JINVO VORO v. NYARA VOTOH
(2016)LCN/8152(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of February, 2016
CA/YL/76/2014
RATIO
PRACTICE AND PROCEDURE: WHETHER THE LITIGANT OUGHT TO BE PUNISHED FOR THE MISTAKE OF HIS COUNSEL
The fact that a case of inadvertence or mistake was established, the same not having been contradicted by counsel on the opposite side in his counter-affidavit is sufficient reason and good enough to sway the mind of the Court to grant the application was responsible for the blunder. The litigant (as in this case on appeal) ought not to be punished for the mistake of his counsel. As held by the apex Court in Dangote Gen. . Production Ltd Vs. Hascon Ass. (Nig.) Ltd (2013) 16 NWLR (Pt. 1379) 60, 90: “I concur with Lord Bowen where he said in his earlier view supra that the Court in deciding right of parties are to do justice and not punish them for mistakes they make. The failure to abide by the rules is clearly a mistake of counsel and which should not be visited on the client as it will only occasion injustice. The failure to have come within time ought to be treated as mere irregularity.” This Court spoke in similar fashion when in ACB V. Elosuiba (1991) 3 NWLR (Pt. 178 133, 134 it held that: “The Court is always disposed to exercising its discretion in favour of any litigant if is satisfied that the infracture is that of his counsel” The case of Magna Maritime V. Oteju (2005) SCNJ 100, 103 cited by counsel for the respondent in his brief does not support his stand rather it reinforces the case of the Appellant that the litigant whose conduct has not been impeached should not be punished for the mistake of counsel but his case should be given sympathetic consideration by the Courts. To this end, the decision in Lasaco Association Ltd v. Deserve Savings &Loans Ltd (2012) 2 NWLR (Pt. 1283) 95 can be distinguished from the instant case on the facts. The conduct and behavior of the Appellant unlike in Lasaco’s case (supra) was never brought to question. per. SAIDU TANKO HUSSAINI, J.C.A.
COURT: COURT’S DISCRETION; HOW THE COURT MUST EXERCISE ITS DISCRETION
Court’s exercise of discretionary powers must be even handed in the consideration of issues before it. Court must be prepared to look at issues from both sides. per. SAIDU TANKO HUSSAINI, J.C.A.
APPEAL: THE PURPOSE PARTICULARS WHICH ACCOMPANY A GIVEN GROUND
Particulars which accompany a given Ground of Appeal whether of error or misdirection are meant to amplify in what manner the lower Court erred or misdirected itself. It is meant to highlight the complaint against the Judgment on appeal and so cannot be independent of that Ground of Appeal. It must be related to the Ground otherwise the Ground is incompetent. See FHA Vs. Kalejaiye (2010) 19 NWLR (Pt. 1226) 147 (SC); Ososong Vs. Ajayi (2004) 5 SCNJ 82; Aderonmu Vs. Olowu (2001) 2 SCNJ 180; Diamond Bank Ltd V. Partnership Investment. Coy. Ltd (2009) 18 NWLR (Pt. 1172) 67 (SC). per. SAIDU TANKO HUSSAINI, J.C.A.
PRACTICE AND PROCEDURE: WHETHER THE COURT WOULD VISIT THE BLUNDERS, MISTAKE AND INADVERTENCE OF COUNSEL ON THE LITIGANT OR PENALIZE A LITIGANT FOR THE MISTAKE OF THE REGISTRY
It is trite that Courts would not visit the blunders, mistake and inadvertence of counsel on the litigant or penalize a litigant for the mistake of the Registry. See Oyegun V Nzeribe (2010) LPELR-2870(SC); Bakare V. Oduneye (2010) LPELR-3844(CA); & Ahmadu V Salawu (1974) 1 ALL NLR (Pt, 2) 318. Indeed, in Isiaka V Ogundimu (2006) LPELR-1552(SC) 1 at 19-20, Oguntade, JSC, exhorted Courts in these terms: “It is to be borne in mind that a Court would not visit the mistake or negligence of counsel on the client. See Bowaje V Adediwura (1976) 6 SC 143 at 147 where this Court per Bello, JSC (as he then was) observed: “This Court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel.” per. SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
JINVO VORO – Appellant(s)
AND
NYARA VOTOH – Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling delivered at the High Court of Justice, Jalingo Taraba State on the 7th November, 2013 in Suit No. TRSJ/11/2011.
