Ever since the Supreme Court decision in Okafor v Nweke (2007) 3SC (pt 11)55 legal tongues have been wagging, both literally and figuratively about the jurisprudential value of the case. Some scholars have argued that the decision is faulty because of the harshness of the decision. For instance since the decision case after case have been struck out because the court processes were prepared in the firm's name. Cases that have almost been concluded are struck out or dismissed because a party that had consented all along to the procedure suddenly realizes that the court processes were initiated in the firm's name and should thus be dismissed. Appeals at various stages are dismissed not because the appeals are unmeritorious but because at the judgment stage, after briefs have been filed and the appeal argued, the court all of a sudden realizes that the appeal was initiated by a Notice of Appeal filed in the firm's name. in all of these instances the merits otherwise of the cases or appeal count for nothing, neither the amount of legal work that has been done before it dawned on the court or one of the parties that the case was initiated by a court process singed by a firm and not a legal practitioner enrolled at the supreme court.
The litany of judicial woes that have arisen as a result of the supreme court decision in the Okafor vs. Nweke's case have made many scholars to conclude that the decision was arrived at per incuriam without the consideration of other relevant statutes and decisions. Some lawyers in fact argue that all Equities of the case were not argued that is earlier decisions relevant to the case were not brought to the attention of the court. In this vein these legal pundits point out that earlier decision of the Supreme Court in Cole vs. Martins (1968) All NLR 161, where in a similar situation, a court process filed in the name of Lardner & CO. was held properly filed Mr. H. A. Lardner a legal practitioner who was duly enrolled at the Supreme Court who had registered his business enterprise under the existing laws of the time.
Similarly there was the case of Registered Trustees of Apostolic Church Lagos Archdiocese v Akindele (1967) NMLR 263 at 265, where the offending process had been filed in the name of J. A. Cole & CO., a firm registered by Mr. J.A Cole a legal practitioner duly enrolled at the Supreme Court. The court had held that it will not be prevented from such a procedural issue from determining the merits of the case.
Thus in the face of hardship being occasioned by several litigants as a result of the decision in Okafor v Nweke's Case (Supra) where the Notice of Cross Appeal and motion for extension of time to cross-appeal were filed in the name of J.H.C. Okolo (SAN) & Co. was held to be incompetent and struck out because the name JHC Okolo (SAN) 8s Co. was not a person or name enrolled as a Solicitor & Advocate at the Supreme Court on the roll of lawyers in accordance with sections 2(1) and 24 of the Legal practitioners Act, it has been strongly argued that had the cases of Cole vs Martins (Supra) and Registered Trustees of Apostolic Church vs Akindele (Supra) been cited to the court in the Okafor vs Newke's case the decision would have been otherwise. Based on this line of reasoning this legal scholars argue that the Okafor vs Nweke's case should be seen as an isolated departure from the norm and that filing of a court process in a firm's name should be been as a mere irregularity and not a fundamental defect.
