The decision of the Supreme Court in Okafor v. Nweke  10 NWLR [Part 1043] page 521, is presumptively well-known in legal circles; such that it is scarcely necessary to recount the bare details here. To be sure, it made a strict prescription for how, and by whom, processes of court are to be signed. The inflexible rule in Okafor v Nweke is now so regularly applied, that it has also attracted, by extension, a direct attribution to a revered English law lord, all too often quoted, to announce the ensuing catastrophe to a court process that falls short of the prescription: ‘You cannot put something on nothing’.
The Supreme Court, by its recent decision in Heritage Bank Limited v Benworth Finance (Nigeria) Limited (judgment delivered February 22, 2018), has now, it would seem, introduced a strand of distinction to the application of the seeming inflexible rule in Okafor v Nweke. The facts stated simply: the writ of summons by which the action at the trial court was initiated, was properly signed by a legal practitioner, but not so for the statement of claim. It was issued, endorsed and signed in the name of a law firm. Instructively, the defect was only raised for the first time when the matter went on appeal to the Supreme Court. The Supreme Court, per Ejembi Eko JSC in the lead, in overruling the objection, made two distinctions, viz, (i) the originating process (that is, the writ of summons) was properly signed, and; (ii) -in any event- the objection as to the defective statement of claim, was not timeously raised. His Lordship’s exact words:
“The facts of this case, particularly on this objection, are that in spite of the fact that the Statement of Claim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of legal practitioners, the Appellant, as the defendant, condoned the defective process. They participated in the proceedings and evidence arising from the Statement of Claim was called after the statement of defence joining issues with the defective Statement of Claim was filed. Judgment of the trial court, based on the evidence elicited from the Statement of Claim, was delivered without objection.
Even at the Court of Appeal no issue was made of the alleged defective Statement of Claim. The Appellant, as the defendant, had clearly condoned the defective statement of claim and waived his right to object to this defective process. The right of the defence to object to the irregularity ex facie the Statement of Claim is a waivable right, being a private right: AG., KWARA & ANOR. v. ADEYEMO (supra); ARlORI v. ELEMO (1983) 1 SC 13. This issue, accordingly, cannot be resolved for the Appellant. I hereby resolve it against the Appellant.”
Commendable, and indeed a welcome development; the reasoning that the right to complain, and -in attendance- invoke court’s jurisdiction to strike out an action, may be waived when the offending court process is a statement of claim (and, not a writ of summons/originating process), for which the defendant/objector did not raise complaint timeously. What however appears to have introduced an uncertain binding force of precedent into this approach, is that this very distinction of waivable private right on improperly signed or defective court processes save originating papers might, with respect, may have been inadvertently introduced without clear adherence to the binding force of precedents. Specifically, two characteristically similar cases need to be treated the same way – except where the earlier decision is expressly overruled.
Put simply, the Supreme Court in Heritage Bank’s case, failed to take account of its earlier decision in Alhaji Tajudeen Babatunde Hamzat & Anor v. Alhaji Saliu Ireyemi Sanni & Ors  LPELR-24302 [SC], which was of the same fact pattern as the Heritage Bank’s case. Suffice it to say that the selfsame Supreme Court reached a diametrically opposed view with respect to the defective statement of claim in the earlier decision.
Briefly, the facts of Hamzat’s case, are that the plaintiffs instituted an action by their writ of summons, issued and signed by their counsel, “MUYIWA OBANEWA Esq. of OLUMUYIWA OBANEWA and Co. Legal Practitioners. However, the “Statement of Claim” and “Amended Statement of Claim” of the plaintiffs respectively, were both signed by their counsel thus: “OLUMUYIWA OBANEWA & CO. LEGAL PRACTITIONERS, SOLICITORS TO THE PLAINTIFFS.” The learned trial Judge after taking evidence of witnesses and addresses of counsel to the respective parties, found in favour of the plaintiffs and granted all their claims. The defendants were dissatisfied with the decision and appealed to the Court of Appeal. The Court of Appeal dismissed the appellants’ claim on the ground that they were not proven. Still not satisfied, the appellants approached the Supreme Court, and for the first time raised a Notice of preliminary objection, by which they challenged the competence of the statement of claim, on which evidence of the plaintiffs’ witnesses at the trial court was based. Their main plank of objection, was that the statement of claim filed at the trial Court was signed by “OLUMUYIWA OBANEWA AND CO.” as “Legal Practitioners, solicitors to the plaintiffs”. Much like the Heritage Bank’s case, the objection as to the improperly endorsed statement of claim, was raised at the apex Court for the first time.
