MBAKA v. NDUBUISI
(2022)LCN/17080(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, March 22, 2022
CA/ABJ/CV/315/2021
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
MRS. NGOZI MINA MBAKA APPELANT(S)
And
ENGR. EMMANUEL NDUBUISI RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WHEN A PRELIMINARY OBJECTION IS FILED
In Odunukwe vs. Ofomata & Anor (2010) LEPLR—SC. 294/2003, the Supreme Court; per Rhodes-Vivior JSC, held thus:
“…a preliminary objection is filed only when the Respondent is satisfied that there is some fundamental defect in the Appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence. Nowadays, Preliminary Objections are filed once a Respondent notices any error in the Appellant’s Processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal as in this appeal, and the other Grounds are in order and can sustain the appeal the Respondent ought to file a Motion on Notice to strike out the incompetent Grounds and not a Preliminary Objection… a Preliminary Objection is filed only against the hearing of the appeal and not against one or more Grounds of Appeal.”
See also Ibrahim vs. APC & Ors (2019) LPELR–SC. 420/2019; NNPC & Anor vs. Famfa Oil Ltd (2012) LPELR–SC 71/2008 (Consolidated). PER GAFAI, J.C.A.
DEFINITION OF QUESTION OF LAW
What then is a question of law? As a corollary to it, what is a question of fact? In Obatoyinbo & Anor vs. Oshatoba & Anor (1996) LPELR–SC 71/1990, the Supreme Court stated thus:
”As to what is a question law with which a ground of law is concerned, Kaikbi Whyte, JSC opined thus in Metal Construction (W.A) Ltd vs. Migliore (supra) at pp. 149–150.
Generally considered, the term “Question of law” is capable of three different meanings. First, it could mean a question the Court is bound to answer, in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the Court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated, a question of law in this sense is one predetermined and authoritatively answered by the law. The second meaning is as to what the law is. In this sense, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The question of law in this sense arises out of the uncertainty the law. A question of the construction a statutory provision of facts within this meaning. The third meaning is in respect of those questions which are to and answered by the authority which normally answer question of law only. Thus any question which is within the province of the Judge instead of the Jury is called a question of law even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents, often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the Tort of Malicious prosecution which is one of fact, but is a matter of to be decided by the Judge.”
See also Ehinlanwo vs. Oke (2008) LPELR -SC. 291/2007. PER GAFAI, J.C.A.
DEFINITION OF QUESTION OF FACT
On the other hand, a question of fact is defined by the Supreme Court in Ugboaja vs. Akintoye–Sowemimo & Ors (2008) LPELR–SC 324/2001 as follows
“A question of fact” also does not have one meaning as it may mean:
(i) a question which is not determined by a rule of law;
(ii) any question except the question as to what the law is; and
(iii) any question that is to be answered by the Jury rather than the Judge” is a question of fact.” PER GAFAI, J.C.A.
ISAH BATURE GAFAI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of the Federal Capital Territory delivered on the 19th of March, 2021 Adeniyi, J. in Petition No. FCT/HC/PET/577/2020 in which the Appellant’s Preliminary Objection challenging the competence of the Respondent’s Petition and the jurisdiction of the lower Court to entertain it was overruled and dismissed.
As gleaned from the Record of Proceedings, the Respondent commenced divorce proceedings before the lower Court seeking for the dissolution of the marriage between him and the Appellant on the ground that the marriage has broken down irretrievably. In her answer to the Petition, the Appellant caused to be filed a Memorandum of Conditional Appearance, Notice of Preliminary Objection, Motion on Notice, Answer to the Petition on Protest, Cross Petition and Witness Statement on Oath. The Appellant’s Notice of Preliminary Objection which is the basis of this appeal was heard on the 10th of March 2021 and the lower Court’s decision on it which is the reason for this appeal delivered on the 19th of March, 2021. See pages 1-138 of the Record.
Dissatisfied with the decision, the Appellant lodged this appeal vide her Notice of Appeal filed on the 29th of March, 2021 on seven Grounds; thus:
“GROUND 1
“The Court below erred in law when after making the finding, “I quite understand the grouse of the Respondent/Objector with the form and content of the verifying Affidavit filed alongside the Petition by the Petitioner… The Respondent/Objector complained that the Verifying Affidavit did not continue at the foot of the Petition and that it was commenced on a separate page” it then severally examined the provision of Order V Rule 10(1) on which this objection is predicated. I found nothing in the provision which suggest that a Verifying Affidavit must commence or continue at the foot of a Petition or on the same page where a Petition ends.”
GROUND 2
The lower Court misdirected itself in law when it held: “while the Petition itself terminated at the very foot of page 19 thereof, with the address for service of the Respondent; the Verifying Affidavit reasonably commenced at the top of the very next page (page 20). It could not have been done in any other manner since nothing more could be squeezed into or accommodated at the foot of page 19 where the Petition terminate.”
GROUND 3
The Learned trial Judge erred in law by setting the Respondent’s petition for hearing despite the defective verifying affidavit and that decision conflicts with the provision of Section 114 and 115 of the Evidence Act, 2011 and Order V Rule 10(1)(b) (2) and (3) of the Matrimonial Causes Act which in occasioned a miscarriage of justice.
GROUND 4
The learned trial Court erred in law when it suo motu raised the issue of incompetence of the Appellant’s statement on Oath which led to its withdrawal and striking out for not being provided for by the Matrimonial Causes Rules which the trial Court opined is sui-generis but made a volte face when it held that the Respondent’s petition in the face of the defects was compliant with the Matrimonial Causes Rules.
GROUND 5
The learned trial Court erred in law when it without jurisdiction awarded cost of N250,000.00 (Two Hundred and Fifty Thousand Naira Only) against the Appellant, in favour of the Respondent which is punitive in nature.”
GROUND 6
The trial Court misdirected itself in law when it held: “The Respondent/Objector goofed when he relied on a dead version of Umeakuana Vs. Umeakuana (supra) to ground his objections that the facts set out in the Verifying Affidavit were sweeping and scanty… As such even If it is viewed as falling short of the requirements of the Rules at to contents, the Supreme Court has settled it once and for all when, in Umeakuana vs. Umeakuana, it descended on the Court of Appeal for adhering stringently to technically…”
GROUND 7
The learned trial Court erred in law when it held: “The effect is therefore that, having taken further steps to file an Answer in which she joined issue with Petitioner and Cross-Petition, which, in law, is a separate action; is deemed to have waived her right to complain of the irregularity complained of I so hold.”
The respective Particulars enumerated under the Grounds are noted. See pages 233-339 of the Record of Appeal.
For the purpose of this judgment, the main processes of both parties are the Appellant’s Brief of Argument filed on the 29th of June 2021 but deemed properly filed and served on the 7th of December 2021 the Respondent’s Notice of Preliminary Objection and Brief of Argument both filed on the 3rd of September 2021 and the Appellant’s Reply Brief of Argument filed on the 29th of June 2021 deemed properly filed and served on the 7th of December 2021. It is these processes that the parties relied on at the hearing of this appeal.
RESOLUTION OF THE PRELIMINARY OBJECTION
As hinted a moment ago, the Respondent filed also a Notice of Preliminary Objection on the 3rd of September 2021.
The listed Grounds in the Notice are:
“1. That the Appellant failed to seek and obtain leave from the Court below and from this honourable Court prior to filing her purported Notice of Appeal dated 26th March, 2021, and filed on 29th March, 2021, being an appeal emanating from an interlocutory proceeding, as provided for in Section 241 and 242 of the Constitution of the Federal Republic of Nigeria, 1999 as altered and Order 6 Rules 2, 3 4, 5 and 7 of the Court of Appeal Rules, 2016.
2. That the Appellant’s Grounds three (3) and four (4) of her Notice of Appeal dated 26th March, 20215 and filed on 29th March 2021, are incompetent being grounds that did not emanate from the ruling of the Court below delivered on the 19th March, 2021.
3. The Appellant’s Notice of Appeal is incompetent and liable to be struck out.
4. The Appellant’s brief of argument which is predicated upon the incompetent Notice of Appeal is also liable to be struck out.
5. The appeal being incompetent is liable to be struck out.”
As is the settled practice, the Arguments on these Grounds have been canvassed in the Respondent’s Brief of Argument settled by his learned senior counsel Chief Mike A. A. Ozekhome, SAN precisely in its first part at its pages 2-19 under the following Issues:
“(a) Whether having regard to the mandatory provisions of Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria as altered, and Order 6 Rules 2, 3, 4, 5 and 7 of the Court of Appeal Rules, 2016, the Appellant’s purported Notice of Appeal dated 26th March, 2021, and filed on 29th, March 2021 and the Appellant’s Brief of Argument predicated on same without the mandatory leave is not incompetent and same liable to be struck out, and/or dismissed for want of jurisdiction arising therefrom.
(b) Having due consideration to all the grounds of appeal as contained on the Notice of Appeal, whether these grounds not bothering on jurisdiction of the lower Court are not incompetent and liable to be struck out.
(c) Whether this Honourable Court ought to refuse to hear this appeal as the grounds raised in the notice of appeal are such that this honourable Court can conveniently determine same by way of an appeal arising from the final judgment of the Court below and order the Court below to accelerate hearing in the substantive petition
(d) Whether this honourable Court can exercise it’s discretion as by the Appellant/Respondent herein by granting the Preliminary Objection as filed in the trial Court in limine.”
As can be seen, Issues (a) and (b) are closely related; ditto Issues (c) and (d).
