Tag: Law

What Law movies don’t teach Law Students – Part 2

June 3, 2022

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 –

H.E. Judge Abdulqawi Ahmed Yusuf, President of the Court, on 6 June 2018 (delivery of the Judgment of the Court) S. Exc. M. Abdulqawi Ahmed Yusuf, président de la Cour, le 6 juin 2018 (lecture de l’arrêt de la Cour)

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.

*Annalise Keating in How to get away with Murder*

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;

The art of cross examination by Francis Wellman
Cross examination; the trial Lawyer’s most potent weapon by Yemi Osinbajo and Fola Arthur-Worrey
Hints on Legal Practice by Hon. Anthony Ekundayo
The Devil’s Advocate by Ian Morley
Advocacy Hints and Tactics
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.

If you considered this long season helpful, please share. And don’t forget to sign up for our web updates.

Written by Nkobowo Frederick Nkobowo LLB

Learned Scribbles

A Short episode about Goofing witnesses

fredericknkobowo

May 27, 2022

Now let’s be clear, suing is one thing and getting a favorable judgment is an entirely different thing. Technically speaking, both are even arrived at by different means. The first (i.e. suing) just requires the filing of the official documents required by the rules of Court or procedure. So, all a person needs to sue is file either a complaint, writ, petition, originating summons, or originating motion. When that has been done, the suit is in motion or better put, the suit has been instituted. In other words, the first step to reaching the light at the end of the tunnel has begun. Clearly the tunnel has to be our judicial process and the light at its end has to be the anticipated favorable judgment or outcome.

Somewhere along this journey to getting a favorable judgment is where the gist of this opinion piece lies.

This journey is what makes the Dispute resolution/Litigation Lawyer’s work tasking but in fact interesting as well. On this journey to judgment, evidence must be the travel guide, the knowledge of law would save the day or its absence will occasion doom, timely reactions or responses can restrain stormy clouds too.

While on this journey, the lawyer would have a travel companion. Not the mythical, mental or legal ones noted already but physical Companions. I mean he has commandeered the ship substantially. And he will have to still do so. The pleadings are his output – his drafting skills are shown there, the presentation of his client’s case is also his burden – his skill would show there as well. But at some point, witnesses would be vital companions to reaching that desired destination called favourable judgment. This is where things can get almost tricky – that is at the point were the witnesses step into the witness box, take the oath and have to give their testimony.

Thankfully, with the current procedure in High Courts around Nigeria, the witness’ tale is contained in his or her witness deposition. So, the possibility or likelihood of the witness narrating an oral portion of his autobiography is nipped in the bud. However, diligence in drafting the witness deposition is required to ensure that; evidence is given on all crucial points in the pleadings and documents are not dumped on the Court.

But that witness would be cross examined and there lies the ticking bomb that we’ve actually been trying to get at.

Let’s not forget that any skillful cross examiner often aims to conduct a fatal destruction of his opponent’s case and the only person that would have to overcome this attempt is the witness.

And drums rolllllll….most times, witnesses while in the witness box and when brought under the heat of cross examination, goof in flying colors.

*Valedictory Court Session at the Supreme Court*

Goofing in this instance usually includes everything stated in this list (with sprinkles of more or maybe slight variations);

The witness enters the box

Swears to tell the truth and nothing but the truth

Adopts his witness statement

Proceeds to answer questions under cross examination

Then begins to go off tangent and starts saying things you wish you could choke him from saying.

Expresses confusion, looks at you (his lawyer) for some saving tips after ignoring the ones you had given before he got in there.

You try salvaging the situation by skillfully injecting but the witness’ loud mouth digs further, better and deeper pits for your case. When you need him to keep his lips sealed, guess what? He doesn’t! He opens his wide mouth while your eyes react in despair by widening in shock to the words visiting your ears.

You hold your wig, fighting the pressure to gently rise, take a bow at the Judge and immediately remove your wig for a vibrant toss at the witness’ digressing mouth.

Then maybe the witness turns and gives you that nervous smile – the annoying one. You can picture his face now. maybe the case and Court room even comes back to your memory.

We surely may not have been there and definitely do not know his name, so permit us to call him – the goofing witness of Madagascar. But is there a way out? A way to help both this witness from Madagascar and your suit which is being tried in Nigeria. After a new experiences, we think the suggestions hereunder may help;

Expect the damage – its supposed to happen.

