1 Implications of the Recent Supreme Court Decisions on Non-Compliance with Rule 10 of the Rules of Professional Conduct on use of Authenticating Stamps and Seals.1 The Nigerian Bar Association (NBA) recently2 circulated the following synopsis to members: “SUPREME COURT AFFIRMS THAT FAILURE TO AFFIX NBA STAMP & SEAL ON A LEGAL DOCUMENT RENDERS SUCH LEGAL DOCUMENT INCOMPETENT In a judgment delivered today in Appeal No. SC/722/15 All Progressives Congress (APC) V. General Bello Sarkin Yaki, the Supreme Court upheld the 2nd Cross-Appellant’s Cross appeal against the decision of the Court of Appeal, Sokoto Division which summarily dismissed the 2nd Cross-Appellant’s preliminary objection which challenged the Appellants’ Notice of Appeal for failure to bear the stamp/seal of the legal practitioner who signed it. In allowing the appeal the Supreme Court upheld the sole issue formulated by the 2nd CrossAppellant; ‘Whether the Court of Appeal was right to hold that failure of a legal document to have affixed to it a Stamp/Seal as mandated by rule 10(1) of the rules of professional conduct did not carry with it the consequence of rendering such legal document incompetent’. By this decision the Court affirmed that if without complying with the mandatory provision of Rule 10(1) Rules of Professional Conduct for Legal Practitioners 2007 which requires a lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Government department or ministry or any corporation, who signs or files a legal document to affix on any such document a seal and stamp approved by the Nigerian Bar Association, the document so signed or filed shall be deemed not to have been properly signed or filed. The court has therefore declared that the signing and or filing of a legal document will be incompetent.3 Dated this 27th Day of October, 2015 Mazi Afam Osigwe General Secretary” There was much furore in the legal community as to the propriety or otherwise of the said decision and the effect it would have on processes that had been filed without such stamp/seal. Fears were heightened because it appeared that the court was departing from its position on the matter, as in the same month the Supreme Court had earlier held in SC/655/2015: Mega Progressive People’s Party v. INEC & Ors., that: “The issue of BAR stamp raised by Dr. Ayeni is in a circular which has been issued by the Honourable Chief Justice of Nigeria to all Heads of Courts for the betterment 1 Feyisola Oyeti, Associate at S. P. A. Ajibade & Co, Lagos Office. 2 On 27th October 2015. 3 Emphasis supplied. 2 of the Legal Practice in Nigeria. The circular has not metamorphosed into a Practice Direction. It cannot be said to be a compulsory requirement for filing processes in a Court of Law. Section 10 of the Legal Practitioners Rules of Professional Conduct relied upon by Dr. Ayeni is directory and NOT Mandatory in nature. Failure to affix the Nigerian Bar Association stamp cannot, in my view, invalidate processes filed in a Court of Law.” – [Per I.T Muhammad JSC at para 5 at page 3 of the decision]. The Supreme Court released the full judgment in SC/722/15: Senator Bello Sarkin Yaki & Anor v. Senator Atiku Bubakar Bagudu & Ors., on 13th November 2015 disclosing the reasons for the decision. It has become clear on closer reading that the two decisions are not in conflict; rather the second decision provides more analytical reasoning for the position taken by the court. The cross-appeal in this latter appeal had specifically challenged that part of the judgment of the Court of Appeal as to what should be the fate of a notice of appeal filed without the stamp/seal of the legal practitioner affixed to it. The cross-appellant’s sole issue for determination was whether the Court of Appeal was right to hold that failure of a legal document to have affixed to it a stamp/seal as mandated by Rule 10 of the Rules of Professional Conduct (as recently amended) did not carry with it the consequence of rendering such document incompetent. The cross-appellant contended to the contrary that non-compliance with the Rules robbed the court of jurisdiction to determine the appeal on the merit. The cross-respondent on the other hand argued that the non-compliance was a mere irregularity and could not deprive him of his constitutional right of appeal, insisting that what the cross-appellant was seeking to accomplish was to elevate an administrative directive to one with a force of law with mandatory consequences. The Court of Appeal had reached the conclusion that neither the Rules of Professional Conduct nor the circular issued by the Hon. Chief Justice of Nigeria on the issue of stamps and seals by legal practitioners prescribed the consequence of failure of a legal practitioner to apply his stamp and seal. The Supreme Court in its lead judgment delivered by Ngwuta JSC held that: “ the legal document so signed and / or filed is not null and void or incompetent like the case of a court process signed in the name of a corporation or association (even of lawyers) as in the case of Okafor v. Nweke (2007) 10 NWLR (pt.1043) SC 251. The document is deemed not to have been properly signed or filed but not incompetent as the 2nd Respondent assumed. It is akin to a legal document or process filed at the expiration of the time 3 allowed by the Rules or extended by the court. In the case at hand, the process filed in breach of Rule 10(1) can be saved and its signing and filing regularized by affixing the approved seal and stamp on it.” [See para 3 at page 6 – of the Court’s decision]. The 2nd Respondent’s cross-appeal was allowed in the instant case because the Cross - Appellant did not remedy the defect. Their Lordships also pointed out that the remedy for failure to comply with the RPC was clearly stipulated by the Rules in the following terms: “if, without complying with the requirements, a lawyer signs or files any legal documents as defined in sub-rule (2) of this rule, and in any of the capacities mentioned in sub-rule (1), the document so signed or filed shall be deemed not to have been properly signed or filed.” 