Chief Dayi Magnus Dayi Berebika & 10 Ors V. Governor Of Rivers State & 6 Ors
Legal Synopsis by I.M. Abibo, Esq, MCIArb
Holistically, the role of a lawyer in a court case does not particularly align with that of a witness. It is for this reason that a lawyer is expected to decline to act as counsel in a court proceeding in which he knows or reasonably ought to know that he might be called as a witness. This rule is widely known as the advocate-witness rule and is significantly codified in Rule 20 of the Rules of Professional Conduct (RPC) 2007 for Legal Practitioners as well as Rule 3.7 (a) of the American Bar Association (ABA) Model Rules of Professional Conduct.
The rationale behind this rule was brought to light in the British case of MURRAY V. METROPOLITAN LIFE INS. CO 583 F.3D 173 CZD CIRO 2009 where the court held that a lawyer should not place himself in an embarrassing situation in which his credibility will be called into question or where he may end up abusing professional courtesy. The court noted that counsel’s sense of professional fraternity may overcome his duty to his client if such a situation is allowed, even as there could also be the likelihood of embitterment between counsel when the opposing counsel, during cross examination, seeks to impeach the credibility of the counsel standing as witness.
In three (3) recent cases, Nigeria’s apex court (the Supreme Court) invoked this rule to all affidavit evidence and held that an affidavit deposed to by a lawyer on behalf of his client should be discountenanced for being in flagrant breach of the RPC.
In AKINLADE & ANOR V. INEC & ORS (2020) 17 NWLR (PT.1754) 439; these were the words of the Supreme Court:
“The 2nd Respondent’s motion was contentious. The appellants, through one Mubarak Imam who describes himself as “a Legal practitioner in the Law Firm of Ahmed Raji & Co; Counsel to the appellants” filed a counter-affidavit wherein they supposedly joined issues with the 2nd Respondent on his objection to Grounds 14 and 18. The Counter-Affidavit, clearly res ipso loquitur, offends paragraph 20(4) of the Rules of Professional Conduct for Legal Practitioners, 2007 that forbids a lawyer from being a witness for his client in a matter that is contentious. The point is so basic and fundamental that the total disregard or lack of it by either this lawyer deponent or his principal in office cannot be condoned. Any conduct that is a direct affront or infringement of the express Rules of Professional Conduct can only be regarded as a conduct unbecoming. The counter-affidavit being so brazingly offensive shall be and is hereby discountenanced.”
Again, in NWITE V. PDP & ORS (2023) 7 NWLR (PT. 1883) 357, the apex court held that Rules 20(1), (4), and (6) of the RPC prohibit a legal practitioner from being a witness for his client and clearly stated that once a counsel realizes that he is to be a witness, he should excuse himself from further conduct of the case, particularly where contentious issues are involved.
In conclusion, the advocate-witness rule is justified by the need to foster a healthy public image of the legal profession. Lawyers representing litigants should not be witnesses in any contentious matter as doing so would be in clear violation of the RPC for Legal Practitioners and recent decisions of the Apex Court.
