OKAFOR V. NWEKE: MUCH ADO ABOUT SIGNING A COURT PROCESS
A. O UTAKE
It has become common for Nigerian courts to emphasize that the era of technicality is long gone and the current vogue is to focus on the attainment of substantial justice. This sentiment has been admirably expressed in a plethora of decisions including Associated Discount v. Amalgamated Trustees where Pats-Acholonu JSC (of blessed memory) poetically observed that:
There comes a time in the difficult but challenging art or science of adjudication and administration of justice when a Court is faced with consideration of pure justice, and of course abstract law that seeks to shroud itself in concepts, dreariness and the theory of law. It is then that a Court should dig deep into its reservoir of knowledge of its forensic arsenal borne out of experience and mete out justice that can easily be understood and appreciated by the common man in the street and the litigants. The Courts are the products of the society. They are established to solve and give remedies to people who complain of having been shortchanged or wronged somehow. Therefore it should not allow undue technicalities likely to wreak havoc in the other party’s case to be introduced in an otherwise situation that does not admit of cloudiness or woolliness.
In Akpan v. Bob, the Supreme 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 impeding 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.
With the abundance of dicta which underscore this preference for substantial justice, a review of the sheer preponderance of recent technicality-oriented decisions of appellate courts in Nigeria leaves one to wonder if this is not a situation of mere lip service without actual practice. This article is primarily directed at one of such disturbing instances of technicality in the Nigerian legal system.
Sometime in March 2007, the Nigerian legal community was roused by the decision of the Supreme Court in Okafor v. Nweke. The said decision was to the effect that a court process signed in the name of a registered firm of legal practitioners is incompetent and liable to be struck out. According to the learned Justices of the apex court, 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.
Naturally, the above decision of the Supreme Court resulted in a deluge of preliminary objections at various courts within the Nigerian legal system. While the Supreme Court decision in Okafor v. Nweke involved a motion for leave to appeal which the Court recognized could easily be re-filed, legal practitioners across the country invoked the decision to achieve much more irredeemable and far-reaching outcomes.
For instance, in SLB Consortium Ltd v. N.N.P.C. the appeal involved a contractual dispute in respect of which the Federal High Court as trial 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 simple contract. However, upon a further appeal to the Supreme Court, the Respondent, for the first time, challenged the competence of the Appellant’s 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 v. Nweke to the effect that the said originating process was incompetent.
There is no gainsaying the fact that by virtue of the Supreme Court decision, the Appellant’s cause of action in SLB Consortium Ltd v. NNPC had become statute-barred since the action at the trial court was instituted in June 2000 while the decision of the Supreme Court was issued in April 2011. In other words, the Okafor v. Nweke principle had been applied to permanently deprive a litigant of remedy.
The furor over the Okafor v. Nweke decision culminated in the constitution of a 7-man panel of the Supreme Court in F.B.N. Plc v. Maiwada for the purpose of conclusively dealing with the issue. The Supreme Court under the leadership of the then Chief Justice of Nigeria, Honourable Justice Dahiru Musdapher, invited a host of notable legal practitioners including the then President of the Nigerian Bar Association, Mr. J. B. Daudu (SAN) to address the court on the issue. Upon hearing arguments from various counsel, the Supreme Court unanimously affirmed the Okafor v. Nweke principle. A major plank of the Court’s reasoning is that the decision in Okafor v. Nweke was based on a substantive law (the Legal Practitioners Act) and not mere rules of court. Thus, Fabiyi J.S.C, 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.
In order to rationalize the reasoning of the Court, it is important to consider the relevant provisions of the Legal Practitioners Act (“the LPA”), which apparently is the ‘source’ of this principle. The LPA is the principal legislation which regulates the legal profession in Nigeria. The Act establishes regulatory bodies of the Bar such as the General Council of the Bar, Body of Benchers and the Legal Practitioners’ Disciplinary Committee.
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.
