LAWYER’S DUTIES TO THE COURT

LAWYER’S DUTIES TO THE COURT

This is available under Rule 30 to 38 of the Rules of Professional Conduct, 2007.

RESPECT FOR THE COURT

This is provided under Rule 31 and 35.

Rule 31(1) provides thus:

            “A lawyer shall always treat the Court with respect, dignity and honour”

Also, Rule 35 provides thus:

            “A lawyer appearing before a judicial tribunal shall accord due respect to it and shall treat the tribunal with courtesy and dignity”.

What both provisions imply is that a lawyer should be respectful to the court, he should be courteous, and maintain a considerate act having the quality of being worthy of esteem or respect.

A lawyer has the duty to appear and represent his client’s case but where he is unable to attend, he should be represented by another lawyer in his chambers. In LSDPC v. Nig. Land and Sea Food Ltd (1992) 5 NWLR (Pt. 244) 653 at 660 – 661, the Supreme Court observed inter alia that a counsel who is unable to attend the court owes the court a duty to arrange for another counsel to hold his brief in court.

However, the lawyer who is unable to attend or be represented has to inform the court of his absence before time. In Udensi v. Odusote (2003) 6 NWLR (Pt. 817) 545, it was held that a counsel should always notify the court of his intended absence; Adeyemi v. Lan and Baker Nig. Ltd. (2000) 7 NWLR (Pt. 663) 33 at 49 CA.  But, a lawyer who fails to appear may be guilty of dereliction (willful negligence) of his duty but not of contempt of court – Oku v. State (1970) 1 All NLR 60.

Thus, it is the duty of the lawyer representing another lawyer to inform the court that he is holding brief on behalf of another lawyer – Falomo v. Bamigbe (1998) 7 NWLR 679.

It should be noted that it is the height of disrespect for a lawyer to walk out of a court that is sitting on the pretext that he is sick. In Magna Maritime Services Ltd v. S. A Oteju (2005) 14 NWLR (Pt. 945) 517, Niki Tobi JSC held inter alia:

“Counsel who is ill or indisposed has a duty to apply for adjournment of the case to enable him seek medical assistance. He has no right whatsoever to walk out on or from the court just like that. That is certainly a rude and unprofessional conduct, unbecoming of a legal practitioner…”

However, in instances where the court makes an unjustified and unpleasant attack on a lawyer, who may find it difficult not to attack, it is advised that he should apply patience coupled with a sense of humour.

RELATIONSHIP TO AND COMMUNICATION WITH THE COURT

This is provided under Rule 34, 31(4) and (5) of the Rules of Professional Conduct, 2007.

Rule 34 provides thus:

            “A lawyer shall not do anything to conduct himself in such a way as to give the impression or allow the impression to be created, that this act or conduct is calculated to gain, or has the appearance of gaining, special personal consideration of favour from a judge.

Rule 31(4) and (5) provides thus:

            “… a lawyer shall not discuss a pending case with a judge trying the case unless the opposing lawyer is present” and “… a lawyers shall not deliver to the judge any letter, memorandum, brief or other written communication without concurrently delivering a copy to the opposing lawyer”.

This means that a lawyer must not attempt to influence the court improperly neither should he show marked affection or unusual hospitality to a judge uncalled for by the personal relations of the parties. For example, a lawyer attempting to discuss a case with the presiding judge alone in chambers or outside the court room. He should also refrain from writing private to the trial judge- Evoyanma v. Daregha (1968) NMLR 389.

However, where such communication about matters in court is very necessary, what is in practice is that the lawyer is to address it to the registrar or clerk of the court, and not to the judge or magistrate. In Onyejike v. Anyasor (1974) WSHC 48, the Court of Appeal observed thus:

“any counsel who considers sending further address to court is well advised to make a copy available to counsel on the other side. In that way, all concerned will be aware of all steps taken in the course of the proceedings”.

Also, a lawyer should not tarnish the name of the judge of a court as this is considered to be a very unserious type of unprofessional conduct. For example, a lawyer who loses a case and puts the blame on a judge by saying that it was because he did not bribe the judge or that the judge is biased. In The State v. The President Ijesha Divisional Grade ‘A’ Customary Court: in re Isaac Oluwaleyimi (1974) WSHC 48, it was held thus:

“The court welcomes fearless advocacy; we will continue to encourage lawyers to work relentlessly to obtain justice, but we detest campaigns of calumny against the judiciary as a whole. The judges will stick to the oath of their office to administer justice without fear or favour, affection or ill-will”.

