Practice of law, particularly advocacy, involves a lot of moves, scheme, tricks, plans and tactics. They are called steps taken by a party. That is the legal euphemism for such acts when they are not really unlawful. However, as the shooter misses his target, the advocate misses his goal and sometimes shoots himself in the foot!
Many a time a strategy is designed for one purpose but it does the opposite. The lawyer must, therefore, consider the consequences of his tactic very well. In other words, he must look before he leaps.
A few examples from the law reports will suffice.
- DELAY TACTIC: Newswatch Comm. Ltd v Atta (2006) 12 NWLR (Pt.993) 144; (2006) 4 S.C (Pt II) 114; (2006) LPELR-1986(SC).
The plaintiff, Alhaji Aliyu Ibrahim Atta, claimed N25,000,000.00 damages for libel published by the defendant, Newswatch Communications Limited, in the Newswatch Magazine Volume 19, No.11 of 14 March 1994 at page 7 in a story entitled FRUITS OF HIS LABOUR.
Although the defendant was served with the statement of claim before the hearing of the case it did not file a statement of defence until after the third Plaintiff’s witness (PW3) had testified. The defendant filed a statement of defence and a counter-claim of N30,000,000.00 damages against the plaintiff for libel. Thus both parties claimed damages for libel and injunctions. The defendant’s claim was N5,000,000.00 more than that of the plaintiff in terms of damages.
On 18 January 1995 the plaintiff (PW1) and another witness (PW2) testified. PW2 was not cross-examined because the defendant’s counsel was absent. The matter was adjourned to 21 February 1995 for continuation of hearing and hearing notices were ordered to be served on the defendant. On 21 February 1995, defendant’s counsel was absent but the third witness for the plaintiff (PW3) testified and the matter was adjourned to 9 March 1995 on which date the defendant’s counsel brought two motions, one for extension of time to file statement of defence and counter-claim out of time and the other for an order of court granting leave to the defendant to recall all the plaintiff’s witnesses (PW1 to PW3) for cross-examination.
The motion for extension of time to file statement of defence and counter-claim was not opposed and was duly granted. The motion for recall of the witnesses was opposed. An adjournment was granted for the plaintiff’s counsel to prepare his submission in opposition to the motion. But before the matter was adjourned to 11 April 1995, the evidence of forth Plaintiff’s witness (PW4) was taken.
On 11 April 1995, both counsel addressed the court on the issue of recall of the witnesses of the plaintiff for cross-examination and the matter was adjourned to 24 April 1995 for ruling. In his ruling, the learned trial Judge reluctantly granted the motion for recall of the witnesses for cross-examination but noted thus:
“In view of the foregoing it seems to me that the defendants and their counsel are by their conduct deliberately trying to delay the takeoff of this matter…”
But the court still indulged the defendant by allowing counsel to cross-examine the witnesses. In its ruling of 24 April 1995 the court ordered the defendant to pay the sum of N45,000 into court within two weeks as security for costs of recalling the four witnesses otherwise the court “shall proceed with the continuation of the hearing of the remaining witnesses.”
Without complying with the said order, counsel for the defendant, in a motion dated 22 May 1995, prayed the court to strike out the suit, set aside the issuance and service of the originating summons on the ground that the court lacked the jurisdiction to entertain the suit.
On 24 July 1995, the learned trial Judge held that he had jurisdiction in the matter and dismissed the motion. Thereafter, the court went on vacation. When the court sat on 28 November 1995 only plaintiff’s counsel was present. He drew the court’s attention to its order of 24 April 1995 on the payment of N45,000 as security for costs which was not complied with by the defendant. He sought for the discharge of the order to recall the witnesses of the plaintiff for cross-examination, which the learned trial Judge granted as prayed. The case for the plaintiff was therefore, closed.
The matter was adjourned to 23 and 24 January 1996 for the case of the defendant on which dates both the defendant and its counsel were absent. Plaintiff’s counsel urged the court to hold that the defendant was no longer interested in defending the suit. The court agreed him and “deemed that they had no defence to offer”. The matter was adjourned to 14 February 1996 on which date counsel for the plaintiff addressed the court and the matter was adjourned to 20 March 1996 for judgment. As the judgment was not ready, the learned trial Judge adjourned again to 9 May 1996 for judgment. On 25 March 1996, defendant’s counsel filed a motion asking for the following two prayers:
“(1) An order arresting the judgment to be delivered in the suit.
(2) An order of the court granting leave to the defendants/ applicants to adduce oral and documentary evidence and open its defence in the suit before judgment is entered.”
In his ruling dismissing the motion the learned trial Judge noted thus:
“For these and the larger reasons I stated earlier I do not think it is just or equitable to further waste time on applications such as the one in motion No. FCT/HC/M/184/96. The judgment will therefore not be arrested because there is no valid warrant for its arrest.”
The defendant’s appeal to the Court of Appeal was dismissed with the following remark:
“On the main issue of not listing the motion to arrest the judgment, I am of the view the motion was a mere ploy to delay the determination of the matter… In my view, the application to arrest the judgment after all the opportunities granted to the appellant which it deliberately refused to take was merely calculated to hinder the due administration of justice.”
In dismissing his appeal to the Supreme Court, it was observed thus:
“Counsel qua advocate as an expert of law has an unfettered right to advise his client on what line of action to take in the light of the applicable law. While there cannot be any argument on this right of counsel, the owner of this big power, he is expected to exercise it only in the light of the enabling law in the matter. He should take into serious consideration that the client, the novice in law, will have no choice than to rely wholly and fully on the position of the law as given to him by counsel.
I believe that the way counsel conducted the matter was his way and the client, the novice in the law, had no choice than to follow him. He used all the delaying tactics that he knew and were available to him. They were not one, not two, not three, but many.
He thought that by using such tactics he will finally get his way and when the learned trial Judge adjourned for judgment, counsel thought, and very wrongly for that matter, that he had caught the trial Judge in the trap or web. He thought, and again, wrongly for that matter, that the appellate courts will be with him when he dangles the fair hearing principle entrenched in the Constitution. He got it very wrong. He got it all wrong too. And so the appellant, unfortunately, became the victim of all the tactics and tricks of counsel. It has my sympathy but my sympathy does not go far enough to help him.
The position may have been different if counsel assiduously and painstakingly defended the action from the first day. Things may not have been different, depending on the facts of the case and the defence put forward by the appellant. But counsel used fruitless delaying tactics and he has made his client to fall into a ditch where a return journey is impossible to obtain judgment in the case. All his efforts to short-change the adverse party and the court have come to naught as the road is permanently closed against the appellant.
Litigation is not a matter of planting mines to deceive the opponent with a view to destroying his case undeservedly in limine. On the contrary, litigation is a process where the parties set out their cases frankly and fully for the determination of the court. A trickish and miserly presentation of a client’s case is not part of good advocacy…
This is a case where the appellant had no time to present its defence but had all the time in the world to file a motion to arrest the judgment of the court… The law is certainly not in its favour. The law is very much against the appellant. I do not want to say that the appellant is a victim of bad advocacy. It has my sympathy, I say once again. In sum, the appeal fails as it lacks merit.”
And so the defendant not only lost his counter-claim of N30,000,000.00 damages against the plaintiff for libel, but also had to pay the N25,000,000.00 damages for libel claimed rightly or wrong by the plaintiff as entered in the judgment.
That was a tactic that did not fly.
To be continued…