MR JOEL O. KOMOLAFE & 2 OTHERS  V. THE CHAIRMAN NATIONAL POPULATION COMMISSION & 2 OTHERS (CA/A/458/2010) [2014] 10 (11 March 2014);

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  • MR JOEL O. KOMOLAFE & 2 OTHERS  V. THE CHAIRMAN NATIONAL POPULATION COMMISSION & 2 OTHERS (CA/A/458/2010) [2014] 10 (11 March 2014);

In The Court of Appeal

(Abuja Judicial Division)

On Tuesday, the 11th day of March, 2014

Suit No: CA/A/458/2010

 

Before Their Lordships

 

AMIRU SANUSI

....... Justice, Court of Appeal

ABUBAKAR DATTI YAHAYA

....... Justice, Court of Appeal

MOORE A. A. ADUMEIN

....... Justice, Court of Appeal

 

 

 Between

1. MR JOEL O. KOMOLAFE (COMMUNITY LEADER) 
2. CHAIRMAN ORIADE LOCAL GOVERNMENT AREA 
3. ORIADE LOCAL GOVERNMENT AREA 
(For themselves and on behalf of the entire members and residents of various communities and localities within Oriade Local Government Area of Osun State)

Appellants

 

 

 And

    

1. THE CHAIRMAN NATIONAL POPULATION COMMISSION 
2. THE NATIONAL POPULATION COMMISSION 
3. THE ATTORNEY GENERAL OF THE FEDERATION

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

PRACTICE AND PROCEDURE - APPLICATION FOR EXTENSION OF TIME: The general principles which govern the grant or refusal for an application for extension of time

 

 

"In the case of Mr. Shittu Akinpelu v. Ebunola Adegoke & 3 Ors. (2008) 10 NWLR 6 NWLR (Pt. 1096) 531 at 568-569, per Aderemi, JSC the Supreme Court stated the general principles which govern the grant or refusal of an application for extension of time to take procedural steps as follows: "All I need say here if only for the purpose of expounding the principles of law guiding the grant or refusal of this type of application, is that, when a court is invited to make an order extending the time within which to do certain things such as extending the time prescribed by the Rules of Court for taking certain procedural, steps, the court, prima facie, be obeyed. Thus, to justify the court exercising its discretion in extending the time which is prescribed by Rules of Court to do certain procedural acts, there ought to be materials, call some depositions, in the supporting affidavit explaining the delay in taking timeously, such procedural steps; as Edmund Davies C. J. said in Revici v. Prentice Hall Incorporated and Ors (1969) 1 A.E.R. 772 quoted with approval by this court in the well-known case of N. A. Williams & Ors v. Hope Rising Voluntary Society (1982) 1 All N.L.R. (Pt.1) 1, our locus classicus on this issue of procedural law thus and I quote him; "if no excuse is offered no indulgence shall be granted."" Therefore, an application for extension of time to carry out or do something required by the procedural rules of court to be done within a limited period of time is not granted merely because a party has applied for it. There must be good, cogent and meritorious reasons for the failure to act within the specified time." Per ADUMEIN, J.C.A. (Pp.17-18,paras.E-F) - read in context

 

 

 

 

2

COURT - DUTY OF COURT: Whether a court has the duty/power to speculate

 

 

"This court, being a court of law, cannot speculate on these facts. That a court of law cannot speculate on anything, see the cases of Ikenta Best (Nig.) Ltd v. Attorney-General, Rivers State (2008) NWLR (Pt.1084) 612 and Ejezie v. Anuwu (2008) 12 NWLR (Pt.1101) 446." Per ADUMEIN,J.C.A. (P.23,paras.A-B) - read in context

 

 

 

 

3

PRACTICE AND PROCEDURE - MISTAKE OF COUNSEL: Whether the mistake of a counsel can be visited on the party

 

 

"I agree with the appellants' submission that inadvertence, negligence or mistake of a party's counsel should not be visited on the party. See Doherty v. Doherty (1964) All NLR 299; Ahmadu v. Salawu (1974) 11 SC 43; Bowaje v. Adediwura (1976) 6 SC 143 and Central Bank of Nigeria v. Saidu Ahmed (2001) 11 NWLR (Pt.724) 369. However, whenever a party raises a plea of "mistake of counsel", "inadvertence of counsel", "negligence of counsel" as reason for failure to do an act within a prescribed period of time, it must be shown to the satisfaction of the court that the delay was actually occasioned by counsel. See Akinpelu v. Adegoke (supra) at 555, para. F." Per ADUMEIN,J.C.A. (P.23,paras.C-F)

