One of the commonest applications that regularly confront the Courts of law at all levels, ranging from the inferior Courts (such as Magistrate Courts, Customary Courts, etc.) to the Superior Courts of record established under Section 6(5)(a)-(k) of the 1999 Constitution (as amended), is applications for substituted service of court processes. The concept of substituted service of court processes is often employed where personal service cannot be conveniently effected and is usually brought vide a motion ex-parte for leave to serve the relevant processes by substituted means. Please see: Mark & Anor v. Eke (2004) LPELR – 1841 (SC).
However, due to the legal procedure through which an order for substituted service is usually sought and obtained, to wit: “by motion ex-parte”, with its characteristic feature of being generally unobjectionable by the adverse party, applications for substituted service are considered by many as innocuous applications.
As a result, a number of actors and players in the justice sector are seemingly oblivious of some fundamental legal rules and principles applicable to substituted service of court processes, and the far reaching consequences arising from a breach thereof, including the effect of rendering an entire proceeding nugatory or a nullity. This article seeks to demystify these legal rules and principles. To achieve the overall objective of this article, the concept of substituted service of court processes shall be x-rayed under the following headings, to wit:
The fundamentality of service of court processes
When substituted service can be properly employed
Persons against whom an order for substituted service cannot be properly made
Void and defective substituted service
Cure to proceedings tainted with defective substituted service.
THE FUNDAMENTALITY OF SERVICE OF COURT PROCESSES
In legal proceedings, the proper service of originating processes is a fundamental precondition to the exercise of jurisdiction by a Court of law. Please see: Airtel Networks Ltd v. Abia State IRS & Anor (2022) LPELR- 57616 (CA). In the old case of United Press v. Adebanjo (1969) 1 All NLR P. 413, it was held thus:
“The object of all types of service, whether personal or substituted is to give notice to the other party on whom service is to be effected, so that they may be aware and able to resist, if they so wish, the prayer sought against them.”
Accordingly, where there is no service or there is procedural fault or irregularity in service, the fundamental rule of natural justice, audi alteram partem, as enshrined in Section 36 (1) of the 1999 Constitution (as amended) will be breached; and the party affected by the service is entitled to apply to set aside the subsequent proceedings for being void and amounting to a nullity ab initio. The Supreme Court restated this age long settle position of the law in the case of Societe Generale Bank (Nig.) Ltd v. Adewunmi (2003) 10 NWLR (Pt. 829) 526, where Katsina-Alu, J.S.C (as he then was and of blessed memory) held thus:
“…It is now trite that failure to serve process, where service of process is required is a failure which goes to the root of the case… Service of process on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seized of the matter. Clearly, due service of a process of court is a condition sine qua non to the hearing of any suit. Therefore, if there is failure to serve process where service is required, the person affected by the order but not served with the process is entitled “ex debito justitiae” to have the order set aside as a nullity”.
The above stated principle of the law is premised on the fact that jurisdiction is activated by proper service on the parties. Please see: Skenconsult Nig. Ltd v. Ukey (1981) 1 S.C. 5.
WHEN SUBSTITUTED SERVICE CAN BE PROPERLY EMPLOYED
The Rules of various Courts have made provisions for the Substituted Service of court processes. For instance, Order 7 Rule 4 of the Bayelsa State High Court Rules, 2010, provide thus:
“(1) Where personal service of a 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 party desirous of effecting service make such order for substituted service as may seem just.
(2) Every application to the Judge for substituted service shall be supported by an affidavit setting forth the grounds upon which the application is made.”
Similarly, Order V Rule 4 of the Bayelsa State Magistrates’ Court Rules, provide as follows:
“Where it appears to the Court, either with or without an attempt at service in accordance with the provisions of Rule 3 of this Order, that for any reason such service in respect of any process whatsoever cannot conveniently be effected, the Court after being satisfied by affidavit that it is necessary to so do, may order that service be effected –
by delivery thereof 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 the agent or other person, come to the knowledge of the person to be served; or
by advertisement in the Bayelsa State Gazette, or in some newspaper circulating within the jurisdiction; or
by notice put up at the Court house or some other place of public resort of the district wherein the proceedings in respect of which the service is made have been instituted or at the usual place or last known place of abode, or of business, of the person to be served; or
by affixing the document to the usual or last known place of abode or business of the person to be served; or
in such other manner as the Court may direct,
upon compliance with such order such service shall be deemed to be good and sufficient service of the said document upon the person to be served.” (emphasis supplied).
