Leave was granted by the High Court to the applicant to issue a writ of Habeas Corpus against the respondents and it was also ordered that copies of the Application order for Leave should be served on the respondents.

On the return day the respondents, having filed an affidavit to the effect that only copies of the Writ were served on them, applied that the proceedings should be struck out as being irregular.

Counsel for the respondents submitted that the Law required that the original writ must be served personally on the person named in the Writ and that where the writ was directed to more than one person as in the present case, it must be served on the person first named, and copies must be served on each of the other persons named in the writ. It was further submitted that the Notice to be served with the writ as required by Order 54, rule 6(4) of the Rules of the Supreme Court of England was not served and that the failure to serve it coupled with the irregularity in the service of the copies of the writ viciated the whole proceedings.

Counsel for the applicant submitted that the rule which required the original writ to be served was not an absolute rule and that even if it were, the copy of the writ that had been served on the 1st respondent would have been adequate service. Counsel for the applicant then asked for an adjournment to enable him to regularise the matter by serving the original writ as well as the Notice which should accompany it.

HELD:

(1)     In a case of this nature, it is the original writ that must be served on the 1st defendant even though a copy could be served on the 2nd defendant.

(2)     In this case, it was not merely a question of failing to serve the original writ on the 1st respondent but what was served on the respondents in compliance with the leave obtained was only a form for a writ. Besides, the appropriate notice required by the Rules to be served along with the writ was not even prepared.

(3)     Those omissions were, in the view of the court more than mere irregularities which could be cured by the applicant, but were defects which go to the root of the matter. The leave which was obtained had, therefore, lapsed and the whole proceedings would be struck out.

Proceedings struck out.

Case referred to:

R. v. Rowe [1894] 71 L.T. 578.

Rules and Orders referred to:

Rules of the Supreme Court of England Order 54, rule 6(4); 7

APPLICATION FOR WRIT OF HABEAS CORPUS

Esin (with him Eneyo), for the Applicant.

Jinadu. Ag. Deputy Solicitor-General, for the Respondents.

Kazeem K.:-On 3rd August, 1970, leave was granted by this Court to the applicant for the issue of a Writ of Habeas Corpus against the respondents and it was also ordered that copies of the application Order for leave should be served on the respondents. The return day was given as 14th August, 1970.

On the 14th August, 1970, it was complained by Counsel for the applicant that the Writ had not been served on the 1st respondent and consequently the matter was adjourned till 21st August, 1970, to enable that to be done and the respondents to appear in obedience to the Writ. It was also expected that on that day the applicant would have strictly complied with the Order made in accordance with the applicable rules and that the respondents would have also complied with the procedure laid down under Order 54, rule 7 of the Supreme Court Rules in England which is applicable on these proceedings by not only filing the necessary returns but by also producing the body of the person detained. However, on 21st August, 1970, the respondents having filed an affidavit to the effect that only copies of the Writ were served on the respondents applied that the whole proceedings were irregular and should be struckout. A document purporting to be a writ of Habeas Corpus was annexed to the affidavit of the respondents.

Mr Jinadu Acting Deputy Solicitor-General who appeared for the respondents submitted that the law requires that the original writ must be served personally on the person named in the Writ and that where the writ is directed to more than one person as in the case before the court it must be served on the person first named that is the 1st respondent and copies must be served on each of the other persons named in the Writ. He contended that in so far as copies of the writ were served on both respondents that was an irregularity which could not be waived. He submitted further that the responsibility for ensuring that the original writ was personally served on the 1st respondent was that of the Solicitor for the applicant and that failure to do so was fatal to the whole proceedings. He pointed out that this is not a case in which the applicant could be given time to serve the original writ on the 1st respondents as required by law because having already served the other documents ordered to be served by the court the applicant would have to obtain fresh leave and a fresh return date and serve copies of those orders together with a new original writ. He referred to Halsbury's Laws 3rd Edition Volume II page 42 paragraphs 79-81 and cited the case of R. v. Rowe 1894) 71 L.T. 578 in support of his contentions.

It was also submitted that the Notice to be served with the writ as required by Order 54, rule 6(4) of the Rules of the Supreme Court of England was not served; and that the failure to serve the Notice coupled with the irremediable irregularity in the service of copies of the writ viciates the whole proceedings which should be struck out.

Mr E.A. Esin, learned Counsel for the applicant in reply submitted that he applied for the Original Writ and paid the necessary fees and having done that it was no longer his responsibility to ensure that the original writ was served. He however, said that his learned junior Mr E.E. Eneye accompanied the Bailiff when he went to effect service of the writ on the respondents.