CHIEF (MRS) CHRISTY OKOYE & ANOR v. MS. OLUCHI ANYANWOKO & ANOR
(2010)LCN/4034(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of November, 2010
CA/A/91/M/2010
RATIO
RULES OF COURT: PURPOSE OF THE RULES OF THE COURTS; CIRCUMSTANCES WHERE NON-COMPLIANCE WITH THE RULES OF THE COURT WILL BE CURABLE AND INCURABLE
As a reminder, the Rules of Courts are essentially made to ensure orderly, expeditious and smooth determination of matters that come before them on the merit. Speaking generally, the Rules of Court are meant to be obeyed and complied with by the parties, however their principal object and that of the Court is to decide matters on the merit and it is only where non-compliance with the Rules is shown to prejudice the party complaining that the Courts would insist on strict compliance. Non-compliance with the Rules in that context can either be curable or incurable. It is curable if it is intangible, peripheral and not affecting the merit of the matter but it would be incurable if it affects for instance the competence of the matter. See: NNESI v. CHUKWU (1988) 3 NWLR (81) 184; ALSTHOM v. SARAKI (2000) FWLR (28) 2267; CAPRI-BEAN Trading Co. v. NNPC (1992) 7 NWLR (252) 161. PER MOHAMMED LAWAL GARBA, J.C.A.
APPLICATION FOR ENLARGEMENT OF TIME TO APPEAL: CONDITIONS THAT MUST BE SATISFIED BY AN APPLICANT SEEKING FOR EXTENSION OF TIME TO APPEAL
I should start a consideration of the application by saying that it is now common knowledge in law that applications like the present one are not granted as a matter of course; merely because it was asked for by an Applicant As rightly submitted by both learned Counsel, by the provisions of Order 7, Rule 10(2) of the Court of Appeal Rules, 2007,two conditions have to be satisfied by an Applicant before the application made thereunder can properly be granted by the Court. The two (2) conditions which were stated in the Order are:- (a) that the application shall be supported by an affidavit setting out good and substantial reasons for failure to appeal within the prescribed period, and (b) that the proposed grounds of appeal prima facie, show good cause why the appeal should be heard The law is also settled by judicial authorities on the application of the provisions of Order 7 Rule 10(2) (Order 3 Rule 4(2) of Court of Appeal Rules, 1982) that the two or twin conditions must be satisfied together before such an application can be granted. In addition to the cases cited by learned Counsel on the point, see: IBRAHIM v. GBAN (1996) 8 NWLR (467) at 506; NNPC v. ULLEKER BROS. NIG. LTD. (2005) ALL FWLR (272) 358 at 367 – 8; OJUKWU v. ONYEADOR (1991) 7 NWLR (203) 286; UNILAG V. OLANIYAN (NO.1) (1985) 1 NWLR (11) 156. PER MOHAMMED LAWAL GARBA, J.C.A.
EXERCISE OF COURT’S DISCRETION: WHETHER AN APPLICANT WHO SEEKS THE EXERCISE OF THE COURT’S DISCRETION IN HIS FAVOUR HAS A DUTY TO PROVIDE THE EVIDENCE ALL THE RELEVANT MATERIALS REQUIRED IN DECIDING WHETHER TO EXERCISE THE DISCRETION IN HIS FAVOUR OR OTHERWISE.
The law is also trite that it is the duty of an Applicant who seeks the exercise of the Court’s discretion in his favour to provide the evidence which would enable the Court to exercise the discretion one way or the other. Put another way, a duty lies on a party who seeks the exercise of a Court’s discretionary power to make available all the relevant materials required in deciding whether to exercise the discretion in his favour or otherwise. See: FAGBENRO V. OROGUN (1993) 3 NWLR (284) 662 AT 671; HART V. T.S.K.J. 91998) 12 NWLR (578) 372 AT 392; DANGOTE V. C.S.C. PLATEAU STATE (2001) 9 NWLR (171) 132 AT 161 -2. PER MOHAMMED LAWAL GARBA, J.C.A.
