ASUEN v. ALUFA (2022)

ASUEN v. ALUFA

(2022)LCN/16281(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/B/108/2018

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

CHIEF SCOTT ASUEN APPELANT(S)

And

MRS. OSAREROMWAN AYO ALUFA RESPONDENT(S)

RATIO

THE EFFECT OF THE FAILURE TO AMEND A PLEADING AFTER LEAVE AND ORDER OF THE COURT HAS BEEN SOUGHT

The question arising from the above is this: What is the effect of the failure to amend a pleading that is Statement of Claim after the leave and order of the Court had been sought and obtained? In the case Agbabiaka V. Saibu (Supra), the Supreme Court held thus:
“Once an amendment of Court processes have been ordered, the effect is that what stood before the amendment is no longer material before the Court and no longer defines the issues in contention. Amanambu V. Okafor (1966) 1 All NLR 205; Rotimi V. Macgregor (1974) 11 SC 133 at 152.
In Ojiako & Anor V. Nnamene (Supra), the Court of Appeal held:
“It is trite law that the effect of amendment of a process is that the amended process can no longer be relied on and referred to in the proceedings. It ceases to be a valid and relevant process in the proceedings.”

ADEMOLA SAMUEL BOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Edo State High Court, in Suit No. HCOK/21/2007 delivered on 11th October, 2017 wherein Judgment was entered in favour of the Claimant against the Defendant Coram Hon. Justice A.N. Ehigiamusoe.

Aggrieved by the above decision, the Defendant hereinafter called the Appellant appealed to this Court by filing a Notice of Appeal consisting of three grounds of appeal at the Registry of the lower Court, on 29/10/2017. The Amended Notice of Appeal was filed on 20/9/2020 and was deemed properly filed and served on 15/3/2021.

The Record of Appeal was deemed transmitted to this Court on 13/10/2021. The Amended Appellant’s Brief of Argument was deemed properly filed and served on 13/10/2021. The Respondent’s Amended Brief of Argument was equally deemed properly filed and served on 13/10/2021. The Appellant’s Reply Brief of Argument was filed on 25/10/2021. Briefs were adopted on 12/3/2022.

BACKGROUND FACTS
The Respondent filed her action in 2007 and served same on the Defendant(Appellant) who initially refused to enter appearance. The Respondent’s witnesses testified. Thereafter, the Appellant with the leave of the Court entered appearance out of time. He filed his statement of Defence.

The Appellant subsequently cross-examined the Respondent’s witnesses. The Respondent closed her case in 2010. The Appellant opened her defence. Six years after the close of Respondent’s case at the lower Court. He testified for himself and called one witness.

Judgment was delivered in favour of the Respondent. Consequently, the Appellant appealed.

APPELLANT’S BRIEF OF ARGUMENT. ISSUES DISTILLED
The Appellant formulated four issues for determination in his Brief of Argument. They are:
1. Whether having regard to the fact that proper parties were not before the Court, the Court had jurisdiction to entertain the case? (Ground 2)
2. Whether the trial Judge was right in writing two Judgments in one case (Grounds 1 and 3).
3. Whether the learned trial Judge was right in entertaining the case of the Respondent and entering judgment for her when she refused to carry out the order of Court to file an amended statement of claim (Ground 4).

4. Whether the learned trial Judge did misdirect himself in law when he held “however, before I go into the issue for determination before this Court, I would like to briefly comment on the fact that the Claimant did not testify for herself and/or give a power of attorney to anybody to testify on her behalf which learned Counsel to the Defendant made on (Sic) heavy weather of. It is my firm but humble view that a party need not testify or give evidence in his or her case. There is no rule that states that a party must testify for himself or herself. A party has a right to conduct his matter in any was that he then will be favourable to him” and thereby occasioned miscarriage of Justice.

ARGUMENT OF ISSUES
ISSUES NO. 1 AND 3
Arguing the issues for determination in his brief, the Appellant combined issues no 1 and 3 and argued them together. On having regard to the fact that proper parties were not before the Court, whether the Court had jurisdiction to entertain the case? Also whether the learned trial Judge was right in entertaining the case of the Respondent and entering Judgment for her when she refused to carry out the order of Court to file an amended statement of claim; it was Appellant’s Counsel submission that the Court lacked jurisdiction to entertain the case for the following reasons.

