Chief Oyoyo Ubene V. Commissioner of Police (2004)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A.

This appeal is against the ruling of the Akpabuyo High Court of Cross River State (Coram: Ikpeme, J.) which struck out the appellant’s application for leave of the Honourable Court to appeal Bout of time against the appellant’s conviction in the charge No. MCA/IC/78 at the Ikot Nakanda – Akpabuyo Chief Magistrate Court.

The facts of the case are not at all in controversy. In 1978, that is, nearly 26 years ago the appellant with another, was charged with the offence of assault under section 351 of the Criminal Code Law of Cross River State, 1978 leading to the conviction and sentence of the appellant with an option of fine in the sum of N80.00. The appellant paid the fine in lieu of 3 months imprisonment; and allowed the matter to rest there.

Apparently aggrieved by the said decision, the appellant has now filed a notice of appeal containing 2 (two) grounds of appeal and without their particulars. They are as follows:

“(i) The learned appellate High Court Judge erred in law in failing to consider the circumstances of the case appealed against before refusing to grant the application sought.

The learned appellate High Court Judge erred in law in refusing leave merely because the reason for delay was not satisfactory to the court.”

The parties to the appeal have filed and exchanged their briefs of argument. In furtherance of the appeal, the appellant has distilled three issues for determination and they are as follows:

(i) Given the entire circumstances of this case, is it not rather harsh for the lower court to have refused the appellant leave to appeal out of time against his conviction?

(ii) Whether the lower court was right in refusing the leave sought by the appellant without considering the orientation of the appellant as an illiterate villager.

(iii) In considering the reason for delay in bringing up an appeal, should the court be guided by standards set in civil actions whether or not the appeal is civil or criminal?”

The respondent in its brief of argument has also raised three issues for determination in the appeal, namely:

(i) Was the lower court wrong to have refused the appellant leave to appeal out of time for more than 24 years?

(ii) Is the lower court bound to consider the orientation of an appellant/applicant before it before making or exercising its discretion?

(iii) In considering the reason for delay in bringing up an appeal should the court be guided by standards set in civil actions whether or not the appeal is civil or criminal?