MISTAKE OF COUNSEL: WHETHER THE MISTAKE OR INADVERTENCE OF A COUNSEL FOR WHICH THE COURT WILL NOT BE PENALIZED A CLIENT FOR INCLUDE SITUATIONS WHERE THE COUNSEL HAS DISPLAYED PROFESSIONAL TARDINESS AND INCOMPETENCE IN HANDLING OF THE CLIENT’S CASE/S
The attitude in judicial practice has been that ordinarily, genuine mistakes made by Counsel in the course of conducting or handling their clients cases are condoned by the Courts and so no sins are visited either on the learned Counsel or the client. However, due to the frequency and general non-challance in the practice of attributing almost every non compliance with the Rules of court to what has now become known as mistake” or “inadvertence” of Counsel the attitude of routinely saying that the client or party should not be visited with the sins of such mistakes or inadvertence, had to change, over the years, the courts taking into account that a Counsel engaged by a party to provide specialized professional services for a fee, owes the duty to be diligent and to employ hrs professional expertise in the handling of the client’s case/s have taken the view that professional tardiness, negligence and any sign of incompetence on the part of counsel in carrying out instructions by his client do not qualify as excusable genuine mistake or inadvertence of Counsel for which penalty should not be imposed whether or not it affects the client at the end of it all. A client who engages a tardy and not diligent counsel to handle his case should only have himself to blame for his free choice if the case was not conducted in compliance with his instructions and in line with the relevant Laws and Rules of the Courts. In such situations, the client would and should swim or sink with the kind of services provided by the Counsel he engaged to handle his case. This Court in the case of EMMANUEL v. GOMEZ (2009) 7 NWLR (1139) 1 at 13. paragraphs A-B, per Rhodes-Vivour, JCA, (now JSC) had held that:- “The rule that a litigant should not be punished for the mistake or inadvertence of his Counsel does not extend to a situation where Counsel has displayed tardiness and incompetence” See also. MOSHESHE GENERAL MERCHANT LTD v. NIG. STEEL PROD LTD. (1987) 4 SCNJ 11; (1987) 1 ALL NLR, 309 at 318; UNILAG v. AIZGORO (supra) PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF (MRS) CHRISTY OKOYE
2. MARK CHUKWUEMEKA OKOYE. JNR Appellant(s)
AND
1. MS. OLUCHI ANYANWOKO
(alias MRS. OLUCHI OKOYE)
2. PROBATE REGISTRAR. FCT Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivered the Leading Judgment): This application, filed on the 4/3/10 prays the Court for the following Reliefs.-
“1. Extension of time within which to seek leave to appeal against the Ruling of the FCT High Court coram F.A. Ojo, J. in Suit No. FCT/HC/CV/800/2009 delivered on 5.10.09.
2. Leave to appeal against the said Ruling.
3. Extension of time within which to appeal against the said Ruling.
AND for such other orders as the Honourable Court may deem expedient.”
It is supported by an eleven (11) paragraphs initial affidavit to which were annexed copies of the Ruling sought to be appealed against and proposed Notice of Appeal. An affidavit of urgency and two (2) further affidavits were also filed in support of the application.
A counter affidavit sworn to by the 1st Respondent was filed to oppose the facts of the application. All the affidavits in support of the application were deposed to by Charles Jibuaku, a Counsel in the Chambers of the lead Counsel for the Applicants.
Pursuant to an order of the Court, written addresses were filed by the learned Counsel for the parties to the application. The Applicants’ address in support of the application was filed on the 26/4/10 while the address of the 1st Respondent in opposition to the application was filed on 4/5/10. An Applicant’s Reply on points of law was filed on the 18/5/10 to complete the filing of the addresses which were adopted at the hearing of the application on the 14/10/10. Mr. A.B. Anachebe, SAN leading Shereef Mohammed and Charles Jibuaku adopted the Applicants’ addresses and urged us to grant the application as prayed.
Mr. Goody Uche who appeared with Doris Chime and Ebere Ahanonu (Mrs.) for the Respondents adopted the Respondent’s address and urged us to refuse and dismiss the application. Learned Counsel also called on us to strike out the application because no grounds on which it was based were set out on the motion papers as required by Order 7, Rule 1 of the Court of Appeal Rules, 2007. In a brief response, the learned Senior Counsel for the Applicants conceded that the grounds for the reliefs sought were not set out on the motion paper but said that the Court is one of justice which will not allow minor non-compliance with its rules to affect the merit of the Applicants’ case. He cited:
BRAITEWATE v. MARITIMA SPAIN-AFRICAN LINES (2001) 5 NWLR (707) 596 at 598 and IKENNA v. BOSAH (1997) 3 NWLR (494) 439 at 454-5 as supporting the position.
