Duty on counsel

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observed that an appellate Court is only left with a duty to see (a) Whether there

was evidence to support the findings and or the decision of the trial Court. (b) Whether

the trial Court has made a correct assessment of the evidence before it. (c) Whether

the trial Court has wrongly accepted or rejected any evidence tendered at the trial,

or (d) Whether there has been an erroneous appraisal of facts leading to erroneous

conclusions in the case. See also A. Anyaoke v. Dr. F. Adi (1986) 3 N.W.L.R. 731

at 742; Mogaji Odofin & Ors. v. & Ors. (1978) 4 S.C. 91. - Per Ejiwunmi, J.S.C.,

in Khalil v. Odumade Suit No. S.C. 48/1992; (2000) 11 W.R.N. 1 at 14.

942. When an appeal is “brought” and when it is “entered”.

“An appeal is deemed to have been “brought” when the notice of appeal has been

filed in the registry of the Court below it. That is what Order 3 rule 5 of the Court of

Appeal Rules provides. But an appeal is deemed to have been “entered” when the

Appeal Court has received the record of appeal.” - Per Tabai, J.C.A., in Adetiloye

v. Aluyi Suit No. CA/B/41/99; (1999) 10 N.W.L.R. (Pt. 624) 648 at 663.

943. When an appellate Courts can disturb concurrent findings of fact by the

Courts below.

“It is now trite law, that an appellate Court will not disturb concurrent findings of fact

by the Court below unless there is substantial error apparent on the record of

proceedings.” - Per Musdapher, J.C.A., in Sossa v. Fokpo Suit No. CA/A/51/97;

(2000) 20 W.R.N. 89 at 98.

(59) DUTY ON COUNSEL

944. Couching grounds of appeal.

“Even where an Appeal Court spares incompetent grounds of appeal for special

reasons, it does not exonerate counsel for the appellant from the guilt or blame of his

own lapses or shortcomings in not couching the grounds of appeal properly for which

lapses the appeal may be dismissed or struck out to the detriment of the appellant

without redress (per Orah, A.C. J.C.A., in Oge v. Ede (1995) 3 N.W.L.R. 584 para.

G).” – Per Okezie, J.C.A., in Abu v. Ogli Suit No. CA/E/400/86; (1995) 8 N.W.L.R.

(Pt. 413) 353 at 367-368.

945. Duty of counsel in a criminal trial.

“In England where Judges and jurors are different, there is always the need to prevent

jurors from being influenced by arguments (which may mention some of the contents

of an inadmissible statement) as to whether or not a particular statement was obtained

under duress, or the like. In this country in which it is not possible to shield the Judge,

being Judge and jury, from any part of the proceedings, I doubt whether the duplication

of the hearing by conducting a trial within the trial is anything but a cosmetic mimicry.

It is, regrettably, still the law in this country. Be that as it may, it is always for the

learned counsel for the defence, in a case like this in which an accused person is

Duty on counsel Paras. 941-945

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defended by counsel, to raise an objection to the statement being tendered, on the

ground that the statement was not voluntary, e.g. allege facts amounting to duress,

before a mini-trial becomes necessary. See: The Queen v. Igwe (1960) 5 F.S.C. 55;

(1960) S.C.N.L.R. 158, also Uche Obidiozo & 2 Ors. v. The State (1987) 4

N.W.L.R. (Pt. 67) 748. Where, as here, counsel failed to play his part and the statement

was admitted, he cannot properly raise the absence of a mini-trial on appeal. See

Dawa v. The State (1980) 8 - 11 S.C. 236.In the instant case, on my above conclusions

that the statement, Exh. A, was duly tendered, and admitted in evidence, marked and

read in open Court in the presence of the appellant and his counsel who not only did

not raise any objection to its admissibility but also later addressed on it, there can be

no question of a trial within a trial.” Per Nnaemeka Agu, J.S.C., in Okaroh v. State

(1990) 1 N.W.L.R. (Pt. 125) 128 at 136 - 137.

946. Duty of counsel in preparation of Court processes.

“All I have done is send one message to counsel in the preparation of Court processes.

So much care is required and so much care should be taken. A Court process is not

just like a letter to a friend where one can afford to slip here and there with little or

no adverse effect. A Court process is a sacred and most important document which

must be thoroughly done and thoroughly finished. The adverse party, as usual, in the

profession, will always open his ears and his eyes very wide to pin point any error

and capitalise on same. He is always on the toes of the opponent to’ devour’ him.

But surprisingly, learned counsel for the appellant did not see the points. It is possible

he saw them and ignored them, knowing that they do not in reality detract from the

merits of the objection as such.” Per Tobi, J.C.A., in Joshua B. Fumudoh v. Aboro

(1991) 9 N.W.L.R. (Pt. 214) 210 at 225.

947. Duty on a new counsel becoming seized of a new case on appeal.

“In my opinion, the proper course which should have been adopted by a new counsel

becoming seized of a new case on appeal after a former counsel has filed the grounds

of appeal and the brief of argument is to look most crit-ically at the grounds of appeal

and the brief of argument filed and to attempt, if he thinks it desirable, to amend the

grounds of appeal to incorporate what he believes was omitted in the earlier grounds

of appeal; it is on the basis of the amended grounds of appeal, compact and all

embracing, that an amended brief of argument will be tailored and trimmed becoming

a com-pletely new garment. Such a new garment ought to take a completely new

look without the trace of patch work, counsel ironing all the creases.” - Per Kolawole,

J.C.A., in Iwuaba v. Nwaosigwelem (1989) 5 N.W.L.R. (Pt. 123) 623 at 628-629.

948. Duty on a party relying on documentary evidence in proof of his case.

“I agree that the correct view of the law is that a party relying on documents in proof

of his case must specifically relate each of such documents to that part of his case in

respect of which the document is being tendered. The Court cannot assume the duty

Paras. 945-948