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ABSTRACT
Service of an Originating Process and other court processes on a Defendant is fundamental in any proceeding before any Court of Law. The Courts are empowered by their Rules to order that service be effected by substituted means. The Courts have stuck to the customary methods of service by substituted means usually specifically set out in their Rules which are normally advertisement in a newspaper circulating within the jurisdiction and delivery to some adult person at the last known place of abode of the person to be served. The Courts may not be inclined to order that substituted service be effected by any other means which have become more convenient or expedient by reason of technological advancement as this may appear to the court to be sailing in uncharted waters. This paper argues that owing to technological advancement and the concomitant social media revolution, some of the traditional means of effecting substituted service are beginning to lose their prominence and effectiveness in modern times. The paper emphasizes that presently, substituted service can be more effectively effected through social media platforms in most cases. The paper concludes by recommending that the Courts should be inclined to orderservice through the Social media once it is shown that through that means the document can be brought to the attention of the party to be served.
INTRODUCTION
Although a Court may be clothed with jurisdiction to entertain a matter before it, it is the proof that all the defendants in the matter have been duly served with the Originating Process that ultimately confers on the Court the Jurisdiction to proceed to hear the matter and deliver a Judgment. Failure to serve a defendant personally or by any substituted means ordered by Court renders the entire proceedings a nullity. See Emeka v Okoroafor [2017] 11 NWLR (Part 1577) 410 (SC), Darma v Ecobank Nig Ltd [2017] 9 NWLR (Part 1571) 480 (SC), Dike v Kay- Kay Construction Ltd [2017] 14 NWLR (Part 1584) 1 (CA). The issue of service is so fundamental that a Court can set aside its Judgment where it is discovered that a defendant was not duly served. See Mark v Eke [2004] 5 NWLR (Part 865) 54 (SC).Generally, a defendant must be served personally. However, taking into cognisance the possible impracticability to serve a defendant personally in certain cases, the Courts are empowered by their rules to grant an order of substituted service of an originating process on a defendant to be effected in a manner approved by the Court. By and Large, service of Court processes being a matter under the exclusive legislative list in the Constitution of the Federal Republic of Nigeria 1999 (as amended) is governed by the Sheriff and Civil Process Act. Cap. S6 LFN 2004. However, this is to a limited extent as the Sheriff and Civil Process Act only makes provisions relating to service of an Originating Process outside of the state where it is issued and the necessary endorsement that should be on such originating process.(See Sheriff and Civil Process Act Cap (SCPA) LFN 2004, Part VII, s 6). Service of court processes is therefore chiefly governed by Rules of Court which contains the nitty gritty matters relating to service of court processes and this includes provisions for substituted service. However, the provisions of the Rules of Court relating to service must not be inconsistent with the Sheriff and Civil process Act otherwise any service effected thereby would be void. See Drexel Energy and Natural Resources Ltd v Trans Int’l Bank Ltd[2008] 18 NWLR (Part 119) 388.
Service of Court processes, apart from being governed by the Rules of Court are also governed by special Rules of procedure applicable to specific kind of proceedings. For instance, the Fundamental Rights (Enforcement Procedure) Rules 2009 contains detailed Provisions for both personal and substituted service of an Originating Application or other Court processes in any Fundamental Right action. Similarly, the AMCON (Special Debt Recovery) Practice Direction 2013 also contains provisions for service of processes. This Practice Direction is applicable to any debt recovery action filed by AMCON. Therefore, a court of law and parties will have recourse to provisions of these rules and similar rules in any proceedings to which they are applicable whenever the issue of service arises. Notably, the object of all types of service of court processes, whether personal or substituted, is to give notice to the other party to the suit, That way, he would be aware of an action instituted against him, and he would be afforded an opportunity to resist, if he may, that which is sought against him.