Although in his Reply Brief, the learned counsel for the Appellant Francis F. Mgboh Esq. neither formulated different Issues nor expressly adopted the Respondent’s, the pattern of his arguments is indicative of the latter; by which he has relied on the Respondent’s Issues roundedly but in his preferred order.
Ordinarily, the Court would proceed to determine the Issues formulated by the Respondent’s learned senior counsel (supra) but there emerged yet another preliminary objection raised in the Appellant’s Reply Brief by which the competence of Ground 2 of the Respondent’s Notice of Preliminary Objection is questioned for being one challenging only a certain but not the entirety of the Grounds in the Appellant’s Notice of Appeal. As argued for the Appellant, the Respondent’s Ground 2 of the Notice of Preliminary Objection is thus incompetent and liable to be struck out along with the Respondent’s Issue 3 (supra) which is predicated on the alleged incompetent Ground 2. Regardless of its worth, this challenge deserves a more urgent attention because a Court can not proceed to determine the merit of an incompetent Ground; assuming only but not asserting at this stage that the Respondent’s Ground 2 of the Notice of the Preliminary Objection is incompetent. See Rafi & Ors vs. Oyero & Anor (2019) LPELR CA/AK/40/2016.
Ground 2 of the Respondent’s Notice of Preliminary Objection (supra) is reproduced again here in context; thus:
“(2) …Grounds three (3) and four (4) of the Notice of Appeal … are incompetent being grounds that do not emanate from the ruling of the Court below…”
The Appellant’s Grounds 3 and 4 of the Notice of Appeal are also reproduced here again in context; thus:
“GROUND 3
The Learned trial Judge erred in law by setting down the Respondent’s petition hearing despite the defective verifying affidavit and that decision conflicts with the provision of Section 114 and 115 of the Evidence Act, 2011 and Order V Rule 10(1) (a)(b) (2) and (3) of the Matrimonial Causes Act which in effect occasioned a miscarriage of justice.
GROUND 4
The learned trial Court erred in law when it suo-motu raised the issue of incompetence of the Appellant’s Statement on Oath which led to its withdrawal and striking out for not being provided for by the Matrimonial Causes Rules which the trial Court opined is sui-generis but made a volte face when it held that the Respondent’s Petition in the face of the defects was compliant with the Matrimonial Causes Rules.”
The Respondent’s arguments here are twofold; firstly that the Appellant’s Grounds 3 and 4 of the Notice of Appeal do not relate to any decision of the Court below; or if adjudged in the contrary, it is further argued in the alternative that the Grounds are still incompetent as they do not flow from the ruling of the Court below. Owing to the clarity of the learned senior counsel’s submissions on his challenge against the competence of Grounds 3 and 4 of the Notice of Appeal, I will not summarise but reproduce his key argument in verbatim here thus:
“8.6. We submit that the Appellant’s failure to formulate grounds which are derived from the ruling being challenged is fatal to her said Grounds of Appeal and has rendered same incompetent and liable to be struck cut.”
This is a summary of what the Respondent’s Ground 2 of the Notice of Preliminary Objection and the entire arguments canvassed on same under Issue 3 of the Respondent’s arguments on the Preliminary Objection are all about.
The Appellant’s entire arguments on her challenge against the competence of the Respondent’s Ground 2 of the Notice of Preliminary Objection along with Respondent’s Issue 3 on same appear to have been condensed in paragraph 2.4 of her learned counsel’s Reply Brief thus:
“Ground 2 the Respondent’s Notice of Preliminary Objection is not a challenge of the entire appeal but an allegation that certain grounds (that is, grounds 3 and 4 of the Appellant’s Notice Appeal) do not emanate from the ruling of the Court below. Such ground, not challenging the competence of the entire appeal but certain grounds ought not to be expressed in the Notice of Preliminary Objection which ought to challenge the competence of the entire appeal; a fortiori; where none the grounds endorsed thereon expressed a direct complaint as to which of the grounds of appeal Appellant required leave to file. We therefore urge your lordships to discountenance the ground having not alleged want of jurisdiction, and in consequence expunge issue three of Respondent’s argument on the Notice Preliminary Objection and the argument canvassed at paragraphs 8.2 to 8.16 in support of that issue, same having been predicated on the said ground.”
In effect, the Appellant is by this argument challenging the competence of the Respondent’s entire Notice of Preliminary Objection for containing Grounds that are neither intended to nor capable of terminating the entire appeal in limine.
Let me say that the intendment of the provisions of Order 10 of the Court of Appeal Rules 2016 among others under which the Respondent’s Notice of Preliminary Objection was filed is by the unanimity of judicial decisions, to terminate the hearing of an appeal in limine. The aim of a Preliminary Objection therefore is to contend that the appeal is fundamentally defective or incompetent and if the contention is upheld, the Preliminary Objection terminates the hearing of the appeal. The aim of a Preliminary Objection altogether must be manifest in its Ground(s). Where however a Respondent/Objector complains of a Ground or Grounds which, even if adjudged incompetent, would still leave another or other Grounds standing unaffected by the vice of the incompetent Ground(s), the objection should be channeled through a motion on notice, not a Notice of Preliminary Objection.
InOdunukwe vs. Ofomata & Anor (2010) LEPLR—SC. 294/2003, the Supreme Court; per Rhodes-Vivior JSC, held thus:
“…a preliminary objection is filed only when the Respondent is satisfied that there is some fundamental defect in the Appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence. Nowadays, Preliminary Objections are filed once a Respondent notices any error in the Appellant’s Processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal as in this appeal, and the other Grounds are in order and can sustain the appeal the Respondent ought to file a Motion on Notice to strike out the incompetent Grounds and not a Preliminary Objection… a Preliminary Objection is filed only against the hearing of the appeal and not against one or more Grounds of Appeal.”
See also Ibrahim vs. APC & Ors (2019) LPELR–SC. 420/2019; NNPC & Anor vs. Famfa Oil Ltd (2012) LPELR–SC 71/2008 (Consolidated).
It must not be forgotten that what is in issue at this stage is the Appellant’s challenge to the competence of the Respondent’s Ground 2 of the Notice of Preliminary Objection which, as explained earlier, the Appellant seeks that it be struck out along with the Respondent’s Issue 3 argued thereunder. As shown earlier also, the Respondent’s main aim of raising the challenge in Ground 2 of the Notice of Preliminary Objection and as argued under Issue 3 thereunder is that the Appellant’s Grounds 3 and 4 of the Notice of Appeal be struck out.
The challenge raised in Ground 2 of the Preliminary Objection and the arguments canvassed under Issue 3 formulated thereunder are both specifically targeted at Grounds 3 and 4 of the Notice of Appeal; not the appeal in its entirety. No reference was made to the other five Grounds of Appeal. Furthermore, the objection is not aimed at terminating the hearing of the appeal on its other Grounds; because even if Grounds 3 and 4 of the Notice of Appeal are struck out, their alleged incompetence has not been shown to have affected the five other Grounds of Appeal.
In this situation, the Respondent ought to have utilized the medium of a Motion on notice in challenging the Appellant’s Grounds 3 and 4 of the Notice of Appeal. In my humble view, the challenge raised by the learned counsel for the Appellant against the competence of Ground 2 of the Preliminary Objection and Issue 3 derived therefrom is in accord with the established principles on the issue.
There is however the Respondent’s Ground 1 of the Notice of Preliminary Objection (supra) by which Respondent challenged the Notice of Appeal for the Appellant’s failure to seek leave before filing the Notice of Appeal. As canvassed under Issue 1 in the Respondent’s Brief, the central argument is that before filing this appeal, being an interlocutory appeal, it is mandatory for the Appellant to seek for and obtain the leave of this or the lower Court being one against an interlocutory decision not touching on the jurisdiction of the lower Court; in which therefore an appeal cannot be as of right as misconceived by the Appellant. It is argued that the Appellant’s Notice of Appeal is devoid of any jurisdictional issues as to obviate the necessity to seek for leave before filing this appeal. Reliance was placed on the provisions of Sections 241 and 242 of the Constitution FRN 1999, as amended; Coker vs. UBA Plc (1997) LEPLR–880 (SC); Nwaolisah vs. Nwabufoh (2011) LPELR—2115 (SC); FRN vs. Dairo & Ors (2015) LPELR 24303 (SC) among others.
For the Appellant, it is argued in the contrary; that her Grounds 1 to 3 of the Notice of Appeal challenge the jurisdiction of the trial Court and her Ground 4 complains of breach of fair hearing and bias. In respect of the Appellant’s Ground 5 of the Notice of Appeal, which complains against the trial Court’s order on cost, it is argued that this appeal is not against the order on cost only but the entire decision and thus proper under the provisions of Section 241 (2) (c) of the Constitution relied upon by the Respondent’s learned senior counsel. On Grounds 6 and 7 of the Notice of Appeal, it is argued that they are both Grounds of law as they complain of misapplication of the law by the trial Court. The pith of the Appellant’s arguments is that the requirement for leave as enshrined in Section 242 (1) of the Constitution does not apply to this appeal. Reliance was placed on the provisions of Section 241 of the Constitution and the decisions in Nwisu vs. Okagbue & Ors. (2015) LPELR-25884 (CA) Akpan vs. Bob & Ors (2010) LEPLR-376 LPELR-20346 (CA); Chief of Air Staff & Ors vs. Iyen (2005) LPELR-3167 (SC); Eneh vs. NDIC & Ors (2018) LPELR-44902 (SC) among others.
