Rogers Partners LLP’s Post

As I restart my page "Law & All" below is the first piece for the kind consideration of all: Suit for Title Declaration based on adverse possession having matured into ownership is maintainable 1. The Hon’ble Supreme Court has, time and again, reiterated that a Suit for declaration of Title based on adverse possession having matured into Ownership i.e. post having fulfilled all the necessary criteria viz. the possession being exclusive, open & to the knowledge of the actual owner (the identification and proof of the actual owner being necessary), continuous and uninterrupted for the prescribed/requisite period viz. 12 years while claiming adverse possession against private entities and 30 years while claiming the same against the State is maintainable. This is totally contra to what has been argued in many matters viz. that the plea of adverse possession is only a plea of defence and not of establishing the rights of Title/ownership as a Plaintiff. 2. The essential principle enunciated in these judgements of the Hon’ble Supreme Court is that a person in possession cannot be ousted by another person except by due procedure of law and, once the 12 years' period of adverse possession is over (which period would be 30 years while claiming adverse possession against the State) and the same matures into Ownership post having fulfilled all the necessary criteria viz. the possession being exclusive, open & to the knowledge of the actual owner (the identification and proof of the actual owner being necessary), continuous and uninterrupted for the prescribed/requisite period, even the Owner's right to eject him is lost and the Possessory Owner acquires the Right, Title and/or Interest possessed by the outgoing person/Owner as the case may be. The consequence is that once the Right, Title and/or Interest is acquired (through adverse possession as aforesaid), it can be used like a sword as a Plaintiff (seeking a declaration of Ownership and Title and/or seeking restoration of possession by filing requisite proceedings before the appropriate Court) as well as like a shield as the Defendant while defending/resisting a claim by another person claiming Title/Ownership of the property in question.

A fantastic and succinct summary of Adverse Possession and its increasing relevance in Indian jurisprudence. Must read!

Judge J. L.A Osiemo explained some pertinent issues relating to amendment of pleadings in the case of Jecinta Wanjiru Muiruri v Jane Wangare Mwangi & Another(2006) eKLR. Brief facts The Plaintiff brought an amended Chamber Summons seeking leave to amend their earlier Chamber Summons. Issues 1. Is a Chamber Summons a pleading? 2. If the former is on the affirmative, can the same be amended? Analysis 🖊️Order 8 of the Civil Procedure Rules(CPR) provides for the amendment of pleadings. It provides that a party may without leave of court amend pleadings once at any time before the pleadings are closed. However, upon close of pleadings party has to seek leave of court to amend their pleadings. The court may use its own discretion to grant a party leave to amend pleadings. 🖊️Order 2 of the CPR provides for pleadings generally. A pleading can be defined as a formal statement of a cause of action or defence filed in a court of law. Section 2 of the Civil Procedure Act defines a pleading to include a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the Plaintiff to any deference or counterclaim of a defendant. As such, a Chamber Summons does not institute a cause of action or defend it. A Chamber Summons can therefore not be amended. Holding ⚖️A defective amended Chamber Summons cannot be cured. The only option open to the respondent is to withdraw the Chamber Summons in its entirety and file a fresh one. ❓This case was determined prior to the promulgation of the 2010 Constitution. Does this position however change following art.159(d) of the COK 2010 which provides that justice shall be administered without undue regard to procedural technicalities? Enclosed is a copy of the ruling.

Rule 3.4: Fairness to Opposing Party & Counsel Maybe OEM Counsel should check themselves as to thier own rules. A lawyer is an officer of the court and is suppose to provide eithical and supported information to the client. When the client is not following the Law, yet thier lawyer continues a path that know is not eithical or legal, then action can be taken within the court to notify them of such grievances. The lawyer has a duty to notify thier client of this conflicted path. A lawyer shall not: (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