The appellant was the defendant in the action instituted by the Respondent as Plaintiff at the High Court vide the Writ of Summons taken out and filed on the 2nd February, 2011.
By the endorsement on the Writ Summons, the Plaintiff now Respondent claimed among other reliefs, a declaration, that he is entitled to the statutory right of Occupancy over the land measuring 13.76 hectares lying and situate at the Southern side of the UMCH Secretariat, Mile Six, Lassandi Ward, Jalingo described as being bounded in the North and East by the land of Christopher Majo, on the West by Jauro Mallum and at the Southern end by the land of Victor Tako hence a further claim for injunction restraining the defendant (Appellant), his servant, workmen and agents from interfering with the ownership and possession of the land by the plaintiff.
Before the commencement of trial, parties on both sides filed and exchanged pleadings pursuant to
the extant rules i.e. the Taraba State High Court Civil Procedure Rules 1997. Respondent thereafter opened his case with the evidence of Christopher Majo on the 17/6/2011 as Pw1 and concluded his evidence on the 23/2/2012 having also submitted himself to cross examination taken that same day.
Meanwhile at the sitting of Court on the 7th December, 2011 the lower or trial Court by order made directed on the plaintiff to take steps to regularize his papers as it affect other witnesses which the plaintiff intended to call at the hearing. He was to do so on or before the next date of adjournment i.e. 23/1/2012. Defendant was to do likewise upon plaintiffs papers being served on him in line with the new High Court (Civil Procedure) Rules of 2011 of Taraba State.
Pursuant to that Order of Court, the Plaintiff/Respondent, by the Motion dated the 20th January, 2012 and filed on the 23/1/2012 prayed for an order among others, extending the time within which to file and serve his list of witnesses and witnesses Statement on Oath. That application was granted as evident by the enrolled Order of Court (page 53 of record) issued on the 3rd May, 2012
at the High Court hence hearing resumed with the evidence of Pw2, Pw3 and Pw4. See pages 74 ? 82 of the record of Appeal.
At the close of respondent?s (Plaintiff?s) case his counsel by the application made viva voce requested for a date to enable him sum up his case. The trial Court granted the application without hesitation amidst opposition from Counsel for the Appellant (defendant) and adjourned the case to the 18/7/2013 for that purpose.
See pages 82 ? 84 of the printed record.
Notwithstanding the order of Court made as above, the Appellant, on the 8/7/2013 put in a written application to Court by way of Motion on Notice together with an affidavit and other relevant papers wherein he prayed for the reliefs as follows:
1. AN ORDER of this Honourable Court granting the defendant/applicant leave for enlargement of time within which to file list of witnesses, and documents to be relied on at the trial out of time.
2. AN ORDER of this Honourable Court deeming as properly filed and served the defendant/appellant list of witnesses, statement on oath of witnesses and documents to be relied on are hereby attached and
marked as EXHIBIT A, B1 to B4, C1 to C8 respectively.
3. And for such order or further order as this Honourable Court may deem it fit to make in the circumstance of this application.
See pages 85 ? 111 of record of Appeal. The Counter-affidavit in opposition to this application is at pages 160 ? 162 of the record. The application was argued on the 24th October, 2013. In the Ruling delivered on the 7th November, 2013, the trial Court, in dismissing the application held at page 174 of the record thus:
?As deposed to in the respondent?s counter affidavit a period of Fifty two weeks have lapsed since the application was to regularize his possession. This application at the close of the Respondent?s case is certainly an attempt to set up a trap in the litigation process against the Court and the respondent which should not be aided by the exercise of the Court?s discretion in favour of the Applicant. Equity does not aid the indolent and lazy litigation like the Applicant
?
Against this ruling and Order the defendant appealed to this Court vide the Notice of Appeal dated and filed on the 4th July,
2014 pursuant to leave granted by this Court on 1/7/2014. The Notice contain 3 (three) Grounds of Appeal. See record of Appeal at pages 117-182.
Two records of Appeal have been transmitted to this Court. The first being the main record, was compiled and transmitted on 2nd September, 2014 and same deemed as properly compiled and transmitted on the 29/6/2015. The second or supplementary record of Proceedings, transmitted on 26/6/2015 was on the 29/6/2015 deemed as properly compiled, transmitted and served.
