INTRODUCTION:

The Nigeria Bar Association in 2015 implemented the use of stamp and seal by legal practitioners in Nigeria.

This implementation actually gave vent to the provisions of the Rules of Professional Conduct (2007) in this regard particularly Rule 10. As a result of this enforcement, it became practically expedient for a lawyer to affix his seal on any document he signs and files. The courts have also given judicial solidification to this practice in some cases. This paper will attempt to discuss some of the decisions of court on this point and find their reasons and give perspectives on some of the issues that have been raised regarding the decisions and the practice of the stamp and seal.

REASONS FOR THE IMPLEMENTATION OF THE STAMP AND SEAL AND ITS EFFECTS FOR FAILURE TO SO DO

The main reason for the implementation of the seal process is to ensure that only legal practitioners in Nigeria whose name is on the Roll of Legal Practitioners as such in the performance of the duties of a lawyer to the public, thereby making it easy to flush out quacks who have consistently penetrated into the profession. The practice also helps in ensuring that lawyers pay their Annual Practicing fees entitling them to practice. It shows also the exact lawyer that signs any of the documents listed in the Rule.

It is the wordings of the Rules of Professional Conduct, 2007, that any lawyer that fails to have his seal on any of the documents listed under and inclusive therein, as a legal practitioner shall be deemed to have not be properly signed and filed. It is apposite to reproduce the provision hereunder:

Rule 1: (1) A lawyer acting in his capacity as a legal practitioner, legal office(r) or adviser of any Governmental department or ministry of any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.

(2) For the purpose of this rule, “legal documents” shall include pleadings affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, report, legal opinions or any similar documents.

(3) If without complying with the requirements of this, a lawyer signs or files any legal documents as defined in sub- rule(2) of this rule, and in any of the capacities mentioned in sub- rule(1), the document so signed or filed shall be deemed not to have been properly signed or filed.

It is obvious that the rule places a mandatory obligation on the legal practitioner who signs or files any documents, and is not to be seen as discretional. The consequence of failure to so do according to sub-rule (3) is that the said document(s) will be deemed not to have been properly signed or filed.

It is this author’s humble opinion that the effect of this failure as stated under the sub- rule (3) is ambiguous as it did not define clearly what it means for a document not to have been properly signed or filed. This is as the term could refer to incompetency or an irregularity. Also what does it portend for both substantive and Procedural Jurisdiction?

SEAL AND STAMP: A JURISDICTIONAL QUESTION?

It is settled law that Jurisdiction is the life wire of a proceeding and determines whether the court is empowered to entertain a matter or not. It is also trite that Jurisdiction can be substantive or procedural, see MaduKolu v. Nkemdilim(1962) 2 SCNR 341. And that where the jurisdiction is found to be defective on substantive point, the action is deemed incompetent and liable to be struck out, but if the jurisdictional question borders on procedural, then it is held to be irregular and one that can be waived by making the needed amendments. This is the position of the courts in a plethora of cases: Madukolu v. Nkemdilim(supra), Okafor v. Nweke (2007) 10 NWLR pt. 1043, FRN v. Dairo (2015) 6 NWLR pt.1454.

The Courts in determining what the consequence of a document not to have been properly signed and filed is, according to the rule in focus, have held that the effect of a lawyer not affixing his seal is that the failure is an irregularity and as such within the realm of Procedural Jurisdiction, of which an amendment to the default would still keep the action alive. In Yarki v.Bagudu (2015) 18 NWLR pt. 1491 at 288, the apex court held that the failure to affix the seal and stamp as approved by the Nigerian Bar Association on a document is voidable and not void. The court reasoned that since the Rules of Professional Conduct is a subsidiary legislation to the Legal Practitioners Act, it ought not to supersede the primary law. Thus, such document is deemed irregular and not incompetent. Similarly, in Nyesom v. Peterside (2016) 7 NWLR pt.1512, 452, the court also held that the failure to affix the NBA seal was an irregularity and cannot vitiate the proceeding. It was further held that any objection to it must be made timely, or same will be treated as a waiver.

It is conceded that the Rules of Professional Conduct, 2007, is a subsidiary legislation but with the greatest respect to the Justices of the Supreme court in Yarki v. Bagudu (supra), can it really be said that subsidiary legislations cannot provide for substantive matters? I think it can. Also, with reverence to the court, it is this author’s humble view that the Supreme Court did not consider the implications of procedural defaults on substantive matters in relation to originating processes and the panoply of case law on the differences between an Originating Process and other documents.

