Garnishee proceedings is one of the ways of enforcing money judgments in Nigeria. The nature of the garnishee proceedings is as prescribed in Section 83 to 92 of the Sheriffs and Civil Process Act.  The procedure allows the judgment creditor to reap the fruits of the judgment by recovering debts owed by third parties to the judgment debtor. The garnishees are in some cases banks and the debts are usually the monies in the account of the judgment debtor domiciled in the banks. Although garnishee proceedings are usually an offshoot of judgments, the proceedings are in a class of its own. A garnishee proceedings is instituted by a person who has obtained judgment in its favour. The essence of the proceedings is to ask the court to compel a third party in possession of funds belonging to the judgment debtor to give up such funds to the person who has obtained the judgment, that is, the judgment creditor.

Parties to Garnishee Proceedings

  1. The Judgment Creditor: This is the party who has emerged victorious in a case and has obtained the judgment of court in that regard. The judgment creditor is usually the successful litigant who has now instituted garnishee proceedings to reap the fruits of the judgment.
  • The Judgment Debtor: The Judgment Debtor is the unsuccessful party at the end of a litigation. It is the party against whom judgment has been delivered. By reason of the judgment against him, he is indebted to the judgment creditor.
  • The Garnishee: This is the third party who is in possession of funds belonging to the judgment debtor. Typically, garnishees are banks. However, garnishees can be employees, employers etc. The important factor that qualifies an individual or organization to be a garnishee is that individual’s or organization’s possession of funds belonging to the judgment debtor.

Procedure for Garnishee Proceedings in Nigeria

Step 1:

Obtain a judgment of court: Garnishee proceedings are predicated on a judgment of court. Thus, the judgment creditor will need to obtain the Certified True Copy (CTC) of the judgment. The CTC will be relevant for the next procedural step.

Step 2:

Prepare and file an application to the court for the grant of a Garnishee Order Nisi. The application is usually a motion ex parte with a supporting affidavit. The CTC of the judgment has to be attached to the supporting affidavit as an exhibit. If the rules of court of your state of jurisdiction requires, you can accompany the motion with a written address.

Step 3:

Appear in court on the stipulated date and move your application.  Once the court is satisfied with the facts supporting your application, the Garnishee Order Nisi will be granted.

Step 4:

Once the Order Nisi is made, approach the registrar of court to draw up the order for service on the garnishees. Obtain the enrolled order and effect service of the same on the garnishees and the judgment debtor. Once the garnishees are served with the order, they will appear, as mandated by the order, to explain why the order should not be made absolute against them. They would do that by filing what is called an “Affidavit to Show Cause”.

Step 5:

On the next adjourned date, the Garnishees will appear in court to show cause. The Judgment Creditor’s lawyer will apply to the court to discharge the garnishees who have shown that they are not in possession of the judgment debtor’s funds. It is usually an oral application. Then, the lawyer can proceed to orally apply to the court to make the Garnishee Order Absolute against the garnishees who have disclosed being in possession of the judgment debtor’s funds. The Order Absolute directs the garnishees to pay the money belonging to the judgment debtor to the judgment creditor.

Step 6: Draft a demand letter and attach the enrolled order Absolute. Dispatch the demand letter and its attachment to the garnishees.

Written by Queen Charles Ukpo ESQ

Garnishee proceedings is one of the ways of enforcing money judgments in Nigeria. The nature of the garnishee proceedings is as prescribed in Section 83 to 92 of the Sheriffs and Civil Process Act.  The procedure allows the judgment creditor to reap the fruits of the judgment by recovering debts owed by third parties to the judgment debtor. The garnishees

MY EXPERIENCE

I began my advocacy journey while in my first year with participation in webinars, workshops and seminars on learning the rudiments of advocacy and what it takes for one to thrive in it. Basically, as at then, I had keen interest in Litigation (even till now, my interest is not as intense as it used to be. Lol). Consequently, I dedicated my full time to committing myself to great learning of what advocacy (participation in moot and mock competitions) entails. While as a fresher, I was drafted into a chamber (out rightly the best chamber in my faculty at the moment) where I could learn more about advocacy, participate directly in moot and mock competitions and enjoy the leverage to perfect any craft in me. I was directly coached and trained by my seniors who showed me the way to get things done – precisely what it takes to thrive in it. I was thirsty for knowledge and eager to learn everything it takes but I later figured out the learning is a gradual process as it never stops.

I was well coached and was given the necessary exposure to the life in advocacy. I was made to realize that full commitment to this new life would preclude me from access to every social life a student on campus would wish to enjoy. But I settled within myself that since I am on an academic journey, I need not bother about social life as such – very hard to conclude as I am a social type, I just had to accept things that way.

In my first year, I participated in my first moot competition within my faculty when I led my team from my chamber through intense preliminary rounds to the semi finals before I faced a seemingly tougher team. Lol. At every stage, I always learned new things. Most importantly, the role of ‘confidence’ and ‘delivery’ in oral advocacy. I did not stop there, I went back to my drawing board to catch more glimpse of what I still needed to learn, meet up with more senior colleagues within the faculty and outside the school, attended more webinars, and watched keenly the court appearance of senior colleagues.

Then in my second year, I was more eager to put everything I have learnt and observed into practice. I participated in another moot competition in the first semester of my second year, led my team again and emerged best counsel in two consecutive preliminary rounds of the competition. While this is not to tooth my horn but I would say the best counsel awards gave me more recognition beyond my chamber, to the entire faculty as a whole.

However, I knew I still needed more things to learn as I was not satisfied with my records. So I did not get relaxed but rather thirsty to learn more. I sought more knowledge from new moot tutors.

Suffice it here to say that my great thirst in advocacy was firstly spurred while I was a law aspirant by the sterling records of my seniors who have gone ahead of me. I read their stories online and I was wowed by their feats, how much they have achieved and how far they had gone. I was ready to take up the mantle upon my resumption and give my own best. I was not so sure where my best would lead me to, but I was certain my best would lead me somewhere – I can not learn and practice so hard and not get a giant leap, was my full conviction. Upon resumption, I heard directly from my seniors a more elaborate story of the great successes the seniors who had gone far ahead made during their undergraduate days. I was motivated by all these and was ready to give my own best.

In the early period of the second semester of my second year, I participated in another moot competition where my team made it to the finals and I was once again awarded the best counsel of the final round. The moments are still fresh in memory but the records was not enough, after all, man is insatiable. Lol. I made all these participations while lectures were ongoing. I know you would care to know how it was balancing these extra curricular activities with my class lectures and academics. It has not been so easy thus far balancing it out but i cannot rule out the place of passion. Before I took up the mantle, I was ready for everything it would take and was ready to ensure my academics does not suffer from my keen participation. And anywhere issue arises, I was always prepared to correct the anomaly – everything banks on readiness, if there is a will, there must be a way.

