Amrit Goyal v Hari Chand Goyal & 3 oers (Civil App.No. 109 of 2004)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The Court held that, under Rule 96 of the Court of Appeal Rules Directions 1996, a deceased party must be substituted by his legal representative before the hearing of an application or appeal can validly proceed. Counsel cannot continue to rely on instructions obtained from a person who has since died. While a court may appoint a legal representative on its own motion, there must be a will and an executor introduced to court as the personal representative, though the executor need not yet have obtained the grant. The objection was upheld and the hearing stayed pending proper substitution.
Outcome
Hearing of the application stayed pending substitution of the deceased first respondent's legal representative
Facts
An application had been filed to strike out a pending civil appeal between the parties. When the application was called for hearing, counsel who had filed it raised an objection: since filing, the first respondent, Hari Chand Goyal, had died and no legal representative had been substituted on the record. Counsel argued that under Rule 96 of the Court of Appeal Rules, neither the application nor the appeal could validly proceed without substitution. Opposing counsel argued substitution was not essential, contending he had received instructions to oppose the application from the deceased before his death and that any legal representative would not give contrary instructions. The Court considered the requirements for substitution and the appointment of a legal representative.
Issues
- Whether the hearing of the application and the pending appeal could validly proceed where a deceased respondent had not been substituted by his legal representative under Rule 96 of the Court of Appeal Rules.
- Whether counsel could rely on instructions obtained from a party prior to that party's death to continue conducting proceedings.
Orders
- The objection or observation is upheld.
- The hearing of the application is stayed pending substitution of the deceased's legal representative.
- The Registrar is directed to make arrangements for the scheduling conferencing of both the application and the pending appeal.
- Each party to bear its costs.
Rules and key headnotes
Legislation cited (1)
- Court of Appeal Rules Directions 1996 Rule 96
Cases cited (2)
- Ahmed Bin Ahmed Kassim Kisais Vs Syed Abdulla [1958] EA 60
- Kothari Vs Quresh and Another [1967] EA 564
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.