JOHNSON OKALI & ANOR v. CHRISTIAN NWANKWO OKALI & ANOR (2017)

JOHNSON OKALI & ANOR v. CHRISTIAN NWANKWO OKALI & ANOR

(2017)LCN/10154(CA)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of July, 2017

CA/E/133/2010

RATIO

GROUNDS OF APPEAL: WHETHER GROUNDS OF APPEAL MUST BE DERIVED FROM THE RATIO DECIDENDI OF THE CASE APPEALED AGAINST

It is elementary law that grounds of appeal must arise from the decision against which an appeal lies. The ground of appeal must perforce attack the ratio decidendi of the decision of the Court appealed against. In essence, only an issue pronounced upon by the trial Court can be subject of a ground of appeal. See Saraki v. Kotoye (1992) 9 NWLR Pt. 264 Pg. 156, C.C.B. Plc. v. Ekperi (2007) 3 NWLR Pt. 1022 Pg. 493, Okafor v. Abumofuani (2016) LPELR-40299(SC). PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

FRESH POINT ON APPEAL: WHETHER THE LEAVE OF THE COURT IS REQUIRED TO RAISE A FRESH POINT ON APPEAL

There is also no doubt that where a party seeks to raise an issue that was not argued at trial for the first time on appeal, leave of Court must first be sought and obtained by such party. See Tanarewa (Nig.) Ltd v. Arzai (2005) 5 NWLR Pt. 919 Pg. 593. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

FRESH POINT ON APPEAL: INSTANCES WHERE A FRESH POINT ON APPEAL CAN BE RAISED WITHOUT THE LEAVE OF THE COURT

As a general rule, the above principle of law is unassailable. However, the Supreme Court has held that where the ground of appeal or question involves substantial points of law, procedural or substantive, the Court will allow the question to be raised and the point taken without leave of Court to prevent an obvious miscarriage of justice. See Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JURISDICTION: INSTANCES WHERE A COURT WILL BE SAID TO HAVE JURISDICTION TO ENTERTAIN A MATTER

The jurisdiction of the Court is generally activated when:

it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;
the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction (underlining mine)

iii. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu& Ors. v. Nkemdilim (1962) All NLR 589 & C.B.N v. S.A.P (Nig.) Ltd 3 NWLR Pt. 911 Pg. 152, Amadi v FRN (2008) 12 SC (Pt. III) 55. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

FRESH POINT ON APPEAL: WHETHER THE LEAVE OF THE COURT IS REQUIRED TO RAISE A FRESH POINT ON APPEAL BORDERING ON JURISDICTION OR ISSUE OF LAW

The law is that a party needs not seek for and obtain leave of Court before raising any new issue on appeal when the fresh point touches on jurisdiction since the issue of jurisdiction is considered exceptional. See Elugbe v. Omokafe (2004) 18 NWLR Pt. 905 Pg. 319 at 334; Moses v. The State (2006) 11 NWLR Pt. 992 Pg. 458 at 503; IBWA v. Sasegbon (2007) 16 NWLR Pt. 1059 Pg. 195.

In Oshutoba vs. Olujitan (2000) 5 NWLR Pt. 655 Pg. 159 at 171 -172, the Supreme Court held thus:

“There can be no doubt that the question of jurisdiction, being radically fundamental, can be raised at any stage of a proceeding and even for the first time in a Court of last resort, such as the Supreme Court. See Management Enterprises Ltd. and Anor v. Jonathan Otusanya (1987) 2 NWLR Pt. 55 Pg. 179. Such an issue must, however be properly raised before the Court may rightly entertain the point. This is because an appellate Court will not generally allow a fresh point to be taken before it if such a point was not pronounced upon by the Court below. See London Chartered Bank of Australia v. White (1987) 4 A.C. 213, Kabaka’s Government and Anor v. Attorney General of Uganda and Anor (1965) 3 WL.R. 512 or (1966) A.C. 1. In the same vein, an appellant will not generally be allowed to raise on appeal a question which was not raised, tried or considered by the Court below although where the question involves a substantial point of law, substantive or procedural, and it is plain that no further evidence needs be adduced which would affect the decision, the Court will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice. See Attorney-General of Oyo State v. Fairlakes Hotels Ltd (1988) 5 NWLR Pt. 92 Pg. 1 at 29; (1989) 5 NWLR Pt. 121 Pg. 255, John Bankole and Ors v. Majidipelu and Ors (1991) 8 NWLR Pt. 211 Pg. 523.”

The Supreme Court held in Ndukauba v. Kolomo (2005) 4 NWLR Pt.915 Pg. 411, (2005) 1 S.C.N.J 134 at 139 as follows:

“In the Appeal before the Court of Appeal, the Appellant did not raise the question of fair hearing as he has done before us. This Court has however elected to consider the point because the denial of fair hearing is considered a serious matter justifying a departure from the established procedural rule that a matter not agitated before the Court below could not be raised before this Court. See Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23 at 49 and Sofekun v. Akinyemi (1980) 5-7 SC 1. We do this however because all the relevant facts are before us and the parties have in their briefs extensively dealt with the issue”

A party raising such fresh issue on appeal must however make it a ground of appeal to enable him formulate an issue from the ground because the ground of appeal serves as notice to the Respondent of the case he will meet on appeal. Anyoha v. Chukwu (2008) 4 NWLR Pt. 1076 Pg. 31

The issue of denial of fair hearing is an issue of law and the Supreme Court has held in Aderibigbe v. Abidoye (2009) 4 SCNJ 259 at 274 while agreeing with the opinion of the Court of Appeal that the issue of jurisdiction is an issue of law which can always be raised without leave that:

“I totally agree with the learned justice of the Court below who delivered the leading judgment that that is the correct position of the law. I will even go further to say where a ground of appeal raises a question of law alone, that ground can be filed and argued without any leave of Court first sought and obtained.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

