Dangote Cement Plc v. Peter Ager & Anor (2024) 10 NWLR (Pt. 1945) 1: The Supreme Court Chides the Verbatim Copying of Briefs of Argument by Lawyers

It is often said that imitation is the sincerest form of flattery. However, it is startling when such stories have to do with a lawyer copying the arguments of another lawyer verbatim and passing off the same as his. The Supreme Court was faced with this scenario in Dangote v Ager (supra), and the Honourable Justice Mohammed Lawal Garba (JSC) who observed the strange occurrence could not hold back his hammer of rebuke.

In the case under review, the Supreme Court unanimously reversed part of the concurrent decisions of the Court of Appeal and the High Court wherein the Courts had held that the Appellant’s termination of the 1st and 2nd Respondents’ employment was unlawful, null and void and that the salaries and allowances payable to the Respondents were to be computed from the date they were indefinitely suspended till the date of judgment. Although the Supreme Court refused to disturb the concurrent findings of the lower courts on the illegality of the indefinite suspension of the Respondents, it reasoned that the Appellant’s subsequent termination of the respondents’ employment was merely ‘wrongful’ and not unlawful, null and void, and that therefore, the lower courts ought to have reckoned with the date of termination in computing the entitlements of the Respondents. The apex Court thus recomputed the entitlements of the Respondents from the date of their illegal suspension till the date of the wrongful termination.

Interestingly, while delivering the lead judgment, Hon. Justice Garba observed that the counsel to the 2nd Respondent had copied verbatim the arguments of the 1st Respondent’s counsel on an issue. In reprimanding the 2nd Respondent’s counsel, the Supreme Court Justice seized the opportunity to chide the practice by lawyers of plagiarizing the written arguments of co-parties’ counsel. The full comment of Justice Garba on this issue at page 33, paras A-D, with which the other learned Justices of the Supreme Court concurred is reproduced as follows:

“Because the issues raised in the 2nd respondent’s brief are the same as those submitted in the 1st respondent’s brief, the arguments on the issue are not only identical, but copied and so the same; word for word as those canvassed in the 1st respondent’s Brief and reviewed above. I must say that this practice by counsel of copying briefs of argument and arguments therein filed by another counsel for a different party to an appeal in this court or any appellate court, is not only appalling, but also shows clear admission of professional incompetence and breach of professional duty to the client/party who retained the services of such counsel. I have noted that, recently, the desire by counsel to obtain a judgment/judgments from this court for the sole, purpose of meeting one or as part of requirements for the conferment of the privilege rank of Senior Advocate of Nigeria, has driven many counsel to blindfoldedly, bring all manners of appeals even in the most inappropriate situations or cases, to this court, or, as in this appeal, merely copy brief of arguments for different parties by just changing or substituting the name of counsel who wrote and settled the original briefs. The practice cannot be deprecated enough and should be made to attract some serious professional penalties, apart from or in addition to imposition of appropriate costs to be personally paid by such indulgent counsel. I say no more for now”

Where there are two or more co-defendants or co-plaintiffs (co-parties) with a similar defence or cause of action, they may be represented by different counsel. But the commonness or similarity of their interests does not confer any right on either of the counsel to plagiarize the separate written arguments of the other co-party’s counsel. In Dangote v Ager, the 1st and 2nd Respondents had a similar cause of action but as they were represented by different counsel in the same matter, the apex Court reasoned that it was unprofessional for the 2nd Respondent’s counsel to copy the brief of argument of the 1st Respondent’s counsel in toto on an issue.

It is interesting to note that the Supreme Court did not approach the issue from the perspective of intellectual property violation. Rather, the apex Court considered the issue through the prism of ethics, competence and professionalism. Indeed, the rules of professional conduct require a lawyer to devote his time, energy and expertise to the service of his client, and to represent the client within the bounds of the law and competently – See Rules 14, 15 and 16 of the RPC, 2023. In this connection, plagiarisation of a co-party’s written arguments does not tend to fulfil the above duties.

There seems to be a dichotomy between intellectual property concerns and professional ethics on the issue of plagiarism in brief writing. Whereas prior permission or proper attribution (that is citation or recognition of the original source) by the copying lawyer may satisfy intellectual property requirements (see United States v. Flynn, No. 17-232, 2019 WL 6836790 (D.D.C. Dec. 16, 2019), it is not clear whether mere attribution without more will exculpate the lawyer from professional incompetence. This is because professional ethics goes beyond the copying lawyer’s duty to recognize the original scholarship of the colleague’s work and extends to the duty of competence and devotion to his own client - See re Ayeni, 822 A.2d 420 (D.C. Cir. 2003). Therefore, attribution alone without properly streamlining the issues and arguments to fully capture the peculiar interests of the client may give rise to the issue of professional ethics.

While American Professors Carol Bast and Linda Samuels argue that “much of the writing in legal practice is collaborative, with the focus on the persuasiveness of the document, rather than its originality,” they also acknowledge that “an attorney is expected to represent the best interests of clients when developing pleadings, motions, briefs, and memoranda of law for consideration by the court and when drafting transactional documents.” See Carol M Bast and Linda B Samuels, ‘Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty’ Volume 57 Issue 3 Spring 2008 Catholic University Law Review, page 805.

In conclusion, it is common, at least on grounds of uniformity, for co-parties with similar interests but represented by different lawyers to think of adopting the same argument. As a result, a co-party’s counsel who receives the brief of argument of his colleague (counsel to the other co-party) may be tempted to 'copy and paste' word for word part or all of the argument therein as though it were authored by him. But the decision of the Supreme Court in Dangote v Ager has dealt a blow to such practice. It is submitted that in such cases, the copying lawyer has a duty to acknowledge the original source (attribution) and to further streamline the issues and arguments to fully capture the interests of his client.

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