In the written address prepared by Mr. Anachebe, SAN in support of the application, he formulated a lone issue for determination by the Court.
It is thus:-
“Whether the Applicants have established a case to enable this Court to exercise in their favour the grant of extension of time for which they may seek leave to appeal against the Ruling of the Lower Court delivered on the 5/10/2010.”
A similar issue was raised by the learned Counsel for the 1st Respondent in his address. Because the substance in the two issues formulated by the learned Counsel for the parties is the same, and has been fully argued in their respective briefs of argument, I would review and then consider the submissions as presented in the addresses. However before delving into the submissions by learned Counsel on the issues, I should say that Mr. Uche, learned Counsel for the 1st Respondent is right that by the provisions of order 7, Rule I of Court of Appeal Rules, 2007, every application to the court shall state the Rule under which it is brought and the ground or grounds for the relief/s sought.
The present application as conceded by the learned Senior counsel for the Applicants did not state the ground/s for the reliefs sought. The ground/s for relief/s sought in an application are usually the facts upon which it is based and on which the reliefs are premised. In this application, though the ground/s have not been specifically and separately set out on the face of the motion paper, the facts for which the reliefs sought therein were based, have been set out in the affidavit in support of the application. In the circumstance, the Respondent is fully aware of the reasons or grounds for the reliefs sought and is in no doubt about them.
As a reminder, the Rules of Courts are essentially made to ensure orderly, expeditious and smooth determination of matters that come before them on the merit. Speaking generally, the Rules of Court are meant to be obeyed and complied with by the parties, however their principal object and that of the Court is to decide matters on the merit and it is only where non-compliance with the Rules is shown to prejudice the party complaining that the Courts would insist on strict compliance. Non-compliance with the Rules in that con can either be curable or incurable. It is curable if it is intangible, peripheral and not affecting the merit of the matter but it would be incurable if it affects for instance the competence of the matter. See: NNESI v. CHUKWU (1988) 3 NWLR (81) 184; ALSTHOM v. SARAKI (2000) FWLR (28) 2267; CAPRI-BEAN Trading Co. v. NNPC (1992) 7 NWLR (252) 161.
In this application, the omission to set out the grounds for the reliefs is very clearly intangible, peripheral and therefore inconsequential to the merit of the application. Mr. Uche had not given any impression in his objection that the 1st Respondent is likely to be prejudiced by the said noncompliance with a portion of order 7, Rule 1. In the circumstances it is one that the Court can and should overlook and ignore to enable it determine the application on its merit. It is condoned and the prayer to strike out the application on that ground is refused.
Now back to the submissions by the learned counsel on the sole issue raised in the application.
For the Applicants, the submissions were that their Counsel Mr. Anachebe, SAN had assigned a Counsel in his chambers to appeal against the ruling of the High court and that the said counsel fell ill. That when the Counsel resumed work, he i nadvertently forgot to file the appeal and only remembered after the prescribed period had lapsed.
After setting out the provisions of Order 7 Rule 10(2), it was submitted by Mr. Anachebe SAN who settled the Applicants’ address, that the grant of the application was discretionary and so the Court is not bound but to be guided by previous relevant decisions in the exercise of the discretion. The cases of: ALMAROOF v. AWOYEMI (1999) 10 NWLR 441; UNILAG v. AIGORO (1985) 1 NWLR (1) 143, (1985) 11 SC. 152 and ODUSOTE v. ODUSOTE (1971) 1 ALL NLR, 219 were cited for the submissions. Furthermore, the Court is guided by facts deposed to by the Applicant in order to see whether a case has been made out for the exercise of the discretion in Applicants’ favour, relying on WILLIAMS v. HOPE RISING VOLUNTARY SOCIETY (1982) 1 ALL NLR 1 at 6-7.
