CLETUS MBAJI V. M.O.S. AMOBI
(2011)LCN/4693(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of July, 2011
CA/E/265/2007
RATIO
RESPONDENT’S ISSUE: EFFECT OF AN ISSUE FORMULATED BY A RESPONDENT OUTSIDE THE APPELLANT’S GROUNDS OF APPEAL
The law is that any issue formulated by a Respondent outside the Appellant’s grounds of appeal is incompetent, and liable to be struck out – see Ojegbe v. Omatsone (1999) 6 NWLR (Pt. 608) 591 SC. PER AMINA ADAMU AUGIE, J.C.A
BIAS: MEANING OF THE WORD “BIAS” IN RELATION TO A COURT OR TRIBUNAL
As Kalgo, JSC, explained in Azuokwu v. Nwokanma (2005) 11 NWLR (Pt.937) 537 SC – “(Bias) in relation to a Court or Tribunal, is an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules and the likelihood of bias may be drawn or surmised from many factors such as corruption, partisanship, personal hostility, friendship, group membership or association and so on, towards’ or involving a particular party in a case”. PER AMINA ADAMU AUGIE, J.C.A
LIKELIHOOD OF BIAS: FACTORS THAT MAY GIVE RISE TO A “LIKELIHOOD OF BIAS”
The term “likelihood of bias” is incapable of exact definition since circumstances giving rise to it may vary from case to case, but it means at least “a substantial possibility of bias”, which may arise because of personal attitudes, personal hostility, personal friendship, family relationship, employer relationship, partisanship in relation to the issues at stake, and a whole range of other circumstances from which such an inference bias may be drawn – see L.P.D.C. V. Fawehinmi (1955) 2 NWLR (Pt. 7) 300, Aguomba v. Uwais (2007) All FWLR (Pt. 346) 440, Womiloju & Ors V. Anibere & Ors (2010) LPELR-SC.211/2002, where per Adekeye, JSC, further explained – “Other factors which could show a real likelihood of bias are: – (1) Hostility of strong personal animosity towards a party. (2) Personal friendship, family or professional relationship. A bias must demonstrate a real likelihood of an operative prejudice whether conscious or unconscious. There must be cogent evidence as opposed to mere vague suspicion to support, an intention of real likelihood of bias”. PER AMINA ADAMU AUGIE, J.C.A
BIAS: TEST OF LIKELIHOOD OF BIAS; WHAT A RESPONDENT MUST SHOW IN ORDER TO PROVE THAT A JUDGE WAS BIASED
…the test of real likelihood of bias is that there must be circumstances from which a reasonable man would think it likely or probable that the decision maker would or did in fact favour one side unfairly – see Agbiti V. The Nigerian Navy (2011) LPELR-SC.275/2008, Abalaka v. Min. of Health (2006) 2 NWLR (Pt. 963) 105, Azuokwu v. Nwokanma (supra). See also The Secretary, Iwo Central L.G. V. Talatu Adio (supra), relied on by Iguh, J. wherein the Supreme Court per Onu, JSC held as follows- “- – The compliant of BIAS is hinged on the marital relationship of the learned trial Judge to the Governor who signed the instrument into law and nothing else, and since relationship per se generally does not disqualify a Judge, in order to succeed the Respondent must prove that – (i) The personal relation is a party to the action. (ii) The personal relation must have interest in the subject matter to be litigated upon. (iii) The interest is not too remote or too direct but capable of affecting the judicial mind of the Judge. (iv) There is a departure from the standard of even handedness of justice or circumstances from which a reasonable man would think it likely or probable that justice has not been done in the case or the Chairman as the case may be, would or did favour one side unfairly at the expense of the other. PER AMINA ADAMU AUGIE, J.C.A
BIAS: WHAT AN APPELLATE COURT MUST TAKE IN TO CONSIDERATION IN DETERMINING WHETHER OR NOT THERE WAS A REAL LIKELIHOOD OF BIAS
It is well settled that in considering whether or not there was a real likelihood or bias, the Court does not look at the mind of the trial Judge himself to see if there was a real likelihood that he would or did in fact favour one side at the expense of the other. The Court rather looks at the impression created in the minds of “reasonable people” who were sitting in Court to observe the proceedings. If right thinking people sitting in Court would think that in all the circumstances, there was a real likelihood of bias on his part then his decision cannot be allowed to stand. But mere surmise or conjecture is clearly insufficient to establish real likelihood of bias. – – In the same vein, there must be reasonable evidence to satisfy the Court that there was bias or real likelihood of bias against a trial Judge and mere vague suspicion of unreasonable people, conjecture or surmise is clearly insufficient and should not be made a standard for the establishment of such grave issues”. In other words, in determining likelihood of bias, the Court does not look at the mind of the Judge himself or at whoever sits in a judicial capacity. It does not look to see if there was likelihood that he would, or did favour one side at the expense of the other. The Court looks at the impression that would be given to other people. Even if he was as impartial as he could be, if right minded people think that in the circumstances there was a real likelihood of bias on his part, he should not sit. Even if he does sit, his decision cannot stand because ‘Justice is rooted in confidence, and confidence is destroyed when right-minded people go away thinking that the Judge was biased” – see Womiloju & Ors V. Anibere & Ors (supra), Abiola v. FRN. (1995) 7 NWLR (Pt.405) 1, Agbiti V. Nigerian Navy (supra), Abalaka v. M.O.H. (supra), L.P.D.C. V. Fawehinmi (supra). The main thing is that the decision of whether or not there was bias or real likelihood of bias turns on the question of the particular facts and circumstances of each and every case. PER AMINA ADAMU AUGIE, J.C.A
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
