Dr. Bassey Enun V. Mrs. Rosemary Ekpo (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Lead Ruling)

The Appellants brought this motion on the 16/6/2011 praying the court for the following reliefs.

a) Extension of time within which to seek leave to appeal as parties having an interest against the judgment delivered on 25/10/2006 by Hon. Justice E. E. Ita of High Court, Calabar in Suit No. HC/409/2005: DR. UKEH BASSEY ENUN vs. MRS. ROSEMARY EKPO.

b) Leave to appeal as parties having an interest against the decision of Hon. Justice E. E. Ita of High Court, Calabar in Suit No. HC/409/2005: DR. UKEH BASSEY ENUN vs. MRS. ROSEMARY EKPO delivered on 25/10/2006.

c) Extension of time within which to appeal as parties having an interest against the decision of Hon. Justice E. E. Ita of High Court, Calabar in suit No.HC/409/2005: DR. UKEH BASSEY ENUN vs. MRS. ROSEMARY EKPO delivered on 25/10/2006.

AND for such other order(s) as the court may deem fit to make in the circumstances.

An 18 paragraphs affidavit deposed to by the 2nd Applicant; as well as copies of the High Court judgment in respect of which leave is sought and of the Supreme Court judgment in Suit No.SC.92/2002, delivered on the 17/6/2005, were annexed to the motion.

After receipt of the motion papers, the Defendant/Respondent deposed to and filed a 20 paragraphs counter affidavit in opposition to the prayers sought by the Applicants. Attached to the counter affidavit were copies of an agreement made on the 9/9/93 between Chief Asuquo Mfon and the Plaintiff/Respondent, a deed of assignment between the Plaintiff/Respondent and Mr. Olugbemi Toba made on 20/3/2000, statement of defence in Suit No.C/88/76, an enrolled order dated 10/2/2003 in suit No. SC.92/2002 and newspaper reports.

On the order of the court, leaned counsel for the parties filed written addresses in the motion. The Applicants’ address written by Chief A. O. Mogboh, SAN, was filed on the 12/6/12, while the defendant/respondent’s address was written by Chief Orok I. Ironbar and filed on the 20/6/12.

Although the Plaintiff/Respondent was served with the motion papers and other processes in the motion, he did not file any process in reaction thereto. At the hearing of the motion on the 2/10/12, Mr. Essien H. Andrew, Esq. appeared for the Applicants and adopted their address, urging us to grant the motion as prayed.

Mr. Mba E. Ukweni, Esq., leading A. J. Arong and A. E. Afolarin, Esq., appeared for the Plaintiff/Respondent, who was in court and confirmed that no address was filed for the motion. He said he did not oppose the grant of the motion.

Orok Ironbar adopted the Defendant/Respondent’s address and urged us to refuse and dismiss the motion.

The learned silk had submitted in the Applicants’ address that the Applicants are persons having interest in the matter because the Supreme Court had in suit No.SC 92/2002 given judgment in favour of Ishie Community over a parcel of land which included the one subject of the case before the High Court. An extract of the Supreme Court judgment was set and it was said that the Ishie Community granted the Plaintiff/Respondent the portion of land in dispute. It was submitted that the High Court had held that the Supreme Court judgment gave nothing to any party which tends to interprete the said judgment adversely against the Applicants who only got to know about it in a subsequent case between them and the Kasuk people. According to the learned silk, the Applicants are necessary parties whose presence is essential for the effectual determination of the issue as to who owns the land in dispute pointing out that the claim before the High Court was for a declaration that the Plaintiff was entitled to the Certificate of Occupancy No.CA/4022/95. He then said the reason for the delay in bringing the application for leave has been shown in paragraphs 6, 7, 8, 9, 10, 11 and 12 of the Applicants’ affidavit which were set out.

In addition, it was submitted that the proposed grounds of appeal raise the issue of the High Court’s jurisdiction to make the type of pronouncement it made in respect of the Supreme Court judgment. The proposed ground of the appeal was set out and it was contended by learned SAN, that the High Court did not have the competence to start interpreting a Supreme Court judgment which it is bound to apply.