SOCIAL MEDIA AS A MEANS OF SUBSTITUTED SERVICE IN NIGERIA: CHALLENGES AHEAD by Ogundele Samson Abayomi.

ABSTRACT

The evolvements in the means of communication has been triggered by the recent explosion in the tech-world. The era of smoke, gunshot, drum and fire as the ways of passing message have long gone extinct. The newspaper and print media too is gradually becoming archaic as social media evolvement has changed the way we receive news, communicate, interact and live our lives. Information diffuses across the globe at the twinkle of an eye through various social media and virtually everyone is entangled with one social media handle or the other. 

The growth and relevance of Information and Communication Technology (ICT) continues to permeate all areas of lives. In the Nigerian adjudicatory system, the service of court processes is fundamental and cannot be over-emphasized. The Rules of Court in Nigeria stipulates the means through which court processes are to be served on the parties to the disputes. Court processes are to be served on parties personally however, where this is not possible, the rules of court allow the use of substituted means. 

This paper intends to consider the relevance of social media in the 21st century vis-à-vis service of court processes and the peculiar challenges attributed to same. 

The increasing nature and advancement of Information and Communication Technology (ICT) due to technological innovations unfolds new opportunities to significantly improve justice delivery, thereby proffering solutions to the nagging issue of delay in justice delivery in the Nigerian courts which is associated with the conventional method. Virtually all works of life have been transformed by the recent advancements in the invention of new technologies and our most noble legal profession is not an exception. It is apparent that a new dawn has arisen for legal practice. The traditional practice of law by lawyers through the use of papers and hard documents is giving way to paperless lawyering with the automation of legal services. 

The usage of social media around the world is ever-increasing. It is without a doubt one of the most popular online activities that users engage in on daily basis. Social media statistics from 2019 shows that there are 3.5 billion social media users across the globe. This estimated figure equate about 45% of the current population in the world. Nigeria has the largest market for internet providers in Africa owing to its growing population and economic importance to Sub-Saharan Africa and Africa as a whole. Recently, the Global State of Digital in 2019 research discovered that there are 98.39 million internet users in Nigeria of which most of this internet users owns one or more social media platform e.g. WhatsApp, which is the most active social media platform in the country with 85% of users, followed by Facebook at 78%, Instagram at 57%, Facebook Messenger at 54% and Youtube at 53%. Companies, churches, political figures, business organizations, schools and individuals are all having one or more handles on the media. This obviously has made the interaction of the world populace easier and better. Most of these media are used for different purposes by its users. Entertainment, business clues, health tips and so on are gotten there and to some, that is the source of their news. The question now is, what has social media got to do in justice delivery and what are the challenges that might be faced therefrom?

Service of processes is a prerequisite for a court of competent jurisdiction to entertain a matter before it. On a general rule, service of processes is to be made personally to the party involved however, the recent advancements in technology and the means of travelling has made evading service much easier than when society was considerably less mobile. Nevertheless, some of these same advancements in technology have opened up a whole new world of possibilities for alternative methods of service of process. While people may flee to a foreign country or make locating them difficult, one point of contact usually remains social media. With social media, individuals could be served their papers digitally, keeping process servers safe from harm. 

This paper would look into the meaning of service of court process and the importance place on it by the law, the role of social media in the service of process as embraced by the law and most importantly, the danger that looms ahead when the modes is accepted and fully absorbed into our justice system.

SERVICE OF PROCESSES IN NIGERIA

Under Nigerian law, a suit is deemed to have commenced in court at the point of filing all the required originating processes depending on the mode of commencement which could either be by way of a writ of summons, petition or originating summons or as may be provided under the rules establishing the various courts in Nigeria. However for the court to be able to assume jurisdiction of the matter, it must satisfy itself that the defendant to an action has been served with the court processes. Service of process is the procedure by which one party to a lawsuit gives notice of the commencement of a legal action to the party being sued so the court can exercise jurisdiction over that party. The court in the case of Bajoga v. Govt., F.R.N held: 

Service of court process on a party to a case is a very fundamental and essential prerequisite that gives the court the power to adjudicate on the dispute between parties before it. Service of process must be ascertained by the court in order to assume jurisdiction to hear or inquire into the dispute between the parties. In the exercise, a court is always at liberty to take judicial notice of its own proceedings.

