ZENITH BANK PLC v. CAROLINE DENNIS DURUGBOR
(2015)LCN/7919(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of June, 2015
CA/L/116M/2014
RATIO
APPEAL: APPEAL AS OF RIGHT; WHEN CAN A LITIGANT WHO IS NOT SATISFIED WITH THE DECISION OF THE NATIONAL INDUSTRIAL COURT APPEAL AS OF RIGHT
No doubt, an Appellant can only appeal against such decision to this Court as of right where the decision being appealed against bothers on questions of fundamental rights as contained in Chapter IV of the Constitution. Meanwhile, in other instances, appeal from the National Industrial Court to the Court of Appeal shall be with leave to such extent and in relation to the instances that may be prescribed by an Act of the National Assembly. The position of the law on this issue seems to have been settled by this court. Recently, in LAGOS SHERATON HOTEL AND TOWERS v HOTEL AND PERSONAL SERVICES SENIOR STAFF ASSOCIATION (2014) LPELR, this Court PER OSEJI JCA held: “As presently constituted therefore, the law is that a litigant who is not satisfied with the decision of the National Industrial Court can only appeal as of right where such decision relates to questions of fundamental rights as contained in chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or in criminal causes as they relates to matter upon which the National Industrial Court has jurisdiction. As to other causes or matters not so specified appeal shall only lie from the decisions of the National Industrial Court to this Court as may be prescribed by an Act of the National Assembly and such appeal shall be with leave of this court only.
There is presently no such Act of the National Assembly and until there is an amendment to that effect or a subsequent amendment of Section 234 of the Constitution, the National Industrial Court remains the final and ultimate court in all causes or matters upon which it has jurisdiction relating to questions of fundamental rights connected with chapter IV of the Constitution or in criminal causes.”
Similar decision had earlier been reached in COCA-COLA NIG. LTD & 2 ORS v AKINSANYA [2013] 18 NWLR (PT.1386) 255; (2013) 1 ACLR 28 at 58 – 59, where this court, PER LOKULO-SODIPE JCA stated:
“However, the Constitution that made the National Industrial Court a superior court of records broke from its tradition of conferring appellate jurisdiction on the Court of Appeal over the decisions of the National Industrial Court as it has done in respect of other superior courts created by it, by stating in Section 5(3) of the Third Alteration Act that an appeal shall only be from other decisions (except on questions of fundamental rights) of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly.
As the position stands now there is no enactment of the National Assembly conferring a right from any decision of the National Industrial Court outside the fundament rights relating to matters within its civil jurisdiction to the Court of Appeal. While the lacuna may help to reduce the workload of the Court of Appeal, it is doubtful whether leaving the National Industrial Court as the final or Supreme Court in such civil matter of mega jurisdiction would augur well for aggrieved litigants especially as anything to do with employment affects the livelihood of members of the workforce and invariably their dependents”.
While I agree with the sentiments expressed by my learned brother in relation to the ultimate jurisdiction of the National Industrial Court in labour and employment matters, the position of the law as interpreted cannot be faulted. Until there is an enactment prescribing the instances of appeal to this court from the National Industrial Court or an amendment of Section 243 of the Constitution, the National Industrial Court remains the final court in such matters upon which the court has jurisdiction except in decisions relating to questions of fundamental rights expressed under Chapter IV of the Constitution.
Learned Counsel for the Applicant had contended that the Learned Trial Judge went ahead to make an order of non-suit when it was not empowered to do so. They also contended that the learned trial judge ought not to order parties to amend their pleadings after becoming functus officio of the proceedings. He further contended that a calm reading of the grounds of appeal would show that they clearly challenged the jurisdiction of the National Industrial Court to make orders contained in the judgment of the lower court, thereby questioning the fairness of the trial at the lower court and raising a fundamental right issue of fair hearing, which this court can entertain pursuant to the right of appeal vested in the Appellants by virtue of Section 243(2) of the 1999 Constitution (as amended). per. YARGATA BYENCHIT NIMPAR, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE APPLICATION OF THE PRINCIPLE OF FAIR HEARING
From the foregoing, I am unable to see where the issue of fair hearing has arisen from the grounds of appeal. I must state here that fair hearing is neither a magic wand nor a cut-dry principle which parties can, in the abstract, always seek to rely on at their will and convenience. Only the fact of the case can influence and determine the application of the principle. See MAGAJI v NIGERIAN ARMY [2008] 8 NWLR (Pt.1089) 338; (2008) LPELR-1814 (SC) at 40 paras D-G; OKIKE v LPDC (2005) SCNJ 596; MDPDT v OKONKWO [2001] 16 NWLR (Pt.792) 172. per. YARGATA BYENCHIT NIMPAR, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE MEANING OF FAIR HEARING
In the case of INEC v. MUSA (2003) 3 NWLR (PT.806) 72, the Apex Court held as follows: “Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles.” per. YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
ZENITH BANK PLC – Appellant(s)
AND
CAROLINE DENNIS DURUGBOR – Respondent(s)
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.
