NBA’s Stamp and the Supreme Court Verdict

Writing under the caption, "NBA's Stamp for Lawyers: Finest Moment of the Bar", yours sincerely in the LAWYER of THISDAY, April 28th 2015 edition pages 5 and 14 among others recalled the words of the Chief Justice of Nigeria, Hon. Justice Mahmud Muhammed CFR, GCON while launching the NBA Stamp and Seal Products on Wednesday April 15 2015 at the Borno Room of the Transcorp Hilton, Abuja to the effect that: "This launch celebrates the welcome actualisation of a long held aspiration of the Bar for which the President, National Executive Council (NEC) of the NBA and indeed predecessors in office, should be applauded and commended".

Under the hand of the former Attorney General of the Federation and Minister of Justice, Chief Bayo Ojo (SAN) in his capacity as Chairman, General Council of the Bar on April 7, 2007 the Rules of Professional Conduct For Legal Practitioners with 57 Rules was signed into law, deriving his powers to do so from Section 12(4) of the Legal Practitioners Act 1990 as amended.

Giving reasons for supporting the actualisation of this project by the Augustine Alegeh led administration, Justice Muhammed at the well-attended event noted that, "To contextualise this innovation, a key role of the NBA is the regulation of its members' identities through various means of identification. Indeed, the significance of this event is underpinned by the provision of Rule 10(1) of the Rules of Professional Conducts for Legal Practitioners, which mandates that any lawyer acting in his or her capacity as a legal practitioner, legal officer or adviser of any government department or corporations, shall not sign or file a legal document unless his stamp and seal are affixed on any such document. The Stamp we are here to launch today has breathed life into this provision and further elevated legal practice in Nigeria to meet the challenges of an evolving society".

To conclude the brief history of this revolutionary project, Alegeh on the day of the launch added that, "The provision of an NBA approved Stamp is a further demonstration of the commitment of the NBA to promoting the Rule of Law in Nigeria. The situation where the authenticity of legal documents has remained a mirage must come to an end immediately. No systems is perfect and the NBA being a dynamic body will continually review the implementation of the Stamp Policy to address any issues that may arise in the weeks, months and years ahead, as the welfare of the NBA members is always of critical importance". Flowing from this, the project kicked off and it was generally accepted by Nigerian lawyers. However, since we are in the era of the rule of law, the issue was tested in court i.e. the highest court in the land the Supreme Court. The first of such cases was the case No-SC/655/2015: MEGA PROGRESSIVE PEOPLE'S PARTY v INEC & ORS delivered on Monday 12th October 2015. The panel members were: Honourable Justices- Ibrahim Tanko, Justice Muhammed S. Muntaka-Coomassie, Bode Rhodes-Vivour, Clara Bata Ogunbiyi, John Inyang Okoro, Chime Centus Nweze and Amiru Sanusi. Upon reading the Certified True Copy of the judgment, it came to light that the judgment of the full court on the issue of the Bar stamp was merely obiter dictum.

Let’s go into the legal concept of obiter as clearly different from ratio decidendi. The first argument will be from a book: "Sources of Nigerian Law" by a jurist and a former Supreme Court Justice Niki Tobi. On pages 83 to 85 of the 193 page book published by MIJ Professional Publishers Limited in 1996, Justice Tobi defined

Obiter Dictum as "what the court says by the way, that is, it is a statement the court makes in the course of decision or judgment. It is a mere casual and passing expression of the judge. It has a more transient element than a ratio decidendi. It is a statement of an illustrative nature or based on hypothetical facts. It could be an observation made by the judge on issues which do not fall for determination, considering the state of the parties’ pleadings. As a general rule, obiter dictum is not binding. See BABALOLA v BABALOLA. WACA/69/1955 reported in (1956-1984) 9SC. ND.742" and ALHAJI YUSUF v EGBE (1987) 2 N.W.L.R (Pt 56) 347.

Going further, the former Deputy Vice Chancellor (Academic Services) University of Maiduguri from 1981-1983 defined Ratio Decidendi as "what is binding. This is the principle upon which the decision of the court is based. In UNITED BANK FOR AFRICA LIMITED v STAHLBAU GMBH AND CO KG (1989)3.N.W.L.R (Pt.110)374, the Supreme Court held that the ratio decidendi of a case is not determined from isolated dictum in the judgment. It is determined on a consideration of the issues in dispute between parties and the facts pleaded and found in support of the contentions of the issues."