1. JOHNSON OKALI
2. MATTHIAS OKALI Appellant(s)

AND

1. CHRISTIAN NWANKWO OKALI
2. WILLIAM OGAMBA Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment):This is an appeal against the judgment of the High Court of Anambra State, Awka Judicial Division, delivered by Hon. Justice O. M. Anyachebelu on 25/06/09.
The facts that led to this Appeal are as follows:
The Appellants in this Appeal and the 1st Respondent are brothers. The case of the Appellants at the trial Court was that the 1st Respondent who is the last of the six sons of their father had in the year 1984 pleaded with their eldest brother (Late Gilbert Okali) who was the Diokpala (family head) to allow him sell a family land located at Obiagu to enable him marry a wife with the proceeds. The said late Gilbert Okali consulted the other brothers who agreed but gave 1st Respondent a condition that he would forfeit his entitlement to the remaining family land at Agbagu whenever it was to be shared among the children of the late Gilbert Okali. The 1st Respondent sold the land and used the proceeds to marry a wife.

?The land at Agbagu was subsequently partitioned among the six sons in 1992 with the 1st Respondent?s portion also shared to him.

The Appellants thereafter claimed that the land apportioned to the 1st Respondent should revert to the Okali family since he had agreed to forfeit his entitlement to same by the condition attached to the sale of the land at Obiagu by the 1st Respondent in 1984. The 1st Respondent,in spite of his brothers? agitation, sold the land to the 2nd Respondent. The Appellants instituted Suit No. A/234/2000 against the Respondents claiming the following reliefs:
1. N10,000 being general damages for trespass.
2. Perpetual injunction restraining the Defendants, their servants or agents from further trespass to the land in dispute.

The Respondents counter claimed seeking the following reliefs:
1. Declaration that the defendants are entitled to N5M in damages being the sum for deprivation of the use of the land since 2000 which could have accrued to the 2nd defendant if he developed the land and the loss he suffered from his psychological illness.
2. Perpetual injunction restraining the plaintiffs, their servants or agents from further trespass to the said land.

The case of the 1st Respondent at the trial Court was that the land at Obiagu

which the Appellants claimed was sold solely by him was actually sold by the entire family and the proceeds shared among them and there was no condition or agreement that he would forfeit his entitlement to the land at Agbagu. The 1st Respondent claimed the land apportioned to him at Agbagu was his property which he duly sold to the 2nd Respondent. The 2nd Respondent also instituted Suit No. A/117/2001 against the Appellants who disturbed his possession of the land in dispute, claiming the following reliefs:
1. A declaration that the plaintiff is the person entitled to the grant of Customary or Statutory Right of Occupancy on the land in dispute.
2. The sum of N700,000 being special damages for trespass.
3. Injunction restraining the defendants by themselves, their agents, servants and privies from further trespass to the said land.
?
The two suits viz: Suit Nos A/234/2000 and A/117/2001 were consolidated by the trial Court and the Appellants were designated as Plaintiffs while the Respondents as defendants. The learned trial judge dismissed the claim and the counter claim in Suit No. A/234/2000 and granted reliefs 1 and 3 in Suit No.

A/117/2001 all orders in favour of the present Respondents.

Dissatisfied with the decision of the trial Court, the Appellants filed a Notice of Appeal on 23/6/2009. The Record of Appeal was transmitted on 26/6/2010 and deemed transmitted on 22/1/2014. Appellants? brief of argument was filed on 7/2/2014. The Respondents filed a preliminary objection on 6/6/14, arguments in support of which were incorporated into the Respondents? brief filed on 06/06/2014 and deemed filed on 2/2/2016.
?
Due to the absence of the Appellants? counsel at the hearing of this appeal, the Appellants? brief of argument settled by B. E. Orakwe Esq was in the exercise of the Court?s powers under Order 19 Rule 9(4) of the Court of Appeal Rules 2016 treated as having been duly argued. Therein, two issues were raised for determination as follows:-
1. Whether the learned trial judge was right to have assumed jurisdiction in these consolidated suits, heard and determined the suits in favour of the Respondents even after becoming aware that the learned trial judge prepared and signed the land agreement between the 1st Respondent and the 2nd

Respondent in respect of the land in dispute
2. Whether the learned trial judge was right in law when it considered and evaluated only the case of the Respondents and failed to properly consider and evaluate or to consider and evaluate at all, the evidence of the Appellants and their witnesses on very vital issues before it and this has led to a perverse decision and occasioned miscarriage of justice.

The Respondents? counsel, O.L. Udemezue Esq.also formulated two similar issues for determination as follows:-
?1. Whether the learned trial judge exhibited any likelihood of bias against the Appellants and in favour of the Respondents in this matter.
2. Whether the learned trial judge properly evaluated the evidence before him in arriving at the decision in this case.

I will adopt the issues formulated by the Appellant?s counsel. They are as follows:-
1. Whether the learned trial judge was right to have assumed jurisdiction in these consolidated suits, heard and determined the suits in favour of the Respondents even after becoming aware that the learned trial judge prepared and signed the land agreement between

the 1st Respondent and the 2nd Respondent in respect of the land in dispute.
2. Whether the learned trial judge was right in law when it considered and evaluated only the case of the Respondents and failed to properly consider and evaluate or to consider and evaluate at all, the evidence of the Appellants and their witnesses on very vital issues before it and this has led to a perverse decision and occasioned miscarriage of justice.

Before I go into the main issues in the Appeal, I will treat the Preliminary objection filed by the Respondents? counsel challenging ground 3 of the Appellants? Notice of Appeal as incompetent having not arisen from the decision of the lower Court.

Counsel for the Respondents submitted that a ground of appeal can only be competent if it arises from a decision of the lower Court complained about. Counsel cited C.P.C. v. INEC & ORS (2011) 18 NWLR Pt. 1279 Pg. 493.