Rather, it is advised that where a lawyer is dissatisfied with the decision of the court, he is to seek remedy in a higher court, and not to confront the court and take the law into his hands – Aladetoyinbo v. Adewunmi (1990) 6 NWLR (Pt. 154) 98 CA.

CANDID AND FAIR DEALING

This is provided under Rule 32 of the Rules of Professional Conduct, 2007.

Rule 32(1) provide thus:

            “In appearing in his professional capacity before a Court or Tribunal, a lawyer shall not deal with the court otherwise than candidly and fairly”.

This rule went further to state what a lawyer shall disclose; and what a lawyer shall refrain from doing – Rule 32(2) and (3).

UNDERTAKING

This is provided under Rule 33(3) of the Rules of Professional Conduct, 2007.

Rule 33(3) provides thus:

“A lawyer who fails to comply with ay undertaking given by him either personally or on behalf of his client to a court is prima facie guilty of professional misconduct”.

This means that a lawyer at all times is to honour and respect his undertaking to the court.

CONFESSION OF CRIME BY THE CLIENT

This is provided under Rule 37 of the Rules of Professional Conduct, 2007.

This appears to be one of the most difficult duty of a lawyer to the court as he as to do his best in serving his client on one hand, and to discharge his legal duties to the court on the other hand without causing conflict. For example, where a client confesses to a lawyer that he committed a serious offence of murder, but that the lawyer has to defend him in court as being innocent as long as his fees are paid.

The lawyer should however note that he is also a law officer who must assist the court in arriving at what is just. However, the best and honourable thing for a lawyer to do at this stage is to withdraw from the case.

COURT DECORUM

This is provided under Rule 36 of the Rules of Professional Conduct, 2007.

Under Rule 36(a), a lawyer must adhere strictly to the dress code of the court. For the male lawyers, the traditional court dress in the superior courts is dark suit, preferably a dark coat, and white shirt together with the other robes, and black shoes. With regards to the female lawyers, it is a plain coat, and dark or very dark skirts may be worn not higher than the gown, with white blouse, and black shoes. A lawyer should also abstain from wearing apparels or ornament that will attract attention to himself.

Under Rule 36(b), a lawyer in court should conduct himself with decency and decorum, and observe all the customs, conduct and code of behavior of the court with respect to appearance, dress, manners and courtesy.

Under Rule 36(c), the judge or magistrate must be treated with utmost courtesy. Thus, a lawyer must rise when a judge or magistrate arrives in court and remain standing until the judge sits. He should also remain standing until his attention his no longer required whenever a judge is speaking to him or he is addressing the judge – N.I.M.B v. Narindex Trust Ltd. (1998) 3 NWLR (Pt. 582) 404.

Under Rule 36(d) and (e), the court does not encourage rude behaviours or vulgar abuse or unnecessary arguments from a lawyer. What the court expects is skill and arguments that will arrive at what is true and just to the case.

Under Rule 36(f), a lawyer shall not remain within the bar or be robed in a lawyer’s attire when appearing in a case in which he is a witness.

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MINUTES OF MEETING AND SAMPLE

MINUTES OF A MEETING

Minutes is a summarized record or written summary of the points discussed at a meeting, that is, an official written message.

Here are some tips in writing effective meeting minutes.

1.      Know the purpose – Before writing minutes, you must know the purpose of it. First, a report of meeting minutes is a record. But it is just not the type of record you write, print out, file and then forever forget. It provides a historical account of official business and operational decisions, and involvement of people making the decisions. It is used as a reference which is periodically, or frequently referred to. Sometimes, minutes of meeting can become a legal document and evidence in court.

2.      Keep it concise – Keep the key information in order and make sure you don’t miss critical info. You only have certain limited time and it will be impossible to write every single thing discussed during a meeting. So, keep it concise, i.e. compact and short. Take notes of the issues discussed, major points raised and decisions taken. Make sure what you write will be easily understood, and usable in the future. Keep in mind many of the meetings require the attendees looking back at the previous meeting’s minutes. So if people can’t read them, it will amount to a waste of time.

3.      Get the right info and follow the right format – To keep it short, here are list information that should be in your minutes of meeting: Time, date and venue of meeting; List of attendance (and their position); Agenda of meeting – key agenda, details, and specific action plan, and owner/executor of the plan; and the name of person taking minutes.

4.      Keep a record – Normally, after minutes are hand-written, they are transferred into a proper computerized document (e.g. Microsoft Word or Excel), properly restructured, save and printed out. Good and fast typists can immediately record conversation into the computer/laptop, where this requires less time for fine tuning later on. The minutes are then distributed among the attendees of the meeting, or those who will be responsible to take actions as regards to what is discussed during the meeting.

