By S.O. Giwa Esq. a.k.a pentalk

Just as the Rhyme is an attributable feature with the preschool pupils, so also is the interrogative sentence: ‘Is anyone with a precedent on …?’ or ‘Do you have a precedent on …?’a common question from many lawyers in Nigeria. What then is the meaning of precedent as commonly used by many lawyers in Nigeria?

The word ‘Precedent’ in law refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts or similar legal issues. The definition of the word ‘Precedent’ from Oxford Languages is an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.

Flowing from the definition of the word ‘Precedent’ from Oxford Languages is an inferential fact that the word ‘Precedent’as commonly used by many lawyers in the practice of law means the use of legal document sample for use as an example or guide in the draft of a required document, which to the user, is similar in all forms to the document sample intended to be used as a guide.

It is no gainsaying that as good as the use of legal document sample ‘Precedent’ is as a guide and example, the use of the legal document sample ‘Precedent’ has made some people in the society not to  value the services of legal practitioners with their rhetorical question: ‘What does a lawyer do? Hence, there is no monetary value for the legal practitioner’s services to the public because the use of Precedent in the practice of law has given many laypersons jobs via its use to draft legal documents at a cheaper cost.

It is against this background that this piece is written  to discuss the negative effect which the adherent use of legal document sample called ‘Precedent’ has caused in the practice of law and urgent need for caution as regards the use of ‘Precedent’ and not a total condemnation of the use of ‘precedent’ in the practice of law.

The negative effects of the use of precedent in the practice of law are discussed in the succeeding paragraphs:

BLATANT DISREGARD FOR STATUTE

A statute is a written law passed by a legislative body whose compliance in the practice of law is jealously guided and it is a known fact that there are several statutes but for this discussion, the Evidence Act, Cap E. 14, the Laws of the Federation of Nigeria 2004 is used for discussion under this heading.

It is not an overstatement that many lawyers cannot prepare an affidavit without asking for a precedent and this adherence to the use of precedent to prepare an affidavit has made many laypersons see themselves as experts in the preparation of an affidavit to the extent that the word ‘affidavit’ has become a usual word of marketing by laypersons.

Going through the precedents on the affidavit which the writer obtained on request to write this piece evinced that all the paragraphs of the precedents on affidavits obtained by the writer except the first paragraph have the word ‘that’ starting each paragraph which is not a requirement of any of our laws and the use of the word ‘that’ which has no significance in the procedural scene of an affidavit has now become a tradition.

It is a clear provision of section 117 (1) (c) of the Evidence Act that every affidavit shall be in the first person, and divided into convenient paragraphs numbered consecutively and yet, every paragraph of the affidavit in use in our court is with the word ‘that’ as if the word ‘that’ is the first person which the law provided for.

It is the writer’s stand that the frequent use of the word ‘that’ to begin every affidavit is born out of the use of precedent hook, line, and sinker by many legal practitioners and this repetitive use of the word ‘that’ to begin every paragraph of an affidavit is a blatant disregard for statutory provision on the form of an affidavit which has become a tradition with no legal backing and the said tradition is merely a relic of colonialism which needs to be stopped.

Besides the above-discussed disregard for provision of section 117 (1) (c) of the Evidence Act, a statute, is the noticeable disregard for provision of Oaths Act Cap. 01, the Laws of the Federation of Nigeria 2004, another statute, which provides for Statutory Declaration with a guided sample.

It is worth saying that the form of Statutory Declaration which is set out in the first schedule to the Oaths Act does not start with the use of the word ‘that’, yet, many precedents in circulation have the word ‘that’ preceding every paragraph. Fortifying the above is paragraph 26 of the Counter-Affidavit of a deponent that was considered in Lawal-Osula v. U.B.A Plc. (2003) 5 NWLR (Part 813) 376 @ 387 paragraphs F-H which reads:

‘that I, Festus Ohikhaubor Idonije, do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true and by the provisions of the Oaths Act, 1990.’

It is the writer’s firm stand that the use of the word ‘that’ by the deponent in the above-quoted paragraph is born out of the use of precedent for the draft of an affidavit by many legal practitioners which needs serious caution in its use and blatant disregard for statute at the expense of precedent should be put to a halt.

