"Good law, in my opinion must have a human face; good law should not patronize technicalities that will give rise or room to undeserved victories in litigation. Good law should discourage technicalities … good law will not encourage a situation where a party in litigation will only return home with pyrrhic victory which in reality is no victory at all"
The above statement encapsulates the need for the courts of law to do substantial justice at all times and resist the tempting call for technical justice, lending more credence and voice to this call for courts of law to shun technical justice, Per Okoro JCA, in the case of Balogun v. E. O. C. B (Nig.) Ltd , opined as follows:
"The court is mere interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice"
The Supreme Court of Nigeria, in the case of Okafor v. Nweke held that court processes signed in the name of a law firm were incompetent and on that basis struck out the application filed by the appellants without deciding same on the merit. The decision in Okafor v Nweke is now a precedent which has been blindly followed in several cases decided by the Supreme Court and other lower court to abruptly terminate suits instituted prior and after the decision where the originating process has been signed in the name of a law firm. The principle has also been further extended to render incompetent court processes signed for a principal in a law firm without the disclosure of the counsel who signed same.
Despite the outcry against the decision in Okafor v Nweke and the call for the Supreme Court to overrule the decision, the Supreme Court in the more recent cases of F. B. N v. Maiwaida and Okarika v. Samuel, affirmed the decision. In this article, a critique of the decision in Okafor v. Nweke and other cases predicated on it is attempted. The consequence of the decision vis-à-vis the pitfalls and the position obtainable in other jurisdictions is also examined. The author concludes by giving recommendations for the mitigation of the hardship occasioned by the decision.
THE FACTS AND DECISION IN OKAFOR V. NWEKE
The respondents in the case of Okafor v. Nweke filed a motion on motion at the Supreme Court seeking inter alia for an order of extension of time within which to apply for leave to cross appeal; leave to cross appeal against the judgment of the Court of Appeal, Enugu, delivered on 25/1/2001 and extension of time within to file the respondent/applicant's notice of cross appeal. The motion of notice, notice of cross appeal and the brief of argument in support of the motion on notice were all signed by the law firm of J.H.C. Okolo, SAN & Co., applicant's counsel, 162B, Zik Avenue Umani, Enugu" as the applicant's counsel.
In opposition to the motion on notice, the 1st – 3rd respondents to the motion filed a counter affidavit and a brief of argument by which the competence of the aforesaid processes filed by the applicant's were challenged on grounds that they were signed by a law firm a distinct from a legal practitioner known to law.
The Supreme Court, in a unanimous ruling delivered on the 9th of March, 2007, considered the provisions of Section 2(1) and 24 of the Legal Practitioners Act, CAP 207, Laws of the Federation of Nigeria, 1990 and held that the motion on notice, notice of cross appeal and brief of arguments all signed by the law firm of "J.H.C. Okolo, SAN & Co.," were incompetent and according struck out the said processes.
The rationale for the decision is described by Per Onnoghen, JSC who read the lead judgment as:
"… 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 same 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"
The decision heralded a new era in litigation in Nigeria as litigants with manifested bad and weak cases sought solace in the decision by challenging the competence of processes filed against them especially originating processes which were either signed in the name of a law firm or by a counsel in chambers on behalf of his principal without the name of the counsel who signed it being disclosed.
About the author
Kemi Pinheiro, SAN, FCIArb.
Kemi is the Principal of Pinheiro LP. He is a Senior Advocate of Nigeria who has won numerous awards for his outstanding performances both in legal services and many other contributions to national issues.
His educational career began in 1969 when he enrolled at the Adrao International School, Victoria Island, Lagos for his primary education. He concluded this successfully and graduated in 1976 with a firm foundation. Thereafter, in September, 1976, he proceeded to the prestigious Baptist Academy, Shepherdhill, Ikorodu Road, Lagos for his secondary education and graduated in July, 1981. During this period, he obtained the WASC 'O' Levels Certificate with distinctions. Between September, 1981 and July 1983 he was a student at the Federal School of Arts & Science, Victoria Island, Lagos for his GCE 'A' Levels, he passed excellently.
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