INSTANCE(S) WHERE MISTAKE OF COUNSEL WILL NOT AVAIL A LITIGANT

CASE TITLE:  ESTATE SURVEYORS & VALUERS REGISTRATION BOARD OF (NIG) v. OKOLI & ORS (2021) LPELR-55640(CA)

JUDGMENT DATE: 8TH OCTOBER, 2021

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: ABUBAKAR MAHMUD TALBA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This is a ruling on an application for extension of time to seek leave to appeal amongst other reliefs.

FACTS

The Applicant filed a motion on notice at the Court of Appeal praying for the following reliefs:

1. AN ORDER of this Honourable Court extending time within which the Appellant/Applicant will seek leave to appeal against the judgment of the Federal High Court, Kaduna Division holding at Kaduna, Kaduna State in Suit No; FHC/KD/CS/54/2011 delivered by Coram Evelyn N. Anyadike J. on the 10/12/2014.

2. AN ORDER of this Honourable Court granting leave to the Appellant/Applicant to appeal against the Judgment of the Federal High Court, Kaduna division, holding at Kaduna in Kaduna State in Suit No. FHC/KD/CS/54/2011 delivered by Hon. Justice Evelyn N. Anyadike on the 10/12/2014.

3. AN ORDER of this Honourable Court extending the time within which the Appellant/Applicant will appeal against the judgment of the Federal High Court, Kaduna Division, holding at Kaduna in Kaduna State in Suit No. FHC/KD/CS/54/2011 delivered by Hon. Justice Evelyn N. Anyadike on the 10/12/2014.

4. AND FOR SUCH FURTHER OR OTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.

The application was supported with a 7 paragraphed affidavit and two exhibits marked as Exhibits A and B.

The 1st-3rd Respondents filed a 7 paragraphed counter affidavit in opposition to the motion. The Applicant further filed a 4 paragraphed further affidavit.

ISSUES FOR DETERMINATION

The Court of Appeal determined the application on the sole issue as follows:

Whether having regard to the facts as disclosed in the supporting affidavit and the further affidavit and the position of the law, the Applicant has fulfilled the condition precedent to the grant of this application.

DECISION/HELD

In the final analysis, the application was dismissed for being unmeritorious.

RATIOS:

• APPEAL – EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Whether the grant of an application for extension or enlargement of time to appeal is at the discretion of the Court; how same should be exercised
• APPEAL – EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Principles guiding the grant of an application for extension of time within which to appeal
• EQUITY – EQUITABLE MAXIMS: Import of the maxim “vigilantibus et non dormientibus jura subveniunt”
• PRACTICE AND PROCEDURE – MISTAKE OF COUNSEL/COURT/REGISTRY: Whether a litigant can be liable for the mistake of his counsel; instance(s) where mistake of counsel will not avail a litigant
• PRACTICE AND PROCEDURE – MISTAKE OF COUNSEL/COURT/REGISTRY: Whether a litigant can be punished for the mistake of his counsel; condition(s) to be satisfied before mistake of counsel can avail a litigant