CHUKWUDUMEBI SAMUEL OSEJI Justice of The Court of Appeal of Nigeria
Between
CLETUS MBAJI Appellant(s)
AND
M.O.S. AMOBI, ESQ. Respondent(s)
AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment): This is the second interlocutory appeal against another Ruling of Iguh, J., in the same Suit No. O/292/90 filed at the High Court of Anambra State. Appeal No. CA/E/264/07, was hinged on the interlocutory injunction that he granted in favour of the Respondent, while this one is based on his refusal to disqualify himself from adjudicating in the matter, because his elder Brother, who was then a Justice of the Supreme Court, was the Respondent’s counsel in the case before he was elevated to the bench. The said Suit was instituted in 1990, and traversed the courtrooms of many High Court Judges before it landed in the courtroom of Iguh, J., where it came up for the first time on the 9th of January 2006. Hearing commenced on the 7th of March 2006 with the Respondent, who was the Plaintiff, testifying as PW1 . He stated as follows in his evidence in chief –
“The land my half-brother, who is one of the beneficiaries in the Will of my late father, was trying to sell – – was No. 9 Mission Road Onitsha, the subject matter of this suit and the prospective buyer was the Defendant. When I learnt of this – in 1975, I was serving as a Diplomat at the Nigerian High Commission London and – I retained the services of a practicing lawyer, Anthony Iguh, Esq. (as he then was) requesting him to put up a warning against the sale in the newspaper naming in particular the prospective buyer. The prospective buyer is now the Defendant in this suit. Anthony Iguh Esq. then wrote a letter to me forwarding the notice of the caveat emptor he made in the newspaper as instructed him, having carried out my instruction”. The publication in the Newspaper called “Mirror”, made by Anthony Iguh, Esq.(as he then was), was admitted in evidence as Exhibit B. It reads –
WARNING NOTICE
ESTATE OF LATE CHIEF S. N. AMOBI OF OGIDI
The public in general and Messrs. Nwokolo of Enugwu-Uku and Ezembaji of Achina in particular are warned that the under-mentioned are the undisputed property of the late Samuel Nnabia Amobi of Ogidi, property to wit –
(6 Properties listed)
The legal estate in the aforesaid property is vested on the Hon. Justice Allagoa and Madam J. Okobi, the trustees of the last WILL of the said late S.N. Amobi. Anyone who transacts any dealing of whatever kind in respect of the said property otherwise than with the said trustees does so at his or her own risk and such transaction is null and void.
DATED AT ONITSHA THIS 6TH DAY OF FEBRUARY, 1976
Anthony I. Iguh & Co.
‘Solicitors for the Estate of late Chief S.N. Amobi”
When the Respondent, as PW1, continued his testimony, he also said –
“On my visit to Nigeria, I realized that the Defendant was on the process of commencing construction on the land – – – Mr. Iguh (as he then was) upon my instruction instituted an action against the Defendant for trespass to the land.”
The Respondent ended his evidence in chief on the 15th of March 2006, and the suit was “adjourned to 16/3/2006 for cross-examination of PW1”. On the said 16/3/2006, a letter written by G. E. Ezeuko, Esq., praying to withdraw his representation for the Appellant, who was the Defendant was brought to the attention of Iguh, J., and he ruled thereon as follows-
“In the first place, an application of this nature is usually done by the counsel orally in the open Court and in the presence of the party he is representing to enable him to be able to decide on what to do – – – It is not an application that could be done by a letter written by a counsel to the Asst. Chief Registrar asking him (ACR) to bring it to the notice of the Court. This is, obviously, not a good practice. This application having been done in this manner and without the Defendant being present in Court, I really wonder whose duty it is, if the application is granted to inform the Defendant that his counsel has withdrawn from the matter. What is more, the reason given by learned counsel – – for their withdrawal is that they have not seen the Defendant for over a year now. From the records, learned counsel for the Defendant filed two separate motions on notice in this suit dated 13/2/06 and 20/2/06 and 10/3/06 and filed on the same date (10/3/06) respectively. It is worthy of note that the Defendant himself signed the affidavits in support of the two applications. This, therefore, shows that the Defendant has been communicating with learned counsel for the Defendant and has in fact been seeing him till this year. In the circumstance, the application for withdrawal of learned counsel for the Defendant is hereby refused. In the overall interest of justice, this suit will be adjourned to a further date to enable the defence cross-examine PW1 and for continuation of hearing (adjourned to 29/3/06 and 30/3/06)”.
On the said 29th March 2006, O.R. Ulasi Esq. appeared for the first time and informed the Court that he had just been briefed by the Appellant. The matter was then adjourned to the next day, the 30th of March 2006. The record of the proceedings of that day [30/3/06], reads as follows –
‘M.O.S. Amobi, Esq. appears in person. O. R. Ulasi, Esq., for the Defendant. Mr. Ulasi submits that this is a proper case for this Court to decline jurisdiction to hear the matter on the ground that Hon. Justice A.I. Iguh, JSC Rtd had acted for the Plaintiff with respect to the subject matter in dispute as counsel for the Plaintitf before his elevation to the Bench. He further submits that the Plaintiff in his evidence confirms that A.I. Iguh, Esq. (as he then was) acted for him as counsel by virtue of which he did the following –
(1) lssued a warning notice in the Nigerian Mirror Newspaper of 17/2/76.
