Publications

Hallblack Law Firm

Leave of court is not required to serve a Petition by post under the Matrimonial Causes Act

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

  1. Personally under Order 6 Rule 1(a)
  2. 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:

  1. Personal service has failed
  2. Service by post has failed
  3. 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-+2348032163006

Hallblack Law Firm

Sports Law- Understanding the rules on the participation of Neutral Athletes in international sporting events- Anthony Atata

In March 2021 the World Athletics reinstated the Authorised Neutral Athlete (ANA) programme. On the 30th of April, it announced the approval of the applications of four Russian athletes to compete in international competition as neutral athletes in 2021 under Rule 3.2 of the Eligibility Rules. The four Russians namely  Mariya Lasitskene (High Jump), Anzhelika Sidorova (Pole Vault),Ilia Ivaniuk (High Jump), Aksana Gataullina (Pole Vault) accordingly met the exceptional eligibility criteria for 2021.

These players will be able to compete in International events while the Russian national federation (RusAF) remains suspended.

World Athletics, suspended RusAF’s membership in November 2015, following a wave of anti-doping rules violations. However in 2017 it began to allow clean athletes from Russia to participate in international tournaments under the neutral status or the Authorized Neutral Athlete (ANA) until the membership of the RusAF is reinstated. 

Under rule 3.1.1 of the World Athletics eligibility rules, any athlete whose member Federation is currently suspended by World Athletics is ineligible for International and domestic competitions.

However rule 3.2 provides that upon application, the council  may exceptionally grant eligibility for some or all International competitions ,under conditions defined by the council to an athlete whose member Federation is currently suspended by World Athletics, if the athlete is able to demonstrate to the comfortable satisfaction of the Council that: the suspension of the Member Federation was not due in any way to its failure to protect and promote clean athletes, fair play, and the integrity and authenticity of the sport; or 3.2.2 if the suspension of the Member Federation was due in any way to its failure to put in place adequate systems to protect and promote clean athletes, fair play, and the integrity and authenticity of the sport. 

Continue reading “Sports Law- Understanding the rules on the participation of Neutral Athletes in international sporting events- Anthony Atata”

Understanding Anti-Doping rule Violations under the FIFA Anti-Doping regulation 2021

What constitutes Anti-Doping rule Violations under the FIFA Anti-Doping regulation 2021?

The definition of anti-doping violations under the FIFA anti-doping regulation 2021 is largely extended. The regulation simply defines doping as the occurrence of one or more of the anti-doping rule violations set forth in the regulation.

Continue reading “Understanding Anti-Doping rule Violations under the FIFA Anti-Doping regulation 2021”

Hallblack Law Firm

A Short Guide on how to apply for a visa to join a partner in the UK-Anthony- Atata

INTRODUCTION:

The United Kingdom has introduced the FAMILY VISA which enables applicants to join and live with their spouse or partner, fiancé, fiancée or proposed civil partner, child, parent or relative who’ll provide long-term care for the applicant. This Visa is available to both applicants applying from outside the UK and those who are already in the UK on a different visa. In the second case, they can apply to switch their visa.

Continue reading “A Short Guide on how to apply for a visa to join a partner in the UK-Anthony- Atata”

What Nigerian Courts can take from UK Corona Virus Act

The Corona Virus Act 2020 received Royal Assent on the 25th of March 2020.The Act among other things provided for an amendment on how proceedings should be conducted in court.

Basically, it made provisions for parties and witnesses in court proceedings to appear by live link rather than in person.

Continue reading “What Nigerian Courts can take from UK Corona Virus Act”

Our notice to clients on Covid-19

Covid-19 seems to be closing in faster than we anticipated. Death toll around the world has gone up and our country Nigeria has recorded the first casualty.
We are committed in our Law firm to doing our part to flatten the curve and break the chain of the scourge .

Continue reading “Our notice to clients on Covid-19”

Hallblack Law Firm

FAMILY LAW: The Two year rule in Matrimonial Proceedings : Refreshing your memory on the exceptions-ANTHONY ATATA

Section 30 of the Matrimonial Causes Act provides as a general rule that proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by leave of the court.

In an application for leave under this section, the applicant must show the court that

Continue reading “FAMILY LAW: The Two year rule in Matrimonial Proceedings : Refreshing your memory on the exceptions-ANTHONY ATATA”

Hallblack Law Firm

FAMILY LAW: If you want a divorce from a Nigerian court,you must prove any of these

For a court in Nigeria to grant divorce to a party to matrimonial proceeding, it must be on the ground that the marriage has broken down irretrievably.Anthony Atata writes for Courtroom Mail(This is written in plain language for the benefit of ALL readers of courtroom mail)

Continue reading “FAMILY LAW: If you want a divorce from a Nigerian court,you must prove any of these”