31/10/2015
The NBA Stamp & Seal Policy: Supreme Court at Crossroads; Legal Community in Confusion; NBA in Self Delusion.
By Reggie Uzoechi, Esq.
September 30, 2015.
The Nigerian Bar Association (NBA) had on 14 November, 2014 at its National Executive Committee meeting held in Uyo, Akwa-Ibom State, approved the affixing of stamps and seals on legal documents prepared by legal practitioners in compliance with Rule 10 of the Rules of Professional Conduct 2007 (RPC). The due date for the use of the stamps was initially fixed for 1st April, 2015 but was eventually launched at a ceremony held at Abuja on 15th April, 2015.
Consequent upon this, and to secure judicial imprimatur for the Stamp policy, the NBA implored the Chief Justice of Nigeria (CJN) to do a memo to the various heads of Court across the Country on compliance with the NBA stamp & seal policy and the CJN obliged same.
While the policy has been lauded by some section of the legal community who feel it will bring sanity, restore the integrity of the profession, check quackery, et al; others contend that it’s a violation of the Legal Practitioners Act which gave them unfettered right of audience in any Court in Nigeria having qualified as Barristers and Solicitors of the Supreme Court of Nigeria. Another group thinks it is a ploy by the Nigerian Bar Association to exploit its members. That is a debate for another day.
With the pendulum hung as it were, it became necessary that a judicial approval is given to the NBA stamp policy or at least to obtain an interpretation as per the ‘bindingness’ or otherwise of the NBA stamp policy.
While that was awaiting, the Supreme Court in the case of Mega Progressive People’s Party v. INEC & Ors. (Unreported) Ruling in SC/655/2015 delivered on Monday 12th October, 2015 held that failure to affix the NBA Stamp on a process or legal document does not invalidate the process/document. The Court, per Ibrahim Tanko, J.S.C. proclaimed that:
"The issue of BAR stamp raised... is in a circular which has been issued by the Honourable Chief Justice of Nigeria to all Heads of Courts for the betterment of the Legal Practice in Nigeria. The circular has not metamorphosed into a Practice Direction. It cannot be said to be a compulsory requirement for filing processes in a Court of Law. Section 10 of the Legal Practitioners Rules of Professional Conduct (supra)... is directory and not mandatory in nature. Failure to affix the Nigerian Bar Association stamp cannot, in my view, invalidate process filed in a Court of Law.”
Those who are opposed to the NBA Stamp policy hailed the ruling; but their jubilation was short-lived. Barely two weeks thereafter, the Supreme Court dropped another bombshell which contradicted its earlier decision on the subject matter. It was the case of All Progressive Congress (APC) v. General Bello Sarkin Yaki (Yet-to-be-reported) Judgement in Appeal No. SC/772/2015 delivered on the 27th October, 2015, where the Apex Court held that failure to affix the NBA Stamp on a Court Process renders such process incompetent. (If must be pointed out that the Supreme promised to give the full reason for that decision on the 13th November, 2015)
These contradicting decisions of the Apex Court escalated the controversy in an already controversial situation within the Legal Community. The legal community was thrown into confusion (though the NBA was at top gear in publicizing the latter decision since it appears to throw weight and it is the long awaited judicial imprimatur to the NBA stamp policy).Amidst this confusion and the controversy generated, it became necessary and pertinent to decide on, as between these two conflicting decisions which is to prevail.
To my consternation, some members of the legal profession started labouring under the misconception that the latter judgement has overruled the former. While some postulate (albeit reluctantly) that where a lower court is faced with the two conflicting decisions the lower court is at liberty to choose between the two conflicting decisions which to follow.
Worst still, the NBA Secretary-General, who is at the forefront of promoting the NBA Stamp and Seal Policy released an update saying that the pronouncement of the Supreme Court in the case of Mega Progressive People’s Party v. INEC & Ors. (supra) to the effect that failure to affix the NBA Stamp on a legal document does not invalidate the document, was an obita dictum, hence cannot be said to be conflicting with the latter decision in All Progressive Congress (APC) v. General Bello Sarkin Yaki (supra). I would, with due respect, endeavour to clear the Honourable Secretary-General misconception before the end of this article.
Be that as it may, resolving this controversy and conflict surrounding these two conflicting decisions would require an excellent appreciation of the principle of judicial precedent otherwise known as "stare decisis."