Although a Court may be clothed with jurisdiction to entertain a matter before it, it is the proof that all the defendants in the matter have been duly served with the Originating Process that ultimately confers on the Court the jurisdiction to proceed to hear the matter and deliver a Judgment. Failure to serve a defendant personally or by any substituted means ordered by Court renders the entire proceedings a nullity. This connotes that service is vital to the jurisdiction of a matter. This is why parties must, as a matter of law and practice, ensure that the opposing party does not only receive but also acknowledge the service of the court process. Parties must ensure that the service effected is proper under Nigerian law. 

Service of court processes on parties to a suit is therefore, an indispensable requirement in the determination of a case. It is in fact a concept rooted in the immortal legal doctrine of fair hearing and not a mere technical legal requirement. A party not served has one way or the other been denied fair hearing, this is because the doctrine of fair hearing posited that both the parties to a suit should get an opportunity of to be heard. The question is how would a party be heard when the party is not served? This is why the service of processes is fundamental issue that goes into issue of jurisdiction. 

The oldest and most basic method of service is personal service. The court in the case of Hon. Frank Okiye v. The State, defined personal service as processes served on an individual personally by delivering a copy of the process duly certified by the Registrar or being a true copy of the original process filed. The court in Hon. Emeka Okonji v. Hon. Peter Onwusanya & Ors  Per Yakubu, (J.C.A.) went further to state that the service must be on the person to be served, so service on his wife or agent is not good service, even if the agent undertakes to take the document to the person. If however, personal service is still not possible after reasonable efforts has been made to comply with this traditional method, the substituted method can be invoke upon an application for leave to the Court to serve the party via a substituted means. This substituted service is the exception to the personal service of processes. A thorough look at the modes of substituted service shows that the essence of the exception is to make sure that the party is served, or he or she is brought to notice as per the court process. In other words, the underlying principle behind substituted service is to enable the claimant to adopt any means that would best bring the pendency of the suit to the attention of the defendant. The claimant application may be to deliver the processes with an adult at the last known address of the party; delivery of the processes to the agent of the party if there is reasonable probability that the processes will come to the knowledge of the party; advertisement in the Federal Gazette or in some newspaper circulating within the jurisdiction of the last known address of the party; notice at a principal court or public resort within the jurisdiction of the last known address of the party; email or any other scientific device; courier service or any other means convenient to the court. Note however that, although the whole essence of service is to bring notice to the other party where substituted means is adopted the specific mean adopted must be strictly complied with. In the case of Dr. Harry Ezim v OC Menakaya, Per Kekere-Ekun, (J.S.C.) referenced the case of Emeka v Okoroafor Where the court held that:

"It is the usual practice when applying for substituted service to specify the manner in which service is to be effected, the person on whom it is to be effected and where. The applicant chooses the location where he believes the processes are most likely to come to the attention of the person to be served. The order would be made in accordance with the request. Having sought and obtained such a specific order, it cannot be open to a bailiff effecting service to do so at any other address or by any other means without a fresh order obtained from the Court." (Emphasis are mine)

The High Court Of Lagos State (Civil Procedure) Rules 2019 was signed and launched by the Honourable Chief Judge of the Lagos State judiciary, Honourable Justice Opeyemi Oke, on 14th January 2019. The new rule made some considerable reformation, particularly with respect to services of court processes. Order 9 Rule 5 (1) High Court of Lagos State (Civil Procedure) Rules 2019 provides that where personal service of an originating process cannot be effected, service by electronic mail is now an option under substituted service. Also the High Court of Federal Capital Territory Abuja (Civil Procedure) Rules 2018 Order 7 Rule 11(2) (e) provides that e-mail or any other scientific device now known or later to be developed and courier service or any other means convenient to the Court, provided service by email is contemplated by parties in a written agreement or subsequently agreed by counsel in the course of proceedings. In the case of Madalla v. Gusau, the Supreme Court held that 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 court process can be appropriately brought to the notice of the defendant.

