OLISA METUH v. FEDERAL REPUBLIC OF NIGERIA & ANOR
(2019)LCN/12611(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of January, 2019
CA/A/451C/2018
RATIO
COURT AND PROCEDURE: BIAS
“On the issue of Judicial bias, the Supreme Court, in WOMILOJU v. ANIBIRE (2010) 10 NWLR (PT. 1203) 545 @ 561-562 held as follows: ‘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 fairly been exercised in consistence with the fundamental principles of justice embraced within 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 findings which are supported by evidence. See: Omoniyi v. General Schools Board, Akure & Ors (1988) 4 NWLR (Pt. 89) 449 at page 463; Elike v. Nwakwoala & 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 disqualifying a judge from participating in a case which is properly brought before him for adjudication (sic). The allegation cannot be founded on mere conjecture or hearsay.'” PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
OLISA METUH Appellant(s)
AND
1. FEDERAL REPUBLIC OF NIGERIA
2. DESTRA INVESTMENT LIMITED Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment):
By a Motion on Notice filed on the 23rd February 2018, the Appellant herein, as 1st Defendant/Applicant, at the Federal High Court sitting at Abuja (hereafter called the “Trial Court”), prayed for the following reliefs:
1. An Order varying the conditions of the ball granted to the Applicant which required that the International passport of the Applicant be deposited with the Registry of this Honourable Court, pending the conclusion of trial.
2. An order granting leave to the Applicant to travel to the United Kingdom to engage in a Medical treatment over his already deteriorated health at the Wellington Hospital, Wellington Place, St. John’s Wood Road, London W89LE, United Kingdom.
3. An Order of this Honourable Court directing the interim release of the 1st Defendant/Applicant’s International Passport deposited with the Registrar of this Honourable Court or any staff of the Federal High Court in possession of same for a period of 9 weeks to enable him proceed to the United Kingdom for the urgent medical treatment.
4. And for such further or other orders as this Honourable Court may deem fit to make in the circumstance.
The application was supported by a 34 paragraph affidavit deposed to by one Obinna Metuh, the Appellant’s younger brother to which were attached various annexures, evidencing medical reports and examinations.
Affidavits, counter affidavits, and written addresses were filed and exchanged by Counsel on both sides. The Trial Court in the course of hearing the application raised issues of jurisdiction on whether the Court had become functus officio in the matter of the variation of the bail conditions, having regard to the previous decisions which were not appealed. In its Ruling delivered on the 19th of April 2018, the Trial Court, per O.E. Abang J, dismissed the Appellant’s application. At pages 1390 – 1391 of the printed Record, the Trial Court held as follows:
“?.On account of the conduct of the Defendants from 9th February, 2016 that the Prosecution closed their case till now, they have employed all manner of delay tactics to delay proceedings. I am not inclined and cannot exercise my discretion in favour of the 1st Defendant in directing the release of his International Passport for him to travel to the UK for alleged medical treatment… In the final analysis, on the issue of jurisdiction, I have no jurisdiction to entertain the application and on the merit of the application, the application dated 23rd February, 2018 lacks merit. It is accordingly dismissed. I so hold.”
It is against this Ruling that the Appellant has appealed to this Court, vide a Notice of Appeal filed with leave of this Court, upon Twenty Grounds.
In line with the extant Rules of this Court, parties filed and exchanged briefs of arguments, which they adopted and relied on in support of their respective views, when the appeal came up for hearing, on the 14th of January, 2019.
For the Appellant, a brief of argument dated 28th September 2018, was filed on the 2nd of October 2018. Dr. Onyechi Ikpeazu SAN, who settled the brief, distilled the following issues for this Court’s determination. They are:
1. Whether the trial Judge was wrong to decline jurisdiction and to hold that there were no changed circumstances to warrant the grant of the Appellant’s application for variation of his bail condition so as to enable him travel to the United Kingdom for treatment.
