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It
may perhaps be useful to herald this piece with a scenario that played out at
the High court in Minna, Niger state;
Defendant/Applicant:
Your lordship, we are challenging the competence of this suit and we summit
that this court is robbed of jurisdiction. The NBA stamp/seal on the Writ of
summons (an originating process) bear the year 2015 when the current year is
2016, in fact, we vehemently submit that the said process is without the NBA
stamp/seal. It is now well settled that the failure to affix the NBA stamp/seal
on any legal document, even Court processes, makes such document incompetent.
We therefore urge this Honourable court to strike out this suit, also in line
with O.5.r.2(1) of the Rules of this court. One cannot put something on nothing
and expect it to stand. We are grateful.
Your lordship, we are challenging the competence of this suit and we summit
that this court is robbed of jurisdiction. The NBA stamp/seal on the Writ of
summons (an originating process) bear the year 2015 when the current year is
2016, in fact, we vehemently submit that the said process is without the NBA
stamp/seal. It is now well settled that the failure to affix the NBA stamp/seal
on any legal document, even Court processes, makes such document incompetent.
We therefore urge this Honourable court to strike out this suit, also in line
with O.5.r.2(1) of the Rules of this court. One cannot put something on nothing
and expect it to stand. We are grateful.
Plaintiff/Respondent:
My lord, am surprised at my learned colleague’s submission, howbeit, I
apologize to this Honourable court. It was inadvertence on my part, I affixed
that of 2015 instead of 2016. I urge your lordship to be benevolent and order
for regularization contrary to the submissions of my learned friend for it to
be struck out; this will be in the interest of justice as a sin of a Counsel
ought not and should not be visited on the client. May it please my lord.
My lord, am surprised at my learned colleague’s submission, howbeit, I
apologize to this Honourable court. It was inadvertence on my part, I affixed
that of 2015 instead of 2016. I urge your lordship to be benevolent and order
for regularization contrary to the submissions of my learned friend for it to
be struck out; this will be in the interest of justice as a sin of a Counsel
ought not and should not be visited on the client. May it please my lord.
COURT:
Counsel
should agree on a date for the ruling.
Counsel
should agree on a date for the ruling.
The case of Mega
Progressive People’s Party (MPP) v. INEC& Ors (SC/655/2015) brought a new
development on the use of NBA stamp/seal by legal practitioners in Nigeria.
Though not without some un-clarities, the Supreme Court held that a process
filed in court without the stamp/seal makes the process incompetent. Prior to
that decision, such failure to affix the stamp/seal was treated as a mere
irregularity which may not affect the proceedings. However, the position was
further fortified with the recent decision of the Supreme Courtin All Progressive Congress (APC) v. General Bello
Sarkin Yaki SC/722/15 (reported as Senator Bello Sarkin Yaki v. Senator Atiku
Bubakar Bagudu Ors (2015) LPELR-25721 SC)Where it was manifestly concurred
by each of the Justices that failure to affix the stamp/seal makes the process
incompetent, thereby, confirming the earlier decision (MPP’s case) in more
stronger and clearer terms. Not long after this decision did the National body
of the Nigerian Bar Association (NBA) circulate a memo to its members with the
caption:
Progressive People’s Party (MPP) v. INEC& Ors (SC/655/2015) brought a new
development on the use of NBA stamp/seal by legal practitioners in Nigeria.
Though not without some un-clarities, the Supreme Court held that a process
filed in court without the stamp/seal makes the process incompetent. Prior to
that decision, such failure to affix the stamp/seal was treated as a mere
irregularity which may not affect the proceedings. However, the position was
further fortified with the recent decision of the Supreme Courtin All Progressive Congress (APC) v. General Bello
Sarkin Yaki SC/722/15 (reported as Senator Bello Sarkin Yaki v. Senator Atiku
Bubakar Bagudu Ors (2015) LPELR-25721 SC)Where it was manifestly concurred
by each of the Justices that failure to affix the stamp/seal makes the process
incompetent, thereby, confirming the earlier decision (MPP’s case) in more
stronger and clearer terms. Not long after this decision did the National body
of the Nigerian Bar Association (NBA) circulate a memo to its members with the
caption:
“Supreme court affirms that failure to affix NBA stamp/seal in a legal
document renders such legal document incompetent.”
document renders such legal document incompetent.”