My greatest participation in Moot and Mock Competitions took place during the prolonged strike. Before I committed myself to further participation in this competition, I decided to intern in a leading litigation firm in my state where I was further exposed to rules of court, drafting of court processes, court languages, considerable appreciation of court procedures, development of legal research skills and so much more. After learning a significant amount of all these, I rounded off my internship and travelled down to my school for preparation for national competitions. I proceeded for my first national competition in Delta State alongside one of my senior colleagues where we were listed among the schools with the best court appearances and we were therefore awarded plaques, laurels and cash prizes which we took down to our faculty.  I represented the faculty in more national competitions before the strike ended and it all ended in good notes with great recognition of the oratory skills I and my teammates displayed.

While you would right now feel I have done much, I was yet unsatisfied that I have done little and there was still much to learn. It imperative to state that my participation in national competitions got me exposed to many other new things as regards advocacy (moot and mock competitions), competing with other brilliant and sharp brains from other schools really got me exposed. I made connections with these students, learn from them also and now we all still keep contacts, or even, we are more of close friends now. We share daily tips of more principles of advocacy and discuss career plans. The exposure has been great and really helpful.

During the days I had intensive learning about what advocacy entails, I decided to watch YouTube videos of moot appearances of law students from different parts of the world. I was intrigued by the level the oratory and drafting skills have taken some students to or out rightly how far they had gone, traveling to top countries across the world for participation in moot competitions.  I believed this rare feat can be achieved only if I keep learning and practicing. Thus, early this year, I decided to participate or show interest in an international law moot competition. It is the most prestigious and biggest moot court competition for law students across the world – The Philip Jessup International Law Moot Court Competition. I was at first reluctant to participate reasons being that I was still in my third year and was yet to offer international law. However, I had to abandon my worries because after all, the moot competitions I have all participated in, the subject matter of the facts have most time been on areas of law I have not been lectured on. They are things I always have to study myself.

As a result of this, I started drafting my arguments and practicing for the Jessup Competition. I represented my school alongside a senior colleague in the competition. We are paired against top schools in Nigeria from the preliminary rounds to the semi finals and finals of the competition. We made it to the finals of the competition and during the Judges’ pronouncement (after the round), we were announced as the winner of the competition having beaten our opponent with over 20 marks gap. We were thereafter informed that our victory has earned us a pride of place and a rare feat to represent our country in the international round of the competition in Washington D.C, United States of America where we will be competing with top schools from all over the world. It sounded surreal to me. I was finding it hard to put my thoughts right, align my reasoning and bring myself out of sudden shock the information subjected me to. Immediately, I created in my head a picture of what my traveling to the United States could look like. I found myself in-between myriads of thoughts; did I just make it to travel out to the United States? Of all countries, why United States? Will I really be getting the most reputable United States Visa? These thoughts and more left me puzzled that till now I cannot explain rightly how I felt when the information came.

With the necessary supports from my school, in the month of April, I and my teammates made our way to the United States. Unbelievable right? (It is still a moment that would take a full day or more to share). I was thus made to represent my school and my country at large in the United States in the international round of the Philip Jessup Competition. My team and I competed with other brilliant minds from top schools in the world; Harvard University, Oxford, Cambridge, Yale, Columbia law school, King’s College, Amsterdam University etc (over 138 schools in the world). The competition was really intense with great exposure to many things, connections with sharp and brilliant minds (law students) and with distinguished and top legal professionals in the world, with reputable law firms legal experts like White and Case LLP lawyers, among others.

Resoundingly, you would by now feel I have achieved much more than before. However, i still feel this is little and will not stop learning. I think this just open the floodgate to look into the bigger picture of what hard work and consistency can bring. Thus, since I am human – quite insatiable, I will not stop learning and practicing. This is beginning of another chapter!

Benefits of Participating in Moot Competitions – Why a Law Student Should Take it Seriously.

The benefits of participating in moot competitions is numerous and not exhaustive. The more you participate in competitions, the more you figure out the benefits that accrues to you via your participation.

Foremost, participating in advocacy competitions builds your confidence and sharpen your oratory skills. It kills your stage fright. Ordinarily, there is hardly a place, podium, or even before a large crowd that you would not be able to speak. This participation would make you have a full control of any stage as if the world is your oyster.

Also, the participation will expose you to different areas of the legal profession aside what you are being taught within the four walls of your classroom. It even makes you see in practice the theoretical principles you are being taught in class.

Furthermore, the experience you get from moot activities do go a long way in smoothing your paths most especially when you are trying to find a niche for yourself in the legal profession to specialize in. You just cannot tell where you would get to (with moot activity) that would cause a huge impact or  contribute immensely to your knowledge of law or general knowledge about the legal profession.

In addition, moot and mock competitions is the best extracurricular activity a law student can engage himself or herself in. In fact, I out rightly believe that moot and mock competitions should not be best regarded as ‘extracurricular activity’. This is because moot and mock activities have its way of contributing to academic performance in class – you just have to be smart and know when to apply some things.

Having said all these, it is imperative for me to reiterate that my experience thus far as a moot and mock enthusiast has been an interesting, educating and a worthwhile venture. And that the benefits that accrues from participation is expansive, limitless and awesome.

Written by Oluboyo Taiwo LLB (in view)

MY EXPERIENCE I began my advocacy journey while in my first year with participation in webinars, workshops and seminars on learning the rudiments of advocacy and what it takes for one to thrive in it. Basically, as at then, I had keen interest in Litigation (even till now, my interest is not as intense as it used to be. Lol).

Maybe the Judge is Idan or maybe Idan is the Judge. Strange notion, but quite a possibility if you consider all the possibilities. Idan is a slang that recently got popular on social media streets in Nigeria a few weeks back. It means magic or charming.

But how can Idan and Judge share neighboring boundaries in a sentence?

Judges represent an ideal. We look at them expecting and in fact hoping that they represent what is fair, just, equitable, right and proper to the best of their human abilities. We go before them with disputes, expecting that we will get a sufficient grasp of what justice means and what it entails. We expect that they play by the rules with the sub-conscious notion that we have chosen the best of brains to make those rules. Well sometimes, we don’t do the later. But the point is – we expect Judges to be just.

Justice in itself is quite a difficult notion to define. What notion in law is actually easy to define? Even law itself isn’t easy to define. But back to the thought, the Judge is both the embodiment of an ideal and the expectation that that ideal holds through. I might be tempted to submit here that the Judge is Idan. Or maybe not on this score alone.

Judges in fact can and most times indeed do change the face of the law governing the relations in society. In interpreting the law, they arrive at that contestable concept of Judge made law. Lord Denning is an apt example of this. Also, various United Supreme Court decisions within the jim crow (and civil rights) era equally demonstrate this position. The Bench (and the judiciary as a system) mid-wives more societal progress and change that we might actually consider.

