CHIEF RAIMI A. LAWAL V. SALIMON ELEKO & ORS.
(2010)LCN/3777(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of May, 2010
CA/I/127/2007
RATIO
ACTION: POSITION OF THE LAW AS REGARDS THE DISCHARGE OF JUDICIAL FUNCTION BY A COURT IN RELATION TO THE PLEADINGS OF PARTIES
The position of the law as regards the discharge of judicial function by a court of law vis-a -vis the pleadings of the parties and issues joined thereon was clearly stated in the case of: Commissioner for Works, Benue State Vs Devcon Ltd. (1988) NWLR (83) 407 at 420 thus:
“It is an elementary and fundamental principle for the determination of disputes between parties that the judgment must be confined to the issues raised by the parties. It is clearly not competent for the judge suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him… It is well settled that a plaintiff is bound by the case put forward in (the) writ of summons. … Similarly, applicant will be bound by the prayers in his motion.”
This case was cited with approval by the Supreme Court in: Pavex International Company (Nig.) Ltd Vs I.B.W.A. (2000) 4 SC (Pt.II) 166 at 216; also Okoya Vs Santilli (1990) 2 NWLR (131) 172. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
COURT: ATTITUDE OF COURT TOWARDS ITS JUDGMENT
The dictum of the Supreme Court in the case of Bayol Vs Ahemba (1999) 10 NWLR (623) 381 cited by learned counsel for the appellant, is most instructive on the issue. The Court held at page 391 – 392 G – B:
“The law remains inviolate that the judgment of a court must confine its inquiry to the determination of issues properly raised and canvassed before it. The Court, be it trial or appellate court, must be wary to enter into the arena in the controversy between the parties by projecting the case of one of the parties rather than maintaining the equilibrium of impartiality as arbiter. Such an appearance in the arena by the court is a direct signal and invitation to miscarriage of Justice.”
(Emphasis supplied)
The Court held further at pages 392 – 393 H – A:
“It has been said time without number that the judgment of a court must demonstrate in full a dispassionate consideration of the issues raised and canvassed before it. This duty of the court is imperative otherwise it will be extremely difficult for a party whose case has not been accorded adequate and full consideration to accept that Justice has been done to him”.
In Sagay Vs Sajere (2000) 4 SC (Pt.1) 187 at 193 lines 22 – 30 the Supreme Court held:
“The decision in a case must be based on the evidence and on reason. It should not be based on the intuition of the Judge or conjecture or what the Judge untrammeled by the evidence, conceives to be a fair conclusion. When a Judge who/guided by the pleadings, has heard evidence in a case but has in its judgment failed to give a fair summary of the cases presented by the parties and to summarise the evidence and make findings of fact on the various material issues raised in the pleadings, he cannot be seen to have discharged his judicial function properly”. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
Justice
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
CHIEF RAIMI A. LAWALAppellant(s)
AND
1. SALIMON ELEKO
2. CHIEF DAVID FOLARANMI
(President, Ilero Grade “C” Customary Court)
3. CHIEF D.S. ADENIYA
(Member Ilero Grade “C” Customary Court)
4. PRINCE OLULADE ALABI
(Member Ilero Grade “C” Customary Court)Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Oyo State, Saki Judicial Division delivered on 30th November, 2006 granting an order of prohibition against the 2nd – 4th respondents on grounds of likelihood of bias pursuant to an application filed by the 1st respondent.
The facts that gave rise to this appeal as can be gathered from the record of appeal and the appellant’s brief of argument are as follows: The appellant instituted an action against the 1st respondent herein before the Ilero Grade ‘C’ Customary Court, Ilero, Kajola Local Government Area of Oyo State for a declaration of title to 10 acres of land situated at Alaparun Area of Ilero, Kajola Local Government Area of Oyo State.
