ESTISIONE H. NIGERIA LIMITED & ANOR v. OSUN STATE GOVERNMENT & ANOR
(2012)LCN/5801(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of May, 2012
CA/I/M107/2005
RATIO
APPEAL: WHERE SHOULD AN ISSUE FOR DETERMINATION MUST BE DERIVED FROM
The law is settled that an issue for determination must be derived from a ground of appeal, which in turn must be a complaint against the ratio decidendi of the judgment appealed against. See: Egbe Vs Alhaji & Ors. (1990) 1 NSCC (Vol.21) (Pt.1) 306 @ 332 lines 39 – 44. Dalek Nig. Ltd. Vs OMPADEC (2007) ALL FWLR (364) 204 @ 226 F – H. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
COURT: PROCEDURE WHERE A JUDGE DISQUALIFIES HIMSELF FROM ADJUDICATING OVER A MATTER
It must be said that a lot of precious time has been wasted in the pursuit of this appeal. This is because when a Judge disqualifies himself from adjudicating over a matter, the usual procedure is that the case file is sent back to the Chief Judge for reassignment to another Judge to hear the case de novo. It is part of the administrative duties of the Chief Judge. He also has a discretion whether to permit the Judge concerned to withdraw from the case or direct him to continue with the matter to its logical conclusion. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
COURT: WHETHER A COURT OF LAW IS ENTITLED TO LOOK INTO ITS RECORD AND USE ANY DOCUMENT IT CONSIDERS RELEVANT
The law is trite that a court of law is entitled to look into its record and make use of any document it considers relevant in determining the issue before it. See: Fumudoh Vs Aboro (1991) 9 NWLR (214) 210 @ 229 E; Agbareh & Anor v. Mimra & 2 Ors (2008) 2 NWLR (1011) 378 @ 411 – 412 H – C In Womiloju’s case (supra) at page 561 G, His Lordship I. T. Muhammad, JSC stated that he conducted a search into the court’s main file to confirm the assertion of learned counsel for the appellants that the appellants sought and were granted leave to file and argue new grounds of appeal. It was this research that saved the appeal from being struck out for incompetence. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. ESTISIONE H. (NIGERIA) LIMITED
2. ESTISIONE S. R. L. Appellant(s)
AND
1. OSUN STATE GOVERNMENT
2. NATIONAL BANK OF NIGERIA PLC Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of S. O. OGUNNIYI, J, of the High Court of Osun State, Osogbo Judicial Division of 9/5/05 disqualifying himself from further adjudication in the garnishee proceedings pending before him.
The garnishee proceedings arose as a result of an arbitral award in the sum of N85,505,788.00 plus 25% interest per annum made on 20/12/02 in favour of the appellants by an arbitral tribunal presided over by Hon. Justice Kayode Eso, JSC (retired Justice of the Supreme Court). The 1st respondent, at the court below, sought to have the award set aside. The application was refused on 18/2/05 and the award made the judgment of the court. The appellants thereafter commenced garnishee proceedings.
On the 6/4/05, the lower court pursuant to an ex-parte application filed by the judgment creditors (appellants herein), made an order nisi against the 2nd respondent herein, cited as the garnishee. The garnishee filed a verifying affidavit stating that the 1st respondent’s accounts with it were funded in excess of N180 Million and gave an undertaking that the said funds had been placed on hold pending further directives from the court. The parties filed various applications. The 1st respondent filed an application for stay of execution of the judgment of 18/2/05 and an application to set aside the garnishee order nisi. The appellants on their part filed a motion on notice seeking an order for the garnishee to show cause why the garnishee order nisi should not be made absolute. The applications were consolidated. The 1st respondent subsequently withdrew its applications so that the appellants’ application for the garnishee order nisi to be made absolute could be argued on its merits. The learned trial Judge heard argument for and against the motion on Friday 6th May, 2005.
Before arguments commenced on 6th May, 2005, Prince Lateef Fagbemi, SAN learned senior counsel for the judgment creditors/applicants raised the issue of a letter written to his Chambers by the Chief Registrar of the court for comments. The learned trial Judge nonetheless reserved the matter for ruling on Monday 9th May, 2005 at 12 noon. However on 9/5/05 instead of delivering the ruling, the learned trial Judge disqualified himself from further participation in the proceedings. He stated at page 325 of the record:
“I think it will be in the interest of justice that in view of the general allegations and counter allegations against some unnamed officers in these proceedings and as to this (sic) mode of service of the order made by this Honourable Court on the 6th of April, 2005, I should disqualify myself from further handling of this matter.