In fact, if I may veer off into some egoistic adoration for my profession, the legal profession affects the economy and prosperity of nations to a large degree. That is why the Judge is Idan. Let me give an example here – Judges get to decide on contractual and business relations. Businesses often move towards jurisdictions that have an efficient judicial or dispute resolution system. One that is sensitive to commercial concerns in terms of the speed of resolving disputes. So the Judge in his work as Idan controls more than the jaw-splitting arguments in his courtroom, businesses consider the efficiency of his work to determine whether to set up shop within his judicial division (or miles away from it).

But Maybe the Judge is not Idan because he is bound by rules. He is not expected to act arbitrarily. To this I ask – are rules tools in his arsenal or clutches on his heels? Indeed, there is need for certainty in the law (hence we follow our ancestors by that principle we call stare-decisis) but cases are not decided in vacuo, perculiar and distinguishing elements must be noted. Thank goodness we have exceptions to general rules and the other closely related principle or may I say escape route called per incuriam.

Also law must and does change. Many times it must catch up with societal progress – to regulate that progress (if you must) and prevent the abuse of the privileges and opportunities that come with that progress. Speak of AI, blockchain and big data – certainly the law must dine with these new issues. And when the law does dine, our Idan would surely have a chuck of meaty issues to decide or preside over from that dinner table. So maybe the Judge is Idan and Idan is the Judge. 

Last and evolving example – presidential elections were conducted this year in Nigeria. These elections were conducted within the framework of a new electoral law. A portion of 200 million Nigerians voted. A President who has hit the ground running has been sworn in but election petitions have been filed. The Idans are about to vote. They will determine what the electoral law (and the legislative framework) under which the elections were conducted actually mean and whatever the Supreme Court says stays. At least for the next four years. The Judge is Idan. Idan is the Judge.

Written by Nkobowo Frederick Nkobowo ESQ

Maybe the Judge is Idan or maybe Idan is the Judge. Strange notion, but quite a possibility if you consider all the possibilities. Idan is a slang that recently got popular on social media streets in Nigeria a few weeks back. It means magic or charming. But how can Idan and Judge share neighboring boundaries in a sentence? Judges represent

For many of us, being called to the Nigerian bar was a crowning moment. The cheers, the high necks of our proud fathers and the floating shoulder pads of our even prouder mothers when they attended that graceful ceremony would likely still be very vivid for us. Six years of study was rewarded by our official circumcision into the largest bar in Africa as Barristers and Solicitors of the Supreme Court of Nigeria. In effect, that day we justified all the ‘the Bar, the bar’, our friends and well-wishers hailed us as earlier.

But the reality for the majority of new lawyers (new wigs) is that legal practice in Nigeria (especially litigation practice in a solo man firm) would send initial shockers down your spine. After the dopamine of the call to bar ceremony wears off, real life as a young lawyer in Nigeria begins.

A number of young lawyers have the good fortune of getting into the top-tier law firms at the earliest opportunity in their careers and this totally changes the trajectories they travel and opportunities they become exposed to. But not everyone will or can get into a top-tier law firm in Nigeria. And this is largely because the top tiers can’t hold the about 5,000 new wigs sent into the legal services market every year.

So, in real sense, many young lawyers have and will see various forms of shege. Pardon my nomenclature (the shege) please. It is just the current reality on ground. And this reality has caused a number of young lawyers to abandon the profession and rather engage in other endeavors.

However, despite this shege, is the curious position that the young lawyer does not know law or is a bundle of catastrophe waiting to be unleased on an uninformed client. I largely disagree with this position.

With that last sentence, one experience immediately comes to my mind. I started my practice in a solo firm and the first time, I visited my former Boss in chambers, I was welcomed. Mind you, I was not welcomed with a rousing speech that got me all motivated to work. I remember the scenery fairly well and what my Boss said. He said something to the effect that I was comparable to this large wardrobe that was empty (even after graduating from university and Law school) and it was now that the knowledge of the law was going to be stuffed into my head (the wardrobe that is). This was a shocker for me. And to say the least, it was not encouraging.

Expectedly, this perception held by my Boss then reflected in the tasks he routinely gave me. So for the first few months, I was the one assigned to appear in Court for matters that were not going on. The morning of the matter, he would usually brief me as to the excuse for the matter not going on. For some days, I came back with costs, not crushing costs though but for the most part, my applications for adjournments were duly granted. But the point is, I felt that I was not growing per se.

As a green wig, you must concede that you do not have the years of experience the senior lawyer has. But your have a lot of advantages going for you as well. One being your youth and familiarity with tech. The truth however is you have to think it so for yourself and take steps to maximally utilize as many advantages that you discover in your arsenal of practice.

Besides to my mind, being inexperienced is vastly different from being incompetent. And the green wig is not automatically incompetent, after all he has a qualifying certificate that screams otherwise. For whatever it is worth, that certificate should be prima facie evidence of competence.  But as certificates go these days, we really don’t trust them. That aside, the truth is anyone can gather experience, if he diligently seeks to do so. If I should draw an allusion; How do quack lawyers do it and look so real? They simply learn quickly on the job.

Being a green wig therefore puts the young lawyer in the position of a lifelong learner – the same position the Senior Lawyer is in. Many times, there are two things to learn in every work environment namely – how to get things done and how not to get things done. The first limb yields itself to an easy explanation. How not to get things done is simply observing what your current boss isn’t doing optimally when compared to others and learning from others instead. I am not advocating an abandonment of your Boss. No. Rather a comparison of the excellence level of the output he puts forward and the output put forward by others as well.

Why do I think that being a young lawyer isn’t necessarily a disadvantage unless one makes it out to be? I’d give an illustration from my experience as well. So, when I left that my Boss – yes, the one with the wardrobe analogy, I joined another law firm. Another culture shock hit my spine. Over in this new firm, new wigs actually handled matters. I only accompanied a senior to Court once and within a month or two I was sent for a matter slated for cross examination. See me and my village people in Court that day. The entire ocean was even under my legs. To say the least, I was flustered. And the lawyer on the side? He was a senior lawyer of course. But, I knew the facts of the case and our trial strategy. Also, I was mandated to draft cross examination questions and they were reviewed by my senior in chambers. Armed with those questions as well as a few other lessons[1] I proceeded to cross examine the witness successfully. I was barely a year at the bar then.

This brings me to the issue of mentorship as well. There is a whole lot a young lawyer can learn on his own. But there is a whole lot more he can learn from Seniors who he considers to be mentors.

The long and short of this piece is self-evident; being a young lawyer does not equate incompetence and it would never be if you don’t let it. I would have borrowed a few words from Anthony Ekundayo’s Hint on Legal Practice to end this piece, but I think the entire book and all the words therein are best read. So I overcome the temptation to borrow and enjoin any young lawyer reading this to read the book.

Instead, I will send with a few words of mine from my practice journal;

No one is born with the knowledge of law crested on his brain. Even the most admired jurists had no knowledge of law at birth. The bright lights we have seen and will yet see in the sphere of law and legal practice that do all the admirable things we applaud them for, do so with their ‘acquired’ knowledge of law. They simply built key competencies and displayed these acquired competencies to our admiration and adulation. The same can be done by any new wig. After all, from the day of call forward, all ‘wigs’ grow old and not younger. The green wig soon turns yellow and maybe grey and if unattended to, the wig grows bald.