Respondents? counsel further submitted that the record of appeal shows that the issue of bias was never dealt with at trial and that the Appellants never submitted same for determination at the trial Court. Counsel argued that the

issue of bias being raised by the Appellants is a new issue which can only be raised with the leave of Court. Counsel submitted that the leave of this Court having not been first sought and obtained, the Appellants cannot raise and argue the issue of bias. Counsel relied on Kano ile Printers Plc v. Gloede & Hoff Nig. Ltd. (2002) 2 NWLR Pt. 751 Pg. 420, Obioha v Duru (1994) 8 NWLR Pt. 365 Pg. 631 and urged the Court to strike out the Appellants? ground 3 and all the arguments predicated thereupon.

Counsel for the Respondents further argued that the issues for determination raised by the Appellants are not tied to any of the grounds of appeal and that where an issue for determination is not predicated on any ground of appeal, such issue is incompetent and liable to be struck out. Counsel cited Bakare v. L.S.C.S. (1992) 8 NWLR Pt. 262 Pg. 641, Aja v. Okoro (1991) 7 NWLR Pt. 203 Pg. 260, Buhari v. Takuma (1994) 2 NWLR Pt. 325 Pg.183, Adeleke V. Aseni (1994) 1 NWLR Pt. 322 Pg. 536.

?Counsel finally submitted that the issues for determination by the Appellants are incompetent and liable to be struck out or discountenanced by this Court because

it is not the business of the Court to sieve argument of counsel arising from grounds of appeal and tie them to issues for determination or to determine the arguments emanating from the competent or incompetent ground. Counsel cited Kano ile Printers Plc v. Gloede& Hoff (Nig.) Ltd (2002) 2 NWLR Pt. 751 Pg. 420.

Appellants? counsel offered no response to the Preliminary Objection.

THE PRELIMINARY OBJECTION – OPINION.
It is elementary law that grounds of appeal must arise from the decision against which an appeal lies. The ground of appeal must perforce attack the ratio decidendi of the decision of the Court appealed against. In essence, only an issue pronounced upon by the trial Court can be subject of a ground of appeal. See Saraki v. Kotoye (1992) 9 NWLR Pt. 264 Pg. 156, C.C.B. Plc. v. Ekperi (2007) 3 NWLR Pt. 1022 Pg. 493, Okafor v. Abumofuani (2016) LPELR-40299(SC).

Respondents have argued that the Appellants cannot argue a new issue without the leave of Court and that the leave of this Court having not been first sought and obtained, the Appellants cannot raise and argue the issue of bias.
As a general rule, the above principle of law is unassailable. However, the Supreme Court has held that where the ground of appeal or question involves substantial points of law, procedural or substantive, the Court will allow the question to be raised and the point taken without leave of Court to prevent an obvious miscarriage of justice. See Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99.

The contentious ground of appeal shorn of its particulars as contained at page 235 of the record of appeal is set out below:
GROUND THREE
ERROR IN LAW
The learned trial judge erred in law when he failed to decline jurisdiction after becoming aware that he prepared and signed the land agreement between the 1st Respondent and the 2nd Respondent in respect of the land in dispute.

The jurisdiction of the Court is generally activated when:
i. it is properly constituted as regards numbers and qualifications of the members of

the bench, and no member is disqualified for one reason or another;
ii. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction (underlining mine)
iii. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu& Ors. v. Nkemdilim (1962) All NLR 589 & C.B.N v. S.A.P (Nig.) Ltd 3 NWLR Pt. 911 Pg. 152, Amadi v FRN (2008) 12 SC (Pt. III) 55.

Issue 1 as identified by the Appellant is derived from Ground 3 of the Notice of Appeal. The law is that a party needs not seek for and obtain leave of Court before raising any new issue on appeal when the fresh point touches on jurisdiction since the issue of jurisdiction is considered exceptional. See Elugbe v. Omokafe (2004) 18 NWLR Pt. 905 Pg. 319 at 334; Moses v. The State (2006) 11 NWLR Pt. 992 Pg. 458 at 503; IBWA v. Sasegbon (2007) 16 NWLR Pt. 1059 Pg. 195.
In Oshutoba vs. Olujitan (2000) 5 NWLR Pt. 655 Pg. 159 at 171 -172, the Supreme Court held thus:
?There can be no doubt that the

question of jurisdiction, being radically fundamental, can be raised at any stage of a proceeding and even for the first time in a Court of last resort, such as the Supreme Court. See Management Enterprises Ltd. and Anor v. Jonathan Otusanya (1987) 2 NWLR Pt. 55 Pg. 179. Such an issue must, however be properly raised before the Court may rightly entertain the point. This is because an appellate Court will not generally allow a fresh point to be taken before it if such a point was not pronounced upon by the Court below. See London Chartered Bank of Australia v. White (1987) 4 A.C. 213, Kabaka’s Government and Anor v. Attorney General of Uganda and Anor (1965) 3 WL.R. 512 or (1966) A.C. 1. In the same vein, an appellant will not generally be allowed to raise on appeal a question which was not raised, tried or considered by the Court below although where the question involves a substantial point of law, substantive or procedural, and it is plain that no further evidence needs be adduced which would affect the decision, the Court will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice. See Attorney-General of