4 Ogunbiyi JSC in her concurring judgment held that the refusal of the document by the registry is a sanction in itself and pending proper signature and affixing of stamp/seal as required by Rule 10(2) RPC, the breach of the rule should not be viewed as a substantive infraction but a mere irregularity which can be remedied. Hon. Justice Rhodes-Vivour in his concurring judgment referred to the earlier decision in SC/655/2015: Mega Progressive People’s Party v. INEC & Ors., and held that the proper interpretation of that case is that processes filed without the Nigerian Bar Association stamp are voidable but not void. He went further to clarify that in the present appeal, the court stated that legal processes without the requisite stamp or seal are voidable. That is to say, such documents are deemed not to have been properly signed and not that they are invalid or incompetent. Such documents are redeemed and made valid by a simple directive by the Judge or the relevant authority at the time of filing the voidable document for erring counsel to affix stamp and seal as provided in Rule 10 of RPC. Consequently, his Lordship found no conflict between the two decisions issued by the Supreme Court. The mischief that the enforcement of the seal/stamp aims to cure is to eradicate the influx of quacks parading as lawyers. The Supreme Court per Odili JSC in her concurring judgment made this point emphatically when she observed that: “there is the need, an urgent one at that to protect the entire public from fakes parading themselves as legal practitioners and also the safe guarding of the profession itself which has been regulated and it is not for an individual lawyer to decide which regulation is an offhand directive that could be complied with or not. Therefore, any non - compliance with Rule 10(2) of RPC with circular of 4 Rule 10(3) RPC as amended. 4 the Chief Justice of Nigeria as a reiteration is visited with the sanction that the process is without competence. It cannot be excused by talking of the inalienable right of a litigant to appeal as that right has to be exercised within the necessary prescribed Rules of legal practice.” [See para. 2 at page 54 of the decision]. Honourable Justice Rhodes-Vivour also expressed the view that: “…these provisions are designed to check and stop the alarming influx into the profession of fake lawyers masquerading as genuine legal practitioners”. [See para. 2 at page 3 of the decision]. Commentary: This recent decision of the apex court (although unassailable in logic and legal reasoning) raises a number of issues that require careful consideration, in order to make the enforcement of this new policy a meaningful exercise: 1. Section 2 of the Legal Practitioners’ Act (Cap. L11 LFN 2004) provides that subject to the provisions of the Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll. Section 8 (2) of the LPA provides that no legal practitioner shall be granted audience in any court in Nigeria in any year unless he has paid the practicing fee for that year. Rule 9 (1) and (2) of the Rules of Professional Conduct (RPC) for legal Practitioners complementarily states that a lawyer shall pay his annual practicing fees not later than 31st March every year, and any lawyer in default shall not sign or file any document as a legal practitioner. The decision of the apex court under review can be interpreted as barring a legal practitioner whose name is on the roll and who has paid the requisite practicing fees from filing a legal process without the stamp/seal, and from appearing as counsel in a lawsuit, even if such legal practitioner can otherwise establish the fact of payment by alternative means? It is apparent that the provisions of the LPA (and the RPC prior to the recent amendment) summarized above are sufficiently comprehensive and only require proper and effective enforcement. Since the new directive is designed to supplement the provisions of the LPA, it should not be implemented in such manner as to clash with the overriding provisions of the LPA on the same issue. If the primary objective for introducing the new rule is to prevent unqualified persons from parading themselves as legal practitioners, then a legal practitioner whose capacity to represent a client has been challenged should be permitted to submit 5 proof of admission to the Bar and other evidence of payment of practicing fees. To insist that a court document, duly signed and filed by a legal practitioner, cannot be countenanced for non-compliance with the new directive is to elevate an essentially technical requirement over substantial compliance. Such a rigid interpretation unwittingly and avoidably pits the Rules of Professional Conduct against the provisions of the Legal Practitioners Act, which clearly stipulates the requirements for admission and practice of the profession in Nigeria.5 The RPC being a subsidiary legislation made pursuant to the substantive provisions of a superior statutory instrument is clearly subservient to the overriding law and cannot be elevated above the parent law. If the practice in other jurisdictions is anything to go by, the commendable ancillary objectives of digitizing the regulation of the profession, updating the database of lawyers for more effective monitoring of members can still be attained without introducing an additional layer of verification with attendant annual financial implications. The NBA may more appropriately insist on the use of bar admission numbers on all court processes issued under the hand of legal practitioners who practice before the various courts. 