METUH v. FRN & ANOR (2020)

METUH v. FRN & ANOR

(2020)LCN/14829(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, December 16, 2020

CA/A/CR/306/2020

RATIO

APPEAL: MEANING AND NATURE OF A GROUND OF APPEAL

The meaning and nature of what is a ground of appeal have over the years been explained by this Court and the Supreme Court. An understanding of the nature of a ground of appeal will resolve the complaint in this Motion. In the case of Dagaci of Dere & Ors. v. Dagaci of Ebwa & Ors. (2006) 7 NWLR (Pt. 979) 382, Tobi, JSC, espoused it as follows:
“A ground of appeal is the complaint the appellant has on the decision of the lower Court. By the grounds of appeal, the appellant tells the appellate Court that he is not satisfied with the judgment of the trial or lower Court and he spells out clearly the specific area he is not satisfied with. An issue raised in an appeal affecting the decision of the lower Court must be backed by a ground of appeal. Where there is no ground of appeal supporting the issue raised, it will be discountenanced or rejected by the appellate Court. Grounds of appeal are the taproots of the case on appeal as they lay the foundation upon which the case grows in the appellate Court to fruition.”

Then in Ikenta Best (Nig.) Ltd. v. Att. Gen. of Rivers State (2008) 6 NWLR (Pt. 1084) 612, grounds of appeal provide the mirror through which the Court takes a peep at the appeal. Although grounds of appeal are not barometers for the initial determination of the strength of the appeal, they provide some useful information, even if speculatively, on the likely trend or outcome of the appeal. As the first point of contact with the appeal, the grounds of appeal should, at the first sight of the appellate judges or on their face, show good cause why the appeal should be heard. And here good cause means good reason. It should be emphasized that the good reason is for the hearing of the appeal and not that the appeal will succeed. No. That will be jumping the gun. At the stage of considering an application for extension of time to appeal, the Court is concerned with the strength of the grounds of appeal and not with the success of the appeal.
In Poroye & Ors. v. Makarfi & Ors. (2018) 1 NWLR (Pt. 1599) 91, the Supreme Court held instructively as follows:
“A ground of appeal is the complaint of the appellant on the judgment appealed against. Grounds of appeal are the pillars on which the entire appeal stands. See: Bhojsons Plc v. Geofrey K. Daniel Kalio (2006) 5 NWLR (Pt. 973) 330; (2006) 4 SCM 1. In other words, a ground or grounds of appeal against a decision of a lower Court must relate to the decision appealed against and should be a challenge to the validity of the ratio decidendi of the decision reached by the Court below to the appellate Court. See: Chief Peter Amadi Nwankwo & Anor. v. Ecumenical Development Cooperative Society (EDCS) UA (2007) 5 NWLR (Pt. 1027) 377; (2007) 1 – 2 SC 145; (2007) 4 SCM 139.” PER ADAH, J.C.A.

BIAS: MEANING AND EFFECT OF AN ESTABLISHED CASE OF BIAS

Bias is an inclination or preparation or predisposition in favour of one side in a dispute or a case resulting in the likelihood that the Court so influenced will be unable to hold an even scale. The end result of which is a failure of justice. Effect of an established case of bias or likelihood of bias against a Court is a factor vitiating the proceedings. See Adebesin v. State (2014) 9 NWLR (Pt. 1413) 609; Azuokwu v. Nwokanma (2005) 11 NWLR (Pt. 937) 537; Womiloju & Ors. v. Anibire & Ors. (2010) 10 NWLR (Pt. 1203) page 54. PER ADAH, J.C.A.

JUDGE: ATTITUDE OF THE APPELLATE COURT TO DETERMINATION OF BIAS NATURE OF A JUDGE

Let me voice it here that what is in the mind of a judge may not be measured or known by direct evidence. It is the attitude displayed by the judge, that is apparent, that may be examined as to whether he was biased. When a Court appears to give more favour or consideration to one of the parties to a case before it, either in utterances, attention or actions which is open and capable of perverting the cause of justice, covertly or overtly, then judicial bias may be said to exist. See Kenon v. Tekam (2001) 14 NWLR (732) 12; Elike v. Nwakwoala (1984) 12 SC., 301; Womiloju v. Anibire (2010) 10 NWLR (1203) 545, 571;Bamgboye v. University of Ilorin (1999) 10 NWLR (622) 2909 at 355. PER ADAH, J.C.A.
JUSTICE: VIEW OF COURT TO JUSTICE

Let me say a word here. Justice is universally rooted in confidence. When in a criminal trial a person accused sniffs the polluted air of bias in any tangible form, the responsibility of the Court it is to be circumspect of what gives the accused person reason to complain. PER ADAH, J.C.A.

BIAS: CATEGORIES OF BIAS

In the case of Sunkanmi v. The State (2014) LPELR – 22694 (SC), the Supreme Court per Ngwuta, JSC, held:
“Bias can be of three categories: (1) Peculiar bias as exhibited by a member of the Tribunal or Court having a pecuniary interest in the subject matter of the dispute. (2) Personal bias – existence of close relationship between a member of the Tribunal or Court and one of the parties to the dispute, and (3) Official bias – an abnormal desire or inclination to pursue a predetermined line of action which would prevent an impartial adjudication of the dispute between the parties. See Venkatuchalam Iver v. The State of Madra AIR 195.7 Mad. 623, 626.” PER ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

OLISA METUH APPELANT(S)

And

1. FEDERAL REPUBLIC OF NIGERIA 2. DESTRA INVESTMENT LIMITED RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Abuja, delivered on 25th February, 2020, coram: O.E. Abang J., wherein the trial Court convicted that appellant and the 2nd respondent on all the Seven (7) counts amended charge.

The appellant together with the 2nd respondent was arraigned before the trial Court on a Seven (7) Count Amended Charge dated 16/02/2016.

