Order 6 — Service of Process

Service of a writ of summons, notice, petition, pleading, order, summons, warrant and any other proceeding, document or written communication of which service is required, shall be made by:

(a) the sheriff or a deputy sheriff, bailiff, officer of the court;

(b) a person appointed either by the Court or by a Judge in chambers, unless another mode of service is prescribed by these Rules;

(c) a solicitor, who shall give a written undertaking at the time of filing the document to the Registrar that his law firm shall:

(i) serve the document on the other party or his solicitor, and

(ii) file with the registry a proof of the service signed by the other party or his solicitor; or

(d) the Court or a Judge in chambers by any other method of service as the Court or Judge in chambers may otherwise direct.

Save as otherwise prescribed by any of these Rules, an originating process shall be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed, without exhibiting the original.

Service of a writ of summons or other process on the defendant shall not be necessary where the defendant undertakes in writing to accept service by his legal practitioner.

(1) The Court may in any civil case, for any reason which seems sufficient, appoint any process to be executed by a special bailiff, who for the time being shall have the privileges and liabilities of an officer of Court.

(2) The expenses of the special bailiff shall be defrayed by the party on whose application the bailiff is appointed unless the Court in any case sees any reason to vary this rule.

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, the Court may order that service be effected either:

(a) by delivery of the document to an adult person at the usual or last known place of abode or business of the person to be served;

(b) by delivery of the document to a person being an agent of the person to be served to any other person, on it being proved that there is reasonable probability that the document may in the ordinary course, through that agent or other person, come to the knowledge of the person to be served;

(c) by advertisement in the Federal Government Official Gazette, or in a newspaper circulating within the jurisdiction;

(d) by notice put up at:

(i) the principal Court-House of, or some other place of public resort in the judicial division wherein the proceeding in respect of which the service is made is instituted, or

(ii) at the usual or last known place of abode, or of business, of the person to be served; or

(e) by service where a party is represented by a legal practitioner, of notice, pleading, petition, order, summons, warrant and any other proceeding, document or written communication on the legal practitioner or his clerk.

Where service is to be effected on:

(a) a party in the service of any Ministry or non-Ministerial Department of Government or of a Local Government, the Court may transmit the document to be served and a copy to the most Senior Officer of the Department of Government in the judicial division or place where the party to be served works or resides or to the Local Government in whose service the party to be served is, and such Officer or Local Government shall cause the same to be served on the appropriate party; or

(b) any of the armed forces, the Nigeria Police Force and any Paramilitary Service or any of their officers, it shall be sufficient if served on the legal unit of such a service which shall cause same to be served on the appropriate party.

Where partners are sued in the name of the partnership, the writ or other document shall be served upon any of the partners, or at the principal place within the judicial division of the partnership.

Where the suit is against a corporation or a company authorised to sue and be sued in its name or in the name of an officer or trustee, the writ or any other document may be served, subject to the enactment establishing that corporation or company or under which the company is registered, as the case may be, by giving the writ or document to any director, secretary, or other principal officer, or by leaving it at the office of the corporation or company.

Where the person on whom service is to be effected lives or serves on board a ship, it shall be sufficient to deliver the writ or other document to the person on board who is at the time of the service apparently in charge of that ship.

Where the person on whom service is to be effected is a prisoner in a prison or a lunatic in an asylum, it shall be sufficient service to deliver the writ or other document to the superintendent or person appearing to be the officer in charge of the prison or asylum.

(1) Where an infant is a party to an action, it shall be deemed good personal service on the infant where the process is served on his father or guardian, or if none, then upon the person with whom the infant resides or under whose care he is, unless the Court or a Judge in chambers orders otherwise.

(2) The Court or Judge may order that service made or to be made on an infant personally shall be deemed good service.

Where service is to be made upon a person residing out of, but carrying on business within the jurisdiction in his own name or under the name of a firm through an authorised agent, and the proceeding is limited to a cause of action which arose within the jurisdiction, the writ or other document may be served by giving it to the agent, and the service shall be equivalent to personal service.

Service out of jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a Judge in chambers where:

(a) the whole subject of the action is land situate within the jurisdiction with or without rent or profit;

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

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

(d) the action is one brought against the defendant to enforce, rescind, dissolve, annul or otherwise effect a contract or to recover damages or other relief for or in respect of a breach of a contract:

(i) made within the jurisdiction,

(ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction, or

(iii) by its terms or by implication to be governed by the law in force in the jurisdiction or is brought against the defendant in respect of a breach committed within the jurisdiction of a contract wherever made, even though the breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction;

(e) the action is founded on tort or other civil wrong committed within the jurisdiction;

(f) an injunction is sought as to anything to be done within the jurisdiction or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages is or is not also sought in respect of it;

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

(h) the action is by a mortgagee or mortgagor in relation to a mortgage of property situate within the jurisdiction and seeks any of the following reliefs:

(i) sale,

(ii) foreclosure,

(iii) delivery of possession by the mortgagor,

(iv) redemption,

(v) delivery of possession by the mortgagee.

