APOSTLE PHILIP ILESANMI v. SEGUN ESAN & ANOR
(2012)LCN/5280(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of March, 2012
CA/L/891/2010
RATIO
APPEAL: PRIMARY OBJECTIVES OF A REPLY BRIEF
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
- To counter respondent’s Legal Arguments
- To restore the focus back onto Appellant’s opening brief
- To supplement Appellant’s authorities
- To answer Respondent’s cross-appeal.”
See also: Order 18 Rule 5 Court of Appeal Rules 2011. PER KUMAI BAYANG AKAAHS, J.C.A.
LEGAL SYSTEM: NATURE OF THE NIGERIAN LEGAL SYSTEM
The Nigerian legal system is based on the common law and its strength and beauty is built upon the concrete examples of case law rather than hypothetical models as the civil law does. It is also important to stress that the principle of judicial precedent and hierarchy of Courts which strives on the doctrine of state decisis are well entrenched in our system of jurisprudence. Thus the decision of the Supreme Court on any matter is final which is not subject to an a appeal to any other person or body. Similarly the decisions of the Court of Appeal are binding on all other lower Courts. PER KUMAI BAYANG AKAAHS, J.C.A.
JUDICIAL PRECEDENT: BINDINGNESS OF SUPREME COURT PRECEDENT
Whenever the Supreme Court has decided on an issue, all other courts below it are bound to follow the principle so laid down. It will amount to judicial lawlessness to refuse to follow a precedent of the Supreme Court no matter how intelligent the Judge may be. PER JOHN INYANG OKORO, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
APOSTLE PHILIP ILESANMI Appellant(s)
AND
1. SEGUN ESAN
2. BARRISTER LEKAN ALABI Respondent(s)
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.
What necessitated the ex-parte motion which the Appellant filed on 1st June, 2010 was that on 17th May, 2010 when the matter came up in court for the first time the 1st Defendant had not yet been served with the writ of summons. Notwithstanding this fact the Defendants had entered a memorandum of appearance on 9th September, 2009 and also filed their statement of defence and counter-claim. In paragraphs 4, 8, 9 and 10 of the affidavit in support of the motion exparte it was deposed by Friday Oruma as follows:
“4. That the writ of summons and all other originating processes in this suit were immediately served on the 2nd Defendant in this suit.
8. That despite the non-service of the originating processes on the 1st Defendant due to his evasiveness, the 1st and 2nd Defendants entered an unconditional appearance in this matter on 9th November, 2009 and filed a joint statement of defence and counter-claim on 9th November, 2009.
9. That the 1st Defendant appeared in Court on 17th May, 2010 to complain that he has not been served with the processes in this suit despite his defence and counter-claim before the court and the court directed that same be served on him but in view of the fact that the processes have expired, the claimant/applicant has now brought this application to renew the life span of the processes.
10. That the life span of the writ of summons in this suit has expired having stayed for over six months and the claimant/applicant has brought application praying for the order of this Court extending the time within which the claimant/applicant may apply to renew the life span of the writ of summons and an order renewing the life of the writ of summons in compliance with the Rules.”
The resolution of the issue raised in this appeal requires a scrutiny of Order 6 Rules 6 (1) (2) and 7 of the Lagos State High Court (Civil Procedure) Rules which provide as follows: –
“6 – 6(1). The life span of every originating process shall be 6 months.
2. If a judge is satisfied that it has proved impossible to serve an originating process on any defendant within its life span and a claimant applies before its expiration or renewal of the process, the judge may renew the original or concurrent process for 3 months from the date of such renewal. A renewed originating process shall be in Form 6 with such modifications or variations as circumstances may require.
7. A judge may order two renewals in each case strictly for good cause and upon prompt application, provided that no originating process shall be in force for longer than a total of 12 months. The Registrar shall state the fact, date, and duration of renewal of every renewed originating process.”
The learned trial Judge interpreting the provision reproduced above stated at page 95 of the records: –
“It is clear from the above provision that the life span of every originating process shall be 6 months and not 12 months as canvassed in the written address of the Applicant’s counsel. The case of Ayalogu v. Agu (2002) 3 NWLR (Pt.753) page 168 referred to is therefore not applicable to Order 6 Rule 1 of the High Court of Lagos State Rules of Court. Furthermore, the condition precedent to the bringing of such application before the Court as set out in Order 6 Rule 2 have not been met by the Applicant. Order 6 Rule 2 requires that a claimant must apply for the renewal before the expiration of the writ. The writ the Applicant has applied to renew has already lapsed and going by the Rules of court, the application to renew same cannot succeed.”