The Amended Seven Counts Charge reads as follows:
Count 1:
That you Olisa Metuh and Destra Investment Limited on at about the 24/11/2014 in Abuja within the jurisdiction of this Court directly tool possession or control of the sum of N400,000,000.00 (Four Hundred Million Naira only) paid into the account of Destra Investment Limited with Diamond Band Plc Account No.0040437573 from the account of the office of the National Security Adviser with the Central Bank of Nigeria without contract award when you reasonably ought to have known that the said fund formed part of the proceeds of an unlawful activity of Col. Mohammed Sambo Rtd the then National Security Adviser (to wit criminal breach of trust and

corruption) and thereby committed an offence contrary to Section 15 (2)(d) of the Money Laundering (Prohibition) Act 2011 as amended in 2012 and punishable under Section 15 (3) of the same Act.
Count 2:
That you Olisa Metuh and Destra Investment Limited on or about the 24th November, 2014 in Abuja within the jurisdiction of N400,000.000.00 (Four Hundred Million Naira only) which sum was transferred from the account of the office of the National Security Adviser with the Central Bank of Nigeria without contract award, which you claim to have received for political activities of the Peoples Democratic Party when you reasonably ought to have known that the said funds formed part of the proceeds of unlawful activity of Col. Mohammed Sambo Dasuki (Rtd), the then National Security Adviser (To wit: Criminal breach of trust and corruption) and you thereby committed an offence contrary to Section 15(2)(b) of the Money Laundering (prohibition) Act 2011 as amended in 2012 and punishable under Section 15(3) of the same Act.
Count 3:
That you Olisa Metuh and Destra Investments Limited on or about the 24th November, 2014 in Abuja within the jurisdiction of

this Court did retain the sum of N400, 000,000.00 (Four Hundred Million Naira only) on behalf of the Peoples Democratic Party for its campaign activities by concealing the said sum in your account with Diamond Bank Plc when you reasonably ought to have known that such fund directly represented the proceeds of unlawful activity of Col. Mohammed Sambo Dasuki (Rtd.) the then National Security Adviser (To wit: Criminal breach of trust and corruption) and you thereby committed an offence contrary to Section 17(b) of the money laundering (prohibition) Act 2011 as amended in 2012 and punishable under Section 17(b) of the same Act.
Count 4:
That you Olisa Metuh and Destra Investments Limited between the 24th November, 2014 and March, 2015 in Abuja within the jurisdiction of this Honourable Court having reason to know that an aggregate sum of N400,000.000.00 (Four Hundred Million Naira only) directly represented the proceeds of unlawful activity of Col. Mohammed Sambo Dasuki (Rtd.) the then National Security Adviser (To wit: criminal breach of trust and corruption in respect of the said amount used the said fund for campaign activities of the People’s

Democratic Party and other personal purposes and thereby committed an offence contrary to Section 15(2)(d) of the Money Laundering (Prohibition) Act 2011 as amended in 2012 and punishable under Section 15(3) and (4) of the same Act.
Count 5:
That you Olisa Metuh and Destra Investment Limited or about the 2nd December, 2014 in Abuja within the jurisdiction of this Honourable Court did make a cash payment through your agent one Nneka Nicole Ararume to one Kabiru Ibrahim a non-financial institution to the tune of $1,000,000.00 USD (One Million US Dollars) only and thereby committed an offence contrary to Section 1 of the Money Laundering (Prohibition) Act 2011 as amended in 2012 and punishable under Section 15(2)(d) of the same Act.
Count 6:
That you Olisa Metuh and Destra Investments Limited on or about the 2nd December, 2014 in Abuja within the jurisdiction of this Honourable Court did make a cash payment through your agent one Nneka Nicole Ararume to the Sie Iyenome of Capital Field Investment to the tune of $1,000,000.00 USD (One Million US dollars only) and thereby committed an offence contrary to Section 1 of the Money Laundering (Prohibition) Act 2011 as amended in 2012

and punishable under Section 15(2)(d) of the same Act.
Count 7:
That you Olisa Metuh and Destra Investment Limited on or about the 4th December, 2014 in Abuja within the Jurisdiction of this Honourable Court did directly transfer the sum of N21,776,000.00 (Twenty One Million Seven Hundred and Seventy Six Thousand naira only) to Chief Anthony Anenih being part of that sum of N400,000,000.00 (Four Hundred Million Naira) which you reasonably ought to have known that the said fund represented the proceeds of an unlawful activity of Col. Mohammed Sambo Dasuki (Rtd.) the then National Security Adviser (to wit: Criminal breach of trust and corruption) and thereby committed an offence contrary to Section 15(2)(d) of the Money Laundering (Prohibition) Act 2011 as amended in 2012 and punishable under Section 15(3) of the same Act.

The appellant pleaded not guilty after the counts were read and explained to him. A non-guilty plea was also entered for the 2nd respondent.

Thereafter, the matter went in full trial. In order to prove his case, the prosecution called eight witnesses. The appellant filed a no-case

submission which was dismissed by the trial Court. On appeal of same to this Court, the no-case submission of the appellant was dismissed even at the Supreme Court. The appellant who had no other option opened his defence on 11/04/2016, he called 14 witnesses and testified for himself as the 15th witness. The appellant closed his case on 02/10/2019, thereafter, parties filed and exchanged their written addresses.

In a considered judgment delivered on the 25th February, 2020, the trial Court convicted the appellant on all the Seven Counts and on the whole sentenced him to Seven Years Imprisonment which is to run concurrently.

Dissatisfied with the said judgment, the appellant appealed to this Court vide a 26 ground notice of appeal filed on the 23rd day of March, 2020. The records of appeal were transmitted to this Court on 20th May, 2020.

In line with the rules of this Court, parties filed and exchanged their respective briefs of argument.

