- Flynote
- CL|Writ|Service of Process
In The Supreme Court of Nigeria
On Friday, the 3rd day of February 1989
Suit No 165/1986
Between
Michael Kolawole ....... Appellant
And
Pezzani Alberto ....... Respondent
Judgement of the Court
Delivered by
Ebenezer Babasanya Craig. J.S.C.
There is no Respondent on this appeal and this is because the appeal emanated from an ex-parte Motion in which the appellant h('id prayed the High Court, Lagos State for an order to:
1. Extend the time for the renewal of the Writ of Summons
2. Renew the said Writ for a period of six months.
The Writ itself was taken out on 14th January, 1981 in respect of a cause of action which arose on 15th November. 1976.
Under the ordinary Statute of Limitation, the action would have become statute-barred in another ten months i.e. on 14th November, 1981, but by virtue of section 9 of the Limitation Law, Cap.70 of the Laws of Lagos State, which stipulate three years for such suits, the action had become statute-barred as at the time when the Writ was filed.
However, the Writ remained unserved for several months thereafter, and it was at this point that the appellant began to run into legal problems. First, upon the appellant's motion, the High Court made an order on 13th April, 1981 that
The Writ of Summons and all other processes be served on the Defendant at the address of his insurers." (The name and address of the said Insurers were not stated in the order.)
In consequence of that order, the Writ was deposited at the premises of Messrs. Veritas insurance Co. Ltd., Lagos. When there was no reaction to the Writ, the appellant brought a second Motion on the Defendant's Insurers, but the latter refused service, saying that there was nothing in the Court's order to connect them with the suit.
At this stage the appellant saw the flaw in the Court's order. and brought yet another Motion (No.3) to amend the first order of the Court. On the l8th day of October. 1982, the Court granted the prayer and ordered that
The Writ of summons and all other processes in this Suit shall be served on Defendant/Respondent at the address of his Insurers Messrs. Veritas Insurance Co. Ltd. and such service shall be deemed good and sufficient.
It should be noted here that the Defendant was ordered to be served at the address of his Insurers. Apparently this was what the appellant requested, for it is quite a different matter if the Court had ordered that the Insurance Company should accept service on behalf of the Defendant.
It would appear that nothing was done for a long time afterwards in pursuance of the Court's order of 18/10/82, to effect service on the Defendant, and so, on 29th March, 1984 the present application, (which was Motion No.4) was filed. It was filed two years and two months after the Court's order for service. In the meantime, the Writ of Summons had remained unserved for twenty-six months and under the Rules of Court, it had expired.
However, the reasons for the delay were given in the accompanying affidavit of one Jubrila Sadiq, a law clerk in the Chambers of Messrs. Fred Egbe & Co., Solicitors for the appellant. Mr. Sadiq deposed to the following facts:
l. That I am a law clerk in the firm of Fred Egbe & Co. who are the plaintiff/applicant's solicitors.
2. That I have the plaintiff/applicant's authority to make this affidavit.
3. That this matter was first assigned to Mrs. Teresa Ikimi a member of the plaintiff/applicant's firm of solicitors who later went on maternity leave in l98l and has since not returned.
4. Sometime in l981 Mr. Odein Ajumogobia another counsel in our chambers took over this matter and (on 18th day of October, 1982 this Honourable Court upon an application brought by the plaintiff made an order that the summons and all other processes be served on the Defendant at the address of his insurers Messrs. Veritas Insurance Company Limited of 19 Martins Street, 3rd Floor Lagos).
5. I was assigned to ensure that the matter be served.
6. I enquired from the bailiff to whom the writ was assigned and he informed me and I verily believe that the said Veritas Insurance Company Limited refused to accept service of the Writ of summons.
7. Unfortunately I forgot to inform Mr. Ajumogobia about this development until he left our chambers.
8. When the plaintiff called in our chambers to verify the position Mr. Odofin called for the file and asked me what was the position as to service.
9. It was at this point that I related to him the bailiff's report.
10. Mr. Odofin then advised that the writ of summons has lapsed and it must be renewed hence this application.
11. The plaintiff is anxious to pursue his claim against the Defendant and the reason for the delay is entirely my own fault.
That Motion came before Ayorinde, J. on the 5th day of May, 1984. In moving the Motion, Mr. Odofin admitted that the writ had expired, but urged the Court to grant the prayers. Counsel relied on the provisions of OrderS rule 6 of the High Court (Civil Procedure) Rules 1972, and on a previous decision of Bada, J. in Boots Pure Drug Co. (Nig.) Ltd. v. Saki Estates (Nig.) Ltd. (1976) 6 C.C.H.C.J. 1751 at 1754.
