Apostle Philip Ilesanmi V. Segun Esan & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

On 14th June, 2010, the Lagos High Court, Ikeja Judicial Division dismissed an application brought by the Claimant/Applicant in Suit No.ID/1616/09 praying for an order extending the time within which the Claimant/Applicant may apply to renew the Writ of Summons dated 4th September, 2009 and an order renewing the said writ of summons. The learned trial Judge considered Order 6 Rules 6 (1) (2) and 7 of the High Court of Lagos State (Civil Procedure) Rules 2004 to hold that the life span of every originating process is six (6) months and not twelve (12) months and the condition precedent for bringing such application before the High Court as set out in Order 6 Rule 2 was not met since the application for the renewal of the writ was not made before the expiration of the writ.

The learned trial Judge proceeded to hold that the writ had lapsed and the application to renew same cannot succeed and made an order dismissing the application. The Claimant/Applicant being dissatisfied with the decision appealed against it in his Notice of Appeal dated 22nd June, 2010 from which he formulated the following issue for determination: –

“Whether from the facts and circumstances of this case, the learned trial judge was right in dismissing the application of the appellant dated 1st June, 2010 but filed on 7th June, 2010”.

The issue was adopted in the Respondents’ brief of argument. The Appellant proceeded to file a reply brief.

It is argued in the Appellant’s brief that the learned trial Judge misconceived the case of the Appellant and this occasioned a miscarriage of justice. It is the contention of learned counsel for the Appellant that he knew all along that the life span of the writ was six (6) months and not twelve (12) months and that was why he applied for the renewal of the writ after its expiration as this was reflected in paragraph 10 of the affidavit in support. Learned counsel argued that if he held the view that the life span of the writ was twelve (12) months, there would have been no need for the application to renew the writ on 7th June, 2010 which was issued on 4th September, 2010. He submitted that the principle enunciated in Ayalogu v. Agu (2002) 3 NWLR (Pt.753) 168 is that the Courts have powers to renew an expired writ.

Learned counsel for the Appellant further argued that it was a misconception on the part of the learned trial Judge to rule that the application to renew the writ should have been made before its expiration. He therefore urged this Court to allow the appeal and set aside the order.

In the Respondents’ brief which was deemed filed on 13th September, 2011 it was argued that going by the provision of Order 5 Rule 20 (1) and (2) of the High Court of Anambra State (Civil Procedure) Rules, 1988 which was interpreted in Ayalogu v. Agu Supra, a rule of Court must be obeyed and the Appellant who wanted to avail himself of the provisions of Order 6 Rule (1) and (2) of the High Court of Lagos State (Civil Procedure) Rules, 2004 but failed to comply with the provisions of the rule from which he was seeking protection, i.e. failure to bring an application for the renewal of the writ before its expiration would not be entitled to any remedy.

He said that the Appellant deliberately left out the address of service of the 1st Respondent to delay the case because the action was commenced after the 1st Respondent and other beneficiaries of the estate of Late Rev. (Mrs.) Esan had served Notice to Quit dated 1st March 2005, that the Appellant contacted his counsel who filed the originating process and put the address of the 1st Defendant as that of the 2nd Defendant.

Although the Appellant filed a reply brief this was not necessary since he was not replying to fresh issues raised in the Respondents’ brief. He merely rehashed the arguments in the appeal. In an article “Having the Last Word: The Appellate reply Brief” by Paul J. Kittion, he set out four primary objectives of a reply brief and a fifth purpose for cases involving a cross-appeal as follows:

“1. To counter respondent’s statement of facts

2. To counter respondent’s Legal Arguments
3. To restore the focus back onto Appellant’s opening brief
4. To supplement Appellant’s authorities
5. To answer Respondent’s cross-appeal.”

See also: Order 18 Rule 5 Court of Appeal Rules 2011.

Learned counsel for the Respondents imputed motive on the Appellant stating that the Appellant deliberately supplied the wrong address for service to enable him continue to stay on the property long after the six (6) months Notice to Quit and give up possession of the rented property served on him had expired.

I wish to say that except in criminal cases or where the claim of malicious publication is raised or in the consideration of punitive or exemplary damages, motive hardly plays a part in the resolution of a legal dispute.