Anietie Udo Akpan V. Dr. Gabriel Udo Udo Atta (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment)

This appeal is against the decision of the Cross River State High Court sitting at Calabar contained in a ruling delivered on the 9/10/2008 in motion No. HC/MISC/258/2005.

From the facts narrated in the briefs of argument filed by the learned counsel for the parties to the appeal, a judgment was entered by a Magistrate Court against the Appellant who later applied to that court to set aside it. When the Magistrate Court refused the application to set aside its Judgment, the Appellant appealed against the refusal in appeal No. HC/7A/2006 and while that appeal was pending, he filed the motion mentioned above for extension of time to appeal against the judgment of the Magistrate Court. The appeal No. HC/7A/2006 was dismissed and subsequently, the Appellant’s motion No. HC/MISC/258/2005 was also dismissed.

The High Court in the ruling dismissing the Appellant’s motion, after reviewing the submissions by the learned counsel for the parties therein, had stated thus:

“This application as stated already is narrowed down to prayer for extension of time to appeal; giving reason as nor service of court processes. Honourable Ita- Judge stated in his judgment dated 16/4/2004 on pages 2 and 5 as follows:

“I think I should clear that this appeal is against the ruling refusing to set aside the Judgment and not against the Judgment itself.

For the above reasons this appeal fails on all grounds and it is hereby dismissed.”

From the foregoing, there is no need to grant extension of time to appeal, so this application is without merit and is struck out without cost.

Being aggrieved with the above decision, the Appellant filed a notice of appeal containing three (3) grounds which I can afford to set out in detail. They are as follows:-

GROUNDS OF APPEAL

GROUND 1: The Learned Judge at the Court below misdirected himself in law when he struck out the Motion HC/MISC.258/2005 for extension of time which was pending before him by holding that another court presided by the Honourable Justice E.E. Ita, had by his judgment delivered on 16th April, 2006 decided the issue in HC/MISC.258/2005.

PARTICULAR OF MISDIRECTION

(a) The issue in HC/7A/2006 was different from the issue in HC/MISC.258/2005 which was for extension of time to appeal from the judgment of the Learned Chief Magistrate, Calabar delivered on 15th June, 2005 without the processes leading to judgment having not been served on the Appellant.

(b) The Appellate Judge in HC/7A/2006 made it clear that his Judgment was not against the judgment of the Learned Chief Magistrate. (page 2 lines 13 and 14) of the judgment.