Ethical Considerations of the Sins of Counsel – Part I

by Oluwanonso

INTRODUCTION

In my first series, I examined conflict of interests in litigation and the ethical obligations of every legal practitioner in Nigeria and reviewed the case of Agamore Energy Ltd v Essar Exploration & Production Ltd, where multiple parties have conflicting or divergent interests, the case of Samtech (Nig) Ltd & Anor v. Sanni & Anor on the disqualification of Counsels from representing a party in a suit on the grounds of conflict of interests and also reviewed the case of Elias & Anor v. Ecobank (Nig) Ltd. This new series is centred on an examination of the ethical responsibilities of counsel in litigation matters. 

See the series on Conflict of Interest here

ETHICAL CONSIDERATIONS OF THE SINS OF COUNSEL – PART I

The right to appeal against a decision of a court of law is a constitutional right that cannot be taken away from a litigant. However, the exercise of this right is subject to the time limits imposed by the Constitution and the various rules of court. Hence, an appellant must exercise the said right to appeal within the stated time limit or stand the risk of forfeiting the right.  

The rules of various courts permit an appellant to lodge an appeal against a decision of a lower court outside the prescribed time limit. Such an appellant/applicant must file an application for an extension of time to appeal against the decision of the lower court. The application must be filed at the appellate court and the grant of such prayers for extension of time to appeal is entirely discretional. However, there are two fundamental principles guiding the exercise of discretion by all courts in the grant of extension of time to appeal against a decision. These principles are:-

1. Good and substantial reasons for failing to appeal within the prescribed period; and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.[1]

These two pre-conditions must be satisfied conjunctively. They must both co-exist for the application to be granted, and it is not sufficient to satisfy one condition without the other. The only exception where the existence of only one condition will be sufficient to grant an extension of time to appeal is where the grounds of appeal in the proposed notice of appeal raises the issue of jurisdiction and it prima facie appears to be so.[2]  

Most applicants do not have issues with the second condition, which is the presence of grounds of appeal which shows substantial reasons why the appeal should be heard, and this is largely because the applicant needs not to show at this stage that the grounds of appeal will succeed. He only needs to demonstrate that they are arguable.[3]

A critical review of most rulings on applications for extension of time to appeal against a decision of the lower court shows that applicants do not scale through the first condition. Many applicants comfortably satisfy the second condition but are unable to disclose good and substantial reasons for their failure to appeal within the prescribed period.[4]

One of the most used reasons that applicants adduce for their failure to appeal within the prescribed time is usually due to the inadvertence, ignorance or mistake of their counsel. In fact, the popular practice is to blame the failure to file a notice of appeal within the time of a “former counsel” who has left the employment of the applicant’s law firm. This former counsel is usually named in the affidavit supporting the application for extension of time to appeal, and blamed for not filing the notice of appeal within time, despite being briefed by his principal to do so. Such practice has grievous ethical considerations for both the former counsel named (and blamed) in the affidavit and the present counsel who prepares the application for an extension of time to appeal.

The next part of this post will examine the ethical considerations of any Counsel who is blamed by his former employer for failing to carry out the instruction of filing a notice of appeal within the time prescribed by the law, and also the implication for litigants who are aware of such tardiness on the part of the law firm/counsel handling their briefs.

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[1] Please see the case of ESTATE SURVEYORS & VALUERS REGISTRATION BOARD OF (NIG) v. OKOLI & ORS (2021) LPELR-55640(CA).

[2] Please see the cases of Jimoh v. Federal Capital Territory (2019) 5 NWLR (Pt. 1664) 45 and Ogwue v. Godday Resources Ltd (2009) All FWLR (Pt. 485) 1728.

[3] Please see the cases of Ani v. Effiok (2017) 8 NWLR (Pt. 1567) 281; Itsueli v. Securities & Exchange Commission (2016) 6 NWLR (Pt. 1507) 160.

[4] Please see ELIAS & ANOR v. ECO BANK (2019) LPELR-46527(SC) Per Ariwoola JSC at pp. 33-34.