Mistake Of Counsel: Distinguishing Inadvertence Of Counsel From Ineptitude Of Counsel

By Chioma Angela Okeke

It is trite law that parties are not visited with punishment arising from the mistake or inadvertence or negligence of counsel when the mistake, inadvertence or negligence is in respect to procedural matters in which case, the Court would lean towards accommodating the parties’ interests without allowing mere procedural irregularities, brought about by counsel, to preclude the determination of a case on the merits.[1] In Akinyede v The Appraiser,[2] counsel’s carelessness was held by the Supreme Court to be good reason for failure to appeal within time, provided such carelessness is pardonable. In Doherty v. Doherty[3]  and Bowaje v Adediwura,[4] pardonable inadvertence of counsel was accepted as good and substantial reason for the delay. In Alagbe v His Highness S. Abimbola & Ors,[5] where delay was partly due to counsel and his clerk, the delay was held to be satisfactorily explained.

However, in Iroegbu v Okwordu,[6]  Nnaemeka-Agu, JSC (as he then was), warned counsel that notwithstanding the decisions of the Supreme Court on the said subject in Akinyede v The Appraiser, Doherty v Doherty, and the case of Ahmadu v Salawu ,[7] “it is not yet uhuru, so to speak”. In other words, the Courts will not regard inadvertence of counsel as universal talisman, the waiver of which will act as panacea in all cases. The Courts must be satisfied that the allegation of inadvertence of counsel is true and genuine, and also availing having regard to the circumstances of the particular case. Also in Shanu v Afribank (Nig.) Plc, the court emphasized that the inadvertence of counsel, if reasonable, is an acceptable explanation for delay in applying for leave to appeal. [8] In GTB v Est Master Construction Ltd,[9] the Applicant had filed an initial application within time before he noticed an error in not including the first prayer to extend the time. Although the learned jurist noted that counsel ought to have been more diligent, but went further to state that  in such circumstances, the said error do not suggest ineptitude on counsel’s part.

Now, the frequency of attributing almost all non-compliance with the Law and Rules of Court on the “mistake” or “inadvertence” of counsel has forced the Courts to distinguish inadvertence of counsel from the ineptitude of counsel. This distinction was re-emphasized by the Supreme Court in the recent case of Incorporated Trustees of Ladies of Saint Mulumba, Nigeria v Mr. Edeno Ekhator[10]. In this case, the Applicant failed to appeal against the Judgment of the Court of Appeal within time, and later filed an Application praying the Supreme Court for an extension of time to seek leave to appeal; leave to appeal; and an extension of time to file the Notice of Appeal against the Judgment of the Court of Appeal. In the accompanying affidavit, it was deposed thus:

7. The Applicant was dissatisfied with the Judgment of the Court below – and thereby instructed its Lead Counsel, Dr T. C. Osanakpo, SAN to appeal against it to this Court.
8. The Lead Counsel promptly prepared the Notice of Appeal and directed me to prepare a Motion on Notice to seek leave to appeal against the Judgment of the Court of Appeal dated 4/12/2019 which is deposed to in paragraph 6 of this Affidavit.
9. I inadvertently failed to comply with the instructions of my Learned Senior in Chambers – Dr T. C. Osanakpo, SAN, the Lead Counsel of the Applicant.
10. It was on 9/3/2020 when Dr T. C. Osanakpo, SAN was reviewing the matters assigned to me to work on that I became seized of the fact that the time to seek leave to appeal against the Judgment of the Court of Appeal expired on 3/3/2020.
11. The failure to take appropriate steps to seek leave to appeal

within time against the Judgment of the Court of Appeal dated 4/0 2/2019 was entirely due to my inadvertence…

12. It was also on 9/3/2020 in the course of review of the Applicant’s matter with Dr T. C. Osanakpo, SAN, I realized that the proposed Notice of Appeal of the Applicant contains grounds of mixed law and fact. [Proposed Notice of Appeal attached as Exhibit.
13. On 9/3/2020 when I was involved in the review of the facts – – I realized that the time to seek leave to appeal against the Judgment of the Court below expired on 3/3/2020.
14. On 9/3/2020 during the review of the case of the Applicant – Dr L C. Osanakpo, SAN – informed me in the conference room of our office – – at Louis Chambers, 350 Aba Road, Port Harcourt at about 4pm and I verily believed him that the extant Application of the Applicant needs to contain the following reliefs [Trinity Prayers listed].

In His ruling, the learned jurist re-echoed his position in GTB v Est Master Construction Ltd[11] that on the issue of inadvertence of counsel, the question should be whether the inadvertence of counsel is within limits or has crossed the line to sheer ineptitude on the part of Applicant’s counsel. The court further noted that an Application for extension of time within which to seek leave to appeal is not granted as a matter of cause, and where the Applicant is praying this Court for extension of time within which to seek leave to appeal against the concurrent findings of fact by the two lower Courts, it goes without saying that it is faced with a herculean task because it is only in exceptional circumstances that the Court will grant leave to appeal against such concurrent findings.[12]

In summary, the court will always distingush mistake, inadvertence and sickness of counsel from ineptitude, complete ignorance or malfeasance exhibited by counsel. Thus, the rule that a litigant should not be punished for the mistake or inadvertence of counsel does not extend to a situation where his counsel has exhibited tardiness and incompetence. The question in each case should always be, whether the inadvertence of counsel is within limits or has crossed the line to sheer ineptitude on the part of the Applicant’s counsel.

[1] Ahmadu v Salawu (1974) 1 All NLR (Pt. II) 318 at 324; Ibodo & Ors v Enarofia (1980) LPELR-1401(SC) 13 paras B-E.

[2] (1971) All NLR 162.

[3] (1964) 1 All NLR 299.

[4] (1976) 6 SC 143.

[5] (1978) NSCC 84; (1978) 2 SC 39.

[6] (1990) 6 NWLR (Pt 159) 643.

[7] (1971) 1 All NLR (Pt 2) 318

[8] (2000) 13 NWLR (Pt 684) 392, 403.

[9] (2018) 8 NWLR (Pt 1622) 483.

[10] (SCN/20/2020) delivered this 2022 by Justice Amina Adamu Augie.

[11] (2018) 8 NWLR (Pt 1622) 483; Adigwe v FRN (2015) 18 NWLR (Pt 1490) 105 at 136; Dana Airlines Ltd v Yusuf & Ors (2017) LPELR-43051(CA) 35-36 paras F-C.

[12] Tilbury Consttz Cox v Ogunniyi (1988) 2 NWLR (Pt. 72) 64.