THE NATURE OF HOLDING A WATCHING BRIEF

By Chinecherem Ubaka

INTRODUCTION

Generally, in criminal matters, the complainant or victim has no stake in a criminal trial. It is the state that prosecute crimes against alleged offenders as an exercise of their constitutional duty to secure the lives and property of their citizens. The practice is that the complainant hires a counsel to watch the proceedings in court. The scope of this write up is to discuss the qualities expected of a lawyer holding a watching brief for the complainant and whether he can address the court after seeking leave.

DUTY OF A LAWYER HOLDING A WATCHING BRIEF 

(a). The duty of a lawyer holding a watching brief is to provide the needed support and trial strategy to the prosecution behind the scenes. 

(b). To correct the prosecution where there is a loophole in the evidence.

PURPOSE OF WATCHING BRIEF

The main purpose of holding a watching brief is to ensure that the criminal process is well-conducted to bring about just outcomes and help protect the rights and interests of victims of crimes. Also, it is to ensure the diligent prosecution of the matter. A lawyer who is holding a watching brief serves as a stumbling block against lazy prosecutors who may carry out the prosecution in an unprincipled manner. In the case of Adio v. FRN, (2019) LPELR-49793 (CA) per Bada, J.C.A, the court restated the fact that counsel watching brief for the victim of the case can only be seen and not heard. Where a nominal complainant has any other thing to do in respect of the case, he would need to seek for the leave of court.

 It is worthy to note that in the above case, counsel watching the brief applied to discontinue a charge without the leave of court. This is clearly a usurpation of the power of the Attorney-General of the federation and a disregard for the rule of law. Little wonder why the court further noted that 

“The law does not anticipate any situation where the counsel watching brief will bring an application seeking plea bargain…even where plea bargain was the intention of the nominal complainant, same cannot be given effect to without the concurrence of the prosecuting counsel”

The above highlighted quote suggest that a counsel holding a watching brief can bring an application for plea bargain provided that;

The leave of court is sought and obtained

The nominal complainant i.e. the victim has shown intention to do so

The prosecuting Counsel must agree to the application 

Furthermore, in the case of FRN v.Ononye, (2018) LPELR-45067 (CA), the defense Counsel informed the court that the complainant was no longer interested in the prosecution of the charge and that he has written to the EFCC disclosing the position coupled with the fact that complainant would not appear in court to give evidence.  Counsel holding the brief of the complainant confirmed the foregoing position. The Prosecution objected on the ground that the complainant is actually the state and urged the court to ignore both the defense counsel and the counsel holding the brief for the complainant. The court ruled that having considered the submissions of all the learned counsel i.e. prosecution counsel, defense counsel and counsel holding the brief for the complainants

“I am satisfied that there is no need for us to continue to have this charge on our cause list…In the instant case, the complainant is not in court today and has never appeared in court for the four times this charge came before this court. This is a clear indication that he is not interested in the prosecution of the charge…he has followed it up by sending his counsel (counsel holding a watching brief) a very senior counsel to come to court and inform us of their intention to discontinue the prosecution of the defendant. It will serve no useful purpose for any of the parties involved in this charge to insist on its  retention in our cause list as the end result is obvious; a mere waste of time of the court, the EFCC and the fence”

Thereafter, the learned justice went ahead to dismiss the charge. From the above cases, it is obvious that the rule that counsel watching a brief on behalf of his client is present to represent the complainant’s interest.  Therefore, the fact that he can only be seen and not heard is not strictosensu rule. Just like every other rule, it is subject to modifications. It is believed that the Judge/ Magistrate is in charge of his court and he has the inherent jurisdiction and discretion to allow certain things or not.

CAN A LAWYER HOLDING A WATCHING BRIEF ADDRESS THE COURT?

Every Counsel who has been called to the Nigerian Bar is entitled to his right of audience in court subject to certain limitations. They include; failure to pay bar practicing fees, guilty of professional misconduct or an infamous conduct in a professional respect and where there is a claim against him in court. See the case of Fawehinmi v. NBA (No. 1) [1989]2 NWLR (Pt. 105) 494. Obaseki JSC, added in the afore-mentioned case that the conduct of the counsel sought to be barred from appearing as counsel must also be prejudicial to the interest of justice. This means that where none of the foregoing is present, a counsel is entitled to address the court. If we agree that the Magistrate is an unbiased umpire, I do not understand neither do I see any reason why a counsel watching the brief of the complainant cannot be heard in court especially when the leave of court has been sought. It is our humble submission that the mere fact that counsel is holding and watching brief for the complainant is not a reason for his right of audience in court to be removed. There are certain rules that have become the norm or a rule of custom by virtue of constant practice, nevertheless, it doesn’t stop the rule being reformed.

A look at the Rules of Professional Conduct (RPC), 2007 particularly, rule 14(5), notes that negligence in handling of a client’s affairs may be such a nature as to amount to professional misconduct. It is important to note that a lawyer holding a watching brief for his client owes this duty to his client. This is further reinforced with the fact that the prosecution counsel is not particularly the victim’s counsel and it would be a herculean task for the victim to expect the prosecution counsel to strictly discharge his duties. Thus, where such a counsel is denied right of audience in court on behalf of his client merely because of a customary rule; it would appear that the law is giving justice with its right hand and snatching same with its left because the Judge/Magistrate can decide to uphold the rule that such a counsel is to be seen and not heard. 

Chinecherem Ubaka

Legal Practitioner.