Service At The “Last Known Address” – A Concept Taken For Granted In Nigerian Courts?

Service at the “Last Known Address” – A Concept Taken for Granted in Nigerian Courts? A Brief Peep into the Decision of the High Court of Lagos State in Adigun v Thisday Newspaper (unreported Suit No. ID/ADR/1549/2020)

By Olumide Babalola

When a practice goes on for too long unchallenged or uninterrogated, it usually becomes an accepted practice. Such is the default acceptance of service at the ‘last known address’ in the Nigerian courts’ civil procedure. My cursory search has not revealed any appellate court decision where this concept has been interrogated or comprehensively analysed but the High Court of Lagos State was presented with an opportunity to rule on the propriety of service effected at a purported ‘last known address’ in the unreported decision of the High Court of Lagos State in Suit No. ID/ADR/1549/2020 between Adigun and Thisday Newspaper & Anor.

Brief facts
In the case, a freelance journalist published an allegedly libellous story in Thisday Newspaper about the Claimant who consequently sued the newspaper and joined the journalist as the second defendant in a suit filed in 2020. After serving Thisday at their head office in Apapa, the Claimant applied to the court to serve the journalist by substituted means at Thisday’s office in Apapa deposing to an affidavit that the address was the journalist’s last known address.

The case continued for four years without the journalist’s (instructed) participation but in January 2024, the journalist got wind of the suit and he immediately filed an objection on the ground that he was never served with the court papers because Thisday’s office was never his (known) address not to talk of being his last known address.

Court decision
In resolving the objection squarely on evidence of ‘last known address’, Hon. Justice Y.G. Oshoala copiously ruled that:

“Now, the 2nd Defendant/Applicant has asserted that his last known address is not never at No. 35 Creek road, Apapa, Lagos at any time and that he therefore had no notice of the suit, nor was he served with the process….It is also settled in law that there is no doubt that the law provides for a Defendant to be served by substituted means. However the law provides guidelines for when and how this may be done. Where the whereabouts of the Defendant is known and there is no proof that such Defendant is evading service, there is no need for substituted service…. In the instant case, the claim of the Defendant is that the address on which substituted service was served was never and not his last known address of the 2nd Defendant/Applicant. This fact was not contested by the Claimant/Respondent. The further claim of the Applicant is that the processes, having not been served on him or his last known address, he had no notice of the originating process. This I see as logical because the law will not demand impossibility… The question now is that where the 2nd Defendant claimed that he never used or known to be at 35 Creek Road, Apapa, Lagos and that 35 Creek Road Apapa address where service of the process were effected belonged to the 1st Defendant…Can it be said that the substituted service achieved its aim from the time of service until 11th January 2024 when the 2nd Defendant claimed to become aware of it. To my mind the answer cannot be in the positive. It is thus clear that the order of court as to substituted service in this instant was based on wrong fact, misinformation and mistake.”

Upon the above finding, the court consequently set aside the service at the purported ‘last known address.’

Conclusion
Usually, when an application is brought to serve an adverse party at their last known address, such orders are often-times-than-not granted as a matter of course without strict request for evidence fixing such a defendant to the address. In this case, parties could not rely on any Nigerian authority on the concept of ‘last known address’ as there is (little or) none on the issue but the court was invited to be persuaded by the English decision in Cranfield v BridgeGrove Limited [2003] 3 All ER 129, where the Court of Appeal held that:

“The issue that arises in Smith is the meaning of “usual or last known residence”, being the place for service of an individual where no solicitor is acting for the party to be served, and the party has not given an address for service (para 17)…It seems that there is some doubt as to the meaning and effect of CPR 6.5(6) where service is effected on an individual at his last known residence… In particular, is the rule concerned with the claimant’s actual knowledge, or is it directed at the knowledge which, exercising reasonable diligence, he or she could acquire? We incline to the latter view.”

Conclusively, Claimants who seek to serve at a ‘last known address’ are expected to do more than state such address in the affidavit must to give further evidence of reasonable diligence exercised in ascertaining that such an address is actually the Defendant’s last known address.