It was then submitted that the Applicants have in the affidavit in support of the application established that the delay in filing the application was occasioned by the illness and inadvertence of the Counsel assigned to appeal and on the authority of the cases of: ALAGBE v. ABIMBOLA (1978) 2 SC. 39 and AHMADU v. SALAWU (1974) 1 ALL NLR (2) 318 inter alia, the court was urged not to visit the sin of Counsel on the Applicants. According to the learned senior counsel, the proposed notice of appeal contains grounds of appeal which show good cause why the appeal should be heard since the unrepresented estate of a deceased is under the threat of dissipation by the 1st Respondent. He cited the statements of Karibi-Whyte and Oputa, JJSC in the case of YESUFU v. CO-OPERATIVE BANK LTD. (1989) 3 NWLR (110) 483 at 504 and 508-9 respectively and said prescribed period and that the notice of appeal discloses prima facie arguable grounds to warrant the grant of the application.
On the counter affidavit filed by the 1st Respondent it was contended by him that it did not in any way controvert the Applicants’ affidavit and it contravened provisions of the Evidence Act. It was argued that paragraph 3 of the 1st Respondent ‘s counter affidavit was not sufficient to amount to proper denial of paragraphs 3,4,7,8,9,10 and 11 of the Applicants’ affidavit and reliance was placed on: EYO v. INYANG (2001) 8 NWLR (715) 304 at 329-30 and BALONWU v. OBI (2007) 5 NWLR (1028) 488 at 537.
-Learned Senior Counsel further argued that paragraphs 4 and 5 of the counter affidavit run foul of Sections 88 and 89 of the Evidence Act (which were set out in the address) because the facts therein were obtained from a person other than the deponent and no time, place and date when the information was given were stated therein. Also that the paragraphs contained arguments contrary to Section 87 of the Evidence Act. The cases of: F.M.G.N. v. SANI (2) (1989) 4 NWLR 624 at 638: NIPPS v. OSIGWE (2008) 6 NWLR (1983) 239 at 251-2; BAMAIYI v. STATE (2001) 8 NWLR (715) 270 at 289 among others were cited on the objections to paragraphs 4 and 5 of the counter affidavit and it was submitted that if they were excised from the 1st Respondent’s counter affidavit, the remaining paragraphs are not sufficient to controvert the case of the Applicants. The statement by Oputa, JSC in MILITARY GOVERNMENT OF LAGOS STATE v. OJUKWU (1986) 1 NWLR (18) 621 at 641 was cited and we were finally urged to strike out the said paragraphs of the 1st Respondent’s counter affidavit and hold that Applicants have made out a case for the grant of their application.
For the 1st Respondent, it was submitted that the Applicants’ affidavit particularly paragraphs 2-4 have failed to disclose good and substantial reasons for their failure to appeal within the prescribed period.
It was argued that from the said paragraphs the Court is left to speculate as to the following:-
1. On what date the Applicants instructed their Counsel to appeal against the ruling in question,
2. On what date Anachebe SAN assigned or instructed Charles Jibuaku to filed the appeal,
3. On what date Charles Jibuaku took ill.
4. On what date did Charles Jibuaku take some time off work,
5. On what date Charles Jibuaku resumed work?
According to the learned Counsel for the 1st Respondent, the missing facts ought to have been supplied by the Applicants on the authority of LAWAL v. UMON BANK PLC. (2008) 12 NWLR (1102) 704 at 706.
Also that by the provisions of Sections 135 and 136 of the Evidence Act, the Applicants owe the duty to prove their assertions which they have failed to discharge by not disclosing good and substantial reasons for not appealing within the prescribed period as provided in Order 7 Rule 10(2).
The cases of MOKWE v. EZEUKO (2000) 14 NWLR (686) 143 at 151 and EDET v. CHIEF OF AIR STAFF (1994) 2 NWLR (324) 41 were cited on the submission
In addition, it was contended that paragraphs 2-4 of the Applicants’ affidavit offend Section 87 of the Evidence Act for leaving questions of facts and reference was made to ABANA v. OBI (2004) 9 NWLR (877) 1 at 6.
