ENDORSEMENT OF COURT PROCESSES: A REFLECTION FOR THE NIGERIAN COURTS



ENDORSEMENT OF COURT PROCESSES: BETWEEN TECHNICALITIES AND SUBSTANTIAL JUSTICE; A REFLECTION FOR THE NIGERIAN COURTS*

CASE REVIEW: KOLE ABE v. REV. O.O. WILLIAMS**


ABSTRACT
In recent times, our Courts have stressed the need to conserve and maintain the integrity of legal profession, especially legal practice. Regrettably, in practice, this has shown to be, at least sometimes, at loggerheads with its ultimate goal of achieving justice. While rivalry or any form of competition remains alien to the legal profession, it cannot be gainsaid that legal practitioners are, most often than not, retained with presumed competency. In the light of the disputes arising from the endorsement of court processes, this paper highlights the need for a judicial reflection and refinement in providing for a balanced mechanism between the path to justice and justice itself. It argues that while the signing of court processes is established as correlative of jurisdiction, there is urgent need to provide some qualification or exception, in the overall interest of justice. It therefore becomes debatable to assert that whereas distinguishing cases appear a seemingly herculean task for trial courts, the current position on the authentication of court processes seem to be a sacrifice of professional integrity at the expense of the demands of justice; needless to say, the overall effect is, or has shown to be, on the litigants losing faith in the courts as the last hope of the common man.

Keywords: Endorsement, Justice, Jurisdiction, Legal Practitioner, Court Process
  
*D.A. NWAZE, LLB, B.L (in view). The author is a Student of the Nigerian Law School, Enugu Campus.
**Judgment delivered by Her Lordship, Hon. Justice M.A. DADA (MRS.), Judge at Court No. 17, Badagry, Lagos state, on the 15th day of April, 2015.

                             
INTRODUCTION
The quartet virtues of independence, confidentiality, avoidance of conflict of interest and maintenance of professional integrity are key canons which, from time immemorial, provided the emblem through which the lay world see the legal profession, unsurprisingly, these virtues, with the passage of time, have gained the force of law. In Nigeria, for instance, a lawyer is forbidden, inter alia, from aiding a non-lawyer in the unauthorized practice of the law[1] or to form partnership with a non-lawyer[2] or even to share the legal fees.[3] Even our Courts have agreed that legal practice is a serious business for the learned and the infiltration of the unlearned, in whatever guise, must receive sharp open resistance and rebuke.[4]
On the other hand, it has become well stated that in doing justice, our courts have departed from the era of technicalities to the trend of interpreting the law with a view to determine the rights of parties in a suit. The Supreme Court emphasised this in Nneji v. Chukwu,[5] while re-echoing the observations of Lord Penzance in Comb v. Edwards;[6]
                                                                                                                                   
“The spirit of justice does not reside in formalities or words, nor is the triumph of its administration to be found in successful picking a way between pitfalls of technicalities. After all, the law is, or ought to be, but the handmaid of justice, and inflexibility, which is the most becoming robe of law, often serves to render justice grotesque…” (emphasis supplied)

It has been established by the Supreme Court that the endorsement or signing of court processes must be according to laid down procedures, failure of which is an irregularity irreparable in law; leaving the suit liable to be struck out for incompetence.[7] In analysing cases of corruption in Nigeria, a writer had asserted that "in nearly all the...cases, the arguments often placed before the courts by the defence are, it seems, presented largely to obstruct the court process with empty technicalities involving non-compliance with procedural requirements..."[8] The veracity of this assertion, sadly to say, seems obvious and extends beyond corruption cases.
In appreciating the objective of this work, it will be apposite to succinctly appraise some key terminologies and their established principles to wit; JURISDICTION, COURT PROCESS, JUSTICE. This trio concept will provide a firm structure towards grasping the entire aim of this work.

JURISDICTION
The term ‘jurisdiction’ has been authoritatively defined simply as “a court’s power to decide a case or issue”.[9] Judicially, according to Adekeye JCA (as he then was) in A.G (Oyo state) v. N.L.C;[10]

“The word jurisdiction means the authority which a court has to decide matters before it or to take cognizance of matters presented in a formal way for its decision.”

