ALALADE & ANOR v. STATE OF LAGOS (2020)

ALALADE & ANOR v. STATE OF LAGOS

(2020)LCN/14092(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/L/981C/2018

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. BARRISTER OLUSEGUN ALALADE 2. BABASANJO ALALADE APPELANT(S)

And

THE STATE OF LAGOS RESPONDENT(S)

RATIO

THE CONCEPT OF FAIR HEARING

The question is: was the appellant’s right to fair hearing of his suit compromised in the proceedings before the trial Court In Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 582 at 605, this Court per Obaseki JSC considered the nature of this concept of fair hearing thus:
“A hearing can only be fair when all parties to the dispute are given a hearing or opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. Without fair hearing, the principles of natural justice are abandoned; and without the guiding principles of natural justice, the concept of the Rule of Law cannot be established and grow in the society.”…… See Adigun V. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing has been done, the decision would have been the same; the proceeding will be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision”
per L OKULO – SODIPE, J.C.A (PP. 37-42, PARAS. D-F).
This shows the importance of hearing notice, to say that the defendants had pre-knowledge of the information and had filed a preliminary objection against the information but whether he was aware of the proceedings for that day is not clear because no affidavit of service of the hearing notice was before the Court but happily no proceedings went on therefore there was no breach of fair hearing occasioned. PER OBASEKI-ADEJUMO, J.C.A.

DUTY OF COUNSEL AS AN OFFICER OF THE COURT

In EFCC v AKINGBOLA (2015) LPELR – 24546 (CA), I had cause to reinstate the duty of Counsel as a minister in the temple of justice and an officer of the Court which I find applies at this junction and held as follows;
“A counsel cannot insist on the order of proceedings/procedure because a Court is in control of its proceedings and not counsel, neither can a counsel dictate how a Court will direct itself during proceedings. NIKI TOBI, JSC held in M.M.S. LTD. v. OTEJU [2005] 14 NWLR (Pt. 945) 517 at 541 that: “It must be stated loud and clear again in this time of our jurisprudence that; the rule of the profession set out minimum standard in our Courts of law, including the Tribunals that such counsel have a duty to maintain such minimum standard of conduct and behaviour. By Rule 1 of its Rules of Professional Conduct, it is the duty of the lawyer to maintain towards the Court respectfully attitude not for the sake of the temporary incumbent of the judicial officer but for the maintenance of its supreme importance. Rule 3 enjoins a lawyer to display a dignified and respectful attitude towards the presiding Judge not for the sake of his person but for the maintenance of respect and confidence in the judicial officer.”
per OBASEKI – ADEJUMO, J.C.A (PP. 51-52, PARA. A). PER OBASEKI-ADEJUMO, J.C.A.

DEFINITION OF THE TERM “JUDICIAL BIAS”

In BABARINDE & ORS v STATE (2013) LPELR – 21896 (SC), the Apex Court on the definition of “judicial bias” and “bias” decided thus;
“In Womiloju v. Anibire (2010) 10 NWLR (Pt. 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 presides. Judicial bias is usually insufficient to justify disqualifying a Judge from presiding over a case. To justify disqualification or recusal, the judge’s bias usually must be personal or based on some extrajudicial reason. In the case Kenon v. Tekam (2001) 14 NWLR (Pt. 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 to 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. v. Lannon (supra). Also in Womiloju’s case (supra), 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 v. 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 by the inference that could be drawn by an ordinary bystander observing the proceedings.”
per KEKERE – EKUN, J.S.C (PP. 12-14, PARAS. F-B)
The reason for bias must be personal or some extrajudicial reason after a careful review of the allegations, it will be looking for the leg of a snake to find any personal or extra judicial reason in the submissions of counsel on the path of the trial judge or the Chief Judge. PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal follows from the decision of the High Court of Lagos State Coram JOSEPHINE OYEFESO, J delivered on 12th April, 2018 in favour of the Respondent upon an application for Setting aside the service of the information on the Appellants in Open Court upon the order of Court.
The Appellants dissatisfied with the ruling filed a notice of appeal on 20/4/18.

The Appellants filed their brief on the 7/8/18 and reply on 6/3/19 deemed on 7/3/19, settled by Olusegun Alalde Esq., Chris Ogbobe Esq., M. O Awaye Waserere Miss. Wherein he formulated two issues;
1. Whether the Appellants have been validly served with the information and proof of evidence in the case as mandatory stipulated by law and if the answer is in the negative whether the proceedings of the Lower Court were not nullities.
2.Whether on the basis of the information that can be garnered from the record of appeal in this case, the learned trial judge of the Lower Court could reasonably absolve herself of bias or likelihood of bias.

