By Hameed Ajibola Jimoh Esq.
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INTRODUCTION:
‘Advocacy’ in our Nigerian courts of law especially the Superior Courts of Records has been rendered into ‘written advocacy’ in the current Nigerian Administration of Justice System. Definitely, such system is not without its impacts and implications in such Administration of Justice System, which is what this paper aims at assessing. Hence, this topic.
CONCEPTUALISATION OF ‘ADVOCACY’ IN THE ADMINISTRATION OF JUSTICE SYSTEM
‘Advocacy’ by Oxford Advanced Learner’s Dictionary, 6th Edition, at page 18, is defined as ‘(technical) the work of lawyers who speak about cases in court of law’. (Underlining is mine for emphasis). Black’s Law Dictionary, by Henry Campbell Black, M. A., Revised Fourth Edition, the Publisher’s Editorial Staff, St. Paul, Minn. West Publishing Co., 1968, at page 75, defines the word ‘ADVOCATE’, (verb) as ‘To speak in favor of; defend by argument. Ex parte Bernat, D.C.Wash., 255 F. 429, 432. To support, vindicate, or recommend publicly. Butash v. State, 212 Ind. 492, 9 N.E.2d 88, 90.’. (Underlining is mine for emphasis). Also, the same Black’s Law Dictionary defines ‘ADVOCATE’, (noun) as ‘One who assists, defends, or pleads for another; one who renders legal advice and aid and pleads the cause of another before a court or a tribunal, a counselor. Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694, 697. A person learned in the law, and duly admitted to practice, who assists his client with advice, and pleads for him in open court. Holthouse. An assistant; adviser; a pleader of causes. Derived from advocare, to summon to one’s assistance; advocatus originally signified an assistant or helper of any kind, even an accomplice in the commission of a crime; Cicero, Pro Ccecina, c. 8; Livy, lib. ii. 55; 47; Tertullian, De Idolatr. cap. xxiii. ; Petron. • Satyric. cap. xv. Secondarily, it was applied to one called in to assist a party in the conduct of a suit; Inst. 1, 11, D, 50, 13. De extr. cogn. Hence, a pleader, which is its present signification.’. (Underlining is mine for emphasis). The above definitions in my humble submission, emphasise the fact that ‘advocacy’ is ‘connected with an ‘advocate’ i.e. a lawyer. Also, it is clear from the definitions that ‘advocacy’ in its real sense, relates to ‘oral i.e. spoken advocacy’ as opposed to ‘written advocacy’.
IMPACTS AND IMPLICATIONS OF ‘WRITTEN ADVOCACY’ AGAINST ‘ORAL ADVOCACY’
In the time immemorial (prior to this era of ‘written advocacy’), lawyers used to conduct cases and defend their clients in the open court with ‘oral advocacy’, eloquence, oratory, and other skills, gesticulations, etc., accustomed to a professional as they were. The mere display and demonstrations of such lawyers in the open court and in public could move the mountain! However, with due respect, in my humble observations and submission, this era of Nigerian Administration of Justice System has abandoned the most interesting part of litigation and advocacy and rendered same to a ‘written’ and or what I could call ‘documentary advocacy’ and this, in my humble view, is sad! Aspirants to the legal profession were prior to this present era, motivated, inspired and intrigued by such: physical appearances; artistic; and aesthetic skills that accompany such presentation of cases and or defences of those lawyers in the court of law and in public! Lawyers of that era were distinguished as Honourable Ministers in the Temple of Justice per excellence. Those lawyers of that era (of blessed memory) chose their words with ‘onions and spices’. In fact, their words were tools and their appearances in courts and in the public was a symbol; their oratory prowess was a beauty that the audience would definitely fall in love with! Paying them peanuts for their legal and professional services was seen by the client as an ‘insult’ cum ‘embarrassment’ to those lawyers to the extent that the peanuts available is dropped in the lawyer’s robe rather than physically paying the lawyer to an insulting and embarrassing parade. Law in that era was interesting and enticing! However, the present era is occasioned with ‘written’ or ‘documentary’ advocacy. ‘Oral advocacy’ has been rendered to the base if not annihilated! Lawyers are almost no more being respected in the society! The phrase ‘what are lawyers doing self’ is not far-fetched! Boldly, a client would even tell his lawyer that he should manage a ridiculous amount of money as professional fee (despite all his professional efforts expended to his client’s service)! A client could afford to pay a person who has oppressed him (with huge money for a supposed undeserved appreciation)! Clients do not see the work of a lawyer in the society anymore as ‘worth it’! So are a number of the ill-fates of lawyers of this generation in the present Nigerian Administration of Justice System! The above identified sad situations have indeed been detrimental to the Nigerian Administration of Justice System when the morale of lawyers have been killed and or seriously affected by the ‘supposed written’ or ‘documentary advocacy’ system!