Oyo State v. Fairlakes Hotels Ltd (1988) 5 NWLR Pt. 92 Pg. 1 at 29; (1989) 5 NWLR Pt. 121 Pg. 255, John Bankole and Ors v. Majidipelu and Ors (1991) 8 NWLR Pt. 211 Pg. 523.?
The Supreme Court held in Ndukauba v. Kolomo (2005) 4 NWLR Pt.915 Pg. 411, (2005) 1 S.C.N.J 134 at 139 as follows:
?In the Appeal before the Court of Appeal, the Appellant did not raise the question of fair hearing as he has done before us. This Court has however elected to consider the point because the denial of fair hearing is considered a serious matter justifying a departure from the established procedural rule that a matter not agitated before the Court below could not be raised before this Court. See Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23 at 49 and Sofekun v. Akinyemi (1980) 5-7 SC 1. We do this however because all the relevant facts are before us and the parties have in their briefs extensively dealt with the issue?
A party raising such fresh issue on appeal must however make it a ground of appeal to enable him formulate an issue from the ground because the ground of appeal serves as notice to the Respondent of the case he will meet on

appeal. Anyoha v. Chukwu (2008) 4 NWLR Pt. 1076 Pg. 31
The issue of denial of fair hearing is an issue of law and the Supreme Court has held in Aderibigbe v. Abidoye (2009) 4 SCNJ 259 at 274 while agreeing with the opinion of the Court of Appeal that the issue of jurisdiction is an issue of law which can always be raised without leave that:
?I totally agree with the learned justice of the Court below who delivered the leading judgment that that is the correct position of the law. I will even go further to say where a ground of appeal raises a question of law alone, that ground can be filed and argued without any leave of Court first sought and obtained.?
In this case, the ground of appeal from which a new issue was raised by the Appellant on appeal concerning the jurisdiction of the trial Court to adjudicate on the matter because of the likelihood of bias is one that can be raised on appeal with or without leave of Court first sought and obtained. The contentious Ground 3 is one from which the Appellant can distill and argue a new issue on appeal.
?It is therefore my humble view that the issue being raised in Ground 3 of the

Appellants? Notice of Appeal is that of fair hearing which is fundamental to all Court proceedings and as such, it is a substantial point of law which can be raised even on appeal for the first time without leave of Court.
The alleged question of the trial judge failing to decline jurisdiction despite realizing the fact that he drafted the agreement between the Respondents in respect of the land in dispute raises the questions of the Appellants? constitutional right to fair hearing and the impartiality of the learned trial judge in this case. Given the nature of the Appellants? Ground 3 on the point of law which it seeks to raise and the seeming challenge of the impartiality of the learned trial judge, I am inclined to consider the point.
?It is clearly one of a challenge to the jurisdiction of the Court where it appears that there has been a breach of the Constitutional provisions ensuring fair hearing. Obviously such a breach would affect the jurisdiction of the Court and would be a cause for complaint which can be raised on appeal without leave first sought and obtained, it is my view that the preliminary objection is

misconceived and is hereby overruled. Now to the issues in contention.

ISSUE ONE.
Whether the learned trial judge was right to have assumed jurisdiction in these consolidated suits, heard and determined the suits in favour of the Respondents even after becoming aware that the learned trial judge prepared and signed the land agreement between the 1st Respondent and the 2nd Respondent in respect of the land in dispute.

Learned Appellants? counsel submitted on this issue that where a judge adjudicates in a case or matter in which he has interests or where there is real likelihood of bias, the decision of the judge will not be allowed to stand as it amounts to a nullity being a breach of the principle of fair hearing. Counsel cited Deduwa v. Okorodudu (1976) 9-10 S.C (Reprint) 207.

Learned Appellants? counsel also submitted that the impartiality of a judge must be assured as one should not sit as judge in his own cause (nemojudex in causasua). Counsel cited Unibiz Nigeria Limited v. Commercial Bank Credit Lyonnais Ltd (2003) 2 S.C 23 and Section 36(1)of the 1999 Constitution.

?Appellants? counsel argued that the true

test of fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. Counsel relied on R. Ariori & Ors v. Muraino Elemo& Ors (1983) All NLR 1.

Appellants? counsel submitted that the learned trial judge while practicing as a private solicitor was the one who drafted the Memorandum of Customary grant sought to be tendered at page 207 of the record by the Respondents to which the learned trial judge pointed the attention of the parties and asked the Respondents? counsel to withdraw. The Respondents? counsel withdrew the document containing the name and signature of the learned trial judge.

Counsel for the Appellants maintained that he prayed the Court to transfer the consolidated suit to another Court because it became obvious that there was likelihood of bias but the learned trial judge neglected to record the said application and proceeded to adjudicate on the case.

Appellants? counsel argued that the learned trial judge should have suo motu, declined jurisdiction due to his obvious connection with the Respondents who were his

clients before his appointment to the bench and his fore knowledge of the land in dispute which could prevent him from having an open mind and being an impartial arbiter. Counsel cited PDP v. Kwara State Independent Electoral Commission & 4 Ors. (2005) 15 NWLR Pt. 948 Pg. 263, Adefulu v Okulaja (1998) 5 NWLR Pt. 550 Pg. 435, Professor Olutola v. Unilorin (2004) 18 NWLR Pt. 905 Pg. 416 and Kasunmu v. Shitta-Bey (2007) All FWLR Pt. 356 Pg. 741.

Counsel for the Appellants relied on the cases of Abalaka v. Min of Health (2006) 2 NWLR Pt. 963 Pg. 133 and Onigbede v. Balogun (2002) 6 NWLR Pt. 762 Pg. 1 in his submission that even if the judge was as impartial as could be, nevertheless if right minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. Counsel urged the Court to resolve this issue in favour of the Appellants.

?Learned Respondents? counsel on the other hand submitted that the Appellants? counsel is only making heavy weather of the document allegedly prepared by the learned trial judge. Counsel submitted that the said document was not tendered and the

Appellants did not file any motion on notice/application for the Court to disqualify itself from the trial. Counsel insisted that if the Appellants had raised this issue at the trial Court, parties would have been afforded the opportunity to react to it adequately.

Respondents? counsel submitted that to set aside a judgment on the allegation of bias, the maker of the allegation has a duty to show that there is reasonable likelihood of bias with reference to the case at hand and that the Appellants in this case has not provided any link between his lengthy submission of bias and this case. Counsel cited Yakubu v. State (2007) 9 NWLR Pt. 1038 Pg. 1, Womiloju v. Anibire (2010) 10 NWLR Pt. 1203 Pg. 545.

Counsel for the Respondents argued that bias can only be established by evidence or acknowledgment and that the learned trial judge did not at any point in time acknowledge making any document for the Respondents nor was it proved by evidence by the Appellants. Counsel cited I.B.W.A v Sasegbon (2007) 16 NWLR Pt.1059 Pg. 195.

