By Stephen Azubuike
Legal advocacy entails a lot. A good advocate is known by a number of qualities and skills which include analytical skills, research skills, listening skills, responsiveness, sound logical and philosophical thinking mind, creativity, ability to think on one’s feet, persuasive skills, communication skills among others.
In the case of persuasive and communication skills, a good advocate relies on an excellent use of language in presenting arguments, making submissions, and above all, in praying the court for certain reliefs or urging the court to agree with counsel’s position. In this era of written advocacy where counsel is obliged to present most of his points in writing, counsel is expected to rely on good drafting skills as well.
As a learned gentleman, counsel is expected to show maximum respect to opposing counsel and to the court. Rule 26(1) of the Rules of Professional Conduct for Legal Practitioners 2007 (RPC) provides that “Lawyers shall treat one another with respect, fairness, consideration and dignity, and shall not allow any ill-feeling between opposing clients to influence their conduct and demeanor towards one another or towards the opposing clients.”
In relation to the court, Rule 31(1) of the RPC provides that “A lawyer shall always treat the court with respect, dignity and honour.
Sadly, the counsel that appeared at the Supreme Court in a recently reported case appears not to have the provisions of Rule 31(1) in his own copy of the RPC. This was in the case of Mrs. Olajumoke Siwoku & Ors v. Mr. Oladayo Fasakin & Ors [2022] 12 NWLR (Pt. 1844) 215 SC.
The counsel in question represented the Appellants in the case involving the last will and testament of one late Chief Julius Abiodun Lewis Fasakin who had died on 14 September 2000. Counsel had approached the court contending that the Appellants were entitled to a grant of probate. The trial court agreed and delivered judgment in the Appellants’ favour. The 1st Respondent appealed. His appeal was successful. Aggrieved, the Appellants further appealed to the Supreme Court. His appeal failed. The Supreme Court dismissed it on 4 June 2021. In his Brief of Argument filed on behalf of the Appellants, the Appellants’ counsel made the following remarks:
Page 12 paragraph 2 –
We submit with due respect that it is the above misinterpretation that the court below swallowed hook [line] and sinker without giving any consideration to the evidence before the trial court…
Page 18 paragraph 8 –
At this stage, it is important to look at the findings, the fulcrum, and substratum that propelled the learned Justices of the court below to come to this grievous egregious wrong conclusion that have occasions (sic) a gross miscarriage of justice.
Page 24 paragraph 2 –
With the above pronouncement, the court below did not examine the brief of argument of the Appellants at pages 254 to 271 of the records of appeal, the issues formulated thereto as well as did not examine the real evidence before the trial court but rather the court below glued at and stereotyped with the issues formulated and argued by the learned counsel to the 1st Respondent…
Okoro, JSC spotted the above offending paragraphs in the Appellants’ Counsel’s brief of argument, especially the italicized parts and had this to say:
My Lords, I am unable to gloss over the highly reprehensible diction employed by learned counsel to the Appellants in his brief of argument while referring to the learned Justices of the court below… I was taught that we lawyers are revered for our decorum. In this case, I must say that the words employed by counsel, some of which are highlighted above, are condemnable to say the least. I say no more.
Most times, what inspires improper use of language is the idea of taking a client’s matter personal and getting emotional in the course of conducting a client’s case. Counsel must remain professional at all times in the discharge of his or her duties. Rule 35(b) of the RPC provides that when appearing in court, a lawyer shall conduct himself with decency and decorum, and observe the customs, conduct and code of behavior of the Court and custom of practice at the bar with respect to appearance, dress, manners and courtesy.
This article posted on 7 October 2022 was originally published on https://stephenlegal.ng/unbelievable-read-the-diction-used-by-counsel-in-a-brief-supreme-court-blows-hot/ by Stephen Azubuike.
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies, and multinationals. He has advised a number of both established and startup tech companies. He tweets @siazubuike.
