NWLR This Week: Visiting Error of Counsel on Litigant, Rules, Exceptions, Applications

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Parties:      Dr. Samuel U. Isitor v. Mrs. Margaret Fakorede
Appeal No: SC/364/2007
Court:         Supreme Court

IBRAHIM TANKO MUHAMMAD, J.S.C. (Presided)
MARY UKAEGO PETER-ODILI J.S.C.
KUMAI BAYANG AKA’ AHS, J .S.C.
AMINA ADAMU AUGIE, J.S.C.
EJEMBI EKO, J.S.C (Read the Leading Ruling)

Citation:         (2018) 5 NWLR (Pt. 1612) P.328

Facts: The appellant filed a motion at the Supreme Court seeking an order granting leave to the appellant to raise at the Supreme Court  for the first time, fresh issues of the failure of the appellant to obtain the respondent’s consent and invalidity of the affidavit of service of the processes of the trial court; an order enlarging  and extending the time within which the appellant will file additional grounds of appeal on mixed law and facts; an order granting leave to the appellant to file additional ground of appeal on mixed law and facts; an order granting leave to the appellant to amend his original notice of appeal by the addition of the three additional grounds of appeal. The grounds for the application were that the new grounds of appeal and fresh issues raised would impact fundamentally on the totality of the appeal; and that all the facts necessary for adjudication in respect of the new issues and grounds raised were already in the complied records of appeal before the court and thus no new or fresh evidence will be required howsoever and whatsoever.

The application was supported by a twenty-paragraph affidavit. In the affidavit, it was averred that the appellant’s counsel elected not to appeal or challenge at the Court of Appeal the judgment of the trial court that dismissed the issue of the invalid service of the court processes and the validity of the affidavit of service, and he did not raise the issues of consent and the invalidity of the affidavit of service. It was further averred that the failure to timeously raise the subject of the additional grounds of appeal was due entirely to the inadvertence and error of judgment of the appellant’s counsel.

In response, the respondent filed a seven-paragraph counter-affidavit,

Earlier, the appellant had filed a similar application at the Supreme Court raising the issue of non-service of the originating processes and the application was struck out. The appellant subsequently filed another application on the same issue which the Supreme Court dismissed after appellant withdrew it after it had been argued.

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Principle:  

  1. On Rationale for rule that error of counsel should not be visited on litigant –

The rule that error of counsel should not be visited on his client, the litigant, is informed by the court’s desire to do substantial justice by considering the case on its merits rather than sticking to unnecessary technicality, and the court’s leaning towards accommodating the parties’ interest without allowing mere procedural irregularities, brought about by counsel, to preclude the determination of a case on its merits.

  1. On Exceptions to rule that error of counsel should not he visited on litigant –

There are exceptions to the rule that error of counsel should not be visited on litigant:

  1. only genuine mistakes or inadvertence of counsel are remedied by the court under the rule;
  2. ineptitude or strategic blunders are not envisaged by the rule;
  3. the rule cannot be applied to foist injustice on another party.
  1. On Application of rule that error of counsel should not be visited on litigant –

When error of counsel is pleaded to remedy a situation caused by counsel, there must always be a clear distinction between mere mistakes or inadvertence on one hand, and sheer carelessness or failure of strategy or tactics on the other hand. While the latter does not attract the sympathy of court, the former, dictated by the rule that equity follows the law and is always on hand to mitigate or mellow down the harshness of strict application or operation of the roles of court, avails a party whose counsel has committed genuine mistake or errors.

  1. On Whether rule that error of counsel should not be visited on litigant can be used to rectify strategic blunders of counsel in course of litigation –

The rule that error of counsel should not be visited on the litigant cannot be used to rectify strategic blunders committed by counsel in the course of litigation. A counsel, once properly briefed, takes full charge of the case as regards the manner of conducting the case, including the strategies thereby. Therefore, counsel cannot in the case of failed strategies take shelter under the omnibus claim of inadvertence or negligence. If the strategy the counsel adopted works, he takes the credit, and if the strategy fails he must also take full blame or responsibility with equanimity. By analogy, the own-goal rule in soccer also applies in adjudication. An own-goal is not cancelled because the player, in error of judgment, played the round ball to his own net. Accordingly, by failure of strategy, the adverse party is entitled to the advantage created thereby. In the instant case, what the counsel for the appellant/applicant called inadventure or error of judgment on his part was nothing but failure of strategy or tactic, which went to the merit of the appeal either at the Court of Appeal or in the Supreme Court. Elike v. Nwankwoala (1984) All NLR 505; Akanbi v. Alao (1989) 3 NWLR Pt, 108) 118; Kolawole v. Alberto (1989) 1 NWLR (Pt. 98) 2 referred to.] (P.340, paras. E-H)

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Per AUGIE, J.S.C. at pages 348-349, paras.

“Obviously; as my learned brother, Eko J.S.C., lucidly and incisively said, the appellant will bear the brunt of this artful strategy or tactics of counsel, which he labeled as ‘inadvertence and error of judgment’, since it is only genuine mistakes or inadvertence of counsel that are remedied by the rule that the error of counsel should not be visited on his client. See Akani v. Alao (1989) 3 NWLR (Pt. 108) 118 SC, wherein this court, per Craig, J.S.C.; very aptly observed as follows –

‘When a party makes a choice, which the law requires him to make, and that choice was acted upon by parties and the court, the party, who made the choice; cannot turn round afterwards and claim that he had made a mistake. Such a mistake of law will not excuse the party. A decision not to call evidence has always been regarded as a legal strategy, not a mistake. If the strategy succeeds; then it enhances the case of that party; but if it fails, such a litigant cannot ask for leave to adduce further evidence in order to repair his damaged case…. If every party, who makes a wrong choice of that nature, is allowed to repair his case in this way, there will be no end to litigation. The legal maxim is interest rei publicae ut sit litium

 In this contributory judgment, Eko, J.S.C., pointedly stated as follows

‘The crux of the matter is whether or not – parties could, after losing a case on the conduct of the ease by their counsel, choose another counsel and adduce evidence, which the former counsel in his professional decision did not offer. I think it would be extending lbodo v. Enarofia beyond reason, if every considered or assumed considered professional decision of a counsel, which has gone wrong, should qualify as ground of appeal…. The rule really should be “caveat client. If you choose a counsel, you should permit him, once seised of the case to conduct the case in the manner of his professional ability. Indeed, that is part of the independence of the Bar!

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If there is lapse in his office, his clerk forgetting to file some papers, he, forgetting the date of hearing or such like procedural errors, of course, the client should not be made to suffer – lbodo v. Enarofia. If, however he takes a deliberate decision and loses thereby, then, it is his privilege to lose and that will not constitute a right for the client for utilization as a ground of appeal. For if it were not so, the profession would be in jeopardy.

In this case, it was categorically stated in the appellant’s affidavit in support of the application of 5/10/2016 that the appellant’s counsel ‘elected; not to challenge the issues on appeal to the court below.”

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