NNPC v. Samfadek & Sons Ltd. [2018] 7 NWLR (Pt. 1617) 1 at 10-11, paras. H-C, per Eko JSC:

“Where there has been a failure of strategy or tactic on the part of the counsel, as in the instant case, the litigant, his client, cannot escape such blunders committed by his counsel; for if the strategy worked, both the counsel and his client took full credit. Accordingly, they must also take full responsibility for the failure of the strategy: Bello Akanbi v. Alao (1989) All NLR 424 at 440; 401, 444; (1989) 3 NWLR (Pt. 108) 118. Neither mischief, ineptitude nor strategic blunders are envisaged by the rule that inadvertence of counsel should not be visited on the litigant, his client. The rule cannot be applied to foist injustice on another party: Akanbi v. Alao (supra). Nor will the rule apply in a clear case of abuse of court’s process, as in the instant case. It is unjust to grant this application. Accordingly, the application is hereby refused. The respondent is entitled to costs, and taking the conduct of this litigation by the appellant/applicant’s counsel into consideration, costs assessed at N500,000.00 and payable by Kayode Sofola & Associates, a law firm headed by Kayode Sofola, SAN shall be and are hereby awarded in favour of the respondent. It is time stakeholders in administration of justice in this country realized that justice delayed by unnecessary tricks and gimmicks by all concerned correlatively affects the growth of commerce and the economy.”

Notes:

Over 21 years after the Court of Appeal, Lagos, delivered a decision, the Appellant filed a motion at the Supreme Court seeking leave to appeal the decision. By the said decision, the Court of Appeal had remitted the case to the trial Court to determine the proper compensation due to the Respondent under the Oil Pipelines Act. The Appellant did not appeal against the order of remittance at the time. Instead, the Appellant, prior to the determination of the case by the trial Court, applied to the trial Judge to decline jurisdiction to re-hear the matter remitted to it by the Court of Appeal. The application was refused. The trial Court heard the remitted suit and awarded N24 Million in favour of the Respondent.

The Appellant appealed to the Court of Appeal which affirmed the decision of the trial Court. At the Supreme Court, the Appellant sought leave to appeal the earlier decision of the Court of Appeal remitting the case to the trial Court in the first place. That was over 21 years after. The Appellant prayed in aid, the inadvertence of counsel as the reason for the delay. The Supreme Court was unmoved. It held that “inadvertence of counsel” is not a magic phrase. Eko, JSC was emphatic as quoted above.

The apex Court reasoned that inadvertence of counsel is a question of fact to be proved by the party so alleging. The Court concluded that the burden of proof was not discharged in the instant case as merely relying on inadvertence does not suffice as a substantial reason to persuade the Court to exercise its discretion in granting the application for enlargement of time. Eko, JSC noted thus: “What is alleged without proof can be denied without proof”. The Court advised that litigants must show proof that they acted promptly in instructing their counsel and that measures were taken to ensure compliance before they can be excused for any counsel’s inadvertence.

The Court also criticized the Appellant’s Counsel for filing the application praying the trial Court to decline jurisdiction to re-hear the suit remitted by the Court of Appeal, especially in the absence of any appeal against the Order of remittance. The apex Court described the strategy adopted as “both novel and disingenuous, if not bizarre”. Undoubtedly, taken into consideration the totality of the conduct of the Appellant’s Counsel, the Court rightly awarded costs to be personally paid by the Appellant’s Counsel.