Cheers.

Written by Nkobowo Frederick LLB, BL


[1] Prof Irving’s ten rules of Cross examination – available on youtube and Prof. Yemi Osinbajo’s Cross Examination; the trial Lawyers most potent weapon for the most part.

For many of us, being called to the Nigerian bar was a crowning moment. The cheers, the high necks of our proud fathers and the floating shoulder pads of our even prouder mothers when they attended that graceful ceremony would likely still be very vivid for us. Six years of study was rewarded by our official circumcision into the largest

Hello there!!! In the previous piece I had said that I’ll return soon with another piece, but I delayed. For that, I offer my apologies and have come with a token of appeasement. I hope it meets the purpose.

So, have you ever been given a file and told to prepare cross examination questions? Let’s even go a step further. Have you ever been asked to cross examine an adverse party’s witness? If yes, what informed your choice of questions? Or did you just go ahead to ask questions because of course, in cross examination the sky is your limit? LOL!!!!

Walk with me as we find out what should be on your mind when you set out to draft cross examination questions or conduct cross examination.

Before you begin to draft questions for purpose of conducting cross examination, you should have a purpose. Yes, you should have a purpose for the cross examination of a witness. Ask yourself: what do I want to achieve with the cross examination of this particular witness? I assume that at the point of asking this question, you would have had the facts of your case at your fingertips.

It is important to have a purpose for your cross examination. That’ll inform your choice of questions. For instance, if your purpose for cross examining a particular witness is to discredit that witness so that the court believes less of his/her testimony, then you’ll do well to ask questions that will get the witness to contradict himself/herself. If your purpose is to put forward the case of your client through the cross examination of the witness on the other side, then you’ll need to ask questions that’ll aid the achievement of that.

By the way, you don’t have to wait for the testimony of your witness to put forward the case of your client. As a defendant, you can start putting forward your client’s case through the Claimant’s witness. How do you do that? It’s simple. By asking the Claimant’s witness relevant questions that support the case of your client. Under cross examination, you can get the witness to confirm salient facts of your case. The trick is to ask questions relevant to your case, and to which you know the answers.

Another point to note: mind how you couch/frame your questions. This is to ensure that you elicit desirable answers.

Take this scenario for instance: A witness in his evidence-in-chief states that he has been making payments into an account for the purpose of repaying a loan facility. Then, he goes on to say that the payments made so far have not reflected in the loan account. He then says that he had requested for the statement of account from the Bank but alleges that the Bank refused to issue same to him.

If I’m to cross examine him on the basis of this testimony, what will my purpose be? Well, my purpose would be to discredit him so that the court doesn’t believe his testimony. I’ll do that by asking him this one question (that’s after I’ve laid the foundation with his testimony) to make him contradict himself. Here’s the question:

Q: Witness, you don’t have access to the loan account.

Now, if the witness answers that he doesn’t have access to the account, he would be lying because he cannot claim not to have access to the account and yet know that the payments made are not reflected in the account. That’ll form your argument in your final written address.

On a final note, I’ll say that cross examination is an art. We weren’t taught this art in Law School. But one can always develop the art. A good place to begin is to seek guidance from experienced litigators.

Written by Queen Charles Ukpo ESQ

Hello there!!! In the previous piece I had said that I’ll return soon with another piece, but I delayed. For that, I offer my apologies and have come with a token of appeasement. I hope it meets the purpose. So, have you ever been given a file and told to prepare cross examination questions? Let’s even go a step further.

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.

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.

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.

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

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

Welcome to part 3 (the final part) of this discourse on preparing final written addresses. Just as a recap, we have discussed what your ultimate to do list should be (in part 1), we’ve mentioned that you should frame the issues for consideration (in part 2) and we’ve mentioned some considerations you should sleep or think over while putting thoughts together for preparing your final address (in part 2 as well).

Let’s briefly review the processes we’ve suggested to you so far and continue our discussion from that point

  1. Read the record of proceedings
  2. Frame the entire story/case into a central legal question or the key legal questions (or legal issues) that the Court will be called upon to decide
  3. After reading the record and framing the issues. It might be wise to sleep on or review the evidence adduced and the legal effects of same
  4. Research

After taking the steps we have just listed again above, we now get to the meat of our entire journey which is the actual writing of the final address.

That said; let’s dive right in.

5. Telling your side of the story

Before you begin your writing of the final address, it would be important to ask – was there a preliminary case strategy?

Was there a preliminary case strategy?

Litigation many times boils down to well implemented or poorly implemented strategy for either party. We sure have not forgotten the position that litigation is not a game of hide and seek. Even so, the obvious truth is that justice most times may not be able to aid the party who has failed to do his preliminary work or failed to proof his case as required by law.  This is where trial or case strategy definitely comes in.

On this issue some reminisce comes to mind. My law office represented one of Nigeria’s largest Commercial Banks in a civil suit filed against it by one of its customers. The suit was at the Magistrate Court and the customer’s case was simple. Some withdrawals happened on his account with the Bank but he maintained that he never authorized these withdrawals. At the point of reading the record of proceedings to begin preparing the final address, a better strategy that may have availed us as the Defense came to mind. While giving evidence in chief at the trial, the Plaintiff mentioned the use of moles in the Bank which had the clear implication that fraud had been perpetuated[1]. This mention was actually dead-on arrival for being hearsay (due to the way the Plaintiff mentioned it). However, getting him to link the particular transaction in dispute to fraud on the Bank’s part under cross examination would have been the perfect bait to sink his ship. Once the link was successfully established by his reliable over zealousness to nail the Defendant, we could ask the proverbial Mathias to go home. Why? Because the standard of proof of his case (or most of the allegations in it) would have shifted to proof beyond reasonable doubt. And he clearly won’t have survived such a high standard by the evidence he adduced.  

Another case yet again comes to mind. In this particular case, we were defending a client against one of Nigeria’s oldest commercial Banks. The facts were simple – the Bank said our client was owing it. As the pleadings proclaimed, our client took a loan but never repaid the loan since he diverted the loan for his personal use.

As expected, Our Client said the opposite of what the Claimant Bank asserted. By his narration, he was not owing the Bank a farthing. The Bank got back its money and even overcharged him for the loan.

The case initially seemed like a bleak one for our client. First off, who challenges a Bank’s calculation especially when it comes to money – hard Nairas and soft Kobos. Calculating is what a Bank is supposed to be good at right? Exactly. There you got our strategy! Or at least part of it.

The strategy was arrived at after several reviews of the case and it hung on some missteps in the Claimant’s case. Before we mention the missteps, remember that our starting point for this strategy was that the Claimant had the burden of proving its case. Now the missteps. First, the Claimant sought to prove our client’s indebtedness by relying on a statement of account but it did not comply with Section 84 of the Evidence Act. On the trial day, the Court admitted all documents provisionally and directed that all objections to the admissibility of the documents be raised at the point of final address. Once we raised it at final address, the statement of account was expunged from evidence in the Court’s judgment. So, the main stratum of the Claimant’s case was dislodged.

