ALFA DAUDA OLUKADE & ORS V. ALIMI KELANI & ORS
(2012)LCN/5535(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2012
CA/I/98/99
RATIO
APPEAL: WHETHER LEAVE OF COURT IS REQUIRED IN RAISING ISSUES TOUCHING FAIR HEARING
I agree with learned senior counsel for the appellants that leave of the Court was not needed to ventilate the issue on the appeal, particularly as the issue touched fair hearing which is synonymous with fair trial and can be raised at any stage of the proceedings without the leave of the Court based on the materials on the record of the court as in the instant case, more so the issue was thoroughly canvassed in the briefs of the parties – See Ndukauba v. Kolomo (2005) 4 NWLR (pt. 915) 411 at 428 thus –
“In the appeal before the Court of Appeal, the appellant did not raise the question of fair hearing as he has now 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.”
See also Mohammed v. Kano N.A. (1968) 1 ALL N.L.R. 424 at Page 425 (lines 10 -15) and Ekpeto & Ors v. Wanogho & Ors. (2004) 18 NWLR (pt. 905) 394 at 411 (letters A-C). PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICE: ROLE OF PUBLIC CONFIDENCE IN THE ADMINISTRATION OF JUSTICE
Writing on the role of public confidence in the administration of justice in the book titled ‘The Judge in a Democracy (2006 Edition), Aharon Barak, (president of the Israeli Supreme Court), aptly stated at page 109 thereof that –
“An essential condition for realizing the judicial role is public confidence in the judge. This means confidence in judicial independence, fairness and impartiality. It means public confidence in the ethical standards of the judge… Indeed, the judge has neither sword nor purse. All he has is the public’s confidence in him. This fact means that the public recognizes the legitimacy of judicial decisions, even if it disagrees with their content.”
The jurist, Aharon Barak, elaborated on ‘public confidence’ while expressing his opinion in the Israeli case of Tsaban v. Minister of Religious Affairs 40 (4) P.D. 141 at 148 (contained in the footnote at page 109 of the said book) in these fitting words –
“An essential condition for an independent judiciary is public confidence. This means public confidence that the judiciary is dispensing justice according to the law. It means public confidence that judging is being done fairly, impartially, with equal treatment of both parties and without any trace of a personal interest in the outcome. It means public confidence in the high ethical level of judging. Without public confidence the judiciary cannot operate…. Public confidence in the judiciary is the most precious assets of the nation. As De Balzac noted, lack of public confidence in the judiciary is the beginning of the end of society.”
In Bakare v. Apena (1986) 4 NWLR (pt. 33) 1, for instance, the learned trial Judge in the case was acclaimed to be of high integrity. Perceiving a defect in a judgment he had delivered, the learned trial Judge visited the law firm (chambers) of counsel for the party that lost the suit with a view to inviting counsel to address him on the detected error for the purpose of correcting it.
But the Supreme Court comprising seven learned Justices (Full Court) roundly condemned and deprecated the behaviour of the learned trial Judge for having contact with the law firm of one of the parties after delivery of judgment in the case in respect of the disposed case. It allowed the appeal on that basis. The lead judgment of Nnamani, J.S.C., had this to say at pages 12, 13, 14, 15 and 16 of the law report-
“The next matter I would wish to advert to is the conduct of the learned trial Judge in visiting the chambers of respondent’s counsel. Chief Sobo Sowemimo S.A.N. has submitted that that conduct was reproachable and irregular. I think those were fair description. I would myself say that it was unfortunate as it was ill advised. The learned trial Judge could not have fully adverted his mind to the implications for his dignity as a Judge of the events of 10th March, 1979….
I am of the view, however, that if one looked closely at … the circumstances what one finds is … some slight erosion of confidence in the judicial process….. I think I can best state my reason for agreeing that the judgment too cannot stand, as due to the erosion of confidence in the adjudicative process brought about by the conduct of the learned trial Judge. Lord Hewart C.J. in R. V. Sussex Justices Exparte Macarthy (1924) 1 K.B. 256, 259 stated these words which have come down the ages –
“…. a long line of cases show that it is not merely of some importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
I cannot do better than set down the views of the learned Justices of the Court of Appeal which in my view gave sufficient reasons for holding the judgment of 9th March, 1979 also vitiated. Said Uthman Mohammed,
“… after his visit to the chambers of Chief Olunwa, the generality of the member of the public are bound to call for question on the impartiality of the learned trial Judge, and in the end even the first judgment would not escape the public screening.”
In the view of Ademola, J.C.A.
“… The issue here is that of confidence in the Judge who writes a judgment and not the soundness of his judgment. A Court of Appeal cannot be indifferent to the mood of the parties in the situation present here.”
In his own judgment Nnaemeka-Agu, J.C.A. said –
“The question is whether, the appearance in counsel’s chambers … would inspire confidence in the appellants that their case had been decided on its merits.” (My emphasis.)
Obaseki, J.S.C., held in his own judgment at page 19 of the law report inter-alia –
“In addition to what my learned brother has said on this issue, I would add that a trial Judge ought to know that he is on trial for any improper conduct during the trial of a case before him and immediately thereafter…” (My emphasis.)
Aniagolu, J.S.C., held in his judgment at page 21 of the law report inter-alia –
“Be that as it may, one must always bear in mind the reaction of the general public who may not have the specialized knowledge of the trial Judge as members of the Bar who work with him daily in the courts, have. Lush, J., has stated in Serjeant v. Dale (1877) 2 Q.B.D. 558 at 567 that –
“One important object, at all events, is to clear away everything which might engender suspicion and distrust of tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.” (My emphasis.)
Lord Denning in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1969) 1 Q.B. 677 at 599 gave the reason why a Judge must always act in such a way as to retain the confidence of the people in the judicial process when he said at page 599 that –
‘The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking: ‘The Judge is biased.’ (My emphasis.)
These principles have been mentioned with approval by this court in A.U. Deduwa & Ors. v. Okorodudu & Ors. (1976) 9-10 SC. 329.
A trial Judge must not, in the conduct of the proceedings before him, either by words or actions, scandalize the Public….”
