Introduction
In proceedings for recovery of premises, service of statutory notices and court processes is a critical requirement. Section 28 of the Recovery of Premises Act addresses situations where personal service becomes impracticable and provides a legally recognized alternative.
The Exact Provision
Section 28 of the Recovery of Premises Act provides as follows:
“Service of a notice of determination of a tenancy or of a notice to quit or any summons, warrant or other process shall be effected in accordance with the provisions of the law for the time being in force relating to the service of the civil process of magistrates’ courts and if the defendant cannot be found, and his place of dwelling is either not be known, or admission thereto cannot be obtained for serving the process, a copy of the process shall be posted on some conspicuous part of the premises sought to be recovered, and the posting shall be deemed good service on the defendant.”
How Section 28 Fits into Tenancy Law in Nigeria
Section 28 does not operate in isolation. It forms part of a broader legal framework governing tenancy, recovery of premises, and the prohibition of self-help.
For a broader perspective on the legal framework, see: Legal Principles Governing Tenancy, Recovery of Premises, and Self-Help in Nigeria
Valid Notices Come Before Service
Before service even becomes an issue, the notice itself must be valid.
Many tenancy disputes fail because the notice to quit is defective in form, duration, or content. You can explore this post: When is a Notice to Quit Valid in Nigeria? Key Legal Principles Every Landlord and Tenant Must Know.
What Happens When a Tenant Cannot Be Found?
Where a tenant deliberately avoids service or cannot be located, Section 28 allows substituted service by posting the process on a conspicuous part of the premises.
This provision is particularly important in practice because tenants who anticipate eviction sometimes evade service deliberately. The law prevents such tactics from frustrating the administration of justice.
However, tenants should know that ignoring such notices can be risky. If you have received a quit notice or found one posted on your property, this guide will help you respond appropriately: Tenant’s Guide to Handling a Quit Notice from Your Landlord.
Protection of Tenants Despite Section 28
Although the law permits substituted service, tenants are still protected against unlawful eviction and abuse of process.
For a deeper look at tenant rights and available remedies, see: Legal Protections and Remedies For Nigerian Tenants
From Service to Recovery of Possession
Service is only one step in the recovery process. After proper service, the landlord must still follow due process through the courts before recovering possession.
A simplified step-by-step guide is available here: How to Recover Your Property in Nigeria: A Simple Guide
Avoiding Procedural Mistakes in Tenancy Disputes
While disputes between landlords and tenants are common, the real issue in many cases is not the dispute itself but failure to follow proper legal procedure.
In recovery of premises matters, courts are less concerned with who is right at the early stage and more concerned with whether due process has been followed, particularly:
- Whether the correct notices were issued
- Whether the notices were properly served
- Whether statutory timelines were complied with
This is where Section 28 becomes crucial. A landlord may have a valid claim but still lose the case simply because service was defective.
If you want a broader overview of how tenancy disputes arise and are typically handled in Nigeria, see: How to Resolve Landlord-Tenant Disputes in Nigeria
Practical Implications for Landlords
For landlords or their legal representatives, this provision offers a safeguard:
- You are not left helpless if the tenant avoids service.
- You can proceed with recovery steps once you comply with the prescribed method.
- However, strict compliance is crucial, especially:
- Ensuring the posting is done visibly (e.g., entrance door, gate, or wall)
- Proper documentation (photographs, witness statements etc.)
Failure to prove that service was properly effected, even under substituted means, may render the entire proceedings defective.
Practical Implications for Tenants
Tenants should also be aware:
- Avoiding service does not stop legal proceedings.
- Once a notice or process is properly posted in line with the law, it is treated as if you were personally served.
- Ignoring such notices may lead to default judgments or eviction orders.
Interaction with Court Rules
While Section 28 provides the statutory basis, it operates alongside:
- Rules of court governing service of processes
- Judicial discretion in granting substituted service (where applicable in higher courts)
Legal practitioners must therefore ensure compliance not just with the statute, but also with procedural rules in the relevant jurisdiction.
Common Pitfalls to Avoid
- Posting the notice in a location that is not visible or easily accessible
- Failing to document the act of posting
- Proceeding without first attempting personal service where required
- Using the wrong type of notice for the tenancy
Each of these can be fatal to a landlord’s case.
Final Thoughts
Service is not merely procedural; it is foundational. Courts are strict about it because it goes to the root of fair hearing. Whether acting for a landlord or tenant, attention to detail in service can determine the trajectory of the entire matter.
Section 28 ensures that tenants cannot frustrate legal proceedings by evading service, while still preserving procedural fairness. For landlords, it provides a practical solution. For tenants, it serves as a reminder that legal notices should never be ignored.
Disclaimer
This article is provided for general informational purposes only and does not constitute legal advice. It does not create a solicitor-client relationship. Legal outcomes depend on the specific facts of each case and the applicable laws in the relevant jurisdiction. You should consult a qualified legal practitioner for advice tailored to your situation.
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