Second, Section 51 of the Evidence Act stood in the Claimant’s way and they never dealt with the Section’s menacing stare. By that Section, the mere presentation of the statement of account – if the Court had refused our objection to its admissibility – was not sufficient to prove the Claimant’s case. They were to do more than just toss the statement of account into evidence. Closely related to Section 51 is the principle of law on dumping documents on the Court. This was also ignored. Rather what was done (as is largely customary) was that – the witness statement of the sole witness was a large duplicate of the pleadings. And the pleadings itself was a concise summary of the facts. So, we submitted strongly that the Claimant dumped documents on the Court, failed to prove its case and rather invited the Court into a private investigation of the facts beyond the Court room.

The aim of our long tales by Moonlight is only to show how preliminary case/trial strategies can inform or guide a lawyer’s entire line of action throughout the course of a pending suit. If there was a preliminary case strategy and it was successfully followed through with the expected points achieved, then it would be necessary to put it in view when writing the final written address. In such a situation, it could in fact be said that you already have the skeleton of your final written address.

If there was no preliminary strategy, fear not. With what we have discussed so far, we will still achieve our final objective.

Paul Usoro SAN and Uwemedimo Nwoko SAN before proceedings at the Federal High Court, Nigeria

Making the arguments – what are you saying?

Making arguments in final addresses can take various forms or structures. But at the core of whatever form is adopted, it must be noted that the arguments are meant to persuade the Judge. The arguments are not just made for arguments sake. Therefore, it is our respectful opinion that where the arguments fail to evoke some persuasive response, they would have failed to achieve their central purpose.

We also suggest that logic is a crucial part of making powerful and persuasive arguments. In other words, to lead the Judge by the hand (metaphorically of course) to the conclusion you are driving at, your arguments would have to avoid hanging on their necks or head. So, whether the conclusion you want the Judge to arrive at is – let my client go even though he looks suspicious (in a criminal charge) or make it rain hard naira or dollars on my client (in a civil matter), your address should be able to logically give the Judge reasons to substantially consider your conclusion, arrive at that same conclusion and ultimately give judgment in your favor.

The arguments made at the end of trial usually should spring from what has been successfully established through out the course of the proceedings. In effect the address should be the topping on a well conducted defence or prosecution of a matter.

Remember in Part 2 we spoke about the foundation and blockwork of each parties’ case? We said pleadings are the foundation of each parties’ case and evidence the block work (in criminal matters, the charge or information would have to be the foundation for the prosecution’s case and reference point for the Defendant’s case as well. Evidence would then have to build thereon – whether evidence to show guilt or evidence to rebut any imputation of guilt).

Now, we said the blockwork (evidence) must rest on the foundation (pleadings). If not, they’ll be problems. If in a matter, a party pleaded a crucial fact, but then failed to lead any or sufficient evidence in proof of that fact, it would be difficult (if not near impossible) for he or she to rely on that fact in proof of his or her case. As Counsel for the adverse party, it would therefore be easy in your final address to rely on the absence of proof of the crucial fact and thus knock off the basis on which the reliefs are sought against your client. Simple equation – where there is no foundation, the blockwork can’t stand.

In addition, whatever writing style you adopt for your final address, the goal remains – persuade the Judge. Give him reasons to find for you in his judgment.

We can’t exactly tell you want to write in your next address as the facts of each case and the law applicable can be widely different. With the samples attached to this discussion, you can receive some inspiration to help you kick start – also the format used in the attached addresses could assist you as well. We hope they do. We have also added a list of reading resources that should help give you serious writing inspiration.

Some common arguments and things to note when fleshing out your final address include –

  • The pleadings and evidence are a mismatch! This could mean, no credible evidence has been led in support of the pleadings in the suit. The law is trite that pleadings, however strong and convincing the averments maybe, without evidence in proof thereof goes to no issue. Evidence is required to be led to prove the facts relied on by the party or to sustain allegations raised in the pleadings. In other words, an averment of facts in a pleading is not an evidence and can never be so construed. The facts so averred must of necessity be proved by evidence except those facts admitted by the adverse party. See UBA v. ASTRA BUILDINGS (WA) LTD (2010) 41 NSCQR (PT 2) 1016; BUHARI v. OBASANJO (2005)2 NWLR (PT 910)241; YESUF v. OYETUNDE (1998) 12 NWLR (PT 579)483. It follows therefore that pleadings do not constitute evidence and where such pleading is not supported by evidence either oral or documentary, it is deemed to have been abandoned. 
  • The Claimant has failed to prove his case (or he has failed to discharge the burden of proof on him and thus no burden has shifted to the Defendant). It is noteworthy that where the Claimant seeks declaratory reliefs the burden on him is considerable more.
  • The Defendant’s case is more probable than the Claimant’s hence judgment should be given in the Defendant’s favor. This argument tends to turn on a comparative analysis or evaluation of the Claimant’s case with the Defendant’s case. Remember, the Court appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on both pans of the scale. Thus, a Defendant could emphasize the strengths in this case vis as vis the fundamental or far sweeping weak points in the Claimant’s case and urge the Court to deliver judgment in his favor. Also, even though the Claimant must succeed on the strength of his case and not on the basis of the weaknesses if any in the Defendant’s case, it does seem that this argument could arguably still avail a Claimant especially where there are features in the Defendant’s case that supports the Claimant’s case.
  • The evidence adduced before the Court is even though admissible, lacks sufficient probative value to ground the reliefs sought by the Claimant’s case. An example comes to mind here. If in a civil proceeding the Claimant alleges that there has been oil spillage and claims damages, but the crux of the Claimant’s case majorly rests on a publication in a newspaper, it is doubtful that the Claimant would obtain the relief he seeks. This position is based on the law as currently stated in the case of LAWRENCE v. OLUGBEMI & ORS (2018) LPELR-45966(CA) amongst other cases on the point. Also, documents tendered from the bar are another minefield that could hurt a Claimant’s case – see the cases of POLARIS BANK v. CENTRE POINT TRAVEL AGENCY LTD (2022) LPELR-57359(CA)- and CPC v. INEC & ORS (2012) LPELR-15522 (SC) AT 32-33 (C-C).
  • it is not in consonance with the law to say that in every case in which evidence called in support of a plaintiff’s case is unchallenged; judgment must be given in favour of the plaintiff. But on the contrary, it is possible that evidence called in support of a plaintiff’s case even if unchallenged, may still be insufficient to sustain the plaintiff’s claims. See MARTCHEM INDUSTRIES (NIG) LTD v. V.M. F. KENT (WA) LTD (2005) 10 NWLR (PT 934) 645.
  • The argument could take the form of “the Case law on this issue supports my arguments and where they don’t, they can be distinguished and therefore don’t apply to my case”. One important thing to note arises here and it is this – the principle of stare decisis does not mean that the legal principles established in previous cases can apply across board without specific reference or regard to the special circumstances that may exist in later or subsequent cases. Nnaemeka-Agu, JSC, in Ojibah v. Ojibah (1991) 5 NWLR (PT. 191) 296 also exhorted counsel and the Courts to be wary of “deciding cases and issues on the established legal jingles and catch-phrases without fully asking one’s self how well they fit into the particular facts of the case.” This clearly means that in most cases you can argue that the case law or legal principle cited by the adverse party does not apply to the case at hand. The case law cited could have been upturned by later authorities, legislative actions or the facts in the case law relied upon are distinguishable from the facts in the present case – so the Court can depart from the authority cited.
  • A crucial element of the alleged offence or the Claimant’s claim has not been proved by credible evidence and in the absence of this element, the entire claim must fail or the Defendant must be discharged and acquitted. For criminal trials, this line of argument could make a substantially good one depending on the available facts proved at the trial. In OKEBATA V. THE STATE (2013) LPELR-22474(CA) at 47 A-B, it was held that failure to establish one element of an offence means failure to prove the case beyond reasonable doubt. Thus it can be argued that by not establishing the essential ingredients/elements of the offence in question, the prosecution has ultimately failed to prove the Defendant’s culpability. Hence, the Defendant should be discharged and acquitted.
  • Final address of Counsel no matter how eloquent does not take the place of evidence in judicial proceedings – SULEMAN & ORS v. UKANA & ORS (2019) LPELR-46827(CA)
  • Objecting to the admission of a document at the point of final address is a risky venture that should be graciously avoided.

