USMAN A. MAHMOUD v. USMAN AHMAD & ORS
CITATION: (2014) LPELR-24011(CA)
In The Court of Appeal
(Kaduna Judicial Division)
On Thursday, the 3rd day of July, 2014
Suit No: CA/K/361/2012
Before Their Lordships
ABDU ABOKI
ISAIAH OLUFEMI AKEJU
HABEEB ADEWALE OLUMUYIWA
ABIRU
Justice, Court of Appeal
Justice, Court of Appeal
Justice, Court of Appeal
Between
USMAN A. MAHMOUD
And
1. USMAN AHMAD
2. HON.
COMMISSIONER FOR
LAND AND PHYSICAL
PLANNING, KANO
STATE
3. LAND REGISTRAR
1
Appellant
Respondents
4. M.D. KANO STATE
HOUSING
CORPORATION
RATIO DECIDENDI
1 APPEAL - JURISDICTION: Position of the
law where an appellate court finds out that
the trial Court lacked jurisdiction to entertain
an action
"Where, as in the instant case, an appellate
court finds out that the trial Court lacked
jurisdiction to entertain an action, it will be
unnecessary to consider the rest of the issues
that have to do with the merits of the case.
See the case of NWANKWO v. YAR'DUA
(2010) 12 NWLR (Pt. 1209) 518." Per ABOKI,
J.C.A. (Pp. 19-20, paras. G-A) - read in
context
2 PRACTICE AND
PRACTITIONER:
practitioner
PROCEDURE Meaning
of
LEGAL
legal
"Order 5 Rule 12(1) of Kano State High Court
Rules provides that a writ of summons shall
be signed by a Legal Practitioner and by the
meaning of Legal Practitioner in Section 2(1)
of Legal Practitioners Act, he is a person
whose name is on the roll and therefore
2
qualified to practice as barrister and solicitor."
Per AKEJU, J.C.A. (P. 20, paras. F-G) - read in
context
3 INTERPRETATION
OF
STATUTE
SECTION 2(1), 4(1) & 7 OF THE LEGAL
PRACTITIONERS ACT: Interpretation of
Section 2(1), 4(1) & 7 of the Legal
Practitioners Act as regards who can practice
as a Barrister and Solicitor in any of the
Courts in Nigeria
"By virtue of Section 2 (1) of the Legal
Practitioners Act, a person shall be entitled to
practice as a barrister and solicitor if, and only
if his name is on the roll. Section 7 of the
same Act prescribed that a person shall be
entitled to have his name enrolled if and only
if, (a) he has been called to the bar by the
benchers, and (b) he produces a certificate of
his call to the bar to the Registrar. The above
sections of the legal practitioners Act have
severally interpreted by superior Courts, with
the result being that any person who did not
meet up with the conditions stipulated in
Section 4 (1) of the L.P. Act cannot be called
to the bar, and if a person was not called to
the bar, he cannot have his name enrolled.
Then, where he is not enrolled, he is not
qualified to practice as a barrister in any
Courts in Nigeria. In the instant case, the
3
originating processes were signed by a law
firm E. B. Mohammed & Co. A law firm is not
competent to sign court processes. E. B.
Mohammed & Co. is not a legal practitioner
known to the legal practitioners Act Cap 207
LFN 1990. This is so since it is not a person
entitled to practice as a barrister and solicitor,
with its name on the roll. The signature of E.
B. Mohammed & Co. on the writ of summons
and statement of claim of the 1st Respondent
robbed the processes of competence ab initio
as the said firm is not a registered legal
practitioner enrolled to practice as Barrister
and Solicitor in the Supreme Court." Per
ABOKI, J.C.A. (Pp. 18-19, paras. F-F) - read in
context
4 PRACTICE AND PROCEDURE - SIGNING
OF COURT PROCESSES: Whether a process
prepared and filed in a Court of law by legal
practitioner must be signed by the legal
practitioner; How to sign processes filled in
Court
"It is a trite law as decided in the case of SLB
CONSORTIUM v. NNPC (2011) 9 NWLR (Pt.
1252) PAGE 317 that: "A process prepared
and filed in a Court of law by a legal
practitioner must be signed by the legal
practitioner and it is sufficient signature if the
legal practitioner simply writes his own name
4
over and above the name of his firm in which
he carries out his practice." It was further
decided in the case of SLB CONSORTIUM v.
