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.
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