PRACTICAL ADVOCACY

A PAPER PRESENTED BY CHIEF FERDINAND OSHIOKE ORBIH AT A

SEMINAR ORGANIZED BY LAW OFFICERS ASSOCIATION OF
NIGERIA, EDO STATE CHAPTER

I think it is appropriate to congratulate the Edo State Chapter of the Law Officers
Association of Nigeria for organizing this seminar whose theme is “Law as a Tool
for Social Engineering.”

Since all papers to be delivered in the course of this seminar are expected to be
approached against the back drop of this theme, a word or two on the theme before
we proceed to the topic of this paper will not be out of place.

Law is defined inter alia as the aggregate of legislation, judicial precedence, and
accepted legal principles; the body of authoritative ground for judicial and
administrative action1

According to Roscoe Pound in his essay – “more about the nature of law”

“There are two ideas that run through the definition of law; one an
imperative ideal, an ideal of a rule laid down by the law making
organ of a politically organized society, deriving its authority from
the authority of the sovereign; and the other a rational or ethical
ideal, an ideal of a rule of right and justice deriving its authority
from the intrinsic reasonableness or conformity to ideals of right
and merely recognized, not made by the sovereign”.2

An engineer is someone who plots or contrives to bring about. When therefore you
dwell on law as tool for a social engineering, you are more or less saying that law
is an instrument for social change, development and/or improvement. This is why
we submit, without any fear of contradiction, that advocacy is of paramount
importance in the quest to use Law as an instrument for social engineering.

WHO THEN IS AN ADVOCATE?

An advocate is a person who assists, defends, pleads or prosecutes for another3.

The status of an advocate carries with it, enormous responsibilities to the legal
profession, the court, the client and the society at large. These duties and

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obligations are very well encapsulated in the following passage from Lord
Denning’s book, “The Discipline of Law”

“An advocate is a minister of justice equally with a judge. No one

save he can addressed the judge, unless it be a litigant in person.
This carries with it a corresponding responsibility. A Barrister
cannot pick or choose his client, he is bound to accept a brief from
any man who comes before the court. No matter how great a rascal
the man might be. No matter how given to complaining. No matter
how undeserving or unpopular his cause. The barrister must defend
him to the end. Provided only that he is paid a proper fee, or in the
case of a dock brief, a nominal fee. He must accept the brief and do
all he honourably can on behalf of his client. He has a duty to the
court which is paramount. It is a mistake to suppose that he is the
mouth piece of his client to say what he wants: or his tool to do what
he directs. He is none of these things. He owes allegiance to a
higher cause. It is the cause of truth and justice. He must not
consciously mis-state the facts. He must not knowingly conceal the
truth. He must not unjustly make a charge of fraud, that is, without
evidence to support it. He must produce all the relevant authorities,
even those that are against him. He must see that his client
discloses, if ordered, the relevant documents, even those that are
fatal to his case. He must disregard the most specific instructions of
his client if they conflict with his duty to the court. The code which
requires a barrister to do all this is not a code of law. It is a code of
honour. If he breaks it, he is offending against the rules of the
profession and is subject to its discipline.

Such being his duty to the court, the barrister must be able to do it
fearlessly. He has time and time again to choose between his duty to
his client and his duty to the court. This is a conflict often difficult
to resolve: and he should not be under pressure to decide it
wrongly.”4

Such is the enormity of the duty and obligation of the advocate. For the private
legal practitioner whose clients are diverse, it is difficult to keep the above tenets.
As for the law officer whose clients is the state (who also employs and pays their
salaries) it is even more so. However, it is important to point out whether as law
officers or as private legal practitioner, every advocate is enjoined to keep to these
tenets.

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Practical advocacy would therefore be the actual practice of the act of advocacy.

There is no doubt that advocacy is a skill – Its skill of persuasion. The question
which arises is this – can advocacy be learnt? Iain Morley QC in his book, “The
Devil’s Advocate” had the following to say on the issue of whether Advocacy can
be learnt:-

“Like any skill ADVOCACY CAN BE LEARNT. Up to a point. No

one can be taught to be a brilliant advocate, just as no one can be
taught to be a brilliant pianist. Brilliance requires talent. Whether
any of us has talent is a gift of the Gods. However, we can be
TAUGHT COMPETENCE IN ADVOCACY. Competence is not
making errors. We can be taught how not to make errors. Simply
that. No more complicated than that. Just as most people can be
taught to play the piano, so too can they be taught advocacy…But
unlike the pianist an error free performance in court is something
more – it is highly unusual. Advocacy without error is no small
achievement.”5

In this paper we shall try to emphasize those things that can enhance effective or
good advocacy. The first of these is a good command of the English language.