Counsel for the appellant submitted ten (10) issues for the determination of this appeal in the appellant’s brief of argument filed on the 8th June, 2020. The issues are:

Whether the appellant was given a fair trial at the Court below.
2. Whether the entire trial, judgment and sentence of the appellant was tainted with prejudice and bias on the part of the learned trial judge as evident, amongst others, from the disparaging remarks which the learned trial judge made about the appellant and learned senior counsel for the appellant whom he accused of using every opportunity to humiliate the Court by writing hopeless, reckless and frivolous petitions against the Court and using a section of the press to sponsor blackmail against the Court – which was presented as inhuman and heartless with the appellant going far as fall down in the Court room just to have unmerited sympathy from the international community.
3. Whether the learned trial judge was right when he held that the predicate offences of criminal breach of trust and corruption alleged against Col. Sambo Dasuki in Counts 1, 2, 4, 4 and 7 need not first be proved in order for the prosecution to secure conviction of the appellant for the offences charged in those counts in total disregard of the binding decisions of the Supreme Court to the effect that the onus is on the

prosecution to prove the offences as charged.
4. Whether Col. Sambo Dasuki was guilty of misappropriation as held by the learned trial judge in spite of the fact that Col. Sambo Dasuki was not charged with that offence and there was no allegation of misappropriation against Col. Sambo Dasuki in all the counts charging the appellant with money laundering of the funds allegedly procured illicitly by Col. Sambo Dasuki.
5. Whether the learned trial judge was right when he held that the crux of the matter was whether or not the appellant had actual or constructive knowledge of the inflow of N400 Million into the account of the 2nd Respondent from the office of the National Security Adviser (ONSA).
6. Whether the learned trial judge erred in law when, having held that the prosecution must prove the requisite mens rea, he nevertheless proceeded to convict the appellant of the offences charged without such proof.
7. Whether the learned trial judge was right when he found the appellant guilty on all counts without countenancing the evidence of the appellant and his witnesses or without any or any proper evaluation of the evidence called by the

appellant thus violating the appellant’s right to fair hearing and rendering the judgment and proceeding null and void.
8. Whether the learned trial judge was right when, having held that he had doubts as to whether or the appellant was telling the truth in the matter, and he also had doubts whether or not the former President could have authorized expenditure of N400 Million public funds just on verbal approval especially to the appellant who was not an agent or official of government, he proceeded nevertheless to convict the appellant in spite of the principle that, in criminal cases, all doubts be resolved in favour of the Defendant.
9. Whether the learned trial judge was right in holding that the appellant conducted a transaction with a non-financial institution in violation of Section 1 of the Money Laundering Prohibition Act 2011, as amended.
10. Whether the learned trial judge erred in law when he applied the wrong principles, reasoning and considerations in determining the sentence of the appellant, thus imposing on the appellant an excessive sentence unwarranted by the facts and circumstances of this case.

In response, counsel for the 1st Respondent distilled ten (10) issues in the 1st Respondent’s Brief of Argument filed on the 1st July, 2020 but deemed properly filed and served on the 9th day of September, 2020. Thus:
1. Whether in the circumstances of this case, there is credible and sustainable evidence of denial of fair hearing to the appellant by the learned trial judge.
2. Whether the learned trial judge in his judgment expressed any doubts on the guilt of the appellant and failure of the prosecution to prove its case on the allegation of the laundering of consequently entitling the appellant to a discharge and acquittal.
3. Whether the learned trial judge was not right when his Lordship held that in the absence of contract justifying the payment of the sum of N400 Million by the former NSA into the 2nd respondent’s account, the appellant knew or ought to have reasonably known that the former NSA did the payments in criminal breach of trust/corruption and the source of the funds was of illicit origin, not genuine.
4. Whether the learned trial judge was not right, when his Lordship held that it was not necessary to first charge and

convict a predicate offender before a charge of money laundering could be sustained, and in the instant case, Col. M.S. Dasuki (Rtd.), the former NSA, needed not to be convicted of criminal breach of trust/corruption, before the appellant could be prosecuted and found guilty on money laundering offences.
5. Whether the learned trial judge did not consider the totality of the evidence adduced by the respective parties and evaluated the evidence before reaching a decision leading to the conviction of the appellant.
6. Whether on the totality of the evidence and the circumstances of this case, as it relates to the transaction involving the sum of $2 Million United States Dollars (counts 5 and 6 of the charge) the learned trial judge was not right when his Lordship held that the transaction was not made by the appellant through a financial institution in violation of Section 1 of the Money Laundering (Prohibition) Act, 2011 (as amended).
7. Whether the comments and remarks made by the learned trial Judge, which were not ratio decidendi but mere obiter dicta can ground, or be the basis of a valid and sustainable grounds of appeal.

Whether the learned trial judge was not justified in admitting Exhibit D28 in evidence through DW15 in the course of cross-examination, and in declining to expunge the said exhibit as evidence, but rather accorded it probative value, as same is rightly admitted.
9. Whether the sentence imposed on the appellant by the learned trial Judge was not justified and reasonable in accordance with the law.
10. Whether in proving count 1, 2, 3, 4 and 7 of the charge against the appellant dealing with the laundering of the sum of N400 Million, the prosecution did not establish the mens rea required by law i.e, that the appellant knew or reasonably ought to have known that the said fund represented proceeds of an unlawful act of Col. M.S. Dasuki (Rtd.), the former NSA, thereby warranting the conviction of the appellant by the trial judge.

On the 22nd September, 2020, when this appeal came up for hearing, counsel for the 1st Respondent, Mr. Sylvanus Tahir Esq., moved his Preliminary Motion on Notice filed on the 3rd July, 2020, argued at pages 5 to 8 of the 1st Respondent’s Brief of Argument and urged the Court to strike out grounds 12 and 14 of the

appellant’s notice of appeal.
I shall first consider the Motion on Notice by the 1st respondent’s counsel.

MOTION ON NOTICE:
The grounds propping up this Motion on Notice from the face of the Motion are four. These grounds are expressed as follows:
1. That the said grounds 12 and 14 of the grounds of appeal do not raise any complaint against the ratio decidendi of the judgment of the lower Court.
2. That the said grounds 12 and 14 of the grounds of appeal only raise complaints against the orbiter dictum of the judgment of the lower Court.
3. That the said grounds 12 and 14 of the appellant’s grounds of appeal not being based on the reasons for the judgment of the lower Court are grossly and highly incompetent and can be the basis of or sustain an appeal.
4. That the said grounds 12 and 14 of the grounds of appeal not being competent this Honourable Court lacks the requisite jurisdiction to entertain the appeal as regards the said grounds.

