THE USE OF NBA SEAL BY LAWYERS: THE LAW, THE PRACTICE, AND DECISIONS OF THE COURT SO FAR.

ABSTRACT

The use of NBA Seal by Lawyers: This article  borders on the provisions of Rule 10 of the Rules of Professional Conduct 2007, as it relates to the use of seal by Legal Practitioners. This paper will first examine the idea behind the seal by Legal Practitioners and how it has affected the Legal Profession from inception to date. Also, this paper seeks to analyze the recent decision of the court in Emechebe v. Ceto Int Ltd, with an effect to understanding the position of the law on a legal practitioner not using a Lawyers Seal on Court processes as well as the effect of using an expired seal.

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BRIEF INTRODUCTION

The Legal Profession has been plagued by many ills over the years. The most disastrous seems to be the impersonation of lawyers by either secondary school leavers or dropouts from either the law school or faculties of law. These persons masquerade as legal practitioners and render legal services to unsuspecting clients; some of them have even had the audacity to appear in courts even in the Supreme Court. Apart from being a criminal act, the actions of these impersonators have constituted a great dent to the integrity of the Legal Profession.

In order to remedy this, the Augustine Alegeh SAN-led administration introduced the NBA SEAL POLICY. With its introduction, it was hoped that the quacks in the profession would be fished out and eradicated, ultimately helping to preserve and protect the integrity of the profession. It is important to point out, that the idea of the NBA seal isn’t original to Augustine Alegeh SAN as Rule 10 of the Rules of Professional Conduct 2007 copiously provides for the stamp and seal, although since 2007, the wordings of the provision have not been given effect to. The credit of this should be given to the Augustine Alegeh SAN for having the political will to have saved the provision from redundancy.

JUSTIFICATION OF THE STAMP AND SEAL

hen the idea was conceived it was not welcomed, as many felt that there were other and better ways to check quacks in the legal profession. In order to justify the stamp and seal the NBA through Isah Abubakar Aliyu (former Asst. Publicity Secretary) argued that:

1) “With its introduction, it will give more credence to the rule of law that court processes cannot be franked with a corporate or business name but must be done in the name of a Lawyer whose name is on the Roll. See: Okafor vs Nweke (2007) 10 NWLR (PT 1043); FBN vs Maiwada (2013) 5NWLR (PT 1343); SLB Consortium Ltd vs NNPC (2011) 9 NWLR (PT 1252).2) It will stop foreign lawyers and lawyers not entitled to practice law in Nigeria from practicing law in Nigeria.
3) It will operate as a check amongst lawyers and prevent the situation whereby colleagues in salaried employment secretly engage in a practice which their jobs do not permit them to do”

The Judiciary has given its blessings to the usage of the seal and stamp not by judicial notice alone but through its notable pronouncements in decided cases. Legal practitioners have also appreciated this idea by complying with the regulations guiding the usage of seal and stamp in the process of preparing of instruments, processes, documents, agreement and in the adjudication of justice. There are however challenges attached to this innovative idea, one of which questions the competency of a document which carries an expired stamp and seal; the very essence of which this article is prepared and to discover the solutions from the provisions of decided cases.

A legal practitioner who uses his seal on a process prepared by a non-lawyer if caught and found guilty may face the Legal Practitioners Disciplinary Committee and may have his name removed from the Roll of legal practitioners in Nigeria. Some members of the Nigerian Bar have also personally caught non-lawyers practicing and such cases were handled between the bar and the Nigerian Police Force, this was followed with a subsequent arraignment at the magistrate court and when found guilty, were made to face jail terms.

This indicates how committed members of the bar are in ensuring that not only the law is complied with but the letters and spirit of the Rules of Professional Conduct are followed strictly. It is a common practice in all jurisdictions in Nigeria for a lawyer to raise an objection either orally or through a preliminary objection to a process filed by another lawyer who does not have on it affixed a seal and stamp approved by the Nigerian Bar Association.

LEGAL PROVISION FOR SEAL AND STAMP POLICY

At this juncture, it should be borne in mind that the legal status of the Rules of Professional Conduct for lawyers 2007, is that of subsidiary legislation. The Rules of Professional Conduct (RPC) was made by the General Council of the Bar pursuant to Section 1 of the Legal Practitioners Act, Laws of the Federation, 2004 which is a statutory enactment. Subsidiary legislation has a force of law.

Upon acknowledgment that subsidiary legislation has a force of law, it is at best to state that Rule 10 of the Rules of Professional Conduct (RPC) provides for a clear and distinct requirement for the seal and stamp. For better understanding permit me to reproduce the said rule herein;

10 (1). A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any   Governmental department or Ministry or any Corporation, shall not sign or file a legal document unless there is affixed on such document a seal and stamp approved by the Nigerian Bar Association.

