If we were to rename the title for this piece, we would phrase the alternative or new title as a question. And that question would be; why do you go blank when asked to prepare a final address?

Yes, we will be answering this question in an almost not too boring but very detailed fashion.

Now let’s introduce our discussion;

To start this conversation, it is necessary to state that the jury is still out on what exactly writing is. That is – is writing a skill or a talent? The talent camp believe that writing is inborn. Put differently, people are able to write and write well as a matter of talent- and you either have this talent or you don’t. Case closed. The opposing ‘Camp skill’ believe that writing is a skill which means it can be learnt and improved upon.

We have since decamped to the second school of thought or group. It should therefore not surprise you when we argue that anyone who can talk, can write. Now, everyone may not be able to create beautiful prose or imagery like the John Grishams or Dan Browns but they can definitely express themselves in writing. That’s just our position for now. If the political tides change, we might decamp to a further and better school of thought.

But in this piece, we are not concerned with writing generally. We are rather concerned with that near spine-breaking duty of having to write a final address from start to finish. Even so, we think it is a skill and can be learned.

With that background laid, let’s dive in further.

Note: Sample of Final Written Addresses in Nigeria (in Part 3 of this article)

We just can’t skip mentioning that we’ve included two sample written addresses from actual matters at the end of this piece for your use. Care has been taken to eliminate a lot of the PIIs in the addresses but we are totally confident that they will be helpful.

Notable Quote

The judge does not possess the luxury of time for leisurely, detached meditation. You’d better sell the sizzle as soon as possible; the steak can wait. —Former Third Circuit Chief Judge Ruggero Aldisert

Selling the sizzle from the start should be every advocate’s goal. And Judge Aldisert’s food metaphor is apt: nothing in advocacy is more satisfying than reducing a dispute and its resolution to their essence, almost as if you were preparing a rich sauce.

Source: Point Made written by Ross Guberman

What is a Final Written Address?

Final Address has been defined as a document intended for the court which summarizes the relevant facts, the law and a proposed analysis of a case, on behalf of a litigant.[1] In in the case of Kalu vs. State (2017) LPELR-42101(SC), the Supreme Court of Nigeria, defined final address in these words: “final address means the last or ultimate speech or submission made to the Court in respect of a matter before it, before the delivery of Judgment.”

The long and short of it is that – a final address is really written speech intended to persuade the Court.  We will return to this point much later in this piece.

How to Prepare a Final Written Address without Fainting

Most times, while carrying on the discuss in this piece, we will approach the issues from the eyes or angle of a Defense Counsel. At other times, we will wear the hat of a Claimant’s Counsel. Please note when we switch hats. Also, many of the suggestions made herein can be transposed and applied to Criminal trials but with due consideration of the peculiarities that accord criminal trials. And as mentioned earlier, sample written addresses are included at the end of the piece for your aid/use.

That said, the steps that would best help you prepare your next final address are listed and discussed in detail below;

  • Read the Record of Proceedings (the record):
  • This is really the first step. Let’s call it the genesis of the whole affair. You can even choose to call it your dating period with the final address even though it is yet to physically ‘manifest’ before you. And so, we repeat, read the record. Reading the record is important because the determination of the case or charge by the Judge will ultimately be guided by the content of the record of proceedings. Put differently, it is expected that the Judge’s decision will be based on the pleadings (or charge in criminal trials), evidence led (including the demeanor of the witnesses) and law applicable to facts of the case.  This means, you really cannot go outside what has happened at trial to manufacture or invent what may favor your case or client. In essence, you are stuck with the record of proceedings and what happened at the trial, unless of course there is a de-novo trial. So? Read the record of proceedings.
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More importantly, while reading the record of proceedings, we suggest you look out for these crucial points (We have taken the liberty to phrase them as questions as well. If other questions come to your mind, please don’t dismiss them):

