Lord Denning in PARKER v. PARKER (1954) ALL E.R P.22-
"what is the argument on the other side? Only this that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The Law will stand still whilst the rest of the world goes on: and that will be bad for both".
Written by;
Harvey Anyalewechi Esq.
lordharveys@gmail.com
+234(0)8063718450
All rights reserved.
Credits: Blogs.lexisnexis.co.uk/randi/court-likes-notification-via-social-media/
Livelaw.in
Ipharvey.blogspot.com
See, S.G.B (NIG) LTD v. ADEWUNMI (2003) 4 SC (Pt.1) 93 at 98 per Katsina-Alu JSC.
Service of a court process could be done personally or by substituted means. Personal service entails service on the defendant himself or in the case of infants, lunatics or persons of unsound mind, on their guardian. The impracticability of personal service is a prerequisite for substituted service; and the proposed method of service must "in all reasonable probability, if not certainty, be effective to bring knowledge of the writ… to the defendant" (PORTER V. FREUDENBURG [1915] 1 KB 857 at 889). Thus, substituted service comes to play when all attempts on Personal service have failed and leave of court is required to serve the said court process by other means acceptable and allowed by the court. Example, by pasting same at conspicuous part of the defendants last known address, by email, or by courier service, etc. Such substituted service upon proof of service by the bailiff is accepted by the court as proper service in a given case. Service of court process usually becomes an issue when the defendant becomes evasive or cannot reasonably be traced.
With the advancement of technology and more effective electronic means of communication, it is unfortunate that courts in Nigeria have remained adamant and cling tenaciously to the conventional methods of substituted service even where a more effective method is pleaded.
Recently, I moved a motion for substituted service before a High Court Judge in the Lagos Judicial Division wherein the second prayer on the motion paper was for order of court granting leave to serve the said court process on the Respondent via the Respondent's verified email address. My Lord refused the said prayer because there is no rule of court enabling court processes be served through email. Of course, grant of leave is discretional and my lord is always right.
However, a cursory look at other common law countries and the world at large reveals that the world is leaving us behind in embracing technology and more effective methods of communication in their judicial system. In India for instance, the High Court of Delhi in the case of TATA SONS LIMITED & ORS V. JOHN DOE(S) & ORS [CS (COMM) 1601/2016] on the 27th April, 2017 granted prayers of the plaintiffs and ordered that the 9th Defendant in the suit be served with the court's summons by Text message, Whatsapp, as well as by email as substituted service.
Also, Sidharth Mathur, a senior Civil Judge and Rent Controller (North) in Rohini Court, India, recently accepted Whatsapp "blue double-tick" as receipt proof of notice on the Respondents in a case wherein the Appellant sought an injunction against the Respondent "from trespassing into the suit property". Considering the urgency of the matter, the Appellant had obtained leave to serve the court's notice via the Respondents Whatsapp number. The Appellant thereafter took colour prints out of the chats with the "blue double-tick" visible. The court admitted same as proof of service of the notice.
Again, in the Indian case of KROSS TELEVISION INDIA PVT LTD v. VIKHYAT CHITRA PRODUCTION [SUIT (L) No. 162 of 2017] the claimant, producers of the Hindi remake of a Korean movie titled, "Miracle in Cell No. 7" instituted an action for copyright infringement against the defendant, makers of "Pushpaka Viamana". After ascertaining using "Truecaller App" that the mobile number of the Defendant was his own, the court ordered summons to be issued and served on the defendant via "Whatsapp". Justice Gautam Patel of the Bombay High Court in his order dated 23rd March, 2017 noted in the said case that-
"I do not see what more can be done for the purpose of this motion. It cannot be that our rules and procedure are either so ancient or so rigid (or both) that without some antiquated formal service mode through the bailiff or even by beat of drum or pataki, a party cannot be said to have been properly served. The purpose of service is to put the other party on notice and to give him a copy of the papers. The mode is surely irrelevant. We have not formally approved of Email and other modes as acceptable simply because there are inherent limitation to proving service. Where an alternative mode is used, however, and service is shown to be effected, and is acknowledged, then surely it cannot be suggested that the Defendants had "no notice"…. Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion."
