Ethical Considerations of the Sins of Counsel – Part II

by Oluwanonso

In this edition of this Ethical consideration of the Sins of the Counsel in litigation matters series, I 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.

See the previous episode here

ETHICAL CONSIDERATIONS OF THE SINS OF COUNSEL – PART II

Generally, the position of the law has always been that litigants should not be penalized for the mistakes made by their lawyers. This has become a frequent excuse for litigants who have failed to comply with a statutory procedure in the conduct of their case and with the court to exercise its discretion in their favour. The courts are under instruction from the Apex Court not to visit the mistake of counsel on the clients, in order to foster the interests of justice.

However, this is not an automatic rule as the applicant must establish a genuine mistake of his counsel before he can benefit from the rule. As the Noble Lord Abdu Aboki JSC stated in STANBIC IBTC BANK PLC v. LONGTERM GLOBAL CAPITAL LTD & ORS (2021) LPELR-56661(SC),

“It is an established principle of law, that Courts do not normally punish a litigant due to the mistake of his counsel. Mistake or inadvertence of counsel is neither magic nor sacrosanct such that once raised as the cause of a lapse, the Court must accept or waive it in favour of the claimant of such excuse or as a reason to condone or overlook such lapse. It however must be proved that it is a genuine mistake. The Courts must be satisfied not only that the allegation of the fault of counsel is true and germane, but also that it is availing, having regard to the circumstances of the particular case.” Per ABDU ABOKI, JSC (Pp 24 – 24 Paras C – F)

Many litigants have taken advantage of this general position of the law to blame counsel for their failure to file an appeal within the prescribed time limits since the law does not permit the sins of their counsel to be visited on the litigants. However, the Courts have grown smarter and have begun to see through the gimmicks of applicants relying on the mistake of either former or present counsel as the reason for tardiness in filing a timeous notice of appeal.

It must however be stated that the rule which enjoins Courts not to visit the mistake or inadvertence of counsel on litigants is not intended to be a universal talisman, the waiver of which will act as a panacea in all cases. Before the plea is accepted, the Court must not only be satisfied that the allegation of the fault of counsel is true and genuine, but also that it is availing having regard to the circumstances of the particular case.[1]

One of the important factors that must be present before an applicant can be excused from his counsel’s mistake is that the applicant must admit that his Counsel has made a mistake. The Noble Lord Adegbehingbe JCA aptly captured this point in the very recent case of ELECHI v. STATE (2022) LPELR-56905(CA) where he held as follows:

“As sound as that principle is, there must, first, be an admission by the appellant/applicant that the erstwhile counsel for the appellant/applicant is, indeed, a sinner, needing judicial ablution, before the principle may be principal to the consideration of the matter.

Visiting the sin of counsel on his client is not permitted by the law Courts. But where a counsel commits a fundamental blunder, which affects his client’s case, the Court will not allow the argument to fly.

Thus, it is the duty of the appellant/applicant to lead evidence, which will clear the insinuations, sticking, aggressively, out of the affidavit in support of the application, that the named erstwhile appellant/applicant’s counsel, who appeared for the appellant/applicant, at the trial, either deliberately acquiesced with the procedure adopted at the trial Court or made a mistake or any other reason for his action or inaction.” (emphasis mine).

One may think that an applicant who places the blame for his inadvertence or failure to act within time squarely on his counsel or former counsel has satisfied the condition to entitle him to the court’s discretion. This is however not the case, as the Court requires another layer of authentication before it can exercise its discretion in this regard. This would be the focus of our next post in the series.

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[1] Please see the cases of IROEGBU v OKWORDU [1990] 6 NWLR (PT. 159) 643 – per Nnaemeka-Agu, JSC and ERINFOLABI v. OKE [1995] 5 NWLR (PT. 395) 296 —per Niki Tobi, JCA (as he then was).