SOCIAL MEDIA AS MEANS OF SERVICE AND THE CHALLENGES THAT LOOMS

Social media has over the years advanced to becoming reliable, efficient, fast, and informative. Social media is computer-based technology that facilitates the sharing of ideas, thoughts, and information through the building of virtual networks and communities. By design, social media is internet-based and gives users quick electronic communication of content. Content includes personal information, documents, videos, and photos. Users engage with social media via computer, tablet or smartphone via web-based software or web application, often utilizing it for messaging. This media includes: Facebook (and its associated Facebook Messenger), TikTok, WeChat, Instagram, QZone, Weibo, Twitter, Tumblr, Baidu Tieba and LinkedIn. Other popular platforms that are sometimes referred to as social media services (differing on interpretation) include YouTube, QQ, Quora, Telegram, WhatsApp, LINE, Snapchat, Pinterest, Viber, Reddit, Discord, VK and more. 

On daily basis, social media is becoming ubiquity, and the Nigeria legal system would be doing itself great injustice to ignore this new technology as a means to effectuate service when other methods fail. Other developed country like In India, Canada, England, New Zealand and South Africa has completely embraced this new technology to better their justice system. This is because law is dynamic. It will be apt to state that a cardinal characteristic of law is its ‘dynamic nature’. Law can change with time and trend so as to meet up with and be able to adequately protect the interest of the society and where the law fails to so do, it is deemed to be failing in its utmost function. Although the fate of inducting new practice of law in Nigeria often time sustain severe arguments, particularly from the ill-favored party, but truly when other spheres of the nation make significant advancement, our justice might hold its tent pitched far behind. 

The Supreme Court of Nigeria some years ago admired the dynamic nature of law when it took cognizance of the advancement in information and communication technology: ‘The Law cannot be and is not ignorant of modern business methods and must not shut its eyes to the mysteries of the computer.’

Although the adage ‘The wheels of justice turn slowly, but grinds exceedingly fine’ has longed lived, the continuous improvements in the world of Information and Communication Technology (ICT) has rendered it archaic. In the case of Compact Manifold & Energy Services Ltd v Pazan Services Nigeria the Supreme Court has this to say: 

This is the 21st century and technology is ruling every aspect of human endeavour and therefore even courts must be abreast of the technological advancement and be ready to absorb the aspects that will engage the quality of justice and aid speedy determination of cases. The Courts have also moved on in that regard. Indeed, electronic service has taken root in the Nigerian legal system and it would be strange for anybody to frown at being served electronically.

Lord Denning calcified this stand point long time ago, in the case of Perker v Perker unconsciously warned this adage when he said:

What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both. 

Recently, service of court processes via social media received a large applause in the case of Mohammad Awwaldanlami, Esq. v Governor of Taraba State & Twenty Four Ors  Where the Plaintiff instituted an action at the High Court of Taraba State against the Executive Governor of Taraba State and the Attorney General of the State together with 23 other defendants however, the Plaintiff was unable to serve the originating processes on the 3rd to 25th Defendants. He then applied to the Court to serve them by substituted means. The court in its ruling ordered that the originating process and other processes of the court in respect of the substantive case including Order or Judgment of the Court be served on the 3rd to 25th Defendants by posting and sharing same on social media. The Court further held that any process served through this means shall be deemed properly served. This holding by the Taraba State High Court was indeed a great leap, particularly by inducting social media as a mean of service in Nigeria law through judicial precedent. 

A similar pronouncement was made by the Supreme Court in the case of Compact Manifold & Energy Services Ltd v. Pazan Services Nigeria Limited where the court held that the use of short message service is a proper mode of effecting service. 

In the instant case, there is evidence that parties left their phone numbers with the registry of the Court. The phone numbers were supplied for the purpose of communication between the parties in this matter and the registry. There is evidence that a text message containing 15th March, 2016 as the hearing date of this matter was sent to learned counsel for respective parties through their phone numbers. Clearly, parties were properly served with hearing notice. I agree with the lower Court that at this age of information technology super highway, it will be foolhardy for any litigant to insist on being served with hard copy hearing notice. Once a notice is sent to the GSM numbers supplied by the litigants, that is sufficient. Learned senior counsel for the respondent was served the same way appellant's counsel was served. At the lower Court, learned counsel for the appellant did not deny at the earliest opportunity that he did not receive any hearing notice. He only argued that the hearing notice was not served in accordance with the rules of Lagos State High Court. His sudden somersault before this Court is an attempt to frustrate the speedy disposal of this case. From the history of this case, learned counsel for the appellant has not been forthright in pursuit of this case. Having therefore been properly served with hearing notice, the appellant's right of fair hearing has not been breached at all.