COMMAND OF LANGUAGE

In his book, “The Discipline of Law” Lord Denning opined that to succeed in the
profession of law, you must seek to cultivate the command of language. He put it
beautifully in the following passage;

“Words are the lawyer’s tools of trade. When you are called upon to
address a Judge, it is your words which count most. It is by them
that you will hope to persuade the Judge of the rightness of your
cause. When you have to interpret a section in a statute or a
paragraph in a regulation, you have to study the very words. You
have to discover the meaning by analyzing the words – one by one –
to the very last syllable. When you have to draw up a will or a
contract, you have to choose your words well. You have to look into
the future – envisage all the contingencies that may come to pass –
and then use words to provide for them. On the words you use, your
client’s future may depend.”6

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One cannot put it better than the way Lord Denning stated it above.

On the reason why words are so important to an advocate, we shall ones again
borrow from Lord Denning who stated that;

“The reason why words are so important is because words are the
vehicle of thought. When you are working out a problem on your
own – at your desk or walking home – you think in words, not in
symbols or numbers. When you are advising your client – in writing
or by word of mouth – you must use words. There is no other means
available. To do it convincingly, do it simply and clearly. If others
find it difficult to understand you, it will often be because you have
not cleared your own mind upon it. Obscurity in thought inexorably
leads to obscurity in language.”7

Even though words are very important in advocacy, often time we find that they
are difficult to master. The difficulty in mastering the use of language was
succinctly put again by Lord Denning when he stated as follows;

“Sometimes you may fail – without your fault – to make yourself

clear. It may be because of the infirmity of the words themselves.
They may be inadequate to express the meaning which you wish to
convey. They may lack the necessary precision. “Day’ and ‘Night’
clear enough at most times. But when does day begin and night
end? Some may say at sunrise. Others would say at dawn. Then
when does ‘dawn’ begin? No one can tell exactly. Or a word may
mean one thing to one person and another thing to another. Take
‘punctual payment’ or ‘prompt payment’. To one it may mean
immediate payment. To another, it may permit of a little latitude and
it may suffice if payment is made within a day or two. The difference
between the two will remain unless it is settled by the House of
Lords. Yet, again a word may mean one thing in one context and
another thing in another context. Thus, ‘money’ may be limited to
the money in your purse and cash at bank or it may include money
owing to you for dividends or rents. Yet again, a word may mean
one thing in one situation and another in another. Take the words
‘insulting behaviour’. Blowing a whistle on the centre court at
Wimbledon maybe ‘insulting behaviour’; but blowing it at the cup
final at Wembley would not. It depends on the meaning which you

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 yourself choose to give to ‘insulting’. The difference is not to be
settled by authority, but by individual choice. Constantly, you will
find ordinary people giving different meanings to the same word.
This gives full scope to the lawyer.”8

How then can an Advocate Acquire this Command of Language which is so

much Desired?

I can not find any better method than the one prescribed by our teacher for today
Lord Denning. I say no better method because I have been a student in his school
for a long time. And talking from experience, I have no hesitation in telling you
that his prescription works. Now Denning is prescription is as follow:

“when I was called to the Bar, I had to become proficient with

words. I did it by drawing on my reserves of English literature.
These I had acquired at the Elizabeth Grammar School to which I
went daily. I had read much of Shakespeare and many of our poets
and novelists whilst still at school. All my prizes from the age of 11
were for English, I have then still, bound in handsome leather, with
the school crest and the date AD 1569. The titles in succession are
the Great Authors, Macaulay, Carlyle, and Milton. Reading these
and others provided the essentials; a wide vocabulary of words, and
an understanding of the meaning attached to them by the masters of
the language. Come to think of it, that is how the makers of the
great Oxford Dictionary set about their task to discover meanings.
They compiled it ‘from over five million quotations derived from
English works of literature and records of all kinds’. Then glance at
the Dictionary itself to see the result. It shows that the meaning of a
word may change from decade to decade, from place to place, even
from one person to another. It may depend on the subject matter
under discussion or the context in which it is used. So you have a
challenging task ahead if you are to acquire command of language:
and to say what meaning any particular word has in particular case.

Next, I had to practice continually. As a pianist practices, the piano,

so the lawyer should practice the use of words, both in writing and
by word of mouth. Again, forgive a personal reminiscence. In
chambers, if asked to advise, I took infinite pains in the writing of
an opinion. I crossed out sentence after sentence. I wrote them
again and again. Seek to make your opinions clear at all costs.

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 Make them positive and definite. Not neutral or vacillating. My
pupil master told me early on of the client’s complaint: ‘I want your
opinion and not your doubts’, and of Sir George Jessel’s
characteristic saying: ‘I may be wrong and sometimes am, but I am
never in doubt’.”9

CASE PREPARATION

In addition to having a good command of the English language, a good advocate

must cultivate the right approach to preparation of his cases.