 

 

 

 

4

PRACTICE AND PROCEDURE - RULES OF PROCEDURE: The essence of the rules of procedure/court

 

 

"The rules constitute a guiding light to the court and parties in the adjudication process with a view to ensuring that justice is done not arbitrarily but in accordance with laid down procedure. Therefore rules of procedure, such as the Third Schedule to the National Population Commission Act as emphasized by the Supreme Court in Dangote General Textile Products Ltd. & 2 Ors. v. Hascon Associates Nig. Ltd. & Anor. (2013) 16 NWLR (Pt. 1379) 60 at 90, para B per Ogunbiyi, JSC "are not meant to be "tyrannical and uncompromising matters"". In the case of Alhaji Atiku Abubakar & Ors. v. Alhaji Umaru Musa Yar'adua & Ors. (2008) 4 NWLR (Pt.1078) 465 at 511, paras D - G per Tobi, JSC where the Supreme Court held that: "Rules of court are meant to be obeyed. Of course, that is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their obedience cannot or should not be slavish to the point that justice in the case is destroyed or thrown overboard. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties. Therefore, if in the course of doing justice, some harm is done to some procedural rule which hurts the rule, such as paragraph 7 of the practice Directions, the court should be happy that it took that line of action in pursuance of justice. This court cannot myopically or blindly follow the Practice Directions and fall into a mirage and get physically and mentally absorbed or lost. Let that day not come." Per ADUMEIN, J.C.A. (Pp.16-17,paras.A-A)

 

 

 

 

 

 

 

 MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellants were the complainants at the Census Tribunal 'C' sitting in Abuja, wherein they filed a motion on notice on the 30th day of October 2009,praying for the following orders: 

1. An order extending time within which to present a complaint on behalf of residents and indigenes of Oriade Local Government, Osun State.

2. An order deeming the complaint already filed and served by indigenes and residents of Oriade Local Government Area of Osun State as properly filed and served, appropriate fees having been paid. 

3. And for such further orders as the Tribunal may deem fit to make in the circumstances.

The parties were heard and the Honourable Chairman of the Census Tribunal in a ruling delivered on the 14th September,2010 refused the application, as the action was statute-barred. 

This appeal is against the said ruling. Briefs were filed and exchanged between the parties.

The counsel to the appellants formulated three (3) issues for determination,namely: 

1. Whether, in the light of Section 28(1) of the National Population Commission Act and the inherent jurisdiction of the court, the Tribunal is not empowered to grant extension of time. 

2. Whether it is proper, lawful and appropriate to deliver a single ruling in respect of three different applications by different applicants though consolidated.

3. Whether, considering the circumstances of this case, the Attorney-General of Osun State is not a counsel to the applicants/appellants whose mistake, omission or inadvertence should not be visited on the innocent applicants/appellants.

The learned counsel to the 1st and 2nd respondents adopted the appellants' 2nd and 3rd issues but framed their 1st issue as follows:

1. Whether the Tribunal has the competence to grant extension of time to file complaint after six months as provided under paragraph 2 of the Third Schedule to the Act given the limiting provision of paragraph 39(1).

The 3rd respondent adopted the 1st and 2nd respondents' first issue and also adopted the appellants' 2nd and 3rd issues. 

The issues identified by the parties are basically the same.  However, for the sake of brevity, I adopt the issues as framed by the appellants. Issues 1 and 3 will be taken and treated together.

ISSUES 1 AND 3

The learned counsel for the appellants submitted that jurisdiction is the live-wire of judicial proceedings and every exercise of judicial power must be situated within the powers derived from law by the court.
Learned counsel referred to Section 28 sub-sections (1) and (7) of the National Population Commission Act and submitted that 3rd Schedule to the Act "is meant to be rules of procedure, cannot operate to oust, restrict or negate the jurisdiction conferred on the Tribunal by the Act. A schedule like the 3rd Schedule cannot be given preference against the provision of the main Act." The learned counsel to the appellants relied on the cases of Oputeh v. Ishida (1993) NWLR (Pt.279) 34 at 53; Afolayan v. Bamidele (1999) 3 NWLR (Pt.595) 454 at 462; Federal Civil Service Commission v. Loaye (1989) 2 NWLR (Pt. 106) 652 at 711 on the role and purpose of Schedules in construing the provisions of a statute.

