Mbanu Nwanyieke Vs Godfrey Mbanu (1961)

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UNSWORTH, F.J. 

This is an application by one EPHRAIM NNABUGWU for leave to be substituted for the appellant who is now dead.

It is apparent from the pleadings that the Applicant has an interest in the subject matter, which might well have entitled him to be added as a party to the action, and might also have entitled him to bring an appeal himself under Section 110 (6) (a) of the Constitution. He did not, however, adopt the former course, and the latter course was not possible as the time for appeal under the former rules of this Court had expired. The applicant now applies to be substituted as appellant under Order 16 Rule 46, as read with Order 17 Rule 4 of the Rules of the Supreme Court in England which apply in the Eastern Region by virtue of section 15 of the High Court Law.

In our view these rules do not cover a case such as the one we are now considering. Order 16 Rule 46 is clearly designed to enable a case to continue at the request of one of the parties, and Order 17 rule 4 is limited to cases where there is a transmission of interest on death. In the present case there was no transmission of the appellant’s interest to the applicant on the death of the appellant.

The application is accordingly refused with costs assessed at 10 guineas.

Application refused.

Other Citation: (1961) LCN/0888(SC)