It should be noted that minutes are not verbatim of what transpired at a meeting but abstracts of a meeting, therefore, there should be no verbosity, and obiter dictums should be avoided.

The basic contents of minutes are:

1.      Date

2.      Type of meeting

3.      Venue of the meeting

4.      Attendance at the meeting

5.      Agenda of the meeting

6.      Any other business (A. O. B) that is not included in the agenda.

7.      Closing.

The drafting rules of minutes are –

1.      It should be a simple language

2.      It should be clear

3.      It should be precise

4.      It should be proof-read.

As for the format, there is no school of thought that says there is this or that specific format that you need to follow. What you need is a simple and user friendly format. You can follow the following format:

SAMPLE OF MINUTES OF MEETING

Company         :           Forsell Consultant

Date                :           08 January 2010

Time                :           10am to 12am

Venue              :           Command Center, Forsell HQ

Attendees       :

1.    John McClane             :           Branch Manager 

2.    Jacklynn Victor           :           Principal Consultant

3.    Luke Jane                    :           Senior Consultant 

4.    Salamon Selamat         :           Field Consultant

5.    Bijalo Bijalo                :           Senior Marketing Executive

6.    Mimz Mimz                 :           Operations Executive

Agenda:

1. Proposal to organize Career Talk in Polite Johor
2. New recruitment drive and strategy
3. General (other) discussion

1.         Proposal to organize Career Talk in Polite Johor

This is an initial discussion to follow up on Polite Johor's invitation for Forsell Consultant to hold a Career Talk in their college for graduating students in Diploma and Certificate. On Monday, the Dean of Polite Johor contacted Forsell's office and has asked Forsell for event proposal (RFP).

a)      Event structure – 2-day event to be held on weekend. Actual dates TBA and to be decided by event committee. Possibility to extend other students and graduates from other schools and tertiary institutions.

b)      Formation of Secretariat – Bijalo elected as Event Director, and to be assisted by Mimz as assistant. Bijalo and Mimz to appoint committee members and announce in 2 days. =Committee to have first meeting in 3 days. Other meeting attendees to leverage assistance and brainwash ideas.

c)      Sub-events – 8 events have been suggested, 4 have been agreed - Resume Workshop, Presentation from a MNC's representative, Motivation Talk, Exhibition. Mimz and committee to present to the management details of event proposal. Upon all agreement, committee is to hold progress meeting once a week until the event takes place.

2.         New recruitment drive

Company's expansion has resulted the need for additional staff and consultants. Discussion was aimed to draw strategy for attracting new personnel and talents.

a)      Issue and scenario – Bijalo suggested Jane to implement new strategy and plan to capture new talents in the company. According to Mimz, existing strategy is not bearing fruit and not meeting expectation. Salamon and Siti endorsed Bijalo's suggestion.

b)      Brainstorming new strategy – 10 new strategies are brain stormed, 3 were agreed upon. The 3 are:

1. Going TV – Bijalo to check the pricing and process with a number of TV stations
2. Radio Advert – Victor to check pricing and process with a number of radio 
3. Internet Banner Advertising – Mimz to discuss with a few internet ads companies and shortlist a minimum of 3 advertisers.

c)      New hires training and competency – All agreed current training program for new hires is not effective due to short duration (2 days). Unanimous decisions agreed on 2 principles:

i.              Training period to be extended to 1 week

ii.            Last 2 days of training is to be conducted by external consultant. A mini meeting to be scheduled in discussing the consultant's appointment

3.         General discussion - For any other issues raised (A.O.B)

a)      Flexible working hours – Salamon raised suggestion for company to allow flexible working hours by employees. Reason: different staff performs their best at different time. Mimz & Bijalo disapproved but the rest said the idea should be accepted as a possible implementation. Mimz to raise the issue to the country management and discuss.

b)      Hospital visit – As one of the staff, Rihanna, Staff Manager is hospitalized, a visit has been agreed which is 10 January 2010.

Meeting was adjourned at 12am. Next meeting is scheduled a week from now, that is, 15 January 2010, same venue and time. All owners of designated actions are to present their feedback.

Minutes prepared by:

Signature ­______________

        Luke Jane

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QUALIFICATION AND PROCEDURE FOR THE APPOINTMENT AND REMOVAL OF JUDICIAL OFFICERS IN NIGERIA

The Chief Justice of Nigeria
 Justice Mariam Aloma-Mukhtar.

QUALIFICATION AND PROCEDURE FOR THE APPOINTMENT AND REMOVAL OF JUDICIAL OFFICERS IN NIGERIA

QUALIFICATIONS

The post-call qualification requirement for appointment as the Chief Justice of Nigeria or Justice of the Supreme Court is a period not less than 15 years – section 231(3) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN)..