My principal, Chief J.A. Sadoh (who later became a judge of the High Court of
Edo State Judiciary), often told us, times without number, that cases are won and
lost in chambers. It follows therefore that there can be no gain saying the fact that
thorough preparation of cases in the inner recesses of the chambers is the hallmark
of a good advocate.

In criminal matters, everything starts and ends with the charge or information. You
must find out what must be proved and to what standard. Usually, the burden of
what must be proved is on the prosecution, but not always; check the relevant
statute. If the allegation is Assault occasioning actual bodily harm, the issues to
prove are;

Was there actual bodily harm?

To whom?
Was it caused by an Assault?
Was the assault unlawful?

In a civil trial it is trite law that the Writ of Summons and pleadings occupy a pride
of place. It is important to ensure that the relevant statutes as scrutinized even
before the preparation of the Writ of Summons. Often times, land mines are
planted in the Statutes for the unwary advocate who glosses over the need to
scrutinize them. And they come in various forms. For instance, the statute may
prescribe that a pre-action notice in a particular form be given to the proposed
Defendant before the institution of the suit. E.g. S. 12(i) of the NNPC Act.

A statute may also prescribe a time limit within which an action may be instituted.
See also S. 3(i) Public Officers Protection Act. It is also important to ensure that
you institute your action at the right court. For instance, S. 251 of the Constitution

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of Federal Republic of Nigeria 1999 puts all items in the exclusive legislative list
under the exclusive jurisdiction of the Federal High Court.

An advocate who does not do these preliminary checks is almost always likely to
be faced with a preliminary objection at the trial of the suit. Preliminary objections
are therefore largely self imposed avoidable obstacles. And the antidote is
thorough preparation.

All sorts of problems can come up in form of preliminary objection unless utmost
care is taken by the advocate when preparing court processes, be they civil or
criminal matters. For instance in Okafor v. Nweke.10 The crucial issue inter alia
which arose for consideration was whether or not it is permissible for a legal
practitioner to sign court processes in a partnership name without an additional
indication in the process of the name of the practitioner who is a member of the
partnership or firm handling the matter. The motion under consideration in that
ruling, was signed by “J.H.C. Okolo & Co., Applicant’s counsel 162B, Zik
Avenue, I Enugu”. In resolving the issue, the Supreme Court Coram Ononoghen
and Oguntade JSC held as follows;

“I am not unaware that legal practitioners have formed the habit of

signing court processes in their partnership or firm names without
indicating the name of the practitioner signing the process. I have
had course to deal with such processes in my career on the Bench. I
do not however, remember a particular occasion when an issue has
been made done in this application by senior counsel for the
respondent, G.R.I. Egonu Esq., SAN.

It is no justification or an acceptable excuse that because the

practice has been followed for a long time for this court not to
respond appropriately to Mr. Egonu's objection. The practice is
either right and acceptable or wrong and unacceptable. Mr. Egonu
SAN has submitted that under sections 2(1) and 24 of the Legal
Practitioners Act, Cap. 207 Laws of the Federation, 1990, a firm of
legal practitioners 'J.H.C. Okolo SAN & Co.' not being a person
whose name appears on the roll of legal practitioners, was not
entitled to sign or issue the notice of motion before this court.
Counsel relied on New Nigerian Bank Plc. v. Dendag Ltd. (2005) 4
NWLR (Pt. 916) 549 at 573, a decision of the Court of Appeal.

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 Now, section 2(1) of the Legal Practitioners Act. Cap. 207 of the
Laws of the Federation, 1990 provides:

'Subject to the provisions of this Act, a person shall be entitled to

practise as a barrister and solicitor if, and only if, his name is on
the roll.'

And section 24 of the same Act provides:

'A person entitled in accordance with the provisions of this Act to

practise is a barrister or as a barrister and solicitor, either generally
or for the purpose of any particular office or proceeding.'

The simple question that arises, in view of the clear provisions of

Cap. 207 reproduced above, is whether or not 'J.H.C. Okolo & Co.
SAN' is a person entitled to practise as a barrister and solicitor. It
seems to me that only human beings actually called to the Bar could
practise or practise by signing documents as a motion paper.

The argument that it is an over adherence to technicality to annul

the process improperly signed and filed by 'J.H.C. Okolo & Co.
SAN' fails to overlook the good sense in ensuring that our laws are
strictly enforced and observed. It would have been quite another
matter if what is in issue is a mere compliance with court rules.

In conclusion, I upheld the objection of Mr. G.R.I. Egonu SAN and

agree with the views of my brother, Ononoghen JSC. I would
uphold the conclusion that the processes filed in the application,
particularly the motion on notice filed on 19/12/05 and the proposed
notice of cross-appeal are incompetent."