(2) Instituted an action for trespass against the Defendant in Suit No. O/33/76.
He posed a question – Would this Court preside over a matter in which Hon Justice AI. Iguh J.S.C. Rtd., acted as a counsel before his elevation?
He submits that the Defendant is not questioning this Court’s integrity and the Defendant is not also impugning the integrity of this Court and that of Hon. Justice A.I. Iguh, JSC, Rtd. He further submits that the Defendant do not mind where this suit is heard and determined in the High Court of Anambra State, but he feels particularly disturbed of his findings as to the relationship between Hon. Justice A.I. Iguh, J.S.C. Rtd., and this Court. On likelihood of bias, he cited the case of Madukolu V. Nkemdilim (1962) 2 SCNLR 341 at 348, and PDP V. Kwara State I.E.C. (2005) 5 NWLR (Pt. 948) 230 at 268. He prays the Court on the above circumstance to decline jurisdiction to hear and determine this suit and transfer the suit back to the Chief Judge of Anambra State for reassignment to another Court.
Mr. Amobi who appears in person applies for an adjournment to enable him reply to the argument raised by defence counsel.
Court: On agreement of both counsels the suit is adjourned to 10th April 2006-“.
The Respondent replied on 11/4/06; Mr. Ulasi replied on points of law on 24/4/06; and Iguh, J. delivered his Ruling on 24/5/06, wherein he held –
“- – The issue of likelihood of bias raised by the Defendant is based on the relationship between Iguh, JSC and this Court. There is no doubt that the Hon. Justice Anthony l. Iguh, CON, JSC is the eldest brother of this Court, but I cannot sec in the wildest imagination how that relationship will affect the judicial mind of this Court. I must state clearly that Iguh, JSC is not a party in this suit – – All that he did was to issue as a counsel, a warning notice in the Nigerian Mirror of 1st May, 1975 and institute an action Suit No. O/33/76 for the Plaintiff – – in 1975 and 1976 respectively, long before this action was instituted. Both himself – – and his Chambers completely ceased to act for the Plaintiff in respect of the subject matter in the suit in 1976 and did not act for plaintiff at all – – It is not also the case of the Defendant that this Court was at any time a counsel to any of the parties in respect of the subject matter in the suit or any matter at all, or that there exists personal relationship between this court and any of the parties in the suit. There is no allegation or even a suggestion of actual bias nor want of good faith against this Court”.
He elaborated on the law and authorities on the subject, including – Paul Yabugbe V. C.O.P. (1992) 4 NWLR (Pt.234) 152; The Secretary, Ilwo Central L.G. & Ors V. Taliatu Adio (2002) 8 NWLR (Pt. 667) 115 at 136; Buhari V. Obasanjo (2002) 2 NWLR (Pt. 910) 256; Jeremiah Ukoh & 2 Ors V. Ameh Abuh (1988) 3 NWLR (Pt. 85) 696; PDP V. Kwara State I.E.C. (2005) 5 NWLR (Pt. 948) 230; and then concluded as follows –
“I entirely agree with the Plaintiff – – that there is no bias from this Court in this suit and that there is no basis for bias. I cannot imagine any reasonable man drawing the inference from the circumstances of this case that there is a real likelihood of bias on the part of this Court in presiding over this case. What is more, from the state of pleadings, this case will be determined only by documentary evidence. It is not a matter of, I believe or I do not believe. It is not also a matter of demeanour or witnesses. I can find no circumstances from which a right thinking person sitting in court to observe the proceedings would think it likely or probable that there is bias or a real likelihod of bias on the part of this Court. As there are no other disqualifying features raised by the Defendant for the Court to consider on whether this Court should decline jurisdiction or not to entertain the suit or that have been shown to attach to this Court, I find myself unable to accede to preliminary objection raised by the Defendant. In the final result and for all the reasons that I have given above the objection raised by the Defendant is hereby overruled.
Dissatisfied with the Ruling, the Appellant appealed to this Court with a Notice of Appeal containing three Grounds of Appeal. By the Rules of this Court, parties are to file written briefs in this Court “being “a succinct statement of his argument in the appeal” and the brief of argument must “contain what are, in the Appellant’s view, the issues arising in the appeal” – see Order 18 rules 2 & 3(1) of the Court of Appeal Rules, 2011 (Order 17 rules 2 & 3(1) of the repealed Court of Appeal Rules, 2007). Order 18 rule 4(2) of the same Rules (Order 17 4(2) old Rules) reads –
“The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also conform to Rule 3(1), (2), (3), (4) and (5) of this Order”.
The Appellant filed his brief of Argument prepared by O.R. Ulasi, Esq. and he formulated only one issue for Determination therein, that is –
“Whether on the facts, the learned trial Judge should have disqualified himself from hearing suit No. 0/292/90.
On his part, the Respondent, who is a legal practitioner, came up with an unusual procedure that is unknown to our Rules. The Appellant had filed separate Notices of Appeal against the two Rulings he appealed against, but the Respondent prepared one brief of argument for the two appeals, and distilled the same three issues for Determination from two Grounds of Appeal in the other Notice of Appeal against the Ruling on injunction, and from the three Grounds of Appeal in respect of this appeal, that is –
A. Whether in the light of the facts of this case, the trial Court has become functus officio even before this Hon. Court considers and decides whether to grant a stay of proceedings of the trials at this interlocutory stage.