The 1st respondent who was the defendant in the suit before the Customary Court, upon being served with the processes, filed a motion on notice challenging the jurisdiction of the court to entertain the suit. He also filed a motion ex-parte dated and filed on 15/3/2006 before the Oyo State High Court sitting at Saki, for leave to apply for an order of prohibition against the 2nd – 4th respondents (the President and members of the aforesaid Customary Court) prohibiting them from further adjudicating and or determining the case No. ICC/21/06: Chief Raimi A. Lawal Vs Salimonu Eleeko pending the determination of the motion on notice. The grounds for the application were:
a. Lack of jurisdiction;
b. Failure to comply with the rule of fair hearing; and
c. Likelihood of bias.
Apart from challenging the jurisdiction of the Court, the 1st respondent averred in his affidavit in support of the motion ex-parte that the 2nd – 4th respondents refused to fix his application challenging the court’s jurisdiction for hearing; that they had shown special interest in the case of the appellant (4th respondent before the High Court) and had even taken over the case of the appellant against him. The motion ex-parte, supporting affidavit and other processes annexed thereto are at pages 5 – 20 of the record.
The applicant was granted leave accordingly on 20/3/06.
The motion on notice dated 20/3/06 and filed on 22/3/06 was argued on 13/11/06 and ruling reserved till 30/11/06. In a considered ruling delivered on 30/11/06 the learned trial Judge found no merit in grounds (a) and (b) of the application. In respect of ground (c), His Lordship held at page 67 of the record:
“In the instant case, the mere fact that the appellant has challenged the jurisdiction of the lower court and has accused them of denying him fair hearing does not show likelihood of bias on the side of the 1st to 3rd respondents”.
His Lordship however went on to make certain observations regarding the conduct of the 1st respondent and the 2nd – 4th respondents in the courtroom and within the court premises, which in his opinion showed undue familiarity. It was on this basis that he held that there was indeed likelihood of bias against the 1st respondent and granted the order of prohibition sought.
The appellant was dissatisfied with the decision and filed a notice of appeal dated 11/12/06 and filed on 13/12/06 containing one ground of appeal. In compliance with the rules of this Court, the appellant filed his brief of argument, which is dated and filed on 13/9/07. The brief was settled by Adewale Adegoke Esq. All the respondents were duly served with the processes in this appeal but did not file any process. The appellant, by a motion on notice dated 12/2/08 and filed on 22/2/08 sought for an order for the appeal be heard on the appellant’s brief alone, the respondents having failed to file any brief. The application was granted on 9/7/08. When the appeal was heard on 22/3/2010, Mr. Adewale Adegoke adopted and relied on the appellant’s brief and urged the court to allow the appeal. The record of the court revealed that all the respondents were duly served with hearing notices against that date. They were absent and unrepresented by counsel.
The appellant formulated the following issue for determination from the single ground of appeal:
“Whether or not the trial Judge having Found from pleadings of parties, evidence at trial and submission of Counsel that all the grounds of the 1st respondent’s application failed, can subsequently found the success of the 1st respondent’s case on an extraneous event not covered by evidence of parties or on evidence fished for and/or obtained by the court.”
In support of this issue, learned counsel for the appellant submitted that the facts relied upon by the 1st respondent in his affidavit in support of the application for an order of prohibition centred on events preceding and immediately after the institution of Suit No. ICC/21/2006 at the Ilero Grade ‘C’ Customary Court. He noted that after the court had found no merit in grounds (a) and (b) of the application, it held with regard to prayer (c) on the issue of bias that the mere fact that the applicant had challenged the jurisdiction of the court and had accused the members of denying him fair hearing did not show likelihood of bias by the 1st – 3rd respondents (2nd- 4th respondents in this appeal). He referred to page 67 of the record where the learned trial Judge however proceeded to conclude that there was likelihood of bias based on the His Lordship’s observation of the interaction between the 1st respondent and the 2nd – 4th respondents both in the courtroom and within the court’s premises. He submitted that the parties did not join issues either in their affidavits or in the arguments of their respective counsel on the closeness and/or affinity of the appellant with the 2nd – 4th respondents.
