OZO I. O. U. AYALOGU & ORS. V. IGWE JOSIAH AGU & ORS.
(2001)LCN/0949(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of February, 2001
CA/E/153M/99
JUSTICES
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
EUGENE CHUKWUEMEKA UBAEZONU Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
Between
- OZO I. O. U. AYALOGU
2. OZO MOSES NNADI
3. COL. C. C. UDE (RTD.)
4. SAM M. UGWU Appellant(s)
AND
- IGWE JOSIAH AGU
(The Okpoto II of Ngwo)
2. OZO RAMSEY ONYIA
(Secretary Okpoto N’nze, Ngwo)
3. OZO WILSON OZONGWU
(The Ikenge of Okwojo, Ngwo) Respondent(s)
RATIO
WHETHER OR NOT THE COURT CAN GRANT RELIEFS NOT SOUGHT BY PARTIES
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). PER AKPABIO, J.C.A.
WHETHER OR NOT A WRIT OF SUMMONS WHICH HAS NOT BEEN SERVED FOR TWELVE MONTHS REMAINS A VALID WRIT OF SUMMONS
The point was lucidly elucidated by the Supreme Court in Kolawole v. Alberto (1989) 1 NWLR (Pt.98) 382, (1989) 20 NSCC (Pt.1) 213, where the Supreme Court, per Karibi-Whyte, JSC, explained, at page 231 that:
“I am unable to accept the proposition that on the expiration of the period of twelve months prescribe, the writ becomes a nullity, That is to say, the writ of summons should be regarded as void thereafter, and as having never been issued. It is paradoxical to hold that an act once legally valid can be, rendered a nullity by subsequent act unrelated to its creation. A nullity results from the effect of a fundamental vice or defect in the constituent elements of a legal act rendering the act never to have been constituted or come into being. Where an act originally valid is rendered invalid by subsequent act, the invalidity arising thereby is temporary and is curable. In my view, it is a mere irregularity …. A writ of summons which has not been served for twelve months remains a valid writ of summons, but lies dormant and ineffective for service waiting to be reactivated and rendered efficacious in the manner prescribed by rules of court. The court can grant an application which will render the writ as effective as when it was issued originally and before the period of twelve months elapsed.”
That decision was followed by this court in Idowu v. Bamijoko (1996) 7 NWLR (Part 461) 496, which interpreted the same provision of rule 6 of Order 5 of the Lagos State High Court (Civil procedure) Rules, 1972. PER OLAGUNJU, J.C.A.
AKPABIO, J.C.A. (Delivering the Leading Judgment): 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:
“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).
2. 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.
UBAEZONU, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother Akpabio, JCA. I agree with him that this appeal should be allowed. I also hereby allow the appeal and set aside the unsolicited extension of the life span of the writ I abide by the consequential orders made in the lead judgment.
OLAGUNJU, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Akpabio, JCA. I agree, in principle, with his conclusion that this appeal should be allowed on the grounds not dissimilar from those which he has painstakingly traversed and in aid of which I offer some elaboration.
The facts of the case are simple and straightforward. The respondents as the plaintiffs at the court below took out a writ of summons issued on 16/11/92 against the defendants/appellants. When it was not possible to effect personal service of the writ on the defendants/appellants, the plaintiffs/respondents applied by a motion ex parte for and obtained an order that the writ be served on the defendants’ counsel who protested against the order of substituted service. The objection of learned Senior Advocate for the defendants was upheld whereby on 9/2/94 the learned trial Judge varied the earlier order of substituted service directing that the defendants be served the writ of summons by publishing it in ‘the Daily Star’, a local newspapers. He further ordered that “the life of the writ is hereby extended by six months”, when there was no application before him for that relief. The appeal is against that order of renewal made suo motu by the learned trial Judge under sub-rule 20 (1) of Order 5 of the Anambra State High Court Rules, 1988, (applicable in Enugu State) hereinafter referred to as ‘the Rules of the court below. Sub-rule 20(1) of Order 5 reads:
“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 al any lime 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.”