Counsel thereafter filed and exchanged their respective briefs of argument as follows:
(i). Appellants brief of argument was filed on the 27/10/2014
(ii) Respondents brief of argument in opposition filed on 5/10/2015 was deemed properly filed on the 20/10/2015
(iii) Respondents brief of argument in response to the Appellants Amended Reply to Respondents Preliminary Objection and Appellants Reply brief of argument was filed on the 2nd November, 2015.
Issues formulated for determination and submissions made thereto are all contained in the respective briefs of argument filed by
counsel.
The appeal came up on 9/11/2015 for hearing. Mr. J. A. Oguche, learned Counsel for the respondent had raised a Preliminary Objection in his Brief of argument as set out at pages 4 ? 6, Paragraph 3. 00 to 3.17 of his brief and adopted same. The points of objection relate to the competency of the Notice of Appeal, in that:
(i) Appellant?s Ground Two together with issue 1 distilled therefrom, are incompetent as the Particulars of Error of the said Ground two do not arise and/or flow from that Ground of Appeal.
(ii) Appellant?s Issue 2 is incompetent as same does not have nexus with and/ or arise from Ground three of the Grounds of Appeal which it is purportedly distilled from.
Relative to Ground 1 of the objection it is argued by counsel that the particulars of Error which accompany Ground 2 of the Grounds of Appeal were foreign to it as they do not flow from the Grounds or have any nexus with the said Ground 2 of the Grounds of Appeal. He cited and relied on Ushe Vs. Edet (2010) All FWLR (Pt. 5547) 728, 731. Counsel urged us to strike out the said Ground 2, the same being incompetent. For the same reason, learned
Counsel further urged us to strike out Ground 1, the said Ground having been argued together with Ground 2 vide issue 1 formulated by Counsel for the Appellant, the said Ground 1 was equally incompetent. He cited the decision in Tiamiyu V. Olaogun (2008) 17 NWLR (Pt. 1115) 66, 81 ratio 17.
Learned Respondents Counsel urged us to uphold Ground 1 of the Respondents Objection and discountenance Grounds 1 and 2 of the Grounds of Appeal, issues derived therefrom together with all submissions or argument canvassed on the point.
Counsel for the appellant in his amended reply brief of argument at page 2 has argued stating per contra, that the particulars itemized under Ground 2 were meant to amplify in what manner the lower Court erred in law hence the lower Court in refusing his application to lead evidence, the appellant was denied hearing to which he is entitled as of right.
Learned Counsel argued that the particulars which accompany Ground 2 of the Grounds of Appeal indeed flow from that Ground and he urged us to so hold as same is competent.
Particulars which accompany a given Ground of Appeal whether of error or misdirection are
meant to amplify in what manner the lower Court erred or misdirected itself. It is meant to highlight the complaint against the Judgment on appeal and so cannot be independent of that Ground of Appeal. It must be related to the Ground otherwise the Ground is incompetent. See FHA Vs. Kalejaiye (2010) 19 NWLR (Pt. 1226) 147 (SC); Ososong Vs. Ajayi (2004) 5 SCNJ 82; Aderonmu Vs. Olowu (2001) 2 SCNJ 180; Diamond Bank Ltd V. Partnership Investment. Coy. Ltd (2009) 18 NWLR (Pt. 1172) 67 (SC).
Ground 2 of the Grounds of Appeal is a complaint against the finding of the trial Court refusing the application made to it on account of the appellant?s failure to advance good or substantial reasons on why his application should be granted.
What the appellant was required to state by way of particulars to his Ground of Appeal are such facts as would shed light to the complaint contained in the Ground such as that some good and substantial reasons had been advanced and that notwithstanding, the trial Court still refused to grant his application. I have gone through those facts listed and itemized under the particulars of error to Ground 2 (two) of the Grounds of
Appeal. My understanding of the facts itemized under the particulars which accompany the Ground in question is that the appellant was not accorded hearing or fair hearing at the trial so far as the trial Court refused to grant him extension of time to file relevant papers as would enable him call evidence in his defence at the trial. I can observe however that the complaint covered by Ground 2 of the Grounds of Appeal is not about lack of hearing or fair hearing, rather Ground 2 of the Grounds of Appeal is a complaint that the trial Court erred in law in holding that the appellant had not advanced good or substantial reasons stating why his application seeking an enlargement of time should be allowed. Facts listed under the particulars of error should reflect that complaint, which is not the case here. In other words facts listed and itemized as (a) – (d) under the particulars of error to the Ground of Appeal do not flow from that Ground of Appeal neither are those facts or particulars consistent with the complaint covered by Ground 2 of the Grounds of Appeal. To this end therefore the said Ground 2 is incompetent on the authority of: Hambe V. Hueze (2001) SC
