NIGERIAN NATIONAL PETROLEUM CORPORATION v. SAMFADEK & SONS LIMITED
(2018) LCN/4634(SC)
In The Supreme Court of Nigeria
On Friday, the 16th day of February, 2018
SC.108/2005(R)
RATIO
DUTY OF AN APPLICANT SEEKING FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL CLAIMING INADVERTENCE OF COUNSEL FOR FAILING TO APPEAL WITHIN THE PRESCRIBED PERIOD
In any case, inadvertence of counsel is a matter of fact. The question is: what and which facts constitute this blanket or misty inadvertence of counsel pleaded by the applicant The burden of proving the alleged inadvertence of counsel lies on this applicant. He has to prove the existence of such inadvertence of counsel, resulting in this crass indiligence or inordinate delay to appeal a decision after over 21 years, in order to succeed in this application: Section 132 of the Evidence Act, 2011. The burden of first proving the existence or nonexistence of the alleged inadvertence of counsel lies on this applicant, who would fail if no evidence at all were produced on either side: Section 133 Evidence Act. The burden of first introducing this prima facie evidence” as Nnamani, JSC, calls it, in DURU v. NWOSU (1989) 20 NSCC 1 at 10 – 11, falls on the applicant. The reason is obvious: what is alleged without proof can be denied without proof. The respondent has no burden of disproving any assertion of fact, requiring proof, that is not proved. It is only when a party, who has the initial burden of leading evidence on a particular issue, does so prima facie that he throws the burden of rebutting that evidence on the defendant or respondent to refute or rebut: ESEIGBE v. AGHOLOR (1993) 9 NWLR (pt. 316) 128 (SC) at 144. I do not accept that paragraph 10(b) of the supporting affidavit, averring that the reason for delay was the nebulous inadvertence of counsel, can be taken to have established, satisfactorily, “good and substantial reasons for the delay. Accepting this reason will ultimately expose the Courts to deluge of applications to revive and resurrect stale matters in the archives of our Courts. That definitely contravenes the age old policy that there must be end to litigation. PER EJEMBI EKO, J.S.C.
EFFECT OF AN UNAPPEALED JUDGEMENT OR ORDER OF THE COURT
A Judgment or order of Court remains binding until set aside by a competent Court: ROSSEK v. ACB LTD. (1993) LPELR 2955 (SC) PER EJEMBI EKO, J.S.C.
CIRCUMSTANCES WHERE THE RULE THAT INADVERTENCE OR ERROR OF COUNSEL SHOULD NOT BE VISITED ON THE LITIGANT WILL BE INAPPLICABLE
In ASORE v. LEMOMU (1994) 7 NWLR (pt. 356) 284, cited with approval in OKWELUME v. ANOLIEFO (1996) 1 NWLR (pt. 425) 468 at 481, it was held that the failure or inadvertence of counsel to file notice of appeal within 30 days was fatal. This Court had, in ASORE case, indulged the appellant additional 30 days to file his appeal. His counsel filed the appeal on the 34th day, four days outside the time extended for them to appeal. Where there has been a failure of strategy or tactic on the part of the counsel, as in the instant case, the litigant, his client, cannot escape such blunders committed by his counsel; for if the strategy had worked, both the counsel and his client took full credit. Accordingly, they must also take full responsibility for the failure of the strategy: BELLO AKANBI v. ALAO (1989) ALL NLR 424 at 440; 401, 444. Neither mischief, ineptitude nor strategic blunders are envisaged by the rule that inadvertence of counsel should not be visited on the litigant, his client. The rule cannot be applied to foist injustice on another party: AKANBI v. ALAO (supra). Nor will the rule apply in a clear case of abuse of Court’s process, as in the instant case. PER EJEMBI EKO, J.S.C.