NNPC (SUPRA) as follows: "All processes filed
in Court are to be signed as follows: a. First,
the signature of counsel, which may be any
contraption; b. Secondly, the name of the
counsel clearly written; c. Thirdly who counsel
represent. d. Fourthly, name and address of
legal firm. Once it cannot be said who signed
the process, it is incurably bad, and rules of
Court that seem to provide a remedy are no
use as a rule cannot override the legal
practitioners Act. There must be a strict
compliance with the law." See also; OKAFOR
v. NWEKE (2007) 10 NWLR (Pt. 1043) 521;
ALAWIYE v. OGUNSANYA (2013) 5 NWLR (Pt.
1348) AT 581-584; NWANI v. BAKARI (2005)
ALL FWLR (Pt. 281) 803 AT 1825; F.B.N. PLC
& ANOR v. MAIWADA (2003) ALL FWLR (Pt.
151) 2001 AT 2014." Per ABOKI, J.C.A. (Pp.
17-18, paras. E-F) - read in context
5 PRACTICE AND PROCEDURE - SIGNING
OF COURT PROCESSES: Whether a firm of
solicitors is competent to sign a Court process
"It has been established that a firm of
solicitors is not competent to sign a Court
process. See Registered Trustees, THE
APOSTOLIC CHURCH v. AKANDE (1967) NMLR
5
263; NWANI v. BAKARI (2005) ALL FWLR (Pt.
281) 803. The writ in the instant case signed
by E. B. Mohammed & Co., is therefore
incompetent and void." Per ABOKI, J.C.A. (P.
21, paras. A-B) - read in context
6 PRACTICE AND PROCEDURE - SIGNING
OF COURT PROCESSES: Legal effect of the
signing of a court process by a law firm
"The legal effect of the signing of a court
process by a law firm, rather than by a legal
practitioner enrolled to practice Law in
Nigeria,
has
been
settled
beyond
peradventure. The present position of the law
on the subject as established by a long line of
Supreme Court decisions is that such a
process is a nullity and it is void ab initio and
where it is a statement of claim, it cannot
sustain a cause of action and a judgment
predicated on such a process must be set
aside. It is a requirement of substantive law,
and not of procedural law, and thus it cannot
be waived and it is irrelevant that the party
complaining did not show that it suffered a
miscarriage of justice or prejudice by such
signing of the court process and it is an issue
that can be raised even at the Supreme Court
for the first time - Okafor v. Nweke (2007) 10
NWLR (Pt. 1043) 521, Oketade v. Adewunmi
(2010) 8 NWLR (Pt. 1195) 63, SLB
6
Consortium Ltd v. NNPC (2011) 9 NWLR (Pt.
1252) 317, Braithwaite v. Skye Bank Plc
(2013) 5 NWLR (Pt. 1346) 1, First Bank of
Nigeria Plc v. Maiwada & Ors (2013) 5 NWLR
(Pt. 1348) 444, Alawiye v. Ogunsanya (2013)
5 NWLR (Pt. 1348) 570, Minister of Works and
Transport, Adamawa State v. Yakubu (2013) 6
NWLR (Pt. 1351) 481 and Okarika v. Samuel
(Pt. 2013) 7 NWLR (Pt. 1352) 19." Per ABIRU,
J.C.A. (Pp. 21-22, paras. F-E) - read in
context
7 PRACTICE AND PROCEDURE - SIGNING
OF COURT PROCESSES: Option open to a
party whose court process was signed by a law
firm
"The only option opened to a party caught in
such a situation is, perhaps, to take
advantage of the decision of the Supreme
Court in Unity Bank Plc v. Denclag Ltd (2012)
18 NWLR (Pt. 1332) 293 to the effect that
such a process can be rectified and amended
and also of the long line of decisions such as
Amadi v. Thomas Aplin & Co. Ltd (1972) 1 All
NLR (Pt. 1) 409, Okafor v. Ikeanyi (1979) 3 &
4 SC 99 and Bankole v. Dada (2003) 11
NWLR (Pt. 830) 174, that say that pleadings
of parties can be amended, even at the
appellate Court, if it can be done without
injustice to the other side." Per ABIRU, J.C.A.
7
(Pp. 22-23, paras. F-A) - read in context
ABDU ABOKI, J.C.A. (Delivering the leading
Judgment): This is an appeal against the
judgment of the Kano State High Court of Justice
delivered on 22nd March, 2012 by Justice Ahmed T.
Badamasi.
