LARTEY vs. OFORI AND ANOTHER [1973] 1 GLR 230

CASES REFERRED TO

(1) Adu v. Ankumah [1972] 1 G.L.R. 22.

(2) Battersby v. Anglo-American Oil Co., Ltd. [1945] K.B. 23; 61 T.L.R. 13; [1944] 2 All E.R. 387;

114 L.J.K.B. 49; 171 L.T. 300; 88 S.J. 423, C.A.

(3) Djorbua v. Poku [1971] 1 G.L.R. 93.

(4) Sheldon v. Brown Bayley’s Steel Works and Dawnays Ltd. [1953] 2 Q.B. 393; [1953] 3 W.L.R.

542; 97 S.J. 570; [1953] 2 All E.R. 894; 103 L.J. 776, C.A.

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NATURE OF PROCEEDINGS

APPLICATION by motion on notice asking that an order striking out the plaintiff’s case for want of prosecution be set aside and that the case be relisted. Subsequent proceedings are reported at p. 246 below.

COUNSEL

Dr. I. L. Ohene-Djan for the plaintiff.

S. K. K. Sotomey for the defendants.

JUDGMENT OF ANTERKYI J.

This was a motion by the plaintiff-applicant to set aside the order of this court made on 28 February 1972 striking out his action for want of prosecution under Order 62, rr. 1 and 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).

The writ issued by his solicitor was sealed on 11 June 1970. After respective attempts had been made at Kumasi and Mampase-Bekwai on 15 and 16 July 1970 to serve them, the defendants could not be found. But after these fruitless attempts to serve the defendant on 15 and 16 July 1970 a solicitor signing “for: Agent for Messrs. Lynes Quashie-Idun & Co., Solicitors for the defendants’ did file on 28 July 1970 (about twelve days after the fruitless attempts to serve the defendants) a praecipe (for search for appearance) which states: “I hereby apply for search for appearance to the plaintiff’s writ of summons by the defendants herein in the above-named suit.” And the return by the registrar as endorsed on the praecipe was: “Both defendants, Charles S. Ofori and Kwabena Appiah could not be traced at Kumasi and Mampase-Bekwai for the writ of summons to be served on them.”

The defendants so remained unserved with the writ up till 25 January 1972 when the registrar took out a summons for the action to be struck out within the provisions of Order 62; and service of the summons was to be effected on each of the parties to the action, on the solicitor for the plaintiff, and on the solicitor (for the defendants) who filed the praecipe for search for appearance of the defendants. From the returns of service of this summons, the first defendant (Ofori) and the solicitor for the defendant were served at Kumasi on 4 February 1972, but the second defendant (Appiah) could not be found by the serving bailiff who gave the following reasons for non-service: “That there is no street called Mampase at Bekwai, rather we have Nampansa street at Bekwai and there is nobody called Appiah at H/No. 3 Nampansa, Bekwai.” On 28 February 1972, the return day of the summons, upon the non-appearance of each party and of the respective solicitors served, the suit was struck out by the court.

Thereafter on 27 September 1972 (about eight months after the order striking out the suit) the solicitor for the plaintiff filed a motion on notice on behalf of the plaintiff, returnable on 23 October 1972, “praying this honourable court to set aside the order striking out the plaintiff’s claim for lack of prosecution made by this honourable court on 28 February 1972 or thereabout and to relist the case for hearing and determination upon the grounds stated in the accompanying affidavit.”

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On the face of the motion paper only the two defendants (and not the solicitor) were to be served with this application; the return of the serving bailiff was that on 5 October 1972 he served the motion paper and affidavit on Charles S. Ofori (the first defendant) at Kumasi. The affidavit in support of the motion reads as follows:

“I, Emmanuel Charles Lartey of Afirisipa in the Brong-Ahafo Region make oath and say as follows:

(1) That I am the deponent and the plaintiff herein.

(2) That on 11 June 1970, I caused a writ to be issued against the defendants jointly and severally.

(3) That immediately after the writ had been issued I continued to make inquiries from the registry of the court whether the writ had been served, but I was always informed that it had not been served.

(4) That just before the writ was served, I fell ill and went to Northern Ghana for medical treatment. That I have just returned after several months of absence from home.

