LADIES OF SAINT MULUMBA, NIGERIA V MR. EDENO EKHATOR – SUPREME COURT OF NIGERIA – SC. 220/2020 – DECIDED ON THE 3RD OF JUNE 2022

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[Inadvertence of Counsel] – [Meaning of] – [When Application Will Avail a Counsel]

ISSUES FOR DETERMINATION:

  1. Whether the applicant satisfied the legal requirements to sustain the reliefs sought in its application.
  2. Whether there is a difference between the inadvertence of counsel from ineptitude of counsel.

FACTS:

The applicant as claimant, filed a suit against the respondent at the Edo State High Court, involving “a piece or parcel of land situate and known as Ward 40/B Aduwawa Area, Benin City.” At the trial Court, the Parties pleaded and tendered separate Certificates of Occupancy issued by the Edo State Government, and the issue boiled down to whether the claimant established the identity of the land in dispute. The Court of Appeal dismissed the appellant’s appeal. The Supreme Court unanimously dismissed the appeal.

HELD:

On Duty on applicant seeking extension of time to seek leave to appeal:

Where the time within which to appeal has expired, it is crucial that an applicant seeking extension of time to seek leave to appeal file for:

  1. Extension of time to seek leave to appeal;
  2. Leave to appeal; and
  3. Extension of time to appeal.

For there to be a valid appeal, the three reliefs must be granted by the court. 

On What applicant must show in application for extension of time to appeal:

In an application for extension of time to appeal, the applicant must convince the court that the delay is neither wilful nor inordinate and that there are good and substantial reasons for the failure to appeal within the prescribed period; and the grounds of appeal must prima facie show good cause why the appeal should be heard at all.

On Whether inadvertence of counsel ground for grant of extension of time:

Inadvertence of counsel can sustain an application for extension of time. The position of the law on that has not changed. The question is whether inadvertence of counsel is within limits or has crossed the line to sheer ineptitude on the part of applicant’s counsel in this matter.

NIGERIAN CASES REFERRED TO IN THE RULING:                     

NIGERIAN STATUTES REFERRED TO IN THE RULING:

  • Constitution of the Federal Republic of Nigeria, 1999, S.233 (3)(6)
  • Supreme Court Act, Cap, S. 15, Laws of Federation of Nigeria, 2004, S. 27(1)(2)(a)

NIGERIAN RULES OF COURT REFERRED TO IN THE RULING:

  • Supreme Court Rules, O. 2 31; O. 2 32

BOOK REFERRED TO IN THE RULING:

  • Black’s Law Dictionary, 9th Ed.

FULL JUDGMENT

AUGIE, J.S.C. (Delivering the Leading Judgment): 

In its judgment delivered on 31/1/2017, the trial Court held that:

“A Claimant – who fails to prove the exact location or identity of the land it claims, cannot be said to have proved his title to land. After due consideration of the entire evidence adduced, I hold that Claimants have failed woefully to prove their case on the balance of probability as required by law. Accordingly, I hereby dismiss the Claimants’ suit in its entirety as lacking in merit.”

The applicant appealed and, in its judgment delivered on 4/12/2019, the Court of Appeal compressed the issues presented by both Parties as well as their arguments into one issue for determination; that is:

“Whether the Appellant had by preponderance of evidence established the identity of the land, subject matter of the suit, and if not, whether the lower Court was right to dismiss the suit.”

It resolved the issue against the Applicant, and concluded that the Appellant failed to prove the exact location or identity of the land it claims.

The applicant failed to appeal against the said judgment within time, and 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.  The issue before the court was whether the Applicant has satisfied the legal requirements for such an application. In considering the reasons for the application deposed on the affidavit accompanying the application, the court distinguished the inadvertence of counsel from ineptitude of counsel. In holding that the application did not disclose any exceptional circumstances to warrant the Court to grant leave to appeal against such concurrent findings of the lower courts, the court noted:

“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 this Court will grant leave to appeal against such concurrent findings — see Tilbury Consttz Cox V, Ogunniyi (1988) 2 NWLR (Pt. 72) 64 wherein this Court said: Exceptional circumstances could be wide and could include misapplication of the facts in evidence, if the evidence available in Court is at variance with the findings or if the findings are patently perverse.”

In this case, I have examined the Record of Appeal and without mincing words, I will say that there is nothing that could amount to exceptional circumstances to necessitate indulging the Applicant by granting this Application in its favour.

I have also scrutinized the proposed eight Grounds of Appeal vis-a -vis the evidence adduced by the Parties and the concurrent findings of fact by the trial Court and the Court of Appeal, and being a Justice of the Supreme Court, I cannot point to one ground that will tax my intellect and reasoning faculty. See Cbikoya v. Vema (supra). The second condition is found wanting. The result is that this Application lacks merit and it is hereby dismissed. The applicant shall pay the respondent costs assessed at One Million Naira.

LIST OF COUNSEL:

B. C. Ugwu, Esq. –  for the Appellant.

Mathew Isibor, Esq. – for the Respondent.

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