LEGAL PRINCIPLE: CIVIL PROCEDURE — Originating Processes — Leave to Issue for Service Out of Jurisdiction — Discretion to Cure Irregularity
PRINCIPLE STATEMENT
When leave to serve out of jurisdiction is granted after issue but before service, the court should ask whether leave would have been granted if sought earlier; if yes, refusing leave would be mere technicality at the expense of substantial justice.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Caribbean Trading & Fidelity Corporation v. NNPC & Ors (2002) NLC-741993(SC) at pp. 7–8; Paras D–B.
"In my judgment, to hold that notwithstanding that leave to serve an originating summons or process out of the jurisdiction has been granted before its service but after its issue, the service or issue of the summons becomes a nullity is to apply the rule mechanically without regard to its purpose. I venture to think that the test that should immediately occur to a judge called upon to grant leave to serve an originating process out of the jurisdiction after it has been issued but before service, or who is faced with a situation in which a grant of such leave subsequent to the issue of the process, but before service thereof, seemed necessary to meet the purpose of the rule is to ask: Had the facts now placed before me been placed before me before the process was issued, would I have granted leave to issue it? If the answer is 'Yes', refusing to grant leave at that stage will be mere indulgence in technicality at the expense of substantial justice, particularly in this case where to set aside the originating summons would probably have shut out the respondent from pursuing its remedy by reason of limitation of time within which to apply to set aside the award."
EXPLANATION / SCOPE
Leave to serve out of jurisdiction may be granted after issue but before service. The test is whether leave would have been granted if sought earlier. If yes, refusing leave is mere technicality. The court should not apply the rule mechanically. The principle promotes substantial justice over form. The rule prevents injustice where time limitations may bar the claim. The court has discretion to cure the irregularity. The opposing party must show prejudice. The principle applies to originating processes. The court will not set aside service for a technical defect that did not cause prejudice. The rule is consistent with the trend towards substantial justice.