From the foregoing provisions of the Rules under reference, which provisions are similar to the provisions of the Rules of the Courts of other jurisdictions, it is submitted that, the main consideration for the Court in deciding an application for substituted service is being satisfied by the affidavit in support of the application that personal service cannot be conveniently effected. Upon satisfying itself, the Court can properly exercise its discretion in favour of the application and such exercise would be proper and cannot be faulted. Please see: Otiotio v. SSA D Integrated Concepts Ltd (2019) LPELR -48322 (CA).
It should be noted that it is not a requirement of the law that attempt must first be made at effecting personal service before an application for substituted service can be properly employed. In fact, the Magistrates’ Court Rules cited above made it undoubtedly clearly by the clause: “with or without an attempt at personal service.” Thus, the practice of some courts generally insisting that an applicant seeking an order for substituted service must, in all cases, first make attempt at personal service and exhibit a Bailiff’s affidavit of non-service to the application for substituted service, before the application can be considered competent or grantable, does not, with due respect, represent the correct position of the law. Please see: Kangnaan v. Kangnaan (2019) LPELR-46502 (CA). In Zakirai v. Muhammad & Ors (2017) LPELR- 42349 (SC), the Supreme Court after referring to the relevant provisions of the Rules, held inter alia, thus:
“… There it is – the trial Court may order substituted service either after “or without an attempt at personal service.” The word “may” makes room for the exercise of discretion. It is an enabling and permissive word and, in that sense, it imposes or gives a discretionary power – Mokelu V. Fed. Comm., Works & Housing (1976) All NLR 224” Per AMINA ADAMU AUGIE, JSC (Pp 40 – 41Paras E – D)
It is instructive to noted that substituted service of processes can only be employed in respect of a defendant who is residing within the jurisdiction of the Court seized of any matter. Thus, where a defendant against whom an order for substituted service is sought is residing outside jurisdiction, an order for substituted service cannot be competently sought or granted against such defendant. The Supreme Court made this position of the law clear in the case of Kida v. Ogunmola (2006) LPELR -1690 (SC); (2006) 13 NWLR (Pt. 997) 377 at 393, as follows:
“Substituted service can only be employed when for any reason, a defendant cannot be served personally with the processes within the jurisdiction of the Court, for example, when the defendant cannot be traced or when it is known that the defendant is evading service. Also, where at the time of issue of the Writ, personal service could not in law be effected on a defendant, who is outside the jurisdiction of the Court, substituted service should not be ordered. See Fry v. Moore (1889) 23 Q.B.D 395.” – Per MUSDAPHER, J.S.C.
PERSONS AGAINST WHOM AN ORDER FOR SUBSTITUTED SERVICE CANNOT BE MADE
It is noteworthy that an application for substituted service cannot be properly made in every case. There are two categories of persons against whom an order for substituted service cannot be properly employed. The first is a company; and the second is a defendant residing outside the jurisdiction of the Court.
SUBSTITUTED SERVICE ON A COMPANY
It is important to note that the mode of service of court processes on a company is different from the mode of service of processes on a natural person under the various Rules of Courts. For instance, Order 7 Rule 8 of the Bayelsa State High Court Rules 2010 provides as follows:
“Subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other processes requiring personal service may be served on the organization by delivery to a director, secretary, trustee or other senior, principal or responsible officer of the organization, or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction.”
Furthermore, it is instructive to note that substituted service of originating or other processes of court is applicable only to natural persons and accordingly can be activated or employed only against a natural person (human being) as defendant; and is inapplicable against an artificial person (companies or corporations). In the case of Mark v. Eke (2004) NWLR (Pt. 865) 54; (2004) LPELR-1841 (SC), the Supreme Court made it emphatically clear that there is no room for an order of substituted service on a company in the following words:
“The need for substituted service arises because personal service cannot be effected and since personal service can only be effected on natural or juristic persons, the procedure for substituted service cannot be made to a corporation like the 2nd appellant herein. – Sloman v. Government of New Zealand (1875) ICPD 563; Hillyard v. Smyth (1889) 36 WR 7.” Per DAHIRU MUSDAPHER, J.S.C.