In his Ruling, given immediately afterwards, the learned Judge refused the two prayers. This is what he said:
In this case the writ of summons expired or ceased to be in force on 13/1/82. There was no renewal before its expiration. Two years have elapsed since its expiration. It is no longer a current writ of summons. The application for renewal must be made before the writ expired. Once it expired or ceased to be in force it cannot be renewed. With all the respect in the world I am unable to agree with part of judgment of my brother Bada, J. in Boots Pure Drug Co. (Nig.) Ltd. v. Saki Estates (Nig.) Ltd. (1976) 6 C.C.H.C.J. 1751 at 1754.
I have my sympathy for the plaintiff in this case, as much as I wished that I could assist him, the writ is dead and I am unable to resuscitate or bring it back to life. It is dead. I am sorry if the claim is therefore statute barred.
The application therefore failed and it is dismissed.
I must here explain that the learned Judge's sympathy was evoked because, according to the Statement of Claim the Defendant had been sued for personal injuries suffered by the appellant when the Defendant negligently drove his car and collided with the appellant. In consequence of the accident, the appellant's right led had to be amputated.
However, the appellant was dissatisfied with the Ruling of the trial Court, and he appealed to the Court of Appeal. In the only ground of appeal, he complained that:
The learned trial Judge erred in law in holding that a Writ of Summons not served within the statutory period cannot be renewed after its expiration when the authority of Boots Pure Drug Co. Ltd. v. Saki Estates (Nig.) Ltd. (1976) 6 C.C.H.C.J. 1751 which reiterated the decision in Re Jones Eyre V. Cox 1877 L.J. Ch. D. 316 clearly states that a Writ of Summons can be renewed after it has expired.
When the appeal came up for hearing Mrs. Delano for the appellant relied on the decision of Bada, J. which, in somewhat similar circumstances had granted such prayer, but Counsel conceded that:
the present Rules in England are not the same as Order 5 rule 6 of Lagos State. Says that you do not use decisions decided under a different rules of Court to decide clear enactment in our own rules. Cites R.S.C. 1985 p.52 on Order 6 rule 8/7; Order 6 rule 8/2.
In spite of that concession, Ademola, J.C.A. who read the lead judgment, took great pains to compare Order 5 rule 6 of the Lagos High Court Rules with Order 6 rule 8(2) of the Supreme Court Rules of England, and came to the conclusion, rightly in my view, that the two Rules were quite different.
The learned Justice also carefully examined the facts of the Boots Drug case (supra) decided by Bada, J. and found that the facts were not in any way similar with the instant case. It would appear that in the Boots case, the writ had expired during the Legal Vacation, and if the necessary application had been made then, the applicant would have been on time.
However, the lower Court went on to consider the merits of the appeal and held that:
The action of the appellant was already statute-barred by 1981 when the writ was issued against the Respondent; Limitation Law Cap.71 Sections 9(1) and (2) of Lagos State.
On the facts so far stated, the Writ if renewed would prejudice any right of defence that the Respondent had - the limitation period from 1976; Doyle v. Kaufman (1877-78) 3 Q.B.D. 340 also Heaven v. Road & Rail Wagons Ltd. (1965) 2 A.E.R. 409.
To renew the writ with no hope of the likelihood of its being served on the Respondent is to my mind giving a kiss of life to a baby that is already dead.
The appeal is therefore dismissed. The refusal to renew the writ is hereby confirmed. There shall be no order as to costs.
Again, the appellant was not satisfied with that judgment and he has appealed to this Court, on substantially the same ground as he filed before the lower Court.
Curiously enough, there was no appeal against that portion of the judgment of the Court of Appeal (quoted above), which stated that even as at the time that he filed his summons, the cause of action was already statute-barred. It seems to me that if that statement of law is correct, and there is no reason to doubt it, it would be an exercise in futility to ask a court to renew or resuscitate a Writ which cannot support a valid cause of action.
However that may be, in the only ground of appeal which was filed and argued in this court, the appellant complained that:
3. Grounds of Appeal:
The learned appellate Judges erred in law in preferring the ruling of the learned trial Judge to the established practice of the Lagos High Court as shown in Boots Pure Drug Company Nigeria Limited (1976) 6 C.C.H.C.J 1751 by placing undue reliance on the insertion of the words "before that day or such later day" as appearing in Order 6 Rule 8(2) of the R.S.C. in England when those words merely confirmed the practice already prevalent in the High Court.