B. Having regard to –
(i) Various judicial pronouncements and decisions of this Hon. Court and the Supreme Court against interlocutory appeals;
(ii) the unusual delays in completing this 1990 suit and the many de novo proceedings it experienced;
(iii). While and during this long period the appellant heartlessly continued to collect rents from the appellant’s property.
Whether this interlocutory appeal was not commenced mala fides by the appellant with the sole purpose of delaying further proceedings at the trial Court.
C. Whether in the fact of the facts of this case, the trial Judge can be accused of bias merely by virtue of the fact that he is the younger brother of a retired Supreme Court Judge who, as a practicing counsel issued a public warning notice against the Appellant to the effect that the land in issue was not for sale.
Apart from issue C, the other issues have no relevance or connection to the Grounds of Appeal filed by the Appellant against the Ruling on bias. It appears that the Respondent did not do his homework well because his issues A and B, and the arguments thereon relate to an Application for stay of further proceedings that the Appellant did not appeal against.
The law is that any issue formulated by a Respondent outside the Appellant’s grounds of appeal is incompetent, and liable to be struck out – see Ojegbe v. Omatsone (1999) 6 NWLR (Pt. 608) 591 SC. In this case, the Respondent’s issues A and B have no connection whatsoever to the decision appealed against, and they are, obviously, not based on or related to any of the three Grounds of Appeal raised by the Appellant. The two issues are, therefore, incompetent, and are hereby struck out.
The Respondent may have adopted an unusual procedure in filing one brief to cover two separate appeals, however, it is my view that it will be in the interest of justice to hear him out, and his issue C is relevant. Even so, I will adopt the Appellant’s issue in dealing with this appeal.
It is the Appellant’s contention that from the facts of this case, Iguh, J. should have disqualified himself from hearing the suit, and that he applied the wrong test i.e. what he himself would have thought in the situation. The Appellant further argued as follows at page 718 of his brief-
“The reasonable man would have thought that the cards are stacked high in favour of the Respondent. He sees the Respondent testifying before the younger brother of a man who was his lawyer in the past. What is the guarantee that the lawyer, now a retired Justice of the Supreme Court could not, and in fact did not issue standing orders to his younger brother the learned trial Judge, to give Judgment to the Respondent? If A.I. Iguh had done the matter as a lawyer would he not have worked hard to win the case? But now is the situation not made simpler when he could work behind the scene and speak to the younger brother (the learned trial Judge) to see that the Respondent did not lose the case? The Appellant’s mind would simply be eaten up by these questions. Any Ruling/decision against him would certainly be excused by the relationship between the trio of (a) A.I. Iguh JSC (Rtd.)
(b) the Respondent (c) the learned trial Judge J.C. Iguh. What would a man on the street say to all this? The situation will be a fertile ground for the thought to thrive that the elder Iguh must have spoken to the younger brother to deliver Judgment for his former client. It is a dangerous situation”.
It was submitted that there is no hard and fast rule regarding situations, which taken together may amount to likelihood of bias, and warrant a Judge disqualifying himself from hearing a matter, citing The Secretary, Iwo central L.G. V. Adio (supra); Yabugbe V. C.O.Pp. (supra), d Metropolitan Properties V. Lannon (1969) 1 Q.B. 577; and that none of the cases reviewed by Iguh, J. had the common feature in this case, which is – the relationship between A.I. Iguh JSC (Rtd.), J.C. Iguh, J., M.O.S. Amobi, and Chief Cletus Mbaji. It was further submitted that –
“If the situation were to be as trivial as the learned trial Judge made it, then what will happen if any of the party decides to call Hon. Justice A.I. Iguh JSC (Rtd.) as a witness? Issues were joined on the role A.I. Ilguh Esq. (as he then was) played in the estate, especially as regard issuing a Notice in 1976; taking out a Court action for the respondent, etc. it is ever becomes the lot of Hon. Justice J.C. iguh to ascribe credibility, will any reasonable man hold him to act fairly in assessing the credibility of his elder brother?
The Respondent, however, countered that there is no evidence before the trial Court that Iguh, JSC is a party to the case or has any interest in the outcome of the case; and that relationship per se does not disqualify a Judge from conducting the case, citing The Secretary, Iwo Central L.G. V. Adio (supra) and Yabugbe V. C.O.P. (supra), wherein it was held that the question of bias was raised to becloud the real issue in controversy.
He then concluded as follows at page 8 of his said brief –
“It follows therefore that a mere vague suspicion of unreasonable people, conjecture or surmise is clearly insufficient and should not be made a standard for the grave allegation of bias against a trial Judge. It is more serious against the background of the history of this case, which clearly is an attempt to delay the completion of the case. The trial Judge in the present case advised parties that it was better to complete the trial and any appeal can deal with all the issues arising. The Appellant and his counsel seem bent to delay proceedings”.
First things first; we have to establish parameters, and bearing in mind that we will be looking at this case through the eyes of a reasonable man on the street, the first question will be, what is bias? As Kalgo, JSC, explained in Azuokwu v. Nwokanma (2005) 11 NWLR (Pt.937) 537 SC –
“(Bias) in relation to a Court or Tribunal, is an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules and the likelihood of bias may be drawn or surmised from many factors such as corruption, partisanship, personal hostility, friendship, group membership or association and so on, towards’ or involving a particular party in a case”.