It must be pointed out however, that the above decision of the Supreme Court is
not in consonance with the Court of Appeal in the case of Unity Bank Plc v.
Oluwafemi.11 The issue in that case was whether the law firm of Oluwole Aluko &
Co. was competent to issue and sign the notice of appeal since the firm is not a
registered legal practitioner within the context of the provisions of S. 2(i) and 24 of
Legal Practitioners Act. In Unity Bank Plc V. Oluwafemi, the Court of Appeal
held as follows:

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 “Having regard to the context of rule 4 of the Registration of Titles
(Appeals) Rules, the purpose of which on this issues, 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 the business name. No possible doubt or
conclusion can therefore arise in these circumstances.'

It can thus be seen that the Supreme Court in allowing the appeal
and setting aside the judgment of the Lagos High Court considered
the issue a mere technicality. Since this case was decided, the
Supreme Court has consistently harped on need to discard
technicalities where resort to them would be at the expense of doing
substantial justice. This is very clearly the case here. There is no
doubt that Oluwole Aluko has been appearing for the appellant in
this matter. This is born out by the court's records which are taken
judicial notice of under section 74(1)(m) of the Evidence Act." Per
Alagoa JCA.

Despite the decision of the Court of Appeal in Unity Bank v. Oluwafemi (Supra),
it is better to err on the side of caution by ensuring that Court processes are signed
by a registered legal practitioner in conforming with the provisions of S. 2(i) and
24 of the legal practitioners Act. Furthermore, on the principle of Stare Decisis,
the decision of the Supreme Court is binding on all courts including the Court of
Appeal.

It is important to bear in mind that case preparation in chambers also includes,

planning how you will prove the case in court. In this regard, witnesses are of vital
importance. Iain Morley QC12 gave the following advice on the issue of witnesses:

“The case will be proved by the witnesses, not by the advocate.

Obvious, but people often loose sight of this. The witness gives
evidence which proves the indictment. The advocates will later argue
over whether the witnesses have succeeded against the burden and
standard of proof…It is surprising how often the advocates never
often apply the evidence in the statement to each of the elements of
the counts of the indictment. Do the witnesses prove the counts?

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 Look carefully at this, instantly we can see every witness –
particularly if there is evidence arising. You will have identified case
laws if you are defending – if prosecuting you will need to produce
an advice on giving further evidence. But it is not only evidence
which is missing that we notice. We also notice the section in the
witness statements which are vague and unsatisfactory. We begin to
sense where the lines of attack against the prosecution case will be
easiest.”

Furthermore, case preparation also includes reading all the proofs of evidence, all
correspondence on the issue and indeed all documents pertaining to the case. It
sounds easy but I tell you from experience it is very difficult to read all materials
pertaining to a case. Sometimes a counsel may read a document half way and find
something useful, but unknown to him that same document may contain some
materials which may be devastating to his case. Sometimes, he finds out after the
harm has been done i.e. after he must have tendered the same in evidence and the
opposing counsel begins to make use of it in ways that were never intended or
anticipated by the Counsel who tendered it.

CASE PRESENTATION

(a) Know your Court or Tribunal

On the importance or need to know your court or tribunal lain Morley QC13 gave
the following piece of advice;

“Infact it is usually a good idea to find out about your judge, ask the
usher what mood he is in. Ask in the robing room what he is like.
Learning about your tribunal is part of your job. What you discover
can be used to the advantage of your case and can hone in your
address all the better to fit the judges expectation. Some advocates
start with the belief that the judge will be slow, others wordly
perhaps, even daft: this is crazy advocacy. It annoys a judge and so
you loose precious respect. It makes it more difficult to persuade the
judge because, now you are likely to be ignored, as it might be
thought to be a loss of face to agree with you.”

To the above advice, I would like to add that nothing is too simple to find out
about the judge. Matters such as whether he sits early, or late: or if he sits late
whether he sits at a particular time, whether he rises early, or rises late, whether he

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is the type that likes to have all authorities on any particular issue arising before
him or whether he is the type that will be satisfied with 1 or 2 authorities on a
point, are all important. Knowledge of these issues will determine your strategy in
each case. I know of a judge who never liked counsel to cite too many authorities,
and the easiest way to get adjournment in his court was to offload as many
authorities as possible on your desk. And as soon as he enters the court, the first
question he will ask is, Mr. X is it me you intend to cite all those authorities for,
today? You may mention your matter and take a date. For that same judge, counsel
who is bent on going on with his matter used to hide his law reports under his seat
and safely in his bag until after the case is called and hearing actually starts. Even
at that, he had to ensure that he brought out the authorities one by one from his bag
otherwise, the judge may still end up adjourning his case.

