Substituted Service Of Court Processes By Social Media Or Electronic Means (Case Study Of Mohammad Awwaldanlami, Esq. V Governor Of Taraba State & 24 Ors)

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Introduction
This piece is a quick critique of the ruling of his lordship, Hon Justice E. A. Garba of the High Court of Taraba State (the “Court”) delivered on 26 July 2018 in Mohammad Awwaldanlami, Esq. v Governor of Taraba State & 24 Ors (Suit No: TRST/11/2018, Motion No: TRST/67M/18). In the ruling, the Court ordered that “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 posting and sharing on social media.”
Critique
Proper service of court processes is fundamental in our adjectival law. It is a concept rooted in the immortal legal doctrine of fair hearing and not a mere technical legal requirement. Non-service of a court process where service is necessary goes to the root of a case (Societe General Bank (Nig) Ltd v John Adebayo Adewunmi (2003) 10 NWLR (Pt. 826) 539). As a general rule, service of court processes is to be made personally on the named party in the suit (International Committee Of The Red Cross v Olabode (2009) LPELR-8764(CA)). However, when attempts at personal service prove abortive, the leave of court may be sought to serve the court processes by other (or substituted) means. Interestingly, recent rules of courts appear to accommodate and incorporate modern electronic methods of communication as substituted means (See for example, Order 6, rule 4(1)(e) of the Taraba State High Court (Civil procedure Rules) 2011.).
The purpose of service of court processes is to ensure notice on the other party and the guiding consideration for a proposed method of (substituted) service is that it should in all reasonable probability, if not certainty, be effective to bring knowledge of the court processes to the concerned party (Porter v Freudenberg [1915] 1 KB 857 at 889).  In Egbagbe v Ishaku & anor. (2006) LPELR-11656(CA), the Court of Appeal held that ”Service of process whether personal or substituted is to give notice to the other party on whom notice is to be effected so that he may be aware of and be able to resist if he may that which is sought against him.”
Here, then, is our concern with the ruling of the Court in Mohammad Awwaldanlami, Esq.: directing service by ‘posting and sharing on social media’ without more may not be effective to give notice of the court processes to the concerned parties. This is because social media is generic. It broadly refers to “website and applications that enable users to create and share content or to participate in social networking” (Oxford Dictionary of Social Media, 2016). So, social media embraces popular platforms like Whatsapp, Facebook, Instagram but also includes lesser-known applications like vimeo, foursquare, flickr etc. One challenge the ruling creates is ambiguity in determining the mode and extent of the social media sharing. Sharing on 2go or flickr, for example, is social media sharing but the likelihood of reaching the party sought to be served is indeterminate.
Hence, we take the view that a court granting an order for substituted service by social media should specify the particular medium (for instance, Whatsapp, Facebook, and Twitter). Because the ruling also mentioned ‘posting…on social media’, we think that it should in that circumstance go further to specify that the handle(s) of the concerned party be attached to the post by tagging so that it gives the party being served knowledge of the processes.
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 specific medium or media used for service, (b) the username or Id of the party served on the medium, (c) the service of the court processes on the concerned parties, and (d) the fact the process served has been received/read by the party served – nowadays, it’s relatively easy to determine if/when a person receives/reads a message on WhatsApp, Facebook and a few other social media platforms.  This direction of an affidavit of service is because, as the Court of Appeal held in Umar & anor v Okeke (2016) LPELR-40258(CA); “[F]or a court process to be taken as having been served on a party, there must be an affidavit of service shown to the court with its satisfaction. Where there is no affidavit of service in law, proof of service of a document on a party cannot be assumed.”
The foregoing approach would better assure that the parties to be served have notice of the court processes concerning them in fulfillment of the purpose of service of court processes as enunciated in Egbagbe v Ishaku & anor. (supra).
Our suggestions above are also consistent with developments in this area of the law in other jurisdictions. In India, the High Court of Delhi in Tata Sons Limited & Ors v John Doe(S) & Ors [CS (COMM) 1601/2016] ordered that a defendant in the suit be served with the court’s summons by Text message, Whatsapp, and email. The following jurisdictions have allowed substituted service by Facebook: Australia (MKM Capital Pty Ltd v Corbo & Poyser (Supreme Court (ACT), 12 December 2008 (unreported)); Canada (Burke v John Doe 2013 BCSC 964); England (AKO Capital LLP v TFS Derivatives, February 2012 (unreported)); New Zealand (Axe Market Gardens v Axe (High Court (New Zealand), 16 March 2009, CIV: 2008-845-2676); and South Africa (CMC Woodworking Machinery (Pty) Ltd v Pieter Odendall Kitchens [2012] ZAKZDHC 44).
In Singapore, the High Court of Singapore in David Ian Andrew Storey v. Planet Arkadia Pte Ltd & 2 others [2016] SGHCR 7 granted an application for substituted service “through email, Skype, Facebook and an Internet Message Board”. In its decision, the Singaporean court held that in granting electronic means of substituted service, the court should amongst others require (a) proof that the electronic platform in question is used by the person to be served, and (b) Proof that the electronic platform in question was recently used by the person to be served. In these decisions, the courts did not simply order substituted service by social media but rather specified particular medium for substituted service, having received evidence that the platform or medium is used by the party to be served.
Conclusion
Whilst the ruling of the Court in Mohammad Awwaldanlami, Esq. is a watershed on substituted service of court processes in Nigeria and therefore a very welcome development in our corpus juris, we contend that the Court should have indicated specific social medium (for instance, Whatsapp, Facebook, and Twitter) with a direction for tagging (where necessary) because ‘positing and sharing on social media’ is broad, generic and ambiguous’.  The Court should have also required, as a precondition for granting the order, evidence that the parties to be served are currently in use of the specific medium and thereafter direct that an affidavit of service should be filed showing (a) the specific medium used for service, (b) the username or Id of the parties serviced on the medium used, (c) the service of the court processes on them, and (d) the fact that the process served has been received/ read by the party served. This approach would better assure that the parties to be served have notice of the court processes concerning them in fulfillment of the purpose of service of court processes. The ruling also underscores the need for practitioners to understand technology and appreciate its workings to effectively develop or evolve legal principles around it.
Abdullateef Olasubomi Abdul is an Associate in Ikeyi & Arifayan and an Associate Fellow of the Society of Advanced Legal Studies (SALS), London.