As a fundamental aspect of adjudication donated to a particular court by the constitution and the enabling statute,[11] the issue of jurisdiction has judicially evolved in itself, certain salient principles. Whereas it is well settled that it is the nature of the plaintiff’s claim that determines jurisdiction,[12] our apex court has established other factors that are condition precedent to the exercise of jurisdiction. The time-honoured principle of jurisdiction laid down in Madukolu v. Nkemdilim[13] was restated by the apex court in Nwankwo v. Yar’adua[14] thus;

“The law is indeed trite that a court is only competent to exercise jurisdiction in respect of any matter where;
1.      It is properly constituted as regards the number and qualification of the members and no member is disqualified for one reason or the other.
2.      The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction;
3.      The case comes by due process of the law and upon fulfilment of any condition precedent to the exercise of jurisdiction.” (emphasis supplied)[15]

Thus, it is well settled that as a threshold issue, it must be resolved first before further steps can be taken in the suit;[16] also, it can be raised at anytime in a proceeding, even first time on appeal.[17] Judicial decisions are on all fours that the issue of jurisdiction cannot be waived by a party to ma suit,[18] similarly too, once a court lacks jurisdiction, a party cannot use any statutory provision or common law principle to impose it because absence of jurisdiction is irreparable in law; the matter ends there and the only procedural duty of the court is to strike the matter out.[19] Furthermore, the courts have distinguished substantive from procedural jurisdiction, for while the latter can be waived by the court, the former cannot.[20] For the purpose of this work, focus will be on the substantive jurisdiction because as we shall later see, failure of a party or the court to observe any of the three conditions aforementioned, the case will be treated as affecting the substantive jurisdiction of the particular court.
From all said therefore, it becomes lucidly deducible that the issue of jurisdiction is sacrosanct in the process of adjudication. A plaintiff who pursues his relief in a court that lacks jurisdiction is analogous to a vibrant athlete who commenced the race on the wrong lane or derailed en route, for in spite his speedy disposition, his fate is predictable.

COURT PROCESS
Though not a term open to any form of academic debate, the Black’s law dictionary gave a hint by defining a ‘Civil process’ as “A process that issues…a civil suit; A summon or writ, esp. to appear or respond in court.”[21] The term can therefore be widely and loosely defined as all legal documents filed in court for the purpose of adjudication, pursuant to the court determining the rights of the parties (in civil suits). In other words, court processes, otherwise called processes of court, provides the medium through which the court arrives at a just determination of the case before it. The court achieves this by a careful perusal and critical examination of each documents as filed from commencement of the suit to the day of final judgment.
The need to uphold the and preserve the canons of the legal profession and indeed legal practice, as hitherto highlighted, has made it imperative that documents or processes, filed before the court are prepared by legal practitioners and only those qualified as such. This is achieve through the process of franking, otherwise called authentication or endorsement, our courts as custodians of the laws have consistently and vehemently stressed the need for legal practice to be a terrain for the learned mind;

“Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country..."[22]

In the above lead decision, our apex court found it expedient to timeously "arrest the current embarrassing trend in legal practice where authentication or franking of legal documents, particularly processes (sic) for filing at the courts have not been receiving the serious attention they deserve from some legal practitioners."[23]
A legal practitioner enjoys the exclusive right to prepare on behalf of his client, court processes for the purposes of proceedings in any court of record in Nigeria.[24] Such processes include claims, pleadings, motions and affidavits, written addresses and others, and usually contain the name and the address of the legal practitioner and the fact that he is acting for a stated party in the proceedings.[25] Furthermore, recently, the Supreme Court while remarking on this issue instructively directed how such endorsement should be done;

"First, the signature of counsel which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of legal firm."[26]

On being called to the Bar, a legal practitioner must decide on how he intends to practice law, however, it is not uncommon in Nigeria to see a firm of legal practitioners carrying on practice under the firm's name. It therefore suffices to say that in such circumstance, it expected that the lawyer in charge of a particular case should endorse every court process in the format expounded above. In the case of partnership practice, the lawyers may undertake to register it under Part B of the Companies and Allied Matters Act.[27]
If it takes two to tango, then one must set the ball rolling. In civil proceedings, the plaintiff frontloads and serve all necessary processes on the defendant, the latter in turn is expected to do same in countering those facts alleged in the plaintiff’s claims. This process of exchanging documents or pleadings continues till judgment is reserved.[28] It follows therefore that all Processes in the process must conform to the procedure of endorsement laid down above. By some form of Bench reasoning, failure or neglect to endorse as such is treated as affecting the last arm of condition precedent to the exercise of jurisdiction; “The case comes by due process of the law and upon fulfilment of any condition precedent to the exercise of jurisdiction”, a fortiori, as touching the substantial jurisdiction of that court. This error is fatal to the entire case as the process will be incompetent to serve its purpose[29] or the entire suit struck out for being incompetent.[30] Therefore, it suffices to be noted that from the established decisions of our apex court,[31] all court processes shall be endorsed;
a.      In the name of a legal practitioner OR
b.      In the name of a law firm, provided the firm is registered OR
c.      In the case of a person (who must be a legal practitioner) signing for or on behalf of another legal practitioner in charge of a case (perhaps the Principal), such person must include his name and designation. The mischief being avoided, according to the court, “is to avoid a situation where a clerk, messenger or secretary would sign processes filed in court on behalf of principal partners in chambers…”[32]

