You got served!

…Substituted service of court processes through social media: looking beyond covid-19

Substituted service orders by social media are becoming increasingly common. These orders reflect the reality of the “new normal” and today’s methods of communication, which are increasingly electronic. Many of such orders are not reported and are based on affidavit evidence which confirms the facts relating to the defendant’s social media or email accounts. By their nature, applications for these orders are rarely opposed. As a result, the reported jurisprudence does not paint a complete picture of the frequency with which courts permit service by substituted means through these new and novel means. Social media platforms such as Facebook, Twitter, Instagram, Whatsapp and Linkedin are likely more frequently the subject of substituted service orders than the case law would otherwise suggest.

Functional utility of substituted service

As a general rule, a party should be personally made aware of claims against him/her within a timely manner. Substituted service is the exception rather than the rule. The exception applies only where the plaintiff has shown that reasonable efforts have been made to serve a defendant personally and that it will be impractical to serve by face-to-face or hand-delivered means. Impractical is not a synonym for inconvenient.

Without dabbling into the propriety or otherwise of substituted service on certain fictional entities, the essence of substituted service is to convey to the relevant party the notice of the pending case in which he/she is involved and the date he/she is required to appear in court, since it is difficult to serve through formal/ personal means. The rules relating to substituted service are designed to permit a certain degree of discretion and flexibility. However, a judge is required to consider the rights of all parties, not simply the applicant, in deciding whether or not to grant the relief sought. This is underscored by the theme that our legal system is premised on the concept of ‘notice’. Very often, we begin each application with ‘motion on notice’, which drives this point home. Thus, an applicant seeking an order for substituted service must explain why he/she believes that the address proposed for service is a current and valid one.

Ultimately, the question the courts will ask is whether the party seeking to effect service by substituted means has shown that the method proposed will have some likelihood or a reasonable possibility of bringing the document to the other party’s attention.

What do the Rules say?

The High Court of Lagos (Civil Procedure) Rules 2019 provides for service of an originating process by substituted means. Specifically, Order 9 Rule 5 (1) states:

“Where personal service of an Originating Process is required by this Rules and a Judge is satisfied that prompt personal service cannot be effected, the Judge may upon application by the Claimant make such order for substituted as may seem just, including service by electronic mails.”

Paragraph 11 of the Lagos State draft Practice Directions on remote hearings further provide that service of court processes may be effected by email, Whatsapp or as otherwise directed by the court. The corresponding provision in the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018 is worded differently and contemplates service through social media. Order 7 Rule 11 (2) (e) (i) states:

“Every application to the court for substituted or other service, or for the substitution of notice for service shall be supported by an affidavit setting forth the grounds upon which the application is made.

Where it appears to the court (either after or without an attempt at service) that for any reason prompt service cannot be conveniently effected, the court may order that service be effected either by:

Email or any other scientific device now know or later developed and courier service or any other means convenient to the court.”

By far, the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (“NIC Rules”) contains elaborate and expansive provisions for service of court processes through channels other than formal/personal means. For example, a considerable portion of Order 7 of the NIC Rules is

dedicated to service of processes by electronic means. However, relevant to the extant discourse is the provision of Order 7 Rule 9 which states:

“where prompt service of notice or documents authorized to be served by these Rules cannot be effected in any manner provided in this Rule, a party may by motion exparte move the Court for an order of substituted service to be effected by way of posting, publication in the media or any other means possible as the Court may deem effect and just.”

To be sure, some of the ways of effecting service under the NIC Rules include - through email address(es) or any electronic mailing device, as an attachment to an electronic message via the email address provided and/or any other electronic communication and messaging platform.

Unpacking the practical issues

On July 26, 2018, the High Court of Taraba State in Suit No. TRST/11/2018 - Mohammad Awwaldanlami, Esq v. Governor of Taraba State & 24 Ors ordered the service of the originating process and other accompanying processes on the 3rd to 25th Defendants by ‘posting and sharing on social media’. Whilst the ruling is commendable and represents a departure from the norm, the order lacks specificity as social media is an amorphous term encompassing many interactive online platforms. With respect, the court (with the guidance of counsel) should have gone further to specify the particular social media platforms where the processes should be served.