This paper reviews the provisions for substituted service under various Rules of Court and the extent of the Court’s power to order service by substituted means under the Rules. The paper equally analyses the growth of the social media over the years, its influence on Social relations and its suitability for substituted service of Court processes.
PROVISIONS FOR SUBSTITUTED SERVICE UNDER VARIOUS RULES OF COURT
Various Rules of Court contain provisions for substituted service of Court processes. Whilst some specifically suggested means through which substituted service may be effected, others did not, therefore leaving it entirely to the Judge to decide which ever method may seem just. Order 7 rule 5(1) of the Kaduna State High Court (Civil Procedure) Rules 2007 provides thus: Where personal service of an originating process is required by these Rules or otherwise and a judge is satisfied that prompt personal service cannot be effected, the judge may upon application by the plaintiff make such order for substituted service as may seem just. From the above provision of the Kaduna State High Court Civil Procedure Rules, the means to be adopted for substituted service is left entirely to the discretion of the judge, as no method was suggested. The Rivers State High Court Civil Procedure Rules 2010, the Anambra State High Court Civil Procedure Rules of 2006 and the Lagos State Civil Procedure Rules 2019 contain exactly the same provision except that the Lagos Rules included that service may be effected by electronic mails.
The Enugu State High Court Civil Procedure Rules of 2004 also has a similar provision, save that as a substitute for the phrase ‘seem just’ the Rules provides that the Court may order that service be effected in any manner by which it appears to the court that the document is likely to come to the knowledge of the person to be served.
From the foregoing, it is safe to say that the use of the phrase ‘seem just’ in the various Rules of Courts simply means that the Court is given the discretion to determine any method for substituted service which is more likely to bring the document to the knowledge of the party to be served. On the Other hand, Order 7 rule 11 (2) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018 makes elaborate provision for substituted service of court processes thus: Where it appears to the Court (either after or without an attempt at service) that for any reason prompt service cannot be conveniently effected, the court may order that service be effected either by-
(a) 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; or
(b) delivery to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or other person, come to the knowledge of the person to be served; or
(c) advertisement in the Federal Gazette, or in some newspaper circulating within the jurisdiction; or
(d) notice put up at the principal court house, or some other place of public resort in the Judicial Division wherein the proceeding in respect of which the service is made is instituted, or at the usual or last known place of abode, or of business, of the person to be served.
(e) (i) E-mail or any other scientific device now known or later to be developed and courier service or any other means convenient to the Court
(ii) Provided service by email is contemplated by parties in a written agreement or subsequently agreed by counsel in the course of proceedings. It is noteworthy that paragraph (e) above which permits service by Email or any other scientific device now known or later to be developed is an innovation of the new 2018 Abuja Rules as it was not contained in the 2004 Rules. This is perhaps in recognition of the fact that as technology advances, new and effective means of communication and dissemination of information may be developed which may be expedient for the purpose of service. The Delta State (Civil Procedure) Rules 2009 and Taraba State High Court (Civil Procedure) Rules 2011 contain exactly the same provision as the 2018 Abuja Rules.
THE GROWTH OF THE SOCIAL MEDIA IN RECENT TIMES AND ITS INFLUENCE ON SOCIAL RELATIONS AND COMMERCIAL TRANSACTIONS
Social media is computer-based technology that facilitates the sharing of ideas, thought and information through the building of virtual communities and networks.By design, social media is internet-based and gives users quick electronic communication of content such as personal information, documents, videos and photos. (see. Maya Dollarhide, ’Social Media Definition’ (Investopedia, 2 May 2019)<https://www.investopediacom/terms/s/social-media.asp > ) Social media employ mobile and web-based technologies to create highly interactive platforms through which individuals and communities share, co- create, discuss, and modify user-generated content. The tremendous exposure of social media and its world-wide acceptance in recent times cannot be over-emphasised. With the rapid technological advancement and social media revolution, we have been launched into a completely new communication landscape. Social media has over the years proved to be a very effective and expeditious means of communication, thereby changing the way people relate and interact with each other. The growth of technology and in particular the social media has redefined information sharing in ways that could not have been contemplated years ago. According to the Global State of Digital in 2019 Report (The Report), 57 percent of the world population is now connected to the internet and the number of Social media users around the world has increased by over 280 million since January 2018. The report puts the total number of social media users worldwide at 3.4Billion, with Nigeria having 19% of her population over 13 years active on social media and the number continues to increase.
