OKAFOR v. NWEKE (2007) 10 NWLR (PT. 1043) 521 (SC) REMAINS THE LAW. OLOWE v. ALUKO (2025) LPELR-81320 (SC) IS NOT A DEPARTURE: NEED FOR A BALANCED APPROACH
By Liman Yahya Hammaadama, Esq., Senior Associate at Baba Dala, SAN & Co (Bahama Chambers)
Introduction
The legal profession thrives on precedent, and few cases have generated as much debate as Okafor v. Nweke (2007). This landmark decision reaffirmed the imperative of strict compliance with the provisions of the Legal Practitioners Act and underscored the duty of legal practitioners to uphold the highest professional standards, shaping the framework of legal practice in Nigeria. Over time, however, questions have arisen as to whether subsequent decisions have diluted its effect, by failing to balance between the need to do substantial justice and keeping up to the desired professional standard.
This article therefore, examines the facts, judicial reasoning, and subsequent interpretations of Okafor v. Nweke, while exploring the tension between upholding professional standard and substantial justice. It also considers historical precedents and judicial calls for reform. Ultimately, the discussion advocates a balanced approach—one that safeguards profession.
Facts of Okafor v. Nweke
It is important to start with a little background on whatOkafor v. Nweke (2007) LPELR-2412 (SC), was all about. The facts of the case were that on 19 December 2005, the applicants applied to the Supreme Court for trinity prayers to cross-appeal the judgment of Court of Appeal, Enugu Division. There was also a prayer for leave to raise grounds of mixed law and facts. The most important aspect of the case, was that the Motion on Notice, Brief and Proposed Notice of Cross- Appeal were all signed by “J.H.C. Okolo, SAN & Co.” For the Applicants. The Respondents to the application, however opposed it on the ground that “J.H.C. OKOLO SAN & CO.” was not a legal practitioner authorized by law to issue such process. That by Sections 2 and 24 of the Legal Practitioners Act, only lawyers whose names are on the roll of legal practitioners can practice law as Barrister and Solicitor and not being a person, whose name is on the roll of Legal Practitioners in Nigeria “J.H.C. OKOLO SAN & CO.” was not entitled to sign or issue the said Motion on Notice.
In reaction, the Applicant’s filed a reply brief and contended that “J.H.C. OKOLO (SAN),” a registered Legal Practitioner shown on the rolls of the Supreme court as No. 1265 and on the rolls of Senior Advocates of Nigeria as No. 76; signed the processes contending that the signature authenticates the processes and that the addition of the words “& CO.” not in the signature, is a mere surplusage. Interestingly, the reply brief was signed by J.H.C. OKOLO SAN and not J.H.C. OKOLO SAN & CO.
The Supreme Court’s Decision
In resolving the issues as joined by parties, the Supreme Court held that:
“I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal practitioner but his name. That apart, it is very clear that by looking at the documents, the signature which learned senior advocate claims to be his, really belongs to J.H.C. OKOLO SAN & CO. or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J.H.C. OKOLO SAN & CO is not a legal practitioner recognized by the law, it follows that the said J.H.C. OKOLO SAN & CO. cannot legally sign and/or file any process in the courts and as such the motion on notice filed on 19th, December 2005, notice of cross appeal and applicants brief of argument in support of the said motion all signed and issued by the firm known and called J .H.C. OKOLO SAN & CO. are incompetent in law particularly as the said firm of J.H.C. OKOLO SAN & CO. is not a registered legal practitioner.”
On that basis, the Supreme Court struck out the application thereby giving the Applicants the chance to file a competent application. The wisdom behind Okafor’s case as illustrated by the Supreme Court is thus:
a. The court acknowledges the importance of substantial justice but stresses that it cannot override legal requirements. Illegally signed or unauthenticated processes remain incompetent regardless of the desire to achieve justice.
b. Legal practice is a serious profession requiring strict compliance with rules. Lawyers must uphold the integrity of the profession as their conduct sets examples for others.
c. The court condemn the trend of neglecting proper franking and authentication of documents. It decries the attitude of “anything goes” and warns that twisting the law for convenience embarrasses the profession.
d. The decision was also necessary because quacks were at the time, trying to infiltrate the legal profession and pallocate its waters.