Stare Decisis is stated in full as 'stare decisis et non quitamovere' otherwise tagged 'Judicial Precedent'. The meaning and import is to abide by former precedent where same points come up again in litigation. It presupposes that the law has been solemnly declared and determined in a previous case. It does not however preclude judges of subordinate court from changing what has been determined. Per Adekeye, J.S.C. in Dingyadi & Anor v INEC & Ors. (2011) LPELR-950 (SC)
It is however not everything stated in the decision that constitutes stare decisis. What is binding is the enunciation of the principles or the reasons upon which the question before the court was decided. Any other thing said by way of arriving at that decision is usually referred to as 'obiter dicta' which are not binding, though they may have persuasive efficacy. But where however, an obiter dictum is based on the ratio decidendi of the Supreme Court, it will be regarded as binding. Per Onnoghen, J.S.C. in Adedayo & Ors. v PDP & Ors. (2013) LPELR-20342(SC); see also Clement v Iwuanyanwu (1989) 3 NWLR (PT.107) 39
Stare decisis does not only mean an inferior court being bound by the decisions of a superior court, it also means a superior court following its previous decision when the facts and circumstances are similar. It was Nnaemeka Agu, J.S.C. who noted that 'this court [Supreme Court] respects precedent, even though it is not a court bound by precedent. It is essential for the certainty of the law that it should generally follow its previous decisions.
The Superior court is only allowed to DEPART (note depart for emphasis) from their previous decision when the interest of justice will not be served. As Nnaemeka Agu, J.S.C. further stated that, the Supreme Court as a court of ultimate resort, will not be held hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice. See Asanya v The State (1991) 3 NWLR (PT180) 422; (1991) LPELR-574 (SC) pp.18-19, paras. G-B.
It was the late sage, Oputa, J.S.C. who pronounced in Eperokun v. UNILAG (1986) NWLR (PT. 34) 162 that:
"The question as to whether the Supreme Court should reconsider a previous decision... is a question of judicial policy rather than a question of law. It involves a balancing of the need for certainty in the law with the need for the judges to see that they faithfully apply the law as it is and not the law as they would like it to be or as it was wrongly conceived to be in a previous case. The first need compels the judges to be very slow in reversing or altering previous pronouncements as to what the law is. The second need compels them to correct their previous pronouncement if satisfied that those pronouncements were wrong. The balancing of these two fundamental objectives is of far greater importance in the court of last resort."
Tobi, J.S.C. put paid the issue when in Veepee Ind. Ltd v Cocoa Ind. Ltd (2008) NWLR(PT.1105) 486, he magisterially proclaimed thus:
"The position of the law is that ordinarily this court [Supreme Court of course] adheres to the principle of stare decisis. It will therefore hold itself bound by its previous decisions. But where it is satisfied that any previous decision is erroneous or was reached per incuriam and will amount to injustice to perpetuate error by following such decision, it will overrule it or depart from it. This power of the Supreme court is predicated on the fact that it is better to admit an error than persevere in error."
This implies that a superior court departing from or not following its previous decision must be a deliberate act, which must call into question the said previous decision. Thus, when a relevant prior decision is not cited before the court, or mentioned in the judgement of the court, it must be assumed that the court acted in ignorance or forgetfulness of it. If the new decision is in conflict with the old decision, it is given per incuriam and not be binding on a lower court. See Badau & Anor v INEC & Ors. (2008) All FWLR (PT.435) 1794; Okon v. Bob (2004) 1 NWLR (Pt. 845) 378; Ndili v, Akinsanya (2000) FWLR (Pt. 5) 750.
This becomes pertinent in view of the fact that, it is trite that where an inferior court is faced with two conflicting decisions of the superior court on an issue, it is bound to follow the latest. See Osakue v Federal College of Education, Asaba (2010) 10 NWLR (PT. 1201) 1. That however, is if the latest decision is not reached per incuriam. Where a latter decision is reached per incuriam, it cannot be binding. So also, a latter decision reached without overruling a previous decision on the same issue cannot be preferred in a situation of conflict between the two. Because it must be assumed that the court acted in ignorance or forgetfulness of such previous decision, and if the new decision is in conflict with the old decision, it is given per incuriam and not binding on a later court. See Badau & Anor v INEC & Ors. (supra).
Here we are with two conflicting decisions of the Apex Court on the NBA stamp policy. The decision in Mega Progressive People's Party v. INEC & Ors. (supra) was first in time. It says the failure to affix NBA stamp on a legal document does not invalidate the document. Then came the decision in All Progressive Congress (APC) v. General Bello Sarkin Yaki (supra) which says failure to affix the NBA stamp on a legal document/Court process renders same incompetent. The case of Mega Progressive People’s Party v. INEC was not called into question when the decision in APC v. Yaki was reached. In APC v Yaki, the Supreme Court was not called to overrule its earlier decision on the NBA stamp policy as handed down in Mega Progressive People’s Party v. INEC. And the Supreme Court did not expressly overrule its decision Mega Progressive People’s Party v. INEC on the NBA stamp policy. It therefore becomes convenient to say that by decision in APC v. Yaki, the Supreme Court acted in ignorance or forgetfulness of its previous decision in Mega Progressive People’s Party v. INEC and since the new decision APC v. Yaki is in conflict with the old decision in Mega Progressive Peoples' Party v. INEC, the new decision was given per incuriam and not binding on a lower court. See Badau & Anor v INEC & Ors. (supra).