KEY TAKE-AWAYS

What to look out for when preparing a written address

  • State of the extant pleadings; to tell admissions and where denials are evasive or otherwise insufficient 
  • Evidence led
  • Cross examination; facts not cross examined on, facts discredited under cross examination, facts reaffirmed under cross examination.
  • The Laws applicable to the entire proceedings (including case law) – how they support or weaken your case

CONSIDERATIONS FOR PREPARING THE CLAIMANT’S FINAL ADDRESS

  • The facts pleaded and facts admitted (from the state of pleadings)
  • The evidence led in support of pleaded facts
  • The evidence not contradicted under cross examination
  • How does the evidence supports the grant of the reliefs sought?

CONSIDERATIONS FOR PREPARING THE DEFENDANT’S FINAL ADDRESS

  • Any preliminary issues e.g. Jurisdiction
  • Have the Claimants proved their case?
  • What evidence was led?
  • Is the evidence led sufficient? If not, why so?
  • Did the burden of proof shift to the Defendant at all?
  • What evidence was led by the Defendant in rebuttal?
  • Why should the Court believe the Defendant’s case more than the Claimant’s i.e. Has the Defendant’s case tilted the balance of probabilities more than the Claimants?

SAMPLE OF FINAL WRITTEN ADDRESS IN NIGERIA

Free Sample of Final Written Address in a Criminal Matter

Free Sample of Final Written Address in a Civil Case

Suggested Further Readings

Making Your Case: The Art of Persuading Judges by Antonin Scalia and Bryan A. Garner

The Tools of Argument by Joel Trachtman

Point Made: How to write like the Nation’s Top Advocates by Ross Guberman

Brief Writing for the Court of Appeal and the Supreme Court by Dr Mudiaga Odje SAN [Click here to DOWNLOAD from Nigeria Law Guru]

Written By Frederick Nkobowo LLB, BL


[1] If it was in the high Court, fraud may have been pleaded and particulars provided.

Welcome to part 3 (the final part) of this discourse on preparing final written addresses. Just as a recap, we have discussed what your ultimate to do list should be (in part 1), we’ve mentioned that you should frame the issues for consideration (in part 2) and we’ve mentioned some considerations you should sleep or think over while putting thoughts

Welcome to part 2 of this discourse on preparing final written addresses. We ended Part 1 at the point where it became a 12-minute read. Now we hope that didn’t end up boring – do you think it did?

Not to worry. In this part, we will try throwing in some anecdotes, tales and maybe a little bit of sarcasm (now popularly called vawluence) to ensure you don’t dose off while reading. And even if you dose, well, we tried. Lol.

Our fingers are crossed but we hope your fingers are ready to jot and learn. That said; let’s dive right in.

So where were we in Part 1?

In part 1 we mentioned your ultimate to do list. You can refresh your memory about it here. We also mentioned the first step to preparing your final address which is – reading the record of proceedings. If you have read your record of proceedings like we suggested, then we can proceed to the next step.

So, after reading the record of proceedings; – 

2. Frame the entire story/case into a central legal question or the key legal questions (or legal issues) that the Court will be called upon to decide;


After reading the record, the question that should bog your mind as a starter to the actual writing of your address is – what are the core legal questions or issues the Court is called upon to determine in this case. In other words – from a mesh of the facts and the applicable law; why are we in Court at all and wetin suppose comot?

We know that ‘wetin suppose comot’ will likely never enter your final address. But hope you get the point we are trying so hard to get across.

Better still, let’s analyze the point this way, the entire suit has been a long story with a main plot subsisting between the parties. A says he knows B. He drags B to court and says B has wronged him. So, the court should grant his (that is A’s) reliefs. B says he knows A but either says an entirely different story and says A is the one that as actually even wronged him. And so, he won’t keep his cool any longer – then he counterclaims against A. Or B justifies his actions towards A or just admits he’s done bad like A said.

As the litigation lawyer on either side, you’re in a sense really assisting A or B tell or present his story to the Court and prove it with credible evidence. Mind you, you’re not expected to tell the story yourself – unless you’re a witness in the matter. The relevant principle to keep in mind here is that a lawyer’s address no matter how eloquent cannot take the place of evidence especially where there is no evidence to support the submission. On this point, see the case of U.B.N. PLC vs AYODARE & SONS (NIG) LTD (2007) LPELR-3391 SC. So, attempting to give evidence for A or B in your final address isn’t a strategy known to law. That means like we said before; you’re stuck with the record..

In effect, the story is the starting point and you can liken it to a house with a foundation. In law, we have a big word for that foundation – we call it the pleadings. Then the block work on top of the story (or foundation) is the evidence (currently situated in the witness depositions as used in our High Courts).

Why have we called the pleadings the foundation and the evidence it’s blockwork? It’s simple. The blockwork must rest on the foundation or else, there’d be problems. The legal principles that confirm what we have just said are two-fold – pleadings unsupported by evidence go to no issue and evidence that is at variance with pleadings also go to no issue – ADUGBO v. IBE (2018) LPELR-46138.

Now let’s rewind to the story as the starting point and the framing of legal questions from the story.

