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In The Supreme Court of Nigeria

On Friday, the 3rd day of February 1989

Suit No 165/1986

 

 

Before Their Lordships

 

 

Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte  

......

Justice, Supreme Court

Salihu Modigbo Alfa Belgore  

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

Ebenezer Babasanya Craig

......

Justice, Supreme Court

  

 

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 Boot’s 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. Odofin’s 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 State Rules seems to suggest that this must be the true meaning of Order 5 Rule 6. The old Rule can be seen in Order 2 Rule 5 of the Supreme Court (Civil Procedure) Rules Cap.21 1 (See Laws of Nigeria 1948 Vol. X and Section 89(3) of the High Court of Lagos Act Cap.80 Laws of Nigeria 1958 Vol. III). The said (Order 2 Rule5) of the 1948 Laws provides that:

 

In case service of the writ shall not have been effected within one year from the date thereof, the same shall become void. The Court may at any time before the expiration of the current period from time to time renew the writ for a further period not exceeding six months at any one time.

 

It would seem to me that in this case in which the Writ is void if not served within 1 year, it becomes imperative that as provided, application for renewal of the Writ must be made before the expiration of 12 months. The position was put beyond any dispute in the Northern Rules (Order 2 Rule 5) for there it is provided that:-

 

in case service of the Writ shall not have become effected within one year from the date thereof, the same shall become void.

 

The 1972 Rules must be taken as an amelioration of th~ applicable 1948 Rules. If it was intended that a Writ not served within 1 year shall be void those words would have been used in the 1972 Rules. The use of the words no Writshallbe in force must connote something less onerous, and in my view, is no more than not to have effect forpurposes ofserv ice. In such a case there cannot be the same imperativeness in bringing the application before the expiration of 12 months. One other support for this line of interpretation is Order 47 Rule 3 which was set down above and under which the appellant made his application. The terms of Order 47 Rule 3 appear to support my view that an application can be made after 12 months. Order 47 Rule 3 applies to all the Rules including Order 5 Rule 6. Time appointed by these rules can arguably, in the case of Order 5 Rule 6, include the period within which, on the fact of the rule, an application for renewal can be made. This in the rule ex-facie is before the expiration of 12 months. Under Order 47 Rule 3, this time can, for good cause, be extended by the Court. The learned Author, Dr. Akinola Aguda has argued very powerfully that the interpretation of Order 5 Rule 6 must be that application for renewal of the Writ must be made before the expiration of the writ. He referred to Order 2 Rule 14 of the Western and Bendel States Rules which are in pan materia with Order5 Rule 6 of the Lagos Rules and to the cases of Alao v. Omoniyi(1966) N.M.L.R. 161; David Ajagun v. Adebayo Adeniji C.C.H.C.J./ 6/74/833 and Bernadette Udo Ekanem v. Alfred Akpan Okon C.C.H.C.J./8/76/2193. In his view, cases such as Eternal Sacred order of Cherubim (supra) and Standard Bank Ltd. v. Tek Deswani C.C.H.C.J./S/7611459 which decided differently were wrongly decided as they appear to have been influenced by R.S.C., 0.6 r 8(2) in England which contains such words as "or such later day (if any) as the court may allow" which are not in Order 5 Rule 6. (See Aguda: Practice and Procedure etc. First Edition p.25 paras. 3.34 and 3.36.) These are no doubt formidable arguments, but for the reasons I have given above, I am respectfully not persuaded by them.

 

Therefore, in my judgment, I am of the view that by the combined effect of Order 5 Rule 6 and Order 47 Rule 3, a plaintiff can apply to the court for renewal of a Writ of Summons either or after the expiration of 12 months. Such an interpretation accords too with my conception of doing substantial justice between the parties, for in a proper case in which a plaintiff has good reasons for having not served the Defendant, it would seem to me inequitable if the court were to refuse renewal and shut out plaintiff because the plaintiff perhaps applies for renewal 1 day beyond the 12 months.

This is, however, not the end of this appeal. OrderS Rule 6 as earlier stated, provides for renewal of the writ.

 

if the court or Judge is satisfied that reasonable efforts have been made to serve such Defendant, or for other good reason

 

As for good reasons, See Jones v. Jones (1970)1 Q B. 576; Osborne V. Distillers Co. Ltd. (1967)112 S.J. 50 C.A.; Easy v. Universal Anchorage Co. Ltd. (1974) 1 W.L.R. 899; Heaven v. Road and Rail Wagons Ltd. (1965)2 Q.B. 355,365. Both the learned trial Judge and learned Justices of the Court of Appeal were not satisfied and I think they were justified in so holding. There is clearly a tardiness on the part of counsel to the appellant and this cannot help in a case where good reasons have to be given. Although the High Court made an order on 18th October, 1982 that the writ could be deposited in the offices of the Veritas Insurance Co. Ltd. nothing appears to have been done. Although the Bailiff informed Mr. Sadiq that he could not serve the writ, Mr. Sadiq forgot to inform his principals. As it turned out, the application for renewal of the writ was made nearly 2 years after that order was made. Besides, it has to be remembered that the writ was issued on the 14th January, 1981 for an accident which occurred on 15th November, 1976 - more than 4 years!

 

Finally, I wish to comment briefly on the views of the Court of Appeal, per Ademola, J.C.A. on the question of Limitation law, Cap.70 Sections 9(1) and (2) of Laws of Lagos State. Learned counsel to the appellant has submitted that the learned Justice's comments were obiter and that the issue was not canvassed in the High Court or the Court of Appeal. I do not agree that Ademola, J.C.A.'s comments were obiter. If I understood him well, his view that "the action of the appellant was already statute-barred by 1981 when the writ was issued against the Respondent" must be part of the basis for his conclusion that the appellant did not show good reasons for non-service of the writ. So must also be his reference, relying on Banersea v. Anglo-American Company Limited (1944)2 A.E.R. 391, that:-

 

renewal will not prejudice any right of defence then existing

 

The Writ was definitely statute-barred for although the accident took place on 15/11/76 the writ was issued on 1411/81. Learned Counsel to the appellant says that leave was granted to file the Writ after the period of limitation. There is nothing in the record of proceedings to support this assertion.