Presented with the above fact situation (as in the later case of Heritage Bank), the apex Court -in Hamzat’s- felt able to hold that the properly signed writ -being the originating process- made the action valid and competent. However, with reference to the defective statement of claim, the apex court was emphatic that no evidence could be led or considered on a defective statement of claim, and thus the evidence led at the trial court, was of no consequence. Put simply, and as inferentially deduced from the judgment, having found the writ proper and competent, the plaintiffs could now go back and apply for extension of time to file a properly signed statement of claim; thus, setting the stage for another full course plenary hearing, before the trial court. The plaintiffs were left with no other option, even as the earlier action (at the trial court) was concluded in 2006, and the decision of apex Court, made in January 2019. Interestingly, a similar decision was handed down in a Court of Appeal decision of a similar fact pattern, in Chijioke Azubuike v Alhaji Ahmad Hassan  LPELR- 23442 [CA].
In the earlier Hamzat’s case, the apex Court reached a different conclusion on the same set of facts; with regard to the defective statement of claim, from that in Heritage Bank’s. Evidence led on the defective statement of claim at the trial court, was permitted to stand, and indeed the evaluation of same, subsequently secured the affirmation of the two lower courts’ findings in favour of the plaintiff/respondent. The Court’s earlier decision in Hamzat’s, appears not to have been cited or referred to in the Heritage Bank case, thus leaving out the possible suggestion that the latter decision has expressly overruled the former. And even if it was referred to, one panel of the Supreme Court (comprising of 5 Justices) cannot overrule another panel of equal number. It would require the full court (of 7 Justices) to overrule a previous decision of the Court. Yonwuren v Modern Signs  1 NWLR [Pt.2]244; Paul Odi & Anor. v. Gbaniyi Osafile & Anor.  1 NWLR [Pt.1] 17. What emerges from the present scenario, is a position of conflict of decisions of the apex Court on the applicability of the rule of Okafor v Nweke to an improperly signed statement of claim only. This leaves Counsel and/or the lower Court, the latitude to pick and choose any of the conflicting decisions, as opposed to the suggestion that Heritage Bank’s, has now introduced a proviso to the rule in Okafor v Nweke.
Still on the potential area of conflict, an argument which was enthusiastically pursued, howbeit futilely, in SLB Consortium v NNPC, was arguably accepted in Heritage Bank’s. The argument in SLB was that Okafor v Nweke, decided in 2007 – long after the defective process in SLB Consortium was filed in year 2000, should not be applied to have retrospective effect, and affect the validity of an act carried out years before the judgment of the Supreme Court was handed down in a different case. Whilst not contained in the leading opinion of Ejembi Eko JSC , it is however worthy to mention, that the concurring opinion of my Lord, Odili JSC, held inter alia, that ‘This issue needs no elaborate consideration since at the said time of the writ of summons the procedure then allowed for signature of legal firms, and so the processes leading to this appeal which took place way before 2007 when the Supreme Court judgment of Okafor v Nweke (2007) 10 NWLR (Pt. 1043) 521 was delivered and showed the new way in compliance with sections 2(1) and 24 of the Legal Practitioners Act..’ It is conceded, that statement of law; which is not contained in the leading opinion, is not part of the ratio decidendi of the case. Idise and Ors v Williams International Ltd (1995) 1 NWLR (pt 370) 142, 150. But judging by the nature of our adversarial litigation system, some future reliance, contextually self-serving, may not be expressly ruled out at this stage.