It is difficult to understand how the above provisions form the basis for the aforementioned decisions of the Supreme Court. Clearly, the mischief, which the LPA seeks to address, is the engagement in practice as a legal practitioner by any person other than a legal practitioner. It should be noted that the penalty for such unlawful engagement in legal practice is set out in Section 22 of the LPA and there is nothing in that section which suggests that court proceedings, which are initiated by an improperly signed process, become liable to be struck out.
Indeed, if the lawmakers had intended that the signing of a court process by a person other than a legal practitioner is fatal to such process, the lawmakers would have expressly spelt out such intention. This is in view of section 22(7), which states that:
It is hereby declared that any agreement to transfer, either directly or indirectly, any money or thing in consideration of any act which constitutes an offence under this section is void; and any money or thing so transferred, or the value of the thing, shall be recoverable by the transferor from the transferee or from any other person by whom the offence was committed, whether or not any proceedings have been brought in respect of the offence or the time for bringing such proceedings has expired.
In other words, the LPA clearly stipulates that an agreement, which is prepared by a person other than a legal practitioner, is void. However, no similar provision is made with regard to court processes. This is a significant indication of the legislative intention behind the LPA and ought to form part of the Supreme Court’s consideration. After all, since the Court placed so much emphasis on the principle of separation of powers and the need for Judges to desist from usurping the constitutional role of the legislature, the Court ought not to have exceeded the clear intention of the legislature in the application of the statute.
In any event, what was the problem in the Okafor v. Nweke line of cases? Or better still, how was the LPA violated in those cases? From the facts available from the judgments, the objections related to the fact that the processes were signed in the name of law firms or on behalf of legal practitioners rather than the individual legal practitioners themselves. Thus, the Supreme Court held that the processes were not signed by a legal practitioner within the meaning of the LPA.
Now, does the LPA really insist that court processes can only be signed by a legal practitioner? A review of the LPA indicates that this question can only be answered in the negative. In the first place, the offences under section 22(1) of the LPA relate to the following acts-
(a) Practices, or holds himself out to practice, as a legal practitioner; or
(b) Takes or uses the title of legal practitioner; or
(c) Willfully takes or uses any name, title, addition or description falsely implying or otherwise pretends that he is a legal practitioner or is qualified or recognized by law to act as a legal practitioner; or
(d) Prepares for or in expectation of reward any instrument relating to immovable property, or relating to or with a view to the grant of probate or letters of administration, or relating to or with a view to proceedings in any court of record in Nigeria
If any person other than a legal practitioner engages in any of the above acts, such person is guilty of an offence and liable to a fine or imprisonment as the case may be. Can it be said that the factual situation in the Okafor v. Nweke line of cases constitutes an offence under section 22 of the LPA? The answer to this question becomes obvious when it is considered that the LPA is seemingly more concerned with the preparation and not the signing of legal documents by persons who are not legal practitioners.
For instance, in Okafor v. Nweke, the processes were signed in the name of J.H.C. Okolo SAN & Co and there was no indication before the court that the processes were not prepared by a legal practitioner. Indeed, the statement of Onnoghen JSC at page 532 confirmed that the court was not in any doubt that the processes originated from the hallowed chambers of a learned senior advocate of Nigeria.
If the court was indeed clear about the process emanating from the hallowed chambers of a learned senior advocate of Nigeria, it is respectfully submitted that there was no violation of the LPA. This submission is further strengthened by section 22(4) of the LPA which provides inter alia that:
Nothing in paragraph (d) subsection (1) of this section shall be construed as making it an offence for any person to prepare an instrument-
(a) In the course of his activities as a pupil of a legal practitioner or of his employment as a clerk or servant of a legal practitioner.
The above provision confirms that no violation of the LPA occurs where a legal document is prepared by a pupil, clerk or servant (none of whom may be a legal practitioner) in the employment of a legal practitioner. This means that the execution of a document in the name of J.H.C. Okolo SAN & Co necessarily implies that such document was prepared either by J.H.C. Okolo SAN himself or by any other person in the chambers of J.H.C. Okolo SAN & Co.