2. Prevent the damage – pre-trial preparation

3. Control the damage – during cross examination

4. Contain/Mitigate the damage – final address

5. If Not Possible? Emotionally detach and continue acting professionally

– Expect the DAMAGE;

This to our minds is the first rule.

And we think, it has to be in the rule book for litigation gladiators. Litigation has been described as regulated contest; we agree that it is to an extent.

Damaging their opponent’s case is what trial lawyers do.

We dare say; it is an important step in our unwritten litigation ‘fight’ book. We crave causing damage to our opponent’s case. We dream for it. We live for it and in fact walk around with loads of techniques up our gowns for achieving it.

That is why we have the art, science and technology of that emotional endeavour called cross examination.

Remember that a one sided story sounds all true until the questioning starts – then you see the many cracks in a once perfect story. So there you have it – Cracks! Unveiling or in fact drilling cracks into the opponent’s case is why we have Section Section 214 of the Evidence Act 2011.

As Lawyers, hope that by revealing these cracks we get at the truth or at least know those witnesses that are lying through unperforated teeth.

Do we ever achieve the first aim of knowing or getting at the truth? Maybe we do sometimes.

But generally we settle for what can be proved or what most probably actually happened from all that has been said and proved in Court.

But either ways, ‘the damage‘ is expected. It is a crucial part of the whole affair. It should be done unless of course, there is nothing to damage (the opponent’s case is so weak that zero cross examination actually sustains the already existing damage – can one damage an already damaged leg? Maybe no.)

Prevent the DAMAGE

Expecting the damage puts one in a better position to properly prepare for and respond to it. After all, it is a common saying that proper preparation prevents poor performance. This is why pre-trial meetings with the witness are very important.

In our view, it is a prudent step not to totally believe the witness’ confidence outside the witness box especially that cocky confidence some of them exude before the hearing. It may be genuine but many times it proves very insufficient when placed under the heat of cross examination.

The pre-trial meeting should ideally cover some essentials one of which is the likely questions the witness should expect under cross examination. The breadth and length of what should be covered is really a matter of discretion.

Control the damage

It can be observed that most times during cross examination hints fly around. We both know from who – especially when the witness is saying what he shouldn’t. Most times the hints are not overt. An objection is used to pass it across. While explaining the reason for the objection – the hint is wittily thrown at the drowning witness with hopes that he quickly notices the hint and takes it. This arguably nears some border of unethical conduct. But the truth is – it happens often. And we both know who does it. Most clients (especially professional litigants) seem to applaud such interjections and benefit from them but expectedly the bench frowns at them. After all, the case is the parties’ and the witness should know his case through and through. If he doesn’t, why should he be worthy of believe or entitled to judgment in his favor.

But most times, most witnesses are genuinely confused, startled and could use some lawyerly succor while in the witness box. So, in trying to answer questions – they say more than they should. Hence the goofing syndrome. This is why an honest or moderate ‘expectation of goofing’ should be kindly accorded to each witness.

Mitigate the damage

In most cases, the damage could be mitigated at the point of final address. Some fundamental flaws could knock off the base from the adverse party’s case. This definitely leads to a ‘UAC V Macfoy’ situation where the damage becomes the ‘something that can’t be put on nothing’. And the nothing in this context would be the suit. Some of the major flaws are jurisdictional.

Where a jurisdictional flaw doesn’t save the day, contesting the admissibility of a crucial document and getting it expunged from evidence could. This is a slim rope to walk on; especially at the point of final addresses. The rule in Salau Okulade v Abolade Alade is to blame.

Other mitigating options could be tacit admissions arising from failure to cross examine on a crucial point, dumping documents on the court etc.

Sadly, but truthfully, another situation that tends to contain or even eliminate the damage is – a de-novo trial. A fresh bite at the cherry I would call it or old things passing away no matter how advantageous it may have been to one party. Most times, one party is happy when de-novo trials happen. That’s arguable – but it would be honest to expect it to be a common happening.

