THE LEGAL PRACTITIONER’S STAMP/SEAL POLICY AND LEGAL ISSUES ARISING THEREIN
The second scenario, is where a lawyer in a suit has already affixed his stamp/seal should he still be required to affix same on other processes filed subsequently in that suit? Bearing in mind that the stamp/seal is to authenticate the status of the lawyer, which has been satisfied in the earlier process filed, should he be required to further authenticate his status in the same proceedings?
Our view is that affixing the stamp/ seal is not just to authenticate the status of a lawyer but also to give validity to the said process which in our view is the intendment of Order 10(3) of RPC, which states that;
If, without complying with the requirements of this rule a lawyer signs or files any legal documents as defined in sub-rule 2 of this rule, and in any of the capacities mentioned in sub-rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed (Emphasis supplied)
Can a Lawyer “Borrow” and Affix the Stamp/Seal of another Lawyer Who Did not Sign the Legal Document?
In the case of OGBERE v ORUTALA & ORS, EHC/3/2016, the Notice of Preliminary Objection which was signed by counsel was affixed with the stamp/seal of another counsel listed in the team of lawyers who did not append his signature on the process. In resolving this issue, the Court held thus;
It is not a requirement of Rule 10 that the seal and stamp must be that which bears the name of the Legal Practitioner who signed the process. It suffices if the seal and stamp belong to any Legal Practitioner listed among those that represent the Party.
With greatest respect and without prejudice to the finality of the above decision barring appeal, by law we are authorised to critique in an appropriate forum, decisions of Court, albeit respectfully. So held the Supreme Court in the case of ADIGUN v. A.G. OYO STATE (No.2) (1987) 2 NWLR (Pt 56) 197@215 thus;
The judgments of a court should not be treated with sacred sanctity, once it gets to the right critical forum
We are afraid that the decision of the Court might sanction the practice of “borrowing” a stamp and seal which would in effect defeat the intendment of the RPC. This is because, it is the status of the lawyer who signs the process that is to be authenticated. The other lawyers whose names appear on the legal document, but who did not sign, are not required to authenticate their status as lawyers.
We hope the decision of the Court is further tested on appeal by the parties in the action.
When Should an Objection be Raised on the Failure/Omission to Affix a Stamp/Seal?
If a matter or process has been filed, when should an objection be taken on the failure to affix a stamp/seal? Some counsel are of the view that the omission, is a “dynamite” which should be raised at the earliest opportunity. Others are of the view, that it should be raised at the terminal stage of the proceedings.
In the case of WIKE v PETERSIDE (supra) 512, the issue was raised at the Court of Appeal for the first time and the Supreme Court held that it was raised belatedly and acceding to the request would amount to enthroning technicality at the expense of substantial justice.
By legal prescription, a party who seeks to challenge an irregularity, has a duty to raise it at the earliest opportunity and before taking a fresh step. Otherwise, he would be deemed to have waived the irregularity and is thus foreclosed from challenging it. We rely on the cases of KWAA v KWAKWA 3 WACA 176, KATSINA LOCAL GOVERNMENT AUTHORITY v MAKUDAWA (1971) 7 NSCC 119, ODU'A INVESTMENT CO. LTD VS TALABI (1997) 10 NWLR (PT 523)1
By the decision in WIKE v PETERSIDE, the failure to affix a stamp/seal is an irregularity and should be raised timeously.
However, the fact that the failure to affix stamp/seal is an irregularity does not mean that in the event that an objection is taken at the earliest opportunity, the Court can look away and allow proceedings to continue in the interest of justice or on the ubiquitous legal policy that the sins of counsel should not be visited on the litigant. This was the view of Peter-Odili, JSC in YARI v ABUBAKAR (supra)@109-110 wherein the learned Justice held thus:
As to infringing the right of a litigant to appeal where the error or lapse of his counsel to stamp and affix his seal on a legal document it must be stated that the rights of a litigant who sought a legal practitioner is not open ended or rights outside the Laws of Practice and procedure or rules of court. This in line with what this court stated per RhodesVivour, JSC., in Ngere v Okuruket ‘XIV’ (2014) 15 SC (PT II) 1 at 31 in this way:
The well laid down position of the law is that when counsel is briefed to handle a case and he accepts the brief, he has authority to decide within his own knowledge of the law, how to conduct the case, and the client is bound by how the counsel conducts the case. The remedy open to the client if he is not satisfied with the counsel is to withdraw the brief or sue for professional negligence if that appears to be the case
Thus, where an objection is raised, if the party defaults from making an application, he would bear the consequences. We rely on the case of YARI v ABUBAKAR (supra).
When the Failure to Affix the Stamp/Seal is not the Fault of the Lawyer?
What would be the effect, if the lawyer has applied for the stamp/ seal but this has not been provided, would that it make the legal document irregular? In the case of ADEWALE v ADEOLA (2015) LPELR-25972, this issue was resolved thus;
The established fact that learned counsel for the appellant has applied for the issuance of the NBA approved seal or stamp to him, cannot qualify the process signed and filed by him in this appeal to be deemed as properly signed or filed. The provisions of Rule 10(1) of the Rules of Professional Conduct are very clear and unambiguous. What it requires is that the seal or stamp be affixed on the process before it can be deemed as properly signed or filed. The submission of learned counsel for the appellant that he has applied for and is yet to be issued his seal or stamp suggests that he is explaining why the notice of appeal and the other processes signed by him do not bear his seal or stamp. Such a submission is not tenable in view of the clear requirement of Rule 10(1) of the Rules of Professional Conduct.
Putting the above decision in proper contextual perspective, it would seem that the counsel did not furnish any evidence of payment but merely made submissions that he has paid it is trite law, that submission of counsel is not a substitute for evidence. However, it is our considered opinion that if there is evidence to prove payment, then it would suffice and satisfy the provisions of Order 10 of the RPC. This is because, if a lawyer has satisfied every condition for the issuance of the stamp/seal but same has been held up due to administrative lapses or bottlenecks, the lawyer should not be the one to suffer.
Somina Peter JohnBull is a Partner at Somina & Gibson Associates, Yenagoa, Bayelsa State.