One, for a Court to have jurisdiction over a matter, it is necessary that the condition that proper and competent parties must be identified and known. That in this case, the Respondent who initiated this action at the trial Court was unknown and had no legal capacity to do so. Therefore the trial Court lacked jurisdiction to hear the suit. He referred to the cases Madukolu V. Nkemdilim (1962) 2 SCNLR 341, Dairo V. Registered Trustees T. A.D Lagos (2018)1 NWLR (Pt. 1599) 62 at 90.

Two, that the law attributes juristic personality that is the capacity to maintain and defend an action in Court, to natural persons and artificial persons or institutions, who are known to law as legal person. That only natural persons or a body of persons whom statutes have either expressly or by implication, clothed with the garment of legal personality could prosecute or defend law suits by that name. He referred to the case Dairo V. Registered Trustees T.A.D Lagos (supra) at 83 and 84.

Appellant’s Counsel referred to the evidence of the PW1 to the effect that the land in dispute belonged to her daughter – the Plaintiff. It was submitted that the alleged owner of the land in dispute, that is the Plaintiff – Mrs Osareromwan Ayo Alufa never showed up in Court one day throughout the trial, neither was any power of attorney given to the PW1 or anybody to initiate and conduct the case on behalf of the alleged Plaintiff. That there was nobody called Mrs. Osareromwan Ayo Alufa. That the Plaintiff was not in existence but a ghost. It was argued that since the so called Plaintiff never appeared in Court one day, it was safe to presume that the Plaintiff never existed. Therefore there was no proper party before the Court and by reason of this, the Court lacked jurisdiction to entertain the case. Counsel cited the cases Amuda V. Ajobo (1995)7 NWLR (Pt. 406) 170, Plateau State V. Attorney General of the Federation (2006)3 NWLR (Pt. 967) 346.

It was also submitted that the Court having held that the amended statement of claim was not filed in the case, it ought not to have considered the merit of the case.

That the entire case ought to have been dismissed outrightly since there was no material before the Court upon which the evidence purportedly led by the witness to the Respondent would have rested.

It was submitted that parties are bound by their pleadings and evidence led on matters not pleaded goes to no issue. Refer to Uredi V. Dada (1988) 1 NWLR (Pt. 69) 237 at 246. That this case ought to have been dismissed. Counsel urged the Court to resolve the issues in favour of the Appellant and against the Respondent.

The 2nd issue is whether the learned trial Judge was right in writing two Judgments in one case. It was submitted that it was wrong for the learned trial Judge to have written two Judgments in one case.

He referred to Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It was argued that the learned trial Judge breached this provision by delivering two decisions in one Judgment instead of one decision as provided for by the Constitution. That delivering two Judgments in one case rendered the Judgment vague in terms and rendered incapable of being carried out or executed, thereby rendering same void and of no effect. He referred to the case Oguntayo V. Adebutu (1997) 12 NWLR (Pt. 531) 83. It was submitted that a Court of law must not throw caution to the wind and recklessly embark on granting unenforceable order in vain. The cases Abubakar V. Smith (1973) 31; Anaene V. Mashasha (2001) 12 NWLR (Pt. 726) 70, Attorney General of Abia State V. Attorney General of the Federation (2006) 16 NWLR (Pt. 1005) 265 at 286 were referred to.

Appellant urged this Court to resolve issue no. 2 in favour of the Appellant.

On issue no. 4, it was Appellant’s submission that the trial Judge misdirected himself in law and thereby occasioned miscarriage of Justice when he held:
“However, before I go into issue for determination before this Court, I would like to briefly comment on the fact that the Claimant did not testify for herself and/or give a power of attorney to anybody to testify on her behalf which learned Counsel to the Defendant made heavy weather of. It is my firm but humble view that a party need not testify to give evidence in his or her case. There is no rule that states that a party must testify for himself or herself. A party has a right to conduct his matter in anyway that he thinks will be favorable to him.”

It was submitted that a party to a case in Court must conduct the case in accordance with the law and the practice and procedure of the Court. That the conduct of cases and Court are not at large but regulated by the rules of Court in all respect. He referred to Order 1 of the Edo State High Court (Civil Procedure) Rules, 1988 which was the existing rule when the action was instituted.

It was submitted that the Respondent having taken out a Writ of Summons in accordance with the rules of the Court, it was incumbent on the Respondent to disclose her locus standi.

It was submitted that the Claimant did not show up in Court one day. That in a situation of this kind, she might donated power of attorney to her mother Esther Alufa who testified as the PW1 to prosecute the action on her behalf.

It was argued that the right to call witnesses did not arise at all if the suit was not properly constituted because of the locus standi to initiate same.

