The recent decision of the Supreme Court given on
the 23rd of February, 2018 in the case of Heritage Bank Ltd v.
Bentworth Finance (Nig) Ltd with suit No: Sc/75/2005 has become a
subject of controversy in the legal community. This is because the
judgment seems to be vague in some aspects as it relates to the
case of Okafor v. Nweke (S.C. 27/2002) delivered in
2007.
Some have argued that the decision of the court in the case
under review as it affects an irregularity that can be waived deals
with only a ” Statement of Claim’’ and not an originating process.
Hence, while a defect in a statement of claim being signed by a law
firm can be waived by condoning the defective process, that of an
originating process cannot be waived or condoned impliedly because
it affects the substantive jurisdiction of the court.
While this argument sounds convincing, it can be reasonably
argued also that contrary to the foregoing prepositions, such an
irregularity that can be waived applies to court processes in
general, and this will be buttressed with the analysis given
underneath.
In the case, the respondent had filed a statement of claim on
the 19th day of September, 1990 which was signed and settled by
Beatrice Fisher and Co, a person whose name is not on the roll call
of legal practitioners registered in the Supreme Court and licensed
to practice. While the appellants condoned the defective process,
invariably waiving their right to object to the jurisdiction of the
court, the respondent in its argument stated that the alleged
defective process was settled and filed in 1990, before the
decision in Okafor v. Nweke was given, therefore giving an excuse
why the decision in Okafor’s case should not affect the statement
of claim filed.
The Supreme Court whilst describing the argument of the
respondent as lazy and laiser faire, stated that there is
a difference between substantive and procedural jurisdiction.
Ejembi Eko JSC who gave the leading judgment, opined that a defect
in procedure is not same with defect in competence or
jurisdiction.
Some have argued that the defect in the statement of claim deals
with the procedural jurisdiction of the court and that is the mere
irregularity that can be waived. In other words, a defect in an
originating process cannot be waived as it affects the substantive
jurisdiction of the court. This argument has been further supported
with the statement of the court to the effect that the appellant
did not make any distinction because a procedural jurisdiction and
a substantive jurisdiction; an originating process and statement of
claim. To those who belong to this school of thought, the statement
that follows is connected to the other. But then I ask, if it is a
private right to waive or not to waive such a process, can same be
said about an originating process? In others, where a party that
has such a right fails to raise same, is the court bound to raise
the issue suo moto?
Not only so, it has been argued as well that the decision of the
Supreme Court in the case of Okafor v. Nweke as its regards the
defect was a defect on the originating process. But owing to the
fact that the processes before the court are appellant in nature,
it is worth asking how an originating process was before an
appellant court to justify the argument put forth.
For emphasis, the issue before the Apex court in Okafor’s is:
“Whether the Notice of Motion, Notice of (CROSS) Appeal and the
Applicants’ Brief of Argument for extension of time in this
application are null and void.”
On the issue raised, it was argued that the Notice of (CROSS)
Appeal is a process that stands out as “originating process” for
the purpose of an appeal, thus justifying the argument. While I
haven’t seen any authority to confirm the supposed position of the
law, I will like to state expressly that never at anytime did the
Supreme Court make mention of an “Originating process” in Okafor’s
case neither did it lay any special emphasis on “Notice of Cross
Appeal” as the basis of the court’s decision.
But what can really be the correct position? Let us see what the
court said in the case under review to make the prepositions
clearer. We shall also look as an excerpt of the court’s statement
in Okafor’s.
”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.* When however, the
issue is whether *a process* filed in the course of proceeding or
adjudication *is an irregularly 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 competently assume jurisdiction and adjudicate *in the
matter* in the first place.” (From Heritage Bank)
Let us also see a statement in the locus classicus
(Okafor v. Nweke):
“In arriving at the above conclusion, which is very
obvious having regard to the law, I have taken into consideration
the issue of substantial justice which is balanced on the other
side of the scale of justice with the need to arrest the current
embarrassing trend in legal practice where authentication or
franking of legal documents, particularly
processes for filing in the courts have not been receiving
the serious attention they deserve from some legal practitioners.
Legal practice is a very serious business that is to be undertaken
by serious minded practitioners particularly as both the legally
trained minds and those not so trained always learn from our
examples. We therefore owe the legal profession the duty to
maintain the very high standards required in the practice of the
profession in this country. The law exists as a guide for actions
needed for the practice of the law, not to be twisted and turned to
serve whatever purpose, legitimate or otherwise which can only but
result in embarrassing the profession if encouraged. It is rather
unfortunate that the offending processes
originated from the hallowed chambers of a learned Senior Advocate
of Nigeria who did not even see them as improper
and unacceptable but went on and on to argue that the documents,
which in law are supposed to speak for themselves, actually told a
lie as to their authentication…. On the other side of the judicial
scale in the balancing act, is the issue of substantial justice
which I said had been adequately taken into consideration in this
ruling. The conclusion that must be reached in this matter is that
the documents are incompetent and are struck out
leaving the applicants with the opportunity to present a proper
application for consideration by this Court. The effect of the
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 anything
goes. In conclusion I agree with the submission of learned Senior
Advocate of Nigeria for the respondents that the
processes filed in this application
particularly the motion on notice filed on 19/
12/05, the proposed Notice of Cross appeal and Applicants’ brief of
argument in support of the said motion on notice are incompetent in
that they were not issued by a legal practitioner known to law and
are consequently struck out with N 10, 000.00 costs in favour of
the respondents.”