When I was prosecuting at the Failed Bank Tribunal, I remembered once when it
was difficult for me get information on a particular judge who was from one of the
Northern States of Nigeria, and before whom I had a very difficult case. To put my
self in a position to win that case, I knew that I had to reason like that judge or
tribunal. In order to put my self in that position I was able, through her clerk of
court, to get all her previous judgments. By the time I finished reading through
those judgment, it was not difficult for me to know the steps to take in the
prosecution of that matter which I had before the judge.

COURT APPEARANCE

Dressing

An advocate must be well dressed, must be neat beginning from the hair on his
head to the shoes on his feet. Do not get slack about your appearance at court.
Everyday you are on show. So show them. Make sure the clothes you wear make
you look formal and fantastic. Looking fantastic makes you look like a winner.
Judges cannot help themselves – they take people who look like winners seriously.
Lest I forget, make sure your shoes are dark and well polished.14

Apart from dressing well, Lord Denning15 took it a step further when he stated
thus:

“Remember also that, whatever the tribunal, you must give a good
impression. Your appearance means a lot. Dress neatly, not
slovenly. Be well groomed. Your voice must be pleasing, not harsh
or discordant. Pitch it so that all can hear without strain. Pronounce

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 your consonants. Do not slur your words. Speak not too fast nor yet
too slow. All these things are commonplace but they are so often
forgotten that I warn you against the mistakes I see made daily. No
hands in pockets. It shows slovenliness. No fidgeting with pencil or
with gown. It shows nervousness. No whispering with neighbours. It
shows lack of respect. No ‘ers’ or ‘ums’. It shows that you are slow-
thinking, not knowing what to say next. Avoid mannerisms like the
plaque. It distracts attention. Don’t be dull. Don’t repeat yourself
too often. Don’t be long-winded. All these lose you your hearers:
and once you have lost them, you are done for. You can never get
them back – not so as to get them to listen attentively.

One thing you will not be able to avoid – the nervousness before the
case starts. Every advocate knows it. In a way it helps, so long as it is
not too much. That is where I used sometimes to fail. My clerk – as
a good clerk should – told me of it. I was anxious to win – and so
tense – that my voice became too high pitched. I never quite got over
it, even as a King’s Counsel. No longer now that I am a Judge. The
tension is gone. The anxiety – to do right – remains.”

A point must be made that the risk of repetition but for the sake of emphasis, that
repetition does not improve the quality of an argument or submission. Rather, it
makes a counsel to sound dull and monotonous like a broken gramophone record.
It thus has the opposite effect of diminishing the effectiveness of your presentation.

I will only add that it is only when it appears that you are not carrying the court
along that there may be need to repeat your submission. But even in such an
instance, it is better to repeat yourself in different words.

ADDRESSING COURT

A. Need to Respect the Court.

It is important to show utmost respect, deference and politeness to the court.

Judges occupy a formal position in the society, they have enormous powers within
the law. They can separate families, they can change lives with jail sentences, they
can imprison witnesses (and advocates) for contempt, and they can seize huge
some of money and freeze assets. They deserve all the respect that counsel has to
offer.

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It is perhaps instructive to take to take to heart the admonitions of the Court of
Appeal Coram Amina Augie JCA, in the case of Ayorinde v. Kuforiji 16

"I have nothing useful to add except to comment on the alarming

rate at which counsel use abusive and insulting language in their
briefs of arguments, and it must be deplored. Counsel should guard
their tongues and pens in and out of court in their references to
judgments of court, particularly as impolite remarks against
judgments serve no useful purpose except to reduce the integrity of
the court before litigants, and this does not augur well from the
legal profession' - See Akinduro v. Iwakun (1994) 3 NWLR (Pt.330)
106 & Udoh v. The State (1994) 2 NWLR (Pt.329) 666, where Tobi,
JCA. (as he then was) observed as follows -

"Counsel should try as much as it is humanly possible to refrain

from castigating Judges in the guise or cloak of arguing the case of
their clients. Raining aspersion on how a Judge conducted a case is
not part of good advocacy. It is part of good advocacy for counsel to
see Judges as parties in the same boat of administering justice and
that both are indispensable parties in that boat. While counsel has
all the freedom to present the case of his client with all his legal
strength and expertise, they should on no account, use the forum to
attack the Judge that he was either biased or know little or no law'.
(italics mine)."

Learned counsel's jibe that the learned trial Judge was apparently in
a haste to give judgment for the respondent and therefore 'ignored
or failed' to take judicial notice of a law is not borne by the record
and is therefore a sly attempt to accuse the lower court of bias or
ignorance of the law. This is wrong and I add my voice in
condemning same.''