 

The inevitable conclusion I have reached is that this appeal must fail and I hereby dismiss it. I endorse the order for costs made by my learned brother, Craig, J.S.C. I cannot, however, end this judgment without expressing my sadness at the way the appellant's Solicitors have discharged their responsibility to him in this matter. It is this type of non-chalant and indifferent attitude which has unfortunately robbed this appellant of his remedies under the law, and which brings the law and the Courts into disrepute. The layman, in such circumstances, can hardly be blamed if he perceives the Courts and the law as insensitive, unduly technical, and so unjust. To say all this is of course not to forget the tremendous effort, which learned Counsel, Chief Odofin, put up on behalf of the appellant in this court. He deserves commendation.

 

 

Judgement Delivered

By

Adolphus Godwin Karibi-Whyte. J.S.C.

 

This is an appeal against the judgment of the Court of Appeal, Lagos Judicial Division dated 3rd December, 1985. On that date the Court of Appeal dismissed the appeal by the present appellant as plaintiff applicant against the ruling of Ayorinde, J., of the High Court of Lagos State. I have had the privilege of reading the judgment of my learned brother Craig, J S.C., in this appeal and I agree that this appeal be dismissed. I have taken the liberty to discuss this very narrow point in such detail because of the looming misconceptions flowing from the different interpretations of Order5 r.6 applicable to this case.

 

The case presented by the appellant is more intelligible when fully narrated. The present appeal though still within the effort to commence the journey, does not tell the whole story or indeed paint the true picture. What may be regarded as a fairly full account can be gathered from the writ of summons filed, the statement of claim, the averments in the affidavits filed in support of the various applications before the court, and culminating in the motion ex parte seeking an order, for extension of time within which to renew the Writ of Summons.

 

The facts:

On the 14th January, 1981 appellant as plaintiff issued a Writ of Summons claiming from the Defendant the sum of N100,000 as damages for personal injuries suffered and loss and expenses incurred by the plaintiff as a result of the negligent driving and/or control of a motor car by the Defendant along Adeola Odeku Road, Victoria Island, Lagos on the 15th November, 1976. Thus the Writ of Summons was not issued for more than four years after the cause of action arose.

 

I think because of difficulties of service the Defendant with the Writ of Summons, the solicitors to the plaintiffs/appellants, on 13/4/81 applied and were granted an order to serve the Writ of Summons and all the processes on the Defendant at the address of his insurers. Again on 21/9/82 the plaintiff applied by motion ex parte for an order inserting the name of the Defendant's insurers - Messrs. Veritas Insurance Co. Ltd. in the order made on the 13th April, 1981. This application was granted and an order dated 18th October, 1982 was made to reflect the position. The averments in the affidavit in support of the application dated 21/9/82 reveals the frustration of plaintiff's solicitors in their effort to serve the Defendant with the Writ of Summons. Paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13 of the affidavit are reproduced for ease of reference.

 

5.     That on the 24th day of November, ~981 I accompanied the Bailiff of this Honourable Court to the Office of Messrs. Veritas Insurance Company Limited with whom the vehicle driven by the Defendant at the time of the accident was insured.

 

6.     That the Writ of Summons together with the order of this Honourable Court was left at the registered offices of Messrs. Veritas Insurance Company Limited.

 

7.     That no appearance was entered on the Defendant's behalf.

 

8.     That on 26th day of March, 1982 I filed a motion for interlocutory judgment in this Honourable Court.

 

9.     That I again accompanied the Bailiff of this Honourable Court t( office of Messrs. Veritas Insurance Company Limited to effect set of the motion on them.

 

10.   That we met one of the Managers Mr. Idehen, who confirmed that the company had received the writ or summons but had not appeared because there was nothing on the order connecting the company with the matter.

 

11.   That consequently the said manager refused to accept service of the motion for judgment.

 

12.   That I concurred with the Bailiff's opinion that it would be futile to serve the motion by leaving it at the address of the company since in fact there was nothing on the fact of the order permitting service of Messrs. Veritas Insurance Company Limited in particular.

 

13.   That it is in the interest of justice that the said order be made to reflect the name of the insurers who are Messrs. Veritas Insurance Company Limited, for the purpose of clarification of this Honourable Court's order.

 

The application in the High Court

On the 29th March, 1984 counsel to the plaintiff understandably even if belatedly applied ex parte under Order 5 r.6 and Order 47 r.3 for an order extending time for renewal of the writ of summons and a renewal of same for a period of six months and for such further order or orders as the court deems fit to make in the circumstances. The affidavit on which the exparte application relies was sworn to by Jurbila Sadiq, a Law Clerk in plaintiff's counsel's Law firm. The pertinent averments are as follows:-

 

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 1981 and has since not returned.

 

4.     Sometime in 1981 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 services 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 had 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."

 

In his ruling the learned Judge referred to the fact that the Writ of Summons was issued on 14/1/81, and that it was not served after 12 months of the issue and up till the time of the ruling. He cited Order 5 r.6 of the Lagos State High Court Rules and pointed out that the Writ of Summons "expired or ceased to be force on 13/1/82" and said.

 

There was no renewal before its expiration. 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.

