AngelicaA Paper Presented at the Symposium and Award for the Inter Class Moot Competition of the West African Law Students Association (WALSA) Bayero University Kano Chapter in collaboration with Economic and Financial Crimes Commission (EFCC) held on Monday 26/2/2024 at Hassan Gwarzo Court Room Faculty of Law Bayero University, Kano State.
By: Chief Ikenna C. Ekpunobi Esq.
1. MEANING OF ADVOCACY.
Black’s Law Dictionary defines the term advocacy as firstly, the work or profession of an advocate. Secondly as the art of pleading for or actively supporting a cause or proposal, especially in lawsuits. It went further to state that advocacy requires a thorough grounding in the relevant facts, sound knowledge of the applicable legal principles, and the skills of persuasive written and oral presentation. It also defines an advocate as someone who assists, defends, pleads or prosecutes for another.
Simply put, the term Advocacy is the act of representing and defending the rights and interests of others. The word Advocacy is derived from the latin term ‘advocare’ which means to advocate, defend, or protect. Jurisprudentially, the term advocate denotes the work or profession of an advocate, the act of pleading for or actively supporting a cause or proposal. Kindly refer to the apex court in Emeka v. Inspector General of Police (2021) All FWLR [Pt. 1095] Pg. 2400 (SC).
One who engages in advocacy is referred to as an advocate. The word advocate finds its root in the latin word ‘advocatus’ which means “a pleader on one behalf” or “one called to aid”. When someone publicly supports the interest of an individual, group, or cause, thereby are engaging in advocacy. Advocates work to ensure that individuals or groups receive fair treatment, access to resources, and opportunities to have their voices heard in various contexts, such as legal, social, or political matters.
Advocacy is not limited to the practice of advocates in courts of law but also encompasses the other professions and professionals who champion the cause of others and speak, make presentations on their behalf, etc. In this wise, we have the social and environmental activists, healthcare/patient advocacy, girl child activist and campaigners etc.
2. LEGAL ADVOCACY.
Advocacy as it relates to lawyers and the legal profession is referred to as legal advocacy and this entails Legal advocates who are trained professionals who help people navigate the justice system. Legal advocacy includes tasks like educating people on their rights and legal options, representing an individual’s best interests in the system, and helping with administrative activities.
Legal advocacy is used in a variety of situations, including criminal trials, civil litigation, family law disputes, administrative hearings, appeals, and alternative dispute resolution processes. It is employed whenever legal representation and the presentation of arguments are required to protect and advance the rights and interests of individuals or organizations.
Advocacy as an art of persuasion is probably as old as law itself. It is no exaggeration to say that cases are won on good advocacy, while others are lost on bad advocacy. Advocacy in its purest form is generally considered, particularly in most English-speaking African countries, as a technique that is designed to ultimately persuade an arbitral tribunal to accept the arguments and position of an advocate and consequently grant the relief that he or she seeks.
This objective is ideally achieved by thoroughly understanding the facts of the dispute and being able to relay it to the tribunal in a structured and chronological manner; and assisting the tribunal to understand the issues for determination in the case that is being presented, in a clear, efficient and persuasive manner, as far as the factual background and applicable legal principles permit. Arguments are generally based on legal precedents (to the extent possible) and applicable legal rules, which are then applied to the facts.
3. KEY ADVOCACY SKILLS AN ADVOCATE SHOULD POSSESS.
a. Strong Communication: Advocates must be adept at clearly articulating complex legal arguments and presenting them in a persuasive manner. Effective communication skills help advocates engage with judges, juries, and opposing counsel.
b. Legal Knowledge: An in-depth understanding of the law is essential for advocates to navigate legal complexities, identify relevant precedents, and craft compelling arguments based on solid legal foundations.
c. Analytical Thinking: Advocates need strong analytical skills to assess evidence, identify legal issues, and construct logical arguments. This enables them to build a persuasive case and effectively counter opposing arguments.
d. Confidence and Resilience: Advocates must exude confidence in their abilities and remain resilient in the face of challenges. This helps them maintain composure during high-pressure situations and effectively respond to unexpected developments in court.
e. Empathy and Persuasion: Effective advocates possess the ability to empathize with their clients, understand their needs, and tailor their arguments accordingly.