However, it is trite that
in interpreting statutes, the words used should be read as whole, in context
and not in isolation (Bakare v. Nigerian
Railway Corporation (2007) 17 NWLR (PT. 1064) 606). The word “incompetent”
used in that APC’s case (supra) when read together and in context gives the
true intention of the supreme court, in line with curing the mischief of not
allowing quacks and non lawyers to practice law;
in interpreting statutes, the words used should be read as whole, in context
and not in isolation (Bakare v. Nigerian
Railway Corporation (2007) 17 NWLR (PT. 1064) 606). The word “incompetent”
used in that APC’s case (supra) when read together and in context gives the
true intention of the supreme court, in line with curing the mischief of not
allowing quacks and non lawyers to practice law;
According to M.U. Peter
Odili JSC;
Odili JSC;
“A notice of appeal is the
originating process at an appellate court…which must be signed, stamped and
sealed. Therefore, a notice of appeal not found with these components is an
incompetent notice of appeal depriving the court of the jurisdiction to
determine the appeal on the merit…”Her lordship went further to state that “any
non compliance with Rule 10(2) RPC…is visited with the sanction that the
process is without competence…”
originating process at an appellate court…which must be signed, stamped and
sealed. Therefore, a notice of appeal not found with these components is an
incompetent notice of appeal depriving the court of the jurisdiction to
determine the appeal on the merit…”Her lordship went further to state that “any
non compliance with Rule 10(2) RPC…is visited with the sanction that the
process is without competence…”
However, Ngwuta JSC, while
delivering the lead judgment, was meticulous in providing further
clarifications on the nature of the “incompetence” of the process;
delivering the lead judgment, was meticulous in providing further
clarifications on the nature of the “incompetence” of the process;
“the legal document so
signed and/or filed is not null and avoid or incompetent like the case of a
court process signed in the name of a corporation or association…the document
is deemed not to have been properly signed or filed but not incompetent as the
2ndrespondent assumed.” His lordship went further to say such
document “is akin to a legal document or process filed at the expiration of the
time allowed by the Rules or extended by the court.” He then concluded
categorically thus; “in the case at hand, the process filed in breach of Rule
10(1) (of RPC) can be saved and its signing and filing regularized by affixing
the approved seal and stamp on it.” (emphasis supplied) at Para. 3, Page 6 of
the Court’s decision.
signed and/or filed is not null and avoid or incompetent like the case of a
court process signed in the name of a corporation or association…the document
is deemed not to have been properly signed or filed but not incompetent as the
2ndrespondent assumed.” His lordship went further to say such
document “is akin to a legal document or process filed at the expiration of the
time allowed by the Rules or extended by the court.” He then concluded
categorically thus; “in the case at hand, the process filed in breach of Rule
10(1) (of RPC) can be saved and its signing and filing regularized by affixing
the approved seal and stamp on it.” (emphasis supplied) at Para. 3, Page 6 of
the Court’s decision.
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While making reference to
the earlier decision in the MPP’s case, the submissions of O. Rhodes Vivour
JSC,is even more interesting as it tends to go beyond the instant case;
the earlier decision in the MPP’s case, the submissions of O. Rhodes Vivour
JSC,is even more interesting as it tends to go beyond the instant case;
“In this appeal, this
court says that legal processes without stamp or seal are voidable. That is to
say such documents are deemed not to have been properly signed and not that
they are invalid. Such documents are redeemed and made valid by a simple
directive by the judge or the relevant authority at the time of filing the
voidable document for erring counsel to affix stamp and seal as provided for in
Rule 10 of the LPA.”
court says that legal processes without stamp or seal are voidable. That is to
say such documents are deemed not to have been properly signed and not that
they are invalid. Such documents are redeemed and made valid by a simple
directive by the judge or the relevant authority at the time of filing the
voidable document for erring counsel to affix stamp and seal as provided for in
Rule 10 of the LPA.”
His lordship, S.N.
Onnoghen JSC. concurredwith the above positionthus;
Onnoghen JSC. concurredwith the above positionthus;
“The provision of the
Rules (of professional conduct )…is not a substitute for the substantive law on
the matter, that is why non compliance thereto renders the document
involved/concerned voidable , not void or a nullity”( emphasis supplied ).
Rules (of professional conduct )…is not a substitute for the substantive law on
the matter, that is why non compliance thereto renders the document
involved/concerned voidable , not void or a nullity”( emphasis supplied ).
It becomes deducible that the learned justices, in order
to achieve substantial justice in the case and also lay a solid foundation for
future cases, held that a defect in a
notice of appeal (an originating process) as a result of non compliance with or
non- affixing of the stamp/seal could be regularized. While this position seem
settled (at least for the appellate courts), the trial court still have some
hurdles to cross even as the legal community anticipates the apex court’s
decision on such matters after emanating from the trial courts. If justice is,
and still remains, a three way traffic, then the issue of stamp/seal at the
courts of first instance in Nigeria, still require some circumspection.
to achieve substantial justice in the case and also lay a solid foundation for
future cases, held that a defect in a
notice of appeal (an originating process) as a result of non compliance with or
non- affixing of the stamp/seal could be regularized. While this position seem
settled (at least for the appellate courts), the trial court still have some
hurdles to cross even as the legal community anticipates the apex court’s
decision on such matters after emanating from the trial courts. If justice is,
and still remains, a three way traffic, then the issue of stamp/seal at the
courts of first instance in Nigeria, still require some circumspection.