(2). For the purpose of this rule, “legal documents” shall include pleadings, affidavits, depositions, applications, Instruments, agreements, deeds, letters, memorabilia, reports, legal opinions, or any similar documents.

(3). If, without complying with the requirements of this rule, a lawyer signs or files any legal document as defined in sub-rule (2) of this rule, and in any of the capacities mentioned in sub-rule (1) the document so signed or filed shall be deemed not have been properly signed or filed.

From the above-provided Rule 10 of the RPC, its literal meaning would be that any document referred to in the rule which does not have affixed to it an NBA seal or stamp of the legal practitioner who prepared same, renders the document improper. However, judicial pronouncements have watered down tough arguments and submissions on failure to affix the seal and stamp by a legal practitioner, to the extent that the failure to affix the Nigerian Bar Association (NBA) approved seal and stamp on a process does not render it a nullity or void rather such act or omission is an irregularity that can be cured by an application for extension of time and deeming order.

NOTABLE PRONOUNCEMENTS BY THE JUDICIARY ON THE ISSUE OF SEAL AND STAMP

The first pronouncement by the court (though not the very first in a decided case per se) on seal and stamp bothers on the effect of failure to affix seal and stamp on court process filed by a counsel. The Court of Appeal in Nyesom v. Peterside (2016) 7 NWLR. (Pt. 1512) 452 SC held that;

“The failure to affix the Nigerian Bar Association (NBA) approved seal and stamp on a process does not render it nullify and void. Such act of omission is an irregularity that can be cured by an application for extension of time and deeming order”.

Furthermore, on the need for legal practitioners to affix seal and stamp on a legal document prepared by him, the Court of Appeal in Uchi v. Sabo (2016) 16 NWLR 284 C.A held that;

“The provisions of  Rules 9 & 10 of the Legal Practitioners Rules of Professional Conduct, 2007 relate to the affixing of seal & stamp of a legal practitioner on legal documents prepared by him. The policy is worthy innovation to enhance the integrity at the Bar and should be jealously guarded in its application”.

In addition to the foregoing judicial pronouncements, on what the lawyer can do in the absence of his seal and stamp. The Court of Appeal in the case of Today’s Car Limited v. Lassco Assurance Plc & Anor (2016) 16 NWLR 284 C.A, held that,

“A lawyer who makes payment for his seal and stamp can affix the receipt evidencing payment made in that regard to the document in the absence of the seal and stamp”.

Upon establishing the fact that the non-usage of Stamp and Seal by Legal Practitioners is a mere irregularity that can be regularized, we are also made aware of the fact that such omission does not render such document incompetent.

The practice of the usage of the seal is that it has an expiry date which is March of the following year i.e. a seal given for the year 2018 no matter when gotten in 2018 is valid until March 2019. Thus, for every stamp which has been paid for by a legal practitioner whether or not it is used the same will expire on March of the preceding year and there was no clear-cut provision on what the effect of using an expired seal would be rather it could be reasonably inferred that the same would be an irregularity that can be regularized.

This position has however brought a lot of arguments amongst legal practitioners who are of the opinion that the seal should not have a lifespan as same was not provided for in the Rules of Professional Conduct nor the principal legislation been the Legal Practitioners Act. However others especially the Nigerian Bar Association has argued that the seal should continue to have a lifespan as it serves as a form of check  on the legal practitioners to ensure that the seals issued are actually issued to those entitled to practice and not does who may have been disbarred by the LPDC based on some offences committed.

Whatever the argument canvassed a recent decision of the Court of Appeal EMECHEBE vs. CETO INT’L (NIG.) LTD. [2018] 11 NWLR (PT. 1631) 520, has given a position as to the effect of usage of an expired seal on a process, and it is pertinent that the same is reviewed.

A BRIEF FACT OF THE CASE

The Respondent, as Plaintiff, filed an action at the Federal High Court, Lagos against the Appellant on claims bordering on unauthorized use of a registered trademark. The Respondent secured some restraining orders against the Appellant following which the Appellant appealed against the Ruling granting the said orders at the Court of Appeal, Lagos Division.

Among other contentions of the Appellant’s counsel was the argument that the stamp and seal of the Respondent’s counsel affixed to the Respondent’s originating processes had expired and that the implication is that no stamp or seal was affixed, and therefore the said processes were irregular. He concluded that the lower court lacked jurisdiction to entertain the suit.

In response, the Respondent submitted that the use of the expired seal was an error by counsel and that the counsel had an unexpired seal in existence as at that time as evidenced by a subsequent application filed by the Respondent’s counsel. The Appellant further argued that at the time of filing the appeal whereupon the objection was raised, the Respondent never filed an application to affix a valid seal in order to regularise the anomaly and that as such, the suit ought to be struck out or dismissed.

