ASSIGNMENT

QUESTIONS:
1. Principles that govern Service Outsi e !uris iction ". #eave o$ %ourt $or Service Outsi e !uris iction &. 'e(uire)ent $or a *rit o$ originating process to +e issue an serve outsi e ,uris iction -. E$$ect o$ non.service o$ processes

SUBMITTED BY:

A/E0O#E O#USO#A 1MAT'I% NO: 234#A02142"-5

COURSE TITLE:

%on$lict o$ #a*

LECTURER IN CHARGE:

1. Principles that govern Service Outsi e !uris iction Service of a claim is the procedure used to give legal notice to a defendant of a court's exercise of its jurisdiction over the defendant, enabling them to respond to the proceedings before the court. Service outside the jurisdiction is sometimes allowed under specific circumstances where there are certain connections between the case or the defendant and the forum. The rules for service outside jurisdiction differ to some extent from court to court. However there are some common factors which give rise to the capacity to make a service outside the jurisdiction. writ of summons for service out of the jurisdiction of one State in another State of the !ederation cannot be issued unless with the leave of "ourt under buja and #ano State $ules. The leave is not for the service of the writ but for its issuance. The service of processes being a matter under the %xclusive &egislative &ist of the "onstitution and under the Sheriffs and "ivil 'rocess ct ( a writ issued in one State can be served in another State as if it were issued there. )n other words, no leave is re*uired for service outside jurisdiction. +o State &aw can provide otherwise but the "ourt of issuance may grant leave to issue it before it can be served out of its jurisdiction if it is a re*uirement of the $ules. This is because issuance of processes is within the legislative powers of the State. ccordingly, a State can legislate on how its process meant to be served out of jurisdiction shall be issued. The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule ,.-, where . General Groun s

/01 claim is made for a remedy against a person domiciled within the jurisdiction. /21 claim is made for an injunction/3&1 ordering the defendant to do or refrain from doing an act within the jurisdiction. /-1 claim is made against a person /4the defendant51 on whom the claim form has been or will be served /otherwise than in reliance on this paragraph1 and . /a1 there is between the claimant and the defendant a real issue which it is reasonable for the court to try6 and /b1 the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim. /71 claim is an additional claim under 'art 28 and the person to be served is a necessary or proper party to the claim or additional claim.

!or %nglish "ourt in some cases where they has jurisdiction to resolve a dispute, one or more defendants may be located outside the court's jurisdiction. There are in essence three re*uirements which must be satisfied in order for permission to serve out to be granted by the %nglish "ourt. The applicant must9 0. establish a jurisdictional gateway6 2. satisfy a merits re*uirement6 and -. satisfy a forum conveniens re*uirement. :hen serving proceedings out of the jurisdiction, such proceedings need to be served in accordance with relevant bi( lateral or multi(lateral conventions or treaties relating to the service abroad of judicial documents or in accordance with the local laws of the receiving country /"'$ ,.781. The most

important inter(governmental agreements on service are the %; Service $egulation and the Hague "onvention on the Service broad of <udicial and %xtrajudicial =ocuments.

". #eave o$ %ourt $or Service Outsi e !uris iction leave of court is a legal term used to describe asking the court permission to do something that the court doesn5t normally allow according to its rules and procedures. %ither party can file a motion for leave of court, often called a motion for leave, when asking leave of court. common use of a motion for leave of court is to ask the court to file papers or take some action after the expiration date. The party filing the motion has to list a good reason for re*uesting the court to allow the action out of time, or after the expiration of the date in order for a court to grant the motion. The party who files the motion often asks the opposing party whether he or she will oppose the filing, and when there is no opposition, the party will indicate so in the motion. The grant by the court of something, which, without such grant it would have been unlawful to do. sking leave of court to do any act, is an implied admission of jurisdiction of the court, and, in those cases in which the objection to the jurisdiction must be taken, if at all, by plea to the jurisdiction, and it can be taken in no other way, the court by such asking leave becomes fully vested with the jurisdiction. >ac. b. batement, 6 >ac. b. 'leas, ?c., % 26 &awes, 'l. @06 , 'ick. -@0. >ut such admission cannot aid the jurisdiction except in such cases. The statute of 7 nn. c. 0,, s. 7, provides that it shall be lawful for any defendant, or tenant, in any action or suit, or for any

plaintiff in replevin, in any court of record, with leave of the court, to plead as many several matters thereto, as he shall think necessary for his defence. The principles of this statute have been adopted by most of the states of the ;nion. :hen the defendant, in pursuance of this statute, pleads more than one plea in bar, to one and the same demand, or thing, all of the pleas, except the first, should purport to be pleaded with leave of the court. >ut the omission is not error nor cause of demurrer. &awes, 'l. 0-26 2 "hit. 'l. 7206 Story, 'l. A2, A,6 3ould on 'l. c. B, Sec. 206 ndr. 08@6 - +. H. $ep. C2-.