 

The learned Judge then indicated his disagreement with part of the judgment 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, and concluded as follows:

 

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.(Italics mine)

 

It seems clear that Ayorinde, J., had in mind the considerations that plaintiff had delayed for more than two years before bringing his application and that the claim was already statute-barred. But his real reason for refusing the application to renew the writ was that on the expiration of the twelve months, the writ died.

 

In the Court ofAppeal.

 

plaintiff hereinafter referred to as the appellant, dissatisfied with this ruling appealed to the Court of Appeal. The only ground of appeal filed is against the holding of the learned Judge that a Writ of Summons not served within the statutory period of twelve months after its issuance expires and could not be renewed. The Court of Appeal considered the earlier decisions of the High Court of Lagos State and held that they were wrongly decided. It was held that those cases relied on Order 6 Rule 8(2) Rules of the Supreme Court of England, which is not applicable in Lagos State. It was held that the case of Boots Pure Drug Company (Nig.) Ltd. v. Saki Estates (Nigeria) Ltd. (supra) is on the facts different from the instant case. In supporting the learned Judge the Court of Appeal said:

 

What Ayorinde, J., did not do or say expressly is that the period could not be extended so as to make the renewal of the writ possible. He did say that the period of over two years after the expiration of the writ of which the applicant did nothing about the renewal is one of the reasons why he was not prepared to renew the writ. I do not myself think on this issue he was wrong for the applicant in the affidavit supporting the application for the renewal of the writ did not disclose sufficient and good grounds, but catalogued situations of the ineptitude of his Law Clerk, in asking for the exercise of the Judge's discretion. (See p.28 of the record of appeal.)

 

The Court of Appeal cited the English Court of Appeal judgment in Battersby v. Anglo-American Oil Co. Ltd. (1945) K.B. 23 where Goddard, L.J., counselled that the exercise of discretion to renew the Writ of Summons should be with caution and this is even where the application was made within twelve months of the date of issue. And that the application should be granted where the court is satisfied that there are good reasons to excuse the delay in service of the writ. The Court found this case applicable to the instant appeal. The Court of Appeal also pointed out that the action of the appellant was already statute-barred at the time of the issue of the writ. It was therefore held that the writ if renewed would prejudice any right of defence that the Respondent had - Doyle v. Kaufman (1877-78)3 Q.B.D. 340; Heaven v. Road and Rail Wagons Ltd. (1965)2 All E.R. 409 were cited in support. Finally, the Court of Appeal in dismissing the appeal stated:

 

To renew the writ with no hope of its 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 exposition of the law and consideration of argument of Counsel in this court

 

I have endeavoured to state the reasoning in the judgments of the two courts below in some detail to demonstrate their approach to the issue before them. The issues which the learned Judge was called upon to decide in the ex parte application was whether he could exercise his discretion under Order 5 r. 6 of the Rules of the High Court of Lagos State to renew a Writ of Summons issued on the 14th January, 1981, which has not been served on the Defendant in April, 1984 when the application was made. The facts relied upon by the applicant have already been stated in this judgment. The Court of Appeal was called upon to determine whether the learned Judge was right in refusing to exercise his discretion. Pointedly whether he was right in his ruling that the Writ of Summons having expired was dead and could not be resuscitated.

 

The Court of Appeal affirmed the judgment of the learned Judge. We have now been called upon to decide whether their decision was right.

 

It is interesting to observe that at every stage of the proceeding appellant's applications have not been opposed; they have also always been made ex parte. This appeal is not opposed. The Defendant has not been served, and therefore has not entered any appearance, conditional or unconditional. See Khawam v. Elias (1960) 5 F.S.C. 224. Mr. Odofin, counsel for the appellant filed a brief of argument which he adopted in his argument before us. Only one ground of appeal was filed as was the case against the ruling of the High Court. It is as follows:-

 

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.

 

The issue arising from this ground of appeal was stated to be "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."

 

Whilst the first part of this formulation of the issue is acceptable to me, the second part concerning the difference between the rules of Court here and in the Royal Courts of Justice in England is clearly not an issue in this appeal. It is merely an aid to the reasoning and resolution of the issue. It is now well settled and there are many judicial authorities in support of the proposition that only in the absence of a local rule of practice governing the practice and procedure in the particular matter, should resort be had to the rules of practice and procedure applicable at the time in the High Court of Justice in England subject to necessary modifications See s.12 High Court Law. See Laibru Ltd. v. Building & Civil Engineering Contractors (1962)1 All N.L.R. 387. Otherwise our own rules of practice and procedure govern. Counsel is not suggesting that there is no applicable rule of practice and procedure in the Rules of the Lagos State High Court in this case. The contention of considering the applicability of a foreign rule of practice and procedure when there is provision in our own law is undoubtedly in conflict with the authorities. I will therefore ignore the second part of the formulation of the issue as an issue for consideration in this appeal.

 

Appellant brought the application ex parte, under Order 5 r.6 and Order 47 r.3 rules of the High Court of Lagos State. I reproduce the rules for ease of reference.

 

Order 5 r.6 provides as follows:-

 

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. And the writ shall in such case be renewed by being marked with a seal bearing the date of the day, month, and year of such renewal; such seal to be provided and kept for that purpose at the Registry, and to be impressed upon the writ by the Registrar upon delivery to him by the plaintiff or his legal practitioner of a memorandum in Form No. 6 in Appendix A with such variations as circumstances may require; and a writ of summons to 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.

 

Order 47 r.3 provides as follows:-

 

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.

 

It is pertinent to point out at once that the learned trial Judge and the Justices of the Court of Appeal confined their consideration of the application before them to interpretation of the provisions of Order 5 r.6 alone. The possibility of the provisions of Order 47 r.3 being also applicable was not considered.