Finally, Counsel urged the Court to resolve the appeal in favour of the Appellant.

RESPONDENT’S BRIEF: ISSUES DISTILLED FOR DETERMINATION.
The Respondent formulated three issues for determination in her brief. They are:
1. Whether in the absence of the Claimant who was represented by Counsel throughout the proceeding was of any legal effect/consequence.
2. Whether it is mandatory for a Claimant to personally attend Court and or testify for herself in a Civil case such as this
3. Whether there is (sic) miscarriage of Justice caused the Appellant in the trial Court’s decision on the issue of general damages.

The Respondent’s Counsel argued all the issues corporately. It was submitted that in a civil case such as this, it was needless for a party to be physically present in Court during trial, when he was represented by Counsel who was in Court. That the presence of a Claimant can be dispensed with when he was represented by Counsel who was in Court. He relied on the case Miden System Ltd. V. Effiong (2011) ALL FWLR (Pt. 591) 1599 at 1604. He submitted that there was no law that compels the presence of a Claimant in Court to testify at the trial by him or herself. That is, if he could establish his case through credible witnesses, without personally giving evidence. He cited the cases Ezeanah V. Attah (2004) Vol. 4 MJSC pg 1 at 3, Enang V. Archibong (2011) ALL FWLR (Pt. 594) 107 at 111; WPC Ltd V. Fayemi (2016) ALL FWLR (Pt. 821) 1400 at 1410 – 1413.

Counsel referred to the case Agbana V. Owa (2004) 8 MJSC 59 at 60 and 68 where the Supreme Court held that a party is free not to attend Court on the day of Judgment or on any day at all in Civil cases.

It was submitted that the trial Judge rightly held that the Claimant (Respondent) did not need to give any person power of attorney to testify as a witness in the case nor can she be compelled to personally testify as a witness in her own case before her reliefs can be granted.

It was also submitted that the trial Judge was entitled to his own style of writing Judgments. He placed reliance on the case Larmie V. DPMS (2006) 3 MJSC page 20 and 25.

The Respondent’s Counsel argued further that the Appellant had failed to show that his interest had been prejudiced or how he had suffered or will suffer a miscarriage of Justice by the trial Court’s decision on damages. That the Appellant’s complain that the trial Court gave two judgments was based on trial Court’s decision on general damages which was within the discretion of the Court.

It was submitted that the Appellant failed to show how the decision and award on general damages would occasion a miscarriage of Justice which caused hardship and requires the intervention of the Court. Relied on the case Alsthom V. Saraki (2005) 3 MJSC 125 at 130.

It was submitted that the Appellant failed to show that the Judgment of the trial Court was perverse necessitating interference by this Court. Counsel cited the case Oyadare V. Keji (2005) 4 MJSC 172 at 178.

It was submitted that assuming the lower Court was wrong in the award of general damages, the Appellate Court had the power to assume jurisdiction to evaluate the evidence led in the case and award what was necessary as damages. He referred to Section 15 of the Court of Appeal Act and the cases Ovia South West V. Adeniyi (2016) ALL FWLR (Pt. 834) 26; Mobil Oil Ltd V. Agadaigho (1988) LPELR (1882) 1 at 50-51.

On the alleged failure of the Respondent to file amended statement of claim after leave to do so was granted by the trial Court, it was submitted that such failure to amend after the grant of leave was not fatal to the case of the Respondent as it is well settled that where leave was granted to a party to amend his or her pleadings and he fails to file amended pleading, his case would be determined on the original pleading sought to be amended as the order granted will lapse and it would be deemed such was never sought nor granted. The failure to file amended pleading will not render the action liable to be struck out or dismissed as erroneously contended by the Appellant. He relied on the case of Akande V. Kuranga (2019) ALL FWLR (Pt. 978) 302 at 307. Respondent’s Counsel urged the Court to do Justice according to law and not technicality relying on the case Ikechukwu V. Nwoye (2014) ALL FWLR (Pt.274) 101 at 104.

Respondent Counsel urged the Court to dismiss the appeal.

Flowing from the sum total of the issues distilled by the Appellant and the Respondent and their respective submissions, this Court fashions out the following issues for determination in this appeal:
1. Whether it is mandatory for the Claimant or Plaintiff in a Civil matter to appear in Court in respect of her case and adduce evidence in the matter having been represented in the matter.
2. Whether the Respondent’s failure to file an amended statement of claim having sought and obtained the leave of the Court was fatal to her case.
3. Whether the learned trial Judge wrote two judgments in respect of the case HCOK/21/2007 the subject matter of the present appeal.
4. Whether the award of general damages by the trial Court occasioned a miscarriage of Justice against the Appellant.

