COURT ENCOURAGES THE PUBLIC TO SUE LAWYERS FOR PROFESSIONAL NEGLIGENCE

Recently, the Nigerian Court of Appeal made a pronouncement, encouraging litigants to sue their lawyers for any professional negligence. This was in the case of Fasehun & Ors v. Adesida & Ors [2021] 4 NWLR (Pt. 1767) 514 at 525. In that case, Hon. Justice Danjuma, JCA declared:

I must reiterate that the scenario of this appeal brings to the fore, the painful effect of delays, injustice and avoidable costs that are foisted on litigants by learned Counsel who do not observe the law in the taking out of court processes as in this matter on appeal. I had umpteenth times observed and in particular thus: “that the time has come for such incompetent suits not to be in our courts’ dockets and that lawyers should be sued by their clients for professional negligence and for damages. I shall say no more.

The trigger

One does not need any analysis to realise that his Lordship seemed ‘upset’ to warrant the making of such a” “dangerous” statement quoted above. But what triggered it? It happened that the Appellants were involved in a land tussle which eventually landed them and their adversaries (The Respondents) to court. Displeased with the trial Court’s decision, Counsel to the Appellants filed an appeal on behalf of the Appellants. The Respondents raised a preliminary objection to the competence of the appeal on the ground that the originating process (writ of summons) used to commence the case in the first place was signed by a law firm and not a legal practitioner known to law. The Court of Appeal sustained the objection and struck out the appeal, the implication being that the entire suit was incompetent right from the beginning.

Explainer

There is a big difference between signing a court process in the name of a lawyer and signing in the name of a law firm. For instance, the law does not permit lawyers to sign a court process in the name of their law firms without indicating the name of the particular legal practitioner(s) who signed. The lawyer must first of all indicate his name before writing the name of his firm, address and other details.

On the surface, you might wonder what the big deal is, and why such a mistake should not be treated as a mere oversight. Well, the Supreme Court was unable to be persuaded in myriads of cases. It held that such an oversight is so grave that it goes to the root of the court action, and nullifies it in toto. Okafor v. Nweke [2007] 10 NWLR (Pt. 1043) 521; SLB Consortium v. NNPC [2011] 9 NWLR (Pt. 1252) 317; e.t.c are ready examples.

Many lawyers in Nigeria, not only the Appellants’ Counsel in this case, had been found wanting and therefore, became victims of the Supreme Court’s position on signing of court processes. The error of signing court processes only in the name of law firms was prevalent through the years. Lawyers inadvertently passed down the erroneous practice from generations to generations, until the Supreme Court made a policy statement that clarified the existing law and affirmatively put an end to it.

Thus, being faced with the issue in the Judgment delivered on 16 June 2020, Danjuma, JCA appeared irritated by the fact that after all these years, such an issue could pop up again. But the reality was that the case was actually filed in 2010, going by the suit number (HOD/47/2010), at the High Court of Ondo State. Although this is not an excuse, but at least, during this period, the heat of controversy was still on. Suffice it to say that today, it is no longer common to find any lawyer committing such fatal error.

Suing a lawyer for professional negligence

Having said that, let us briefly consider the call made by the Court of Appeal, encouraging clients to sue their lawyers for professional negligence. Without further ado, clients are perfectly within their rights to sue their lawyer for professional negligence. The relationship between a client and a lawyer is mostly contractual – the lawyer renders legal services in exchange for professional fees. Aside the contractual obligation of the lawyer to deliver the legal services for which he was hired, the lawyer is bound by the creed of the legal profession (and as an ethical consideration) to be at his best in the discharge of his professional duties to his client. Thus, if he is found wanting, the client reserves the right to seek legal compensation by way of damages.

Nonetheless, it might pose to be a herculean task proving the negligence in certain cases. For instance, losing a case you strongly believed you ought to win does not amount to negligence by that singular fact. In instances such as the one that played out in the case of Fasanu v. Adesida, it could be easier. But bear in mind that, except in extreme cases, an average lawyer would not work against his learned friend and colleague for any case founded on professional negligence.

Having said that, and in the light of the pronouncement by Danjuma, JCA, it behooves on lawyers to uphold the highest level of professional discipline, diligence and competence expected of a legal practitioner. To achieve this, lawyers are encouraged to avoid purely solo practice. Legal documents should be properly vetted and pass through the eyes of more than one person.

 

 



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.
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