Issues in Service of Court Process on Companies

Description

ABSTRACT

Issues in Service of Court Process on Companies

Dr. Abiodun Amuda-Kannike, SAN*

Service of court process is fundamental and goes to vesting a court with jurisdiction. While the Companies and Allied Matters Act regulates service of other documents, the rules of procedures of various courts prescribe modes of service of court processes on a company. The paper argues that the decision of the Supreme Court in Mark v Eke that substituted service of court processes cannot be made on a company is technicality-laden, a recipe for injustice and out of sync with modern business procedures. The paper recommends how to get out of the conundrum.

INTRODUCTION
The importance of proper service of court processes cannot be over-emphasised. Proper service invests a court with jurisdiction and an improperly served process may render proceedings a nullity, no matter how well conducted. This essence was emphasised by the Supreme Court in the case of FBN Plc v TSA Ind. Ltd ₁ thus:

The essence of service of process on parties in a case is to enable them to appear to prosecute and defend the case and also to ensure the appearance of the parties and those of their respective counsel in court. These are fundamental conditions to be seen to have been fulfilled before a court can have competence and exercise jurisdiction over a case. This also accords with the principle of natural justice which postulates that both sides of case must be heard. Consequently, failure to serve a process where service of the process is required to be served renders any order made against the party not served with the process null and void.₂

This article will examine the issue of substituted service of court processes on companies; whether the law which ascribes ‘all the powers of a natural person of full capacity’₃ to a company ought not to have allowed substituted service on corporations and companies; whether the decision of the Supreme Court in Mark v Eke₄ was not heavy on technicalities rather than justice and finally what should serve the interest of justice in present day Nigeria?

SERVICE OF COURT PROCESS ON COMPANIES IN NIGERIA
Service of court process on companies is regulated by the Companies and Allied Matters Act.₅ It provides thus:

A Court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to, the registered office or head office of the company.

Rules of procedure in operation in various courts in Nigeria invariably provides that subject to any statutory provision regulating service on a registered company, corporation or body corporate, every

* Ph.D., BL. Principal, Amuda-Kannike (SAN) & Co and Lecturer, Faculty of Law, Niger-Delta University, Wilbereforce Island, Bayelsa State

1. (2010) 38 WRN 1
2. Per Adekeye JSC at 66
3. Section 38 (1) CAMA
4. (2004) 5 NWLR (Pt 865) 54
5. Section 78, CAMA, LFN 2004

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW VOL.7 NO.2