  • The Adverse Party’s StoryWhat exactly is the Claimant’s (or Prosecution’s) story? What did he say and what did he not say: You will find the Claimant’s story in his pleadings (and the evidence he has adduced before the Court). In Criminal trials, you should look at the charge and the evidence adduced by the Prosecution or Defendant’s witnesses. Knowing exactly what the Claimant’s story is and comparing that story with the Defendant’s will help you determine some crucial points such as; what facts have been admitted in the pleadings (and so don’t require proof), what facts are in issue (and thus require proof), who bears the burden of proof of the facts in issue and was this burden discharged sufficiently or at all?
  • What the Adverse Party was able to proveOf the many things the Claimant said, was he able to prove all the facts, any of the facts or the most crucial facts? : This is the next question that you should be subtly seeking an answer to while you read through the record. Because of this question, we are back to the issue of proof. Generally, it is usually easy to just talk. It is even far easier now that evidence in chief in most proceedings is typed and filed as a witness statement on oath. Merely talking and proving what has been said can be two different things and proof is where the headache sets in. This is why witnesses contradict themselves under cross examination. So, what facts have the Claimant or Prosecution been able to prove exactly? It is noteworthy that in criminal cases, the burden of proof lies on the Prosecution. In civil cases, the burden of establishing the case (the legal burden) lies with the Claimant while the burden of adducing evidence (the evidential burden) oscillates or moves between the Claimant and Defendant as the case progresses.
  • This issue of burden of proof is particularly important. But let’s draw your attention to a small detail. In civil matters, the general rule is that he who asserts must prove. But there is arguably an exception to this rule that is often neglected. The rule and the exception is this – the burden of proving a fact rest on the party who asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof. In effect, where the Claimant asserts the negative of the issue, he may not bear the burden of proving it. We say ‘may not’ because he (the Claimant) might assert the negative of the issues and still bear the burden of proof – see these cases for further elucidation on the point – DASHE & ORS v. DURVEN & ORS (2019) LPELR-48887(CA), UGIAGBE v. ODEH & ANOR (2022) LPELR-57136(CA).
  • Apart from the issue of the burden of proof, we should not forget the issue of standard of proof. The Claimant may have adduced evidence in support of his claims (or story) since he bears the burden of proof but does the evidence satisfy or meet the standard required by the law? Just for purposes of refreshing memory, the standard of proof in civil cases is proof on the balance of probabilities. Meanwhile, the standard of proof required for criminal allegations made in a civil suit is proof beyond reasonable doubt. Similarly the standard of proof in Criminal cases is proof beyond reasonable doubt. We will return to this issue of burden and standard of proof when we speak to making the arguments in your address.
To do List

Your Ultimate To-Do List

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For now, let’s zoom out a bit and tell you why we have gotten here or made the foregoing suggestions. With the crucial points that we have suggested that you consider so far while reading the record, the central line of action we are (and you should end up) driving at is this (you can call it your ‘ultimate to do list’) –

  1. You would need to have a firm comprehension of what your case is vis a vis that of the adverse party. This firm comprehension would have to include what each side is to prove to succeed. We will talk more on this subsequently as well.
  2. You would need to form an opinion as to who bears the burden of proof and whether or not the party has proved his case (i.e. discharged the burden of proof) to the tilt required by the law (i.e. to the standard of proof). The opinion you form on this should be based on the record.
  3. You will need to justify your opinion in number 2 above from the record and
  4. You will need to consider how you intend convincing the judge (in your written address) to agree with your opinion.

After executing your ultimate to do list, you will arrive at the core of your final address. This core will be what you will end up speaking to the Court on which is this – why should the Court grant my reliefs (as the Claimant) or why should the Court refuse the Claimant’s reliefs (as Defendant)? In a criminal trial, the central question would be – why should the court discharge and acquit the Defendant? (as the Defense) or why should the Court convict the Defendant? (as the Prosecution)

Now let’s pick up things from the last crucial point we suggested which is – What the adverse party was able to prove. In seeking to find a resolution to this point, a number of further and better questions will arise. Pardon our many questions but tag along. Now we get to asking them –

How did the Claimant attempt to prove his assertions?