 

Order 5 r.6 was construed to mean that if the application to renew a Writ of Summons was not made within twelve months of its issue, i.e. before the expiration of the Writ of Summons any application to renew the Writ of Summons after the date of its expiration will not be granted. This is because as it was held the Writ of Summons was dead and could not be resuscitated. A proper understanding of the scope of Order 5 r.6 necessitates a careful understanding of the words used. The words in italics are important in the construction of the rule. The life of an original Writ of Summons is stated to be twelve months from the day of the date thereof including the day of such date. The provision speaks of renewing the original Writ of Summons if application is made to the court or a Judge before the expiration of the twelve months, on the ground that the named Defendant therein has not been served. If the court or judge on an application is satisfied that reasonable efforts have been made to serve such Defendant, or for other good reason, may order that the original Writ of Summons be renewed for six months from the date of such renewal inclusive, and the writ can be similarly renewed from time to time during the currency of the renewed writ. On such a renewal, the Writ of Summons shall remain in force and available not only to prevent the operation of any statute of limitation that may affect the right of the plaintiff to bring the action, it shall also remain in force for all other purposes retrospective from the date of the issuing of the original Writ of Summons.

 

Thus although the normal life of a Writ of Summons is prescribed as twelve months from the date of issue, this can on application before its expiration and for good reasons be extended beyond this period by an order of court or judge,

 

if application is made before the expiration of the period of twelve months and showing

 

(a)     that the named Defendant has not been served with the Writ of Summons

(b)     reasonable efforts to serve such Defendant

(c)     other good reasons why the Writ of Summons should be renewed.

 

The first reason for seeking renewal being to keep the Writ of Summons effective, and to be able to serve the Defendant with the Writ of Summons, and escape the effect of any limitation period. The "other reasons" must be reasons by plaintiff has not been able to serve the Defendant with the Writ of Summons.

The Court of Appeal is of the view that on the expiration of the life of the Writ of Summons after twelve months from the date of its issue, the Writ of Summons is dead and cannot be resuscitated. This was the view held by Lambo, J., in Buraimoh Alao v. Adetola Omonivi (1966) N.M.L.R. 161 when construing the provisions of Order 11 r.5 of the High Court (Civil Procedure) Rules, in an application made on December30, 1965 for the renewal of a Writ of Summons issued on December 30, 1964. Order 11 r.5 Cap. 211 Vol. X Laws of Nigeria 1948 provides that,

 

In case service of the writ shall not have been effected within one year from the date thereof, the same shall become void. The Court may at any time before the expiration of the current period from time to time renew the writ for a further period not exceeding six months at any one time.

 

Construing this rule, Lambo, J., said:

 

It follows from this that on 30th December, 1965 the writ in this suit became void. No application for its renewal was made between the 30th December, 1964 and the 30th December, 1965 as laid down by the Rules. It is only during this current period that the Court can exercise its discretionary power. In the circumstances I hold that the writ is an incurable nullity, dead and buried and for it there can be no resurrection.

 

These are indeed very strong words based on the provision that such writ shall by this rule be declared void, "in case service of the write is not effected within one year from the date of its issuance." The view taken is that to keep the writ effective, the application for its renewal must be made before the expiration of the current period. Thus the exercise of the discretion to renew the writ is limited to the period before the writ expires. It seems to me from the express words of Order 11 r.5 that "In case service of the writ shall not have been effected within one year from the date thereof, the same shall become void" does not refer merely to service of the writ, but to the continued validity of the writ. This is because the court is vested with the discretion 'at any time before the expiration of the current period" to renew the writ for a further period not exceeding six months at any one time. If this is not done the writ is void.

 

But the provision of Order 5 r.6 of the new High Court (Civil Procedure) Rules (the successor of Order 11 r.5) already reproduced in this judgment, which came into force in 1972 and is the rule subject matter for interpretation in this appeal is different. Although Order 5 r.6 speaks of the writ not being in force after twelve months, of its issuance, it does not, like the old rule, say that it is void. There was the clearly expressed intention to depart from the earlier situation where the writ as a whole was to be regarded as void if not renewed before the date of its expiration. Thus the fact that the writ ceases to be in force does not mean that it was rendered void by expiration of time. The fact that the expression declaring the writ void is absent and now there is still the provision enabling a renewal of the writ even if to be made before the expiration of the period shows that the writ as was also clearly expressed, merely ceases to have force. It is not void. Accordingly it remains valid for the purposes of renewal. The opinion of the English Court of Appeal in Battersby v. Anglo-Amencan Oil Co. Ltd (1945) K.B. at p.23 that a writ which has ceased to have effect is in the same position as a writ which was never issued is in my respectful opinion wrong. The reason given that a renewal was to prevent the operation of statutes of limitations is tenable but cannot be the reason why the writ is in the same position as if it was never issued.

 