It is correct law that if an originating process is not signed, it is deemed to be incompetent and not irregular, hence a nullity. It is also right that the implication of not affixing the required seal and stamp affects the signing of the document as expressed by sub-rule(3) of the Rule of Professional Conduct 2007; and where the failure to properly sign an originating process is shown, the proper order ought to be a striking out order for it being incompetent. This I submit is the overlook of the court in the consideration of the effects of not affixing the necessary stamp and seal.

SUBSTANTIVE JURISDICTION AND ORIGINATING PROCESS

The Courts have consistently held that the non- signing of an originating process affects an action as a matter of substantive jurisdiction and to which the consequences of such failure would be a striking out order of the suit. The Court in considering the competency of a Notice of Appeal stated that it was not sitting on a proper stool. In FRN v. Dairo (2015) 6 NWLR pt.1454, at 141, Per Nweze, JSC, held that:

As it is well known ……..is the foundational process that triggers off an action……..As such any virus in the process would, invariably, corrode or taint the entire process thereby rendering it incompetent. The effect of such viral corrosion is, usually, far-reaching as it nibbles at the Jurisdiction of the court which must, as of necessity, strike out such a process.

Of striking importance is the popular case of Okafor v. Nweke (supra) where the originating process in that case was signed by a law firm and not a named legal practitioner. The Court held after considering the provisions of Section 2 & 24 of the Legal Practitioners Act that the rule does not say that his signature must be on the roll but his name, hence such failure or omission makes the document incompetent. The court struck out the action in that case.

This decision has flowed through the decided cases over the years. Infact, in Hamzat & Anor v. Sanni & ors(2015)6 NWLR pt. 1453 at 486, the court reasoned and correctly too that a Statement of claim is part of the originating process and as such, any defect in it makes it incompetent and the action a nullity.

Quite remarkably however, in a very recent decision of the Apex court, it varied the foregoing rule as it affects a statement of claim. In Heritage Bank Ltd v. Bentworth Finance (Nig) Ltd, SC/175/2005, the court before reaching their decision had this to say on Jurisdiction:

“Jurisdictional defect that renders the adjudication incompetent, ultra-vires, null and void is the substantive jurisdiction because such jurisdictional issue is extrinsic to the adjudication.

When want of substantive jurisdiction is raised, the issue is whether the jurisdiction vested statutorily in the court allows it to adjudicate in the matter. It is why it is extrinsic. When however, the issue is whether a process filed in the course of proceedings or adjudication is an irregular process having not been issued or filed in accordance with the prescribed practice, the issue raised is whether the process can be countenanced, and not whether the court can ordinarily and completely assume jurisdiction and adjudicate in the matter in the first place.

In most cases, procedural Jurisdiction is secondary to the substantive Jurisdiction. The distinction between the two lies in the fact that, while Procedural Jurisdiction can be waived, substantive jurisdiction cannot be waived.”

The court therefore reached the decision that the statement of claim which was signed by a law firm was a matter of procedural Jurisdiction and as such a question of irregularity that can be waived. One thing can be distilled from this decision of the court. Where a process needs to be followed before an action is commenced, it is a matter of Substantive Jurisdiction that may give the court the right to hear the action. But where it is a thing omitted or failed to be done by a party in the course of the proceedings, it is a question of procedural Jurisdiction. Sadly, with the greatest respect to the Apex Court in the foregoing case, it failed to appreciate and apply its own principle carefully interpreted above, and held that a Statement of Claim is not an Originating process.

Whether a process is substantive or procedural depends on the point of failure or omission. If an action is not properly instituted, the court is robbed of its Jurisdiction to hear the matter, even when the proceeding has commenced wrongly. It is correct that such proceeding was commenced wrongly and at any point it is raised and settled, ought to make the action a nullity. It is trite that Jurisdiction issue can be raised at any time even on appeal, and when it is shown that the court is not invested with the right to hear the action, same shall be struck out as incompetent and the entire proceeding a nullity. Only procedural Jurisdiction must be raised timely to avoid the implication of a waiver.

The point that have been labored to make is that; where a lawyer has failed to affix the required seal on an originating process, the proper interpretation of “deemed not to have been properly signed or filed” is to regard the originating document as incompetent and not irregular as the court have held so far. Also, it is also shown that the failure to affix the needed seal is a fundamental matter that affects the signing of a document and that an unsigned document goes to no issue.

