Drafting, Legal Writing and Advocacy: Documents and the Courtroom
What is examined
This paper tests whether you can produce a document a court or client can actually use: pleadings, motions and affidavits, contracts, conveyances, wills and opinions, as well as the oral skills of opening, examination-in-chief, cross-examination, re-examination and submissions.
Drafting essentials
- A court document begins with the court, suit number, parties and their descriptions, then a title, the body with numbered paragraphs, the prayer, the date, signature and address for service.
- Pleadings state material facts and the reliefs sought. Affidavits state facts the deponent can prove, in the first person, with exhibits marked, ending in a jurat signed before a commissioner for oaths.
- A motion on notice states the order sought, the grounds and the supporting affidavit; an ex parte motion adds the urgency and why notice should be dispensed with.
- A contract contains parties, recitals, operative clauses, covenants, representations, termination, dispute resolution and boilerplate.
- A will must be signed by the testator in the presence of two witnesses present at the same time, who attest in the testator's presence.
Advocacy
Leading questions are permitted in cross-examination but not in examination-in-chief. The rule in Browne v Dunn requires that a witness be confronted with contradictory material, and objections must be taken at the time.
Worked example
You must apply to set aside a default judgment. Draft an affidavit in support.
Reasoning: paragraph one identifies the deponent's capacity; then the history in chronological order; then why judgment was entered without the defence (for example, service at an old address); then a draft defence showing a triable issue; then the explanation for delay; then the application's purpose. Every assertion must be within the deponent's knowledge or belief, and the draft defence is exhibited, not summarised. Argument belongs in the written submission, not the affidavit.
Traps
Arguing law inside pleadings or affidavits; omitting the prayer; defective jurats; witnesses signing a will separately; and cross-examining on documents never put to the witness.
International Law and Regional (ECOWAS/AU) Law: Sources and Remedies
Scope
The paper covers the sources of public international law, treaty-making and domestication, statehood, jurisdiction and immunity, the use of force and human rights protection, then the regional layer: the African Union's Constitutive Act and the ECOWAS Revised Treaty with its protocols and Court of Justice.
Core rules
- Sources under Article 38 of the ICJ Statute: treaties, custom, general principles, judicial decisions and writings, with equity and justice as subsidiary.
- The Vienna Convention on the Law of Treaties governs formation, interpretation, reservations and termination. A state is bound by a treaty it ratifies; domestic effect generally requires legislative incorporation.
- Statehood requires a permanent population, defined territory, government and capacity to enter relations with other states.
- Jurisdiction is territorial, national and protective; diplomatic and state immunity restrict enforcement against foreign states and envoys.
- ECOWAS law: the Revised Treaty, the 1979 Free Movement Protocol and the 2001 Supplementary Protocol on Democracy and Good Governance. The ECOWAS Court hears interpretation of Community law and, since 2005, human rights claims, with direct individual access and no exhaustion requirement.
- The African Commission on Human and Peoples' Rights sits in Banjul and requires exhaustion of local remedies; the African Court may receive individual cases only where the state has made the required declaration.
Worked example
A citizen's land is destroyed by state agents without compensation, and he wants to sue a regional body rather than exhaust Gambian courts.
Reasoning: he may approach the ECOWAS Court directly, because its human rights jurisdiction does not require exhaustion of local remedies, provided the right invoked is guaranteed in a treaty ratified by The Gambia, such as the African Charter. He may also use the domestic courts. The African Commission route would require exhaustion first, and the African Court would need a declaration or a Commission referral.
Traps
Assuming a ratified treaty is automatically enforceable in domestic courts; confusing the African Commission with the ECOWAS Court; ignoring admissibility requirements; and citing the Universal Declaration as a binding treaty.