Yusuf Ali’s Two Decades Of Forensic Advocacy At The Inner Bar in print

Forensic advocacy is a phrase that cannot be used all too lightly because of the burden of surrounding expectations, which it bears. In one sense, ‘forensic advocacy’ is the act of channeling the energies and resources of forensic experts by a legal practitioner in the proof of their case before a court. In this first sense, not only must the legal practitioner be able to decipher what manner of forensic evidence is needed to prove a fact and issue in the civil or criminal proceedings before the court; he must also have mastered the art of cross-examining an expert in the field to be able to generate the evidence required to support his client’s case.

In the second sense, a forensic advocate must be able to protect his clients from a range of problems that are frequently encountered within the court system – biases, prejudices, divided or conflicting loyalties, corruption and more.

The legal practitioner must be able to factor into litigation strategies, the thinking of other diverse specialties like mediation, psychoanalysis, forensic analysis and psychological reviews among others.

The fundamental question that follows is whether the editors are right to have qualified Ali, as a forensic advocate? I found an answer to this in the different ways the contributors and the courts have profiled, described and given illuminating expressions to the reputation and fame of the honoree.

“ A lawyer with a good reputation is simply more effective on behalf of his clients than a lawyer with a bad one. If my colleague already knows that I don’t bluster and will follow through on a threat, they are more likely to compromise. If they know that I will advise my client to conduct themselves sensibly, they are more likely to advise theirs to do the same. If they know that I don’t fight just for the sake of fighting, they are more likely to work with me to reduce the scope of a dispute.”

In the Preface to the book, Professor Wahab Egbewole, one of the editors, noted that the contributors are those “…who know our subject relatively well, who can properly connect with the issues determined in the cases and who are generally familiar with the rudiments of advocacy…”

With this background information, reading through the 20 chapters of Volume 1 became a journey of discovery into the legal prowess of Yusuf Ali. He stands out as an

intellectual powerhouse with an incisive mind; a good tactician who spots the points that others do not; always calm, measured, quick and methodical in his arrangement of facts; deep in his understanding of the law; lucid in thought and expression; rigorous in analysis of matters of which there is no precedent in order to give practical advice. And that is not all, the honoree is more; do we talk of his matchless grit and courage to stand up for the powerless and causes he represents; adroit skills in cross-examination; or his being straight, forthright and always leaving a strong impression whether his case was intrinsically good or bad?

He is a man who believes his duty as an advocate is to do the best for his client, however, bad the case may be; reserved, courteous and with impeccable mannerism in his dealings with the court and colleagues; an exemplar of skillful and brilliant advocacy, yet, exuding gravitas and authority; a meticulous counsel with extraordinary eye for details; an advocate with immense work ethic and integrity; and a well-respected leader at the Bar.

From the above qualifications and celebration statements about Ali by jurists and advocates who have at one time or the other been opportune to interact with him and some of whose views to which I will shortly make specific reference, my unequivocal answer to the fundamental question earlier raised is ‘Yes.’ The honoree of today has more than proved his mettle in both senses in which we earlier clarified the phrase forensic advocacy, and the book, as an intellectual object, can also effectively answer to that title which the respective chapters as a compositional whole has been given to bear.

AS noted earlier, the book is in two volumes. Volume I, which has 321 pages, contains critical analysis of 36 judicial decisions in which the honoree was involved. Volume II consisting 1012 pages reproduces 55 of the judgments in which the honoree appeared for one of the parties. These judgments are inclusive of the 36 judicial decisions covered by Volume 1.

Again, let me reiterate for the purpose of emphasis that the three-fold objectives of the book, as noted in the preface, are the need to record for posterity Ali’s exploits; have the book serve as a reference material to legal researchers, and to provide inspiration to coming generations. I will shortly return to whether these three objectives were duly served. For the moment, a noteworthy point is that both volumes for ease of reference repeated the acknowledgement written by one of the editors, Ayo Olanrewaju; preface written by Prof. Wahab Egbewole, SAN; foreword written by former Chief Justice of Nigeria, Honourable Justice Walter Samuel Nkanu Onnoghen, GCON; and the profile of the honoree written by another of the editors, Kehinde Kolawole Eleja, SAN.