Respondents? counsel insisted that for proof of bias, there must be clear, direct, positive and unequivocal

evidence from which such likelihood of bias could be reasonably inferred and that he who asserts must prove. Counsel cited Rt. Hon. UduimoItsueli & Anor v. Securities & Exchange Commission & Anor (2011) LPELR-4343.

Counsel for the Respondents finally submitted that the Appellants failed to prove their allegation of bias by evidence and it is the law that arguments and submissions of counsel cannot take the place of evidence laid before the Court on issues in dispute. Counsel relied on Iroegbu v. MV Calabar Carrier (2008) 5 NWLR Pt. 1079 Pg. 147 and urged the Court to resolve this issue against the Appellants.

OPINION
The challenge posed by the Appellants? Ground 3 under attack by the Respondents here goes to the very root of one of the twin pillars of natural justice. It is not only a question which involves a substantial point of law, it percolates to the issue of the jurisdiction of the learned trial judge to adjudicate on a matter in which the learned trial judge may appear to have been involved. Can it be said that the allegation of a Solicitor/Client relationship between the learned trial judge and the Respondents is not a

feature in the case which prevented the Court from exercising its jurisdiction?

No doubt, the issue of jurisdiction is of vital importance. It is trite that the issue of jurisdiction can be raised at any time during trial and even on appeal because it goes to the very root of the competence of the Court to exercise its jurisdiction. If a Court entertains a matter it lacks the requisite jurisdiction to entertain, the whole proceedings is null and void. See Agip Nig. Ltd. v. Agip Petroli Intl (2010) 5 NWLR Pt. 1187 Pg. 348.

On the fundamental nature of fair hearing, the Supreme Court in Atano v. Att. Gen. Bendel State (1988) 2 NWLR Pt. 75 Pg. 132 held that the principle of fair hearing is fundamental to all Court procedure and proceedings, and like jurisdiction, the absence of it vitiates the proceedings no matter how well conducted.
?The principle of fair hearing simply envisages that parties to a case are afforded equal opportunities to present their respective cases shorn of any hindrance or disturbance and that the Court or tribunal hearing the parties? case should be fair and impartial without any form of bias against any of the parties.

See Alsthom S.A. v. Saraki (2005) 3 NWLR Pt. 911 Pg. 20.
The concept of the principle of fair hearing as guaranteed by our Constitution has its origin in the twin pillars of natural justice of ?hear the other side? and ?one should not be a judge in his own cause? which is known in Latin as ?audi alterem partem? and ?nemo judex in causa sua?. The right to a fair hearing as guaranteed by the provisions of the Constitution is in respect of the determination of the civil rights and obligations of a person by a Court of law.
The rules of fair hearing are fundamental and cannot be dispensed with under any circumstance. Section 36(1) of the 1999 Constitution clearly states as follows:
?In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.?
?It is clear from the foregoing that the independence and impartiality of a

Court are part of the attributes of fair hearing. The intendment of the requirement of impartiality is to prohibit a person from deciding a matter in which he has any type of interest which may arise from his personal relationship with one of the parties to the case or any connection whatsoever.

Respondents? counsel argued extensively that the Appellants? counsel has not provided any link between his lengthy submission of bias and this case and that there must be clear, direct, positive and unequivocal evidence from which such likelihood of bias could be inferred.

I agree with learned Respondents? counsel that there must be a direct connection between the trial judge and the object of the alleged bias as an allegation of bias against a judge is a very serious matter which must be supported by clear, direct, positive and cogent evidence from which the likelihood of bias could be safely inferred.

In Womiloju & Ors. v. Anibire & Ors relied upon by the Respondents? counsel, the Respondents were plaintiffs before the High Court of Ogun State where they claimed to be entitled to a statutory right of occupancy to a parcel

of land situate, lying and being at Orile-Agbogbo, Olorunleke, Ado-Odo Local Government Area of Ogun State. The trial Court dismissed the claim of the plaintiffs who appealed to the Court of Appeal, Ibadan. In the leading judgment of the Court delivered by Kolawole JCA (Rtd) (Now deceased), the Court of Appeal allowed the appeal. After the judgment, the Respondents in the appeal, who were Appellants at the Supreme Court informed their counsel that Kolawole JCA who delivered the leading judgment was their counsel in another action, Suit No.AD/57/70 which relates to the same land. The certified True Copy of proceedings in Suit No. AD/57/70 was admitted in evidence as Exhibit B at the trial Court and reference was made to the portion in the said Exhibit B which states ?RE EXAMINATION BY MR. KOLAWOLE?

In the Notice of Appeal filed on 23/2/94, the Appellants raised the issue of propriety of Kolawole JCA being a member of the panel which heard and determined the appeal against the judgment of the trial Court when he had earlier represented them as counsel in respect of the same land which was the subject-matter of the appeal.

?The Appellants

argued that it was certain that Kolawole JCA, having acted as counsel to them in Suit No. AD/57/70 had foreknowledge of facts relating to the parcel of land which was the subject-matter of the appeal and he did not come to the dispute with an openness of mind that would enable him to hold an even scale and he should therefore have been disqualified from hearing the appeal.

The Supreme Court was emphatic on the point that no relationship whatsoever was established through evidence by the Appellants between the two suits as they were not the same neither in terms of the parties therein, nor the subject matter in dispute. The Supreme Court also noted that the Appellants failed to establish that the said MR KOLAWOLE who appeared in Exhibit B was the same as KOLAWOLE JCA as there was no nexus between the two persons on record.
This is distinguishable from the facts of this case.