The most popular Social media networks are Facebook, Twitter, Instagram and importantly Whatsapp Messenger which is beginning to gain prominence in recent times as a very effective and reliable platform for social relations and information sharing. The Report puts the total number of monthly active Facebook Users as at January 2019 at 2.27Billion. There were about 26 million active users of Facebook in Nigeria as at May 2018.( Titilola Oludimu, ‘Techpoint Africa, ‘Facebook now has 26 miliion active users in Nigeria’ (Techpoint.Africa, 23 May 2018) <https://techpoint.africa/2018/05/23/26-million- nigerians-use-facebook/ > accessed 12 April 2019.).
According to Statista ‘Internet, Social media & User-generated content: Twitter as of the fourth quarter of 2018 had 321 million active monthly users worldwide whilst Instagram as of June 2018 had 1 billion active monthly users. WhatsApp Messenger on the other hand is a cross-platform messaging application that allows users of mobile smartphone devices to send and receive text messages, images, voice notes and make voice and video calls. The application is equally accessible from laptop and desktop computers. This messaging platform operates with the use of a mobile number, a smartphone and internet connection. All the owner of a smartphone is required to do is download the application and register using their mobile number after which they can then communicate with other users of the platform once they have their mobile number. Groups can also be created where people sharing similar social, cultural, political, religious or economic interests can be added and can all engage in a discuss contemporaneously.
In recent times, this messaging platform appears to have replaced Short Message Service (SMS), and has gained worldwide acceptance owing chiefly to some of its features which includes user privacy, the multiple services it provides, and the fact that it is cost effective. This messaging platform has grown progressively over the years from about 200 million active users in February 2013 to over one and a half billion users as at February 2018 making it the most popular messaging application.
Indubitably, the rise of the social media has had far reaching effects on business relations and transactions, as E- commerce appears to have thrived more in recent times. Both small, medium and even large scale enterprises have all taken advantage of the various social media platforms to market their products and services, reach a large audience and extend their clientele. Social media marketing has grown over the years, as it is now seen as a very effective platform to rapidly reach a large audience since potential clients now spend a lot of time on the various social media platforms. Undoubtably, it is now easier to reach a larger audience through the social media than through other traditional means of marketing and information sharing like TV and Newspaper adverts. Notably, most transactions carried out online especially with small scale enterprises are largely based on trust and goodwill and as such, a lot of transactions are initiated and concluded without the parties interfacing physically with each other. It follows therefore that the buyer may not be aware of the seller’s address and vice versa, since most of these small businesses operate chiefly online and may have no physical contact address. The legal consequences of this is that it becomes really challenging instituting an action against a seller in such circumstances.
Furthermore, apart from the disputes that may arise as a result of the business relationships carried out online through the social media, disputes may also arise from social relationships online. As noted earlier, groups can be formed on the WhatsApp platform and even on Facebook where people sharing similar social, cultural, political, religious or economic interests can all be added and can all engage in a discuss contemporaneously. These social media platforms and their privileges have often been abused, as it is not uncommon to witness people making defamatory comments about others, which would be enough to sustain an action for libel. Again, even though the identity of these tortfeasors are known, their addresses might not be known for the purpose of effecting service of an originating process and other court processes on them.