The Respondent’s brief was filed on 4/3/19

deemed on 7/3/19 and formulated two issues thus;
1. Whether the service of the information dated 7th November, 2016 on the Appellants’ counsel in Open Court pursuant to the honourable Court’s order of 25th April, 2017 amounts to a proper and valid service in law?
2. Whether in view of the facts and circumstances in this suit, the honourable Court has acted in a manner which may amount to any likelihood of bias in favour of the prosecution?

APPELLANTS’ ARGUMENTS
Arguing both issues together the Appellants submitted that till date they have not been served with the information and proof of evidence despite the Court order. Relying on the provisions of Sections 252 (5 & 6) of the ACJL, that they must be served personally with the hearing notice and information if not in custody, and if it’s impossible to serve the Appellant, leave of Court must be obtained to serve either his counsel or sureties or an adult of his household and such shall be deemed proper service.

He argued that these were mandatory provisions, and during proceedings the Lower Court failed to comply with these provisions in respect of notices

issuance/service of hearing notices/information.

Appellants placed further reliance on Sections 252 (2), (3) & (4) of ACJL which are laid down procedures to be followed.
Appellants further argued that on the 10th January when the Court commenced sitting, they had not been served and the Court ordered service on them on the 9th of March, 2019, this order was not carried out.

On the 25th of April, the Court was again informed that the defendants were not served, the Court ordered counsel to counsel service of the information. This act is the bone of contention herein. Appellant contends that Section 252 (6) of the ACJL was not followed hence the Court lacked jurisdiction to order service. He cited MADUKOLU v NKEMDILIM (1962) 1 ANLR 587; MCFOY v UAC (1962) 152. On grounds that proceedings held amounted to a nullity he cited; ONONYE v CHUKWUMA (2005) 17 NWLR (PT 953) 90; KIDA v OGUNMOLA (2006) 13 NWLR (PT 997) 377 SC.

The Appellants levelled allegations against the Lower Court judge that he wrote a petition to the Chief Judge on the conduct of the case and got no reply but the witnesses of the Respondent wrote a later petition and the Chief

Judge replied them instantly while the Lower Court informed them that the chief judge directed her to continue with the case. He alleged that there were bias overtones by both the Chief Judge and the presiding Lower Court judge hence the Appellants filed a motion to challenge jurisdiction.
He posits that the facts of this case as contained in the record makes it impossible for the Lower Court as constituted to meet imperative constitutional standard.

RESPONDENT’S ARGUMENTS.
The Respondent submitted that once leave of Court has been obtained, service on counsel is equivalent to service on the Appellants, he cited KEHINDE v OGUNBUNMI (1968) NWLR 37, Section 252 (6) which provides an exception once its impracticable to serve the Appellants.

Respondent’s counsel further submitted that the Respondent sought leave of Court orally to serve the information on the Appellants herein during proceedings on the 25th April, 2017and therefore there was no illegality committed.

That the interest of justice and fair hearing was the reason leave to serve them through counsel was sought, he cited Section 36 (1 & 4) of the 1999 Constitution

and several attempts to serve Appellants proved abortive.

Secondly, on the issue of bias he referred to definitions of bias as defined by the Apex Court in KENON v TEKAM (2001) 7 SC (PT 111) 49; WOMILOJU v ANIBIRE (2010) 10 NWLR (PT 1203) 545; AZUOKWU v NWOKANMA (2005) LPELR – 690 SC; EXECUTIVE GOVERNOR OF NASSARWA v STATE & ANOR v UKPO (2017) LPELR – 42445 (CA); OGENE v OGENE & ANOR (2007) LPELR -8156 (CA) in submitting that leave is a function of a Court’s discretion to grant or not to and this is to be exercised judiciously and judicially.

Respondent posit that the allegation of bias is based on conjecture which cannot stand, as there is no indication in the record showing bias in making a decision.

Respondent contend that the discretion exercised is devoid of sentiments and that the appeal is a clear case of delay tactics employed to frustrate the defendants before the trail Court. He urged that the ruling of the Court be upheld and the Appellants be ordered to appear before the Court.

APPELLANTS’ REPLY
The Appellants insisted that the Court suo moto ordered service of the information

and proof of evidence on them in Open Court, as can be seen in the record of proceedings which binds parties and the Court. He submitted that Respondent never sought leave of Court, and that there were no facts of impracticability placed before the Court.

