SIGNING OF COURT PROCESSES: THE GENERAL PRACTICE AND THE SUPREME COURT APPROVAL

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1 THE RULE IN OKAFOR vs. NWEKE: COURT PROCESS IS INCOMPETENT IF SIGNED IN A FIRM'S NAME Generally speaking, a document is said to be executed when it is signed and delivered. Execution includes performance of all acts necessary to render a document complete and of every act required to give it validity or to carry it into effect (see Blacks Law Dictionary, 6 th Edition). It is largely for this reason that signatures appear usually at the end of documents. SIGNING OF COURT PROCESSES: THE GENERAL PRACTICE AND THE SUPREME COURT APPROVAL Like any other profession, certain acts and manners are common in the legal profession. They are referred to as the practice. Some of them are provided for in the law, others are not. Among the latter, some are overlooked, others are condemned. For example, holding watching brief, applying for a date because counsel's brief has not been perfected or counsel has just been briefed or counsel has the wrong file, applying for an order of force open etc. Court processes are always signed. Any document not signed is incompetent for having not been executed or completed. It is, therefore, invalid. In practice, Court processes prepared by parties are signed by litigants or their Solicitors or in the names of their Solicitors, or in

2 the names of their Solicitor s law firms. This is the rule in almost all commonwealth jurisdictions. This is so because such processes or Court forms usually have spaces for signatures. This practice was acknowledged or approved by the Supreme Court in Cole V. Martins (1968) 5 NSCC 123; (1968) 1 All NLR 161 where it was noted thus: 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. The Court also noted that: "No possible doubt or confusion can therefore arise in these circumstances". Thus the Supreme Court considered the issue a mere technicality. In fact, in an earlier case, the Supreme Court approved the use of J.A. Cole for J.A. Cole & Co. and held thus: It is not suggested that there is any professional objection to his doing this, and it is frequently done by solicitors in England, as the Law List shows. In our view the business name was correctly given as that of the legal practitioner representing the appellants. In signing the notice of appeal, Mr. Cole used his own name, that is to say the name in which he is registered as a legal practitioner. We hold that on any interpretation of the

3 rules that was sufficient compliance with them, and we do not accept the submission that the addition of the words (for J.A. Cole & Co.) would invalidate the signature if a signature in a business name was not permitted. See THE REGISTERED TRUSTEE OF APOSTOLIC CHURCH, LAGOS AREA VS. RAHMAN AKINDELE (1967) NMLR 263; (1967) 5 NSCC 119; (1967) 1 ALL NLR 110 In COLE V. MATTINS (supra) the name used in the Notice of Appeal was Lardner & Cole. However, the position of the law on this issue appears to have changed. In NNB PLC V. DENCLAG LTD (2005) 4 NWLR (PT 916) 573 CA the Court of Appeal gave Sections 2 (1) and 24 of the Legal Practitioners Act a literal interpretation and held that a Notice of Appeal signed in the name of Ibrahim Hamman & Co was incompetent, invalid and null and void having not been issued by a registered legal practitioner. THE TURN AROUND It was in OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521 that the Supreme Court had another opportunity to make a

4 pronouncement on the issue. In that case, the court processes were signed in the name of J.I.C. Okolo SAN & Co Although the case of REGISTERED TRUSTEE OF APOSTOLIC CHURCH V. AKINDELE (supra) was cited by the Appellants Counsel, the Supreme Court appears to have been persuaded by the case of N.N.B. PLC. V. DENCLAG LTD (supra) cited by the Respondents by holding that the Court processes were incompetent. It should be noted that the Court was largely influenced by its literal interpretation of Sections 2 (1) and 24 of the Legal Practitioners Act. Note also that neither the case of REGISTERED TRUSTEES OF APOSTOLIC CHURCH V. AKINDELE (supra) nor the case of COLE V. MATTINS (supra) was discussed by the Court in OKAFOR V. NWEKE (supra). Section 2(1) and 24 of the Legal Practitioners Act provide thus: Section 2(1): Subject to the provisions of this Act, a person shall be entitled to practise as barrister and solicitor if, and only if, his name is on the roll Section 24: Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor,