The foregoing represents only a summary of the arguments for both parties but their entirety is noted. I am in agreement with both that the resolution of the Issue lies in the provisions of Sections 241 and 242 (1) of the Constitution as rightly relied on by both learned counsel although interpreted differently owing to their considered views on the foundation of the Appellant’s Grounds of Appeal. The entirety of the arguments and submissions for the Respondent under the Issue, more particularly as canvassed in paragraphs 6.3-6.6 at pages 4-6 of his Brief and those canvassed for the Appellant in paragraphs 2.7-2.13 at pages 5-8 of her Reply Brief are principally on whether the Appellant’s Grounds of Appeal fall under Section 241 of the Constitution (which is the preferred port of the Appellant) or the wider port of Section 242(1) (which the Respondent contends strongly) as the proper port of the Appellant’s Grounds of Appeal. In this situation, it is expedient, just as done by the Respondent’s learned senior counsel, to reproduce those provisions here.
In the context of this Issue, the relevant portions of Section 241 are as follows:
“241 (1) An appeal shall lie from decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions at to the interpretation or application of this Constitution;
(d) decisions in any civil, or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been is being or is likely to be contravened in relation to any person;”
Section 242(1) provides that:
“242 (1) Subject to the provision of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
The subject of this appeal is an interlocutory decision of the lower Court against which the Notice of Appeal herein was filed without leave which is the Issue at hand. As reproduced a moment ago, Section 241 (1) of the Constitution provides for appeals as of right. An appeal as of right requires no leave to activate it or render it competent. Section 242 on the other hand provides for appeals in which prior leave is required before such appeals can be competently filed. Appeal against interlocutory decision without leave is provided for under Section 241(1) (b) (supra) when the ground of appeal is on a question of law. In other words, an appeal against an interlocutory decision of a High Court or Federal High Court lies in the Court of Appeal as of right where it relates to question of law. These provisions conferred a right of appeal in respect of decisions on questions of law whether in a final or interlocutory decision. See Ekemezie vs. Ifeanacho & Ors(2019) LPELR—SC.249/2009; Eco Bank vs. Honeywell Flour Plc. (2018) LPELR-SC. 402/2016.
What then is a question of law? As a corollary to it, what is a question of fact? In Obatoyinbo & Anor vs. Oshatoba & Anor (1996) LPELR–SC 71/1990, the Supreme Court stated thus:
”As to what is a question law with which a ground of law is concerned, Kaikbi Whyte, JSC opined thus in Metal Construction (W.A) Ltd vs. Migliore (supra) at pp. 149–150.
Generally considered, the term “Question of law” is capable of three different meanings. First, it could mean a question the Court is bound to answer, in accordance with a rule of law. This excludes the exercise of discretion in answering the question as the Court thinks fit in accordance with what is considered to be the truth and justice of the matter. Concisely stated, a question of law in this sense is one predetermined and authoritatively answered by the law. The second meaning is as to what the law is. In this sense, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The question of law in this sense arises out of the uncertainty the law. A question of the construction a statutory provision of facts within this meaning. The third meaning is in respect of those questions which are to and answered by the authority which normally answer question of law only. Thus any question which is within the province of the Judge instead of the Jury is called a question of law even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents, often a question of fact, but is within the province of a Judge. Also the determination of reasonable and probable cause for a prosecution in the Tort of Malicious prosecution which is one of fact, but is a matter of to be decided by the Judge.”
See also Ehinlanwo vs. Oke (2008) LPELR -SC. 291/2007.
On the other hand, a question of fact is defined by the Supreme Court in Ugboaja vs. Akintoye–Sowemimo & Ors (2008) LPELR–SC 324/2001 as follows
“A question of fact” also does not have one meaning as it may mean:
(i) a question which is not determined by a rule of law;
(ii) any question except the question as to what the law is; and
(iii) any question that is to be answered by the Jury rather than the Judge” is a question of fact.”
I thus proceeded to examine the Appellant’s seven Grounds of Appeal (supra) in the context of the Issue at hand; beginning with the first Ground. I have carefully read it again. I have read and examined each of the five Particulars enumerated under it. Both the Ground and each of its Particulars are all matters of law. There is not one aspect in the entire Ground which canvassed or seeks a determination of any fact. The hallmark of this Ground is the interpretation of Order V Rule 10 of the Matrimonial Causes Rules in the context of judicial interpretations on same. It is unarguably a Ground of law.
Ground 2 alleged misdirection in law in relation to the lower Court’s interpretation of Order V Rule 10 of the Matrimonial Causes Rules and lack of jurisdiction by the lower Court. Ditto the four Particulars enumerated thereunder.
Ground 3 alleges miscarriage of justice and lack of jurisdiction owing to the alleged incompetence of the Respondent’s Petition in the context of Sections 114 and 115 of the Evidence Act, 2011 and Order V Rule 10 of the Matrimonial Causes Rules. Neither the Ground nor any of its four Particulars canvassed any question of fact. Ground 3 is Ground of law.
Ground 4 alleges bias and lack of fair hearing. It is also what runs through each of its five Particulars. I have not found any significant question of fact in both. They are both questions of law.
Ground 5 alleges that the lower Court while without jurisdiction proceeded to award cost against the Appellant. Ditto the six Particulars enumerated thereunder. An issue of jurisdiction is a ground of law while the challenge against the order of cost is not the sole Ground of the Appeal. See Section 241 (2) (c) of the Constitution FRN 1999, as amended.
Ground 6 along with its Particulars alleges misdirection in relation to the lower Court’s interpretation of cited judicial decisions of the Court of Appeal and the Supreme Court on the question of the competence of the Petition. It is a ground of law.
Ground 7 alleges error in law questioning the lower Court’s decision that the Appellant’s Cross Petition amounted to waiver of the Appellant’s challenge to the jurisdiction of the lower Court. It is also what the five Particulars enumerated thereunder are all about. No facts were canvassed. It is a ground of law.
In my respectful view, the Appellant’s Notice of Appeal being one on questions of law was therefore filed competently without the leave of the lower Court or this Court. In contradistinction, it is the Respondent’s Notice of Preliminary Objection that is incompetent owing to its incompetent Ground 2 which, as may be recalled, ought not to have been channeled through a Notice of Preliminary Objection. In the manner determined herein (the Respondent’s Issues for determination listed as (a) and (b) (supra) are resolved in favour of the Appellant.
The Respondent’s Issue (c) (supra) under which it is argued that all the Grounds in the Appellant’s Notice of Appeal are such that could be conveniently determined by way of a substantive appeal after final judgment on the Petition is one which is built upon the erroneous notion that there are no jurisdictional issues in the Appellant’s Grounds of Appeal. A challenge to the jurisdiction of a Court cannot be kept in view or pushed to the back bench. It must be resolved one way or another because embarking on further hearing or determinations in the proceedings will be akin to driving in a dark, rainy night without head lamp. Save in some recent legislations such as the Administration of Criminal Justice Act, 2015 in its Section of 221 which has outlawed preliminary objections against an imperfect or erroneous charge, the Constitution FRN 1999 (Fourth Alteration No. 21) Act 2017 in its Section 2 (b) which stipulates that a ruling on a preliminary objection touching on the jurisdiction of a Court or Tribunal be suspended till the stage of final Judgment; both legislations seeking thereby to revolutionize the hitherto sluggish, inimical delays in the proceedings thereunder, the judicial jurisprudence on a challenge to the jurisdiction of a Court remains generally the same that a Court, whether sitting as a trial or appellate Court, shall timeously attend to and resolve a jurisdictional challenge before proceeding into the matter before it. See Nigerite Ltd vs. Dalami (Nig) Ltd (1992) 7 NWLR (Pt. 235), 288 at 297; Maishanu vs Manu (2007) 7 NWLR (Pt.1032), 42 at 51, Aje Printing (Nig) Ltd vs Ekiti LGA (2021) 13 NWLR (Pt.1794), 498 at 541-542; Orok vs. Eta (2021) 12 NWLR (Pt.1790) 350 at 370.
It is my considered view that it is a wrong premise to contend or suggest that the resolution of the jurisdictional issues raised in the Appellant’s Grounds of Appeal be deferred till the stage of final judgment as canvassed under the Respondent’s Issue (c) (supra), In effect, this Issue too is resolved in the Appellant’s favour.
The Respondent’s last Issue (c) (supra) is on whether this “Court can exercise its discretion as claimed by the Appellant/Respondent herein by granting the Preliminary Objection as filed in the trial Court in limine without trial on the merit.” Reading through the arguments canvassed there under however, it is very clear that those arguments are neither devoted to nor flow from the Issue formulated. Instead, those arguments are on the need by this Court to exercise its discretion to order for accelerated hearing of the substantive Petition before the lower Court. Where arguments do not flow from the Issue formulated on same, the Court will discountenance those arguments; which in effect also results in striking out the Issue in question. See Osinupebi vs. Saibu (1982) 7 SC, 164; Olorunkunle & Anor vs. Adigun & Ors (2012) LPELR–CA/L/747/09; Gwede vs INEC & Ors (2014) LPELR–23763 (SC). The Respondent’s Issue “(C)” is accordingly struck out.
In the backdrop of the foregoing considerations and determinations, the Respondent’s Preliminary Objections are without merit and are thus accordingly dismissed
RESOLUTION OF THE APPEAL
At this juncture, may I remind the parties that the seven Grounds of the Notice of Appeal herein have been reproduced and read earlier in this judgment. It is from these Grounds that the Appellant’s learned counsel has formulated the following three issues for determination:
“ISSUE ONE
Whether by the facts of the Appellant’s case in relations to the decisions in Unegbu V. Unegbu (2004) 11 NWLR (Pt. 884) p. 332, Samuel V. Samuel (2019) LPELR-48471 (CA), Wokoma V. Wokoma (2020) LPELR-49882 (CA), inundating the law on the of non-compliance with Order V Rule 10 (1) of the Matrimonial Causes Rules, the lower Court was right when it failed to distinguish it from the facts in the Supreme Court’s decision in Umeakuana vs Umeakuana (2019) LPELR-48904 (SC) before assuming jurisdiction to entertain the Respondent’s petition? (Distilled grounds 1, 2, 3, 6 and 7 of the Notice of Appeal).
