Fear Not! Mistake of Counsel is still an Excuse
By Temitope Oyeyemi
The Supreme Court case of Ali Alaba Int’l Ltd v. Sterling Bank Plc (2018) sent panic shocks to many litigants and lawyers. The robust language of the Supreme Court appeared to show an absolute intolerance for tardiness in failures to meet the stipulated procedural deadlines and the excuse of “mistake and negligence of counsel”.
In this case, the Appellants failed to file their brief of argument, 6 years after the Notice of appeal was filed. The Court of Appeal, before whom the appeal was, dismissed the appeal for want of the Appellants’ diligent prosecution of the appeal. The Appellants appealed to the Supreme Court and blamed their failure to file the brief of argument on mistake and negligence of counsel. Their story was that their counsel was appointed a Magistrate in Adamawa State and he had failed to inform them of that development, hence their counsel’s inability to adequately conduct the appeal. The Supreme Court was not pleased with that excuse, and did not consider the excuse a good reason to extend the deadline for filing the brief of argument.
On the face of the Judgment, it appeared that the mistake of counsel was no longer a good reason to extend deadlines. It also appeared that the Supreme Court had departed from its prominent precedent in Long John v. Blakk (1998) which had found the mistake of counsel as a good reason.
Long John dealt with the same facts as Ali Alaba Int’l Ltd. The Appellants in Long John did not file their brief of argument before the expiration of the deadline. The Appellants employed the “mistake and negligence of counsel” excuse, and that on account of that mistake and negligence, the record of appeal was lost. Without this record, the brief could not be filed. The Supreme Court accepted that as a good reason.
In Long John, the litigant was not found wanting by his conduct because the Supreme Court found evidence to show that the litigants were in communication with their lawyers in the prosecution of their appeal. Whereas in Ali Alaba Int’l Ltd, the Appellants did not prove that they acted diligently, over the 6 years the case was pending at the Court of Appeal.
From the foregoing, it is evident that the conduct of a litigant is as important as that of his lawyer. If the litigant is found as negligent as his lawyer, in causing a delay to meet the deadline, it is unlikely the court would extend the deadline.
As such, a litigant who does not sleep on its rights and who acts diligently, is entitled to employ the excuse of “mistake of counsel” to extend procedural deadlines.