Finally, it goes without saying that the area that has suffered perhaps the biggest casualty owing to the social media revolution is the print media, particularly the newspaper. Earlier, people depended on newspapers to get information on happenings around them. However, with the advancement in technology and the growth of the social media, the dynamics of information access has changed significantly. The newspaper has lost its prominence and significance in recent times as readership of newspaper has declined significantly. There now exists myriads of news, sports and entertainment blogs with high social media presence making it now easier and more convenient for people to get recent news update on the social media.
According to a report by the UNC Centre for Innovation and Sustainability in Local Media, over the past 15 years, total weekday circulation of newspapers in the United States declined from 122 million to 73 million as more readers prefer to receive news online. A research conducted in 2010 by the Advertisers Association of Nigeria (ADVAN) on newspaper circulation and the internet subscription in Nigeria revealed that whilst the daily circulation of prominent newspapers in Nigeria as at 2010 was 152,048, the daily readership of prominent online media was 865,079.
THE SOCIAL MEDIA AS AN EFFECTIVE MECHANISM FOR SUBSTITUTED SERVICE OF COURT PROCESSES.
Indeed, the object of service of court processes, whether by personal or substituted means is to notify the other party of the matter against him in order to enable him defend same. Therefore, in considering an application for substituted service, the Court’s focal consideration should be the object of the law – ensuring that the other party is duly notified in the best way possible. In Eimskip Ltd v Exquisite Ind. Ltd [2003] 4 NWLR (Part 809) 88 (SC) 117 the Supreme Court referring to an earlier case of United Nigeria Press Ltd. v TO Adebanjo [1969] 1 ANLR 431 held as follows: … the object of all types of service of processes, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of, and able to resist, if he may, that which is sought against him. Therefore, since the primary consideration in an application for substituted service is as to how the matter can be best brought to the attention of the other party concerned, the court must be satisfied that the mode of service proposed would probably, after all practicable means of effecting personal service have proved abortive, give him notice of the process concerned. As a consequence of technological advancement, several Social media platforms have emerged and these platforms have over the years proven to be very effective and expeditious means of communication and dissemination of information. Unfortunately, the various Rules of Courts have not factored in this advancement. The available means for substituted service in the various Rules of Court are publication in a gazette or Newspaper; delivery of the document to an adult at the last known address of the person to be served; service on the agent of the person to be served or any other person whom it is reasonably believed can bring it to the notice of the defendant. The only laudable provision for substituted service in the various High court Rules that captures technological advancement is the provision for substituted service by electronic mail and other technological/scientific device now known or later to be developed, which can be found in the Lagos, Delta, Abuja and Taraba state High Court Civil Procedure Rules.
Unfortunately, publication in the newspaper remains an enduring staple of service by substituted means and still remains one of the best (if not the only) means of serving a party whose address may be unknown. The point has been made earlier that the essence of service is to bring the suit to the attention of the defendant. It therefore becomes difficult to understand how this may be more effectively achieved through publication in a newspaper considering that readership of newspaper has declined over the years owing to the growth of the social media and the concomitant paradigm shift from the print media to news blogs on social media platforms as a dependable source of information. It is noteworthy that substituted service is not confined to the specific modes of service provided for by the Rules. Therefore, the fact that some Rules of Court suggested means through which substituted service may be effected does not make them exhaustive. The
Court may exercise its discretion to order that substituted service be effected by any means through which the party sought to be served may be more likely notified since the overriding objective is to ensure that the party is duly notified.
In Alhaji Abdullahi Madalla v Alhaji Bala Gusau [2014] LPELR-22899 (CA) the Court of Appeal per Aboki JCA made a definitive pronouncement on this point when it held as follows: It is the discretion of the Court to order any of the methods of service prescribed by the Rules of Court to be used and can also make an order other than any of those prescribed by the Rules for service of the originating processes on a defendant provided it can bring the matter to the knowledge of the person to be served. The social media has influenced human relations in so many ways. With respect to business relationships, Social media marketing has grown over the years with the effect that most transactions especially involving small and medium scale enterprises are now carried out without physical contact between the buyer and the seller. As stated earlier, these business relationships are largely based on trust and goodwill and as such the seller may not be aware of the buyer’s address and vice versa.