The counsel to the appellants further submitted that the interpretation and application given by the trial Census Tribunal to the 3rd Schedule as it related to whether or not the Tribunal had jurisdiction to grant extension of time was most unwarranted and against the spirit of justice, considering the circumstances of the application as borne out in the affidavit in support of the application. 

The appellants argued that paragraph 39(1) of the 3rd Schedule to the National Population Commission Act had given discretion to the Tribunal in matters of extension of time. 

The Act, according to them, did not exclude the power of extending time to file complaint. They contended that the Tribunal was in error in holding that it entirely lacked jurisdiction to extend the time to file fresh complaint after 6 months. They cited the following in support of their argument:Olaniyan v. Oyewole (2008) All FWLR (Pt.399); Alhaji Atiku Abubakar & Ors. v. Alhaji Umaru Musa Yar'adua & Ors (2008) 4 NWLR (Pt.1078) 465 at pages 511-512. 

 

The arguments of the learned counsel for the 1st and 2nd respondents and those of the learned counsel for the 3rd respondent are basically the same. All the respondents predicated their arguments on the provisions of paragraph 39(1) of the Third Schedule to National Population Commission Act which empowers the Census Tribunal to enlarge time and they contended that the jurisdiction to enlarge time is expressly limited because it is subject to paragraphs 2 and 15 of the Schedule." Relying on the cases of Aqua Ltd. v. Ondo State Council (1988) 4 NWLR (Pt.91) 622; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 580 and Idehen v. Idehen (1991) 6 NWLR (Pt.198) 382 at 419 the respondents submitted that:

"...where the expression "subject to" is used in a provision in a statute, the part to which the provision is subjected governs, limits and controls that section."

On Issue 3, the learned counsel for the appellants cited Section 195(1) of the 1999 Constitution which provides:

"There shall be an Attorney-General for each state who shall be the Chief Law officer of the State and Commissioner for Justice of the Government of that State. "

He further submitted that the Attorney-General of Osun State is holding the position of counsel to the entire public of Osun State to whom he has a duty to advise on the legal implication of events like the conduct of Census. And that it is an error for the Tribunal to hold that the Attorney-General of Osun State is not counsel to the applicants and his mistake, delay of inadvertence is not that of counsel that may be excused.

The learned counsel for the appellants submitted that there was unchallenged and uncontroverted evidence before the Tribunal that the applicants along with the other Local Government Councils of Osun State submitted all the case files and materials to the Attorney General of Osun for advice and appropriate action and that the office of the Attorney-General did advise that a complaint be filed and an external solicitor be engaged. They contended that similar files were subsequently transferred to an external counsel and the file of the applicants/appellants was omitted in the process. 

Learned counsel placed reliance on Ndoma-Egba v. Government of Cross River State (1991) 4 NWLR (Pt.188) 733 at 788, Adewunmi Ogunbowale (1983) 4 NWLR 662; Bowaje v. Adediwora (1976) 6 SC 143 to buttress the argument that a mistake of counsel should not be visited on his client. 

He further submitted that the Attorney-General of Osun State held the position of counsel to the appellants/applicants, who were community leaders complaining against the conduct of the 2006 Census in their Local Government, on behalf of the entire indigenes and residents of the Local Government Area. The mistake, omission or inadvertence of the Attorney-General of Osun State should therefore be properly treated as the excusable mistake of counsel, the weight of which the litigant should not be made to bear. Reliance was placed on Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118 at 140A, Amaechi v. INEC & 2 Ors. 1 S.C. (Pt.1) 36 at 99-100.
 