In the instant Motion, two grounds of appeal are in focus. These are grounds 12 and 14, which are couched as follows:
Ground 12:
The trial Judge erred in

law and occasioned a gross miscarriage of Justice when he held that “the 1st convict and his counsel especially Emeka Etiaba (SAN) and Dr. Ikpeazu OON (SAN) used every opportunity open to them to humiliate the Court in writing hopeless, reckless and frivolous petitions against the Court. One of their petitions against the Court is in the Court’s file dated 11/03/2016. The 1st convict and his Counsel Emeka Etiaba (SAN), Dr. Ikpeazu (SAN) used a section of the press especially A.I.T and sponsored blackmail against the Court and presented it as inhuman and heartless. They even took this matter to International press. The day the convict fell down in the Court room just to have unmerited sympathy from international community it was aired in CNN portraying the Court in bad light.”
Particulars of Error:
(a) No Petition was written by either Emeka Etiaba (SAN) and Dr. Ikpeazu OON, SAN, against the trial Judge as held or at all.
(b) None of the lawyers used the press including A.I.T to “sponsor a blackmail against the Court and presented it as inhuman and heartless”.
(c) None of the lawyers took the case to the

International Press nor did any aspect of the case appear on CNN.
(d) The Appellant did not equally do any of the acts alleged by the trial Judge.
(e) There was no evidence of a Petition written by the said counsel.
(f) There was no evidence of A.I.T or CNN reports placed before the Court nor did the Court call attention to any such publication.
(g) It is indeed surprising that his Lordship will proceed to this extent to impugn the reputation of counsel and paint the appellant in such negative light.
(h) The trial Court allowed the above facts and sentiments not examined in the open Court to influence his fair disposition in adjudication of the case and thereby denied the appellant fair hearing devoid of impartiality.
Ground 14:
The learned trial judge was biased and prejudiced against the 1st defendant and his counsel throughout the trial, and he displayed it in his judgment and sentence when he held as follows: “the 1st convict became hardened, difficult, stubborn joined issues with the team of investigators, destroyed confessional statement that the voluntarily made…, came to Court (and) with assistance of his

counsel, transferred his aggression to the Court”.
Particulars of Error:
(a) The learned trial judge exhibited his hostility and bias through the numerous deprecating comments he made against the 1st defendant and his counsel throughout the trial and even in his judgment and sentence in this case.
(b) As a result of the learned trial judge’s hostility, many counsel withdrew their appearance for the 1st defendant in the course of the trial.
(c) The learned trial judge allowed facts and incidents which were not in evidence before the Court, such as press reports and petitions he wrongly believed to be orchestrated by the 1st defendant and his counsel, to influence his judgment and sentence in this case.
(d) The learned trial judge was wrongly convinced, and he said so in his judgment, that the 1st defendant and his counsel were out to maltreat, humiliate and discredit him and he allowed this unfounded opinion to influence his judgment and sentence in this case.
(e) The learned trial judge was also wrongly convinced, and said so in his judgment that the 1st defendant and his counsel were out to block and “to

frustrate this matter being heard and again frustrate from running its course.”

pillars on which the entire appeal stands. See: Bhojsons Plc v. Geofrey K. Daniel Kalio (2006) 5 NWLR (Pt. 973) 330; (2006) 4 SCM 1. In other words, a ground or grounds of appeal against a decision of a lower Court must relate to the decision appealed against and should be a challenge to the validity of the ratio decidendi of the decision reached by the Court below to the appellate Court. See: Chief Peter Amadi Nwankwo & Anor. v. Ecumenical Development Cooperative Society (EDCS) UA (2007) 5 NWLR (Pt. 1027) 377; (2007) 1 – 2 SC 145; (2007) 4 SCM 139.”

In the instant case, the two grounds of appeal complained of which are grounds 12 and 14 of the notice of appeal deal with the issue of bias and prejudice. These two grounds are fundamental because they are a challenge to the validity of the entire appeal. Bias is an inclination or preparation or predisposition in favour of one side in a dispute or a case resulting in the likelihood that the Court so influenced will be unable to hold an even scale. The end result of which is a failure of justice. Effect of an established case of bias or likelihood of bias against a Court is a factor

vitiating the proceedings. See Adebesin v. State (2014) 9 NWLR (Pt. 1413) 609; Azuokwu v. Nwokanma (2005) 11 NWLR (Pt. 937) 537; Womiloju & Ors. v. Anibire & Ors. (2010) 10 NWLR (Pt. 1203) page 54. The two grounds therefore, are not grounds framed from Orbiter. They are the integrity test of the entire decision of the lower Court. It is from the foregoing, very well known that the two grounds of appeal complained of are good grounds of appeal. The Motion on Notice of the 1st Respondent/Applicant is with all due respect devoid of merit.

The Motion is therefore dismissed. The main appeal will now be considered.

I shall adopt the issues formulated by the appellant in considering this appeal. I now start with issues one and two as argued together by the counsel for the appellant.

Issues One and Two:
These issues are – whether the appellant was given a fair trial at the Court below; and Whether the entire trial, judgment and sentence of the appellant was tainted with prejudice and bias on the part of the learned trial judge as evident, amongst others, from the disparaging remarks which the learned trial judge made about the

appellant and learned senior counsel for the appellant whom he accused of using every opportunity to humiliate the Court by writing hopeless, reckless and frivolous petitions against the Court and using a section of the press to sponsor blackmail against the Court – which was presented as inhuman and heartless with the appellant going far as falling down in the Court room just to have unmerited sympathy from the international community.

Counsel while arguing issues one and two contended that the appellant’s right to fear hearing is guaranteed by the Constitution. That lack of fair hearing to the appellant led to the conclusion made by the trial Court. He referred the Court toMuhammed v. A.B.U. Zaria (2014) 7 NWLR (Pt. 1407) 500 at 530 Paras. E – F. Counsel contended further that the right to be tried by an impartial judge is deeply embedded in the Constitution and that a judge has it as a duty to be fair. That at the end of the day in a trial, justice should not only be done but be manifestly and undoubtedly seen to be done. That mere possibility of bias is enough to vitiate the proceeding. That all that transpired at the trial Court

gave rise to a reasonable apprehension of bias. He cited Alake v. Abalaka (2002) FWLR (Pt. 88) 931 at 944 pars H, Egwumi v. State (2013) LPELR 20091 (SC) at 23 paras A – B, Chief Mene Kenon & Ors. v. Chief Albert Tekam & Ors. (2001) LPELR – 1688 (SC), The Secretary of Iwo Central Local Government & Ors. v. Tallatu Adio (2000) LPELR – 3201 (SC). He submitted that any reasonable, disinterested observer, any informed person viewing the matter realistically and practically would conclude that the appellant and counsel representing him were not treated fairly or courteously or shown any respect by the trial judge. That the inference of bias is drawn from all that the trial judge said.