2. Whether the trial Judge was wrong when he held that the Appellant’s failure to appeal the decision refusing his earlier application was detrimental to the application, the subject matter of this appeal.
3. Whether the trial Judge was wrong when he held that the application the subject matter of this appeal was an abuse of the process of the Court.
4. Whether the finding of the trial Judge that the Appellant had a hidden agenda in bringing the application and that the Appellant’s assertion that he was ill was doubtful was based on mere speculation and therefore wrong in law.
5. Whether the trial Judge was wrong in his evaluation of the affidavit in support of the application together with the attached evidence exhibits and in dismissing the application.
6. Whether the trial Judge displayed manifest pre-judgment of the matters before him so as to divest him of the objectivity required in the adjudication of the charge.
The Appellant also filed a Reply brief on the 10th of January 2019, which was deemed properly filed and served on the 14th of January, 2019.
For the 1st Respondent, a brief of argument settled by Sylvanus Tahir Esq., was filed on the 21st of November, 2018
but deemed properly filed and served on the 14th of January 2019. The following six issues were raised for this Court’s determination, to wit:
1. Whether the learned trial Judge was not right/justified in the circumstances to decline jurisdiction to entertain for the third time, the Appellant’s application, which presented no new facts seeking the variation of his bail condition to wit: releasing his International Passport deposited with the Court, so as to enable him travel to the United Kingdom for medical treatment.
2. Whether the learned trial Judge was not right/justifies in holding that the Appellant’s application for the third time seeking variation of his bail condition constituted an abuse of the Court process.
3. Whether the learned trial Judge was not right/justified in holding that in the circumstances of the refusal/dismissal of similar applications in the past, the Appellant’s remedy ought to have been an appeal against the previous decisions to the Court of Appeal for a review, instead of presenting yet a third application based on similar facts.
4. Whether it is not within the right/province of the learned trial Judge to use words or phrases, which in his opinion are germane to his evaluation of evidence and same does not amount to a show of bias or constitute miscarriage of justice.
5. Whether the learned trial Judge was not right/justified in his evaluation of the affidavit evidence/exhibits presented by the applicant in support of his application that warranted the dismissal of the application.
6. Whether the learned trial Judge had demonstrated any bias in the consideration of the instant application/case to warrant an Order transferring the case to another Judge.
No brief was filed on behalf of the 2nd Respondent.
I have calmly perused the issues raised for determination by counsel on both sides and the arguments canvassed therein. The issues arising for determination on both sides are the same in purport, though couched differently. I hold the view that this appeal can be determined under three broad issues, namely:
1. Whether the Trial Court was right to decline jurisdiction, after holding that the extant application was an abuse of Court process;
2. Whether the Trial Court properly evaluated the affidavit evidence/exhibits presented by the Appellant in support of his application that warranted the dismissal of the application.
3. Whether the Trial Court had demonstrated any bias in the consideration of the instant application/case to warrant an order transferring the case to another Judge?
Learned counsel on both sides have proffered arguments with regards to the issues arising for determination. These arguments form part of the Records of this Court. I shall however for emphasis, highlight some salient points in their respective submissions.
ISSUE ONE
Whether the Trial Court was right to decline jurisdiction, after holding that the extant application was an abuse of Court process? (Comprises Issues 1, 2, and 3 on both sides.)
It is submitted for the Appellant that the Trial Court was wrong to have declined jurisdiction to vary the Appellant’s condition by temporarily releasing his International Passport to enable the Appellant travel to the United Kingdom for his spinal condition.
On the issue of whether the extant application was an abuse of Court process, to warrant the Trial Court’s decline of jurisdiction, learned Senior counsel submitted that this application in no way constituted an abuse of Court process, as in all cases, facts of each case must be isolated and examined before a Court can come to the conclusion that an application was an abuse of Court process. He commended this Court to these cases: SARAKI v. KOTOYE (1992) 9 NWLR (PT. 264) 156; ONYEABUCHI v. INEC (2002) 8 NWLR (PT. 769) 417; ARUBO v. AIYELERU (1993) 3 NWLR (PT. 280) ACHI v. EBENIGHE (supra).
