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 from. 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, but 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 suit 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.
Athur Lewey, J.A. I agree. M. de Comarmond, S.P.J. I agree.
Application allowed.