It was also submitted that the Applicants came to the court with the idea that the application would be granted as a matter of course simply because they hinged their delay on mistake of counsel which was not borne out by the affidavit. That the Applicants are bound to show the reasons why the application for leave to appeal and the one for extension of time were not filed within time and earlier respectively. Learned Counsel said there is no reason why the application was not filed from the 20/10/09 when the prescribed time expired and 4/3/10 when it was eventually filed. Reference was made to WILLIAMS v. HOPE RISING VOLUNTARY SOCIETY (supra) and it was submitted that the Applicants themselves have been indolent, negligent and careless in the delay in filing their appeal since they did not check to see if their instructions were carried out by Counsel. LAWAL v. UNION BANK PLC. (supra) at 718 and the Latin maxim “Vigilantibus et non dormientibus jura subvennuint’ were referred to by learned counsel. He also said that the two (2) conditions in order 7 Rule 10(2) must co-exist and satisfied by an Applicant before the application can be granted’
relying on among other cases: BOWAJE v. ADEDIWURA (1976) 6 SC, 143;
ISIAKU v. OGUNDIMU (2006) 13 NWLR (997) 401 at 411-12 and ATTORNEY-GENERAL, LAGOS STATE v. AKINOLE (2007) ALL FWLR (396) 720 at 734.
It was his further argument that since the Applicants have failed to show good and substantial reasons for the delay, the Court should not even consider the proposed grounds of appeal and relied on JESU UNION KINGDOM v. OGISI (2010) 4 NWLR (1183) 91 at 102 in urging us to dismiss the application.
I have seen the Reply on points of law filed by the Applicants as stated earlier in this ruling and would point out straight away that it does not contain any reply to any new point raised in the 1st Respondent’s address. It should be noted that the present application was brought under the provisions of order 7 Rule 10(2) of the court of Appeal Rules, 2007 which by established position of judicial authorities on the exercise of the discretion thereunder must be satisfied to justify the grant of such application.
All that the 1st Respondent’s address did was to say that the Applicants have not met or satisfied any of the two (2) recognized conditions set out in the provisions for the grant of this application. That is the resume of the submissions which I have reviewed above. No new point outside that was argued or raised in the 1st Respondent’s address which called for a Reply from the Applicants. The purported Reply on points of law merely contain statements not relevant to the application or further arguments of the application, none of which is permitted in law in the name of a Reply. For that reason, the said Applicant’s Reply on points of law would be discountenanced in the determination of the application.
As seen above, each learned Counsel had challenged some paragraphs of the other’s affidavit as offending some paragraphs of the Evidence Act. Learned Senior counsel had said that paragraphs 4 and 5 of the 1st Respondent’s counter affidavit offend Sections 87,88 and 89 of the Evidence Act. The 1st Respondent’s paragraphs 4 and 5 of the counter affidavit are as follows –
“4. That I am informed by my Counsel, Gordy Uche Esq. informs me and I verily believe him that the proposed notice of appeal does not contain any cogent, recondite, substantial or arguable grounds worth testing on appeal before this Court.
5. That my said Counsel, Gordy Uche Esq. informs me and I verily believe him that there are no good and substantial reasons for the failure of the Plaintiffs/Applicants to appeal within the prescribed period.”
On their face, the deponent who is the 1st Respondent in the application, says she was given the information therein by her Counsel; Goody Uche which she believed. There can be no serious argument on the fact that these paragraphs have substantially complied with the provisions of Sections 88 and 89 of the Evidence Act which in brief require a deponent to set forth the facts and circumstances of his belief and reasonable particulars of his informant if the information was received from another person. The affidavit was sworn to on the 14/4/10 and in paragraph 2 thereof, the 1st Respondent deposed that “I have just been given a copy of the motion filed by the Plaintiff/Applicants, dated and filed on 4th day of March 2010”. This clearly shows that the information in paragraphs 4 and 5 which flow directly from the motion filed on 4/3/10 was given to the deponent on the date the affidavit was sworn. If the information was received from Counsel, and no particular place was mentioned at which it was given, the only reasonable presumption to be drawn is that the information was given at the chambers of the Counsel.
The time of giving the information becomes rather inconsequential when all other requirements of the Sections are met by the depositions in the affidavit.
Paragraphs 4 and 5 of the counter affidavit by the 1st Respondent do not in the circumstances offend the provisions of Sections 88 and 89 of the Evidence Act, but have substantially complied with them.