For the President of the Federal Court of Appeal or Justice of the Federal Court of Appeal is a period not less than 12 years – section 238(3) of the 1999 CFRN.

For the Chief Judge of the Federal High Court, Chief Judges of States and Federal High Court Judges and State High Court Judges is a period not less than 10 years – section 256(3) of the 1999 CFRN.

For the Grand Kadis of the various Sharia Court of Appeal and other Kadis they need to have obtained a recognised qualification in Islamic personal law from institution approved by the State Judicial Service Commission and must have held such qualification for a period not less than 10 years and he either has considerable experience in the practice of Islamic personal law or he is a distinguished scholar of Islamic personal law – section 276(3) of the 1999 CFRN.

In the case of the President of the Customary Court of Appeal and the judges of the customary court of Appeal, they need apart from such other qualifications as may be prescribed by the National Assembly considerable knowledge of and experience in the practice of customary law for a period not less than 10 years – section 281(3) of the 1999 CFRN.

PROCEDURE FOR APPOINTMENT

At independence in 1960 the criteria for the appointment of a Judge either in the High Court of the regions or the Federal Supreme Court was ten years post-call experience. The appointing-body except for the Chief Justice of the Federation and, the chief Justice of Lagos High Court and Regional Chief Justices was the Judicial Service Commission (J. S. C) either of Federal or State region. Under the 1963 Constitution the Judicial Service Commissions were abolished. In its place we had the President and the Governors acting on the advice of the Prime Minister and Premiers respectively as the appointing bodies. A body similar in some respects with the Judicial Service Commission was re-introduced by the Military in the name of Advisory Judicial Committee, this was a welcomed gesture. The 1979 Constitution introduced some innovations. The Chief Justice of the Federation was to be appointed by the President in his discretion but this was subject to confirmation by simple majority in the Senate. Other justices were appointed on the advice of the Federal Judicial Service Commission subject to confirmation in the Senate. Same practice was followed in the appointment of the President of the Federal Court of Appeal. In the case of other Federal Court or-Appeal Justices and also the Chief Judge of the Federal High Court and the other is judges of the Federal High Court there is no requirement of approval by the Senate.

At the State level apart from the Chief Justices of the various States, the Grand Kadis of the Sharia Court of Appeal of the States where they exist and the President of the Customary Court of Appeal in States where they also exist, whose appointments require approval by the simple majority in the respective state Assemblies. The other Judges, Kadis and Judges of the Customary Court of Appeal are appointed on the recommendation of the respective State Judicial Service Commissions.

Recommendation to the Head of the Executive Arm of Government, for either appointment or removal from office of any Judicial Officer in both the Federal and the State Judiciaries, constitutionally, shall come from the National Judicial Council.

Taking into account the fact that the responsibility for a dependable Judiciary for the country rests with the National Judicial Council, the Council was of the view that it must design Guidelines to ensure that the Judicial Service Commissions at both Federal and States, including the Judicial Service Committee, FCT, Abuja, are directed and assisted in the manner they select candidates for submission to NJC for recommendation of appointment. Most importantly, the procedure will guarantee a uniform standard at all levels.

The Guidelines were designed to ensure that:

1.      The selection process is transparent and provides a level playing ground for free and fair selection for the best candidates to emerge;

2.      The selection process guarantees independence of Judicial Service Commissions, excludes lobbying by potential candidates or any one on their behalf and prohibit imposition of any candidates on Judicial Service Commissions as well as prohibit them from accepting imposition of unsuitable candidates from any quarters; and

3.      decision of all those nominating and or recommending candidates to National Judicial Council take fully into account the necessity for the candidate to have high integrity and good reputation; track record of intellectual capacity, competence, hard work and industry in the legal profession; record of reasonable successful background in legal practice as private legal practitioner or State Counsel or service in the Lower Bench and commitment to justice and absence of likelihood of bias on the grounds of tribe, ethnicity, religion, politics or gender.

Therefore the following procedure, attached hereto, shall be complied with by the Federal and State Judicial Service Commissions, as well as the Federal Capital Territory, Judicial Service Committee, in their submission of nominated candidates to the National Judicial Council for appointment to judicial office.

