Mrs Ganiat Yetunde Elias & Anor V. Eco Bank Nigeria Plc (2019)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an application brought by the appellants for the following reliefs:

1. AN ORDER for enlargement of the time within which to seek leave to appeal against the judgment of Hon. Justice J. S. lkyegh; Hon. Justice C. E. lyizoba and Hon. Justice A.O. Obaseki-Adejumo, JJCA, Lagos Division delivered on 28th October, 2015.
2. AN ORDER for leave to appeal against the judgment of Hon. Justice J. S. lkyegh; Hon. Justice C.E. lyizoba and Hon. Justice A.O. Obaseki-Adejurno, JJCA, Lagos Division delivered on 20th October, 2015.
3. AN ORDER for extension of the time within which to file a Notice of Appeal against the judgment of Hon. Justice J. S. lkyegh, Hon. Justice C. E. lyizoba and Hon Justice A.O. Obaseki-Aciejumo, JJCA, Lagos Division delivered on 28th October, 2015.
4. AN ORDER enlarging the time within which the appellants/applicants may seek leave to appeal on grounds of fact and/or mixed law and facts, against the Judgment of Honourable Justice J. S. lkyegh, Hon. Justice C.E. lyizoba and Hon. Justice A. O. Obaseki-Adejumo of the Court of Appeal, Lagos Division delivered on 28th October, 2015.

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AN ORDER granting the appellants/applicants leave to appeal against the Judgment on grounds of facts and/or mixed law and facts.

6. AN ORDER deeming the Notice and Grounds of Appeal already filed as having been duly and properly filed and served.
7. AN ORDER granting leave to the Appellants/applicants to file a written address in support of this application and to deem the attached written address in support of this application as properly filed and served.
8. AND FOR such further or other orders as this honourable Court may deem fit to make in the circumstance.The grounds upon which this application was brought are given as follows;
9. That the judgment of the Court of Appeal against which this appeal is sought to be brought was delivered on 28th October, 2015.
10. Upon receipt of the Certified True Copy of the judgment we discovered various defects necessitating our application of 5th November, 2015 seeking to review and/or vary and/or nullify part of the judgment of Hon. Justice J. S. lkyegh, Hon. Justice C.E. lyizoba and Hon. Justice A. O. Obaseki-Adejumo of the Court of Appeal, Lagos Division delivered on 28th October, 2015 viz:

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(a) The erroneous holding that the appellants’ counsel was not in Court on the 29th September, 2015 to adopt his brief when it was clear from the Certified true Copy (CTC) of the records of proceedings of 29th September, 2015 that Mr. E. Nwonu of counsel, held the brief of Dr. Charles Mekwunye and accordingly announced his appearance before adopting the appellants’ briefs.

(b) Contrary to express provisions of Section 192 (1) of the Evidence Act 2011 and Rule 19 (1) (6) of the Rules of Professional Conduct of Legal Practitioners 2007 and Rules of Natural Justice, and the Constitution, and therefore per incuriam, the lower Court made unfavourable and unjustifiable aspersions as regards the professional conduct of the appellants’ counsel for being silent on an issue without giving him an opportunity to be heard and/or to defend his actions contrary to Section 36 of the 1999 Constitution (as amended) and in breach of our rights to fair hearing/trial as our counsel was not treated equally as the counsel for the respondent.

(c) Certain issues were raised and addressed suo motu by

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the lower Court in breach of the appellants’ right to fair hearing.

3. The appellants’ application dated and filed 5th November, 2015 placed strong reliance on Adeyemi Bero Vs. Lagos State Development Property Corporation & Anor (2012) LPELR 20615 and Barrister Oeriker Jev & Ors Vs. lyortyom & Ors (2015) NWLR (Pt.1483) 484 amongst other Supreme Court decisions binding on the Court of Appeal.
4. That the lower Court eventually ruled on the application on the 8th day of April, 2016 after about five (5) months from the date the said application was filed and after the time allowed for an appeal had passed, and granted some of our prayers thereby reviewing and varying, some part of the judgment of 28th October, 2015
5. That as a result of this pending application of 5th November, 2015 seeking for a variation or nullification of the judgment of 28th October, 2015 appellants could not appeal to the Supreme Court within the 90 days allowed by law.
6. That the appellants/applicants being dissatisfied with the ruling of the Court of Appeal by ignorance of appellants counsel, brought before the Court of Appeal an application seeking the Court’s leave to appeal in

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this matter, leave for extension of time within which to appeal amongst other prayers dated 6th May, 2016.

7. The said application was not heard and decided upon by the Court of Appeal until February 9, 2017, when it was struck off for want of jurisdiction.
8. That the said application was not granted by the lower Court for lack of jurisdiction.
9. That the appellants/applicants in compliance with the Rules of this honourable Court have now brought this application for the determination before this Court as it could not have filed a notice of appeal whilst he had a motion before the Court of Appeal seeking for the review and/or variation and/or nullification of part of the judgment of Hon. Justice J. S. Ikyegh, Hon. Justice C. E. lyizoba and Hon. Justice A.O. Obaseki-Adejumo of the Court of Appeal Lagos Division delivered on 28th October, 2015.
10. The appeal has very good chance of success.
11. That our proposed grounds of appeal raise very serious issues of jurisdiction and constitutional issues of the breach of our fair hearing rights and that part of the decision was given per incuriam contrary to

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Sections 192 (1) of the Evidence Act and Rules 19 (1)-(6) of the Rules of Professional Conduct 2007 as enunciated by the Supreme Court inAbubakar Vs. Chuks (2007) 18 NWLR (Pt. 1056) 386.