OBSERVED ADVANTAGES OF ‘WRITTEN ADVOCACY’ TO THE NIGERIAN ADMINISTRATION OF JUSTICE SYSTEM
Some of the below advantages might be credited to the ‘written advocacy’ from my observations such as that:
- Written advocacy saves judges (who might be of old age) the stress of long handwriting;
- Written advocacy transforms lawyers to making written address and arguments and helps in the rebuilding of written-savvy lawyers’ opportunities of making their views in a comfortable manners;
- Written advocacy permits amendment of court processes in case of new facts or discovery or errors;
- Written advocacy saves time that would have been expended on a court proceedings by lawyers;
- Oral advocacy is still majorly obtainable in a criminal case (though in regard to taking witnesses’ evidence) but legal arguments on law would be limited to written advocacy or arguments.
OBSERVED DISADVANTAGES OF ‘WRITTEN ADVOCACY’ TO THE NIGERIAN ADMINISTRATION OF JUSTICE SYSTEM
Notwithstanding the above advantages, the following disadvantages (which are numerous) would discredit those advantages as disadvantages of the ‘written advocacy’ as compared to the ‘oral advocacy’ as follows:
- Written advocacy gave birth to the death of oral advocacy and the birth of written advocacy;
- The positive effects and or needs of lawyers are not almost felt in the society as courts with ‘oral advocacy’ system have the effects of showcasing great talents a lawyer has got even to the impression and satisfaction of the clients and the audience in open court;
- Points raised by lawyers (especially lawyers who prefer oral defence and arguments to written) might not be all taken in the written form thereby leading to miscarriage of justice;
- Written advocacy gives birth to need for amendment of court processes already filed (even in multiple times) and places financial burden of the amendment on the litigant;
- Written advocacy makes Judges having to read and digest a volume of court processes ranging to a number of pages and many times, steals the judge’s private or personal time outside official working hours;
- Litigant stands a risk where a judge who presides over the case does not like reading pages or volumes of documents;
- Written advocacy is a reason why some judgements and rulings are delivered outside 90 days stipulated by the constitution;
- Written advocacy is a cause for gradual annihilation of litigation practices in Nigeria;
- In written advocacy, time is not actually saved as some Senior Advocates of Nigeria (SAN)’s proceedings in court consume the judge’s time in a discriminatory way that is seen discriminatory to other non-SAN lawyers. So, the rules are not always abided by by some if not a number of Judges when it concerns the SANs and their conduct of proceedings in court;
- Written advocacy is a reason for unnecessary and frivolous appeals to the appellate courts because the judge might not read and understand the written argument of counsel and the issues formulated because of having to attend to a number of other cases pending before him;
- In written advocacy, the justice in a case is not always evenly obtained in the administration of justice system as it would do in an oral advocacy;
- Written Advocacy places financial burdens on litigants to having to file processes and lawyers have to type and argue long hands;
- The written advocacy also has its health implications on both the judges and the lawyers such as: long typing on computer system; backbone pains as a result of long sitting on computer preparing for cases; eyes problems; etc.;
- In written advocacy, a lawyer is not even afforded the opportunity to canvass and or adumbrate his arguments filed in court orally but to adopt same save for new points on law that came to his knowledge after the filing of the case and in that case, with a very short time before he is interrupted by the presiding judge for taking much of the court’s time.
RECOMMENDATIONS:
In my humble submission, for a workable Administration of Justice System in the Nigerian Court System, the following are my humble recommendations as a way forward:
- A reversion to ‘oral advocacy’ as opposed to ‘written or documentary advocacy’;
- There should be provisions of enabling technological gadgets to record court proceedings;
- Appointment of more competent and qualified judges on merit to preside over court cases so that a judge does not have to handle many cases a day and even if a case in oral advocacy would take about two (2) hours a day, facts, evidence, and other necessary proceedings would still be achieved even if a judge has to take at least three (3) to a maximum of five (5) cases a day as the case might. Such a judge would have enough time left to peruse all the necessary oral arguments and still deliver his Rulings and or Judgments within the time stipulated by law.
CONCLUSION:
Finally, this paper is just my opinion on the debate between ‘written advocacy’ and ‘oral advocacy’ in the Nigerian Administration of Justice System, though, the ‘written advocacy system’ seems to have come to stay in the present era, only God knows what would be obtainable in the future ahead. The reader might be almost enquiring on which side of the coin do I stand between the two arguments (for or against)?! The answer to the reader is definitely discernable from what I have stated above!Email: hameed_ajibola@yahoo.com, 08168292549.
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