More importantly here, it is canvassed that a Statement of Claim is among other required accompanying documents, an originating process for the purpose of filing and where not properly signed by reason of the failure or omission to affix the required seal, is a fundamental virus that ought to infest even the Writ of Summon. It may even be argued by some whether a list of documents or witnesses as required by the Rules of most Courts of the country to accompany a Writ of Summon is an originating process if it is held that a Statement of Claim is one? It is argued in that regard, that all those accompanying documents are Originating processes as they determine the filing of the writ of summon or otherwise. Without those documents, a writ is inchoate and by itself cannot properly commence an action. Any decision, whether administrative or judicial against this, is an error and a flagrant disrespect to the Rules of Court.

For the purpose of clarity, let us consider the provision of the Lagos High Court (civil procedure) Rules of 2019:

ORDER 5 (2) All civil proceedings commenced by a Writ of Summon shall be accompanied by a list and copies of the following documents:

A statement of claim;
A list of witnesses to be called at trial;
Written statement on oath of the witnesses except witnesses on subpoena
Copies of every document to be relied on at the trial
Pre-action Protocol Form 01 with necessary documents
Sub – Rule (3) clearly and unequivocally stated that failure to comply with sub-rule (2) above shall nullify the action.

Importantly, Order 7 makes clear the effects of non- compliance with the Rules. Rule (1) states:

Any action filed without compliance with provisions of Order 5 Rule (2) or Order 5 Rule (5) shall be a nullity.
However, sub-rule (2) states that failure to comply with the requirement of these Rules as to time, place, manner, form in connection with ANY PROCEDING shall be treated as an irregularity and may not nullify any action taken AT ANY STAGE OF THE PROCEEDING.

The words in block letters are for emphasis to show the clear difference between when an action is to be commenced and when a proceeding is already on. The former is extrinsic to the court, hence a matter of substantive Jurisdiction, while the latter is intrinsic of the court, thus an issue of procedural jurisdiction. This was the interpretation of the court on the question of Jurisdiction in the Heritage Bank case, but which it failed to apply correctly.

By all rules of interpretation, where any of these accompanying documents is missing from the Writ of Summon, the use of SHALL in the provision makes it mandatory and not merely directional that such an action shall be a nullity when it was commenced wrongly. A proceeding can only be said to be, when the action was commenced rightly, making an omission made thereafter an irregularity only that may be waived. Consequently, at whatever stage, when it is discovered that an action was not initiated correctly, it is a question of substantive Jurisdiction that should affect the whole proceeding as the action is wrought with incompetency and the steps taken a nullity and to which the action should be struck out.

It is therefore this author’s strong view that where there is a failure to affix the required seal on an Originating Process, inclusive of the Statement of Claim, the proper Order is to hold the action incompetent and ought to be struck out and not as an irregularity. Matters of condition precedent to an action are within the corridors of Substantive Jurisdiction and a striking out order is the only order that ought to be made at such times. You may wish to see these cases: Atolagbe v. Awani (1997) 9 NWLR(pt.522)536; Nigerian Court Co. Ltd v. NRC (1992)1 NWLR(pt.220) 747; Mudashiru V. Persons Unkwown(2006) 8 NWLR (pt.982)267

AFFIXING AN EXPIRED SEAL: HOW RIGHT?

Another issue that has surrounded the use of the required stamp and seal by lawyers is the fact that these seals carry with them expiry date for a yearly period. What is one expected to do with an expired seal in the event that it was not used up. Can it be used on a document? How may it be used? An attempt to answer these questions shall be made here.

Before proceeding to attempt these questions, it is imperative to state that following from the aim to stop the practice of law by quacks, it is necessary that an expiry date be affixed to ensure that only those entitled to practice for each year and whose name are still on the Roll for the time, do get to practice the profession. As it is clear that the idea of once a lawyer, always a lawyer is nothing but fallacious, as any lawyer may be suspended for a particular period or his name struck off the Roll of legal practitioners until restored. These are punishments that may be meted out to erring lawyers by the Legal Practitioners Disciplinary Committee, Chief Justice of Nigeria or the Supreme Court. Thus, it is necessary that the public is assured that a lawyer who signs a document is at such time qualified to so do as a lawyer in Nigeria.

The court of Appeal on affixing the NBA stamp held in Hon. Segun Adewale & Anor v.Hon. Solomon Olamilekan Adeola &Ors (2015) LPELR-25972, held inter-alia, that the Rules of Professional Conduct, 2007 does not permit the use of payment receipt as it does not cure the defect. However, in another decision of the Court of Appeal in Today’s cars Ltd v. Lasaco Assurance Plc (2016) LPELR-41260(C.A), the court held, per Ogakwu, J.C.A., as follows:

“Now, in these circumstances will it be in consonance with the dictates of justice for the Appellant’s brief to be said to infringe the provisions of Rule 10 of the Rules 0f Professional Conduct For Legal Practitioners,2007, given the fact that the Appellant’s counsel has done all that is required of him in order to comply with the stipulation of the Rule. I think not.”

