Month: May 2021

This week’s analysis discusses the effect of affixing proof of payment of Nigerian Bar Association stamp and seal on legal documents where the actual stamp and seal is not yet available.

In Law, Rule 10(1) and (2) of the Rules of Professional Conduct for Legal Practitioners, 2007, states that:
(1) A lawyer acting in his capacity as a legal practitioner, legal officer, or adviser of any Government department or ministry or any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule, “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions, or any similar documents.

Failure to comply with this requirement makes the document so signed or filed deemed not to have been properly signed or filed. Ss(3).

By necessary implication, the rationale for the requirement of the stamp and seal hinges on authenticity. It is meant to check and prevent the infiltration of quack lawyers in the Nigerian legal space and to ensure that legal practitioners who file processes in court have their names on the Roll of Legal Practitioners.

The use of the stamp and seal in the legal profession became mandatory from April 1st, 2015 following the resolution of the NBA NATIONAL EXECUTIVE COMMITTEE (NEC) meeting held on November 14th, 2014 at Uyo, Akwa Ibom State. An example of the NBA stamp is pictorially shown below. The red stamp is for those in the Public Practice while the green stamp, for those in the Private Practice.

Generally, the NBA stamp and seal is given to all lawyers upon the payment of the NBA dues. However, there are administrative lacunas where the delivery of the stamp and seal is scheduled for a later date despite paying the fees. What should then be the fate of the lawyer? wait, watch and lose a potential client? It cannot be. It shouldn’t be unless you want SAPA to score a-30 yard screamer.

Hence, there are plethora of judicial authorities which support the flexibility of Rule 10 by allowing the attachment of the NBA stamp and seal payment receipt as a substitute pending the delivery of the actual stamp and seal.

In Mutumutu v State, (2019) LPELR-CA/PH/17CR/2018, the Court per JOMBO-OFO held that: ‘regarding the question of use of receipt as evidence of payment for the NBA stamp/seal, it is my considered view that production of such evidence is as good as payment for the said NBA stamp/seal.’

Also, the Court of Appeal per Ogakwu, in Today’s Cars LTD v Lasaco Assurance PLC (2016) LPELR (41260) 1 at 5-7 gave an elaborated elucidation on this issue where he stated as follows: ‘Doubtless, there is no Nigerian Bar Association Stamp and Seal on the Appellant’s Brief. The Appellant has however submitted that its counsel has done all on its part to obtain the Seal and that the failure by the Nigerian Bar Association to issue the Seal should not be visited on the Appellant. The Appellant’s Brief was filed on 27th April 2016. Attached to the Appellant’s Brief is an Access Bank deposit slip showing that the Appellant’s counsel … paid for the Nigerian Bar Association Stamp in February 2016, a clear two months before the Appellant’s Brief was filed. Now, in these circumstances will it be in consonance with the dictates of justice for the Appellant’s brief to be said to infringe the provisions of Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007, given the fact that the Appellant’s counsel has done all that is required of him in order to comply with the stipulation of the Rule. I think not. It is my considered view that having paid for the stamp and seal, all that remained was the domestic affair of the Nigerian Bar Association Secretariat and where like in this situation the Nigerian Bar Association Secretariat is tardy, such tardiness cannot be visited on the Appellant as all required to be done on the part of the Appellant’s counsel has been done.’

A similar decision was also held in OLUMIDE & ANOR v. AREMU & ANOR (2019) LPELR-CA/EK/83/2018; REDEEMED CHRISTIAN CHURCH OF GOD (HAGIAZO PARISH) v. AKADIRI & ANOR (2019) LPELR-CA/L/1242/2015, MESHACK v. STATE (2019) LPELR-CA/PH/18CR/2018, etc

Furthermore, the absence of the NBA stamp and seal on a legal document will not be treated as being vital to the case so as to lead to striking out of the case. An attempt to do such would amount to sacrificing substantial justice at the altar of technicality. In Yaki v Bagudu (2015) LPELR (26721) 1 at 6-7 the Supreme Court held that a legal document signed and/or filed without complying with Rule 10 (1) is not null and void or incompetent. This principle is further reiterated by Kekere Ekun, JSC in the case of Nyesom v Peterside & Ors (2016) LPELR-SC.1002/2015 where the learned justice opined that: With regard to the lack of NBA stamp and seal on the petition, I refer to the recent decision of this Court in Gen. Bello Sarkin Yarki v. Senator Abubakar Atiku Bagudu in SC.722/2015 delivered on 13/11/2015 when this Court held that the failure to affix the approved seal and stamp of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order.’

In conclusion, the presentation of the evidence of payment for the NBA stamp and seal in lieu of the actual stamp and seal will fulfill the requirement of Rule 10(1) of the Professional Conduct for Legal Practitioners 2007.

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The trajectory of most Nigerian elections doesn’t end when the result is announced. More often than not, parties always have reason(s) to reject the election results. This has made the election Tribunals and Courts the aftermath of most elections. Hence, an electoral petition is the process that is meant to challenge the validity of an election.

An election petition may be presented by one or more of the following persons -(a) a candidate in an election;(b) a political party that participated in the election. See Section 137 (1) (a) & (b) of the Electoral Act and NYESOM v. PETERSIDE & ORS(2016) LPELR-SC.1002/2015.

Furthermore, election cases are different from civil and criminal cases and the procedural rules applicable to civil and criminal proceedings are not strictly applicable in election petitions. This is the reason election petition proceeding is referred to as sui generis because it has its own rules and procedures. In Egharevba V Eribo (2010) 9 NWLR (Pt. 1199)411, the Supreme Court held that “An election legislation creates a special jurisdiction and the ordinary rules of procedure in civil cases do not always serve to effectuate its purpose.”

