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  • 2002-11-25
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Kolawole v. Alberto

MICHAEL KOLAWOLE

V

PEZZANNI ALBERTO

SUPREME COURT OF NIGERIA

AUGUSTINE NNAMANI, JSC (Presided)

ADOLPHUS GODWIN KARIBI-WHYTE, JSC

SALIHU MODIBBO ALFA BELGORE, JSC

PHILIP NNAEMEKA-AGU, JSC

EBENEZER BABASANYA CRAIG, JSC ( Read the Lead Judgment ) 

SC. 165/1986 

FRIDAY, 3RD FEBRUARY, 1989.

APPEAL - Ground of appeal - Ground not covered by notice of appeal Whether incompetent

COURT - Application to renew a writ before or after expiration - Rationale for entertaining same

COURT - Discretionary power of to grant order for renewal of writ - Duty on plaintiff before same can be exercised

COURT - Discretionary power of to renew expired writ - Duty to exercise same to prevent claim being caught by statute of limitation

COURT - Duty on not to renew writ if any existing rights of defendant will be altered

COURT - Inherent power of to grant extension of time - Whether discretionary

COURT - Nigerian Courts - When can make reference to English Rules COURT - Plaintiff with no right of action - Whether court will exercise its discretion to favour same

COURT - Rules of court - English Rules - Need to resort thereto in the absence of local Rules

COURT - Unserved writ of summons - Duty on court to renew life of if reasonable efforts have been made by plaintiff to serve

COURT - Writ brought after expiration - Whether can grant application to renew same

COURT - Writ incapable of supporting valid action - Duty on court not to validate same

COURT - Writ of summons - Re-issuance of writ - Whether court can seal copy of lost writ to re-issue the original writ

INTERPRETATION OF STATUTES - Mischief rule - Application of in interpretation of statute

INTERPRETATION OF STATUTES - Rule that a meaning should be given to every word used in a statute - Implication of

LEGAL PRACTITIONERS - Counsel - Act of ineptitude on the part of  Impropriety and effect of same

PRACTICE AND PROCEDURE - Creation of the thing being declared invalid - Subsequent act not related thereto - Whether invalidity arising therefrom is mere irregularity

PRACTICE AND PROCEDURE - Discretionary power of court to renew expired writ - Duty of court to exercise same to prevent claim being caught by statute of limitation

PRACTICE AND PROCEDURE - Plaintiff with no right of action - Whether court will exercise its discretion to favour same

PRACTICE AND PROCEDURE - Unserved writ of summons - Duty on court to renew life of if reasonable efforts have been made by plaintiff to serve

PRACTICE AND PROCEDURE - Writ brought after expiration Application to renew same - Whether court can grant

PRACTICE AND PROCEDURE - Writ incapable of supporting valid action -  Duty on court not to validate same

PRACTICE AND PROCEDURE - Writ of summons - Application to renew a writ before or after expiration - Rationale for court entertaining same

PRACTICE AND PROCEDURE - Writ of summons - Invalid writ - Whether can ground valid proceedings

PRACTICE AND PROCEDURE - Writ of summons - Life span of - Whether in force for only twelve months - Order 5 rule 6, Lagos State High Court Rules

PRACTICE AND PROCEDURE - Writ of summons - Order for renewal of writ - Duty on plaintiff before court can exercise its discretionary power to grant same

PRACTICE AND PROCEDURE - Writ of summons - Re-issuance of writ -

Whether court can seal copy of lost writ to re-issue the original writ

PRACTICE AND PROCEDURE - Writ of summons - Renewal of life for expired writ - Plaintiff seeking same - Duty thereon to supply good reason for court to grant same

PRACTICE AND PROCEDURE - Writ of summons - Renewal of life of writ - What plaintiff seeking same should do

PRACTICE AND PROCEDURE - Writ of summons - Renewal of writ Duty on court not to renew writ if any existing rights of defendant will be altered

PRACTICE AND PROCEDURE - Writ of summons - Renewal of writ - The fact that defendant is evading service or is out of service - Whether a good reason for renewal of writ

PRACTICE AND PROCEDURE - Writ of summons - Rule dealing with renewal of writ - The phrase ‘shall not have effect after 12 months therein’ - Whether meant that the writ is void 12 months after its issuance

PRACTICE AND PROCEDURE - Writ of summons - Service of writ - Duty on plaintiff to ensure timeous service

PRACTICE AND PROCEDURE - Writ of summons - Service of writ - Service done after expiration of writ - Whether valid if defendant enters unconditional appearance

PRACTICE AND PROCEDURE - Writ of summons - Service of writ - Where delay in service is caused by conduct of defendant during negotiation -  Whether a good reason upon which application for renewal can be based

PRACTICE AND PROCEDURE - Writ of summons - Writ not served within twelve months of issuance  - Whether void

WORDS AND PHRASES - ‘Become void’ - Meaning of

WORDS AND PHRASES - ‘Renew’ - Meaning of

Issue:

Whether a writ of summons issued for more than twelve months and not served within that period can be renewed and whether an application brought outside the twelve months life of the writ can be entertained and granted.

Facts:

The appellant’s solicitor filed a writ of summons dated 14/1/81 for a cause of action which arose in 1976. 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 18/10/92, Omololu Thomas, J. (as he then was) ordered that the order could be served as he refused the deposition of the writ within their premises. Nothing happened until 1984 when appellant’s solicitors by a motion dated 29/3/84 prayed the High Court for extension of time for the renewal of the writ.

The affidavit stated that somehow information did not get to the plaintiff’s counsel that service was not effected on the insurance company. Counsel to the plaintiff then argued that the writ had expired hence the application. The application was refused at the High Court and the decision was affirmed by the Court of Appeal. The appellant has now appealed to the Supreme Court.