May 26, 2016

J.N. YISAPATI - “Incompetence” of Court Processes without the NBA Stamp/seal



Photo Credit - www.nigerianbar.com

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.


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.

COURT: 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:

 “Supreme court affirms that failure to affix NBA stamp/seal in a legal 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;

According to M.U. Peter 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…

However, Ngwuta JSC, while 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.
 
Photo Credit - lawnigeria.com
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;

“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.” 

His lordship, S.N. 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 ).

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.

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;

“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.”

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.

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;

“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…”

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.”
This is muchof a flexible 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.

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. 

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.

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.


J.N. YISAPATI 


Principal Partner; 
YISAPATI & CO., 
9/10 Najoji complex,
 beside Mr. Bigg’s, 
Tunga-Minna, 
Niger state.
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