In the Brief of arguments filed Mr. Odofin has formulated a single issue for determination. and that is:
Whether a Writ of Summons issued for more than twelve months and not served within that period can be renewed and whether there is in essence a difference between the Rules of Court in the Lagos High Court and those in the Roval Court of Justice in England.
I must say that I am surprised at Mr. Odofins stubborn insistence that the Lagos High Court should follow and be guided by decisions of the English Courts in respect of Nigerian Rules of Court which appear to be similar. I would have thought that our Courts have severed that umbilical cord a long time ago.
I am aware that section 12 of the High Court Law of Lagos State provides that:
The jurisdiction vested in the High Court shall. so far as practice and procedure are concerned. be exercised in the manner provided by this or any other enactment or by such rules and orders of court as may he made pursuant to this or any other enactment, and in the absence of any such provisions in substantial conformity with the practice and procedure for the time being of the High Court of Justice in England. (Italics mine)
It will be seen that reference may be made to the English rules only if there are no rules of Court Lagos State) which may be used for the particular point.
In the instant case. there is a Rule of Court governing the renewal of Writs; it is Order 5 rule 6 so there is no need to resort to the English rules on the point except for persuasive reasons.
Now the relevant part of order 5 rule 6 provides:
6. No original Writ of Summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date but if any Defendant therein named shall not have been served with a copy thereof, the plaintiff may before the expiration of the twelve months, apply to the Court or a Judge in Chambers for leave to renew the writ; and the Court or Judge, if satisfied that reasonable efforts have been made to serve such Defendant or for other good reason, may order that the original or concurrent Writ of Summons be renewed for six months from the date of such renewal inclusive and so from time to time during the currency of the renewed writ." (Italics mine)
Now it seems to me that there are two distinct parts of that Rule:
The first part is declaratory. It stipulates that the life span of a Writ shall be twelve months. After that period, the Writ shall no longer be "in force" and I take this to mean that the Writ shall have become spent. In other words, it can no longer take effect as a Writ nor can it carry the normal legal consequences of a valid Writ. This means that if served on a Defendant, he is not bound to honour it, and any judgment obtained on such invalid Writ, would, on application be set aside.
The second part of the Rule stipulates what should be done either to keep the Writ alive or to revive it. The Rule provides that if the necessary application is made before the Writ expires i.e. within the twelve months period, the Court may, for good reasons shown by the applicant extend the life of the Writ for another six months.
Of course the granting of the order is at the discretion of the Court, and the fact that the life of the Writ had not expired, does not mean that the order will be granted as of course. Thus, in every case, the applicant has to satisfy the Court that he has made "reasonable efforts" to serve the Defendant and in addition, present any "good reason" which he may wish to disclose. This first part is quite easy to follow.
What has presented some difficulty and the real point of this appeal is whether an application can be made outside the twelve-month period? Some decisions at first instance have tended to show that once the twelve months have elapsed, no application for extension can be made. I do not share that view
I think the whole purpose of the Rule is to do substantial justice between the parties. After all the real contest between the parties has not begun; issues have not been joined and the whole suit is at the commencement stage. With this background in view, I do not think the Court would want to shut out the plaintiff even before his opponent is served and before he has had the opportunity to state his case.
A careful examination of the Rule shows that its real purpose is to renew an expired Writ. The word "renewal" in itself shows that the idea is to bring alive an expired document. The dictionary meaning of the word "renew" is
to resuscitate; revivify; regenerate; reinforce; begin anew
In the ordinary course of events, no one ever applies to renew a current license or certificate. In the instant case, let us suppose that the plaintiff had applied to renew the Writ six months before it expired, would not a prudent Judge ask the applicant to bring the application at a time much nearer the end of the twelve months? I find support for this view in Order 5 rule 8 which provides that:
Where a Writ is lost after being issued, the Court or a Judge in chambers, upon being satisfied of the loss, and of the correctness of the copy, may order that such copy shall be sealed and filed in lieu of the original Writ.
In that case, the purpose of that Rule is to re-issue a Writ which has been lost. No one would apply under this Rule unless the Writ were really lost. In this same way and by token of the same argument, I think that Order 5 rule 6 applies not only to a Writ, which is about to expire, but also to one which has in fact expired.
I think the provision about applying for renewal within the valid life of the Writ may have led many to assume that unless the Writ is made within twelve months, it cannot be made afterwards but it is obvious that if the Rule were interpreted in that manner, it would work hardship on the plaintiff. It seems to me that such a provision has been inserted in the Rule in order to distinguish a vigilant plaintiff from a lethargic one. Obviously a vigilant litigant would in accordance with the Rule, apply before the Writ actually expires, but this does not mean that a litigant who applies soon afterwards should not be heard.
