By Mustapha Babalola Toheeb.
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INTRODUCTION
Now that courts are on vacation and there has been a reduction in court sittings, this has provided an opportunity for me to reflect on some of the practical experiences and lessons gathered from numerous courtroom visits in the past few months. Those reflections form the basis of a series titled Courtroom Chronicles. The series is intended to examine ordinary courtroom incidents that reveal important lessons about advocacy, professional discipline and the practical demands of litigation. Its focus is especially relevant to young lawyers particularly the new wigs who are just joining the legal profession, although the principles apply to every advocate who appears before a court.
One incident, in particular, has stood with me and it will the basis of my first reflection.
THE COURTROOM INCIDENT
I was at a particular High Court on that day, a counsel was attempting to move a motion. During the proceedings, the court asked whether counsel had verified some of the provisions under which the application had been brought. The question required counsel to identify the relevant provision, confirm its wording and demonstrate its connection to the application before the court.
Counsel attempted to do so, but it became apparent that he did not have physical copies of the relevant statute and rules of court. He also appeared not to have complete and readily accessible electronic copies on a phone, tablet or laptop. He was therefore compelled to seek assistance from colleagues in the courtroom. The search took some time and created an uncomfortable situation that could have been avoided. He later got a copy from one of the counsel in court and it was discovered that some of the provisions cited were not relevant to the application he brought before the court.
The difficulty did not arise because counsel had forgotten the case file. He had his motion papers and other processes. What was missing were the legal materials (court rules and relevant laws) necessary to establish and explain the foundation of the application. The incident demonstrates that attending court with a file is not the same as being fully prepared for court.
A court process is the written presentation of a party’s case or request. It is not, by itself, the complete body of material an advocate may need when the matter is called. Before appearing in court, counsel should identify the issues likely to arise and assemble the legal and factual materials required to address them. For a motion, this will usually include the enabling statute, the applicable rules of court, the supporting affidavit, any documentary exhibits, the written address and the judicial authorities relied upon.
Each material should be organised for immediate use. A statute that is somewhere on a device but cannot be found when the court asks a question is of little practical assistance. An electronic copy must be complete, legible, searchable where possible and available without depending entirely on unreliable internet access. Physical copies should be properly marked or tabbed. Electronic files should be clearly named and stored in a dedicated folder. Important provisions and passages should be highlighted or bookmarked before the sitting.
Preparation should also anticipate reasonable questions from the bench. Counsel should be able to state the relief sought, identify the source of the court’s power to grant it, explain the procedure adopted and show that any condition precedent has been satisfied. Where the application is discretionary, counsel should know the principles that guide the exercise of that discretion and the facts supporting a favourable exercise of it.
THE DANGER OF COPYING LAWS AND RULES FROM A PRECEDENT
A particularly important lesson concerns the use of precedents. Lawyers frequently work with earlier motions, written addresses and other processes. This is understandable. Precedents save time, promote consistency and remind the drafter of matters that may need to be addressed. The danger begins when a precedent is copied mechanically and treated as a substitute for research.
The mere fact that a section, order or rule appeared in an earlier process does not establish that it applies to a new matter. The earlier document may have been prepared under a different version of the law, under the rules of another court or for a materially different relief. It may contain a typographical error, an incomplete citation or a provision that was never relevant in the first place. If that defect is copied into a new process, repetition does not transform it into good law.
It is therefore unsafe to copy all the laws and rules cited in a draft simply because the draft appears comprehensive or was previously used by a senior colleague. Respect for seniority does not remove the drafter’s responsibility to verify the law. Every citation adopted becomes part of counsel’s representation to the court. The lawyer who signs, files or moves the process must be able to defend it.
Verification requires more than checking that a provision exists. Counsel should read the complete provision, including its subsections, provisos, definitions and related provisions. A single sentence may appear helpful when isolated but have a different effect when read in context. Definitions may limit its scope. A proviso may create an exception. Another section may prescribe a different procedure or impose a condition that the draft has overlooked.
Counsel must also check whether the legislation or rule remains in force. Statutes and rules may be amended, repealed, renumbered or replaced. Transitional provisions may affect pending proceedings. A provision cited correctly in an old precedent may no longer be the applicable provision at the time of filing. The current official text, amendment instruments and commencement information should therefore be consulted rather than relying solely on an old draft or an unverified online extract.
Jurisdiction and forum must equally be considered. A provision applicable in one State, division or level of court may not govern proceedings in another. Rules bearing similar titles may contain different numbering and requirements. Counsel should confirm that the rule cited belongs to the court before which the process is filed and that it applies to the particular type of proceeding.
Most importantly, counsel should test relevance. The question is not merely, ‘Is this a real provision?’ It is, ‘What is the relevance of this provision in this application?’ Does it confer jurisdiction? Does it authorise the procedure? Does it prescribe the time, form or evidence required? Does it support the particular relief sought? If counsel cannot explain the connection, the provision should not be inserted merely to lengthen the heading or make the process look impressive.
Where a court process cites several provisions, counsel should examine them individually and collectively. One provision may be sufficient. Another may be supplementary. A third may be irrelevant or inconsistent with the relief. The objective is not to produce the longest possible list of sections and rules. It is to identify the accurate and sufficient legal basis of the application.
AUTHORITIES MUST ALSO BE VERIFIED
The same discipline applies to judicial authorities. A case should not be cited merely because its name appeared in a previous written address or because a secondary source attributes a convenient proposition to it. Counsel should obtain and read the judgment, confirm the court and date, identify the material facts and determine the precise issue decided.
A memorable sentence in a judgment may be an obiter dictum rather than the ratio decidendi. The decision may turn on facts that differ substantially from the present case. It may have been distinguished, departed from, overruled or affected by subsequent legislation. It may also be reported inaccurately in an informal source. Verification protects counsel from presenting a proposition that the authority does not support.
Where counsel intends to rely on an authority in open court, the relevant law report should be carried in hard copy or stored electronically. The material pages and passages should be marked in advance. Counsel should be able to summarise the principle, relate it to the facts before the court and direct the court promptly to the relevant portion of the judgment. Carrying a volume without knowing where the relevant passage appears is only a partial form of preparation.
CONCLUSION
There are so many lessons to be taken away from the courtroom incident described above. A motion paper and case file are not always sufficient for a successful appearance in court. The statutes, rules and authorities supporting the application are part of the advocate’s essential courtroom equipment and should be available for immediate reference.
More fundamentally, counsel must resist the temptation to reproduce every law and rule found in a precedent when drafting a new court process. A provision should not be cited because it was present in another draft or because a long list creates an appearance of thoroughness. It should be cited only after its wording, currency, jurisdictional relevance and connection to the relief have been independently verified. The same standard applies to every judicial authority relied upon.
Preparation is not complete when the process has been drafted and filed. It is complete when counsel understands the legal foundation of the application, has tested every citation, can locate the supporting materials without delay and is ready to explain their relevance. That is the routine that metamorphoses into an effective courtroom presentation and preparation into genuine professional confidence.
ABOUT THE AUTHOR
Mustapha Babalola Toheeb is a lawyer with interest in dispute resolution practice and taxation. He is a member of the Chartered Institute of Taxation, where he is currently working towards becoming a chartered tax practitioner. He practices in Lagos and in his leisure time, he prefers to read his history books, watch football and prepare his favourite meal. He can be reached via email-toheebmustapha15@gmail.com or Whatsapp-08106244073.
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