THISDAY

THE LEGAL PRACTITION­ER’S STAMP/SEAL POLICY AND LEGAL ISSUES ARISING THEREIN

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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.

 ??  ?? NBA President, Augustine Alegeh SAN
NBA President, Augustine Alegeh SAN

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