By Evarist Baimu Nyaga Mawalla - Home

The available evidence, therefore amply demonstrates that on 16.6.94 theAttorney General or his representative designated for the purpose was notsummoned as a party to the case before the court. Indeed the Attorney Generalwas not summoned at all on that day or on any day thereafter. Nor did the courtdirect that the proceedings be commenced or continued ex-prate. Section 17A(2) of cop 360 as amended by Act. No. 27 of 1991 reproduced above is couchedmandatory terms, and in the light of the foregoing the hearing of the case wascommenced and continued in contravention thereafter. The trial was commencedand continued in the absence of the necessary party and in the absence of anyof any direction by the trial court do so. Thus the court proceeded withoutauthority and that constituted a major defect, which went to the root of the trial. Itrendered the proceedings null and void. In the event the appeal succeeds. Theproceeding before the High court are declared null and void and are accordinglyset aside.As regards costs Counsel for the appellant corporation asked ut to certify costsfor three counsel on the ground that the appeal raise d complicated issued andthat it involved that calling of a number of additional witnesses to give evidenceduring the appeal.Although a total of 13 grounds were argued namely grounds 3 and 4 Thesegrounds raise the issue of commencing and continuing the proceedings in theabsence of the necessary party i.e. the Attorney General. That issue had264