However, the full imports of filing a court process in a firm's name has now been put to rest in the recent Supreme Court case of Ogundele vs Agiri (2009) 12 S. C. (Pt 1) 135 (a), 165 1166 in the said case in relation to a brief filed in the name of Ajibola & Co. the Supreme Court had this to say "Before the reservation of the judgment. I had drawn the attention of Mr. Ajibola off record to the fact that their Brief was faulty in that it was signed by "Ajibola & Co" and there is was no evidence that it is a firm duly registered as such. He did not respond to my observation. Even recently in the case of Okafor & Ors vs Nweke & Ors (2007) 3 SC (pt 11) 55, (2007). All FWLR (Pt 368) 1016, this court per Onnoghen JSC dealt with this issue of fact. A partnership or firm, unless duly registered as such, with respect, is not a legal practitioner recognized by law or a person entitled to practice as a barrister and solicitor. See also sections 2(1) and 24 of the Legal Practitioners Act. Cap 207 LFN. See the cases of The Registered Trustees of Apostolic Church Lagos Archdiocese vs. Rahman Akindele (1967). NMLR 263 @ 265, First Bank of Nigeria Pic & Rankassa Enterprises Ltd vs. Alhaji Sulmanu Maidawa dated 27th March 2002 at pages 13 8s 14 - per Mangaji JCA (of Blessed memory) unreported my concurring judgments contributions in Suit No CA/J/234/2000-Major General Musa Bamaiyi (rtd) vs. Danladi A. S. Garila dated 9th December, 2004 (unreported) and CA/J/241/2001- Dominic Nwani v Bakari 85 Anor, also dated 9th December, 2004 (unreported) If learned Counsel who appear before this court, persist in this practice of signing court process in this court as & co, without evidence of being duly registered as such, it may be obliged to disrega rd or discountenance, such process including briefs. Such signing in my respectful but firm view, is NOT an irregularity as held by the court of Appeal per Alagoa JCA, in the case of Unity Bank Plc vs. Oluwafemi (2007) ALL FWLR (Pt 382) 1923 relying on the case of or decision in Cole vs. Martins (1968) ALL NLR 161 (Lardner's case). It is a fundamental error". (Emphasis mine).
The above view of the Supreme Court puts the defective nature of signing or preparing court processes in a firm's name of & Co beyond any dispute. However one aspect of the case that is commendable and worthy of emulation is the dictum that "However, in the interest of the litigants. I will go on for the last time with the merits of this Appeal". This approach of the Supreme Court to do justice to a case in spite of the error of counsel in not properly endorsing a court process shows clearly the court's disposition to place substantial justice above legal technicalities in line with a long line of decided cases.
Uba v Nwora (1978) 11-12 SCI.
Nishizawa v Jethwani (1984) 12 S.C. 234
Nneji v Chukwu (1988) 3 NWLR (pt 81) 184
UTC v Pamotei (1989) 2 NWLR (Pt 103) 244.
Beyond the prmciple of Stare decis embedded in the Supreme Court affirming its earlier decision in Okafor v Nweke what I consider the crux of the recent Ogundele v Agiri's decision is the overriding desire to do justice. It is my humble submission that while Okafor v Nweke remains good law judges ought to reserve the discretion to do substantial justice in matters before them based on the facts even where it appears that the rule in Okafor v Nweke has been breached.
The desire to see justice triumphant and law prostrate must the creed of the court at all times.
The litany of judicial woes that have arisen as a result of the supreme court decision in the Okafor vs. Nweke's case have made many scholars to conclude that the decision was arrived at per incuriam without the consideration of other relevant statutes and decisions. Some lawyers in fact argue that all Equities of the case were not argued that is earlier decisions relevant to the case were not brought to the attention of the court. In this vein these legal pundits point out that earlier decision of the Supreme Court in Cole vs. Martins (1968) All NLR 161, where in a similar situation, a court process filed in the name of Lardner & CO. was held properly filed Mr. H. A. Lardner a legal practitioner who was duly enrolled at the Supreme Court who had registered his business enterprise under the existing laws of the time.
Similarly there was the case of Registered Trustees of Apostolic Church Lagos Archdiocese v Akindele (1967) NMLR 263 at 265, where the offending process had been filed in the name of J. A. Cole & CO., a firm registered by Mr. J.A Cole a legal practitioner duly enrolled at the Supreme Court. The court had held that it will not be prevented from such a procedural issue from determining the merits of the case.