In conclusion, this Court is urged to resolve this issue (which comprises the Appellant’s Issues one, two and three) in favour of the Appellant, and hold that from a candid appraisal of the facts of the extant application, the Trial Court was in error to have declined jurisdiction.
In its response, it is submitted for the 1st Respondent that the Trial Court was right in holding that it had no jurisdiction to entertain the extant application, taking into consideration the fact that this application was materially the same, as the applications dated 16/5/16 and 27/1/17 and that no new
facts were presented to entitle the Court look at the application differently and therefore exercise its discretion in favour of the extant application. He referred this Court to pages 1350 1352 Vol. 2 of the Record of Appeal.
Learned counsel for the 1st Respondent maintained that there being no fresh facts and materials upon which the Trial Court could consider to exercise its discretion in the Appellant’s favour, the application was bound to fail, as rightly held by the Trial Court. He placed reliance on the case of FRN v. BULAMA (2005)16 NWLR (PT 951) 219.
According to him, an application for bail or variation of bail conditions can be presented on different occasion with the same case, but that must be predicated upon the existence of different facts and change of circumstances which will enable the Court exercise its discretion favourably.
He opined that a calm look at the grounds supporting the applications and affidavits in support of the three applications of 16/05/16, 24/1/17 and 23/2/18 would reveal that they were essentially the same. He invited this Court’s attention to grounds 5, 6, 7 and 8 and paragraphs 7, 8, and 12 of the affidavit in support of the application dated 16/05/16; grounds 3, 4, 5 and 6 paragraphs 7, 8, 11 and 12 of the affidavit in support of the application dated 24/1/2017; and grounds 4 and 10 and paragraphs 6, 21 and 22 of the affidavit in support of the application dated 23/02/2018 and maintained that no new facts or changed circumstance existed which would enable the Court exercise its discretion in favour of the Appellant. He went further to submit that the Appellant’s extant application was an abuse of Court process, as rightly held by the Trial Court.
On what constitutes an abuse of Court process, learned counsel for the 1st Respondent referred this Court to the following cases:
ADEBOWALE v. STATE (2013) 16 NWLR (PT. 1379) 104; OKONKWO v. FRN (2011) NWLR (PT 1258) 215
He concluded by submitting that from the sum total of the depositions in the Appellant’s extant application, there is nothing new placed before the Court upon which discretion could be exercised in the Appellant’s favour, and the Trial Court was right both in declining jurisdiction and dismissing the application. He commended this Court to the following cases amongst others: LAWAL v. FRN (2013) 3 NWLR (PT 1342) CA; SULEMAN v. C.O.P. PLATEAU STATE (2008) 8 NWLR (PT 1089) 298; DOKUBO ASARI v. FGN (2007) 12 NWLR (PT 1048) 320; OGBUAWA v. FRN (2011) 12 NWLR (PT 1260) 100.
He therefore urged this Court to so hold, and resolve Issues one, two and three against the Appellant.
In reply, it is submitted for the Appellant that the diagnosis of the disease suffered by the Appellant as Cervical Thoracic and Lumbosacral Spondylitis Disease, is only a generic expression, which is clearly said to be progressive. Any stage of that progression, resulting in debilitation, in irreversible installments will present different circumstance on which the Court may be swayed to allow medical intervention.
Learned SAN opined that although the grant of bail is discretionary, such discretion must be exercised in accordance with the law having regard to all the circumstances of the case. It is his view that in the instant case, the trial Judge ignored the fresh and uncontroverted facts placed before him and preferred to dwell on generalization and conjecture, in which case it cannot be said that the discretion exercised on such premise is judicious or judicial, and this invariably occasioned a miscarriage a justice.
