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.

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