Lokko And Another v. Lokko [1989-90] 2 GLR 96

Material Facts

The plaintiff issued a writ against the defendant, claiming certain reliefs. On the writ, the address of the defendant revealed that the defendant was resident in New York and therefore outside the jurisdiction. The writ was served on a person within the jurisdiction. The defendant contended that the writ of summons was issued outside the jurisdiction without leave of the court, as sanctioned by Order 2, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) and is consequently contrary to law and procedure and the same is void and of no effect whatsoever and the writ of summons shall be wholly set aside as null and void ex debitio justitiae.

Issue:

Whether the writ of summons was issued in violation of the law and is therefore null and void.

Arguments of the Plaintiff:

1. That failing to obtain the leave of the court was a mere irregularity which could be cured.
2. That the irregularity was waived by the defendant when she entered unconditional appearance and filed a defence. That they can no longer complain about the irregularity.

Arguments of the Defendant:

1. That since the plaintiff never obtained the requisite leave before issuing the writ, this was in clear violation of the law; the writ was incurably bad and completely null and void.
2. That the violation is so fundamental that it cannot be cured by order 70 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A).

Holding:

The writ of summons was in violation of Order 2, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) , and the violation was such that it cannot be cured by Order 70 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) .

Ratio Decidendi:

Order 2, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) provides that “No writ shall... be issued without the leave of the Court.” The plaintiff has admitted that the leave of the court was not obtained before issuing the writ. In light of this admission, the question is “whether the breach or non-compliance with this rule [the equivalent of Order 2 Rule 7(5) of C.I. 47] is a mere irregularity and not a fundamental breach which incapacitates the writ and renders same a nullity.” In holding that the writ is rendered null by the breach, the court stated that:

The use of the word “shall” [in Order 2 Rule 4 of L.N. 140A, which is similar to Order 2 Rule 7(5) of C.I. 47] makes it a mandatory precondition. I would not classify such non-compliance as a mere irregularity because it touches at the very root of the writ.

The fact that the defendant entered an unconditional appearance instead of entering a conditional appearance and moving the court to set aside the writ for being null does not mean the defendant cannot do so at a later time in the proceedings, as Order 25 Rule 2 of L.N. 140A provides that “Any party shall be entitled to raise by his pleading any point of law.”

Principles in Case:

1. Non-compliance with the rules of civil procedure may render a writ null or be regarded as a mere irregularity that can be cured.
2. Where the rules use the mandatory word “shall,” the rule becomes mandatory, and its breach will not be a mere irregularity.
3. Where a writ is issued out of the jurisdiction without leave of the court, the writ is null.