My work titled “On Whether It Is ‘Illegal’ To ‘Mobilize’ Court Bailiffs For Service Of Processes: A Suggestion For Better Justice Delivery (By Sylvester Udemezue)” I have just seen some other opinion, written (I suppose) as a riposte to my work. The riposte is titled ”Mobilization of Court Bailiffs is unknown to Law” and is written by one Douglas Ogbankwa, a respected Learned friend.
I start by reminding my Learned friend that my article on mobilization of bailiffs, was not about service of processes by email or SMS; I am among the early birds who had earlier broadcast on parts of social media the case of C.M.& E.S LTD v. PAZAN SERVICES NIG LTD (2020) 1 NWLR (Pt 1704) 70 @ 95* where the Supreme Court endorsed the practice of service of hearing notices by SMS. That’s not an issue in the present article; I addressed it elsewhere. The sole issue for determination in my article under consideration is;
whether “mobilization” of court bailiffs for service of court processes is illegal or an act of bribery or corruption, as some think?
I had answered this question in the negative and I had gone ahead to make recommendations which I suppose would help make service of court processes more effective, efficient, and seamless in order to strengthen and accelerate dispensation of justice.
It is interesting to note that Mr Douglas Ogbankwa agrees with one of the recommendations I made in my paper, although, unfortunately, Mr Ogbankwa failed to acknowledge that he was merely agreeing with me or repeating my original suggestion when he wrote: “I propose that the there should be precise costing of the actual price of service of processes and the money should be paid into a separate Account to be controlled by the Chief Bailiff of the Court under the supervision of the CR or DCR as the case may be.” This is not fair. If a lawyer is using or republishing someone else’ idea, it is only appropriate that the lawyer gives some credit to the author of the original idea.
Accordingly, instead of saying “I propose,” as if such was his idea, Mr Ogbankwa should have at least given me (udems) a little credit as the one who originally made that suggestion, which Mr Ogbankwa had obviously read before writing his riposte. It is not fair.
In the original article, published in 2018, and rebroadcast in 2020 , udems had written as follows:
“As a workable alternative solution, I respectfully suggest that assessment and collection of monies for service should be immediately taken away from the Registrars and Cashiers and handed over to the sheriff/bailiff section, on the following grounds:… When responsibility for collection of money for service is taken away from cashiers in this manner, the matter would become an issue entirely to be settled between the lawyer/litigant and the bailiff, in line with pre-determined standards, for a quicker service of processes…. All payments to be properly receipted — this is very important for accountability and transparency. Then there should be in place a transparent, verifiable standard for assessment, and the sum paid or collected should be subjected to periodic review, under the supervision of the Chief Judge or Chief Registrar or his duly authorized representatives, who shall ensure that the sheriff, chief bailiff or head of the bailiff section does not have any opportunity of abusing his power or of using this as an avenue to unduly exploit litigants or their lawyers. When money for service is collected directly by the sheriff or head of the bailiff section, the responsibility would fall squarely on him (the sheriff or head of the bailiff section) to promptly disburse the funds as is necessary for set purposes. I foresee the following possible positive implications or benefits in leaving responsibility of assessing and collecting money for service entirely in the hands of the sheriff or the bailiff section …”
May I now respectfully suggest that lawyers should always take out time to engage in diligent, broad-minded and disinterested research before coming out to write protest articles in the name of ripostes.
In addition to what I wrote in my article under consideration, on why I think “mobilization” of a Court bailiffs (without more) is not illegal, let us now see what the COURT OF APPEAL (not udems) thinks about litigants or their lawyers giving money to court bailiffs to facilitate service of court processes, in Nigeria.
It appears that even the COURT OF APPEAL agrees with me that it is neither illegal nor an act of bribery to give bailiff “mobilization” money without more. ▪️I refer to the case of UNITED BANK FOR AFRICA PLC V. UJOR (2001)10 NWLR (Pt.722) Ratio 3 at page 592, where the Court of Appeal declared as follows:
*”When a litigant files a document in the court registry and pays all the fees, it is not his duty to pay the bailiff any money for transport or otherwise so that he can effect service on the other party and if he gives the bailiff any money it is only to SPEEDY UP the service on the other party.”
Happily, Oliver Wendell Holmes, an American jurist, once said, “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” (see The Path of the Law by Oliver Wendell Holmes, Jr., 10 Harvard Law Review 457 (1897)).
It all boils down to my conclusion in the original work: “One thread that runs through the cited provisions of the Criminal Law of Lagos State, is that, for a public official (say, a bailiff of a court in Nigeria) to be guilty bribe-taking, the public official must have asked for, solicited, demanded, received or taken the said money, gratification, property or benefit for himself personally or for the personal benefit of some other person (public official) — that is, for his personal benefit or for the benefit of that other. Accordingly, I humbly submit, the offence is not committed where the Bailiff merely takes money from a lawyer or litigant solely as transport fare for the service of a court process, and not for the bailiff`s personal benefit nor for the benefit of any other public officer. It would however be an offence for the bailiff to take or ask to be paid anything more than a reasonable sum for transport fare. If for example the transport money to and from the venue of service of court process is N3,000 and the bailiff accepts a sum of N3,000 from a lawyer or litigant as mobilization, it would be difficult to say the bailiff has taken the money for the bailiff`s personal benefit or for the benefit of any other public officer. That is the relevant issue (the exact purpose for which the money is asked for by the bailiff or paid or paid by the lawyer) because this, to my mind, is what determines whether or not the bailiff and the affected lawyer/litigant could validly be accused of bribery. The peculiar circumstances of each particular case would however determine criminal responsibility in this respect.” (see https://www.google.com/amp/s/thenigerialawyer.com/on-whether-it-is-illegal-to-mobilize-court-bailiffs-for-service-of-processes-a-suggestion-for-better-justice-delivery-by-sylvester-udemezue/amp/)
Respectfully,
Sylvester Udemezue
(UDEMS)