The procedure to be followed are:

1.      Letter of intention alongside the Governor’s approval shall be forwarded to the Secretary of the Council;

2.      Minutes of the meeting of any Judicial Service Commission or Committee for the nomination of candidates for appointment to judicial office must be forwarded in 30 copies to the National Judicial Council addressed to the Secretary of the National Judicial Council. This would enable the National Judicial Council have the benefit of the full discussions and the reasons that gave rise to the nomination, preference or rejection of the candidates considered by the Commission;

3.      The Chief Judge must, as a first step, clear the number of Judges to be appointed with the Governor before commencing the processes of identification and screening;

4.      In making the nominations, the State High Court Judges must be fully involved (by making individual nominations and attaching same to the Chief Judge’s final nomination to avoid sharp practices) and must take into consideration, as much as possible, professional expertise; seniority at the Bar or the Bench; Federal character or geographical spread; consultation where necessary without compromising the cherished independence of the Judiciary or allowing politics to permeate or influence the appointment of judicial officers; avoid recommending any person whose reputation in the locality had been tarnished;

5.      Candidates whose names are forwarded must undergo medical tests and attach evidence of same;

6.      Candidates’ Curricula Vitae must be attached along with their Bio-data (NJC Form A);

7.      Each of the Candidates nominated shall submit along with his/her Credentials, ten (10) Judgments, obtained or delivered in contested cases in any given past two (2) years, which shall be confirmed by the Head of Court/the Chief Judge;

8.      Candidates from the Bar are to submit their Practicing fee receipts for Five (5) years;

9.      A security report from the State Security Service; and

10.  Comments from the State Branch of the Nigerian Bar Association on the person(s) so nominated.

The following should however be noted –

1.      The number of candidates nominated must be doubled in case any of the first set of nominations being disqualified.

2.      On the issue of precedence, only the Attorney-General (Federal or State) should take precedence over others to be appointed and sworn-in on the same day.

3.      As much as possible, Governors should ensure that essential facilities (such as cars, accommodation, etc); would be made available to the Judges upon appointment.

4.      There should be no lobbying by candidates.

5.      That since not all the Chief Judges of the States are members of the National Judicial Council, it would be necessary to invite the Chief Judge of the State (if not a member) whose candidates would be considered by the Council, to participate in the deliberation on such nomination, whenever necessary;

THE GROUNDS AND PROCEDURE FOR DISCIPLINING JUDICIAL OFFICERS

The National Judicial Council (NJC) also in exercising the powers conferred on it by Paragraph 21 of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, takes disciplinary actions ranging from warning, compulsory retirement and dismissal from office of erring Judicial Officers who are found guilty of judicial misconduct.

The rules guiding Judicial Officers is the Code of Conduct for Judicial Officers for the Federal Republic of Nigeria. This shall be summarized below.

This Code, hereto forwarded, provides for a uniform, dignified and respectable mode of behaviour by Judicial Officers nationwide. It is divided into di fferent Rules which guide and shape the conduct of the Judicial Officers. Violation of the Rules, elicits disciplinary action, leading to removal from office of any defaulting Judicial Officer. Some of its main features are stated hereunder.

A Judicial Officer should live above reproach by ensuring that his conduct both in his official and unofficial capacity, utterances and social relationships, are not susceptible to any iota of doubt. In performing his duties, a Judicial Officer is expected to be courteous, fair and firm to all manner of people without fear or favour and also, avoid the abuse of power arising from issuing interim injunctions, ex parte. Furthermore, he should be alive to his official duties by complying with the provisions of the constitution regarding his responsibilities in court. A Judicial Officer should also endeavour to be punctual and sit regularly while avoiding unnecessary adjournments.

In performing his administrative duties, a Judicial Officer should maintain professional competence, observe high standards of fidelity and diligence and request his staff and other court officials to do same. He should not be a member of a tenders board or engage in the award of contracts and avoid any form of sexual harassment.

While in office, a Judicial Officer is prohibited from accepting chieftaincy titles and serving as the executor, administrator, trustee etc. of an estate unless for a family estate and where it would not interfere with his judicial duties.

While a Judicial Officer can accept personal gifts or benefit from relatives or personal friends on occasions as recognised by custom, books on complimentary basis or loan from a lending institution following due process, he is prohibited from accepting a gift or favour on account of the discharge of his official duties. Neither is he expected to practice law or act as an arbitrator.

Judicial Officers who flagrantly violated the provisions of this Code of Conduct, had been sanctioned and removed from office; such as Hon. Justice Egbo Egbo of Federal High Court, and Hon. Justice Stanley C. Nnaji of Enugu State High Court; to mention but a few.

REMOVAL OF JUDICIAL OFFICERS

A judicial officer shall be removed under section 292 of the 1999 CFRN if –

1.      He is incapable of performing his duties;

2.      He has attained retirement age; and

3.      He is involved in any form of misconduct.

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CURRICULUM VITAE

CURRICULUM VITAE

This is a brief account of a person’s qualifications and previous occupations, sent with a job application.