Based on the reasoning of the court, these can be
the possible assertions:
- There is a distinction between procedural jurisdiction and
substantive jurisdiction. - A defect in procedural jurisdiction is a mere irregularity that
can be waived, but not that of the substantive. - A defect in an originating process goes to the root of the
matter, being fundamental but the court did not say expressly that
such irregularity cannot be waived. - The Supreme Court did not at anytime make mention of
Originating process in the Okafor’s case neither did it say that a
defect in an originating process is the basis for its
decision. - The Court in Okafor’s case severally made mention of processes
and not an originating process in particular. - When there is a supposed defect in a process, the issue is
whether *a process* filed in the course of proceeding or
adjudication *is an irregularly 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 competently assume jurisdiction and adjudicate *in the
matter* in the first place. - An originating process is a process as well as a statement of
claim - The court in Okafor’s case gave decision based on all the
incompetent process to ward off the attitude of “anything
goes” - The appellant in the Heritage Bank case waived their right to
object, while in Okafor, it was not.
In all, will the decision of the court be different if the
process in contention in the Heritage case was an originating
process such as a writ of summon? Would the decision of the court
be different if the appellant had not waived their right? That is
if they have not condoned the defect despite being a defect in a
pleading document? Has the court hold on to its duty of frowning at
the attitude of ”anything goes” by seeing the defect in the
statement of claim as a mere irregularity? Has the court succeeded
in settling the fact that a defect in an originating process is
outside the procedural jurisdiction of the court?
While all these issues are left unanswered, it is however
glaring that the decision in Heritage case creates an exception,
even though one has to be careful in calling it a departure.
Note: This remains the opinion of the
writer and open to constructive criticism.
Ebi Robert
Co-Editor, TheNigerialawyer
E-mail: Ebi.fortune@yahoo.com
The recent decision of the Supreme Court given on
the 23rd of February, 2018 in the case of Heritage Bank Ltd v.
Bentworth Finance (Nig) Ltd with suit No: Sc/75/2005 has become a
subject of controversy in the legal community. This is because the
judgment seems to be vague in some aspects as it relates to the
case of Okafor v. Nweke (S.C. 27/2002) delivered in
2007.
Some have argued that the decision of the court in the case
under review as it affects an irregularity that can be waived deals
with only a ” Statement of Claim’’ and not an originating process.
Hence, while a defect in a statement of claim being signed by a law
firm can be waived by condoning the defective process, that of an
originating process cannot be waived or condoned impliedly because
it affects the substantive jurisdiction of the court.
While this argument sounds convincing, it can be reasonably
argued also that contrary to the foregoing prepositions, such an
irregularity that can be waived applies to court processes in
general, and this will be buttressed with the analysis given
underneath.
In the case, the respondent had filed a statement of claim on
the 19th day of September, 1990 which was signed and settled by
Beatrice Fisher and Co, a person whose name is not on the roll call
of legal practitioners registered in the Supreme Court and licensed
to practice. While the appellants condoned the defective process,
invariably waiving their right to object to the jurisdiction of the
court, the respondent in its argument stated that the alleged
defective process was settled and filed in 1990, before the
decision in Okafor v. Nweke was given, therefore giving an excuse
why the decision in Okafor’s case should not affect the statement
of claim filed.
The Supreme Court whilst describing the argument of the
respondent as lazy and laiser faire, stated that there is
a difference between substantive and procedural jurisdiction.
Ejembi Eko JSC who gave the leading judgment, opined that a defect
in procedure is not same with defect in competence or
jurisdiction.
Some have argued that the defect in the statement of claim deals
with the procedural jurisdiction of the court and that is the mere
irregularity that can be waived. In other words, a defect in an
originating process cannot be waived as it affects the substantive
jurisdiction of the court. This argument has been further supported
with the statement of the court to the effect that the appellant
did not make any distinction because a procedural jurisdiction and
a substantive jurisdiction; an originating process and statement of
claim. To those who belong to this school of thought, the statement
that follows is connected to the other. But then I ask, if it is a
private right to waive or not to waive such a process, can same be
said about an originating process? In others, where a party that
has such a right fails to raise same, is the court bound to raise
the issue suo moto?