2. The force of this argument is accentuated by the fact that the new procedure is currently marred by a number of technical problems and administrative challenges that have so far defied resolution. To date, a sizeable number of legal practitioners who applied for the requisite stamps/seals are yet to be issued with these authenticating items. Some legal practitioners were issued defective stamps/seals bearing inaccurate information, while some others were issued two sets of stamps/seals from both the state and the federal chapters of the NBA with conflicting identification numbers and irregularly and non-consecutively numbered seals. What then is the fate of those legal practitioners who are affected by these administrative anomalies? Are they disentitled from filing court papers and earning a living, for reasons beyond their control? 3. These numerous implementation problems may have informed the issuance of the Circular by the CJN (Ref. NJC/CIR/HOC/171 dated 12th May 2015), on the modalities for the implementation of the stamps/seals directive. That Circular indicated that with effect from June 1st 2015: “…all Heads of Federal and State Courts shall establish 5 A similar argument was canvassed in the case of Mbatsavdue v. Registered Trustees of the NBA, SUIT NO. FCT/HC/CV/5150/2011, delivered on 30th November 2012, but the substantive question of conflict with the provisions of the Legal Practitioners Act was side-stepped by the Court in favour of an in limine dismissal for lack of standing to institute the action. 6 procedures for the implementation of the Stamp Policy and its full utilization within all jurisdictions.” It is necessary for the NBA to work within the existing administrative machinery by encouraging the Chief Judges of the respective courts to issue practice directions to ensure proper compliance with Rule 10 of the RPC. The Federal High Court in Lagos commenced the implementation of the policy on 19th October 2015. The Federal High Court registry in Lagos has been refusing to accept processes submitted for filing without the seal/stamp. In contrast, the Lagos State High Courts have not implemented this directive since processes filed by counsel without the prescribed stamp and seal are still being accepted for filing at both the Lagos and Ikeja Divisions.6 4. From all indications, the Registries are ill equipped and unprepared for the implementation of the new rule and to screen all processes for compliance prior to accepting them for filing.7 If the necessary administrative machinery had been in place and the staff at the registry sufficiently apprised of their responsibilities, the question of compliance with the new directive under review in the extant cases would not have arisen. These documents would have been rejected at the point of filing in the first instance. In our humble view, it was therefore hasty for their Lordships to hold, as they did in Senator Bello Sarkin Yaki & Anor v. Senator Atiku Bubakar Bagudu & Ors., that the application of Rule 10 of the RPC was not dependent on a practice direction from the CJN. As it turns out, the CJN’s Directive was prescient and wisely issued. Conclusion Although the objectives behind the new rule are admirable, 8 nonetheless, the new directive needs to be properly implemented and enforced without elevating what is essentially a technical requirement over substance. The apex court’s ruling that noncompliance with Rule 10 of the RPC merely renders the relevant document voidable and an irregularity capable of being corrected, rather than incompetent, was spot on in our 6 From all indications, while the National Industrial Court (NIC) is not accepting documents without the NBA stamp and seal in compliance with the new Directive, the Investment and Securities Tribunal (IST) is still accepting processes without the NBA stamp and seal for the time being. 7 It may be necessary to install electronic verification devices at the various court registries to screen for the authenticity and the genuineness of the stamps and seals applied to court papers and processes, assuming there are security devices embedded in them. 8 Not only in the litigation sphere, but for transactional matters where legal documents and international contracts intended for use locally are now randomly prepared offshore by foreign trained lawyers not admitted to practice law in Nigeria. The proper use of the newly mandated stamps and seals may provide some form of protection against such unwholesome practices. 7 view. However, the insistence on rigid compliance with the stamp and seal directive loses sight of the ultimate goal of the exercise, which is to ensure that only lawyers properly admitted to practice law in Nigeria and who have paid their practicing fees are allowed to practice before our courts. Evidence tending to show such substantial compliance should be acceptable as sufficient and satisfactory. Perhaps, Rule 10 of the RPC should be further amended to reflect the fact that court documents which bear such stamps and seals shall be regarded as prima facie regular on their face without need for further proof or verification. Such an alteration to the directive would not invalidate other processes filed without the prescribed stamps and or seals, but could expose them to preliminary challenge from the other party to the action under legitimate circumstances. And in such latter instances, proof of substantial compliance with the provisions of the LPA should serve as adequate rebuttal in such cases. SPA AJIBADE & CO. Legal Practitioners, Arbitrators and Notaries Public. January 2016.