Service Of Court Processes In Nigeria Through Social Media: A Case Study Of The Mohammad Awwaldanlami’s Case

Amanda Sexton, President of the New Jersey Professional Process Servers Association rightly affirmed this when she said: “Next time you open Facebook, could a summons be waiting for you in your inbox?” Serving of processes is a the prerequisite for a court of competent jurisdiction to entertain a matter before it. (See the case of NBA Ltd v. Guthrie (Nig) Ltd [1993] 4 SCNJ); Not only so, it is a matter under the exclusive list of the constitution, thus, regulated generally by the Sheriffs and Civil Process Act (Cap 56 LFN 2004) On a general rule, service of processes is to be made personally to the party involved. However, service can be made in a substituted manner as permitted by the Rules of the Court. Following precedents from decided cases and of course, Rules of Court, hardly has the social media been envisaged in Nigeria as one of such mediums through which substituted service can be effected. But this seems not to be the case following an order given by Hon. Justice E. A. Garba. In the case of Mohammad Awwaldanlami, Esq. v. Governor of Taraba State & Twenty Four Ors (Suit No: TRST/11/2018), the High Court of Taraba State, Holden at Takum ordered that the originating process in the case and other processes of the court in respect of the substantive case, including orders or judgment of the court be served on the 3^rd to 25^th Defendants/Respondents by posting and sharing on Social media. The order which was given on the 26^th day of July, 2018, has resulted to debates in the legal community as to the propriety or otherwise of the said order. To appreciate this better, it is only proper looking at the Rules of the High Court of Taraba State, being the rules that apply to the jurisdiction where the order was granted. Order 6, of the Taraba State High Court (Civil procedure Rules) 2011, provides for service of originating process. Rule 4 of the said Order, then provides for the mode of service when not personal. The Rule states as follows: “4. All processes in respect of which personal service is not expressly required by these Rules or any applicable law, shall be sufficiently served by courier service or if left with an adult person resident or employed at the address for service given under Order 5, rule 6. (1) Where it appears to the Court (either after or without an attempt at personal service), that for any reason Personal service cannot be conveniently effected, but that there is a reasonable probability that the document will come to be knowledge of the person to be served, the Court may order that service be effected either: (a) by delivery of the document to an adult inmate at the usual or last known place of abode or business of the person to be served; or (b) by delivery thereof to a 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) by advertising in the State Gazette or in a newspaper circulating within the jurisdiction; or (d) by notice put up at the principal court house of or 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) by email, or courier service or any other scientific device now known or later developed. (2) Every application to the Court for substituted or other service or for the substitution of notice for service shall be supported by an affidavit setting forth the grounds upon which the application is made.” The above stated provision provides for substituted service, and the various means through which the substituted mode can be effected. Among all the means mentioned, paragraph (e) seems to be the closest to the topic in question; hence, it was highlighted for emphasis purposes. The related paragraph states: “by email, or courier service or any other scientific device now known or later developed.” Social Media has been described by the Wikipedia Encyclopedia as computed-mediated technologies that facilitate the creation and sharing of information, ideas, career interests and other forms of expression via virtual communications and networks. Today, there are just many platforms that make up the social media, and they include among others, What’sapp, Facebook, Twitter, Instagram and so on. Although Social media was not expressly mentioned it in the rules, it can however be argued that social media can be interpreted to include, “Any other Scientific Device”. It must be noted that the interpretation may flow with “email, or courier service” which means that within the language of the rules, email can be interpreted to mean a scientific device, as device simply means a tool or machine with which something is done or carried out, and without doubt, email is a tool. Social media is also a tool. Tool as used in this context may not necessary be a physical handy machine with which tasks are performed but a means through which something is achieved or something used in the course of one’s job. Thus, Steve Olenski in Forbes outlined SocialDrift, Buffer, Sendible, Mavsocial, Storyheap, among others, as some social media tools for marketers. A thorough look at the modes of substituted service shows that the essence of the exception is to make sure that the party is served, or he or she is brought to notice as per the court process. Thus, advertisement in newspaper, and publication in the National Gazette were mentioned as some of the modes to effect substituted service. It is no gainsaying that Newspaper or other circulation mediums are public means of service. If therefore Newspaper which is a public means is accepted by the Rules, then social media which is as well a public means will not out of place, even though, not expressly provided. While the Taraba State High Court Rules seems to be a bit closed, that of Lagos State seems to be open as the court is given a wide discretion in that regard. Order 7 (5) of the Lagos State High Court Civil Procedure Rules provides that 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 claimant make such order for substituted service as may seem just; every application to the Judge for substituted or other service, or for the substitution of notice for service shall be supported by an affidavit setting forth the grounds upon which the application is made (emphasis mine). The above provisions show that where personal service is not applicable, the court in its wisdom may upon application by the claimant make such order for substituted service as it may seem just. This means that if the claimant asks for service to be effected via social media, the court may grant it.  This is the same with the Enugu, and Rivers State High Court Rules. Other States’ Rules of Court also have similar provisions with that of the Taraba State High Court Rules, only that the provision of “Scientific device known or later developed” are the words, missing. In other jurisdictions, amendments have been made to their process servicing laws to accommodate service via social media. In the case of CMC Woodworking Machinery (PTY) Ltd v. Pieter Odendaal Kitchens (Unrported case no: 6846/2006, 3-8-2012) Steyn J of the High Court in Durban had rightly held as follows: “Changes in the technology of communication have increased exponentially and it is therefore not unreasonable to expect the law to recognize such changes and accommodate them”. The reasoning of the court simply brings to mind the famous words of Lord Denning LJ in Parker v. Parker (1953) 2 All ER 127 when he said: “What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand whilst the rest of the world goes on; and that will be bad for both.” No one can say for sure whether this has not been before in the Nigeria Legal System, but without any doubt, the provisions as discussed show that the future of effecting service through the social media is bright. Not only so, the court has been able to practice outside the gateways of theorizing. To me, I see this as a clear case of judicial activism and the Honourable Judge should be applauded for it. [pdf-embedder url=”https://thenigerialawyer.com/wp-content/uploads/2018/08/court-a.pdf” title=”court a”]]]>