MAIKANO KURA & ORS v. MOSES YERO & ANOR
(2016)LCN/8264(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of March, 2016
CA/K/220/2012
RATIO
PRACTICE AND PROCEDURE: WHETHER THE APPLICANTS HAVE PLACED BEFORE THE APPELLATE COURT THE MATERIAL FACTS FOR THEIR APPLICATION FOR AN ENLARGEMENT OF TIME
Judicial Notice has been taken that all appeals from Customary Courts and upper Customary Courts must be brought to this Court within 30 days, from the date of judgment. Looking at the Motion paper and the affidavit averred to have the applicants complied with the said Rule? Order 11 Rule 9 (a) (b) & (c) states:
(a) “The Court may, on such terms as it thinks just by order extend or abridge the period within a person is required or authorized by these provisions, or by any judgment, order or direction to do any act in any proceedings.
(b) The Court may, extend any such period as is referred to in sub-rule (a) although the application for an extension is not made until after the expiration of that period.
(c) Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failing to appeal which prima – facie show good cause why the appeal should be heard, together with the copy of the judgment appeal against and any other document(s) relevant to the application.
The applicants went to sleep and suddenly woke up and released (sic) that they have not completed their matter and want to spring surprises at the respondents. Judgment was delivered for over 7 years and now they want to appeal out of time. They have not advanced any good and substantial reasons why this Court should grant them their prayers to appeal out of time. Their grounds of appeal attached did not show prima-facie why the appeal must be heard.
The two requirements must co-exist or present and both satisfied, but where one requirement is satisfied and the other not satisfied such an application will not be granted for lacking in merit see IMPRESIT BAKATORI Plc V ABDULAZEEZ (2003) 12 NWLR (PT 854) 307 at 322 – 323 and SERIKI V ADURALERE (2007) 3 NWLR (PT.1020) 127 at 137 paras D – H.
From the provisions reproduced above, can it be said that the applicants complied with the said provisions to convince the Court to exercise its discretion judicially and judiciously in their favour? Our answer is in the negative. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
COURT: FUNCTUS OFFICIO; WHETHER THE COURT WAS DUNTIO OFFICIO BY REASON OF ITS RULING
Functus officio is defined in “Blacks Law Dictionary” 9th Edition as:
“having performed his or her office…without further authority or legal competence because the duties and functions of the original commission have been fully accomplished” In the case of Dingyadi v. INEC (No. 2) (2011) 18 NWLR Part 1224 Page 154 at 186 Para D-F, the Supreme Court, per Chukwuma-Eneh JSC, defined this maxim as follows:
“..it connotes that a Court as this Court, having given its decision in a matter before it ceases to have the power to reopen the same matter all over again in the same proceedings. See: Mohammed v. Hussein (1998) 11-72 SCNJ 135 at 153 – 164. Albeit, where a Court has duly performed its duty by handing down its decision/Ruling as in this case it has exhausted as it were, all its powers with regard to that matter. And so, the Court becomes functus officio and incapable of giving any decision or making any competent orders with regard to the same matter it has previously decided for want of the jurisdiction to do so.”
In First Bank of Nigeria Plc. V. T.S.A. Industries Limited (2010) 15 NWLR Part 1216 247 at 296 Para C-F, the term was interpreted by Adekeye JSC, reading the lead judgment, as follows:
“The phrase functus officio means “a task performed fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority.”
A Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, reopen or re-visit the matter. Once a Court delivers its judgment on a matter, it cannot re-visit or review the said judgment except under certain conditions. More importantly, a Court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of Court process.” per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICE
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
1. MAIKANO KURA
2. ADOKWA KURA
3. MADAKI KURA
4. MAICHIBI GAIYA Appellant(s)
AND
1. MOSES YERO
2. DAN’ASABE KABERE Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.(Delivering the Leading Judgment):
The Appellants in this case filed an application before the Customary Court of Appeal, Kaduna State, dated 24th April 2012, seeking the following reliefs:
a. An order extending the time for the Appellants within which to file and serve their Notice of Appeal.
b. An order deeming the attached proposed Notice of Appeal attached and marked as Exhibit AA as properly filed and served.
c. Such other orders as the honourable Court shall deem fit to make in the circumstances.
The Court, in a Ruling delivered on 31st May 2012, dismissed the application as lacking in merit. Dissatisfied, the Appellants have appealed against the order of dismissal, by a three ground Notice of Appeal dated 11th June 2012. The parties subsequently filed Briefs of Arguments. At the hearing of the appeal on 4/2/16, only the Appellants’ Counsel was present, and duly adopted the Appellants’ Brief of Argument. The Respondents? Brief was deemed duly argued by the Court, pursuant to Order 18 Rule 9(4) of the Court of Appeal
Rules 2011.
The Appellants’ Counsel, J. A. Madaki of Haske Chambers, in the Appellant’s Brief, formulated the following issues for determination:
1. Whether the Lower Court was right to hold that it had become functus officio and so was divested of jurisdiction to grant the Appellants’ motion of the 24th day of April, 2012.
2. Whether the Lower Court was right to hold that it has no inherent jurisdiction to grant the Appellants’ motion of the 24th day of April, 2012.
3. Whether the Lower Court was right to hold that the Appellants’ motion of 24th April, 2012 has no merit when it held also that it has no jurisdiction
The Respondent’s Counsel, S. E. Kaboshio of Timmy & Co formulated a single issue for determination, namely:
Whether the Lower Court considered and dismissed the Appellants motion on notice dated 23/9/2011, but filed on the 29/11/2011 on its merit and thereby became functus officio in respect of the 2nd motion dated and filed on the 24/4/2012.”
In the determination of this appeal, the singular issue that arises is the 1st issue raised by the Appellant, under which issue the
submissions of both Counsel shall be considered, namely:
Whether the Lower Court was right to hold that it had become functus officio and so was divested of jurisdiction to grant the Appellants’ motion of the 24th day of April, 2012.
Appellants’ Counsel has contended that the Lower Court was in error to have held itself to be functus Officio and had no jurisdiction to grant the Appellant’s Motion. This, he submitted, because the former motion was dismissed on the ground that it was “incurably defective and incompetent”. Where a motion is incompetent, the Court, by Order 11, Rule 6 of the Kaduna State of Nigeria Customary Court of Appeal (Appeal from Customary Courts and Upper Customary Courts) Rules 2002 should have struck out the application and not dismissed it. The dismissal by the Court, in the circumstances, had the effect of either striking out or would be considered as a nullity, as the Court below was exercising a power it did not have. It was this order of dismissal that misled the Lower Court into holding that it was functus officio. Being a nullity, the Court, either on application or on its own volition, has
inherent jurisdiction to set aside its ruling. The Court was thus in error to have held itself to be functus officio, not having decided the case on its merits. In consequence, the Lower Court could have entertained the Appellants’ Motion of 24th April 2011 and dealt with the same on its merits. He cited the case of Dangyadi v. INEC (2010) 6-7
MISC Page 136 Para C-E and UBA v. Ukachukwu (2006) All FWLR Part 337 Page 515.
The Lower Court, Counsel further argued, misconceived its own rules when it held that it had no inherent jurisdiction to grant the Appellants’ motion, as “appeal” also includes an application for leave to appeal, which is what the Appellant’s Motion of the 24th April 2012 sought to do. An application can only be said to lack merit if it was considered under Order 11 Rule 9(a) and (c) of the Customary Court of Appeal (Appeal From Customary Courts and Upper Customary Courts) Rules 2002, on conditions to be fulfilled for the grant of an enlargement of time to appeal. The Appellants had satisfied the requirement, giving reasons, in their affidavit, for the delay in bringing the application. The Lower Court, Counsel submitted, failed to
properly exercise its discretion by holding it was functus officio when the Court did not consider the application in line with the said Rules. Furthermore, one of the grounds of appeal is challenging the jurisdiction of the Court whose judgment the Appellants sought to appeal against to the Lower Court. Jurisdiction of the Court, being fundamental, can be raised at any time, even for the first time on appeal. The judge before whom such issue is being raised is thus bound to extend time to appeal, irrespective of the length of time it took the Applicants to bring the application for extension of time. He cited FHA v.?Kalejaiye (2010) 11-12 MISC Page 200.
The Respondents’ Counsel, citing the case of O.B.M. Ltd v. M.B.A.S Ltd (2005) 4 MJSC 1 at 9 Para F on the meaning of a final judgment, submitted that where a Court of competent jurisdiction has finally decided the rights of the parties in a particular case, that Court cannot be called upon by either of the parties to entertain the same complaint as in the previous suit. He contended that the Lower Court considered the initial application in line with the requirements of the said rule. The fact that the
Court held that the application was incurably defective and incompetent is not the reason why the application was dismissed, rather, the dismissal was because the application was lacking in merit. It is not every reason stated in a decision that constitutes the reason for that decision, as the statement of the Court was a mere remark. The Court was thus right to have declined jurisdiction to entertain the application. The Applicants should have appealed against the initial application rather than re-filing the same.
It is not for the Appellants, he further contended, to construe the order of dismissal to mean setting aside, as a judgment of a Court of competent jurisdiction remains valid and binding, until set aside, even where the person affected by it believes it to be void. Thus, even if the initial motion was struck out for being incompetent, there is nothing in the 2nd motion that cures the defect of the first one.
In resolving the sole issue for determination, whether the Lower Court was right to hold that it was functus officio, it is necessary to set out the 1st application and the ruling on it.
The 1st application, dated 23rd September
2011 and filed on 29th November 2011, was for the following:
a. An order extending the time for the Appellants within which to file and serve their Notice of Appeal.
b. An order deeming the attached proposed Notice of Appeal attached and marked as Exhibit AA as properly filed and served.
c. Such other orders as the honourable Court shall deem fit to make in the circumstances.
Hearing this application, which was opposed by the Respondents’ Counsel, the Customary Court of Appeal, at Page 51 of the Records, in its Ruling delivered on 20th December 2011 held:
“We have carefully gone through the Motion papers and the affidavit of the applicants and the counter affidavit of the respondents, as well as listened to the Learned Counsel on both sides. The question to ask is that, have the applicants placed before this Court the material facts before the Court for their prayers be granted?
Judicial Notice has been taken that all appeals from Customary Courts and upper Customary Courts must be brought to this Court within 30 days, from the date of judgment. Looking at the
Motion paper and the affidavit averred to have the applicants complied with the said Rule? Order 11 Rule 9 (a) (b) & (c) states:
(a) “The Court may, on such terms as it thinks just by order extend or abridge the period within a person is required or authorized by these provisions, or by any judgment, order or direction to do any act in any proceedings.
(b) The Court may, extend any such period as is referred to in sub-rule (a) although the application for an extension is not made until after the expiration of that period.
(c) Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failing to appeal which prima – facie show good cause why the appeal should be heard, together with the copy of the judgment appeal against and any other document(s) relevant to the application.
The applicants went to sleep and suddenly woke up and released (sic) that they have not completed their matter and want to spring surprises at the respondents. Judgment was delivered for over 7 years and now they want to appeal out of time. They
have not advanced any good and substantial reasons why this Court should grant them their prayers to appeal out of time. Their grounds of appeal attached did not show prima-facie why the appeal must be heard.
The two requirements must co-exist or present and both satisfied, but where one requirement is satisfied and the other not satisfied such an application will not be granted for lacking in merit see IMPRESIT BAKATORI Plc V ABDULAZEEZ (2003) 12 NWLR (PT 854) 307 at 322 – 323 and SERIKI V ADURALERE (2007) 3 NWLR (PT.1020) 127 at 137 paras D – H.
From the provisions reproduced above, can it be said that the applicants complied with the said provisions to convince the Court to exercise its discretion judicially and judiciously in their favour? Our answer is in the negative.
The applicants have filed two similar processes on the same matter for the same reliefs and this to the annoyance of the other parties, see paragraph 3 (c) (m) and (n) of the counter affidavit and Exhibit LC “B” Motion on Notice dated 8th March, 2010 before the Upper Customary Court, Kwoi which has the same reliefs and parties with Exhibit “D”, the
two processes initiated by the applicants is before the Upper Customary Court, Kwoi are still pending. This to our mind a true abuse of Court processes and all the Courts up to the Supreme Court frown at such an abuse of Court process i.e. where the same parties, same reliefs are sought at different Courts to the annoyance of the other party, See KOLAWALE V A.G., OYO STATE (2006) 8 NWLR (PT.966) S0 at 74 paras B – D and SARAKI V KOTOYE (1992) 9 NWLR (PT.264) 156 at 188.
In out humble view the Motion dated 23th September, 2011 and filed the 29th November is incompetent for not complying with Order 77 Rule 9 a – c, Rules of this Court. Also there is glaring evidence that the appellants have abused the Court process by filing Motion/appeal at different Courts for the same reliefs and for the same parties and it constitutes a gross abuse of Court process.
In our humble view the application is incurably defective and incompetent, which is likely to be dismissed for lacking in merit, and is accordingly dismissed. We award N3,000 costs in favour of the respondents as against the applicants/appellants.”
In the Ruling above, the
Lower Court has set out Order 11?Rule 9(a),(b) and (c) of the Customary Court of Appeal (Appeal From Customary Courts and Upper Customary Courts) Rules 2002, on the conditions to be fulfilled by the Appellant seeking an enlargement of time to appeal. These conditions, in summary, are:
(1) good reasons for failing to appeal within time;
(2) good reasons why the appeal should be heard.
The Court, in its ruling above, held there to be no good reason for a delay of 7 years from when the judgment was given and the date of the application seeking leave to appeal. On the 2nd requirement the Court did not agree that good reasons had been given for the appeal to be heard.
This, they said, is because there were in existence two processes filed before the Upper Customary Court, Kwoi, between the same parties and seeking the same reliefs, thus rendering the application before them an abuse of the Court’s process.