Coker, J.S.C., had this to say in his judgment at page 22 of the law report –
“His (learned trial Judge) subsequent visit to the chambers of Chief Olunwa further complicated the matter….. His conduct was not only despicable, office as an impartial arbiter between the two contesting parties. It is comforting that his integrity was unquestionable in the matter in that no improper or corrupt motive was ever imputed against him. But enthusiasm on the part of a Judge is hardly consistent with impartiality.” (My emphasis.)
Oputa, J.S.C., made the following remarks in his judgment at pages 25-26 of the law report –
“This visit was in breach of all known rules of judicial conduct, etiquette and decorum…. I think the most important lesson to learn from the facts and surrounding circumstances of this case is that it is a matter of public policy that, as far as possible, judicial proceedings shall not only be free from actual bias or prejudice of the judges but that they shall be free from any suspicion of bias or prejudice. The character of judges is public property.” (My emphasis.) PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICE: TEST FOR JUSTICE
In other words, the test is whether a reasonable or objective/detached person distinct from a person in the subjective position of an aggrieved every, in all the circumstances, might suppose that there was an improper interference with the pure stream of justice, as it is of utmost importance that every litigant should be satisfied that he had an absolutely impartial trial – See Ex Parte McCarthy (1924) 1 K.B. 256 at 256, Whitford Residents and Rates Payers Association v. Madukau City Corporation (1974) 2 N.Z.L.R. followed in Apena v. Bakare (supra), Olue v. Enenwali (1976) 1 ALL N.L.R. 83 at 90, Abiola (supra) at pages 23-34 per Uwais, J.S.C. (later C.J.N.). PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
ORDER: PRINCIPLES WHICH GOVERN THE ORDER OF RETRIAL
The principles which govern the order of retrial were settled by this Court in Yesufu Abodundu and Ors. V. The Queen (1959) 4 F.S.C. 70 at 73. There the Court stated:
“We are of the opinion that, before deciding to order a retrial, this court must be satisfied
(a) That there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such character that on the one hand the trial was not rendered a nullity and on the other hand the court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to Section 11 (1) of the Ordinance;
(b) That leaving aside the error of irregularity, the evidence taken as a whole discloses a substantial case against the appellant;
(c) That there is no such special circumstance as would render it oppressive to put the appellant on trial a second time;
(d) That the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial;
(e) That to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.”
Although this was a criminal case those principles are applicable to civil matters and principle (a) is particularly relevant, as I shall shortly show, to this case. These principles have been upheld by this Court in Oktafor v. The State (1975) 5 S.C. 13; Ikhane v. C.O.P. (1976) 6 SC 119; Okpara v. The Republic (1977) 4 S.C. 53 and Evorokoromo v. The State (1979) 6-9 S.C. 3.”
See also Ezeoke & Ors. V. Nwagbo & Anr. (1988) 3 S.C.N.J. (Pt. 1) 37 at 49 where the Supreme Court held inter-alia that a retrial can be ordered “on grounds of misbehaviour of the judge.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. ALFA DAUDA OLUKADE
2. CHIEF TUNJI ABORISADE
3. ALFA KASALI ADESINA
4. AKANDE ELEGBEDE
5. MOLIKI FATUNBI Appellant(s)
AND
1. ALIMI KELANI
2. ALHAJI GANIU OLAJUWON IDOWU
3. ALHAJI WAHEED RAUFU IROKO
4. TAJUDEEN ALANI OKE-ALA
5. ALHAJA SIMIAT EYILE EYILE-ALA
(For themselves and on behalf of Odugbemi Family of Iga Ose Igbesa) Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a judgment of a High Court sitting in Abeokuta, Ogun State (the court below), over a lawsuit respecting disputed parcel of land situate at Egudu Farm Igbesa in which the court below decreed customary right of occupancy over the disputed land in favour of the respondents together with orders that the appellants should pay all the arrears of customary tribute (Ishakole) at the rate of N10.00 per annum per each appellant with effect from 1.1.1980 to 13.5.1996, forfeiture of the customary tenancy granted to the appellants through their ancestors and repossession of the disputed land by the respondents, and a permanent injunction restraining the appellants’ re-entry into the disputed parcel of land.
In summary, the respondents’ case as plaintiffs at the court below was that their progenitor, one Ose or Osee, who was a hunter and farmer migrated from Ile-Ife to found the disputed parcel of land as its first settler thereon upon which he farmed seasonal crops and planted economic trees like cocoa and bitter kola in his lifetime; that their progenitor had one child called Odugbemi who bore two children called Dada Osoja, a female and grandmother of the respondents, and one Alimi Kelani, the former later came to be known as Odugbemi or Osoja family; in the course of time the respondents’ ancestors granted parcels of the disputed land to the appellants’ ancestors on terms as to payments of Ishakole, a form customary tribute paid in produce like yam and palm oil as well as cowries, which was then the medium of exchange but was later converted into cash, the medium of exchange brought by the advancement of civilization.
With the passage of time, Egudu grew into a village. For some time it had no Baale or village head. The constant harassment by thieves and robbers necessitated the appointment of a Baale among the villagers who were tenants of the respondents with the latter’s permission and blessing; after the death of the first Baale, one Alli Aina Abata, the appellants stopped payment of Ishakole or customary tribute to the respondents; when the time came to appoint a new Baale, the respondents refused to give their consent and approval until the arrears of the customary tribute was paid, therefore the appellants agreed with the respondents in writing to pay the arrears of the tribute as their customary tenants on account of which the respondents lifted the embargo on the appointment of a new Baale. The appellants appointed the new Baale, reneged on their promise to pay the arrears of the tribute and wrote through their solicitors denouncing the respondents as their overlords which prompted the suit at the court below.
The appellants’ case as defendants at the court below was that their ancestor, one Eguduwa, a hunter and farmer, migrated from the old Oyo town some three hundred years ago and settled at Oke-Igboku in Ado-Odo and later moved to Egudu as the first settler there were he planted economic trees like bitter kola, palm trees, kolanut and oranges on part of the land, while a portion thereof was used by him to farm seasonal crops. It was there that their progenitor procreated Olukade, Geere, Ogunbisi, Adeesi, Egunfunke, Egunleti and Ikuponji; that they produced three Baales of the village as of right or independent of the respondents who are not their overlords, nor did they enter into written agreement with the respondents acknowledging they are their customary tenants and in arrears of Ishakole or customary tribute.