4. TYPES OF ADVOCACY.
Lawyers engage in various types of advocacies to represent and advance their clients’ interests, these include:
a. Litigation Advocacy: This involves representing clients in court proceedings, presenting arguments, examining witnesses, and making legal submissions. Litigation advocacy focuses on persuading judges or juries to rule in favour of the client’s position.
b. Legislative Advocacy: Lawyers may engage in legislative advocacy by lobbying for or against specific laws or regulations. They draft proposed legislation, provide expert testimony, and work with policymakers to shape and influence legal frameworks.
Also lawyers (and even non lawyers) who find themselves as law makers whether at state or federal level also engage in legislative advocacy through persuasive submissions and arguments in moving motions and convincing their colleagues on why a given bill should be passed into law or Act, as the case may be. This is the same way most of the laws and Acts we have today were passed.
c. Policy Advocacy: Lawyers advocate for policy changes and reforms on issues affecting their clients or society. They may engage in research, analysis, and advocacy campaigns to promote changes in public policy, often collaborating with advocacy organizations and other stakeholders.
d. Public Interest Advocacy: Lawyers may engage in public interest advocacy to address systemic injustices, protect vulnerable populations, and promote social justice. This may involve impact litigation, strategic advocacy campaigns, and working with non-profit organizations to advocate for broader social change.
e. International Advocacy: Lawyers involved in international law may engage in advocacy before international courts, tribunals, or other international bodies. They may represent states, individuals, or organizations in matters such as human rights, international trade, or disputes between nations. For example, a Nigerian International lawyer Chief Ned Nwoko was instrumental through his advocacy skills in achieving the refund of the Paris and London clubs fund to Nigeria.
f. Judge Advocacy: Under the Military law, a Judge Advocate who is an officer of a court martial acts as a prosecutor. He is also a legal Adviser or a Military Commander Staff. A Judge Advocate is just in the nature of a state counsel being a legal officer serving in the court martial to prosecute any person arraigned before the court. Indeed, the duty of Judge Advocate does not extend taking part in the final decision making. He is comparable with a legal officer from the office of public prosecution in the Ministry of Justice, who prosecutes in the common law courts.
He only prosecutes by presenting the facts and the law to assist the presiding Judge to arrive at a just decision on complaint or charge presented. See Nigerian Army v. Lt. Dodo (2012) 51 NSCQR 122 at pg. 135, Per A.M. Mukhtar, JSC (as he then was).
g. Judicial Advocacy or Activism: Just like lawyers in practice, Judges also do engage in judicial advocacy popularly known as Judicial Activism. This usually happens when a Judge having been persuaded by a lawyer’s superior argument on a grey area of law, decides to create a new principle as precedent on a particular area of law where none hitherto existed.
This is how we come about judicial precedents and that’s how the law grows. In the celebrated foreign case of Donoghue v. Stevenson the neighbourhood principle and meaning was (through brilliant advocacy of counsel was accommodated by the Judge) stretched to include any person who will be affected by the act of the other person.
In that case, the ginger beer bought from the Respondent for Mrs. Donoghue by her man contained a decomposed snail. Mrs Donoghue suffered from personal injury due to this and proceeded to claim against the manufacturer which was successful and resulted in the establishment of the modern law of negligence and the neighbour test.
Thus by that singular precedent, a neighbour ‘to whom you owe a duty of care’ ceases to be only that person living next to you, but includes any other person who will be affected by your actions or products. For example, a consumer of peak milk or milo in kano state will be held to be a neighbour of the manufacturer in far away Ogun state; for the purpose of holding the manufacturer accountable to produce standard products for the consumer.
Similar examples exist in other fields of life where through judicial advocacy or activism the law has grown, stretched and developed over the years in the overriding interest of justice and common good. Judges in Nigeria ranging from NIKI TOBI JSC (as he then was), to CHUKWUDIFU OPUTA JSC (as he then was), to MARY PETER-ODILI JSC (as he then was) and many other of their kind engaged in judicial advocacy or activism and our legal jurisprudence continues to get better.