Not only so, it has been argued as well that the decision of the
Supreme Court in the case of Okafor v. Nweke as its regards the
defect was a defect on the originating process. But owing to the
fact that the processes before the court are appellant in nature,
it is worth asking how an originating process was before an
appellant court to justify the argument put forth.
For emphasis, the issue before the Apex court in Okafor’s is:
“Whether the Notice of Motion, Notice of (CROSS) Appeal and the
Applicants’ Brief of Argument for extension of time in this
application are null and void.”
On the issue raised, it was argued that the Notice of (CROSS)
Appeal is a process that stands out as “originating process” for
the purpose of an appeal, thus justifying the argument. While I
haven’t seen any authority to confirm the supposed position of the
law, I will like to state expressly that never at anytime did the
Supreme Court make mention of an “Originating process” in Okafor’s
case neither did it lay any special emphasis on “Notice of Cross
Appeal” as the basis of the court’s decision.
But what can really be the correct position? Let us see what the
court said in the case under review to make the prepositions
clearer. We shall also look as an excerpt of the court’s statement
in Okafor’s.
”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.* When however, the
issue is whether *a process* filed in the course of proceeding or
adjudication *is an irregularly 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 competently assume jurisdiction and adjudicate *in the
matter* in the first place.” (From Heritage Bank)
Let us also see a statement in the locus classicus
(Okafor v. Nweke):
“In arriving at the above conclusion, which is very
obvious having regard to the law, I have taken into consideration
the issue of substantial justice which is balanced on the other
side of the scale of justice with the need to arrest the current
embarrassing trend in legal practice where authentication or
franking of legal documents, particularly
processes for filing in the courts have not been receiving
the serious attention they deserve from some legal practitioners.
Legal practice is a very serious business that is to be undertaken
by serious minded practitioners particularly as both the legally
trained minds and those not so trained always learn from our
examples. We therefore owe the legal profession the duty to
maintain the very high standards required in the practice of the
profession in this country. The law exists as a guide for actions
needed for the practice of the law, not to be twisted and turned to
serve whatever purpose, legitimate or otherwise which can only but
result in embarrassing the profession if encouraged. It is rather
unfortunate that the offending processes
originated from the hallowed chambers of a learned Senior Advocate
of Nigeria who did not even see them as improper
and unacceptable but went on and on to argue that the documents,
which in law are supposed to speak for themselves, actually told a
lie as to their authentication…. On the other side of the judicial
scale in the balancing act, is the issue of substantial justice
which I said had been adequately taken into consideration in this
ruling. The conclusion that must be reached in this matter is that
the documents are incompetent and are struck out
leaving the applicants with the opportunity to present a proper
application for consideration by this Court. The effect of the
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 anything
goes. In conclusion I agree with the submission of learned Senior
Advocate of Nigeria for the respondents that the
processes filed in this application
particularly the motion on notice filed on 19/
12/05, the proposed Notice of Cross appeal and Applicants’ brief of
argument in support of the said motion on notice are incompetent in
that they were not issued by a legal practitioner known to law and
are consequently struck out with N 10, 000.00 costs in favour of
the respondents.”
Based on the reasoning of the court, these can be
the possible assertions:
- There is a distinction between procedural jurisdiction and
substantive jurisdiction. - A defect in procedural jurisdiction is a mere irregularity that
can be waived, but not that of the substantive. - A defect in an originating process goes to the root of the
matter, being fundamental but the court did not say expressly that
such irregularity cannot be waived. - The Supreme Court did not at anytime make mention of
Originating process in the Okafor’s case neither did it say that a
defect in an originating process is the basis for its
decision. - The Court in Okafor’s case severally made mention of processes
and not an originating process in particular. - When there is a supposed defect in a process, the issue is
whether *a process* filed in the course of proceeding or
adjudication *is an irregularly 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 competently assume jurisdiction and adjudicate *in the
matter* in the first place. - An originating process is a process as well as a statement of
claim - The court in Okafor’s case gave decision based on all the
incompetent process to ward off the attitude of “anything
goes” - The appellant in the Heritage Bank case waived their right to
object, while in Okafor, it was not.
In all, will the decision of the court be different if the
process in contention in the Heritage case was an originating
process such as a writ of summon? Would the decision of the court
be different if the appellant had not waived their right? That is
if they have not condoned the defect despite being a defect in a
pleading document? Has the court hold on to its duty of frowning at
the attitude of ”anything goes” by seeing the defect in the
statement of claim as a mere irregularity? Has the court succeeded
in settling the fact that a defect in an originating process is
outside the procedural jurisdiction of the court?
While all these issues are left unanswered, it is however
glaring that the decision in Heritage case creates an exception,
even though one has to be careful in calling it a departure.
Note: This remains the opinion of the
writer and open to constructive criticism.
Ebi Robert
Co-Editor, TheNigerialawyer
E-mail: Ebi.fortune@yahoo.com