The court below accepted the version of the respondents and entered judgment for them per their claims summarised in the course of the discussion. Dissatisfied, the appellants filed a notice of appeal with seven grounds of appeal on 23.5.96, which was amended by order of the Court and filed on 29.9.11.
From the nine grounds of appeal contained in the notice of appeal, the appellants’ learned senior counsel, Mr. Badejo, refined nine issues for determination in the further amended appellants’ brief of argument dated 29.9.2011, and filed on 29.9.11, but deemed properly filed on 10.10.2011, as follows –
“(i) Whether in the circumstances of this case, it was proper for the learned trial Judge to grant an Order of Injunction which was not claimed by the Plaintiffs – Ground 1 of the amended Notice of Appeal.
(ii) Whether the learned trial Judge was right to have treated and relied on the evidence of the 1st and 2nd Plaintiffs’ witnesses i.e. the 4th and 6th defendants as an admission against interest of the defendants in this case Ground 3 of the amended notice of appeal.
(iii) Whether in view of the evidence, Exhibit A was in fact made by the Defendants when there is no due execution of the said Exhibit A to accord with the relevant protection of the defendants as guaranteed under the Law – Ground 4 of the amended Notice of Appeal.
(iv) Whether the learned trial Judge was right to have relied on Exhibits B, G-G16, G17 to G27 and the negatives of the photographs in view of the evidence before the court – Ground 5 of the amended notice of appeal.
(v) Whether the learned trial Judge was right to have relied on Exhibits C, C1, CA, C1A and H1 in view of the irregularities and the specific findings of the Court that the 16th P.W. issued Exhibit CA, C1A and produced Exhibit H and H1 due to over enthusiasm to establish his case Ground 6 of the amended notice of appeal.
(vi) Whether the judgment of the learned trial Judge is against the weight of evidence – Ground 9 of the amended notice of appeal.
(vii) Whether it was right for the learned trial Judge to conclude that the evidence of 1st, 2nd, 3rd, 4th, 6th and 9th defendant witnesses as regards the grant of land made to them by the defendants goes to no issue in view of the pleadings and evidence Ground 2 of the amended notice of appeal.
(viii) Whether the learned trial Judge was right in law in not adverting his mind to and not considering the fact that the claim of the plaintiffs was caught under the provisions of the Limitation Law being statute barred and/or that they are guilty of laches and acquiescence’s, as there is no evidence that the alleged payment in Ishakole was made for over 24 (twenty-four) years Ground 7 of the amended notice of appeal.
(ix) Whether the learned trial Judge was right in continuing with the case after being approached by the plaintiffs to help and favour them in the case, an overture he repeated in the course of the proceedings in the Ground 8 of the amended notice of appeal.
It was contended on the 1st issue that the court below was wrong to make an order of perpetual injunction in favour of the respondents when they did not specifically request for such relief vide Ekpenyong v. Effiom (1975) 2 S.C. 71 at 80-81, Obajimi v. Attorney General, Western Nigeria (1953) NMLR 96, Ademola v. Sodipo (1992) 7 NWLR (pt. 253) 251 and CDC (Nig.) Ltd. v. S.C.O.A. (Nig.) Ltd. (2007) 6 NWLR (pt. 1030) 300.
The second to fifth issues were argued together that the evidence of the 1st – 2nd plaintiffs was self-serving or tainted and did not be represent the interest of the appellants as at the time they gave their evidence they were not doing so as members of the appellants’ family therefore the appellants were not bound by their evidence which had its own purpose to serve and the court below erred in relying on the evidence as conclusive admissions contrary to sections 19, 20(1), (2) of the Evidence Act read with the cases of Savannah Bank of Nigeria Plc. v. Opanubi (1993) 13 NWLR (pt. 634) 203, Iga & Ors. V. Amakiri & Ors. (1975) 11 S.C. 1. at 11, Cappa & D’Alberto Ltd. v. Akintilo (2003) 9 NWLR (Pt. 824) 49; that the authorship of Exhibits A and A1, a memorandum, was doubtful as the DW21 was pressured under cross-examination to admit thumb-printing it therefore the court below was wrong to place heavy reliance on it; that the DW2 admitted generally that Exhibits B, G to G17 – G21, C2 to C16 did not come form proper custody but the maker was not called to testify, nor was it established by evidence why the photographs differed from the negatives making them unreliable, consequently the court below should not have attached weight to them; that Exhibit A had no illiterate jurat and lacked probative value, whilst the 16th plaintiffs’ witness described by the court below as “stupid, over enthusiastic and ignorant” was still accorded consideration and his evidence given undue weight by the court below, therefore the court below having discovered that there was “desperate bid by the plaintiffs to procure documentary evidence to prove the case at all cost” it should not have relied on Exhibits B, G, G6, G7, G21, H and H1 in proof that the appellants were customary tenants of the respondents.
The further amended brief of argument of the appellants contended on the sixth and seventh issues that the strong evidence of exclusive possession tendered by the appellants was in conflict with the weak evidence tendered by the respondents which the court below did not evaluate by placing the case of the parties side by side in the imaginary scale and resorting to acts done on the disputed land in recent years by the warring parties, not on the demeanour of the witnesses as wrongly held by the court below, to ascertain if the respondents discharged the burden of proof placed on them as plaintiffs in the court below vide Kojo v. Bonsie (1957) WLR 1223 at 1226, Oloriode v. Oyebi (1984) 4 S.C. 1. at 17-18. Ogun v. Akinyelu (2004) 18 NWLR (pt. 905) 352, Mogaji v. Odofin (1978) 4 S.C., 91 at 94. Aromire v. Awoyemi (1972) 1 ALL NLR 101, Sha v. Kwan (2000) 8 NWLR (pt.670) 685, consequently the pleaded and proved acts of possession of the disputed land by the appellants together with the unchallenged evidence of grants of part of the land to sundry persons by the appellant which were not considered by the court below sufficed to prove exclusive possession of the disputed land by the appellants under section 146 of the Evidence Act and the cases of Woluchem v. Gudi (1981) 5 S.C. 291, Atolagbe v. Shorun (1985) 1 NWLR (pt. 2) 360, Okechukwu v. Okafor (1961) 1 ALL NLR 685, Fagbenro v. Arobadi (2006) 7 NWLR page 172, Mogaji v. Odofin (supra).
