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

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.

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

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

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

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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.”

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[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.

In the season premiere of this post, I could not get into dealing with all the areas I mentioned. So, here we go for a season two of the post. Hopefully, the entire series of what law movies don’t teach law students will end with this season.

Oh, pardon me, did I mention that the purpose of this post is not to kill your movie cravings? Far from it, an enjoyable law movie is always worth it. So, add the movie – A time to kill to your list.

This post is really aimed at telling the truth as it is and encouraging law students along the way. In essence, after watching the movies, one always has to remember that the journey to mirroring the great lawyers we see ‘on screen’ is actually undertaken ‘off screen’. Therefore, it would take more than just cramming Harvey Specter’s lines to be like Harvey Specter. And the journey to being the lawyer of our dreams is definitely not a sprint, it’s a marathon. A number of us are still undertaking that journey in fact.

So here we go again, my second expose on what law movies don’t teach intending attorneys or law students –

What a judgment is really like

In the movies I have seen, the cases are usually decided by a jury. The Judge simply calls Madam foreperson to announce the verdict. And she stands and says something to the effect of – “in the matter of the Commonwealth of Pennsylvania versus Walt Miller, on the count of murder in the first degree, we the Jury find the Defendant, not guilty”. And bam, the case is closed, finished or if you will, affaire classée.

Ready for a bubble bust?

We don’t operate a jury system in Nigeria. So, the judge is both the trier of fact and law. Second bubble bust? Judgments are often not that short. In fact, they are rarely short unless it is a concurring judgment delivered by an appellate Court Justice. Some are so short that all the Justice says is – I Concur. Yes, “I Concur” is the whole judgment. But that’s just the concurring Judgment of course. The lead judgment is usually detailed and it is expected to be so. This is because the reason for any decision of the Court should not be left to conjecture or speculation – see GABBY STORES (NIG) LTD v. MAGAJI & ANOR (2015) LPELR-40381(CA).  To borrow some words from Karibi-Whyte, JSC on this point “…If judgments were to be delivered without supporting reasons, it will be an invitation to arbitrariness, a rule of merely tossing the coin and the likelihood to result in judicial anarchy”. This principle especially applies to the judgments of trial Courts (High Courts, magistrate Courts etc) since there exists the likelihood of an appeal.

In fact, when delivering judgment, a Court is expected to properly and holistically evaluate the evidence presented by both parties in the suit. The Court is even expected to mention and give reasons why it believes one witness over the other. This is why in judgments we have the ratio decidendi and the obiter dictum. The ratio is the reason for the decision while the obiter are comments made in passing by the Court.

So, it is really not as short as the movies may make it out to be. I have not convinced you beyond all reasonable doubt? Good. Visit any law report and eliminate your doubts. I should add a caveat which is – you could get bored into a snore at your first reading. It’s not strange. The first time I sat through the reading of a judgment, I recall hearing just two lines of what the Court said. The remaining time I honestly struggled to keep my eye lids from embracing one another.

What Cross Examination really looks like in the real world 

Law movies most times don’t reflect how cross examination happens in the real world. In most episodes, the witness breaks down crying in the witness box while admitting to be the real murderer or even a liar. Permit me to ask – like seriously? Who does that? The movie script writer does anyway. In real life, the one I and you are in right now, those things rarely ever happen. Instead, you have witnesses that lie through their teeth as though they are professors in whatever institute teaches lying.

There are others who are honest. And strangely, many of the honest ones don’t swear on the bible when about to commence giving their testimony. They swear on iron and indeed due to the fear of their ancestors releasing thunder, they end up telling the truth, the whole truth and nothing but the truth.

But sometimes, the truth could seem very improbable given a particular set of facts. Other times, the truth could actually implicate the Defendant. This is where the cross examiner usually tries to show that even if the truth is as the witness as stated, he is or could have been honestly mistaken due to one reason or the other. The witness could also have a lot juggled in his memory that his recollection of the facts is not trustworthy. For example, a color-blind witness would honestly be mistaken as to whether the traffic light was green or red when the Defendant sped past it. Similarly, a witness who suffers from dementia could actually have seen the Defendant at the crime scene but how sure are we that her memory loss hasn’t set in again and the Defendant wasn’t only passing by the crime scene without more. After all being at the scene of crime doesn’t mean you committed the crime.

This is why I sincerely doubt that the movies can fully teach anyone to be an effective cross examiner. That is just my personal opinion. Rather a host of resources could help one out. If I were to list a few resources (just as I may have done elsewhere already), they would be the following;

1. The art of cross examination by Francis Wellman
2. Cross examination; the trial Lawyer’s most potent weapon by Yemi Osinbajo and Fola Arthur-Worrey
3. Hints on Legal Practice by Hon. Anthony Ekundayo
4. The Devil’s Advocate by Ian Morley
5. Advocacy Hints and Tactics
6. 10 commandments of cross examination Lecture by Prof. Irving Younger (YouTube video – https://www.youtube.com/watch?v=dBP2if0l-a8&t=627s )

The list above is not exhaustive by any stretch of imagination. A lot of Senior lawyers could suggest more resources. I’ll suggest you ask for their list when and if you have the opportunity to do so.