Furthermore, if the Supreme Court decision was insinuating that J.H.C. Okolo SAN & Co is not qualified to sign a legal document under the LPA, appropriate penal action ought to be carried out against the said J.H.C. Okolo SAN & Co under section 22(5) of the LPA which provides that:
Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate or any person purporting to act in any such capacity, he, as well as the body corporate, shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Clearly, it would be irrational and impracticable to invoke the above provision against J.H.C. Okolo SAN & Co when even the Supreme Court of Nigeria, which happens to be the custodian of the roll of legal practitioners, recognizes that entity as the hallowed chambers of a learned senior advocate of Nigeria.
In all of the Okafor v. Nweke line of cases, there was no doubt whatsoever that the originating processes in question were prepared by authentic legal practitioners and signed in the name of such legal practitioners’ firms. This, with respect, does not amount to any form of non-compliance with the LPA.
In F.B.N. v. Maiwada, the Supreme Court endorsed the submission of J. B. Daudu SAN on the need to retain the decision in Okafor v. Nweke as to do otherwise would lead to more confusion and lack of responsibility on the part of counsel. However, it is respectfully posited that the practice of executing legal documents in the name of law firms creates a higher level of professional responsibility.
For instance, in Oketade v. Adewunmi, the Notice of Appeal was signed in the name of Olujimi & Akeredolu, a renowned firm having (at least) two partners who are also Senior Advocates of Nigeria. This means where a document is signed in the name of Olujimi & Akeredolu, that document presupposes that Chief Akin Olujimi, SAN and/or Chief Rotimi Akeredolu, SAN are professionally responsible for that document irrespective of whether any of them actually prepared or supervised the preparation of such document. Indeed, the legal practitioner who actually prepared the document may have left the employment of Olujimi & Akeredolu but such departure does not affect the partners’ professional responsibility for a document bearing the name of their firm. To my mind, this is a higher level of professional responsibility than the current insistence that a document should be signed in the name of a legal practitioner.
Furthermore, the Supreme Court ought to have considered that the various rules of court do not ascribe the competence or otherwise of a court process to the manner in which the process was signed by either the legal practitioner or the litigant. For instance, the originating summons in SLB Consortium Ltd v. NNPC was filed under the Federal High Court Civil Procedure Rules 2000 (“FHC Rules 2000”). Order 7 Rule 8 of the said Rules states that:An originating summons is issued upon its being signed by a Judge in Chambers
As part of the endorsements forming prerequisites for the above-referenced signature of a Judge in Chambers, Order 7 Rule 5(1) of the FHC Rules 2000 states that:
Where a plaintiff sues by a legal practitioner, the originating summons shall be endorsed with the plaintiff’s address and the legal practitioner’s name or firm and a business address of his within the jurisdiction and also, if the legal practitioner is the agent of another, the name or firm and business address of his principal.
Clearly, the above provision of the rules recognizes either the name or the firm of a legal practitioner as adequate franking of an originating summons. Unfortunately, the Supreme Court justified its refusal to consider these provisions of the Rules on the familiar line that rules of court cannot be applied in contradiction to the provisions of a statute. Fabiyi J.S.C. stated in FBN v. Maiwada that:
Let me say it bluntly that where the provisions of an Act like the Legal Practitioners Act is at play, as herein, provisions of rules of court which are subject to the law must take the side line.
Indeed, if the signing of an originating process in the name of a legal practitioner was as fundamental as the decision in Okafor v. Nweke suggests, no rule of court would permit a process to be signed by any person other than a legal practitioner. However, every rule of court in Nigeria recognizes the propriety of a litigant signing a court process whether or not such litigant is a legal practitioner. It has also been demonstrated above that the LPA recognizes that a person other than a legal practitioner may prepare a court process in certain situations under section 22(4) thereof.