Counsel went further and reproduced some comments made by the trial judge in the course of trial and contended that the judgment ought to be set aside. That the trial judge never stated all the negative things he had passed through neither did he state how he had been maltreated. That the refusal of the trial judge to allow Col. Sambo Dasuki, a witness to refresh his memory amounts to the denial of fair hearing to the appellant.

On the removal of the stigma now placed on the appellant and counsel, he argued that the appellant was branded as being aggressive, hardened and difficult by the trial Court outside what he was charged with before the trial Court. Counsel urged the Court to arrive at the conclusion that the appellant was not given fair hearing by the trial Court. He urged the Court to so hold and resolve issues one and two in favour of the appellant.

Counsel for the 1st respondent while arguing these issues stated that from the inception of this case at the trial Court that the appellant had without basis levelled allegations of bias and denial of fair hearing against the trial judge, in order to have the case transferred to another Court. That the appellant wrote a petition to the Chief Judge of the Federal High Court in March 2016, seeking transfer of the case to another judge on grounds of bias on the part of the trial judge. That he also filed a Motion on Notice dated 24/3/2016 praying for an order for the trial judge to disqualify himself from the suit and return the case file to the Chief Judge of the FHC for reassignment to another judge. (See pages 746-760 and 793-803 of Vol. 1

of the record of appeal for the motion, affidavit in support, written address, further affidavit and reply on point of law filed by the Appellant). The 1st Respondent filed a counter affidavit and written address opposing the application, after hearing the application, the trial judge dismissed the motion for lack of merit (pages 761-780 Vol. 1 and 3946-3949 of Vol. 5 of the record of appeal). He relied on the case of Metuh v. FRN & Anor (2020) NWLR (Pt.1723) CA 325 at 365-366 paras D-E; Essien v. Essien (2009) 9 NWLR (Pt.1146) CA 306 at 342 paras B-C.

Counsel for the 1st respondent pointed out that the relevant issue on the allegation of bias is that the test of real likelihood of bias is that of a reasonable man, not that of a man who has made up his mind to pull down the institution of justice in a desperate bid to rubbish the judicial process and get off the hook by any means. He cited the cases ofEssien v. Essien (supra) page 342 paras C-D; Womiloju v. Anibere (2010) 10 NWLR (Pt.1203) SC 545 at pages 561-562 paras H-C; Omoniyi v. Central Schools Board Akure & Ors (1988) 4 NWLR (Pt.89) 448 at 463; and Ariori v. Elemo (1983) 1 SC at 81.

He urged this Court to discountenance the allegations of bias levelled against the trial judge as baseless and unfounded and hold that no case of judicial bias has been demonstrated by the appellant to warrant setting aside the judgment and quashing the conviction of the appellant as prayed.

On allegations of denial of fair hearing to the appellant; 1st respondent’s counsel contended that these allegations of denial of fair hearing to the appellant by the trial Court is baseless and unfounded. He canvassed that the allegations of refusal by the trial judge to sign a subpoena to compel the attendance of Col. M.S. Dasuki (Rtd.) to appear in Court and testify on behalf of the appellant is merely exercising his judicial function. Upon the dismissal of the appellant’s Motion which prayed the lower Court to issue the subpoena against the Director General, Directorate of the State Services to produce in Court Col. M.S. Dasuki (Rtd.), the appellant exercised his right of appeal in Appeal No: CA/A/159C/2017 – Olisa Metuh v. FRN & Anor. The Court of Appeal in its judgment delivered on the 29th September, 2017, allowed the appellant’s appeal and

directed the trial judge to sign/issue the subpoena. He cited the case of Metuh v. FRN & Anor. (2018) 3 NWLR (Pt.1605) CA 1.

Counsel referred this Court to the proceedings of 1/11/2017 at pages 4589-4610 Vol. 5 of the record of appeal; Motion filed on the 20/10/2017 praying the trial Court to set aside the subpoena issued pursuant to the order of the Court of Appeal at pages 1213-1583 Vol. 2 of the record of appeal; Col M.S. Dasuki (Rtd) filed a Motion on the 25/10/2017 praying for an order to stay execution of the subpoena served on the DSS on the 18/10/2017 for the purpose of producing Col. M.S. Dasuki (Rtd) to testify for the appellant at page 1609-1625 Vol. 2 of the record of appeal; in response to the Motion seeking to set aside the subpoena, the appellant as 1st Defendant filed a Counter Affidavit and a written address at pages 1590-1601 Vol. 2 of the record of appeal. The 1st respondent (complainant) at the lower Court opposed Col M.S. Dasuki’s application on points of law and filed a written address on the 30/10/2017 at pages 1625-1631 Vol. 2 of the record of appeal; the lower Court on 1/11/2017 dismissed Col M.S. Dasuki’s (Rtd)

application seeking stay of proceedings compelling him to testify in Court at pages 4623-4636 of Vol. 5 of the record of appeal; on 1/11/2017 Col. M.S. Dasuki (Rtd.) mounted the witness box as DW8 and gave evidence for the appellant and on 3/11/2017, the case came up for continuation of trial, for the evidence of Col. M.S. Dasuki (Rtd) (DW8) at pages 4636-4646 & 4647-4655 of Vol. 5 of the record of appeal. Counsel contended that from the Motion filed by Col. M.S. Dasuki (Rtd) through his counsel as seen in pages 1213-1583 and 1609-1625, it is quite clear that the witness was unwilling to testify despite the order of this Court which mandated the trial judge to sign/issue the subpoena which was complied with.