JUSTICE
Equity as a body of principles designed to complement the law, evolved in order to ensure that there is justice in every given case. Though the term “justice” cannot be put into a water-tight compartment, the Black’s law dictionary succinctly defines it as “the fair and proper administration of laws.”[33] In the same vein, it is defined as “the quality of being just; integrity; impartiality; rightness; the awarding of what is due; the administration of law.”[34]
There are different types or ways of categorizing the concept of justice, however, this work will avoid delving into jurisprudential theories on the concept while familiar aspects of it, as may be needful, will be highlighted. In the Nigerian legal jurisprudence, it is not uncommon to hear of “substantial justice”, “technical justice”, and “miscarriage of justice”, at least, the law reports are replete with the usage of these terms and their application and meanings have been aptly given by the various courts.[35] While “substantial justice” could be interpreted to mean administration of justice according to the rules of substantive law, regardless of any procedural error not affecting the litigants substantive rights; a fair trial on the merits, “technical justice” could be said to be administering justice based on technicalities and which might not afford the court or tribunal the opportunity of looking into the merits of a party’s case. “Miscarriage of justice”, in descriptive terms, occurs when technical justice prevails over substantial justice.[36]
There is no gainsaying that the trend these days in litigation is the tendency of courts, as much as possible, to depart from strict adherence to technicalities in order to do substantial justice. In Aigbobahi v. Alfuwa,[37] Onnoghen JSC stated that;

“Counsel must always bear in mind that…this court has changed from doing technical justice to substantial justice…the courts are enjoined to do substantial justice in relation thereto without recourse to form or technicalities.”

Also, in Safari Textiles Ltd. v. Jide Akpa,[38] the court selected its diction thus;
“the vogue now in the courts is doing substantial justice as opposed to technical justice…what is left for the courts is to do substantial justice to the parties…”[39]

It becomes clear therefore that the prevailing approach to litigation, adopted in many jurisdictions of the world nowadays, is that cases are decided fairly on their merits and not on procedural requirements that are of a technical nature when they do not result in real prejudice and injustice to any of the parties, especially the defendants.[40] The courts in UK are in tandem with this position and thus reasoned in Thorner v. Major[41] that;

“Focusing on technicalities can lead to a degree of strictness inconsistent with the fundamental aims of equity.”[42]

From all said, it suffices to say that, if justice is equated with fairness, then justice in any case demands that the compelling rights of the parties must be taken into account and balanced in such a way that justice is not only done but must manifestly be seen to be done.
A genuine understanding of the above concepts and their intertwinement connotes that the objective of this work is half-solved.

CASE REVIEW
MR. KOLE ABE v. REV. O. WILLIAMS & ORS. SUIT NO.: ID/1149/2011.[43]