The learned Senior counsel had also challenged the said paragraphs as containing arguments and conclusion, while I would readily agree with him that paragraph 5 of the counter affidavit contains legal argument and conclusion, the same cannot be said of paragraph 4 which is a direct response to the Applicants’ averment in paragraph 8 of the initial affidavit which is in the following terms:-
“8. That the Notice of Appeal bears substantial grounds of appeal, geared towards preserving the unrepresented estate of the deceased, subject of this litigation.”
As can clearly be seen, Applicants in their paragraph 8 say the proposed grounds of appeal are substantial, the 1st Respondent in her paragraph 4 says the grounds are not substantial or arguable Both appear to be conclusions but which are based on the depositions preceding them’ Since they are not arguments, they are not unusual and so tolerable by a liberal interpretation of Section 87 of the Evidence Act.
In the result, for offending Section 87 of the Evidence Act.
paragraph 5 of the 1st Respondent’s counter affidavit is struck out.
The learned Counsel for the 1st Respondent had also argued that the Applicants, paragraphs 2-4 of the initial affidavit offend Section 87 at paragraph 4.9 of his address. All I need say here is that the said paragraphs do not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion, but facts within the personal knowledge of the deponent of what happened between Applicants and Counsel and to Counsel. I have no hesitation in saying that the paragraphs do not in any way or manner offend Section 87 of the Evidence Act. Whether or not they contain all the material details of the facts deposed therein is quite another thing entirely.
I should start a consideration of the application by saying that it is now common knowledge in law that applications like the present one are not granted as a matter of course; merely because it was asked for by an Applicant As rightly submitted by both learned Counsel, by the provisions of Order 7, Rule 10(2) of the Court of Appeal Rules, 2007,two conditions have to be satisfied by an Applicant before the application made thereunder can properly be granted by the Court. The two (2) conditions which were stated in the Order are:-
(a) that the application shall be supported by an affidavit setting out good and substantial reasons for failure to appeal within the prescribed period, and
(b) that the proposed grounds of appeal prima facie, show good cause why the appeal should be heard The law is also settled by judicial authorities on the application of the provisions of Order 7 Rule 10(2) (Order 3 Rule 4(2) of Court of Appeal Rules, 1982) that the two or twin conditions must be satisfied together before such an application can be granted.
In addition to the cases cited by learned Counsel on the point, see: IBRAHIM v. GBAN (1996) 8 NWLR (467) at 506; NNPC v. ULLEKER BROS. NIG. LTD. (2005) ALL FWLR (272) 358 at 367 – 8; OJUKWU v. ONYEADOR (1991) 7 NWLR (203) 286; UNILAG V. OLANIYAN (NO.1) (1985) 1 NWLR (11) 156.
The law is also trite that it is the duty of an Applicant who seeks the exercise of the Court’s discretion in his favour to provide the evidence which would enable the Court to exercise the discretion one way or the other. Put another way, a duty lies on a party who seeks the exercise of a Court’s discretionary power to make available all the relevant materials required in deciding whether to exercise the discretion in his favour or otherwise. See: FAGBENRO V. OROGUN (1993) 3 NWLR (284) 662 AT 671; HART V. T.S.K.J. 91998) 12 NWLR (578) 372 AT 392; DANGOTE V. C.S.C. PLATEAU STATE (2001) 9 NWLR (171) 132 AT 161 -2.
Because applications to the court such as the present one are usually determined on the affidavit evidence filed by the parties thereto, all the facts which constitute the relevant materials for the decision by the court, must demonstrate and show that the requirements of the law have been fully met for the grant or otherwise of the application. In the first instance, the depositions of the Applicant who owes the initial burden to satisfy the Court that he is entitled to the exercise of its discretion in his favour, must clearly and unequivocally contain facts which go to meet the requirements of the Rules of Court.
As was stated earlier, the fulcrum of the Applicants, case here is that the Counsel assigned to file the appeal against the ruling in question here, fell sick and after he recovered and resumed work, he forgot to do so until after the expiration of the prescribed period This in brief is what paragraphs 3, 4 and 5 of the initial affidavit and of the affidavit of urgency filed on 5/3/10 are saying.