Vitas and resumes both have similar purposes – as marketing documents that provide key information about your skills, experiences, education, and personal qualities that show you as the ideal candidate. Where a resume and curriculum vitae differ is their use, format, and length.

Curriculum Vitae – often called a C. V or Vita – tends to be used more for scientific and teaching positions than a resume. Thus, vitas tend to provide great detail about academic and research experiences. Where resumes tend toward brevity, vitas lean toward completeness.

Unlike resumes, there is no set format to vitas. While vitas do not have the one-page rule of resumes, you need to walk the line between providing a good quality of depth to showcase your qualifications and attract potential employer interest and providing too much information thus appearing verbose and turning off potential employer interest.

An effective curriculum vitae should have the following:

1.      Name

2.      Address (home or permanent, not P. O. Box)

3.      Telephone and e-mail address (if any)

4.      Sex

5.      Nationality

6.      Schools attended

7.      Academic qualifications with dates

8.      Courses attended

9.      Work experience

10.  Hobbies

11.  Referees

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BASIC PRINCIPLES IN DRAFTING

BASIC PRINCIPLES IN DRAFTING

Drafting is a legal composition. Thus, an important skill that every legal practitioner needs to possess. Documents are drafted in English language, because it is the language of the law in Nigeria.

Standard British English, and plain English, should be used in drafting documents. Therefore, law graduates should have acquired sufficient knowledge of English grammar in the course of their education.

It is used to prepare the following documents:

1)      Pleadings;

2)      Agreements;

3)      Reports;

4)      Letters;

5)      Legal opinion;

6)      Memorandum; etc.

It consists of sentences, and each sentence must be a unit of sense.

George Coode in his book “Legislative Expression or the Language of the Written Law” states that every legislative sentence consists of four parts namely:

1.      The description of the legal subject;

2.      The enunciation of the legal action;

3.      The description of the case to which the legal action is confined; and

4.      The conditions on performance of which the legal action operates.

Every legislative sentence must contain a legal subject and a legal action. The action that is of the legal subject is linked to the subject by using a connective between the legal subject and the legal action. The connective would depend on if the legal action is mandatory, prohibitory or permissive. If it is a mandatory action, then a connective expression as “shall” would be used; of prohibitory, “shall not” would be used; and if permissive “may” or “may not” would be used.

Most legislative sentences are qualified and subject to cases and conditions which must precede the legal subject and action.

George Coode’s order for drafting legislative sentence is arranged thus:

CASE – CONDITION – LEGAL SUBJECT – LEGAL ACTION

a)      THE LEGAL SUBJECT

The legal subject must necessarily be a person who is conferred with the rights, power, privilege, obligation or liability to carry out a legal action.

A legal subject cannot be a thing because it is only a person that can be conferred with rights, powers, privileges etc.

b)      LEGISLATIVE ACTION

This is the action required of the subject and this action is linked to the subject by using a connective.  The connective depends on whether the legal action imposed on the subject is mandatory, permissive or prohibitory.  For instance, the connective expression “shall” is mandatory.  “May” or “may not” is permissive, while “shall not” is prohibitory.

c)      THE CASE

The case states the circumstances in which the legal action can be involved.  In stating the case, the expression such as “when”, “where” can be used. 

d)     CONDITIONS

Conditions may be prescribed which have to be fulfilled before legal action can be taken.  Where there are such conditions, no legal action can be taken until they are complied with.  Expressions such as “if” and “unless” are used in stating conditions.

However, some legal writers have criticized the above form by stating that a simpler form should be better to help legal practitioners in drafting. Thus, a sentence should be arranged in the manner below:

SUBJECT – VERB - OBJECT

The subject being the actor, that is, a person empowered to do or refrain from doing an act.

The verb states what is to be done or not to be done.

The object on the other hand, is the thing or person being acted upon.

In using the above format to prepare a good draft, the legal practitioner should state precisely in a clear manner what ought to be done by the person or thing involved in the body of the draft and should also go an extra mile to state what the person or thing should refrain from doing, and the person or thing in which the essence of the draft is to be acted upon.

USING PROPER LANGUAGE AND GRAMMAR AND AVOIDANCE OF AMBIGUITY IN DRAFTING

The proper language to use as earlier stated is Standard British English, and plain English for this will help easy understanding of whatever document that is to be prepared by a legal practitioner.

To be an efficient legal writer, the legal practitioner should have a proper understanding of Standard British English, particularly in respect of the following:

1.      Spelling

2.      Sentence structure

3.      Paragraphing.

4.      Grammar.

5.      Capitalization.

6.      Punctuations.

To avoid ambiguity, nouns should be preferred to pronouns even at the cost of repetition.

