Salient Issues in Service of Originating Process in Nigeria

Description

ABSTRACT

Salient Issues in Service of Originating Process in Nigeria

Fidelis Oyewole*

The importance of service of originating process in court proceedings cannot be overemphasised. Service of originating process is a fundamental step in court proceedings that must be dutifully followed; failing which the court will not have the competence to adjudicate on the suit against the defendant that is not served or has not been served properly. This paper examines major service issues that a plaintiff must bear in mind when planning to effect service of originating process on a defendant outside jurisdiction. In examining these issues, this paper scrutinises the rules of court pertaining to service of a defendant resident outside jurisdiction of the court. In particular, the paper discusses, amongst others: (i) the requirement for leave of court to issue and serve an originating process on a defendant outside jurisdiction of the court; (ii) service requirements under the Sheriffs and Civil Process Act; and (iii) the connotation of personal service.

INTRODUCTION
The aim of this article is to examine certain pertinent requirements under Nigerian law for valid service of an originating process₁ on a defendant, particularly a defendant that is resident out of jurisdiction.₂ This article focuses on actions instituted at any of the State High Courts or Federal High Court.₃

Service of originating processes is governed by the rules of court. Also, the Sheriffs and Civil Process Act (“SCPA”) 4 sets out certain requirements that an originating process meant for service out of jurisdiction must comply with. Additionally, some statutes creating statutory corporations provide for how service of a court process (including an originating process) should be effected on such corporations.

Most of the rules of the State High Courts and the Federal High Court are similar on service of originating process out of jurisdiction. For the purpose of this article, I shall make use of the High Court of Lagos State (Civil Procedure) Rules, 2012 (“the Lagos Rules”) and the Federal High Court (Civil Procedure) Rules, 2009 (“FHC Rules”) for service of originating process(es) of the State

* Partner, G. Elias & Co., Lagos.

1. I use “originating process” in this article as a general term for a writ, originating summons, originating motion and petition.
2. Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules, 2009 defines “out of the jurisdiction” as “out of the Federal Republic of Nigeria”. Although the High Court of Lagos State (Civil Procedure) Rules, 2012 do not define “out of jurisdiction”; “out of jurisdiction” will ordinarily mean out of Lagos State since the territorial jurisdiction of the High Court of Lagos is limited to Lagos State. For the purpose of this article, “out of the jurisdiction” shall have these respective meanings as applicable.
3. The Constitution of the Federal Republic of Nigeria, 1999 (as amended) established a High Court for each of the States of the Federation and the Federal Capital Territory and a specialised Federal High Court. See sections 251 and 257. I use “State High Court” as a term for a High Court established for each of the States of the Federation and the Federal Capital Territory.

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW VOL.8 NO.3