I agree with the argument of learned counsel for the Appellant that the learned trial Judge misconceived the case of the plaintiff because learned counsel never argued that the life span of the writ under the High Court of Lagos State (Civil Procedure) Rules 2004 was twelve (12) months instead of six (6) months. His Lordship also failed to give due consideration to the decision in Ayalogu v. Agu Supra before ruling that it was applicable. In the written address of learned counsel contained in paragraph 4.03 at page 91 of the record the learned counsel stated as follows:
“My Lord, from the facts deposed to in the affidavit in support of this application, one Mr. Ola Balogun, a bailiff of this court effected service of the originating processes in this suit on the 2nd Defendant promptly but all efforts made by the said Mr. Ola Balogun to serve the 1st Defendant proved abortive and in the course of this exercise the life span of the writ of summons expired and the claimant has brought this application seeking the orders of this court to renew the writ of summons in this case.
In AYALOGU v. AGU (2002) 3 NWLR (Pt.753) PAGE 168 particularly at PAGE 179 paragraphs A-D, the Court of Appeal held thus:
“A writ of summons which is not served within twelve months of its issuance is not void. Such writ of summons merely ceases to be in force and is renewable either before or after twelve months of its date of issue… a writ of summons can be renewed by the court either before or after expiration of twelve months of its date of issue but such renewal must be for good reasons.”
I am of the strong view that learned counsel referred to the Ayalogu v. Agu’s case supra because of the ratio decidendi of the case which is the principle of law on which the decision was based.
The provision which the lower Court construed in Ayalogu v. Agu supra was Order 5 Rule 20 (1)(2) of the Anambra State High Court (Civil Procedure) Rules 1988 which are in pari materia with Order 5 Rule 6 and Order 43 Rule 3 of the Lagos State High Court (Civil Procedure) Rules 1972 which were interpreted in Idowu v. Bamijoko (1996) 7 NWLR (Pt.461) 496. The said Order 5 Rule 20 (1) and (2) states 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 anytime 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 of 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 the period for which the validity of the process has been so extended.”
It is not in doubt that the wordings in Order 6 Rules 6 (1) (2) and 7 Lagos High Court (Civil Procedure) Rules 2004 are not the same as those in the Anambra State High Court Rules 1998. Under the Anambra State Rules, an application for the renewal of the writ can be made either before or after the expiration of the life span of the writ but this does not appear to be the case under the 2004 Rules of Lagos State and so it poses a problem whether a writ which was not served on a party before the expiration of its life span can be renewed at all. This dilemma was effectively dealt with by the Supreme Court in Michael Kolawole v. Pezzani Alberto (1989) 2 SC (Pt.II)1 which was considered and applied in Ayalogu v. Agu supra when dealing with the issue of the renewal or extension of the life span of the writ of summons. In that case Craig, JSC construing Order 5 Rule 6 and Order 47 Rule 3 High Court of Lagos State (Civil Procedure) Rules 1972 stated at pages 10-11 which is quite apposite to the situation which the learned trial Judge faced in interpreting Order 6 Rule 6 (1) (2) and 7: –
“What has presented some difficulty and the real point of this appeal is whether an application can be made outside the twelve-month period? Some decisions of first instance have tended to show that once the twelve months have elapsed, no application for extension can be made. I do not share that view. I think the whole purpose of the Rule is to do substantial justice between the parties. Afterwards (sic) the real contest between the parties has not begun, issues have not been joined and the whole suit is at commencement stage. With this background in view, I do not think the court would want to shut out a plaintiff even before his opponent is served and before he has the opportunity to state his case.
A careful examination of the Rule shows that its real purpose is to renew an expired writ. The word “renewal” in itself shows that the idea is to bring alive an expired document. The Dictionary meaning of the word “renew” is: “to resuscitate; revivify; regenerate; reinforce; begin anew.”
In the ordinary course of events, no one ever applies to renew a current licence or certificate. In the instant case, let us suppose that the Plaintiff had applied to renew the writ six months before it expired, would not a prudent judge ask the Applicant to bring the application at a time much nearer the end of the twelve months? …
I think the provision about applying for renewal within the valid life of the writ may have led many to assume that unless the writ is made within twelve months, it cannot be made afterwards but it is obvious that if the Rule were interpreted in that manner, it would work hardship on the Plaintiff. It seems to me that such a provision has been inserted in the Rule in order to distinguish a vigilant Plaintiff from a lethargic one. Obviously a vigilant litigant would in accordance with the rule, apply before the writ actually expires, but this does not mean that a litigant who applies soon afterwards should not be heard.”
The Nigerian legal system is based on the common law and its strength and beauty is built upon the concrete examples of case law rather than hypothetical models as the civil law does. It is also important to stress that the principle of judicial precedent and hierarchy of Courts which strives on the doctrine of state decisis are well entrenched in our system of jurisprudence. Thus the decision of the Supreme Court on any matter is final which is not subject to an a appeal to any other person or body. Similarly the decisions of the Court of Appeal are binding on all other lower Courts.
