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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

INTERPRETATION OF STATUTES  Statute - Particular phrase - Inclusion of therein - Presumption raised by

JURISPRUDENCE - Nullity irregularity - Distinction between

PRACTICE AND PROCEDURE - Writ - Service of -  12 months statutorily provided for - Where expires - Whether may be renewed thereafter - Cause of action - Where statute-barred or non-existent - Renewal of - Impropriety of - Lagos State High Court, 1972, Order 5, rule 6 and Supreme Court (Civil Procedure) Rules, Order 2, rule 5 juxtaposed

STATUTE - English Rules - Reference to - When may be made

STATUTE - Lagos State High Court, 1972, Order 5, rule 6 and Supreme Court (Civil Procedure) Rules, Order 3, rule 5 juxtaposed - Writ -  Service of - 12 months statutorily provided for - Where expires -  Whether may be renewed thereafter - Cause of action - Where statute-barred or non-existent - Renewal of - Impropriety 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 there is in essence, a difference in the rules of court in the Lagos State High Court and those in the Royal Court of Justice in England.

Facts:

The plaintiff commenced an action in the High Court of Lagos State in 1981, claiming damages for personal injuries and expenses incurred as a result of negligent driving of a car by the defendant on 16 November 1976. Due to difficulties experienced in serving the defendant, the plaintiff obtained an ex parte order of court to serve the defendant through his insurers. The latter however refused service on ground that its name was not referred to in the writ. The plaintiff subsequently obtained an order of amendment to reflect the name of the insurer on the writ. In 1984, the plaintiff filed the present application seeking leave of court to extend the time for renewal of the writ of summons and renewal of the writ for a period of six months. The application was based on grounds that when the insurer refused service of the writ, the solicitors forgot to inform the plaintiff of the development. The trial court dismissed the application. Aggrieved, the plaintiff appealed to the Court of Appeal where the appeal was dismissed. Yet aggrieved, the plaintiff appealed to the Supreme Court.

In determination of the appeal, the Supreme Court considered the following statutes;

High Court Law of Lagos State, section 12 which provides:

“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 courtas may be 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.” Lagos High Court Rules, Order 5, rule 6 which provides:

“6. No original writ of summons shall, be in 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 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 during the currency of the renewed writ.” Lagos High Court Rules, Order 5, rule 8 which provides: “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.”

Lagos High Court Rules, Order 47, rule 3 which provides: “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.”

Supreme Court (Civil Procedure) Rules, Order 2, rule 5 which provides:

“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.”

High Court (Civil Procedure) Rules, Order 11, rule 5 which provides: “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 anytime 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.”