RESOLUTION
This case is an off shoot of a charge for attempted murder amongst others filed against the Appellants;
1. Conspiring to commit murder contrary to Section 233 of the Criminal Law of Lagos state C17 Vol 3, LLS 2015,
2. Attempt to commit murder; contrary to Section 230 of the Criminal Law of Lagos state C17 Vol 3 LLS 2015.
3. Grievous Harm; contrary to Section 245 of the Criminal Law of Lagos state C17 Vol 3 Laws of Lagos State, 2015.
The case file was assigned to Oyefeso, J on 5/12/16.

Proceedings commenced on the 10th January, 2017 for the first time the defendants were absent and not represented by counsel but had filed a preliminary objection, it was adjourned to 14th February, 2017 for arraignment and/or hearing of the pending application.
On the adjourned date, defendants were absent and were represented by counsel who drew the Court’s attention

to the preliminary objection filed on 17th November, 2016 asking to quash the information. The application was heard and adjourned for ruling to 9th March, 2017, on which date same was dismissed and Rufai Esq. for defendants informed the Court that the information had not been served on the defendants personally when asked to produce defendants to take their plea. The Court directed the information be served on the Defendants and adjourned to 25th April, 2017 for arraignment, see pages 62 – 64 of the record.
The date for arraignment; 25th of April, 2017 came, and Rufai Esq with Ogbode C. appeared for the defendants who were absent, Soetan Esq. counsel for prosecution insisted that service had been made on the defendants and that he had an affidavit of service dated 17/4/17 but Rufai Esq. disagreed.
It was at this stage that the Court ordered service on the Defendants’ Counsel in Open Court thus; “Please serve the Defendant’’
Rufai Esq. thereafter notified the Court of a notice of appeal, on 7th April, 2017 and a motion for stay of proceedings. I shall reproduce relevant portions of the proceedings;
Court: Under the

Administration of Criminal Justice law there is no stay of proceedings, Section 273
Rufai: The Defendant has not been served. The Court ordered is accept service which we have done. This Court is functus officio.
We are exercising our rights. After this ruling this Court cannot go further. Once there is an appeal there is res which must be protected. Any arraignment should be after the ruling of the Court of Appeal on the issue.
Soetan: They are trying to evade service or coming before the Court. The information has been served by the order of Court. If they are not here on the next date, we shall not hesitate to ask for a bench warrant.
The lower Court ruled that there was no provision for stay of proceedings under the ACJL, and ordered that the next step is arraignment, she gave a return date as 23rd May, 2017 and that Defendants should be present in Court.
The above scenario sets the pace for this appeal.
Section 252 (6) of the ACJL provides: “If the defendant is not in custody, the hearing notice and the information shall be served on him personally’’
In INEC v DPP & ORS (2014) LPELR – 22809

(CA), the Court held thus;
“There are many decisions of the Supreme Court and of this Court as well, on the fundamental nature of the service of hearing notice in respect of a proceeding before a Court of law on any party entitled to such service and consequence(s) of the non-service of such a hearing notice on whatever order that is made in the case and indeed on the proceeding itself. The position of the law from the cases is very straight forward. It is that the party that was not served with the hearing notice can set aside whatever order that was made against him ex debito justiciae and that the proceedings in any event is a nullity. See the case of TENO ENGINEERING LTD V. ADISA (2005) 10 NWLR (PT.933) 346 at 353 (cited in the Appellant’s Brief of Argument) where the Supreme Court per Tobi, JSC; stated thus:- ” One reason why the respondent did not participate in the proceedings is that he was not served the Court process. Service of Court process is a precondition to vesting jurisdiction in the Court. Where notice of proceedings is required, failure to notify any party is a fundamental omission which entitles the party not served and against

whom any order is made in his absence to have the order set aside on the ground that a condition precedent in the exercise of jurisdiction for the making of the order has not been fulfilled. Failure to serve process where service of process is required, is a failure which goes to the root of the jurisdiction of the Court. Any proceedings in such cases are a nullity. See Sken Consult v. Ukey (1981) 1SC 6; Odita v. Okwudinma (1969) 1 All NLR 228; Obimonure v. Erinosho (1966) 1 All NLR 250.” ……Failure to serve process in a case where such service is required is a serious omission which goes to the root of the jurisdiction of the Court and entitles an aggrieved party ex debito justiciae to have proceedings in such a case set aside. See Odita v. Okwudinma (1969) 1 All NLR 228; Sken Consult v. Ukey (1981) SC 6; Scott Emuakpor v. Ukavbe (1975) 12 SC 41…”Non-service of hearing notice on a party in a proceeding that requires the service of the process is clearly a breach of the party’s constitutional right to fair hearing in the matter and entitles the party to have the proceeding in which his constitutional right has been infringed, set aside as can be seen from

