LEGAL PRINCIPLE: APPELLATE PRACTICE – Distinction Between Counsel’s Decision and Counsel’s Mistake – Relevance to Extension of Time Applications
PRINCIPLE STATEMENT
A distinction between a counsel's decision not to appeal and mistake in failing to appeal may be valid where a decision not to appeal evinces an unmistakable intention to accept the judgment or not to complain by appellate process against it. It is not valid where, in a case like the present, counsel believed that he could challenge the interlocutory decision on an appeal from the final decision.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Shanu v. Afribank Nigeria Plc (2000) NLC-1691997(SC) at p. 6; Paras D–E.
"A distinction between a counsel's decision not to appeal and mistake in failing to appeal may be valid where a decision not to appeal evinces an unmistakable intention to accept the judgment or not to complain by appellate process against it. It is not valid where, in a case like the present, counsel believed that he could challenge the interlocutory decision on an appeal from the final decision."
EXPLANATION / SCOPE
For extension of time applications, courts distinguish between counsel’s deliberate decision (binding on client) and mistaken belief about procedure (excusable). A decision not to appeal shows acceptance of judgment. However, where counsel mistakenly believes a decision can be challenged later on final appeal, this is error, not acceptance. The client is not bound by such procedural misjudgment. This distinction ensures parties are not penalized for counsel’s genuine misunderstanding of appellate procedure, while holding them accountable for strategic choices.