The learned counsel for the 1st and 2nd respondents and the learned counsel for the 3rd respondent submitted that the Attorney-General of Osun was not the counsel to the appellants in proceedings or any other related proceedings. Learned counsel contended that in fact as deposed to in the appellants' affidavit, it was Attorney-General of Osun State who instructed the counsel for the appellants. In any case, they argued that: "Assuming without conceding that the Attorney-General was counsel cannot operate to salvage a suit that is statute barred as there is no claim left, the cause of action having being stripped of every semblance of a cause, and therefore cannot be litigated upon. The reason for the failure to pursue a cause within time is irrelevant."

The submission of the respondents that the expression "subject to" is a way of the Legislature saying that the part or portion of the statute which the particular provision is subordinated controls, governs and limits the scope of the provision containing the very expression - "subject to" has judicial backing by the decisions of the Supreme Court and even this court.
 

The Census Tribunals are established under Section 28 of the National Population Census Act of which subsection (1) is hereunder reproduced as follows:

"28(1) There shall be established in designated centres, Census Tribunals to hear complaints and Objection to Census results as they relate to specific Local Government Areas or localities." 

The Census Tribunal, therefore, is a special tribunal established by law to hear and determine "complaints and objections to census results" and by paragraph 2 of the Third Schedule to the National Population Commission Act a complaint ought to be "presented within six months after the date on which the result is released."

The respondents have contended, by their interpretation of paragraphs 2, 15 and 39(1) of the Third Schedule to the National Population Commission Act, that the time limited under paragraph 2 cannot be extended by the Census Tribunal. In other words, under no circumstance can a complaint be presented beyond 6 (six) months after the result of a census is released. 

For the avoidance of any doubt, paragraphs 2, 15(1) and 39(1) of the Third Schedule to the National Population Commission Act are hereunder reproduced:

"2. Time for presentation

A complaint to a census result shall be presented within six months after the date on which the census result is released."

"15. Amendment of complaint

(1) In relation to service of reply on other party, the amendment of a complaint, the provisions of the relevant provisions of the Civil Procedure Rules or the Civil Procedure Code, relating to amendment of pleading, shall apply as if for the words "any proceeding" in those provisions there were substituted, the words "the complaint or the reply if any", provided that, after the expiry of the time limited by paragraph 2 of this Schedule for presenting the complaint, no amendment shall be made introducing any fresh request in the complaint, or effecting any alteration of substance in the request, or (saving anything which may be done under the provisions of sub-paragraph (2) of this paragraph), effecting any substantial alteration in or addition to the statement of facts and grounds relied upon to sustain the request"

"39(1) The Tribunal shall have power, subject to the provisions of paragraphs 2 and 15 of this Schedule, to enlarge or abridge the times appointed by this Act or the rules of court mentioned in paragraph 14 of this Schedule or fixed by any order enlarging time, for doing any act or taking any proceeding upon such terms (if any) as justice of the case may require"

It should be observed that Section 28(7) of the National Population Commission Act provides that:

"The rules of procedure to be adopted by the Census Tribunal in hearing complaints and objections to Census results shall be as set out in the Third Schedule to this Act."

Therefore, the provisions of the Third Schedule to the National Population Act are the rules of procedure of the Census Tribunals. A community reading of the provisions of the Third Schedule to the National Population Commission Act, especially paragraphs 2, 15 and 39(1) thereof, may give a surface impression that the time for presenting a complaint cannot be extended by a Census Tribunal and that after the time so prescribed has expired a complaint cannot be amended to introduce "fresh request in the complaint" or effect "any alteration of substance in the request" or effect "substantial alteration in or addition to the statement of facts and grounds relied on to sustain the request". A cursory examination of the provisions of the Third Schedule to the National Population Commission Act will also leave one with an impression that the provisions are similar to those set out in the various Electoral Acts (repealed and exant) governing election petitions which the courts have described as sui generis. However, unlike the Electoral Acts, the National Population Commission Act and the Third Schedule thereto do not have provisions specifically limiting the time for hearing and determining census complaints and the time to lodge appeals to the relevant appellate courts. Therefore, it may not be safe to give the provisions of paragraphs 2 and 39(1) of the Third Schedule strict interpretation that will lead to manifest injustice in cases with special facts and peculiar circumstances.

