Agumadu V. Agumadu: On exceptions to rule that error of counsel should not be visited on litigant. An insight into the decision of the Supreme Court therein.
Citation: (2022) 2 NWLR PT. 1813 AT 127.
Courtesy: Moruff O. Balogun Esq.
Summary of facts:
By a writ of summons filed at the High Court of Anambra State, the respondents sued the appellants, seeking declaratory reliefs in respect of a parcel of land. The appellants counter-claimed and sought declaratory, injunctive, and monetary reliefs. The trial court entered judgment in favour of the respondents in accordance with their claims and dismissed the appellants’ counter-claim. Aggrieved, the appellants appealed to the Court of Appeal.
The appeal was entered in the Court of Appeal in 2007 but as at 2011, the appellants had not filed their brief of argument.
The respondent therefore applied for the appeal to be struck out for want of diligent prosecution on due to the appellants’ failure to file their brief of argument.
The Court of Appeal struck out the appeal on 10th March 2011. Subsequently, on 15th July 2011, the appellants applied to the Court of Appeal for an order relisting the appeal.
The respondents opposed the the application. After hearing the parties, the Court of Appeal refused to grant the order.
The appellants appealed to the Supreme Court on grounds of appeal which questioned or challenged the evaluation of the facts presented by the appellants in the affidavit filed in support of the motion to relist.
Two issues were framed for determination, but there was no indication of the specific grounds from which each issue was formulated.
Held (Unanimously dismissing the appeal):
The following issues were raised and determined by the Supreme Court:
On exceptions to rule that error of counsel should not be visited on litigant –
There are exceptions to the rule that inadvertence or error of counsel should not be visited on the litigant. Failure or inadvertence of counsel to file notice of appeal within time is fatal. Where there has been a failure of strategy or tactic on the part of counsel, the litigant cannot escape such blunders committed by his counsel because if the strategy had worked, both the counsel and his client would have taken full credit. Accordingly, they must also take full responsibility for the failure of the strategy.
Mischief, ineptitude or strategic blunders are not envisaged by the rule that inadvertence of counsel should not be visited on the litigant. The rule cannot be applied to foist injustice on another party.
On when Court will penalize litigant for error of counsel –
The Court for justice sake, cannot visit the error or inadvertence of counsel on the litigant. In the instant case, the counsel to the appellants presented seemingly cogent reasons for the failure to file the appellants’ brief of argument within the time stipulated by the Court of Appeal Rules, which were tilted towards the mistake of counsel, and thus should not be visited on the appellants to warrant the order of striking out the appeal for want of diligent prosecution.
The Court of Appeal, however, considered the reasons for the appellants’ default and judicially and judiciously struck out the appeal for want of diligent prosecution. Furthermore, there are mistakes of counsel that the litigant must inescapably bear. The present case unfortunately falls within the sphere of such mistakes.
On when rule that errors of counsel ought not to be visited on litigants will not avail a party –
Although the mistakes of a counsel ought not to be visited on the litigants, the appellants herein showed a total lack of interest, seriousness and commitment towards the prosecution of the appeal. After they changed their counsel in 2009, they did not find out the status of their appeal until it was struck out in 2011. Therefore, their argument about not visiting the mistakes of counsel on the litigant did not avail them.
On need to obey rules of court –
Parties in an appeal and the Court of Appeal both have the duty to abide by, comply with and obey the Court of Appeal Rules in the prosecution of appeals since they are bound by the Rules.
On circumstances under which an appeal may be dismissed and whether appeal dismissed by Court of Appeal for failure to file appellant’s brief or argument can be relisted –
The Court of Appeal Rules provide for the dismissal of an appeal in the following circumstances:
(a) Where there is non-compliance with the conditions of appeal.
(b) Where the appellant fails to appear when his appeal is called on for hearing.
(c) Where the appellant fails to file his brief of argument within the period prescribed by the Court of Appeal Rules or within the time extended by the court.
The three situations enabling application for the dismissal of an appeal are different. Non- compliance with conditions of appeal is different from non-appearance of the appellant. The two are different from failure to file appellant’s brief of argument.
While there are provisions for an appeal dismissed under the first two to be relisted, there is no provision in Order 6 enabling the re-listing of an appeal dismissed for failure to file appellant’s brief of argument under Rule 10.
In the instant case, the Court of Appeal correctly held that any order of dismissal or striking out for failure to file appellant’s brief of argument amounted to a final decision of the court, which the court lacks jurisdiction to reconsider or set aside. Therefore, the Court of Appeal had no jurisdiction to relist the appellants’ appeal.
On proper step for respondent where appellant fails to file brief of argument –
Where an appellant, as in the present case, fails to file his brief within the time provided or within the time extended by the court, the respondent may apply to the court for the appeal to be dismissed for want of prosecution.
On effect of failure to obtain leave to appeal where required –
Where leave of court is required for an appeal, but none is obtained, the condition precedent to the validity of such an appeal has not been fulfilled and as a result the appeal is incompetent and the appellate court is without jurisdiction to entertain same. In the instant case, all the grounds of appeal in the notice of appeal filed in the Supreme Court were, at best, grounds of mixed law and fact. But the appellants failed to obtain the requisite leave before filing the appeal. Thus, the appellants’ notice of appeal was incompetent. Consequently, the appeal was incompetent and thus struck out.
On whether appeal dismissed by Court of Appeal for failure to file appellant’s brief can be relisted –
By the provisions of Order 6 rule 10(2) of the Court of Appeal Rules, 2007 (same as Order 19 rule 10 (2) of the Court of Appeal Rules, 2016), an appeal dismissed by the Court of Appeal because of the appellant’s failure to file his brief of argument within the time provided for in the rules or as extended by the court, cannot subsequently be relisted or restored on the cause list for determination by the Court of Appeal.
An appeal dismissed by the Court of Appeal for failure to file appellant’s brief of argument is final and cannot be revived by the Court of Appeal. No court has the jurisdiction to revive appeal dismissed for want of prosecution on ground of failure by the appellant to file a brief of argument within the time stipulated by the rules of court or as extended by the court. The Supreme Court lacks the requisite jurisdiction to order the re-listing or restoration of the appellants’ appeal on the cause list of the Court of Appeal.
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.