Nigerian Justices, Nine Years On: Still Moving with the Times?

Almost a decade ago, in November 2017, I published a blog post on my blog, Naija Cyber Lawyer, titled “Nigerian Justices: Moving with the Times.”

At the time, I was reflecting on something that appeared both simple and significant: Nigerian appellate courts were increasingly embracing the Internet as a legitimate research tool.

The immediate inspiration for the article was a decision of the Court of Appeal in Mrs Betty Darego v. A.G. Leventis (Nigeria) Ltd & 3 Ors [2015]LER CA/L/481/2011, where His Lordship Nimpar, JCA, in explaining the meaning of “preponderate”, referred to the definition available on “Dictionary.com.” I wrote then:

“It is good to note that our Lordships are utilizing the Internet to research and cite same as sources of information in their judgments. This is a welcome development and it's hereby suggested that such practice should be emulated and maintained.”

I went further to suggest that lawyers should equally take the cue from the courts by conducting research online and citing web references or hyperlinks in written briefs.

Almost nine years later, I have unexpectedly found myself returning to that article, not merely as an interesting piece of legal history, but as part of a response to a contemporary argument before a court.

The issue arose from an argument in a written brief concerning foreign judicial decisions cited by counsel. The opposing counsel argued:

“Notably, the Applicant did not attach to his Affidavits copies of the foreign decisions he cited. However, in any event, this Honourable Court is under no legal obligation to rely on the Applicant’s citations or references to such foreign decisions. As the Supreme Court held in ABUBAKAR & ORS V. YAR’ADUA & ORS, the Court is not required to go on a ‘voyage of discovery’ to get copies of the foreign decisions referred to by the Applicant.”

That submission raises an interesting question. What exactly constitutes a “voyage of discovery” in the age of hyperlinks, digital law reports, online court databases and electronically accessible judgments?

Surely, there is a distinction between asking a judge to embark upon an undefined search for some obscure authority and providing the judge with the precise hyperlink to the judgment being relied upon. If counsel says:

“My Lord, this is the authority. Here is the citation. Here is the hyperlink to the judgment.”

 Is the judge really being asked to embark upon a “voyage of discovery” merely by clicking the link?

That question is particularly interesting to me because my 2017 article was already discussing this very technological transition almost a decade ago. I wrote:

 “This is hoping that lawyers too will take up the cue by His Lordship Nimpar J.C.A by carrying out research using the web and also citing web references or hyperlinks in their written briefs.”

In other words, the hyperlink was not being contemplated as a substitute for proper legal citation. It was being contemplated as an additional research aid. The traditional citation tells the judge what authority counsel is relying upon. The hyperlink can potentially take the judge directly to where the authority can be examined.

That distinction matters. And there is another important point. My 2017 article did not blindly celebrate hyperlinks. I actually identified their weakness. I discussed “link rot”, the problem that arises when a webpage disappears, moves or its contents change. I even referred to research showing that a significant proportion of internet links cited by courts could eventually become unavailable.

So, the argument was never that lawyers should abandon conventional citation. The argument was that technology should supplement legal research rather than be treated as an intruder into the judicial process. Nearly nine years later, the technology has obviously moved much further.

Judgments are increasingly available online. Law reports are searchable electronically. Courts themselves publish decisions digitally. Lawyers file documents electronically. Legal research platforms provide searchable databases. A judgment can be located, read and verified in seconds.

Against that background, perhaps the more appropriate question today is not whether a judge should undertake a “voyage of discovery”. The better question is:

Where counsel has clearly identified the authority and provided a functional hyperlink to it, does accessing that authority amount to judicial research, or does it amount to a reasonable verification of the material placed before the court?

There is, of course, a legitimate concern about the limits of judicial research. A judge should not become an advocate for either party. A court should not be expected to search endlessly for authorities that counsel has failed to identify properly. A party cannot simply throw a legal proposition into a brief and expect the judge to do all the research necessary to construct its case. But that is not necessarily the situation where counsel has supplied the citation and a direct hyperlink to the foreign judgment.

There is a world of difference between:

“My Lord, there is a case somewhere in the United States, Canada or England which supports our position. Please find it.”

and:

“My Lord, we rely on this particular decision, identified by its full citation, and the judgment is available at this hyperlink.”

The first may reasonably invite the criticism of a “voyage of discovery.” The second is arguably something entirely different.

Indeed, there is something rather ironic about using a judicial dictum from an earlier technological era to argue against a judge accessing an authority which counsel has placed literally one click away. The law must preserve its discipline, but legal practice cannot pretend that the Internet does not exist. That was the central point of my 2017 article.

For lawyers practising today, the lesson is not that hyperlinks should replace authorities, certified copies, proper citations or the rules of court. It is that the modern lawyer should make the judge's work easier, not harder. Give the full citation. Give the pinpoint. Give the relevant passage. And, where appropriate, give the hyperlink. Let the court decide whether the authority assists the determination of the case. Technology should not lower the standards of advocacy. It should improve them.

And perhaps, nine years after I wrote “Nigerian Justices: Moving with the Times,” the question remains as relevant as ever:

Are we asking our courts to move with the times, or are we asking them to remain permanently anchored to the technological assumptions of the past?

For those interested, the original 14 November 2017 article, “Nigerian Justices: Moving with the Times,” is still online on the Naija Cyber Lawyer blog. Read the original 2017 article