Random Thoughts On Effective Brief Wrtting By Hon Justice Chima Centus Nweze, Ph. D.; Jsc; Fciarb

INTRODUCTION

It was just yesterday, May 15, 2019 at exactly, Two post meridiem, that I got a letter from the Honourable Attorney General of Ekiti State, Honourable Olawale Fapohunda, inviting me to speak at the “State Counsel Forum in the Ministry of Justice Academy.”

Althought the notice was short, very short indeed, I had to honour the Honourable Attorney General’s invitation. As my Igbo people would say mbele nyili Dike; mana mbelede k’eji ama Dike – sudden event and happenstances often overwhelm a man. However, a man’s prowess is, often, defined and determined by such circumstances.

I take it that his invitation is intended for me to generate ample theoretical constructs in support of the proposition that in contemporary legal practice, oratorical abilities and advocacy skill in writing, graciously, blending with a passion for legal practice, should aim at unwavering commitment to the course of justice.

CONTEMPORARY LEGAL PRACTICE: WHITHER ORATORICAL PROWESS?

In times past, oratorical prowess was the hallmark of brilliance in advocacy. This attribute, actually, dates back to ancient times – to the age of Cicero, the prince of ancient orators; to English legal history with its surfeit of legendary advocates renowned for their oratorical abilities: Edmund Burke and Robert Sheridan, famous for their breath-taking oratory; Lord Cowper, an advocate of inimitable eloquence and Lord Erskine whose oratory was simply compelling.

Indeed, Erskine, Marshall-Halls and Norman Birketts become redoubtable on account of their fiery final addresses in court. Lord Broughan’s elegance and eloquence were truly magnetic and accounted for his highly successful practice: a practice that boasted such most distinguished clients like sarah, Duchess of Marlborough, and the wife of the great Duke.^1a

In Nigeria, we equally had great names: E.J.A. Taylor whose mannerisms at cross examinations earned him the sobriquet “Cock of the Bar;”² J.I.C. Taylor and Olu Alakija – consummate advocates of matchless delivery; G. B. A. Coker and F. R. A. Williams – famous for their prodigious forensic abilities and H. O. Davies – the quintessential Bar advocate. There were other illustrious names: Bode

¹ C. oputa, in the Eyes of the Law (Owerri; Friends Law Publishers Ltd, 1992) 170

^1a A. Denning, what next in the Law ( ) 11

² K. Eso, The Mystery Gunman (Ibadan/Owerri/Kaduna/Lagos: Spectrum Books Ltd, 1996) 150

Thomas; R. A. Fani Kayode; Louis Mbanefo; Udo Udoma;³ Chike Idigbe; Gani Fawehinmi etc. Surely, prudence would not permit any mention of a host of other great advocates who are still alive.

As enthralling as the above oratorical abilities were, there was still a snag. By some curious irony, oratory conduced to pontification and demagoguery,⁴ the twin attributes that culminated in legal gymnastics and sundry gimmicks:⁵ gimmicks which brazenly exploited the provisions of the prevalent rules of court which manifested so many inadequacies. Such was the impact of those tactics that legal practice was viewed as an “elitist property.”⁶

Unarguably, such tactics were implicated in the poor perception of the administration of justice: a perception that not only prompted the evolution of neologisms such as “Multi-

³ K. Eso, loc cit

⁴ Engr. Ent. V. Ag Kaduna (1987) 2 NWLR (pt.57) 381, 392

⁶ see, The Report of The Political Burearu, 1987, cited in K. Zannah, “Prison congestion, the Court, the Police and abuse of human rights: the Nigerian Legal System in crisis,” in Vo. 7 (2000) Abia State University Law Journal 7.

Door Court House”⁷ but which, in fact, accentuated the clamour for, and the eventual inauguration of, the new era of the regime of new rules in Nigeria.

Such was the landscape of litigation that rules of court almost wore the toga of inviolability. In that setting, the temple of justice could be likened to abattoirs: where legal practitioners, employing the principal tools of their trade, namely, “the whirligig of technicalities,” daily butchered substantive issues in their “fencing game in which parties engage[d] themselves in an exercise of outsmarting each other.”⁸

Technical rules became so triumphant that, often times, the justice of the case before the court was left lying prostrate.⁹ Worse still, the inveterate canons of adversarial jurisprudence, which forbade the Judge from descending into the arena of conflict, were often misapplied. The result was

⁷ A neologism credited to Frank Sanda

⁸ see, per Aniagolu JSC (as he then was) in Afolabi v Adekunle (1983) 2 SCNLR 141, 150

⁹ Oputa JSC (as he then was) had occasion to paint “the picture of lawS and its technical rules triumphant and justice [lying] prostrate” in Aliu Bello and Ors v A. G, Oyo State (1986) 5 NWLR (pt 45) 528, 886

That Judges often sat back and watched helplessly as lawyers dissipated and squandered the precious time of the court in nauseating applications and all sorts of forensic acrobatics. The ultimate casualties, of course, were the speedy dispensation of justice and the integrity of the adjudicatory system.

