Nigerian Litigation And Arbitration Newsletter

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Signing of Court Processes in Law Firms' Names: Did the Supreme Court Err in Okafor’s Case? (Part 1)

held that there is "good sense in ensuring that our laws are strictly enforced and observed". In the words of the court explained the basis of its decision in striking out the processes:

March 2009 Vol. 22: Issue #3

"The effect of this 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 'any goes'" per Onnoghen JSC at 1027 - 1028.

In the first quarter of 2007, the Nigerian Supreme Court handed a decision in Okafor &Ors. v. Nweke & Ors. wherein the court held that all court processes including notice of cross-appeal and applicants' brief of argument signed and issued by a law firm in its own business name are incompetent. In Okafor’s case, the law firm of J.H.C. Okolo SAN & Co had issued and signed certain court processes in its own business name on behalf of its client. In the decision by the apex court, since the said firm of “J.H.C. Okolo SAN & Co.” is not a legal practitioner, the court processes were defective and incompetent. Considering the effect of the provisions of sections 2(1) and 24 of the Legal Practitioners Act, Cap. 207, the court noted that “J.H.C. Okolo SAN & Co.” is not a person entitled to practice as a barrister and solicitor as "only human beings actually called to the Bar could practice or practice by signing documents as a motion paper". The court further rejected the argument that it is an "over adherence to technicality to annul the processes signed and filed by J.H.C. Okolo SAN & Co." The apex court

On the face of it, a critical feature of the judgment in Okafor’s case is that the pronouncements of the court were based entirely and strictly on the provisions of sections 2(1) and 24 of the Legal Practitioners Act, Cap. 207. Laws of the Federation of Nigeria. As the Supreme Court held, J.H.C. Okolo SAN & Co. was found not to be "a person entitled to practice as a barrister and solicitor" as its name is not on the roll section 2(1). The firm was held disentitled to "engage in any form of legal practice" as it is not a legal practitioner recognized by law (section 24). It is surprising that the Supreme Court did not refer to any earlier similar case in arriving at its decision. The profound import of Okafor’s case is that it is a common practice for Nigerian lawyers to sign and issue manifold court processes endorsed in their business

©Blackfriars LLP 2009. All rights reserved. This document is for general guidance only. Definitive advice should be sought from counsel if required. Blackfriars LLP is a Nigerian law firm with a representative office in Toronto, Canada.

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names registered and certified pursuant to the Registration of Business Names Act (now, Part B - Business Names, Companies and Allied Matters Act, sections 669 and 672). The real prospect that thousands of court processes now pending in our courts could be invalidated as a consequence of the decision in Okafor’s case ought to give pause to both lawyers and their clients. Of course, in the aftermath of Okafor’s case, lawyers are bound to raise numerous objections to the validity of pending court processes endorsed in the business names of law firms. The grave implications of this scenario warrant a sober assessment of the judgment in Okafor’s case. Another dimension to this problem is that Okafor’s case may have been per incuriam. Indeed, there is a probability that Okafor’s case has unsettled the law. Nearly forty years before the decision in Okafor’s case, a different panel of the Supreme Court had held that the practice of endorsing or presenting processes of courts by lawyers in their business names is permissible. This was the decision of the court in Cole v. Martins (1968) All NLR 161. In Cole’s case, the late H.A. Lardner of blessed memory had appealed a decision of the Registrar of Titles given on 11 November 1964. The notice of appeal was signed by "Lardner &

Company". It is instructive that Rule 4 of the Registration of Titles (Appeals) Rules provided that "a notice of appeal shall be signed by the appellant or by the legal practitioners representing him". At the trial court, Sowemimo J. held that under the Legal Practitioners Act of 1962, "Lardner and Company" is not a legal practitioner. The appeal was thus dismissed with costs. Lardner appealed to the Supreme Court. The Supreme Court allowed the appeal and made certain pronouncements which are pertinent to the recent Supreme Court decision in Okafor’s case. TO BE CONTINUED. For further inquiries, please contact:

Dr. Virtus Igbokwe Tel: +234 802 220 4755 Email: [email protected] Fax: +1 646 536 8978

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©Blackfriars LLP 2009. All rights reserved. This document is for general guidance only. Definitive advice should be sought from counsel if required. Blackfriars LLP is a Nigerian law firm with a representative office in Toronto, Canada.