RENEWAL OF WRIT OF SUMMONS AFTER ITS LIFE SPAN  

 

JBA
 JBA
Joined: 4 months ago
Posts: 54
31/10/2019 2:57 pm  

"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 at 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. After all the real contest between the parties has not begun; issues have not been joined and the whole suit is at the commencement stage. With this background in view, I do not think the Court would want to shut out the plaintiff even before his opponent is served and before he has had 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 license 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 find support for this view in Order 5 rule 8 which provides that:

 Where a Writ is lost after being issued, the Court or a Judge in chambers, upon being satisfied of the loss, and of the correctness of the copy, may order that such copy shall be sealed and filed in lieu of the original Writ.

In that case, the purpose of that Rule is to re-issue a Writ which has been lost. No one would apply under this Rule unless the Writ were really lost. In this same way and by token of the same argument, I think that Order 5 rule 6 applies not only to a Writ, which is about to expire, but also to one which has in fact expired.

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.

Apart from this, a perusal of the whole Rule shows that it is not intended that one of the parties shall take advantage of a technical point. Thus the Rule talks about renewing the Writ from time to time during the currency of the renewed Writ." This shows that even a renewed writ can itself be renewed times over, provided that each time the application is brought, the plaintiff can satisfy the Court about any "good reasons" for making the application.

Furthermore, the Rule brings out its real purpose when it states that:

A Writ of Summons so renewed shall remain in force and be available to prevent the operation of any enactment whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original Writ of Summons.

This shows that a renewed Writ takes effect from the date of the original Writ and thus prevents the action from becoming statute-barred. In my view, this additional provision, is to afford protection to a plaintiff who acts promptly and to do substantial justice between the parties.

As stated before. I am of the opinion that a plaintiff can apply for the renewal of a Writ after it has expired. In this respect, the application would be treated as any other application for extension of time for the doing of an act.

Usually the Court has inherent jurisdiction to extend the time for the doing of any act, but in this case the provisions of Order 47 rule 3 would apply. That Rule states:

The Court may, as often as it thinks fit, and either before or after the expiration of the time appointed by these rules, or by any judgment, order or rule of the Court, extend or adjourn the time for doing any act or taking any proceeding." (Italics mine)

It will be seen that the Court is still vested with a discretion to grant or refuse the application. The overriding point is to do substantial justice to both parties. See Schafer v. Blyth (1920) 3 K.B. 140 at 143.

Thus, where there has been unnecessary delay in applying for extension, and where injustice will be caused to the other party if the time is enlarged, the application wil be refused. A. G. Leventis & Co. Ltd. V. J. Obiako (1963) 2 All N.L.R. 1."

PER Ebenezer Babasanya Craig. J.S.C. IN MICHEAL KOLAWOLE V PEZZANI ALBERTO (1989) 1 NWLR (PT. 98) OR  http://www.nigeria-law.org/Michael%20Kolawole%20v%20Pezzanni%20Alberto.htm


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