ISSUE TWO
Whether despite there being no objection by the Respondent to the Appellant’s prayer to deem as properly filed and served, her witness statement on oath, the remark of the judex at the Court below, that he was not incline to granting the prayer which consequently led to the withdrawal the prayer does not in the circumstances amount to bias against the Appellant? (Culled ground 4 of the Notice of Appeal)
ISSUE THREE
Whether the lower Court’s exercise of discretion by the award of costs in the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira Only) against the Appellant was judicious, justice-driven, fair and judicial exercise of discretion when no conduct or attitude of the Appellant was unruly, outlandish, time-wasting or opposable to the spirit and intendment of the Matrimonial Causes Rules or the parent statute but rather predicated thereon? (Distilled from ground 5 of the Notice of Appeal).”
For the Respondent, his learned senior counsel adopted and argued the Respondent’s position therefrom.
The gist of the Appellant’s first Issue is that the lower Court failed to distinguish the decisions in Unegbu vs. Unegbu (2004) 11 NWLR (Pt. 884) 332; Samuel vs. Samuel (2019) LPELR-48471 (CA) and Wokoma vs Wokoma (2020) LPELR 49882(CA) from the decision in Umeakuana vs Umeakana (2019) LPELR—48904 (SC) before assuming jurisdiction over the Respondent’s Petition. The Issue is shown to have been distilled from the Appellant’s Grounds of Appeal numbers 1-3, 6 and 7. The Issue is in accord with the Appellant’s complaints in those Grounds. The contention of the learned counsel for the Appellant is that it is the decisions in Unegbu vs Unegbu (supra) and Samuel vs. Samuel (supra) that are relevant and applicable to the facts and issues in the Petition before the lower Court but which it failed to apply without distinguishing those decisions from the decision in Umeakuana vs. Umeakuana (supra) which the lower Court chose instead to rely on and apply erroneously.
In conformity with the Issue as formulated, the entire arguments and submissions for the Appellant here appears neatly condensed in the following excerpt:
“4.2. It is our collective but humble submission that the lower Court erred in law when it failed to distinguish the facts in the Supreme Court’s decision in Umeakuana vs Umeakuana in relation to the facts this case as well as having due regards to the extant principle of laws as enunciated in Unegbu V. Unegbu (2004) 11 NWLR (Pt. 884) p. 332, Samuel V. Samuel (2019) LPELR-48471(CA), Wokoma V. Wokoma (2020) LPELR–49882 (CA) with respect to the effect of non-compliance with Order V Rule 10(1) of the Matrimonial Causes Rules.
“…The lower Court without properly distinguishing the facts of the instant case misdirected itself when it canvassed the view that UMEAKUANA V. UMEAKUANA (2019) 14 NWLR (PT.1691), 61 decided by the Supreme Court had rendered the line of authorities following UNEGBU vs. UNEGBU (supra) “a dead version” No! In our humble view. Contrary to the opinion of the lower Court, the Supreme Court’s decision in UMEAKUANA V. UMEAKUANA (supra) was not decided on the basis of the competence of the Petition as the issue of competence same having been abandoned and struck out…” (Underlining by counsel).
No less eloquent are the contrary arguments and submissions canvassed at length by the learned senior counsel for the Respondent; which altogether faulted the Appellant’s arguments as misconceived and erroneous in view of the applicable force of the decision in Umeakuana vs. Umeakuana (supra) which overturned the decision relied on by the Appellant’s learned counsel. In his own words, in brief:
“15.3 The position canvassed by the Appellant is not the current position of the law decision in Umeakuana vs. Umeakuana and UGBOTOR VS. UGBOTOR (supra) upon which the Appellant’s objection at the trial Court was heavily founded, which case is on all fours with the Respondent’s case, have since been overturned by the apex Court. The apex Court actually dismissed the said appeal emanating from the decision in Umeakuana vs. Umeakuana (supra).
15.4. The apex Court indeed awarded the sum N1,000,000.00 (one million naira) only against the Respondent while allowing the appeal in favour the Appellant therein.
15.5 We most respectfully bring to the attention of this honourable Court the most recent position of the law as decided in 2019 by the apex Court with respect to the same judicial authority the Applicant erroneously perched upon. The Supreme Court in dismissing the erroneous holding by the Court of Appeal in the case of JOHN UMEAKUANA v. MRS. VIRGINIA UMEAKUANA (2019) LPELR-48904(SC), the apex Court held that:
“The Court of Appeal went too technical in striking out the petition on the ground of non-compliance with the Rules at the expense of substantial justice”. See also the case of Okumagba v. Esisi (2005) 4 NWLR (Pt. 916) 501″
15.6. The apex Court in dismissing the appeal in the above judicial authority further state thus:
“The Court of Appeal persisted in this error where it also said:-
“I have already pointed out earlier in this judgment that compliance with the provisions of Rule 10 (1) of Order V of the Matrimonial Causes Rules (supra) is mandatory, the failure by the Respondent to verify the facts stated in his petition of which he has personal knowledge, as required by the said rules, is fatal fundamentally to his petition.” This appears at page 260 lines 20-24, Record. If is to be said along well settled views of this Court that mandatory Rules are not sacrosanct or cast in iron since situations occur while applying the Rules where the interest of substantial justice would ruling the waves make an otherwise mandatory rule to become directory or permissive as all Rules of Court are made in aid of justice and so the interest of justice will take paramountcy over any rule where strict compliance of it will lead to outright injustice. See Oputa A JSC in Oloba v Akereja (1988) 3 NWLR (Pt.84) 508 at 528. A. The conclusion which I have no difficulty in reaching is that the appeal has merit and I allow it. I set aside the decision and orders of striking out of the Petition as made by the Court of Appeal. in its place, I restore the decision of the trial High Court which dissolved the marriage of the parties. I award costs of N1,000,000.00 to the Appellant to be paid by the Respondent”.
(Underlining ours for emphasis).
(Underlining by counsel).
We respectfully submit and urge my Lords to so hold, that assuming but wither conceding that the Respondent failed to comply with the Order V Rules 10 (1) of the Matrimonial Causes Rules, as held in the above case, such non-compliance with the rules of Court cannot be sacrificed at the expense substantial justice?’
In the heat of the forceful arguments by both learned counsel, let it not be forgotten that the issue in contention is whether the lower Court failed to distinguish the decisions cited and relied upon by the Appellant and by extension whether the lower Court’s reliance instead on the decision cited and relied upon by the Respondent is right. Unlike both learned counsel who referred to their preferred portions of the decision of the lower Court on this Issue, I found the relevant portion of the decision quite extensive; its main being thus;
“With respect to the issue as to the requirement for the verifying Affidavit to be contained in the same document as the Petition in that it shall follow at the foot or end thereof, learned counsel for the Respondent/Objector cited and relied on the authority of Samuel vs. Samuel (supra) and contended that the verifying Affidavit filed by the Petitioner in the instant Petition did not continue, at the foot of the Petition; but that it commenced on a separate sheet and as such failed to comply with the mandatory requirement Order V. Rule 10 (1) of the MCR.
In response, Chief Ozekhome, SAN, of learned senior counsel for the Petitioner/Respondent, contended that the positions canvassed by the Respondent/Objector’s learned counsel no longer represented the current position of the law. Learned senior counsel drew the Court’s attention to the Supreme Court version the decision in Umeakuana vs Umeakuana; which, according to learned senior counsel, had overturned the earlier decision of the Court of appeal heavily relied upon by Mr. Tochukwu, to ground the instant objection.”
See pages 208 to 209 of the Record of Appeal.
The lower Court continued further:
“The Court of Appeal indeed endorsed my opinion here in the recent authority of Wokoma vs. Wokoma, where it was held, on the object of the MCR; per Nimpar, JCA, as follows.
“Their overall aim is to ensure that substantial and practical justice is done in the cases presented by the parties devoid of technicalities that only relates to form but not the substance of the case.”
It is with this understanding at the back of my mind that approach the determination of the instant objection, which any event is quite familiar.
I quite understand the grouse of the Respondent/Objector with the form and content of the Verifying Affidavit filed alongside the Petition by the Petitioner. The question is whether the grouse is well founded.
I had examined the Verifying Affidavit filed by the Petitioner. Let me deal at first with the challenge to the form in which it is filed the Respondent/Objector complained that the Verifying Affidavit did not continue at the foot of the Petition and that it was commenced on separate page. To say the least; and with due respect to learned counsel for the Respondent/Objector, this seems to me to be a very ridiculous and most frivolous objection to make in any proceedings in contemporary litigation which focuses more on attaining substantial justice as … technical justice.
That notwithstanding, I had critically and severally examined the provision of Order V Rule 10(1) on which this objection is predicated. I found nothing in the provision which suggest that Verifying Affidavit must commence or continue at the foot of a Petition or on the same page where a Petition ends, it would have been extremely ridiculous, to say the least, if the Rules have made such senseless provision.
By my understanding, when the Rules provide that “A petitioner shall, by on affidavit written on his petition and sworn to before his petition is filed… what this simply means is that the affidavit shall accompany the petition and no more. I so hold.
