Ozo I. O. U. Ayalogu & Ors. V. Igwe Josiah Agu & Ors. (2001)

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AKPABIO, J.C.A. 

This is an appeal against a decision of Onyia, J. of the High Court of Enugu State of Nigeria holden at Enugu in Suit No. E/434/92 delivered on 9/2/94, wherein in an interlocutory application for setting aside an ex-parte order for substituted service, he not only varied his previous order for service of writ of summons through counsel and made a fresh order that the service be effected by publication in one of the local dailies, namely “The Daily Star”, but he went further to make the following unsolicited or gratuitous order: “The life of the writ is hereby extended by six months “.

The defendants in the suit being dissatisfied with the said gratuitous order have appealed to this court.

It is not necessary to give in detail the chieftaincy wrangling that erupted between the plaintiffs and the defendants in this case, what is necessary is to say that following protracted difficulties in effecting service of their writ of summons on the defendants in a chieftaincy dispute, the plaintiffs applied by an ex-parte motion to the Enugu State High Court, presided over by P.c. Onyia, 1. for an order that:

“the writ of summons be served on the defendants by substituted means by serving same on their Counsel A.O. Mogbo, (SAN.).”

The said application was duly granted. However, when the said writ of summons was ultimately served on Mr. A. O. Mogboh (S.A.N.), he wasted no time in applying by a motion on notice, for the said service to be set aside, as he was not living in the same vicinity with the defendants and would experience a lot of difficulties in locating them. In his view the defendants were entitled to “personal service”. In due course the application came up for hearing before Onyia, J. and was duly argued. The learned trial Judge granted the application, and varied his order as already mentioned above, but added suo motu the following unsolicited order:

“The life of the writ is hereby extended by six months.” (Italics mine)

It is this gratuitous order that has provoked the appeal to this court by the defendants on two grounds from which two issues for determination were also formulated as follows:

1. Whether the writ of summons which was issued on 16/11/92 had not expired before the learned trial judge, suo motu, purported to renew it on 9/2/94 and extend its life by six months.
2. Whether the trial court had power suo motu to extend the life of a writ already expired assuming the court had such power or discretion to extend the life of the writ whether that power or discretion was judicially and judiciously exercised in the circumstance.”

The defendants will hereinafter in this judgment be referred to as the “appellants”.

The plaintiffs on the other hand did not file any brief of argument and consequently formulated no question for determination. That not withstanding, they will hereinafter be referred to as “respondents” in this judgment.

Following the failure of the respondents to file their Respondents Brief within 45 days as required under our Rules, an application was made on behalf of the appellants under Order 6 rule 10 of our Court of Appeal Rules (As amended) 1981, on the 21st June, 2000, praying this court for an order

“that this appeal be fixed for hearing in default of respondents’ brief of argument”

The said application was duly heard and granted on 5/10/2000. The appeal was thereafter fixed for hearing on 6/12/2000, and a fresh hearing notice sent to the respondents and their solicitor. On the said 6/12/2000 … when the respondents had still not appeared, this court had no alternative but to hear the appeal “ex-parte” and authorized under Order 6 rule 10 of our Court of Appeal Rules, 1981.

Although the appellants have formulated two issues for determination in this appeal, I am nevertheless of the view that the said two issues can be combined and disposed of under one issue as follows: