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TOKOI & ORS v. KURA & ORS (2022)

TOKOI & ORS v. KURA & ORS

(2022)LCN/16491(CA)

In the Court of Appeal

(KADUNA JUDICIAL DIVISION)

On Wednesday, June 01, 2022

CA/K/103/M/2021(R)

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. CALEB TUKURA TOKOI 2. IBRAHIM DOGO 3. SAMUEL HABILA SHIMINU APPELANT(S)

And

1. AYUBA KURA 2. PASTOR THOMAS KURA 3. BULUS KURA 4. YUNUSA B. KURA 5. DANJUMA KURA 6. ALLAHYAYI KURA RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURT OF APPEAL CAN ENTERTAIN APPLICATIONS THAT HAS BEEN REFUSED BY THE TRIAL COURT FILED WITHUNG 15 DAYS OF THE REFUSAL

From the above, it is clear that this Court shall entertain applications that has been refused by the lower Court filed within 15 days of the refusal. What comes to mind here is, which Court is been referred to as the lower Court in this context?
By Order 1 Rule 5 of the Court of Appeal Rules, 2021, the lower Court is defined to mean “the Court from which an appeal is brought.”
Flowing from the above definition therefore, it is clear that the lower Court here is the Upper Customary Court Iddah and not the Customary Court of Appeal. This Court has no business with the decision of the Upper Customary Court, from which decision the Appellants/Applicants now by this application is seeking for an extension of time to appeal against. See also Section 240 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides that this Court shall have jurisdiction to hear appeals from:
[a] Federal High Court
[b] High Court of the Federal Capital Territory, Abuja
[c] High Court of a State
[d] Sharia Court of Appeal of the Federal Capital Territory, Abuja
[e] Sharia Court of Appeal of a State
[f] Customary Court of Appeal of Federal Capital Territory, Abuja
[g] Customary Court of Appeal of a State
[h] Court martial or other Tribunal as may be prescribed by an act of the National assembly.
It is clear that these are the Courts in the hierarchy to this Court from which it is mandated to directly hear appeals from and as the Respondents’ Counsel has rightly argued, this Court as it relates to this case, only has the jurisdiction to hear and determine appeals or applications arising from appeals against the decision of the Customary Court of Appeal and not an application for an order of this Court to appeal to the Customary Court of Appeal Kaduna, against a decision of the Upper Customary Court Iddah as seen on the face of the motion thus:
“An Order extending time within which the Applicants herein will appeal to the Customary Court of Appeal Kaduna State against the decision of the Upper Customary Court Iddah delivered on the 6th day of February, 2018 by Honourable Ayuba Makama Surubu in case No: UCCID/CV/80/2017 between CALEB TUKURA TOKOI & 2 ORS V AYUBA KURA & 5 ORS out of time.PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgement): By a Motion on Notice dated the 19th day of March, 2021, the Appellants/Applicants herein sought for the following reliefs:
1. An Order extending time within which the Applicants herein will appeal to the Customary Court of Appeal Kaduna State against the decision of the Upper Customary Court Iddah delivered on the 6th day of February, 2018 by Honourable Ayuba Makama Surubu in case No: UCCID/CV/80/2017 between CALEB TUKURA TOKOI & 2 ORS V AYUBA KURA & 5 ORS out of time.
2. AND for such further order or other orders as the Honourable Court may deem fit to make in the circumstances.

The motion is supported by a 5 paragraph affidavit with 7 (seven) exhibits marked as Exhibits 1 – 7 thus:
EXHIBIT 1 – The decision of the Upper Customary Court Iddah delivered on the 6th day of February, 2018 by Honourable Ayuba Makama Surubu in case No: UCCID/CV/80/2017 between CALEB TUKURA TOKOI & 2 ORS V AYUBA KURA & 5 ORS.
EXHIBIT 2 – Copy of ruling of the trial Upper Customary Court, Idah.
​EXHIBIT 3 – The Copy of the Judgment of the Lower Court allowing the appeal against the order setting aside the ruling of the trial Upper Customary Court Iddah.
EXHIBIT 4 – Copy of report of visit to locus in quo.
EXHIBIT 5 – Judgment in respect of the appeal against the visit to locus in quo.
EXHIBIT 6 – Certified True Copy of proposed Notice of Appeal against the decision of the trial Upper Customary Court Iddah delivered on the 6th of February, 2018.
EXHIBIT 7 – Ruling of the lower Court refusing and dismissing the application for an order for extension of time within which to appeal.

The Appellants/Applicants also filed a written address in support of the application wherein they raised two issues for determination as follows:
1. Whether where an application has been refused by the lower Court, an application for a similar purpose may be made to the appellate Court.
2. Whether the Applicants have good and cogent reasons for failing to appeal within time and substantial and arguable grounds of appeal which prima facie show good cause while the appeal should be heard and application be granted.

​On issue one, the Appellants’/Applicants’ Counsel argued that where an application is refused by the lower Court as in the instant application, an application for a similar purpose may be made to the appellate Court. On this point, counsel cited Order 6 Rule 3 of the Court of Appeal Rules, 2021 and Section 16 of the 1976 Court of Appeal Act and argued this Court should accordingly determine whether an extension of time should be granted to the Appellants/Applicants to appeal against the ruling of the trial Court which was refused by the Customary Court of Appeal. Counsel further submitted that the proper procedure is to file a similar application in compliance with Order 6 and 3 of the Court of Appeal Rules, 2021 and not to appeal against the decision of the lower Court. The Appellants’/Applicants’ Counsel also cited the case of KALSHINGI VS. MASORO & ANOR (2016) LPELR–42995 (CA) in support.

​On issue two, the Appellants/Applicants’ Counsel submitted that the Appellants/Applicants have good and cogent reason for failing to appeal within time and that they have substantial and arguable grounds of appeal which prima facie show good cause while the appeal should be heard and application granted. Counsel then cited the cases of EDE VS. MBA (2011) 12 SCNJ 147 AT; NWORA VS. NWABUEZE (2011) 6 SCNJ 437 AT 462–463; ODOM VS. PDP (2015) 2 SCNJ 58 AT 83 and INEGBEDION VS. SELO–OJEMEN (2013) 1 SCNJ 243 AT 256 in support.

The Respondents on the other hand, filed a written address against the application filed by the Appellants/Applicants and raised a sole issue for determination as follows:
Whether this Honourable Court has the requisite jurisdiction to entertain this motion.

The Respondents’ Counsel argued that this Court has no jurisdiction to hear the Appellants’/Applicants’ application and to order the Customary Court of Appeal Kaduna to overturn its decision refusing to grant the application for extension of time to appeal against the decision of Upper Customary Court Iddah.

​The Respondent’s Counsel also argued that this Court is an appellate Court and not a Court of 1st instance in a matter of this nature. Counsel then referred to Section 240 of the 1999 Constitution as amended and argued that it stated clearly, the jurisdiction of the Court of Appeal to hear and determine appeals from the lower Court in hierarchy to it.

The Respondent’s Counsel also submitted that the intendment of Order 6 Rule 3 of the Court of Appeal Rules is for a litigant who is not satisfied with the decision of the lower Court and is out of time to appeal within the prescribed period provided by this rule to seek leave to appeal out of time to this Court and not otherwise and that any other interpretation of the said provision is null and void and will be an affront to Section 240 of the 1999 Constitution.

​The facts of the case leading up to this appeal is that the Appellants/Applicants herein, filed a suit at the Upper Customary Court, Iddah against the Respondents for a declaration of title to land and to which the Respondents filed a Notice of Preliminary Objection challenging the jurisdiction of the Court to try the matter. The Court below upheld the preliminary objection and the Appellants/Applicants later brought an application for the Court to set aside its decision and after consideration of the said application, the Court set aside its earlier decision and the Respondents being dissatisfied with the decision of the trial Court, appealed to the Customary Court of Appeal wherein the Court allowed the appeal and directed the Upper Customary Court, Iddah and the Customary Court Katari to visit the land in dispute after which, the Upper Customary Court ruled and gave its decision that there were two different lands in contention between the parties and that the case be heard on the merits.

The Respondents yet again appealed to the Customary Court of Appeal which allowed the appeal.

The Appellants/Applicants then brought an application before the Customary Court of Appeal among other reliefs, an order extending the time to enable the Appellants/Applicants file an appeal against the decision of the Upper Customary Court, Iddah, delivered on the 6th day of February, 2018. Upon consideration of the said application, the Customary Court of Appeal held that by bringing the application for extension of time to appeal against the Respondents, when the Appellants/Applicants are fully aware that the Court has already dealt with the ruling of the trial Court for which they sought for an extension of time to appeal, they clearly intended not only to irritate and annoy the Respondents but also to hinder the efficient and effective administration of justice. The Court thus dismissed the application and awarded costs of N10,000.00 only in favour of the Respondents against the Appellants/Applicants.

The Appellants/Applicants now filed the present application.

RESOLUTION
Having considered the processes filed by the parties herein and the facts leading up to the application by the Appellants/Applicants, I shall now move on to the determination of the application filed by the Appellants/Applicants and in doing so I shall adopt the lone issue for determination formulated by the Respondents herein which to my mind is sufficient for the determination of the instant application. The said issue is reproduced hereunder as follows:
Whether this Honorable Court has the requisite jurisdiction to entertain this motion.

​The Appellants/Applicants have cited the provisions of Order 6 Rule 3 of the Court of Appeal Rules, 2021 in arguing that where an application has been refused by the lower Court, an application for a similar purpose may be made to the appellate Court. The said provisions of Order 6 Rule 3 of the Court of Appeal Rules, 2021 provides that:

“Where an application has been refused by the lower Court, an application for a similar purpose may be made to the Court within 15 days after the date of refusal.”
From the above, it is clear that this Court shall entertain applications that has been refused by the lower Court filed within 15 days of the refusal. What comes to mind here is, which Court is been referred to as the lower Court in this context?
By Order 1 Rule 5 of the Court of Appeal Rules, 2021, the lower Court is defined to mean “the Court from which an appeal is brought.”
Flowing from the above definition therefore, it is clear that the lower Court here is the Upper Customary Court Iddah and not the Customary Court of Appeal. This Court has no business with the decision of the Upper Customary Court, from which decision the Appellants/Applicants now by this application is seeking for an extension of time to appeal against. See also Section 240 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides that this Court shall have jurisdiction to hear appeals from:
[a] Federal High Court
[b] High Court of the Federal Capital Territory, Abuja
[c] High Court of a State
[d] Sharia Court of Appeal of the Federal Capital Territory, Abuja
[e] Sharia Court of Appeal of a State
[f] Customary Court of Appeal of Federal Capital Territory, Abuja
[g] Customary Court of Appeal of a State
[h] Court martial or other Tribunal as may be prescribed by an act of the National assembly.
It is clear that these are the Courts in the hierarchy to this Court from which it is mandated to directly hear appeals from and as the Respondents’ Counsel has rightly argued, this Court as it relates to this case, only has the jurisdiction to hear and determine appeals or applications arising from appeals against the decision of the Customary Court of Appeal and not an application for an order of this Court to appeal to the Customary Court of Appeal Kaduna, against a decision of the Upper Customary Court Iddah as seen on the face of the motion thus:
“An Order extending time within which the Applicants herein will appeal to the Customary Court of Appeal Kaduna State against the decision of the Upper Customary Court Iddah delivered on the 6th day of February, 2018 by Honourable Ayuba Makama Surubu in case No: UCCID/CV/80/2017 between CALEB TUKURA TOKOI & 2 ORS V AYUBA KURA & 5 ORS out of time.”
It is clear that the Appellants/Applicants’ prayer is for this Court to allow them to appeal the decision of the Upper Customary Court at the Customary Court of Appeal and I again, agree with the arguments of the Respondents’ Counsel as contained in paragraphs 2.3 and 2.5 that from the clear provision of Section 240 of the Constitution of the Federal Republic of Nigeria, this Court has the jurisdiction to hear and determine appeals, not motions to appeal to the Customary Court of Appeal Kaduna against the decisions of the Upper Customary Court, and that the intendment of Order 6 Rule 3 of the Court of Appeal Rules, 2021 is for a litigant who is not satisfied with the decision given by the Customary Court of Appeal Kaduna and is out of time to appeal within the prescribed period as provided for by this Rule, to seek leave to appeal out of time to this Court when the Customary Court of Appeal refuses the application and not otherwise.
​In this regard, the only option open to the Appellants/Applicants is to appeal the decision of the Customary Court of Appeal which refused the Appellants’/Applicants’ application for leave to appeal against the decision of the Upper Customary Court.
Moving forward on this issue, I have looked at the cases cited by the Appellants/Applicants’ Counsel in support of his arguments on issue one and I find that they do not in any way apply to this instant case. For example, looking at the case of KALSHINGI VS. MASORO & ANOR (2016) LPELR–42995 (CA) cited by the Appellants/Applicants’ Counsel, the matter, subject of that appeal, was first instituted at the Upper Area Court and dissatisfied with the decision of the Upper Area Court, the Appellant filed a Motion on Notice at the High Court seeking an extension of time to seek leave to appeal against the decision of the Upper Area Court. After due consideration, the High Court dismissed the application of the Appellant for failure to show good, sufficient and convincing reasons for his failure to apply for leave to file his notice of appeal within the statutory period. Aggrieved by the dismissal of the application, the Appellant filed an appeal to the Court of Appeal complaining against the refusal of the Court below to grant him an enlargement of time to seek leave to appeal.
​The appeal under discuss in KALSHINGI VS. MASORO (Supra) was struck out and in the opinion of the Court, for having not been initiated in accordance with due process of law and being bedeviled with incompetence thereby robbing the Court of the requisite jurisdiction to adjudicate upon it and on the grounds that the Appellant in disobedience of Order 7 Rule 3 of the Court of Appeal Rulesought to have filed an application similar to the application refused by the High Court which was filed and refused by it rather than file an appeal against the decision of the Court refusing same. This Court also stated in that case that the Appellant employed the wrong procedure by filing an appeal against the decision of the High Court refusing his application for extension of time to enable him apply for leave to appeal against the judgment of the trial Court out of time.
​The above authority cited by the Appellants/Applicants is clearly in contrast with the true position and intent of the law as the Appellant in that case, did the right thing by filing an appeal against the decision of the High Court as the Court of Appeal has no jurisdiction to hear an application for extension of time to file an appeal against the decision of the Upper Area Court. Thus, the decision in that case in relation to the issue in contention herein this application, was given per incuriam.
​In the instant case, upon a consideration of the application for extension of time to appeal the decision of the Upper Area Court, the Customary Court of Appeal which is the appropriate Court in this instance to hear the application, held that by bringing the application for extension of time to appeal against the Respondents when the Appellants/Applicants are fully aware that the Court has already dealt with the ruling of the trial Court for which they sought for an extension of time to appeal, they clearly intended not only to irritate and annoy the Respondents but also to hinder the efficient and effective administration of justice. The proper thing for the Appellants/Applicants to have done was to appeal the decision of the Customary Court of Appeal and not to file the same application refused by the Customary Court of Appeal before this Court. This is so as to afford this Court the opportunity to consider in the appeal the substance as to the appropriateness of the decision of the Customary Court of Appeal, and I so hold.
Flowing from all my findings and the authorities x-rayed above, it is clear that this Court has no jurisdiction to grant the application of the Appellants/Applicants, and I so hold.

At this point, the second issue argued by the Appellants/Applicants will not be relevant for consideration as it has been taken over by the event of this Court’s lack of jurisdiction to entertain the Appellants/Applicants’ application.

In the circumstances, this Court not having the requisite jurisdiction to entertain this motion, hereby dismiss the application of the Appellants/Applicants. I make no further order as to cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft, the ruling delivered by my learned brother Mohammed Baba Idris, JCA.

​I totally agree that this Honourable Court does not have the jurisdiction to entertain the Applicant’s application of 19-03-2021. I also refuse the said application and accordingly dismiss the motion on notice dated 19-03-2021. I abide by the order as to costs. 

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft, the lead ruling of my learned brother, MOHAMMED BABA IDRIS, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

S. A. Audu, Esq. For Appellant(s)

E. E. Ogah, Esq. For Respondent(s)