Reading through Ali’s profile, one would see that he has always been a consistently and exceptionally bright man. He is also a prolific speaker on topical issues of interest; a blessing to humanity in the provision of service to professional bodies, institutions, communities; and the promotion of quality philanthropy.

A conceptual point that should be made clear at the outset is that to seek to offer comments on every segment of Volume I, where we have the critical analysis of judicial decisions would certainly be tedious. For emphasis, to attempt a chapter-by-chapter review of 36 judicial decisions that have been thoroughly analysed by 18 critical thinkers in 20 chapters in the space of a book review, and in the context of their topicality and knowledge value addition will be at the risk of losing my legitimacy before this distinguished audience.

Consequently, what I will be offering is an overview of this serious work of scholarship; sufficient enough to whet the appetite of the dignitaries here present, and also stimulate the interest of other potential readers to what this addition to legal jurisprudence offers. Underlying this approach, therefore, is that understanding that my non-reference to some chapters as I go further in this review does not make them less a major contribution.

The areas of law touched upon is quite broad, ranging from criminal prosecution and the duty of the prosecution, the jurisdiction of courts to determine cases, statutory interpretation, exercise of court’s discretion, electoral matters and election petitions, impeachment process in Nigeria and the role of courts, labour and employment, banking processes and the challenges of guaranteeship, disciplinary process of judicial officers, the constitution and the role of courts, estoppel and negligence, chieftaincy, and Nigerian littoral state and sovereign wealth.

In the true sense of the saying, ‘iron sharpens iron,’ one cannot but acknowledge the intellectual brilliance of the contributors drawn from practice and the academia. In not too dissimilar styles, the contributors conceived of an approach that gives the reader an opportunity of what the chapter will focus on through an introductory paragraph. This is then followed by the facts of the case being considered, the actual issues formulated before the court, arguments of counsel with particular emphasis on the contributions of the honoree to the development of the law through the case being examined, the principles decided, and finally the significance of the judgment. This approach has a lot to commend the contributors for their intellectual rigour and the editors, who I suspect must have given a guide to the contributors on the style of writing to be adopted.

For the relevant areas of law dealt with, this book will effectively serve as primary and secondary sources for legal research. For the young practitioner and, in some cases, older practitioners, the book will serve as a practical guide to how issues can be formulated for determination before Appellate Courts.

It is appropriate that I identify those leading advocates, professors and other scholars who have not just paid tribute, but who have through their deep critical thinking and analytical scholarship given us an opportunity in this book to truly understand the qualities and values that has set Ali, apart as a forensic advocate at the Inner Bar. These great minds listed here in no particular order, but whose common purpose is their love and admiration for the honoree, are: Adebayo Adelodun, SAN; Bimbo Akeredolu, SAN; Dr. Ibrahim Imam; Dr. Dauda Adeyemi Ariyoosu; Prof. Bashiru Adeniyi Omipidan; Prof. Wahab Egbewole, SAN; Dr. Muhtar Etudaiye; Kehinde Kolawole Eleja, SAN; Lateef Fagbemi, SAN; Kemi Pinheiro, SAN; Olanike Adelakun-Odewale; Dr. Joshua Olukayode Olatoke, SAN; Roland Otaru, SAN; Professor Muhammed Mustapha Akanbi, SAN; Elijah Adewale Taiwo; Dr. K. I. Adam; Joseph Bodunrin Daudu, SAN; and Ayo Olanrewaju.

The contributors were not reluctant to express their criticism and independent opinions. Indeed, they held an even balance in what is the law and what they believe the law should be. An example of this is the decision in the case of Abubakar v. Nasamu (2012) (No. 1 17 NWLR (pt. 1330) where the Supreme Court was called up for the first time to interpret Section 285 (7) and (8) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. One of the two issues for determination is: “Whether in view of the provision of Section 285 (7), (8) and 294 (i) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the judgment of the lower court delivered on December 29, 2011 in respect of which the reasons for the decision was given on January 23, 2012, is a nullity.”

The contention of Kola Awodein (SAN) Counsel for the Appellant was that the Court of Appeal was wrong to have given its judgment first within the stipulated time, while deferring its reasons to another date outside the statutory 60 days prescribed by the Constitution. Mallam Ali on the other hand forcefully argued on behalf of the 1st and 2nd Respondents that having heard and decided one way or the other on December 29, 2011, the Court of Appeal’s decision was well situated within the 60 days allowed under Section 285 (7) of the Constitution. The Supreme Court, in its unanimous decision held that Court of Appeal lacked the requisite jurisdiction to adopt the procedure of giving judgment first and deferring the reasons to another date.