The appellants’ brief contended on eighth issue that the Limitation Law together with laches and acquiescence caught the respondents’ claim for recovery or forfeiture of the disputed land in light of the established fact that the respondents did not demand for payment of customary tribute, Ishakole, from the appellants as customary tenants for over twenty-four (24) years before the dispute arose, moreso the appellants through their ancestors had lived on the land for about three hundred (300) years and had exercised acts of ownership by granting some portions of the land to several tenants with churches, mosques and schools thereon without interruption from the respondents.
It was contended on ninth issue that the learned trial Judge disclosed in open court on 19.9.95, that one of the 1st plaintiff had approached him to help them win the case which overture sufficed to disqualify the learned Judge from continuing with the hearing and determination of the case in accordance with the established principle that justice must not only be done but must be manifestly seen to be done, therefore the adjudication of the dispute by the learned Judge which culminated in favour of the respondents who had approached the learned Judge through the 1st plaintiff to tilt the case in their favour should be set aside, notwithstanding the assurance the learned Judge gave the parties in open court thereafter that he would still do justice in the case when he had given unsolicited advice to the respondents against entering into terms of settlement with the appellants and dropping the 6th respondent’s name from the suit vide Metropolitan Properties Co. (FGC) Ltd. v. Lennon (1969) 1 Q.B. 577, Sha v. Kwan (supra) at 685 and the Discipline of the Law by Lord Denning at page 87.
The respondents’ amended brief dated and filed on 24.10.2011 formulated seven issues for determination as follows –
“i. Whether, in the circumstances of this case, it was proper for the learned trial Judge to grant injunction for which the respondents did not claim (Ground 1 of the amended notice of appeal).
ii. Whether the learned trial Judge was right in holding that the evidence of the 1st and 2nd plaintiffs’ witnesses (that is the 6th & 4th defendants was an admission against the interest of the appellants in this case (Ground 3 of the amended notice of appeal).
iii. Whether the learned trial judge took the correct view as to the evidential value of the following exhibits which were some of the main planks in the respondents’ case
a) Exhibit A & A1
b) Exhibit B, G – G16, G17 – G21 and their negatives;
c) Exhibit C, C1, CA, C1A, H & H1 (Grounds 4, 5 and 6 of the amended notice of appeal).
iv. Whether the learned trial Judge was right in holding that the evidence of the 1st, 2nd, 3rd, 4th, 6th, 8th and 9th defendants’ witnesses as regards grants claimed to have been made to them by the appellants goes to no issue in view of the pleadings and evidence (Ground 2 of the amended notice of appeal).
v. Whether the learned trial Judge was right in not considering the fact that the respondent’s case was caught by Statute of Limitation and/or laches and acquiescence. (Ground 7 of the amended notice of appeal).
vi. Whether there was a breach of fundamental rules of fair hearing emanating from the learned trial judge’s declaration in the open court that one of the respondents made an overture to him. (Ground 8 of the amended notice of appeal).
vii. Whether the judgment of the learned trial Judge is against the weight of evidence (Ground 9 of the amended notice of appeal).”
It was contended on the first issue by the respondents that the order of injunction was rightly granted suo motu by the court below to protect the adjudged title to the land made by the court below in the respondents’ favour as an ancillary discretionary equitable relief and should not be disturbed by the Court vide Order 47 Rule 1 of the Rules of the Court below read with the cases of Usuobaifo & Ors. V. Mohammed (2003) 6 M.J.S.C. 97, Ilona v. Idakwo (2003) 12 M.J.S.C. 35, Evans v. Bartlam (1937) A.C. 480, University of Lagos v. Olaniyan (1985) 11 NWLR (pt. 1) 156, Ajeigbe v. Odedina (1988) 3 S.C. 88 AT 107. The Owners of M.V. Lupex v. Overseas Chartering and Shipping Ltd. (2003) 9 M.J.S.C. 156.
It was contended on the second issue that the suit was fought and defended in a representative capacity therefore the trustworthy admission made by the PW1 who was the 6th defendant and the PW2 who was the 2nd defendant that the respondents own the disputed land, while the appellants are their customary tenants, had collective effect on all the appellants as an admission against their interest and the court below was right in ascribing probative value to it against the appellants more so the PW3 and the PW7 gave similar evidence vide Owie v. Ighiwi (2005) 3 M.J.S.C. 82 at 85, 19 N.S.C.C. (pt. 1) 930 at 939 and sections 20 (1) and (2), 23, 26 and 151 of the Evidence Act.
The respondents’ brief contended on the third issue that Exhibits A, B, C, C1, C1A, H, H1, G-G21 were admitted in evidence without objection and were not cross-examined upon by the appellants who made Exhibit A, translated in Exhibit 41, and should not be heard to complain of its due execution under section 100 of the Evidence Act as the PW2 who was the 2nd defendant confirmed thumb-printing it vide sections 102 and 105 of the Evidence Act, therefore the creation of legal rights between the appellants and the respondents by Exhibits A and A1 excluded the application of the Illiterates Protection Law to them vide Salami v. Savannah Bank of Nig. Ltd. (1990) 2 NWLR (pt. 130) 106 at 110 and 123, consequently the court below correctly evaluated the documentary evidence before it and came to the right decision on them and the Court should not tamper with the said findings of fact as they are supported by ‘PW15’s evidence and are not perverse especially as the other finding of fact by the court below that the respondents were present at the installation of the Baale of Egudu and presented one Rabiu Oludade to Oba Olugbeleyi for the post and caused Exhibits G2 – G16 to be taken on that day was not appealed against vide Madubuonwu v. Nnalue (1992) 8 NWLR (pt. 260) 440 at 444, Eholor v. Osayande (1992) 6 NWLR 524.