On the other hand, a considerable attention need be placed on the recent encirclement of social media into our justice system as a means of service of processes. Unlike other institutions, law is quite logical and intriguing. One might sincerely not know till one is on the wrong side of the peddle of justice then one will appreciate finding fault in technicalities. As beautiful and updating allowing Court process been served via social media might be, there are so much that need be considered before we leaped.

Acknowledging Service via Social Media

Acknowledgment of service is the proof that the process has been served on the intended party. The Federal High court (Civil Procedure) Rules of 2019 for example stipulates that service may be effected under Order 6 Rule 1 of the Rule, by (a) the sheriff or deputy sheriff, bailiff or officer of the court authorized by the court; (b) a person appointed either by the court or by a judge in chambers unless another mode of service prescribed by these rules; (c) a solicitor who gives 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 court or judge in chambers may otherwise direct.

Also, under Order 6 Rule 27 of Federal High court (Civil Procedure) Rules of 2019 an affidavit would be a prima facie evidence of service. The purpose of the affidavit is to convince the courts that the persons on whom the process are served have been duly served. The court has further calcified this position in the case of Bajoga v. Govt., F.R.N paras. C-F Per Adekeye, JCA that 

The best evidence of proof of service of court process is by affidavit of service. In the instant case, an affidavit of service was sworn to by the appellant. The document forms part of the court's record, which the court could look at to confirm that there was proof of service. 

The Court of Appeal recently in the case of Umar & anor v Okeke described how crucial and important an affidavit of proof of service could be when it held that, for a court process to be taken as having been served on a party, there must be an affidavit of service shown to the court to its satisfaction. Where there is no affidavit of service in law, proof of service of a document on a party cannot be assumed. As such, the court of law should not close its eyes to proofs of service of its processes. The pertinent question that flows from above is, how does one establish that a party has acknowledged service and indeed notice has been brought to him?

Although most social media were created in such a way that notifies the sender once the message has been received or read. For instance for Blackberry messenger, once the message is read, the D (delivered) sign changes to R (Read); for WhatsApp, the double tick turns blue; for Twitter, the white tick turns blue; for email, one can now request for delivery reports as well as read receipts for electronic mails. This email feature enables a return email to be received once the email has been delivered, read and even deleted without being read. 

However, it must be noted that some of this delivery report can be altered. The delivery report for whatsApp can be altered as to whether or not the message sent has been read. When there is a single grey mark it means the message has been successfully sent but has not be received from the other ends (which could be due to network or lack of internet connection at recipient end), when it shows double grey mark, it means the message is successfully delivered but it has not been read. And when it shows double click in blue colors, it show that the message has been delivered and read. However, the recipient of message can set his whatsapp message receptor not to show double blue mark when read. It can even go further to hide the last seen (that is the last time he appears via that app) this and many more can be altered from the setting of the Whatapp to hinder the proper proof of service. 

Furthermore, major part of the message can be read without necessarily opening right from notification box from the face of the device to which the message is sent. In a case where the recipient can foresee the impending service, he can evade same without necessarily reading them.  

Furthermore, leveraging on the decision in the case of Compact Manifold & Energy Services Ltd v. Pazan Services Nigeria, although the receipt of hearing notice was not in contention, however the mere fact that a message is sent from registrar of the court through the medium of short message service (SMS) does not automatically make the person at the other end receive the message. This though, was not in contention in the above decision but definitely, if the receipt of same has been denied, it might take service provider forensic to determine what had happened to the message.

  

Ascertainment Party’s Profile

So many people operate more than one account on the social media, this could be consequent to their account being hacked by fraudsters or created by fraudsters to defraud their friend or followers or to damage the reputation of the person impersonated. Many of these fraudsters create new accounts with the names and pictures of celebrities, renowned pastors’ name and pictures. In fact, no court can be 100% sure that an account being served belongs to the individual that needs to be served. There are countless fake accounts on Facebook and other social media sites like Twitter that use real names and photos of individuals but are not operated by them. This creates a huge problem and defeats the whole purpose of due process. Also, some persons oftentime open more than one account for the purpose of promoting their business

As such, simply having a picture that matches the identity of the subject cannot be enough to authenticate an account. A persons’ profile can be impersonated by this fraudster making it look like the person itself.

