Kolawole v. Alberto (1989)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

EBENEZER BABASANYA CRAIG, J.S.C. (Delivering the Leading Judgment)

There is no Respondent on this appeal and this is because the appeal emanated from an ex-parte Motion in which the appellant had prayed the High Court, Lagos State for an order to:

1. Extend the time for the renewal of the Writ of Summons and
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 18th 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 pursue 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:

“1. That I am a law clerk in the firm of Fred Egbe &
Co. who are the plaintiff’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 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 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 Order 5 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.”