Respondent’s counsel submitted that none of the grounds contained in the proposed Notice of Appeal bother on the issue of violation of fundamental human right and the position of this honourable court is clear on this issue. He referred to Section 243(2) and 243(3) of the Constitution to submit that this court is not clothed with the jurisdictional competence to entertain the grounds of appeal as contained in the Notice of Appeal. Counsel submitted that it is completely pointless to grant the Applicant’s application for leave to appeal on the basis that none of the grounds of appeal bothers on violation of fundamental human right as enshrined under Chapter IV of the 1999 Constitution (as amended). He cited MADUKOLU v NKEMDILIM (1962) 1 SCNLR 341 to submit that jurisdiction is fundamental in any proceedings and that there is a feature in this case which prevents the court from exercising jurisdiction because the appeal does not fall within the set of appeals that can be entertained by this court. Counsel further submitted that the Applicant has not placed before this court any Act prescribed by the National Assembly which states clearly that this court has the right to sit on Appeal aside from appeals that bothers on violation of fundamental human right. He referred to LAGOS SHERATON HOTEL AND TOWERS v HOTEL AND PERSONAL SERVICES SENIOR STAFF ASSOCIATION [2014] 14 NWLR (PT 1426] 45 at 51, paras D – G; MACFOY v. UNITED CO. LTD. (1961) 3 ALL ER 1172 para 1; COCA-COLA (NIG) LTD. v. AKINSANYA (supra).
As evident from the Applicant’s motion paper, it is beyond doubt that the relevant provision of the statutes and Rules of Court dealing with application of this sort include Section 243(2) and (3) of the 1999 Constitution of Nigeria (as amended), Section 9(1) and (2) of the National Industrial Court Act 2006, Section 24(1), (2) and (4) of the Court of Appeal Act as well as Order 7 of the Court of Appeal Rules, 2011.
Section 243(2) and (3) of the Constitution provides:
(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly.
Copious provision is contained in Section 9(1) and (2) of the National Industrial Court Act 2006.
It is apparent from the combined reading of the provision Section 243(2) and (3) of the Constitution that the instance(s) upon which an Appellant may exercise his right of appeal in respect of a decision of the National Industrial Court is well spelt out. No doubt, an Appellant can only appeal against such decision to this Court as of right where the decision being appealed against bothers on questions of fundamental rights as contained in Chapter IV of the Constitution. Meanwhile, in other instances, appeal from the National Industrial Court to the Court of Appeal shall be with leave to such extent and in relation to the instances that may be prescribed by an Act of the National Assembly.
The position of the law on this issue seems to have been settled by this court. Recently, in LAGOS SHERATON HOTEL AND TOWERS v HOTEL AND PERSONAL SERVICES SENIOR STAFF ASSOCIATION (2014) LPELR, this Court PER OSEJI JCA held:
“As presently constituted therefore, the law is that a litigant who is not satisfied with the decision of the National Industrial Court can only appeal as of right where such decision relates to questions of fundamental rights as contained in chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or in criminal causes as they relates to matter upon which the National Industrial Court has jurisdiction. As to other causes or matters not so specified appeal shall only lie from the decisions of the National Industrial Court to this Court as may be prescribed by an Act of the National Assembly and such appeal shall be with leave of this court only.
There is presently no such Act of the National Assembly and until there is an amendment to that effect or a subsequent amendment of Section 234 of the Constitution, the National Industrial Court remains the final and ultimate court in all causes or matters upon which it has jurisdiction relating to questions of fundamental rights connected with chapter IV of the Constitution or in criminal causes.”
Similar decision had earlier been reached in COCA-COLA NIG. LTD & 2 ORS v AKINSANYA [2013] 18 NWLR (PT.1386) 255; (2013) 1 ACLR 28 at 58 – 59, where this court, PER LOKULO-SODIPE JCA stated:
“However, the Constitution that made the National Industrial Court a superior court of records broke from its tradition of conferring appellate jurisdiction on the Court of Appeal over the decisions of the National Industrial Court as it has done in respect of other superior courts created by it, by stating in Section 5(3) of the Third Alteration Act that an appeal shall only be from other decisions (except on questions of fundamental rights) of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly.
As the position stands now there is no enactment of the National Assembly conferring a right from any decision of the National Industrial Court outside the fundament rights relating to matters within its civil jurisdiction to the Court of Appeal. While the lacuna may help to reduce the workload of the Court of Appeal, it is doubtful whether leaving the National Industrial Court as the final or Supreme Court in such civil matter of mega jurisdiction would augur well for aggrieved litigants especially as anything to do with employment affects the livelihood of members of the workforce and invariably their dependents”.
While I agree with the sentiments expressed by my learned brother in relation to the ultimate jurisdiction of the National Industrial Court in labour and employment matters, the position of the law as interpreted cannot be faulted. Until there is an enactment prescribing the instances of appeal to this court from the National Industrial Court or an amendment of Section 243 of the Constitution, the National Industrial Court remains the final court in such matters upon which the court has jurisdiction except in decisions relating to questions of fundamental rights expressed under Chapter IV of the Constitution.