In containing the damage, there is a temptation to avoid. It’s a very attractive temptation and falling into it is almost seamless. It is the temptation to convert the written address into a medium for giving evidence – a.k.a attempting to say what the goofing witness should really have said. As honest an attempt as this may seem, it is yet to get judicial pass. So, no matter how flowery, enticingly smooth and suspense studded the lawyer’s written address is, it cannot enter the witness box. We mean, it cannot take the place of evidence.

If Not Possible?

Most times, it could almost be impossible to prevent the damage. Some cases are really bad cases. They happen. Although bad cases can switch mid-stream in few instances, it might be wise to explore the chances otherwise available for getting the Client’s interest protected.

Written by Frederick Nkobowo LLB. BL

Everyday Law

Police fit carry me if dem no see my Papa? Arrest by Proxy in Nigeria

fredericknkobowo

May 23, 2022

This leads us to the question under consideration in this article which is – what if the police come to arrest my father and cannot find him, do they have legal powers to arrest me; his son? Simply put – can the police arrest you in place of a suspect?

Our question bothers on arrest by proxy (also called arrest in lieu). Let’s simplify that. Arrest by proxy is a situation where the Police or any other law enforcement agency arrests one person for the offence of another person. A common example is where the relative or loved of a suspect is arrested instead of the suspect himself (or herself). This usually happens where the suspect cannot be found easily.

The justification often used for doing this is that the suspect would come out from his or her hiding once he gets to know that his loved one has been arrested by the Police. Situations like this are common around the country but let us give you an urgent example;

As reported by thecable.ng, on August 26, 2020, Johnson Kokumo, the then Edo state commissioner of police, paraded six suspects in connection with the rape and murder of Vera Omozuwa, a 100-level student of the University of Benin.

During the media interview session after Kokumo’s speech, one of the suspects, said she was arrested in the village after the police were unable to find her son.

“They (referring to police officers) said madam, “where is your child?” I told them I did not know his whereabouts. I was in the village and my son was in Benin. That is how I ended up in the cell,” the woman said.

Her testimony attracted public attention, especially on social media, as it appeared that she was arrested in place of her son who was the actual suspect.

Do the Police Have legal Powers to Arrest by Proxy in Nigeria?

So, what does the law say? Or like we asked before does the Police have legal powers to do this?

The simple answer is a sincere NO. To put that in a moderately long sentence – It is illegal for police or any security agency to arrest any person for an offence committed or suspected to have been committed by another person. No matter the offence. Criminal liabilities cannot be assumed, transferred, inherited or sexually transmitted.

Various provisions of the Law clearly make arrest by proxy illegal. They include –Section 7 of the Administration of Criminal Justice Act 2015 and Section 36 of the Police Act 2020.

The Courts have ruled severally to uphold the law that the Police do not have the powers to arrest by proxy.

Pardon that we have to type it again; It is illegal for the Police to arrest you for an offence you did not commit in place of another person (the real suspect).

Nkobowo Frederick Nkobowo LLB

The central duty of the Nigerian Police Force is to solve crime as well as maintain law and order. In the course of fulfilling this duty, the Police necessarily have to interview and even arrest suspects. This leads us to the question under consideration in this article which is – what if the police come to arrest my father and

Learned Scribbles

What Law movies don’t teach Law Students

fredericknkobowo

May 18, 2022

Law movies are great. I can assure you. Or do I have to convince you beyond reasonable doubt? Let’s consider the facts. The suspense of each episode leaves you on the edge of your seat, the plot twists has you suppressing a full bladder and the iconic lawyers make you haggle the price of suits every other day. Your favorite character in the movie is the lawyer who makes witnesses cry on the stand while admitting to perjury. Where the witness doesn’t cry or cower, this favorite character of yours argues with the witness during cross examination while the Judge bangs his gavel. That hot exchange wins the case most times as the jury immediately sees the point of the lawyer’s heated exchange.

Did I add that the court cases get concluded in a single episode? After all, the courts always sit, there are no letters of adjournments, no cause lists or learned Silks (and Senior Lawyers) who will get to call cases out of turn while your favorite character waits for his wig to get sufficiently old for the privilege. Besides an entire episode is not dedicated to replicate the last day you spent lengthy hours trying to file a time sensitive process at the registry at TBS.

Back at the office, this fav Lawyer of yours ogles his fellow employees and throws sexual banter freely in fact. Surprisingly, the judicial hammer in Ejike Maduka v Microsoft hasn’t found him out yet.