I am unable to accept the proposition that on the expiration of the period of twelve months prescribed, the writ becomes a nullity. That is to say, the Writ of Summons should be regarded as void thereafter, and as having never been issued. It is paradoxical to hold that an act once legally valid can be rendered a nullity by subsequent act unrelated to its creation. A nullity results from the effect of a fundamental vice or defect in the constituent elements of a legal act rendering the act never to have been constituted or come into being. Where an act originally valid is rendered invalid by subsequent act, the invalidity arising thereby is temporary and is curable, in my view as a mere irregularity. This appears to be the position in this case. A Writ of Summons which has not been served for twelve months remains a valid Writ of Summons, but lies dormant and ineffective for service waiting to be reactivated and rendered efficacious in the manner prescribed by rules of court. The Court can grant an application, which will render the writ as effective as when it was issued originally and before the period of twelve months elapsed. Finally on this point, service of a Writ of Summons made after the period of twelve months in respect of which a Defendant enters unconditional appearance is valid service. - See Khawam v. Elias (1960) 5 F.S.C. 244; The Gniezno (1967) 2 All E.R. 738 at p.745. If the writ were void because of the expiration of its effectiveness, the service would not have been regarded as valid - See Sheldon v. Brown Bayleys Steel Works Ltd. (1953) 2 All E.R. 382. Order 5 r.6 did not intend that an expired writ be regarded as void. If it were to be so words to that effect would have been used in the rule as was done in Order 11 r.5 preceding it. The Court of Appeal has referred to certain decisions of the Lagos State High Court. It was observed that the learned Judge, Bada, J. who decided Boots Pure Drug Company Nigeria Ltd. (supra), did not indicate the basis on which that case was decided. It was said that although the application was brought under Order 5 r.6, for renewal of the Writ of Summons, counsel also argued that if the period of vacation within which the writ fell was considered, the application was brought within the twelve month period. Otherwise the application was brought after the expiration of the period. I am afraid, I did not myself find it difficult to understand the judgment criticised. After quoting Order 3 r.3 enabling computation of the annual vacation in court proceedings, the learned Judge said:

 

If by virtue of the above quoted rule I direct that the period of the annual vacation, that is a period of six weeks, see Order 48 rule 4(d), shall not be included in computing the twelve-months life of the Writ of Summons in this action, it follows that the present application for renewal was brought before the expiration of the writ as required under Order 5 rule 6 of our Rules of Court. If on the other hand I do not so direct, does it follow that the writ, apart from having expired, has become lapsed or extinct for any other purpose? The answer to this question would be found in Re Jones; Eyre v. Cox (1877) L.J. Ch. D. 316, 25 W.R. 303. Where it was decided that notwithstanding that the twelve months had elapsed, the plaintiff should be at liberty to renew the writ; in other words an expired writ is efficacious for other purposes, e.g. for renewal or further renewal.

On the above authority I am of the view that an application for the renewal of a Writ of Summons can be made at any time after it has expired.

 

I find no ambiguity in these statements which encompass the two situations necessitating the application for the renewal of a Writ of Summons - namely before and after its expiration. Thus it is a holding that an application for renewal of a writ can be made before the expiration of the twelve-month period of the issuance of a writ and after.

 

Again the Court of Appeal referred to the two cases of Eternal Sacred Order of Cherubim and Seraphim v. Elder J. S. Olugbusi & 13 ors. C.C.H.C.J./8/74/ 1255 and Standard Bank Ltd. v. Tek Deswani C.C.H.C.J./5/76/1459. Both cases were decided on the interpretation of Order 5 r.6. In the first case the Writ of Summons involved 14 Defendants. 13 of them were served within the 12 month period during the life of the Writ of Summons. Counsel for the Defendants submitted that because the 14th Defendant had not been served with the writ at the time it lapsed the entire writ abated. On the other hand, counsel for the plaintiffs contended that the writ was still valid. The learned Judge held that there was no applicable local rule of practice, after observing that Order 5 rule 6 has made provision for renewal of writs before the period within which the writ ceases to be in force. The circumstances of this case where the application was brought after the expiration of the duration of the writ was not provided for in that rule. He then cited the provisions of Order 6 rule 3 of the R.S.C. of England and In Re Kerly, Son and Verden (1901)1 Ch. 467 where it was held that although after 12 months a Writ of Summons is no longer effective, for the purposes of service, it remains efficacious for other purposes; for example for the purpose of renewal or further renewal. The learned Judge then held that Re Kerly (supra) was decided on a rule identical with a rule of the High Court which empowers the court to extend the time for doing any act, or for taking any proceeding either before or after the expiration of the time appointed by the rules. This is Order 47 r.3. The learned Judge held that the disability, which attaches to a writ served outside the 12 months period, is temporary. It lasts as long as there is no order for the renewal of the writ. When one or more of the Defendants have been served the whole writ cannot be set aside. It certainly cannot be invalid in relation to the Defendants who have been served.

 

I think the law as stated above is correct even on the interpretation of the provisions of the rule. It is clear from the judgment that the learned Judge relied on the provisions of Order 47 r.3, for the exercise of the discretion to renew the Writ of Summons on an application made after the expiration of the writ and not on Order 6 r.8 R.S.C. of England. This is so because after stating that the court has the power to renew a writ after the expiration of the 12 months, he said:

 

Order 47 r.3 provides for the exercise of the power …………… Under this rule the court can renew a writ after it has ceased to be in force that is after the allowed period of service has expired. This cannot be done under Order 5 rule 6 which deals with the renewal of writs, for that order permits renewal only before the twelve months have expired and not thereafter. Order 47 rule 3 which deals with the general power of the court to extend the time fixed by the rules is helpful here. There is no real conflict between the rules. What is disallowed under the specific rule dealing with the renewal of writs is permissible under the rule granting a general power to the court to extend all the times fixed by the rules including the period of 12 months during which an original writ is in force.

 

Dr. Aguda's observation and criticism of this judgment for relying on Order 6 rule 8(2) R.S.C. of England is not strictly accurate-See Practice & Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria (1980) at p.25.

 

It seems to me that it was in Standard Bank Ltd. v. Tek Deswani (supra) that Bada, J., relied on Order 6 rule 8 Rules of the Supreme Court of England for his exercise of discretion to renew the Writ of Summons, which had expired at the time of the application. The application was brought almost a year after the expiration of the Writ of Summons. No mention in this judgment was made to the enabling Order 47 r.3.