He argued that the court must confine itself to issues raised by the parties in their pleading and evidence before the court. He submitted further that the court is not entitled to make a case for either party suo motu and proceed to give judgment on the case as formulated by the court. He relied on: Nyagba Vs Mbahan (1996) 9 NWLR (471) 207 at 227; Bamgboye Vs Olanrewaju (1991) 4 NWLR (184) 132 at 151- 152 E – F; Bayol Vs Ahemba (1999) 10 NWLR (623) 381 at 391 G. On the duty of the court not to rely on the Judge’s intuition, conjecture or what the Judge considers to be a fair conclusion outside the evidence adduced before him, he relied on: Sagay Vs Sajere (2000) 6 NWLR (651) 360 at 370; Adeniji Vs Onagoruwa (2001) 1 NWLR (639) 1 at 31. He submitted that in the instant case the learned trial Judge descended into the arena and became emotionally involved in the case to the extent of arguing the 1st respondent’s case for him. He referred to the case of Bayol Vs Ahemba (supra) at 391 – 392 G – B & 392 – 393 H – A where the Supreme Court deprecated such conduct.
He argued that a cause of action is complete at the time a plaintiff decides to approach the court for a determination of his legal right and that the success of an action should not depend upon a contingency. He contended that the 1st respondent could not have envisaged that the appellant and the 2nd – 4th respondents would sit together in court or show familiarity with each other as alleged by the learned trial Judge. He submitted that the success of his case could not have been contingent upon an event not contemplated by him. He urged the court to allow the appeal.
The position of the law as regards the discharge of judicial function by a court of law vis-a -vis the pleadings of the parties and issues joined thereon was clearly stated in the case of: Commissioner for Works, Benue State Vs Devcon Ltd. (1988) NWLR (83) 407 at 420 thus:
“It is an elementary and fundamental principle for the determination of disputes between parties that the judgment must be confined to the issues raised by the parties. It is clearly not competent for the judge suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him… It is well settled that a plaintiff is bound by the case put forward in (the) writ of summons. … Similarly, applicant will be bound by the prayers in his motion.”
This case was cited with approval by the Supreme Court in: Pavex International Company (Nig.) Ltd Vs I.B.W.A. (2000) 4 SC (Pt.II) 166 at 216; also Okoya Vs Santilli (1990) 2 NWLR (131) 172.
With this background in mind, it is apposite at this stage to consider the averments in the 1st respondent’s affidavit alleging bias against the 2nd – 4th respondents. The relevant paragraphs are paragraphs 23 and 24 at pages 26 and 27 of the record. The paragraphs are reproduced hereunder:
“23. That throughout the commencement of case No. ICC/21/2006 the 1st, 2nd, 3rd and 3rd respondents had shown special interest in the case of the 3rd respondent.
24. That the 2nd and 3rd respondents took over the case of the 4h respondent against me.”
The 1st respondent annexed a certified copy of the proceedings for 13th February, 2006 before the Customary Court as Exhibit 4 (pages 35 – 37 of the record). The proceedings relating to the testimony of the 1st respondent (who was the defendant before the Customary Court) are as follows:
“Defendant: The defendant sworn to (sic) on Holy Quran and states as follows: “I am a farmer and I am a native of Ayetoro- Oke in Kajola Local Government in Oyo State of Nigeria.
What I want to say is that claim of ownership of 10 acres of land by Chief R. Aderoju Lawal is not true. Chief Aderoju Lawal called Ajeji did not gave (sic) my father 10 acres of land.
Eleyinpo Ladipo gave my father a land since that time I lived together with Eleyinpo. Since I know the plaintiff I did not gave (sic) him any interest on the land. I usually gave Eleyinpo interest every year. But about five months ago Ajeji usually give trouble on that land. I usual/y report Chief Lawal Ajeji to Eleyinpo about this land but Eleyinpo told me that this civil summons is a false (sic). What I know is the Eleyinpo is the one who gave us land. That is what I want to say”.
Court: Do you have a witness?
Answer: Yes, I have a witness.
Question by Plaintiff: When you saw a paper wrote to you about five times do you came to me? (sic).