Adjectives and adverbs should also be used carefully because their meanings are less clearly fixed than that of nouns.

PRECEDENTS IN DRAFTING DOCUMENTS

This is a system of jurisprudence based on judicial precedents rather than statutory laws which is advisable for an efficient legal practitioner to use in drafting good documents.

PRODUCING ERROR FREE DOCUMENTS

The best way to produce error free documents is to:

1.      Avoid ambiguities.

2.      It should be well planned.

3.      Drafts should be sent for perusals, that is, the document should be read thoroughly or carefully.

4.      It should undergo scrutiny, that is, getting the service of another legal practitioner or practitioners.

5.      The use of short sentences is advisable to aid clarity.

6.      Proof read your document, that is, edit and check the draft for any further error.

THE NEED TO ADEQUATELY REPRESENT THE INTENTION OF THE CLIENTS IN DRAFTING DOCUMENTS

The reason is that most clients are illiterates and do not know how to go about drafting document or documents, as such they acquire the services of legal practitioners to assist them in drafting good documents.

The legal practitioner on the other hand is to get a checklist from the client as regards to what the draft shall curtail. The legal practitioner however, must not allow the client to stipulate the type of document to be drafted. No matter how experienced in legal transactions the client is, he or she does not know the law. The knowledge of the law is the preserve of the legal practitioner. Thus, it is the legal practitioner’s knowledge and expertise that should be exercised in deciding which document can appropriately embody the transaction.

Oral and documentary details of the transaction must be provided by the client, and in some cases, the legal practitioner must visit the subject matter of the transaction, if necessary, to gain a better understanding of the transaction and to enable the legal practitioner draft an appropriate document.

STAGES OF DRAFTING

There are several stages of drafting which includes:

1.      Design.

2.      Planning and outline of the draft.

3.      Composition.

4.      Scrutiny.

5.      Editing and checking the draft.

DESIGN

This is the act of working out the form of something (as by making a sketch, outline or plan). A legal practitioner must make or work out a plan for the draft. Thus, a draft must have a good design.

PLANNING AND OUTLINE OF THE DRAFT

This is the cognitive process of thinking about what you will do in the event of something happening. That is, the plan should have the will and intention to carry out some action that is derived from the design. There should also be a schematic or preliminary plan acting as the outline of the draft.

COMPOSITION

This is the spatial property resulting from the arrangement of parts in relation to each other and to the whole, that is, the way in which the draft is composed. Thus, the draft should be created by arranging several precedents to form a unified whole.

SCRUTINY

This is the act of examining something closely (as for mistakes). For a draft to be error free, a legal practitioners draft should undergo scrutiny, that is, getting the service of another legal practitioner or practitioners.

EDITING AND CHECKING THE DRAFT

This is the last stage of drafting. After a draft has undergone scrutiny, a legal practitioner should edit and make omissions or additions based upon what is scrutinized and give a final thorough check to see if it is standardized.

HABITS TO AVOID IN DRAFTING

For a drafting to be good, a legal practitioner has to avoid certain words which if used will act as pitfalls to good drafting techniques. Such words are as follows:

1.      Words and phrases that are uncommon and intricate expressions – A legal practitioner should avoid words or phrases that are uncommon or having many complexly arranged elements, that is, elaborate or complex words should be avoided.

2.      Verbose statements and excessive use of words – A legal practitioner should avoid using statements that contains more words than are needed and should also refrain from using excessive words in order for the document to convey a simple meaning.

3.      Archaic words and expressions – The use of old words should be avoided and be placed with modern words. For example, “doeth” is an archaic word for “do”.

4.      Latin words and phrases – In drafting, sentences should be written in plain English devoid of Latin words and phrases. The use of Latin words and phrases should be avoided when drafting documents for a client because not all clients understand its meaning. For example, rather than writing the Latin word or phrase: “et in terra pax hominibus bonae voluntatis”, the English phrase “and peace to his people on earth” should be written.

5.      Use of pronouns instead of nouns, adverbs instead of verbs - To avoid pitfalls in drafting, nouns should be preferred to pronouns even at the cost of repetition. Verbs should be used instead of adverbs. Adjectives and adverbs should also be used carefully because their meanings are less clearly fixed than that of nouns.

6.      Improper use of words – A legal practitioner should avoid improper use of words. Words like may, shall, will, when, where, etc. should be used at the appropriate places.

7.      Clumsy and inelegant words and phrases – A legal practitioner should not used words that are clumsy, that is, words or phrases that are difficult to use, because they are not elegant or graceful in expression.