REDEFINING ADVOCACY SKILL FOR THE ATTAINMENT OF EVEN-HANDED JUSTICE

ADVOCACY IN WRITING: ECLIPSE OF THE ADVOCACY OF POUNDING AND HAMMERING CASES

Like the appellate courts, many States of the Federation have adoted new rules of court. One of the new features introduced by these rules is the concept of advocacy in writing, that is, brief writing. Unarguably, its main purpose is to curtail the time that should have been wasted in lengthy oral arguments:¹ oral arguments in which verbose counsel beat out the bush.²

¹ see, per Nnaemeka-Agu JSC in Onifade v Olayiwola and Ors (1990) 7 NWLR (pt 161) 130, 160

² see, per Achike JCA (as he then was) in Omojasola v Plison Fisko Nig. Ltd and Ors (1990) (Pt 151)      434,441

Thus, although, oratorical prowess was previously a great asset in advocacy, due to the great changes which have been wrought in court rules, proficiency in the presentation of briefs has taken the place of brilliancy in oral advocacy.³

The true position, therefore, is that:

Today, mastery of brief writing is mandatory to all legal practitioners        who seek audience in the [superior courts] in this country. Brief     writing plays the same role to a legal practitioner as legal essay       writing…is to the academic lawyer…A legal practitioner will today    not be allowed to display his brilliancy in oral advocacy…unless he   has shown proficiency and presented a meaningful brief…⁴

The implication is that the dominance of advocacy in writing over oral advocacy cannot be overemphasised.5 Indeed, brief writing is an art which calls for a thorough mastery of the case. This is so because the advocate is

³ Per Achike JCA (as he then was) in Gaamstac Eng. Ltd and Anor v FCDA (1988) 296, 305-306

⁴ Per Achike JCA (as he then was) loc cit

⁵Ogbu v Arum (1981) 4 SC 1, 7

Under obligation to express himself/herself in the brief within the mandatory format provide under the Rules for writing a brief.6

In our humble view, the challenge posed by the brief system is not all together extraordinary. After all, there is even clear evidence that prior to the evolution of brief writing, great advocates of yore had manifested the three principal characteristics of a good brief. For instance, it has been pointed out that the hall nark of John Odowu Conrad Taylor’s success at the bar was his accuracy, brevity and clarity:⁷ attributes which, incidentally, characterise a good brief.⁸

Thus, just as such great advocates like J. I. C. Taylor marshalled their cases in the sort of  captivating language that arrested the attention of the judge and

⁶ see, per Achike JCA (as hethen was) in Gaamstac Eng. Ltd and anor V FCDA (supra) note 3

⁷ C. Oputa, op cit 187

⁸ In management Enterprises Ltd v ABC Merchant Bank (1996) NWLR (pt 452) the three lexical attributes of a good brief were as: brevity; precision and concision.

With such sincerity that induced belief,⁹ a good brief inevitably attracts, hold and captures the attention and interest of the Judge.

Unlike in oral advocacy where counsel may be tempted to beat about the bush, a good brief operates like an invaluable navigational aid: a compass which ought to guide counsel’s presentation.1

The new regime of advocacy, therefore, challenges advocates to redefine their grammar: “minding the traditional pitfalls in syntax and punctuation… [following] the rules governing multiple and terminal punctuation, adverbial and adjectival clauses and phrases, and interjections, transition verbs and similar elements”1a.

⁹ Dibiamaka and Ors v Osakwa and Ors (1989) (pt 107) 101, 111

¹ Dibiamaka and Ors v osakwe and Ors (1989) 3 NWLR (pt 107) 101, 111

^1aN. Tobi, The Brief System in Nigerian Courts (Lagos: CLDS, 1999) 147

Engaged to prepare a brief, they must assiduously apply themselves to their professional duties. This can do by ensuring that all the salient and crucial legal arguments that avail their clients are articulated with the mandatory provisions for brief writing.⁵

The import of such mandatory provisions has been elaborately dealt with in case law. It would, therefore, suffice here to note that what is required is that advocates writing briefs must sufficiently exert themselves with regard to: time; effort and professional skill. The ultimate goal should be the attainment of maximum brevity consistent with accuracy and clarity.⁶

The requirement of clarity of brief throws up another challenge: the challenge of knowing the facts of the case. There is considerable force in the observation that we are

⁵ Oyedeji and Ors v Adenle (1993) 9 NWLR (pt 16) 224, 233.