I have therefore disqualified myself this 9th day of May, 2005 from further handling of these proceedings.”
The appellants were dissatisfied with the turn of events and filed a notice of appeal on 31/5/05 containing five grounds of appeal. With the leave of this court they filed an Amended Notice of appeal dated 6/12/05 containing six grounds of appeal.
The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellants’ brief prepared by LATEEF FAGBEMI, SAN is dated 8/12/05 and filed on 9/12/05. They also filed a reply brief dated 9/1/10 and filed on 25/1/10. It was deemed filed on 3/11/10. The 1st respondent filed a notice of preliminary objection dated 1/6/06 and filed the same day. The 1st respondent’s brief is dated and filed on 1/6/05 but deemed properly filed on 11/4/07. At the hearing of the appeal on 1/3/12, OPEYEMI USIOLA ESQ., adopted and relied on the arguments in support of the preliminary objection contained at pages 6, 7 and 8 of the 1st respondent’s brief. He urged the court to uphold the preliminary objection. L. L. AKANBI ESQ., adopted and relied on the arguments contained in both briefs of argument filed and urged the court to allow the appeal. The 2nd respondent, although duly served with the processes in this appeal, including hearing notice did not participate in the proceedings and did not file any process.
The appellants formulated 3 issues for determination thus:
(1) Whether the decision of the learned trial judge to disqualify himself from further proceedings on the day ruling was to be delivered was justifiable in law in all the circumstances of this case?
(2) If the answer to issue 1 is in the negative, whether this Honourable Court is in a position to enter judgment on the merit of the application for garnishee order absolute which is purely documentary; and
(3) Whether the appellants are entitled to a garnishee order absolute?
The 1st respondent formulated a single issue for determination thus:
Was it proper for the learned trial Judge to suo motu disqualify himself from further participation in the garnishee proceedings instituted by the appellants in view of the allegations and counter allegations of impropriety made by the parties in this suit against officials of the Osun State High Court who participated in this suit?
Before going into the merits of the appeal, it is necessary to consider the preliminary objection raised by the 1st respondent. It is contended on behalf of the 1st respondent that issues 2 and 3 formulated by the appellants do not arise from the grounds of appeal disclosed in the amended notice of appeal and are liable to be struck out.
Learned counsel for the 1st respondent submitted that all the six grounds of appeal are repetitive and complain of the same thing i.e. that the learned trial Judge erred when he withdrew from the proceedings instead of delivering his ruling. He argued that as there is no ground of appeal complaining that the learned trial Judge erred by refusing to make the garnishee order nisi absolute, the two issues are incompetent. He argued that the issues are premature, as they appear to protest the merits of a ruling that was not delivered. He relied on Yusuf Vs Kode (2002) 6 NWLR (762) 231 @ 245 D – E.
Learned counsel for the appellant submitted that issue 3 arises from ground 5 of the amended notice of appeal, while issue 2 flows naturally from the consequence of issue 1 in the event that it is resolved in the appellants’ favour. He submitted that in the exercise of its wide powers under Section 15 of the Court of Appeal Act, this court may make any consequential order or relief, in any form, as the justice of the case demands. He relied on: Onuaguluchi Vs Ndu (2001) 7 NWLR (712) 309 @ 319. He submitted that even without formulating issue 2 this court could exercise its powers under Section 15 to give judgment on the merit of the case.
Ground 5 of the Amended Notice of Appeal reads:
5. The learned trial Judge erred in law when he refused to make his earlier order nisi absolute when in all the circumstances of the case there is no inhibition in the way of making an absolute order and the refusal to deliver his ruling slated for 9th May, 2005 is a refusal of the absolute order sought.
Issue 3 formulated from this ground reads:
3. Whether the appellants are entitled to a garnishee order absolute?
The law is settled that an issue for determination must be derived from a ground of appeal, which in turn must be a complaint against the ratio decidendi of the judgment appealed against. See: Egbe Vs Alhaji & Ors. (1990) 1 NSCC (Vol.21) (Pt.1) 306 @ 332 lines 39 – 44. Dalek Nig. Ltd. Vs OMPADEC (2007) ALL FWLR (364) 204 @ 226 F – H. In the instant case, the learned trial Judge disqualified himself from further handling of the case. Although he had reserved the garnishee proceedings for ruling, there is nothing in the decision appealed against to suggest in whose favour the ruling would have been delivered. Having regard to the fact that the application was hotly contested it would not be correct to say that the court refused to make the garnishee order absolute. It would not be proper to speculate on how the mind of the court was working. I am therefore in agreement with learned counsel for the 1st respondent that issue 3 formulated from ground 5 of the amended notice of appeal does not arise from the decision appealed against. Ground 5 and issue 3 formulated therefrom are therefore incompetent and accordingly struck out.