By virtue of Section 285(5) of the Constitution of the Federal Republic of Nigeria and Section 134(1) of the Electoral Act, 2010, an election petition shall be filed within twenty-one (21) days after the date of the declaration of results of the elections. Section 134(2) of the Act also states that an electoral petition must deliver its judgment in writing within One Hundred and Eighty Days (180) days from the date of the filling of the petition. The rationale for this swift determination is to allow the elected leaders remain focused on ensuring good governance and not perturbed with litigation.

It is pertinent to note that the date the result is declared is excluded from the computation of time. See Section 15(2) Interpretation Act. In Michael Peter & Anor v Enemi Alabo & Ors(2019) LPELR-CA/PH/EPT/560/2019, there was an election to represent the Asari-Toru Constituency 2 at the Rivers State of Assembly. The result was declared on the 9th day of March 2019.

The petitioner filed his petition on 3rd May, 2019. The Court held that the case was statute-barred because it was filed outside the 21 days prescribed by the Constitution and the Electoral Act.

If a petition is not brought within the time frame, such an action will not be extended, it will be deemed statute-barred and the petitioner shall lose his right of relief. In MARWA & ORS V NYAKO & ORS (2012) LPELR – 7873 (SC) the apex Court, per ONNOGHEN, JSC held thus: – “It is settled law that the time fixed by the Constitution for doing anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded or stretched beyond what it states.”

In the spirit of festivity, Happy Eid-l-fitr to all our Muslim readers. We pray Allah answer all your prayer requests during and even after Ramadan. Send my meat if you dor wanra see crazy😃.

Moving in, today’s discourse centers on the Court which has the jurisdiction to entertain simple contract actions when a Federal Government agency is involved.

According to Professor Sagay, simple contracts are all contracts other than formal contracts or contracts required to be under seal. They may be in writing or oral. In this form of contract, it is only a party who has furnished consideration that can bring an action for enforcement of the contract.

Section 251(1) of the Constitution of the Federal Republic of Nigeria(1999 as amended) houses a long list of actions in which the Federal High Court has exclusive jurisdiction to entertain. Particularly, it provides that the Federal High Court shall have exclusive jurisdiction in any matters involving the agencies of the federal government. However, to every rule, there is an exception.

Thus, where an agency of the Federal Government is a party in a matter, the question of jurisdiction becomes two dimensional, that is, Party Jurisdiction and Subject Matter Jurisdiction which the Courts are expected to consider.

The position of Law is that if the res of the suit comes within the provisions under Section 251, then the Federal High Court will have exclusive jurisdiction. However, if the subject matter falls outside the precincts of Section 251, then a State High Court will be vested with jurisdiction notwithstanding that the party involved is a Federal Government agency.

The res of an action basically means what is being litigated upon – the subject matter of the action which both parties seek to preserve for themselves. And in determining the res of a matter, attention is often given to the plaintiff’s statement of claim. See the case of Obiuweubi v. C.B.N. (2011) ALL FWLR (Pt. 321) p.208.

It is worthy to mention that the principle in the celebrated case of NEPA v Edegbenro (2002) 13 SCM P. 78 at 89 is often being erroneously relied upon to canvass argument for party jurisdiction. The principle then was that the Federal High Court should always have jurisdiction when the agencies of the federal government are involved irrespective of the claim. Nevertheless, as stated by Adekeye JCA (as he then was) at (P. 14, paras. A-D) in Isuama v Governor of Ebonyi State of Nigeria & Ors (2005) LPELR-CA/E/163/2004: The case (Nepa v Edegbenro) did not decide on subject-matter jurisdiction.

Based on this, the fact that an action is against agents of the Federal Government of Nigeria does not ipso facto bring the case within the jurisdiction of the Federal High Court, unless the subject matter of the action falls squarely within the jurisdiction of the Federal High Court before the Court can assume jurisdiction in the case against the Federal Government or any of its agencies. Subject matters like breach of Contracts, Negligence, etc against Federal Government Agencies are not within the purview of Section 251 of the CFRN 1999. And since it is impossible to place something on nothing and expect it to stands, it becomes an exercise in futility for the Federal High Court to entertain a matter in which it does not have the authority.

In Essi V. Nigeria Ports, Kekere-Ekun, JSC stated thus: Where the exclusive jurisdiction of the Federal High Court is in issue, the mere fact that an agency of the Federal Government is a party is not sufficient, without more to confer jurisdiction on the Court. The Court deciding the issue will also take into consideration the nature and subject matter of claim.

Hence, the Supreme Court in a plethora of cases such as Onuorah v. K. R. P.C. Ltd. (2005) 6 NWLR (Pt.921) 393; Socio-Political Research Development v Ministry of FCT & ORS (2018) LPELR-SC.203/2008; ROE LTD v. University of Nigeria (2018) LPELR-SC.42/2007; Adelekan v. BCU-line NV (2006) 12 NWLR (pt. 993) 33 at 54, Dec Oil & Gas LTD v Shell Nig Gas LTD, etc have held that disputes founded on contracts are not among those envisaged in the exclusive jurisdiction conferred on the Federal High Court under Section 251 of the CFRN. Hence, the State High Court has the jurisdiction to entertain such matters.

In conclusion, it is evident that the Nigerian Courts have tilted towards subject matter jurisdiction over party jurisdiction when it involves agencies of the Federal Government. With this, the era of using the Federal Government or its agencies as a blanket cover to give Federal High Court jurisdiction on matters which are clearly outside Section 251 of the CFRN 1999 is over.

Thank you for reading. See you next week.

Read up on past similar article on the Jurisdiction of Courts when it involves Federal Government agencies and Human Rights Violations here.