I have noted the authority of Samuel vs. Samuel (supra), relied upon by the Respondent/Objector for the submission that the verifying Affidavit shall follow at the foot or end of the petition. Apart from the fact that there is nothing in the provision of Order V. Rule 10(1) that states that the Verifying Affidavit shall be contained in the same document as the Petition and shall follow at the foot or end of the Petition; the facts of the said authority that resulted in the decision of the Court of appeal in that case are clearly distinguishable from the fact of the present case. Whereas in that case, the verifying Affidavit in contention was filed as a separate and distinct process from the Petition; but in the instant case, the Petition and the Verifying Affidavit are contained in the same single process.
The position of the Petitioner is further fortified by the authority of Ojeniran vs. Ojeniran (supra) where the Court of appeal, per Uwa, JCA, held as follows:
“Therefore, the provision contemplates that the affidavit would accompany the petition by being annexed to and forming part of the petition to be filed. Therefore, the important thing is that the petitioner swear to the truth of the facts set out in the petition, to his knowledge and belief. As long as the affidavit is sworn to before the petition was filed and it accompanied the petition, the requirement under Order V, Rule 10(1) would have been met.”
Again, I had examined the petition instant to see the positioning of the verifying Affidavit. Good enough, the entire petition is numbered. While the petition itself terminates at the very foot of page 19 thereof, with the address for service of the Respondent; the verifying Affidavit reasonably commenced at the top of the very next page (page 20), it would not have been done in any other manner since nothing more could be squeezed into or accommodated at the foot of page 12 where the petition terminated. As such, even if it is conceded that the Rules require that the Verifying Affidavit must follow immediately after the Petition or at the foot of the Petition; the Petitioner had complied with that requirement as practicable as he possibly could in the circumstances of the present case. I so hold.
On this score, I hold that the Petitioner had perfectly complied with the provisions of Order V Rule 10(1) of the MCR, as to the form in which his Verifying Affidavit to the instant Petition is filed.”
See pages 213-219 of the Record of Appeal.
Down the line, the lower Court held emphatically thus:
“The Respondent/Objector’s learned counsel obviously goofed when he relied on a dead version of the authority of Umeakuana Vs. Umeakuana (supra) to ground his objection that the facts set out in the verifying Affidavit were sweeping and scanty. I must also quickly add that I had read the authority of Ugbotor vs. Ugbotor (supra) also relied upon by the Respondent/Objector to ground the instant objection, but the issue in contention on appeal in that case have no bearing whatsoever with the present objection. As such, I hold that the authority is totally inapplicable to the case at hand.”
See page 220 of the Record of Appeal.
“As correctly noted by the Respondent/Objector’s learned counsel, the content of the Verifying Affidavit in contention in the said authority of Umeakuana vs. Umeakuana (supra) is similar to the one deposed to by the Petitioner in the present case. As such, even if it is viewed as falling short of the requirements of the Rules as to its contents, the Supreme Court had settled it once and for all when, in Umeakuana vs Umeakuana, it descended on the Court of Appeal for adhering stringently to technicality as against substantial justice, by striking out the Petition in that case on grounds of irregularly filed Verifying Affidavit, inter alia; and proceeded to rely on its decision in Oloba vs. Akereja, where it held as follows:
“If is to be said along well settled views of this Court that mandatory Rules are not sacrosanct or cast in iron since situations occur while applying the Rules where the interest of substantial justice would ruling the waves, make an otherwise mandatory rule to become directory and permissive as all Rules or Court are made in aid of justice and so the interest of justice will take paramountcy over any Rule where strict compliance if it will lead to outright injustice.”
See, pages 223 to 224 of the Record of Appeal.
Virtually every page of the lengthy decision by the lower Court contains significant relevant pronouncements on the Issue at hand; the portions reproduced herein being only a few on it. I have gone to great length in reproducing those portions for two reasons; firstly to accord a better appreciation of the Issue in the Record and secondly but more importantly to fully understand the reasonings of the lower Court on the aspects of its decision that are the subject of the Appellant’s first Issue herein.
Where then or how did the lower Court get it all wrong; if at all?
In my humble view, the Issue is not as complicated as it is made in the arguments of both parties. To begin with, it is noteworthy that both learned counsel are not only on common ground but extol the settled principle of stare decisis in our judicial jurisprudence. Their commendable insistence on the binding force of the decisions of a higher or the highest Court in the judicial hierarchy on the lower Court(s) in the hierarchy is illustrative of their faith and loyalty in this judicial arrangement. That is what Sections 283(1) and 240 of the Constitution FRN 1999 as amended are about. High Courts and all others of coordinate jurisdiction are bound to obey and apply the decision of the Court of Appeal in relevant matters or issues before them in the same way that the Court of Appeal must bow down fully to the decision of the Supreme Court on relevant issues before it without option. It is not about the fallibility or infallibility of the judex in this hierarchy; it is about certainty and predictability of the law and judicial process which are the hallmark of a dependable judicial system.
That is why even the Supreme Court itself is generally bound by its own decisions; ditto the Court of Appeal. See Adamu Suleman & Anor vs. COP Plateau State (2008) 34 SCCR (Pt. 1) 226; Veepee Industrues Ltd vs. Cocoa Industries Ltd (2008) LPELR SC.225/2004; Ekpenyong & Anor vs. Duke & Ors (2008) LPELR-CA/C/NAEA/16/2008.
The Bench and the Bar in particular must always uphold, project and enhance this neat, harmonious arrangement; not to upset or disparage it.
By this constitutional arrangement, the lower Court is unarguably also as duty bound by the decisions of the Supreme Court as is the Court of Appeal. In the Issue at hand, the lower Court had not only to consider and apply the decisions of the Court of Appeal in Unegbu vs. Unegbu (supra), Samuel vs. Samuel (supra) and Wokoma vs. Wokoma (supra) advocated by the Appellant but also the decision of the Supreme Court in Umeakuana vs. Umeakuana (supra) advocated by the Respondent. I am in agreement with the learned counsel for the Appellant that the consideration here should not be solely on whether the decision is by the Supreme Court or the Court of Appeal but whether the facts, the law and the decision in the judicial authority cited are relevant or have any bearing with those in the Petition before the lower Court. That, in my view is the utilitarian feature of stare decisis.
Firstly, in my humble view, deduced from a careful study of the lower Court’s decision, more particularly in the portions reproduced earlier herein, it is incorrect to contend that the lower Court failed to distinguish the decisions cited by the Appellant’s learned counsel from the decision cited for the Respondent; which ultimately formed the basis of the decision. Much as the learned counsel may argue that those decisions portray a replica of the facts, issue and the law in the Petition before the lower Court, the learned trial Judge of the lower Court after reading those decisions formed and expressed a contrary view and found instead the facts, the law and the Issues in the decision cited by the Respondent on all fours with those in the Petition before him. If all the analysis and views expressed by the lower Court on those decisions do not amount to distinguishing same viz-a-viz the decision cited by the Respondent, I wonder what the learned counsel for the Appellant means or implies by the contention that the lower Court failed to distinguish the decisions he relied on in his Preliminary Objection. The lower Court stressed that its considered view of the entire Petition before it have a lot to do with those in the decision cited for the Respondent, in contradistinction to those in the decisions relied on for the Appellant. Where then lies the failure or infraction by the lower Court here?
Secondly, when the Respondent’s learned senior counsel submitted before us vide pages 19 to 20 of the Respondent’s Brief that the decisions heavily relied upon by the Appellant on this Issue no longer represent the law, same having been upturned by Umeakuana vs. Umeakuana (supra), there was no dispute or word on it in the Appellant’s Reply brief; apparently still placing reliance on his contention that the Supreme Court’s said decision “was not decided on the basic of the competence of the Petition.” I have read the decision. Contrary to the contention of the learned counsel for the Appellant, the decision is pointedly relevant to the Issue at hand just as it was before the lower Court and was therefore not a matter of discretion but a duty on the lower Court to follow and apply it. Both learned counsel have quoted a few preferred portions of the decision. To fully appreciate its relevance, a little more detailed portion of the decision is reproduced here in context thus:
” I shall quote for clarity what the Court below stated when it allowed the appeal of the Respondent and striking out the petition as follows:
“In this case, it appears to me that the word “shall” as used in the rule imposes obligation to do or comply with what is imposed in the rule. The word, therefore, as held in Unegbu v Unegbu (supra) has been used in mandatory sense requiring strict obedience and fulfillment. Meaning, failure to do exactly what is required by the rule could be fatal to the divorce petition.”
This appears at the page 258 line 14—18, Record.
The Court of Appeal persisted in this error where it also said:
“I have already pointed out earlier in this judgment that compliance with the provisions of Rule 10(1) of Order V of the Matrimonial Causes Rules (supra) is mandatory, the failure by the Respondent to verify the facts stated in his petition which he has personal knowledge, as required by the rule, is fatal fundamentally to his petition.” This appears at page 260 lines 20-24, Record.
On what the Court should do when faced with apparently, mandatory “shall” developed in a statute, which is what the Respondent is holding onto to rest her case on the non-compliance with Order V Rule 14(1) of the Matrimonial Causes Rules. I cite Katto v. CBN (1991) 2 NWLR (Pt. 214) at Per Akpata, JSC in aid thus:
“It is true that by Order 3, Rule 2 (1) an Appellant “shall” state also the exact nature of the relief sought. The use of the “shall” tends to give the impression that it is mandatory or imperative to specify the exact name of the relief sought. Generally, the term “shall” is a word of command and denotes obligation and gives no room to discretion. It impose a duty. The term is however sometimes construed as merely permissive or directory to carry out the legislative intension. Particularly in case where its being construed in mandatory sense will bestow no right or benefit to anyone. When construed as being permissive or directory it carries the meaning as the word “may”. As stated in the case Liverpool Bank v. Turner (1860) 30 L. J Ch. 379 to 381 (cited by Craies in his — “Treatiese of Statute law 4th Edition page 233. “No universal rule can be laid down for the construction of statues as to whether mandatory enactments shall be considered directory only or obligatory with implied nullification disobedience. It is the duty of Court of justice to try to get at the real intention the legislature; by carefully attending to the whole scope of the statute to be construed.” (Underlining mine).