I have considered the appellants’ issue 2. In his reply brief learned counsel did not tie this issue to any ground of appeal. I am of the view that it qualifies as a relief to be considered in the event that the appeal is resolved in the appellants’ favour rather than an issue for determination in the strict sense of the word. It does not arise from any ground of appeal. Thus while it will not be considered as an issue for determination, the arguments in respect thereof may be relevant in the event that the appeal is resolved in the appellants’ favour. The preliminary objection therefore succeeds in part.
I shall now return to the main appeal. The appeal shall be determined on the appellant’s issue 1.
In support of this issue, learned counsel for the appellant submitted that Sections 6 (2) and 272 (1) of the 1999 Constitution vest judicial powers and jurisdiction in the High Court of a State for the determination of civil rights and obligations of persons who have submitted to or invoked its jurisdiction. Relying on the case of: Ajileye Vs Fakayode (1990) 5 NWLR (148) 92 @ 100 learned counsel submitted once the court has jurisdiction to entertain the subject matter of the suit a citizen should not be deprived of his right to have his case determined unless the trial Judge is legally disqualified from taking the matter. Learned counsel submitted that the judicially recognised circumstances under which a trial Judge ought to disqualify himself from further proceedings are:
(i) if the judge has a pecuniary or proprietary interest in the subject matter;
(ii) there is a real likelihood of bias exhibited by the judge;
(iii) relationship with one of the parties;
(iv) where the Judge has made known his views about the very issue or issues of a similar nature in such a way as to suggest prejudgment; or
(v) where the Judge has previously indicated partisanship by expressing opinions antagonistic to or favourable to one of the parties before him.
He referred to several authorities including: The Secretary, Iwo L.G. Vs Adio (2000) 8 NWLR (667) 115; Obadara Vs The President West District Grade B Customary Court (1964) ANLR 331;
Metropolitan Properties Co. (F.G.C.) Ltd. Vs Lannon (1969) 1 QB 577 @ 599. He also referred to the meaning of pecuniary interest as defined in Halsbury’s Law of England 4th edition. He submitted that the standard of assessment of whether or not a particular reason or situation is compelling enough to disqualify a Judge from adjudicating on a matter is that of a reasonable man. He submitted that the mere suspicion of unreasonable persons does not answer the test of bias. He submitted further that surmise or conjecture is not enough.
He submitted that notwithstanding the fact that in the instant case, the learned trial Judge was not asked to disqualify himself but did so suo motu, the principles enumerated earlier would still apply.
He referred to the reasons given by the learned trial Judge for disqualifying himself (reproduced earlier in this judgment) and submitted that the withdrawal was not based on any of the factors earlier referred to. He contended that between 6th May, 2005 when His Lordship reserved ruling after taking the arguments of counsel and 9th May, 2005 when the ruling was to be delivered there was no fact in existence to warrant his disqualification.
Learned counsel submitted that the learned trial Judge anchored his withdrawal from the case on allegations and counter allegations against some unnamed officers in the proceedings. He submitted that the learned trial Judge failed to state what the allegations were and the identity of the officers referred to. On the issue of the mode of service of the order made on 6/4/05, he referred to the record of proceedings and submitted that there was no complaint from anyone about improper service of the order. He submitted that the garnishee who was ordered to show cause maintained that it was not misled by the order served on it. He submitted that the conclusion of the learned trial Judge in this regard is perverse and should be set aside. He referred to: Irolo Vs Uka (2002) 14 NWLR (786) 195; Ikono L.G. Vs De Beacon Fin. & Sec. Ltd. (2002) 4 NWLR (756) 128. He submitted that even if service on one of the parties was wrong it would constitute a mere irregularity and did not warrant the learned trial Judge disqualifying himself. He argued that if the position of the learned trial Judge were allowed to stand, the reference to “unnamed judicial officials” would prevent any judicial officer in Osun State from adjudicating in the matter.
He urged the court to hold that it was wrong for the learned trial Judge to disqualify himself from further proceedings when all that was left for him to do in the matter was to deliver the ruling reserved for that day i.e, 9th May, 2005. He contended further that the disqualification amounts to a refusal of the appellants’ application to make the order nisi absolute.
