November 30, 2022

I believe God to be all wise. No wonder She necessarily forbids somethings. One abomination in particular stands out for the lawyer – he shouldn’t know all the law. Like I said, God forbids it. Yes, she does. How do I know? Lord Denning the veritable high priest of law said it, who am I to disbelieve him?

But isn’t it almost blasphemous to say that a lawyer shouldn’t know all the law? Think it through; it arguably does sound blasphemous. However, I have only emphasized a part of Lord Denning’s statement. The remainder is – he should know where to find it.

Put both together and the entire statement reads – God forbid that a Lawyer knows all the law, but he should know where to find it.

God’s forbidding as communicated to us by Lord Denning is rather instructive. This writer has found it relevant in many aspects of litigation practice and legal practice in general. Hence this piece.

While prosecuting or defending an action in court, I have oft found out that before concluding on the hopelessness of an intended course of action or argument in any case or even the likelihood of success in a case, it is wise to keep in tune with the face of the law on the subject matter. To put that differently, a periodic review of the facts of a case in the light of the changing face of the law, could make the day of judgment rather euphoric. So, while looking at the case as it progresses to the final address stage, it would be important to keep asking; are judicial outcomes (case law) on similar set of facts changing?

Let me say all you have just read more elaborately;  

A recent Court of Appeal or better still a Supreme Court authority that departs from the previous stream of judicial decisions could be a formidable addition to any Lawyer’s available arsenal for a client’s case. And this piece of weaponry could come in the nick of time.

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Let me give an example. A while ago, we knew the judgment Debtor to be a meddlesome interloper. The Courts confirmed this. He could only stare during garnishee proceedings. Even if he sneezed, that sound would be inaudible to the Court. Thus, where he filed a motion which the Court called it absurd; U.B.A Plc v Ekanem (2010)

But the Courts have now removed the invisibility cloak from the Judgment Debtor. Now, he can be seen, heard and even do what was previously considered absurd at the Court registry – he can file processes. The law has now chosen to hear his sneezes and agitations during the course of the garnishee proceedings.

We can find yet another example in garnishee proceedings still. Let’s raise the bone of contention as an issue. The issue is – can garnishee proceedings continue even with a pending motion for stay of execution in respect of the same judgment sought to be enforced by the garnishee proceedings? Put differently, should garnishee proceedings continue when a motion for stay of execution is pending? Doesn’t the court lose all vires 0r jurisdiction to continue hearing garnishee proceedings when a motion for stay of execution predates the initiation of the garnishee proceedings?

A stream of judicial authorities maintain that the pendency of a motion for stay of execution automatically delves a suffocating blow to the possibility of garnishee proceedings continuing before the Court. Put differently, a party cannot execute a judgment by way of garnishee proceedings where there is a pending application for stay of execution. The cases of F.I.B Plc v Effiong (2010) 16 NWLR Pt 1218 P 199, Nigerian Breweries Ltd v Dumuje (2016) 8 NWLR (Pt 1515) Pt 1515 P 536 support this position.

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There are authorities to the contrary of this position as well. The contrary authorities are; KEDO Plc v Sintilawa (2021) LPELR-56707(CA), I.B.W.A. Ltd v Pavex Int Co Ltd (2000) 7 NWLR (Pt 663) P 105, Purification Tech. (Nig) Ltd v A.G. Lagos State (2004) 9 NWLR (Pt 879) 665.

Moving away from garnishee proceedings, another example comes to mind as well. It is in relation to witness depositions on oath as they are called and widely used in High Courts across the Country. There is the often-innocuous question asked under cross examination in respect of these depositions. Some Judges are known to disallow this particular question for the reason that it does not touch on the live issues before the Court. This is arguably true – though there is a counter argument that bears much weight as well. The question is this – “You signed your witness deposition in your Lawyer’s office?”. The truthful witness may say a damaging “yes” in response.

Simple question. A very simple one in-fact. One might even ask – why bother ask it at all? Buhari v INEC (2008) holds the answer. Relying on Buhari’s case (Supra), the Court of Appeal has held in Aliyu v Bukali (2019) LPELR 46513 CA that such witness depositions that are signed in a Lawyer’s office are incompetent, inadmissible and liable to be expunged by the Court. See also; BUBA & ANOR v. MAHMUD & ANOR (2020) LPELR-51404(CA) and Erokwu & Anor Vs Erokwu (2016) LPELR – 41515 CA on this issue.

May our examples not take us off the point being driven at which is – A recent Court of Appeal or better still a Supreme Court authority that departs from the previous stream of judicial decisions could be a formidable addition to any Lawyer’s available arsenal for a client’s case.

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Most times, it is not the bench turning the stream of judicial reasoning and case law in a different direction. It could in fact be a repeal of one law and enactment of another. Or even still, deliberate legislative action that is targeted at tacitly overruling applicable Case Law.

In fact, the gist of most of what I have said is; what you suspect the law to be might in fact not be the position of the law anymore. And if this change in the direction of the law comes from an appellate Court, happy are ye. I am currently unaware of any principle of law to the effect that recently decided cases at higher courts do not apply to ongoing cases at lower Courts where the proceedings in the later where ongoing before the higher court’s decision. So, stare decisis can actually favorably work in the most unlikely of situations and thus, change the litigation strategy or metrics of a case.

In the end, Litigation Lawyers (and indeed all Lawyers) are in a read-and-keep-reading-or-sink-situation.

I end with the words of the Learned Jurist; Niki Tobi JSC in Abubakar v Yar’Adua (2008) 19 NWLR Pt 1120 at Pg 141 “…I must confess that none of the cases cited by learned Senior Advocate in the briefs was known by me when I decided Inakoju. I do not know all the law…it is possible that I am wrong.”

If Niki-Tobi didn’t did it, I didn’t did it.

Nkobowo Frederick LLB

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