The fourth and seventh issues were argued together to the effect that the appellants did not plead and prove their “firm possession” of the land by leasing it out to tenants as they did not state the names of the grantees and evidence led by the 1st – 4th, 6th, 8th and 9th defence witnesses on the unpleaded facts want no issue and were rightly disregarded by the court below vide and Adesanya v. Otuewu (1993) 1 NWLR (pt. 270) 414 and that the court below properly evaluated the evidence to arrive at the conclusion that the respondents proved ownership of the disputed land on their unassailable traditional evidence in contradistinction to appellants incomplete traditional evidence ruling out the application of the rule in Kojo v. Bonsie (supra) to the facts of the case vide Nigeria Industrial Development Bank Ltd. v. Sofresid Soft Drinks Ltd. (1992) 5 NWLR (pt. 42) 471, therefore the said sound findings of fact should not be interfered with by the Court vide Onwuama v. Ezeokoli (2002) 4 M.J.S.C 85, Ivbienagbor v. Bazauye (1992) 9 NWLR (pt. 620) 552 Elohor v. Osayande (1992) 6 NWLR page 524, Asegbe v. Agholor (1990) 7 NWLR (pt. 161) 234, Fasoro v. Beyioku (1988) SC 151 at 166, 167 Oyadare v. Keji (2005) 4 M.J.S.C. 172.
It was contended on the fifth issue that the equitable defences of laches and acquiescence and the defence of the statute of limitation were not pleaded by the appellants, nor were the issues canvassed at the court below therefore they cannot be raised for the first time on appeal without the leave of the Court and should be disregarded by the Court vide Ibenwelu v. Lawal (1971) A.N.L.R. 24, Iso v. Eno (2003) 10 M.J.S.C. 18, Eze v. A-G Rivers State (2002) 1 M.J.S.C. 87, Mar-Prink Industries Nigeria Ltd. v. Eke (2004) 5 M.J.S.C. 143, Oyeyemi v. Irewole Local Government (1993) 1 NWLR (pt. 270) 462; that the cause of action arose in 1982 when the appellants reneged on their pact with the respondents in Exhibit A, while the action was filed in 1989, within a period of Seven (7) years and not caught by the limitation Law and the defences of laches and acquiescence vide Civil Procedure in Nigeria (2nd edition) by Nwadialo entered upon the land lawfully as customary tenants of the respondents until they abused the grant and became trespassers ab initio relating their misconduct back to make their initial entry trespass vide Ajibade v. Pedro (1992) 5 NWLR (pt. 241) 257.
The respondents’ brief submitted on the sixth issue that the learned trial Judge was not guilty of bias as he volunteered the information of the overtures made by one of the respondents to influence him decide the case in favour of the respondents in open court in the presence of the learned counsel for the respective disputants and advised the respondents’ counsel to warn his client and that the inchoate attempt made by the 1st plaintiff through a brother Judge over the pending suit did not succeed as the learned trial Judge refused to succumb to it, whilst the parties acquiesced in the case proceeding to finality before the learned trial judge after they were aware of the said disclosure without evidence showing miscarriage of justice; nor did the learned trial Judge assist the respondents in the proceedings before him in respect of the suo motu award of perpetual injunction to the respondents and in respect of alleged advice of the respondents to withdraw the motion that they filed for the striking out of the name of the 6th defendant from the suit and agreeing to terms of settlement with the appellants to end the dispute between them, as the motion was withdrawn on the objection raised in paragraph 10 of the appellants’ counter affidavit consequently the learned trial judge’s “inner-heart declaration and state of mind and His Lordship’s stand and determination to do justice in this case (page 245 of the record) was brought about by the attitude of the Respondent’s counsel” while the statement disclosing the overtures was a passing remark and should not form the basis of an appeal as it was not raised in the court below and was raised here without the leave of the court vide Boothia Maritime Inc. & Ors. V. Far-East Mercantile Co. Ltd. (2001) 3 M.J.S.C. 32 AND Mar-Prik (supra), therefore the Judgment of the court below which was based on the evidence before it showing the court below was not biased nor unfairly favoured the respondents as to cause the judgment to be set aside, consequently the appeal should be dismissed.
In a reply brief dated and filed on 6.1.12 but deemed properly filed on 17.1.12, the appellants distinguished the cases of Ilona (supra) Obajimi (supra) from the present case on the ground that an order of injunction cannot flow as a consequential order from the complete reliefs of forfeiture and possession of land held under customary law as in the said cases dealing with substantive reliefs traceable to a consequential order of injunction giving back-up effect to the judgment vide Liman V. Mohammed (1999) 9 NWLR (Pt. 617) 116 at 144 and Obayogbona v. Obazee and Anor. (1972) 7 NSCC 383; that Nwawuba (supra) treated evidence of a party’s own witnesses who were members of the family of the same party which the court held to be truth of the admission made by the witnesses of the matters admitted by them against the interest of the party that called them as witnesses, unlike the present case where the two witnesses are not members of the respondents’ family but were called from the appellants’ camp by the respondents to give evidence for them as suborned witnesses whose evidence the court below should have treated with caution and not conclusive of what was admitted by them vide sections 19, 20 (1) (2), 26 and 151 of the Evidence Act; that the respondents’ witnesses were cross-examined on Exhibits A, B, G-G16, G17, G27, C, C1, CA, C1A, H and H! which the appellants contended are valueless of worthless and should not have been given “undue weight” by the court below, consequently their admissibility in evidence without objection was not the issue at stake but the weight placed on them by the court below that was vide Bendel Insurance Co. Ltd. v. Edokpolor and Co. Ltd. (1989) 4 NWLR (pt. 118) 725; that concurrent possession of the disputed land by the respondents and the appellants was not pleaded and proved to warrant the holding of the court below that both of them were in concurrent possession of the land and erroneously reject the application of the principle in Kojo (supra); that paragraphs 12, 23, 27, 36 to 55 of the amended statement of defence pleaded limitation, laches and acquiescence vide Morayo v. Okiade (1984) 1 NWLR (pt. 2) 211 at 212; that it is the impression come to by a reasonable person reading the record or watching the proceedings whether there was denial of fair hearing and whether the learned trial Judge was competent or had the jurisdiction to continue with the adjudication of the proceedings after the overtures made to him which issue can be raised at any time even on appeal based on the admitted overtures on the face of the record vide Abiola v. Federal Republic of Nigeria (1995) 7 NWLR (pt. 405) 1 and Madukolu v. Nkemdilim (1962) 1 ANLR 589, therefore the appeal be allowed.