Your favorite lawyer in the movie series could be Alan Shore or Denny Crane in Boston Legal, Harvey Specter or Louis Litt in Suits, Rumpole in the series of the same name or the QCs in Anatomy of a Scandal. And did I just forget Annalise Keating in How to get away with murder? That oversight should be a capital offence in itself.

I duff my hat to you – one law movie series lover to another.

Certainly, I must not kill the thrills that any law enthusiast or student would get from seeing his best law movies. These movies do actually help in some ways after all. First, they show us that the effective Lawyer would have to be a confident person. He would have to possess great or substantial oral and written persuasive skills. His negotiating skill must be top notch. He cannot avoid being a rainmaker. And maybe lastly, he should have some poise, a great sense of fashion and some well-polished shoes as well. Did I miss out anything? I hope not.

But let’s hurry to the gist of this scribble. The gist is – the movies don’t give you the entire preview of law practice especially litigation practice in Nigeria. They do not contain some ticks and antics that are peculiar to litigation practice in our clime. I agree I repeated that point. But hope you get what am I saying.

Let me now attempt to convince you into agreeing with my point. I admit what I will say here may not entirely cover the field of discuss. Yet I will give it an honest attempt.

Movie poster of **How to get away with Murder**

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

Drafting skills – Preparing pleadings, final addresses or briefs

The Law movies don’t test or refine your legal drafting skills. Many times, in these movies, the pleadings are flawless – so we get to the meat of controversy in the episode. Trial begins without any fuss and we see the lawyers flex the legal muscles that the script writers have assigned to them.

In real life and in our clime, many cases can be and are won or lost because of the poor drafting of the originating processes or the pleadings. Section 98 of the Sherriff and Civil Processes Act and the Supreme Court decisions in Izeze v INEC and Ors (2018) LPELR 44284 SC and PDP V INEC (2018) LPELR 44373(SC) pages 15 – 18, might be your cue here. Also, this brings to mind a defamation matter where we represented the Defendant and due to the various weaknesses in the pleadings and evidence of the Claimant, we could put forth an arguably formidable case for our client. Why was this so? No evidence of a third party was called and the defamatory publication was not reproduced verbatim in the pleadings. Your cases in point would be – OMALE v. FEDERAL POLYTECHNIC KADUNA & ANOR (2015) LPELR-25933(CA), Sun Publishing Ltd v Dumba (2019) LPELR 46935 (CA), Okafor v Ikeanyi (1979) LPELR 2418 (SC) and Guardian Newspapers Ltd v Ajeh (2011) LPELR 1343 (SC). I do suggest you look them up.

Apart from the pleadings, final addresses are usually not filed in the movies. I mean adopting final addresses with little to no adumbration like we oft do in our clime would take all the fun out of the movies. Wont it? In addition, the arguments are usually aimed at persuading a jury and so the issue of citing authorities and relying on stare decisis rarely shows up. And these are core issues any litigation lawyer would have to deal with.

Am I saying law movies are useless on this score? No, far from it. Rather, the final summations in these movies show that many times – even with the same set of facts, it is possible to argue for either party. Shocking? Maybe that should be. The Law may not weigh in favorably for one of the party’s case – but things can and sometimes do change at trial. Many times, this change (at trial) centers on what a party does eventually prove. If he can prove nothing – the law might just be able to something similar – grant him nothing, no matter how favorable the facts may have seemed to be at the beginning.

Thinking on your feet

The movies do show why every lawyer must learn to think on his feet. But they don’t teach you the actual thinking. Or do they? Throughout trial, the Lawyer would have to make some professional judgments and call some shots based on what he honestly believes to be in the utmost interest of his client’s case. These professional judgments could range from determining whether to object to a document, ask a certain line of questions, rest the Defendant’s case on the Claimant’s or whether to even cross examine at all.