The provisions of the Third Schedule to the National Population Commission Act, as stated earlier, are rules of procedure which are meant to be obeyed. The rules constitute a guiding light to the court and parties in the adjudication process with a view to ensuring that justice is done not arbitrarily but in accordance with laid down procedure. Therefore rules of procedure, such as the Third Schedule to the National Population Commission Act as emphasized by the Supreme Court in Dangote General Textile Products Ltd. & 2 Ors. v. Hascon Associates Nig. Ltd. & Anor. (2013) 16 NWLR (Pt. 1379) 60 at 90, para B per Ogunbiyi, JSC "are not meant to be "tyrannical and uncompromising matters"".In the case of Alhaji Atiku Abubakar & Ors. v. Alhaji Umaru Musa Yar'adua & Ors. (2008) 4 NWLR (Pt.1078) 465 at 511, paras D - G per Tobi, JSC where the Supreme Court held that:

"Rules of court are meant to be obeyed. Of course, that is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their obedience cannot or should not be slavish to the point that justice in the case is destroyed or thrown overboard. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties. Therefore, if in the course of doing justice, some harm is done to some procedural rule which hurts the rule, such as paragraph 7 of the practice Directions, the court should be happy that it took that line of action in pursuance of justice. This court cannot myopically or blindly follow the Practice Directions and fall into a mirage and get physically and mentally absorbed or lost. Let that day not come."

Without laboring over the matter, I am of the view that the Census Tribunal has the jurisdiction, in exceptional and peculiar cases, to extend the time for presenting a complaint under paragraph 2 of the National Population Commission Act. The discretion to grant or refuse an application for extension of time, however, must be exercised judicially and judiciously, having regard to the peculiar facts and circumstances of each case.

Having regard to the facts and circumstances of this matter, can it be said that the appellants made out a case for extension of time to present their complaint before the Census Tribunal?

In the case of Mr. Shittu Akinpelu v. Ebunola Adegoke & 3 Ors. (2008) 10 NWLR 6 NWLR (Pt. 1096) 531 at 568-569, per Aderemi, JSC the Supreme Court stated the general principles which govern the grant or refusal of an application for extension of time to take procedural steps as follows:

"All I need say here if only for the purpose of expounding the principles of law guiding the grant or refusal of this type of application, is that, when a court is invited to make an order extending the time within which to do certain things such as extending the time prescribed by the Rules of Court for taking certain procedural, steps, the court, prima facie, be obeyed. Thus, to justify the court exercising its discretion in extending the time which is prescribed by Rules of Court to do certain procedural acts, there ought to be materials, call some depositions, in the supporting affidavit explaining the delay in taking timeously, such procedural steps; as Edmund Davies C. J. said in Revici v. Prentice Hall Incorporated and Ors (1969) 1 A.E.R. 772 quoted with approval by this court in the well-known case of N. A. Williams & Ors v. Hope Rising Voluntary Society (1982) 1 All N.L.R. (Pt.1) 1, our locus classicus on this issue of procedural law thus and I quote him;

"if no excuse is offered no indulgence shall be granted.""

Therefore, an application for extension of time to carry out or do something required by the procedural rules of court to be done within a limited period of time is not granted merely because a party has applied for it. There must be good, cogent and meritorious reasons for the failure to act within the specified time.

In the instant appeal, from the available records, the census exercise was conducted throughout Nigeria from 21st day to the 27th day of March, 2006 and the result was published in the Official Gazette of the Federal Republic of Nigeria on the 2nd day of February, 2009. The period for filing complaints, therefore lapsed on or about the 2nd day of August, 2009. However, by a motion dated the 30th day of October, 2009 and filed in the Registry of the Census Tribunal on the same day, the appellant sought an extension of time to present their complaint. The affidavit in support of the said application is reproduced hereunder:

"AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE

I, Teniola Ojuolape, Female, Christian, Nigerian Citizen of Adegboyega Awomolo & Associates plot 252A Herbert Macaulay Way, CBD, Abuja, of (sic) do make oath and state as follows:

1. That I am Legal Practitioner in the Law firm of Adegboyega Awomolo & Associates, counsel to the complainants/applicants in this petition; 

2. That by virtue of my schedule of work I am quite familiar with the facts of this case and I have authority of my employer and the complainant to depose to this affidavit.