(5) That due to my illness I was unable to give instructions to my solicitor when I was going away to carry on with the case during my absence.

(6) That on 24 January 1972, the registrar took out a summons for the writ to be struck out, but that the summons was not served upon me, and that the case was duly struck out on 28 January 1972.

(7) That I have now returned, and desirous to prosecute this case. I have a very good claim against the defendants. I will win the case.

(8) That in the circumstances, I swear to this affidavit to set aside the order striking out the case for hearing and determination on its merit.”

There had been nothing in the records of this case to show that from the time of filing the writ of summons on 11 June 1970 up to the date of filing the present application it had been brought to the knowledge of the solicitor for the plaintiff that a solicitor for the defendants had on 28 July 1970 filed a praecipe for search for appearance of the defendants, even though the registrar in taking out the summons under Order 62 had notified the solicitor for the defendants. When the motion came before the court on 23 October 1972 Dr. Ohene-Djan appeared for the plaintiff-applicant and Mr. Sotomey appeared for the defendants. Dr. Ohene-Djan in arguing the motion stated that the substantive action was a running down case and that prior to its institution the plaintiff had instructed his solicitor for settlement with the relative insurance company but the negotiations undertaken did fall through, and that, for the purpose of the administration of the relevant estates of the deceased persons involved, the writ was necessarily sealed

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on 11 June 1970 after the issued writ, on the instructions of the plaintiff had been brought to the notice of the insurance company concerned by its being posted to the company under cover of a letter the receipt of which the company did not acknowledge. After referring to the paragraphs of the supporting affidavit, particularly to paragraph (4) with regard to the illness of the plaintiff, counsel contended that the registrar’s summons was not served on the plaintiff personally as it should have been, but on his solicitor, and that in the circumstances the striking out order was a nullity, as the plaintiff was not given the opportunity of being heard. Counsel further contended that the result of the order striking out the action would be that the administrator might not have the right to bring a new action, as the accident occurred on 18 September 1967; that it could be inferred from the non-service of the writ that the defendants had been evading service; and that, therefore, on the facts the application to set aside the order striking out the action was grantable.

Mr. Sotomey substantially contended that:

(1) Order 62, rr. 1 and 2 under which the registrar’s summons was brought made no provisions for such an application (that is, an application to set aside an order of the court striking out the action), even on the basis that rules 1 and 2 were regularly complied with as they had been in this case; and so the present application could not legitimately be entertained.

(2) As counsel for the applicant (Dr. Ohene-Djan) was proved to have been served with the registrar’s summons, non-service on the applicant himself was immaterial, once his counsel had been served, relying as he did, on the authority of Adu v. Ankumah [1972] 1 G.L.R. 22, wherein it was held that service on his solicitor was equivalent to service on a party.

(3) Even the issue of the registrar’s summons was unnecessary, because, as the writ was sealed on 11 June 1970, it was already dead by 28 February 1972 when it was struck out by the court; for, under the provisions of Order 8, r. 1, the writ was not in force as not having been renewed within twelve months from the date of issue, 11 June 1970.

(4) If the present application to set aside the court’s order striking out the writ be granted, the result would be that the writ, as resuscitated would still be without force under Order 8, r. 1, and service of it would be akin to serving a dead writ which could not be renewed, as the time for renewal was already past.

(5) That where an action was statute barred, as the action of an application for renewal of the writ would result in denying the defendant a right of relying on a statue of limitation, the renewal ought not to (or would not) be granted—on the authority of Battersby v. Anglo-American Oil Co., Ltd.

[1944] 2 All E.R. 387, C.A.

[p.235] of [1973] 1 GLR 230 (6) No useful purpose would be served by the grant of the application (citing Djorbua v. Poku [1971] 1 G.L.R. 93).

Dr. Ohene-Djan in reply (with the permission of the court), contended that:

(1) the case of Battersby v. Anglo American Oil Co., Ltd. (supra) cited by opposing counsel was only of persuasive authority and was not binding on this court.

(2) About the writ not having been renewed, it was necessary for the present application (to set aside the order striking out the action) to be brought, and if it be granted, the application for renewal would follow.