Furthermore, with social interactions on the Social media, people have become victims of libellous comments from total strangers. Whilst an aggrieved party in any of the cases set out above may have a valid and enforceable cause of action, it becomes very challenging instituting an action against such a person whose address is totally unknown. Although publication in a Newspaper may appear to suffice for this purpose, it is however undesirable for two reasons. Firstly, publication in the Newspaper may not bring the suit to the notice of the Defendant for reasons already expressed above.
Secondly, the cost of publication in a newspaper may discourage the claimant from pursuing the action. The social media therefore appears to be more effective and best suited for effecting service in certain cases, as social media solutions must be adopted to solve social media problems. The Social media as a means of effecting substituted service of Court processes has been widely accepted in some jurisdictions where the Courts have indeed acknowledged the prominence of the social media in recent times and the positive role it can play in the dispensation of justice. In Knott Estate v Sutherland [2009] AJ No 1539 (Alta QB) a Canadian Court ordered for substituted service of a statement of claim and notice to a defendant by sending a notice of the action to the defendant’s Facebook page. In Boivin & Associates v Scott [2011] QCCQ 10324 a Canadian Court also ordered a defendant to be served over Facebook after repeated failed service attempts using traditional methods. The plaintiff was unable to locate the defendant, who had moved from her last known address in Florida, but was able to find the defendant’s Facebook profile. The plaintiff submitted a copy of the defendant’s Facebook page, as well as evidence showing that the profile page was in use and belonged to the defendant. The court concluded that the defendant’s Facebook account was her only known contact information and that it would be a direct and practical way to notify her of the proceedings.
In Burke v John Doe [2013] BCSC 964, the Plaintiff filed a civil claim alleging that defamatory statements were published by the Message Board Defendants, and others on various internet message boards. (Message boards are online discussion forums that permit individuals to hold conversations in the form of posted messages through relating to specific topics and messages in the thread can be searched and read for some time after a comment is posted). The identity and residence of the message board defendants were not known to Plaintiff. Upon the Plaintiff’s application, the Court ordered that the notice of the civil claim be served on the Defendants by sending them a private message to the internet message board accounts maintained by them.
In Larry Philip Fontaine et al v The Attorney General of Canada et al (8 August 2014), Winnipeg MBQB CI05-01-43585 (MBQB) the Court granted application for substituted service and ordered that some of the defendants be served via their Twitter accounts. The application was supported by an affidavit showing frequent and recent usage of the Twitter accounts by their owners.
This practice has also been accepted in the United Kingdom, New Zealand and the United States of America. In Blaney v Persons Unknown [2009] IHQ/12/0653(Ch) a journalist and commentator who operated the ‘Blaney’s Blarney’ website, obtained an injunction from a UK High Court against an anonymous internet poster who was impersonating him through a Twitter account. The Court granted the plaintiff leave to serve the defendant poster by sending a message to his Twitter account which included a link to a website on which the injunction order was displayed.
In Mpafe v Mpafe Hennepin County, MN No. 27-FA-11-3453, a United States Court authorized service of divorce proceedings on a defendant, who was believed to have left the country, by email, Facebook, Myspace or any other social networking site. The order stated that while the court allowed service by publication in a legal newspaper, it was unlikely that the defendant would see it. According to the Court the traditional way of service by publication is antiquated and is prohibitively expensive. The Judge noted that ‘Service is critical, and technology provides a cheaper and hopefully more effective way of finding the respondent’. There appears to be no authority for this practice in Nigeria. However, in 2018 in Mohammad Awwaldanlami, Esq v Governor of Taraba State Suit No: TRST/11/2018, Hon Justice EA Garba of the High Court of Taraba State, ordered that the originating process in the substantive suit and other court processes be served on the 3rd to 25th Defendants/Respondents by posting and sharing on Social media. Whilst the above authority is laudable as the Courts in Nigeria may be galvanised by this authority to follow the recent trend, it is noteworthy that the learned Judge in that case simply ordered that the originating process be served on the defendants by sharing on social media without stating the particular social media platform where the process may be shared. There are several social media platforms and the term social media is a broad term used to describe interactive computer-mediated technologies that facilitate the creation and sharing of information. Therefore, in ordering substituted service through the social media, the Court must specify the particular social media platform (which preferably should be one of the prominent social media platforms) and the specific mode in which the process is to be served on the party on the selected platform.