3. That sometime in July 2009, the Attorney-General and Commissioner of Justice of Osun State instructed the Law firm of Adegboyega Awomolo & Associates to present petitions before the Tribunal on behalf of 21 Local Government Councils in Osun State who were dissatisfied with the published 2006 Census results of the National Population Commission, Abuja; 

4. That petitions were presented before the Tribunal on behalf of the 21 Local Government;

5. That however sometime in October 2009, the Office of the Attorney-General vide letter dated 23rd October, 2009 brought to the attention of the law firm of Adegboyega Awomolo & Associates that they omitted in sending the case file of Oriade Local Government, Osun State;

6. That the Office of the Attorney-General, Osun State instructed the law firm to present a petition in respect of Oriade Local Government; 

7. That a photocopy of the letter from the Office of the Attorney-General authorizing same is herewith marked and annexed as Exhibit Census 1.

8. That I am aware that the time to present fresh petitions before this Honourable Tribunal is out of time;

9. That I need the leave of the Tribunal to present fresh petitions out of time and such leave is at the discretion of the Tribunal;

10. That the complaint on behalf of Oriade Local Government is herewith attached and marked as Exhibit Census 2;

11. That the respondents shall not be prejudiced whatsoever if this application is granted;

12. That I depose to this affidavit in accordance with the Oaths Act. 1990."

The letter referred to in paragraph 5 of the affidavit - exhibit CENSUS 1 dated 23rd October, 2009 is also reproduced as follows:

"Office of the Hon. Attorney-General & 

         Commissioner for Justice

Ministry of Justice

P.M.B. 4424,                  E-mail: osjustice @infoweb.abs. net

Osogbo,                         Date.......28th September 2009

Osun State, Nigeria

Our Ref: 3.12/64/89

Chief Adegboyega Awomolo, SAN

Adegboyega Awomolo & Associates

Maina Court

Central Business District

Abuja

RE: CENSUS PETITION CASES INVOLVING OSUN STATE LOCAL GOVERNMENT COUNCILS AT THE CENSUS PETITION TRIBUNAL, ABUJA

You will recall that your Chambers was sometime in July 2009, instructed to file petitions on behalf of the Local Government Councils in Osun State who were dissatisfied with the published Census results at the Census Tribunal in Abuja."
 

2. However, recently while going through our records, we have just discovered that we did not send along for filing to your chambers, the briefings which would have enabled your chambers to file petitions in respect of the Atakumosa East and Atakumosa West Local Government Areas in the State. Our inability to send the said briefings is regretted.

3. It is now our wish, having discovered the error, to instruct you to file the petitions in respect of the aforementioned councils before the Census Tribunal.

4. Kindly use your best endeavour to persuade the Tribunal to allow the petitions in respect of the said councils to be filed out of time. 

The necessary documents which will enable your chambers to file the petitions are hereby attached.

Thanks.

Yours faithfully,

Sgd

Hon. Niyi Owolade

Hon. Attorney-General, Osun State"

As can be seen from the evidence in support of the appellants' application, the deponent "Teniola Ojuolape" is a legal practitioner in the law firm of "Adegboyega Awomolo & Associates" - the counsel representing the appellants. There is no direct evidence from the appellants stating the particular counsel they briefed to present their complaint. There is no evidence as to the date they briefed the counsel or solicitor or even the Honourable Attorney-General of Osun State to present their complaint to the Census Tribunal. This court, being a court of law, cannot speculate on these facts. That a court of law cannot speculate on anything, see the cases of Ikenta Best (Nig.) Ltd v. Attorney-General, Rivers State (2008) NWLR (Pt.1084) 612 and Ejezie v. Anuwu (2008) 12 NWLR (Pt.1101) 446.

The appellants have argued strenuously that mistake of counsel should not be visited on them. I agree with the appellants' submission that inadvertence, negligence or mistake of a party's counsel should not be visited on the party. See Doherty v. Doherty (1964) All NLR 299; Ahmadu v. Salawu (1974) 11 SC 43; Bowaje v. Adediwura (1976) 6 SC 143 and Central Bank of Nigeria v. Saidu Ahmed (2001) 11 NWLR (Pt.724) 369.

However, whenever a party raises a plea of "mistake of counsel""inadvertence of counsel","negligence of counsel" as reason for failure to do an act within a prescribed period of time, it must be shown to the satisfaction of the court that the delay was actually occasioned by counsel. SeeAkinpelu v. Adegoke (supra) at 555, para. F.
 

