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April 24, 1986
HIGH COURT
GHANA
CORAM
JUDGMENT OF AMMAH J.
This is an application ex parte by the plaintiff per his counsel for an extension of time to renew the writ of summons under Order 64, r. 6 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). It is accompanied by an affidavit setting out the facts relied upon. The renewal of a writ is dealt with under Order 8, r. 1 of L.N. 140A. By that rule “ . . . the plaintiff may, before the expiration of the twelve months, apply to the Court or a Judge, for leave to renew the writ; . . .”
[p.477]
In this case the writ was filed on 18 August 1983. It is clear that the present application filed on 16 July 1986 is long after the expiration of the twelve months’ period allowed by Order 8, r. 1, hence the application for an extension of time to renew the writ.
In support of the present application filed on 16 July 1986 it is deposed as follows in paragraph 3 and 4 of the affidavit by the plaintiff-applicant.
“3 That the third defendant was out of the country. I could not serve him with the writ of summons although his driver was served.
4 That I did not apply for service by substitution because I was seriously sick and could not travel to Accra to see my lawyer. But I have been informed that the third defendant has now returned to Kumasi and can now be served.”
The general principle under the English rules with regard to renewal of writs is that if it is made after the expiration of twelve months as in the instant case, renewal will not ordinarily be granted if the effect thereof would be to deprive the defendant of a defence of a statute of limitation which has accrued to him by reason of the plaintiff’s delay: see Battersby v. Anglo-American Oil Co. Ltd. [1945] 1 K.B. 23, C.A.: Sheldon v. Brown Bayley’s Steel Works Ltd. and Dawnays Ltd. [1953] 2 Q.B. 393, C.A. and E. Ltd. v. C. [1959] 1 W.L.R. 692.
But it is significant to note that in the case of Ofori v. Lartey [1978] G.L.R. 490 at 494, C.A the Court of Appeal pointed out as follows:
“Order 8, r. 1 now differs from the English equivalent, Order 6. r. 8. Our rule expressly preserves the requirement that the applications must be made before the expiry of twelve months.”
From the docket in this case there was an attempt made to serve the third defendant. The affidavit of service and non-service filed shows that the bailiff was told that the third defendant had travelled to a village to heal himself. This was on 2 November 1983. It could reasonably be inferred that at that
AI Generated Summary
In the High Court, Justice Ammah considered an ex parte application by a plaintiff to extend time to renew a writ of summons under Order 64, r. 6 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). The writ, issued on 18 August 1983 for a cause of action arising on 27 August 1980, had not been served within the twelve-month period set by Order 8, r. 1. Affidavit evidence asserted the third defendant was out of the country and that his driver had been served; the plaintiff claimed serious illness prevented travel to Accra to instruct counsel to seek substituted service, later reporting the third defendant had returned to Kumasi, where the writ listed his address as "Transport Services, Kumasi." Reviewing English authorities and applying Ghanaian precedent, particularly Ofori v. Lartey, the court held renewal must be sought before expiry and time cannot be enlarged to defeat accrued limitation defenses. Finding substituted service was available and the writ had become ineffective due to non-service, the court refused the application and dismissed it.