“In Africa, the dead do not rest because even in their death, they still watch over us”. Anon
Have you come across any tweet like this? I saw this tweet last year on Twitter. Despite being hilarious, it makes sense. At least, to me. It depicts how important the dead are to us in this particular part of the world. In Africa, the dead bodies, particularly of loved ones, are treasured.
In a bid to ensure a smooth and honourable transition, people give so much attention to where their dead are buried. Most people bury their loved ones in residential areas. There are several factors behind this such as cultural beliefs; religious sentiments, financial cost etc.
However, this practice is legally wrong. The principle of law is that home burial is an offence punishable with an imprisonment of six months. This has been statutorily provided for in section246 of the Criminal code which states: “Any person who without the consent of the President or the Governor buries or attempts to bury any corpse in any house, building or premises, yard, garden, compound or within one hundred yards of any dwelling house or any open space situate within a township is guilty of a misdemeanor, and is liable to imprisonment for six months”.
The rationale behind the criminalization of this practice is that it poses a great risk to public health and also a major challenge to the government in relocating such corpses in the course of future road expansion and reconstruction projects.
While the general principle of law is that one cannot bury any human corpse in residential areas or any open space, the exception is that the only time one can engage in this practice is having obtained consent from the president or governor. In granting this, several factors are to be considered by the Ministry of Health. One of such factors is the cause of death of the deceased. The cause of death is relevant here because a person who died of a highly communicable disease like Ebola, Lassa fever, etc may still be a danger to people dwelling within the neighbourhood of his burial place.
Unfortunately, one has to mention that this is one of the ‘dead’ laws in Nigeria due to ignorance of the people and weak enforcement mechanism by the Government.
Every profession has practices that must be complied with. In football, a wall must be set before a free kick can be played. In fashion, measurement precedes sewing. In the legal profession, the practice is that a court process has to be signed. The absence of which may make the document a worthless piece of paper and void.
Court processes are documents presented before the court ranging from Writ of Summons; Notice of Appeal etc. While there is a consensus that court processes must be signed, there is variance as to who is the proper authority to sign these documents between a lawyer or a law firm. This variance has culminated into divergent views among legal scholars.
At first, there was no distinction as to who signed a court process. The rule was in tandem with what was applicable in commonwealth jurisdiction. This procedure was accepted by the Supreme Court in Apostolic Church v Rahman Akindele(1967) NMLR 263 and Cole v Martins (1968) 1 ALL NLR 161. In Cole’s case, the supreme court of Nigeria held that: “we have noted moreover that it is the practice in England for Solicitors in a partnership, which is carried on in the name of a firm, to sign in the firm’s name.” In that case, Mr. Lardner, a legal practitioner, signed a Notice of Appeal in the name of his law firm Lardner &Co. The court held that this process was not incompetent.
However, this aforementioned position changed. The case that started the change was the 2005 case of NNB PLC v Denclag LTD (2005) 4 NWLR (PT 916) 549 where the Court of Appeal used the literal rule of statutory interpretation in interpreting Section 2(1) and 24 of the Legal Practitioners Act (LPA) and held that a Court process signed in the name of a law firm “Ibrahim Hammam &Co” was incompetent, invalid and void having not being issued by a registered law practitioner.
For emphasis, sections 2(1) and 24 of the LPA provide that: 2(1): Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll. 24: Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.
The principle held in NNB’s case came to light and became known when ‘something hooge’ happened in the Nigerian Legal space in the locus classicus case of Okafor v Nweke (2007) 10 NWLR (pt. 1043)521. In that case, the respondents’ motion of notice, notice of cross-appeal, and the brief of argument in support of the motion on notice were all signed by the law firm of J.H.C. Okolo, SAN &Co. The principle of law is that a court process signed in the name of a registered firm of legal practitioners is incompetent and liable to be struck out. In a unanimous decision, the Supreme Court held that the combined effect of sections 2 and 24 of the Legal Practitioners Act is that any person or entity whose name is not on the roll of legal practitioners cannot engage in any form of legal practice in Nigeria. Thus in the case under reference, since the name of the firm of J.H.C. Okolo SAN &Co is not on the roll of legal practitioners, a process signed in the name of such firm is incompetent.
Despite the fact that the facts of both Cole and Okafor’s cases are in pari materia (similar), it was surprising that the learned justices at the Supreme Court did not make reference to Cole’s case while deciding Okafor’s case but rather relied on the statutory provision of the LPA.