This question can arguably be subsumed in the last question but we chose to separate it to avoid a bulky discuss under one subheading. Besides while answering the last question, only your opinion (as to whether or not you were convinced by the adverse party’s case) might have been a relevant answer. But in this part, you would have interrogate the evidence presented in support of the other party’s case more deeply. So, you will need to consider or ask some ‘deep questions’ such as;

  • Did the adverse party rely on any documents?
  • If he did, are the documents admissible in law?
  • If they are not, were they timely objected to? (Timely objections count a whole lot – please see the case of; Salau Okulade v Abolade Alade and Alimi v Obawole (1998) 6 NWLR (Pt 555) 591 at 607.)
  • Even if they were admitted, do they support his case?
  • Do they have the interpretation he is seeking to give them in the suit?
  • Also, even if they have been admitted, do the documents have any probative value? For example, in most instances, a newspaper publication that has been tendered and admitted in evidence might still not be sufficient to prove a party’s case. This is because newspaper reports have been consistently held to be hearsay by virtue of Section 37 of the Evidence Act; please see LAWRENCE v. OLUGBEMI & ORS (2018) LPELR-45966(CA).
  • Did the Claimant attempt proof by his mere words (ipse dixit) and was such sufficient in the circumstances of the case? As as an aside, on this point, please recall the dictum of Oputa JSC in DEBS & ORS v. CENICO (NIG) LTD (1986) LPELR-934(SC). The Learned Jurist said; “…ipse dixit literally means he himself said it. It is thus a bare assertion resting on the authority of an individual. There can be no question that a “mere ipse dixit” is admissible evidence but it is evidence resting on the assertion of the one who made it. Where there is need for further proof “a mere ipse dixit” may not be enough.” (Pp 12 – 12 Paras C – D)
  • If he attempted proof by his mere words, was he sufficiently shaken or discredited under cross examination?
  • Is there any reason for the Court to believe that he is not a witness of truth? That is was the witness convincing and believable? – See Bello v. FRN (2019) 2 NWLR (Pt. 1656) 193 @ 203 (D – E)
  • What material issues in dispute were not questioned or tested under cross examination by the adverse party? This is important and could form the basis of your submissions in your address. This is because the law is that the effect of failure to cross examine a witness on a vital issue is that the person against whom the evidence is given is deemed to have admitted the correctness of the evidence. – See SANI v. STATE (2020) LPELR-50436(CA)
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Clearly the questions above will get you into some deep thoughts and analysis of the adverse party’s case. This is necessary to enable you see the case from all possible angles and appropriately put thoughts to paper in your address. It will also help you arrive at what thoughts to put down in your address.

It is important to mention here that on this question of how the Claimant sought to prove his assertions, the ball is usually more in the Claimant’s court than in the Defendant’s. What do we mean by that? The Law is clear that the Claimant is to succeed on the strength of his case and not on the weakness of the Defendant’s case unless…Unless there are portions of weaknesses in the Defendant’s case that supports the Claimant’s case. Also, if the Claimant has asserted the negative of the issues in dispute, it is arguable that the ball is not in his Court – UGIAGBE v. ODEH & ANOR (2022) LPELR-57136(CA).

What we are trying to make clear here is this, rather than bother more on how the Defendant attempted to prove his case, a Claimant would ideally need to be more concerned about how he (the Claimant) proved his case. This concern would need to reflect in the written address. Well, the Claimant can rely on the portions of the Defendant’s case that supports his. But it may be a defeatist strategy to focus only on the weaknesses in the Defendant’s case without any reference whatsoever to how his (the Claimant’s) case was successfully proved.

Similar position applies to a Prosecutor (many times). The central consideration therefore at the point of final address shouldn’t be how the Defendant proved that he didn’t commit the crime. That would be tasking the Defendant with the burden of proving his innocence which the law still frowns at. The central consideration for the Prosecution should be the crime alleged has been proved by credible and cogent evidence.

This brings us back again to the core of your final address which we mentioned earlier. The one that we said we have been and your address will ultimately have to drive towards which is – why should the Court grant my reliefs (as the Claimant) or why should the Court refuse the Claimant’s reliefs (as Defendant)? In a criminal trial, the central question would be – why should the court discharge and acquit the Defendant? (as the Defense) or why should the Court convict the Defendant? (as the Prosecution).

Reading the record with a fine comb to find out the answers to the questions we have suggested is just the first step in the process. We will discuss the next step and more in Part 2. This Part is already a twelve-minute read. Let’s not talk (or type) any further. But remember that everything we have stated here will come in handy in the long run of things.

Written by Nkobowo Frederick Nkobowo LLB

“Every writer I know has trouble writing.”

~ Joseph Heller

[1] Re-Adoption Of Final Written Addresses Does Not Re-Open Or Re-Activate The Time Within Which Judgement Is To Be Delivered. By O.G. Ogbom, Esq published on thenigerialawyer website. .