26. Aderonmi V. Olowu (2001) 2 SCNJ 180; UsheVs. Edet (supra).
Where the complaint in a ground of Appeal is of error in law or misdirection it must state in what manner the trial Court erred or misdirected itself by way of highlighting those aspects of error or misdirection in the particulars that accompany that Ground of Appeal except of course where those particulars are already incorporated into the body of the Grounds of Appeal. See: Military Administrator Benue State Vs. Ulegede (2001) 17 NWLR (Pt. 741) 194; Stephen Ind. Ltd. V. BCCI (Nig.) Ltd (1991) 11 NWLR (Pt. 625) 29.
Respondents Objection essentially is against the competence of Ground 2 of the Grounds of Appeal. There is no complaint made against Ground 1 of the Grounds of Appeal except the lone issue distilled and argued from the two Grounds i.e. Grounds 1 and 2 of the Grounds of Appeal. Ground 1 like Ground 2 is thus afflicted by the same malady by virtue of the 2 Grounds being argued together under one common issue, hence both Grounds 1 and 2 are incompetent and same ought to be struck out along with Issue 1 derived therefrom together with all the submissions made thereto, being
equally incompetent are struck out. In Tiamiyu V. Olaogun (2008) 17 NWLR (Pt. 1115) 66, 81 this Court held:
Where a Ground of Appeal is incompetent and it is argued with another ground from which one issue is raised and argued together, the seemingly competent Ground is infested and also rendered incompetent and ought to be struck out. I make that order accordingly, relative to Grounds 1 and 2 of the Grounds of Appeal and issue No. 1 detailed from those grounds.
?
I will now consider the Second Head of Objection. Arguments advanced relative to Ground 2 of the objection are contained at pages 5-6 of the Brief of argument of the respondent. Briefly put the submission is that Issue No. 2 distilled from Ground 3 of the Grounds of Appeal does not have any nexus whatsoever with Ground 3 from which it was distilled. It is argued that whereas the complaint covered by Ground 3 is that the trial Judge misdirected himself by holding that no sufficient reason was disclosed to warrant the application being granted, issue No. 2 on the other hand is a complaint that the trial Judge did not rightly exercise his discretion in refusing the said
application. Counsels further argument is that issue No. 2 not having derived from Ground 3, the said issue is incompetent. He relied in the decision in Idris V. Abubakar (2011) All FWLR (Pt. 537) 733, 738 to urge us to strike out issue No. 2.
In his reply brief of argument at page 3 counsel argued that issue No. 2 formulated by them in the brief of argument was predicated on Ground 3 of the Notice of Appeal but that the trial Court in exercise of its discretionary powers wrongly dismissed the application on the finding that no reason or sufficient reason being disclosed by the appellant to warrant his application being granted.
The question thus is whether Issue No. 2 really flow from Ground 3 of the Grounds of Appeal? That is the question.
A holistic look at Ground 3 and Issue 2 is imperative. The complaint laid under Ground 3 of the Grounds of Appeal is reflected at page 180 of the record of Appeal and same is as follows:-
Ground Three
The learned trial Judge misdirected himself on the facts when he held that no sufficient reasons have been disclosed for the grant of the application and thereby accessioned a
miscarriage of Justice.
That is the complaint as couched by the Appellant in his Ground 3 of the Grounds.
The trial Judge is alleged to have misdirected himself on the facts. A misdirection occurs when the issue of fact in the case of the Plaintiff or defence or the law applicable to the issues raised are not fairly submitted for the consideration of the Jury. Where however the Judge sits without a Jury, he misdirects himself if he misconceives the issue or summarizes the evidence inadequately or incorrectly or make a mistake of law. See Chidiac Vs. Laguda (1964) NWLR 123, 125; Bakere v. Akpena (1986) NWLR (Pt. 33) 1.
In the Particulars of Misdirection which accompany Ground 3, the appellant gave the highlights of what he considers are the misdirection complained of in terms of the facts listed, and itemized as (a)-(g) in the particulars of misdirection as follows:-
“(a) The affidavit in support of Motion gave reasons why the witness Statements were not filed within time.