I’m excited to share some key takeaways from the recent Court of Appeal decision in 𝑪𝒉𝒂𝒓𝒆𝒓𝒏 𝑷𝒓𝒐𝒑𝒆𝒓𝒕𝒊𝒆𝒔 𝑺𝒅𝒏 𝑩𝒉𝒅 𝒗 𝑪𝒉𝒐𝒐𝒏𝒈 𝑵𝒂𝒎 𝑭𝒂𝒕𝒉𝒆𝒓 & 𝑺𝒐𝒏𝒔 (Civil Appeal No. A-02(IM)(NCvC)-1751-10/2023). The full grounds of judgment released on 4 October 2024 may be accessed here - https://shorturl.at/CDj3j. This case involves an application to extend the validity of a writ of summons. The High Court granted the application, and this decision was upheld by the Court of Appeal. The key takeaways are outlined below: 1.Writ of Summons is generally valid for only 6 months. Plaintiff’s solicitors should aim to effect service on the defendant(s) within this period. Failing to do so may require the filing of an application to extend the validity of the writ. 2.A renewal of writ must be made 𝗯𝗲𝗳𝗼𝗿𝗲 the expiry of the writ [see O. 6 r. 7(2A) of the ROC 2012]. 3. Re-service of the writ may be necessitated if the defendant set aside the judgment in default obtained by the plaintiff due to irregular service [see para 21]. 4“𝐅𝐫𝐞𝐞𝐳𝐢𝐧𝐠 𝐚𝐧𝐝 𝐮𝐧𝐟𝐫𝐞𝐞𝐳𝐢𝐧𝐠” 𝐩𝐫𝐢𝐧𝐜𝐢𝐩𝐥𝐞 – This principle originates from the High Court decision in Ever Rich Enterprise v Ten Mei Theng [2019] 1 MLRH 194; [2018] 1 LNS 1402. Essentially, when a judgment in default of appearance is entered before the 6-month period expires, it ‘freezes’ any remaining time in that 6-month period at that precise moment. The remaining time will then ‘unfreeze’ at a later stage when the judgment is set-aside. This is illustrated in the sample timeline below. 5. Lim Chong Fong JCA rejected the defendant’s contention that “by allowing the Application, the defendant is prejudiced by having lost the substantive right to the defence of limitation” because the defence of limitation is in law only a procedural right and does not affect accrued rights and interests [see para 29]. #legalextracts

In this case - https://lnkd.in/gUR-ZEQf - the Court ruled MNP was not entitled to its claim for damages for breach of contract as pled in the Notice of Civil Claim, as it failed to satisfy contractual preconditions to such a claim, including failing to provide notice of termination of the contract to the defendant corporation. Essentially, the contract between the parties expressly stated MNP was required to provide notice of termination as a precondition to making any claims for out-of-pocket expenses, and a completion fee. Its failure to do so resulted in MNP’s claims for breach of contract being struck under Rule 9-6 of the Supreme Court Civil Rules. Although the Court granted leave to MNP to amend the Notice of Civil Claim to advance a claim for breach of contract, the Court ruled that the amended claim must not allege that MNP terminated the contract and MNP claims must not be dependent on termination of the contract as a material fact or as a basis for relief as against the defendants. Take away: thoroughly examine the contract governing your business relationship with a lawyer to determine how to protect your rights and understand your obligations before making pivotal decisions. “An ounce of prevention is worth a pound of cure.”