He stated that the findings of the Trial Court, which ignored fresh and uncontroverted facts placed before it, was indeed perverse and not in line with established principles of law. He called in aid the case of FRN v. WABARA (2013) 5 NWLR (PT 1347) 331, which he submitted, does not avail the 1st Respondent, and concluded that the decision arrived at by the Trial Court, was not supported by the clear evidence presented before the Court.
Furthermore, it is the view of learned Senior Counsel for the Appellant that contrary to the submissions made on behalf of the 1st Respondent, a change circumstance does not occur only when a charge is altered. In his opinion, the circumstances are limitless and what is called for, is a calm appraisal of the facts by the arbiter in order to accord fair hearing to all the parties.
This Court is again urged to resolve these issues in favour of the Appellant.
It is apparent, from the totality of the submissions of Learned counsel on both sides, that the fulcrum of these issues is: whether taking into consideration all the fact deposed to in the extant this application, as well as the applications dated 16/5/16 and 27/1/17, any new facts have been presented to entitle the Court look at the application differently and therefore exercise its discretion in favour of the extant application.
To answer that, it is imperative that the grounds upon which the three applications are predicated as well as the relevant paragraphs of the supporting affidavits, are reproduced and scrutinized.
The extant application, which gave rise to this appeal is the application filed on the 23rd of February, 2018, wherein the Appellant prayed for:
1. An Order varying the conditions of the bail granted to the Applicant which required that the International passport of the Applicant be deposited with the Registry of this Honourable Court, pending the conclusion of trial.
2. An order granting leave to the Applicant to travel to the United Kingdom to engage in a Medical treatment over his already deteriorated health at the Wellington Hospital, Wellington Place, St. John’s Wood Road, London W89LE, United Kingdom.
3. An Order of this Honourable Court directing the interim release of the 1st Defendant/Applicant’s International Passport deposited with the Registrar of this Honourable Court or any staff of the Federal High Court in possession of same for a period of 9 weeks to enable him proceed to the United Kingdom for the urgent medical treatment.
4. And for such further or other orders as this Honourable Court may deem fit to make in the circumstance.
The application was supported by a 34 paragraph affidavit, deposed to by the one Obinna Metuh, the brother to the Appellant, to which were attached various annexures. Paragraphs 3 – 33 are pertinent, and are hereunder reproduced;
3. Applicant was granted bail on the 19th of January, 2016 but because of the onerous conditions attached to the bail, the Honourable Court graciously varied conditions of bail vide an application filed 25th of January, 2016.
4. As part of the conditions of the varied bail, the Applicant was asked to deposit his International Passport with the Courts Registry, which he complied with.
5. The Applicant has kept to the conditions of the bail by appearing in Court promptly on trial days, except for grounds of his deteriorating health in respect of which proper medical reports were availed this Honourable Court.
6. Before the arrest, detention and trial, the Applicant had been a patient of the National Hospital Abuja (for a period of over ten years) with Patient No: 093590 and had been diagnosed with Cervical Thoracic and Lumbosacral Spondylotic Disease.
7. Applicant has been under management and supervision of a Physiotherapist to stabilize the movement of his spinal cord but all to no avail.
8. On the 18th of January, 2018, Applicant travelled by road (as there is no option of air travel) to Nnewi, Ozubulu and subsequently Obingwa in Abia State from Awka, Anambra State (a distance of about 150km) and had to drive back to Awka by 2 a.m. on the same day.
9. Applicant woke up on 19th of January, 2018, to realize that he could not walk and in fact, realized that his lower limb had lost sensation.
10. The Applicant was immediately rushed to Nnamdi Azikiwe Teaching Hospital, Nnewi (NAUTH) in an Ambulance where no treatment was administered due to lack of faculty. Applicant was then transferred to University Teaching Hospital Awka, Enugu (UNTH) and National Hospital Abuja, all to no avail as the Doctors still stand on their old diagnosis which is surgery as the definitive treatment.