the portions of the judgment re-produced above. Also dwelling on the effect or consequence of non-service of hearing notice on a party to a suit where there is need for such service……….” The clear elements of Section 36(1) above are: 1. There must be a fair hearing. 2. The Court or tribunal must be established by law. 3. The adjudicatory process must be conducted within a reasonable time. 4. The adjudicators must be independent and impartial. The aspect of the above elements under consideration in this appeal relates to fairness of the hearing before the Court of trial. The question is: was the appellant’s right to fair hearing of his suit compromised in the proceedings before the trial Court In Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 582 at 605, this Court per Obaseki JSC considered the nature of this concept of fair hearing thus:
“A hearing can only be fair when all parties to the dispute are given a hearing or opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. Without fair hearing, the principles of natural justice are abandoned; and without

the guiding principles of natural justice, the concept of the Rule of Law cannot be established and grow in the society.”…… See Adigun V. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing has been done, the decision would have been the same; the proceeding will be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision”
per LOKULO – SODIPE, J.C.A (PP. 37-42, PARAS. D-F).
This shows the importance of hearing notice, to say that the defendants had pre-knowledge of the information and had filed a preliminary objection against the information but whether he was aware of the proceedings for that day is not clear because no affidavit of service of the hearing notice was before the Court but happily no proceedings went on therefore there was no breach of fair hearing occasioned.
On the 9th March, 2017,

the issue of hearing notice was no longer an issue since counsel for the defendants was present from then on and needed no prompting of the adjourned date. It was whether the information was served on the Defendants?
On the proceedings of 25th April, 2017, the Prosecution’s counsel stated that the defendants had been served and there was an affidavit of service of 17th April, 2017 this the defendants’ counsel denied. However, the Court in its wisdom and bearing in mind the intention of the ACJL directed counsel to counsel service. The essence and relevance of the ACJL was highlighted in the decision of FRN v LAWAN (2018) LPELR – 43973(CA);
“In deciding Appellant’s Issue One, it is important to give a background of the state of the criminal justice system in Nigeria before the enactment of the Administration of Criminal Justice Act 2015 (the ACJA). Before now, the administration of criminal justice was in a chaotic state, and the problem of incessant delay topped the list of the overall malfeasance in the system. There was undue delay in the prosecution of even the most important cases and sometimes the most serious offences. There were

long and sometime inexcusable periods of adjournments, unpreparedness or untardiness in the calling of witnesses, transfer of Prosecutors, Magistrates and Judges without effective plans for the cases they are handling and indeed poor working attitudes of the various stakeholders. It was in the light of the above background that the Administration of Criminal Justice Act 2015 (the ACJA) was enacted with a grand purpose in its Section 1 (1): “… to ensure that system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy administration of justice, protection of the society from crime and protection of the right and interests of the suspect, the defendant and the victim.” Its Section 2 enjoins the Courts, law enforcement agencies and other authorities or persons involved in criminal justice administration to ensure compliance with the Provisions of the Act and the realization of its purposes. And, generally, makes the Act applicable to criminal trials for offences established by an Act of the National Assembly and other offences punishable in the Federal Capital Territory (FCT) Abuja.”
per

OWOADE, J.C.A (PP. 18 – 20, PARAS. D-A)
Therefore, having found that the defendants consistently assert that they are not served and the Prosecution insist that they have been served and relies on an affidavit of service, adjourning again to ensure service would waste the judicial time of the Court and amount to counsel bickering as put aptly by UWA, JCA in FRN v LAWAN SUPRA which is the same as ACJL;
“The essence of the Administration of Criminal Justice Act, 2015 (ACJA) was to ensure amongst others, speedy trial and quick disposal of criminal cases in the interest and as of right of a suspect, the defendant, the victim and in fact the society at large. Section 98(2) of the ACJA was put there to ensure that part heard criminal matters do not suffer unnecessary transfers from one Court to the other for whatever reason, where an unsatisfied party has the option of an appeal if not satisfied with the outcome of the trial. I would add the popular saying that, justice delayed is justice denied or no justice at all. In some cases, some of the accused persons do not live to see the end of their trials for offences alleged to have been committed by them due

