LARTEY vs. OFORI AND ANOTHER (No. 2) [1973] 1 GLR 246

CASES REFERRED TO

(1) 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.

(2) Holman v. George Elliot & Co., Ltd. [1944] 1 K.B. 591; [1944] 1 All E.R. 639; 113 L.J.K.B. 459;

170. L.T. 373; 60 T.L.R. 394; 88 S.J. 289, C.A.

NATURE OF PROCEEDINGS

APPLICATION for enlargement of time within which to renew a writ.

COUNSEL

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

S. K. K. Sotomey for the defendants.

JUDGMENT OF ANTERKYI J.

This was a motion brought by the plaintiff-applicant “for enlargement of time within which to renew a writ and to renew the writ for service on the defendants.” An earlier motion, brought by him for an order setting aside the order striking out the writ under the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A, Order 62, rr. 1 and 2, was granted upon a ruling (reported at p. 230 supra) based on the arguments of both counsel and upon the circumstances of the matter.

In the present application both counsel have adopted substantially all the respective arguments proffered by them in the earlier one from the ruling in which counsel for the defendants has already been granted leave to appeal. As it is not unlikely that a possible appeal from this ruling, which I now hereby give, may be heard together with the appeal in the earlier one—and I assume that the party against whom the present ruling might go or might affect will also appeal—I cannot but adopt all that I decided in the earlier ruling, the more so as both counsel have, for the purpose of the present application, adopted their arguments in the earlier one.

As this application falls within the provisions of Order 64, r. 6, I must refer to the editorial note to Battersby v. Anglo-American Oil Co., Ltd. [1944] 2 All E.R. 387, C.A. wherein it was stated in the editorial note at pp. 387-389 that:

[p.248] of [1973] 1 GLR 246

“In Holman v. George Elliot & Co. ([1944] 1 All E.R. 639, C.A.) 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 decision the matter now awaits determination by the House of Lords.”

The crucial question before me is this: As the renewal of the writ in this case, upon a grant of this present application for enlargement of time to renew, would in effect be depriving the defendants of the benefit of the limitation within the provisions of section 30A (1) of the Civil Liability Act, 1963 (Act 176), have I the discretion to grant or refuse the renewal?

In view of the conflicting decisions referred to above, and taking into consideration that Battersby’s case and Holman’s case were both decided by the English Court of Appeal, I think I should exercise my discretion within the provisions of Order 64, r. 6 of our Rules to decide the question upon the following reasons:

1. In none of the line of cases referred to in the Battersby’s case did the solicitors for the defendants, after sealing of the writ and after non-service on the defendants, make a search, as was undeniably made by the solicitors for the defendants in the present case, for appearance of the defendants.

Upon the issue of 14 July 1970 and filing on 28 July 1970 of the praecipe for the search for appearance the defendants must be presumed to have had knowledge that a writ had been sealed for service on them, and to have so instructed their solicitors accordingly, and therefore, the filing of the praecipe for search of appearance unquestionably afford evidence that they, the defendants, had instructed their solicitors to act for them in the action and disclosed their address to them. When, therefore, the return to the search was made to their solicitors in these words: “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,” their solicitors were under a duty upon the instructions to call for the writs and thereby accept service and or enter appearance for the defendants.

2. The contention of the plaintiff in paragraphs (4) and (5) of his supporting affidavit that before the writ was to be served he fell ill and went to Northern Ghana where he remained for several months for medical treatment has not been disputed by the defendants so as to disclose any absence of diligence on his part in prosecuting the service of the writ.

3. That, before the writ was sealed for service, negotiations went ahead for a settlement as between the plaintiff’s solicitor and the relevant insurers, and that the attempts at settlement fell through [p.249] of [1973] 1 GLR 246 after a copy of the writ had been forwarded to the insurers under cover of a letter, are matters not controverted by the solicitors for the defendants.

For these reasons I do hereby grant the application for enlargement of time for renewal of the writ and do order that the plaintiff be at liberty to renew the writ for two months from date in case no appeal is filed by the defendants. Special leave to appeal is hereby granted, in view of the special leave already granted to appeal from the ruling in the earlier application referred to above.

DECISION Application granted.

Special leave to appeal granted.

J.D.