⁶ E.E.N.C.C.N v AG, Kaduna (1987) 2 NWLR (pt 57) 381, 414.

Now living in a new age when people cherish hard, irrefutable facts and deride empty rhetoric.7

In response to the challenge of this new age the modern advocate must demonstrate consummate mastery of the facts of the case since they constitute the inimitable fountainheads or springboard of law.8 Counsel must, therefore, shun the temptation of focusing on the law and relegating the facts which yield the law to the background.9

It would, therefore, serve no useful purpose cramming up a brief of argument with cases that have no bearing with the facts of the case. In a case involving the defence of provocation, appellant’s counsel loaded the brief with cases from Australia; England; Hong Kong and Nigeria without tying them to the facts of the case. The Supreme Court

³ C. Oputa, in the Eyes op cit 209

⁴ see, per Pats-Acholonu JSC in Obasi Bros Co. Ltd v MBAS Ltd (2005) 9 NWLR (pt.929) 117, 133 H; 132D

⁵ see, per Pats-Acholonu JSC in Obasi Bros Co. Ltd v MBAS Ltd (2005) 9 NWLR (pt.929) 117, 133 H; 132D; also I.M.N.L. v Nwachukwu (2004) 3 NWLR (Pt. 891) @ 570 – 571 H-F.

Exposed the poverty of this approach in this eloquent manner:

The Brief of the appellant looks over-packed with decided cases from far and near…That shows hard work. It also shows scholarship. But these two are just not enough… The first and, in fact, the question whether or not the facts and surrounding circumstances of this case accord with the relevant sections of our law…One does start with decided cases so that they may in future serve as precedent. This is merely an incidental aftermath based on the common law doctrine of precedent and stare decisis. Rather, decisions are primarily cases before the court. A decision, therefore, draws its peculiar quality of justice, soundness and profoundness from the particular facts and surrounding circumstances of the case it has presumed to adjudicate vis-à-vis the applicable law.¹

¹ Oladiran v The State (1986) 1 NWLR 75, 2

CASE LAW ON GOOD BRIEFS

 FORMAT AND CONTENTS OF A GOOD BRIEF

In Akilu and Anor v Fawehinmi and Anor [No 2] [1989] NWLR (pt 102) 122, Oputa, JSC, opined that:

Our Courts (the Court of Appeal and this Court) have from time to time commented on what should be the correct format and content of a good Brief. In Archbode Engineering Ltd. V. Water Resources Hydro Technique wassertechnik G.M.B.H. [1985] 3 NWLR (pt.12) 300, 304/305, the Court of Appeal, per Ademola JCA, gave some useful hints about Brief writing – the format and contents of a good Brief and commended and recommended the manual of Brief Writing by Nnaemeka-Agu.

In Atpioko Ekpan and Anor. V. Chief Agunu Uyo [1986] 3 NWLR (pt. 26) 63, 76, Obaseki, JSC, delivering the lead judgment, commented as follows:

The formats of the Brief of Argument which the appellants and Respondents are enjoined to file should follow the gidelines laid down in the Supreme Court Rules, 1985, particularly Order 6 Rule 5 (1).

Also, in Engineering Enterprise v. A-G., kaduna [1987] 2 NWLR (pt. 57) 381, 413/414, I commented on the failure of the appellant to file what should be considered to be a good brief and set out in some details what a Brief ought to contain. In spite of all these three decisions the Brief filed by the appellants in this appeal left much to be desired.

As stated clearly in Order 6 Rule 5 (1) Supreme Court Rules, 1985, a written Brief should be: a succinct statement of his argument in the appeal. The Brief shall contain what are in the appellant’s view the issues in the appeal…

Having formulated the Issues in the appeal, the rest of the Brief should deal with arguments in elaboration of those issues. Although issues, as formulated, should be referable to the ground filed what ought to be argued and stressed are those issues and not necessarily the Grounds of Appeal. For example, one issue may comprehend many grounds and it will be against the Grounds one by one, instead of the one issue arising out of those grounds. In the Brief, filed in this appeal, learned counsel for the appellants argued his grounds of court are made for the benefit of the court and the parties in order to facilitate the process of adjudication and they must therefore be followed by counsel. A good brief should mirror the real issues in controversy and so argue them as to induce conviction and acceptance.

