Maikano Kura & Ors V. Moses Yero & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.