It is fundamental that a court in making an order should be conscious and wary of the nature of an order made in order to avoid a diminution of the vast powers of the court, the image of the court and the exposure of its authority to ridicule. Therefore, orders of court must be devoid of vagueness, it must be clear and explicit on what it contains and the parties it will affect.

Another important issue in an application for substituted service is how to satisfy the court that the social media platforms identified by an applicant is in active use by the defendant. Active use will include status updates, picture uploads or liking of other posts. If the account is private, recent profile picture changes should suffice. Put differently, can it be reasonably expected that the court processes will come to the attention of a party if they are notified about them on the identified platforms? It is suggested that where an applicant has not satisfied this requirement in the affidavit, the court should refuse to exercise its discretion as any order made may turn out to be in vain.

In the context of Facebook, Canadian courts have considered the following factors which are by no means exhaustive:

1. whether the Facebook account has the same name as the person sought to be served;

2. whether the Facebook name is a common name;

3. whether the Facebook profile includes photographs, indicating that the account holder and person sought to be served are the same; and

4. whether recent private messages were exchanged with the Facebook account holder.

The onus is on the applicant to show on proper evidence that the method proposed will have some likelihood or a reasonably possibility of bringing the proceedings to the party’s attention. This test is an important one as it brings an air of reality to the process. Unless the court is satisfied that there is a reasonable possibility that notice of a proceeding will reach a defendant when an application permitting substituted service is granted, the point of the entire exercise is lost.

In an Australian decision, the court refused substituted service on the defendant’s Facebook page preferring instead, service to a PO Box where the defendant had his credit card statements sent. In its reasoning, the court rationalized that anyone could create a false Facebook account and, in this case, some of the information on the Facebook page did not satisfy the court that the defendant had created the Facebook account.

In certain cases, and for privacy reasons, a Canadian court ordered substituted service through the private message feature on the Facebook account of the person to be served, to avoid unnecessary public exposure or embarrassment. This may be explored by applicants and the court in sensitive and private proceedings such as matrimonial causes and incidental proceedings arising thereunder such as the custody of children.

On the African continent, the South African court has recognised that while Facebook is primarily used as a social network, it could be used for other useful functions such as tracking individuals as well as to obtain essential information. The court eventually ordered substituted service through a personal Facebook message and directed the applicant to publish a notice in that regard in a local newspaper should the defendant lack access to electronic communication devices.

Although Facebook continues to be the most common form of social media, there have been successful rulings by the courts for substituted service using Whatsapp, Twitter, Linkedin and Instagram. In any event, the courts’ openness to allow new technologies to be used to achieve service is promising and signals a shift in how lawyers interact with technology.

Recent trends in Nigeria

Nigerian courts have equally embraced the innovation that technology brings in the area of substituted service of court processes during this pandemic. On March 12, 2020, the High Court of Lagos State in Suit No. LD/ 865/ 2011 – Vizada Networks v. Itclick Networx Limited & Ors ordered the substituted service of a garnishee order nisi on the judgment debtors via email, Twitter, Linkedin and Facebook. Consequently, service was carried out on the judgment debtors by email (in the case of the 1st and 2nd judgment debtors), and on Twitter, Linkedin and Facebook (in the case of the 3rd and 4th judgment debtors). Counsel to the judgment creditor effected service on Twitter through the law firm’s official Twitter account.

Ultimately, in order for a court to rely on social media as a mechanism of effective service, once an applicant has convinced the court that substituted service is appropriate, they must then convince the court that the account holder is the same person as the person sought to be served, and if it is, that the account has been used recently, which the court will accept as evidence that the account has not been abandoned.

Epilogue

Just as service by email took time to become accepted by the courts and the legal community, so will service by social media. In today’s society, nearly everyone uses some form of social media application. These applications may provide a useful option for service when the traditional methods are unsuccessful especially in this period of lockdowns and social distancing. As technology continues to develop, it is important that lawyers are flexible and adaptive in order to best serve their clients.