It is clear from the foregoing, that the application was indeed heard on the merits and refused by the Court. The fact that the Court used the words “incompetent for not complying with Order 11 Rule 9 a – c, Rules of this
Court” and “incurably defective and incompetent”?does not detract from the fact that the application was heard on the merits, I hold.
Having answered the question posed by me that the Motion of 29th November 2011 was decided on the merits, I proceed to the 2nd Motion of the Appellants, dated 24th April 2012, and contained on page 58 of the Records. This Motion, I note, is for exactly the same reliefs as the former Motion filed on 29th November 2011. Hearing this application, the Lower Court, comprised of the same members, in its Ruling of 31st May 2012, considered the application, the counter affidavit in opposition, as well as the exhibits attached to both processes, in addition to the submissions of both Counsel. It also referred to the former application filed as well as its ruling of 20th December 2011, dismissing the application and held:
“…Dismissing the application on the 20th December, 2011, which was brought before this Court by the same applicant was not only incompetent and lacking in merit (sic), and so is the present application, which has the same parties asking for the same reliefs is more defective. It is frivolous
and annoying to the other party, and also an abuse of Court process – See the following cases, KOLAWALE V A. G. OYO
STATE (2006) 3 NWLR (PT 966) 50 AT 74 paras B -D, and DUMEZ (Nig) Plc v U.B.A. Plc (2006) NWLR (PT 1000) 515 at 526 paras D -?? G.
The ruling of 20th December, 2011, which was dismissed (sic), is still valid no matter how bad the ruling was. Therefore this Court cannot sit and determine its ruling already considered. This Court is already functus officio and has no jurisdiction to entertain this application. See the following cases, FIRST BANK of NIGERIA v. T.S.A. IND. Ltd (2010) 15 NWLR (PT.1216) 247 at 296 paras D – F, UKACHUKWU v. U.B.A. (2005) 18 NWLR (PT 956) page 1 and MOHAMMED v HUSSEINI (1998) 14 NWLR (PT 584) page 108.
We are in agreement with the learned Counsel for the respondents, that this application has no merit.
From the totality of this application we find no merit in the reliefs sought since this Court has become functus officio.
Accordingly the application dated 24th April, 2012 is hereby dismissed. We hereby award
N2,500 costs in favour of the respondents as against the applicants.”
The question is thus whether the Court was indeed functus officio by reason of its Ruling of the 20th December 2011.
Functus officio is defined in “Blacks Law Dictionary” 9th Edition as:
“having performed his or her office…without further authority or legal competence because the duties and functions of the original commission have been fully accomplished”
In the case of Dingyadi v. INEC (No. 2) (2011) 18 NWLR Part 1224 Page 154 at 186 Para D-F, the Supreme Court, per Chukwuma-Eneh JSC, defined this maxim as follows:
“..it connotes that a Court as this Court, having given its decision in a matter before it ceases to have the power to reopen the same matter all over again in the same proceedings. See: Mohammed v. Hussein (1998) 11-72 SCNJ 135 at 153 – 164. Albeit, where a Court has duly performed its duty by handing down its decision/Ruling as in this case it has exhausted as it were, all its powers with regard to that matter. And so, the Court becomes functus officio and incapable of giving any decision or making any competent
orders with regard to the same matter it has previously decided for want of the jurisdiction to do so.”
In First Bank of Nigeria Plc. V. T.S.A. Industries Limited (2010) 15 NWLR Part 1216 247 at 296 Para C-F, the term was interpreted by Adekeye JSC, reading the lead judgment, as follows:
“The phrase functus officio means “a task performed fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority.”
A Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, reopen or re-visit the matter. Once a Court delivers its judgment on a matter, it cannot re-visit or review the said judgment except under certain conditions. More importantly, a Court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of Court process.”
It follows clearly, from the definitions above, that the Lower Court, having given its
decision on the merits in respect of the same application brought before it, had indeed become functus officio and was divested of jurisdiction to entertain the same application. The option open to the Appellant was to have appealed against the said Ruling rather than refile the same application. Having resolved the sole issue for determination against the Appellants, this appeal is entirely devoid of merit and is hereby dismissed.
Each party shall bear its own costs.
UWANI MUSA ABBA AJI, J.C.A.:
I had a preview of the judgment just delivered by my learned brother, Oludotun A. Adefope-Okojie, JCA and I agree entirely with the reasoning and conclusions that the appeal is unmeritorious and should be dismissed.
It is for the reasons therein that I too dismiss the appeal as lacking in merit. I abide by the consequential order made including orders as to costs.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree.
>
Appearances
J. A. Madaki with him, A. S. Othman, S. J. Madaki, K. L. Appah, J. S. KuraFor Appellant
AND
No appearance for Respondent For Respondent