In reaction to the above submissions, learned counsel for the 1st respondent submitted that the law is trite that a Judge or any other judicial officer sitting in adjudicatory capacity over any disputed matter is entitled to disqualify himself or withdraw from adjudicating over a dispute for good or bad reason or for no reason at all. He submitted that there is a world of difference between a case where a party to a suit sought to have a Judge disqualify himself or withdraw from the proceedings on grounds stated in a petition or an application and a situation where the Judge disqualifies himself suo motu, as in the instant case. He submitted that in the former case an aggrieved party could challenge the validity of the reasons relied upon by the party seeking the disqualification of the Judge whereas in the present circumstances, the voluntary withdrawal by the learned trial Judge cannot be challenged. He submitted further that where the trial Judge has voluntarily disqualified himself from the proceedings, it would not be in the interest of justice to send the case back to the same Judge to determine.
Learned counsel referred to several notorious cases where trial Judges have voluntarily withdrawn from hearing cases before them such as the murder trial of the late Attorney General of the Federation, Chief Bola Ige, SAN involving Senator Iyiola Omisore, where two Judges of the Oyo State High Court withdrew from the case and it was eventually heard and determine by a third Judge. He also referred to the case of Senator Rasheed Ladoja who sought to restrain some members of the Oyo State House of Assembly from impeaching him where after making some orders in the suit, Yusuf, J. voluntarily withdrew from further adjudication. He observed that the withdrawals were not challenged.
He submitted that in the case of Ajileye Vs Fakayode (supra) relied upon by learned counsel for the appellants, the Court of Appeal recognised and accepted the fact that it is proper for a trial Judge to withdraw from hearing a suit if he has a valid reason for doing so and that in such circumstances the proper course of action is to re-assign the case to another Judge. He noted that the court also recognised the fact that a Judge could withdraw from a case for an undisclosed reason. He submitted that Ajileye’s case rather supports the position of the learned trial Judge.
He submitted that contrary to the argument of learned counsel for the appellants, the learned trial Judge gave three reasons for disqualifying himself. On the “general allegations” referred to by His Lordship he referred to paragraphs 1 and 2 of the petition dated 22/4/05 written to the Chief Judge of Osun State attached to the judgment creditors’ further counter affidavit no. 2 at pages 305 and 306 of the record. He analysed the said paragraphs and submitted that they constitute the general allegations referred to by the learned trial Judge. He submitted that the “counter allegations” are contained in the appellants’ counsel’s response to the petition (a letter dated 2/5/05 annexed as Exhibit D to the aforesaid further counter affidavit no.2) at pages 309 – 311 of the record. He also referred to page 318 of the record where, at the commencement of the proceedings on 6/5/05, the appellants’ counsel made an issue of the petition as well as the Chief Registrar’s request for the response of the appellants’ counsel.
He submitted that the third allegation that arose in the course of proceedings on 6/5/05 was with regard to the fact that there were two significantly different certified true copies of the ex-parte garnishee order nisi both having been issued under the hand of the learned trial Judge. The 1st respondent contended that the name of the garnishee did not appear on the first certified true copy of the order and that the second copy was surreptitiously altered or amended to include the name of the garnishee without a formal application. He referred to pages 197 – 198 of the main record and page 13 of the supplementary record.
Learned counsel submitted that the appellants failed to cite any authority in support of their contention that the learned trial Judge, in the circumstances of this case, had no right to disqualify himself and that the authorities relied upon are not applicable to this case. He submitted that the cases relied upon by learned counsel for the appellants dealt with (i) cases in which a Judge or Tribunal had already delivered its judgment and an aggrieved party appealed against the decision and sought to have it set aside on the ground of bias or likelihood of bias; and (ii) cases in which, in the course of proceedings, one of the parties applied to the Judge or Tribunal to disqualify himself or itself from further participation in the proceedings on grounds of bias or likelihood of bias and the court or tribunal refused to disqualify itself, and the aggrieved party appealed against the refusal. He submitted that while the English authorities cited, which were all referred to in the case of Secretary, Iwo Local Government Vs Adio (supra) are of persuasive authority only, the decision in Ajileye Vs Fakayode (supra) is binding on this court.