In my considered opinion, the issues for determination posed by the appellants are appropriate for the resolution of the appeal and same shall be followed in the discourse.
For convenience, the arguments on issue 9 tied to ground 8 of the amended notice of appeal will be taken first. The learned trial Judge, Sonoiki, J., disclosed in the open court the behind the scene contact made by the 1st plaintiff to influence the outcome of the case after both parties had closed their respective cases and the suit adjourned for final address. To quote the notes of the learned trial Judge made on 19.9.95 at page 234 of the record –
“….Told both counsel in the open court of the overtures made by Raufu Kelani to influence me in this case. I advise Chief Akinbiyi to warn his clients.”
Then, on 26.2.06, after five months had elapsed, the learned trial Judge suo motu revisited the issue of the overture at page 245 of the record in these words –
“After all, I have overlooked the overtures made to me by the plaintiffs which I made known in this court on 19.9.95. As a practicing Christian, I have made up my mind not to allow such a dirty approach to affect any decision I may reach in this case. I have spoken my mind in open court on it and I have left the dark spot behind me determined to do justice in this case. Could the plaintiffs be haunted by their sinister step? They should forget it. Since they have not succeeded in their nefarious step it has no influence on me at all.”
The record of the court below extracted above contained the information on the “overtures” made to the learned trial Judge by the 1st plaintiff, one Mr. Raufus Kelani, and does not need further evidence and can be dealt with without necessarily requiring the appellants to obtain leave of the Court to raise it as a fresh issue; consequently I agree with learned senior counsel for the appellants that leave of the Court was not needed to ventilate the issue on the appeal, particularly as the issue touched fair hearing which is synonymous with fair trial and can be raised at any stage of the proceedings without the leave of the Court based on the materials on the record of the court as in the instant case, more so the issue was thoroughly canvassed in the briefs of the parties – See Ndukauba v. Kolomo (2005) 4 NWLR (pt. 915) 411 at 428 thus –
“In the appeal before the Court of Appeal, the appellant did not raise the question of fair hearing as he has now 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.”
See also Mohammed v. Kano N.A. (1968) 1 ALL N.L.R. 424 at Page 425 (lines 10 -15) and Ekpeto & Ors v. Wanogho & Ors. (2004) 18 NWLR (pt. 905) 394 at 411 (letters A-C).
The learned trial Judge did not, with respect, put the parties to election whether to continue with the proceedings after the disclosure by him of the encounter between 1st plaintiff and himself. Nor did the learned trial Judge make complete disclosure of the extent of the “overtures” made to him by the 1st plaintiff in respect of the pending proceedings which resulted in judgment against the appellants. Therefore, the question of waiver or acquiescence on the part of the appellants did not arise, as they were merely informed in general terms of the overture followed by the assurance of the learned trial Judge to maintain impartiality in the proceedings, (without giving the appellants the chance to protest) which he observed in breach. See Ariori v. Elemo (1983) 1 SCNLR 1 at 13 and R. v. Cumberland JJ (1882) 52 J.P. 502.
In my respectful opinion, for a litigant to have access to a Judge in respect of a case affecting him and pending before the Judge is a very serious matter. Any ex-parte communication by a litigant with a Judge in such circumstances is scandalous and has the unsavoury effect of undermining public confidence in the administration of justice. In R. v. Stratford-on-Avon JJ., Ex Parte Edmonds (1973) R.T.R. 356 cited with approval by the learned author of the authoritative works of De Smith’s Judicial Review of Administrative Action (Fourth Edition) on the side-bar at page 268, for example, the informant had conversed briefly with the Justices after they had retired to consider the case. Even though the nature of the brief conversation the informant had with the Justices in Ex parte Edmonds (supra) was not disclosed, the conviction in the case was quashed on appeal. The key factor for quashing the conviction centred on the parameter that the public confidence rooted in the administration of justice was eroded. Because like Caesar’s wife Judges must be above suspicion, circumspect, reserved and detached or aloof from the public in order to avoid the compromised position of litigants having access to them to discuss or solicit favours in respect of pending cases.
It is left for guesswork the extent of the discussion between the learned trial Judge and the 1st plaintiff or his proxy as the learned Judge tersely coined it an “overture” to influence him. It is baffling that a Judge would allow a litigant not only access to him but also give him audience over a case pending before the Judge. Whatever was the level or extent of the unfortunate communication between the 1st plaintiff and the learned trial Judge in connection with the pending suit, it was clearly a case of barefaced contempt of court intended to undermine the administration of Justice. It is unsettling that the learned Judge treated it with levity. He should have cited the 1st plaintiff for contempt of court.
Be that as it may, any form of contact by a litigant or his proxy with a Judge sitting over his case in respect of the case even after the case has been disposed of by the judicial officer is undignifying and strikes at the taproot of the administration of justice. The Code of Conduct for Judicial Officers provides in Rule 2A (5) (1) in that wise that –
“a judicial officer should accord to every person who is legally interested in a proceeding, or his legal representative full right to be heard according to law, and except as authorized by law, neither initiate, encourage, nor consider exparte or other communications concerning a pending or impending proceeding.” (My emphasis.)
And Rule 2 subrule 5 (11) thereof inserts the following explanation –
“For the purpose of this subrule an “exparte communication” is any communication involving less than all the parties who have legal interest in the case, whether oral or written about a pending or impending case made to or initiated by the judicial officer presiding over the case.” (My emphasis.)
