Introduction

Nigerian courts, especially the Supreme Court of Nigeria, have in many decided cases, continued to represent their preference for substantial justice over technical justice. Contemporaneously, these courts have held that once an originating process commencing a suit is unsigned by a claimant or the claimant’s counsel, they are robbed of the jurisdiction to entertain such a suit.[i] This fatal consequence of an unsigned originating process on a suit, as held by Nigerian Courts, seems to be contradictory and hypocritical to their preference for substantial justice. It has been argued that the inadvertence of a counsel to sign an originating process should ordinarily fall within the ambit of technicality which substantial justice should cure.[ii] This article explores this purported contradiction and hypocrisy and ultimately answers whether Nigerian courts are sacrificing substantial justice for technicalities.

Modes of Commencing Action

Pursuant to the Constitution of the Federal Republic of Nigeria, 1999 as amended, every court has its own Rules which govern the practice and procedures to be followed by litigants and their Counsel when instituting or defending an action before such court.[iii] The Rules provide for the modes in which actions are commenced in court. Pertinently, the established modes as provided under the various Rules of court include; Writ of Summons, Originating Summons, Originating Motion and Petition.[iv] Of all these modes, Writ of Summons is the most used, as almost all causes of action can be enforced through it.[v]

Issues Implicated

In commencing an action, a counsel to a litigant is mandated to prepare the originating process by adapting the relevant Form provided in the Rules. Once adapted, such a counsel is required by the Rules to fill in his details [name, capacity and address] and finally, sign the originating process.[vi] It is after the foregoing has been done that the originating process will be filed at the Registry of the relevant court and consequently, sealed by the Registry. As simple as the foregoing processes may seem, there are instances where due to inadvertence, a counsel would proceed to commence an action without signing the originating process. The question which agitates the mind is: what legal effect does the failure of a counsel to sign an originating process have on the action?

At first blush, one would think such a failure was merely a technical mistake which would have no damning effect on the action. However, the body of case law that has been developed in the Nigerian legal system says otherwise.

The Nigerian Courts, spearheaded by the Supreme Court, have held that once an originating process is unsigned, it renders same void. The failure is so fatal that a court cannot exercise its jurisdiction and if exercised, all proceedings undertaken in that matter shall be a nullity.[vii] The fatality is so gross that if the adverse party fails to discover the failure at the trial court, he can raise it at the appellate court for the first time without seeking the permission of the appellate court. This was the decision of the Supreme Court in SLB Consortium Limited V. Nigerian National Petroleum Corporation [2011] LPELR-SC.180/2008.

This principle has been extended to situations where an originating process was signed but the name of the counsel who signed is not written below the signature. Examples abound where lawyers inadvertently omitted their names but wrote the names of their law firms below the signature.  It has been held that such inadvertence renders the originating process void and entire suit incompetent.[viii] According to Nigerian courts, only a legal practitioner within the meaning of section 2 (1) of the Legal Practitioners Act, Cap L11, LFN 2004, can sign an originating process and not a law firm owned by that legal practitioner.[ix]

In practice, once the issue of an unsigned originating process is raised before the court and the court finds that the originating process was indeed unsigned, courts hint counsel to withdraw the action so as not to waste the courts’ time since it is certain that any Ruling that would be delivered on the issue would be against the claimant.

The position of the Nigerian courts however seems contradictory and hypocritical considering the judicial representation and holdings of these same courts to uphold substantial justice over technicalities.  An example of these holdings is the dictum of the Supreme Court in Dapianlong v. Dariye (No.2) [2007] 8 NWLR (Pt. 1036) 332 where Onneghen J.S.C [as he then was] held as follows; “The reign of technical justice is over. On the throne now sits substantial justice. Long may you reign, substantial justice!” Was it not in Alioke v. Oye & Ors [2018] LPELR-45153(SC) 28-29, Paras. E-E that the Supreme Court also held as follows: “our duty as an Apex Court is to do substantial, justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities… The need to do substantial justice and avoid delving into the error of technicalities is well settled. Even in cases where errors of omission or commission called blunders have been made, it is unjust to hold that because blunders have been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.