Notwithstanding the court’s order in Mohammad Awwaldanlami, the Courts in Nigeria may not be very inclined to grant orders for substituted service of Court processes through social media platforms, firstly because, such mode of substituted service has not been provided for in the Rules of Court, and notably because doing same may appear to be sailing in uncharted waters, as the courts prefer to adhere to established procedures in order to promote legal certainty and justice. However, the Court’s guide in the dispensation of justice is the need to acknowledge certain changes in human relations owing to technological advancements and apply technologies where expedient to meet the ends of justice. The point has been made earlier that the Court can make an order for service of Processes on a party by means other than any of those prescribed by the Rules, provided it can bring the matter to the knowledge of the person to be served.
Thankfully, Some Rules of Court permit the Courts to make such order for substituted service as may seem just and the Delta, Taraba and Abuja High Court Civil Procedure Rules specifically provide for service by email, or any other scientific device now known or later developed. Even though the social media was not expressly mentioned in the Delta, Taraba and Abuja Rules of Court, there is no gainsaying that by those provisions it was envisaged that in the future, other means of communication and information sharing may later surface and become prominent as a result of technological advancement.
It is submitted that since the essence of service is to notify the party to be served of the matter against him, where the whereabouts of a party sought to be served is unknown the courts must consider how the matter can be best brought to his attention, and should be inclined to order substituted service through social media platforms as opposed to publication in newspapers once it is shown that such a party is active on social media.
In ordering that substituted service be effected through social media platforms, the Courts must be satisfied that the party to be served is active on the particular social media network through which he is to be served. This fact must be contained in the affidavit in support of the application. Further, upon service, the proof of service should contain a coloured printout showing that the message was delivered to the recipient.
Thankfully, it can now be known when a message has been delivered and when same has been read on the various social media platforms. For Instance where the service is to be made by posting on the recipient’s Facebook wall, although it might not be known when the recipient sees the message, but the fact that the message is displayed on his wall is proof that the message has been delivered. Where however, the service is to be made by service through Facebook Messenger, a blue tick means that the message has been delivered to the recipient and once the blue tick disappears, it means that the message has been read. For WhatsApp Messenger, a double grey tick means that the message has been delivered whilst a double blue tick means that same has been read.
CONCLUSION
A shift from the traditional way of doing things is usually the inevitable corollary of technological advancement. Technological advancement may present us with certain problems that cannot be solved using antiquated methodologies. Technology presents us with solutions to modern problems associated with technological advancement as well as more effective and cost-effective solutions to pre-existing problems. The law cannot shut its eyes to this obvious fact. The social media has over the years proven to be a very effective and expeditious means of communication and dissemination of information. The Courts must take cognisance of this fact when considering what method of substituted service can be best adopted to bring the document to the knowledge of the party to be served, since this is the object of the law. The point has been made that the Court is empowered to make an order for substituted service by means other than those set out in its Rules. Further, it is suggested that subsequent reviews of the various High Court Rules should recognise the social media as one of the means through which substituted service can be effected, as this will give the courts the needed impetus to order that substituted service be effected in this manner.
About the author
Onuzulike Chimezie Esq. is a Legal practitioner and a scholarly author, he has numerous publications to his name and writes from Lagos, Nigeria.
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