Time will not permit to mention so many other justices in this category and the cases where they demonstrated judicial advocacy or activism. However, below are some few selected cases where for example, NIKI TOBI JSC (as he then was) demonstrated judicial advocacy or activism:
i. Mrs. Olayinka Adewunmi &ors v. Mr. Amos Oketade SC. 78/2001 delivered on Friday the 5th day of March, 2010.
ii. Mrs. Ethel Onyemaechi David Orji v. Dorji Textiles Mills (Nig) Ltd & 2 ors; and Mrs. Ethel Onyemaechi David Orji v. Palm Gardens Hotels Ltd SC. 62/2003 delivered on 18th day of December, 2009.
iii. Feed & Food Farms (Nigeria) Ltd. v NNPC SC.244/2003 delivered on Friday the 26th Day of June, 2009.
iv. Gen. Muhammadu Buhari v. INEC & 4 Ors. SC.51/2008 delivered on Friday the 12th day of December, 2008.
v. Raphael Ejezie & 1 or v. Christopher Anuwu & 3 ors v. Ihejekpo Nwabeze & 2 ors. SC.340/2002 delivered on Friday the 18th day of April 2008.
vi. Major Bello M. Magaji v. The Nigerian Army SC.204/2004 delivered on Friday the 7th day of March, 2008.
vii. Samuel Ayo Omoju v. The Federal Republic of Nigeria SC 167/2007 delivered on Friday the 15th day of February, 2008.
viii. T.M Orugbo & 1or v. Bularauna & 10 others SC.112/98 delivered on Friday, 20th day of September, 2002.
ix. INEC & 1or v. Alhaji Abudulkadir Balarabe Musa & 4 ors SC. 228/2002 delivered on Friday the 24th day of January, 2003; and so many others case which time and space may not allow to be contained herein.
All the above stated types of advocacies required of lawyers, judges and all stake holders, to possess strong communication skills, legal expertise, boldness, logical mindset, critical thinking, and the ability to craft persuasive arguments. By employing different advocacy strategies both lawyers, Judges and stakeholders can effectively contribute to legal developments and social change.
5. Benefits of Advocacy in the Legal Profession.
a. Advocacy helps people become more involved in important decisions about their life and it allows for effective representation of the marginalized groups, influences policy decisions, promotes access to justice, and ensures a fair and equitable society for all.
b. Proponent and influencer of the democracy.
c. It helps people understand their right, options and support individual to make informed decisions.
d. It empowers individuals to advocate for their rights, address injustice, and bring about positive change.
e. It instills in advocates confidence and resilience and coupled with analytical thinking skills.
f. It enables lawyers to effectively represent and advocate for their client’s interests, present compelling arguments, navigate legal complexities, influence legal outcomes and uphold the principles of justice.
g. Strong advocacy skill enhances a lawyers’ ability to achieve favorable results for their clients.
h. It enables people to be heard.
i. Supports the protection of human rights.
j. Influences law and policies.
k. Educates the greater community.
l. Fosters respect for a cause.
m. It develops a sharp mind, good analytical skill, oratory skill and persuasiveness.
6. RULES, PRACTICE AND Procedure Guiding Advocacy In The Legal PROFESSION.
a. Impropriety of Counsel Attending Court Merely to Ask for Adjournment. See Nwora Madu v. Mathew Okeke (Trading under the Name and Style of Marbros International Agencies) & 2 others (1998) 5NWLR (Pt. 548) 159 ratio 5 per NIKI TOBI, JCA (as he then was) at pg. 164 paras. D-E:
“It is now a fashion for younger counsel to ask for adjournment on the ground that a more senior colleague would like to handle the matter “personally”. Frankly, I do not know what this is all about. It is strange that an Advocate of the Supreme Court of Nigeria can not reply to a simple motion such as the one before us, and ask for an adjournment for a more senior colleague to handle it. And because of that he refused to bring the file to court. That is very sad.”
b. Impropriety of Counsel Appearing in Court Without Relevant Case File.