The scenario above presents
a classic case for introspection.While it may be asserted that, if it was an
interlocutory application, there would have been little or no difficulty for an
order to regularize but in the instant case, the Court may order for
regularization ala the Supreme Court’s decision in the APC’s case. However,
this will lead to a fundamental question: whither the import of the provision
of O.5 r.2(1) of the High Court Civil Procedure Rules of Niger state 2012
(other jurisdictions have similar provisions copied mutatis mutandis. E.g., see
O.5 r. 2(1) of the High Court Civic Procedure Rules of Lagos state 2012) which
state thus;
a classic case for introspection.While it may be asserted that, if it was an
interlocutory application, there would have been little or no difficulty for an
order to regularize but in the instant case, the Court may order for
regularization ala the Supreme Court’s decision in the APC’s case. However,
this will lead to a fundamental question: whither the import of the provision
of O.5 r.2(1) of the High Court Civil Procedure Rules of Niger state 2012
(other jurisdictions have similar provisions copied mutatis mutandis. E.g., see
O.5 r. 2(1) of the High Court Civic Procedure Rules of Lagos state 2012) which
state thus;
“Where in beginning or
purporting to begin any proceeding, there has by reason of anything done or
left undone, been a failure to comply with these Rules, the failure shall
nullify the proceedings.”
purporting to begin any proceeding, there has by reason of anything done or
left undone, been a failure to comply with these Rules, the failure shall
nullify the proceedings.”
On the other hand, if the
court strikes out the suit, bearing in mind the provisions of Section 122(2)(j)
of the Evidence Act 2011, then it might just be difficult to resolve on how to
strike the balance between curing the mischief behind the stamp/seal and the
interest of substantial justice in the
case. Does the Plaintiff/Respondent lose the status of lawyer by mere
affixing an expired seal? One may therefore assert, albeit, not unarguable,
that it is quite unfair for the court to engage in an extreme attempt to cure
the mischief behind the stamp/seal even at the expense of its ultimate goal of
achieving manifest justice.
court strikes out the suit, bearing in mind the provisions of Section 122(2)(j)
of the Evidence Act 2011, then it might just be difficult to resolve on how to
strike the balance between curing the mischief behind the stamp/seal and the
interest of substantial justice in the
case. Does the Plaintiff/Respondent lose the status of lawyer by mere
affixing an expired seal? One may therefore assert, albeit, not unarguable,
that it is quite unfair for the court to engage in an extreme attempt to cure
the mischief behind the stamp/seal even at the expense of its ultimate goal of
achieving manifest justice.
Still on the scenario,
assuming the Defendant/Applicant, after noticing the absence of the stamp/seal,
decided to stay mute and went through the trial which lasted three years, and
in the final address, raised the issue, what will be the approach of the court
in its judgment? Or in the alternative and worst still, if he raises it first
time on appeal, what will be the likely outcome of such objection on the case
as a whole? Bearing in mind the supreme courts decision, the Ruleof Court and
the travails of litigation for three years. While all these unanswered
questions takes the semblance of an academic one for now, the argument and
opinion will continue until the apex court is confronted with such an issue for
determination. Perhaps, the words of Onnoghen JSC in the APC’s case may
inherently stand as a signpost in the future;
assuming the Defendant/Applicant, after noticing the absence of the stamp/seal,
decided to stay mute and went through the trial which lasted three years, and
in the final address, raised the issue, what will be the approach of the court
in its judgment? Or in the alternative and worst still, if he raises it first
time on appeal, what will be the likely outcome of such objection on the case
as a whole? Bearing in mind the supreme courts decision, the Ruleof Court and
the travails of litigation for three years. While all these unanswered
questions takes the semblance of an academic one for now, the argument and
opinion will continue until the apex court is confronted with such an issue for
determination. Perhaps, the words of Onnoghen JSC in the APC’s case may
inherently stand as a signpost in the future;
“It is only fair to the
client, the legal profession and in the interest of justice that the legal
practitioner involved be given opportunity to prove his call to Bar and
enrollment at the supreme court of Nigeria by affixing his seal to the document
involved at any stage in the
proceeding including appeal or whenever
an objection to the authority of the document is raised…”
client, the legal profession and in the interest of justice that the legal
practitioner involved be given opportunity to prove his call to Bar and
enrollment at the supreme court of Nigeria by affixing his seal to the document
involved at any stage in the
proceeding including appeal or whenever
an objection to the authority of the document is raised…”
At the risk of overzealous
emphasis, the key phrase here is: “…By affixing his seal to the document
involved at any stage in the
proceeding including appeal or whenever
an objection…is raised.”
emphasis, the key phrase here is: “…By affixing his seal to the document
involved at any stage in the
proceeding including appeal or whenever
an objection…is raised.”