It is to be said along well settled views of this Court that mandatory Rules are not sacrosanct or cast in iron since situations occur while applying the Rules where the interest of substantial justice would ruling waves make an otherwise mandatory rule to become directory or permissive as all Rules of Court are made in aid of justice and so the interest of justice will take paramountcy over any Rule where strict compliance of it will lead to outright injustice. See Oputa, JSC in Oloba v Akereja (1988) 3 NWLR (Pt.84) 508 at 528.
Belgore JSC (as he then was) in FGN v Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) at 204–205 stated thus “No Court of law shall be shackled by procedure, case is not made for procedure rather it is the other way round. If the procedure employed has clearly brought out the issue the parties contest, it will not matter that the procedure is not the correct one. Getting to the destination is what is important, it does not matter the means.”
In this concurring judgment in Anatogu v Anatogu (1997) 9 NWLR (Pt. 519) 49 at 69 paras E-H Achike, JCA (as he then was) stated thus:
“The problem in this appeal is simply one of characterization of the nature of the defect in the commencement of the action herein; I cannot allow a mere defect in form to steal the show from an otherwise apparent procedural defect as an error which the Court can forgive without any loss, financially of otherwise, to be parties.”
I see no further point going on with a matter which fact and underlining manoeuvers are clear to the naked eye as the trial Court was right to have heard and determined the divorce petition having no objection to any irregularity before it. A situation in matrimonial cause where the parties had lived apart for a period of 10 years before the presentation of the petition and the Respondent had no cross-petition, clearly what she seeks is to cause delays and see that there are motions without movement. Sadly, the Court of appeal fell into the trap well laid out by the Respondent in this ploy to frustrate the petition and dissolution of the marriage that has died naturally. We cannot accommodate this luxurious power play of the Respondent by indulging the use albeit the abusive use or twisting of Court processes to get their way. See Okumagba v. Esisi (2005) 4 NWLR (Pt. 916) 501.”
In my humble view, nothing could be further from reality than to contend that the decision of the Supreme Court in Umeakuana vs. Umeakuana (supra) is not relevant and applicable to the Appellant’s Preliminary Objection before the lower Court or that the lower Court should have jettisoned same in favour of the earlier decision by this Court in Unegbu vs. Unegbu (supra) which the Supreme Court held was decided in error; particularly on the strict stance of this Court in construing the provisions of the Matrimonial Causes Rules in a manner that negates the very essence of discretion; which in my respectful view is also supported by the provisions of Section 6 (6) (a) of the Constitution FRN 1999, as amended. I think it may not be out of place to recall here the views expressed by the lower Court on this point at pages 212-213 of the Record thus:
“What then is the jurisprudence behind the classification of matrimonial causes as sui gene … venture an answer, which, by my understanding, is, in view of their Rules of procedure are made somewhat flexible, such that proceedings are not dogged and burdened by the web of cumbersome legal technicalities; and to afford her smooth and quick disposal such cases demonstrating the flexibility the applicability of the Rules, various provisions have been inserted by the makers of the MCR to obviate strict compliance with technical requirements; in order to engender smooth, seamless and quick disposal of such causes. For instance, I make specific reference to the provisions of Order 1 Rule 14 (which dispenses with strict compliance with Forms in the First Schedule); Order IV 3(4) and Order V Rule 27 (which dispenses, with the need to file marriage certificate alongside the Petition by all mean, but with good reason); Order VI Rule 6 which gives the Court the power to dispense with service of Petition of any other process as it consider expedient); Order XXI Rules 2 and 3 (which, subject to the MCA) empowers the Court to relieve a party of the consequences of non-compliance with the Rules of practice and procedure); just to mention a few.”
In my view, those views are comfortably accommodated in the decision of the Supreme Court in the Umeakuana’s case (supra) and several others. I am in agreement with the views expressed by the lower Court. In the manner determined herein, this Issue is resolved in the Respondent’s favour.
Rooted in Ground 4 of her Notice of Appeal, the Appellant’s second Issue for determination canvassed arguments and submissions by which altogether this Court is invited to hold that the lower Court was biased against her as demonstrated in the proceedings of the 10th and 19th of March, 2021.
The complaint of the Appellant is that at the hearing of her motion on Notice on the 10th of March, 2021 by which she was to seek for extension of time to file her Memorandum of Appearance on Protest, Notice of Preliminary objection Answer to Petition and Cross Petition and Witness Statement on Oath, the lower Court displayed unwillingness to grant the prayer seeking for leave to file her Witness Statement on Oath although the Respondent was not opposed to it. As narrated by the Appellant, the adverse posture of the learned trial Judge which was demonstrated by his warning on the Appellant’s learned counsel to withdraw the prayer on the ground that the Matrimonial Causes Act did not provide for the filing of witness Statement on Oath, showed bias by the learned trial Judge against the Appellant. It is argued that the posture of the learned trial Judge was aimed at giving a soft landing for the Respondent by berating the Appellant’s Statement on Oath as incompetent under the Matrimonial Causes Rules. In arguing this Issue, reliance was placed on the decisions in Bakare vs Apena & Ors (1986) LPELR-709 (SC); Adebayo vs. Akatapa & Ors. (2015) LPELR-41703 (CA); Akpan vs. BOB & Ors (2010) 17 NWLR (Pt. 1223) 421 at 465 among others.
There are however no specific arguments or any allegations canvassed against the proceedings or the ruling/decision of the 19th of March, 2021 as earlier hinted in the first paragraph of the Appellant’s arguments under this Issue.
Expectedly, the arguments canvassed for the Respondent on this Issue all boil down to a complete denial of the allegation of bias raised by the Appellant against the learned trial Judge. In particular, it is argued that the Record of proceedings do not show any such incidence alleged by the Appellant or a pronouncement on it by the lower Court which therefore renders the Appellant’s allegation of bias misleading. It is further argued that the Appellant’s counsel on his own; without any prompting, applied to withdraw the motion’s prayer seeking for leave to file Witness Statement on Oath but is now turning around to allege bias against the trial Judge for striking out the particular prayer which the Appellant’s learned counsel himself applied to withdraw. Cited and relied on in support of these arguments are the decisions in Akpanette vs. Otu & Ors (2020) LPELR—50565 (CA); CBN vs. Nwanyanwu & Sons Ltd (2014) LPELR-22745 (CA). The Respondent argued and maintained strongly that the Appellant’s claim of warning by the learned trial Judge and her alleged impressions thereby are a ploy meant to build the allegation of bias against the trial Judge. It is also argued that the Issue as raised is a fresh issue which the Appellant can not raise competently without seeking the leave of this or the lower Court.
I will start on the Respondent’s argument and submission that the Appellant requires leave to raise and argue this Issue same not having been raised before the trial Court and pronounced upon. To begin with, this Issue is distilled from Ground 4 of the notice of Appeal. Earlier in this judgment, the Court has overruled the Respondent’s Preliminary Objection against the competence of Ground 4 of the Notice of Appeal raised on the ground that the Appellant failed to seek for leave in respect of Ground 4 of the Notice of Appeal. In effect, this Issue which is clearly distilled from Ground 4 of the Notice of Appeal is also competently formulated and argued. Secondly, the Respondent’s further argument that the Issue is not one that was derived, from or based upon any pronouncement by the lower Court and therefore incompetent is, with respects, incorrect. Firstly, the Appellant has specifically referred to the proceedings of the lower Court held on the 10th of March, 2021 by which she alleged the incidence and circumstance from which the allegation of bias is predicated. Secondly, the insistence on printed pronouncement by the lower Court on the allegation of bias will render it totally impossible to raise it in peculiar situation and circumstances which although genuine are not the type which could be captured in the Record of Proceedings and thus impossible to pronounce upon because they are extrinsic. The decision of the Apex Court in Akpan vs. BOB & Ors (supra) and by this Court in FRN & Ors vs. Abacha (supra) cited by the learned counsel for the Appellant are elaborately demonstrative and instructive on the point.
From the totality of the arguments for both parties; more particularly the Appellant’s, it is clear that the allegation is that of judicial bias. As cited and quoted by the Appellant’s counsel, the Supreme Court in Raffi’u Womiloju & Ors vs. Anibire & Ors (2010), 7 SCM, 217 at 223 at which I found and read also at LPELR – 3503 (SC) more particularly at pages 9-11 held thus:
‘Bias’, generally, is that instinct which causes the mind to incline toward a particular object or course. When a Judge appears to give more favour on consideration to one of the parties before him either in his utterances, attention or actions, which is capable of perverting the cause of justice, or where fair hearing cannot be said to take place, all in favour of the party he supports covertly or overtly, then an allegation of bias against him can be grounded. That of course is a judicial bias. But where a trial has been conducted in which the authority of the Court has been exercised in consistence with the conception of the process of law, then there is said to be a fair hearing. This contemplates of allowing the parties equal opportunity to present evidence; to cross-examine witnesses and for the trial Court to make finding which are supported by evidence. See: Omoniyi v. General Schools Board, Akure & Ors (1988) 4 NWLR (Pt. 89) 449 at page 463; Elike v. Nwakwoale & Ors (1984) 12 SC 301 at 341; Ariori v. Elemo (1983) 1 SC 13 at 81; Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407 at 443.