Summary of the Case[44]
The claimant by his writ of summons and Statement of claim dated 18th October, 2011 claims against the Defendants as follows:[45]
      a. A declaration that the purported sale of the property situated at 71A, Shyllon Street, Palmgrove, Lagos by the 4th and 5th Defendants to the 1st, 2nd, and 3rd Defendants is a breach of the contractual agreement between the 4th and 5th Defendants and the members of ‘The Light House’ being the Claimant, 1st Defendant, 2nd Defendant and two others.
     b. A declaration that the purported purchase of the property situated at 71A,Shyllon Street, Palmgrove, Lagos by the 1st, 2nd, 3rd Defendants is a breach of trust and a wilful violation of the agreement to jointly but the property by members of ‘The Light House’ as a group.
      c. An order that the Claimant is a part owner of the property situated at 71A, Shyllon Street, Palmgrove, Lagos.
     d. An order that the Claimant as a member of ‘The Light House’ cannot be excluded from the purported sale of the property situated at 71A,Shyllon Street, Palmgrove, Lagos by the 1st, 2nd, 3rd Defendants.
    e. An order that the Claimant as a part owner of the property situated at 71A, Shyllon Street, Palmgrove, Lagos, cannot be excluded from the said property.
   f.  An order nullifying the purported sale of the property situated at 71A,Shyllon Street, Palmgrove, Lagos by the 4th and 5th Defendants to the 1st, 2nd and 3rd Defendants as it constitutes an act of connivance by the 4th and 5th Defendants with the 1st, 2nd, 3rd Defendants to wilfully violate the agreement among members of the Lighthouse.
      g. General damages in the sum of 50,000,000 (Fifty Million Naira Only).
      h. Cost of this action.
The Claimant, Mr. Kole Abe himself alone testified in which he tendered two sets of documents which were marked as Exhibit 1-17. He was cross-examined (Exhibit 18 was tendered in the process) and later re-examined. That brought the Claimant case to a close.[46]
The Defendants in defence and Counter-claim called two witnesses.[47] DW1 was Rev. Adeoye Adedeji David, who tendered two sets of documents which were marked as Exhibits D-D5 and D6 and D7 respectively. He was thereafter cross-examined and there was no re-examination. DW2 was Rev. O.O. Williams who, after adopting his Written Statement on oath, was cross-examined and there was no re-examination.[48]
This finally ended the trial. Parties by their respective Counsel thereafter filed their Final Written Addresses.[49] Learned counsel for the defendants, Mr. Adejare Kembi raised a preliminary issue thus;[50] Whether the writ of summons issued on the 20th October, 2011, the Statement of claim, the List of documents to be relied upon, and the Claimant’s list of witnesses signed by an unknown person for Dr. Abiola Sanni is not invalid as the person who signed cannot be ascertained to be one of those whose name is on the roll of legal practitioners contained at the Supreme Court. Citing the cases of F.B.N Plc v. Maiwada and the well known case of Madukolu v. Nkemdilim, he maintained that the case was not initiated with due process of the law and thus incompetent and should be dismissed. He then went further that “assuming without conceding that the preliminary issue fails…”, then considering five issues which he raised as distilled from the pleadings and the evidence led, he urged the Court to dismiss the claim of the Claimant based on the following grounds;
1.      That the Sale of the Property is not in breach of any contract as there was no contract in existence as at the time of sale.
2.      That the evidence of the Claimant, the Memorandum of Understanding was only entered into on the 17th July 2009, 17 days after the contract has lapsed and as a result there is no agreement in existence.
3.      That the facts in existence show that there is in fact and in law, no group known as ‘The LightHouse’ that is capable of benefiting from a trust.
4.      That having admitted that no consideration passed, the Court cannot make an order that the Claimant is an owner of the property situate at 71A, Shyllon Street, Palmgrove, Lagos.
He finally urged the court to dismiss all other claims of the Claimant as none had been proved on the balance of probabilities, on his Counter-claim, he concluded by urging the court to grant his prayers in its entirety.[51]
Learned counsel for the Claimant, Dr. Abiola Sanni raised five issues among which included;[52] ‘Whether the Claimant Writ of summons and other originating processes dated 20th October was signed by an unknown person for Dr. Abiola Sanni? He submitted that he had complied with the requirement by writing the name of “Dr. Abiola Sanni together with his signature marked with a biro…that the Writ of summons and the originating processes on their faces contained the name and the authentication mark or signature of Dr. Abiola Sanni and that there is nothing on the face of the writ and other processes suggesting that they were signed on behalf of or for Dr. Abiola Sanni.”
While he sought to distinguish the cases, he finally urged the honourable to discountenance the arguments of the defendants and uphold the claims of the Claimants.[53]
Her Lordship commenced her decision by stating thus; “The preliminary issue raised by the defence borders on the competency of this suit and is therefore a threshold issue which calls the jurisdiction of this court into question.”[54] The learned Justice, while quoting with approval the case of Akintunde Aromire & Ors v. Mr. Ibrahim Taiwo Ajomagberin & Ors,[55] held as follows:
“…the Claimant herein has not sued in person but by Dr. ABIOLA SANNI of ABIOLA SANNI & CO. However there is no gainsaying the fact that the said Writ of Summons, Statement of claim, List of Witnesses and Claimant’s List of Documents to be relied on all dated 18th October, 2011 (sic) were all signed not by the named Counsel himself but for him by indeed nameless person with no identity. For all we know, it could have been a clerk or a Receptionist or even a messenger!”[56]
The Learned Justice then concluded thus;
“This is clear failure to comply with the requirement of the law which therefore without much ado renders the entire process incompetent and these proceedings a share waste of time. To go beyond this will be an academic exercise in futility…The whole suit is therefore hereby (sic) struck out for incompetence. The Counter-claim premised on the same originating processes also suffers the same fate. I so hold.”[57]
From the decision of her Lordship above, some issues become apparent:
1.      Were the court processes, particularly the Writ of summons and Statement of claim, signed or authenticated by an indeed nameless person with no identity?
2.      What is the fate of a Counter-claim where the substantive action fails or is dismissed?
3.      Where is substantial justice in this case?[58]
ISSUE 1
For the purpose of clarity in emphasis, the Statement of claim, as well as other frontloaded documents, was endorsed thus;Dr. AbiolaSanni
Abiola Sanni & CO
151, Herbert Macaulay way Adekunle, Yaba, Lagos.

