Significance, Limitations And Duty By Oluwatosin Damilola MESE, Esq. – TheNigerialawyer

Let me restate here first that watching brief is in fact a
proper brief just like any other brief a lawyer may get from his
client. Hence, a lawyer watching brief is NOT the regular person in
court sitting at the gallery.

That being said, it is the intention of the writer to do more
than defining the term “watching brief”. Discussion on the
substance, gravity and import of watching will be made
explicit.

Watching brief is defined as a brief held by a barrister to
follow a case on behalf a client who is not directly involved see
(https://www.lexico.com/en/definition/watching_brief^[1]
accessed on the 26^th day of August, 2019).

According to Wikipedia, it is a method normally used in criminal
cases^[2]
by lawyers^[3]
to represent clients not directly a party to the suit and to
function as an observer (underlining is mine). The method is
normally used to help protect the rights and interests of victims
of a crime, or also to protect a defendant from possible
malicious
prosecution^[4]. See (https://en.wikipedia.org/wiki/Watching_brief_(lawsuit)^[5]
accessed on the 26^th day of August, 2019)

To put it in another way, a lawyer retained to watch brief
should never consider such as a passive and boring duty but one
that should interest him, particularly should he have a flair for
criminal jurisprudence because the duty of such a lawyer is
actually calling to account every party in the trial without being
heard. Working behind the scenes-and giving the much needed support
to the side enforcing his client’s rights.

It is uncertain whether watching brief is provided for by the
RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS
2007; however, a more detailed evaluation of rule
14 reveals that in a criminal trial, since the prosecution
counsel is not particularly the victim’s lawyer but the state
counsel, it is going to be laborious for the victim to expect from
the prosecution counsel strict discharge of those duties contained
therein especially rules 14(2) (b), (c), (d) and
14(5). Hence, the need to engage a lawyer to watch
brief arises because the victim is not a client to the prosecution
lawyer. The law is such that all criminal cases are held by the
state. It is the state which therefore prosecutes them not
extremely on behalf of the complainant but as if the wrong was in
fact done against the state itself.

Rules 14(2) (b), (c), (d) and 14(5) referred to above provide
that a lawyer shall;

14(2) (b) keep the client informed of the progress and any
important development in the cause or matter as may be reasonably
necessary.

14(2) (c) warn his client against any particular risk which
is likely to occur in the course of the matter.

14(2) (d) respond as promptly as reasonably possible to
request for information by the client.

14 (5) Negligence in handling of a client’s affairs may be
of such a nature as to amount to professional misconduct.

Therefore, a situation where the prosecution lawyer will be seen
to be bound by this provision as it relates to the victim is not
envisaged strictly. To this end, counsel watching brief needs to
familiarize himself with the matter, as it is absolutely necessary
that he obtains all witness statements and documents to be relied
on and peruses them carefully. Should there be a loophole in the
evidence, he should raise it with the prosecution for redress.
Although, in achieving this, it is imperative that the lawyer
develops a cordial relationship with the prosecutor so that the
information flowing to him (prosecutor) will appear as persuasive
suggestions as opposed to orders which are more often likely to be
ignored since the lawyer has no control over the prosecutor in his
line of duty.

The purpose of watching brief is not to ensure that a conviction
takes place but rather to guarantee that the criminal process is
conducted well to bring about just outcomes and help protect the
rights and interests of victims of a crime. In addition to this, it
helps to guarantee that the criminal process is carried out
professionally and competently thereby guarding against lazy
prosecutors who may carry out the prosecution in an unprincipled
manner. It also deters corrupt prosecutors or judicial officers who
may make a mess of a good case for personal reasons. The presence
of a lawyer watching brief buries other intentions in the mind of
officials who become aware every move is under watch by a
professional.