His Lordship went further to say that:

“ It is my considered view that having paid for the stamp and seal, all that remained was the domestic affair of the Nigerian Bar Association Secretariat and where like in this situation the Nigerian Bar Association Secretariat is tardy, such tardiness cannot be visited on the Appellant as all required to be done on the part of the Appellant’s counsel has been done.” The court therefore held that the application was not valid.

It is instructive to note that this author completely commend the attempt of the Court of Appeal in the Today’s cars case to salvage the situation of the counsel in that case, but with respect to court, it is submitted that His Lordships did not successfully cure the mischief intended to be remedied by the implementation of the stamp. It is correct that the essence of introducing the stamp is to prevent quacks from practicing the profession. Where a lawyer affixes only the evidence of a bank teller, it will be agreed that this does not show whether the lawyer’s name is still on the Roll of Legal Practitioners in Nigeria. It will also be submitted that the Rules of Professional Conduct, 2007, state that the Seal and Stamp must be one approved by the Nigerian Bar Association, and clearly, a Bank Teller is not of such authority.

It is conceded that the literal interpretation used in Adewale’s case would likely do hardship on litigants, hence preference is here given to the latter case of the Court, but as noted, the bank teller remedy does not cure the mischief envisaged by the Rules. Consequently, it is suggested that instead of an ordinary bank teller, a Certification in line with Rule 12 of the Rules of Professional Conduct, 2007 by the Nigeria Bar Association, even if it is from the local branch, issued and stating clearly that the concerned counsel is at the time, still a legal practitioner is preferable. This way, the mischief stated earlier is given a good cure and can stand in place of the required seal at that moment, having proceeded from the appropriate authority that is the Nigeria Bar Association.

In another ruling of the Court of Appeal on this issue of expired seal, the court held that, counsel can use the expired seal and stamp as it shows at least that the counsel is a lawyer and that even if the objection is upheld, it is a mere irregularity. This was in the case of Emechebe V.Celto Int’l (Nig) Ltd (2018)11 NWLR pt.1631, 520 at 534.

Respectfully, it is argued here that in a bid for the court to show compassion to the counsel to the respondents in this case, it pushed the whole point to the extreme and by so doing misinterpreted the Rules. It is canvassed stoutly that by no means is an expired stamp affixed on a document by a Legal Practitioner in that capacity, a fulfillment of the tenor of the Rules of Professional Conduct for Legal Practitioners, 2007.

Firstly, the stamp and seal must be one that will be approved by the Nigerian Bar Association. It is on the basis of this approving authority that the Nigeria Bar Association gave a validity period for the approved stamp and seal. Thus, the stamp and seal are to expire by 31st March of each year. Consequently, it is submitted that where any seal has reached its validity period, same is invalid and cannot be said to be the approved stamp and seal from the approved authority.

Secondly, the court in Emechebe’s case rightfully noted that the expired stamp in that case had the name and number of the counsel, thus implying that what is important is that the lawyer is proved to be one. But, can it be correct that an expired stamp may not be used as a vehicle of fraud by quacks to perpetuate their business? Absolutely. It must be emphasized that a lawyer at any time may be suspended or his name struck off the Roll by the appropriate authority, hence this decision may persuade such derobed or suspended lawyers to still carry on practice, albeit unlawfully.

Furthermore, the use of stamp with validity period helps in making sure that lawyers pay their Annual Practicing Fees that entitles them to practice each year, because you cannot apply for the stamp and seal if one have not paid the practicing fee. This is in line with the provisions of Section 8(2) Legal Practitioners Act.

Also, the court held that even if the contention of the Appellant’s counsel is upheld, it is at best an irregularity. It is stated again that the court, respectfully did not consider the implication of condition precedent on substantive jurisdiction, as on a notice of appeal in this instance. It is the law that where there exist a thing that needs to be done before an action is commenced, failure to so do, makes the action void and nothing that is put on it would stand, as you cannot put something on nothing. And this falls within the precinct of substantive jurisdiction, wherein the action would be held incompetent and struck out.

Lastly, it is further submitted that the affixing of the unexpired stamp by the defaulting counsel in that case to other applications did not automatically regularize the Notice of Appeal, as it is an originating process. The document is void and no amount of regularization should and ought to resurrect it. As a matter of law, even where the expired stamp is not on an originating process, it is submitted that a mere production of the unexpired stamp on another document subsequently or on same document will not cure the virus. The defaulting lawyer ought to bring an application with a Deeming Order to regularize the process and not just to affix the stamp as many have suggested. This must be the law, otherwise, our courts may gradually tilt to a Kangaroo one, where rules will just be flaunted at ease. See Yarki v. Bagudu and Nyesom v. Peterside(supra).