(1) An application for leave to serve a writ or notice on a defendant out of the jurisdiction shall be supported by:

(a) an affidavit and a written address; or

(b) any other evidence stating:

(i) that in the belief of the deponent, the plaintiff has a good cause of action,

(ii) the place or country the defendant is or probably may be found, and

(iii) the grounds upon which the application is made.

(2) An application for leave to serve a notice or writ out of jurisdiction shall not be granted unless it is made sufficiently to appear to the Court or a Judge in chambers that the cause is a proper one for service out of jurisdiction under these Rules.

An order granting leave to effect service or give notice shall limit a time after such service or notice within which the defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served or the notice given, and on whether the air mail is available to the defendant.

Where leave is given under the foregoing provisions to serve notice of the writ of summons out of jurisdiction, the notice shall be served in the manner in which a writ of summons is served.

(1) A service out of the jurisdiction may be allowed by the Court or a Judge in Chambers where it relates to the following processes or notices:

(a) an originating summons, where the proceedings begun by an originating summons might have been begun by a writ of summons under these Rules;

(b) an originating summons, petition, notice of motion or other originating proceedings:

(i) in relation to an infant, a lunatic or a person of unsound mind,

(ii) under any law or enactment under which the proceeding can be commenced otherwise than by writ of summons, or

(iii) under any rule of Court where the proceeding can be commenced otherwise than by a writ of summons;

(c) without prejudice to the generality of paragraph (b) of this sub-rule, any summons, order or notice in any interpleader proceeding or for the appointment of an Arbitrator or umpire or to remit, set aside, or enforce an award in an arbitration held or to be held within the jurisdiction;

(d) any summons, order or notice in any proceeding duly instituted whether by a writ of summons or any other originating process as aforesaid.

(2) The provisions of rules 14, 15 and 16 of this order shall apply mutatis mutandis to service under this rule.

(1) Where leave is granted to serve a writ of summons or a notice of writ of summons in any foreign country other than a country with which a Convention in that behalf has been made, the following procedure may be adopted:

(a) the document to be served shall be:

(i) sealed with the seal of the Court for use out of the jurisdiction,

(ii) translated into the language of the country in which service is to be effected where applicable and the translated copy shall be attached to the original copy, and

(iii) transmitted to the Permanent Secretary of the Federal Ministry of Justice by the Chief Registrar on the direction of the Chief Judge, with a request for transmission to the Minister responsible for foreign affairs for further transmission of the same to the Government of the country in which leave to serve the document has been given;

(b) the request referred in paragraph (a) (iii) of this sub-rule shall be as specified in Form 7 in Appendix 6 to these Rules with such variations as circumstances may require;

(c) the party requesting a copy of a document for service under this rule shall, at the time of requesting the same, file a praecipe as specified in Form 8 in Appendix 6 to these Rules;

(d) an official certificate, or declaration upon oath or otherwise, transmitted through the diplomatic channel by the Government or Court of a foreign country to which this provision applies, to the Court, shall, provided that it certifies or declares the document to have been personally served, or to have been duly served upon the defendant in accordance with the law of that foreign country, or words to that effect, be deemed to be sufficient proof of service, and shall be filed on record as, and be equivalent to an affidavit of service within the requirements of these Rules in that behalf; and

(e) where an official certificate or declaration transmitted to the Court in the manner provided in paragraph (d) of this sub-rule certifies or declares that efforts to serve a document have been without effect, the Court or a Judge may, upon the ex parte application of the plaintiff, order substituted service of the document, and the document and a copy of it and the order shall be sealed and transmitted to the Permanent Secretary to the Ministry of Justice in manner aforesaid together with a request as specified in Form 9 of Appendix 6 to these Rules, with such variations as circumstances may require.

(2) Nothing herein contained shall in any way prejudice or affect any practice or power of the Court under which when lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the Court may, without affecting the exercise of 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) The provisions of this order shall apply where, for the purpose of an action under the Civil Aviation Act and the Convention therein set out, leave is given to serve a notice of writ of summons upon a high contracting party to the Convention other than Nigeria.

(2) The notice shall:

(a) specify the time for entering an appearance as specified in rule 15 of this order; and

(b) be sealed with the seal of the Court for service out of jurisdiction;

(c) be translated into the language of the country of the defendant where applicable and the translated copy shall be attached to the original document, should be; and

(d) be transmitted to the Federal Ministry of Justice with a request for transmission to the Minister responsible for matters relating to foreign affairs for further transmission of the same to the Government of that country.

(3) The request shall be as specified in Form 10 in appendix 6 to these Rules, with such variations as circumstances may require.

(4) The party bespeaking a copy of a document for service under this rule shall at that time of bespeaking the document file a praecipe as specified in Form 9 in Appendix 6 to these Rules.

(5) An official certificate from the Minister responsible for matters relating to foreign affairs transmitted by the Federal Ministry of Justice or otherwise to the Court certifying that the notice was delivered on a specific date to the Government of the country of the defendant shall be deemed to be sufficient proof of service and shall be filed as record of, and be equivalent to, an affidavit of service within the requirements of these Rules in that behalf.