A summary of facts of the case that lead to this
appeal is that the 1st Respondent who is the
plaintiff at the lower Court claimed as per writ of
summons dated 25/02/2004 against the Appellant
and the 2nd, 3rd and 4th Respondents who were
the 2nd, 3rd and 4th defendants at the lower Court
as follows:
1. A declaration that the 1st defendant act of
going into or fencing about 10 meters into the
plaintiff's plot No. 902, covered by the Kano
State Certificate of Occupancy No. LKN/RES
/93/5083 is illegal, null and void.
2. A declaration that the purported allocation
paper No. KSHC/PL/S&S/97/902 or any other
title documents issued to the 1st defendant
thereof are null and void whatsoever.
3. An order setting aside the purported Kano
state housing corporation allocation paper No.
KSC/PL/S&S/97/900
and
or
KSHC/PL
/S&S/97/900 or any officer title document for
8
being illegal, null and void.
4. An order directing the 1st defendant to
demolish the fence wrongfully erected on the
plaintiffs aid plot No. 902.
5. An order of perpetual injunction restraining
the defendants, their servants, agents, heirs,
privies and or assigns from intimidating,
harassing, trespassing and or in any way
disturbing the plaintiff's title and possession
thereof.
6. N1,000,000.00 (One million naira) only
damages for trespass.
7. Cost of this action.
The Appellant at the lower Court filed a statement
of defence and counter claim against the claim of
the plaintiff as follows:
1. An order that the 1st defendant/counter
claimant is entitled to the property in dispute
namely plot No. 902 and covered by certificate
of occupancy, No. LKN/RES/2004/133.
2. An order that the 1st defendant/counter
claimant is entitled to the property situate at
plot No. 902 and covered by certificate of
occupancy No. LKN/RES/2004/133 as against
the whole world.
3. An order directing the Commissioner of
Police Kano State command to investigate the
issue of forgery and fraud raised in the
pleading and evidence of the 1st defendant
9
counter claimant with the view to prosecuting
those involved in the forgery.
4. The sum of N3,000,000.00 (three million
naira) as general damages for trespass to the
land in dispute by the plaintiff.
5.
An
order
for
perpetual
injunction
restraining the plaintiff, by himself his
servants, workmen and agents or otherwise
however
6. An order that the certificate of occupancy
No. LKN/RES/2004/133 issued to the 1st
defendant in respect of the land in dispute is
valid and subsisting.
7. An order that the purported certificate of
occupancy No. LKN/RES/2004/133 is illegal,
unlawful, void and of no effect having not
been issued by the then Executive Governor of
Kano State Alhaji Kabiru Ibrahim Gaya.
8. Cost of this action.
At the close of the pleadings, parties called
witnesses to prove their case. The plaintiff gave
evidence in support of his case, so also the 1st
defendant; while the other defendants called only
one witness.
At the end, judgment was entered on the
22/03/2012 in favour of the plaintiff against the
defendants as follows:
"On the whole I hold that the plaintiff has on
10
the balance of probabilities established his
case to warrant entering judgment in his
favour consequently judgment is hereby made
for the plaintiff against the defendants in the
following manner:
1. A declaration is hereby made that the
plaintiff is the rightful owner of the plot No.
LKN/RES/93/5083.
2. The encroachment of the said land by the
1st defendant is hereby declared illegal, null
and void.
3. All the title documents issued to the 1st
defendant by the 4th defendant are hereby
declared illegal, null and void."
Dissatisfied with the decision of the trial Court, the
Appellant by a notice of appeal dated and filed
26/03/2012 appealed to this honourable Court.
Pursuant to the order of this honourable Court
made on the 25/06/2013 the Appellant was
granted leave to amend his notice of appeal. The
amended notice of appeal dated 13/05/2013
contained 12 grounds. The 12 grounds of appeal
without their particulars read as follows:
"GROUND ONE
The learned trial judge erred in law when he
held that the title documents namely the letter
of grant and the certificate of occupancy No.
LKN/RES/93/5085 (exhibits A and B) are
valid and genuine documents.
11
GROUND TWO
The learned trial judge erred and refused to be
bound by the Supreme Court decision
AGBOOLA v. UBA PLC (2011) 11 NWLR (Pt.
1258) 375 and KYARI v. ALKALI (2001) 11
NWLR (Pt. 724) 412 to the effect that mere
production of a document of title over a piece
of land does not automatically entitle a party
to title to the land.