From the above, it is clear that the Counsel failed to adhere strictly to the procedure laid down in the signing of Court processes, particularly, the requirement to indicate “…who Counsel represents.”[60] It may therefore be reasoned that Dr. Abiola Sanni could be anybody (Clerk, Messenger, Cleaner or any auxiliary staff) in the Chambers of Abiola Sanni & CO. Thus, on the face of the document(s), the learned Justice could not be said to have strayed in reasoning as her decision was anchored on judicial precedence.
ISSUE 2
It is well settled law that a counter-claim is inherently in nature, a cross action, raised in the defendant’s Statement of defence against the Claimant, it is therefore, an independent suit which for convenience of procedure, is combined in another action.[61] Furthermore, it has been held that a Counter-claim, not being a shield but a sword, is not a defence but an action itself.[62]
With due respect, it is submitted that the Learned Justice erred (in law) in the decision that the Counter-claim premised on the same originating process also suffers the same fate.[63] There are a plethora of decisions that establishes the law that the fate of a Counter-claim does not depend on the substantive claim, in fact, the Counter-claim may still proceed even if the substantive action fails.[64]
In Obolo & Ors v. Ilukoyanikan & Ors,[65] a case which is on all fours with the instant one, an appeal was allowed because, having decided that the court lacked jurisdiction, the trial judge failed to consider the appellant’s Counter-claim on its own merit. The court of appeal went further thus;

“The law is that although filed within an existing action, a counter-claim is a substantive action in its own right. It is separate independent action. It maintains its uniqueness and stands or fall on its own…if for any reason the plaintiff’s claim is stayed, discontinued or dismissed, the court may nevertheless proceed with the counter-claim and still grant the defendant’s reliefs prayed for by his counter-claim.”[66](emphasis mine)

It is therefore humbly submitted that the Learned Justice erred in law, more so, the counter-claim, being a separate action, the Court ought to have considered its merits and decide on it, giving reason therein. It becomes even more regrettable that her Lordship failed to cite any authority (ies) which she considers to be in accordance with her decision on the Counter-claim; the principle of stare decisis, inherent in our legal system, must never be held in abeyance.

BEYOND KOLE ABE’S CASE: WITHER SUBSTANTIAL JUSTICE IN THE ENDORSEMENT OF COURT PROCESSES?
The endorsement of court processes, just like other salient legal issues that underwent Bench surgeries, was controversial but finally laid to rest recently by the Supreme Court.
In Registered Trustees of the Apostolic Church v. Rahman,[67] the supreme court held that a notice of appeal signed with the name of the legal practitioner ‘J.A. Cole’ for ‘J.A. Cole’ was invalid and not properly before the court. In Okafor v. Nweke,[68] a motion on notice, notice of Cross-Appeal and a brief of argument all signed by ‘JHC Okolo SAN & CO’ were all held to be incompetent and consequently struck out. However, in Ogundele v. Agiri,[69] the apex court, while holding that a brief of argument signed as ‘Ajibola& CO’ was invalid and incompetent, expressed some reservations that except such name of law firm is registered.[70] The current position seem to be the case of S.L.B Consortium Ltd. v. N.N.P.C,[71] where the court, in construing the Federal High Court (Civil Procedure) Rules[72] as well as the Legal Practitioners Act[73] in line with the decision in Okafor v. Nweke,[74] struck out the plaintiff’s originating summons and statement of claim, both having been signed by ‘Adewale Adesokan & CO’. More recently, the apex court in Alhaji Tajudeen Babatunde Hamzat & Anr v. Alhaji Saliu Ireyemi Sanni & Ors[75] held that a statement of claim signed as ‘Olumuyiwa Obanewa & CO’ was incompetent but upheld the validity of the originating process. In fact, the Supreme Court was of the view that with the conclusion of trial on the merit even on the incompetent statement of claim, the proper order to make was one dismissing the action.
From all the above cases, one may hardly agree that substantial justice was manifestly done. Counsels who often raise the point anchor their arguments on the combined provisions of the Rules of Court and the Legal Practitioners Act. It is apposite to reproduce the relevant Sections:
The Act[76] states that;

“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.”
It further defines a Legal Practitioner as;

“A person entitled in accordance with the provisions of this Act to practice as a barrister or as a solicitor, either generally or for the purposes of any particular office or proceedings.”[77]

The various Rules of courts appear to be in unison to the effect that;
“Pleadings shall be signed by a legal practitioner or by the party (litigant) if he sues or defends in person.”[78] (emphasis supplied)

