JUDGMENT OF MENSA BOISON J.
In an action at the High Court to determine who was entitled to a grant of letters of administration to the estate of Kofi Afreh, deceased, the caveator, one Yaw Gyamfi since deceased (to be referred to hereafter as the original caveator), lost to the respondent herein. Yaw Gyamfi gave notice of appeal and duly fulfilled the conditions imposed before his death. But before the appeal could be heard he died and one Nana Kwame Atto (to be referred to as the appellant) was by consent and authority of the family nominated to prosecute the appeal. Accordingly he appeared to have subsequently applied to be and was substituted for the original caveator as appellant. For reasons not manifest on the present documents, the appellant gave notice of discontinuance of the appeal.
The instant application comes from one Kwaku Frimpong (to be referred to as applicant) for an order of this court that he be substituted for the appellant to prosecute the appeal. Leaving aside the merits of the application for a moment, the applicant contends that this court is the proper forum for the determination of this application inasmuch as the docket on the case had not been sent to the Court of Appeal to have the appeal struck out. In the alternative counsel would appear to contend that the notice of discontinuance, having been filed at the High Court, was not operative. This rests on rule 18 of the Supreme Court Rules, 1962 (L.I. 218). [His lordship then read the material part of the rule which is set out in the headnote and continued:] Clearly the “Registrar” here refers to the registrar of the Court of Appeal and the respondents’ counsel [p.53] conceded the fact that the notice of discontinuance was not filed with the registrar of the Court of Appeal as he sought refuge in what apparently seems like a saving provided by rule 21 of the Supreme Court Rules. [His lordship then read rule 21 which is set out in the headnote and continued:]
In my opinion the filing of a notice of withdrawal of an appeal is not within the meaning of the word application as used in rule 21. The word application is defined in Jowitt’s Dictionary of English Law (1st ed.) at p. 134 to mean “a request, a motion to a Court or Judge, the disposal of a thing.” That I think connotes a situation where the applicant may be granted or refused his request. On the other hand the filing of a notice of withdrawal under rule 18 does not give the Court of Appeal any option but
