This paper addresses a common misconception among some lawyers and even judges in Nigeria who inadvertently believe that an application for leave for the issuance and service of a court process outside the territorial jurisdiction of a court is coterminous with an application for substituted service. This paper highlights the substantive and procedural differences between the two concepts.
Introduction
The issuance and service of an originating process are fundamental issues that afford or rob a court of jurisdiction to adjudicate over a matter. This is because it is settled law that the proceedings and judgment of a court which lacks jurisdiction result in a nullity. Yet, despite the necessity of ensuring that the issuance and service of an originating process comply with the various State High Court Civil Procedure Rules or Federal High Court Civil Procedure Rules (“the relevant court rules”) or the Sheriffs and Civil Process Act, legal practitioners and sometimes judges commonly conflate the issuance and service of court process on defendants outside jurisdiction with the concept of service of court process by substituted means on defendants within the jurisdiction. This paper set outs the differences between both commonly confused principles with the aim of providing clarity to its readers and contributing to the body of knowledge on this fundamental aspect of the Nigerian adjectival law.
Territorial jurisdiction of courts in Nigeria
Historically, Nigerian courts have always exercised jurisdiction over a defined subject matter within a clearly specified territory as provided for under the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the “Constitution”). As an illustrative example, a High Court of a State in Nigeria or that of the Federal Capital Territory, Abuja has jurisdiction over the subject matter of a simple contract. However, the jurisdiction of each High Court is, as a general rule, confined to the territorial boundaries of the State or the Federal Capital Territory, as the case may be. As highlighted below, there are three established bases under which a High Court in Nigeria can validly exercise jurisdiction in an action in personam.
Firstly, a court in Nigeria is donated with jurisdiction in an action in personam where the defendant is present or resides or carries on business within the territorial jurisdiction of the court and the defendant has been served with the originating process. In the oft-cited case of British Bata Shoe Co. Ltd v. Melikan, the Federal Supreme Court held that the High Court of Lagos State, rightly exercised its jurisdiction in an action in personam for specific performance of a contract because the defendant resided in Lagos State even though the land in respect of which the subject matter of the dispute arose, was situated at Aba, outside the territorial jurisdiction of the court.
Secondly, a court can validly exercise jurisdiction over a defendant in an action in personam where such defendant submits to the court’s jurisdiction or waives his right to raise a jurisdictional challenge. Submission may be express, where the defendant signed a jurisdiction agreement or forum selection clause agreeing to submit all disputes to the courts of a particular legal system for adjudication either or an exclusive or non-exclusive basis. Submission may also be implied where the defendant is served with a court process issued by a court other than where he resides or carries on business and the defendant enters an unconditional appearance and/or defends the case on the merit.
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 Leave to Issue and Serve out v Substituted Service - A Distinction with A Difference.pdf | 363.71 KB |