DUTY INCUMBENT ON AN APPLICANT CLAIMING THAT THE INADVERTENCE OF HIS SOLICITOR CAUSED THE DELAY IN APPEALLING A DECISION WITHIN TE PRESCRIBED PERIOD
In Ahmed v. Trade Bank Plc (1996) 3 NWLR (Pt.437) 445, it was held that the concept that the sin of Counsel should not be visited on the litigant is without doubt a judicial expedience and although convenient must not be jeopardized by indiscriminate applications. Hence to be able to sustain the concept, the applicant needs to show that he acted promptly in giving instruction to his solicitor to file the appeal, but that the inadvertence or negligence of the solicitor caused the delay. It is also the Law that even when the Applicant acted promptly in instructing his Counsel, he is still expected to ensure that the Counsel carried out the instruction. This is so because the litigant who fails to ascertain if his Counsel has taken the necessary steps to bring his appeal is as well negligent. PER PAUL ADAMU GALINJE, J.S.C.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
NIGERIAN NATIONAL PETROLEUM CORPORATION Appellant(s)
AND
SAMFADEK & SONS LIMITED Respondent(s)
EJEMBI EKO, J.S.C. (Delivering the Lead Ruling): This application, argued on 28th November, 2017 was filed on 6th April, 2017. It prays for two principal reliefs, to wit
1. An order for extension of time within which the Appellant/Applicant may appeal against the judgment of the Court of Appeal, Lagos Division in the appeal No. CA/L/214/93 delivered on the 27th May, 1996.
2. An order granting leave to the Appellant/Applicant to rely on the Records of Appeal and the Amended Appellant’s Brief of Argument filed in this appeal.
In the unanimous decision of the Court of Appeal in the appeal No. CA/L/214/98 on 27th May, 1996 (per Uwaifo, Ayoola & Pats-Acholonu, JJCA as they were then) more than – 21 years before this instant application, a consequential order was made remitting the case No.ID/1532/89 to the trial judge, Oduneye, J. of Lagos State High Court-
For compensation due the 2nd Respondent (Samfadek and Sons Ltd) under the (Oil Piplines) Act to be properly addressed.
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The parties are at liberty to adduce evidence for the purpose of assessment of such compensation.
This was not appealed, at least then. This is the order the Appellant/Applicant now, by this application, wants to appeal within another appeal (the instant appeal SC.108/2005) before this Court against the subsequent decisions of the Court of Appeal Nos. CA/L/178/98 & CA/L/214/99. I will come anon to this.
In obedience to the order of remittance made on 27th May, 1996, in the appeal No. CA/L/214/93, Oduneye J. resumed the proceedings in the suit No ID/1532/89, with all the parties, including the Appellant/Applicant, participating in the proceedings to determine the compensation due the 2nd Respondent” (Sampadek & Sons Ltd) under the Oil Pipeline Act. Final judgment on that very narrow question was delivered by Oduneye, J., on 20th November, 1998. The Appellant/Applicant herein, the Nigerian National Petroleum Corporation (NNPC) was ordered to pay N24,000,000:00 as compensation under the Oil Pipelines Act.
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Before the final judgment, and in the proceedings of the trial Court before Oduneye J., following the order of the Court of Appeal on 27th May, 1996, the Appellant/Applicant herein, brought an application dated 30th may, 1997 praying that the trial Court should decline the re-hearing of the matter. It was contended in the application, ostensibly inviting the trial Court not to submit to the superior order of the Court of Appeal, that-
9. In the interest of Justice the matter should not be re-tried by the honourable Court.
10. This Hon. Court has already heard too much on the merit of this case
11. This Court has already made its decision on the issue raised in the pleadings and evidence
12. In the interest of justice this Hon. Court should decline jurisdiction to re-hear the case.
The learned trial Judge, Oduneye, J., in his ruling delivered on 13th June, 1997 dismissed the application. He granted the Appellant/Applicant (herein after called NNPC) leave on 25th July, 1997, to appeal his decision of 13th June, 1997 – 42 days after the Ruling. It appears that the Notice of Appeal filed on 15th August, 1997, at pages 56 & 57 of the Record,
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directed at “the ruling of Hon. Justice J. A. Oduneye J., dated 13th June, 1997 and 25th July, 1997″, was purportediy filed in pursuance of the leave granted on 25th July, 1997 by Oduneye, J. That Notice of Appeal appears to be the foundation of the appeal No. CA/L/178/98.
