- April 7, 2019
- Posted by: Stephen Azubuike
- Category: Case Law Blog
Malari v. Leigh  3 NWLR (Pt. 1659) 332 at 368, para. G, per I. T. Muhammad, JSC:
“It is foolhardy for a counsel representing a party, where it is shown that he has other qualified counsel in his firm, to claim that the matter he is handling in Court cannot go on because he is sick.”
It is a well known fact that one of the commonest reasons furnished by lawyers seeking an adjournment in a case on behalf of their client is indisposition. Same reason sometimes goes when they seek an enlargement of time within which to file a court process (court papers) or perform a particular task mandated by the Rules of Court. This is because the courts consider this a cogent reason and would have no difficulty granting an application for adjournment or extension of time in such circumstance.
Interestingly, it is expected that no person in his or her right senses would ordinarily claim to be ill when the contrary is the case. More so, lawyers are expected to be persons of high integrity especially when speaking from the Bar. Unfortunately, some lawyers today now exploit ‘illness’ to their ‘advantage’ whenever they are unable to attend court (or when court attendance is not desirable) or when they are unable to timeously file a court process.
In the case of a lawyer practising alone, it is easier for the courts to accommodate an application for adjournment or extension of time whenever the lawyers claims he was ill. However, when the lawyer is practising in a firm of lawyers, it is expected that another lawyer in chambers would step in and continue the case. This is the import of the position of the Supreme Court in the instant case of Malari v. Leigh and other similar cases. One compelling situation that the court may consider is when other counsel in chambers are ordinarily engaged in other courts on a particular date the matter was slated for, thereby making it impossible for any other lawyer to attend court. In which case, an application for adjournment may be granted.
In worse cases, we have seen some parties to a case insisting that a particular lawyer in chambers must handle their cases. The Supreme Court was emphatic in explaining the danger in such adventure. I. T. Muhammad, JSC puts it succinctly thus:
“It is even more dangerous where a party or litigant insists that only a particular counsel from a law firm that must handle his matter in Court, although he has the Constitutional right to have a counsel of his choice. What of if, God forbids, that counsel dies or is permanently indisposed? This, I believe is one of the few instances where a party must take a quick, effective and spontaneous decision in relation to the way and manner counsel handles his case. Otherwise, he must bear the consequence of the inaptitude, negligence or any act of God befalling his chosen counsel. Mistake, inadvertence and sickness of counsel should always be distinguished from ineptitude, complete ignorance or malfeasance exhibited by counsel.”
In the instant case of Malari v. Leigh, the Appellants filed an application at the Supreme Court for an extension of time within which to seek leave to appeal a Ruling of the Court of Appeal. The application was filed about 5 years, 3 months and 12 days after the Ruling. The reasons furnished by the Appellants/Applicants for the delay in filing the application include unsubstantiated claim of illness of the 2nd Applicant who was solely mandated to engage the services of counsel to prosecute the appeal and also, the indisposition of the Applicants’ Counsel. The apex Court dismissed the application holding that the Applicants had the liberty to assign someone else to step into the shoes of the 2nd Applicant. As for the Counsel reported to be ill, the Court was not persuaded in the face of evidence that he was practising in a firm of lawyers.