I have no serious quibbles over reformulating as one issue in the leading judgment, the 2 issues framed by the appellants in their brief of argument. But I will rather examine the two issues separately so as to put in proper perspective the extent of the error of the learned trial Judge. The two issues canvassed are whether within the provisions of sub-rule 20(1) of Order 5 of the rules of the court below (a) the life of a writ of summons which has expired at the time of the application for renewal can be extended and (b) whether it is open to the learned trial Judge to renew a writ of summons of his own motion.
The argument of learned Senior Advocate for the appellants on issue one is that because the writ of summons was issued on 16/11/92 it had expired on the anniversary of its issuance, i.e. by 15/11/93 and, therefore, when it was purported to be renewed on 9/2/94 it had already become invalid and thus incapable of being renewed. With respect to the learned senior advocate the impotence of the writ of summons on 9/2/94 implied by its ceasing to have effect ‘for purposes of service’, when it was purportedly renewed by the court did not amount to a nullity given a proper application for renewal. The point was lucidly elucidated by the Supreme Court in Kolawole v. Alberto (1989) 1 NWLR (Pt.98) 382, (1989) 20 NSCC (Pt.1) 213, where the Supreme Court, per Karibi-Whyte, JSC, explained, at page 231 that:
“I am unable to accept the proposition that on the expiration of the period of twelve months prescribe, the writ becomes a nullity, That is to say, the writ of summons should be regarded as void thereafter, and as having never been issued. It is paradoxical to hold that an act once legally valid can be, rendered a nullity by subsequent act unrelated to its creation. A nullity results from the effect of a fundamental vice or defect in the constituent elements of a legal act rendering the act never to have been constituted or come into being. Where an act originally valid is rendered invalid by subsequent act, the invalidity arising thereby is temporary and is curable. In my view, it is a mere irregularity …. A writ of summons which has not been served for twelve months remains a valid writ of summons, but lies dormant and ineffective for service waiting to be reactivated and rendered efficacious in the manner prescribed by rules of court. The court can grant an application which will render the writ as effective as when it was issued originally and before the period of twelve months elapsed.”
That decision was followed by this court in Idowu v. Bamijoko (1996) 7 NWLR (Part 461) 496, which interpreted the same provision of rule 6 of Order 5 of the Lagos State High Court (Civil procedure) Rules, 1972.
The difference between that rule and sub-rule 20(1) of Order 5 of the Anambra State High Court Rules, 1980 is that in the former rule application for renewal must be brought before the expiration of the writ of summons whereas under the latter rule, the application may be made either before or after the expiration of the writ. However, by application of rule 3 of Order 47 of the Rules of the Lagos State High Court which is substantially similar to rule 3 of Order 20 of the rules of the court below and which gives the court the general power to enlarge time within which to do any act or take any proceeding. The difference between the provisions of the rules of the two courts on this particular issue was harmonized by the Supreme Court in Kolawole v. Alberto, supra.
Thus, as far as the import of a writ of summons ceasing to have effect after the initial period of one year, or 12 months, of non service is concerned vis-a-vis the life span of the writ the provision of sub-rule 20(1) of Order 5 of Anambra State High Court Rules, 1988 and rule 6 of Order 5 of the Lagos state High Court Rules, 1972, are in pari materia. As regards the life span of a writ, no time limit is specified by the Lagos State High Court Rules but under sub-rule 20(1) of Order 5 of the Anambra State High Court Rules a writ of summons remains valid for a maximum of 2 years from the date it was issued. Consequently, on issue one, on 9/2/94 when the life of the writ of summons in the case on appeal was extended by the court below the writ was, prima facie, renewable notwithstanding the fact that the writ had expired since 15/11/93, the anniversary of its issuance. Therefore, it is erroneous to say that it was not renewable as of 9/2/94 or that it had become invalid.