Counsel submitted that from the entire circumstance of this case, the trial judge afforded the opportunity to the appellant to present his case through DW8 (Col. M.S. Dasuki (Rtd)). That on the issue of fair hearing and whether party who fail to use opportunity of being heard can complain about denial of fair hearing, he cited the cases of Bio v. State (2020)7 NWLR (Pt.1723) SC 218 at 232; Newswatch Communication Ltd v. Attah (2006) 12 NWLR (Pt.993)

SC 44; Chidoka v. First City Finance Co. Ltd (2001) 12 NWLR (Pt. 697) 216 at 227; Bio v. State (supra) at page 232-233 paras H-D; Ogunsanya v. State (2011) 12 NWLR (Pt.1261) SC 401. On the onus on party alleging breach of his right to fair hearing. He relied on the case of Adeyemi v. State (2011) 5 NWLR (Pt. 1239) CA at page 26-27 paras H-H.

Counsel urged this Court to resolve these issues in favour of the 1st respondent and against the appellant and hold that the appellant has not established a real and sustainable case of the breach of the appellants right to fair hearing nor did the appellant establish a case of bias against the trial judge.

These two issues are primed to the complaint of the appellant of lack of fair hearing and whether the entire trial of the appellant was tainted with prejudice and bias on the part of the learned trial judge. These complaints were anchored majorly on the comments made by the learned trial judge in his judgment. Apart from those comments highlighted, the attitude of the trial Court in refusing to summon witness for the appellant and not allowing witness to refresh memory is sensed in practical terms denying the

appellant his right to fair hearing. A look at the documented comments of the learned trial judge will no doubt enable this Court to assess whether there was actual bias as alleged or not.

The learned senior counsel for the appellant Chief Kanu Agabi, SAN, in his appellant’s brief of argument identified and catalogued the instances of bias and lack of fair hearing. The learned senior counsel pin pointed the disparaging and abusive remarks which the learned trial judge made about the appellant and his senior counsel who he accused of using every opportunity to humiliate the Court by writing hopeless, reckless and frivolous petitions against the Court and using a section of the press to sponsor blackmail against the Court which was presented as inhuman and heartless. He urged the Court to draw inference from the following statement of the learned trial judge:
1. That the Appellant and his counsel used Channels Television to review the decisions of the Court. (See page 5940 of Vol. 6 of the Records).
2. That the Appellant and his counsel used Channels Television to attack the person of the learned trial judge portraying the Court as being

inhuman to further humiliate the Court.” (See page 5940 of Vol. 6 of the Records).
3. That he had seen it all and that his judgment or the Court was not a forum to state all the negative things he had passed through and that God had been faithful to him and his family in the matter. (See page 5942 of Vol. 6 of the Records).
4. That he had forgiven everybody – the Appellant, Emeka Etiaba, (SAN), O. Ikpeazu (sic) SAN and all persons that maltreated him in the matter. (See page 5942 – 5943 of Vol. 6 of the Records).
5. That it was traumatic period for him. (See page 5943 of Vol. 6 of the Records).
6. That he would have summarily dealt with the Learned Senior Counsel (O. Ikpeazu) had it not been that he, the learned trial judge, had been trained to have the patience of the Biblical Job; that he developed thick skin over the contemptuous conduct of Dr. Ikpeazu (sic) (SAN) and therefore allowed him to go home without a twist in his body chemistry, not out of fear or cowardice but the Court had to show maturity and restraint at that trying period. (See page 5941 of Vol. 6 of the Records).
7. That the application made by counsel that

the judge recuse himself was contempt in the face of the Court in spite of the fact that the learned trial judge said he had himself applied that the case be reassigned to another judge? (See page 5941 of Vol. 6 of the Records).
8. That he had nobody to speak for him except God who sustained him throughout one of the most difficult periods in his judicial career and that he prayed that his employer should withdraw the file from his Court. (See page 5938 of Vol. 6 of the Records).
9. That Emeka Etiaba, SAN, its “preoccupied with writing frivolous petitions against the Court, what he knows how to do best.” (See page 5837 of Vol. 6 of the Records).
10. That the Appellant, Emeka Etiaba, SAN and Dr. Ikeazu, SAN used every opportunity open to them to humiliate the Court in writing hopeless, reckless and frivolous petitions against the Court. (page 5937 of the records)
11. That the 1st convict and his Counsel Emeka Etiaba (SAN), Dr. Ikpeazu (SAN) used a section of the press especially A.I.T., and sponsored blackmail against the Court and presented it as inhuman and heartless. They even took this matter to International press.

The day the 1st convict fell down in the Courtroom just to have unmerited sympathy from international community it was aired in CNN, portraying the Court in bad light. It was only God that used my immediate family to sustain me throughout the four years of hostility coming from the convicts and his team of lawyers … but before then they had thoroughly humiliated the Court….” (See page 5937 of Vol. 6 of the Records).
12. That the Appellant became hardened, difficult, joined issues with the team of investigators, destroyed confessional statement that he voluntarily made and came to Court and with the assistance of his counsel, transferred his aggression to the Court. (See page 5936 of Vol 6 of the Records).

A look at the record of appeal as cited above do show that the learned trial judge went to town in bemoaning the perceived grievances nursed against the appellant and his counsel. He was so passionate in his rendition as if he was presenting a valedictory speech. The portion of the judgment in contention is at pages 5935 to 5942 and it goes as follows:
The convict had the opportunity to have resolved this matter amicably with the

complainant without coming to Court. I mean the state through EFCC. Even when he was confronted with Exhibit D1 that is the statement of account of the 2nd Defendant in Diamond Bank Plc that he as the sole signatory transferred the sum of 50,000,000.00 on 4/12/2014 from that account to a bank account of his wife jointly controlled by him, the convict ought to have been sober, remorseful and found way of resolving embarrassing situation with EFCC because the money was transferred to an account jointly controlled by him and his wife. The interest of his immediate family members should have been paramount.
If I may ask, is the 50,000,000.00 naira transferred to an account jointly controlled by his wife and himself part of the special national assignment that the former President purportedly gave him? My Lords, I think not. The mere fact that 50 Million Naira was transferred from the account that had inflow of 400 Million Naira public funds was linked to his wife was sufficient for the 1st convict to do everything within his reach to ensure that this matter was not brought to Court.
Instead, the 1st convict became hardened, difficulty, stubborn joined