Thus in the face of hardship being occasioned by several litigants as a result of the decision in Okafor v Nweke's Case (Supra) where the Notice of Cross Appeal and motion for extension of time to cross-appeal were filed in the name of J.H.C. Okolo (SAN) & Co. was held to be incompetent and struck out because the name JHC Okolo (SAN) 8s Co. was not a person or name enrolled as a Solicitor & Advocate at the Supreme Court on the roll of lawyers in accordance with sections 2(1) and 24 of the Legal practitioners Act, it has been strongly argued that had the cases of Cole vs Martins (Supra) and Registered Trustees of Apostolic Church vs Akindele (Supra) been cited to the court in the Okafor vs Newke's case the decision would have been otherwise. Based on this line of reasoning this legal scholars argue that the Okafor vs Nweke's case should be seen as an isolated departure from the norm and that filing of a court process in a firm's name should be been as a mere irregularity and not a fundamental defect.
However, the full imports of filing a court process in a firm's name has now been put to rest in the recent Supreme Court case of Ogundele vs Agiri (2009) 12 S. C. (Pt 1) 135 (a), 165 1166 in the said case in relation to a brief filed in the name of Ajibola & Co. the Supreme Court had this to say "Before the reservation of the judgment. I had drawn the attention of Mr. Ajibola off record to the fact that their Brief was faulty in that it was signed by "Ajibola & Co" and there is was no evidence that it is a firm duly registered as such. He did not respond to my observation. Even recently in the case of Okafor & Ors vs Nweke & Ors (2007) 3 SC (pt 11) 55, (2007). All FWLR (Pt 368) 1016, this court per Onnoghen JSC dealt with this issue of fact. A partnership or firm, unless duly registered as such, with respect, is not a legal practitioner recognized by law or a person entitled to practice as a barrister and solicitor. See also sections 2(1) and 24 of the Legal Practitioners Act. Cap 207 LFN. See the cases of The Registered Trustees of Apostolic Church Lagos Archdiocese vs. Rahman Akindele (1967). NMLR 263 @ 265, First Bank of Nigeria Pic & Rankassa Enterprises Ltd vs. Alhaji Sulmanu Maidawa dated 27th March 2002 at pages 13 8s 14 - per Mangaji JCA (of Blessed memory) unreported my concurring judgments contributions in Suit No CA/J/234/2000-Major General Musa Bamaiyi (rtd) vs. Danladi A. S. Garila dated 9th December, 2004 (unreported) and CA/J/241/2001- Dominic Nwani v Bakari 85 Anor, also dated 9th December, 2004 (unreported) If learned Counsel who appear before this court, persist in this practice of signing court process in this court as & co, without evidence of being duly registered as such, it may be obliged to disrega rd or discountenance, such process including briefs. Such signing in my respectful but firm view, is NOT an irregularity as held by the court of Appeal per Alagoa JCA, in the case of Unity Bank Plc vs. Oluwafemi (2007) ALL FWLR (Pt 382) 1923 relying on the case of or decision in Cole vs. Martins (1968) ALL NLR 161 (Lardner's case). It is a fundamental error". (Emphasis mine).
The above view of the Supreme Court puts the defective nature of signing or preparing court processes in a firm's name of & Co beyond any dispute. However one aspect of the case that is commendable and worthy of emulation is the dictum that "However, in the interest of the litigants. I will go on for the last time with the merits of this Appeal". This approach of the Supreme Court to do justice to a case in spite of the error of counsel in not properly endorsing a court process shows clearly the court's disposition to place substantial justice above legal technicalities in line with a long line of decided cases.
Uba v Nwora (1978) 11-12 SCI.
Nishizawa v Jethwani (1984) 12 S.C. 234
Nneji v Chukwu (1988) 3 NWLR (pt 81) 184
UTC v Pamotei (1989) 2 NWLR (Pt 103) 244.
Beyond the prmciple of Stare decis embedded in the Supreme Court affirming its earlier decision in Okafor v Nweke what I consider the crux of the recent Ogundele v Agiri's decision is the overriding desire to do justice. It is my humble submission that while Okafor v Nweke remains good law judges ought to reserve the discretion to do substantial justice in matters before them based on the facts even where it appears that the rule in Okafor v Nweke has been breached.
The desire to see justice triumphant and law prostrate must the creed of the court at all times.