[Italics supplied for emphasis]

ON THE TRINITARIAN ATTRIBUTES OF A GOOD ISSUE

In Adebiyi and Anor v Okebiorun, speaking for the Court of Appeal, Nweze, JCA [as he then was] said:

Every issue must evince three principal attributes: precision, clarity and accuracy. Put simply, continuity is the most becoming attribute of every good issue…

This must be so for the essence of the formulation of issues is to enable parties to an appeal whittle the complaints in the grounds of appeal in the interest of concision, Okologbuo v Isei (2005) 18 WRN 153; SPDC v FBIR (1996) 8 NWLR (pt. 446) 256; Carlen Nig Ltd v UNIJOS (2000) 19 WRN 167; Pita v Kadara (2005) 16 WRN 173.

On the other hand, the issues articulated by the respondent are very concise apropos to the grounds of the appellants’ grouse against the ruling of the lower court. His approach is consistent with Order 17 rule 2 of the Court of Appeal Rules, 2007 which defines a ‘written brief’ as ‘…a succinct statement of his argument in appeal.’

The draftsman of the rules deliberately employed the adjective ‘succinct,’ [from the Latin root, succingere (succinctus)], because of the cogency of its three lexical attributes: brevity, precision and concision. True, indeed, case law has equally identified these Trinitarian attributes as the indispensable desiderate of good briefs, Management Enterprises Ltd v ABC Merchant Bank [1996] 6 NWLR (pt 452) 249. The issues formulated by the first and second respondents are characterised by their concision.

[Italics supplied for emphasis]

On briefs of a rambling nature, Ayoola, JSC, in Chikere and Ors v Okegbe and Ors [2000] 12 NWLR (pt 681) 274 had this to say:

It is fitting to observe that the respondents’ brief filed on behalf of the plaintiffs was of a rambling nature. Although six issues for determination were identified in their brief, arguments were presented under a single head without specifying what issues were being addressed. That form of brief writing is to be deprecated. It puts an unnecessary burden not only on the opponent but also on the court, to fathom what issue arguments presented relate to and whether such arguments have relevance to any of the issues arising on the appeal.

[Italics supplied for emphasis]

 COURTS’ DISPOSITION TO BARE BRIEFS

In Yahaya v The State, the apex court observed, per Nweze, JSC:

My Lords, permit me to make one observation before I conclude this judgement. It is about the poverty of both briefs in this appeal. Both of them are, almost bare. From all indications, these briefs were, indeed, perfunctorily, prepared with no sense of duty and responsibility! The respondent’s brief is worse off!

Both counsel are, perhaps, unaware of the fact that, in this new regime of advocacy in writing, proficiency in the presentation of briefs is now a major determinant of advocacy, Gaamstac Eng. Ltd and Anor v FCDA (1988) 4 NWLR (pt 88) 296, 305-306; Dibiamaka and Ors v Osakwe and Ors (supra); Folorunsho v Folorunsho (supra); Oyadeji and Ors v Adenle (supra).

1. O. Suleiman, Esq., respondent’s counsel, who described himself as “Deputy Director, Ministry of Justice, Kabba Zonal Office Kogi State,” exhibited his inexcusable, indeed, unpardonable ineptitude in the brief he prepared. I therefore, implore the Honourable Attorney General of Kogi State to, closely, monitor and supervise the activities of persons such as counsel for the respondent in this appeal. I shall say no more on this!

[Italics supplied for emphasis]

FINALLY, A WORD ON REPLY

The function, aim, role or purpose of a Reply Brief is to answer or deal with any new points arising from the respondent’s Brief. Nnaemeka-Agu, J““““`SC., in Ikpala and Anor. V Ibeme and Ors. [1989] 3 SC (pt. 1) 61; [1989] 2 NWLR (pt. 102) 208 made the same observation.

In his words “what is provide for is a Reply Brief where necessary…. Even so, where it is necessary, it should be limited to any new points arising from the respondent’s Brief.” It is interesting to note what Kendall Griffth, a lawyer and past president of the Appellate lawyers Association of Illinois bar, said on Reply Brief in his article titled “Effective Brief Writing,” contained in a journal called “The Forum” (1980 – 81) vol. 16 at apge 469: A Reply Brief if filed at all should be short and hard hitting. It should answer any matter raised for the first time on the appellant’s Brief, if the appellant has completely missed the point or has confused a legitimate point, a reply is appropriate. Clarification should be succinct and brisk

In Asinola v Fatodu (2009) 6 NWLR (pt 1136) 184, Nweze, JCA, [as he then was], explained that:

If a reply brief were to be a forum for re-argument, there would be no end to it, particularly for those legal practitioners who have a prodigious proclivity for circumlocution in their peroration.

In lieu of conclusion

As indicated at the outset of this presentation, I received the invitation to do this presentation just yesterday. I have, thus, only presented my random thought on the topic. I, therefore, leave the flour open for your superior interventions.