A lawyer watching brief for the victim of the case can only be
seen and not heard and in the event of wanting to do more for the
nominal complainant in respect of the case, he would need to seek
for leave of the Court This limitation and procedure of watching
brief appears to have been expounded by Per BADA, J.C.A. at
(Pp. 24-26, Paras. A-E) in the case of ADIO v. FRN
CITATION: (2019) LPELR-46793(CA)

CRIMINAL LAW AND PROCEDURE – CHARGE(S): Whether
counsel watching brief for a victim can apply to discontinue a
charge

 As rightly submitted by Counsel for the Respondent the
charge against the Appellant was instituted by the Federal
Government of Nigeria through its Agency, the Economic and
Financial Crimes Commission (EFCC). And by law, it is only at the
instance of the Federal Government or State that the charges can be
discontinued, either by the Attorney General or an officer in his
chambers entering a Nolle Prosequi. The present application being
complained about was nether filed by the prosecution nor the
defence Counsel. And under Section 108 of the Administration of
Justice Law of Oyo State 2016 there was no application before the
lower Court to terminate the Criminal case in Charge No-
1/3EFCC/2017 against the appellant. Apart from the fact that the
Counsel watching brief for the victim of the case can only be seen
and not heard, it is the responsibility of the Government to
prosecute or grant leave to prosecute crime which is the subject
matter of this charge. The above position of the law
notwithstanding, I am of the view that the nominal complainant can
only be heard during the trial of the case as a witness. If the
nominal complainant has any other thing to do in respect of the
case he would need to seek for leave of the Court. It is clear that
no such leave was obtained neither was any application for such
leave filed before the Court prior to the filing of the said motion
on notice under consideration which was to arrest the Judgment of
the lower Court and discontinue the case.

The law does not anticipate any situation where the Counsel
watching brief will bring an application seeking plea bargain or
arrest the judgment on behalf of the Appellant. Even where plea,
bargain was the intention of the nominal complainant same cannot be
given effect without the concurrence of the prosecuting Counsel
and/or the Respondent. See Section 269 (1) of the Administration of
Criminal Justice Law 2016 Laws of Oyo state which states that-
“Notwithstanding in this law or any other law, the prosecution may
– (a) receive and consider a plea bargain from a defendant charged
with an offence either directly from the defendant or on his
behalf…” I am of the view that the complainant in this case is the
Federal Republic of Nigeria and Section 356 of the Administration
of Criminal Justice, Laws of Oyo State 2016 allows only the
complainant i.e the Federal Government of Nigeria to exercise such
powers of seeking to have the case discontinued provided it is not
a felony.

I am also of the view that application aimed at arresting
judgment of Court is not known to our Criminal jurisprudence and
neither does our own rules of Court make provision for such an
application. As I stated earlier that the prosecuting Counsel must
be carried along if there is going to be any such application but
in this case he was not carried along. Therefore the application
was not properly brought before the Court. The lower Court was
therefore right when it refused to hear the application. See the
case of: – DICKSON OGUNSEINDE & ANOR VS SOCIETE GENERALE BANK
LTD & 2 ORS (2018) 9 NWLR PART 234 PAGES 241 – 242 PARAGRAPHS
H-A.”Per BADA, J.C.A. (Pp. 24-26, Paras. A-E) – read in context
(2019) LPELR-46793(CA).

Finally, rule 1 of the RULES OF PROFESSIONAL CONDUCT FOR LEGAL
PRACTITIONERS 2007 already provides that “a lawyer
shall uphold and observe the rule of law, promote and foster the
course of justice, maintain a high standard of professional
conduct, and shall not engage in any conduct which is unbecoming of
a legal practitioner’’. Substituting the word
“a lawyer” with “a lawyer watching
brief” buttresses and  explains that Lawyers watching
brief in criminal cases should therefore be active and provide the
necessary support to the prosecution team and the entire justice
system to ensure fairness is done to their clients and also to the
defendant.

Written by Oluwatosin Damilola MESE, Esq.,
[email protected]
, 08138409651^[6]

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