It is respectfully submitted that the competence or otherwise of a court process is a procedural matter which should primarily be determined by the Rules under which such process was issued and not under the LPA which governs professional activities in the Nigerian legal profession. Inasmuch as the Rules do not declare a process incompetent for being signed in the name of a law firm, the LPA which has no business whatsoever with court procedure should not be invoked in order to determine the competence of such process.
It has been said that legal practitioners are responsible for the entrenchment of technical principles of this nature since in all these cases, the courts simply rule on objections raised by legal practitioners. However, this is a rather unfair criticism of legal practitioners who are entitled to canvass any argument (technical or otherwise) in favour of a client’s case. It is the court that bears the ultimate responsibility of ensuring that such arguments do not become legal principles which are capable of defeating the laudable judicial quest for substantial justice.
How else can one explain such situation which has played out in these line of cases: a matter which had been initiated at the High Court (over a decade before for some), which had been subjected to trial by pleadings, evidence led, legal arguments heard and judgment delivered at the High Court. An appeal is filed and argued at the Court of Appeal in respect of the same matter and judgment is delivered. Then, at the Supreme Court, an issue is raised as to the competence of the originating process at the High Court on grounds of same being signed in the name of a law firm or on behalf of a legal practitioner and the Supreme Court strikes out the said originating process thereby rendering several years of litigation futile and worthless.
The Blacks’ Law Dictionary defines signature as:
A person’s name or mark written by that person or at the person’s direction
The above definition admits of the possibility that a person’s signature may not necessarily have been appended by that person provided it was appended at the person’s direction. This means the use of the name of a legal practitioner’s firm in the signing of court processes simply tantamount to the use of the legal practitioner’s distinct mark either by the legal practitioner personally or at his direction. There is clearly nothing contrary to the LPA if the policy in A & Co is that every document emanating from a legal practitioner in A & Co should carry the distinct mark – A & Co.
In the final analysis, the conclusive decision of the 7-man panel of the Supreme Court in FBN v. Maiwada renders it highly unlikely that the Okafor v. Nweke principle would be revisited anytime soon. The force behind the FBN v. Maiwada principle has permeated the entire profession and it would be foolhardy for anyone to sign any legal document without adhering to that principle. Therefore, the solution seems to be a legislative review of the LPA in order to adequately articulate the point that signing of a court process in the name of a law firm does not affect the validity or competence of such process. One can only hope that the Nigerian Bar Association would champion this cause sooner rather than later.
(2006) 5 SC (pt. I) 32 at 37-38
 (2010) 17 NWLR (PT 1223) 421 @ 478-479
 See also, Oloruntoba-Oju & ors v. Abdul-Raheem & ors (2009)5-6 SC (PT. II) 57 at 81; S. P .D. C. N. Ltd v. Amadi (2010) 13 NWLR (PT. 1210) 82 at 142; Ukiri v. Geco-Prakla (Nig.) Ltd. (2010) 16 NWLR (PT. 1220) 544 at 558; Anozia v. A.G. Lagos State (2010) 15 NWLR (PT. 1216) 207 at 233
 (2007) 10 NWLR (pt. 1043) 521
 (2011) 9 NWLR (pt. 1252) 317
 (2013) 5 NWLR (pt. 1348) 444
 Ibid. at p. 485
 Cap L11, LFN 2004
 See No. 33 of 1962
 (2010) 8 NWLR (pt. 1195) 63
 The corresponding provision of Order 3 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2009 provides that “The Registrar shall seal every originating process whereupon it shall be deemed to be issued.”
 Supra at p. 485
 See for instance, Order 3 Rule 12(3) of the Federal High Court (Civil Procedure) Rules 2009
 See Ministry of Works & Transport, Adamawa State v. Alhaji Isiyaku Yakubu & Anor (2013) 6 NWLR (pt. 1351) 481
 9th edn.
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About the author:
O. A. Utake is a legal practitioner admitted to practice as a solicitor and advocate in Nigeria. Since his enrollment as a legal practitioner, he has been engaged in all forms of dispute resolution and corporate practice under the auspices of Babalakin & Co, a leading commercial law firm in Nigeria.
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