Although this Court allowed the appeal in Ayalogu v. Agu supra on the extension of the life span of the writ based on the fact that it was the trial Judge who granted the extension or renewal of the writ suo motu without any application by the Plaintiff, the Court made a finding that a writ of summons which is not served within twelve (12) months of its issuance is not void and that such a writ merely ceases to be in force and is renewable either before or after twelve (12) months of its date of issue. The twelve (12) months duration was used because that is the period given under the Anambra State Rules and six (6) months would have been substituted under the Lagos State High Court Rules 2004. If the learned trial Judge had not been too casual in the handling of the application he would have seen the answer to the application in Idowu v. Bamijoko supra which decided that a writ can be renewed by the Court either before or after the expiration of the life span of the writ which decision was hinged on Kolawole v. Alberto (Supra). The peremptory dismissal of the application for extention of time to apply for the renewal of the writ by the learned trial Judge has occasioned miscarriage of justice.
Accordingly the appeal has merit and it is hereby allowed. Consequently the said Ruling dismissing the application dated 1st June, 2010 is set aside. The suit is remitted to the Chief Judge of Lagos State for re-assignment to another Judge of the Lagos High Court, Ikeja Division other than Justice O. O. Oke. I make no order on costs.
JOHN INYANG OKORO, J.C.A.: I read before now with great satisfaction the Judgment of my learned brother, Akaahs, JCA, OFR, just delivered and I agree that there is merit in this appeal and ought to be allowed. My learned brother has exhaustively dealt with the lone issue distilled for the determination of this appeal and I adopt both his reasoning and conclusion as mine. However, I wish to add a few words in support of the Judgment only.
Whenever the Supreme Court has decided on an issue, all other courts below it are bound to follow the principle so laid down. It will amount to judicial lawlessness to refuse to follow a precedent of the Supreme Court no matter how intelligent the Judge may be.
The situation which the learned trial Judge found himself while interpreting Order 6 Rule 6(1)(2) and 7 of the High court of Lagos state (civil Procedure) Rules 2004 was aptly dealt with by the Apex court in Michael Kolawole v. Pezzani Alberto (1989) 2 SC (Pt.11) 1 wherein the supreme court held, while interpreting Order 5 Rule 6 and order 47 Rule 3 of the High court of Lagos State (Civil procedure) Rules 1972, which I posit, is a beacon to the present case, that a vigilant litigant would in accordance with the rule apply for extension before the writ actually expires but that this does not mean that a litigant who applies soon afterwards should not be heard. I think this decision has laid the matter to rest. The rationale for this is that the Applicant should not be shut out even before his matter is placed before the court. Our courts have shifted from technicalities to doing substantial justice. This is proper and should be the correct interpretation of the said Rule of court.
Based on the above postulation, and the detailed analysis made in the lead Judgment, I too agree that there is merit in this appeal and is also allowed by me. The Ruling of the Lagos State High Court which dismissed the Appellant’s application is hereby set aside. I agree with the order remitting the suit to the Chief Judge of Lagos state for re-assignment to another Judge of the Lagos State High Court, Ikeja Division other than O. O. Oke J, I also make no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead Judgment prepared by my lord Kumai Bayang Akaahs, OFR, JCA and I agree entirely with his most elucidating and apt reasoning and conclusion that the appeal herein has merit and ought to be allowed.
Upon a scrutiny of the provisions of Order 6 Rules 6(1) (2) and (7) of the Lagos State High court (Civil Procedure) Rules, 2004, already reproduced in the lead Judgment (I need not reproduce same), the trial Judge ought to have deciphered, without any difficulty, that the Applicant could apply for a renewal of the Writ of Summons or any originating process before its expiration or thereafter before its renewal date or ultimate life span. That is the sensible meaning to be read from sub Rule 2 of Order 6 Rule 6 of the Lagos High Court Civil Procedure Rules, 2004 (supra). By Order 6 Rule 6 sub Rule 2, an application for renewal of a process may be before the expiry of its life span which shall not exceed 12 months. This simply means that after the expiration period of months – which is the initial span, within the next 6 months that would culminate into a period of 12 months after which there shall be no more renewal(s), the Appellant as Applicant, would be entitled to have renewals of his originating process for durations not exceeding 3 months on each occasion. The clear provisions of the law should be adhered to.
Interestingly, the binding doctrine of precedence compels the trial court and it ought to have so considered itself bound by the decision of the Supreme Court in a galaxy of cases including Ayalogu v. Agu (2002) 3 NWLR (pt.753) 168 to hold that the Applicant/Appellant was within his legal right to apply for and have his writ renewed, as he did. He had justified the grounds for the application for renewal and the court did not lack the vires to do Justice in the circumstance.
It is for this reason that I agree with my Lord Akaahs JCA in his lead Judgment when he described the peremptory dismissal of the application for extension of time to apply for renewal of the writ by the learned trial Judge as casual and one that has led to a miscarriage of Justice.
Accordingly, I join in allowing this appeal as it has merit. I also agree to set aside the Ruling of the trial court and abide by the consequential order remitting the case to the Chief Judge of Lagos State for re-assignment to another Judge of the Lagos High Court, Ikeja Division other than O. O. Oke, J.
I also make no order as to costs.
Appearances
A. C. Igbokwe, Esq. with J. C. Ugo, Esq.For Appellant
AND
A. I. Asemudara, Esq. for 1st Respondent.
2nd Respondent in person.For Respondent