The attitude in judicial practice has been that ordinarily, genuine mistakes made by Counsel in the course of conducting or handling their clients cases are condoned by the Courts and so no sins are visited either on the learned Counsel or the client. However, due to the frequency and general non-challance in the practice of attributing almost every non compliance with the Rules of court to what has now become known as mistake” or “inadvertence” of Counsel the attitude of routinely saying that the client or party should not be visited with the sins of such mistakes or inadvertence, had to change, over the years, the courts taking into account that a Counsel engaged by a party to provide specialized professional services for a fee, owes the duty to be diligent and to employ hrs professional expertise in the handling of the client’s case/s have taken the view that professional tardiness, negligence and any sign of incompetence on the part of counsel in carrying out instructions by his client do not qualify as excusable genuine mistake or inadvertence of Counsel for which penalty should not be imposed whether or not it affects the client at the end of it all. A client who engages a tardy and not diligent counsel to handle his case should only have himself to blame for his free choice if the case was not conducted in compliance with his instructions and in line with the relevant Laws and Rules of the Courts. In such situations, the client would and should swim or sink with the kind of services provided by the Counsel he engaged to handle his case. This Court in the case of EMMANUEL v. GOMEZ (2009) 7 NWLR (1139) 1 at 13. paragraphs A-B, per Rhodes-Vivour, JCA, (now JSC) had held that:-
“The rule that a litigant should not be punished for the mistake or inadvertence of his Counsel does not extend to a situation where Counsel has displayed tardiness and incompetence”
See also. MOSHESHE GENERAL MERCHANT LTD v. NIG. STEEL PROD LTD. (1987) 4 SCNJ 11; (1987) 1 ALL NLR, 309 at 318; UNILAG v. AIZGORO (supra).
Now, are the facts deposed to in paragraphs 24 of the Applicants’ affidavit in support of the application such that are excusable mistakes or inadvertence of Counsel as to amount to good and substantial reasons why the Applicants’ appeal was not filed within the prescribed period?
The averment in paragraph 3 of the initial affidavit says that the deponent, who was the counsel instructed to file the Applicants’ appeal by Anachebe. SAN, suddenly fell ill after the instructions and had to take some time off work. Paragraph 4 says after his recovery and resumption of work, he forgot to file the appeal due or owing to pressure of work in the office.
The ruling of the High Court in question was delivered it may be recalled, on the 5/l0l0g while the present application was filed on the 4/3/10. Being an interlocutory decision of the High Court, the Applicants were required by the law, to apply for leave to appeal against it within fourteen (14) days from the date of delivery’ In paragraphs 3 and 4 of the Applicants’ affidavit Counsel had stated reasons why the application could not be filed before the date it was eventually filed. Being sick or taking ill suddenly is a fact over which Counsel had no control and for which he or the Applicants can be Penalized.
However the blanket averment that he was instructed to file the appeal and that he fell ill suddenly lack the necessary details of the dates on which the Applicants gave the instructions to appeal, when counsel in turn was instructed to file the appeal, when thereafter he suddenly took ill and when he eventually recovered and resumed work. In this regard, the further and better affidavit filed on the 18/5/10, two (2) weeks after the 1st Respondent address was filed and served on the Applicants’ counsel which was to provide such essential details was not properly filed. This is because it was filed after the close of the time for filing affidavits, which formed the facts upon the application was premised, by the order and filing of written addresses by the learned counsel for the parties, such an affidavit without the leave of the court providing the opportunity for both parties to further file them after exchange of addresses is an incompetent process which cannot properly be used in the determination of the application.
It would amount to an undue advantage on the part of the Applicants to use the 1st Respondent’s address to repair their application so to say, by providing essential materials in an affidavit to which the 1st Respondent does not have the opportunity to respond after the arties have closed their addresses.
The Applicants were required to set out all relevant facts in support of the Applicants in their initial affidavit or even the fuller and better affidavits filed on the 5/3/10 before the order for the filing of written addresses. That would have provided a level playing field for the Respondents but 1st Respondent in particular, to react to it if they decided to do so. For that reason, I would discountenance the said further and better affidavit filed on 18/5/10 by the Applicants.
