Edet Obot Nyah V. Udo Okon Noah (2006)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

This case originated as suit No: 22/75 in the Abak District Court in which the respondent (as plaintiff) sued the appellant (as defendant) for declaration of title to a piece of land called Ekpene Edeng situated at Ikot Oku Ubara-Ediene Abak and injunction.

The District Court entered judgment against the appellant on 18/3/76. Though the appellant appealed within time he did not file his grounds of appeal until 9/2/88 when he brought a motion on notice for extension of time to file his grounds of appeal. It is a common ground that the appellant paid his appeal fees on 25/3/76 and the question whether or not any ground of appeal was filed earlier is better left alone as it was not raised before any of the courts below and it was not raised before the court. The motion on notice for extension of time to file grounds of appeal was supported by a 13-paragraph affidavit in which the reasons for delay in filing the ground of appeal were set out.

On 29/12/86 the respondent filed suit no HA/32/86 in the High Court, Abak claiming among other reliefs statutory right of occupancy of Ekpene Edeng land, the same subject matter of suit No. 222/75 in the Abak District Court.

On 30/5/88 the respondent filed a motion in the Abak High Court asking for a stay of proceeding in the application for extension of time to file grounds of appeal then pending in the Magistrate’s Court, Abak. Based on the petition of the respondent to the State Chief Judge, the Chief Registrar of the High Court wrote a letter claiming he was directed by the Chief Judge of the State to ask the Magistrate’s Court to strike out the appellant’s motion for extension of time to file his grounds of appeal in view of suit No HA/32/86 on the same subject matter. The letter was dated 29/2/88. On 23/3/88 the Chief Registrar wrote another letter to Magistrate’s Court claiming he was directed by the State Chief Judge to ask the Magistrate to proceed with the motion and to exercise his discretion in the matter. On 14/4/92 the learned Chief Magistrate ruled that the court had no jurisdiction to hear the appellant’s application in view of suit No. HA/32/86 in the High Court, Abak over the same piece of land.

The appellant, aggrieved, appealed to the High Court, Abak. The High Court dismissed the appeal and affirmed the decision of the Chief Magistrate’s Court, Abak, substituting the word “disallowed” for the words “struck out” used by the Chief Magistrate. Aggrieved by the decision of the High Court, the appellant appealed to this court on the following two grounds, shorn of their particulars:-

“Error in law

Ground 1:

The learned appellate Judge’s refusal to set aside the ruling of the Learned Chief Magistrate striking out an application for extension of time within which to file grounds of appeal and going ahead to disallowed the appeal in the circumstances of this case is a wrongful exercise of Judicial discretion which has resulted in serious miscarriage of justice against the appellant.

Ground 2: Error in Law

The learned appellate Judge erred in law in disallowing the appellant’s case when one of the grounds of appeal filed by the appellant to be considered by the learned Chief Magistrate was on jurisdiction of the customary court on the subject matter which was said to have situated in Abak Urban and whose exclusive original jurisdiction is vested in the High Court only.”

Consistent with the rules and practice of the court, the parties herein, through their respective counsel, filed and exchanged briefs of argument.

In his brief dated 27/9/2002 and filed on 15/11/02 the appellant’s counsel, in utter disregard to the rules relating to the formulation of issues for determination, framed six issues from his two grounds of appeal. He did not indicate what issue arose from either of the two grounds of appeal. The six issues are hereunder reproduced:-

“1. What is the effect of an appeal court not considering the proposed grounds of appeal when ruling on an application for extension of time within which to appeal?