Implications and Subsequent Challenges
Following the Okafor’s case, several cases and more particularly appeals before the appellate courts, have been challenged on the ground that the Originating Processes in particular, were signed by law firms and not a legal practitioners in the law firm. In some cases, it was the notice of appeal, and for some, the originating processes at the trial court and in all of those cases, Okafor’s case as decided by the Supreme Court, has been followed.
Recent Cases: FHA and Olowe
The inspiration for this article arose from the attention-grabbing headlines that trailed the recent Supreme Court decisions in FHA v. Oyedeji & Ors (2025) LPELR-81104(SC) and Olowe & Anor v. Aluko (2025) LPELR-81320(SC) Many of these headlines boldly suggested that the Supreme Court had overruled the celebrated Okafor’s case. This raises a critical question: Did these decisions truly overturn Okafor’s case, or is this a misinterpretation? It is, therefore, imperative to briefly examine these judgments to determine the true position of the law
In FHA v. Oyedeji (2025) LPELR-81104(SC) delivered on Friday, the 11th day of April, 2025, the originating process to which all other processes were attached was signed by Dele Falana Esq., but all the other processes accompanying the writ, were signed by Dele Falana & Co with the same signature identical to that signed Dele Falana Esq on the writ. The Appellant urged the Supreme Court to strike out the suit on the authority of Okafor’s case, contending that the Statement of Claim, having been signed in the name of a law firm rather than by a legal practitioner, rendered the proceedings at the trial court incompetent. The Supreme Court held that “I do not think this discrepancy is material enough to vitiate the Writ of Summons on which the suit was grounded. I also agree that Dele Falana, Esq., is a registered legal practitioner whose name is on the roll of the Supreme Court and is entitled to practice as such under the Legal Practitioner’s Act, LFN, 2004.”
In Olowe v. Aluko (2025) LPELR-81320(SC) delivered on Friday, the 23rd day of May, 2025, the facts of the case were not similar to Okafor’s case because the Writ of Summons was signed by a lawyer “Akin Olujimi, Esq” but then the Statement of Claim was signed by a combination of two names “Akeredolu and Olujimi” (not law firm). The Supreme Court affirmed the validity of the suit because the Writ was the originating process and that the signatories to the Statement of Claim were identifiable as belonging to persons duly qualified and entitled to practice law under the provisions of the Legal Practitioners Act.
Effect of Recent Decisions
Since cases are authorities ONLY for what they decide, the facts in FHA and OLOWE, are not the same with what has been determined in Okafor’s case. The effect of the two decisions is that if the incompetent process is not the originating process, then it does not affect the competence of the suit and that such process be it Statement of Claim, Defence, Brief, etc. can only be challenged timeously and the said defect is said to be a procedural irregularity that must be raised timeously or be deemed waived. The court also made clear, the distinction between substantive and procedural jurisdiction. It is important to note that these decisions are not the first of their kind; similar decisions, such as Bakari v. Ogundipe & Ors (2020) LPELR-49571(SC), had earlier been delivered by the Supreme Court.
After FHA & Olowe
Subsequent decisions of the Supreme Court, where facts were entirely similar to Okafor’s case, were decided on the principles enunciated therein. In ASABE & ANOR V. BABALE (2025) LPELR-81714(SC) which was delivered On Friday, the 4th day of July, 2025, the Supreme Court affirmed its decision in Okafor’s and struck out the case because the Writ of Summons was signed by “Ibrahim Babale & Co”.