In Singapore, the court in the case of STOREY DAVID IAN ANDREW V. PLANET ARKADIA PTE LTD AND OTHERS [2016] SGHCR 7 granted an application for substituted service "through email, Skype, Facebook and an Internet Message Board". The court also formulated the following grounds for such grant-
a. Attempts to effect service personally has failed.
b. Proof that the electronic platform in question is used by the person to be served.
c. Proof that the electronic platform in question was recently used by the person to be served.
d. For email, instant messaging, internet message boards, or smart phone messaging platforms, proof that a message has been sent within a reasonable timeframe from the date of service; or proof that the person was last seen online within a reasonable timeframe.
e. For social media platforms, proof that there has been activity within a reasonable timeframe; this can entail the sharing of photos, the posting of publically-accessible messages, or the sending of private messages, and so on.
Similarly, an English High Court in AKO CAPITAL LLP & ANR v. TFS DERIVATIVES & ORS [2012] permitted the use of Facebook to serve proceedings. TFS had served the proceedings against Mr de Biase (who had been brought into the proceedings as a second defendant) at his last known address but doubts remained as to whether he still lived there. TFS therefore applied to the court for permission to also serve the process via Mr de Biase's Facebook account. TFS were able to show that Mr de Biase was the owner of the Facebook account and that the account was active as recent friend requests were being accepted.
Likewise, a South African High Court sitting in Durban in the case of CMC WOODWORKING MACHINERY (PROPERTY) LTD v. PIETER ODENDAAL KITCHENS (unreported case No. 6846/2006, 3 August, 2012) made an order for substituted service for a notice of set-down and pre-trial directions to be effected on the respondents via a message on Facebook in addition to the notice being published in the local paper. The court per Mr Justice Steyn went on to say- "Changes in the technology of communication have increased exponentially and it is therefore not unreasonable to expect the law to recognise such changes and accommodate them…"
In Ireland, the High Court in RE THE IRISH EDUCATION RESEARCH INSTITUTE IN LIQUIDATION, made an order providing for papers to be served by furnishing a message to the relevant party detailing the case and attaching a link to URL containing the papers using the technical features available on LinkedIn.
It is my submission that though mode of service is relevant, it should however not be too rigid and should conform to the present happenings in communication and global best practices. Thus, where an alternate means can be shown to be used to effect service, and that such service is acknowledged, like in the case of the Whatsapp blue double-tick, then our courts should embrace such as substituted means of service. It is to me, a more satisfactory medium of service than pasting of court process in the last known place of abode or business of the defendant as is mostly the case of substituted service in Nigeria. The truth being that most times the party sought to be served had relocated from the said last known address of abode or business. Also, the bailiff could be bribed to effect a fictitious service via pasting on an address other than that of the defendant.
Worthy to note is the observation of the Singaporean court in STOREY DAVID IAN ANDREW's case (supra). The court observed thus-
"The main counterargument against allowing substituted service through electronic means other than email is the fear that such means may not be effective at bringing notice to the person to be served. But this fear should not be overblown. The only completely way of bringing notice is actual physical service. The law dispenses with physical service and allows substituted service when it would be impracticable to do so, but this is a trade-off and substituted service carries the risk that a document will not actually be brought to the notice of the person to be served. This is true of conventional methods. Posting on the front door may not be effective because an owner is not habitually resident at that particular property; or he has moved out in the interim; or a mischievous neighbour has detached the notice, and so on. Advertising in a national newspaper may not be effective because the person to be served is not in the habit of reading that particular newspaper, even if he does, he may not read the notice section of that newspaper",
With the advancement of technology and more effective electronic methods of communication, a lot can be done to make service of court processes easier, faster, cheaper and direct. Though it is understandable that courts adhere to established procedures in order to promote legal certainty, our courts should not be hesitant in acknowledging and adapting to all the aforesaid changes as in the golden words of Lord Denning in PARKER v. PARKER (1954) ALL E.R P.22-
"what is the argument on the other side? Only this that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The Law will stand still whilst the rest of the world goes on: and that will be bad for both".
Written by;
Harvey Anyalewechi Esq.
lordharveys@gmail.com
+234(0)8063718450
All rights reserved.
Credits: Blogs.lexisnexis.co.uk/randi/court-likes-notification-via-social-media/
Livelaw.in
Ipharvey.blogspot.com
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