(b) The affidavit in support of the Motion stated that it was the applicant’s counsel who had been briefed by the applicant that had the
duty to prove and file the witness Statements who neglected to file same even after they had been prepared.
(c) The applicant is not a lawyer and has no knowledge of the legal requirement of front loading.
(d) The sins, default or neglect of the Applicants counsel was visited on the applicant
(e) The depositions in the affidavit in support of the Motion were not controverted or contradicted.
(f) The application was to enable the applicant lead evidence in support of pleaded facts.
(g) The respondent was not taken by surprise as issues were already joined by the parties.”
The Motion on Notice and the affidavit in support over which the trial Court gave a ruling and dismissed same is at pages 85-88 of the record of Appeal. Those facts particularly facts set out at paragraph 4 (a) (b) (c) (d) (e) (f) (g) are apt and these were all placed before the trial Court as at the date the application was argued and dismissed by the Court. Respondent’s counter-affidavit to that Motion or application is at pages 60-62 of the record of appeal.
In the ruling made by Court which I earlier referred to, the
trial Court dismissed the application brought to it in the exercise of its discretionary powers. But the question whether in the exercise of those discretionary powers the Court was influenced by materials placed before it in dismissing the application is something else, and this is what in my view issue No. 2 in the Appellants brief of argument seeks to explore. I am of the opinion therefore that a correlation does exist between Ground 3 of the Grounds of Appeal and Issue No. 2 formulated therefrom hence I overrule counsel over his submissions to this 2nd Head of Objection and I dismiss same. The 1st Head of Objection however succeeds hence Grounds 1 and 2 of the Notice and Grounds of Appeal are struck out along with Issue No. 1 and the arguments canvassed thereto.
In the light of the position I have taken as above there is now just one (1) valid Issue presented in this appeal for determination and that is Issue No. 2. At the risk of repetition the issue once again is:
Whether the trial Court rightly exercised his discretion in refusing the application to file witness? Statements on Oath, when the reasons adduced for the procedural default was
that of counsel? ? relates to ground three of the Notice of Appeal.
Learned counsel on both sides have addressed this question in their respective briefs of argument. For the Appellant it was argued at pages 7 ? 11 of the brief, that the refusal by the trial Court to grant the Appellant?s application for enlargement of time as would enable him properly defend the suit initiated by the Respondent, was a wrong exercise of Judicial discretion hence the ruling of Court delivered on 7/11/2013 be set aside and the appellant ordered to file all necessary papers and defend the Suit/Claim.
The Respondent in his brief of argument at pages 21 ? 24, debunked those submissions stating that the lower Court was right in dismissing the Motion on
Notice, (i.e. the application filed by the Appellant at the trial High Court) for their failure to take prompt steps necessary to regularize their papers at the earliest opportunity. I have considered those submissions of counsel on both sides.
?
The Ruling of Court which gave rise to this Appeal is at pages 170 ? 174 of the record. The process giving rise to the Ruling was initiated by
the Motion on Notice dated the 5th July, 2013 and filed on the 8th July, 2013 along with a supporting affidavit. See pages 85 ? 111 of the record. I have earlier alluded to this application in this exercise but for the sake of emphasis the Motion sought among other orders an order granting the defendant, the appellant herein an enlargement of time as would enable him file Appellant?s list of witnesses, Statement on Oath and documents to be relied upon at the trial in defence of the claim. The Appellant in his affidavit in support of that application deposed to facts particularly facts stated at paragraph 4 as reasons which necessitated the application being made. I refer to facts deposed to at paragraph 4 (a) (b) (c) (d) (e) (f) (g) of the supporting affidavit.
In opposing the application Respondent filed a counter-affidavit of 8 Paragraphs as reflected at pages 160 ? 162 of the record of Appeal. Facts deposed to in the counter-affidavit at paragraphs 4, 5, (a) ? (j) are germane for our consideration.
The trial Court as earlier indicated dismissed the application. The Court giving its reason stated that it has taken the
appellant that long (spanning over period of 52 weeks) to put in their application for extension of time to regularize his papers and that it was now too late to consider his case especially that the Plaintiff (Respondent) had closed his case. That was the verdict coming from the trial Court.