It is unethical for counsel to appear in court without the relevant case file. See Nwora Madu v. Mathew Okeke (supra) Ratio 6 at p. 164 para E. per NIKI TOBI, JCA (as he then was) at pg. 164 paras E-F:
“It is unethical for counsel to appear in court without the relevant case file. It is like a Carpenter going to his workshop without the requisite wood. As the carpenter cannot carry out his function of carpentry, so also will the Advocate not be able to carry out his function of advocacy. That bad, very bad indeed. I do hope that counsel will not like to find himself in such a situation again; this court is not likely to tolerate a repeat performance.”
c. God Forbid that a Lawyer Will Know All the Law is an age long adage of Lord Denning MR. This simply means that the law is too wide and vast, thus no living mortal including a lawyer can be expected to know all the law. That will be clearly super human. Yet Ignorance of the law and liability is not an excuse. See State v. Okechukwu (1994) 9 NWLR (Pt. 368) 273 at 299. Also see Usman v Kareem (1995) 2 NWLR (Pt. 379) 527 at 553 para C.
These two seemingly contradictory postulations of law fixes a lawyer as an advocate on a lifetime duty of research, study and diligence in seeking knowledge for as long as he lives. This is why they say lawyers are condemned to their books. You are expected to continue reading, researching and learning the law until the end of your life on earth. This is clearly because, though you are not expected to know all the law, yet ignorance of the law is never an excuse.
d. On Duty of Counsel Who Comes Across Relevant Authority After Matter Has Been Adjourned for Judgment or Ruling.
Where counsel as an advocate comes across relevant authorities after a matter has been adjourned for judgment or ruling, and he writes to the court thereby making the authorities available to it, he must also go further to make the said letter indicating the authorities available to the opposing counsel for a possible input. See African Re. Corp v. J.D.P Const. Nig. Ltd. (2003) 13 NWLR (Pt. 838) pg. 609 Ratio 9.
e. On Need to Relate Legal Authorities to Facts of a Case In Support Of Which it is Cited.
It does not help with a case when a Party merely cites a legal authority without relating the facts of the decision in the case to the one under consideration or lifts certain sentences in isolation of the other parts of the statements being invoked. See Cocoa Merchants Ltd. v. Commodities Sales Ltd. (1993) 1 NWLR (Pt. 271) 627.
f. Senior Advocates of Nigeria Don’t Appear Before Inferior Courts.
The combined provisions of Rules 2, 3, 4 and 6 of the Senior Advocates Privileges and functions Rules, 2004 (also known as the SAN Rules) clearly state the courts before which a S.A.N can either appear or issue court process in any case or matter. The law therefore is that a SAN cannot apply for or issue legal or judicial process in a court other than those Superior Courts which he can appear in Rules 2 & 3.
These Rules have also been advocated and held as not negating or running contrary to fair hearing as enshrined in the constitution. See Registered Trustees of ECWA CHURCH v. IJESHA (1999) 13 NWLR (PT. 635) 368; Abimbola v. Aderoju (1999) 5 NWLR (Pt. 460) 100; Prince J.S Alolagbe v. Alhaji Adamu Awuri & sons (1997) 9 NWLR (Pt. 522) 536, (1997) 7 SCNJ 1. Also see L.P.A CAP. 207 Section 2 (1) and section 7 (1) Section 5 and 5 (7) Senior Advocates Privileges & functions Rules. A SAN cannot therefore appear before inferior court such as Magistrate courts, Customary courts, Small Claims courts etc.
g. On Impropriety of N.Y.S.C Lawyer or Newly Called Lawyer (as an advocate) Appearing in Court for Very Serious Cases Requiring Years of Experience which Comes with Applied Knowledge Over time. See the Dictum of OPUTA J.S.C (as he then was) in Udofia v. State (1998) 3 NWLR (Pt. 84) 533 Ration 17 “What is the country turning into when members of the N.Y.SC will be sent to court to defend a man on trial for his life?”
h. On the Propriety of an Advocate Exploring and Encouraging Amicable out of Court Settlement of Dispute in Deserving Cases.
