Professional Services

Law firms cannot sign court processes!

by Editor

August 15, 2013 | 12:00 am
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The Appellantsfiled an appeal at the Court of Appeal, Jos Division against a ruling delivered at the High Court of Plateau State. The Notice of Appeal was signed by the Appellants’ counsel as “David M. Mando& Co.”. The Respondent filed a preliminary objection contending that the appeal was incompetent, the Notice of Appeal not having been signed by the Appellants or their legal practitioner. The Court of Appeal struck out the Notice of Appeal and consequently, the appeal.

The Appellant was dissatisfied with this decision and appealed to the Supreme Court praying that the decision of the Supreme Court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 be reversed and that the decision in Registered Trustees of the Apostolic Church v. RahmanAkindele (1967) NMLR 263and Cole v. Martins (1968) 1 All NLR 161, (1968) SCNLR 215 be restored.

The primary issue that arose for determination was whether a court process is invalidated by reason of the fact that it carries the name of a firm of legal practitioners instead of anindividual legal practitioner.

A full panel of the Supreme Court called for addresses by amici curiae in addition to the submissions of parties’ counsels. Arguments were proffered for and against the reversal of the decision in Okafor v. Nweke (supra).

The arguments in favour of the Appellants’ position are:

(1) “David M. Mando& Co.” is a firm of legal practitioners registered as a business name under the Companies and Allied Matters Act (“CAMA”) and acting on behalf of the Appellants.

(2) The rules of court which provide that the court should do substantial justice without undue regard for technicality are more central to litigation than the provisions of the Legal Practitioners Act (“the Act”)

(3) The issuance of a court process in the name of a firm of legal practitioners as opposed to an individual legal practitioner is a technicality which may give rise to a miscarriage of justice if the process is invalidated on that ground.

(4) The Court was also urged in the event that it opted to uphold the decision in Okaforv. Nweke,a saving should be made in respect of pending cases filed between 1968 and 2007.

The arguments in favour of the Respondent’s position are:

(1) The rules of court provide that for a notice of appeal to be valid, it must be signed by the appellants who gave the notice of appeal or by a legal practitioner on their behalf.

(2) “David M. Mando& Co.” is not a legal practitioner within the meaning of the Act.

(3) The relevant provisions of the Act remain the law until amended by the legislature.

(4) A departure from the decision in Okafor v. Nwekewill lead to confusion and lack of responsibility on the part of counsel.

(5) The general provisions of CAMA relating to registered business names cannot supplant the specific provisions of the Act.

The Supreme Court, construing the provisions of the Legal Practitioners Act strictly, held that the term “legal practitioner” could not be deemed to include a law firm registered as a business name under CAMA. The Court stated that a combined reading of the provisions of sections 2(1) and 24 of the Act clearly shows that the signature on court processes must be that of a named and identifiable human being whose name is on the roll of legal practitioners.

Sections 2 (1) and 24 of the Act provide as follows:

Section 2 (1):  “Subject to the provisions to this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.”

Section 24:  “In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say –

‘legal practitioner’ means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings”.

Dismissing the appeal, the Supreme Courtheld as follows:

“I wish to repeat that we are interpreting a law which seeks to make legal practitioners responsible and accountable more especially in modern times that we are presently operating. I see nothing technical in insisting that a legal practitioner should abide by the dictates of the law in signing court processes. It is my view that if the decision in Okafor v. Nweke is revisited as urged, more confusion will be created. The decision in Okafor v. Nweke is not in any respect wrong in law and cannot surmise a real likelihood of injustice perpetrated. I cannot trace the issue to the domain of public policy. The convenience of counsel should have no pre-eminence over the dictate of the law. The law as enacted should be followed. I do not for one moment see any valid reason why the decision of this court in Okafor v. Nweke should be revisited. It has come to stay and legal practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of our profession.

The last point relates to balance of justice which most of the learned senior counsel/counsel touched upon. The question arises as to whether it does not lead to injustice against the litigant to declare processes filed by his counsel incompetent on the ground that such a process was signed and filed in the name of a law firm without indicating the name of the particular legal practitioner who issued and signed the process. Most counsel felt that there should be a saving grace.

In Okafor v. Nweke (supra) this court per Onnoghen, JSC stated as follows at pages 532 – 533:

‘On the other side of the judicial scale in the balancing act, is the issue of substantial justice which I said had been adequately taken into consideration in this ruling. 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 the consideration by this court. The effect of ruling is not to shut out the applicants but to put the house of the legal profession in order by sending the necessary and right message to members that the urge to do substantial justice does not include illegality or encouragement of the attitude of anything goes.’

It follows that no injustice is done to the litigant since the result of the irregularity is an order striking out the suit or process which leaves the real legal practitioner with an opportunity to come back to court to lift his veil and tile a proper process as the legal practitioner whose name is on the roll of this court. The court should consider such an application on its merits. Such will enhance good practice culture amongst legal practitioners generally. I earnestly feel that I have made a point.

With all the above, I feel I am done. I come to the conclusion that the appeal which was not initiated with due process of the law is incompetent. See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341. It is hereby struck out.”


David Mando for the Appellants

Godwin Obla with him, John Alu and K. Ekweme for the Respondent

This summary is fully reported at (2013) 6 CLRN

© Commercial Law Reports Nigeria Limited

by Editor

August 15, 2013 | 12:00 am
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