Similarly in Akpughunum v. Akpughunum17 the Court of Appeal Coram

Dongban-Mensem JCA also spoke on the need for counsel to sharpen their
advocacy skills rather than verbally assault judges in their submissions;

"Before I put F-I-N-I-S-H to this appeal, let me comment briefly on

the issue of reassigning the matter to another judge, I consider it an
unnecessary addition to the relief sought. Learned counsel should

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 very well be advised and reminded in the words of the eminent jurist
and judicial administrator, Uwais JSC (as he then was and later
CJN) that judges are not members of the jury.
'...Judges are there to decide cases and not to excuse themselves
whenever a litigant doubts without cause the judicial qualities of
those assigned to sit in judgment.

Litigants should not be encouraged to treat Judges like members of

a jury whom they can challenge off the case, with or without cause.'

Further, in appropriate case, this court makes the requisite order

when an interlocutory appeal succeeds. Learned counsel needs not
create/arouse unnecessary hostility in judges in the course of the
performance of their arduous tasks of adjudication. Every aggrieved
party has a right of appeal up to the Supreme Court. Learned
counsel are well advised to sharpen their advocatory skill for a legal
battle rather than verbally assualt and degrade judges in their
submissions. Such practice must be discouraged. The choice of
language of the learned counsel for the appellants was rather
appalling and should be avoided."

The need to treat courts with courtesy and respect, should be counter balanced by
the need for counsel to be courageous when presenting his clients’ case before the
judge or tribunal. He has the duty to call the attention of the judge to an omission
in the application of legal principles and/or rules of practice.

This duty was highlighted by the Supreme Court Coram Muhammed JSC in the
case of Anthony Nwanchukwu v. The State18 when he stated thus;

"The duty of ensuring that the right thing is done is not only on the
trial judge. It is a duty as well on a party to a case or his counsel.
The counsel, where one is engaged, who, by the nature of his call, is
an officer of the court must insist that the right thing is done by the
court in accordance with the law. Thus, where a counsel observes
that a Judge is deviating from the known principles of practice/law,
he has a duty to invite the attention of the Judge to that omission. At
least the records will bear him testimony that he, as a counsel, for
one of the parties before that court, has not tacitly condoned an
illegality."

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b. Need to Assist the Court to Attain the Ends of Justice

Counsel in presentation of his case also has a duty not to support an act which is
antithesis to justice, this point was made by the Supreme Court Coram Ogboagwu
JSC in the case of Sokoto State Government v. kamdix (Nig.) Ltd19;

''The point that is not in dispute and is conceded by the learned

counsel for the respondent is that Galadima, JCA, who did not
participate in the hearing of the appeal wrote a concurring
judgment in an appeal that he never saw the counsel for the parties
and did not listen to their respective addresses. Is it right? I or one
may ask the learned counsel for the respondent. Does the learned
counsel for the respondent, as a member of the legal profession and
who is also a minister in the temple of justice, in defence of his
integrity have the moral and professional conscience to support
something or an act that is an antithesis of justice? It will not cost
him anything including his fees, I believe, to advise his client that
what happened is/was really unfortunate. It was inadvertent.
Everyone of us at one time or the other makes human mistakes. The
pressure of work or workload in the appellate courts is responsible
for such mistakes which I concede is not a slip. If the appellants had
acquiesced to the ''irregularity'' as contended by the learned counsel
for the respondent, why then this appeal? I or one may ask him.''

The standard of the duty to court, is in line with the often repeated saying that
counsel is an officer in the temple of justice. In Uzuda v. Ebigah and Ors.,20 the
Supreme Court was full of praises was for counsel who conceded defeat as
follows:-

"as an aside, to experience this rare gesture of knowing when to

throw in the towel unto the arena of contesting parties in a dispute
as the instant one otherwise gracefully and neatly for that matter is
one of the hallmarks of good advocacy. In this regard, I think the
senior counsel and his team for the plaintiffs (respondents) in this
matter must be commended highly as having demonstrated what
good advocacy under the rule of law encompasses; this underscores
the fact that the senior counsel and his team are true officers of the
court. They have played the game with their cards face upwards.
Win or Lose taking a position as this on the peculiar facts of the

15
 matter, serves the interest of justice apart from saving the time of the
court - it is worthy of emulation by counsel generally."

In recent cases, both the Court of Appeal and the Supreme Court have reminded
counsel of their duty to help to reduce period of delay in determining cases in
court. For instance in First F Ltd v. NNPC.21 The Court of Appeal had this say on
the issue;

“Counsel should heed the advice of the courts by avoiding

unnecessary appeals against interlocutory decisions by
concentrating on finishing the substantive suits. Interlocutory
appeals only succeed in delaying the conclusion on suits.
Consequently, counsel owe it a duty to the court to help reduce the
period of delay in determining cases in our courts by avoiding
unnecessary preliminary objections so that the adage 'justice
delayed is justice denied' may cease to apply to the proceedings in
our courts.”

