KWARA STATE HIGH COURT PRACTICE DIRECTIONS 2020: A CONSIDERATION OF ITS PROVISIONS ON ELECTRONIC MEANS OF SERVING COURT PROCESSES - Adedapomola G. Lawal, Esq.

Service of court processes is fundamental to the jurisdiction of the court. Thus before a court can exercise jurisdiction over a matter, it must be satisfied by credible evidence that the opposing party has been served with the process initiating the matter or cause. Failure to serve the process on the other party(ies) constitute a clog in the wheel of the jurisdiction of the court.

Due to the current corona virus pandemic and in order to keep the wheel of justice moving unimpeded, efficiently, speedily and to safeguard the health and lives of members of the Bench and judiciary staff and members of the Bar and other court users, the Kwara State High Court has issued a Practice Direction titled "Kwara State High Court Practice Direction No. 1 of 2020".

The Direction has five (5) Items bordering on applicability, filing and service of processes, obtaining new dates for pending cases, admittance of persons to court premises/court rooms and physical court sittings. However, only the Item dealing with service of court processes under the Practice Direction will the considered.

The Practice Direction in Item 2 (b) made provision for electronic service of court processes as follows:

"In addition to the provisions of the relevant Laws and Rules of the various courts, service of court processes may be effected by email, whatsapp or any other electronic means as may be directed by the court. Such service shall constitute proper service and be effective from the date it is served."

Firstly, the Item acknowledges the existing Rules of Court in the State. But unlike the existing Kwara State High Court (Civil Procedure) Rules, 2005, the Practice Direction 2020 did not distinguished between the service of originating processes and other processes. Instead, it indirectly adopted the provisions under the High Court Rules and the Rules of other courts in respect to the service of court processes by the use of the phrase "In addition to the provisions of the relevant Laws and Rules of the various courts."

Also, the Direction indirectly provides that service shall continue as it was under the existing provisions of the Rules of the various courts by using the phrase "In addition to the provisions of the relevant Laws and Rules of the various courts". In other words, Paragraph (B) of Item 2 of the Practice Direction 2020, is not independent of the provisions of the rules of the various courts on service. It is to be interpreted subject to the provisions of the existing rules. 

This would mean that the mandatory provisions of Order 7 Rules 3, 4 and 5 of the Kwara State High Court (Civil Procedure) Rules, 2005 will rank above the provisions of Item 2(b) of the Practice Direction. This is moreso justified by the use of the phrase "service of court processes MAY be effected by...". In law, the word "may" as used in this section is subject to discretion. It is not mandatory and it cannot be mandatory since there are mandatory provisions in the existing Rules of Court to which the Item has made itself subject being an addition to those laws and rules.

Furthermore, by the use of the phrase "as may be directed by the court" the Direction has made service of court processes by electronic means under the Practice Direction a substituted means of service which ranks equal as the modes of service provided for under Order 7 Rule 5 of the Kwara State High Court (Civil Procedure) Rules, 2005. "Direction" as used in the paragraph is equivalent to an "order" or "leave". Thus, since the court has to order or grant leave to a party to serve by electronic means as stated in the paragraph, service under paragraph B will not be proper or effective without such order of court.

The last leg of the paragraph provides as follows: "Such service shall constitute proper service and be effective from the date it is served." This second leg presupposes that the court is to rectify the service of the court process after same has been served on the other party and that the service shall take effect from the date the service was originally made. 

In my opinion, the Kwara State High Court Practice Directions 2020 has not been able to clearly state its intentions as regard service of court processes and would still need to be urgently reviewed as it has been stated in the proviso to Item 5 (c)(ix) that the provisions of the Practice Directions will be reviewed as situation demands. I strongly believe that it was intended that during the Covid19 pandemic, physical exchange of processes should be reduced to the nearest minimum unless as it becomes necessary due to the viral nature of the virus we are battling. Obviously what the Kwara State High Court Practice Directions intends is the same as the provisions of Items D.4 and D.5 of the Practice Guidelines released by the National Judicial Council as follows:

"4. Parties shall be mandatorily required to serve their filed processes on opposing parties by sending such processes to both the opposing parties’ e-mail addresses and WhatsApp telephone numbers that are contained and specified in filed process and/or directories pursuant to Items D.1 and D.2 above. The party effecting service shall also send SMS notification of the service to the opposing parties and copy the Court Registrars on such telephone numbers as shall be published by the courts.

5. The provisions of Item D.4 above do not replace the statutory service provisions in the Rules of each Court; they complement those statutory provisions and are especially mandated for the COVID-19 period. Upon being served with filed processes as mandated in Item D.4 above, the served party shall follow up with the court registry for the service on them of the hardcopy versions of the filed processes. The served party has responsibility for examining and ensuring that the electronic version of the filed processes that were served on him are the same as the hardcopy filed versions in the courts’ files."

However, the Kwara State High Court Practice Directions 2020 has made its provision on service an addendum ultimately subject to the interpretation of the existing rules of courts.

Adedapomola G. Lawal, Esq.