Zenith Bank PLC V. Caroline Dennis Durugbor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Lead Ruling)

This is a ruling in respect of Appellants/Applicants’ motion dated and filed on 11/2/2014 praying this court for the following reliefs:

1. AN ORDER of this Honourable Court extending the time within which the Applicant/Appellant will seek leave to appeal against the judgment of HON. JUSTICE B. A. ADEJUMO of the National Industrial Court, Lagos delivered on 22nd March, 2013 in Suit No. NIC/LA/144/2011 – CAROLINE DENNIS DURUGBOR V. ZENITH BANK PLC.
2. AN ORDER of this Honourable Court granting leave to the Applicant/Appellant to appeal against the judgment of HON. JUSTICE B. A. ADEJUMO of the National Industrial Court, Lagos delivered on 22nd March, 2013 in Suit No. NIC/LA/144/2011 – CAROLINE DENNIS DURUGBOR V. ZENITH BANK PLC.
3. AN ORDER of this Honourable Court extending the time within which the Applicant/Appellant will appeal against the judgment of HON. JUSTICE B. A. ADEJUMO of the National Industrial Court, Lagos delivered on 22nd March, 2013 in Suit No. NIC/LA/144/2011 – CAROLINE DENNIS DURUGBOR v. ZENITH BANK PLC.

In support of the application, the Applicant filed a 22 paragraph Affidavit deposed by one Victor N. Olisa, a Legal Practitioner in the law firm of Marine Partners, Solicitor to the Applicant/Appellant on 11/06/2014 with 4 Exhibits. Applicant’s Counsel also filed a written address in support of the application dated 22/04/2015 as well as a reply on point of law dated 05/05/2015.

Opposing the application, the Respondent filed a Counter Affidavit to the Applicant’s application. The Counter Affidavit is dated and filed 26/02/2014 deposed to by one Bilkis Bello, a Legal Practitioner in the law office of AA Chamber, Solicitors to the Respondent with one exhibit as well as a written address dated 29/4/2015.

In its written address in support of the application, the Applicant formulated a sole issue for determination thus:

“Whether the grounds and affidavit in support of the application of the applicant contain sufficient materials to enable this Honourable Court exercise its discretion in favour of the Applicant in granting the present application?”

On the other hand, the Respondent formulated three (3) issues for determination thus:

1. Whether considering the fact that none of the grounds in the proposed Notice of Appeal bothers on violation of Fundamental Human Right as contained in Chapter IV of the 1999 Constitution does this Honourable Court possess the jurisdictional competence to grant the instant application?
2. Whether this court will visit the sin of counsel on the litigant, by foreclosing the right of the respondent to file a fresh suit for her claims?
3. Whether the lower court was right when it relied fully on Section 254(D) of the 1999 Constitution as amended while non-suiting the Respondent’s case at the lower court?

I have gone through the issues formulated by the parties and it is apparent that two issues, to wit, issues two and three formulated by the Respondent and the arguments thereon extends beyond the ambit of the application to the issues that are best raised and determined in the substantive appeal. To this extent, the sole issue formulated for determination by the Appellant is more appropriate for the determination of the application before this court.

Arguing his motion, Applicant’s Counsel submitted that in the exercise of its discretion as to whether to grant an application before it, the court would normally consider the overall interest of justice; an appeal being an exercise of a constitutional right of a party. He reiterated the fact that the Applicant is seeking for the trinity prayers in relation to the judgment of the National Industrial Court delivered on 22nd March, 2013 and while placing reliance on Section 24(1), (2) and (4) of the Court of Appeal Act, Counsel submits that this court may extend the time within which to appeal.

He also cited Section 243(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) on the instance(s) upon which an appeal will lie to this court from a decision of the National Industrial Court. Learned Counsel submitted that by the nature of the application of the Applicant, what the Honourable Court would look at is whether the affidavit in support of the application discloses good and substantial reasons why the Applicant was unable to appeal within the period of time allowed by law.

Counsel further submitted that in the instant case, the Applicant has provided reasons in paragraphs 13, 14, 17, 18, 19 and 20 of the Affidavit in support, which are attributable to the mistake of counsel, and should not be visited on the litigants. He further submitted that as this case would show, the Applicant had actually appealed within time against the decision of the trial court following the decision of this court in the case of LOCAL GOVT. SERVICE COMMISSION, EKITI STATE v. MR. M.K. BAMISAYE (2013) (Unreported) but had to withdraw the application when counsel’s attention was drawn to the subsequent decision of this court in COCA-COLA (NIG.) LTD v AKINSANYA [2013] 18 NWLR (PT 1386) 225.

He submitted that the Applicant should not be stopped from exercising its constitutional right of appeal merely on this ground. He cited CBN v. AHMED (2011) NWLR (PT.724) 369 at 409 – 410.

Counsel submitted that the grounds of appeal raised substantial questions of law bordering on the jurisdiction of the National Industrial Court to make the orders it made in the course of trial. He referred to paragraphs 6, 7, 8, 11 and 16 of the affidavit in support of the application and the case of UKWU v BUNGE [1997] 8 NWLR (PT 518) 527 at 52 on the argument that jurisdiction is always a good and substantial reason why an appeal should be heard.

While referring to the grounds of appeal in the proposed notice of appeal of the Applicant, counsel submitted that a calm reading of the grounds of appeal would show that they clearly challenged the jurisdiction of the National Industrial Court to make the orders contained in the judgment against which the proposed appeal is being made. He further submitted that a challenge of jurisdiction attacks the fairness of the hearing undertaken by the court and therefore raises the issue of fair hearing, which is a fundamental right under Chapter IV of the 1999 Constitution over which an appeal shall lie as of right under Section 243(2) of the Constitution (as amended). He cited COCA-COLA (NIG.) LTD v AKINSANYA (SUPRA) to submit that this is a clear case where this court ought to exercise their discretion in granting the application of the Applicant.