Learned counsel further submitted that since the disqualification of Ogunniyi, J., the Chief Judge of Osun State had re-assigned the garnishee proceedings to Lawal, J., another Judge of the Osun State High Court for hearing. That the matter came up before the new Judge on 14/6/05 when learned counsel for the appellants urged the court to stay proceedings in view of an application for stay of proceedings pending before this court. The proceedings were accordingly stayed. He conceded that the order of transfer and other processes related thereto do not form part of the record of proceedings compiled herein. He however submitted that all the processes were attached as exhibits to the 1st respondents counter affidavit dated 7/6/05 in response to the application for stay of proceedings dated 6/6/05. He submitted that the said processes form part of the court’s record and the court is entitled to look at them or take judicial notice of them. He argued that it would not be proper to send the case back to Ogunniyi, J. in the circumstances, as prayed by the appellants in their alternative relief 2. He also contended that the order of the Chief Judge of Osun State re-assigning the case to another Judge is a decision within the meaning of Section 318 (1) of the 1999 Constitution. He argued that a decision to send the case back to Ogunniyi, J., would amount to setting aside the decision of the learned Chief Judge, which has not been appealed against.
I have given careful consideration to the submissions of both learned counsel. This case is unique in the sense that it is not a case where a trial Judge has been asked to disqualify himself from further participation in the proceedings or where, after a judgment or ruling had been given there was an allegation of likelihood of bias. Rather the learned trial Judge took the initiative and disqualified himself suo motu. Ordinarily this should not cause any aggravation because ethically, a Judge has a duty to recuse himself from proceedings where the factors enumerated by learned counsel for the appellants and set out earlier in this judgment i.e. pecuniary or proprietary interest, relationship with one of the parties, a previous expression of an opinion about the subject matter of the dispute, a previous expression of partisanship by expressing opinions antagonistic to or favourable to one of the parties before him, exist. Section C Rule 1 of the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria provides that a Judicial Officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. Several instances are set out therein, including those enumerated above. The instances are not exhaustive.
There is no doubt, as held in the case of Ajileye Vs Fakayode (1990) 5 NWLR (148) 92 cited by learned counsel for the appellants, that by virtue of Section 6 (6) (b) of the 1999 Constitution a party who submits his case to a court of law for the determination of his civil rights and obligations shall not be deprived of that right where the court has jurisdiction to entertain his claim unless the trial Judge is legally disqualified from taking up the matter. I have read Ajileye’s case thoroughly. In that case the plaintiff/appellant a retired Judge of the Oyo State High Court sued defendants/respondents for libel contained in an article published in the New Nigerian Newspaper. The 1st respondent was the retired Chief Judge of the State. The New Nigerian Newspaper was the 2nd respondent. The learned trial Judge found that he had jurisdiction to entertain the subject matter of the dispute but disqualified himself and all other Judges of the Oyo State High Court from hearing the case on the ground that since both the appellant and 1st respondent were retired Judges of the Court, it would not be in the interest of justice for any of the Judges including himself to preside over the matter. He therefore struck it out. As rightly observed by learned counsel for the 1st respondent, the learned trial Judge in that case not only disqualified himself from hearing the case but proceeded to strike out the case and even went further by advising the parties to institute a fresh action before a High Court in any other jurisdiction in the country where the New Nigerian Newspaper was published.
I have considered the opinions of Ogwuegbu, JCA at page 100 G (supra), Akpabio, JCA at 101 – 102 H – A (supra) and Sulu Gambari, JCA at 100 F. All the learned Justices were ad idem as to the fact that if for any reason the learned trial Judge felt that he could not hear and determine the suit, he should only have disqualified himself. Their Lordships held that he had no power to disqualify all the other Judges of Oyo State and strike out the case to boot, without being asked to do so. Sulu-Gambari, JCA stated at page 100 G.
“Any person bringing an action shall not be deprived of his right to do so once it is ascertained that the court has jurisdiction in the subject matter of the suit unless the trial Judge is legally disqualified from taking the matter; and in which case, the case will be reassigned to another Judge.” (Emphasis supplied)
Ogwuegbu, JCA held at page 101 E – F (supra):
“The order striking out the suit is clearly contrary to S.6 (6) (b) of the 1979 Constitution, The reason given by the learned trial Judge in disqualifying himself and every other Judge of the High Court of Justice, Oyo State are unknown to the law and not in the interest of justice.
If for any undisclosed reason he felt that he could not hear and determine the suit, he may decline to entertain the suit but certainly, every Judge in the Oyo State High Court, including himself has jurisdiction to hear the suit.
