MOST COUNSEL APPEARING BEFORE THE SUPREME COURT CITE CASES LIKE ROBOTS – NWEZE, JSC

Access Bank Plc v. Onwuliri [2021] 6 NWLR (Pt. 1773) 391 at 418-419

My Lords, permit me to make one observation before signing off this Judgment. Learned Counsel for the Appellant, like most Counsel appearing before us, has the tendency of adopting a mechanical, robotic approach to the citation of cases. In the instant appeal, although the 2007 Court of Appeal Rules make it mandatory for the Appellant to compile and transmit the record of appeal, where the Registrar defaults, thus shifting the burden to the Appellant of ensuring that a complete record is transmitted, he fell back on decisions that pre-date the innovations which the Court of Appeal Rules, 2007 Rules introduced. To say the least, this style of advocacy stultifies the evolution of speedy trends in justice delivery. I shall say no more.

Notes

The point his Lordship clearly made was that Counsel to the Appellant cited irrelavnt cases to the Court in his attempt to argue the appeal. The Judgment of the Court of Appeal being appealed against was delivered on 4th July 2013. The Notice of Appeal was filed on 20th August 2007 before the 2007 Rules came into effect. But the 2007 Rules subsequently caught up with the appeal. (The Court of Appeals was later upgraded to 2011 Rules and today we have the 2016 Rules).

What happened in the case was that judgment was delivered against the Appellant (Access Bank Plc) for wrongful dismissal of the Respondent. The Appellant appealed to the Court of Appeal. In the course of transmission of the record of proceedings to the Court of Appeal, some of the exhibits tendered by the Respondent, particularly the Appellant’s Staff Handbook, were omitted. The trial Court had placed heavy reliance on the Staff Handbook. The Court of Appeal dismissed the Appeal for non-production of some of the exhibits it considered vital to the appeal. It happened that the exhibits were eventually transmitted to the Court of Appeal when the omission was discovered. This was a day before the Court of Appeal delivered its Judgment.

The Appellant appealed to the Supreme Court. On 15th January 2021, the Supreme Court allowed the appeal on the ground that before the Court of Appeal delivered its Judgment, all the material required for the just determination of the appeal was before the Court. The apex Court held that the Court of Appeal was wrong to have dismissed the appeal which was not heard on its merits. At best, a striking out order could have been made. The Supreme Court ordered the remittance of the appeal to the Court of Appeal to be heard by another panel.

Although the Appellant succeeded, the problem Nweze, JSC had with the Appellant’s Counsel was that the Appellant’s Counsel relied on cases decided before the coming of the Court of Appeal Rules 2007 in making his further submissions which was to the effect that an appellate court hearing an appeal has a duty to ensure that the records settled by the parties are completely transmitted and that in the event that a portion material to the determination of the appeal is found to have been omitted, the appellate court ought to make diligent efforts to procure same before determining the appeal before it. Some of these cases include Nwanna v. F.C.D.A. [2007] 11 NWLR (Pt. 1044) 59 at 79-80 and Okochi v. Animkwoi [2003] 18 NWLR (Pt. 851) 1at 23. The cases were based on older Court of Appeal Rules (1981 and 2002) where it was the sole responsibility of the Registrar to compile and transmit records and there was no time limit prescribed. This was however cured in the 2007 Rules which mandates the Appellant to compile and transmit records upon any default by the Registrar.

Thus, the Appellant’s Counsel ought not to make those additional submissions relying on cases decided before the 2007 Rules.

Aside the Appellant’s Counsel “mechanic and robotic approach” in citing cases, Nweze, JSC indicted other Counsel when his Lordship noted that most Counsel appearing before the Supreme Court appear to be in the same “WhatsApp Group” with the Appellant’s Counsel in that approach. His Lordship did not elaborate on this assertion which was probably exaggerated for the purpose of emphasis.

Nevertheless, perhaps one may use this opportunity to discourage the practice of reference to many irrelevant and superfluous judicial authorities by Counsel in written addresses and Brief of Argument. Counsel are advised to learn to make succinct submissions and to cite only authorities relevant to their submissions. Verbosity is not advocacy. The volume of briefs does not determine the strength of submissions. Briefs should be brief and rich in content.



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.

Leave a Reply

Yes No