GROUND THREE
The learned trial judge erred in law in granting
the reliefs sought by the 1st Respondent when
there is uncontroverted evidence that the
issuance of the title deeds to the Respondent
did not follow due process.
GROUND FOUR
The learned trial judge erred in law in holding
that the title deeds issued to the 1st
Respondent by the 2nd Respondent is valid
and subsisting.
GROUND FIVE
The learned trial judge erred in law in holding
that the grantor of the 1st Respondent has in
fact what he/it granted.
GROUND SIX
The learned trial judge erred in law by not
12
applying the principle of Nemo dat quid non
habet to the facts and circumstance of the
case.
GROUND SEVEN
The learned trial judge erred in law when he
held that there is nothing wrong with the
grant of the 1st Respondent.
GROUND EIGHT
The learned trial judge erred in law in holding
that the property in dispute belong or is/was
rightly allocated to the 1st Respondent.
GROUND NINE
The learned trial judge erred in law when he
refused and/or dismissed the Appellant's
counter-claim when the 1st Respondent did
not file any defence to the said counter-claim.
GROUND TEN
The learned trial judge erred in law in granting
title of the property in dispute to the 1st
Respondent when the Appellant has been in
possession of the property in dispute.
GROUND ELEVEN
The
judgment
is
unreasonable
and
unwarranted having regard to the weight of
evidence before the Court.
13
GROUND TWELVE
The learned trial judge erred in law in
entertaining plaintiff/1st Respondent's suit
and in granting the reliefs sought by the
plaintiff/1st Respondent when the writ of
summons is/was signed by E. B. Mohammed &
Co. a firm instead of a legal practitioner
recognized by the law thereby occasioning
miscarriage of justice the Appellant."
In accordance with the rules of this Court, the
Appellant filed his brief of argument dated
05/06/2013 on 06/06/2013. Pursuant to the order
of the court, the Appellants' amended brief was
dated and filed on 26/06/2013. The Respondents
on the other hand did not file any brief of argument
in this appeal. The Appellant adopted his amended
brief of argument in which he formulated five
issues for determination from the twelve grounds of
appeal which reads thus:
1. Whether the learned trial judge has the
jurisdiction to entertain the plaintiff's suit
when the writ of summons and the statement
of claim were signed by the firm E. B.
Mohammed & Co., instead of a legal
practitioner as provided by section 2(1) and
24 of the legal practitioners Act cap 111 Laws
of the Federation 2004 (Ground twelve).
2. Whether from the pleading and evidence of
the parties the trial Court was right in
14
granting the reliefs sought by the plaintiff/1st
Respondent considering the fact that as at the
time the property in dispute was purportedly
given to the 1st Respondent by the 2nd
Respondent the said property was already
given to the 4th Respondent who then sold
same to the Appellant. (Grounds two, three,
ten and eleven).
3. Whether certificate of occupancy No.
LKN/RES/93/5085 issued over the property in
dispute is valid and subsisting considering the
fact that as at the time the said certificate was
issued there is a subsisting owner whore
interest on the same piece of land has not
been divested. (Grounds four, five, six and
seven).
4. Whether the Appellant is entitled to the
reliefs sought in his counter claim considering
the fact that the interest of the 4th
Respondent who sold the property to him has
not been divested by either the Kano state
Governor or the 2nd Respondent. (Ground
nine)
5. Whether the issuance certificate of
occupancy No. LKN/RES/93/5085 to the 1st
Respondent
is
valid
and
subsisting
considering the fact that the 2nd Respondent
who purportedly issued it in error has since
cancelled it having discovered that the 1st
Respondent's title was founded on fraud and
illegality. (Grounds one and eight).
15
Considering the fact that the four issues were
interwoven the Appellant argued issue No. 1
separately, while issues numbers 2, 3, 4 and 5
were argued together.
I adopt the issues raised by the Appellant in the
determination of this appeal.
ISSUE ONE.
Whether the learned trial judge has the
jurisdiction to entertain the plaintiff's suit
when the writ of summons and the statement
of claim were signed by the firm E. B.
Mohammed & Co., instead of a legal
practitioner as provided by Section 2(1) and
24 of the Legal Practitioners Act Cap 111 Laws
of the Federation 2004.
Learned counsel to the Appellant submitted that
the writ of summons in the present case was/is
issued by the firm of E. B. Mohammed & Co. a
non-legal practitioner. He referred this honourable
court to the writ of summons at pages 1-4 of the
records and also the statement of claims at pages
193-195 of the records of proceedings.