Judgment

In the above case @ 534, paras. B-C, the Court of Appeal per Abubakar, held that;

“The originating processes were duly signed and stamped by the learned counsel for the Respondent, and a stamp of the legal practitioner affixed even though expired, in my view, there is no sufficient basis to strike out the said processes. So doing in my view will amount to pushing technicalities too far.”

Abubakar, JCA, in delivering the Leading Judgment, took time to consider the submissions. His Lordship made the above quoted remarks and reiterated that it is settled that failure to even affix the approved seal and stamp of the NBA on a process does not render the process void as same is an irregularity which can be regularised by an application for extension of time and a deeming order (Nyesom v. Peterside [2016] 7 NWLR (Pt. 1512) 452). His Lordship further reasoned at p. 534, paras. E-F:

“Since the originating processes contain a stamp which bears the name and number of the counsel who filed the said processes and it is not that the Respondent had failed to affix any stamp at all, and even if the Appellant’s contention is upheld herein, it is at best an irregularity, which can be remedied by affixing the unexpired stamp and seal, which from the records before us, learned counsel for the Respondent no doubt has, having been clearly affixed to other applications filed at the lower court. Since the material constitutes part of the records before us, I am bound to take judicial notice and hold that the submission of learned counsel for the Appellant on this point lacks merit and must be and is hereby discountenanced by me.”

Other Justices on the panel (Ikyegh and Ogakwu JJCA) agreed with the Lead Judgment.

Firstly, as clearly seen from the above, the Court of Appeal recognized the fact that if there are other processes in the court’s file or record having a valid unexpired stamp affixed, the court is bound to take judicial notice of same. In commending the Court of Appeal in this case, it is the writer’s position that the Court showed its full grasp of the true rationale behind the stamp and seal in the first place which, as clearly identified by Abubakar, JCA, is:

“To ensure that legal practitioners who file processes in court have their names on the Roll of legal practitioners in Nigeria and that quacks, impostors and meddlesome interlopers do not infiltrate the legal profession and present themselves to litigants as legal practitioners.”

Therefore, it is submitted that an expired stamp does not defeat this purpose as same still undoubtedly identifies the legal practitioner. As such, it would amount to allowing the undue triumph of technicality if the use of an expired seal is held to nullify a court process altogether. It should not be so.

It is must be noted however that, on a careful look, the Court has not by this decision encouraged the use of expired seals and counsel must ensure that remedial steps are taken where necessary.

Although, a lot of lawyers are clamoring for a change at the NBA which is to ensure that the seal has given do not have an expiry date since it is obvious that the seal is not like drugs that lose their potency after their expiration date. The only reason that came to mind as to why the NBA will fix the expiration of the Stamp and Seals to be March of every year would be the need to enforce payment of the NBA practicing fees since proof of payment is a condition for applying for the stamp and seal.

But the question then is, amidst the delay in producing the stamp and seal which makes many lawyers receive theirs quite late, is it fair that the remaining seals which are unused should expire? What does the NBA intend that lawyers should do with the seals after March? Should we throw them away?

In a bid to resolve some of these hiccups, the Mahmoud-Led administration (2017) had set up a committee headed by Mrs. Boma Ozobia to review the stamp/seal policy. Her committee made recommendations one of which included extending the validity period on the stamp to two years from one year, with proof of payment of the practicing fee. Unfortunately, the National Officers of the NBA did not approve this specific recommendation. Assuming same was approved, it would have gone a long way to alleviate the groaning of lawyers.

Ironically, as good as the idea of having unexpired Stamp and Seals can be, one of the downsides to that innovation would be the likely continuous usage of such stamps and seals by lawyers who have been disbarred. For example, where a lawyer who has been into active litigation gets disbarred, he can assume a new interest in commercial practice and start to use his ‘unexpired’ stamp and seal at his office(if need be). This might be an easy sail for him especially where the news of him being disbarred is not known to the company as he cannot appear in court as a counsel for a company in which he is under its employment.

In order to keep fake lawyers away from posing as real lawyers, and also to prevent the disadvantage that may be occasioned as a result of having the unexpired seal in practice, a more workable approach in our opinion will be that the payment made to NBA for practicing fees should come with the stamp and seal. This way, only lawyers whose names are still on the roll will be able to pay for their NBA dues and in turn get their Stamp and Seal promptly, and in a situation whereby a lawyer needs more, he can then apply separately which may attract additional cost.

CONCLUSION

The seal and stamp policy is a welcome development which the bar and bench appreciate. It also adds to the integrity of the bar. The development should not be idle; it should be followed by constant improvements such as digitalizing the seal and stamp. Administrative bottlenecks should be reduced in terms of issuance of the new seal and stamp. Also, the time in the delivery of the stamp and seal should be prompt, as this has been a major challenge Legal Practitioners face after applying and making payments for the stamp and seal.

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Author: chas