 

It is pertinent to point out that appellant had applied for the renewal of the writ relying on the provisions of Order 5 r.6 and Order 47 r.3, Rules of the High Court of Lagos State. I agree with the submission of counsel for the appellant that although Order 5 r.6 is a specific provision for renewal of a Writ of Summons which is still in force, Order 47 r.3 provides for the cases where the period of its effectiveness had expired. Order 47 r.3 provides as follows:

 

The Court may as often as it thinks fit, and either before or after die expiration of the time appointed by these rules, or by any judgement, order, or rule of the Court, extend or adjourn the time for doing any act or taking any proceeding.

 

It may be argued that the specific provision in Order 5 r.6 of discretion to renew Writ of Summons before the expiration of twelve months excludes the possibility of the exercise of a similar discretion after such period - expressio unius est exclusio alterius. This is because a renewal after the expiration of the 12 months period is the other possibility excluded. This cannot in the interest of justice be so. This is because Order 47 r.3 vests in the court the general exercise of discretion to enlarge time in order to avoid injustice to either of the parties - See Ogiri & anor. v. Idu & ors. (1972) 2 E.C.S.L.R. 179. However, the court is not expected to exercise this discretion, suo motu but on application of the party - See National Bank of Nigeria Ltd. v. Are Brothers (Nig.) Ltd. (1977) 6 S.C. 97, Sheldon v. Brown Bayley's Steelworks Ltd. & anor. (1953) 2 All E.R. 382. The governing dominant expression in the Order 47 rule 3, 15 the phrase "and either before or after the expiration of the time appointed by these rules". The rule is designed specifically to govern the computation of time and the consequences and effects of such computation in the Rules of Court as a whole. It is therefore applicable to Order 5, which has omitted to make provision for the exercise of discretion to renew Writs of Summons after the expiration of the 12 month period. The conclusion I have reached on the construction of Order 5 r.6, and Order 47 r.3 is that if the two rules are read together, and I so read them the learned trial Judge had jurisdiction to exercise his discretion to decide whether the application of the appellant to renew his Writ of Summons can be granted. This is because the fact that the Writ of Summons had expired and the Defendant yet to be served is not sufficient to conclude that the Writ of Summons, is dead, or is a nullity. The learned trial Judge was in error to so hold, and the Court of Appeal also wrong to affirm that judgment on that ground.

 

However, this is not all. Counsel to the appellant would seem to me to be under the erroneous assumption that the grant of the application to renew a Writ of Summons is as of course. This is very far from the true position as clearly stated in the rules and the decided cases. In the exercise of discretion to grant the application to renew the writ where application has been made before the expiration of the twelve month period, Order 5 r.6 prescribes - that applicant has to satisfy the court that reasonable efforts have been made to serve the Defendant with the writ. In the alternative he must adduce "good reasons" why the application to renew the writ ought to be granted. The factors which constitute "good reasons" on which the exercise of discretion to renew the writ could be founded are many and may vary according to the circumstances of each case. Good cause must be shown even where the application is made before the expiration of the period for service.

 

It is hardly necessary to point out that there is an obligation on the plaintiff to serve the Defendant with the Writ of Summons. Hence it is accepted as good reasons to show that Defendant is evading service or is out of the jurisdiction, and that the life of the writ was likely to expire - See Gurner v. Circuit (1968)2 Q.B. 587. These are good reasons, which may assist the court in the exercise of discretion to renew the writ. The exercise of discretion is predicated on the consideration that if the writ is not renewed and plaintiff is compelled thereby to apply to issue another writ, his claim may be barred by the provisions of the Limitation Law. See E. Ltd. v. C. & anor. (1959)2 All E.R. 468 Smalpage V. Tonge 17 Q.B .D. 644. Where the delay in serving the writ thereby delaying to the near expiration of the writ was a result of negotiation between plaintiff and Defendant, or where there has been agreement to defer service of the writ, or where delay was induced by the conduct of the Defendant or his representative may be regarded as good reasons - See Weldon v. Neal, (1887) 19 Q.B.D. 394, Heaven v. Road & Rail Wagons Ltd. (supra).

 

It is more difficult, as is the case before us, to convince the court to exercise its discretion to renew the writ after its expiration. It is more difficult where to computation of time and the consequences and effects of such computation in the Rules of Court as a whole. It is therefore applicable to Order 5, which has omitted to make provision for the exercise of discretion to renew Writs of Summons after the expiration of the 12 month period. The conclusion I have reached on the construction of Order 5 r.6, and Order 47 r.3 is that if the two rules are read together, and I so read them the learned trial Judge had jurisdiction to exercise his discretion to decide whether the application of the appellant to renew his Writ of Summons can be granted. This is because the fact that the Writ of Summons had expired and the Defendant yet to be served is not sufficient to conclude that the Writ of Summons, is dead, or is a nullity. The learned trial Judge was in error to so hold, and the Court of Appeal also wrong to affirm that judgment on that ground.

However, this is not all. Counsel to the appellant would seem to me to be under the erroneous assumption that the grant of the application to renew a Writ of Summons is as of course. This is very far from the true position as clearly stated in the rules and the decided cases. In the exercise of discretion to grant the application to renew the writ where application has been made before the expiration of the twelve month period, Order 5 r.6 prescribes - that applicant has to satisfy the court that reasonable efforts have been made to serve the Defendant with the writ. In the alternative he must adduce "good reasons" why the application to renew the writ ought to be granted. The factors which constitute "good reasons" on which the exercise of discretion to renew the writ could be founded are many and may vary according to the circumstances of each case. Good cause must be shown even where the application is made before the expiration of the period for service.