MENAKAYA V. EZIM (2025) LPELR-81505(SC) delivered On Wednesday, the 4th day of June, 2025, also followed Okafor’s case and struck out originating process signed by a law firm “J.H.C Okolo, S.A.N & Co.
being later in time, represents the law assuming Olowe overruled Okafor. However, the decisions are not even conflicting as they decided different issues.
My Lord Agim, JSC, Dissents: Illustrating the Hardship in Strictly Applying Okafor’s Case
In Learned law lord and jurist per excellence, EMMANUEL AKOMAYE AGIM, J.S.C. had in the case of Network Securities Ltd v. Dahiru & Ors (2022) lpelr-57835(SC) lamented as follows:
“This Court is again faced with a situation where a plaintiff’s 25 year pursuit of justice with concurrent decisions of the two lower Courts in his favour declaring the revocation of his statutory right of occupancy illegal, is sought to be nullified by an objection raised for the first time in this Court on the sole ground that an unnamed legal practitioner in a firm of legal practitioners signed the application to issue the writ of summons when it is not disputed that the writ of summons was regularly issued by the competent authority of Court in accordance with the Federal Capital Territory High Court (Civil Procedure) Rules and when, at the date the writ of summons was filed, the prevailing legal regime established then by the decisions of this Court in Cole V Martins & Anor (1968) 5 NSCC 120 and Buhari V Yabo (2006) 17 NWLR(Pt.1007) 162”
In Solumade & Ors v. Kuti & Ors, the learned law lord reflected with deep concern:
“This suit was filed in 1998. For 23 years, it journeyed from the trial Court to the Court of Appeal and now to this Court. If this objection had been taken at the proper time, it could have been determined in limine before the defence was filed or before the trial commenced. But to wait until after 23 years of litigation in three Courts and then seek to nullify everything on the basis of non-compliance with Order 2 Rules 1 and 2 of the Lagos Rules is a mockery of the judicial process. It would throw away all the efforts of the Courts and the parties, waste their time and resources, and leave the claimants weary, broken, and too exhausted to start afresh. It would mean telling them, after two decades of waiting, that their originating process was incompetent. Such a situation makes fair hearing within a reasonable time impossible and violates Section 36(1) of the Constitution.”
In Aya v. Nkanu & Anor, his lordship sighed at the same painful reality:
“Here again, after nine years of litigation in three Courts, an objection is raised to strike out the suit for a defect in the originating process. If this objection is sustained, it will destroy all that has been done in nine years, nullify the judgments in favour of the claimants, and leave them drained of resources and hope. It would elevate technicality over the justice of the case and bring the Court into ridicule.”
In the same vein, the decisions in ASABE & ANOR v. BABAL and MENAKAYA v. EZIM ended the litigants’ over two-decade-long quest for justice, as the originating processes were struck out for being signed in the name of law firms rather than by individual legal practitioners. It is difficult, if not impossible, to commence anew a journey that is certain to span more than 25 years again. Not everyone can bear the agony of enduring 50 years of litigation over a piece of land.
What was the law, before Okafor’s case?
One may wonder why I did not start with what was the law before Okafor’s case. Maybe I want us to appreciate what we have before determining if looking back would provide any solution. Part of E.H. Carr’s most cited definition of history, is that it is ‘an unending dialogue between the present and the past.’ Similarly, Winston Churchill observed that ‘the farther backward you can look, the farther forward you are likely to see.’ These insights suggest that looking backward, may remind us of where we came from and the intended destination. This then leads to a critical question: What was the law before Okafor’s case?