?At page 207 of the record, the following took place:
?COURT: Defendants? plan No. FALS/AN/DL41/2001 dated 31/12/01 is admitted as Exhibit D.
Witness continues: Says this is the copy of the receipt which the 1st Defendant gave to him upon purchase of

the land.
At this stage, Defendants? counsel opts to withdraw the Agreement which he seeks to tender.
End of Examination in chief.
At this stage, Defendants? counsel applies to be excused so that his colleague ? Chinelo Eluogu (Miss) will take over.? (Underlining mine)

We are not allowed to speculate on what transpired in Court that led to the withdrawal of the Agreement which the Respondent had sought to tender. However, the agreement is on Page 90A of the record. Being part of the record transmitted to this Court,we are allowed to look at it. See Onagoruwa v. Adeniji (1993) 5 NWLR Pt. 293 Pg. 317, SBM Serv. (Nig.) Ltd. v. Okon (2004) 9 NWLR Pt. 879 Pg. 529.
?
The said Memorandum of Customary Grant at page 90A of the record clearly reveals the following points:
i. It is an agreement between the 1st Respondent and the 2nd Respondent in this appeal, being defendants at the trial Court.
ii. The agreement is in respect of the same parcel of land; the land in dispute in this appeal.
iii. The agreement was prepared and signed by O.M. Anyachebelu, the learned trial judge prior to his elevation to the

bench.

This was obviously a professional relationship between the learned trial judge and the Respondents which would ordinarily have little or no implication if the said agreement drafted by the learned trial judge was in respect of another land entirely which has no connection with the land in dispute before the learned trial judge. The Appellants have challenged the validity of the sale of the land in dispute by the 1st Respondent to the 2nd Respondent, a sale that was perfected by the learned trial judge himself prior to his appointment to the bench. The relationship between the learned trial judge and the Respondents, having been uncovered, the learned trial judge should have recused himself from the trial. The proper thing was for the learned trial judge to decline jurisdiction and have the case remitted to the Chief Judge for reassignment to another judge.
?
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 because it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be

done.

In Deduwa v. Okorodudu (1976) 1 NMLR 236 at p. 247 the Supreme Court held as follows:
?In considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then, he should not sit. And if he does sit, his decision cannot stand?
See also Olue v. Obi (1976) 1 All NLR 83 at 90.

?The submissions of learned Respondents? counsel that the Appellants failed to prove by evidence that there was any iota of bias on the part of the learned trial judge is definitely not out of place. There is no doubt as to the integrity of the learned trial judge and his impartiality. However, there is proof as shown in the record of

appeal that the learned trial judge prior to his elevation had a professional relationship with the Respondents. It does not matter whether the learned trial judge properly evaluated the evidence before the Court in arriving at a just decision and was in fact not biased in his handling of the case. As long as sufficient evidence has been established from which to form the opinion that a reasonable man would think there would be real likelihood of bias and justice would not appear to him to be done, the decision of that Court cannot be allowed to stand by this Court.

A judgment is unconstitutional when any or both of the twin pillars of natural justice is shown to have been injured. A blight on any of the twin pillars of justice cannot be allowed to stand by an appellate Court as it renders the judgment of the trial Court a nullity. See Prince Audu vs. FRN (2013) 1 SCNJ 111; Chief Duke vs. Gov. of Cross River (2013) 2 SCNJ 403.

?I must address the submission of Appellants? counsel that he prayed the Court to transfer the suit to another Court because it became obvious that there was likelihood of bias but the learned trial judge neglected to

record the said application and proceeded to adjudicate on the case. This is a question of the correctness of the record of appeal and I agree with counsel for the Respondents that the arguments of counsel cannot replace facts and that the Appellants cannot impugn the record of appeal by mere submissions in the Appellants? brief.

It is trite that an Appellate Court and indeed parties are bound by the Record of Appeal. It is presumed correct and accurate until the contrary is shown by affidavit. A party who thus wishes to challenge the correctness or authenticity of a record of appeal must file an affidavit stating the facts which are in his opinion the true version of the proceedings of the trial Court. The said affidavit must be served on the judge and the Registrar of the Court concerned. See Adegbuyi v. APC & Ors (2016) LPELR-24214(SC), Oglioko Memorial Farms Ltd. v. Nigerian Agricultural and Co-operative Bank Ltd (2008) 4 SCNJ 436.
?
The Appellant has not filed any affidavit challenging the correctness of the Record of Appeal, there is therefore no merit in all the submissions in the Appellant?s brief in that regard.That

notwithstanding, the Memorandum of Customary Grant at page 90A of the Record of Appeal is sufficient for this Court to form its opinion on the issue at hand. This issue is accordingly resolved in favour of the Appellant.

Having resolved issue one in favour of the Appellant, the proper order to make is for the case to be remitted to the Chief Judge for reassignment to another judge. It is only judicious for this Court not to make any pronouncement on the merit of this case in issue 2 so as not to tie the hands of the trial Court.

In sum, this appeal succeeds on the first issue. The entire proceedings and judgments in the consolidated Suits Nos. A/234/2000 and A/117/2001 being nullity are hereby declared null and void. The Consolidated suits are hereby sent back to the Chief Judge of Anambra State for urgent reassignment to another judge for trial de novo.
Appeal Allowed in part. No order as to costs.

IGNATIUS IGWE AGUBE, J.C.A.: I have read before now, the comprehensive and elucidating lead judgment of my learned brother, the PJ. just delivered.. I agree with the lucid reasoning and conclusion reached

therein. The instant appeal matter is allowed in part. The consolidated Suits are hereby sent back to the Chief Judge of Anambra State for urgent reassignment to another Judge for trial de novo.

