The Supreme Court will tomorrow 15th December 2017, deliver a
landmark judgment in relation to the practice of law, especially as
it concerns legal practitioners and the filing and signing of court
processes.
In the appeal pending before the court, the issue of proper
person to sign processes to be filed in court, has come up for
review and determination. The appellants in this case, are seeking
to set aside the judgment of the court of appeal, on the grounds,
amongst others, that the notice of appeal was not properly signed
by a legal practitioner known to law, in that it was signed “&
Co.”
In many of its decisions starting from the case of Okafor v
Nweke, the Supreme Court has maintained that only a legal
practitioner whose name appears on the Roll of the Supreme Court,
can competently sign any process to be filed in court.
Upon being served with the appellants’ brief in this case,
settled by Afolabi Kuti, Esq., the respondent, thorough his
counsel, Ebun-Olu Adegboruwa, Esq., requested for the convening of
the Full Court of the Supreme Court, to determine the crucial
issues arising in the appeal.
The respondent urged the Supreme Court to depart from all its
previous decisions on the point, on a number of grounds. First it
was contended that a 1968 decision of the Supreme Court in the case
of Cole v Martins was not adverted to, in the case of Okafor v
Nweke, and indeed in many of the decisions that followed it. In
that said case, it was held that a process signed by “Lardner &
Co.” cannot be said to be defective when the author was
sufficiently identifiable and traceable and no possible doubt or
confusion can arise from his description as such.
It is also being contended further, by the respondent, that
section 2 of the Legal Practitioners Act has been wrongly
interpreted to guide the practice and procedure of the courts,
especially in relation to the filing of court processes, whereas
the purport of the Act is simply to regulate legal practice outside
and beyond the courts.
In the alternative, the respondent is urging the court to
consider the effect of section 4(9) of the 1999 Constitution, which
prohibits retroactive legislation, to apply it to judicial
proceedings, and thereby limit the application of Okafor v Nweke
and the cases following it, to the dates of those cases, instead of
the current practice whereby these cases are being deployed to wake
up dead and concluded cases from their well deserved judicial
graves.
The respondent is also seeking departure on the ground that
these decisions are contrary to public policy of not permitting the
trade practice of lawyers to affect the innocent litigants, who are
not conversant with the style and procedure of signing and filing
of court processes.
When the appeal came up for hearing on September 26, 2017, the
Supreme Court panel of seven justices, led by the Honourable
Justice Mary Odili, JSC, granted leave to Mr Afolabi Kuti to amend
his notice of appeal and the appellants’ brief, to incorporate the
issue of jurisdiction newly raised, whilst Mr Ebun-Olu Adegboruwa
was granted leave to also amend the respondent’s brief.
The case is already listed as number 3 on the Supreme Court
cause list for judgment tomorrow.
The Supreme Court will tomorrow 15th December 2017, deliver a
landmark judgment in relation to the practice of law, especially as
it concerns legal practitioners and the filing and signing of court
processes.
In the appeal pending before the court, the issue of proper
person to sign processes to be filed in court, has come up for
review and determination. The appellants in this case, are seeking
to set aside the judgment of the court of appeal, on the grounds,
amongst others, that the notice of appeal was not properly signed
by a legal practitioner known to law, in that it was signed “&
Co.”
In many of its decisions starting from the case of Okafor v
Nweke, the Supreme Court has maintained that only a legal
practitioner whose name appears on the Roll of the Supreme Court,
can competently sign any process to be filed in court.
Upon being served with the appellants’ brief in this case,
settled by Afolabi Kuti, Esq., the respondent, thorough his
counsel, Ebun-Olu Adegboruwa, Esq., requested for the convening of
the Full Court of the Supreme Court, to determine the crucial
issues arising in the appeal.
The respondent urged the Supreme Court to depart from all its
previous decisions on the point, on a number of grounds. First it
was contended that a 1968 decision of the Supreme Court in the case
of Cole v Martins was not adverted to, in the case of Okafor v
Nweke, and indeed in many of the decisions that followed it. In
that said case, it was held that a process signed by “Lardner &
Co.” cannot be said to be defective when the author was
sufficiently identifiable and traceable and no possible doubt or
confusion can arise from his description as such.
It is also being contended further, by the respondent, that
section 2 of the Legal Practitioners Act has been wrongly
interpreted to guide the practice and procedure of the courts,
especially in relation to the filing of court processes, whereas
the purport of the Act is simply to regulate legal practice outside
and beyond the courts.
In the alternative, the respondent is urging the court to
consider the effect of section 4(9) of the 1999 Constitution, which
prohibits retroactive legislation, to apply it to judicial
proceedings, and thereby limit the application of Okafor v Nweke
and the cases following it, to the dates of those cases, instead of
the current practice whereby these cases are being deployed to wake
up dead and concluded cases from their well deserved judicial
graves.
The respondent is also seeking departure on the ground that
these decisions are contrary to public policy of not permitting the
trade practice of lawyers to affect the innocent litigants, who are
not conversant with the style and procedure of signing and filing
of court processes.
When the appeal came up for hearing on September 26, 2017, the
Supreme Court panel of seven justices, led by the Honourable
Justice Mary Odili, JSC, granted leave to Mr Afolabi Kuti to amend
his notice of appeal and the appellants’ brief, to incorporate the
issue of jurisdiction newly raised, whilst Mr Ebun-Olu Adegboruwa
was granted leave to also amend the respondent’s brief.
The case is already listed as number 3 on the Supreme Court
cause list for judgment tomorrow.