–
AKINOLA MAJA & OTHERS
V.
HARRIET JOHNSON
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
27TH DAY OF APRIL, 1951
2PLR/1951/23 (WACA)
–
OTHER CITATION(S)
2PLR/1951/23 (WACA)
(1951) XIII WACA PP. 194 – 195
LEX (1951) – XIII WACA 194 – 195
–
BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
LEWEY, J.A.
DE COMARMOND, J.
–
BETWEEN:
AKINOLA MAJA & OTHERS – Applicant
AND
HARRIET JOHNSON – Respondent
–
ORIGINATING COURT(S)
Application for leave to appeal from the Supreme Court, W.A.C.A. CIV.APP. 3470
–
REPRESENTATION
F. R. A. Williams — for Applicants
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Application for leave to appeal by a person not a party to the suit – No provision in West African Court of Appeal Ordinance (Cap. 239) – Practice prescribed by the English Annual Practice.
–
CASE SUMMARY
This was an application for leave to appeal by beneficiaries under a Will. An action had been brought by the executors to propound the will in solemn form but the Court declared the will to be null and void. The applicants were not a party to the suit and the executors decided not to appeal.
The West African Court of Appeal Ordinance does not preclude the applicants from bringing an appeal in such circumstances, but there is nothing in the Rules of this Court prescribing the means by which they may do so. Rule a of the West African Court of Appeal Rules, 1950, prescribes that in the absence of provision recourse may be had to the practice for the time being in force in England.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Application) that:
The Annual Practice in England establishes that where a person might have been a party to the suit he may be granted leave to appeal against a judgment affecting his interest. Leave to appeal was, therefore, granted.
–
–
MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C. J.
This is an application for leave to appeal by persons who were not parties to the suit in the Court below. The action was one brought by executors named in the alleged will of a deceased person to establish the will in solemn form. The learned Judge before whom the action came, found that the document propounded as a will was not executed according to law and declared it be null and void.
Affidavits exhibited in the present application, which is made ex parte aver that although advised by Counsel that there are good grounds for appealing against the judgment the executors have given no instructions to lodge an appeal and indeed that they have stated that it is not their intention to do so.
The applicants are beneficiaries under the alleged will who would substantially benefit thereunder. Both were absent from Nigeria at the time of the proceedings in the Court below and one is an infant.
There is nothing in the West African Court of Appeal Ordinance (Cap. 229) to preclude the applicants from bringing an appeal, bat there is nothing in the Rules of this Court prescribing the means by which they may do so. Rule 42 of the West African Court of Appeal Rules, 1950, provides however, that when there is no provision in the Rules, recourse may be had to the practice for the time being in force in England.
Authorities referred to in the Annual Practice, 1949, at page 1325, establish that it is in England the practice that where a person might have been a party to the nit he may be granted leave to appeal against a judgment therein affecting his interest. In my opinion, the present applicants are in that position and I think this Court should exercise its discretion in their favour by granting the leave prayed.
–
ARTHUR LEWEY, J. A.
I agree.
–
M. DE COMARMOND, S.P.J.
I agree.
–
Application allowed.
–