The NBA should stop deceiving itself in publicizing the decision in APC v Yaki as a judicial approval of the NBA stamp policy. The decision was reached per incuriam and cannot bind any (lower) court. And the NBA Secretary-General should stop deluding himself that the Supreme Court’s decision on the subject matter in the case of Mega Progressive People's Party v. INEC (supra) is an obiter dictum. Perhaps, the Honourable Secretary-General of the NBA needs to have his memory refreshed on what an obiter dictum is (that is if his misconception of same is not deliberate).
In Salami v. N. N. N. Ltd (1999) 13 NWLR (Pt. 634) 315 at 330, the Court of Appeal, per Aboki, J.C.A defined an obiter dictum as:
“…an observation by a judge on a legal question suggested by a case before him but not arising in such a manner as to require a decision. It is therefore not binding as a precedent."
“The word ‘Obiter’ simply means in passing, incidental, cursory." -Per Edozie JSC in A. I. C. Ltd v. N. N. P.C (2005) 11 NWLR (pt 937) 563 at 589.
An obiter dictum is what a judge says in his judgment that goes beyond what is necessary to decide the particular case. It is an expression of opinion made in giving a judgment by the judge, but not necessary for his decision and accordingly cannot form part of the ratio decidendi of the judgment. Accordingly, obiter dictum, not being a decision, cannot be made a subject of an appeal. See Abacha v. Fewehinmi (2002) 6 NWLR (Pt. 660) 228).
With that said, how then did the Honourable Secretary-General of the NBA arrive at his notion that the pronouncement of the Supreme Court in the case of Mega Progressive People’s Party v. INEC & Ors. (supra) that the failure to affix the NBA Stamp on a legal document does not invalidate the document is an obita dictum?
Is that pronouncement not a statement of law? A decision that considered the validity/competence of a court process vis-à-vis the NBA stamp is a statement of law and qualifies as a binding precedent.
Was it not the parties in that application that generated the question of the NBA stamp policy to the Supreme Court for a decision on?
Must the question be submitted as an “issue for determination” before a decision on it qualifies as a binding precedent?
Was the issue of the NBA stamp not requiring a decision on, which decision the Supreme made?
If such decision was reached by the Court of Appeal, for instance; would it not have been appealable?
Does the fact that the decision flowed from an interlocutory application make it less a precedent/obiter dictum?
Does the fact that five (5) Justices sat in the panel as against seven (7) in the latter case make it less a precedent/obiter dictum?
The pronouncement of the Supreme Court in the case of Mega Progressive People’s Party v. INEC & Ors. (supra) that the failure to affix the NBA Stamp on a legal document does not invalidate the document is a principle of law and a very binding precedent and never an obiter dictum. Never!
Being a binding decision, it is very well in conflict with the latter decision in APC v. Yaki (supra) which held that failure to affix the NBA stamp on a court process renders such court process incompetent.
As I have pointed out earlier, the decision in APC v Yaki (supra) was reached per incuriam. The NBA should live with that and stop wallowing in self delusion.
What the NBA should rather do it to submit an interpretation request to the Supreme Court whereby both decisions on the NBA stamp policy (that is, Mega Progressive People's Party v. INEC and APC v. Yaki (supra)) would be called into question and the Supreme would deliberately decide which to uphold and which to overrule. This admonition has been the age-long stand of the Supreme Court in circumstances such as this. It was in the case of Adegoke Motors v. Adesnaya (1989) 3 NWLR (Pt. 109) 250 that the Supreme Court proclaimed that:
"We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will certainly be short sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be overruled. This Court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error. Learned counsel has not asked us to overrule either Skenconsult or Ezomo supra. If that was what was wanted, the Briefs should have said so specifically and the Chief Justice of the Federation would have gladly empanelled a Full Court... When that supposed conflict becomes an issue and when that issue comes squarely before this Court, then a Full Court will be empanelled to consider it, with proper Briefs filed. It is after such an exercise that the Court will know which one to overrule. That issue has not arisen. There is here no question of choosing between an earlier and later decision of this Court."
Until this admonition is heeded to, the Supreme Court’s decision in Mega Progressive People's Party v. INEC remain a valid law and the extant judicial precedent on the subject matter; as the decision in APC v. Yaki (supra) was reached per incuriam. “There is here no question of choosing between an earlier and later decision of this Court.”
By Reggie Uzoechi