Similarly in H.R.H. Igor Umeonusila Umeanadu v. Attorney General of

Anambra State and Anor. The Supreme Court while speaking on the same issue
stated as follows;

"With profound humility and the greatest respect, this is a typical

interlocutory appeal that has strengthened and supported my view or
advocacy that interlocutory appeals to this court should and ought to
be discouraged and in fact, not allowed to continue. I humbly
advocate that, unless in very special circumstances, all interlocutory
appeals should wait and be filed together with the main and
substantive appeal to this court. For my stance, see the cases of
Ogigie & 3 Ors. v. Obiyan (1997) 10 SCNJ 1; (1997) 10 NWLR (Pt.
524) 179; Okobia v. Madam Ajanya & Ors. (1998) 6 NWLR (Pt.
554) 384 at 364-365; (1998) 5 SCNJ 95; Dr. [Link]. Iweka v. SCOA
(Nig) Ltd. (2000) 3 SCNJ 71 at 91 ; (2000) 7 NWLR (Pt. 664) 325 -
Per Ogundare, JSC (of blessed memory) and Elom Oke & Ors. v.
Eze Nwaogbuinya (2001) 1 SCNJ 157; (2001) 3 NWLR (Pt. 700)
406, just to mention but a few. This can be done without filing
separate appeals. Speaking for myself, most times, it is time wasting
and most of the time, they are designed or employed as delaying
tactics or punishment for the opposing party by some litigants
and/or learned counsel who knows undoubtedly, or ought to know

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 that their case like this case, is like one standing on a 'quick sand'
so to speak. Where however, they are allowed to continue, the Rules
of this court need, with respect, an urgent review in respect of costs
which will enable the court, have a discretion in the award of costs
which at least, will not be below a certain reasonable amount.
Afterwards, it is said that it is the duty of the court whenever
possible, in the interest of justice, to assist the parties in reducing the
expense of litigation. That the court should try as much as possible,
to avoid placing unnecessary financial burden upon the litigants."
Per Ogbuagu JSC.

EXAMINATION-IN-CHIEF

Examination-in-chief has been described by some people as the most difficult skill
because without leading the witness counsel is expected to extract all the relevant
evidence. With police officers and experts this can be easy because they can refer
to their notes but other witnesses must rely on their memory. Incidents can appear
different to such witnesses months later and often, they wander off the point and
have to be brought back. It must be pointed out however that there is nothing
wrong in asking leading questions when the matter is not in dispute. A leading
question is one which suggests the answer. It sounds simple, but like most things
legal, in practice, the dividing line between leading and non-leading question can
be very hazy.

Generally, a non-leading question will begin with the following;

Who
What
Why
When
Where
How
Please describe22

Avoid the standard phrase “what happened next” because the witness may give
either too much details or too little or just plainly wanders off the point.”

“What happened next” is a recipe for loosing control of the witness. The evidence
must be chronological and the advocate must know his objective with each
witness.

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 CROSS-EXAMINATION

The aim of cross-examination is to enable the cross-examining party to demolish

or weaken the case of the other party. As stated by the learned authors of Phibson
on Evidence23;

“All cross-examination must be relevant to the issues and the

witness’s credit. The object of cross-examination is to weaken,
qualify or destroy the case of the opponent and to establish the
party’s own case by means of its opponent’s witnesses.” See also
Uwaifo JCA in Ojiako v. The State24

In Onouka v. Owolewa25 The Court of Appeal summed up the important of cross-

examination in the following manner;

“The submission of the respondent the cross-examination is

procedural, is untenable, as under our adversarial system of
jurisprudence the art of cross-examination is the greatest weapon to
attack an adversary. It is fundamental, the pivot, the central hobb
and gravity of our civil system, because cross-examination is based
on our rule of pleading with its source. Our rule of natural justice of
audi alterm partem (hear the otherside.) To deny a party from cross-
examination of the adversary without justifiable legal reasons
amounts to a denial of fair hearing as enshrined in S. 36(i) 1999
Constitution of Federal Republic of Nigeria.”

Furthermore, cross-examination of a witness is of paramount importance because

failure to cross-examine a witness upon a particular matter is said to be a tacit
acceptance of the witnesses evidence.26 As important as cross-examination is in
advocacy, it is so dangerous that if you do not need to cross-examine a witness,
please do not.

Iain Morley QC in his book, “The Devil’s Advocate”27, prescribed ten rules of
cross-examination. They are as follows;

1. THINK COMMANDO: Do not lay siege. Like a commando you go in,

you get what you want and you get out. Remember it is dangerous out
there. Every question invites disaster. So stealth, cunning, brevity, should
be your watch word.