In this case, Iguh, J. is not being accused of bias. Mr. Ulasi did submit at the lower Court that the Appellant “is not questioning the Court’s integrity and it is not impugning the integrity of (the) Court and that of Iguh, JSC”. Iguh, J. acknowledged same in his Judgment when he observed that –
“Learned counsel for the Defendant stated in very clear terms that the Defendant is not questioning or impugning the integrity of this Court and that of the Hon. Justice A.I. Iguh, JSC, and it is not also been attacked. I will therefore confine myself to the relationship between this Court and Iguh, JSC who acted as a counsel for the Plaintiff in respect of the subject matter in the suit before his elevation to the Higher Bench in order to determine the issue of likelihood of bias vis-a-vis the Court’s jurisdiction to hear the suit”.
There is, therefore, no question that Iguh, JSC had at one time acted as a counsel for the Respondent in respect of the subject matter in the suit.
There is, also, no question as the fact that Iguh, JSC is the older brother of Iguh, J., because he acknowledged same in his Judgment, as follows-
“There is no doubt that the Hon. Justice Anthony I. Iguh, CON, JSC is the eldest brother of this Court, but I cannot see in the wildest imagination how that relationship will affect the judicial mind of this Court”.
Iguh, J., could not imagine how the relationship with his older brother, Iguh, JSC would “affect the judicial mind” of his Court. But the Appellant sees it differently, and did not hesitate to say so. “Particularly disturbed of his findings as to the relationship between Iguh, JSC and the Court”, the Appellant prayed the Court to decline jurisdiction to hear the matter, on the ground of “likelihood of bias”. The second question that arises is – what is “likelihood of bias”. There are numerous authorities in our law reports that say exactly the same thing – The term “likelihood of bias” is incapable of exact definition since circumstances giving rise to it may vary from case to case, but it means at least “a substantial possibility of bias”, which may arise because of personal attitudes, personal hostility, personal friendship, family relationship, employer relationship, partisanship in relation to the issues at stake, and a whole range of other circumstances from which such an inference bias may be drawn – see L.P.D.C. V. Fawehinmi (1955) 2 NWLR (Pt. 7) 300. Aguomba v. Uwais (2007) All FWLR (Pt. 346) 440, Womiloju & Ors V. Anibere & Ors (2010) LPELR-SC.211/2002, where per Adekeye, JSC, further explained –
“Other factors which could show a real likelihood of bias are: –
(1) Hostility of strong personal animosity towards a party.
(2) Personal friendship, family or professional relationship.
A bias must demonstrate a real likelihood of an operative prejudice whether conscious or unconscious. There must be cogent evidence as opposed to mere vague suspicion to support, an intention of real likelihood of bias”.
So, the test of real likelihood of bias is that there must be circumstances from which a reasonable man would think it likely or probable that the decision maker would or did in fact favour one side unfairly – see Agbiti V. The Nigerian Navy (2011) LPELR-SC.275/2008, Abalaka v. Min. of Health (2006) 2 NWLR (Pt. 963) 105, Azuokwu v. Nwokanma (supra).
See also The Secretary, Iwo Central L.G. V. Talatu Adio (supra), relied on by Iguh, J. wherein the Supreme Court per Onu, JSC held as follows-
“- – The compliant of BIAS is hinged on the marital relationship of the learned trial Judge to the Governor who signed the instrument into law and nothing else, and since relationship per se generally does not disqualify a Judge, in order to succeed the Respondent must prove that –
(i) The personal relation is a party to the action.
(ii) The personal relation must have interest in the subject matter to be litigated upon.
(iii) The interest is not too remote or too direct but capable of affecting the judicial mind of the Judge.
(iv) There is a departure from the standard of even handedness of justice or circumstances from which a reasonable man would think it likely or probable that justice has not been done in the case or the Chairman as the case may be, would or did favour one side unfairly at the expense of the other.
In that case, The Sec. Iwo Central L.G. V. Adio (supra), Chief Bola Ige as Governor of Oyo State had signed into law the Oluwo of Iwo Chieftaincy Declaration that was being challenged by the Plaintiff, and the matter was heard by Ige J. (as she then was), who was the Governor’s wife. The issue of likelihood of bias was raised, and it was contended that she should not have sat over the case. Iguh, JSC held therein as follows –
“- – When Chief Ige assented to Exhibit C1, he was only performing a constitutional duty. If Chief Ige had been sued in his personal capacity or in respect of a matter over which he had a private, personal or family interest and such a dispute found its way into the Court presided over by Ige, J., prudence, surely, would have demanded that she should disqualify herself from adjudicating on the matter But where, as in the present case, the act being challenged is not that of Chief Bola Ige in his personal capacity or as an interested party but that of the Government of Oyo State. I cannot see my way clear why it will become necessary for Ige, J. to disqualify herself from hearing the case for the simple reason she is the wife of the Governor – – “.
It is well settled that in considering whether or not there was a real likelihood or bias, the Court does not look at the mind of the trial Judge himself to see if there was a real likelihood that he would or did in fact favour one side at the expense of the other. The Court rather looks at the impression created in the minds of “reasonable people” who were sitting in Court to observe the proceedings. If right thinking people sitting in Court would think that in all the circumstances, there was a real likelihood of bias on his part then his decision cannot be allowed to stand. But mere surmise or conjecture is clearly insufficient to establish real likelihood of bias. – – In the same vein, there must be reasonable evidence to satisfy the Court that there was bias or real likelihood of bias against a trial Judge and mere vague suspicion of unreasonable people, conjecture or surmise is clearly insufficient and should not be made a standard for the establishment of such grave issues”.