From a consideration of facts deposed to in the supporting affidavit and the counter-affidavit, it is apparent from the printed record that the Plaintiff/Respondent instituted his action at the trial Court vide the Writ of Summons dated the 28/1/2011 and filed on the 2/2/2011. His statement of claim dated 25/2/2011 was filed on 28/2/2011. Defendant now appellant upon service on him of the Statement of claim filed his own defence on the 11/3/2011. All Court processes referred to above were filed under the old rules of Court and this explains why Witnesses? Statement on Oath and other relevant processes were not front ? loaded along with the Writ of Summons for the Plaintiff or the Statement of defence of the defendant.
?
The new High Court Rules of Taraba State, 2011 came into effect on the 1st July, 2011, hence the trial Court at the sitting of the
17th December, 2011 directed both the Plaintiff and Defendant to take steps to regularize their papers in respect of other witnesses but whose evidence were not yet taken ? refer to page 23-24 of the record of Appeal. The Plaintiff (respondent) as record reveal complied with the order by filing necessary papers to regularize his position. Defendant had not perfected his position at the time he filed his application. He stated thus at paragraph 4 (a) ? (f) in his affidavit deposed to on his behalf the support of his application at pages 87 ? 88 of the record thus
?(a) That this matter was filed sometime in the year 2011, before he coming into effect of the new High Court (Civil Procedure) Rule 2011.
(b) That the parties were required to comply with the new Rule by filing the written deposition of witnesses.
(c) That the Respondent was granted leave for extension to file his deposition of witnesses and same was filed on the 27/7/2013.
(d) That before coming into effect of the new rule the parties had already filed their pleading in this case.
(e) That he thought he has filed the written deposition of witnesses and
the documents sought to be relied on by the defendant in this case but on the 20/6/2013, when he was going through his file he discovered that the written deposition of witnesses and the documents to be relied on by the defendant though prepared and ready but has be filed in that he forget hence this application
(f) That the time allow for filing the written deposition has since deposed.
(g) That the list of witnesses, written deposition of witnesses and documents to be relied on are hereby attached and marked as EXHIBIT A, B1 to B4 and C1 to C8 respectively?
It follows therefore that appellant?s application seeking for enlargement of time was informed by the introduction into the new rules the requirement of front ? loading of all vital documents as dictated by those rules. To this end, counsel on behalf of the appellant prepared all relevant papers to enable him put in his defence as dictated by the new rules. But out of inadvertence, the papers were not filed. Learned appellant?s Counsel had the mistaken belief that the papers prepared by him had been filed. That when he discovered that the papers had not been filed,
he now approached the trial Court to seek elongation of time to enable him file those papers and adduce evidence in defence of the case. He attributed the delay to file those papers to his inadvertence and urged the trial Court to over look same and grant his request. That is the sum total of the case put up by the Appellant at the Court below relative to the application by him seeking for an enlargement of time to perfect his position.
As I have indicated before, the Respondent at the Court below filed a counter ?affidavit to oppose the application but one fact which the Respondent appeared not to have controverted is the reason which the Appellant had advanced in his affidavit evidence for the delay in front loading relevant materials needed for hearing of defence case at the trial.
?
The application before the trial Court for enlargement of time was made or brought pursuant to Order 9 Rules 5 among others, of the rules of Taraba State High Court (Civil Procedure) Rules, 2011. Same provides as follows:
?The Court May, on such terms as it thinks just, by order extend or abridge the period within which a person is required or
authorized by these provisions, or by any Judgment, order or direction to do any act in any proceedings:
Provided that any party who defaults in performing an act within the time authorized by Rules, shall pay to the Court an additional fee of N200. 00 for each day of such, default at the time of filing his application for extension of time.
The trial Court at the sitting of the 7th December, 2011 at page 23-24 of the record of Appeal ordered as follows:
Court: Adjourned to the 23/1/2012 for continuation of cross-examination of P.w1. The Plaintiff shall take steps to regularize his papers in respect of other witnesses on or before the next adjourned date. Upon service of the Plaintiffs papers on the defendant, the defendant shall also file and serve his papers in accordance with the 2011 High Court rules.”