Answer: I don’t came (sic) to you because you are not a friend.
Question by the plaintiff: Do you know that all your neighbouring (sic) know that we are the owner [of] the land situated at Alaparun.
Answer: Not all. Eleyinpo gave us the land.
Question: When you know that Eleyinpo gave you a land do you know what he did not like.
Answer: Yes, I know.
Question: Why do you plant local beans called ‘Otiili’ ?
Answer: I don’t plant local beans.
Court: What is the name of your own land?
Answer: Our own land is called Eeleko.
Court: Did you know that they called the place Alaparun?
Answer: I did not know.
Court: Do you have a witness?
Answer: Yes, I have a witness.
Court: What is the name of your witness?
Answer: The name of my own witness is Alhaji Lamidi Ayisa.”
At this stage the case was adjourned to 6th March, 2006.
The above proceedings and the averments in the supporting affidavit were the material upon which the court was expected to make a finding of bias against the 2nd-4th respondents.
At page 66 of the record, while considering ground 3 of the application the learned trial Judge observed thus:
“Ground 3 on which this application is brought is likelihood of bias. The argument of the applicant’s counsel is that if the case is heard by the 1st- 3rd respondents, there will be hostility towards the applicant, which hostility is likely to lead to bias against him”.
After referring to an authority on the meaning of ‘likelihood of bias’, His Lordship held at page 67 of the record that the fact that the applicant had challenged the jurisdiction of the lower court and accused them of denying him fair hearing was not enough reason to make a finding of likelihood of bias against the 1st – 3rd respondents. This was a finding based on the affidavit evidence before the court. The Court however went further and held:
“However, the fact that the 1st to 3rd respondents are likely to be biased against the applicant and in favour of the 4th respondent was clearly demonstrated before this Court. All the respondents were present in court. Apart from the fact that the 1st to 3rd respondents and the 4th respondent who is the plaintiff in the suit before the lower court sat together and constantly conferred with each other during the arguments and submissions of both counsel before this court, I notice at the conclusion of the proceedings that all the respondents left the courtroom together at the same time and were discussing with each other.
I called the attention of learned counsel for the 4th respondent to this unwholesome act. They were called back to the courtroom where I talked to them to desist from such practice. To my amazement, all the respondent’s right at the gate of the court premises, which is a very small premises entered the same vehicle, a Peugeot Station Wagon car and drove away. In all conscience, I cannot imagine a better demonstration of likelihood of bias. In the face of such cordiality and interaction between a litigant and the adjudicators even right in the face of this court, I cannot see how a reasonable man will go away not thinking that the 1st to 3rd respondents are likely to be biased in favour of the 4th respondent. There is no way anyone will have confidence in whatever judgment the 1st to 3rd respondents may hand down.
“It is my view and I so hold that there is real likelihood of bias in this case and the 1st to 3rd respondents cannot in the interest of Justice be allowed to continue to adjudicate on the suit before them…
For this reason this application succeeds on ground three which is likelihood of bias.
The President and Members of Ilero Grade ‘C’ Customary Court are hereby prohibited from further adjudicating and/or determining Suit No. ICC/21/2006 ‘Chief Raimi A. Lawal Vs Salimonu Eleko now pending before them”.
(Emphasis mine).
There can be no doubt that the above finding was not based on any of the processes before the court, neither the supporting affidavit nor the exhibits annexed thereto. What is evident from the record is that the learned trial Judge made personal observations about the parties and made those observations the basis for his decision. As noted from the cases of: Commissioner for Works, Benue State Vs Devcon Ltd. (supra), Pavex International Company (Nig.) Ltd Vs I.B.W.A. (supra) and Okoya Vs Santilli (supra), such conduct is in clear violation of the duty of the learned trial Judge as an impartial arbiter. His Lordship in fact made no reference to the affidavit and documentary evidence before him. In the case of: Ogundele & Anor. Vs Agiri & Anor. (2009) 12 SC (Pt.1)135 at 152 line 34 to 153 line 15 and at 171 line 34 to 172 line 31, the Supreme Court held that it is not the responsibility of the court to embark upon ‘cloistered Justice’ by making enquiry into the case outside the Court because a Judge is an adjudicator not an investigator. It was also held in that case that a court should not set up for parties a case different from the one set up by the parties themselves in their pleadings and/or on their evidence.
