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GODWIN UMEH v. CLEMENTINA UMEH & ORS

(2018) LPELR-44438(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of April, 2018

CA/OW/223/2012(R)


Before Their Lordships

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria


Between

GODWIN UMEH
-APPELLANT

IN RE: EDWIN UMEH
-APPLICANT - Appellant(s)

AND

1. CLEMENTINA UMEH
2. LINUS ECHEGWO
3. OKECHUKWU ECHEGWO - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This is a Ruling on an Application for substitution and relisting of appeal.
FACTS:
The appellant died and was buried on 4th September 2015. Before his death, the parties had exchanged briefs of argument. The applicant, on 21-9-15, filed an application before the Court of Appeal, seeking to substitute the deceased appellant. He withdrew the said motion on 18-10-16. On the same date, the Court struck out the appeal pursuant to Order 15 Rule 3 of the Court of Appeal Rule 2011.

On 23-11-2016 the applicant filed a motion on notice seeking:
"1. An Order substituting the Applicant in the place of the Appellant who is deceased.
2. An order restoring/relisting on the hearing list Appeal No. CA/OW/223/2012 - GODWIN UMEH VS. CLEMENTINA UMEH & 2 ORS. Struck out from cause/hearing list on 18/10/2016 because of the death of the appellant."

In support, he filed his affidavit wherein he claimed to be the eldest son of the deceased appellant and that the dispute survives the appellant. The Respondent joined issues in a counter affidavit and argued strenuously that briefs having been filed and the appeal struck out, the appeal is deemed dismissed and cannot be relisted.

ISSUES:
The Court of Appeal considered the merits of the application.
DECISION/HELD:
In conclusion, the application was granted.


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