I am in the agreement with the Senior Counsel appearing for the appellant that the learned trial Judge drove the appellant from the judgment seat and this is a breach of his fundamental right and the appellant is denied justice.” (Emphasis supplied)
The issue before the court in Ajileye’s case was that the suit was wrongly struck out. The learned Justices held the view that the reason given by the learned trial Judge did not affect the jurisdiction of the court to entertain the suit and therefore if for any reason he felt he could not hear and determine the suit, it ought to have been sent back to the Chief Judge for reassignment to another Judge. The learned Justices recognized the fact that the learned trial Judge could disqualify himself for an undisclosed reason but was not entitled to strike out the matter, or disqualify all the Judges of the High Court from hearing the case, thereby denying the appellant a hearing. In the circumstances of that case the court was of the view that the learned trial Judge shrank from his judicial responsibility for reasons that were not valid in law.
In the instant case, although the learned trial Judge disqualified himself from further adjudicating in the matter, he did not strike out the case. This is therefore not a case where the appellants were denied a hearing.
Learned counsel for the appellants has argued that there were no facts before the court to justify the disqualification of the learned trial Judge. Learned counsel for the 1st respondent on the other hand referred to the proceedings and certain processes filed as forming the basis for the refusal of the learned trial Judge. For ease of reference, I shall again reproduce the decision of the learned trial Judge:
“I think it will be in the interest of justice that in view of the general allegations and counter allegations against some unnamed officers in these proceedings and as to this (sic) mode of service of the order made by this Honourable Court on the 6th of April, 2005, I should disqualify myself from further handling of this matter.
I have therefore disqualified myself this 9th day of May, 2005 from further handling of these proceedings.”
At the hearing of the garnishee proceedings on 6/5/05, Prince Lateef Fagbemi, SAN drew the court’s attention to the fact that a letter had been written to his chambers by the Chief Registrar for comments. A copy of one of the letters dated 28/4/05 addressed to one Seun Ajayi Esq. of Lateef O. Fagbemi & Co. from the Chief Registrar of the High Court is attached to the further counter affidavit no. 2 filed by the appellants herein at page 304 of the record and marked Exhibit A. The letter reads:
“Seun Ajayi Esqr.,
Lateef O. Fagbemi & Co.,
No. 22, Fajuyi Road,
Ekotedo,
Ibadan
Re: Osun State Government Vs Estisione H. Nig. Ltd. Suit Nos. HOS/M3/2003 and HOS/M27/2003.
I forward herewith the attached petition of the Attorney-General and Commissioner for Justice, Osun State, Barrister G. M. Adedeji plus other serious allegations of corruption, abuse of office and other acts of impropriety including partiality in filing of processes in the above named suits for your comments which must reach this office within two (2) days of receipt.
J. O. Ogunleye
Chief Registrar.”
The attached letter from the Office of the Attorney-General dated 22/4/05 and addressed to the Chief Judge of Osun State reads:
“Your Lordship,
Re: Osun State Government Vs Estisione H. Nig. Ltd. Suit Nos. HOS/M3/2003 and HOS/M27/2003.
I wish to bring to Your Lordship’s attention grave allegations of corruption abuse of office and other sundry acts of impropriety, at all levels levied against officials of the Osun State High Court currently involved in the Garnishee proceedings in the above named suit at the High Court No. 3 Osogbo.
2. With all sense of responsibility, I wish to state that as the Attorney-General and Commissioner for Justice, I was once approached myself for assistance with an offer of N10,000,000.00 (Ten Million Naira), as Public Relations (PR), by one Mrs. Haastrup, who claims to be a sister to Governor Ladoja of Oyo State. Of course the said offer was turned down by me. I’m afraid some officials of our High Court may have fallen victims of similar corrupt overtures.
3. Therefore, to avoid travesty and perversion of justice, do kindly use your good offices to investigate these allegations and restore the much needed confidence in the State Judiciary. Because justice must not only be done it must manifestly be seen to be done.
4. I thank Your Lordship.
Signed
(Barrister G. M. Adedeji)
Hon. Attorney-General & Commissioner for Justice.” (Emphasis mine)
In their joint reply to Exhibit A, the counsel in the chambers of Lateef Fagbemi, SAN to whom similar letters were addressed stated inter alia at page 310 of the record lines 31 – 37:
“in any event, what is the wisdom in writing to the chief Judge… if not for an ulterior motif (sic) designed to attempt a subtle influence on the decision of one of his brother Judges in favour of the government.
