Ozo I. O. U. Ayalogu & Ors. V. Igwe Josiah Agu & Ors. (2001)
LawGlobal-Hub Lead Judgment Report
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:
- 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.
- 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:
“Whether the learned trial judge was justified in suo motu extending by six months the life of the writ of summons which had already expired, without application by anybody.”
In respect of this issue, it was submitted on behalf of the appellants that the learned trial Judge had neither power nor discretion to extend the life of the writ which had already expired, for six months without an application by plaintiffs. For this submission, reliance was placed on the provisions of Order 5 rule 20 of the High Court Rules applicable to Enugu state which reads as follows:
“20(1) In case service of an originating process shall not have been effected within one year from the date of its issue the process shall cease to have effect for purposes of service unless at any time before or after the expiration of the current period, the court, on the application of the plaintiff, renews the process for a further period not exceeding six months at one time. Such a process not served after two years of its issue, shall become void altogether and the suit shall be struck out.
20(2) Before an originating process, the validity of which has been extended under this provision is served, it shall be marked with an official stamp showing the period for which the validity of the process has been so extended.”
The cases of (1) Traw v. Ind. Coop. Ltd. (1967) 3 WLR 653 C.A. and (2), U.T.C. v. Nwokoruku (1993) 3 NWLR (Pt. 265) 303 at 321 (sic) were also cited to support the proposition that it was ultra vires for a trial Judge to suo motu extend the life of a writ of summons or any other originating process of court without an application by the plaintiff, giving reasons why the said writ could not be executed within the prescribed time. In the instant case, there was no application whatsoever made by the plaintiff for extension of the life of the writ, neither was there any reason whatsoever placed before the court stating why the writ could not be served within prescribed time of 12 months. Such suo motu extension of the life of the writ was therefore ultra vires, illegal and void. The court was therefore urged to allow this appeal and strike out the suit as the writ of summons has remained unserved for over two years.
As already mentioned above, up to the 6th December, 2000, when this appeal was heard, the respondents filed no brief, and so the appellants’ arguments summarised above remained uncontradicted.
I have carefully considered the appellants’ arguments and the few authorities cited above, and also done my independent research and find as follows:
There is no doubt from the records that the learned trial Judge suo motu extended the life of the writ by six months. The only disputed point now is whether such purported and unsolicited extension of the life of the writ of summons was effective, or was a mere exercise in futility as there was no application for such extension by the plaintiffs either written or oral. In order to resolve this problem, I have had to first look at the applicable rules of court, then the few decided authorities on the point to see whether there have been any judicial interpretation or pronouncements on the matter, and found as follows:
First I found there is provision in the Anambra State of Nigeria High Court Rules, 1988, applicable to Enugu State governing the life span of a writ of summons and how same can be extended. The said provision is contained in Order 5 rules 20(1) and (2) of the rules, which were accurately reproduced at page 6 of the appellants’ brief as follows:
“20(1) In case service of an originating process shall not have been effected within one year from the date of its issue, the process shall cease to have effect for purposes of service unless at any time before or after the expiration of the current period, the court, on the application of the plaintiff, renews the process for a further period not exceeding six months at one time. Such a process not served after two years of its issue, shall become void altogether and the suit shall be struck out.
(2) Before an originating process, the validity of which has been extended under this provision is served, it shall be marked with an official stamp showing the period for which the validity of the process has been so extended.”
From the italicized portion of Order 5 rule 20(1) reproduced above, it would be seen very clearly that a judge does not “in vacuo” or “suo motu” extend the life of an originating process of court in our jurisprudence. It has to be “on the application of the plaintiff”. Since there was no evidence on record that the respondents in this case, who were the plaintiffs, ever applied to the learned trial Judge for such extension of the life of the writ, it follows that the whole exercise was a nullity and ineffective.
However, just in case there is any judicial interpretation which says that in extenuating or exceptional circumstances, a judge could “suo motu” extend the writ of summons in a case pending before him, I have undertaken a research of my own, in addition to the case of U.T.C. v. Nwokoruku (1993) 3 NWLR (Pt. 265) 303 and 321. In the first place, I must say that the citation of that case was wrongly given. The correct citation I found was “(1993) 3 NWLR (Pt. 281) 295., secondly, I found that that case had nothing whatsoever to do with the extension of the writ of summons. The case was simply a case of wrongful dismissal between a master and servant, in which the Court of Appeal unanimously allowed the appeal in part and dismissed the cross-appeal. Perhaps the only thing that could be taken out of that case is a dictum of Umaru Abdullahi, J.C.A. (as he then was) at page 308 G – H of the report as follows:
“It is also a cardinal principle of our jurisprudence in this country that a court has no jurisdiction to award a relief not sought by a party to an action see Imoloame v. WA.E.C. (1992) 9 NWLR (Pt. 265) 303 at 321.”
So, apart from the above dictum which is now trite law, no further reference will be made to the case of U.T.C. v. Nwokoruku (supra).
The next and only other case I came across on the topic of renewal or extension of the life span of a writ of summons was the case of Idowu v. Bamijoko (1996) 7 NWLR (Pt. 461) 496. In that case on similar facts, and in construing Order 5 rule 6 and Order 47 Brule 3 of Lagos State High Court (Civil procedure) Rules, 1972 which were in pari materia as Order 5 rules 20(1) and (2) of Anambra State Rules, 1988, the Court of Appeal, (Lagos Division) had the following to say under ratios 1 and 2 at page 498 of the report:-
“1. On life span of writ of summons:
A writ of summons which is not served within 12 months of its issuance is not void. Such writ merely ceases to be in force and is renewable either before or after 12 months of its date of issue. (P. 502, paras, C – D).
- On power of court to renew writ after expiration thereof: By a combined interpretation of Order 5 rule 6 and Order 47 rule 3 of the Lagos state High Court (Civil procedure) Rules 1972 a writ of summons can be renewed by the court either before or after the expiration of 12 months of its date of issue but such renewal must be for good reasons. (Kolawole v. Alberto (1989) 1 NWLR (Pt.98) 382 referred to). (P. 502, paras. G – H)
In view of the insistence under ratio 2 above that:
“but such renewal must be for good reasons”
it becomes clear that the renewal of the life span of a writ of summons must be on the application of somebody other than the learned trial Judge handling the case. The said application must also give “good reasons” why the writ could not be served within prescribed time. This also shows that a third party must be the applicant for the extension or renewal of the life of a writ of summons. The same High Court Judge could not be the person adducing “good reasons” before himself and also be the person giving a ruling in the matter.
In view of the foregoing, I am of the firm view that it was necessary for a plaintiff to apply for extension of the life of the writ of summons before the learned trial Judge could extend it. Since there was no such applicant to give good reasons why the writ could not be served within prescribed time, the exercise was clearly a nullity and must be set aside.
This appeal therefore succeeds and is hereby allowed. The purported extension of the writ of summons in this case by six months is hereby set aside as a nullity. Since on the facts of this case the said writ had remained unserved for over two years from date of its issue, it becomes void. The suit itself is accordingly hereby struck out with costs of N3,000.00 (Three thousand Naira) in favour of the appellants.
Other Citations: (2001)LCN/0949(CA)