Learned Counsel for the Applicant had contended that the Learned Trial Judge went ahead to make an order of non-suit when it was not empowered to do so. They also contended that the learned trial judge ought not to order parties to amend their pleadings after becoming functus officio of the proceedings. He further contended that a calm reading of the grounds of appeal would show that they clearly challenged the jurisdiction of the National Industrial Court to make orders contained in the judgment of the lower court, thereby questioning the fairness of the trial at the lower court and raising a fundamental right issue of fair hearing, which this court can entertain pursuant to the right of appeal vested in the Appellants by virtue of Section 243(2) of the 1999 Constitution (as amended).
I think it will be appropriate to reproduce the grounds of appeal (without their particulars) in order to effectively resolve this issue. They are:
GROUND ONE
The Learned Trial Judge of the National Industrial Court, Lagos erred in law and acted without jurisdiction in entering a non-suit on the claim of the Claimant/Respondent at the National Industrial Court Lagos after arriving at the inevitable conclusion that the Claimant/Respondent failed woefully to prove her claim.
GROUND TWO
The Learned Trial Judge of the National Industrial Court, Lagos erred in law and acted without jurisdiction in making an order of non-suit when there is no provision either in the National Industrial Court Act, 2006 or the National Industrial Court (Civil Procedure) Rules 2007 enabling the Court to make such order.
GROUND THREE
The Learned Trial Judge of the National Industrial Court Lagos erred in law when he ordered pleadings to be amended after non-suiting the Claimant when he had no jurisdiction to make such order.
From the foregoing, I am unable to see where the issue of fair hearing has arisen from the grounds of appeal. I must state here that fair hearing is neither a magic wand nor a cut-dry principle which parties can, in the abstract, always seek to rely on at their will and convenience. Only the fact of the case can influence and determine the application of the principle. See MAGAJI v NIGERIAN ARMY [2008] 8 NWLR (Pt.1089) 338; (2008) LPELR-1814 (SC) at 40 paras D-G; OKIKE v LPDC (2005) SCNJ 596; MDPDT v OKONKWO [2001] 16 NWLR (Pt.792) 172. In the instant case, it is clear that the complaint of the Applicant is in relation to the non-suiting of the Respondent at trial and the Applicant has unsuccessfully attempted to put this forward as a breach of fair hearing in order to circumvent the provisions of Section 243(2) and (3) of the Constitution. Before non-suiting, the trial court called both parties to address it on the propriety or otherwise of non-suiting the Respondent. This indicates fairness and I see no infringement of the principles of fair hearing.
In the case of INEC v. MUSA (2003) 3 NWLR (PT.806) 72, the Apex Court held as follows:
“Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles.”
Granted, the Appellants in this case have a right to appeal decisions from the National Industrial Court, however, by virtue of Section 243(2) and (3) of the 1999 Constitution (as amended), this court is divested of powers to entertain the appeal of the Appellant as the ground(s) border on jurisdiction and not questions of fundamental rights as contained in Chapter IV of the 1999 Constitution (as amended).
In light of the above, I find that this court lacks jurisdiction to grant the Applicant the prayers as prayed in relation to the appeal against the judgment of HON. JUSTICE B.A. ADEJUMO of the National Industrial Court Lagos delivered on 22/03/2013. The application is refused.
I make no order as to costs.
AMINA A. AUGIE, J.C.A.: I read in draft the lead Ruling just delivered by my learned brother, Nimpar, JCA, and I agree with him that this Application lacks merit. This Issue has been resolved by this Court in a number of authorities, including Coca-Cola Nig. Ltd. & 2 Ors. V. Mrs. Akinsanya (2013) 18 NWLR (Pt. 1386) 255, to the effect that an Appellant can only appeal against a decision of the National Industrial Court as of right where it touches on questions of fundamental rights, and until there is an enactment of the National Assembly prescribing any instances of appeals there-from or an amendment of Section 243 of the Constitution, the said Court remains the final Court in such matters upon which it has jurisdiction.
The Appellant brought this appeal under the guise of lack of fair hearing, but waving that flag will not open the doors of this Court to it – see Magaji V. Nigerian Army (2008) 8 NWLR (Pt.1089) 338 SC, where Tobi, JSC, aptly stated-
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision, which it cannot carry or shoulder. – – Fair hearing is not a cut-and-dry provision, which parties can, in the abstract, always apply to their comfort and convenience. It is a principle, which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case”.
Looking at facts of this case vis-a-vis the Appellant’s cry of lack of fair hearing, there is nothing to justify its complaint on that score. It is for this and the other reasons well-adumbrated in the lead Ruling that I also refuse this Application.
TIJJANI ABUBAKAR, J.C.A.: My learned brother Nimpar, JCA granted me the privilege to read in draft the lead ruling just rendered.
I am in complete agreement with the reasoning and conclusion.
An applicant seeking for leave to appeal against decision of the National Industrial Court must establish seeming infraction on his fundamental rights, it is only upon so doing that the jurisdiction of this Court will become effectively activated.
I agree entirely that this court lack jurisdiction. The application is therefore refused. I also make no order as to cost.
Appearances
S. Ogwemoh (SAN)
V. Olisa
K. SadikyFor Appellant
AND
A.A. Adeniyi
Jude MbisikeFor Respondent
