01/07/2026
*ETHICS OF ADVOCACY, PROCEDURAL REGULARISATION, AND THE DUTY OF COUNSEL HOLDING BRIEF:*
*Reflections on a Hypothetical Procedural Dilemma*
*Introduction*
Suppose counsel discovers, during the argument of a motion for regularisation, that a prayer seeking an order deeming a Memorandum of Appearance as properly filed and served had inadvertently been omitted from the motion. The motion, however, seeks extension of time and regularisation of the Statement of Defence and accompanying processes already filed out of time.
Opposing counsel promptly raises the omission and objects to the propriety of the application. The counsel appearing in court—who is merely holding the brief of the principal counsel—must make an immediate decision.
Should counsel insist on arguing the motion as constituted and leave the court to determine the objection? Should counsel concede that the omission is curable and seek an adjournment to amend the process? Is conceding to costs a sign of weakness or incompetence? Or does it represent the highest traditions of responsible advocacy?
This hypothetical scenario raises important questions regarding the ethics of advocacy, procedural regularisation, and the often misunderstood role of counsel holding brief.
*Procedural Regularisation and the Pursuit of Substantial Justice*
Rules of court are designed to facilitate justice, not to frustrate it.
Where a Memorandum of Appearance and Statement of Defence are filed outside the period prescribed by the Rules, the proper practice is ordinarily to seek:
- an extension of time within which to enter appearance;
- an order deeming the Memorandum of Appearance already filed and served as properly filed and served upon payment of prescribed fees;
- an extension of time within which to file the Statement of Defence and accompanying processes; and
- an order deeming those processes as properly filed and served.
Where the motion inadvertently omits the specific prayer relating to the Memorandum of Appearance, the omission constitutes a procedural irregularity capable of being cured by amendment.
The question then becomes whether counsel should persist in contesting the objection or seek to cure the defect.
*Litigation Is Not a Game of Technical Combat*
The Supreme Court has repeatedly cautioned against elevating technicalities above justice.
In Adewunmi v. Plastex (Nig.) Ltd. (1986) 3 NWLR (Pt. 32) 767, the Court emphasised that litigation is not a game of technicalities and that procedural rules should aid rather than obstruct the determination of disputes on their merits.
Similarly, in Bello v. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) 828, the Court observed that rules of court are handmaids of justice and not its mistress.
These pronouncements underscore an enduring judicial philosophy: where a defect can be cured without injustice to the opposing party, counsel ought to assist the court in removing the obstacle rather than exploiting it.
*The Duty of Counsel to the Court*
A legal practitioner owes duties that transcend loyalty to the client.
Counsel owes duties:
- to the client;
- to the court;
- to opposing counsel;
- to the legal profession; and
- to the administration of justice.
The Supreme Court in Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466 reiterated that counsel are ministers in the temple of justice and are expected to aid the court in arriving at a just determination of disputes.
Likewise, in Iteogu v. LPDC (2009) 17 NWLR (Pt. 1171) 614, the Court reaffirmed that the duty of counsel to the court is fundamental and cannot be subordinated to every tactical preference of a litigant.
Accordingly, where counsel becomes aware that an omission may undermine the procedural integrity of an application, the responsible course may well be to seek leave to amend.
Candour to the court is not weakness. It is professionalism.
*The Position of Counsel Holding Brief*
Perhaps no advocate is more vulnerable to misunderstanding than counsel holding brief.
There remains a common but mistaken perception that counsel holding brief functions merely as a messenger who must mechanically execute instructions without exercising independent professional judgment.
That view is incorrect.
A counsel holding brief remains an officer of the court. He bears professional responsibility for every representation made before the court and must exercise judgment consistent with law, ethics, and the client's best interests.
If an unforeseen issue arises during proceedings, counsel holding brief is entitled—and indeed obliged—to take reasonable steps necessary to protect the client's case and preserve the integrity of the proceedings.
To do otherwise would reduce advocacy to automation.
Is Conceding to Costs an Admission of Incompetence?
Certainly not.
Costs are a recognised incident of judicial discretion.
They serve, among other purposes, to compensate a party inconvenienced by adjournments or procedural defaults occasioned by the opposing side.
In Guinness (Nig.) Plc v. Nwoke (2000) 15 NWLR (Pt. 689) 135, the Supreme Court affirmed that the award of costs lies within the discretion of the trial court and may be employed to indemnify a party against expenses unnecessarily incurred.
Where an adjournment becomes necessary to cure a procedural omission, conceding to reasonable costs may reflect courtesy, realism, and respect for the court's time.
It is often the price paid to preserve the client's substantive rights.
A modest costs order may prevent a far greater procedural disaster.
*Advocacy Beyond Ego*
The adversarial nature of litigation sometimes tempts counsel to perceive every concession as defeat.
Yet mature advocacy demands a broader perspective.
The objective of litigation is not to demonstrate personal invincibility. It is to secure justice within the framework of law.
There are occasions when professional courage is exhibited not by fighting every point to the bitter end, but by acknowledging a curable defect and taking immediate steps to remedy it.
An advocate who insists on pressing forward despite recognising an avoidable irregularity may satisfy personal pride while exposing the client to needless risk.
Wisdom lies in distinguishing between battles worth fighting and errors worth correcting.
*Contributing to the Development of Legal Practice*
The development of our procedural jurisprudence depends not only on judicial pronouncements but also on the conduct of advocates.
Lawyers shape legal culture by the standards they choose to uphold.
A profession committed to substantial justice requires advocates who:
- value candour over gamesmanship;
- prioritise clients' interests over personal ego;
- respect opposing counsel without surrendering legitimate positions;
- acknowledge mistakes capable of correction; and
- assist courts in achieving just outcomes.
Procedural rules should never become instruments of ambush where the interests of justice permit amendment and regularisation.
*Conclusion*
The hypothetical scenario discussed in this article illustrates an enduring truth about legal practice: advocacy is not measured solely by the ability to oppose, resist, or outmanoeuvre.
It is equally measured by judgment, restraint, honesty, and fidelity to the administration of justice.
Where counsel discovers, during the argument of a motion for regularisation, that a prayer to deem a Memorandum of Appearance properly filed has been omitted, seeking an adjournment to amend the process and conceding to reasonable costs is not necessarily an act of weakness.
It may well represent the finest traditions of the Bar.
The advocate's ultimate duty is not merely to win. It is to ensure that justice is pursued through lawful, ethical, and professionally responsible means.
In that endeavour, procedural regularisation, candour to the court, and principled advocacy remain indispensable virtues of legal practice.
I am,
*JUDAH A UGWERU, ESQ.,*
A proponent of unwavering ethical standards in the legal profession."
Disclaimer: This article is a hypothetical academic reflection intended to stimulate discussion on Ethical Advocacy, Professional Candour and, observing professional Ethics in the Legal profession.
It does not refer to any identifiable proceedings or parties, hence, you are free to join this discussion unbiased, as it is aimed at developing our law and the legal profession with respect to observing the highest ethical standards in Legal Advocacy and clients representation by legal Practitioner.