JOSEPH TINE TUR, J.C.A.: I have read the decision of Helen M. Ogunwumiju, JCA. I wish to draw attention to the provisions of Section 294(1)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered. The provisions are couched as follows:
?1. Every Court established under the Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties authenticated copies of the decision within seven days of the delivery thereof.
2. Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
?Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be

pronounced or read by any justice whether or not he was present at the hearing.
3. A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
4. For the purpose of delivering its decision under this Section, the Supreme Court or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.
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318(1) ?Decision? means, in the relation to a Court, any determination of that Court and includes judgment decree, order, conviction, sentence or recommendation?.
The reason for drawing attention to that above provisions of the Constitution is that every determination of any controversy by every Court that is established by the Constitution that hears oral or documentary evidence and relies on the adduces of learned counsel or the parties is a ?decision?. The decision has to be rendered within 90 days and copies made available to the parties as it is prescribed in Section 294(1) of the Constitution. But every determination of a dispute or controversy by a justice of the Supreme Court or the Court of Appeal as the case may be is either “decision” or an ?opinion?. That express intention is set out in Section 294(2)-(4) of the Constitution. The conditions set out under Section 294(1) do not apply to the provisions of Section 294(2)-(4) of the Constitution, for example

delivery of the opinion or decision of a Justice of the Supreme Court or the Court of Appeal within 90 days and making available the decision or opinion within seven days to the parties. I have headed this determination as a ?decision? to conform with the intention of those who enacted the Constitution of the Federal Republic of Nigeria 1999 as altered.

I shall now render my decision based on the fact that it is usual for a legal practitioner, who represented parties to be subsequently elevated or appointed a Judge of the lower or a higher bench. There is no harm in that. But the real question is, upon being appointed a judicial officer to adjudicate on a matter that he had previously rendered professional or legal services in favour of one of the parties? What would the litigating parties or members of the society appraised with those facts say in such a circumstance? One does not need to traverse the globe for an answer. The obvious answer is that the learned trial judge favoured his former clients if the decision tilted in their favour.
In Anyasatu Aduke vs. Adunfe (1980) 1 P.L.R 479; Echebiri vs Anozie (1972) 2 ECSLR (pt 2) 665 at

669-670 and Uwenwa vs Umenwa (1987) 4 NWLR (pt 65) 407, the Courts laid down the principle that a trial judge should not preside over a civil and a criminal proceeding on similar facts against one of the parties. In Ibidun vs Badejo (1971) 1 NMLR 243, the High Court of the defunct Western State held at page 244 that it was wrong for the President of the Customary Court to adjudicate over a matter he had been legal adviser to one of the parties. Western State Presiding Judges/magistrates are enjoined not to descend into the arena during trial so that the litigants or society in general may not accuse them of favouring one party to the detriment of the other. See Omoha vs State (1989) 2 SCNJ 225 at 235; Akinte vs State (1988) 7 SCNJ (Pt 11) 226; Igwe vs Q. (1959) 4 FSC 206; Uso vs. C.O.P (1972) 11 S.C 37 and Ojo vs Oseni (1987) 3 NWLR (Pt. 66) 662 at 634. Section 17(2)(e) of the Constitution of the Federal Republic of Nigeria 1999 as altered is under Chapter 2 of the Constitution tagged ?Fundamental Objectives and Directive Principles of State Policy?. The provisions are couched as follows:
?17(2)(e) The independence, impartiality and

integrity of Courts of law, and easy accessibility thereto shall be secured and maintained?.
The independence, impartiality and integrity of Judges or Justices etc that administer justice in the Court is to be secured and maintained. This is also a fundamental right under Section 36(1) of the Constitution to wit:-
?36(1) In the determination of his civil rights and obligations, government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality?.
A learned trial judge is to exercise judicial functions between litigants any of them an independent mind. In Collins English Dictionary page 374 ?independence? and ?independent? are construed as:
?1? free from the influence or control of others? not dependent on anything else for function or validity? not relying on the support, esp. financial support, of others? capable of acting for oneself or on one?s own? having a private income large enough to enable one

to live without working
The word ?independent? means not dependent on another variable? a politician who does not represent any political party?.
The learned trial Judge in the lower Court cannot escape the accusation that he was partial in administering justice between his former clients and the appellants. The appellants and any other member of the society interested in the outcome of the determination of the dispute would accuse the learned trial judge of partiality no matter how well the proceedings were conducted if the determination favoured his former clients. The learned trial Judge breached the principle of an independent impartial umpire or an administrator of justice.
Where lack of judicial integrity in rendering justice in favour of any litigant against the other is established, confidence in the Judge or justice is eroded. It is debatable whether a breach of the cardinal principles had not occurred for an appellate Court to interfere with the decision so as to right a wrong. Justice should be rooted in confidence. ?Confidence? is defined inter alia as

trust in a person or thing etc. See Collins etc page 153. To be ?impartial? means ?not favouring one side or the other?- see p. 368 of Collins English Dictionary ante. This may depend on the facts and circumstances of each case.

In paragraphs 12-14 of the Amended Statement of Claim the respondents pleaded the following facts:
12. In October 2000, the 1st Plaintiff saw the 1st Defendant and one Nwakasi John on the land in dispute looking over the land. The 1st Plaintiff warned them that that land was not for sale or lease, but was family land. He drove them away from the land.
13. On another occasion, in that same October 2000, the 1st Plaintiff again saw the 1st Defendant and a surveyor, and some other people, trying to put beacons on the land. The 1st Plaintiff drove them away again, and told them that the land was not for sale.
14. After leaving the land, the 1st Plaintiff went and consulted a lawyer, Dr. R.C. Chukwudebelu, who wrote a letter of warning to the 1st Defendant. The 1st Defendant is hereby given notice to produce the original letter at the hearing. The letter and its

copies were delivered personally to the 1st Defendant and all those who accompanied him to the land?.

Pages 55 to 56 of the record of appeal contains the list of the copies of the exhibits the respondents front loaded to be relied upon at the trial to wit:
?COPIES OF EXHIBITS:
Exhibit PP1: Okali Family land Scale Receipt/Agreement made between Christian Nwankwo Okali, 2nd Defendant and Innoceent Ibeabuchi Ekwegbalu.
Exhibit PP2: Plaintiffs Plan No. TG/AN/0430/2006 made for us by Emma Tola Anueyiagu Registered Surveyor, showing the land in dispute (Attached to motion)?.