…We therefore hope that those who directed the Chief Registrar to write the letter under reference have not directed a query to the Judge handling the matter and ordering him as to what to do!” (Emphasis supplied)
Although the affidavit and exhibits were filed before the proceedings of 6/5/05, the fact of the letter was brought to the court’s attention on that day. After reserving the matter for ruling, having had his attention drawn to the letter, the learned trial Judge might have decided to study the processes more carefully. In the letter, Exhibit A the complaint is of allegations of “corruption, abuse of office and other acts of impropriety” “at all levels” against “officials of the Osun State Judiciary involved in the garnishee proceedings in the above named suit at High Court No. 3 Osogbo”. The allegations refer to named suits in which garnishee proceedings were pending. They refer specifically to Court No. 3 Osogbo. The allegations are that the acts complained of have permeated all levels. Mrs. Haastrup referred to in Exhibit A above is the Managing Director/Chief Executive of the 1st appellant. (See page 95 of the record). There is no doubt in my mind that an allegation of corruption, abuse of office and other acts of impropriety made in respect of a particular court and specific named proceedings stating that officials at all levels are involved, includes the head of the court concerned i.e. the presiding Judge. The allegations are all the more grave coming from the Attorney-General of the State.
The reaction of the appellants’ chambers did not help matters by suggesting that the authors of the letters might have a hidden agenda to subtly influence the decision of the learned trial Judge or that he might have been instructed as to what to do in the matter.
It seems to me that both letters raised the issue of the ability of the learned trial Judge to fairly adjudicate on the matter before him having regard to the circumstances of the case. As stated earlier in this judgment a Judge may recuse himself from handling proceedings before him for undisclosed reasons. He may also disqualify himself where there is a likelihood of bias. In this case the likelihood of bias arose from the allegations of corruption and impropriety and the possibility of influence from external quarters.
There is also the matter of certified true copies of two garnishee orders nisi both signed by the learned trial Judge, one without the name of the garnishee (see pages 197 – 198 of the main record) and the other bearing the name of the garnishee (See page 13 of the supplementary record). In the course of argument on the application to make the order nisi absolute, the issue of the competence of the order nisi was raise by learned counsel for the 1st respondent. If the learned trial Judge signed both processes, it raises the question as to if and when the second order was altered and by whom?
In a case where the learned trial Judge is accused of bias either during the course of proceedings or after the delivery of judgment, the court considering the issue would be guided by the decision in cases such as The Secretary Iwo Central LG Vs Adio (supra) where Ogundare, JSC at 133 F – G cited with approval the view of Lord Denning M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. Vs Lannon (1969) 1 QB 577 @ 599, wherein he stated inter alia:
“There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: “The Judge was biased”.”
In Womiloju Vs Anibire (2010) 10 NWLR (1203) 545 @ 571 G – H. His Lordship, Adekeye, JSC considered the terms “judicial bias” and “bias” as defined in Black’s Law Dictionary 8th edition thus:
“Black’s Law Dictionary defines judicial bias as –
“A Judge’s bias towards one or more of the parties to a case over which the judge preside. Judicial bias is usually insufficient to justify disqualifying a Judge from presiding over a case. To justify disqualification or refusal, the judge’s bias usually must be personal or fused on some extrajudicial reason. In the case Kenon Vs Tekam (2001) 14 NWLR (732) 12 Bias is defined as –
“An opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the court so influenced will be unable lo hold an even scale.”
(Emphasis supplied)
His Lordship went on to consider the test for determining the real likelihood of bias by referring, inter alia to the case of Metropolitan Properties Co. (F.G.C.) Ltd. Vs Lannon (supra). In the same case, I. T. Muhammad, JSC stated at page 566 G:
“The question [whether there is a real likelihood of bias] is always answered by inference drawn from the circumstances of the case. The reason for this attitude of the court is that it would be unseemly for the court to purport to pry into the state of mind of any judicial officer. See: Abiola Vs Federal Republic of Nigeria (1995) 7 NWLR (405) 1.”
The effect of these decisions is that where the conduct of a trial Judge is impugned, a court looking into the matter would be guided as above. However, where it is shown from the processes before the court (which are public documents) that one side or the other does not have confidence in the ability of the learned trial Judge to hold an even scale between the parties and he feels that his integrity has been impugned or his impartiality called into question, I am of the view that it would be proper in the circumstances for the learned trial Judge to withdraw from further participation in the proceedings, as the learned trial Judge did in this case. After all, as stated earlier a Judge may refuse himself from a case for reasons that he does not choose to disclose.