In SPDC v. Govt. of Bayelsa State (2017) LPELR- 45224 (CA), where, in an action bought by the Government of Bayelsa State against the appellant in the High Court of Bayelsa State, an application for substituted service was made and granted against the appellant, being a limited liability company. The Court of Appeal, in allowing the appeal and striking out the Respondent’s suit for being incompetent, held as follows:
“The appellant is a company. It is evident, decipherable from the affidavit and photographs attached thereto, that exhibits DCL 2 and DCL 3 were served on the appellant by substituted means by posting them at its premises. Incidentally, in the sight of the law, that specie of mode of service, substituted means, is personal to natural persons, but alien to a company or corporation: an artificial person in law. In Mark v. Eke (2004) 5 NWLR (Pt. 865) 54 at 80, Musdapher, JSC, as he then was, speaking the unanimous voice of the Supreme Court, opined: … I cannot see the need or necessity of making a substituted service on a corporation … The need for substituted service arises because personal service cannot be effected and since personal service can only be effected on natural or juristic person, the procedure for substituted service cannot be made to a corporation like the 2nd appellant… So, no matter how you look at it, the 2nd defendant, the 2nd appellant herein could not be said to have been properly serviced. It stems, on the footing of this ex cathedra pronouncement, that the substituted service of exhibits DCL 2 and DCL 3 effected on the appellant is contemptuous of the law.” Per OBANDE FESTUS OGBUINYA, JCA (Pp 24 – 25 Paras F-F)
In the light of the foregoing settled position of the law on inapplicability of the procedure of substituted service of court processes on companies and corporations, lawyers should never bring to court application for substituted service of court processes on a company; but rather comply with the provisions of the Rules relating to service of processes on companies and corporations, to wit, by simply leaving the process at the principal place of business of the company within the jurisdiction, which, in the author’s view, is one of the easiest and uncomplicated mode of service. It should also be added that, upon effecting the said service, the lawyer should personally scrutinize the Bailiff’s affidavit of service with a view to ensuring that the mode of service is properly deposed therein. The dictum of the Court of Appeal in the recent case of 7-Up Bottling Co. Plc v. New Nyanya Transport Co. Ltd & Ors (2021) LPELR – 54434 (CA) is instructive here. In that case, the Court of Appeal observed and held inter alia thus:
“I agree with the Appellant that service effected was not according to law, there were too many flaws, there was no endorsement, flawed affidavit of service and service was effected by substituted means on a company. Service on a company is regulated and delicate, trial Courts should take time to scrutinize proof of service to be sure it reflects proper service before taking any step in the matter. It will save time and resources of parties who have to ensure processes are duly served.”- Per YARGATA BYENCHIT NIMPAR, JCA (Pp 62 – 64 Paras E-D)
SUBSTITUTED SERVICE ON A DEFENDANT RESIDING OUTSIDE JURISDICTION
As stated earlier, the procedure of substituted service of court processes can only be employed against a defendant (natural person) residing within the jurisdiction of the Court who cannot be found or traced to be served with such processes personally, either because he is evading service or otherwise. Please see: Kida v. Ogunmola (Supra).
The reason for this principle of the law which forbids the service of court processes by substituted means on a defendant residing outside the jurisdiction of the court is not farfetched. It is, in the author’s view, in line with the object or purpose of service, which is: “to give notice to the other party on whom service is to be effected so that they may be aware of and able to resist, if they so wish the prayer sought against them.” – Olusola v. Bello (Supra); United Press v. Adebanjo (supra).
The law seems to be more satisfied with the fact that the aforesaid purpose of service is more likely to be achieved through substituted service, on a defendant residing within jurisdiction; than on a defendant who is resident outside the jurisdiction of the court, and is by reason thereof, very unlikely to become aware of the process served on him within the jurisdiction. Little wonder, in determining the place to institute civil proceedings, the Rules of Court, more often than not, provides one of such places to be where the Defendant resides or carries on his or its business.
The appellate courts have without hesitation and equivocation, consistently depreciated orders for substituted service made against defendants residing outside the jurisdiction of the court making the order; and consequently, set aside the proceedings and judgement flowing therefrom for being incompetent, null and void.