(3) The case of Djorbua v. Poku [1971] 1 G.L.R. 93 cited did not apply in the present action because that was a case in which on the pleadings the plaintiff would not in any case have succeeded.

(4) The court had inherent jurisdiction to grant the present application, because the defendants admitted they knew of the illness of the plaintiff which, on his contention, kept him away.

(5) The contention of the defendants, that granting the application would deprive the defendants of their defence of pleading the statute of limitation, was untenable.

Now, it must be observed that the provisions of our Order 62 have no counterpart in the English Rules of the Supreme Court. And as these provisions do exist in our rules, the provisions of our Order 74 do not apply so as to make applicable “the procedure, practice and forms in force for the time being in the High Court of Justice in England.”

But there is one striking thing: While it has no English counterpart, rule 1 of Order 62 does refer to Order 64, r. 12 which is the same, in wording, as the English Order 64, r. 13 in the 1954 edition of the Annual Practice. The basis upon which the registrar is to take out a summons for striking out an action for want of prosecution is provided in Order 62, r. 1 and Order 64, r. 12. Order 62, r. 1 provides that:

“1. Where, in any cause or matter there has been no proceeding for one year from the last proceeding heard, and neither party has, under Order 64, Rule 12, given to the other party one month’s notice of his intention to proceed,…”

(The emphasis is mine.) Order 64, r. 12 (as in the English Order 64, r. 13) reads:

“12. In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed. A summons on which no order has been made shall not, but notice of trial although countermanded shall be deemed a proceeding within this rule.”

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(The emphasis is mine.) While Order 62, r. 1 is concerned specifically with the last proceeding heard, Order 64, r. 12 is concerned merely with the last proceeding had. In the first place, as both rules speak of notice being given by one party to the other, they envisage a stage in an action in which the defendant has already entered appearance and he can therefore give notice to the plaintiff as well; for, if the defendant has not appeared there is no party to whom the plaintiff could give notice or by whom the plaintiff could “from the last proceeding had…” be notified under those provisions or Order 64, r. 12.

Secondly, as Order 62. r. 1 speaks of “last proceeding heard,” and Order 64, r. 12 does speak merely of “last proceeding had,” apart from the implied pre-requisite that in each case the defendant must have entered appearance, in the case of r. 1 of Order 62 the proceeding (after which there has been none) should have been heard and not merely have been had as in the case of r. 12 of Order 64. And therefore, in each case to invoke the right reserved in the rule, there must have been a lapse of one year from the last proceeding heard in the case of Order 62, r. 1, or had merely in the case of Order 64, r. 12.

Hence, under Order 62, r. 1, the registrars right to take out a summons (for striking out an action for want of prosecution) arises if:

(i) a proceeding in the action has been heard;

(ii) for a period of at least one year from such hearing thereof there has been no other proceeding had or taken by either party;

(iii) either party has, within this interim period of one year, failed to give the other a month’s notice of his intention to proceed (as required by the provisions of Order 64, r. 12).

If a party proceeds merely under Order 64, r. 12, the one month’s notice may be given whether or not the last proceeding has been heard, provided the period of at least one year has lapsed since the filing thereof. But under Order 64, r. 1, subject to the one-year period having run, the summons cannot properly be taken out by the registrar if the last proceeding has not been heard, but has been had merely.

In the present action in which the registrar took out the summons upon which the action was struck out by the court, the ordinary writ sealed on 11 June 1970 was the only proceeding had; it had not been heard when the summons was taken out; and even though it had then been had, as neither of the defendants had been served (or, even if served, had entered appearance) there was no defendant to be notified (as a party) by the plaintiff under Order 64, r. 12, even though the one-year period had elapsed after the writ had been had. There was therefore no basis for the issuing of the summons by the registrar—the summons was therefore a nullity and the consequential order of the court striking out the action was a nullity. The present application therefore succeeds, and that order of the court is hereby set aside accordingly. The present position of the action is therefore that the writ sealed on 11 June 1970 now still remains unserved up to and including the date of this ruling, and the writ now falls to be considered under Order 8, r. 1, the provisions of which read:

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“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, . . .”