Apart from this, a perusal of the whole Rule shows that it is not intended that one of the parties shall take advantage of a technical point. Thus the Rule talks about renewing the Writ from time to time during the currency of the renewed Writ." This shows that even a renewed writ can itself be renewed times over, provided that each time the application is brought, the plaintiff can satisfy the Court about any "good reasons" for making the application.
Furthermore, the Rule brings out its real purpose when it states that:
A Writ of Summons so renewed shall remain in force and be available to prevent the operation of any enactment whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original Writ of Summons.
This shows that a renewed Writ takes effect from the date of the original Writ and thus prevents the action from becoming statute-barred. In my view, this additional provision, is to afford protection to a plaintiff who acts promptly and to do substantial justice between the parties.
As stated before. I am of the opinion that a plaintiff can apply for the renewal of a Writ after it has expired. In this respect, the application would be treated as any other application for extension of time for the doing of an act.
Usually the Court has inherent jurisdiction to extend the time for the doing of any act, but in this case the provisions of Order 47 rule 3 would apply. That Rule states:
The Court may, as often as it thinks fit, and either before or after the expiration of the time appointed by these rules, or by any judgment, order or rule of the Court, extend or adjourn the time for doing any act or taking any proceeding." (Italics mine)
It will be seen that the Court is still vested with a discretion to grant or refuse the application. The overriding point is to do substantial justice to both parties. See Schafer v. Blyth (1920) 3 K.B. 140 at 143.
Thus, where there has been unnecessary delay in applying for extension, and where injustice will be caused to the other party if the time is enlarged, the application wil be refused. A. G. Leventis & Co. Ltd. V. J. Obiako (1963) 2 All N.L.R. 1.
I now come back to the substance of the present appeal.
When the Motion to renew came before the trial Judge, he refused to grant it because the plaintiff/appellant had not applied within the twelve-month period.
But when the matter came before the lower Court, Ademola, J.C.A., did not confine himself to that narrow issue. After discussing the various points, which arose on the appeal, he went further to consider the actual merits of the application. He held that the appellant "did not disclose sufficient and good reasons" for the delay in serving the Defendant with the Writ. The learned Justice also held that even the applicant's action for damages for personal injuries had become statute-barred in January 1981 when the writ was issued. He referred to section 9(1) and (2) of the Limitation Law of Lagos State (Cap.70) which stipulate that such actions shall be brought within 3 years of the event. On those facts, the lower Court held that if the Writ were renewed, it would prejudice any right of defence that the Defendant might have. I agree with those conclusions. In my view, it is the duty of a plaintiff who issues a writ to serve it promptly and where necessary, to apply to renew the Writ timeously. See Battersea v. Anglo-American Co. Ltd. (1944)2 All E.R. 391.
The position as at today's date is that although the cause of action arose in 1976(13 years ago), appellant has not been able to serve the Defendant with the Writ of Summons. For this lapse, he relied on the ineptitude of his Solicitor's Clerk, and the Court of Appeal has found that this excuse was not a sufficiently good reason. Furthermore, by the Lagos State Statute of Limitation, the action had become statute-barred in 1979; - some 10 years ago.
In those circumstances, it seems to me that some injustice will be done to the Defendant, if the Writ were renewed.
In any case, it would be futile to renew a Writ which is incapable of supporting a valid cause of action.
As previously stated, the appellant did not appeal against the finding of the lower Court that this action was statute-barred as at the time that the Writ was filed.
I note however that at page 4 of his brief, counsel sought to explain away this important issue by saying that "the appellant had obtained leave of Court to issue the Writ outside the period of limitation." Regrettably no such document was exhibited or tendered for inspection nor were the terms of that Order brought to the notice of this Court. In consequence, I am unable to take any notice of the bare assertion of Counsel.
In any case, I must point out that what Counsel has done, is not the proper way to disprove the serious legal point raised by the Court of Appeal. This Court has said it many times over that it will not countenance or entertain any argument on any ground of appeal which does not form part of the Notice of Appeal.
For all the reasons stated above, the appeal fails and it is dismissed. There shall be no order as to costs.
Judgement Delivered
by
Augustine Nnamani. J.S.C.
I had the advantage of reading in draft the judgment just delivered by my learned brother, Craig, J.S.C. and I agree with his conclusions.
This is indeed a pathetic case, pathetic in the sense that appellant here was involved in a ghastly motor accident which led to the amputation of his leg and yet nearly 13 years after that accident on 15th November, 1976 he is still struggling for an opportunity to proceed against the man who knocked him down, who, for all we know might well be thousands of miles out of this country. This appeal therefore raises serious issues.