Following his penetrating analysis of the historical antecedents of the constitutional amendment in question and the well-settled position of the apex court of preference for substantial justice as against technical justice, the view of Kehinde Kolawole Eleja, SAN, (Chapter 7) was that the Supreme Court ought to have upheld the argument of the honoree in that case.

It was in the context of this approach that Kemi Pinheiro, SAN, in Chapter 11 also disagreed with the thrust of the decision of the Supreme Court in the case of Elelu-Habeeb v. A. G. Federation (2012) 13 NWLR (pt. 138) 423, where the apex court took the view that the Federal High Court had jurisdiction to hear and determine a suit on the removal from office of the Chief Judge of Kwara State by the Kwara State Government. The facts of the case are not directly germane to the point I want to make here. It will suffice to note that the learned silk found so much wisdom in the point that Yusuf Ali, SAN, was trying to drive home before their Lords same which was not accepted.

Pinheiro argued from the perspective of sovereignty and the fact of Nigeria being a federation. He, thereupon, premised his argument on a combined reading of Sections 1 – 6 of the Constitution of Nigeria as amended. If we go to the complexities surrounding the issue of federalism, and the realities we are daily confronted with as a nation, it may be too early to prognosticate that the position of Pinheiro is somewhat facile. Indeed, it may well be that the day is not far distant when an opportunity may present itself for the Supreme Court to revisit this decision along the lines of his contention.

Another of the several notable cases reviewed in the Book is the decision of the Court of Appeal in the case of Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 91 (Chapter 9). That case which was reviewed by Prince Lateef Fagbemi, SAN revealed Yusuf Ali, SAN, as a man whose love for the law is matched only by his contributions towards its improvement. In the words of the respected Learned Silk, the case has remained an unassailable authority for the principle of law that a Cross Appeal and Respondent’s Notice are mutually exclusive, as both cannot be jointly employed in same case by same party. It is awe inspiring to read of the admirable commendation by the court in that case of the work ethic and teaching by example attributes of the Honouree. The Court stated: ”I take the opportunity to once more comment and commend the learned counsel involved in this matter especially Olanipekun and Yusuf Ali Esqs, SANs. They handled the matter with utmost respect to the Court. We have seen the evidence of hard work and deep research they exhibited in their respective briefs. We have learnt tremendously by their hard work and presentation in court without any rancor. We have enjoyed their decency and decorum which is classic and worthy of emulation by all and sundry.”

In Chapter 13, the remarks of Dr. Joshua Olatoke, SAN, in his review of the case of Oladejo v. State (1994) 6 NWLR (Pt. 348) 101, CA is a powerful reminder of the intellectual rigour and tireless efforts of Ali in always pushing the frontiers of law. Just because something is precedent is no reason we should be constrained by it. As noted by the learned silk, while the law has been that a person must not be punished for an offence not known to law, the honoree in a brilliant, calm and measured manner was able to persuade the court to hold that a party cannot be guilty of an offence, which is not in existence or that he is not capable of committing. It goes without saying that it is only a very tenacious and bold advocate with tactical acumen who can seek to open new frontiers of defences in criminal actions. It was one of those situations that the honouree succeeded in advancing the jurisprudence of law.

A thread that cuts across the criticisms of the contributors as contained in the book and same which is to be commended is that they were all result-oriented as against uncultured, discourteous, abusive criticisms that are lacking in analysis and deep thinking, and motivated by the results reached in particular cases.

In closing this segment of the review, I found the remarks and observations of a past President of the Nigerian Bar Association (NBA), Joseph Bodunrin Daudu, SAN, in Chapters 18 and 19 not only revealing of the personal side of Ali, but also illuminating of his considerable professional accomplishments. His path and that of the honoree crossed shortly after the honoree joined the law firm of Awomolo & Co., and since then, they have been friends and brothers; sharing the joys and pains of life.