The appellants pleaded in paragraph 17 and 25 of their Amended Statement of Defence as follows:
?17. The Defendants deny paragraphs 12 and 13 of the Statement of Claim.
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25. The Defendants deny paragraphs 12, 13, 14, 15, 16 and 17 of the Plaintiffs Statement of Claim and puts them to the strictest proof of same?.

At page 75 of the records is a list of the copies of the exhibits the appellants intended to rely upon at the trial to wit:
?COPIES OF EXHIBITS
Exhibit PP1: Land Receipt/Agreement made

between Christian Nwankwo Okali and William Ogamba in respect of the said land.
Exhibit PP2: Defendants Plan No. FALS/AN/DL41/2001 made for him by Okey Omeka, Registered Surveyor, showing the land in dispute.
Exhibit PP3: Defendant Survey Plan showing landed property of Mr. William Ogamba in Plan No. FALS/AN/615/2000?.

Pleadings constitute the notice of the case the parties intend to canvas at the hearing. See Obmiami Bricks and Stones Nig. Ltd. vs ACB Ltd. (1992) 3 SCNJ 1 at 35 and Uwengba vs. Attorney-General of Bendel State (1986) 1 NWLR (pt 16) 303 at 317. The learned trial Judge had advanced notice of the role he had played in the transaction leading to the dispute the subject of proceedings in his Court and the Court of Appeal before his appointment as a Judge of the High Court of Anambra State from the Amended Statement of Claim and defence up to the time of the determination of the dispute between the parties. Page 90A to 91 of the printed record has the following information.
?This Memorandum of Customary Grant is made between Mr. Christian Nwankwo Okali ?Grantor? and Mr. William Ogamba

?Grantee? in respect of landed property situate at Agbagu land, Akwa Village, Ifitedunu, Dunukofia Local Government Area of Anambra State of Nigeria. Prepared by O.M Anyechebelu Esq. C/O Onochie Anyachebelu & Co. Solicitors & Advocates, No. 1 Old Cemetery Road, Onitcha.
Verged pink in Survey Plan No. FALS/AN/615/2000 dated 11th Oct, 2000 attached to this agreement bounded by beacon Nos. AND9381, AND9382 , AND9362 and AND9380. Unto the Grantee to hold same in perpetuity, absolutely and as freehold in accordance with Ifitedunu Native Law and Custom. That the Grantor covenant that the land hereby grant and assigned is free from all charges of incumberances, customary or otherwise, an that the Grantor it called upon shall at the request of the Grantee do all such lawful assurances, acts, things or more perfectly securing the property hereby granted and do hereby keep the Grantee indemnifies against adverse claimants. In witness whereof, the parties to these presents have hereunto set their respective hands and seals the day and year first above written.?

?The undisputed fact is that O.M. Anyachebelu, Esq the learned trial Judge

had prepared the ?Memorandum of Customary Grant? between Mr. Christian Nwankwo Okali and Mr. William Ogamba now the 1st and 2nd respondents. The document was frontloaded before hearing.

The frontloading of documents in the pleadings is to enable the parties to know the exhibits each intends to use at the trial. This will also enable the learned trial Judge who will eventually be seised with the proceedings, to know the documentary exhibits the parties will use to prove their respective claims or defences/counter-claims. The learned trial Judge is presumed to have known that the document he had authored earlier would be an essential document the parties may likely use at the trial. In the course of summarizing the facts in dispute at the close of oral hearing, the learned trial Judge observed at pages 219 lines 8-11 of the record of appeal as follows:
?Sometimes in October 2000, the 1st Plaintiff noticed the 1st Defendant, a surveyor and some others on the land trying to plant beacons thereon, and he chased them away and consulted one Dr. R.C. Chukwudebelu, a solicitor to write them a warning letter. That was exhibit B in the

proceedings?.

His Lordship again made the following observation at page 221 lines 9-17 of the printed record as follows.
?Before specifically dealing on any issues, I consider it paramount to make some fundamental remarks. The land in dispute in this case is the portion of land at Agbagu land which is showed as verged red in Exhibit C and also verged red in Exhibit D. It is agreed that it is the land which ordinarily should be the entitlement of the 2nd Defendant pursuant to a partition of family land by the Okali in 1992. I have examined both plans Exhibits C and D, and there can be no pleadings and that both plans refer to the same land. The identity of the land appears to me to be settled and is not in dispute?.

?The learned trial judge ought to have drawn the attention of the parties to the fact that he had been a legal representative of the respondents before his elevation or appointment to the higher bench. This would have given the appellants the option of having the dispute adjudicated in another Court. But if upon becoming aware of these facts, the appellants had opted that the dispute should be tried and determined

by the learned trial Judge, the appellants could not be heard to argue on appeal the contrary. The doctrines of acquiescence, waiver or estoppels, etc might be invoked by the respondents or by this Court to operate against such an argument. This Court might come to the conclusion that the right to complain about the proceedings in the Court below had been waived by the appellants.

Election, waiver and acquiescence when raised by parties in litigation, it has been held, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them or choose one benefit instead of another but not both of which he might claim?- see per Romilly M.R, in Vyvian vs. Vyvian cited by Avory J. in R. vs. Essex JJ Exp. Perkinc (1927) ALL E.R Rep 393 at 396; and Ariori vs. Elemo (1983) 1 SCNLR 1 at 13 per Eso, JSC.

Every High Court in ?Court of Justice?, Justice is defined inter alia as fairness in the way people are treated? the quality of being right and deserving fair treatment See Longman Dictionary of Contemporary English, 2007 edition 879. The

learned trial Judge did not do justice to the appellants by rendering a decision of the respondents in breach of the provisions of Section 17(2) and 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered. The decision in favour of the respondents cannot be allowed to stand. The appeal is allowed. I abide the orders of my learned colleague Ogunwumiju, JCA.

Appearances

B.E. OrakweFor Appellant

AND

O.L. Udemezue with him, Patricia OfulumeFor Respondent