 

It is hardly necessary to point out that there is an obligation on the plaintiff to serve the Defendant with the Writ of Summons. Hence it is accepted as good reasons to show that Defendant is evading service or is out of the jurisdiction, and that the life of the writ was likely to expire - See Gurner v. Circuit (1968)2 Q.B. 587. These are good reasons, which may assist the court in the exercise of discretion to renew the writ. The exercise of discretion is predicated on the consideration that if the writ is not renewed and plaintiff is compelled thereby to apply to issue another writ, his claim may be barred by the provisions of the Limitation Law. See E. Ltd. v. C. & anor. (1959)2 All E.R. 468 Smalpage V. Tonge 17 Q.B .D. 644. Where the delay in serving the writ thereby delaying to the near expiration of the writ was a result of negotiation between plaintiff and Defendant, or where there has been agreement to defer service of the writ, or where delay was induced by the conduct of the Defendant or his representative may be regarded as good reasons - See Weldon v. Neal, (1887) 19 Q.B.D. 394, Heaven v. Road & Rail Wagons Ltd. (supra).

It is more difficult, as is the case before us, to convince the court to exercise its discretion to renew the writ after its expiration. It is more difficult where to do so will deprive the Defendant of a defence otherwise available if the writ was not renewed. This was stated by Lord Esher M.R. in the English Court of Appeal case of Hewett v. Barr (1891) ~ Q.B., 98, 99 when he said, as a general rule of conduct amendments ought not be granted where they would have effect of altering the existing rights of the parties. He declared:

 

This being the rule with regard to amendments of pleadings the same principle applies still more strongly to the case where we are asked to allow the renewal of a writ, though by so doing we should deprive the Defendant of his existing right to the benefit of the Statute of Limitations.

 

See Doylke v. Kaufman (1877-78) 3 Q.B.D. 340, Battersby & ors. V. Anglo-American Oil Company Ltd. (1945) K.B. 23. Generally the court will not exercise its discretion to renew a Writ of Summons where at the time of the application plaintiff had no right of action - See Stevens V. Services Window & General Cleaning Co. Ltd. (1967)1 All E.R. 984. The averments in the affidavit of appellant already reproduced do not disclose any grounds on which the court can exercise its discretion to grant the application. Besides, appellant issued the original Writ of Summons on the 14th January, 1981 in respect of a cause of action and injury suffered on the 15th November, 1976. Section 9(2) of the Limitation Law, Cap.70 provides that

 

(2)    Subject to the provisions of this section, no action to which this section applies shall be brought after the expiration of three years from the date on which the cause of action accrued.

 

The statement of claim discloses that even at the time the original Writ of Summons was issued, the claim of the plaintiff was already statute-barred, and plaintiff was in law incapable of making any claims against the Defendant. I think the old English case of Doyle v. Kaufman (supra) expressed it clearly in such a situation when it was there said: That the discretion to renew the Writ of Summons ought not be exercised when by virtue of a statute the cause of action was gone. In this case since the right of action at the time of the issue of the original writ was already statute-barred there was no claim surviving to renew. In my opinion where the original Writ of Summons was issued after the cause of action was barred by the limitation period, it will be extremely difficult if not impossible to find reasons for the exercise of discretion to renew such a writ which has remained unserved after twelve months. Besides, the general attitude of the solicitors to the appellant and the delay at every stage of the application justifies the refusal of the exercise of discretion. The entire proceedings initiated by the solicitors of the plaintiffs is like a wild goose chase, an exercise in futility. The solicitors have been unable to trace the Defendant. They made feeble attempt to join his insurance company and abandoned the effort. There is no averment that they know where the Defendant is and are making any effort to effect service on him.

 

It may be argued that the Defendant should be left to defend whilst the plaintiff should be allowed to pursue his remedy as best as he can. This is obviously an argument in support of the abuse of the judicial process. It will be a mockery of the administration of justice for a court to support a baseless claim by renewing the writ which claim is statute-barred when it is clear on the facts that plaintiff could not proceed a step further than the renewal of the writ. The balance of convenience in this case is heavily weighted in favour of the Defendant against whom plaintiff cannot in law maintain the action. It is established law that when the effect of the renewal of the writ is to defeat a defence available under the statute of limitations there is no discretion to renew a writ after its currency of twelve months - except there are exceptional circumstances - See Hohnan v. George Elliot & Co. Ltd. (1944) K.B. 591. There are no exceptional circumstances shown in the instant case. It is difficult, but rare, to conceive a situation where a writ which has remained unserved for more than twelve months after issue will not raise the problem of defeating a defence under the statute barring the action.

 

I think the application of the appellant in the Court below is without merit. The learned Judge was right in dismissing the application. The Court of Appeal was right in affirming the judgment even though for reasons other than what I have stated in my judgment.

The appeal fails and is accordingly hereby dismissed. I make no order as to costs.

 

 

Judgement Delivered

By

Salihu Modigbo Alfa Belgore. J.S.C.

 

I had the advantage of a preview of the judgment of my learned brother, Craig, J.S.C. with which I agree. I also dismiss this appeal and make consequential orders made by him.

 

 

Judgement Delivered

By

Philip Nnaemeka-Agu. J.S.C.

 

 

The lead judgment of my learned brother, Craig J.S.C., has admirably set out in full the facts of this appeal. I do not intend to repeat them. I also entirely agree with his reasoning and conclusions, and there is just very little I wish to add by way of emphasis.

On the issue for determination as set out by him, the appeal turns on the construction to be placed on Order 5 rule 6 and Order 47 rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 1973. Now Order 5 rule 6 provides in part as follows:

 

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.

 

Also Order 47 rule 3 provides as follows:

 

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.

 

I believe that the real questions are:

 

(i)     What is the real meaning of "No original Writ of Summons shall be in force for more than twelve months from the day of the date thereof……. "and

 

(ii)    Should that rule be construed alone as it stands or should the Court invoke the provisions of Order 47 rule 3 and extend the time within which an application can be made for the renewal of the writ so that such application can be made after a period of twelve months from the date of issue of the writ.

