PRACTICE AND PROCEDURE – SUBSTITUTED SERVICE – Whether substituted service must be executed in the exact manner stated in the Court order; effect of failure


“In applying for the joinder of these parties and for substituted service on them, the Appellants on their own accord, nominated DHL Courier service, a well-known registered courier service provider, as the means of delivery of the originating processes on them at their respective head offices in Lagos, Nigeria. The learned trial Judge granted the Appellant’s application for joinder and substituted service through DHL Courier Service as sought in the following words: “Leave is hereby granted to join the Central Bank of Nigeria and the Nigeria Deposit Insurance Corporation to be joined as defendants in this suit. Leave is also granted to service the writ of summons and other Court process to be served on the said Central Bank of Nigeria and the Nigeria Deposit insurance corporation at their head office in Lagos through DHL with N500 to the 1st Defendant. This case is adjourned to the 18th day of November, 1996 for hearing.” (see page 141 of the record) This was a positive, clear and direct order granted by the Court. The mode of substituted Service elected by the Appellants themselves was granted by the Court. Irrespective of this, the Appellants for reasons best known to them decided to flout the mode of service ordered by the Court by purporting to have served the 1st Respondent through a company called Crown Courier Service. In the face of the positive order of the trial Court directing a particular manner and or mode of effecting service on the 1st Respondent by substituted means, the Appellants were under an indubitable legal duty to comply with that order without let or adulteration or without more or less. That position has been well settled in law and I shall quote some of the decided cases on the point. See REV. PROF EMEKA v. REV. DR. CHIDI OKOROAFOR & ORS (2017) LPELR-41738(SC), where this Court Per KEKERE-EKUN, J.S.C. at Pp. 54-55, held thus: “On the importance of a bailiff carrying out his statutory duty in accordance with the Rules or Order of Court, I refer to Odutola Vs Kayode (1994) 2 NWLR (pt.324) 1 @ 19 – 20 G -A, where Olatawura, JSC (of blessed memory) stated thus: “This case has brought out clearly the statutory and honest duties required of a bailiff: to serve in accordance with order of Court. Where personal service is ordered, he must serve that person personally. Where a substituted service either by pasting at the last known abode of the person required to be served, or by publication in a newspaper is ordered, any other service which is not in accordance with the clear and unambiguous language of the Court is ineffectual. Bailiffs are officers of the Court. Any dereliction of duty in the discharge of their duties will cause unnecessary delay in the administration of justice. A false return of service on the part of the bailiff may lead to an attempt to deceive the Court. This in itself is an abuse of that order.” (Emphasis mine) In DR. HARRY v. O.C. MENAKAYA (2017) LPELR-42363(SC) Per KEKERE-EKUN, J.S.C. Pp. 41-44, where this Court in citing with approval Okoroafor’s case, held thus: “The argument on behalf of the appellant is that service of any process subsequent to the grant of the order for substituted service must be effected in strict compliance with the order. In other words, service must be effected on Arc. Moh and no other person. A somewhat similar situation arose in a recent decision of this Court in: Emeka Vs Okoroafor (2017) LPELR – 41738 (SC). The appellant therein obtained an order at the trial Court for substituted service of the originating process on all the respondents by delivering same to the 1st respondent whose address for service was given as Evangel House, Plot R8 Ozubulu Street, Independence Layout, Enugu. The order was granted as prayed. It transpired that rather than serve the processes on the 1st respondent personally and at the specified address in accordance with the order of the Court, the processes were dumped some blocks away from the 1st respondent’s residence in front of a neighbour’s gate. They were discovered by the occupant of the house where they were dumped and taken to the 1st respondent. In the meantime, the bailiff of the Court deposed to an affidavit of service stating that the processes were served on the 1st respondent through his security guard, one Shedrack Lawson. It was held that once an order for substituted service is sought and obtained, in the absence of a subsequent order varying the earlier one, neither the applicant nor the bailiff of the Court has the discretion to effect service in any other manner or on any other person than as stated in the order. In the said judgment at pages 51 E – 53 A (supra), I stated thus: “It is the usual practice when applying for substituted service to specify the manner in which service is to be effected, the person on whom it is to be effected and, where. The applicant chooses the location where he believes the processes are most likely to come to the attention of the person to be served. The order would be mode in accordance with the request. Having sought and obtained such a specific order, it cannot be open to a bailiff effecting service to do so at any other address or by any other means without a fresh order obtained from the Court. “See also Odutola Vs Kayode (supra) @ 19-20 G – A. In the absence of evidence in the record of appeal showing that the appellant was served with the Notice of Appeal, which is the originating process, the lower Court lacked jurisdiction to entertain the appeal ab initio. The situation is compounded by failure to adhere strictly to the order or substituted service in effecting service of other processes in the appeal. The defect has thus rendered the entire proceedings a nullity.” (Emphasis Ours) Holding further, EKO, J.S.C. at Pp. 45-48, Paras. F-B held that: “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 in 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 respondents 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.CB 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. None of the parties and the bailiffs or any other person are at liberty to disregard or disobey such lawful order of Court. The bailiffs were by the order for substituted service obligated as directed by the order, to serve Arc. David Moh all the processes, including hearing notices, meant for service on the Appellant, on the respondent to enable him participate in the appeal. Since the order for substituted service did not authorize service of the processes meant for this Appellant as the respondent in the appeal at the lower Court on either Mrs. Mma Moh, Secretary to Arc. 