Besides, a legal practitioner, Chuks Maduka in his well-researched paper, titled "Understanding The Concept of Judicial Precedent And The Doctrine of Stare Decisis Under The Nigerian Legal System", followed the erudite submission of Justice Tobi. To him, "Obiter Dictum, according to Oxford Dictionary 5th edition is defined as Latin: a remark in passing, something said by a judge while giving judgment that was not essential to the decision in the case. It does not form part of the ratio decidendi of the case and therefore creates no binding precedent, but may be cited as persuasive authority in later cases".

Maduka further argued that, "The Ratio Decidendi of a case is the principle of law on which the decision is based, Goodhart defined the ratio decidendi (reason for decision) of a case as the material facts of the case plus decision therein, see 'Determining the Ration Decidendi of a Case, Essays in Jurisprudence and the Common Law” 1931.

In the later case -SC/722/15 in APC v GENERAL BELLO SARKIN YARI & OTHERS where the apex court affirmed that failure to affix NBA Stamp Seal on a legal document renders such legal document incompetent, counsel for the Second Respondents/Cross Appellants, Mr. Abiodun Jelili Owonikoko (SAN) specifically in his grounds of appeal among others asked the court to determine, “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 the Rule 10(1) of the Rule of Professional Conduct did not carry with it the consequence of rendering such document incompetent”. Explaining the verdict of the apex court, General Secretary of NBA Afam Osigwe in a statement shortly after the court judgment under a title ‘SUPREME COURT AFFIRMS THAT FAILURE TO AFFIX NBA STAMP & SEAL ON A LEGAL DOCUMENT RENDERS SUCH LEGAL DOCUMENT INCOMPETENT’ said, ‘’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 Cross-Appellant; ‘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 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 by a lawyer will not be competent if the NBA stamp is not affixed to it”, Osigwe added.

For the purpose of this argument let’s see the content of the Circular issued by the CJN on May 12 2015 to all Heads of Court, Federal and States’ Judiciaries with a reference No. NJC/CIR/ HOC/171. It is titled: Implementation of the Nigerian Bar Association Stamps For All Legal Documents at Courts Registries.

1. The NBA Stamp for Lawyers was launched on 14 April 2015, by the President and the National Executive Committee of the Nigerian Bar Association, acting in furtherance of Rule 10(1) and (2) of the Rules of Professional Conduct for Legal Practitioners 2007.

2. The introduction of the new Stamps is aimed at providing a means of authenticating all legal documents, processes and letters that are prepared by legal practitioners duly qualified to practice in Nigeria and filed before your Courts in respect of any matter permissible by law.

3. There are two colours of the Stamps-Green and Red. The Green Stamps will be issued to Lawyers who are in Private Legal Practice while the Red stamps will be issued to lawyers in practice within the Public Service of any Government within the Federation. The Stamps, which are specially designed to bear the name and endorsement number of each lawyer, will only be issued to verified lawyers, who have paid their Bar Practising fees for the year in review.

4. The Stamps are valid for one year only and shall contain distinctive high quality security features, which should ensure that the courts can easily identify a Legal Practitioner or Law Firm through a personalised stamp. Once fully operational, a Stamp shall be affixed to all legal processes filed at the Registry of any court for such a process to be recognised as duly filed.

5. In support of this initiative, the Judiciary will collaborate with the Bar to ensure that the legal profession is better regulated and all processes filed are duly authenticated, in order to elevate the integrity of the judicial process monitoring systems.

6. Consequently, from 01 June 2015, all Heads of Federal and State Courts shall establish procedures for the implementation of the Stamp Policy and its full utilisation within its jurisdictions.

7. Please give this exercise a wide circulation to all Judicial Officers, the Chief Registrars and all schedule supporting staff serving in your courts”

I will conclude with the remarks by Alegeh during the launch of the Stamps that since “No systems is perfect and the NBA being a dynamic body will continually review the implementation of the Stamp Policy to address any issues that may arise in the weeks, months and years ahead, as the welfare of the NBA member is always of critical importance”.

In the words of the then Acting Chief Judge (now confirmed Chief Judge), Federal Capital Territory, Hon. Justice Ishaq Bello during the launch, this laudable project “will be remembered as one of the finest moments of the Bar in Nigeria”. For me, this project is another promise pledged by Alegeh and kept in line with his August 29 2014 Inaugural Speech in Owerri, Imo State. It is indeed, the new face of NBA in action.