to long and unending trials. To curb this trend is the essence of the ACJA.”
per UWA, J.C.A (P. 33, PARAS. A-F)
Again, I will not gloss over the issue of proof of service, the Apex Court in NDAYAKO & ORS v DANTORO held on the best evidence of proof of service of process is by affidavit of service;
“Under normal circumstance the best evidence of proof of service of process is by affidavit of service. It is not disputed that there was such document in the Court’s file. That document forms part of the Court’s record which the Court could look at to confirm that there was proof of service even if it was not tendered as an exhibit: see Chief M.O.A Agbaisi and Ors. v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630, 648; Ade v. Uku (1977) 5 FCA 218 at 228; Ogbunyiya v. Okudo and Ors. (1979) 6-9 SC 32, (1979) 3 LRN 318 at 3-4 ; Ladunni v. Kukoyi (1972) All NLR (Pt. 1) 133; Salami & Ors. v. Oke (1987) 4 NWLR (Pt. 63) 1 at 9, (1987) 2 NSCC 1167 at 1173; U.T.C.(Nig.) Ltd. v. Pamotei (1989) 3 SCNJ 79 at 97, (1989) 2 NWLR (Pt. 103) 244.”
per EDOZIE, J.S.C (P. 31, PARAS. C-F)
See also; NDAYAKO & ORS v DANTORO (2004) LPELR -1968 (SC)
What is the effect

of a Court ordering service of a Court process or counsel to counsel service of processes meant to be personally served on a party? I draw wisdom from the case of GITTO COSTRUZIONI GENERALI NIGERIA LTD & ANOR v ETUK & ANOR (2013) LPELR – 20817 (CA), the Court held on the question whether service of processes on Counsel is deemed service on the Appellants and appearance of counsel equals appearance of parties;
“The importance or significance of this is that service of processes on Counsel is equivalent to service on the appellants. Appearance by Counsel in Court is also equivalent to appearance by the client. See Kehinde vs. Ogunbunmi (1968) NMLR 37. The client may not appear in Court once he is being represented by Counsel.”
per TUR, J.C.A (P. 50, PARAS. A-B)
I therefore agree with Appellants counsel’s submission that the Court lacked jurisdiction in ordering service of processes. The Defendants have been represented by counsel and is aware of the gravity of the charge which cannot be wished away, the Counsel being a legal practitioner by virtue of his training owes a duty to both the Court and his client, he is an officer in

the temple of justice and he ought to do all in his power to administer justice, the oath he took at the call to bar.
In EFCC v AKINGBOLA (2015) LPELR – 24546 (CA), I had cause to reinstate the duty of Counsel as a minister in the temple of justice and an officer of the Court which I find applies at this junction and held as follows;
“A counsel cannot insist on the order of proceedings/procedure because a Court is in control of its proceedings and not counsel, neither can a counsel dictate how a Court will direct itself during proceedings. NIKI TOBI, JSC held in M.M.S. LTD. v. OTEJU [2005] 14 NWLR (Pt. 945) 517 at 541 that: “It must be stated loud and clear again in this time of our jurisprudence that; the rule of the profession set out minimum standard in our Courts of law, including the Tribunals that such counsel have a duty to maintain such minimum standard of conduct and behaviour. By Rule 1 of its Rules of Professional Conduct, it is the duty of the lawyer to maintain towards the Court respectfully attitude not for the sake of the temporary incumbent of the judicial officer but for the maintenance of its supreme importance. Rule 3 enjoins

a lawyer to display a dignified and respectful attitude towards the presiding Judge not for the sake of his person but for the maintenance of respect and confidence in the judicial officer.”
per OBASEKI – ADEJUMO, J.C.A (PP. 51-52, PARA. A)
It is at this junction, that I must emphatically state that I do not find any miscarriage of justice in the directive of the Lower Court and there has been no breach of the law nor rights of the Appellants. The Court simply administered transparent justice and exercised discretion which she did judicially and judiciously in the face of repeated contention of lawyers.
To insist that a Court ought to adjourn for further service or wrangling over service of the information is to dictate how the Court should run its affairs, this is not a prerogative of a lawyer but the Court.
Most importantly, having accepted service on behalf of his client the counsel has waived its right to any complaint on it there on and is stopped from contending the contrary.
In ORJI v ONYEMERE & ORS (2015) LPELR – 25649 (CA), MBAMBA JCA, it was held that;
“Every Counsel has a duty to be honest and upright in