Apart from the fact that those cases seem to betray substantial justice, these Sections tend to lack logical coherency when juxtaposed with the endorsement of court processes; at best, they exhibit intricate technical validity which, with due respect, runs contrary to the principal aims of true justice. To engage in some form of academic exercise in optimism, one may be apt to reason that while the LPA referred to practice as a ‘Barrister and Solicitor’, it however failed to define ‘practice’ for the purpose of the Act. Since even litigants (non-legal practitioners) can sign court processes, it can therefore be construed that ‘signing’ is not included in the term ‘practice’ of the law, otherwise, it may suggest that litigants are included when interpreting “Barristers and Solicitors”.[79] Furthermore, if litigants, in signing a court process are allowed to adopt a method that sufficiently discloses their identity, will it not be incongruent to place a much strict provision with regards to legal Practioners?[80] In the KOLE ABE’S case under review, the counsel to the Claimants did not dispute the fact that he himself signed those processes, perhaps out of sheer negligence or some other humane inadequacies, he failed to indicate “legal practitioners/Solicitors to the Claimants…”, this error culminated into giving the defence a legal loophole to capitalise on and abysmal to say, the inconveniences and rigorous demands of going through litigation for four years suffered subserviency to consideration of established decisions on technical pitfalls, even at the expense of the demands of justice in the case.[81] No doubt, in Akaniwon v. Nsirim,[82] Niki Tobi JSC (as he then was), while dissenting from the majority decision, re-echoed the words of Bowen J. in Cropper v. Smith,[83] thus;

“Now…it is well established principle that the objects of courts is to decide the rights of the parties and not to punish them for the mistakes which they make in the conduct of their cases…I know of no kind of error or mistake which, if not fraudulent…the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy….”

As the Learned Justice’s decision, in the KOLE ABE’S case, can be seen as one of those demerits of Stare decisis, it is submitted with all due respect, that it is time for the Supreme Court to reflect on this issue as the law ought not to be enveloped in inflexibilities even when the demands of justice (the Court’s ultimate goal) beckons.

CONCLUSION
In the interest of the much professed need to do substantial justice by our courts, certain submissions which form the fulcrum of this work are worth considering. Whereas it is settled that in law, every general rule has an exception(s), it is the author’s assertion that, where a general rule which has, or ought to accommodate some exception(s), is not provided with such exception (whether by the legislature or the courts), the propinquity to consistency in adherence becomes wide and onerous; not necessarily by willful act but the human frailty as a factor.
It is therefore humbly submitted that in considering the third arm of conditions precedent in the exercise of jurisdiction by a court, in so far as it relates to the signing of court processes, its determination should be subject to how timeous the objector[84] was, in raising it; at what stage of the proceedings it was raised.
Where the issue is raised at the commencement of proceedings[85] and sustained, the court should strike out the action or the particular process for being incompetent as is the current position. But where the issue of who signed a court process is raised subsequently in the course of the proceedings,[86] the court, unless satisfied that the Process was signed otherwise than by a legal practitioner, should not strike out the action but should, in the interest of justice, direct ‘regularization’ and may award cost as it deems fit in the circumstances of the case.
Furthermore, where the objection is based on a process not signed by a legal practitioner or a nameless or unidentified person, the objector or asserter should have the burden of proving the basis of same.[87] At least, a ‘prima facie basis’ which may be achieved, perhaps by showing evidence of the Counsel’s signature in some other document(s), e.g., other Court processes, Bank details etc, which is inconsistent with that in the instant case. An assertion ipse dixit should not suffice in such circumstance, it is only where he satisfies the court that his assertion has basis that the burden shifts to the other party (claimant) to prove that the process was indeed signed by (him) a legal practitioner and not even a nameless person. In such cases, the court should direct ‘regularization’ (if need be)[88] and the proceedings continue, but if the court is satisfied that the process was signed otherwise than by a legal practitioner, it should strike out the action.
On the other hand, if the objection relates to the process being signed in the name of an unregistered law firm, the same procedure stated above should be adopted and where the onus shifts, the claimants shall lead evidence to show;
1.      That the process was signed by a legal practitioner in that firm;
2.      The legal practitioner who signed it.[89]
Alternatively, where the firm is registered, the counsel to the claimant may lead evidence to prove that the firm is duly registered as a business name under Part B of CAMA.
It is also humbly submitted that, since it touches on the jurisdiction of the court, at all times when the trial court rules on the objection, a party not satisfied with the ruling has a right of appeal up to the Supreme Court.[90]
There need to provide for a fair method of dealing with cases on the signing of court processes on appeal becomes even more paramount, thus, it is submitted that, it should be incorporated into our Laws or Rules of Appellate courts or better still, be developed in subsequent decisions of appellate courts that;