BLATANT DISREGARD FOR RULES OF COURT

It is no gainsaying that the judicial process in every society is regulated by procedural rules which keep changing to suit the changing needs of the society. With the changes which have been made to some High Court (Civil Procedure) Rules of some States, the use of precedent has made many legal practitioners redolent of the colonial use of precedent in the practice of law. One may be wondering how the use of precedent has made some legal practitioners redolent of the colonial use of precedent in the practice of law.

Quenching the thirst of many on how the use of precedent has made some legal practitioners redolent of the colonial use of precedent in the practice of law calls for reading through High Court (Civil Procedure) Rules in force in some states of the Federation to find out to what extent has the draft of some precedents on an application for amendment of pleading complied with the provision of the Rules on amendment of pleading vis-à-vis the reliefs in those precedents.

A close study of High Court (Civil Procedure) Rules of some States particularly Ogun and Oyo to find the areas of difference in their provisions evinced that the deeming provision for already filed amended process is provided for under Order 24 rule 9 of High Court of Ogun State (Civil Procedure) Rules 2014 but there is no such provision in Oyo State High Court (Civil Procedure) Rules 2010. With this noticeable difference in the aforesaid State High Court (Civil Procedure) Rules, the precedents on an application for amendment of pleadings in Oyo State High Court which the writer obtained on request for this piece have a relief for deeming order of the pleadings which the Oyo State High Court (Civil Procedure) Rules does not provide for.

One keeps to wonder the reason for the inclusion of such relief which the aforesaid Rules of Court do not have any provision for but a research revealed that those applications for an amendment that do have such relief for deeming order are products of the use of precedent without any regard for the aforesaid Rules of Court.

Also, it is the writer’s observation that some legal practitioners are still fond of applying for leave of court to serve a defendant outside the jurisdiction of the court where a writ of summons is being issued despite the repeal of former Rules of Court which provided for seeking leave. This act of applying for leave by some legal practitioners even though there is no provision for such in any State High Court (Civil Procedure) Rules found out and attributable to the use of precedent with total disregard for the extant Rules of Court which need to be stopped. There are other instances but for this piece, few instances are discussed.

PROMOTER OF ERROR AND BLUNDER

How has the use of the precedent become a promoter of error, blunder and mistake in the practice of law might be a strong worry of some readers. The readers’ worries and sentiments can be dislodged with the discussion in the succeeding paragraphs.

It is equally not in doubt that sourcing for precedents on applications particularly a Motion Ex-parte for substituted service in the practice of law is not an exemption.

Going through the precedents obtained by the writer on request for this piece evinced that all the precedents on Motion Ex-parte for substituted service obtained by the writer on request headed boldly with the title ‘MOTION EX-PARTE but they have ‘Take Notice that this Honourable Court….’ as the introducing paragraph of the body of those precedents. The pressing questions to ask are: ‘Which notice required in an ex-parte application?’ and ‘Who is to take notice in a Motion Ex-parte?’ These precedents on a Motion Ex-parte are in circulation in large numbers without any caution for their use or seeing them as wrong processes for a draft of ex-parte application in the practice of law. Is the precedent not a promoter of error and blunder?

In concluding this piece at this juncture, it is worth saying that there are still other negative effects of the adherent use of precedent in the practice of law which includes Counsel’s laziness and loss of interest in reading and research for discussion; but the writer deems it fit to end this piece to avert readers’ boredom.

Before giving the writer’s pen a restful rest, it is important to say that for the introduction of written address as an accompaniment of every motion and counter-affidavit by the Court of Appeal Rules 2021 which came into force in November 2021, the effect of the use of precedent in the practice of law has started manifesting as some legal practitioners have started putting calls to their colleagues for precedents on an address as if there had been much in the past.

Though it is a laughable thing; the writer is of the firm view that there is an urgent need to put caution to the use of precedent in the practice of law to preserve the sanctity of the noble profession and to arrest the fallen standards of the legal professions and a decline in the quality and competence of members of the legal profession which some senior members are bitterly complaining of, the writer calls for a serious-minded caution for the use of precedents in the practice of law and a stop to the saving of precedents on computers at business centres. May God keep providing for us and Happy New Year.

Watch out for the writer’s new book,entitled: ‘Advocacy skills made easy’

By S.O. Giwa Esq. a.k.a pentalk (Ibadan-based Legal Practitioner), giwa_pentalk@yahoo.com 08035224192

Written By Obioma Ezenwobodo Esq

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