Chief J.l.e. Duke V. Rev. (Dr.) Peter Etim Duke (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Lead Ruling)

The Appellant is alleged to be a half brother of the Respondent and supposed beneficiaries of the estate of their late father. The appellant is said to have refused to share the estate with the Respondent and other siblings of their late father. The appellant went to the Probate Court in Calabar, Cross River State to obtain letters of Administration as the sole administrator of the Estate. The Respondent entered a caveat and applied to be joined as a co-administrator of the estate.

The Probate Court ruled in favour of the appellant on 17th September, 2009. The ruling was set aside on appeal by Hon. Justice Obojor Ogar of the High Court of Justice, Cross River State on 11th June, 2010. Being aggrieved the appellant appealed to this Court on 2nd July, 2010. On 19th July, 2010 the appellant deposited money in the lower court for the compilation and transmission of the records. The Registrar compiled but transmitted the records on 20th October, 2010 outside the sixty days period stipulated under Order 8 rule 1 of the Court of Appeal Rules, 2007.

Noticing this the appellant brought an application on 21st October, 2010 in this court praying that time be enlarged within which he shall compile and transmit the records without praying that the records compiled and transmitted be deemed properly compiled and transmitted to this court for use at the hearing of the appeal. Nevertheless, on 9th November, 2010 the Court of Appeal granted the appellant’s request in the following language:

“IT IS ORDERED:

1. The Application be and is hereby granted as prayed.
2. Time is extended to the end of business today for the Applicant to compile and transmit the Record of Appeal to the Registry of this Court.”

The Respondent did not appeal to the Supreme Court against the above ruling.

On 31st January, 2011 the appellant’s learned Counsel filed a motion supported by affidavit praying for an order that the appeal should be determined on the appellant’s brief alone. The reason was that though the records were served on the Respondent on 9th November, 2010 no brief of argument had been filed on his behalf.

I hereby reproduce what transpired when the application came up for hearing:

“Duke: There is a motion dated 31st January, 2011 praying for an order to hear the appeal on the appellant’s brief alone since the Respondent has neglected or refused to file the Respondent’s brief.

Akpan: I am opposing the application. The Records are yet to be served on us.

Duke: There is proof of service of the Records on the Respondent as shown in Exhibit “6” and “7” attached to the further affidavit sworn to by the Appellant/Applicant on 8th April, 2011.

Court: Exhibit “7”, the Record of proceedings was served on Ekanem on 8th February, 2011. The application to hear appeal on the appellant’s brief is based on records which were compiled by the lower Court. Apparently the appellant who was granted extension of time to compile the records fell back on the records compiled by the lower Court but transmitted outside the 60 days allowed by Order 8 rule 1 Court of Appeal Rules. This is what learned Counsel for the Respondent is using to ambush the appellant. There is therefore need for the appellant to regularize the records he intends to use for the appeal by bringing the proper application. The motion is therefore struck out.

sgd.

Kuma B. Akaah’s, JCA