Remember that A and B’s beautiful stories, are not told because it’s a tale by moonlight series and the Judge is paid to just listen to other people’s life troubles. No. A has come with his story because he wants justice or respite from the law. He feels he has a reason for the law to hear his story (aka a cause of action) and remedy the injury he has suffered . After all, Ubi jus ibi remedium.

So the story is really a means to an end. And A desires that end while B is likely to be contesting it. Within that story are the legal issues or questions.

So how do we frame the legal issues?

Let’s not complicate nothing. It’s simple.

Remember how to answer problem questions at the university and the IRAC rule? We’re back at that stubborn point.

In the IRAC mnemonic, the letter “I” stood for “Issues” right? Indeed, we are back there again.

So, if we are to attempt offering a description, the legal issues are the core legal questions which when answered would determine if our Mr. A should get any relief from the Court. We’ve used legal questions to define legal issues. We just noticed. Haha.

The crux is this, in all the stories told by either side, there is a point at which the law comes in and makes either of the stories worthy of compensation (relief) or absolute disregard. Generally, the core legal issue in civil matters would be whether the Claimant has proved his case and is thus entitled to judgement in his favor (or the grant of his reliefs). In criminal matters, the core legal issue usually would be; whether the Prosecution has proved the guilt of the Defendant as required by law? We only state this as the core legal issues since the main gist of the trials (both civil and criminal) would usually center on these points.

We’d use the IRAC rule again when we get to the meat of our gist (in Part 3). But for now, please read the record and then formulate your issues.

3. Sleep – After reading the record and framing the issues. It might be wise to sleep. Not in the office, but on the story, the evidence adduced and the legal effects of same. This brings us back to some very crucial areas in the whole case. We’d suggest a holistic sleeping on or review (if you will) of the case or story as contained in the record. It will help you develop a mental framework of how you want to argue the issues raised (remember item 4 of your ultimate to do list?) Some questions that can guide your consideration or sleep mode are listed below. We’ve called them sleep capsules. Take 2 in the morning and 2 at night while standing on one leg. Okay?

Sleep capsule 1: Are there any jurisdictional issues in the case that shoot Mr A’s claim to death no matter how probable the claim might seem? These issues could include –

  1. The Court before which the action has been brought is not the Court established and mandated by Law to entertain such actions. If this is the situation, does the Court have power to transfer the suit? Or the Court can only strike it out.
  2. Non-compliance with Section 98 of the Sherriff and Civil Processes Act – ; Izeze v INEC and Ors (2018) LPELR 44284 SC. We should mention, that in the course of your research you would also find the stream of authorities to the effect that non-compliance with Section 97 of the Act is a mere irregularity. It is also noteworthy that the Court of Appeal has held that the NICN is not bound by the provisions of Section 97, 98 and 99 the Sheriff and Civil Processes Act. See this – https://www.nicn.gov.ng/view-judgment/1696 and this https://www.pressreader.com/nigeria/thisday/20190108/281685435984648
  3. Lack of service of the suit’s processes as prescribed by the relevant law – Otobaimere v. Akporehe 
  4. Signing of the writ by a Law firm instead of a legal practitioner – Okafor v Nweke [2007] 10 NWLR (Pt. 1043) 521,
  5. Failure to sign the writ,
  6. The case is caught up by Statute of Limitation (i.e. statute bar), – on this point, the case of Sifax v Migfo Ltd is noteworthy.
  7. The principle of res judicata
  8. Failure to comply with a condition precedent to instituting the action
  9. Failure to sue the proper party(ies) And Suing A Non-Juristic Person; On Suing Proper Parties See – Cotecna International Limited V. Churchgate Nigeria Limited & Anor (2010) LPELR-897(SC),
  10. Absence of locus standi – Union Bank V. Estate Of Late Clement Ogeh (2018) LPELR-46701(CA)

Sleep Capsule 2: Considering the core legal issue in the case/suit, how did the adverse party go about his long trip to getting favorable judgment. In other words, review the case of the adverse party for its weak points or your sweet spots. We’d mention a few questions to support your deliberations on this point.

  1. Who bears the burden of proof in this case? This question is most important.
  2. What was the applicable Law(s) to this case and did the Claimant prosecute this case with proper reference to it? – See the case of SPDC v Minister of Petroleum Resources and 2 Ors NICN decision
  3. Are there any specific requirements or ingredients the adverse party was expected to prove or failed to prove? A vital example comes to bear at this point. It is this – in libel cases, the law now requires a Claimant to provide third party testimony of the effect of the defamatory statement on him.
  4. What facts were pleaded? What do the pleadings when put together say? In other words – what implications do they lead to? In deliberating on this point, it is important to note the rules of pleadings. For the Claimant, some matters are to be specifically pleaded if not he may not be able to rely on them. For the Defendant, a bare or general denial may spell more doom than expected. This is because a general denial has been held to amount to an admission – see the following cases; First Bank of Nigeria Vs. T.S.A. Industries Ltd (2007) All FWLR (Pt. 352) 1719, 1734, DORKUBO & ORS v. UDOH & ANOR. For both parties, it is trite and established that pleadings do not constitute evidence and therefore when a pleading is not supported by evidence – whether oral or documentary, it is deemed abandoned by the Court. Hence such a pleading goes to no issue and by the long line of authorities, such a pleading is to be disregarded by the Court as the Court has no business in considering it[1]
  5. What evidence was presented to the Court for the adverse party? Does the evidence presented have probative value? Was the evidence at variance with the pleadings? This might be the meat and grind of your deliberations. Before the deliberation at this point of writing the address, we suggest that there should have been initial deliberations when fashioning out the strategy intended for the case. The initial deliberations would or should have considered a myriad of issues (which we will sufficiently exemplify in part 3). Also, we will admit that this ‘sleep capsule two’ looks identical to the previous dossier of questions we suggested to you in part 1 of this article. There’s just no way to avoid the questions – so please bear with us.

4. Pick Brains, not beans:

By picking brains, we mean ask questions. You might have to discuss the suit or your proposed arguments with fellow colleagues. But we should mention that such discussions in deserving instances should have due regard to the attorney-client privilege you have with the Client.  

5. Research, take notes and…research

To our minds, research is the soul of legal writing. It unearths the unknown and clarifies the mysterious. We know it can be a tasking affair but certainly it is one the Lawyer cannot avoid or bypass. In the course of researching on the legal questions raised, it might be wise to research on ancillary issues that could tilt the decision of the Court in one’s favor. For a Defendant – a jurisdictional issue could greatly tip the scales of justice. This is not to suggest that jurisdictional issues can be raised in all suits. No, not at all. In most cases, Claimant’s counsel is careful enough to sign the writ of summons, endorse for service outside jurisdiction in compliance with the Sheriff and Civil Processes Act and sue a juristic person.

We draw the curtain here. In the next Part, we will deal with the meat of the address. So please get ready to chew the law and facts of your next case with us.

If you have any questions or want to make any further and better suggestions, please shoot us an email – lawgicallyspeakingng7@gmail.com, 08128926652 (Whatsapp or text).