Sometimes these shots have to be called under very short notice and immense pressure. And the decision has to be in the best interest of the client but within the boundaries of the law. Most times, it’s a tough call – like being between the devil and a hard place. But if I could borrow a few words from Iain Morley on this they would be this – “judgement is what you are paid for…it is your greatest necessity as a lawyer. Whether you have it or not is usually a question of talent, feel, common sense, understanding of the law, experience and occasionally cunning”

Dealing with Judges

A core part of litigation work involves dealing with Judges. They are the impartial triers of fact. But they are human as well. So, they have their mannerisms, ticks and biases. Yes, I typed that – biases. Above these three things (i.e. mannerisms, ticks and biases) sits the law, and we expect judges to pay allegiance to it while dispensing justice. So, dealing Judges is crucial part of what the litigation lawyer does. It will also affect how effective he is perceived to be at what he does.

Shouting at the Judex or antagonizing the bench may not get the job done. This is my personal opinion and I could change it by dusk tomorrow. But from what I have seen so far, I honestly hold the view. Do I think we should not be firm when the need arises or when occasion demands? Certainly not. Each response should depend on the Judge involved – that is why the advice – know your judge is eternally important. Do the movies show that? Sometimes I think they honestly do – at least Boston legal did; with Judge Hooper and Judge Clark Brown. But I don’t think adopting the strategy employed in the movies would help your client or his case.

In sum know the Judge and know how to deal or better still relate with him. And certainly, I mean knowing and relating with the Judge within the boundaries of the law.

My gist is already getting quite long but four last points are yet relevant. I’d just list them and try overcoming the temptation to talk a lot further. So here we go; Law movies won’t teach the following as well;

What a judgment really is like
What the business of law actually means
Cross Examination in the real world
The importance of continued Self and professional Development

Permit me to rather adjourn further discuss on the subject to a later and better blog post.

Written by Frederick Nkobowo LLB

Learned Scribbles

Litigation Note 5 – Pleadings, Evidence and such other things

fredericknkobowo

April 28, 2022

I remember the class and the lecturer. But the day of the week I cannot recall at this moment. The class was the Law of Evidence and the Lecturer was an Elderly male Lawyer with a fair skin (Name withheld). It was the last class on evidence for the semester. So the Lecturer began a review of the course work done during the semester till that point. Exams were fast approaching so everyone needed some shaping before Ds and Es would ‘jam’ people’s children.

I know I heard his first words and then this heavy evil spirit of untimely sleep came upon my eyelids, causing my head to nod like that of an impregnated agama lizard. I fought to keep my eye balls open and facing the dear Lecturer. Oh how I wanted to just stare at him at least. But the more I tried; the more I nearly fell off my seat.

However, once he said something to the effect of ‘that is the end of our course work for this semester’, the dose of sleep threatening to send my head rolling, immediately left me and my eyes started shining like those recently rinsed in local gin. No sleep, no nodding. All just seized.

Fast forward to some years later; I was tasked to conduct a hearing – the cross examination precisely. The law of Evidence I had dosed in front of; now stared me in the face literally and I dared not dose this time.

But I hold the respectful view and dare say before the point of cross examination, a case can be won or lost from the pleadings and evidence in chief. Why do I say so?

As Lawyers, we believe in Justice. And many times; we believe the task of the Court is to find the truth of what actually happened in any given case so that justice can be achieved. I believe in justice but I share the view that in many cases than none; judicial business is not an inquiry into the truth, but an inquiry into facts that can be proved by credible and admissible evidence.

So, however we see it, justice does not walk around unclad. Rather she is very piously dressed in long flowing gowns of evidence and due process. This is where i believe the lawyer’s job comes in.

The client is the master of the facts. As lawyers it is not our job to manufacture facts but once we have the facts, we are to handle them professionally. The first port of professionally handling the facts is really the pleadings. The rules of pleadings when not obeyed, could mar the chances of a party obtaining judgment in his favour. Sometimes it is needful to pull apart the pleadings by asking very simple and salient questions such as;

What exactly is the adverse party saying?
What exactly has he NOT said?
What evidence does he intend to rely on as proof of his assertions?
Are these pieces of evidence admissible in law or do they suffer some other defect that could weigh negatively on their credibility?

The questions above are surely questions for the attack. We could add more to them to ensure we have surveyed the suit from as many angles as possible and then have settled our preferred mode of contesting it (with the facts at our disposal). But on our own part, we have work to do as well.