In Adeparusi v. Adeparusi (2014) LPELR – 411111 (CA), the Petitioner / Respondent in a matrimonial proceeding applied for an order for substituted service of the Petition and other relevant processes on the Respondent / Appellant by substituted means. In the supporting affidavit to the motion for substituted service, it was deposed that: “That right now, the Respondent is not in Nigeria and it will be difficult and even fruitless to expect that she could be served personally.” Despite the foregoing averment, the learned trial Judge granted leave to the Petitioner / Respondent to serve the Appellant / Respondent with all the court processes in the case by pasting same on the wall of the last known abode of the Appellant/ Respondent at No. 14 Oke Oniyo street, Ado-Ekiti. The Court of Appeal in setting aside the judgement of the trial Court and ordering that the Petition be remitted to the Chief Judge of Ekiti State for re-assignment to another Judge of the High Court for trial de-nove, observed and held inter alia as follows:
“The Petitioner / Respondent had applied to issue and serve the petition and all other processes in this suit on the Appellant / Respondent by substituted means by pasting same on the wall of the last known abode of the Appellant/ Respondent at No. 14 Oke Oniyo street, Ado-Ekiti, when it was manifestly clear that the Respondent was no longer resident there or within the jurisdiction of the Court. For a defendant to be legally bound to respond to the order for him to appear in Court to answer a claim of the Plaintiff he must be resident within jurisdiction of the Court. See: National Bank (Nig.) Ltd v. John Akinkumi Shoyoye & Anor (1977) 5 SC 181… If the Defendant is outside the jurisdiction of the Court at the time of the issue of the Writ and consequently could not have been personally served in law, not being amenable to the Writ, an order for substituted service cannot be made. See Wilding v. Bean (1891) 1 QB 100…The order to serve a party not within jurisdiction by substituted means by pasting on the walls of the last known abode as was done in this case amounts to no service.” – FATIMA MORO AKINBAMI, JCA (Pp 23 – 24, paras A-F).
Also, in Mohammed Mari Kida v. A.D. Ogunmola (2006) All FWLR (Pt. 327) 402; (2006) 6 SCNJ 165, where the suit was instituted at the High Court Maidugiri, Borno State; at the time of instituting the suit, the Claimant gave the Appellant’s residential address within jurisdiction as No. 4 Ahmadu Bello Close, Damboa, Road, GRA, Maiduguri, Borno State; but at that time the Appellant had relocated with his family to Ibadan, Oyo State. The Claimant applied for leave to serve the Writ of Summons on the Appellant out of jurisdiction and the Court granted leave for that purpose; but the Bailiff effected service of the Writ of Summons on the Appellant by pasting the processes on No. 4 Ahmadu Bello Close, Damboa, Road, GRA, Maiduguri, Borno State, within jurisdiction. The Supreme Court, reiterated the settled position of the law on service of process by substituted means on a defendant outside jurisdiction, in the following words:
“For a defendant to be legally bound to respond to the order for him to appear in Court to answer a claim of the Plaintiff, he must be resident within jurisdiction. See: National Bank (Nig.) Ltd v. John Akinkumi Shoyoye & Anor (1977) 5 SC 181. Substituted service can only be employed when for any reason, a defendant cannot be served personally with the processes within the jurisdiction of the Court for example when the defendant cannot be traced or when it is known that the defendant is evading service. In the instant case, the respondent was known to be out of jurisdiction and it is not in dispute that the Respondent had moved out of Maiduguri to Ibadan, where he had relocated with his family long before the issue of the Writ of Summons. It is trite that after its issue, a Writ of Summons or originating process must be properly served on the defendant.”- Per MUSDAPHER, JSC (as he then was) at page 411 – 414. Please see also the cases of: Abacha v. Kurastic Nig. Ltd (2014) LPELR – 22703 (CA).
From the foregoing, it can be gleaned that the affidavit in support of the motion ex-parte for substituted service is very key to the competence of the application and indeed the ruling flowing therefrom. Lawyers should therefore be careful not to shot themselves in the foot by deposing to facts in their own affidavit, which negate the law and have the tendency of rendering their application potentially incompetent. The Courts must also scrutinize affidavits in support of applications for substituted service in the light of the settled principles of the law on the subject under consideration, in order to preserve their proceedings from undesirable legal consequences.
VOID AND DEFECTIVE SUBSTITUTED SERVICE
Beyond the foregoing, there are certain circumstances or features that can render a substituted service defective or void; and consequently, render an entire proceeding a nullity. These circumstances or features which may arise from effecting substituted service without the requisite leave of court; or effecting substituted service in a manner different from that contained in the order for substituted service, are hereunder examined seriatim.
EFFECTING SUBSTITUTED SERVICE WITHOUT THE REQUISITE LEAVE OF COURT
It is settled law that where a writ or originating process is to be served by substituted means, leave of court must be first sought and obtained. Please see Owners of the MV “MSC AGATA” & Anor v. Nestle (Nig.) Plc & Anor (2012) LPELR – 9851 (CA). Thus, where a Plaintiff proceeds on a frolic of his own to give himself the power to serve by substituted means an originating process, without leave of court sought and obtained, such service will be a nullity and of no effect. Please see: Emperion West Africa Ltd v. Aflon Ltd & Anor (2014) LPELR- 22975 (CA).