:hen a court allows the action, then the party can go forward with an action by leave of court, or with the court5s permission. )t5s often within the court5s discretion to make that decision, but the court usually has to take into account any hardship or prejudice that the other party would suffer as a result and the reason for the motion for leave of court. !or example, a court may not grant a lawyer for the defense to file a motion late because he forgot the date. court may consider a motion if the lawyer submitted an electronic version of a document but encountered technical difficulties in the process. The other party may oppose a motion and argue that the court should not grant the motion because to do so would somehow prejudice that party5s case or give the motioning party an unfair advantage. The court signs a motion for leave of court order or similar document when it makes a decision. The court order is often prepared prior to a decision and submitted by the party filing the motion, along with the original motion. )f the court rules in the party5s favor, it often signs the court order that was submitted.

There are a few cases in which the judge is compelled to provide a written opinion for why she grants or denies a motion, but judges often provide no opinion. Some judges make comments about the motion during a trial proceeding about the motion for leave of court. %ither party can ask the court to reconsider its decision on a motion by filing a motion to reconsider. The applicant must show a serious issue to be tried in respect of each cause or cause of action in respect of which he asks for permission... The court has a general discretion to decide whether or not the case is a proper one for service out of the jurisdiction. )n particular it must consider the *uestion of forum convenience namely, in which forum the case could most suitably be tried for the intent of the parties and for the end of justice.

-. 'e(uire)ent $or a *rit o$ originating process to +e issue an serve outsi e ,uris iction. Service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the "ourt wheneverD /a1 the whole subject matter of the action is land situate within the jurisdiction /with or without rents or profits1, or the perpetuation of testimony relating to land within the jurisdiction6 or /b1 any act, deed, will, contract, obligation, or liability affecting land or hereditaments situate within the jurisdiction, is sought to be construed, rectified, set aside, or enforced in the action, or

/c1 any relief is sought against any person domiciled or ordinarily resident within the jurisdiction6 or /d1 the action is for the administration of the personal estate of any deceased person, who, at the time of his death, was domiciled within the jurisdiction, or for the execution /as to property situate within the jurisdiction1 of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of )reland6 or /e1 the action is one brought to enforce, rescind, dissolve, annul, or otherwise affect a contract, or to recover damages or other relief for or in respect of the breach of a contract /i1 made within the jurisdiction6 or /ii1 made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction6 or /iii1 by its terms or by implication to be governed by )rish &aw, or is one brought in respect of a breach committed within the jurisdiction of a contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction6 or

/f1 the action is founded on a tort committed within the jurisdiction6 or /g1 any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to

be prevented or removed, whether damages are or are not also sought in respect thereof6 or /h1 any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction6 or /i1 the proceeding relates to an infant or person of unsound mind domiciled in, or a citiEen of )reland6 or /j1 the proceeding is an interpleader proceeding relating to property within the jurisdiction6 or /k1 the proceeding relates to an arbitration held or to be held within the jurisdiction6 or /l1 the proceeding relates to the enforcement of an award under 'art ))) of the rbitration ct, 0@B8 or of the pecuniary obligations imposed by an award under 'art )F of the rbitration ct, 0@B86 or /m1 the proceeding is by a mortgagee or mortgagor in relation to a mortgage of personal property situate within the jurisdiction and seeks relief of the nature or kind following, that is to say sale, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee6 but does not seek /unless and except so far as permissible under sub(head /e1 of this rule1 any personal judgement or order for payment of any moneys due under the mortgage. /)n this sub(head the expression Gpersonal property situate within the jurisdictionG means personal property which, on the death of an owner thereof intestate, would form the subject matter for the grant of letters of administration to his estate out of the 'robate Hffice6 the expression GmortgageG means a