The Client has given us facts as well. Our job has also started. We are to satisfy the conditions that will transform the hard facts into admissible evidence, evaluate the weight of the evidence we intend to rely on and review our case strategy from time to time. We also must look closely so that we can tell apart mere speculation from hard evidence as well as second-information or embellished hearsay from hard evidence. If the adverse party’s lawyer does not sniff out the loops in our case out, the Judge may and if the Judge does not, the three wise Men may so do. And when they do not the infallible panel of 7 or 5 Law Lords may do so to our own peril.

Litigation Notes are a series of short courtroom and practice lessons gleaned from the personal practice journal that chronicles the green wig years of Frederick Nkobowo Esq. They represent his considered and respectful opinion which could change as his age at the bar inevitably progresses. It is respectfully hoped that these notes would proffer some aid to other practitioners even as the writer looks to gathering more learning. He practices in Delta State and can be reached via fredericknkobowo@gmail.com

Everyday Law

FREE LEGAL TIPS: 5 Things Every Nigerian should know about their rights and the Police Force

fredericknkobowo

April 28, 2022

Tip No 1
Substitutional arrest is illegal. A friend or relative of a suspect is not to be arrested in place of the suspect. Let’s give an example; if the Police have reason to believe that Lakunle committed an offense and arrive his compound to arrest him but to their surprise, he is nowhere to be found. The law does not permit the Police to arrest a sister, brother, or other relatives of the suspect to ensure he surfaces from his hiding or escape.

Tip No 2
A Suspect arrested by the Police has the constitutional right to remain silent and avoid answering any questions until he or she has consulted a lawyer or any other person of his choice.
Section 35(2) of the 1999 Constitution provides for this.

Tip No 3
It is illegal for the Police to arrest a suspect merely because he or she is owing a debt that has arisen from a contract and has not been able to repay the debt. Owing debt is not a crime and Police officers are not debt recovery agents. Never forget that; any arrest and detention merely to recover debts by the Police is unlawful, wrongful, illegal, and an infringement of the right to personal liberty of the supposed debtors.

Tip No 4

It is not the duty of the Police to settle civil disputes or enforce civil agreements.
In a long line of cases Nigerian Courts have consistently held that it is unlawful for the Police to be involved in any way, in the interpretation or enforcement of contracts; and of any other civil dispute. An example is the case of McLaren v. Jennings, where the Court of Appeal held in 2003 that it was unlawful for the Police to arrest and detain the Appellant with regard to the collection of a debt; this is as, under the Law, the Police is not a debt collection agency.

Tip No 5
Where a suspect is arrested, he or she has a constitutional right to be informed of the facts and grounds for his arrest within 24 hours – Section 35 of the 1999 Consitution. This information is to be given to the suspect in a language he understands.

Nkobowo Frederick Nkobowo B.L

The information above is only provided for general information purposes and does not amount to legal advice or soliciting. Also, No Lawyer-client relationship has been created and neither can such a relationship be implied. This information is not intended to substitute the services of a lawyer, if you need legal advice, kindly consult a lawyer for your specific needs. For any further information, you could send us a mail via contact@ls-ng.com

Tip No 1Substitutional arrest is illegal. A friend or relative of a suspect is not to be arrested in place of the suspect. Let’s give an example; if the Police have reason to believe that Lakunle committed an offense and arrive his compound to arrest him but to their surprise, he is nowhere to be found. The law does not

Everyday Law

What If I Only Assisted In Planning The Crime…Am I Guilty?

fredericknkobowo

March 9, 2022

In this article, we will be discussing the various provisions of the law that revolve around; being an accomplice, aiding and abetting as well as the offence of conspiracy. To place our discussion in clear perspective, let’s begin by emphasizing the core questions we will be answering in this piece.

The questions are – what if you did not directly pull the trigger, stab the victim or partake in the direct commission of any other crime. What if like in the Money Heist movie series, you only played the role of the Professor? In other words, you gave the strategies, outlay and particularly assisted in the planning of the ‘hit’ but never even went to the scene of the crime. In fact you were only the engine room or brain box but you left the execution of the crime to another person or set of persons. Could you still be considered guilty of the crime committed in these circumstances?

As usual with the ‘what if’ series of writings in this site, we concede to what we expect to be your instinctive response – ’God forbid’ and so we will write this entire piece using ourselves as the point of reference.