RESOLUTION OF ISSUES
The first issue arising is whether it was mandatory for the Respondent (Plaintiff) to appear in Court in respect of her Civil matter and also adduce evidence against the backdrop that she was represented by Counsel and witnesses evidence on her behalf. It was the Appellant Counsel’s contention that the alleged owner of the land in dispute – the Plaintiff Mrs. Osareromwan Ayo Alufa never showed up in Court throughout the trial neither was there any power of attorney given to the PW1 or anybody to initiate and conduct the case on behalf of the Plaintiff. That since the Plaintiff never appeared in Court there was no proper party before the Court and it was safe to presume that the Plaintiff never existed. That the Court lacked jurisdiction.

From the originating processes filed in suit No: HCOK/21/2007 at the lower Court, that is the Writ of Summons and the statement of claim and other processes filed along, it is patently shown that Mrs. Osareromwan Ayo Alufa was the Plaintiff in the lower Court who initiated the action. The Plaintiff’s was described in the statement of claim. It was averred that he was the owner in possession of the disputed land. The statement stated how she acquired the land in dispute. The Writ of Summon and statement of claim were filed on 25th April, 2007.

It is pertinent to note that the Defendant/Counter-Claimant joined issues with the Plaintiff as regards the averments in the Plaintiff statement of claim. The Defendant never denied the existence of the Plaintiff in his 3rd Amended statement of Defence/counter-claim.

The Plaintiff called two witnesses. The PW1 is the Plaintiff’s mother. She gave evidence as per the averments in the statement of claim. She also tendered documents in respect of the evidence given. It is therefore obvious from the foregoing that the matter instituted at the lower Court which culminated to this appeal was not instituted by a phantom Plaintiff. The proceeding at the lower Court as encapsulated in the records of appeal reveal that the Plaintiff was represented by a Counsel – Usunobun Evbayiro Esq. who filed the originating processes and conducted the case on behalf of the Plaintiff until when the learned trial Judge delivered Judgment in respect of the action. Could it then be said that the non attendance of the Plaintiff in Court, or her not giving evidence in Court render her case invalid? In the case Okoye V. Charles & Ors (2015) LPELR-40664 (CA). This Court said as follows:
“Let me first take the issue as the failure of the Respondent to give evidence in Court. The learned Counsel for the Appellant submitted that the failure on the part of the Respondent to testify before the High Court in respect, I do not agree with her. I know of no procedural law in our justice system which provides that a party must give evidence at the trial. The burden of proof merely requires the party alleging or asserting a fact to prove the fact. And such a party can no by calling witness or witnesses to prove his allegation or assertion. Accordingly, our adjectival law and the rules of Court does not foist on a party the duty to give evidence while it is desireable that he gives evidence because the person participated in the particular matter and so is in a better position to give evidence because he knows the matter much more than the party”. Per Agim JCA (as he then was).
See also the cases of Zubairu & Anor V. Mohammed & Ors (2009) LPELR-5124 (CA); Asuquo V. Omole & Anor (2019) LPELR-47867 (CA).
It is therefore a rudimentary law that a party need not testify in his matter as long as he has witnesses who can adduce credible evidence in support of his case or documentary evidence which can prove the case. It is therefore of no moment that the Respondent did not testify in this case.
It is obvious from the records that the Respondent was represented by Counsel at the lower Court. This obviated the necessity of the Respondent’s physical appearance in the Court. In the case VAB Petroleum Inc. V. Momah (2013) LPELR-19770 (SC) the issue arose whether a party to a suit must be physically present in Court. The apex Court had this to say:
“I think the law has long being settled that where a party to a proceeding before a Court is represented by a Counsel of his choice, his physical appearance to conduct the proceeding by himself is no longer necessary except where for good reasons, the Court conducting the proceeding, orders otherwise.”
Arising from this backdrop, it is the considered view of this Court that the claimant now Respondent need not donate any Power of Attorney to the PW1 or any other person to initiate and conduct the case on her behalf nor was the Respondent compelled to personally testify or attend Court before her reliefs could be granted. In other words, it was not mandatory that the Respondent should appear in Court to confer validity on her matters more particularly that she was represented by a Counsel of her choice.

Against this background, issue no. 1 is resolved in favour of the Respondent.

