“…visiting the sin of
counsel on his client is not permitted by the law courts. What is not however
tolerated is where a counsel committed all unforgivable a fundamental blunder
which affects his case, such as filing a wrong or an incompetent originating process,
there is no way the court can blind its eyes to allow the process have its way,
as such.” Okpe v. Fan Milk Plc & Anor [2017] 2 NWLR (PT 1549)
310-311
On this note, the Supreme
Court gavelled the case to rest. The Appellants in the case cited above had
urged the Supreme court to set aside the judgment of the Court of Appeal
given in favour of the Respondents on the ground that it was predicated on a
Notice of Appeal which did not state the Respondent counsel’s name but bore
only the name of the law firm. The 1st Respondent on its part argued that
neither the parties nor the Court of Appeal was misled by the content of the
Notice of Appeal and urged the Supreme Court to consider what was in the
interest of justice in determining the issue. The Supreme Court allowed the
appeal and set aside the judgment of the Court of Appeal. Clearly, the Justices
had a definition of “justice” different from what counsel to the 1st respondent
had envisaged. For them, justice was a three-way traffic - justice to the
plaintiff/appellants, the defendants/respondents and the court itself. This is
a stance which counsel are all too familiar with.
It remains that lawyers
and non-lawyers will always disagree on what constitutes justice. While
non-lawyers see justice to be served by simply considering the facts and
rewarding the deserving party, lawyers consider procedural correctness which
means that proceedings, no matter how well conducted, will amount to a nullity
if there is a breach of a cardinal rule of procedure. In the words of Lord
Denning “You cannot put something on nothing and expect it to stand”.
The real question becomes,
not whether the interest of justice is the highest consideration, but what
constitutes justice in each case. In the case of Odom v. PDP [2015] 6
N.W.L.R (PT 1456) 527, the Supreme Court emphasized that the attitude of
the Supreme Court is that whenever it is possible to determine a case on the
merit, the court will do so by refusing to cling to technicalities.
Consequently, litigants can expect that procedures and technicalities are not
so sacred as to upturn perceived justice all the time. However, prudent counsel
will ensure that their clients are not left hanging in the balance or at the
mercy of the Judge’s decision on how a procedural error will be treated.
Counsel must pay close attention to procedural matters, in the interest
of justice.
Senior Associate at Streamsowers & Kohn
Ed’s Note – This article was originally posted
here.