It is thus apposite to look into the meaning of technicalities. The Court of Appeal in Benedict Orji & Ors. V. Ozo Nne Iloputaife & Ors. [2011] LPELR-9199(CA) 24, paras. A-E, relying on the Black’s Law Dictionary. 6th Ed., defines technicality to mean “immaterial, not affecting substantial rights, without substance”. Thus, any issue that does not border on the substantive rights of the parties before the court is a technicality. From the foregoing, the inadvertence of a counsel to sign an originating process ought to be treated as a technicality as it does not affect the substantive rights of the parties before a court.

If indeed Nigerian courts are concerned only with the substantive rights of the parties or the merit of the case before them, then it presupposes that their decision on the effect of an unsigned originating process is not only contradictory and hypocritical but also amounts to sacrificing substantial justice for technicalities. This is because the attention of our courts should be centred on resolving the substantive issues between parties on the merit, on the principle of:

  1. what happened between the parties?
  2. what is the legal position on what has happened?
  3. who is guilty or who is at fault between the parties?
  4. what are the available remedies?
  5. who deserves the remedy between the adverse parties?

Issue bordering on whether an originating process was signed by a lawyer should not generate any controversy in the first place. If a counsel fails to sign an originating process before commencing an action, such can easily be resolved by the counsel producing his/her Call to Bar Certificate to the court and if need be, signing the already filed originating process after the court is satisfied that the counsel was called to the Nigerian bar and enrolled at the Supreme Court. However, it seems our courts prefer to jettison the substantive issue in controversy between parties [which could be conflict over title to land, divorce, breach of contract, liability for a crime and others] and focus scarce attention on whether an originating process was signed.

By their decision, our courts have played into the hands of litigants who enjoy frustrating the cause of justice through delay tactic. Thus, once a lawyer discovers that the originating process of the opposing side is unsigned, he need not raise any objection at the trial court until the matter gets to the Supreme Court. As earlier indicated, such a lawyer does not need the permission of the Supreme Court to raise the objection for the first time and once successfully raised, everything that had been done right from the trial court to the Supreme Court shall be a nullity. With the slow court system in Nigeria where a case may take up to 10-15 years to get resolved from the trial court to the Supreme Court, a litigant’s hope and time in getting justice would have been wasted on the technical excuse that an originating process was not signed by his counsel. Taking the inadvertence of counsel on innocent litigants is antithetical to justice.

Recommendation and Conclusion

While the law frowns at taking law into one’s hand, people have in obedience, tried to ventilate their grievances in court by instituting actions against the adverse party. The best our courts can do is to decide the issues between the parties on the merit, on the principle of: what happened between the parties? what is the legal position on what has happened? who is guilty or who is at fault between the parties? what are the available remedies? who deserves the remedy between the adverse parties?

Issue as to whether an originating process was signed by a counsel should not garner attention in courts since same can be resolved by the counsel satisfying the court that he is qualified to practise by producing; his/her Call to Bar Certificate to the court; and evidence of enrolment at the Supreme Court. Nigerian Courts, in the interest of substantial justice, must look beyond technical justice and overrule its decision.

Abiodun M. Rufai, Esq., Muhammedaje@gmail.com

[i]               Okarika v. Samuel [2013] 7 NWLR (Pt. 1352) P. 19 at 43 paras A-C.

[ii]               Okafor  v. Nweke [2007] 10 NWLR (Pt.1043) 521.

[iii]              Section 236, 248, 254F, 264, 279 of the Constitution as Amended.

[iv]              Order 5 Rules 1 and 5 of the High Court of Lagos State (Civil Procedure) Rules, 2019. Also, Orders 3 and 5 of the Federal High Court (Civil Procedure) Rules, 2009.

[v]              Ekanem & Ors. v. The Registered Trustees off The Church of Christ, The Good Shepherd & Ors. [2011] LPELR-9098(CA) 20-21, Paras.D-A.

[vi]              Order 8 Rule 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules, 2019.

[vii]             Okarika v. Samuel [supra]. See also Julius Berger (Nig) Plc V. Jameshill Associate Ltd [2018] LPELR-44299(CA).

[viii]             SLB Consortium Limited V. Nigerian National Petroleum Corporation [2011] LPELR-SC.180/2008.

[ix]              SLB Consortium Limited V. Nigerian National Petroleum Corporation [supra].

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