As I have stated before now, very essential details required to satisfy the Court that the delay in appealing against the ruling of the High Court was purely from the inadvertence of Counsel are missing from the affidavits in support of the application. These essential details that are not set out in the affidavits include what steps if any were taken by the Applicants themselves to ensure that the instructions to their Counsel to appeal were carried out Promptly.
But assuming that the further and better affidavit was a competent one which can properly be used in this application, it would still fall short of showing good and substantial reasons for the delay in filing the appeal.
This is because, the deponent had not stated that he was the only counsel in the chambers of Anachebe SAN at all the time relevant to the present application. Knowing that there is a time limit prescribed by law within which the appeal was required to be filed, ordinary professional prudence and diligence should have been employed to assign another counsel to file the appeal when the deponent suddenly took ill and had to take some time off work after he was instructed to file the appeal. To make the situation worse, the deponent in paragraph 4 had said that even after he recovered and resumed work he forgot to file the appeal because of or “owing to pressure of work in the office.” The impression given in that averment is that instructions from some clients are given more priority than others by the chambers and counsel or that the chambers take more instructions from clients than it can diligently handle or deal with. Neither of these can be seriously said to be either a mistake or inadvertence of counsel that is capable of amounting to good and substantial reason for the delay in filing the appeal.
In the very recent case of the MINISTER. P.M.R. v. EXPO SHIPPING LINE (2010) 12 NWLR (1208) 261, the Supreme Court at Page 297, had held that:-
“The reason that Counsel was otherwise engaged in other cases and could not file an appeal within time cannot be categorized as inadvertence or mistake of Counsel on which a Court can exercise its discretion in favour of granting an application for extension of time to appeal.”
See also IKENTA BEST v. ATTORNEY-GENERAL, RIVERS STATE (2008) 6 NWLR (1084) 612.
In my view all the averments in the Applicants, affidavits show are tardiness, non-challance and want of diligence on the part of the deponent as well as the Applicants as reasons for the delay in filing the appeal.
If find as a consequence, no good and substantial reason for the delay in filing the appeal within the time prescribed by law The 1st condition required under Order 7, Rule 10(2) has in the result not been met or satisfied by the Applicants.
Though by the position of the judicial authorities cited on the point the twin conditions or requirements set out in Order 7 Rule 10(2) are to be satisfied together before the application can be granted’ I would consider the proposed grounds in spite of the finding that the Applicants cannot show good and substantial reasons for failure to appeal within the prescribed period.
The two proposed grounds of the appeal contained in Exhibit ‘B’ attached to the Applicants’ initial affidavit involve questions which are intricately interwoven with the issues that are to be determined in the substantive matter between the Applicants and the 1st Respondent before the High Court.
Whether or not there was any danger to the property in dispute and the need for the appointment of a receiver cannot be determined on affidavit evidence independent of the claims in the pleadings of the parties in the case. In the circumstances, the proposed grounds are not arguable independently at the interlocutory stage of the substantive matter. These grounds for that reason do not in my firm view show good cause why the interlocutory appeal should be heard pending or before the determination of the substantive matter before the High Court. In the circumstances, the grounds do not satisfy the second requirement set out in Order 7, Rule 10(2).
In the final result, the Applicants’ affidavit and proposed grounds of appeal have not satisfied any one of the twin requirements set out in Order 7, Rule 10(2) of the Court of Appeal Rules, 2007. The application therefore is lacking in merit and it fails. It is dismissed with an order that parties are to bear their respective costs in the application.
PAUL ADAMU GALINJE, J.C.A. I read in draft the ruling just delivered by my learned brother, Garba JCA, and I agree with the reasoning contained therein and the conclusion arrived thereat.
For the reasons in the lead ruling which I adopt as mine, I too dismiss the application and endorse the consequential order on cost.
REGINA OBIAGELI NWODO, J.C.A. I have been privileged to read in advance the draft Ruling of my Learned brother Garba, J.C.A just delivered, I agree with the reasoning therein and the conclusion arrived thereat, that this application is devoid of merit and I also dismiss the application.
Appearances
A.B. Anachebe, SAN with Shereef Mohammed and Charles JibuakuFor Appellant
AND
Goody Uche, with Doris Chime and Ebere Ahanonu Mrs)For Respondent