So, it follows that the application by the appellant seeking for enlargement of time at the trial Court was predicated on the Rules of Court and the Order made at the Court below. The High Court Law of Taraba State under Section 59 thereof permit the High Court where it deems it fit to enlarge any period of
time presented by the law. So the power vested in the High Court in this regard is discretionary but the Court in the exercise of that power must act judicially and judiciously in accordance with settled principles. See Okorodudu V. Okorodudu (1977) 3 SC 29, 36-37. Where there is failure on the part of Court to exercise such discretion judicially and judiciously the appellate Court could intervene especially where in the exercise, injustice is meted out to either of the parties resulting from improper or wrong use of discretion. See; State (Eng.) Vs. Sabalco (Nig.) Ltd. (2000) 6 NWLR (Pt. 659) 121, 127. In the exercise of its discretion to hear application before it, the Court should be guided by consideration of doing justice between the parties and to ensure that dispute between parties are decided on the merit. see: Nalsa & Team Association V. NNPC (1991) 22 NSCC (Pt. 11) 660, 676-677.
The claim before the trial High Court was a claim for declaration of title to a disputed piece of land in respect of which parties on both sides had filed and exchanged pleadings i. e statement of claim for the Plaintiff and statement of
defence for defendant. Thus the stage had been set for hearing before the new rules came on board, which require the front loading of certain papers or processes, a precondition which parties must fulfill before hearing can commence relative to their case. In such situation as in this case on appeal, a Court confronted with an application seeking as it were, the indulgence of Court to file papers as would enable the party fulfill those conditions and present his case should not be lightly refused. It is clear to me that the Court below did not give a thought to the explanations given in the affidavit in support of Motion. It is clear that the inadvertence of counsel led to the delay of the Appellant in filing the application seeking for extension of time to file relevant or vital documents. Those explanations as they appear on record mean nothing to the Court below. The Court was bent on shutting the door of justice against the Appellant. The fact that a case of inadvertence or mistake was established, the same not having been contradicted by counsel on the opposite side in his counter-affidavit is sufficient reason and good enough to sway the mind of the
Court to grant the application was responsible for the blunder. The litigant (as in this case on appeal) ought not to be punished for the mistake of his counsel. As held by the apex Court in Dangote Gen. . Production Ltd Vs. Hascon Ass. (Nig.) Ltd (2013) 16 NWLR (Pt. 1379) 60, 90:
“I concur with Lord Bowen where he said in his earlier view supra that the Court in deciding right of parties are to do justice and not punish them for mistakes they make. The failure to abide by the rules is clearly a mistake of counsel and which should not be visited on the client as it will only occasion injustice. The failure to have come within time ought to be treated as mere irregularity.”
This Court spoke in similar fashion when in ACB V. Elosuiba (1991) 3 NWLR (Pt. 178 133, 134 it held that:
“The Court is always disposed to exercising its discretion in favour of any litigant if is satisfied that the infracture is that of his counsel”
?
The case of Magna Maritime V. Oteju (2005) SCNJ 100, 103 cited by counsel for the respondent in his brief does not support his stand rather it reinforces the case of the Appellant
that the litigant whose conduct has not been impeached should not be punished for the mistake of counsel but his case should be given sympathetic consideration by the Courts. To this end, the decision in Lasaco Association Ltd v. Deserve Savings &Loans Ltd (2012) 2 NWLR (Pt. 1283) 95 can be distinguished from the instant case on the facts. The conduct and behavior of the Appellant unlike in Lasaco’s case (supra) was never brought to question.
Court’s exercise of discretionary powers must be even handed in the consideration of issues before it. Court must be prepared to look at issues from both sides. The mere fact of the delay in filing processes of Court by counsel which the trial Court hung on to should not ipso facto result in the Appellant’s application seeking for extention being dismissed without a consideration being made of other ancillary issues, as for instance whether the Appellant in his application has advanced any good reason (s) to justify his delay. Exercise by Courts of its discretionary powers which are not founded on materials on record leads to injustice as in this current case on appeal. The appellant has by all
intents and purposes shown that he was prepared to defend the action instituted against him by the Respondent. He had filed his defence, and would have gone ahead to lead evidence on it but for the new rules which became operational in the High Court, hence the need arose for parties to regularize and perfect their positions and to bring same in line with the new rules of Court. The trial Court ought to have considered the reasons proffered by Appellants and his Counsel but did not. It is for this reason and other reason I have earlier referred to in this discourse that I am inclined to resolve this issue in favour of the Appellant and against the Respondent. In effect the Appeal succeeds in part on issue No. 2 an same is allowed hence the Ruling delivered at the Taraba State High Court on the 7th November, 2013 in Suit No. TRSJ/11/2011 dismissing Appellants Motion on Notice is hereby set aside and in its place is entered this Judgment and order granting leave to the Appellant to front load among others, the documents listed in his application for the purpose of his defence, i.e.:
1. List of Witnesses.
2. Witnesses Statement on Oath, and
3. Such other document(s) as may be required in his defence at the hearing.
I should say on a final note that the Appellant as defendant has liberty to put in his defence and call evidence of witnesses at the trial.
