Chief J. L. E. Duke V. Rev. (Dr.) Peter Etim Duke (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the leading judgment)

This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on the 11th June, 2010.

Appellant applied for Letters of Administration on the 26th November, 2006 at the probate Registry to administer the Estate of his late father, Chief Moses Etim Okon Inyang Duke, who died intestate on 20th of August, 1975.

On the 8th of January, 2007, Respondent filed a caveat to the application. After the hearing, the Probate Registry gave judgment in favour of the Appellant. Aggrieved by that decision, the Respondent applied for a Review as provided in Ord. 46 Rule 86 of the CRS High Court (Civil Procedure) Rules 2008.

On the 11th of June, 2010, the High Court set aside the judgment of the Probate Registry. Dissatisfied with the High court’s judgment, the Appellant filed a notice of appeal with nine (9) grounds.

In his brief of argument, the Appellant distilled 4 issues for determination as follows:

1. Whether the lower court was right in reversing the judgment of the trial court on the ground that it was based on inadmissible evidence.
2. Whether the Respondent (caveator) has proved his right to the estate of late Chief Moses Etim Okon Inyang Duke who died intestate in 1975 to warrant the granting of administration of his estate to him (caveator).
3. Whether a court can presume the existence of facts.
4. Whether the lower court was right by suo moto raising a fresh point in this matter and then resolving same in the course of the review exercise in favour of the Respondent.

The Respondent filed his brief of argument on the 11th of September, 2012 but deemed properly filed and served on the 10th of April, 2013. In its brief, the Respondent articulated four (4) issues for determination as follows:

1. Whether there is any competent records of Appeal before this Honourable court to sustain the appeal, and if not, whether the Appeal Court has jurisdiction to entertain an appeal without the records and should the appeal not be dismissed in the circumstance.
2. Whether the lower court was right in reversing the decision of the Probation Court Registry on the available evidence and materials which the Probation Court ignored, to make the appellant the sole administrator, to the total exclusion of the respondent and other beneficiaries who have interest in the estate of their late father, Chief Moses Etim Okon Inyang Duke.
3. Whether the Respondent had proved and shown his interest in the estate of late Chief Moses Etim Okon Inyang duke to qualify him for the administration or joint administration of the estate of his father alongside the appellant in the circumstance as ordered by the lower court.
4. Whether the lower court was wrong to make use of the laws applicable to the facts of the case while writing its judgment even though the parties did not specifically refer to them and can this be regarded as raising fresh/point in favour of the Respondent

The first issue in the respondents brief is on jurisdiction; whether there is a competent appeal as the Record of Appeal was filed out of time. The learned counsel to the Respondent in this issue submitted that under Order 8 Rule 18 of the Court of Appeal Rules 2011 which provides.

“If the register has failed to compile and transmit the record under rule 1 and the Appellant has also failed to compile and transmit the record in accordance with rule 4, the Respondent may by notice of motion move the court to dismiss the appeal”

It is true that where the Registrar of the lower court fails to compile and transmit record within 60 days, the Appellant has 30 days to compile and transmit. The Records of Appeal has been transmitted to this court since the 20th of October, 2010 and the appeal entered in this court. It is also true that the court graciously granted the Appellant an order on the 9th of November, 2010 to compile and transmit the Records of Appeal.

However, it would be recalled that the 2011 Rules were not in operation at the time of compilation and transmission of the Records of Appeal. The order made on the 9th of November, 2010 was even granted before the 2011 Rules took effect. Be that as it may, this is purely a procedural defect. The Records of Appeal are already in the courts’ file and forms part of the Record of this appeal.

The Supreme Court in its wisdom has warned on following the law strictly to engender hardship to the parties. The records are before the court. The parties have filed their briefs. The irregularity is procedural rather than substantive.

The court would deem the already compiled and transmitted Record of Appeal as properly compiled and transmitted to this court.

I will therefore deal with the issues of law as articulated by the parties to determine this case, as it has suffered a lot of delays. This case has been pending since 2006 when the Appellant applied for letters of administration in the Probate Registry of the High Court of Cross River State.