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RULING
APALOO, J.A.
This ruling emanates from a preliminary objection filed in this Court pursuant to Rule 16 of C.I. 19, the Court of Appeal Rules as amended.
The preliminary objection to the hearing of the appeal stated as follows:- “(1) That at all times material to the date when the Notice of Appeal which is the basis of the appeal before this honourable Court was filed, the Solicitors who filed the same had no authority to file it, the party on whose behalf the said Notice of Appeal was filed having been deceased and (iii) That purported appellant has neither paid nor made an attempt to pay costs awarded against his predecessor in the suit now on appeal before this Court.” In his submissions Counsel for the Defendants/Respondents contended that the suit now on appeal before the Court was commenced at the High Court by one Sumani Munje now deceased.
He died in Wa on 18/01/03.
The notice of Appeal was filed on 22/01/03 pursuant to the judgment of the High Court dated 13/01/03.
It is the view of the Respondents that the substitution of Amora Mumuni as Plaintiff for the dead Sumarni Munje on 19/05/03 was belated rendering the notice of appeal filed prior to the substitution a nullity.
Counsel for the appellant submitted that the suit was commenced by the deceased Plaintiff in his representative capacity and not in his personal capacity.
He was the head and representative of the Puohuyiri Family of Wa.
He stressed that the statement of claim disclosed that “the Plaintiff is the head and lawful representative of the Puohuyiri family and owners of the land in dispute” and accordingly as head of family and a nominal Plaintiff, the family being the real owners of the land and therefore the real Plaintiffs, Respondents arguments are not tenable.
According to Appellants it was the family, the real Plaintiff in the action that instructed Counsel to file the appeal on its behalf.
Indeed there is no doubt that when the lower Court delivered its decision on 13/01/03 Sumani Munje was alive.
He died five days later on 18/01/03.
There is no doubt also that on 22/01/03 when the appeal was filed no order for substitution had been obtained for the deceased Plaintiff/Appellant.
The question to be asked at this stage ought to lead to the solution of the objection raised.
The question who is the Plaintiff on 22/01/03 when the appeal was filed is material.
Our law has provided that certain suits including land, shall survive the Plaintiff upon his death whether nomina