In other words, in determining likelihood of bias, the Court does not look at the mind of the Judge himself or at whoever sits in a judicial capacity. It does not look to see if there was likelihood that he would, or did favour one side at the expense of the other. The Court looks at the impression that would be given to other people. Even if he was as impartial as he could be, if right minded people think that in the circumstances there was a real likelihood of bias on his part, he should not sit. Even if he does sit, his decision cannot stand because ‘Justice is rooted in confidence, and confidence is destroyed when right-minded people go away thinking that the Judge was biased” – see Womiloju & Ors V. Anibere & Ors (supra), Abiola v. FRN. (1995) 7 NWLR (Pt.405) 1, Agbiti V. Nigerian Navy (supra), Abalaka v. M.O.H. (supra), L.P.D.C. V. Fawehinmi (supra).
The main thing is that the decision of whether or not there was bias or real likelihood of bias turns on the question of the particular facts and circumstances of each and every case. In this case, Iguh, J. held –
“The Defendant has not shown that my eldest brother, Iguh, JSC is a party in this suit. He is in fact not a party in the suit. He has also not shown that my eldest brother has any interest at all in the subject matter in the suit, not to talk of the interest being capable of affecting the judicial mind of this Court. I agree completely with the Plaintiff that the interest of Iguh, JSC – – was in respect of discharging his duty as a counsel when he did the two things stated earlier – – for the Plaintiff, which ceased to exist the moment he was elevated to the High Bench, and in fact in 1976 when himself and his Chambers completely ceased to act for the Plaintiff – – He merely discharged his professional duties as a counsel to the Plaintiff – – If that could amount to an interest it is too remote and incapable of affecting the judicial mind of this Court. The Defendant has not also shown that there is a departure from the standard of even handedness of justice or circumstances from which a reasonable man would think it likely or probable that – – the Court would or did favour one side unfairly at the expense of the other. – – is there a reasonable suspicion of bias looked at from the objective standpoint of a reasonable person and not from the subjective standpoint of an aggrieved party? All that I have said above proffered an answer to this question, but the straight answer to same, must clearly be in the negative. If it were otherwise, then every case in which Iguh, JSC who left the bar in 1976 acted as counsel to either of the party or in respect of the subject matter – – in a case Mfore Iguh, J. (this Court) will not be heard by this Court for going by the Defendant’s stand, because of the relationship between Iguh, JSC and this Court, on the ground that this Court will be accused of bias or likelihood of bias. From the objective standpoint of a reasonable person there is no reasonable suspicion of bias”.
Thus, Iguh, J., held that “from the objective standpoint of a reasonable person there is no reasonable suspicion of bias, and yet, in arriving at that conclusion, he reasoned that to hold otherwise would mean that all the cases in which his brother, Iguh, JSC had been involved in before 1976, would not be heard by him, if he heeded the Appellant’s objection. The law, as I stated earlier, is that in determining the likelihood of bias, the Court does not look at the mind of the Judge to see whether there was likelihood that he would favour one side at the expense of the other. The Court looks at the impression that would be given to other people.
As long as there are circumstances from which a reasonable man would think it likely or probable that the Judge can favour one side, the Judge cannot hear the matter, and if does, his decision cannot stand. The test is from the perspective of a reasonable man, and not from what the Judge thinks of the situation or what he knows he can do or not do. The moment, Iguh, J., mentioned that acceding to the Appellant’s view would mean that he can never try any case in which Iguh, JSC had ever participated in or been involved with, he stepped out of line and brought in a subjective dimension into the equation, which is not the thing to do.
I said we will look at this case from the perspective of a reasonable man, and the question now is – what would a reasonable man see in this case? The Appellant enumerated the “intriguing” facts in his brief, as follows-
(a) The suit was originally in Onitsha Judicial Division where the Defendant resides and the subject-matter situates.
(b) It was heard partly by Nwazota, J., Obiorah, J., Okoli, J., and then Onyuike, J., who was in due course transferred to Awka Judicial Division where he could not even conclude the case before he retired.
(c) After the retirement of Onyuike, J., the Respondent applied to Hon. Justice C.J. Okoli, the Chief Judge (who heard the matter partly before) to assign it.
(d) The matter was assigned directly to Hon. Justice J.C. Iguh, newly appointed to the higher bench, and sitting not in Onitsha Judicial Division, but in Awka Judicial Division.
(e) Iguh. J., refused to discharge G. E. Ezeuko Jnr; refused to discharge himself from hearing the suit; refused to stay further proceedings, and insisted on going on in spite of the pendency of a similar motion in the Court of Appeal.
(f) iguh, JSC (Rtd.) was a former chief Judge of Anambra State.
The Appellant also made a submission that is quite weighty. He said –
“The reasonable man would have thought that the cards are stacked high in favour of the Respondent. He sees the Respondent testifying before the younger brother of a man who was his lawyer in the past. What is the guarantee that the lawyer, now a retired Justice of the Supreme Court could not, and in fact did not issue standing orders to his younger brother the learned trial Judge, to give Judgment to the Respondent?”