mortgage charge or lien of any description6 the expression GmortgageeG means a party for the time being entitled to or interested in a mortgage6 and the expression GmortgagorG means a party for the time being entitled to or interested in property subject to a mortgage16 or /n1 the proceeding is brought under the provisions relating to carriage by air of the ir(+avigation and Transport ct, 0@-,, or /o1 the proceeding relates to a ship registered or re*uired to be registered under the Iercantile Iarine ct, 0@CC, or any share or interest therein6 or /p1 the proceeding relates to the ownership of a trade mark registered or sought to be registered in the )ndustrial and "ommercial 'roperty $egistration Hffice. 2. :here leave is asked from the "ourt to serve a summons or notice thereof under rule 0, the "ourt to whom such application shall be made shall have regard to the amount or value of the claim or property affected and to the comparative cost and convenience of proceedings in )reland, or in the place of the defendant's residence, and particularly in cases of small demands where the defendant is resident in %ngland, Scotland, or +orthern )reland, to the powers and jurisdiction, under the statutes establishing or regulating them, or of the courts of limited or local jurisdiction in %ngland, Scotland or +orthern )reland respectively. -. /01 The parties to any contract may agreeD /a1 that the "ourt shall have jurisdiction to entertain any proceeding in respect of such contract, and also, or in the alternative6

/b1 that service of any summons in any such proceeding may be effected at any place within or out of the jurisdiction on any party or on any person on behalf of any party or in any manner specified or indicated in such contract. /21 )n any such case, notwithstanding anything contained in these $ules, service of any such summons at the place /if any1 or on the party or on the person /if any1 or in the manner /if any1 specified or indicated in the contract shall be deemed to be good and effective service wherever the parties are resident. )f no place, or mode, or person be so specified or indicated, service out of the jurisdiction of such summons may be ordered. 7. )n probate actions service out of the jurisdiction of a summons or notice of a summons may be allowed by the "ourt. C. %very application for leave to serve a summons or notice of a summons on a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a citiEen of )reland or not, and where leave is asked to serve a summons or notice thereof under rule 0 stating the particulars necessary for enabling the "ourt to exercise a due discretion in the manner in rule 2 specified6 and no leave shall be granted unless it shall be made sufficiently to appear to the "ourt that the case is a proper one for service out of the jurisdiction under this Hrder. ,. Such application shall be made before the issue of the summons, and the affidavit to ground the same shall, when no proceeding is pending, be entitled as between the parties to

the intended proceeding and G)n the Iatter of the "ourts of <ustice cts, 0@27 to 0@,0, and the "ourts /Supplemental 'rovisions1 cts, 0@,0 to 0@B0.G A. ny order giving leave to effect service or give notice out of the jurisdiction shall limit a time after such service or notice, within which the person to be served is to enter an appearance, such time to depend on the place or country where or within which the summons is to be served, or the notice given, and such leave may be given by the same order by which leave is given to issue the summons for service out of the jurisdiction or of which notice is to be given out of the jurisdiction. B. :here the defendant is not, or is not known or believed to be, a citiEen of )reland, notice of the summons, and not the summons itself, shall be served upon him. @. Subject to the provisions of this Hrder, notice in lieu of service shall be given in the manner in which summonses are served. 08. :henever an order shall be made giving leave to serve a summons or notice thereof on a defendant out of the jurisdiction, a copy of such order shall be served along with the summons or notice as the case may be. 00. This Hrder shall apply, so far as practicable and applicable, to proceedings whether instituted by originating summons or in some other manner, and to any order or notice in any such proceedings. :here the person to be served is not a citiEen of )reland, a copy of the originating document /other than an originating summons1 or of the order or notice shall be served instead of the original, together with an intimation in writing that /as the case may be1 a proceeding or process in the form of the copy has been issued or otherwise launched or an order in the terms of the copy made.