It shall not be a ground of appeal that the originating process or some other processes filed in a case that has been determined at the trial court, was signed otherwise than by a legal practitioner.
Procedural competency should not be the business of an appellate Court, where it is not raised at the trial court, it should be regarded that the defendant (by filing documents and going through the trial) has waived his right to do so or has acquiesced the error.[91]
            There can be no end to disputes and litigation in civil societies and our supreme court will continue to trace and find the lonely path to justice in the light of the peculiarity of each case before it. In Okechukwu v. Onuorah,[92] the Supreme Court moved further from its earlier decision[93] and held that where the commencement date of a lease is tied to an uncertain event, the lease is valid (upon the occurrence of that event). Similarly, in Onuorah v. K.R.P.C Ltd.,[94] our apex court seemed to have jettisoned its earlier position[95] when construing S. 230(1) of the 1979 Constitution[96] as well as actions involving Federal Government agencies and thus held that “…the jurisdiction of Federal High Court does not admit matters of simple contracts between the parties.” It is settled that the Supreme Court can, and in fact have, overrule itself and in each of the above cases, it was in bonafide attempt to do substantial justice to the case.[97]
It is therefore submitted in optimism that the views in this work will soon find a place in the law reports.  
  
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[1] Rules of Professional Conduct for legal Practitioners (herein referred to as RPC). R. 3(1)(a)
[2] R. (5)(1), RPC
[3] Ibid. r. 3(1). Exceptions in Rule 53
[4] See the case of Okafor v. Nweke (2007) 10 NWLR (pt. 1043) SC 521
[5] (1988) 3 NWLR (pt. 81) SC 184
[6] (1878) LR 3 PD 142
[7] SLB Consortium v. NNPC (2011) CLRN 1
[8] Dr. Ajetunmobi, Akingbola’s case, technicalities and judicial integrity (1). Available at www.punchng.com. Last visited: 20-05-15
[9] Garner B.A., Black’s law dictionary, (West Publishers, St. Minn, 9th Ed., 2009) at P. 927
[10] (2003) 8 NWLR (pt. 821) 1
[11] Gafar v. Govt., Kwara state (2007) 4 NWLR (pt. 1024) 375
[12] Okulate v. Owusanya (2000) 2 NWLR (pt. 646) 530
[13] (1962) 2 SCNLR 341
[14] (2010) 12 NWLR (pt. 1209) P. 518 at 560, paras. E-H.
[15] The underlined words is for emphasis only
[16] FRIN v. Gold (2007) 11 NWLR (pt. 1044) 1
[17] (2002) 7 NWLR (pt. 766) 272 at 294
[18] FRN v. Ifegwu (2003) 15 NWLR (pt. 842) 113
[19] See Esan A., The Principles of law on the jurisdiction of courts of law in Nigeria. Paper presented to mark his first decade at the Bar. Also available at http://akintundeesan.blogspot.ru/2013/06. last visited: 15-05-15
[20] MOBIL v. LASEPA (2003) 204 LRCN 240
[21] Garner B.A., Black’s law dictionary, (St. Paul Minn, 7th Ed., 1999) at P. 1222
[22] Okafor v. Nweke (supra)
[23] Ibid. per Onnoghen JSC.
[24] See the Legal Practitioners Act (herein referred to as LPA). S. 22(1)(d)
[25] For further readings, see Okoye O.A., Law in Practice, (Snaap Press (Nig.) Ltd., Enugu, 2011) at P. 26
[26] SLB Consortium v. NNPC (supra), per RHODES VIVOUR JSC
[27] See S. 656 of CAMA and conditions therein. Also Okoye O.A., opcit. at Pg. 252-255. The registration has some implications on the endorsement procedure, as we shall see below.
[28] For further readings, see Efeverhan D.I., Principles of civil procedure in Nigeria, (Snaap Press Ltd., Enugu, 2nd Ed., 2013) at Chapter 8 and 9
[29] As in Alhaji Tajudeen Babatunde Hamzat & Anr v. Alhaji Saliu Ireyemi Sanni & Ors (citation infra)
[30] Okafor v. Nweke (supra)
[31] infra
[32] Akintunde Aromire & Ors v. Mr. Ibrahim Taiwo Ajomagberin & Ors (2011) LPELR 3809
[33] Garner B.A., opcit. at P. 869
[34] The Chamber’s dictionary, (Harrap Publishers Ltd., 1998) at P. 873
[35] Fagbemi L.O. (SAN), True or false, the maxim justice delayed is justice denied has no relevance in the trial of election petition cases; paper presented to Hon. Justice Mustapha Akanbi Foundation on Wednesday, 21st July, 2010 at Sheraton Hotel & Towers, Abuja. at P. 7
