So many encounters have occurred in the courtroom between Lawyers and Judges in respect of service of petition under the Matrimonial causes Act. So many of the times, the Judges have refused to accept service by post as valid service of a Petition brought under the Matrimonial Causes Act.
In some matters I have appeared, the courts have hinted that a petitioner cannot serve by post without leave of court, another court has said that such service by post must be effected by a sheriff of court while another has said that such service applies to matters to be served outside Jurisdiction.
None of the positions above is the Law. The desire to clear the confusion informed this article.
The Law in respect of service of originating process i.e the Petition under the Matrimonial Causes proceedings is that a party can institute a matter under the Matrimonial Causes Act and serve it by post without more.
The Law relating to service under the Matrimonial Causes Act is provided for in Order VI of the Matrimonial Causes Rules.
Order VI Rule I provides that:
1. Where service of a document is required by these Rules to be effected on a person, service may, subject to the provisions of these Rules that limit the methods of service of particular classes of documents, be effected, either in or outside Nigeria‐
(a) by delivering the document to the person personally;
(b) by serving the document on the person by post in accordance with rule 3 of this Order;
(c) if the person has an address for service for the purpose of the proceedings, by delivering the document at that address or by posting the document (under prepaid postage) as a letter to the person, or his legal practitioner, as the case may be, at that address; or
(d) by delivering the document at, or by properly addressing and posting (under prepaid postage) the document as a letter to the person at, the last address of the person known to the person on whose behalf the document is being served.
The foregoing is the general provision for service under the Matrimonial Causes proceedings. Rule 1 (a) provides for personal service. That is well known in Law and does not form my focus in this.
Order VI Rule 1(b) (c) (d) provides for service by post under three different circumstance.
Rule 1(b) – This applies to a petition as I will explain subsequently.
Rule 1(c) – Where there is already an address for service i.e when the proceedings is already sub judis, subsequent documents can be served by post. This mostly applies to service of answers.
Rule 1(d) –This applies to parties cited by way of Notice of Proceedings or a situation of uncertainty as to where the party receiving the document resides or perhaps can’t be found.
In this discuss, our focus is in the service of the originating process which is the Petition and for that purpose, only Rule 1(a) and (b) applies.
Why did I say that only Rule 1(a) (b) applies?
Order 6 Rule 1 provides that:
1. Where service of a document is required by these Rules to be effected on a person, service may, subject to the provisions of these Rules that limit the methods of service of particular classes of documents, be effected, either in or outside Nigeria‐
“… service may, subject to the provisions of these rules that limit the methods of service of particular classes of documents…”
So, are there rules that limit the methods of service of a Petition? The answer is yes and that is provided for in Order 6 Rule 8(3).
Order 6 Rule 8(3) provides that a Petition can be served in two ways
- Personally under Order 6 Rule 1(a)
- By post under Order 6 Rule 1(b)
Order 6 rule 8(3) provides that Service of a petition shall be effected on a person‐
(a) by serving on the person in the manner referred to in paragraph (a) of rule 1 of this Order‐
(i) a sealed copy of the petition; and
(ii) if the person served is the respondent, a notice of petition or, if the person
served is not the respondent, a notice of proceedings; or
(b) by serving on the person in the manner referred to in paragraph (b) of rule 2 of this Order‐
(i) a sealed copy of the petition;
(ii) if the person served is the respondent, a notice of petition or, if the
person served is not the respondent, a notice of proceedings;
(iii) a form, in accordance with Form 11, for acknowledging service of the
petition; and
(iv) an envelope, being, in the case of service effected in Nigeria, a stamped
envelope, having written on it the name of the petitioner or his legal practitioner and the address for service of the petitioner.
So why it is that leave is not required to serve by post?
The answer to the above can be found in Order 6 Rule 7 which provides for substituted service stating that:
Substituted service
(1) Where a court, upon application made ex parte by a party to proceedings for an order under this rule, is satisfied that it is not reasonably practicable for the party to effect service of a document in a manner specified in any of paragraphs (a) to (d), inclusive, of rule 1 of this Order that is applicable, the court may order that service of the document be effected in a manner specified in the order or that the giving of notice of the document and of its effect by advertisement or otherwise, as specified in the order, be substituted for service of the document.
(2) Where an order has been made by the court authorising the giving of notice of a document by advertisement, the form of the advertisement shall be approved by a registrar.
(3) Where an order of a kind referred to in sub‐rule (1) of this rule has been made by the court in relation to service of a document on a person, compliance with the order shall, notwithstanding any other provision of these Rules, be deemed to be due service of the document on the person
The foregoing Rule 7 gives closure to the argument whether a party can serve a petition by post without leave of court.
Rule 7 provides that before the court can grant an application for substituted service, the court must be “…satisfied that it is not reasonably practicable for the party to effect service of a document in a manner specified in any of paragraphs (a) to (d), inclusive, of rule 1 of this Order that is applicable,…”
What does this mean? This simply means that an application for substituted service under Matrimonial Causes proceedings must show that:
- Personal service has failed
- Service by post has failed
- Service where (c) and (d) applies has failed
If the court is satisfied that the party had not attempted or serve a petition by post, the application for substituted service must fail. This invariably means that to serve a petition by post, a party does not need leave of court to do so rather leave to serve by substituted means is required only when service by post fails.
It is also important to note that an order to effect service by post is not an appropriate order of court pursuant to an application for substituted service. The reason is because the application for substituted service as the name implies is to substitute the service method provided by the rules. In this case – Personal service and Service by post. The court after hearing an application for substituted service (In respect of service of a petition) cannot order a party to serve by post because service by post is not a form of substituted service under matrimonial Causes Act, it is valid method of service that does not require leave so the court can only grant an order in respect of method of service not mentioned in Order 6 Rule 1 (a) and (b) e.g Advertisement, E-Mail,” pasting” etc
In conclusion, it is my view that the courts and counsels should open their mind to the issues canvassed and while counsels are opening their minds to the provisions, it is important that they pay attention to Order 6 Rule 14. On proof of service of documents by post.
Anthony ATATA is a Partner in Hallblack Law Firm- atata@hallblacklawfirm.com-08032163006