Many names are common, with the same surname, middle name and first name and as such, can be mixed up. The worst case scenario would be where important and highly sensitive information is to be passed, and such ends up with the wrong person just because the names are same or simply similar or sound’s similar. Although technology has helped improve our daily lives, safety and security are still of the utmost importance. 

Furthermore, some person hardly uses their pictures on their profile picture, some may decide to use the children or wife’s pictures, some uses their dogs or even picture of persons they really admires so much. With this challenge, it becomes difficult to sincerely nail accounts with someone else’s picture as the party to be served pic.

Network from both ends

The Internet is an increasingly important part of everyday life for people around the world. The Internet is a global network of billions of computers and other electronic devices. The backbone for every online transaction is internet. Network is obviously the backbone of every social media network. Consequently, without network, the connection would be hampered and affected. This is to the extent that both ends need be connected with the internet to properly exchange information of what so ever they intend to exchange.

The pertinent question to be asked is, what happens when parties to be served is not within a network coverage? That is, the party intended to be served is not able to access network. Obviously the message will be sent but would never be received from the other party and if this is so the whole essence of service via social media is then defeated because the whole essence of service is to give notice.

Active capacity of the receiver

The activeness of parties to be served is of great importance and relevant as far as electronic service via social media is concerned. The utmost challenges will upsurge when the process involved is time bound, when indeed the message has been delivered but has not yet been read. Consequently, if an account is owned by the correct person to be served but they don’t actively use the account then service via Facebook another forms of socialmed is pointless and other forms of social media.

Alteration of Account 

Alteration of account either by making some messages public or private, by deleting some messages or by hiding some vital information about the owner. In fact, an individual can simply delete their social media account and make a new one if they want to simply avoid the situation. It would be very difficult to also pinpoint exactly who is who on social media.

RECOMMENDATION 

We submit that social media though ubiquitous in Nigeria, parties to be served must or should have been communicating via such channels before that means of substituted service is adopted. As such, the problem as to identification and activeness would be resolved.

We further submit that for a party to be served on social media, they might have family members as may be recognized on their profile (usually facebook), such persons identified might be tagged along with the process. This would allow them to see the process served on their family member and in all fairness, informed the party in question. This would be very useful where the party in question is not a frequent user of the media. 

We further hold the view that not all social media platforms are proper for substituted means, the word social media is a canopy having several social media platforms operating under it. This view is evident in the position took by Honorable Justice E.A of the Taraba State High Court, in the case of Mohammad Awwaldanlami, Esq. v Governor of Taraba State & Twenty Four Ors where the trial Judge held ‘the originating process and other processes of this court in respect of the substantive case, including Order or Judgment of the court should be served on the 3rd to 25th Defendants/Respondents by positing and sharing on social media’ without any specification to a particular social media handle. Though the holding of their lordship is commendable, the sphere of social media is quite too large to go on a wide goose chase of interpreting social media to mean a particular one.

We also hold the view that in granting an order for substituted service by social media, a court should satisfy itself that the parties to be served are currently in use of the specific medium or media proposed to be used for service and thereafter, direct that an affidavit of service should be filed showing (a) the name of the person/ or the name of the account through which the service is made (b) the specific medium or media used for service, (c) the username or Id of the party served on the medium, (d) the date and time the service was made and (e) the fact the process served has been received/read by the party served (f) a screen shot in colored copy signifying the sent/receipt/acknowledgment of the service should also be exhibited in the affidavit. 

Nowadays, it is relatively easy to determine if/when a person receives/reads a message on WhatsApp, Facebook and a few other social media platforms.

CONCLUSION

The very true saying that the only constant thing is change, should not be over boarded. Although the sophistication of the 21st century is practically inconsistent with the present Nigeria judiciary pace, the judicial arm should not in haste of covering the pace allotted by the world of Information and Communication Technology, not consider the foreshadowed doom of miscreants who would engage all means to evade justice, considering the recent encirclement of judiciary with ICT. 

Ogundele Samson Abayomi

LL.B (Hons) (University of Ilorin) Legal Practitioner. 

08137997815.

samsonogundele2@gmail.com