The 2nd issue is whether the failure of the Respondent to file an Amended Statement of Claim having sought and obtained leave of the lower Court was inimical to her case. The Appellant submitted that the Court having held that the amended statement of claim was not filed in the Court, the earlier case of the Respondents ought to have been dismissed. In response, the Respondents Counsel submitted that it was position of the law that failure to amend after leave is granted was not fatal to the case of the Respondent, as it is well settled that where leave is granted to a party to amend his pleading, and he failed to amend, his case would be determined on the original pleading sought to be amended. That the leave or order granted will lapse and would be deemed that such order was never sought nor granted. The failure to file an amended pleading will not render the action incompetent. In the Appellants Reply Brief of Argument the Appellant argued that it is the law that once an amendment of Court processes had been ordered the effect is that what stood before the amendment was no longer material before the Court and no longer defines the issues in contention. He referred to the case Agbabiaka V. Saibu (1998) 10 NWLR (Pt. 511) (1998) 10 NWLR (Pt. 571) 534 at 537; Ojiako & Anor V. Nnamene & Ors (2013) LPELR- 21255 (CA), the Appellant argued that following the above decisions and the Respondent having failed to file her Amended Statement of Claim when the Court ordered. The amendment, the case of the Respondent ought to have been dismissed out right because there was no material (Amended Statement of Claim) before the Court.

The question arising from the above is this: What is the effect of the failure to amend a pleading that is Statement of Claim after the leave and order of the Court had been sought and obtained? In the case Agbabiaka V. Saibu (Supra), the Supreme Court held thus:
“Once an amendment of Court processes have been ordered, the effect is that what stood before the amendment is no longer material before the Court and no longer defines the issues in contention. Amanambu V. Okafor (1966) 1 All NLR 205; Rotimi V. Macgregor (1974) 11 SC 133 at 152.
In Ojiako & Anor V. Nnamene (Supra), the Court of Appeal held:
“It is trite law that the effect of amendment of a process is that the amended process can no longer be relied on and referred to in the proceedings. It ceases to be a valid and relevant process in the proceedings.”

In Afribank Nig. Plc V. Akwara (2006) 5 NWLR (Pt. 974) 619 at 640 where the Appellant applied for and was granted leave to amend a notice of appeal and granted six weeks to file the amended Notice of Appeal but failed to do so, the Supreme Court held that the effect of applying for and obtaining an order to amend an existing notice of appeal is to vacate the notice of appeal and render it non-existent. The apex Court further held that the consequences of the failure of the Appellant to file its amended notice of appeal within six weeks as ordered by it is that there is no competent appeal before the Court, the initial notice having ceased to exist upon the grant of the leave to amend.
This Court held in Tanarewa (Nig.) Ltd V. Arzai (2005) 5 NWLR (Pt. 919) 593 that:
“Once a process is amended, it is settled law that the amendment relates back to the date of the document amended and what stood before the amendment was no longer material before the Court and no longer defines the issues to be tried.”
Finally on this issue, I refer to the case Agbahomovo & Anor V. Eduyegbe & Ors (1999) LPELR-224 (SC), the Supreme Court held: “There can be no doubt that once pleadings are duly amended by the order of Court, what stood before amendment is no longer material before the Court and no longer defines the issue to be tried before the Court. See Warner V. Sampson (1959) 1 OB 297. This however, is as far as the proposition of law goes. It does not and has not laid down any such principle that an original pleading which has not been duly amended by an order of Court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear principle of law established is that such original pleadings which has been duly amended is no longer material before the Court in the sense that it no longer determines the live issues to be tried before the Court, not that it no longer exists. It does certainly exist and is before the Court. It is however totally in material in the determination of the issues to be tried in the proceeding. It thus cannot be considered as the basis of one’s case in any action. Nor may a Court of law rely on any such original pleading which has been duly amended as the basis for its judgment in the suit. The issues to be tried will depend on the state of the final or amended pleadings. See Salami V. Oke (1987) 4 NWLR (Pt. 63) 1 at 9 and 12 and Agbaisi & Ors V. Ebikorefe and others (1997) 4 NWLR (Pt. 502) 630 at 647-649.” Per Iguh JSC.
In the present appeal, the Respondent was granted leave and ordered to amend her statement of claim. Having obtained the order, she failed to amend the statement till the conclusion of the proceedings and delivery of Judgment. Invariably Judgment was given as per the original statement of claim. A pleading that was no longer material before the Court and no longer defined the issue to be tried before the Court. It could no longer be relied on by the Court. It is the view of this Court that the original statement of claim of the Respondent was no longer competent. It ceased to be valid upon the grant of the order to amend. Having failed to amend, there was no longer any valid statement of claim before the Court. The corollary of this is that the Respondent’s (Claimant) case become incompetent and invalid in view of the invalid process. In the case Braithwaite V. Skye Bank Plc (2012) 12 SC Pt. 1 page 1, it was held that the validity of the originating process in a proceeding is a fundamental and necessary requirement for the competence of the suit.
Having resolved that the statement of claim of the Respondent was invalid and by extension the action incompetent, judgment cannot be entered in his favour. What he deserves is a striking out of the case since the Respondent had no competent or valid statement of claim upon which her case could be predicated or relied on to determine the case in her favour. The lower Court should not have entered judgment in favour of the Respondent. In the light of the foregoing, the judgment cannot stand, it is subject to being set aside.