his submissions in Court and not to mislead the Court. He must help the Court to uphold the truth and justice of each case, even admitting what would accrue to the best interest of justice and the law, even where that ruffles the private unwholesome interest of his client. See Ogah & Anor. Vs Gidado & Ors (2013) LPELR 20298 CA; and Co-operative & Commerce Bank Nig Plc Vs Okpala (1997) 8 NWLR (pt.518); (1997) LPELR – 6278, where it was held: “Counsel, while putting across his client’s case is duty bound to do so fearlessly and courageously, but he is not permitted to descend to the arena of mischief or calculated attempt to misguide or mislead the Court with submission that border on ridicule and which if erroneously acted upon by the Court will precipitate a miscarriage of justice. Counsel, I must re-iterate, is an officer of the Court and nothing in the determination of any matter by the Court in which he serves in that respectable capacity should derail him from comporting himself” (Per Achike JCA).”
per MBABA, J.C.A (PP. 7-8, PARAS. F-E)
The defendants filed a preliminary objection challenging the information yet they assert on the

other hand non service, with what was the preliminary objection prepared one may ask yet the defendants hotly pursued this procedural issue with such vigour claiming non – service and illegal service. The service of the information and poof of evidence on defendant counsel is good service.

Based on the above analysis and circumstances/facts in this matter, answering whether the Court has acted in a manner which may amount to likelihood of bias in favour of prosecution, I do not find any! Two separate challenges have arisen herein, one; administrative acts of the Chief Judge and the other judicial acts of the trial Court judge.
The defendants have heavily defined the word bias citing a number of cases correctly, the exercise of discretion by the Trial judge does not amount to bias or likelihood of bias when it is done judicially and judiciously, the Appellants have failed to specifically show how this exercise has been wrongly utilized.
This again will lead to judicial stand and the nature of complaints of the Appellants in this appeal on such allegations of not replying a petition, replying the prosecution witness (complainants) petition before

the defendants’ own, these are administrative duties of the Chief Judge whilst that of the Trial judge ordering counsel to counsel service, and acting on the directive of the Chief Judge to continue the case is procedural and quasi –administrative.
In BABARINDE & ORS v STATE (2013) LPELR – 21896 (SC), the Apex Court on the definition of “judicial bias” and “bias” decided thus;
“In Womiloju v. Anibire (2010) 10 NWLR (Pt. 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 presides. Judicial bias is usually insufficient to justify disqualifying a Judge from presiding over a case. To justify disqualification or recusal, the judge’s bias usually must be personal or based on some extrajudicial reason. In the case Kenon v. Tekam (2001) 14 NWLR (Pt. 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 to 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. v. Lannon (supra). Also in Womiloju’s case (supra), 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 v. 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 by the inference that could be drawn by an ordinary bystander observing the proceedings.”
per KEKERE – EKUN, J.S.C (PP. 12-14, PARAS. F-B)
The reason for bias must be personal or some extrajudicial reason after a careful review of the allegations, it will be looking for the leg of a snake to find any personal or extra judicial reason in the submissions of

counsel on the path of the trial judge or the Chief Judge.

What I find is a clear case of misapprehension and misrepresentation, either deliberately or mischievously, what is important is that there are charges and after 2 years no arraignment has been done, the defendants have never attended Court and the counsel for the Appellants acts as a shield against moving the matter forward.

On the whole, I cannot close this judgement without commenting on the speed of administration of justice where cases linger and spend unending time before the arraignment, how long time would the actual trial take?
This is what the common man on the street wants to know!

This appeal lacks merit and is dismissed. Happily, I take judicial notice that the Chief Judge in question has retired and trial judge has moved judicial divisions over again away from criminal division, which is the practice in Lagos State
Therefore, I direct that the case file be sent to the Chief judge of Lagos state for re – assignment to another judge who shall hear this case de novo forthwith.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree

OBANDE FESTUS OGBUINYA, J.C.A.: I had read, in advance, the leading judgment delivered by my learned brother: Abimbola Osarugue Obaseki-Adejumo, JCA. I agree with it. I, too, dismiss the appeal. I abide by the consequential order decreed in it.

Appearances:

CHRIS OGBOBE For Appellant(s)

K. SHITTA BEY (SGL) with him, Y. A. SULE (ACSC) and C. S. HUNPE (SSC) For Respondent(s)