issues with the team of investigators, destroyed confessional statement that he voluntarily made that the inflow of 400 Million Naira was used for the campaign activities of PDP, came to Court with assistance of his counsel, transferred his aggression to the Court. The 1st convict and his counsel especially Emeka Etiaba (SAN) and Dr. Ikpeazu OON (SAN) used every opportunity open to them to humiliate the Court in writing hopeless, reckless and frivolous petitions against the Court. One of their petitions against the Court is in the Court’s file dated 11/3/2016.
The 1st convict and his counsel Emeka Etiaba (SAN), Dr. Ikpeazu (SAN) used a section of the press especially A.I.T and sponsored blackmail against the Court and presented it as inhuman and heartless. They even took this matter to International Press. The day the 1st convict fell down in the Courtroom just to have unmerited sympathy from international community it was aired in CNN portraying the Court in bad light. It was only God that used my immediate family to sustain me throughout the four years of hostility coming from the convict and his team of lawyers.
I saw it all. Except towards

the end of the proceedings in this matter precisely few weeks to the end of proceedings that the 1st convict and his team of lawyers began to be friendly with the Court but before them they had thoroughly humiliated the Court just because I discharged my functions without fear or favour, affection or ill will. I had nobody to speak for me except God that sustained me throughout one of the most difficult periods of my judicial career on the bench of the Federal High Court. During this period, I prayed that my employer should withdraw this file from my Court but it was not forthcoming. I did not assign this case to this Court, I did not in any way direct the 1st convict to dissipate public funds the way it is stated in Exhibit D1 the statement of account of the 2nd convict. Part of the money was transferred to Daniel Ford Foundation to buy a property in Banana island. The origin of Two Million Dollars that was converted to naira equivalent and deposited in the account of the 2nd convict cannot be ascertained. The investigator said it is suspected to be funds shared to delegates from 2015 PDP national convention. This was not ascertained.
This country

cannot go on like this. There must be a change in altitude of the ways things are done in this country. Public funds being dissipated in this manner, is a story of shame.
There is nothing that I did not see in this matter. When EFCC applied to Court to revoke the bail of the convict because the 1st convict was not in Court and rightly so, I had sympathy for him. I did not revoke his bail. I gave him opportunity to be in Court and adjourned the matter to a later date. The next Court’s appearance, the 1st convict was in a stretcher, motionless just to portray the Court as being heartless and inhuman because the Court did not release his International Passport for him to travel out of the country. The reason that the passport was not released to him was not the fault of the Court but because his team of lawyers were not able to file a competent application. He came in a stretcher without any medical personnel except his people that accompanied him to Court. He asked for 4 weeks adjournment, I gave him 6 weeks. Thereafter, the 1st convict appealed to the Court of Appeal that the Court is bias. The Court of Appeal dismissed the appeal and held that a

Judge that gave him 6 weeks adjournment when he asked for 4 weeks cannot be biased in the matter against him and the appeal dismissed. In fact, except for one decision, all the appeals that the 1st convict appealed against my decisions were affirmed by the Court of Appeal and the Supreme Court.
Recently the 1st convict and his counsel used channel television a national television to review my decisions and used that medium to attack my person portraying the Court as being inhuman just to further humiliate the Court. This aspect of the matter is currently on appeal at the Court of Appeal.
On 23/2/2017, in this matter, one of the senior counsel that appeared for the convicts, Dr. Ikpeazu OON (SAN) in the open Court accused the Court of bias and applied that the Court to rescue itself from the matter and if one may ask the reason for the application, it was because I delivered a ruling against the 1st convict. The law is settled on this issue that a party or counsel cannot in the Court accuse the Court of bias or that he has no confidence in the Court to do justice in the matter, that is contempt in the face of the Court. I would have summarily dealt with

the learned senior counsel but having been trained to have the patience of the biblical Job, I developed thick skin over the contemptuous conduct of Dr. Ikpeazu (SAN). I allowed him to go home without a twist in his body chemistry not out of fear or cowardice but the Court had to show maturity and restraint at that trying period in this matter. We have been trained not to be angry when found fault with or finding fault when angry. I only advised Dr. O. Ikpeazu (SAN) that a counsel that makes it a habit of scandalizing a judge for no just cause except that the judge only discharged his functions to the best of his ability but in line with the law and the facts of the case the way the judge understood the law that counsel is breaking the bridge that himself will cross. It is like living a glass house throwing stones. I then left him to his conscience.

From the foregoing laborious outburst of the learned trial judge, it can be inferred that everyone in the Court who watched the proceedings of the Court could read the mind of the learned trial judge. The outburst shows in excess, a person who appears to have an axe to grind against the appellant and his team

of lawyers. In such a circumstance, it is with ease for an ordinary man in the Court to conclude that the trial judge cannot be free to hold an even balancing scale of justice. Let me voice it here that what is in the mind of a judge may not be measured or known by direct evidence. It is the attitude displayed by the judge, that is apparent, that may be examined as to whether he was biased. When a Court appears to give more favour or consideration to one of the parties to a case before it, either in utterances, attention or actions which is open and capable of perverting the cause of justice, covertly or overtly, then judicial bias may be said to exist. See Kenon v. Tekam (2001) 14 NWLR (732) 12; Elike v. Nwakwoala (1984) 12 SC., 301; Womiloju v. Anibire (2010) 10 NWLR (1203) 545, 571;Bamgboye v. University of Ilorin (1999) 10 NWLR (622) 2909 at 355.
In the instant case, the learned trial judge on record documented how he was worried by the act of the appellant and his counsel and the narrative suggests someone who has an axe to grind against the appellant and his legal team. At a point he clearly desired to be recused from conducting the trial.

The learned trial judge catalogued the series of what he nursed or had against the appellant and his legal team. The inference from this narrative is swiftly to say the least that the trial judge was angered or wounded in his mind towards the appellant and his lawyers. That is the inference that the judge was likely to be biased and indeed he was biased against the appellant in this case. The records before us have shown that the appellant made frantic effort to cause the trial Court to abort what he sensed to be bias against him. He wrote a petition to the Chief Judge complaining of bias, and ultimately filed a Motion seeking the order of the learned trial judge to recuse himself but all failed, so the trial continued.
Let me say a word here. Justice is universally rooted in confidence. When in a criminal trial a person accused sniffs the polluted air of bias in any tangible form, the responsibility of the Court it is to be circumspect of what gives the accused person reason to complain. This unfortunately, is not what happened in the instant case. The learned trial judge took the complaint, it appears to be a personal assault to his person and his Court.