Even though no application has been brought by the plaintiff for the renewal of the writ before the expiration of the twelve-month period, could the writ be now legally held to be dead, as contended by Mr. Sotomey for the defendants? Counsel has relied on the case of Battersby v. Anglo-American Oil Co., Ltd. [1944] 2 All E.R. 387, C.A. to advance the argument that, as the twelve-month period for renewal is long past, the writ was dead for failure to renew within the period, and that granting the present application would amount to resuscitating a dead writ to deprive the defendants of a defence under a statute of limitation, because under section 30A (1) of the Civil Liability Act, 1963 (Act 176), under which the plaintiff founded his actions, no action should be brought after the expiration of three years from the date on which the cause of action accrued. In Battersby v. Anglo-American Oil Co., Ltd. [1944] 2 All E.R. 387, C.A. it was held as stated in the headnote that:

“since the period of limitation, under the Fatal Accidents Act, 1864, s. 3, had run when the application for renewal of the writ was made, the effect of grant would be to deprive the defendant of the benefit of the statute and therefore the application must be refused. Holman v. George Elliot & Co., Ltd. [1944] 1 All E.R.

639 not followed.”

The editorial note states at p. 387 that:

“R.S.C., Order 64, r. 7 [which is our Order 64, r. 6] gives a wide discretion to renew a writ more than twelve months after the date of issue, but a line of cases commencing with Doyle v. Kaufman (1877) 3 Q.B.D. 7, 340, has held that the discretion ought not to be exercised where the remedy is barred and the effect of exercise would be to deprive a defendant of the benefit of a defence based on statutory limitation. In Holman v. George Elliot & Co., Ltd. ([1944] 1 K.B. 591) the Court of Appeal recently held that this, while the accepted practice, did not amount to a rule depriving the judge of his discretion to renew, but here a different Court of Appeal express their disagreement and decide otherwise, and in view of these conflicting decisions the matter now awaits determination by the House of Lords.”

(The emphasis is mine.) That the unserved writ in the present case is now about 29 months old (at the date of delivering this ruling) is beyond question. The issue is whether it is entirely dead if it is not in force, and therefore beyond revival, under Order 8, r. 1 which begins by stating: “No original writ of summons shall be in force for more than twelve months from the day of the date thereof, including the day

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of such date….” In Sheldon v. Brown Bayley’s Steel Works Ltd. and Dawnays Ltd. [1953] 3 W.L.R. 542, C.A. the writ of summons had in the court below, been served on each defendant not within twelve months of the date appearing on it as required by Order 8, r. 1. After such service the first defendant had entered a conditional appearance to the writ, and on their application the service of the writ on them had been set aside. The second defendants who had entered an unconditional appearance, on later hearing of the result of the application to set aside the writ made by the first defendants, also applied to the master for an order that the service of the writ on them be set aside (notwithstanding that unconditional appearance had been entered), on the ground that the writ had been served on them after the expiration of twelve months from the date of issue. The master set aside the writ, and the plaintiffs therefore appealed to the judge in chambers who also affirmed the order of the master, holding that the service of a writ after the expiration of twelve months was not a mere irregularity, which was cured by the entry of an unconditional appearance, but that such service rendered the writ a nullity and wholly ineffective for all purposes, and, being so, the court or a judge had no power to permit it to be served since it was no longer in force. He accordingly dismissed the plaintiff’s appeal.

The plaintiff then appealed to the Court of Appeal. There Battersby’s case (supra) was considered with regard to the aspect of a writ which has not been served within twelve months from the date of issue under Order 8. r. 1. Singleton L.J. stated at pp. 546-547:

“I do not regard it as strictly accurate to describe a writ which has not been served within twelve months as a nullity. It is not as though it had never been issued. It is something which can be renewed. You cannot renew a nullity. The court can grant an application which results in making it just as effective as it was before the twelve months period had elapsed. I do not think that the court had in mind that which had been said in Kerley’s case ([1901] 1 Ch. 467) to which I have referred. Moreover, it was not necessary for the decision of the court in Battersby’s case [1945] K.B. 23) to consider this. The question was whether the court could exercise the discretion which it had under Ord. 64, r. 7, to renew a writ when the renewal would deprive a defendant of the benefit of a limitation which had accrued, and the judgment was to the effect that discretion ought not to be exercised in such circumstances. If the writ had been a nullity there would have been no point in considering whether the court should exercise its discretion to renew it. The position under Ord. 8, r. 1, is that the writ is not in force for the purpose of service after the twelve months period has run; it is still a writ.

