ALHAJI ABDULLAHI MADALLA v. ALHAJI BALA GUSAU
(2014)LCN/6852(CA)
RATIO
PRACTICE AND PROCEDURE: WHETHER A SUBSTITUTED SERVICE DULY ORDERED AND EXECUTED IS AS EFFECTIVE IN LAW AS A PERSONAL SERVICE.
The rules of court stipulate two main ways by which a Defendant may be served with originating processes; these are by personal service and by service other than personal. The former is the general rule while the latter represents a miscellany of the methods that are used on account of the peculiar circumstances of a particular Defendant or because of his disability or as a result of special circumstances of the case.
Substituted service is very important form of non-personal service which is used often. If the Defendant for any reason, cannot be served personally, the method may be used. It may be, for example, that he is untraceable or evading service.
The term ‘substituted service’ is not confined to a specific mode of service but may take any form whereby in the particular circumstances the issue of the process can be appropriately brought to the notice of the defendant.
A plaintiff can only resort to substituted service by applying to Court where it appears that for any reason personal service cannot be conveniently effected, the Court if satisfied may order substituted service.
In the case of MANAGEMENT ENTERPRISES LTD vs OTUSANYA (1987) 2 NWLR 179, the Court held that: “Service shall be personal save otherwise prescribed by the rules or unless in a case where the Court thinks it just and expedient to direct otherwise.” In BAKARE VS LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) 8 NWLR (Pt.262) page 641 AT 692, it was held that:
“It will be impossible to satisfy the requirements of fair hearing when a party has made it impossible to reach him or hear him”.
I find support for this opinion of mine in the case of PORTER VS. FREUDENBERG (1915) 1 KB 888, where the court held that: “there seem to be no reason why a method other than any of those expressly prescribed by the Rules should not be used, provided that it can bring the matter to the knowledge of the person to be served.” Per ABDU ABOKI, J.C.A.
CIRCUMSTANCES WHERE A SUMMARY JUDGMENT CAN BE RESORTED TO BY A PLAINTIFF
A summary judgment is said to be a judgment given in favour of a plaintiff without a plenary trial of the action. In SODIPO V. LEMINKAIMEN (1986) 1 NWLR 220, the Court defined summary judgment thus:
“It is for disposing, with despatch, cases which are virtually uncontested.”
Procedure by way of summary judgment is resorted to by a plaintiff where the defendant obviously has no defence to the action. In MAC GREGOR ASSOCIATES VS N.M.B (1996) 2 SCNJ 72 AT 81, the court held that summary judgment is resorted to by a plaintiff “Where there can be no reasonable doubt that a plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purpose of delay.” The summary judgment procedure averts unnecessary delay and expenses, often unavoidable in a full trial, a plaintiff may apply to the court for instant judgment if his claim is manifestly unanswerable both in facts and in law, provided that the claims fall within the class of matters in which under the rules, the Court may grant such judgment. Per ABDU ABOKI, J.C.A.