8.      Redundant words or phrases, jargon and technical terms – A legal practitioner should avoid using words and phrases that are no longer needed or useful in drafting documents. He should also avoid jargons because such words or expressions are not accepted. However, it is permissible to use technical terms and terms of art where they are understood in the trade or profession, when the document is intended for persons engaged in that trade or profession.

AID TO CLEARNESS AND ACCURACY

For a document to be well drafted, it must be clear and accurate. The following will aid a legal practitioner to draft an accurate and clear document:

1.      Punctuations – A legal composition must be properly punctuated. Punctuation aids clarity and enables the sentence to convey the intended meaning. Punctuation marks must be used correctly, if they are to serve a useful purpose. The use of proper punctuation marks is an essential part of good drafting. The punctuation marks that may be used are – full stop, comma, colon, semi-colon, brackets, question mark, exclamation mark, quotation marks, hyphen and apostrophe.

2.      Capitalizations – A sentence must begin with a capital letter and may end with a full stop, exclamation mark or question mark.

3.      Use of definitions – When words are used in drafting a document, it is advisable for a legal practitioner should define words which he believes will not be understood by a client. For example, when a legal practitioner uses words like “lessor”, “lessee”, mortgagor, etc, he should define such words to give its original meaning.

4.      Use of interpretation clauses – This is the act of interpreting something as expressed in an artistic performance. When this is done, the legal document will convey a great meaning making it clear and accurate.

5.      Words in use to avoid context, ambiguity – Words that convey one meaning rather than several meanings or context should be used.

6.      Conveyancing Law and Interpretation Act 1964, sections 14 and 18 – Both sections referred to make use of words like “month” and “person”. To achieve clarity and accuracy, the meaning of such words should be explained. Thus, “month” means a “calendar month” (not 31 days because not all the months have 31 days), whilst “person” includes a “corporation”.

7.      Brackets – These are in pairs: open and closed brackets. They are also called parenthesis. Generally, they are used to enclose an aside or afterthought, which further clarifies a sentence. Brackets are used in legal documents to enclose nicknames given to parties to a transaction e.g. (the seller), (the buyer), etc. They are also used to enclose abbreviations or equivalence of figures in words. There are two types of brackets namely round ( ), and square [ ]. Square brackets are used in quotations where words which do not belong to the quotation are inserted in the quotation for sake of clarity while round brackets are used in all other situations except in citations of certain journals and law reports.

8.      Schedule – This is an annex or appendix to a statute or other document which aids clarity. Thus, they are part of enactment – A. G v. Lamplough (1878) 3 EXD 214.

9.      Repetition of preposition – This should be done in a logical manner in order to convey the essence of the legal document. That is, prepositions should be repeated where and when necessary for sake of clarity.

10.   Enumerating particulars and the exclusion of the “Ejusdem generis rule” – A legal practitioner has to determine the number of particulars by mentioning them one after the other and avoid the use of “ejusdem generis rule” which means “of or as the same kind”. Because, this might lead to ambiquity – Cotman v. Brougham (1981) A 514.

11.  Cross headings and computation of time – These are used to for a clearer understanding of a legal document.

SENTENCE AND PARAGRAPHS

1.      Sentences - A sentence must begin with a capital letter and may end with a full stop, exclamation mark or question mark.

a)      Sentences – Sentences should be written in plain English.

b)      Lengths of sentences – Long sentences should be avoided at all cost, instead, such a sentence should be redrafted into series of sentences. The length of a sentence depends on the idea in the sentence. Several scholars have given different ranges of words that should be contained in a sentence but a lot of them have agreed on a maximum of twenty eight (28) words while others ranges from twenty (20) words to twenty five (25) words. Thus, a sentence must neither be too long nor too short.

c)      Use of active words – Short, familiar words should be used instead of long unfamiliar words. Concrete words should be preferred to abstract. Words giving the same meaning should be consistently used. Technical words should be used sparingly.

2.      Paragraphing technique – Sentences must be arranged in paragraphs, each paragraph consisting of a thing, idea or argument. The division of a text into paragraphs makes for easy reading.

3.      Lengths of paragraphs – Suggestions have been giving about the right length of a paragraph, ranging from five (5) sentences to six (6) sentences.

4.      Numbering and indentation in paragraph – This is necessary in order to make clarifications in a legal document.

Legal practitioners may be required to draft several documents. These include internal memoranda, letters, legal documents, legal opinions and advice, and pleadings. Drafting rules must be followed when drafting documents and the right format adopted. Also, the appearance of legal documents is important. Documents should be well laid out to aid readability.

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