 

My first observation is that if the expression "no original Writ of Summons shall be in force for more than twelve months" means that after twelve months it shall become dead, then it cannot be renewed thereafter. But does it mean that?

For me to answer this question, I must try to find out the intention of the maker of the Rules. I believe that the mischief rule is a legitimate principle of construction of the rule. As it is, I must ask myself the following questions:

 

(i)     What was the provision of the Rules just before the 1972/1973 Rules were made?

(ii)    What was the mischief or defect which the old rule did not provide'?

(iii)   What remedy did the maker of the new Rule set out to cure?

(iv)   What is the true reason for the remedy?

 

For these principles, see Maxwell: On Interpretation of Statutes (12th Edn.), at page 40. As Lindley, M.R., said in Re Mayfair Property Co. (1898) 2 Ch. 28 at p.35:

 

In order properly to interpret any statute (which by definition includes Rules of Court) it is as necessary now as it was when Lord Coke reported Heydon's Case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief. (Parenthesis mine)

 

See also River Wear Commissioners 12. Adamson (1877) 2 App. Cas. 743: Eastern Photographic Materials Co. v. Comptroller-General of Patents (1898) A.C. 571 per Lord Halsbury L.C.

 

As far as my inquiry goes, no relevant Rules of Court were made under the High Court of Lagos Act, Cap.80 Laws of the Federation, 1958. But the rules made under the Supreme Court Ordinance, that is the Supreme Court (Civil Procedure) Rules, Vol. X Laws of Nigeria, 1948, were expressly preserved and made applicable by section 89(3) of the High Court of Lagos Act, 1958. That rule provides in Order II rule S thus:

 

In case service of the writ shall not have been affected within one year from the date thereof, the same shall become void. The Court may any time before the expiration of the current period from time to time renew the writ for a further period not exceeding six months at any one time. (Italics mine)

 

It is significant that this provision says that the writ shall become void. Although in certain statutes the word "void" is sometimes interpreted to mean "voidable" (see e.g. Re Brall, Ex parte Norton (1893) 2 Q.B. 381 at p.384), Courts in Nigeria interpreted "void" in Order II rule 5 of the old Supreme Court (Civil Procedure) Rules to mean "void" in the sense it was used in the case Re Meyrick's Settlement, Meynck v. Meyrick (1921)1 Ch. 311 at p.316 and in Magdalen Hospital v. Knotts 4 App. Cas. 324. They held that by becoming "void" it became empty, of no effect, invalid, without force, dead. Under that rule, it was held that a writ not renewed within the period of twelve months or during a current renewal expired and became an incurable nullity. See e.g. Buraimoh Aiao v. Adetola Omoniyi (1966) N.M.L.R. 161, per Lambo. J.

 

It is clear that the words "shall become void" in the old rule were not retained by the new rule. The new rule rather says that it shall not be in force after twelve months. It is, of course, a well-known principle of construction that where the legislator uses words different from those originally used, he is to be presumed to have intended a different meaning. See on this Hill v. William Hill, (Park Lane) Limited (1949) A.C. 530, at pages 546-547 where Viscount Simon said:

 

When the legislature enacts a particular phrase in a statute, the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that unless there is good reason to the contrary, the words add something which would not be there if the words were left out.

 

Applying this principle to the present case, I must presume that the new rule, that is Order 5 rule 6 of the Lagos State (Civil Procedure) Rules, 1973, intended to provide for something different from the old Order II rule 5 of the Old Supreme Court (Civil Procedure) Rules as interpreted in Alao v. Omoniyi (supra). Bearing this principle in mind and having regard to the wording of the new rule, I am of the view that the Writ does not become void in the sense of becoming an incurable nullity if not served within twelve months. It simply becomes inoperative, although not completely dead. I therefore agree with my brother, Craig, J.S.C., that it could be renewed and be made once more operative, in a proper case, after that period.

 

As for the second question, that is whether Order 5 rule 6 of the High Court of Lagos State (Civil Procedure) Rules should be construed alone or together with Order 47 rule 3, I must obseve that at first sight, it looks as if Order 5 rule 6 has its own in-built limitation of time as to when the application for renewal of the writ must be made. But then it is time "appointed by" ………… the ……… "rule of Court" within the meaning of Order 47 rule 3. That provision is without any limitation and is not subject to any other rule. In the circumstances, it is my view that a court can, and ought in a proper case, invoke the provision of Order 47 rule 3 set out above to consider and, if meritorious, grant an application for the renewal of a writ which is more than twelve months from the date of issue.

 

I also agree with my brother Craig J.S.C., that the application to renew for service of a writ now thirteen years old has no merit for the reasons given by him in the lead judgment.

 

Above all, a court ought not to exercise its discretion in favour of the appellant in a situation which will be tantamount to destroying a defence, i.e. statute of limitation, which would have been available to the defence, unless the new law expressly so provides. For this, see: Wilson v. Dagnall (1972)2 All ER. 44.

 

Uwaifo v. A. G., Bendel State & 3 ors. (1983) 3 N.C.L.R. 296. In the instant case it has emerged, as observed in the lead judgment, that on the record rnperly before the Court, the action was commenced after it had been barred by the State of Limitation. It was one, additionally for other reasons given, in which on the merits, the Court rightly refused to exercise its discretion in favour of the appellant.

 

In the result, I hold that the Court of Appeal and the High Court were right in their decisions. The appeal, therefore, fails and is hereby dismissed for the above reasons and the fuller reasons given by my learned brother, Craig, J.S.C.,in the lead judgment.

 

I make no order as to costs.

 

 

 Counsel

  

Chief A. Odofin

with him

Mrs. A. Delamo

Miss M. Ovie-Whiskey

 

 ......

For the Appellant

Respondent not served and not represented