In Olusola v. Bello & Ors (2014) LPELR-24417 (CA) where a Bailiff effected service of an originating process by pasting without the requisite leave of the trial Court, it was held inter alia thus:
“An originating process ought to be served personally by delivering same to persons to be served by the bailiff or an officer of the Court except where leave is granted to serve by substituted service. The alleged service carried out here by the bailiff by pasting without the order of the Court sought and obtained is void and of no effect. See: Kisari Investment Ltd & Ors v. La – Terminal Co. Ltd (2001) FLWR (Pt. 66) 766 at 783; (2001) 16 NWLR (Pt. 739) 381.”
EFFECTING SUBSTITUTED SERVICE IN A MANNER DIFFERENT FROM THAT CONTAINED IN THE ORDER FOR SUBSTITUTED SERVICE
In Okoye & Anor v. Centre Point Merchant Bank Ltd (2008) 15 NWLR (Pt. 1110) 335, NIKI TOBI, J.S.C (of blessed memory) said:
“Service of process is an exact thing which must be undertaken with the exactitude or exactness in the judicial process. Because of its exactness, the Plaintiff has the burden to prove exactly that the Writ of Summons was served on the Defendant.”
Furthermore, Usman & Ors v. IGP & Ors (2018) LPELR- 45311 (CA), it was held inter alia that:
“… The manner of serving originating process is primarily personal but the Court can grant leave for service to be effected by substituted means which should be specific on the order and service would be circumscribed by that mode of service.”
Also, in Olusola v. Bello (supra), it was held that failure to comply with the order to serve process in a particular manner prescribed by the Court would also render any proceeding emanating from it void.
From the foregoing, it is clear that, upon obtaining an order for substituted service, the Plaintiff or Claimant or his counsel has the onerous duty or responsibility to ensure that the substituted service complies strictly with the prescription of the order; failing which would render the service and indeed the entire proceeding a nullity. The Supreme Court’s decision in the case of Harry v. Menakaya (2017) LPELR- 42363 (SC) is quite insightful on the serious legal consequence of the slightest deviation from the strict order of substituted service. In that case, the Supreme Court observed and held thus:
“The real problem in this appeal that the respondent herein has to contend with is the manner the processes were served on the Appellant herein after the Lower Court made order that all processes for service on the Appellant herein, as the respondent at the Lower Court, shall be served on Arc. David Moh, who actually was the attorney through whom the Appellant maintained his suit at the trial Court. The order for substituted service was specific that the processes for service on this Appellant as the respondent in that Court shall be served on the said Arc. David Moh, and that by such service the Appellant, as the respondent, shall have been deemed to have been duly served. Until set aside this order remains valid. Neither the parties nor the bailiffs are empowered to alter the said order of the Lower Court. It is trite that subsisting orders of Court, right or wrong, are meant to be obeyed and carried out. See ROSSEK v. A.B.C LTD (1993) 8 NWLR (Pt. 312) 382. Until the order for substituted service made by the Lower Court was varied or modified, the bailiffs have no discretion as to how the order for substituted service shall be carried out … Since the order for substituted service did not authorize service of the processes meant for this Appellant as respondent in the appeal at the Lower Court on either Mrs. Mma Moh, Secretary to Arch. David Moh, or any other person for that matter. It follows that the purported service of those processes including hearing notice on those persons in violation of the express letters of the Court Order was a non-starter. The disobedience of the specific order for substituted service completely annuls the service made in such flagrant disobedience of such express Court Order… The singular act of disobedience or insubordination to the subsisting order for substituted service of the processes on the Appellant, or the Respondent at the Lower Court, vitiated all proceedings subsequent thereto, and consequent upon the said faulty or illegal service of the hearing notice and the other processes. The proceedings of the Lower Court following such faulty or illegal purported service of hearing notice on the Appellant, as the respondent, are all null and void.” Per EJIMBI EKO, JSC (45-46 Paras F-B). (Emphasis supplied)
Please see also the case of PDP & Ors v. Dayo & Ors (2018) LPELR – 46187 (CA), where the order for substituted service specifically directed that the Originating Summons and all processes be served on the 3rd and 4th Defendants by delivering same to an employee not below the rank of secretary in the secretariat of the 2nd Defendant located at WADATA Plaza, Zone 5, Abuja; but the bailiff who purported to have served the process in accordance with the order for substituted service, deposed to an affidavit to the effect that the processes were dropped on some lawyers in the legal department of the 2nd Defendant who refused to collect and sign for him. The trial Judge held that there was good service. However, on Appeal, the Court of Appeal held inter alia that:
“The main point in the appeal thereby centered on the service. Being service by substituted means ordered by the Court, there must be full compliance with the mode of service ordered by the Court. Being a registered Political Party the Court ordered service on “the secretary” or on “an employee not below the secretary” at the secretariat. A political party is like an incorporated company and service on it must be in accordance with statute or as directed by the Court. See: Kraus Thompson Organization Vs. University of Calabar (2004) 4 SCM 83. Throwing the processes on “some lawyers” in their office” cannot be service on “the secretary” or “other employee not below the rank of secretary.” … the purported service was defective and amounts to its own tag of “Non Service” and the jurisdiction founded on it is a nullity.” Per NONYEREM OKORONKWO, JCA (Pp 51 – 54 Paras F-F) (Emphasis mine)
CURE TO PROCEEDINGS TAINTED WITH DEFECTIVE SUBSTITUTED SERVICE
Situations may arise where in a suit with several defendants, some of the defendants were properly served with the originating processes while the service effected on other defendants may turn out to be defective service. In such situations, the Court may, upon becoming aware of the defective service effected on the relevant defendants in the suit at the stage of judgement, strike out the names of the affected defendants (over whom the Court lacked jurisdiction); and proceed to deliver its judgement between the Plaintiffs and the defendant or defendants who were properly served with the originating and other processes. This approach is to save the proceedings and judgement from being rendered a nullity in its entirety, due to the defective service on some of the defendants.
This above approach was adopted by the Court in the case of: Usman & Ors v. IGP & Ors (supra). In that case, the trial Court made a specific order for the service of the amended originating processes on the 6th of December, 2017, and adjourned hearing to a later date to enable the Appellant serve the originating process within 5 days. It was not served within 5 days but several days later and by substituted mean without leave of court and by counsel who deposed to an affidavit of service by substituted means. The 1st – 5th Respondents did not appear but the application was taken. In the judgement, trial Court found out that the service effected by the learned counsel to the Applicants on the 1st – 5th Respondents was defective and consequently struck out the names of the 1st – 5th Respondents for want of jurisdiction for failure to serve them with the originating processes. On appeal to the Court of Appeal, it was held inter alia thus:
“I cannot fathom the import of the Appellants’ argument when indeed there was no personal service and the purported service was by substituted means without leave of court and by counsel; the Court was right to decline jurisdiction and strike out the names of the said 1st – 5th Respondents.”
However, the above saving approach may not be possible or applicable where there is a lone defendant in the suit or where there are several defendants in the suit and the service against the lone or all the defendants is found to be defective. In such a situation, the inevitable consequence, it appears, will be to render the entire proceedings and any decision emanating therefrom null and void.
From the foregoing discourse, it is clear that substituted service of court processes, as simple and innocuous as it may appear to be, could, if employed irregularly, have the dangerous effect of infesting an entire proceeding with the virus of illegality, to the chagrin of counsel, whose expectations in the suit would have been cut short; and indeed, to the Court, whose judicial efforts would have amounted to labour carried out in vain or an exercise in futility. All players in the judicial process, especially counsel and courts must therefore be circumspect in dealing with applications for substituted service, right from the decision to file the application by counsel; to the consideration of the merit of the application by the court; to the execution of the order for substituted service; and ultimately to the deposition of the affidavit of substituted service by the bailiff. These, if properly done, in the light of the settled positions of the law expounded herein, would have the effect of clothing the proceeding with the garment of unquestionable validity. The Supreme Court alluded to this fact in the recent case of: Umar v. Umar (2022) LPELR-57114 (CA), when it held, inter alia thus:
“In this case, all that is required to justify granting the order for substituted service has been established. See Mark v. Eke (2004) FWLR (Pt. 200) 1455. It is trite that once leave is obtained and the service complies with the order of the Court, such service is unimpeachable, the Defendant cannot be heard to complain of lack of fair hearing… It does not matter whether or not the Defendant becomes aware of the proceedings as the applicant is not duty bound to prove this.”
Temedie Peter-Great, Esq.
TEMEDIE & CO
(Golden Rule Chambers),
Mercy Plaza (2nd Floor),