Had it been that subsequent cases were on Notice of Appeal, maybe the public outcry wouldn’t be too much. However, subsequent cases reveal that legal practitioners have stretched this principle held in Okafor’s to unimaginable instances which caused grave injustice to litigants. For instance, in SLB Consortium Ltd v. N.N.P.C. (2011)9 NWLR (pt. 1252) 317, the appeal involved a contractual dispute in respect of which the Federal High Court had awarded damages in the sum of $7,155,053 against the Respondent. On appeal to the Court of Appeal, the issue of jurisdiction was raised and the Court of Appeal held that the Federal High Court lacked jurisdiction in matters of a simple contract. However, upon a further appeal to the Supreme Court, the Respondent, for the first time, challenged the competence of the Appellants originating process which was signed in the name of Adewale Adesokan &Co at the trial court and relied on the Supreme Court decision in Okafor v. Nweke. The Supreme Court had no difficulty in applying its decision in Okafor’s case to the effect that the said originating process was incompetent.
The hardship caused in SLB’s case is that by the time the matter was to be reinstituted at the trial court, it was also statute-barred. As such, lawyers who manifestly have a bad case, may keep quiet, watch the proceeding get to the Supreme Court and then raise the objection that the court process wasn’t signed by a competent party. Like Jurisdiction, the signing of Court processes is also a fundamental issue that goes to the root of the suit and can be raised anytime as held in Salami v Muse (2019) LPELR-SC.75/2009.
The hardship heralded in Okafor’s case led the Supreme Court in setting a 7-man committee to extensively deal with the principle in the case of FBN PLC v Maiwada (2013)5 NWLR (pt. 1348) 444. The main argument against the principle in Okafor’s case was that the decision was hinged on technical rather than substantive justice. As opined by Fabiyi JSC in Ajuwa v. SPDC (2012) All FWLR (Pt.615) 200 at 223, “The days of technicalities are gone. The current vogue is the doing of substantial justice to both sides in such a way that the main appeal will be heard and determined on its merits”. Similarly, in Akpan v. Bob(2010) LPELR-376 SC, the Apex Court also held that: Technical justice is no justice at all and a court of law should distance itself from it. Courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impending it with mere technical procedural irregularities that occasion no miscarriage of justice. Thus, where the facts are glaringly clear, the courts should ignore mere technicalities in order to do substantial justice.
Despite this argument, the Supreme Court wasn’t convinced and unanimously affirmed the Okafor v. Nweke principle. In reaching this decision, the Court held that Okafor’s case was based on substantive law (the Legal Practitioners Act) and not mere rules of court. Thus, Fabiyi JSC, delivering the lead judgment, held that: There is also the view of some counsel that the decision in Okafor v. Nweke had to do with technical justice. I agree that the age of technical justice is gone. The current vogue is substantial justice…But substantial justice can only be attained not by bending the law but by applying it as it is; not as it ought to be. There is nothing technical in applying the provisions of sections 2(1) and 24 of the Legal Practitioners Act as it is drafted by the Legislature. The law should not be bent to suit the whims and caprices of the parties/counsel. One should not talk of technicality when a substantive provision of the law is rightly invoked.
Furthermore, it appears that the hardship occasioned by Okafor’s case was jettisoned partly in the 2018 case of Heritage Bank v Bentworth Finance (Nig) Ltd SC/175/2005 where the court held that except for originating processes, courts should no longer strike out court processes that are inadvertently signed in the name of a law firm, unless the other party objects to such irregularity at the earliest opportunity. Other court processes other than originating processes are: statement of claim, statement on oath, list of witnesses, etc.
In conclusion, the 2018 case didn’t jettison the principle in Okafor’s case as subsequent 2019 cases such as Onyekwuluje & Anor v Animashaun & Anor (2019) LPELR-SC.72/2006 and Salami v Muse (2019) LPELR-SC.75/2009 still reaffirmed the principle in Okafor’s case.
So, through what we do on TheLegalStandPoint, I got recognised and won the Legal Writer of the Year at the Law Students’ Society, University of Ibadan Award and Variety Night held on Thursday, December 9, 2021. A big thank you to all our esteemed readers. Thank you for all you do.
The commencement of a civil action is a journey and the last bus stop is when a judgment is delivered. By default, the party to whom a judgment was given in his favour would usually take steps to enforce the judgment.