The appellants have argued strenuously that the effect of the learned trial Judge disqualifying himself from further participation in the proceedings amounts to a refusal of the application. With respect, I am unable to agree with this assertion. Without foreknowledge of the outcome of the application, one cannot speculate on whether or not the application would have been granted or refused. In light of all that I have said above, I am of the view that having regard to the circumstances of this case particularly in view of the allegations and counter allegations of corruption and impropriety in the conduct of the garnishee proceedings before him, the learned trial Judge was justified in disqualifying himself from further participation in the proceedings. This issue is accordingly resolved against the appellants.
It must be said that a lot of precious time has been wasted in the pursuit of this appeal. This is because when a Judge disqualifies himself from adjudicating over a matter, the usual procedure is that the case file is sent back to the Chief Judge for reassignment to another Judge to hear the case de novo. It is part of the administrative duties of the Chief Judge. He also has a discretion whether to permit the Judge concerned to withdraw from the case or direct him to continue with the matter to its logical conclusion. In the instant case, learned counsel for the 1st respondent referred to processes before this court, although not part of the compiled record, which disclose that indeed the matter had been reassigned to another Judge of the Osun State High Court and a hearing date given. The law is trite that a court of law is entitled to look into its record and make use of any document it considers relevant in determining the issue before it. See: Fumudoh Vs Aboro (1991) 9 NWLR (214) 210 @ 229 E; Agbareh & Anor v. Mimra & 2 Ors (2008) 2 NWLR (1011) 378 @ 411 – 412 H – C In Womiloju’s case (supra) at page 561 G, His Lordship I. T. Muhammad, JSC stated that he conducted a search into the court’s main file to confirm the assertion of learned counsel for the appellants that the appellants sought and were granted leave to file and argue new grounds of appeal. It was this research that saved the appeal from being struck out for incompetence.
I return to the issue at hand. In proceedings before this court, the appellants filed a motion on notice dated 6/6/05 seeking several reliefs, including leave to amend the notice of appeal, departure from the rules as to compilation of record and an order directing the garnishee to pay the attached sum of money to the Deputy Chief Registrar of this court to be deposited in an interest yielding account. In reaction the 1st respondent filed a counter affidavit dated 7/7/05. Attached thereto is Exhibit AA9, a letter dated 24/5/05 addressed to the Solicitor-General and Permanent Secretary, Ministry of Justice, Osogbo by the Chief Registrar of the High Court informing him that the consolidated suits had been transferred to Hon. Justice R. Lawal to hear them to finality. The order of transfer is exhibited as Exhibit AA8. Exhibit AA11 is the record of proceedings for 14/6/05 before Lawal, J on which date the case was adjourned sine die to enable this court determine the application for stay of proceedings, which was then pending. Having resolved the sole issue for determination against the appellant, I am of the view that the proper order to make is to remit the case back to the lower court for the proceedings to continue to finality before R. Lawal, J,
In conclusion, I find no merit in this appeal. It is hereby dismissed. The decision of Ogunniyi, J made on 9/5/05 disqualifying himself from further participation in the garnishee proceedings is upheld. As the case has since been transferred to R. Lawal, J. by the Hon. Chief Judge of Osun State, it is hereby ordered that the case be sent back to the learned Judge or any other Judge of the Osun State High Court other than Ogunniyi, J. for hearing and determination with dispatch.
There shall be no order for costs.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, K. M. O. KEKERE-EKUN JCA. I agree entirely with the judgment. In view of what transpired during the hearing of this case before Ogunniyi J – the weighty insinuations contained in the letter from the office of the Attorney-General; the contents of the reply from the chambers of Lateef Fagbemi SAN, it is not surprising that the learned judge recused himself from the proceedings. Learned counsel for the appellant, rather than waste time pursuing this appeal should have just continued the proceedings before the new judge to whom the case was assigned. No doubt, learned counsel was under the misconception that this court is in a position to enter judgment on the merit of the application for garnishee order absolute being documentary in nature. As pointed out in the lead judgment, without foreknowledge of the outcome of the application, one cannot speculate on whether the application would have been granted or refused. The right of appeal of the appellant in the substantive matter even up to the Supreme Court remained intact and assured. Why jump the gun?
I too find no merit in this appeal. I also dismiss it. I abide by the consequential orders in the lead judgment including the order as to costs.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft the judgment just delivered by my learned brother KEKERE-EKUN, J.C.A. I agree with His Lordship that this appeal has no merit and I also hereby dismiss it. I abide by all the orders in the lead judgment.
Appearances
L. L. Akansi with E. E. JacobFor Appellant
AND
Opeyemi Usiola for the 1st Respondent,
2nd Respondent not represented but duly served with hearing notice.For Respondent