Learned counsel to the Appellant argued that E. B.
Mohammed & Co. which is a firm of legal
practitioners registered under section 573 (1) (b) of
the companies and allied matters act Cap C20 LFN
16
is not a legal practitioner and cannot practice law in
Nigeria. He referred this honourable Court to the
cases of;
FBN PLC v. MAIWADA (2013) 5 NWLR (Pt.
1384) 444;
MINISTRY OF WORKS ADAMAWA STATE v.
YAKUBU (2013) 6 NWLR (Pt 1351) 481;
OKARIKA v. SAMUEL (2013) 7 NWLR (Pt.
1352) 19;
ALAWIYE v. OGUNSANYA (2013) 5 NWLR (Pt.
1384) 570.
UNITY BANK PLC v. RANA TAHIR FURNITURE
CO. LTD CA/K/209/2006 (UNREPORTED);
BRAITH WAITE v. SKYE BANK (2012) 1 SCJN
106.
Learned counsel urged this Court to apply the ratio
decided in the above cited cases to the present one
by striking out the plaintiffs' suit and allow this
appeal.
It is a trite law as decided in the case of SLB
CONSORTIUM v. NNPC (2011) 9 NWLR (Pt.
1252) PAGE 317 that:
"A process prepared and filed in a Court of law by a
legal practitioner must be signed by the legal
practitioner and it is sufficient signature if the legal
practitioner simply writes his own name over and
above the name of his firm in which he carries out
his practice."
It was further decided in the case of SLB
17
CONSORTIUM v. NNPC (SUPRA) as follows:
"All processes filed in Court are to be signed
as follows:
a. First, the signature of counsel, which may
be any contraption;
b. Secondly, the name of the counsel clearly
written;
c. Thirdly who counsel represent.
d. Fourthly, name and address of legal firm.
Once it cannot be said who signed the
process, it is incurably bad, and rules of Court
that seem to provide a remedy are no use as a
rule cannot override the legal practitioners
Act.
There must be a strict compliance with the
law."
See also;
OKAFOR v. NWEKE (2007) 10 NWLR (Pt.
1043) 521;
ALAWIYE v. OGUNSANYA (2013) 5 NWLR (Pt.
1348) AT 581-584;
NWANI v. BAKARI (2005) ALL FWLR (Pt. 281)
803 AT 1825;
F.B.N. PLC & ANOR v. MAIWADA (2003) ALL
FWLR (Pt. 151) 2001 AT 2014.
By virtue of Section 2 (1) of the Legal Practitioners
Act, a person shall be entitled to practice as a
barrister and solicitor if, and only if his name is on
the roll. Section 7 of the same Act prescribed that a
person shall be entitled to have his name enrolled
18
if and only if, (a) he has been called to the bar by
the benchers, and (b) he produces a certificate of
his call to the bar to the Registrar.
The above sections of the legal practitioners Act
have severally interpreted by superior Courts, with
the result being that any person who did not meet
up with the conditions stipulated in Section 4 (1) of
the L.P. Act cannot be called to the bar, and if a
person was not called to the bar, he cannot have
his name enrolled. Then, where he is not enrolled,
he is not qualified to practice as a barrister in any
Courts in Nigeria.
In the instant case, the originating processes were
signed by a law firm E. B. Mohammed & Co. A law
firm is not competent to sign court processes. E. B.
Mohammed & Co. is not a legal practitioner known
to the legal practitioners Act Cap 207 LFN 1990.
This is so since it is not a person entitled to practice
as a barrister and solicitor, with its name on the
roll. The signature of E. B. Mohammed & Co. on the
writ of summons and statement of claim of the 1st
Respondent robbed the processes of competence ab
initio as the said firm is not a registered legal
practitioner enrolled to practice as Barrister and
Solicitor in the Supreme Court.
Therefore, the trial Court lacked jurisdiction to
entertain this matter.
Where, as in the instant case, an appellate court
finds out that the trial Court lacked jurisdiction to
19
entertain an action, it will be unnecessary to
consider the rest of the issues that have to do with
the merits of the case. See the case of NWANKWO
v. YAR'DUA (2010) 12 NWLR (Pt. 1209) 518.
This issue is hereby resolved in favour of the
Appellant.
The judgment of the lower Court is set aside. The
writ of summons originating the suit No.