(6) After entry of appearance by the defendant, or, where no appearance is entered after expiry of the time limited for appearance, the action may proceed to judgement in all respects as if the defendant had for the purposes of the action waived all privileges and submitted to the jurisdiction of the Court.

(7) Where a summons, an order or a notice in the proceedings is to be served or delivered on the defendant out of the jurisdiction, the provisions of this rule shall apply with such variation as circumstances may require.

Where leave is given in a civil cause or matter or where leave is not required, and any writ of summons, originating summons, notice, or other document is to be served in any foreign country with which a Convention in that behalf has been or shall be made, the following procedure shall, subject to any special provision contained in the Convention, be adopted:

(a) the party bespeaking the service shall file in the registry a request as specified in Form 8 or Form 37 in Appendix 6 to these Rules which form may be varied as may be necessary to meet the circumstances of the particular case in which it is used;

(b) the request referred to in paragraph (a) of this rule shall state the medium through which the service shall be effected, either:

(i) directly through the diplomatic channels, or

(ii) through the foreign judicial authority,

and shall be accompanied by the original document and a translation 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 convention may require unless the service is required to be made on a Nigerian citizen directly through the diplomatic channels in which case the translation and copies need not accompany the request unless the Convention expressly requires that they should do so;

(c) the document to be served shall be sealed with the seal of the Court for use out of the jurisdiction and shall be forwarded by the Registrar to the Permanent Secretary for Foreign Affairs for transmission to the foreign country; and

(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 document, shall be deemed to be sufficient proof of such service, and shall be filed as record of, and be equivalent to, an affidavit of service within the requirements of these Rules in that behalf.

Rule 20 of this order shall not apply to or render invalid or insufficient any mode of service in any foreign country with which a Convention has been or shall be made which is otherwise valid or sufficient according to the procedure of the Court and which is not expressly excluded by the Convention made with that foreign country.

The Court or Judge, in granting leave to serve a document out of the jurisdiction under these Rules, may in an appropriate case direct that the airmail service be used by the party effecting service.

Where, in any civil cause or matter pending before a court or tribunal in any foreign country with which a Convention in that behalf has been or shall be made, a request for service of any document on a person within the jurisdiction is received by the Chief Judge from the consular or other authority of the country, the following procedure shall, subject to any special provision contained in the Convention, be adopted:

(a) the service shall be effected by the delivery of the original or a copy of the document, as indicated in the request and the copy of the translation, to the party or person to be served in person by an officer of the court, unless the Court or a Judge in chambers thinks fit otherwise to direct;

(b) there shall be no court fees charged in respect of the service but the particulars of charges of the officer employed to effect service shall be submitted to the Chief Registrar of the Court who shall certify the amount properly payable in respect of it;

(c) the Chief Judge shall:

(i) transmit to the consular or other authority making the request, a certificate establishing the fact and the date of the service in person, or indicating the reason for which it has not been possible to effect it, and

(ii) notify the consular or any other authority the amount of the charges certified under paragraph (b) of this rule.

Upon the application of the Attorney-General of the Federation, the Court or a Judge in chambers may make any other order for substituted service or otherwise as may be necessary to give effect to rules 13 to 22 of this order.

(1) An order granting leave to effect service out of the jurisdiction shall prescribe the mode of service, and shall limit a time after the service within which the defendant is to enter an appearance.

(2) The time limit referred to in sub-rule (1) of this rule shall depend on the place or country where the writ is to be served, and the Court may receive an affidavit or statutory declaration of the service having been effected as prima facie evidence of service.

Where the Officer of Court or any person charged with the service of any Court process or document on any person is prevented by violence or threat of violence by such person or it is made impossible by such person or any other person in concert with him from physically serving the process or document, it shall be sufficient to inform the person to be served of the nature of the process or document as physically near to that person as practicable.

In any other case were service of any writ or document has been effected by a bailiff or other officer of Court, an affidavit of service sworn to by the bailiff or other officer shall, on production, without proof of signature, be prima facie evidence of service.

The cost of and incidental to the execution of any process in a suit shall be paid in the first place by the party requiring the execution, and the sheriff shall not except by order of the Court be bound to serve or execute any process unless the fees and reasonable expenses shall have been previously paid or tendered to him.

Service shall not be made on a Sunday or public holiday, unless the Court directs otherwise by order endorsed on the document to be served.

(1) A book shall be kept at every Court for recording service or process, in such form as the Chief Judge may direct and the officer serving the process or the Registrar shall enter into the book the:

(a) names of the plaintiff or complainant and the defendant,

(b) particular Court issuing the process;

(c) method of the service, whether personal or otherwise, and the manner in which the person serving ascertained that he served the process on the right person; and

(d) reason why service failed where any process is not duly served.

(2) An entry in the book or an office copy of any entry shall be prima facie evidence of the several matters therein stated.

(1) In these Rules “out of jurisdiction” means out of the Federal Republic of Nigeria in accordance with the provisions of the Federal High Court Act.

(2) An originating process or Court process filed by any party before the Court shall be served on any other party in any part of the Federation without leave of Court.