Iguh, J., does not have to “guarantee” that Iguh, JSC cannot and did not, “issue standing orders” to him over the case. But we live in a society where respect for elders is of paramount importance, and a Justice of the Supreme Court is a highly venerable figure in any society. As long as a reasonable man will think it likely that Iguh, J., can find in favour of the Respondent because of his brother’s previous involvement in the case, then there is real likelihood of bias, and he must step aside; that is all it takes, what a reasonable man would think, not what the Judge knows.
Iguh, J., knows the relationship will not affect his “judicial mind”, but once it is likely or probable that the relationship may have that effect, then it is safer for the Judge to refuse to hear the matter – see Okoebor v. Police Council (2003) 12 NWLR (Pt.834) 444 where Tobi, JSC said –
“In law, if a party raises objection as to the likelihood of bias on the part of the Judge, it is safer and more in the interest of justice for the Judge to refuse taking the matter, unless it is clear that the party is raising the objection qua opposition lacking merit and is designed to delay the court process or an outright abuse of the judicial process.”
In this case, it is my view that in the circumstances of this case, Iguh, J., should have refused to take the matter for reasons stated, and I so hold.
The appeal succeeds and is allowed, the decision of Iguh, J., in his Ruling delivered on the 24th of May 2006, is set aside, and the case is remitted for trial before another Judge. There will no order as to costs.
ABDU ABOKI, J.C.A: I have had the privilege of reading in draft the judgment just delivered by my learned brother Amina Adamu Augie JCA. I agree entirely with the reasoning expressed and conclusion reached therein. I will however like to make contribution on the issue of bias raised, which is an issue at the centre of the appeal.
The appeal is against the decision of Iguh J. of the High Court of Awka. The appeal has suffered series of adjournments before the 29th March 2006, when O. R. Ulasi Esq. put up appearance for the first time representing the Defendant on the matter. He brought an application praying the judge presiding on the matter to disqualify himself because his elder brother Hon. Justice Anthony Iguh JSC (RTD) while he was a practicing lawyer before his elevation to the bench was a solicitor to the Plaintiff in the matter.
The applicants alleged that there was a likelihood of bias on the part of the trial judge against the Defendant on account of the relationship between the trial judge and his brother who was a former solicitor to the Respondent.
After both parties have presented their legal agreement on the issue, the trial judge Iguh J. delivered his ruling on the 24/5/06 which is now the subject of the appeal in which he held as follows:
“I entirely agree with the Plaintiff —that there is no bias from this Court in this suit and that there is no basis for bias, f cannot imagine any reasonable man drawing the inference from the circumstances of this case that there is a real likelihood of bias on the part of this Court in presiding over this case, What is more, from the state of pleadings, this case will be determined only by documentary evidence, It is not a matter of I believe or f do not believe, It is not also a matter of demeanour or witnesses, I can find no circumstances from which a right thinking person sitting in court to observe the proceedings would think it likely or probable that there is bias or a real likelihood of bias on the part of this Court, As there are no other disqualifying features raised by the Defendant for the Court to consider on whether this Court should decline jurisdiction or not to entertain the suit or that have been shown to attach to this Court, I find myself unable to accede to preliminary objection raised by the Defendant. In the final result and for all the reasons that I have given above the objection raised by the Defendant is hereby overruled,”
The starting point will be to ascertain what is bias and what does it portrays when it is levied against a judicial officer.
Bias is described as a state of mind incapable of precise definition or proof, whatever impression it may convey. See Dange w Ndakwoji (1992) 7 NWLR Pt 216 page 227 at 233. In Akinge v. The State (1988) 3 NWLR Pt 85 page 729, Esho JSC defines bias as “showing an act of partiality”. The conduct of a judge accused of bias is perceived by his accusers as invariably and unequivocally pointing to the fact that the judge will give judgment to the party he favours at all cost.
In the instant case the lower court was not accused of bias but of likelihood of bias.
There is a clear distinction between the two expressions. When a party to a dispute before a court accuses the judge or court of bias, he is saying that the act of bias is completed by the expressed conduct or actions of the judge. The accuser is not expecting a further possible bias but on the other hand when a party to an action before the judge contends that there is a likelihood of bias, he is anticipating that the judge will be biased in the matter before him,
The acts of bias is not formalized or concluded but that it appears to his accusers that from the general conduct of the judge the possibility of bias is real and that the anticipated conduct of the judge should be halted before it becomes a reality to his disadvantage. In legal practitioners Disciplinary Committee v, Chief Fawehinmi (1985) 2 NWLR pt 7 page 300 at 333, Aniagolu JSC. (of blessed memory) said of the term likelihood of bias thus:
‘the term real likelihood may not be capable of exact definition, since circumstance giving rise to it may vary from case to case, but it must mean at least a substantial possibility of bias’.
Niki Tobi JSC in his book the Nigeria Judge published by A & T professional publishers 1992 at page 305 said of the dichotomy between the two expressions Bias and likelihood thus:
“…..while in the case of direct charge of bias, the act of bias is completed by sufficient overt act of the judge, in the case of charge of likelihood of bias, he is struggling with his mind and conscience to take sides and that his competing ideas seems parochially inclined to one of the parties, and his conduct is obvious to a reasonable man who watches the proceedings. The aggrieved party feels that it is dangerous and not in his interest to wait till the final blow of the whistle to end the “game”. And so he raises the alarm before he loses to his opponent or adversary, He therefore kicks.”