Lastly, lest I forget. If I may add, the strategy you see in the movies where the lawyer argues with the witness under cross examination is not very advisable. I don’t think you should try it even in a moot competition. The aim of cross examination is really to control the witness’ responses. As a cross examiner, you want answers that support your case theory or narration of the facts. And arguing with the witness does not achieve this. In fact, in the average Nigerian Court, it is difficult to imagine that the Judge would be able to write down the quickly spoken words from your angry or argumentative exchange with the witness. Mbanu, the Court is not a typewriter. Besides evidence is to emanate from the witness and not the Lawyers – so your argument with the witness no matter how persuasive, does not eliminate or override whatever the witness has said in evidence. So please calm down on attempting to go all Annalise Keating on a witness in Court. Hope you got my point.

The difference between knowing law and knowing the business of Law

Law movies don’t teach the business of law. Law School doesn’t teach it as well. I’d explain. While in school, law students are taught the various principles of law. Yet little to nothing is said about how business works throughout the 6 years of learning. In the end, skillful lawyers are trained. Expectedly, they graduate with sufficient knowledge of the law. But it is hoped that they would proceed to set up and run efficient law practices. Yet they were never equipped with basic business skills. This leads to one result; we currently have Lawyers who don’t make the best business managers. I could be genuinely wrong but this is my current observation and I surmise that it is a simple result of the lack of business skills or training.

That said, it is noteworthy to mention that nearly every skill has a business side or part to it. A trained hairdresser needs to know how to attract clientele and grow revenue for her hairdressing shop. Else she could sit hungry with very skillful fingers that could wow even Mrs. Aisha Buhari’s scalp. A funny individual who wants to go into the comedy business must know his onions and that business sphere as well. Same thing applies to the rave of high-income skills we hear about on the internet these days. And in the same way, this applies to law as well. The skillful lawyer would only be able to derive maximum commercial value if he can employ his business skills. This means he should have some measure of business skills in addition to his legal expertise.

You may contend that the law is really a vocation or calling and business skills have no place here. I will invite you to view the reality which is that law practice has largely evolved into being a business like any other business. I agree that there is the vocational part to legal practice; where the law is a calling and the lawyer is the conscience of society and voice to the voiceless. This part remains unhurt and is entirely fundamental. I even believe that effectively managed and profitable law practices can better fund Law based initiatives aimed at societal improvement.

To take a cue from other climes, the world’s largest law firms are efficiently managed businesses. In fact, in the United Kingdom, law firms are listed on the stock exchange and members of the public can own shares in them. This is possible due to the UK’s Legal Services Act of 2007. I might not currently argue that we need the large-scale changes introduced by the UK Act in Nigeria.  

But my point is this; imagine that a law firm of that magnitude exists in Nigeria and dedicates just a fraction of its profit towards running a pro-bono program aimed at decongesting our prisons, we may achieve much more. So, better and bigger law businesses could mean more funds for driving public interest initiatives. A clear example is Hogan Lovells.  In the 2021 financial year, the law firm grew its global revenue by 12.9% to $2.6bn largely due to its transactional practice.  But more importantly, the law firm runs a dedicated pro bono department that has been operational for 50 years and the department still continues. Talk about law business and impact.

So that I don’t veer off the point. Let me state it again, Law movies don’t really teach students the business skills relevant for running a profitable law practice. Law books may not teach them either.

Self-Development is unavoidable

Lawyers tend to be workaholics. Even the movies show this in some bits. You know the signs – they range from keeping late nights to courting dark coffee and the obvious sleep bags under tired eyes by morning. We know the drill. From the University Faculties to law school as well. The truth remains that the reward for hard work is more work and there lies the temptation. The slippery one that I think has capacity to approach any lawyer and overcome him.

It is the temptation to just keep churning out work without considering the quality of work being churned out. I have posited in a previous piece that there are always two things to learn at every point – how to get things done and how not to get things done. When a lawyer has gotten grips on some fundamental parts of the lawyering job – he could stay at that plateau; just churning out work and more work without a deliberate attempt at reviewing and improving the quality of work delivered. This is what the movies don’t teach. Our favorite character in the movies never talks about going back to school for a master’s degree or undertaking a certificate course. But self-development and improvement are a must. In our profession one has to keep learning or get phased out. Our fav tv lawyer doesn’t stand that risk. But lawyers in actual practice do.

In sum and like I said earlier, law movies are great. I enjoy them. We all should enjoy them but, in the end, remember that the journey to mirroring the great lawyer you have seen ‘on screen’ is actually undertaken ‘off screen’.

For now, please get out another box of popcorn and binge on another blockbuster law series. T for tenks and sure, don’t mention.

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Written by Nkobowo Frederick Nkobowo LLB