PETTY OR GRAVE MISTAKES IN LAW ?
The legal practice is serious business and lawyers owe the legal profession the duty to maintain the very high standards required in the practice of the profession.
The rules of court are intended to guide the practice in courts and litigants generally. Normally, cases begin with the issue of a writ, and there are rules guiding the process until the final determination of the matter. Therefore if there is any issue of non-compliance with the rules, no proper decision can be taken. Any action taken or decision given without compliance with these rules of court amounts to abuse of the court process and subsequently a nullity.
In Mosi vrs Bagyina [1963] 1 GLR 337 AT 338, the SC held “ where a judgement or order is void because it is given or made without jurisdiction or because it is not warranted by any law or rule or procedure, the party affected is entitled ex debito justitiae to have it set aside, and the court or judge is under a legal obligation to set it aside, either sou motu or on the application of the party affected. No judicial discretion arises here. The power of the court or judge to set aside any such judgement or order is derived from the inherent jurisdiction of the court to set aside its own orders and it is irrespective of any express power of review vested in the court or judge; and the constitution of the court is for this purpose immaterial. Further, there is no time in which the party affected by a void order or judgment may apply to have it set aside’
In Macfoy vrs United Africa Company Limited (West Africa) PC 27 Nov 1961, it was held per Lord Denning,”……if an act is void, then it is in law a nullity. It is not only bad, but incurable bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it so. And every proceeding which is founded on it is also bad and incurably bad. You cannot something on nothing and expect it to stay there. It will collapse…’
In an overview of the High Court Civil Procedure Rules, C.1. 47, Justice Sule Gbadegbe referred to Order 1 rule (1) sub rule (2) of C.I.I 47 which states that these rules shall be interpreted and applied so as to achieve speedy and effective of visit our website justice, avoid delays and unnecessary expense and ensure that all matters in dispute between the parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.”
Order 4 of C.I. 47 for instance, states specifically who should initiate proceedings on behalf of specific persons.
Order 4 rule 1 sub rule (1) states that subject to these rules, any person may begin and carry on proceedings in person or by a lawyer.
Order 4 rule 1 sub rule (2) states that a body corporate shall not begin or carry on proceedings except by a lawyer, unless permitted to do so by an express provision of any enactment.
Order 4 rule 1 sub rule (3) states that a next of friend or guardian ad litem of a person with disability shall act by a lawyer.
The above rules indicates clearly that there are certain groups of persons who cannot initiate legal action by themselves. Obviously, corporate bodies and a next of friend or guardian ad litem of a person with disability.
Corporate bodies are regulated by the Companies Act. It therefore presupposes that matters concerning corporate bodies must not be taken lightly. Strict adherence to the rules of court regarding corporate business is necessary for the efficient and effective adjudication of justice in the courts. This is necessary to avoid delays, uncertainties, incoherency and irregularities in the adjudication process.
In Oyston vrs Blaker [1996] 1 WLR, it was held that in addition to considering the question of prejudice, the court may take the following into in exercising its discretion,
- Gravity of irregularity
- Staleness of claim
- Strength of case
- Conduct of the parties or their advisors
- Any question of abuse of process
- Any delays and reasons for it
The discretion of the court will not be invoked if any of these discrepancies where of a grave nature so as to make proceedings difficult or onerous. In many instances it depends on where the irregularity is commencing from or who is responsible for it.
In instances where the lawyers handling the matter inadvertently make certain mistakes or ignore certain procedures it has the effect of nullifying the proceedings altogether.
It is trite law that an unsigned and undated document has no probative and evidential value. In effect, it is a worthless piece of paper. See Global Soaps & Detergents Ind. Ltd vrs NAFDAC (2011) ALL FWLR and Udo & others vrs Essien and Others (2014) LPELR – 22684 (CA).
For a simple instance, lawyers are mandated by law to sign their signature against their names. The work of lawyers does not end with preparing documents only. They must ensure that the documents are properly signed. There is a duty on lawyers to either sign the documents themselves, or ensure that they are properly signed by other persons. Failure to do so renders void any such process filed in court.
In Okechuku vrs Independent National Electoral Commission (2012) LPELR-9834(CA) it was held “…..the contention here is not the issue of whether the documents were not signed at all but whether a document signed ‘for ‘ by an unidentified or undisclosed person is valid in law. Several factors may account for such a situation. It is a fact and it is trite that an unsigned document is a worthless piece of paper and such a document cannot be admitted in evidence as it has no or any probative value. This is because a document which is not signed has no origin in terms of its makers. In other words, the identity of the person signing the document must be properly disclosed for the document to be competent in the eyes of the law.”