There is one other reason why this appeal is indeed important. Order 5 rule 6 of the High Court of Lagos State (Civil Procedure) Rules 1972 which is the rule due here for interpretation has been interpreted differently by some Judges of the High Court of Lagos State - Bada, J. in Boots Pure Drug Co. Ltd. v. Saki Estates Nigeria Ltd. (1976) 6 C.C.H.C.J. 1751 and Ayorinde, J. in this case. From the appellant's brief of argument, it would appear that two other decisions of the High Court Lagos State had taken the same position as Bada, J. took - Eternal Sacred Order of Cherubim and Seraphim v. Elder J. S. Olugbusi and ors. (1974) 8 C.C.H.C.J. 1255 and Standard Bank Ltd. v. Tek Deswani (1976) C.C.H.C.J. 1459. The Court of Appeal has now affirmed the decision of Ayorinde, J.
It is essential to state a few facts that led to this dispute. The appellant's solicitor filed a writ of summons dated 14th January, 1981. When it seemed it was not possible to serve the Defendant, an application was made to the High Court praying for an order to insert the name of the Defendant's insurers -Messrs Veritas Insurance Company Limited. On 18th October, 1982 Omololu-Thomas, J. (as he then was) ordered that the order could be served at the address of the Defendant's Insurers. It seemed that the Veritas Insurers refused to allow the writ to be deposited on their premises. Nothing happened until 1984 when appellant's solicitors by a motion dated 29th March, 1984, prayed the High Court of Lagos State for extension of time for the renewal of the writ of summons. An affidavit attached to the application averred that after the order of the High Court on 18th October, 1982, Jubrila Sadig was informed by the Bailiff that Veritas Insurance Co. Ltd. refused service and he forgot to so inform the appellant's solicitors. According to Mr. Sadiq, it was when the appellant called to know the position of his case that these facts came to light. As at that date, Mr. Odofin learned Counsel to the appellant, found that the writ had lapsed hence the application dated 29th March, 1984. Ayorinde, J.'s refusal to renew the writ was affirmed by the Court of Appeal, hence this appeal.
The single issue for determination set down by learned counsel to the appellant in his brief of argument is this:
Whether a Writ of Summons issued for more than 12 months and not served within that period can be renewed and whether there is in essence a difference between the Rules of Court in the Lagos High Court and those in the Royal Court of Justice in England.
The motion dated 29th March, 1984 which set in motion the present proceedings was brought under Order 5 Rule 6 and Order 47 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules 1972. It is pertinent to set down Order 5 Rule 6 and Order 47 Rule 3. Order 5 Rule 6 provides that:
No original Writ of Summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any Defendant therein shall not have been served with a copy thereof, the plaintiff may, before the expiration of the twelve montlis apply to the Court or a Judge in Chambers for leave to renew the Writ; and the Court or Judge, if satisfied that reasonable efforts have been made to serve such Defendant, or for other good reason, may order that the original or concurrent Writ of Summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed Writ. (Italics mine)
Order 47 R.3
The Court may, as often as it thinks fit, and either before or after the expiration of the time appointed by these rules, or by any judgment order, or rule of the Court, extend or adjourn the time for doing any act or taking any proceeding." (Italics mine)
Ayorinde, J., after construing these provisions, came to the conclusion that the application for renewal of the Writ must be made before the expiration of 12 months. The Court of Appeal, as earlier stated, agreed with him.
I must start by agreeing with the interpretation of my learned brother in the lead judgment that a renewal presupposes an expiration of the Writ. It is also to be noted that Order 5 Rule 6 gives an option to a plaintiff in its use of may to apply for renewal of the Writ before the expiration of 12 months. It seems to me that the use of may here must imply that an application could equally be made after the expiration of the 12 months period and would be entertained. Another thing which strikes one in the provision is that it seems concerned with service of the writ i.e. it is concerned with the writ for purposes of service. It says that the writ shall be in force for 12 months and if any Defendant has not been served within that period, application for renewal may then be made. But this line of interpretation can only in my view arise if one establishes the meaning of shall not be in force for more than 12 months. It would seem that, looking at the whole Rule, it means shall cease to have effect after 12 months. I do not think that this means that the writ is void, for if this were so, there would be no talk of renewal after 12 months. I am inclined to think that, since if a Defendant has not been served follows the provision for the writ not being in effect after 12 months, the aim of the rule is to find how best a writ which has ceased to have effect, or is about to cease have effect, but which is not void, can still be served on the Defendant named therein. A reference to the old High Court of Lagos St