Meanwhile, NNPC did not appeal the order of the Court of Appeal made on 27th May, 1996 in the appeal No. CA/L/214/93 remitting the case back to Oduneye J., to hear the parties and determine the proper compensation due to SAMFADEK & SONS LTD, the Respondent, under the Oil Pipelines Act. In compliance with that order, Oduneye, J, in the suit No. ID/1532/89 proceeded in the proceedings and delivered his final decision on 20th November, 1998. The NNPC appeal against the final decision of Oduneye J., delivered on 20th November, 1998 is the appeal No. CA/L/214/99. These appeal and the earlier interlocutory appeal No. CA/L/178/98 were heard together.
The Court of Appeal (coram: Ogebe, Aderemi and Galadima, JJCA, as they were then) delivered judgment in the appeals No. CA/L/178/98 and CA/L/214/99 on 3rd December, 2003.
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The decision of Oduneye J, including the N24,000,000.00 assessed as compensation due to SAMFADEK & SONS LTD under the Oil pipelines Act, was affirmed. This decision prompted the instant appeal No. SC. 108/2005, now before us, my Lords. The appeal is ripe for hearing. Briefs have been filed and exchanged. And just as the appeal was to be heard, NNPC, the appellant, had brought forth this instant application. The hearing of the appeal, fixed earlier, was thus smothered or muzzled by this application.
The application prays, inter alia, for an order for extension of time within which the Appellant/Applicant may appeal against the judgment of the Court of Appeal, Lagos Division in the appeal No. CA/L/214/93 delivered on the 27th May, 1996”. Order 2 Rule 31 of the Rules of this Court obligates the applicant in an application for extension of time within which to appeal, firstly; to set forth, in the supporting affidavit, “good and substantial reasons for failure to appeal within the prescribed period”, and in addition to establish that the proposed grounds of appeal “pima facie shorn good cause why the appeal should be heard”.
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The applicant, citing IKENTA BEST (NIG) LTD v. A. G RIVERS STATE (2008) 2 – 3 SC (pt.1) 128, (2008) LPELR – 1476 (SC), is no doubt aware that he is enjoined, in order to succeed, to meet the simultaneous existence of the two conditions.
Failure to appeal after over 21 years pima facie is evidence of inordinate delay and crass indiligence. The only reason adduced by the instant applicant for the delay, in appealing the Court of Appeal decision delivered on 27th, May, 1996 in the appeal No. CA/L/214/93, is the unparticularised or non specific and nebulous inadvertence of counsel. The bare faced averment in paragraph 10 (b) of the supporting affidavit runs thus
That the Appellant/Applicant’s counsel appealed the sister decision in appeal No. CA/L/178/98 & CA/L/214/99 but inadvertently omitted to file a separate Notice of Appeal against the judgment in Appeal No. CA/L/214/93.
The decision in the Appeal No. CA/L/214/93, being the genesis of the final judgment of the trial Court delivered on 20th November. 1993 in the suit No. ID/1532/89 from which appeals Nos. CA/L/178/98 and CA/L/214/99
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sprang, could not have been a sister appeal of the two subsequent appeals No. CA/L/178/98 &, CA/L/214/99.
In any case, inadvertence of counsel is a matter of fact. The question is: what and which facts constitute this blanket or misty inadvertence of counsel pleaded by the applicant The burden of proving the alleged inadvertence of counsel lies on this applicant. He has to prove the existence of such inadvertence of counsel, resulting in this crass indiligence or inordinate delay to appeal a decision after over 21 years, in order to succeed in this application: Section 132 of the Evidence Act, 2011. The burden of first proving the existence or nonexistence of the alleged inadvertence of counsel lies on this applicant, who would fail if no evidence at all were produced on either side: Section 133 Evidence Act. The burden of first introducing this prima facie evidence” as Nnamani, JSC, calls it, in DURU v. NWOSU (1989) 20 NSCC 1 at 10 – 11, falls on the applicant. The reason is obvious: what is alleged without proof can be denied without proof. The respondent has no burden of disproving any assertion of fact,
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requiring proof, that is not proved. It is only when a party, who has the initial burden of leading evidence on a particular issue, does so prima facie that he throws the burden of rebutting that evidence on the defendant or respondent to refute or rebut: ESEIGBE v. AGHOLOR (1993) 9 NWLR (pt. 316) 128 (SC) at 144.