From the facts of this case, the appellants have not been able to show that they were not indolent in pursuing their complaint. The Honourable Attorney General of Osun State is not the appellants' counsel in this case, as he did not initiate any process in the Census Tribunal or this court on behalf of the appellants. The purported letter of the Attorney General of Osun State, heavily relied on by the appellants, has not been conclusively shown to be a letter duly authored and signed by the said Attorney General as the letter, a public document, is not a certified true copy of the original letter as mandated by the provisions of the Evidence Act.

In any case, the appellants' counsel on record - Adegboyega Awomolo & Associates" have not admitted inadvertence, mistake or negligence on their own part.

It is not every claim of mistake of counsel that will excuse a party to legal proceeding from the penalty for failure to act within a time specified by a statute or rules for doing an act. If the party, as in this case, has been indolent about pursuing his matter, a court of law will be of no assistance to him merely because he alleges mistake of counsel.

The appellants have not given any cogent and compelling reason why they could not present their complaint within time. Their application to present their complaint out of time had no merit and it was rightly refused by the Census Tribunal.

The purported complaint was statute-barred and it was properly struck out by the Census Tribunal.

These two issues are hereby resolved against the appellants.

ISSUE TWO

The learned counsel for the appellants submitted that consolidation of cases "is an administrative tool aimed at ensuring speedy and convenient disposal of matters which have some common question of law or facts or the reliefs claimed are similar or arose from the same transaction or some other reason makes it desirable to consolidate."  It was further submitted that consolidation "is for purpose of joint hearing only" and that decisions should be given distinctly and individually. On this point, learned counsel relied on Afoeziola v. Nwokoro (1999) 8 NWLR (Pt.165) 393 at 405, Enigwe v. Akaigwe (1992) 2 NWLR (Pt.228) 505 at 535, Nwonyanwu v. Nweke (1995) 5 NWLR (Pt.394) 277 at 240.

The learned counsel for the appellants also submitted that the procedure of delivering a single decision, which did not take the evidence and peculiar circumstances of each application into consideration, as done by the Tribunal in this case considering the position of the law as borne out in innumerable decisions of the Supreme Court including the one herein cited, no valid decision had been made in respect of this application. 

He further submitted that if the decision of the Tribunal was allowed to stand, the appellants would be made to perpetually suffer the result of the miscarriage of justice which must have resulted from the prejudice arising from the circumstances of the other matters upon which the single decision was delivered.

 The learned counsel for the 1st and 2nd respondents and the learned counsel for the 3rd respondent conceded that it is the law that "one judgment in a consolidated suit is not proper in law." They however, submitted that if issue one was resolved against the appellants, it would become largely academic and there would be nothing to be heard in court.
I agree with the submissions of the learned counsel for the respondents that this issue is now academic, as issues 1 and 3 have been resolved against the appellants. In any case, it is not every error committed by a trial court that will warrant its decision or judgment to be upturned or set aside on appeal. For a judgment to be set aside, the mistake committed by the trial court must be substantial and it must have occasioned a miscarriage of justice. See Gbaniyi Osafile v. Paul Odi & Anor (1990) 3 NWLR (Pt.136) 130.

In the instant case, although the Census Tribunal ought not to have delivered a single ruling on the consolidated applications, the error or mistake did not occasion a miscarriage of justice. 

In view of all that I have stated in this judgment, this appeal lacks merit and it is hereby dismissed.

No order for costs.
 

AMIRU SANUSI, J.C.A.: I agree.

ABUBAKAR DATTI YAHAYA, J.C.A.: I had the privilege of reading in advance, the judgment of my learned brother Adumein JCA just delivered. I agree entirely with his conclusion that the purported complaint was statute-barred and it was therefore properly struck out by the Census Tribunal. Furthermore, no cogent and compelling reasons were furnished as to why the complaint was not presented to the Census Tribunal on time. The appeal has no merit and I too dismiss it. No order as to costs.

 

     Appearances       

Mrs. Sunday Tadaferua

For the Appelants

       

Isaac Folorunso, Esq. with Olaoluwa Ajoni, Esq. for the 1st and 2nd respondents. 
Akobueze Osi, Esq. for the 3rd respondent.

For the Respondents