Written by Nkobowo Frederick LLB, BL


Further Case Law Suggestions

On the burden of proof borne by the Claimant in civil cases – Hadyer Trading Manufacturing Limited & Anor v. Tropical Commercial Bank (2013) LPELR-20294(CA) Pp. 53-56, Paras. C-G, Darma & Ors v. Mustapha (2014) LPELR-23734(CA).

On Lawyer’s address not being evidence – Mains Ventures Ltd v. Petroplast Ind. Ltd (2000) 4 NWLR (pt.651) 151 at 166,

On the relationship between pleadings and evidence; In ADESANYA VS. OTUEWU (1993) 1 NWLR (PT. 270) 414, their Lordships of the Apex Court held that: “Once a party abandons his pleadings, it is not the business of the Court to look for evidence from the other party so as to base a case on facts which the plaintiff does not plead and cannot rely upon. Judgment is given in respect of material facts pleaded and proved at the trial. The parties as well as the Court cannot go outside the pleadings. The Court is therefore bound to adjudicate on the issues arising from the pleadings. Where therefore evidence led is not based on the facts pleaded such evidence goes to no issue. EMEGOKWE VS. OKADIGBO (1993) NSCC P. 220.”


[1] ADEKUNLE v ROCKVIEW HOTEL LTD. [2004] 1 NWLR [Pt. 853] 161 @ 178 at 179, BUHARI v OBASANJO [2005] 13 NWLR [Pt. 941] 1 SC; ITO v EKPE [2000] 2 SC 98; MAKINDE v AKINWALE [2000] 1 SC 89; ADELEKE v IYANDA [2001] 13 NWLR [Pt. 729] 1 SC; ADENIRAN v ALAO [2001] 18 NWLR [Pt. 745] 361 SC; ETOWA ENANG & ORS vs E.I ADU (1981)1 NSCC 453 at 459 lines 15-20, NEWBREED ORGANISATION LTD. VS J.E ERHIOMOSELE (2006) 5 NWLR (PART 974) 499; EZEANAH VS ALHAJI ATTAH (2004) 2 SCNJ 200 at 235; (2004) 7 NWLR (PART 873) 468: IFETA VS SPDC NIG.LTD. (2006) 8Â NWLR (PART 983) 585; WOLUCHEM VS GUDI (1981) 5 SC 291; BASHEER VS. SAME (1992) 4 NWLR (PART 236) 491; UWEGBA VS ATTORNEY GENERAL, BENDEL STATE (1986) 1Â NWLR (PART 16) 303; ADEGBITE VS OGUNFAOLU (1990) 4 NWLR (PART 146) 578 at 590; AJUWON VS, AKANNI (1993) 9 NWLR (PART 316) 182; ELEGUSHI VS. OSENI (2005) 14 NWLR (PART 945) 348.

Welcome to part 2 of this discourse on preparing final written addresses. We ended Part 1 at the point where it became a 12-minute read. Now we hope that didn’t end up boring – do you think it did? Not to worry. In this part, we will try throwing in some anecdotes, tales and maybe a little bit of sarcasm

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.

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

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)

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. .

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;

This will likely be the elephant in the room for courtroom lawyers (aka litigation lawyers), especially those just starting out.

So, how does a trial lawyer prepare for trial?

Now the strategy you’ll adopt in your preparation will depend on whether you’re the going to conduct examination-in-chief or cross examination. I take that you’re conversant with the facts of your brief and already have a direction in which you want the court to perceive the case of your client. Your legal opinion on the case will come in handy (that’s if you took the pains to write one or are you wondering what that is).

Conducting Examination in Chief

Let’s delve right in. If your job is to conduct examination-in-chief, then I’ll say your task is a simple one. You’re required to lead the witness to adopt his witness statement on oath (deposition) and where it applies, tender documents. I suppose you know the questions to put to your witness to get him or her to adopt his/her written testimony as the evidence in the case, or do you need help with that? Alright, I’ll assist. The following are the questions to ask your witness to lead him/her to adopt his deposition:

  • Witness, tell the court your name, address and occupation;
  • Do you recall making a deposition on ….. date?
  • If you see the deposition, can you recognize it?
  • How do you intend to do that?
  • What do you want the court to do with the deposition?

With that the witness successfully adopts his/her written statement on oath as his/her evidence in the case.

If there are documents to be tendered through that witness, you’ll follow this line of questioning after the witness has adopted his deposition:

  • Witness, in paragraph …. Of the statement on oath, you had made reference to …. Document, is that correct?
  • If you see the document, can you recognize it? (At this point, the clerk of court will show the document to the witness)

When the witness recognizes the document, you seek the leave of the court to tender the document in evidence and allow the opposing counsel to object if need be for that. If there’s any objection, prepare to respond to the objection. You’ll have to check whether the document is an original, photocopy or certified true copies. I hope you know the effects of those when it comes to admissibility of documents. If you don’t, please research. Where the document sought to be tendered is a photocopy, ensure to lay proper foundation as to where the original is. If the document was electronically generated, ensure that you lay proper foundation to show compliance with Section 84 of the Evidence Act before tendering same. That could be achieved by tendering alongside that document a Statement of Compliance, or stating the facts of compliance with Section 84 in the written statement on oath.

Note that some courts may require you to tender all your documents in a bundle rather that doing that one by one. So what happens if you try to tender a document and the opposing Counsel raised an objection that you can’t really respond to on your feet. I’ll share my trick with you: apply to the court to provisionally admit the document and let parties address the issue in the final address. This will be a fair tackle to all as the court can always expunge (that’s remove from its record) any document that was admitted in evidence which ought not to be admitted, provided that this was the understanding at the trial.

Once you’re done with the tendering of all documents. Kindly indicate that to the court and close your examination-in-chief. The opposing Counsel can now cross examine.

Cross Examination in Court

Conducting Cross-Examination

As a lawyer about to descend on the witness through cross examination, I would want to believe that you’re also conversant with your case. This will aid you to question the witness to elicit answers that will build your case. Before you even begin to cross examine, have your ‘why’ for the cross-examination. Are you cross examining to impeach the credibility of that witness; or to cast doubts in the mind of the court about the case of the opposing party. Don’t forget the provision of the Evidence Act on the reasons for cross examination. They should form the critical part of your ‘why’ for the cross examination.

How about as a defence Counsel the document you intend to tender has already been tendered by the claimant? How do you communicate to the court in that situation that you intend to rely on the same document. The procedure is to lead your witness to identify that document and then indicate to the court that the document is already an exhibit before the court.

Wow! I’ve said too much for a short article. I pause here and hope to write to you soon on another interesting topic. See you soon.

Written by Queen Charles Ukpo ESQ

This will likely be the elephant in the room for courtroom lawyers (aka litigation lawyers), especially those just starting out. So, how does a trial lawyer prepare for trial? Now the strategy you’ll adopt in your preparation will depend on whether you’re the going to conduct examination-in-chief or cross examination. I take that you’re conversant with the facts of your