ON THE IMPROPRIETY OF CLASSIFYING SERVICE OF COURT PROCESSES BY ELECTRONIC MAIL AS SUBSTITUTED MEANS OF SERVICE

 




Service of originating court processes (court processes) is one of the factors that confers jurisdiction on the court to entertain or sit on a matter. Failure to serve a process on the other party will strip the court of the jurisdiction to hear and determine a matter no matter how meritorious. 

There are two ways by which service of court processes may be effected. Firstly, personally. And the second is by substituted means. 

To effect a proper service, a party must be served the originating process personally, that is in person. However, where it happens that the defendant cannot be served personally, the party who wants to serve him can serve him by substituted means after obtaining the leave of court to so serve him. 

The list of service by substituted means is without end. Basically, it depends on the facts surrounding how best the person to be served will come to know about the pending matter in court. The Rules of various courts in Nigeria makes provision for substituted service of court processes. 

In some states, service of court processes by electronic means is recognized while in other States electronic service is not recognized. Though, due to the new normal introduced by the COVID19 pandemic some states have introduced "partial service of court processes by electronic means" in their COVID19 Practice Directions. "Partially" because it does not affect originating processes and where service is effected by electronic mail, the other party must still be served "personally". Specifically, the newly amended Court of Appeal Rules, 2016 recognized service of court processes by electronic means. 

Today, besides Whatsapp and Facebook that may have some features of an official communication, electronic mail is still the cheapest and the easiest means of official communication in the world. In the world today, there is hardly a person who does not have an electronic mail address or a WhatsApp or a Facebook account. All these are the personal properties of the holders. 

According to an English Dictionary, the word personal is defined as "Relating to an individual, their character, conduct, motives, or private affairs." Thus, what is personal ought to relate to peoples private affairs. Now, it is common knowledge that electronic mail are private to the holders. Then, service of court processes by electronic mail ought to be personal service. 

Besides, to effect service of court processes by electronic mail is more convenient for the party serving and the party being served. Also, it is cheaper to serve by electronic mail and it is easier to prove service by electronic mail where same has been done. Why then should service by electronic mail be made a substituted means of service? It ought not to be. Email is personal to the holder. 

Someone may ask "How are you sure the email address is that of the party sought to be served?" My response is "How are you sure that it is the actual person to be served that was actually served?" In our world today, forgery has become rampant and the signature of anyone can be forged. So, that leave us in doubt of whether the mere fact that a person acknowledges the receipt of a court process is final. This is why the Bailiff (the officer of the court in charge of service of court processes) will still have to depose to an affidavit of service after service. Affidavits, however are not conclusive proof of service. 

Consequently, the Rules of the various courts ought to be amended to include service of originating court processes by electronic mail as personal service as this will reflect the changes occurring in our world today. However, the Bailiff, when such service is done via electronic mail, should depose to an affidavit of service after effecting the service.

(C) Adedapomola Lawal Esq

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