The question may be asked as to what may be seen to constitute a likelihood of bias by a litigant. In the case of Legal Practitioners Disciplinary Committee v. Fawehimni (supra) at page 333, Aniagolu JSC (of blessed memory) again said on the likelihood of bias thus:
“This may arise because of personal attitude and relationships, such as personal hostility, personal friendship, family relationship, professional and vocational relationship, employer and employee relationship, partnership in relation to the issue at stake, and a whole host of other circumstance from which inference of a real likelihood of bias may be drawn.”
In the instant case the counsel to the Defendant in his submission on likelihood of bias against the lower court, said he was not questioning the court’s integrity or impugning the integrity of the court and that of Justice A.I. Iguh, JSC Rtd. He submitted that he did not mind where the suit is heard and determined in the High Court of Anambra State, but that he feels particularly disturbed of his findings as to the relationship between Hon Justice A.I. Iguh JSC Rtd and the lower court. He prayed the court in light of the circumstances mentioned to decline jurisdiction to hear and determine the suit and transfer it back to the Chief Judge of Anambra State for reassignment to another judge.
The test of bias is what right-minded persons who are aware of the circumstances or facts of the case would say. The test is objective test and not subjective. See Akoh v. Abuh (1988) 3 NWLR Pt 85 page 696.
In order to establish a likelihood of bias there must be circumstances from which a reasonable man would think it likely or probable that the justice would favour one side unfairly at the expense of the other.
In the instant case in considering whether there was a real likelihood of bias, the court would not look at the mind of the judge to see if there was real likelihood that he would in fact favour one side at the expense of the other. What is of concern to the court is the impression which would be given to other people even if he was impartial as could be. If the right thinking members of the society would think that in the circumstances of the case there was a real likelihood of bias on his part then he should not adjudicate on the matter, See Onigbede v. Balogun (2002) FWLR Pt 99 page 1062.
In the instant case it should have been much safer and more in the interest of justice if the lower court had disqualified itself from the matter, upon an application brought by counsel to the Defendant asking him to do so. See
Okoebor v. Police Council & Ors (2003) 14 NSCQR Page 434.
It is for these reasons and the fuller reasons given in the lead judgment that I will also allow this Appeal. I abide by the consequential order contained therein.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I have had the privilege of reading before now the lead judgment of my learned Brother, AMINA ADAMU AUGIE JCA, just delivered by her. I respectfully agree with her reasoning and conclusion that the appeal has merit and should be allowed.
However, by way of emphasis I will add that the test of bias is objective and not subjective. What is Germaine is the thought process or perception of reasonable persons who are conversant with the facts or circumstances of the case.
See AKOH VS ABUH (1988) 3 NWLR (PT 85) 696.
In the instant case, it is not in dispute that the learned trial judge is a younger brother to Anthony I. Iguh (Retired Justice of the Supreme Court). It is also not in dispute that while in private practice the said A.I. Iguh (JSC) now retired was briefed by the respondent sometime in 1976 to publish a caveat with respect to the property in dispute and subsequently instituted an action against the appellant for trespass to the land.
Upon his appointment to the Higher Bench, the matter by providence lingered on till it came before his younger brother Iguh J. for hearing and determination. It may sound rational to opine that it prima facie does not create any likelihood of bias but where the appellant has raised the issue before the learned trial judge, it does no harm if he had transferred the suit to another judge in which case justice would not only have been done but would be seen to have been done by all parties. In which case the heating up of the hallowed temple of justice over the suspicion of bias would have been avoided.
See the Supreme Court case of OKOEBOR VS. POLICE COUNCIL & ORS. (2003) 14 NSCQR 434 where their Lordships held at page 458 as follows:-
“In law, if a party raises objection as to the likelihood of bias on the part of the judge, it is safer and more in the interest of justice for the judge to refuse taking the matter, unless it is clear that the party is raising the objection qua opposition lacking merit and is designed to delay the court process or an outright abuse of judicial process.”
In determining the issue of real likelihood of bias, the court should not of necessity look at the mind of the presiding officer or whoever sits in a judicial capacity. It should be blinded to the fact whether there was real likelihood that he would, or actually favour one side to the detriment of the other.
What must concern the court is the impression which would be conveyed to other people even if its impartiality glitters as diamond. Where the scenario created is such that a reasonable man will assume that there was a real likelihood of bias on the part of the court then it should not hear the matter.
See ONIGBEDE VS. BALOGUN (2002) FWLR (PT 99) 1062; OKOEBOR VS POLICE COUNCIL & ORS supra.
It is also trite that Bias may arise because of personal attitudes and relationships such as personal hostility, personal friendship, family relationship, employer relationship, partnership in relation to the issues at stake and a whole range of circumstances from which the inference of a real likelihood of bias may be drawn.
See DENGE VS NDAKWOJI (1992) 1 NWLR (PT 216) 221 ATANO VS A.G. BENDEL STATE (1988) 2 NWLR (PT 75) 201; OYELADE VS ARAIYE (1968) 1 NMLR 41 and ADIO VS A.G. OYO STATE (1990) 7 NWLR (PT 163) 448.
For this and the fuller reason advanced by my learned Brother in her lead judgment I also allow this appeal. I abide by the consequential order made therein.
Appearances
O. R. Ulasi (SAN);
K.O. Kama, EsqFor Appellant
AND
No representative for defendantFor Respondent