Thankfully, a decision from the National Industrial Court had given credence to this perspective on expired seal. This was in Rev. Bright Orie Igwe v. Rev. Eze Umahi & Ors, Suit No.NICN/ABK/O3/2015, there the court following the motion on notice by the defendant, praying the court for a striking out order or an adjournment sine die, since the said suit was not affixed with the required stamp, wherein the claimant/respondent’s counsel argued that the defendant/applicant filed his motion with an expired seal, held thus:

“A literal interpretation of this Rule posits that the seal and stamp must be approved by the Nigeria Bar Association. The approving authority in this case has limited the validity of the seal to March (2016); which means that the seal cannot be validly used beyond that date and will not serve its purpose beyond that date. In the circumstance, I find and hold that the Applicant’s counsel seal on the motion on notice dated 2nd April, 2016 but filed on the 7th April, 2016 is invalid, and the application is consequently incompetent.”

Although, the court failed to reconcile the difference between a condition precedent on substantive jurisdiction with regard to the Complaint and a motion in that case, this author is however, consoled that its decision on expired seal accords with the humble perspective made here on the point.

CRIMINAL PROCEEDINGS AND THE USE OF STAMP AND SEAL

One critical issue that has been raised along the use of the approved stamp and seal is whether the practice applies to criminal proceedings? The argument against it is largely centered on the fact that the Rules did not expressly mention a Charge to include the definition of legal document. The Court of Appeal in the cases of Mohamed Dongonyaro v. FRN, CA/52c/2017 and Ayodeji v. FRN (2018) LPELR-44860(CA) have held that the failure to affix the required stamp on the charge does not make it void, and that at any rate, the practice does not include criminal trials. According to the court, this is because the defect in a charge sheet or in the proceeding does not nullify a criminal proceeding unless such defect or error can be said to have prejudiced, misled or embarrassed the defendant

At the outset, it must be stated that although the Rules did not specifically state a charge sheet or any other document used solely for the purpose of criminal proceeding, like the proof of evidence; it is clear that these document includes what the Rules referred to as legal documents. Small wonder the Rules made room for “similar documents”, see sub-rule 2 of rule 10 of the Rules of Professional Conduct,2007. Clearly by calling in aid the interpretation rule of Ejusdem Generis; where the use of a general term at the end of a list of specific items, helps in admitting other term of that kind or class even when not so listed specifically. Therefore, it will become obvious that by the use of the general term “similar documents”, a charge sheet and other documents used in criminal trials are necessarily within the class of legal documents that a lawyer may likely prepare.

According to the Law Officers Act, a law officer shall be a barrister and solicitor in Nigeria. Consequently, where a Law officer prefers a charge or makes any other similar documents for criminal trial, he should affix the approved stamp and seal bearing his name and number as on the Roll of legal practitioner in Nigeria.

Therefore, with respect to the decision of court on this point, it is submitted that criminal proceedings are for all intent of the Rules, inclusive for the use of the approved stamp and seal. However, it is acceded that the failure to so do in criminal proceedings is only an irregularity that an amendment can cure as different from civil proceeding. This is as rightly pointed out by the Court, a defect in a criminal trial that does not embarrass, mislead or prejudice the defendant will not make the conviction a nullity but an irregularity that may be cured.

CONCLUSION

The use of the approved stamp and seal is mandatory and as a condition precedent for the validity of any legal document a lawyer signs or files, it is thus not subject to the whims of a lawyer to decide which document he should affix his seal or otherwise. It is also hoped that the use of expired seal by lawyers be resisted by the courts as it does not represent the clear words of the Rules nor cures the mischief intended by it. And if the failure or omission is in respect of originating process, the court should hold such defective document as incompetent and not irregular, thereby striking out the action.

It is also suggested here in line with the view of some lawyers as well, that the Nigeria Bar Association should at least issue one pack of the stamp for the payment of the Practicing fee for free, as it is obvious that many lawyers are conservative with the use of the stamp to avoid it running out early, owing to the economic challenges of the country. Subsequent applications for the stamp must definitely be paid for at the stated price.

It is hoped that the courts would be entreated early with the perspectives espoused here so that it can take its decision on it, as a writer’s perspective on a point may only be persuasive at best but only the court can make a binding authority by their judicial powers.