5 either generally or for the purpose of any particular office or proceedings. AND THE CONFUSION The rule in OKAFOR V. NWEKE (supra) that only a person whose name is on the roll and/or entitled to practise as a legal practitioner or as a barrister or as a barrister and solicitor either generally or for the purpose of any particular office or proceedings may sign Court processes has generated various views prominent among which are: (a) Okafor s case was decided per incuriam; (b) Okafor s case overruled Cole s case (c) Both cases amount to conflicting decisions. The three views will be discussed under the following heads: 1. Per Incuriam 2. Stare decisis/overrule 3. Conflicting Decisions PER INCURIAM: According to the Black s Law Dictionary, 6 th Edition, per incuriam means through inadvertence. When used in relation to a Court s decision, it means that the Court has reached its decision through inadvertence or, according to the Wharton s Law Lexicon, through some mistake or under some misapprehension. In ROSSEK V. ACB LTD (1993) 8 NWLR (PT. 312) 457, 493 the Supreme Court

6 stated that a case is decided per incuriam where a decision or statute or rule having statutory effect or other binding authority which would have affected the decision in the case had been ignored or forgotten or had not been brought to the attention of the court at the time of the decision of the case so that in such a case some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. In ELUFIOYE V. HALILU (1990) 2 NWLR (Pt. 130) 19 the Court of Appeal noted that the phrase is a euphemism for judicial ignorance. Was Okafor s case decided per incuriam? As mentioned earlier, neither the case of REGISTERED TRUSTEES OF APOSTOLIC CHURCH V. AKINDELE (supra) nor the case of COLE V. MATTINS (supra) was discussed, nay considered in Okafor s case. The Court focused on the provisions of the Legal Practitioners Act. The phrase used in Akindele s case was J.A. Cole for J.A. Cole & Co. It can be easily distinguished from Okafor s case in that the name of a legal practitioner, J.A. Cole, was distinct from the name of the firm, J.A. Cole & Co. admittedly, both names were written together but the word for which appears between them seems to be disjunctive rather than conjunctive. Neither in Cole s case nor in Okafor s case is such a distinction between the name of the Legal Practitioner and that of the firm possible. Both cases are, therefore, similar.

7 The difference between them however, is that they were decided on seemingly different statutes. Now, what are the features of each case? FEATURES: 1. Statute and Rule considered: Cole s case: Rule 4 of the Registration of Titles (Appeals) Rules; S. 18(1) of the interpretation Act (1964); Legal Practitioners Act (1962) Okafor s case: Section.2 (1) and 24 of the Legal Practitioners Act (1990) 2. Previous Decision considered: Cole s case: Akindele s case (supra) Okafor s case NIL 3. Facts: Cole s case: Mr. Lardner, a legal practitioner, signed a Notice of Appeal in the name Lardner & Co. which was the name under which he registered and practiced his trade as a legal practitioner. Okafor s case: Some Court processes were signed in the name of J.I.C. Okolo, SAN & Co.

8 4. Ratio decidendi: Cole s case: It is a sufficient compliance with the requirement of the law for a legal practitioner to sign documents/court processes under his business name which shows his name without creating any doubt or confusion as to which legal practitioner the name represents. Okafor s case: Any Court process signed in the name of a law firm is incompetent. Thus, in spite of the differences between the two cases, the decision of Cole s case was sufficient to influence the Court in Okafor s case or at least to make the Court consider and discuss it in Okafor s case. Even in UGU V. TABI (1997) 7 NWLR (PT. 513) 380 the Supreme Court considered (or at least referred to) its previous decision in SHOBOGUN V. SANNI (1974) 1 All NLR (pt. 2) 311 (on the scope of grant of Letters of Administration) before refusing to follow it. Having not considered Cole s case, Okafor s case was decided per incuriam. STARE DECISIS/OVERRULE: The view that a case is decided per incuriam has its roots in the doctrine of stare decisis which means to abide by former precedents where the same points come up again in litigation. It presupposes