In Chapter 18, where he reviewed three of the cases, he noted: ”Mallam Ali is first and foremost, a God-fearing man, he has lived his life and brought up his children in the utmost fear of God almighty… Mallam Ali was elevated to the rank of Senior Advocate of Nigeria in 1997 after 15 years of legal practice. In those days, with the pervading quality of the Bar, to make silk at such youthful age at the Bar meant that such a candidate came up top of the list and was qualified in all three categories A, B and C as they were then referred to… For Mallam Ali, wearing the rank at such a young age did not go into his head, when you compare his age at the time to the ages of the earliest SANs at the time of conferment. He retained his humility and sense of humour in the presentation of cases. In my humble view, Mallam’s greatest strength as an advocate continues to be his uncanny ability to communicate his points (arguments) to the judge or justices.”

In Chapter 19, where he reviewed the Supreme Court’s decisions in the cases of Adekeye v. Adesina (2010) NWLR (Pt. 1225) 474; and the Court of Appeal decision in Governor of Kwara State v. Eyitayo (1997) 2 NWLR (Pt. 485), 118, the learned silk revealed that Ali is not only a master of the game when it comes to formulation of issues for determination before the Appellate Courts, he also disclosed that while the honoree has accurate appreciation of the law generally, the areas of expertise which has won him great acclaim are customary law, chieftaincy matters, election petitions and constitutional law.

READING through the 20 chapters in Volume 1, the reader is not left in doubt of how remarkable the two decades of Ali at the Inner Bar has been. The incisive examination of the different cases is impressive in their richness and extent, and in the excellence of their scholarship. The contributors probed widely and deeply and with revealing effect. In this regard, if I am to answer the second question earlier posed as to whether the book answered the three-fold objectives intended by the editor, I will answer in the affirmative, and further add a fourth objective that has been served, which is: it espoused on what I will call ‘de lege ferenda’ (a desire to express the future of law).

Volume 1 of the book is marked by clarity of writing and simplicity of exposition, while the cases reproduced in Volume II have without doubt been painstakingly compiled as a valuable source material. I am particularly impressed with the comprehensive index of the two volumes. For those who know, an index is the roadmap to a book, thus, when you have a well-made index like the one under reference, the reader is assured of an effective guide to whatever information he/she is trying to find.

The two volumes have equally been attractively presented. The cover is adorned with the handsome photograph of the honouree with his trademark smile, which mien has been the undoing of many unwary legal opponents. This is followed by the black and white frontispiece portrait of the honoree adorned in the ceremonial silk robe.

Distinguished ladies and gentlemen, a book reviewer by accepted standards must not only present the great side of a book. He must also objectively identify the flaws and gaps, if any, in the book subject of review. That it was difficult finding faults with the book was not surprising to me. Wahab Egbewole, SAN, is an outstanding academic and scholar, Kehinde Eleja, SAN, an extensive knowledge of law and advocacy skills, while Ayo Olanrewaju has a background in English, law and currently chair of the editorial board of a foremost law publishing company. Thus, the effort that produced these monumental volumes speaks of a synergy between the academia, advocacy and the publisher.

The above notwithstanding, there are few imperfections, which always are inevitable. Why for instance should we have a critique of 36 judicial decisions in Volume 1 and a reproduction of 55 judgments in Volume II, which is meant to complement it, yet no justification for this by the editors. Minor confusions in one or two of the articles also went undetected by the editors. For example, in Chapter 17, Ali was stated at page 231 as counsel for the respondent at the Supreme Court, and then, at page 233, he was referred to as counsel to the Appellant before that same court.

In Volume II, the whole of page 29 would appear to be written in Spanish. Is this deliberate? I strongly doubt, otherwise, there would have been an explanation of sorts by the editors. These few criticisms, which I must confess have been laboriously put together do not detract from the fact that the two volumes of the book, “Two Decades of Forensic Advocacy At The Inner Bar, Festschrift In Honour of Yusuf Ali, SAN,” are of immense value. The contributors, editors, publishers and most importantly, the honoree Mallam Yusuf Ali, SAN, are all to be congratulated for producing a book of high standard and an indispensable reference material to students of law, the Bar, the Bench and other legal enthusiasts.

Professor Olanrewaju A. Fagbohun, the book reviewer, is the Vice Chancellor of Lagos State university (LASU), Ojo.

Culled: The Guardian