➥ CASE SUMMARY OF:
Senator Bello Sarakin Yaki (Rtd) & Anor. V. Senator Atiku Abubakar Bagudu & Ors. (SC.722/2015, 13 Nov 2015)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Affixing stamp to legal documents.
➥ CASE FACT/HISTORY
This appeal involves the consequence of failure to comply with the provisions of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 as amended. It provides: “Para. 18(1): Within 7 days after the filing and service of the petitioner’s reply as the respondent or 7 days after the filing and service of the respondent’s reply, as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 008.”
It is not in dispute that the last date for the appellants as petitioners to apply for the issuance of the pre-hearing notice was the 7th day of June, 2015 nor is it in doubt that the appellants actually filed the application for the issuance of the pre-hearing notice on 8/6/2015. Paragraph 18(3) gives the respondent a choice in case of failure by the petitioner to comply with Paragraph 18(1), between bringing the application for the issuance of pre-hearing notice or a motion on notice for an order dismissing the petition.
➥ ISSUE(S) & RESOLUTION(S)
↪️ I. Whether the Court of Appeal was right to hold that failure of a legal document to have affixed to it a stamp/seal as mandated by Rule 10(1) of the Rules of Professional Conduct did not carry with it the consequence of rendering such legal document incompetent?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE COURT CANNOT TAKE COGNISANCE OF A DOCUMENT NOT PROPERLY SIGNED & FILED
‘The documents in question here purportedly signed and filed by a lawyer in his capacity as legal practitioner did not have on it “a seal and stamp approved by the Nigerian Bar Association.” The process so signed and filed is a legal process within the intendment of Rule 10(2) of the Rules. What is the consequence of a legal document signed and filed in contravention of Rule 10(1) in the Rules? The answer is as provided in Rule 10(3) to the effect that “…the document so signed or filed shall be deemed not to have been properly signed or filed.” It is my humble view that the legal document so signed and/or filed is not null and void or incompetent like the case of a court process signed in the name of a corporation or association (even of lawyers). See Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) SC 521 cited by the learned silk for 2nd respondent/cross appellant. The document, in terms of the rule, is deemed not to have been properly signed or filed, but not incompetent as the 2nd respondent assumed. It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of the time allowed by the rules or extended by the court. In such cases, the filing of the process can be regularised by extension of time and a deeming order. In the case at hand, the process filed in breach of Rule 10(1) can be saved and it’s signing and filing regularised by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done the court cannot take cognizance of a document not properly filed and the filing not regularized.’]
➥ FURTHER DICTA:
⦿ NO EXTENSION OF TIME IN ELECTION MATTERS
In a purely civil matter, the filing of a process a day after the period prescribed for the filing can be regularized on the application of the defaulting party. But in election matters, even a slight infraction of the rules, particularly those relating to time, can be fatal to the process filed. See Benson v. Allison (1955-56) WRNLR 58, Emerue v. Nkerenwen (1966) 1 All NLR 63, Ige v. Olunloyo (1984) 1 SCNLR 158. An election petition is a proceeding sui generis. See Buhari v. Yusuf (2003) 6 SC (Pt. 11) 156. In the circumstances, appellants could not have filed a motion for extension of time and if one had been filed it could not have been entertained by the tribunal. See Paragraph 18(5) of the 1st Schedule to the Act (supra). — N.S. Ngwuta JSC.
⦿ FILING OF TWO NOTICES OF APPEAL IS NOT INCOMPETENT
The phrase “…after the notice of appeal” does not envisage multiple notices of appeal. There are similar provisions in the High Court and Court of Appeal Rules. In any case, it is an affront to logic and common sense to argue that an appellant can file more than one notice of appeal without indicating on which one he relies. Be that as it may, the mere fact of filing multiple notices of appeal does not render the appeal incompetent, Akuneziri v. Okenwa (2000) 12 SC (Pt. 11) 25, First Bank of Nigeria Plc. v. T.S.A. Industries Ltd. (2010) 4-7 SC (Pt. 1) 242. The 1st respondent read the appellants’ brief and made a decision to rely on one of the two notices filed within time. Not only was the 1st respondent not misled by the two notices of appeal, he did not disclose any injury he suffered for which he could seek redress. He cannot be heard to argue that another respondent elected to rely on the other notice of appeal. — N.S. Ngwuta JSC.
⦿ RIGHT OF FAIR HEARING IS NOT ABSOLUTE
No right, including the right of appeal, is absolute. A pre-action notice has been held to be a condition for the exercise of the right to bring the action and not as abridgement of that right. See Anambra State Government and Ors v. Marcel and Ors (1996) 9 NWLR (Pt. 213) 115. — N.S. Ngwuta JSC.