02. +othing herein contained shall in any way prejudice or affect any practice or power of the "ourt under which when lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the "ourt may, without affecting to exercise jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing or otherwise intervening. -. E$$ect o$ non.service o$ processes +on(service a court process is not an irregularity but a fundamental defect that goes to the exercise of the jurisdiction of the court. 3enerally, only the party not served can object to the proceedings thereon. >ut a party who can prove that he suffered a detriment due to the non ( service of the process may also validly object. Service of process is vital under due process of law. See 3inda v. #itta /0@@@1 02 +:&$ 't.,2@ at 20. !ailure to give notice of proceedings to an opposing party in a case where service of process is re*uired is a fundamental omission which renders such proceeding void because the court has no jurisdiction to entertain it. )t is the service of the process of the court on the defendant that confers on the court the competence and the jurisdiction to adjudicate on the matter. )t is clear that due service of the process of the court is a condition precedent to the hearing of the suit. Therefore if there is a failure to serve the process, where the service of the process is re*uired, the person affected by the order, but not served with process, is, as mentioned above entitled ex debito

justitiae to have the order set aside as a nullity. See I> =)+;<; FS %J;# /0@@71 B +:&$ /pt. -,71 C.G The "ourt stressed the critical importance of service of initiating process as an essential and indispensable condition for the court to assume jurisdiction on the matter. !ailure to comply with that crucial condition renders the entire proceedings and the judgment entered and all subse*uent proceedings absolutely null and void See Tubonemi v. Dikibo (2006) 5 NWR pt.97 p!"e 565. #non$e v. %&uk'um! (2005) (7 NW)R pt.9*6 p!"e * 9. +,i!t! v. -.eko (2005) (( NW)R pt. 9*6 p!"e * 9. #n!,eko v. /0N 12c. (2005) NW)R pt 9(6 p!"e 0. 3$o"u v. Nn!m!ni (200 ) (5 NW)R pt. 495 p!"e (* . #tob!imere v. 3kpore&e (200 ) ( NW)R pt. 49 p!"e 59(. 5!rk v. -ke (200 ) 5 NW)R pt. 465 p!"e 5 . Wem! 0!nk Ni"eri! )t,. v. #,u2!.! (2000) * S% 4*. 3n$ .u,"ment b!se, on ! process6 '&ic& is not serve, is 2i!b2e to be set !si,e. See 7$po2ite v. -"&!revb! ((994) (( NW)R pt.575 p!"e 594.8 1er 3boki6 9.%.3. (1p.24:296 1!r!s.;:D) 3enerally, omission to serve re*uired notice in a deserving case would be fatal to the suit. The court will be right to decline the exercise of jurisdiction as it will be futile to exercise same where there is none. :here the mandatory notice was not given as re*uired, the proper order to make is one striking out the suit. The notice is not only statutory6 it is mandatory. )t cannot be ignored. !ailure to serve same renders the action ineffective and liable to be struck out instantly. $efer to Hbeta v. Hkpe /0@@,1 @ +:&$ /'t.7A-1 7806 .(3. !ed v. 3uardian +ews'apers &td /0@@@1 @ +:&$ /'t.,0B1 0BA at p.282.G 'er ! >)K), <.". . /'p.07(0C, 'aras.3(>1 'e$erences

0. "asad, $obert ". 0@BB. %!22!"&!n<s Tri!2 1r!ctice Series= 9uris,iction !n, ;orum Se2ection. =eerfield, )ll.9 "allaghan. 2. 0@B-. 9uris,iction in %ivi2 3ctions. >oston9 :arren, 3orham and &amont. -. Iyers, $osemary %. 0@B7. G'rocedural &aw.G Ne' >ork /niversit$ )!' Revie' C@. 7. $osenthal, $obert %. 288-. G!rom Jippo to &S9 <urisdiction Hver )' Fiolations on the )nternet.G 9ourn!2 of +nternet )!' / pril1. C. Shreve, 3ene $., and 'eter $aven(Hansen. /n,erst!n,in" %ivi2 1roce,ure. +ew Kork9 >ender. 0@B@.

,. Tunick, =avid ". 0@@,. G;p "lose and 'ersonal9 "lose(up &ook at 'ersonal <urisdiction.G %rei"&ton )!' Revie' 2@. A. :ildasin, Iark H., and $ichard . <ones. 2880. G)nternet <urisdiction.G 9ourn!2 of +nternet )!' /=ecember1. B. Service !n, -?ecution of 1rocess 3ct 0@@2 /"th1, ss 0-.0,, 28.20. @. The +ational &aw $eview9 The "ontinuing $elevance of 'ersonal Service of 'rocess "ivil 'ractice &aw and $ules /"'&$1 L -8B and =omestic $elations &aw /=$&1 L 2-2, see +K ssembly website. $etrieved September 27, 288B.

08. +.K.