While addressing final arguments before the Hon’ble High Court in a matter challenging an execution petition order related to a maintenance claim, several key issues arose for research which are in brief as follows: 1. Whether a maintenance awarded u/s 125 CrPc would be a bar to claim maintenance in MC proceedings 2. Whether execution proceedings may be instituted to enforce an interim award. 3. Whether Writ Jurisdiction can be exercised against essentially an appeal arising out of Execution Proceedings Although the Hon’ble Judge often addresses and rejects opposing contentions, it remains crucial for the respondent’s counsel to stay updated on legal precedents and the Supreme Court’s rulings to effectively represent their client. With regard to Point No.1, the Hon’ble Supreme Court, in its decision reported in (2014) 14 SCC 452, clarified that Section 125 of the Code of Criminal Procedure (CrPC) constitutes a social legislation aimed at providing maintenance for individuals in need. The Court emphasized that the initiation of proceedings and the subsequent award of maintenance under Section 125 CrPC do not preclude a woman from seeking further maintenance, even if maintenance had been awarded previously. This decision helps in affirming that prior awards do not bar subsequent claims for maintenance. On point No. 2, Section 36 of CPC is quite clear and the same has to be read in conjunction with Order 21 with a view to seek execution of interim order. The section 36 clearly stipulates that the provision shall be deemed to be applicable on orders. In fact, maintainability of execution proceedings during the pendency of a suit is also upheld by several decisions of the Apex Court. On Point No.3, although the High Court possesses extraordinary jurisdiction, its exercise is discretionary and generally should not supersede the availability of an alternative, effective remedy. Should an alternative or more efficacious remedy exist, and the petitioner nonetheless chooses to seek relief under writ jurisdiction, the petition must explicitly outline the reasons for not pursuing the alternative remedy. In this case, it was not necessary to address the aforementioned points, as the petitioner, under the pretext of contesting execution proceedings, essentially sought to re-litigate the same interim order that was the subject of two previously adjudicated writ petitions. The Hon’ble Judge held that the suppression of material facts alone warranted the dismissal of the petition and was inclined to impose costs but however dismissed the Writ Petition without costs. #litigation #arguments #research

AN ORDER FOR CONSOLIDATION OF SUIT IS NOT A FINAL DECISION by Branham Chima. Subscribe: https://lnkd.in/dw4GnZsy The position of the law is that an order of consolidation of suits is not a final decision that disposes of the rights of the parties involved. Instead, it is an arrangement made by the judge for the convenience of the court and the parties involved. The judge has the ability to change or reverse this arrangement if it is deemed necessary in the interests of justice. It is also pointed out that a final order is one that cannot be reversed by the judge who made it, whereas in consolidations, the judge has the power to review or reverse the order of consolidation at any time. Therefore, the order of consolidation is not considered final. Thus, leave of Court is necessary to appeal an order of consolidation of suits. This is affirmed in the case of Bennett Ifediorah & Ors. V. Ben Ume & Ors. (1988) per Nnaemeka-Agu JSC thus: ‘Applying this test to the order of consolidation in this case, I have no doubt that the learned Judge has not disposed of any rights of the parties before him, much less finally. All he did was to make an arrangement for the convenience of the court and the parties of disposing of the two cases before him together, instead of one after another. It was an arrangement which he could resile from or reverse if at any time it appeared to him that the interests of justice so dictated. There is yet another reason why the order of consolidation could not have been final. One indisputable attribute of all final orders is that once made the judge making it becomes functus officio, so that it can only be reversed on appeal. So, if a court as in this case, before or during the course of the hearing of a case, orders something which he can review or reverse at any time, such an order cannot be final. The learned Justice of Appeal was in error to have stated at the later stage of his ruling that the order of consolidation was final. It follows that a consideration of the respondents’ right of appeal as of right under paragraph (a) of subsection (1) of Section 220 of the Constitution did not arise.’

---Admission on the basis of mere pleadings made by a party---Scope--- 2024 CLC 693 --O. XII & O. X---Admission on the basis of mere pleadings made by a party-Scope-Examination of such party, not conducted---Effect---Suit filed by the plaintiff was decreed by considering written statement as admission because in the verification (of the written-statement as well as amended written-statement filed by the defendant/appellant) the word "suit" was written and admitting the same (word "suit") as correct, Trial Court considered as if defendants had made admission to the averments in the plaint---Validity— Written-statement as well as amended written-statement filed by the appellants/defendants transpired that averments made in the plaint were specifically denied, however by a clerical mistake, in the verification the word "suit" had been written instead of "written-statement"--- Thus, the appellants/ defendants had specifically denied the claim of the respondent / plaintiff, therefore, the Trial Court considered their written-statement as admission illegally and had erroneously decreed the suit by the same as admission which was actually a detailed deny of contents of plaint---Mere pleadings which amounts to admission cannot be believed until the concerned party is examined by the Court---High Court set-aside the impugned judgment and decree passed by the Trial/District Court and remanded the matter for decision on merits-Appeal filed by the defendants was allowed, under circumstances. [High Court (AJ&K)]