This is muchof a flexible
view to the stamp/sealconundrum , albeit, needing some harmonization with the
Rules of courts in Nigeria.
view to the stamp/sealconundrum , albeit, needing some harmonization with the
Rules of courts in Nigeria.
CONCLUSION
The NBA stamp/seal project
has come to stay and although the innovation remains laudable, there is still
need for expeditious improvement. This
is necessary, not just in achieving the objective-in-chief of the project, but
also for the smooth running of the overall system;lest constant objections from
some legal practitioners to what many (including litigants) may see as a pure
technical issue, may become an increasingly exasperating occurrence in our
courts.
has come to stay and although the innovation remains laudable, there is still
need for expeditious improvement. This
is necessary, not just in achieving the objective-in-chief of the project, but
also for the smooth running of the overall system;lest constant objections from
some legal practitioners to what many (including litigants) may see as a pure
technical issue, may become an increasingly exasperating occurrence in our
courts.
Therefore, bearing in mind
the current technical and administrative
challenges experienced by the NBA in issuing this stamp/seal to Lawyers,
there is need to tackle this teething problem from the root, and proactively.
the current technical and administrative
challenges experienced by the NBA in issuing this stamp/seal to Lawyers,
there is need to tackle this teething problem from the root, and proactively.
There is the need for a
synergy between the bench and the NBA branches across various statespursuant to
the circular by the CJN (Ref. NJC/CIR/HOC/171 dated 12th may 2015)
which reads in part; “…all Head of
Federal and State courts shall establish procedures for the implementation of
the stamp policy and it’s full utilization within all jurisdiction…”, to rise
to the occasion in the implementation of this well intended policy. The Chief
judges may issue practice direction to ensure proper compliance with the
stamp/seal ab initio. This direction may particularly be to the effect that, in
all the registries of courts in the state, where the appropriate stamp/seal is
not affixed on the process to be filed, it shall not be accepted for filing.
Furthermore, if possible, a special enlightenment program be organized for all
officers at the various registries of the courtsto educatethem on the need for
diligence and meticulous scrutiny on every process before it is accepted for
filing. Some jurisdictions are speedily implementing this policy (ies). For
example, Federal High Court in Lagos, from 15th0ctober, 2015, do not
accept any process for filing that does not carry the appropriate stamp/seal.
synergy between the bench and the NBA branches across various statespursuant to
the circular by the CJN (Ref. NJC/CIR/HOC/171 dated 12th may 2015)
which reads in part; “…all Head of
Federal and State courts shall establish procedures for the implementation of
the stamp policy and it’s full utilization within all jurisdiction…”, to rise
to the occasion in the implementation of this well intended policy. The Chief
judges may issue practice direction to ensure proper compliance with the
stamp/seal ab initio. This direction may particularly be to the effect that, in
all the registries of courts in the state, where the appropriate stamp/seal is
not affixed on the process to be filed, it shall not be accepted for filing.
Furthermore, if possible, a special enlightenment program be organized for all
officers at the various registries of the courtsto educatethem on the need for
diligence and meticulous scrutiny on every process before it is accepted for
filing. Some jurisdictions are speedily implementing this policy (ies). For
example, Federal High Court in Lagos, from 15th0ctober, 2015, do not
accept any process for filing that does not carry the appropriate stamp/seal.
Finally, it is submitted
that while putting emphasis on rigid
compliance with the stamp/seal directive
above curing the mischief may be counterproductive in the long run, a liberalapproach
as afore pinpointed, will do much good to the entire legal profession in
Nigeria, more particularly the litigation process.
that while putting emphasis on rigid
compliance with the stamp/seal directive
above curing the mischief may be counterproductive in the long run, a liberalapproach
as afore pinpointed, will do much good to the entire legal profession in
Nigeria, more particularly the litigation process.
J.N. YISAPATI
Principal Partner;
YISAPATI & CO.,
9/10 Najoji complex,
beside Mr. Bigg’s,
Tunga-Minna,
Niger
state.
state.