The mode or method of enforcing a judgment depends on whether the judgment is a monetary judgment or non-monetary judgment. There are five modes of enforcing a monetary judgment. These are: writ of Fieri Facias (Fi.Fa); Garnishee proceedings; Judgment debtor summons; Writ of sequestration, and Installment Payment.
In this analysis, attention will be given to garnishee proceeding. Garnishee proceeding is the procedure whereby the judgment creditor obtains the order of the Court to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judgment debt.
Putting it in perspective, if Access Bank owes Richardson money and Silva gets a judgment against Richardson for a certain sum, Silver can seek an order from the Court to have Access Bank pay to him, in satisfaction of Richardson’s judgment debt, the money Access bank owes Richardson or holds on behalf of Richardson.
This mode of enforcement occurs when a judgment debtor fails to pay a judgment debt to the judgment creditor, and it is discovered that the judgment debtor has money standing to his credit in his account at a bank (a third party), the law views the money in the account as a debt owing to him from the bank and the debt can be attached by way of garnishee proceedings of the court judgment against him.
This process is primarily governed by the Sheriffs and Civil Process Act CAP A6 Laws of Nigeria (2004) and it involves two parties: the judgment creditor and a third party called the garnishee. This type of proceeding- as held in CP Adawama v Maiyini Century Co. Ltd (2017) LPELR-CA/YL/61/2016 – is a sue generis and a special one of its type. It is a separate and distinct procedure between the Judgment Creditor referred to as the Garnishor and the person or body known as the Garnishee, holding in his/her custody the assets of the Judgment Debtor. Thus, a judgment creditor in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for a garnishee order nisi attaching the debt due or accruing to the judgment debtor from such person.
In this regard, the judgment debtor is a mere nominal party in the garnishee proceedings for the proceeding is between the Garnishor/Judgment Creditor and the Garnishee as all the orders made by the Court in the course of the proceedings on the application of the Garnishor/Judgment Creditor are directed at the Garnishee and vice versa and not the Judgment Debtor. U.B.A. PLC. v. Boney Marcus Ind. Ltd. (2005) 13NWLR (Pt.943) p.654 at p.666
Once the application has been made, the court can make two orders. The first is a garnishee order nisi and the second is order absolute. Nisi is a Norman-French word and it means, “unless“. It is, therefore, an order made, at that stage, that the sum covered by the application be paid into the Court or to the judgment creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment order should not be made.
Furthermore, it is not the business of a garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. The duty of the garnishee upon receipt of Garnishee order nisi is to file before the Court an affidavit to show cause why the judgment debtor’s money in his custody should not be attached to satisfy the judgment debt. It then behooves a garnishee to present the true state of affairs regarding the monies before the Court. Either there is no or sufficient fund in his custody or that the available fund is under lien or assigned to a third party in which case the Court instead of proceeding to make the order for garnishee absolute may order that any issue or question necessary for the determining his liability be tried or determined as provided for in S. 87 of the SCPA.
As held in Barbedos Ventures Ltd v Zamfara State Govt & Anor (2017) LPELR-CA/S/62/2013, once an order absolute is granted, the Court becomes functus officio in respect of that matter and thus lacks jurisdiction to review, reopen or reverse its decision. By virtue of S. 83(1) Sheriff and Civil Processes Act, a garnishee order can only be made if the garnishee is within the state where the judgment was given. However, if the judgment was given by the Federal High Court, the order can be made at any judicial division of the Federal High Court since the FHC has one jurisdiction across the country. CBN v Interstella Comm. Ltd. LPELR-43940 (SC)
Other important details to know about a Garnishee proceeding are:
A garnishee, who has been duly served with the Order Nisi, cannot seek to circumvent the subsisting order of Court by tampering with the funds in the account of the judgment debtor in its custody under any guise, more so before responding to the order before the Court. GTB PLC v Gold Mart Intl Ltd &Ors (2021)LPELR-54882 (CA)
Since the judgment debtor is merely an interested party, he cannot appeal as of right against a Garnishee order in a Garnishee proceeding without the leave of the Court. Zenith Bank v National Trucks Manufacturing Ltd (2020) LPELR-50941(CA)
Where the garnishee is a public officer, consent of the Attorney General is required for garnishee proceedings against money in possession of a public officer. This has been statutorily provided for in S. 84(1) SCPA and the judicial authority of Onjewu v Kogi Ministry of Commerce and Industry (2003) 10 NWLR (part 827) 40.
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