9 that the law has been solemnly declared and determined in the former case. By the doctrine, not only the lower Court but also the same Court, is bound by the earlier decision. Thus, even the Supreme Court is bound by its earlier decision except in certain situations such as: 1. Where the previous decision has over a period of time perpetuated injustice through the doctrine of stare decisis. 2. Where the previous decision has impeded the development of law 3. Where it is in fact against public policy 4. Where it was given per incuriam (see JOHNSON V. LAWANSON (1971), ALL NLR 56) 5. Where it is erroneous on point of law or inconsistent with the constitution. See EGBOGHONOME V. STATE (1993) 7 NWLR (PT. 418 BUCKNOR-MACLEAN V. INLAKS LTD (1980) 8-11 SC 1@ 23-5; ORUBU V. N.E.C. (1988) 5 NWLR (PT. 94) 353; CLEMENT V. IWUANYANWU (1989) 20 NSCC 241;Â (1989) 3 NWLR (PT. 107) 54. This view is supported by Order 8 Rule 16 of the Supreme Court Rules (1999) which limit the power of the Supreme Court to review its decisions. See ORUBU V. N.E.C. (1988) 5 NWLR (PT. 94) 353

10 The following are examples of cases in which the Supreme Court overruled itself LAUWERS IMPORT EXPORT V. JOZEBSON INDUSTRIAL LIMITED (1988) 3 NWLR (PT. 83) 429; EGBOGHONOME V. STATE (SUPRA) ODUOLA V. COKER (1981) 5 SC 197; ODUOLA V. NABHAN (1981) 12 NSCC 196; SURAKATU V. NHDS LTD (1981) 4 SC 26. Did the Supreme Court overrule itself in Okafor s case? What can be deduced from the long line of authorities is that the Supreme Court follows a procedure before overruling itself. That is, 1. The Supreme Court will not overrule its previous decision unless invited to do so. See Order 6 Rule 5(4) of the Supreme Court Rules (1990); ADESOKAN V. ADETUNJI (1994) 5 NWLR (PT 346) The Supreme Court will not overrule its previous decision unless it is fully empanelled. See JOHNSON V. LAWANSON (1971) 1 ALL NLR The previous decision under review must have any of the criteria or features necessitating a review. See Odi V. Osafile (1985) 1 NWLR (Pt. 1) 17 where the Supreme Court declined

11 to overrule its previous decision because the previous decision did not have any of the features necessitating a departure. 4. Where the Supreme Court overrules itself, it will make an unambiguous pronouncement to that effect. See Egboghonome s case The question must be an issue for determination Okafor s case did not pass the above tests. The view that overruling may be implied is no longer acceptable as regards Courts of coordinate jurisdiction. That view is limited to a decision of a higher court overruling by implication the principle of law or rule in a decision of a lower Court. Therefore, the Court in that case did not overrule the previous decision in Cole s case. Conflicting Decisions: The need for this paper arose not only from the significance of the issue decided in Okafor s case but also from the existence of another decision contradictory to Okafor s case. This view, therefore, postulates that there are conflicting decisions on the issue of whether a law firm is permitted to sign documents including Court processes in its name. The two decisions under consideration are Cole s case and Okafor s case. But two questions arise here viz:

12 1. Do the two cases represent two conflicting decisions? 2. What is the law in such a situation? That is, what should a lower Court or the same Court that gave the two decisions do when it has to decide a new case? To answer the first question, we need to know when two decisions in two cases are conflicting. The ordinary meaning of conflict is difference, inconsistency, disparity, variance, or opposition. Thus, conflicting evidence means irreconcilable evidence of a party. See Blacks Law Dictionary, (supra); GABRIEL V. STATE (1989) 5 NWLR (Pt. 122) 468 SC. In the same vein, conflicting decisions are irreconcilable decisions of a Court or of two Courts of coordinate jurisdiction. Two cases are irreconcilable when some significant features make them distinct such as facts, statutes under which they are decided, issues for determination, jurisdiction, nature of claim or cause, etc. STATUTES CONSIDERED IN COLE S CASE Rule 4 of the Registration of Titles (Appeals) Rules reads as follows: A notice of appeal, which must be in the form prescribed in appendix 1 to these Rules, shall be signed by the Appellant or by the legal practitioner representing him Legal Practitioners Act (1962): defines legal practitioner as follows:

13 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 purpose of any particular office or proceedings 2. S. 18(1) of the Interpretation Act (1964): This gives legal practitioner the meaning assigned to it by the Legal Practitioners Act (1962) STATUTES CONSIDERED IN OKAFOR S CASE S.2 (1) of the Legal Practitioners Act (1990): subject to the provisions of the Act, a person shall be entitled to practice as a barrister and Solicitor if, and only if, his name is on the roll S. 24 of the Legal Practitioners Act (1990): This provision is in pari material with the 1962 Act (supra). Undoubtedly, Cole s case and Okafor s case are irreconcilable. From the features of the two cases identified above, the following points are noticeable: 1. S. 24 of the Legal Practitioners Act (1990) is im pari materia with the provisions of Legal Practitioners Act (1962) quoted in full in Cole s case.

14 2. Cole s case (a previous decision) was neither cited to nor considered by the Court in Okafor s case. 3. Though Cole s case and Okafor s case are on all fours as identified above, their ratio decidendi are at variance. Having found that the two cases represent conflicting decisions, we need to consider the second question asked above. That is, what is the law in such a situation? Having considered the three views, it is clear that the view that Okafor s case overruled Cole s case is weak and unacceptable. The other two views viz per incuriam and conflicting decisions are strong and indeed represent two sides of the coin. As seen above, if a decision is given per incuriam, it is liable to be overruled. Similarly, if two decisions perpetuate confusion for being in conflict, the justice administration is unstable and that is not good for the nation. A school of thought says that where two cases represent conflicting decisions, the later in time prevails. In other words, the lower Court should abide by the latter case. See MKPEDEM V. UDO (2000) 9 NWLR (PT 673) 644 CA

15 MAKANJUOLA V. KHALIL (1958) WNLR 82; SERIKI V. SOLARU (1965) NMLR 1; IKEAKWU V. NWANKPA (1967) NMLR 224; In NWANGWU V. UKACHUKWU (2000) 6 NWLR (Pt. 662) 695, Ubaezonu, J.C.A. observed thus: When a lower Court is faced with conflicting decisions of a higher court, what does the lower Court do? It must follow one of the decisions of the higher court and necessarily refuse to follow the other. Would such a Court be accused of a breach of the principle of stare decisis because it has refused to follow that other decision? There is a school of thought that the inferior court should follow the later decision. Suppose the later decision was given per incuriam the earlier decision, what does the inferior court do? These are some of the intriguing legal questions in our jurisprudence which call for clarification from our apex court. Another school of thought says that when faced with two conflicting decisions of a higher court, a lower court is entitled to choose which of them better meets the justice of the case in hand. See ADEGOKE MOTORS LTD V. ADESANYA (1988) 2 NWLR (Pt. 74) 101 CA

16 Indeed, the later decision in Okafor s case was given per incuriam the earlier decision of Cole s case. Two decisions are said to be conflicting when the later decision did not clearly overrule the earlier decision. Okafor s case did not clearly overrule Cole s case. MERIT AND POLICY IMPLICATION OF OKAFOR S CASE His Lordship, Onoghen, J.S.C., who delivered the leading judgment in Okafor s case, stated that he gave consideration to justice rather than technicality. His Lordship noted that the attitude of legal practitioners who sign legal documents and court processes in the names of law firms is embarrassing the profession. At page 532 of the report, his Lordship stated thus: In arriving at the above conclusion, which is very obvious having regard to the law, I have taken into consideration the issue of substantial justice which is balanced on the other side of the scale of justice with the need to arrest the current embarrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in the courts have not been receiving the serious attention they deserve from some legal practitioners. The conclusion that must be reached in this matter is that the documents are incompetent and are struck out leaving the applicants with the opportunity to present a proper application for consideration by this court.