Against this backdrop, the second issue formulated by this Court is hereby resolved in favour of the Appellant.

The 3rd issue is whether the learned trial Judge wrote two judgments in respect of the case HCOK/21/2007 in respect of the subject matter of the present appeal. I have gone through the judgment of the lower Court as contained in pages 146-164 of the Record of Appeal. It consists of only one judgment. There are no two Judgments in respect of the above suit. However it is noted that a separate ruling was read before the delivery of the Judgment. This cannot be said to constitute two Judgments in the case before the lower Court. Without much ado, the 3rd issue lacks merit. It is resolved against the Appellant.

The 3rd Grounds of Appeal in the Amended Notice of Appeal and the Appellant is in respect of the general damages of the sum of N2,000,000 and a cost of N5,000,000 awarded in favour of the Respondent. However no issue emanated from the aforesaid ground 3 in the Appellant Amended Brief of Argument relating to issues of damages. Issue No. 2 of the Appellant Brief said to have been predicated on Grounds 1 and 3 relates to the contention whether the trial Judge was right in writing two judgments in one case. Issue No. 3 and its argument were not in respect of the award of general damages or cost. No argument was proffered in respect of the issue of damages which was the substratum of Ground 3 of the Amended Notice of Appeal. In other words, no issue was formulated from the ground of appeal in respect of the subject matter of the ground which was on general damages. Flowing from this background, this ground is deemed abandoned in respect of the issue of general damages. See Okereke V. Umahi (2016) 11 NWLR (Pt. 1524) 438 at 464. The issue raised by the Respondent on the argument proffered therein is discountenanced in the circumstance.

In summary, the appeal succeeds in part. Issues 1 and 3 formulated by this Court are resolved in favour of the Respondent. Issue 2 is resolved in favour of the Appellant. In respect of issue no. 2, this Court held that the Respondent’s failure to amend her statement of claim having been granted leave render her original Statement of Claim invalid and incompetent which translate to her suit being a nullity. Consequently, judgment should not have been entered in favour of the Respondent. What the action deserved in the circumstance was striking out.

Accordingly, the judgment of the lower Court in Suit No: HCOK/21/2007 entered in favour of the Respondent is hereby set aside. The awards of damages and cost against the Appellant are equally set aside.

Parties to bear their respective costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the opportunity of reading in draft copy the judgment just delivered by my learned brother, SAMUEL ADEMOLA BOLA, JCA. I am in agreement with the conclusion reached thereat and hereby adopt same as mine.

I also set aside the judgment of the High Court of Edo State delivered on 11th October, 2017 by A.N Ehigiamusoe, J. in Suit No. HCOK/21/2007.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Samuel Ademola Bola, JCA. I do agree with the ultimate decision made therein striking out the respondent’s suit despite the resolution of issues 1 and 3 in her favour.

However, I feel constrained to make a few comments on the failure of the respondent to file a consequential amended notice of appeal six weeks after she was granted leave to amend, resulting in the nullification of the appeal since the original notice of appeal ceased to exist after leave was granted to amend it. This is squarely the fault of counsel and a proper case for which the respondent could maintain an action against counsel for professional negligence. The attitude of counsel is most deplorable and should not be condoned in the judicial circle.

Having said that, my learned brother has eloquently digested the issues for determination of the appeal. He has left no space for further elucidation.

The appeal is therefore allowed. In consequence, the judgment of the lower Court is set aside, and in its place, I make an order striking out the respondent’s suit. I endorse the order that parties bear their respective costs.