In the instant case, the contention of the 1st respondent before the lower court was that there was likelihood of bias against him by the 2nd – 4th respondents because he had challenged the court’s jurisdiction to entertain the appellant’s claim and because he had accused the court of denying his fundamental right to fair hearing. He made no mention of any familiarity between the appellant and the 2nd – 4th respondents.
The court considered the reasons adduced by the 1st respondent and held that they were not sufficient to warrant a finding of likelihood of bias. The matter ought to have ended there. The 1st respondent, who might also have observed certain familiarity between the appellant and the 2nd – 4th respondents, could have filed a further affidavit to bring the fact to the court’s attention. By making the observation suo motu and basing his findings thereon without affording the parties a hearing on the issue, the learned trial Judge descended into the arena of conflict and became covered in the dust therefrom. He put himself in the position of a witness in the case. He went to the extent of identifying the make of the vehicle in which the parties left the court premises. The dictum of the Supreme Court in the case of Bayol Vs Ahemba (1999) 10 NWLR (623) 381 cited by learned counsel for the appellant, is most instructive on the issue. The Court held at page 391 – 392 G – B:
“The law remains inviolate that the judgment of a court must confine its inquiry to the determination of issues properly raised and canvassed before it. The Court, be it trial or appellate court, must be wary to enter into the arena in the controversy between the parties by projecting the case of one of the parties rather than maintaining the equilibrium of impartiality as arbiter. Such an appearance in the arena by the court is a direct signal and invitation to miscarriage of Justice.”
(Emphasis supplied)
The Court held further at pages 392 – 393 H – A:
“It has been said time without number that the judgment of a court must demonstrate in full a dispassionate consideration of the issues raised and canvassed before it. This duty of the court is imperative otherwise it will be extremely difficult for a party whose case has not been accorded adequate and full consideration to accept that Justice has been done to him”.
In Sagay Vs Sajere (2000) 4 SC (Pt.1) 187 at 193 lines 22 – 30 the Supreme Court held:
“The decision in a case must be based on the evidence and on reason. It should not be based on the intuition of the Judge or conjecture or what the Judge untrammeled by the evidence, conceives to be a fair conclusion. When a Judge who/guided by the pleadings, has heard evidence in a case but has in its judgment failed to give a fair summary of the cases presented by the parties and to summarise the evidence and make findings of fact on the various material issues raised in the pleadings, he cannot be seen to have discharged his judicial function properly”.
In light of the authorities referred to above, I am of the respectful view that the learned trial Judge was in error to have based his decision on his personal observation of interaction between the parties, which was extraneous to the material before him. The sole issue for determination in this appeal is accordingly resolved in favour of the appellant. The appeal succeeds and is hereby allowed.
The ruling of the High Court of Oyo State, Saki Judicial Division in Suit No. HSK/MISC.3/2006 delivered on 30th November, 2006 is hereby set aside. Suit no. ICC/21/2006: Chief Raimi A. Lawal Vs Salimonu Eeleko & Anor. is hereby remitted to the Ilero Grade ‘C’ Customary Court for continuation of trial. There shall be no order for costs.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the judgment just delivered by my brother Kekere-Ekun (J.C.A.) and I agree with the reasoning and conclusion reached. The appeal succeeds and is allowed by me. I abide by the orders contained in the lead judgment and make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in advance the lead Judgment delivered by my learned brother, K. M. O. Kekere-Ekun, J.C.A. I agree with the reasonings and conclusions reached in holding that the appeal has merit and I also allow same.
I also abide by the order awarding no costs.
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Appearances
ADEWALE ADEGOKE ESQFor Appellant
AND
Respondents absent and unrepresented by counsel
although duly served with hearing notice.For Respondent