[36] Ibid.
[37] (2006) 6 NWLR (pt. 976) 270 at 294
[38] Suit No. FCT/HC/CV/2047/2011
[39] Per Justice U.A. Musale
[40] Dr. Ajetunmobi, opcit.
[41] (2009) UKHL 18
[42] Per Lord Neuberger
[43] Judgment delivered by her Lordship, Hon. Justice M.A. DADA (Mrs.), Judge at Court No. 17, Badagry, Lagos state, on the 15th day of April, 2015
[44] A prĂ©cis of the 8-page judgment (herein referred to as ‘the judgment’
[45] The judgment at P. 1
[46] Ibid. at P. 2
[47] Ibid.
[48] Ibid. at P. 4
[49] Ibid.
[50] Ibid. at P. 4-5
[51] Ibid. at P. 5
[52] Ibid. at P. 5-6
[53] Ibid. at P. 7
[54] Ibid.
[55] supra
[56] The judgment at P. 7
[57] Ibid. at P. 7-8
[58] This will be dealt with subsequently
[59] The signature here is for clarity and not necessarily that on the Processes
[60] There is an omission of Solicitors to OR Legal practitioners to the Claimants…”
[61] See the case of Gowon v. Ike-Okongwu (2003) 104 LRCN 10
[62] Efeverhan D.I., opcit. at P. 273
[63] The judgment at P. 8
[64] See the cases of General Oil Ltd v. FSB Intl. Bank Plc (2005) 5 NWLR (pt. 919) 579. Jegede v. Citicon (Nig.) Ltd. (2001) 4 NWLR (pt. 702) 112.  Arab Chem. Ltd. v. Pharm. Ralph Owuduenyi (2013) LPELR-22367 CA.
[65] (2013) LPELR-20324 CA.
[66] Per Kekere-Ekun JCA (as he then was)
[67] (1967) 1 All NLR 118
[68] supra
[69] (2009) 18 NWLR (pt. 1173) SC 219
[70] The Court seemed to have construed the word ‘person’ in the LPA to mean either natural or artificial person.
[71] supra
[72] FHC (Civil Procedure) Rules, 2000.  S. 26
[73] S. 2(1) and S. 24
[74] supra
[75] Suit No. SC/95/2012/LN-e-LR/2015/2 (SC). Delivered on Friday, 30th January, 2015.
[76] The Legal Practitioners Act. S. 2(1)
[77] Ibid. S. 24 (the interpretation Section)
[78] For example, see O.15 r.2 of the Lagos state (Civil Procedure) Rules 2012
[79] Shasore O. (SAN), Justice Sector Efficiency-Legal Practice & and the signing of Court Processes. Available at http://www.ajumogobiaokeke.com/publications1.html. last accessed: 25-04-15, for further arguments and propositions on the endorsement of court processes in litigation
[80] Ibid.
[81] According to Lawal S.K., a ground for appeal could only be feasible if he can argue that the firm is registered.
[82] Suit No. SC 88/2001
[83] (1884) 26 QBD 700
[84] More often than not, it is the defence that raises objection on the issue of endorsement.
[85] ‘Commencement of proceedings’ here means before the plaintiff opens his case by calling his first witness.
[86] ‘Course of proceedings’ here means any other time after the plaintiff has opened his case.
[87] For example, in Mrs Amaka Nnamani v. Mrs Sabina Nnamani Suit No. FCT/HC/CV/4769/11, the signatures on the Processes were different from each other which raised the presumption that some other person(s) signed the process.
[88] Perhaps, the Counsel had signed the Process in such a way that it wasn’t so clear as to who signed it.
[89] The Court should concentrate on purging away the ‘mischief’ and not on punishing the Counsel, more so, it is well settled that the sin of a counsel should not be visited on the client.
[90] Just as a party not satisfied with a trial court’s ruling on a preliminary objection bordering on jurisdiction can appeal. 
[91] This is in line with the Rules of various Court. For example O.5 r.2(1) of the Lagos state (Civil Procedure) Rule states that “…an application to set aside for irregularity…may be allowed where it is made within a reasonable time…”. Equity assist the vigilant not the indolent, i.e., those who sleep on their rights.
[92] (2000) 12 SCNJ 146. See also thee case of Bosah v. Oji (2002) 6 NWLR (pt. 762) 137
[93] The position in Tejumola & sons v. UBA (1986) (pt. 38) 815.
[94] (2005) 6 NWLR (pt. 921) 393
[95] The position in NEPA v. Edegbero (2002) 18 NWLR (pt. 798) 79
[96] Now S. 250(1) of the 1999 Constitution (as amended).
[97] See the case of Adegoke Motors Ltd. v. Adesanya (1989) 2 NSCC 327.


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