FINAL ADDRESS CANNOT MAKE UP FOR LACK OF EVIDENCE

FAILURE TO FILE A FINAL ADDRESS IS NOT FATAL

In Ndu vs. The State (1990) Part 164 page 550, the Supreme Court held that: “The right of address given to a party or his counsel does not confer on him the right to do so at his pleasure. A party or counsel may forget or be taken to waive his right of address if he fails to address when called upon by the Court to do so at the close of evidence. It was further held that there are however occasions when addresses from Counsel are a matter of formality. They may not diminish or add to the strength or weakness in a party’s case. The facts and the law applicable in such cases speak loudly for themselves to require address.”

THE CONSTITUTIONAL RIGHT TO FINAL ADDRESS

My Lords, I had the opportunity of addressing this type of anomaly in Kalu v. State (2017) LPELR – 42101 (SC). Speaking for this Court, I held that: “… it is undeniable that Section 294 (1) of the Constitution of the Federal Republic of Nigeria consecrates the right to final addresses, Sodipo v. Lemminkainen Oy [1985] 2 NWLR (pt 8) 547; Mustapha v. Governor of Lagos State [1987] 2 NWLR (pt 58) 539; Ijebu Ode v. Balogun and Company Ltd (1991) LPELR – 1463 (SC) 31- 32; F-A; Okeke v. State (2003) LPELR – 2436 (SC) 19 -20; F-A. The said expression ‘final addresses’ means the last or ultimate speech or submission made to the Court in respect of the matter before it, before the delivery of the judgment. Put simply, it is the last address before the delivery of the judgment, Sodipo v. Lemminkainen Oy (supra); Mustapha v. Governor of Lagos State (supra); Ijebu Ode v. Balogun and Company Ltd (supra); Okeke v. State (supra). It [final address] is the penultimate part of the three most important portions of the trial period; the first, being the hearing of the evidence; while the last is the judgement, Okeke v. State(2003) LPELR -2436 (SC) 19 -20; F-A. Such is its pedestal in the administration of justice that when counsel or a party is denied this right [that is, of address], the trial Court is, equally, deprived of its enormous benefits. Its inevitable consequence is that a miscarriage of justice has been occasioned, Okafor and Ors v. A.G., Anambra and Ors (1991) LPELR -2414 (SC) 28; A-C; Obodo v. Olomu [1987] 3 NWLR (pt.59) 111; Adigun v. A-G of Oyo State (supra). This explains why a party must have the same right as given to his adversary to offer, by his counsel, the final address on the law in support of his case, Ndukauba v. Kolomo and Anor (2005) LPELR -1976 (SC) 12; A-D. It would thus seem obvious that, the draftsperson of this section [Section 294] had in mind the eloquent views of a distinguished American Jurist, Dillon, who observed in his Laws and Jurisprudence of England and America that: “I feel reasonably assured of my judgment where I have heard counsel, and a very diminished faith where the case has not been orally argued, for mistakes, errors, fallacies and flaws elude us in spite of ourselves unless the case is pounded and hammered at the Bar…” [Italics supplied for emphasis] Now, prior to the evolution of brief writing in various Rules of our Courts, counsel, actually, ‘pounded and hammered [their arguments] at the Bar.’ In place of that practice which has now fallen into desuetude, one of the new features introduced by these rules is the concept of advocacy in writing, that is, brief writing, whose main purpose is to curtail the time that should have been wasted in lengthy oral arguments, Onifade v. Olayiwola and Ors (1990) 7 NWLR (pt 161) 130, 160: oral arguments in which verbose counsel beat out the bush, Omojasola v. Plison Fisko Nig.Ltd and Ors (1990) 5 NWLR (Pt 151) 434, 441. Thus, although oratorical prowess was previously a great asset in advocacy, due to the great changes which have been wrought in the Court rules, proficiency in the presentation of briefs has taken the place of brilliancy in oral advocacy, Gaamstac Eng. Ltd and Anor v. FCDA (1988) 4 NWLR (pt 88) 296, 305-306. [per Nweze, JSC in Kalu v. State (supra) 9 et seq].

— Chima Centus Nweze, JSC. State v. Andrew Yanga (SC.712/2018, 15 Jan 2021)

FINAL ADDRESSES ARE TO ASSIST THE COURT – THEY ARE DISPENSABLE

It was in this light that Supreme Court per Oputa, J.S.C., in Niger Construction limited vs. Okugbeni (1987) 4 NWLR Part 67 pages 787 at page 792; “Addresses are designed to assist the Court. When, as in this case, the facts are straightforward and in the main not in dispute, the trial Judge would be free to dispense with final addresses. Cases are normally not decided on addresses but on credible evidence. No amount of brilliance in a final speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue.”

ADDRESS OF COUNSEL ARE INTEGRAL PART OF THE TRIAL

In Obodo v. Olomu (1987) 3 NWLR (Pt.59) 111 at page 121, Belgore, JSC, observed as follows: “Addresses of counsel form part of the case and failure to hear the address of one party, however overwhelming the evidence on the one side, vitiates the trial because in many cases, it is after the addresses that one finds the law on the issue fought not in favour of the evidence adduced … By holding that the decision could not have been different if all the address were before the trial court, the Court of Appeal was attempting to read the mind of the trial Judge. He heard the evidence and saw the witnesses, the addresses might have thrown a new light on his view on the evidence. For a totality of a case heard entails not only the evidence but also the addresses.” At pages 123 and124, Obaseki, JSC, stated:- “The hearing of addresses by every court established by the Constitution of the Federal Republic of Nigeria is recognised by the constitution. It is to be given before judgment. See section 258 (1) – “Its beneficial effect and impact on the merit of the case is enormous and unquantifiable. The value is immense and its assistance to the Judge in arriving at just and proper decision though dependent on the quality of the address cannot be denied … until the learned trial Judge’s mind is exposed to an address, no one can say what effect it will have on his mind. It cannot be said that in the light of the above, the failure to hear the address of counsel for the plaintiff has not occasioned a miscarriage of justice. It certainly has not served the interest of justice. Miscarriage of justice vitiates a judgment and renders it a nullity.”

FINAL ADDRESS CANNOT FILL THE PLACE OF EVIDENCE

That counsel in the guise of final address or brief of argument cannot lead evidence to fill any lacuna in his client’s case. He is not permitted to do so … Final addresses, no matter how brilliantly they are couched cannot constitute evidence and they are not intended to be so: NWADAIRO v. SPDC (1990) 5 NWLR (pt.150) 322 at 339; ODUBEKO v. FOWLER (1993) 1 NWLR (pt. 308) 637; ISHOLA v. AJIBOYE (1998) 1 NWLR (pt. 532) 71 at 93 ARO v. ARO (2000) 14 WRN 51 at 56.

— E. Eko, JSC. Lawali v State (2019) – SC.272/2017