K/107/2004 filed by the 1st Respondent against the
Appellant that led to this appeal is hereby struck
out for being incompetent. I make no order as to
costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned
brother, ABDU ABOKI, JCA, gave me the privilege
of reading before now the judgment just delivered.
It is clear from the record of appeal that the writ of
summons issued in commencement of the
respondent's action at the High Court of Kano State
was signed by E. B. Mohammed & Co., a firm of
solicitors.
Order 5 Rule 12(1) of Kano State High Court Rules
provides that a writ of summons shall be signed by
a Legal Practitioner and by
the meaning of Legal Practitioner in Section 2(1)
of Legal Practitioners Act, he is a person whose
name is on the roll and therefore qualified to
practice as barrister and solicitor.
20
It has been established that a firm of solicitors is
not competent to sign a Court process. See
REGISTERED
TRUSTEES THE
APOSTOLIC
CHURCH v. AKANDE (1967) NMLR 263;
NWANI v. BAKARI (2005) ALL FWLR (Pt. 281)
803. The writ in the instant case signed by E. B.
Mohammed & Co., is therefore incompetent and
void. It can not sustain the suit it has purported in
initiate.
For the foregoing and the fuller reasons advanced
by my learned brother I agree on the resolution of
this issue in favour of the Appellant.
I allow the appeal and abide by the consequential
orders.
HABEEB ADEWALE OLUMUYWA ABIRU, J.C.A.:
I have had the privilege of reading before now the
lead judgment delivered by my learned brother,
Abdu Aboki, JCA. His Lordship has considered and
resolved the issues in contention in this appeal. I
agree with the reasoning and abide the conclusions
in the lead judgment.
The legal effect of the signing of a court process by
a law firm, rather than by a legal practitioner
enrolled to practice Law in Nigeria, has been settled
beyond peradventure. The present position of the
law on the subject as established by a long line of
21
Supreme Court decisions is that such a process is a
nullity and it is void ab initio and where it is a
statement of claim, it cannot sustain a cause of
action and a judgment predicated on such a process
must be set aside. It is a requirement of
substantive law, and not of procedural law, and
thus it cannot be waived and it is irrelevant that
the party complaining did not show that it suffered
a miscarriage of justice or prejudice by such signing
of the court process and it is an issue that can be
raised even at the Supreme Court for the first time
- Okafor v. Nweke (2007) 10 NWLR (Pt. 1043)
521, Oketade v. Adewunmi (2010) 8 NWLR
(Pt. 1195) 63, SLB Consortium Ltd v. NNPC
(2011) 9 NWLR (Pt. 1252) 317, Braithwaite v.
Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 1,
First Bank of Nigeria Plc v. Maiwada & Ors
(2013) 5 NWLR (Pt. 1348) 444, Alawiye v.
Ogunsanya (2013) 5 NWLR (Pt. 1348) 570,
Minister of Works and Transport, Adamawa
State v. Yakubu (2013) 6 NWLR (Pt. 1351)
481 and Okarika v. Samuel (Pt. 2013) 7 NWLR
(Pt. 1352) 19.
The only option opened to a party caught in such a
situation is, perhaps, to take advantage of the
decision of the Supreme Court in Unity Bank Plc
v. Denclag Ltd (2012) 18 NWLR (Pt. 1332)
293 to the effect that such a process can be
rectified and amended and also of the long line of
decisions such as Amadi v. Thomas Aplin & Co.
22
Ltd (1972) 1 All NLR (Pt. 1) 409, Okafor v.
Ikeanyi (1979) 3 & 4 SC 99 and Bankole v.
Dada (2003) 11 NWLR (Pt. 830) 174, that say
that pleadings of parties can be amended, even at
the appellate Court, if it can be done without
injustice to the other side. Counsel to the first
Respondent did not do so in this appeal and as such
the writ of summons and the statement of claim of
the first Respondent before the lower Court were
nullities and were void ab initio and I hereby enter
an order striking out both the writ of summons and
the statement of claim. The concomitant effect of
this is that the entire evidence led by the first
Respondent in proof of the averments contained in
the defective statement of claim went to no issue
and the judgment predicated on the statement of
claim is liable to be set aside. I too hereby set aside
the judgment of the lower Court I abide the order
on costs in the lead judgment.
Appearances
N. A. Dangiri Esq.
For Appellant
Respondent Absent and
Unrepresented
For
Respondents
23