That is why it is of utmost importance for a judicial officer to keep reclusive or hermitic/respectable distance from the public to avoid the compromising position of a litigant or his proxy reaching the judicial officer to attempt influencing him in respect of a pending case before him. The impartiality the learned trial Judge self-professed of being a practising Christian who would not yield to the “overtures” to influence him by the 1st plaintiff ironically crumbled as the learned trial Judge ended doing the bidding of the 1st plaintiff by giving his side judgment in the case!
It does not, also, matter that the judicial officer is noted to be above board or is of avowed integrity. What matters is the public perception of the administration of justice an encounter by a litigant or his agent with the judicial officer with a view to influencing the proceedings before him would evoke.
Writing on the role of public confidence in the administration of justice in the book titled ‘The Judge in a Democracy (2006 Edition), Aharon Barak, (president of the Israeli Supreme Court), aptly stated at page 109 thereof that –
“An essential condition for realizing the judicial role is public confidence in the judge. This means confidence in judicial independence, fairness and impartiality. It means public confidence in the ethical standards of the judge… Indeed, the judge has neither sword nor purse. All he has is the public’s confidence in him. This fact means that the public recognizes the legitimacy of judicial decisions, even if it disagrees with their content.”
The jurist, Aharon Barak, elaborated on ‘public confidence’ while expressing his opinion in the Israeli case of Tsaban v. Minister of Religious Affairs 40 (4) P.D. 141 at 148 (contained in the footnote at page 109 of the said book) in these fitting words –
“An essential condition for an independent judiciary is public confidence. This means public confidence that the judiciary is dispensing justice according to the law. It means public confidence that judging is being done fairly, impartially, with equal treatment of both parties and without any trace of a personal interest in the outcome. It means public confidence in the high ethical level of judging. Without public confidence the judiciary cannot operate…. Public confidence in the judiciary is the most precious assets of the nation. As De Balzac noted, lack of public confidence in the judiciary is the beginning of the end of society.”
In Bakare v. Apena (1986) 4 NWLR (pt. 33) 1, for instance, the learned trial Judge in the case was acclaimed to be of high integrity. Perceiving a defect in a judgment he had delivered, the learned trial Judge visited the law firm (chambers) of counsel for the party that lost the suit with a view to inviting counsel to address him on the detected error for the purpose of correcting it.
But the Supreme Court comprising seven learned Justices (Full Court) roundly condemned and deprecated the behaviour of the learned trial Judge for having contact with the law firm of one of the parties after delivery of judgment in the case in respect of the disposed case. It allowed the appeal on that basis. The lead judgment of Nnamani, J.S.C., had this to say at pages 12, 13, 14, 15 and 16 of the law report-
“The next matter I would wish to advert to is the conduct of the learned trial Judge in visiting the chambers of respondent’s counsel. Chief Sobo Sowemimo S.A.N. has submitted that that conduct was reproachable and irregular. I think those were fair description. I would myself say that it was unfortunate as it was ill advised. The learned trial Judge could not have fully adverted his mind to the implications for his dignity as a Judge of the events of 10th March, 1979….
I am of the view, however, that if one looked closely at … the circumstances what one finds is … some slight erosion of confidence in the judicial process….. I think I can best state my reason for agreeing that the judgment too cannot stand, as due to the erosion of confidence in the adjudicative process brought about by the conduct of the learned trial Judge. Lord Hewart C.J. in R. V. Sussex Justices Exparte Macarthy (1924) 1 K.B. 256, 259 stated these words which have come down the ages –
“…. a long line of cases show that it is not merely of some importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
I cannot do better than set down the views of the learned Justices of the Court of Appeal which in my view gave sufficient reasons for holding the judgment of 9th March, 1979 also vitiated. Said Uthman Mohammed,
“… after his visit to the chambers of Chief Olunwa, the generality of the member of the public are bound to call for question on the impartiality of the learned trial Judge, and in the end even the first judgment would not escape the public screening.”
In the view of Ademola, J.C.A.
“… The issue here is that of confidence in the Judge who writes a judgment and not the soundness of his judgment. A Court of Appeal cannot be indifferent to the mood of the parties in the situation present here.”
In his own judgment Nnaemeka-Agu, J.C.A. said –
“The question is whether, the appearance in counsel’s chambers … would inspire confidence in the appellants that their case had been decided on its merits.” (My emphasis.)
Obaseki, J.S.C., held in his own judgment at page 19 of the law report inter-alia –
“In addition to what my learned brother has said on this issue, I would add that a trial Judge ought to know that he is on trial for any improper conduct during the trial of a case before him and immediately thereafter…” (My emphasis.)
Aniagolu, J.S.C., held in his judgment at page 21 of the law report inter-alia –
“Be that as it may, one must always bear in mind the reaction of the general public who may not have the specialized knowledge of the trial Judge as members of the Bar who work with him daily in the courts, have. Lush, J., has stated in Serjeant v. Dale (1877) 2 Q.B.D. 558 at 567 that –
“One important object, at all events, is to clear away everything which might engender suspicion and distrust of tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.” (My emphasis.)
Lord Denning in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1969) 1 Q.B. 677 at 599 gave the reason why a Judge must always act in such a way as to retain the confidence of the people in the judicial process when he said at page 599 that –
‘The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking: ‘The Judge is biased.’ (My emphasis.)
These principles have been mentioned with approval by this court in A.U. Deduwa & Ors. v. Okorodudu & Ors. (1976) 9-10 SC. 329.
A trial Judge must not, in the conduct of the proceedings before him, either by words or actions, scandalize the Public….”
Coker, J.S.C., had this to say in his judgment at page 22 of the law report –
“His (learned trial Judge) subsequent visit to the chambers of Chief Olunwa further complicated the matter….. His conduct was not only despicable, office as an impartial arbiter between the two contesting parties. It is comforting that his integrity was unquestionable in the matter in that no improper or corrupt motive was ever imputed against him. But enthusiasm on the part of a Judge is hardly consistent with impartiality.” (My emphasis.)
Oputa, J.S.C., made the following remarks in his judgment at pages 25-26 of the law report –
“This visit was in breach of all known rules of judicial conduct, etiquette and decorum…. I think the most important lesson to learn from the facts and surrounding circumstances of this case is that it is a matter of public policy that, as far as possible, judicial proceedings shall not only be free from actual bias or prejudice of the judges but that they shall be free from any suspicion of bias or prejudice. The character of judges is public property.” (My emphasis.)