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2. When you have got what you want, STOP. Do not try to improve on
answers because the witness will think that you have had him and will
back track. And try not to say thank you, as it tips the witness off that you
have what you want and he may try to undo what he has just said. Just
STOP, FULL STOP.

3. Never ask a question to which you do not already know the answer, in
other words, do not use cross-examination to dig around, you have no
idea what you will find. It may be helpful but watch out it may not be. A
cross-examiner is not a gambler. He is also not a fisherman.

4. Always ask leading questions. By asking leading questions you control

the witness. A witness who spins out of control becomes a loose cannon.

5. NEVER, EVER, EVER ask the witness to explain. NEVER. In other

words, NEVER ask the witness WHY or HOW.

6. Reserve your comment or submission for the judge. NEVER, EVER,

EVER for the witness. In other words, do not ask conclusively questions
or questions which demands a conclusion from the witness.

7. Never ask the witness for help such as asking a witness “surely you can
not be certain of the identification, I mean it really was dark, that’s fair,
isn’t it.”

8. Ask only one thing at a time. In other words, avoid a roll up question
lengthy explanation will destroy you, e.g. “it was dark, being night time,
with street lights at the front of the house, and you looking out of the
window into the back garden, isn’t that right?”

One thing at a time e.g.

It was dark?
It was night time?
The street lighting was at the front of the house?
You looked out of the back window?
Isn’t that right?

9. When putting your case, tell the witness he disagrees with it.

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10. Bounce for confrontation – Bounce is about bending perception when
you bounce for confrontation you subtly get the witness to agree with the
suggestion embedded in your question.

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FINAL ADDRESS

In a final address, it is important to master the facts of your case and that of your
opponent. You will do a lot of disservice to your client when you fail to master the
facts of the case. And mastering of the facts includes both oral and documentary
evidence.

Thereafter you get decided authority on the issue for determination. If I may share
my personal experience with you, my principal, Chief J.O. Sadoh used to tell us
that the time to prepare your final address is when you are settling your pleadings
in a civil matter or when you are drafting your charge or preparing your defence in
a criminal one.

It helps you to prepare your case against the backdrop of the law and not the other
way round.

CONCLUSION

In conclusion, it is important to bear in mind that litigation is not a matter of

planting mines to deceive the opponent with a view to destroying his case inlimine.

On the contrary, litigation is a process where the parties set out their cases frankly
and fully for the determination of the court. A tricky and miserly prosecution of a
client’s case is not part of good advocacy28.

THANK YOU FOR LISTENING.

CHIEF FERDINAND OSHIOKE ORBIH

21
1. Blacks Law Dictionary (7th Edition) page 889
2. Legal Essays in Tribute to Orrin Cape McMurray 513 at 515
3. Blacks Law Dictionary (7th Edition) page 56
4. The Discipline of Law by Lord Denning
5. The Devil’s Advocate – A Short Polemic on how to be seriously Good in
Court by Iain Morley QC
6. The Discipline of Law by Lord Denning
7. The Discipline of Law by Lord Denning
8. The Discipline of Law by Lord Denning
9. The Discipline of Law by Lord Denning page 6 -7
10. (2007) All FWLR Pt. 368, page 1016 at 1025 – 1027 paragraph G-B;
1028 – 1029 paragraph G-L
11. (2007) All FWLR Pt. 382, page 1923 at 1928 paragraph G-E
12. The Devil’s Advocate by Iain Morley QC page 77
13. The Devil’s Advocate by Iain Morley QC page 94 – 101
14. The Devil’s Advocate by Iain Morley QC page 36
15. The Discipline of Law by Lord Denning
16. (2007) 4 NWLR (Pt. 1024) page 341 at 369 paragraph D – H; page 373 –
374 paragraph F – C
17. (2007) All FWLR (Pt. 376) page 746 at 760 paragraph C – G
18. (2007) All FWLR (Pt. 390) page 1380 at 1403 page F – H; see also
(2007) 7SC 1
19. (2007) 7 NWLR (Pt. 10430) page 466 at 503
20. (2009) NPELR – SC 348
21. (2007) Vol. 4 WRN (105) at 149 lines 20 – 40
22. The Devil’s Advocate by Iain Morley QC page 136 – 139
23. 12th Edition paragraph 1592
24. (1991) 2 NWLR (Pt. 175) page 578 at 588
25. (2001) 7 NWLR (Pt. 713) page 695 at 713
26. See the following cases
(a) Akinwunmi v. Idowu (1980) 3-4 SC 108
(b) Bello v. Eweka (1981) 1 SC 101
(c) NTA and Sons v. EHA (1991) 8 NWLR (Pt. 209) page 295 at 393
(d) Omoregbe v. Lawani (1980) 3 – 4 SC 108
27. At pages 153 – 170
28. See Newswatch Communications Ltd. v. Alta

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