Order 8 — Service Out of Nigeria

A Judge may allow any originating or other process to be served outside Nigeria where:

(a) the whole subject matter of the claim is land situate within jurisdiction; or

(b) any act, deed, will, contract, obligation or liability affecting land or hereditaments situate within jurisdiction is sought to be construed, rectified, set aside or enforced; or

(c) any relief is sought against any person domiciled or ordinarily resident within jurisdiction; or

(d) the claim is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within jurisdiction or for the execution (as to property situate within jurisdiction) of the trusts of any written instrument which ought to be executed according to the law in force in Kaduna State; or

(e) the claim is brought against the Defendant to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for or in respect of a contract:

(i) made within jurisdiction; or

(ii) made by or through an agent residing or carrying on business within jurisdiction on behalf of a principal residing or carrying on business out of jurisdiction; and

(iii) which by its terms or by implication is to be governed by the applicable law in Kaduna State, or the parties have agreed that the court shall have jurisdiction to entertain any claim in respect of such contract, or is brought against the Defendant in respect of a breach committed within jurisdiction, of a contract wherever made notwithstanding that such breach was preceded or accompanied by a breach out of jurisdiction which rendered impossible the performance of the contract which ought to have been performed within jurisdiction;

(f) the claim is founded on a tort committed within jurisdiction; or

(g) an injunction is sought as to anything to be done within jurisdiction, or any nuisance within jurisdiction is sought to be prevented or removed, whether or not damages are sought in respect thereof; or

(h) any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within jurisdiction; or

(i) the claim is by a mortgagee or mortgagor in relation to a mortgage of property situate within jurisdiction and seeks relief of the nature or kind following, that is: sale, foreclosure, delivery of possession by the mortgagor; redemption, reconveyance, delivery of possession by the mortgagee; but does not seek (unless and except so far as permissible under the applicable law) any relief in respect of the mortgage.

Where parties have by their contract prescribed the mode or place of service, or the person that may serve or the person who may be served any process in any claim arising out of the contract, service as prescribed in the contract shall be deemed good and sufficient service.

Where leave is granted to serve an originating process in any foreign country with which no convention in that behalf has been made, the following procedure may be adopted:

(a) the process to be served shall be sealed with the seal of the court for service out of Nigeria, together with a copy of the process translated into the language of that country if not English, and shall be transmitted to the Solicitor-General of the Federation together with a request, as in Form 7 for its further transmission to the Ministry of Foreign Affairs in that country;

(b) A party wishing to serve a process under this rule shall file a praecipe in Form 8 with such modifications or variation as circumstances may require;

(c) A certificate, declaration, affidavit or other notification of due service transmitted through diplomatic channels by a court or other appropriate authority of the foreign country, to the Court, shall be deemed good and sufficient proof of service;

(d) Where a certificate, declaration, affidavit or other notification transmitted as aforesaid states that efforts to serve a process have failed, a Judge may, on an ex-parte application, order substituted service whereupon the process and a copy as well as the order for substituted service shall be sealed and transmitted to the Solicitor-General of the Federation together with a request in Form 9, with such modifications or variations as circumstances may require, for its further transmission to the Ministry of Foreign Affairs in the country where the process is to be served.

Provided that notwithstanding the foregoing provisions a Plaintiff may, with leave of a Judge, serve any originating process by courier. Nothing herein contained shall in any way affect any power of a judge in cases where lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected. The Court may, without assuming jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing or otherwise intervening.

(1) Where leave is granted or is not required in a civil suit and it is desired to serve any process in a foreign country with which Convention in that behalf has been made, the following procedure shall, subject to any special provisions contained in the Convention, be adopted:

(a) the party desiring such service shall file in the Registry a request in Form 10, with such modifications or variations as circumstances may require, and the request shall state the medium through which it is desired that service shall be effected, either:

(i) directly through diplomatic channels; or

(ii) through the foreign judicial authority.

(b) the request shall be accompanied by the original document and a translation thereof in the language of the country in which service is to be effected, certified by or on behalf of the person making the request, and a copy of each for every person to be served and any further copies which the convention may require (unless the service is required to be made on a Nigerian subject directly through diplomatic channels, in which case the translation and copies thereof need not accompany the request, unless there is a provision in the Convention to the contrary);

(c) the documents to be served shall be sealed with the seal of the Court for use out of the jurisdiction and shall be forwarded by the Chief Registrar to the Solicitor-General of the Federation for onward transmission to the foreign country;

(d) an official certificate, transmitted through the diplomatic channel by the foreign judicial authority, or by a Nigerian diplomatic agent to the Court, establishing the fact and the date of the service of the process, shall be deemed to be sufficient proof of service within the requirements of these Rules.

(2) A Judge, in granting leave to serve a process out of jurisdiction under this Order, may upon request therefor in appropriate cases, direct that courier shall be used by the party effecting service.

Where, in any civil matter pending before a Court or Tribunal of a foreign country, a request for service of any process on a person within the jurisdiction is received by the Chief Judge from the Consular or other authority of that country, the following procedure shall be adopted:

(a) the request for service shall be accompanied by a translation of the request in English Language where the request is not in English Language, and by two copies of the process to be served, and two copies of the process in English Language where the process to be served is not in English Language;

(b) service of the process shall be effected by a process server unless a Judge otherwise directs;

(c) such service shall be effected by delivering to and leaving with the person to be served one copy of the process to be served, and one copy of the translation thereof, where the process is not in English Language, in accordance with the rules and practice of the Court regulating service;

(d) after service has been effected by the process server, he shall file an affidavit of service in which he shall furnish particulars of charges for the cost of effecting the service. The affidavit shall be transmitted to the Chief Registrar with one copy of the process annexed;

(e) the Chief Registrar shall examine and verify the process server’s particulars of charges and may approve it or approve some lesser figure, whereupon the Chief Judge shall forward to the Consular or other authority of the foreign country a copy of the request for service, the approved amount for service, evidence of service and a certificate appended to it.

Rule 4 of this Order shall not apply to or render invalid, defective or insufficient any otherwise valid or sufficient mode of service in any foreign country with which a Convention has been made, provided that no mode of service expressly excluded by the Convention shall be allowed.

Where in any civil suit pending before a Court or Tribunal in a foreign country with which a Convention in that behalf has been made, request for service of any process or document on any person within the jurisdiction is received by the Chief Judge from the appropriate authority in that country, the following procedure shall, subject to any special provisions in the Convention, be adopted:

(a) the process server shall deliver the original or a copy thereof, along with a copy of its translation to the party to be served, where the process or document to be served is not in English Language;

(b) the process server shall submit the particulars of the costs and expenses of service to the Chief Registrar who shall certify the amount payable in respect of the service;

(c) the Chief Registrar shall transmit to the appropriate foreign authority a certificate establishing the fact and date of service, or indicating reasons for failure to serve, and also notify the authority as to the amount certified under paragraph (b) of this rule.

In appropriate cases, upon application, a Judge may order substituted or other service of the foreign process.