⦿ RULES OF PROFESSIONAL CONDUCT FOR LAWYERS HAS A FORCE OF LAW
I have to emphasise that the legal status of the rules of professional conduct in the legal profession made by the General Council of the Bar pursuant to Section 1 of the Legal Practitioners Act, Laws of the Federation of Nigeria 2004 is that of a subsidiary legislation since it is made by provision in a statutory enactment – see Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558 at 614; (1989) 20 NSCC (Pt. 11) 43 at 69. By virtue of Section 18(1) of the Interpretation Act, a subsidiary legislation has the force of law. — W.S.N. Onnoghen JSC.
⦿ LEGAL DOCUMENTS WITHOUT LAWYER’S STAMP ARE NOT INCOMPETENT; CAN BE REGULARISED
In SC. 663/2015 Mega Progressive Peoples Party v. INEC and 3 Ors. Decided by this Court on the 12th of October, 2015, on the issue of affixing seal, stamp to legal documents etc, this Court said that: “Failure to affix the Nigerian Bar Association stamp cannot invalidate processes filed in court.” The clear interpretation of the above is that processes without the Nigerian Bar Association stamp, etc are valid. Is there a conflict with the decision in this appeal? 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 Legal Practitioners Act … Failure to affix stamp, seal to a legal process, renders such a process voidable. A voidable legal process is made valid when counsel affixes the stamp and seal to the said legal process. — Rhodes-Vivour JSC.
⦿ JUDICIAL PRECEDENTS ARE TO BE APPLIED IN CONTEXT
There is not a doubt that the concept or doctrine of precedents or “stare decisis” is sacrosanct so as to clear the routes for definiteness and certainly in the administration of justice within applicable laws. However there is a rider for the application of a judicial precedent and that being that the facts in the future or present case have to bear similarities to those of the earlier case upon which the given decision was made. Another way of saying the same thing is that the principle of precedents is not applied in vacuo or off hand and must be done in context. This position was better stated by Oputa, JSC in Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250. “Our law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the courts in like or similar cases. The facts of two cases must either be the same or at least similar before the decision in the earlier case can be used in a later case, and even there, merely as a guide. What the earlier decision establishes is only a principle, not a rule. Rules operate in an all or mothering dimension. Principles do not. They merely incline decisions one way or the other. They form a principium or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand.” — M. Peter-Odili JSC.
⦿ RULES OF PROFESSIONAL CONDUCT FOR LAWYERS APPLIES TO WHEN A LAWYER IS ACTING IN A LEGAL PRACTITIONER CAPACITY
Generally it is common knowledge that the Rules of Professional Conduct in the Legal Profession were made pursuant to the Legal Practitioners Act. There is no doubt that many other professions such as, Medical and Dental Practitioners, also have their rules guiding their members professional conducts. It should be noted that the acts being guided by the rules under consideration are that of lawyers and the documents to be affected are only documents being presented to be prepared and being filed by lawyers. In other words, even for a lawyer to be directly affected by the rules in question, he must be “acting his capacity as a legal practitioner, legal officer or adviser of any governmental department or Ministry or any Corporation.” In the same vein, for any document prepared by a lawyer acting in any of the above capacities, to be required to conform with the rules stated above, such document must be a “legal document” that falls within the listed documents or any other similar documents. – O. Ariwoola JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Nwali Sylvester Ngwuta, JSC
⦿ FOR THE APPELLANT(S)
Joe-Kyari Gadzama SAN.
⦿ FOR THE RESPONDENT(S)
Rickey Tarfa SAN, for 1st Respondent;
A.J. Owonikoko, SAN, for 2nd Respondent;
Ibrahim K. Bawa SAN, for 3rd Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ BEFORE FOLLOWING JUDICIAL PRECEDENTS, FACTS MUST BE EXAMINED
Similarly in the case of Obiuweubi v. CBN (2011) 2-3 SC Pt. 1 Page 46, this Honourable Court per Rhodes-Vivour, JSC at page 78 lines 10-20 made the following judicial statement: “The Supreme Court is the final court of appeal in Nigeria. Its decisions are binding on every court in this country. By the doctrine of stare decisis all courts are bound to follow the decisions of this Court. The reason is simple. Following previous decisions of this Court ensures certainty and order in the judicial system. It ensures stability and removes surprises. Counsel is assured that justice would be done, and it reduces stress and makes the task of dispensing justice easier and less onerous. Before following precedent, facts must be examined. This is so because judgments can only be understood in the light of the facts on which they were decided. After all facts have no views.” (Underlining ours for emphasis.)
➥ REFERENCED (OTHERS)