So back to the question- what if I only assisted in the planning and carrying out the crime, Am I guilty?

First off, it is important to state that by offering advice for the execution of a crime, I become more than an accomplice. By definition, an accomplice is a person who knowingly, voluntarily, and with common intent unites with the principal offender in the commission of a crime. The Law looks beyond my mere advisory role and considers me to be a principal offender. The principal offender is in lay terms, the main perpetrator of the offence.

Therefore, my providing of advice and maybe strategy too, by Law places me in two precarious situations namely;

Photo Credit Photo by Max Kleinen on Unsplash

1.By Law, I am A Principal Offender:

I could be charged as a principal offender for the crime committed. Remember that we mentioned earlier that a Principal Offender is the main perpetrator of the offence. Put differently, in law I am deemed to have taken total part in committing the offense and may be charged with actually committing it. This is the effect of the following provisions of the Law – Section 7 of the Criminal Code (which applies in Southern State of Nigeria), Section 16 of the Criminal Law of Lagos State and Section 85 of the Penal Code, Section 8(a) of the Advance Fee Fraud and other Fraud related offences Act, 2004. This situation is commonly referred to with the twin words – aiding and abetting.

It would be ideal to reproduce Section 16 of the Criminal Law of Lagos State hereunder to make the point clearer –

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:

every person who actually does the act or makes the omission which constitutes the offence;
every person who does or omits to do any act for the purpose of enabling another person to commit the offence;
every person who aids another person in committing the offence; or
any person who advises, counsels or procures any other person to commit the offence.

From the Section above, it is not only the person who directly and immediately causes the actus reus (physical expression/execution) of a crime that is solely criminally liable for it. It is more likely that a number of persons may have taken ancillary steps to ensure the successfully commission of the crime. Just like our topic envisions. This situation the law has well envisaged. Consequently, as an accomplice, I might actually not be present when the crime itself is committed but since I have knowledge of the crime before, enabled or aided its execution through advice, actions or financial support, the law considers me properly guilty.

At the risk of over-emphasizing the issue. Take for instance,

Johnson drew out the blueprint of a factory, pointing out where the golden items and accessories which are to be stolen are stored. Okeke and Suleiman carried out the robbery following the details given in the blueprint plan. For a successful operation, Crowther got some cars ready outside the factory to convey the robbers (Okeke and Suleiman) and the stolen items to their hideouts. Here both Johnson and Crowther can be charged as Principal offenders even though they were not at the scene of the robbery.

It is also noteworthy to mention that where I advise a person to carry out a crime, the law (in Lagos State) is now to the effect that it does not matter that the crime later carried out is different from the one I advised. The law deems that I advised the person/suspect to carry out the crime later carried out, which may be different from my initial advice – Section 17 of the Criminal Law of Lagos State.

2. By Law, I am a Co-conspirator in relation to the offence

I could be charged for conspiring to commit the offence concerned. This is commonly called the offence of Conspiracy. It is provided for by the Criminal Code Laws of the various states. By Section 516 of the Criminal Code it is an offence to conspire to commit a felony while by Section 517, it is an offence to conspire to commit a misdemeanor ; see also Sections 96 and 97 of the Penal Code. The effect of this offence is that the intention of a group of persons to do something unlawful, amounts to an offence. So, the plot by a group of persons to carry out a crime, is in itself a crime.

In the circumstance of our current discuss, by taking part in planning out the crime, by Law I could be found guilty of the crime of conspiracy.

In summary, anyone who assists, abets, conspires with, counsels or aids another person in planning or in carrying out a crime is guilty of committing the offence and can be prosecuted in a court of law. Put differently, once it is shown that a person counselled, aided or advised on the carrying out of a crime, it is immaterial that he is not present at the execution or committing of the offence. He is guilty.

Thank you for reading.

Written By Oluboyo Olamide Taiwo LL.B (in view) and Nkobowo Nkobowo BL

Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice, solicit for briefs or suggest a guaranteed outcome as individual situations will differ and the law may change from time to time. Readers considering legal action should consult with a lawyer to get proper advice affecting a specific circumstance. For further information on contents of our site and related topics, please send us an email via contact@ls-ng.com.

Does Planning a crime carry the same punishment and legal effect as actually committing the crime? Read this piece to find out…