ALHASSAN vs. BOADU [1977]DLHC1227

Date	1977-05-23
Suit No.
Citation No.	[1977]DLHC1227

EDWARD WIREDU J.

IBRAHIM MAHAMA FOR THE APPLICANT.

[1977]DLHC1227
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													<main id="main" class="content" style="min-height: 60rem" >ALHASSAN <o:p></o:p>vs. <o:p></o:p>BOADU <o:p></o:p>[HIGH COURT, TAMALE]<o:p></o:p>[1977] 2 GLR 248<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
23 MAY 1977<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

IBRAHIM MAHAMA FOR THE APPLICANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

EDWARD WIREDU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDWARD WIREDU J.<o:p></o:p>This is
an application ex parte by the plaintiff herein brought under Order 64, r. 6
and Order 8, r. 1 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A),
for an extension of time within which to apply for a renewal of a writ issued
against the defendant for damages for personal injuries under the Civil
Liability Act, 1963 (Act 176). The present application has been provoked by the
fact that the writ has remained unserved after expiration of twelve months. The
accident in respect of which the action was commenced occurred on or about 30
October 1973 and the application itself is supported by an affidavit setting
out unsuccessful attempts made to effect personal service on the defendant.<o:p></o:p><o:p>&nbsp;</o:p>The
issues raised for consideration are: (a) what is the effect of a writ which had
not been served within twelve months? Whether it is a dead writ and therefore
incapable of being renewed; (b) if not dead whether the court has power to
grant an extension of time under Order 64, r. 6 of L.N. 140A and (c) whether if
the court has such power as raised under (b) above it would be proper to grant
the extension when to do so would deprive a defendant of a statutory defence of
limitation?<o:p></o:p><o:p>&nbsp;</o:p>Order 8,
r. 1 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), which is in
identical language with Order 8, r. 1 of the 1960 English Rules of the Supreme
Court is in the following language:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“No
original writ of summons shall be in force for more than twelve months from the
day of the date thereof, including the day of such date; but if any defendant
therein named shall not have been served therewith, the plaintiff may, before
the expiration of the twelve months, apply to the Court or a Judge for leave to
renew the writ; and the Court or Judge, if satisfied that reasonable efforts
have been made to serve such defendant, or for other good reasons, may order
that the original or concurrent writ of summons be renewed for six months from
the date of such renewal inclusive, and so from time to time during the
currency of the renewed writ. And the writ shall in such case be renewed by
being marked with a seal bearing the date of the day, month and year of such
renewal; such seal to be provided and kept for that purpose at the proper
office, and to be impressed upon the writ by the proper officer, upon delivery
to him by the plaintiff or his solicitor of a memorandum in Form No. 4 in
Appendix A, Part V, with such variations as circumstances may require; and a
writ of summons so renewed shall remain in force and be available to prevent
the operation of any statute 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.”<o:p></o:p><o:p>&nbsp;</o:p>“No . . .
writ . . . shall be in force” within the language of Order 8, r. 1 means shall
be in force for the purpose of service for twelve months not that the writ
ceases to be efficacious for any purpose whatever: see Re Jones, Eyre v. Cox
(1877) 25 W.R. 305 and Sheldon v. Brown Bayley’s Steel Works and Dawnays Ltd.
[1953] 3 W.L.R. 542, C.A.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s writ in this case therefore undisputedly unserved within the
twelve-month period is only not in force for purposes of service after the
twelve months and not a nullity: see Re Jones (supra).<o:p></o:p><o:p>&nbsp;</o:p>The next
question for consideration is whether the plaintiff not having brought his
application within the twelve months as required by Order 8, r. 1 of L.N. 140A
is entitled to the reliefs being sought by his application? A line of English
cases including the Sheldon case (supra) decided under Order 64, r. 7 which is
equivalent to our Order 64, r. 6 of L.N. 140A under which the present
application is brought holds the view that the court has power to grant an
extension of time within which to renew a writ unserved after twelve months. In
R. v. Akiwumi and Bannerman; Ex parte Dako (1957) 3 W.A.L.R. 14, p. 15 it was
held as stated in the head</main>