I do not accept that paragraph 10(b) of the supporting affidavit, averring that the reason for delay was the nebulous inadvertence of counsel, can be taken to have established, satisfactorily, “good and substantial reasons for the delay. Accepting this reason will ultimately expose the Courts to deluge of applications to revive and resurrect stale matters in the archives of our Courts. That definitely contravenes the age old policy that there must be end to litigation.
It was averred in paragraph 4 of the supporting affidavit that NNPC timeously instructed their solicitors to appeal the decision of the Court of Appeal delivered on 27th May, 1996 remitting the case No. ID/1532/89 back to Oduneye, J for hearing and determination on the narrow issue of the
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proper compensation payable to SAMFADEK & SONS LTD. There was no appeal against that order of 27th May, 1996. Applicant’s counsel, in a move or strategy that is both novel and disingenuous, if not bizarre, applied to the trial Court (coram: Oduneye, J.) to decline jurisdiction to re-hear the matter remitted to it by order of the Court of Appeal, which had neither been appealed nor set aside. The efficacy of that order was not in doubt. A Judgment or order of Court remains binding until set aside by a competent Court: ROSSEK v. ACB LTD. (1993) LPELR 2955 (SC) The application was overruled. That prompted the lodging of appeal No.CA/L/178/98.
As can be seen from page 159 of the Record, which the Applicant seeks leave to use in the event of our granting him the extension of time within which to appeal the order made in appeal No. CA/L/214/93, the Appellant/Applicant had abandoned appeal No. CA/L/178/98. The respondent had drawn the attention of the Court of Appeal to the confusion the appellant had introduced into this appeal by filing Notices of Appeal dated 1st August, 1998 and 15th June, 1999.
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The Court of Appeal found as a fact that –
The Notice of Appeal dated 1st August, 1997 and filed on 5th May, 1998 is directed against the two rulings of the trial Court delivered on 13th June, 1997 and 25th July, 1997 respectively. The Notice relevant to the present appeal is the one dated 15th June, 1999 let in by the application dated 7th February, 2000. It is even clear from the body of that Notice that it is directed against the Judgment of 20th November, 1998.
From the processes, the two appeals purportedly argued at the Court of Appeal bore CA/L/178/98 and CA/L/214/99. In actuality, Appeal No. SC. 108/2005 stems from the appeal No. CA/L/204/99; not appeal No. CA/L/178/98 (which has not been heard).
Apart from the Applicant’s failure to make out any good and substantial reasons for failure to appeal the decision of 27th May, 1996 in the appeal No. CA/L/214/93 within the prescribed period, the grant of the instant application will not serve the ends of justice. It will also cause confusion. The order of the Court of Appeal made on 27th May, 1996 has been accomplished with the hearing of the
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suit No. ID/1532/89 on the narrow issue of compensation and its final decision on it delivered on 20th November, 1998. The Appellant/Applicant participated in it and in the appeal No.CA/L/214/99 emanating therefrom.
The underlying mischief, albeit ulterior purpose, for this application is what Kayode Sofola, SAN stated under his hand in paragraph 4 of the grounds for the reliefs sought. That is
4. This application is necessary for the hearing of the instant appeal on its merits in the interest of justice.
There is no interest of justice, and none will be served, with a party and or his counsel bringing an application seeking equitable remedy which application merely seeks to cause confusion or to confuse issues. I agree with Mr. Kasunmu, of counsel for the Respondent, that this application has been brought merely to stifle the hearing of the appeal No. SC.108/2005. The conduct of the applicant does not warrant my granting this application.
