Under the High Court of the Federal Capital Territory- Abuja (Civil Procedure) Rules, 2018-herein after referred to as the Rules of the Court-, in Order II Rule 9, there is a provision which provides thus ‘All processes filed at the Registry, shall bear the seal of the Counsel filing the suit as provided by the Nigerian Bar Association, showing that the Counsel is fully enrolled as a legal practitioner and qualified to practice in Nigeria’. This paper considers some legal issues arising from the provisions of this Rule.
The writer of this paper has taken an observation of the above provisions of the Rules and discovers that the provisions as to the requirement for affixing the seal of the Counsel filing the suit is in relation or as provided in the provisions of Rule 10 of the Rules of Professional Conducts for Legal Practitioners, 2007-herein after referred to as RPC- which provides thus ‘(1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Government department or Ministry or any corporation, shall not sign or file a legal document unless there is affixed on such document a seal and stamp approved by the Nigerian Bar Association. (2) for the purpose of this rule, ‘legal documents’ shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents’. (3) if, without complying with the requirements of this rule, a lawyer signs or files any legal document 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’. From the provisions of Rules 10 of RPC (supra), just provided, it shows that the provisions of the Order II Rule 9 of the Rules of the Court has only further validated and adopted the requirement under the Rule 10 of the RPC (supra), which is very commendable.
Nevertheless, there is another legal issue on whether there is any implication where the Rules of the Court in Order II Rule 9 has made no reference to the provisions of the Rule 10 of the RPC (supra). Some questions in the mind of the writer of this paper are: whether the Rules of the Court is a new provisions or requirement of the law in itself?; whether there is any implication in the provisions of the Rules of the Court not making or not having made any express provision adopting the provision of the Rule 10 of the RPC (supra)? Also flowing from these preceding questions is whether the Honourable, the Chief Judge of the High Court of the FCT-Abuja does have the legal authority and or power to legislate or make any law either by Rules or subsidiary on its own without recourse or reference, expressly made to the adoption of the provisions of the Rule 10 of the RPC (supra)?
In the opinion of the writer of this paper, there is actually a legal implication in the omission of the Rules of the Court in Order II Rule 9 (supra) where no reference expressly provided or made showing or providing that the Rules of the Court adopts the provisions of Rule 10 of the RPC (supra) for instance such words as in the following words ‘All processes filed at the Registry, shall bear the seal of the Counsel filing the suit as provided by the Nigerian Bar Association, showing that the Counsel is fully enrolled as a legal practitioner and qualified to practice in Nigeria, pursuant to the provisions of the Rule 10 of the Rules of Professional Conducts for Legal Practitioners, 2007 or any amendment thereto’. What the writer of this paper is of the view is that, the omission of the reference to expressly adopt the Rule 10 of the RPC (supra) by the Rules of the Court is fundamental and cannot be overlooked. This is more so, because the said provisions and or requirement as to seal approved by NBA relates to professional occupation under the Exclusive Legislative List of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution-, which only the National Assembly has been empowered to legislate upon. The National Assembly has enacted the Legal Practitioners Act, 2004-herein after referred to as the LPA-, which is the enabling statute under which the RPC was derived. It is no doubt that the RPC was made pursuant to section 1 of the Legal Practitioner’s Act, 2004 (as amended)- herein after referred to as the LPA-, and section 10(c) of the Legal Practitioners Amendment Decree No 21, 1994-herein after referred to as LPAD. The said section 1 (1) of the LPA provides thus ‘There shall be a body to be known as the General Council of the Bar (in this Act, referred to as ‘the Bar Council’) which shall be charged with the general management of the affairs of the Nigerian Bar Association (subject to any limitations for the time being provided by the constitution of the Association) and with any functions conferred on the Council by this Act or that constitution. However, section 2 of the LPAD has amended the following words ‘the general management of the affairs of the Nigerian Bar Association (subject to any limitations for the time being provided by the constitution of the Association) and with’, as contained in the section 1(1) of the LPA. And by section 1(2) LPA, the Attorney-General of the Federation has been made the President of the Council. Also, by section 10 of the LPAD, it provides thus ’10. The existing section 11 of the Principal Act is amended by- (c) substituting for the existing subsection (4) a new subsection (4) as follows, that is- (4) It shall be the duty of the Bar Council to make rules from time to time on professional conduct in the legal profession and cause such rules to be published in the Gazette and distributed to all the branches of the association’. And by section 24 of the LPA, ‘association’ means the Nigerian Bar Association. Therefore, pursuant to the above laws, the Attorney-General of the Federation (as he then was), made the RPC as a delegated power or authority from the enabling statute i.e. LPA.
Furthermore, there should be no misconception and misapplication of the power of the Honourable, the Chief Judge of the High Court of the FCT to make Rules of Court under the FCT High Court Act. More so, as submitted above, the LPA is an Act of the National Assembly and there is no provision in the LPA empowering the Chief Judge of the FCT High Court to make such Order II Rule 9 (supra). Therefore, it is ultra vires of the Chief Judge of the FCT High Court’s powers to have made the Rule 9 of Order II of the Rules of the Court without any recourse or reference to the Rule 10 of the RPC (supra).
From the above provisions of laws, arguments and submissions canvassed, it is the submission of the writer of this paper that Order II Rule 9 of the Rules of the Court has no enabling statute upon which it stands. Therefore, it could not have been expected to stand in law, as one cannot place something on anything and expect it to stand. See: the case of ‘Macfoy v UAC (1961) 3 All E.R. 1169 at 1172’. However, this error of fundamental defect in the said Rules of the Court might not be discovered as of this moment because notwithstanding its invalidity or defect, the provision of the Rule 10 of the RPC (supra) which is still having effect has covered the defect, as of the moment. However, assuming that the provision of the Rule 10 of the RPC is amended, then, the error will be discovered.
Therefore, the Honourable, the Chief Judge of the High Court of the FCT is hereby most humbly appealed to, to amend this fundamental error by a Practice Direction which would adopt or refer to the provisions of the Rule 10 of the RPC (supra) so as to make the provisions of the Order II of the Rule 9 of the Rules of this Court (supra) to be in pursuance and compliance with the said Rule 10 of the RPC (supra).
Finally, the writer of this paper further seeks more opinions from learned colleagues on the arguments and submissions made in this paper.
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