Further, it is not merely an issue of morality as the learned trial Judge thought when he referred to himself as a practising Christian who would not be swayed by the 1st plaintiff’s “overtures” to him to bend the case in his favour, but, whether the contact tended to interfere with the administration of justice and shook the confidence any reasonable person or officious bystander might have in his impartiality as a Judge in the action. What is at stake in such circumstances is the procedure followed in the determination of a case, and not in the correctness of the decision reached by the trial Judge.
I most respectfully hold that such unwholesome and unholy interaction of a litigant or his agent/proxy with a Judge hearing his case would not only create real likelihood of bias or prejudice on the adjudication of the case by the Judge but might engender suspicion in a reasonable person seised of the facts that there has been an improper interference with the course of justice.
In other words, the test is whether a reasonable or objective/detached person distinct from a person in the subjective position of an aggrieved every, in all the circumstances, might suppose that there was an improper interference with the pure stream of justice, as it is of utmost importance that every litigant should be satisfied that he had an absolutely impartial trial – See Ex Parte McCarthy (1924) 1 K.B. 256 at 256, Whitford Residents and Rates Payers Association v. Madukau City Corporation (1974) 2 N.Z.L.R. followed in Apena v. Bakare (supra), Olue v. Enenwali (1976) 1 ALL N.L.R. 83 at 90, Abiola (supra) at pages 23-34 per Uwais, J.S.C. (later C.J.N.).
Accordingly, I am of the respectful opinion that the said contact between the learned trial Judge and the 1st plaintiff shattered the public confidence in the adjudication of the case by him. The honourable option was for the learned trial Judge to have recused or disqualified himself from the case for another Judge to hear it after disclosing the embarrassing interaction between him and the 1st plaintiff, all the more so the learned trial Judge ended giving judgment to the side that had made “overtures” to him in respect of the suit!
The unusual and avoidable contact between the 1st plaintiff and the learned trial Judge therefore polluted or contaminated the fountain of justice. And, no matter how well the case was handled by the learned trial Judge, the indelible stain on the administration of justice brought about by the regrettable episode robbed the adjudication of public confidence, the bastion of justice vide Abiola (supra) at page 17 where the great Jurist Bello, C.J.N., had this to say –
“In other words, reasonable people would have the impression that the justices were biased and would lose confidence in the administration of justice. Indeed, justice is rooted in confidence and the courts should abstain from doing anything that may erode the root of justice. The courts should enhance confidence in the administration of justice.”
See further Apena v. Bakare (supra) at page 22 per Aniagolu, J.S.C., thus –
“The best approach therefore, in the interest of justice, is that the stream of justice having been sullied, all the muddy waters must be removed in order to make way for the new and fresh waters from the source of the stream, to take over.”
See also Kujore & Ors. V. Otubanjo (1974) 10 S.C. 173 at 181.
In my considered opinion, there is merit in the appeal on issue 9 (supra) which struck at the nerve-centre of the administration of justice with the devastating consequence of rendering the whole trial of the suit by the learned trial Judge not only irregular/unsatisfactory but bad, vitiating the judgment arrived at by him. The appeal is accordingly allowed on issue 9 (supra). It is unnecessary to consider the other issues (supra) as issue 9 (supra) knocks the bottom off the judgment appealed against.
The consequence of allowing the appeal on issue 9 (supra) is to order for a retrial of the suit before another Judge of the High Court of that jurisdiction – See Apena v. Bakare (supra) at page 16 thus –
“The last matter which I would wish to discuss is the order of retrial made by the Court of Appeal which Chief Sowemimo also fiercely attacked. The principles which govern the order of retrial were settled by this Court in Yesufu Abodundu and Ors. V. The Queen (1959) 4 F.S.C. 70 at 73. There the Court stated:
“We are of the opinion that, before deciding to order a retrial, this court must be satisfied
(a) That there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such character that on the one hand the trial was not rendered a nullity and on the other hand the court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to Section 11 (1) of the Ordinance;
(b) That leaving aside the error of irregularity, the evidence taken as a whole discloses a substantial case against the appellant;
(c) That there is no such special circumstance as would render it oppressive to put the appellant on trial a second time;
(d) That the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial;
(e) That to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.”
Although this was a criminal case those principles are applicable to civil matters and principle (a) is particularly relevant, as I shall shortly show, to this case. These principles have been upheld by this Court in Oktafor v. The State (1975) 5 S.C. 13; Ikhane v. C.O.P. (1976) 6 SC 119; Okpara v. The Republic (1977) 4 S.C. 53 and Evorokoromo v. The State (1979) 6-9 S.C. 3.”
See also Ezeoke & Ors. V. Nwagbo & Anr. (1988) 3 S.C.N.J. (Pt. 1) 37 at 49 where the Supreme Court held inter-alia that a retrial can be ordered “on grounds of misbehaviour of the judge.”
Accordingly, I order a retrial of the case before another learned Judge of Ogun State High Court, other than Sonoiki, J., to be designated by the learned Chief Judge of the State. No order as to costs.
ADZIRA GANA MSHELIA, J.C.A.: I was privileged to read in draft the lucid Judgment of my learned brother IKYEGH J.C.A, just delivered. I agree entirely with his reasoning and conclusion. For the same reasons stated in the lead Judgment which I adopt as mine, I too allow the appeal. This is a proper case to be sent for retrial. I abide by the consequential orders made in the lead Judgment, cost inclusive.
MODUPE FASANMI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother J. S. Ikyegh J.C.A.
His lordship has comprehensively dealt with the issues raised in the appeal. I agree with his reasoning and conclusion. I abide by the consequential order ordering a retrial of the case before another learned Judge of Ogun State High Court other than Sonaiki, J. I abide by the order made as to costs.
Appearances
MR. J. A. BADEJO, S.A.N. (with Messrs. P. E. Okotie and A. K. Sanni)For Appellant
AND
CHIEF W. ADETOROFor Respondent