Ordered accordingly.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the privilege of reading in draft a copy of the lead Judgment delivered by my learned brother, Husaini, JCA. Unfortunately, the blunder committed here was attributed and laid wholly at the door of Counsel, to the detriment of his client, the Appellant. A Court of law would normally exercise its discretion in favour of an applicant where his being out of time is due to pardonable inadvertence caused by the negligence or inadvertence of counsel, as in this case. It is trite that Courts would not visit the blunders, mistake and inadvertence of counsel on the litigant or penalize a litigant for the mistake of the Registry. See Oyegun V Nzeribe (2010) LPELR-2870(SC); Bakare V. Oduneye (2010) LPELR-3844(CA); &
Ahmadu V Salawu (1974) 1 ALL NLR (Pt, 2) 318. Indeed, in Isiaka V Ogundimu (2006) LPELR-1552(SC) 1 at 19-20, Oguntade, JSC, exhorted Courts in these terms:
“It is to be borne in mind that a Court would not visit the mistake or negligence of counsel on the client. See Bowaje V Adediwura (1976) 6 SC 143 at 147 where this Court per Bello, JSC (as he then was) observed: “This Court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel.”
I would also allow the Appeal for this reason, as in the lead Judgment of Husaini, JCA. I also make no order as to cost.
Appeal allowed.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: The crux of this appeal or more aptly put the kernel of the Appellants contention in this appeal is that the order of dismissal of his application seeking leave of the Court below to file his list of witnesses and documents to be relied upon at the trial out of time was an
improper and injudicious exercise of discretion by the Court below.
In the lead judgment, of which I have been afforded a draft copy in advance, my learned brother SAIDU TANKO HUSAINI, JCA., had admirably considered and resolved this crucial issue in favour of the Appellant and I am in total agreement with the reasoning and conclusions reached therein.
A litigant, except he be guilty of some form of misconduct or ill behaviour in the failure or mistakes of his counsel, should rarely if at all or ever, be punished for such mistake of his counsel of which the litigant has no hand or contributed to its occurrence. Let me explain briefly. There may, in my view, be circumstances in which a litigant may rightly be punished for the mistakes of his counsel where for instance he contributed greatly or largely or directly to the alleged mistake of counsel. Such a litigant must not be allowed, while his conduct is impeachable, to hide under the cloak of mistake of counsel to have his way. Where a litigant neglects, refuses or fails to furnish the necessary materials and logistics his counsel needed from him and a process is not filed or a step is not
taken within time and the proceedings suffers resultant inordinate delay, I think such a lapse even where tagged as “mistake of counsel” should not be lightly excused except there be real exceptional or extraordinary circumstances to warrant the Court bending so much backward in the interest of doing substantial justice to accommodate such a lapse. See Lasaco Association Ltd V. Deserve Savings & Loans Ltd (2012) 2 NWLR (Pt. 1283) 95.
Save in proved circumstances of misconduct or ill behaviour on the part of the litigant himself leading to the laspe complained of and in the case of other germane reasons, I do not see any other reason for denying a litigant of the right to substantial justice merely on account of the mistake of his counsel. He ought not to and should not in good conscience and in all fairness be punished for the mistakes of his counsel. See A. C. B Ltd V. Elosuiba (1991) 3 NWLR (Pt. 178) 133.
The truimphant days of the era of strict technicality in our Courts are long over and now substantial justice is king! The Appellant therefore, as aptly and ably demonstrated in the lead judgment, has substantial justice on his
side as against mere technicality heavily relied upon by the Respondent. The appeal is thus unassailable and highly meritorious.
It is in the light of the above few general comments of mine and for the more detail reasons adroitly marshaled out in the lead judgment that I too hereby allow the appeal in part. I shall abide by the consequential orders made in the lead judgment.
Appearances
S. S. Obende, Esq. with him, I. C. Ohanyido, Esq.For Appellant
AND
J. A. Oguche, Esq.For Respondent