The above notwithstanding, the high watermark of Heritage Bank’s is a clear statement -of the apex Court- that objection to an improperly signed court process (excepting originating process) is a waivable private right; which brings the jurisdictional issue involved to the level of a procedural, as opposed to a substantive one. Put simply, it is an objection that must be raised at the earliest opportunity, or the objector loses the opportunity once he files, and indeed goes ahead to defend the case on the merits. This ‘balancing act’ indeed accords with a view some time ago expressed by Hon. Justice Peter Affen (of the High Court of the FCT, Abuja), writing extra-judicially in ‘Judicialism in Nigeria: Gasping For Breath Under Our Watch’ (2015).
In my view, the same conclusion (as in Heritage Bank’s), can be extended to an improperly signed writ of summons/originating process. Where the defendant fails to object before taking a further step, he loses the opportunity. In Okafor v Nweke; similarly re-echoed in FBN v Maiwada  5 NWLR [Pt. 1348] P. 444, the apex Court appeared to have identified a difficulty, when a significant part of the reasoning, centered on the fact that the provision being interpreted was a prescription of substantive law, as opposed to a rule of court. Oguntade JSC declared, matter-of-factly: “It would have been quite another matter if what is in issue is a mere compliance with court rules.” Looked at in the round, the fact that it is a statutory provision that has come up for interpretation, would still not rob the court of the opportunity of treating same as a waivable private right, where objection is not raised at the earliest opportunity. The jurisprudence underpinning Okafor v Nweke, was put as the need to ensure responsibility and accountability on the part of a legal practitioner who signs a court process. At first blush, this appears a public policy issue that may not be waived; or is not voidable at the instance of the adverse party in a litigation. But still, balancing the act, the unintended numbing effect (of the application of Okafor v Nweke) is actually ‘the painful realities that confronts a litigant when counsel fails to sign processes as stipulated by the Law’, per Rhodes-Vivour JSC in SLB Consortium Limited v NNPC (2011) 9 NWLR (Pt. 1252)317. Without more, this raises a case in point to treat an improperly signed writ of summons/originating process, as a waivable private right at the instance of the opposing party. I would add that the proposition that an improperly signed writ of summons is a waivable private right, is lent credence to, by the fact that other improperly signed processes are– by the holding in Heritage Bank’s– to be treated as a waivable right at the instance of the objecting party. Put differently, if Counsel are to be held responsible on account of how and whom to sign originating processes, by parity of reasoning, and perhaps to secure the jurisprudential leaning, responsibility should be accorded in respect of every other process prepared, signed and filed by legal practitioners, without a shield availing the erring Counsel on account of a delayed complaint from the objecting party.
Arguably, it is not an easy comparison, but for whatever it is worth, there seems an instructive cue to be drawn from the progressive trend the apex Court demonstrated, around the interpretation of the provisions of the Sheriffs & Civil Process Act (SCPA), on service outside jurisdiction. Time was (and on this, I refer to Skenconsult v Ukey  1 S.C.6; Nwabueze v. Justice Obi Okoye  4 NWLR [Pt.91] 664 at 668), where proceedings were declared a nullity; where service vide the provision of section 99 of the SCPA was not complied with, as it could not be waived. Not so, the decisions of the apex Court in Ezomo v. Oyakhire  1 NWLR [Pt. 2] 195; Adegoke Motors v Adesanya  3 N.W.L.R [Pt 109] 250 introducing the issue of waiver, thought. At some point, the decisions were said to conflict; the very point which was exhaustively and painstakingly examined and put in proper perspective, by the illuminating decision of the FULL COURT; Ogundare JSC (in the lead, of the majority 6-1) in O’dua Invest. Co. Ltd. v Talabi  10 NWLR [Pt. 523] 1 at 21-2. SC. To cut it short, the law today – still interpreting the substantive provision of s.99 of SCPA- is that where a party takes steps in a matter, including filing statement of defence, he is deemed to have waived, surrendered or relinquished his right to object to the fact that the writ of summons in question offends the provisions of the SCPA, and in such fact circumstance, a violation of sections 97 and 99 of the SCPA will amount to an irregularity, and the court will not nullify the proceedings.
All said, Heritage Bank’s has thrown up many more strands to the discussion. Certainty is a wholly achievable aim of the law, on the points raised here, that are far from being determined. Finally. Should the Court reconvene? Certainly, at some other auspicious time.
Folabi Kuti is a Partner in the commercial law firm of Perchstone & Graeys. Email: firstname.lastname@example.org