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There are exceptions to the rule that inadvertence or error of counsel should not be visited on the litigant. In ASORE v. LEMOMU (1994) 7 NWLR (pt. 356) 284, cited with approval in OKWELUME v. ANOLIEFO (1996) 1 NWLR (pt. 425) 468 at 481, it was held that the failure or inadvertence of counsel to file notice of appeal within 30 days was fatal. This Court had, in ASORE case, indulged the appellant additional 30 days to file his appeal. His counsel filed the appeal on the 34th day, four days outside the time extended for them to appeal.
Where there has been a failure of strategy or tactic on the part of the counsel, as in the instant case, the litigant, his client, cannot escape such blunders committed by his counsel; for if the strategy had worked, both the counsel and his client took full credit. Accordingly, they must also take full responsibility for the failure of the strategy: BELLO AKANBI v. ALAO (1989) ALL NLR 424 at 440; 401, 444. Neither mischief, ineptitude nor strategic blunders are envisaged by the rule that inadvertence of counsel should not be visited on the litigant, his client. The rule cannot be applied to foist injustice on another party: AKANBI v. ALAO (supra).
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Nor will the rule apply in a clear case of abuse of Court’s process, as in the instant case.
It is unjust to grant this application. Accordingly, the application is hereby refused. The Respondent is entitled to costs, and taking the conduct of this litigation by the Appellant/Applicant’s counsel into consideration costs assessed at N500,000.00 and payable by Kayode Sofola & Associates, a law firm headed by Kayode Sofola, SAN, shall be and are hereby awarded in favour of the Respondent. It is time stakeholders in administration of justice in this country realised that justice delayed by unnecessary tricks and gimmicks by all concerned correlatively affects the growth of commerce and the economy.
MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft the lead ruling of my learned brother EJEMBI EKO JSC with whose reasoning and conclusion I agree that the application to which the ruling relates is devoid of merit. His Lordship has clearly demonstrated why in his ruling and it is needless for me to restate the obvious in dismissing the unmeritorious application for extension of
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time to allow the applicant to appeal more than twenty one years after he should have done so. I adopt the lead ruling as mine in dismissing the application and abide by the consequential orders reflected in the said ruling as well.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Ruling judgment delivered by my learned brother – Eko, JSC, and I agree entirely with his reasoning and conclusions.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft the ruling just delivered by my Learned brother Eko, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. The only reason for the Applicants failure to file the appeal within the prescribed period is the usual inadvertence of counsel as deposed to at paragraph 10 (b) of the supporting affidavit.
In Ahmed v. Trade Bank Plc (1996) 3 NWLR (Pt.437) 445, it was held that the concept that the sin of Counsel should not be visited on the litigant is without doubt a judicial expedience and although convenient must not be
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jeopardized by indiscriminate applications. Hence to be able to sustain the concept, the applicant needs to show that he acted promptly in giving instruction to his solicitor to file the appeal, but that the inadvertence or negligence of the solicitor caused the delay. It is also the Law that even when the Applicant acted promptly in instructing his Counsel, he is still expected to ensure that the Counsel carried out the instruction. This is so because the litigant who fails to ascertain if his Counsel has taken the necessary steps to bring his appeal is as well negligent.
For 21 years, the Applicant slept over its right to appeal. It surely has an uphill task of convincing this Court that it gave instruction to its Counsel to appeal against the decision of 27 May, 1996 and Counsel failed to do so. Mere instruction to Counsel is not sufficient. The Appellant must show that it took some steps to ensure that the Counsel complied with the instruction. Applicant has not shown in the supporting affidavit that it took some measures to ensure that its Counsel complied with its instruction.
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The Applicant has failed to give good and substantial reasons for its failure to file its appeal within the prescribed period.
For this short comment and the more detailed reasoning in the lead ruling, this application shall be and it is hereby dismissed. I abide by the consequential orders made in the lead ruling including order as to costs. I abide by the consequential orders made in the lead ruling including order as to costs.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Ruling of my learned brother Ejembi Eko, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The application is without merit and it is hereby refused. I abide by all the orders contained in the ruling.
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Appearances:
Opeyemi Atawo, Esq. For Appellant(s)
B. Kasunmi, Esq. For Respondent(s)
Appearances
Opeyemi Atawo, Esq. For Appellant
AND
B. Kasunmi, Esq. For Respondent