17 Certain terms need to be noted here. They are reversal, refusal to follow, distinguishing, following, applying, explaining and overruling. The distinction between reversal and overruling is that the former refers to the action of a higher court in upsetting the decision of the lower court in the same case, while the latter refers to the action of a court in upsetting its previous decision in another case. Overruling sometimes refers to the action of a superior court in upsetting the principle laid down in a decision of a lower court. And sometimes, the two terms are used interchangeably. When a judge considers a previous case and decides that its facts are not on all fours with the present case, he will refuse to follow the previous case. In doing that, he needs to identify and discuss the differences between the two cases. This is referred to as distinguishing (two cases). The act of discussing a previous case refers to explaining it. The result of explaining a previous decision is to follow it, refuse to follow it, distinguish it or overrule it. When a previous case is followed, then it is said to be applied. When a case is repeatedly followed, its authority is enhanced. If the rule in a case is applied to a new set of facts the result is to widen its scope. On the other hand, if a court distinguishes a previous case and

18 refuses to apply its rule, the result is to limit its scope and create exceptions to it. As we shall show presently, the scope of the rule in Okafor s case is not clear to some legal practitioners. Of the merits of stare decisis, the need for certainty and stability in the law stands foremost. The law, it is said, should be predictable. See R.W.M. Dias (1964). Jurisprudence. pp In Okafor s case, the Supreme Court did not explain, distinguish, follow, apply or overrule its previous decisions on the issue. It was as if there was no previous decision on it. Was that the first time that the Supreme Court had decided the issue? It appears that the possibility of refiling the court processes made the apex court think that its decision in Okafor s case did not lean towards technicality. Indeed, in a different case, it may be impossible to refile the court processes. In such a case, it will certainly be apparent that Okafor s case leans towards technicality. Consider the following scenario: CASE A: In 2000, X filed a suit against Y on a cause of action that arose in Based on the authority of Cole s case, the originating processes were signed in the name of his solicitor s firm. His action would have become statute barred in 2005 had he not filed it earlier. In 2007,

19 the Supreme Court decided Okafor s case. In 2007 his case had become statute barred and he could no longer bring the action against Y. On the authority of Okafor s case, his case filed in 2000 is incompetent and should be struck out with the opportunity of refiling it. But by the law of limitation, he can no longer institute an action against Y. Who is to blame for the foreclosure of X s right of action? Is it the solicitor, the limitation law or the court? The Solicitor is not to blame because on the authority of Cole s case his act was permitted in law at the time he signed the processes. The limitation law has always been and will always be part of our law. It was in existence at the time the action was filed without any contravention. Okafor s case came into existence after the action was filed. For Okafor s case to nullify X s action which was rightly filed on the position of the law at that time amounts to a retrospective effect. An action caught by the limitation law is incompetent. There is no provision for enlargement of time in such a situation. The action is statute barred! It means that X can no longer recover his right from Y! And that is not because his case was statute barred at the time of filing it but because the phrase & Co appeared on his court process. In this regard, Okafor s case, with due respect, is unfair and unjust.

20 It is only matter of time before the scenario painted above will become a reality. It is hoped that the number of the legal casualties will not be alarming! The provisions of the statutes interpreted in the two Supreme Court cases are im pari materia. Okafor s case was therefore decided per incuriam as shown above. The consequence of that decision is that a litigant is being punished not really for the mistake of his counsel but for a technicality. In other words, the case of a litigant is not decided on its merits. This makes it imperative for the apex court to reconsider Okafor s case at least for three reasons viz: (a) it was given per incuriam; (b) it was decided on technicality; (c) it perpetuates injustice. Many a counsel now hide behind Okafor s case by raising an objection to the competency of any document signed in the name of a law firm or issued to a law firm. In RT/AP/1841/2006 ANDREW ODIFILI VS. MR. TONY (unreported) delivered on 11 th November, 2008 in a Lagos Magistrates Court, the Defendant contended that a Letter of Instruction (Exhibit A) issued by the Plaintiff (Landlord) to the law firm of the Plaintiff s Solicitors was invalid on the authority of Okafor s case. The learned trial magistrate, M.A. Etti, held thus:

21 The rule is limited to processes prepared by a legal practitioner and meant for filing in court. It does not apply to documents issued by clients/litigants and not meant for filing in court though they may be used as exhibits in court. In the present case, Exhibit A was signed by the Plaintiff who never held himself out as a legal practitioner and he gave it to his Solicitor s chambers without filing same in court. Thus, Exhibit A is neither a court process nor a document issued by a legal practitioner. Therefore, the rule in Okafor V. Nweke is not applicable to it CONCLUSION: It is submitted respectfully that the apex court should seize any available opportunity to make a judicial pronouncement on this confusing situation until it is called upon in an appropriate case to overrule Okafor s case or create exceptions to its rule. In this regard, it is suggested that the rule in Okafor s case should not apply in the following situations: 1. Where the suit or application was filed before the decision in Okafor s case 2. Where it is impossible to refile an application or a suit such as by reason of the Limitation Law.

22 3. Where the document in question was not issued for the purpose of being filed in court, though it may be used in court as an exhibit or to prove its existence. 4. Where the objection to the document (or the only problem with it) is the addition of the phrase & Co. In such a case, an oral application to delete it should be granted. This is in line with the well-known position of the Supreme Court (which has been followed by other courts) to do substantial justice and decide cases on their merits rather than on technicalities as in the following pronouncements: Care should be taken by the court always not to sacrifice justice on the altar of technicalities. The time is no more when disputes are dealt with rather on technicalities and not on merit. per Eso, JSC in CHIWENDU V. MBAMALI (1980) 12 NSCC This court has for some time now laid down a guiding principle that it is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice. per Eso, JSC in STATE V. GWONTO (1983) 14 NSCC 119 CITED WITH APPROVAL IN BELLO V. A-G (OYO STATE) (1986) 17

23 NSCC (PT. 11) 1274; (1986) 5 NWLR (PT. 45) 858 SC It is the paramount duty of courts to do justice and not cling to technicalities that will defeat the ends of justice. It is immaterial that they are technicalities arising from statutory provisions or technicalities inherent in rules of court. So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated, and failure to comply fully has not occasioned a miscarriage of justice, the proceedings will not be nullified. per Akpata, JSC in OBAKPOLOR V. STATE (1991) 1 NWLR (PT. 165) 129 cited with approval in EGOLUM V. OBASANJO (1997) 7 NWLR (PT. 611) 387 SC. A technical point like the present even if well founded will not preclude the court from going into the merits of a case with a view to doing justice per Agbaje, JSC in K.S.U.D.B. V. Fanz Construction Ltd. (1990) 21 NSCC (Pt. 11) 429; (1990) 4 NWLR (Pt A court should not allow itself through adherence to technicalities to be used for perpetual injustice per Adio, JCA

24 in ANAGBADO V. ANAGBADO (1992) 1 NWLR (PT. 216) 217. A litigant entrusts his fate in a case to his counsel. Is it right that for a slip (possibly technical) on the part of counsel the doors of the court should permanently be shut against him in the case? per Ubaezonu, JCA in EBOKAM V. EKWENIBE & SONS (1993) 6 NWLR (Pt. 297) 119 See also FALOBI V. FALOBI (1976) 1 NWLR 169; A-G (BENDEL STATE) V. A-G (FEDERATION) (1981) 10 SC 1; EKWERE V. STATE (1981) 12 NSCC 299; OGBA V. STATE (1992) 2 NWLR (PT. 222) 164; (1992) 23 NSCC (PT.1) 218; OKOUJO V. ODJE (1985) 10 SC 267; NWOSU V. I.S.E.S.A. (1990) 2 NWLR (PT. 246) 132; ONAKOYA V. FRN (2002) 11 NWLR (PT. 779) 657; OBI V. MBAKWE (1984) 1 SCNLR 192; OHUKA V. OKIGBO (1995) 4 NWLR (PT. 389) 352; Meanwhile, litigants and legal practitioners should note that court processes signed in the names of law firms or organizations are liable to be struck out.

25 M.A. ETTI* *Mr. M.A. ETTI is a magistrate in the Lagos State Judiciary