He then began to labour to cope with the burden of hearing the case before him and ended up railing out what shows the colour of his bias against the appellant in his judgment. In all this, the Court was being watched by the ordinary people in the Court. A straight assessment of the utterances of the learned trial judge in this case shows an exhibition of bias. In the case of Sunkanmi v. The State (2014) LPELR – 22694 (SC), the Supreme Court per Ngwuta, JSC, held:
“Bias can be of three categories: (1) Peculiar bias as exhibited by a member of the Tribunal or Court having a pecuniary interest in the subject matter of the dispute. (2) Personal bias – existence of close relationship between a member of the Tribunal or Court and one of the parties to the dispute, and (3) Official bias – an abnormal desire or inclination to pursue a predetermined line of action which would prevent an impartial adjudication of the dispute between the parties. See Venkatuchalam Iver v. The State of Madra AIR 195.7 Mad. 623, 626.”
From the facts on record before us, the learned trial judge showed in his comments the inference of an abnormal

desire or inclination to pursue a predetermined line of action – against the appellant. The trial judge refused to subpoena witness for appellant until directed by this Court. When the same witness applied to be allowed to refresh his memory, the trial Court refused. This no doubt is an inference of bias against the appellant. It fitted so well into the category 3 of bias as listed in Sunkanmi v. State (supra). There is no how the learned trial judge can be seen to be detached from malice against the appellant from the circumstances and his utterances in this case. I am wholly in agreement with the learned senior counsel’s submission in his brief that from the utterances of the trial judge, any reasonable observer in the Court would conclude that the appellant and counsel representing him were not treated fairly or Courteously by the learned trial judge. The inference of bias is drawn from all that the learned trial judge himself said. He left no one in doubt that he was angry or biased and frustrated or felt humiliated by the appellant and his legal team. There is truly evidence of likelihood of bias of the trial judge against the appellant.

This no doubt, has led to a failure of justice in this case. The duty of the trial judge is to be completely detached from the case before him. The trial judge owed the duty of fairness to the parties. Any failure of fair trial will orchestrate a catastrophic end of the trial as has been found in the instant case. Onu, JSC, in Damina v. State (1995) LPELR – 918 (SC) said on the role of a judge the following:
“It is settled law that the delicate role played by a judge in our adversarial system of justice demands that he must not only be impartial, but must be seen to be impartial at all time.”
This role, I must say is sacred. By virtue of his position as an impartial arbiter, a trial Judge has the sacred duty of determining disputes between parties not only speedily and efficiently but in a manner that ensures evenhanded justice to both sides. The adage is that justice must not only be done, it must manifestly be seen to have been done. A judge is expected to consider the evidence led by all the parties before him and determine in whose favour the imaginary scales of justice tilts. In the conduct of proceedings, he must be seen to be fair

to both sides. Let me cull in the dictum of Coker, JSC, in Elike v. Nwakwoala & Ors (supra) but also cited as (1984) LPELR – 1118 (SC) on the role of a judge in our adversarial system of justice. His Lordship said:
“The function of a judge adjudicating between two disputants is that of an arbiter. A trial is unfair if the judge as an adjudicator shows interest or bias in the course of the proceedings in favour of one party or prejudice against the other party. This he may do in a variety of ways. His cardinal duty is that he must keep an open mind throughout the trial and must give each of the disputants equal and fair opportunity to present his case or defence by allowing him to call any witness of his choice in proving his own case or in challenging the evidence adduced by his opponent”. In this connection, if he engages counsel, that counsel has complete control in presenting his case fairly and firmly without any undue interruption by the trial judge. His duty is to sit and determine the issues raised by parties, not to conduct an investigation or examination on behalf of any of the parties or of the society at large. But he is

not a mere umpire. His object is to find out the truth, and do justice according to law, and in this pursuit, the advocate plays an honourable and necessary role. As Lord Eldon, L.C., said in the notable passage “truth is best discovered by powerful statements on both sides of the question.”
In the instant case, the charge had spent some time at the lower Court before it was concluded. This fact notwithstanding the law must be adhered to as it is due process of the law that enhance judicial integrity. The exhibition of bias as inferred from the facts of this case is too serious to be ignored. It will be a very dangerous precedent for this Court to ignore this breach. A trial that meets the acceptable standard in a civilized society is a trial that is fair and just. Such a trial has no tolerance for bias and partiality. The two issues argued as issues 1 and 2 in this appeal are very fundamental. The appellant has been able to convince this Court that from the records in this appeal, there was likelihood of bias on the part of the learned trial judge.
Issues 1 and 2 are therefore resolved in favour of the appellant. Where bias is

established as in this case, the decision of the trial Court cannot be anything but a nullity. This Court in its duty must set the decision aside. The judgment of the lower Court delivered on 25/02/2020, is accordingly annulled. This being the case, issues three to ten argued by the parties have become academic and are hereby discountenanced.
In Bude v. The State (2016) LPELR – 40435 (SC), the Supreme Court held that in a situation where the trial is declared a nullity, the effect is that there was never a trial, as the purported trial has no legal force or effect. This is now the position of this instant case. Since the trial is declared a nullity, this case is remitted back to the trial Court for a fresh hearing. The Chief Judge is to assign the case to another Judge of that Court.

MOHAMMED MUSTAPHA, J.C.A.: I was availed the benefit of reading in draft the judgment just delivered by my learned brother, Stephen Jonah Adah, JCA.

I agree with the reasoning and I adopt the conclusion and consequential orders made therein as mine.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH

ADAH. I agree with the reasoning, conclusion and orders therein.

Appearances:

Essien Andrew, with him, Edidiong Usungurua, Esq., Chika Odoemene, Esq., Mary Frances Orji, Esq. and A. A. O. Akpan, Esq. For Appellant(s)

Sylvanus Tahir, Esq., with him, Richard Dauda, Esq. and H. M. Mohammed, Esq. – for 1st Respondent
Tobechukwu Onwugbufor, SAN, with him, O. Francis, Esq. and C. Onwugbufor, Esq. – for 2nd Respondent For Respondent(s)

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