There are sensitive and moral pricking case where a lawyer as an advocate ought to do everything within his or her power to settle matters amicably between the parties out of court, or even avoid the matter from getting to a court at all.
There’s basically no laid down list of such deserving cases, but as a sensible human being and as a minister in the temple of justice, once such case comes to you as a lawyer, you will immediately recognize it. Consider the following case as an example. In Mfa v. Inongha (2014) 57 (Pt.1) NSCQR 1 at pg. 31, per N.S. Ngwuta, JSC (as he then was) the apex court held thus:
“My Lords, this case is a depiction of a total collapse of family value and cohesion. A family as we know it would have settled the dispute amicably without resort to the law. It is an affront to tradition. Learned counsel in the case did not help matters. There is no shred of evidence that any or both of them made any attempt or even advised the parties, father and sons, to settle the matter at the family or village/community circles. In my view, it is a show of shame for which both sides expended their resources for more than 20 years through the trial court to the Apex court. Learned counsel did not, in my humble view, serve the interest of their clients”.
i. On Duty Lawyers as Advocates Owe the Cause of Justice.
Lawyers as advocates are engaged to espouse the case of their clients. It is a monopoly and they should bear in mind that like all monopolies, their conduct are subject to strict rules of accountability for adherence to set ethical standards.
They can fight the cause of their clients but as lawyers they must act within the rules regarding ethical conduct. They owe a duty to their client but owe a higher duty to a higher cause- the cause of justice. See Dariye v. FRN (2015) 61 (Part 3) NSCQR 1457 pp. 1504 -1505, per N.S Ngwuta, JSC (as he then was).
j. On Need for Advocates not to Mislead the Court.
To appreciate this part, kindly see the apex court in Zenith Bank Plc. V. Arthur John and ors (2015) 61 NSCQR 1050 at pp. 1101 -1102, per Mary U Peter-Odili, JSC (as he then was):
“From all that is going on, it cannot be resisted to say that the Applicant is grafting within this application just as in horticulture or agriculture one specie of a crop with another to produce something else different from a position not envisaged by our law in order to give effect to the application. I have to state at least to decry the practice that has unfolded before this court in this application, documents and arguments seeking to persuade the court to go along is that of a deployment of tricks of trade to frustrate or stultify through seductive arguments the right properly inuring to a party. This practice has to stop and a party to know where to pull the brakes and fulfill obligations, it has a duty to do and comply with court orders such as the Garnishee Order Absolute. The administration of justice has no room for the dribbling as usually seen in football fields of play while a successful party is made to suffer when justice is on its side”.
7. CONCLUSION.
In conclusion, the benefits of advocacy in the legal profession must always be viewed side by side with the Rules, Practice and Procedure which are guiding Advocacy in legal profession. Only in doing so, will the profession and it’s standard of practice continue to grow and develop.
REFERENCES
1. Black’s Law Dictionary, 11th Edition, Bryan A Garner Pg. 1006
2. https://www.templars-law.com/app/uploads/2019/11/27a-cultural- considerationsEnglish-speaking-Africa.pdf Accessed via google scholar search engine on 22/2/2023 by 4pm
3. https://www.thelawyerportal.com/careers/deciding-on-law/what-is-advocacy/ Accessed via google scholar search engine on 22/2/2023 by 4.30pm
4. Legal Practitioners Act, Cap L11 LFN, 2004
5. Senior Advocates Privileges & Function Rules 2004.
6. Supreme Court Cases: Through the Eyes and Lips of Niki Tobi by TONY
UKAM published in 2010.
About the Author
Chief I.C Ekpunobi Esq., LLM in ICT law, (BUK) in view, LLB, BL (UNN), has been in active legal practice and consultancy with about two decades of experience. He is the founder and Principal Solicitor at ‘Giants Law Firm’ and also the prime mover of ‘Giants Law Firm, Prison Outreach and Rehabilitation’ which engages in rendering legal services to indigent, helpless and oppressed prisoners, including the less privileged in the society etc.
He can be reached via: 08036629201; 08051869368
Email: [email protected]
Instagram: giants.law.firm
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