The unconditional appearance by Dawnays Ltd. is a step in the action; it amounts to a waiver with regard to service; it prevents Dawnays Ltd. from being able to contend successfully that the service on them is bad.”

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Denning L.J. (as he then was) also Stated at pp. 547-548 that:

“This writ was not served within the twelve months permitted by the rule. It was served three or four days out of time. The first defendants thereupon entered a conditional appearance and got the service on them set aside. That meant that they obtained the benefit of the statutory limitation; because all that the plaintiff could then do, as against them, was to issue a new writ which would be statute barred. The second defendants, however, did not notice that the writ was served out of time. On 13 October 1952, they entered an unconditional appearance, but they soon afterwards came to know what the first defendants had done, and then they also applied to have the service of the writ set aside. The question is whether they are prevented from so doing by reason of their unconditional appearance. This depends on whether the service of a writ, after the twelve months permitted by the rule has expired, is a nullity or an irregularity. If it was an irregularity, then the irregularity was waived by the unconditional appearance; but if it was a nullity, then it could not be waived at all. It was not only bad, but incurably bad.

In determining the question it is important to notice that, even after 12 months have expired, the writ can be renewed. This is not done under Ord. 8, r. 1, for that only permits renewal before the 12 months have expired. It is done under Ord. 64. r. 7, [i.e. under our Order 64, r. 6] which is the general rule permitting enlargement of time. It was first done in 1877 by Sir George Jessel M.R. in In re Jones ((1877) 25 W.R.

303), which has been accepted as good law ever since. Now, if a writ can be renewed after the 12 months have expired, that must mean that it is not then a nullity.

There are other reasons, too, why the writ cannot be considered a nullity. Suppose a defendant, who is served after the 12 months, deliberately enters an unconditional appearance and goes to trial. It may be that it is a case where no statute of limitation avails him and he does not think it worth while to object to the service of the writ, because he knows that it would only mean the issue of a fresh one. Could he thereafter turn round and say that all the proceedings were void on the ground that the writ was a nullity? Clearly not. That shows that the service out of time was only an irregularity which could be waived . . .

It follows that I think that the dictum in Battersby’s case ([1945] K.B. 23) is incorrect. When the rule says that, after 12 months, the writ is no longer in force, it only means that it is no longer in force for the purpose of service. (See In re Kerly, Son & Verden ([1901] 1 Ch. 471, 479)).”

In the present application it is sought to set aside the order striking out the action upon the issue of the registrar’s summons. In opposition to the application one of the contentions advanced by counsel for the

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respondents was that the result of granting the application to set aside the order would be to resuscitate a writ that was dead as not having been renewed within the twelve month period under Order 8, r. 1, and that the order when granted would not serve any useful purpose. I have come to the conclusion that the registrar’s summons was a nullity and so was the consequential order based on it. The position therefore is as if no registrar’s summons has up till now been issued. And therefore the writ remains still unrenewed and unserved. And, upon the authority of the Sheldon’s case above referred to, the writ, in the unrenewed state, is not a nullity but an irregularity.

As the present application is not for an order curing this irregularity, the question does not arise with regard to whether or not the defendants would be deprived of a benefit under any statutory limitation, because a determination of that question cannot be said to have a bearing on the propriety or impropriety of the order striking out the action on the basis of the summons issued by the registrar; and as the writ in its unrenewed state is not a nullity, it cannot be upheld, as contended by Mr. Sotomey, that a grant of the order setting aside the striking out order would, on his untenable argument that the writ is in that state void, serve no useful purpose and must therefore be granted.

As already held upon the reasons hereinbefore given, the application to set aside the order striking out the writ upon the registrar’s summons is grantable. And I do hereby set aside that order, and hold the writ as unserved still remains in that state on the list.

DECISION Application granted.

Special leave to appeal granted. S. E. K.