Challenging the competence of a court process signed by a law firm is almost as old as the Legal Practitioners Act itself. In the case of COLE V. MATTINS & ANOR (1968) LPELR-25443(SC), Sowemimo J. declared incompetent the notice and grounds of appeal signed by a firm of solicitors known as “Lardner and Company” on the ground that under the Legal Practitioners Act of 1962 “Lardner and Company” was not a legal practitioner. Dissatisfied, the Appellant appealed to the Supreme Court. In allowing the appeal, the Supreme Court followed its earlier decision in in The Registered Trustees of Apostolic Church, Lagos Area v. Rahman Akindele , 1967 N.M.L.R. 263 and held that:
Now this Court had occasion on the 14th of April, 1967, to consider in The Registered Trustees of Apostolic Church, Lagos Area v. Rahman Akindele , 1967 N.M.L.R. 263 the effect of an appeal under these Registration of Titles (Appeals) Rules where the signature on the prescribed form of appeal was “J. A. Cole for J. A. Cole & Co.” and this Court said at page 265- “Mr. J. A. Cole is admittedly a duly registered legal practitioner, and entitled to practise as such under the Legal Practitioners Act, 1962. He has no partner in his practice, but he has registered the name of J. A. Cole & Co. under the Registration of Business Names Act, 1961 and uses that name in his practice. It is not suggested that there is any professional objection to his doing this, and it is frequently done by solicitors in England, as the Law List shows. In our view the business name was correctly given as that of the legal practitioner representing the appellants. In signing the notice of appeal, Mr. Cole used his own name, that is to say, the name in which he is registered as a legal practitioner. We hold that on any interpretation of the rules that was sufficient compliance with them, and we do not accept the submission that the addition of the words (for J. A. Cole & Co.) would invalidate the signature if a signature in a business name was not permitted”
The court went ahead and specifically held that:
“The effect, however, of registering a business name under the Registration of Business Names Act, 1961, is that where only one person constitutes that business it is correct to describe that person as in the terms of the registered business name. In other words Lardner & Co. here referred solely to Mr. H. A. Lardner….In our view having regard to the context of Rule 4 of the Registration of Titles (Appeals) Rules , the purpose of which on this issue, it seems to us, is to ensure that the name of the legal practitioner giving notice of appeal and representing the appellant is clearly known, then it is a sufficient compliance with the requirement for a legal practitioner to sign and give his name, if a legal practitioner practising alone gives the name under which he is registered as a business name, as this can only refer and apply to the legal practitioner who so holds himself out as practising under that business name. No possible doubt or confusion can therefore arise in these circumstances. We have noted moreover that it is the practice in England for solicitors in a partnership, which is carried on in the name of a firm, to sign in the firm’s name…
My lord Agim JSC, expressed opinion similar to the one reproduced above and advocated for a shift to the decision above in the case of Network Securities Ltd
Conclusion: A Call for Doctrinal Balance
In Egbe v. Yusuf (1992) LPELR-1035(SC) Olatawura JSC said: “There is the development of the law through constructive and articulate criticisms of judgments” My lord Nnamani JSC in BRONIK MOTORS LTD &ANOR V. WEMA BANK LTD (1983) LPELR-808(SC) said:
“..All the same I share the view of Lord Morris in Conway v. Rimmer that ‘though precedent is an indispensable foundation on which to decide what is the law there may be times when a departure from precedent is in the interests of justice and the proper development of the law’
In Akintokun v. LPDC (2014) LPELR-22941(SC) (Pp. 115-116 paras. D-D) the Supreme Court held that it can overrule itself: “where it is shown that the previous decision is occasioning a miscarriage of justice or perpetrating injustice or contrary to public policy.” One of the most judicially pronounced public policy, is that: “there must be an end to litigation”. Starting all over after 25 years, after some witnesses may have passed away, after memories may have faded, after so much resourced dissipated, seems to be a negation of that principle..
TThe legal profession continues to grapple with the delicate balance between strict compliance with professional standards aimed at deterring non-lawyers from legal practice and the need to do substantial justice. While Okafor v. Nweke remains the prevailing law, recent decisions have imposed considerable hardship on litigants. This prompted the call for a return to pragmatic interpretations, the hope is that the law will eventually find a balance that serves justice without sacrificing professional integrity.
H. Liman, Esq.
Senior Associate
Baba Dala, SAN & Co.
Bahama Chambers