“For an allegation of judicial bias against the person of a Judge to succeed, the accuser must establish his allegation on some extra judicial factors/reasons such as where such factors or reasons are absent such ‘perceived’ judicial bias is insufficient to justify disqualify a Judge from participating in a case which is properly brought before him for adjudication. The allegation cannot be founded, on mere conjecture or hearsay.”
Down the line at pages 17-18, the Apex Court highlighted the magnitude, nature and proof of judicial bias thus:
“I think I need to draw attention of litigants generally and legal practitioners in particular that the allegation of bias is a very serious attack on the person and integrity of a Judge. A counsel who decides to launch such attack on a Judge must be prepared to show by concrete evidence in support of his allegation. If it can be reasonably inferred by a reasonable person sitting in Court, from the circumstance that there is a real likelihood of bias against one of the parties the, part of the Court, it must follow irresistibly that party’s right to a fair heaving had been contravened and the decision on the issue between the parties by the Court in such circumstances should not be allowed to stand.
The test of determining a real likelihood of bias is that the Court does not look at the mind of whoever sits in judicial capacity. It does not look to see if there was real likelihood that the Judge would, or did, infact, favour one side at the expense of the other. It rather, looks at the impression which would be given to the other people. The likelihood, bias, nevertheless, must be real, not a surprise, caricature or a game of chance.
Where the conduct of a Judge or Tribunal is impugned, the Court or Tribunal is concerned with whether the Judge/adjudicator was infact biased. Where even the evidence adduced has pointed strongly to the inference that a Judge or adjudicator was infact biased, the Court confines itself to the determination of whether a likelihood of bias has been established. The question is always answered by inference drawn from the circumstances of the case. The reason for this attitude of the Court is that it would be unseemly for the Court to purport to pry into the state of mind of any judicial officer. See: Abiola v. Federal Republic of Nigeria (1995) 7 NWLR (Pt. 405) 1.”
See also Ojengbede vs. Esan (LoIa Oke) & Anor (2001) LPELR – 2372(SC).
An allegation of judicial bias is a weighty one because it does not only impugn the integrity of the Judge accused of bias, it also easily puts the integrity and honour of the judicial system on the line. Without undermining or disparaging the importance and propriety of such allegation, the age old golden rule of proof of assertion as encapsulated in Sections 131 and 132 of the Evidence Act 2011 apply in all its ramifications to the accuser, -the Appellant in this case, to prove his assertion. A party or counsel who alleges judicial bias must do so, on unimpeachable grounds or facts that would show a real likelihood of bias in favour of one party against another in a judicial proceeding. These grounds or facts altogether must be ones that would or did generate reasonable impression of a likelihood of bias. It should be borne in mind that although the standard of proof of the allegation is on balance of probabilities under Section 134 of the Evidence Act, it is certainly not akin to proof of simple, ordinary counsel claims such as filing date of a process, lack of service of a process or hearing notice etc. which can be easily verified and proved from the Court records within minutes. The nature, magnitude and effect of the allegation of bias innately raised its proof beyond the shores of ordinary, simple or sometimes casual claims in judicial proceedings. Notwithstanding, the accuser’s burden of proof remains or a balance of probabilities; albeit with concrete proof; not speculation or surmise. It is in this light that I have proceeded to consider the Appellant’s allegation as argued under this Issue. See The Secretary of Iwo Central Local Govt. & Ors vs. Taliatu (2000) LPELR–3201 (SC); Ikumonihan vs The State (2013) LPELR-20529 (CA).
As may be recalled, the learned counsel for the Appellant has rooted the allegation and the arguments under this Issue in the proceedings of the lower Court held on the 10th of March 2021. Those proceedings are contained at pages 197-201 of the Record. I have read its entirety. In his argument on this Issue however, the Appellant’s learned counsel specifically narrowed our attention to page 198 of the Record. See paragraph 5.5 of the Appellant’s Brief.
The proceedings at page 198 of the Record are short and they relate inter alia to the hearing of the Appellant’s Motion on notice prefaced earlier herein by which the Appellant sought for extension of time and leave to file processes. The proceedings ensued thus:
“RC: We have a notice of preliminary objection. It was filed on 19/2/2021
We also have a motion on notice filed on 19/2/2021 we seek to move the application.
COURT: Please proceed with the application
RC: We seek the reliefs as set out the face the paper.
We seek leave to withdraw prayer 2(d) & 3(d) application.
We do not oppose.
COURT: ORDER.
Application is hereby granted save for prayers 2(d) & 3(d) which were withdrawn are hereby accordingly struck cut.
Sgd
Hon. Judge
10/03/2021″
With the arguments and submissions of both parties settled in my mind, I proceeded to examine carefully the proceedings at page 198 of the Record (supra). I further examined the entire proceedings of the 10th of March 2021 at pages 197-201. I analyzed each sentence of remark; more particularly between the lower Court and the Appellant’s learned counsel. Although the Appellant’s learned counsel narrowed our attention and search to page 198 of the Record, I defied the limitation and examined every sentence in the entire proceedings critically, propelled by the desire to find therefrom any aspect of it that may provide an impression of likelihood of bias by the lower Court against the Appellant. The more I tried the more my hopes dwindled. I persisted doggedly; until i could search no more and threw in the towel. My finding is that there are no facts or grounds to base or suggest a likelihood of bias by the lower Court against the Appellant arising from the printed record of proceedings of the 10th of March, 2021. I have also accorded due consideration to the Appellant’s allegation at paragraph 5.5 of the Brief that the remarks of the learned trial Judge were not captured in the record of proceedings. In effect, the Appellant is directly or impliedly challenging or faulting the correctness of the record of proceedings but without moving the challenge to the next level; by affidavit evidence as to the truth of that allegation which is no less weighty as the allegation of bias itself. See FBN Plc vs. T. S. A. Industries Ltd (2015) LPELR-25860 (CA). In this situation, this Court must presume the correctness of the record of proceedings under Section 147 of the Evidence Act. In the absence of any proper challenge against the record of proceedings the contents of which is being questioned indirectly by the Appellant, this Court cannot accede to the Appellant’s invitation to find that the record of proceedings did not capture the vital aspect of her allegation. There must be evidence to the contrary in order to dislodge the presumption of correctness of a record of proceeding. In Nobis–Elendu vs. INEC & Ors (2015) LPELR-25127 (SC), the Supreme Court held that:
“…It is trite that record of Court are presumed to be correct until they are successfully impugned. The maxim is Omma Praesunmuntur rite esse acta. See Kossen (Nig) Ltd vs. Savannah Bank (Nig) Ltd (1995) LPELR–SC, 209/89 and Chief Adebisi Adegbuyi vs All Progressive Congress (APC) & Ors (2014) LPELR SC. 257/2012.”
As stated earlier, the Appellant’s arguments under this Issue were indicated to have been extended also to the proceedings of the 19th of March; having posited by her learned counsel 5.9 of her Brief that:
“In sum, we urge your lordship to resolve issue two (2) in favour of the Appellant and hold that having regards to all the circumstances of the case, right minded people left the Court thinking the lower Court was biased in the conduct of proceedings of 10th March, 2021 and the ruling of 19th March, 2021 which in effect occasioned grave miscarriage of justice against the Appellant and ought to be set aside by this Honourable Court. we urge your Lordship to so hold.”
As stated earlier also, there is no single argument or submission under this Issue in respect of the allegation of bias in the proceedings/ruling of the 19th of March 2021, It is deemed abandoned and is thus struck out. In the manner determined herein, the Appellant’s second Issue for determination is also resolved in the Respondent’s favour.
The Appellant’s last Issue is that which argued her Ground 5 of the Notice of Appeal complaining against the award of cost against her in the sum of two hundred and fifty thousand naira. It is submitted for the Appellant here that although the award of cost is discretionary, the exercise of such discretion must be judiciously and judicially driven. It is submitted further that from the entire circumstances of the case, the. Appellant can neither be accused of delaying the proceedings nor acting for any purpose other than in pursuit of justice under the law. It is argued also that the sole reason for award of cost is to compensate a successful party but not to be awarded as a punitive measure. The Appellant, it is argued, ought not to have been punished for igniting the provisions of the Rules on the trial of the Petition. It is thus submitted that the award of cost against the Appellant in the circumstances was neither prudent nor reasonable. In consequence, this Court is urged to set aside the award of cost against the Appellant. Reliance was placed on this contention on the decisions in Baraimoh vs Alaba (2014) 15 NWLR (Pt.1430) 368; Layinka 117; Citibank Nig Ltd vs. Ikediashi (2014) LPELR–22447 (CA); Hadejia Jama’are River Basin Development Authority vs. Chimande (Nig) Ltd (2016) LPELR–40202 (CA) among others. For the Respondent however, it is argued that the lower Court exercised its discretion judicially and judiciously in awarding the cost against the Appellant as the cost is meant to indemnify the Respondent of the avoidable expenses incurred owing to the Preliminary Objection filed by the Appellant. It is argued further that the lower Court awarded cost against the Appellant after a wholistic view of the matter before it and that it is trite law that cost follow event. On these arguments: reliance is placed the decisions in Chukwuanu vs. Uchendu & Ors (2016) LPELR—41022, (CA); G.K.F. Investment (Nig) Ltd vs. NITEL Plc (2009) LPELR–1294 (SC) and Ojiegbe Anor vs. Ubani & Anor (1961) LPELR-25060 (SC).