Issue Two is a pretty kettle of fish as it runs against two complementary principles of law. Firstly, it is expressly stated in sub-paragraph 20(1) of Order 5 of the rules of the court below, reproduced above, that an expired writ of summons can be renewed only on the application of the plaintiff. That rule gives the right which must be exercised in the way prescribed by the rule, support is lent to that proposition by the axiom that ‘the right and remedy are given uno flatu and the one cannot be dissociated from the other see Equamwense v. Amaghizemwen (1993) 9 NWLR (Pt.319) 1, (1993) 11 SCNJ 27, 42. But more direct to the point is the Supreme Court’s incisive correction of any misgivings over the matter in National Bank of Nigeria Ltd. v. The Are Brothers (Nigeria) Ltd. (1977) 6 S.C. 97, where the court, per Irikefe, JSC., as he then was, restated the position, At page 107 as follows:
“Thus, although the court has an inherent jurisdiction to extend time in any given case with a view to the avoidance of injustice to the parties, it should not do so suo motu, but upon the application of the party in default. See Keymer v. Reddy (1912) 1 K.B. p. 215 and Schafer v. Blyth (1920) 3 K.B. p. 140.”
Therefore, it was wrong for the learned trial Judge to have extended the servicing life of the writ of summons when there was no request by the plaintiffs/respondents for him to do so.
Secondly, it is trite that a court must not grant relief which the party did not ask for, a court of law is not a charitable institution; its duty, in civil cases, is to render unto every-one according to his proven claim. See Ekpenyong v. Nyong (1975) 2 S.C. 71.
Learned counsel for the plaintiffs/respondents did not ask for a renewal of the writ of summons that had ceased to have effect for the purpose of service and it is presumptuous of the learned trial Judge to have renewed the writ gratuitously. The Supreme Court has cautioned that a Judge ‘is not a knight-errant looking for skirmishes all about the place; when an issue is not placed before him, he has no business whatsoever to deal with it. Ebba v. Ogodo (1984) 1 SCNLR 372.
In the nature of not uncommon occurrences in the course of judicial proceedings one is not unmindful of the concern by a Judge to prevent an action from being frustrated because of the blunder of a counsel, a consideration that might have informed the learned trial Judge’s gratuitous renewal of the writ to prevent it from becoming void with the 2 year life – of the writ that had just a few months more to-run. On a moral angle where precepts are at large that may be a commendable gesture. But on a juridical plane that puts a premium on rules to regulate the charted procedural steps in the course of an action, it is as well to remember that courts of law while trying to do justice between parties must decide cases in accordance with well-settled principles of law. See Okaforv. Idigo (1984) 1 SCNLR 481.
Notwithstanding the lofty and magnanimous gesture of the learned trial Judge, the law as it stands, is not predisposed to beneficent philanthropy of doling out bounties on the basis of need rather than supplication that identifies the need. On the duty of a suppliant to ask for a relief before it can be granted, particularly apposite is the dictum of Babalakin, JCA., as he then was, in Ladejobi v. Shodipo (1989) 1 NWLR (Part 99) 596, 610 that the rule is ask and thou shall be given if you are legally qualified for your request’. Therefore, on issue two, the bifurcated error that mars the decision of the learned trial Judge is taking the initiative unsolicited to grant the relief which the beneficiary did not ask for.
But to highlight the error of the learned trial Judge is not to gloss over the spinelessness and cold indifference of the plaintiffs/respondents and their counsel which conduced to the lapses by the learned trial Judge. The besetting shortcomings of learned counsel for the plaintiffs/respondent, and his clients none of whom pursued this appeal are a compound of nauseating apathy and lethargy. Having taken out a writ of summons to commence the action on behalf of the plaintiffs/respondents the learned counsel would not be bothered about the elementary steps necessary to keep the originating summons alive when the defendants could not be served; he soon lapsed into a reverie as if filing an action is the beginning and the end of the entire cycle of a litigation. The lackadaisical approach to the commencement of this action at the court below is all too evident, a deficiency that is squared with the plaintiffs/respondents’ indifference to this appeal.
However, that may be, the writ of summons having run its life span, there is no serviceable or live originating summons extant with which an action can be commenced. The putative action is moribund, requiring a mere formality to terminate its hibernation on the cause list. Therefore, for the reasons hereinbefore canvassed and for the fuller reasons agitated in the leading judgment I too will allow this appeal, set aside the order of the court below extending the life of the writ of summons and substitute therefor an order striking out the plaintiffs/respondents’ action, I abide by the order of costs made in the leading judgment.
Appeal allowed.
Appearances
A.I. Offiah [Mrs.For Appellant
AND
Respondents UnrepresentedFor Respondent