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. This much is admitted by the Respondent in Paragraph 3.16 – 3.19 of the Amended Respondent’s brief. The singular act of disobedience or insubordination to the subsisting order for substituting 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 respondents are all null and void.” (emphasis Ours) I have quoted copiously my learned brothers above as their dicta have shown the light and guide on the correct and immutable stance of the law on the issue. In this case in hand, the appellants in their brief of argument admitted that the mode of service was on the order of the Court and they Stated thus: “We submit unequivocally that the 1st Respondent was joined by order of the trial Court upon the application of the appellants. The order of the trial Court or binder of the 1st Respondent required that the 1st Respondent be served at its head office in Lagos through DHL but the 1st Respondent was truly served with the processes filed in the suit through crown courier services.” Having admitted this much, the hands of the Court have been strengthened by the Appellants themselves to apply the same measure of sanction applied to the Respondent in DR. HARRY’s case by dismissing this appeal for want of service. The Appellants have ‘unequivocally’ stated that they flouted the orders of trial Court on substituted service on the 1st Respondent. The law in this regard is not new at all. It had always been the same even at the time that the suit, subject matter of this appeal was tried at the Federal High Court, Calabar, Cross River State. In the earlier case of ODUTOLA V. KAYODE (1994) LPELR-2262(SC) Per OLATAWURA, J.S.C AT Pp. 23-24, the Apex Court had earlier held that: “The general and accepted practice of Court is that service on counsel for the party is a good service on the party, but where personal service is ordered, as in this case, any other mode of service is defective in law. The Court of Appeal was therefore clearly in error in the special circumstances of the appeal to have held that service on a counsel was a good service.” The Appellants will therefore not be availed by the argument that the decisions relied upon by the 2nd and 3rd Respondents are subsequent to the order of the trial Court on substituted service. Although Odutola’s case was specific on the need to comply with personal service when same is ordered by the Court, it nevertheless underscores the point that once the Court orders that service should be effected in a particular manner, only that mode of service ordered by the Court can be deemed proper service. It bears repetition to emphasis that the mode of service ordered by the Court was as sought by the Appellants themselves. The Court below made specific findings on the point thus:- “The 1st Appellant was joined as 7th defendant in the trial by order of Court made on 30/9/96. In the application dated 11/7/96, the plaintiff specifically asked for leave to issue and serve the writ of summons and other processes on the Central Bank of Nigeria and the Nigeria Deposit Insurance Corporation at their head office in Lagos by substituted service through DHL (a registered courier company and the Court granted their prayer. It was not the Court that imposed DHL on the plaintiffs neither did they apply to serve the processes on the appellants through any other service. The plaintiffs clearly flouted the order of the Court and in seeking to justify this stance took umbrage under NWOSU v. NWOSU supra… To illustrate the point further, if a Court orders that a process be served on a party by publishing the process in the Guardian Newspaper, a party cannot justify carrying out the order by publishing the process in the vanguards Newspaper because its coverage is as wide as the Guardian newspaper. In the present situation, crown courier service is not DHL and since it was the Plaintiffs themselves who applied to serve the 1st Appellants (sc) with the Writ of Summons and all other processes in the matter through DHL, they are bound to stick to their choice and if they found reason to alter the choice, they must obtain an order of the Court to that effect.” (Emphasis mine). (See page 1202 of the record). At paragraphs 5.19 – 5.21, pages 23 – 24 of their brief, the Appellants have argued that the decision of the Court below on the effect of the failure by the Appellants to comply with orders of the trial Court in the mode of substituted service ordered amounts to reliance on technicalities. They rely on BBN Ltd v. Olayiwola & Sons (2005) 3 NWLR (pt. 912) 434 and Egolum v. Obasanjo (1999) NWLR (pt. 612) 335. The Appellants’ position is founded on misapprehension of the law. The time honoured principle of law is that orders of Court as made must be obeyed until set aside. In SHUGABA V. UBN PLC (1999) 11 NWLR (Pt. 627) 459, (1999) LPELR – 3068(SC) this Court Per WALI, J.S.C at P.15, held as follows:- “While I agree that it is not desirable for the Courts to make unbridled orders, and that Court should not do anything to put a clog in the wheel of justice, orders of the Court are to be respected and obeyed. The dignity and honour of Court cannot be maintained if its orders are treated disdainfully and scornfully without due respect. Consequently, non-compliance with an order of Court makes a matter or suit incompetent.” It follows that the trial Court having made the order that the 1st Respondent be served by substituted means through DHL, that order ought to have been obeyed by the Appellants to the letter. Their purported service on the 1st Respondent through Crown Courier Service amounted to a blatant disobedience to the orders of Court and one which was rightly condemned by the Court below. In the instant case however, no service whatsoever was effected on the 1st Respondent. That is the case made out by the party alleged to have been served and rightly upheld by the Court below. The non-appearance in Court of the 1st Respondent certainly meant that it was not served having regard to the Appellants’ failure to comply with the mode of substituted service ordered by the trial Court.” Per MARY UKAEGO PETER-ODILI, JSC in ADALMA TANKERS BUNKERING SERVICES LTD & ANOR v. CBN & ORS (2022-LCER-46528-SC) (Pp 22 – 35; Paras F – A)

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