As submitted-by both learned counsel, it is trite law that the award of cost is discretionary. It lies in the discretion of the Court to award or to refuse cost and to fix the amount of cost payable where so ordered. The exercise of such discretion must however be judicious and judicial. It must be fair, equitable and reasonable. It must be for the purpose of indemnifying the loss incurred by a successful party; but not as a punishment against the other party. Above all, it must be seen to be deserving and fair both in the order itself and in the amount ordered payable. The Rules of every Court contain provisions for costs. Relevant to this appeal, are the provisions of Section 110 of the Matrimonial Causes Act which provide that:
“110. In proceedings under this Act the Court may, subject to rules of Court, make such order as to costs and security for cost, whether by way of interlocutory order otherwise, as the Court thinks just.”
The relevant portion of lower Court’s decision on the award of the cost in issue are reproduced elaborately here thus:
“Before I wrap up this ruling, I consider it pertinent to remark that the Respondent/Objector’s learned counsel, having been served with the Petitioner’s learned senior counsel’s Reply address to oppose the instant objection, in which copious reference is made to the later decision of the Supreme Court in Umeakuana vs. Umeakuana (supra); which overruled the Court of Appeal decision in the name case on which substantially predicated the instant objection. I therefore find it most dishonourable for learned counsel to seek rather, to distinguish the said decision of the Supreme Court from the circumstances of the instant case. This conduct, in my view, leaves much to be desired of learned counsel. This is to say the least. On a final note, from whichever angle the instant Notice of Preliminary Objection is viewed, it is bound to fail and I so pronounce. Accordingly, It shall be and it is hereby overruled and dismissed. I award costs of N250,000.00 (Two hundred and Fifty Thousand Naira) only, against the Respondent/Objector, in favour of the Petitioner.”
See pages 229 to 231 of the Record.
This Court will certainly interfere with an award of cost if shown to be based on capricious, unreasonable reason or is patently baseless or if the amount of the cost ordered is shown to be manifestly too excessive or unreasonably too low.
I have reviewed the entire proceedings of the 10th of March, 2021 which led to the ruling of the 19th of March, 2021. As stated severally, cost follows the event. For the Respondent, the event is the intervening Notice of Preliminary Objection, by the Appellant, the adjournment necessitated thereby and the lengthy ruling on same delivered on the 19th of March 2021. To the Appellant however, this is not a recognized cause under the law because her steps were rooted in the law. For the Court, the Appellant has to pay cost to indemnify the Respondent who was made to file processes, argue a frivolous Preliminary Objection, having to endure an otherwise avoidable adjournment and having to return to the Court again on the 19th March, 2021 for a ruling, the basis of which is found to be frivolous.
Firstly, as affirmed previously in this judgment, the main Grounds in this appeal which represent the core Issues in the Appellant’s Preliminary Objection in the Court below are without merit. At the stage when the lower Court found the Appellant’s Preliminary Objection meritless and vexatious, the Respondent acquired the right to cost; regardless of the conviction of the Appellant in her chosen path of redress which this Court too has found to be meritless. Once again, cost follow the event. In my humble view, the exercise of discretion by the lower Court in the award of cost was proper. More importantly, the learned counsel, with respects appears oblivious of the trite position that this Court is competent to interfere with an Order of cost only and only if the Appellant who lost on it at the Court below succeeds in this appeal. Having resolved the core Issues in the appeal against the Appellant, it is needless but for fulfilling all righteousness to enquire into the Order of cost in the circumstances. In Okoye Ors. Vs. Nigerian Construction and Furniture Company Ltd & Ors (1991) LPELR – 2509 (SC), the Apex Court held that:
“An Appeal Court has competence to review the cost awarded in the lower or trial Court only when the Appellant who was the looser at the lower Court succeeds in his appeal…”
In effect, the Appellant’s third Issue is also resolved in the Respondent’s favour.
Having thus resolved the Issues for determination in this appeal in the Respondent’s favour, the appeal fails and is accordingly dismissed as one without merit. The decision of the trial Court delivered on the 19th of March 2021 in Petition No. FCT/HC/PET/577/2020 is hereby affirmed. Parties shall bear their respective costs on this appeal.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Isah Bature Gafai, JCA gave me the benefit of reading in advance, the draft of the judgment just delivered.
My learned brother has comprehensively considered the issues that came up for determination in this appeal. In respect of the Preliminary Objection, a careful reading of the grounds of appeal and the particulars thereof, will clearly disclose that they are based on grounds of law alone. The grounds having raised issues of law, the Appellant could appeal as of right. In other words, leave of Court was not required.
On the whole, I agree with my learned brother and for the reasons carefully adumbrated in the lead, that the appeal lacks merit. It is hereby dismissed. I abide by the consequential orders made by my learned brother.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been afforded in advance, a draft copy of the leading judgment just delivered by my learned brother, Isah Bature Gafai, JCA, and I am in complete agreement with the lucid reasoning, which I adopt wholly as mine, and the impeccable conclusions arrived therein to the effect that the appeal lacks merit.
My lords. I find the following passage in the leading judgment as setting the benchmark for scrutinizing the proceedings of a Court whenever an allegation of bias is made against a Court where the ground relied upon is said to have been disclosed on the record of proceeding of the Court. Hear my lord Gafai, JCA, in his own words thus:
“I proceeded to examine carefully the proceedings at page 198 of the Record (Supra). I further examined the entire proceedings of 10th of March 2021 at pages 197-201. I analysed each sentence of remark; more particularly between the lower Court and the Appellant’s learned counsel. Although the Appellant’s learned counsel narrowed our attention and search to page 198 of the Record, I defied the limitation and examined every sentence in the entire proceedings critically, propelled by the desire to find therefrom any aspect of it that provide an impression of likelihood of bias by the lower Court against the Appellant. The more I try the more my hopes dwindled. I persisted doggedly; until I could search no more and threw in the towel. My finding is that there are no facts or grounds to base or suggest a likelihood of bias by the lower Court against the Appellant arising from the printed record of proceedings of the of March “
In Ray V. Federal Republic of Nigeria (2018) LPELR- 46552(CA). I had cause to consider the principles of law in relation to allegation of bias against a Court and I had opined inter alia thus.
“In law, to accuse a Court of bias or even likelihood of bias, which if made out would suffice, is not a light matter to be raised lightly or lackadaisically but must be raised with all seriousness and in good faith. It is not something to be toyed with or raised for the fun of it or to prolong and unduly delay the expeditious hearing and determination of the trial or intended merely to secure a de novo trial, upon the recusal of the trial Judge and transfer of the matter to another Judge, more particularly in a criminal trial. Thus, only genuine cases of bias or real likelihood or bias would and should warrant a favorable consideration for the recusal of one Judge and transfer of a matter to another Judge for a de novo trial. This is because justice itself is rooted in confidence and once confidence is eroded by genuine evidence of bias real likelihood of bias, no justice can result from such a trial. After all, it has been said centuries ago, and over and over again, that justice should not only be done but must be manifestly seen to have been done!”
It was in the old English case of King V. Sussex Justices Ex-parte Mc Carthy (1924)1 KB 256 AT p. 259, that Hewart C.J. had penned down those immortal words inter alia thus:
“It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to have been done”.
My lords, what then in law is ‘bias or real likelihood of bias’ and when can it be said to have been made out against a Judge as to warrant a transfer of the case before to another Judge? The word ‘bias’ as it relates to judicial proceedings have been severally defined and pronounced upon by the Courts in a plethora of decided cases as are replete in the Law Reports. There is a consensus of opinion that in its ordinary meaning bias is an opinion or feeling in favor of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale. Judicial Bias is that instinct which causes the mind to incline towards a particular object or course and when a Judge appears to give more favor on consideration to one of the parties before him, either in his utterances, attention or action, which is capable of perverting the cause of justice or where fair hearing cannot be said to take place all in favor of the party he supports covertly or overtly, then an allegation of bias against him can be grounded.
Bias, is also 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. 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 all, it is simply an inclination, bent, prepossession, a preconceived opinion, a predisposition to decide a cause or an issue in a certain way which does not leave the mind perfectly open to conviction. It is a condition of mind which sways judgments and renders the Judge unable to exercise his functions impartially in a particular case. It also refers to mental attitude or disposition of the Judge towards a party to the litigation and not to any views that he may entertain regarding the subject matter involved. See Black’s Law Dictionary 7th Edition p. 162. See also Abiola V. Federal Republic of Nigeria (1995) 7 NWLR (Pt 405) 1 AT p. 14; Kenon V. Tekam & Ors. (2001) 14 NWLR (Pt. 732) 12; Womiloju & Ors. V. Anibire & Ors. (2010) 10 NWLR (Pt. 1203) 545; Mbaji V. Amobi (2011) LPELR-3989 (CA); Azuokwu V. Nwokanma (2005) 11 NWLR (Pt. 937) 537; Ibrahim V. Ojonye (2011) LPELR-3737 (CA); Adefulu V. Okulaja (1998) 5 NWLR (Pt. 550) 435; Onigbede V. Balogun (2002) 6 NWLR (Pt. 762) 1.
It is in the light of the above few words of mine and for the fuller reasons as adroitly marshalled out in the leading judgment, that I too hold that the appeal lacks merit and is liable to be dismissed. I too hereby, join my noble lord in the leading judgment, to dismiss this appeal. The ruling of the Court below is hereby also affirmed by me. I shall abide by the consequential orders made in the leading judgment, including the Order as to no cost.
Appearances:
TOCHUKWU PETER TOCHUKWU with him, FAITH AGBOGHO EKUAHOROVWE, ESQ. For Appellant(s)
BENSON IGBANOI, ESQ, with him, OLUCHI VIVIAN UCHE (MISS) For Respondent(s)
