Exception to the Principle that “The Inadvertence of a Counsel Should not be Visited on the Litigant”
NIGERIAN NATIONAL PETROLEUM CORPORATION V SAMFADEK & SONS LIMITED
Legalpedia Electronic Citation:  Legalpedia SC. 108/2005
Areas Of Law:
Appeal, Judgement And Order, Law Of Evidence, Legal Practitioner, Practice And Procedure
Summary Of Facts
The Applicant herein has applied to the Court for an extension of time within which to appeal against the decision of the Court of Appeal in suit No. CA/L/214/93 delivered on the 27th May, 1996, and for an order granting leave to rely on the records of the appeal and the Appellant’s amended Brief of Argument.
The lower court in CA/L/214/93 gave a unanimous decision, wherein it made a consequential order remitting the case to the trial judge to address the compensation due to the 2nd Respondent (Samfadek and Sons Ltd) under the Oil Pipelines Act. The trial court resumed proceedings in the suit and in its final judgement, the Applicant/Appellant herein, was ordered to pay N24, 000,000:00 as compensation under the Oil Pipelines Act.
Before the final judgment of the trial court, following the order of the Court of Appeal, the Applicant/Appellant brought an application praying that the trial court should decline the re-hearing of the matter which application was dismissed. The Applicant/Appellant did not appeal against the order of the Court of Appeal remitting the case back to the trial court to determine the proper compensation due to Samfadek & Sons Ltd., the Respondent, under the Oil Pipeline Act.
The trial court however entered a final decision. An appeal against this decision and the interlocutory appeals were heard together by the lower court which affirmed the judgement delivered by the trial court hence, the instant appeal to which the Applicant/Appellant has filed an application praying for an order for extension of time within which the Applicant/Appellant may appeal against the judgement of the lower court.
Issue For Determination
INADVERTENCE OF COUNSEL- DUTY OF A PARTY CLAIMING INADVERTENCE OF COUNSEL
“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 non-existence 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: Eseigbei V. Agholor (1993) 9 NWLR (pt.316) 128 (SC) at 144.” PER E. EKO, J.S.C
JUDGMENT OF COURT- STATUS OF THE JUDGEMENT OF A COMPETENT 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 E. EKO, J.S.C
INADVERTENCE OF COUNSEL – EXCEPTION TO THE PRINCIPLE THAT “THE INADVERTENCE OF A COUNSEL SHOULD NOT BE VISITED ON THE LITIGANT”
“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.” PER E. EKO, J.S.C
INADVERTENCE OF COUNSEL- INSTANCES WHERE THE INADVERTENCE OF COUNSEL WILL NOT BE APPLICABLE
“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 E. EKO, J.S.C
INADVERTENCE OF COUNSEL – CONCEPT OF INADVERTENCE OF COUNSEL
“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 P.A. GALINJE, J.S.C
Statutes Referred To:
Evidence Act, 2011
Oil Pipeline Act