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 other words, 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 irregular 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 case of reference: (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:

  1. There is a distinction between procedural jurisdiction and substantive jurisdiction.
  2. A defect in procedural jurisdiction is a mere irregularity that can be waived, but not that of the substantive.
  3. 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.
  4. 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.
  5. The Court in Okafor’s case severally made mention of processes and not an originating process in particular.
  6. 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.
  7. An originating process is a court process. A statement of claim is also a court process.
  8. The court in Okafor’s case gave decision based on all the incompetent process to ward off the attitude of “anything goes”
  9. 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]]>

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