11. Few days later, Applicant was transferred to UNTH Ituku – Ozalla, Enugu where he was admitted at the Neurosurgery Unit for thorough observation.
12. The UNTH Ituku-Ozalla, for lack of adequate facility referred Applicant to Memfys Hospital for Neurosurgery, Enugu for further examination. Annexed as Exhibit 1 is the receipt of payment for MRI CERVICAL, LUMBAR THORACIC examination and MIR Report as well as other relevant medical receipts.
13. Applicant’s counsel, Dr. Onyechi Ikpeazu, SAN, informed the Applicant that trial in this case was adjourned to 5th of Febraury 2018 and the Honourable Court in its Ruling of 25th of January 2018, ordered that Applicant must be in Court to face his trial, despite the Medical Report before the Court which indicates that he is critically ill and on admission in Nnamdi Azikiwe Teaching Hospital, Nnewi, Anambra State.
14. In compliance with the Order of this Honorable Court for the Applicant to appear in Court for his trial on the 5th February, 2017, Applicant demanded to be discharged from the Hospital while thorough evaluation of his health condition was ongoing.
15. The hospital advised against his demand to be discharged for the purpose of appearing in Court for his trial and further explained that his clinical condition until fully evaluated requires Applicant to remain in the Hospital and that any long journey may result in significant worsening of his back problems.
16. The Consultant Neurosurgeon at the Neurosurgery Unit of the Hospital advised that Applicant need to remain under Medical supervision in the hospital until critical cord compression and possible risk of neurological damage has been excluded.
17. Upon Applicant’s insistence to be discharged against medical advice, he was made to sign a letter and discharge form to that effect which were witnessed by the Consultant Neurosurgeon, Prof Wilfred Mezue. Annexed as Exhibits 2A & 2B Letter and discharge form from the University of Nigeria Teaching Hospital Ituku-Ozalla, Enugu dated 2nd & 3rd February, 2018 respectively.
18. On the 4th of February, 2018, Applicant was moved in an ambulance (against medical advice), from UNTH Enugu, to the National Hospital, Abuja, where he was again admitted at the intensive Care Unit.
19. In strict adherence to the Order of this Honourable Court, Applicant appeared in Court for his trial on 5th February, 2018 on a stretcher, having been brought into the Court premises in the National Hospital Ambulance, because he could not stand, sit or even move his legs.
20. Applicant has been seen by medical experts at the National Hospital, Abuja, NAUTH, UNTH, and LUTH (all of which are Federal government Teaching/Tertiary Hospitals in Nnewi, Enugu and Lagos, and Abuja) and they have insisted that his condition cannot be helped by any hospital in Nigeria.
21. The doctors are unable to further any treatment or examination as they insist that the old diagnosis still stands which is surgery as the definitive treatment and must be carried out immediately to save his life.
22. Applicant’s medical condition has greatly degenerated in the past two months, hence his recommendation to Adrian T.H. Casey MBBS, FRCS, SN Consultant Neurological & Spinal surgeon at the Wellington Hospital, London United Kingdom who is a world leading expert in that field of medical practice for the definitive treatment of surgery. Annexed as Exhibit 3, is the Letter signed by Adrian T.H. Casey Wellington Hospital, London.
23. Applicant is presently confined to his house, where he is being managed by a Physiotherapist and have access to a 24 hrs Private Nursing Service pending neurosurgical intervention. Applicant’s condition is rapidly deteriorating, and his muscles are badly affected and he cannot walk, sit or stand as his lower limb has lost sensation.
24. The facts relied on in this application are the present facts before this Honourable Court, which are different from the previous facts earlier relied on.
25. There is urgent need for the Applicant to travel abroad and undergo this life saving surgery to save the only life he has.
26. I verily believe from the conclusions of all the medical experts we interacted with in the course of his treatment that he will either lose control of his limbs or die, if he does not keep the medical appointment in the United Kingdom.
27. The Applicant informed me at his aforementioned address on 22nd February, 2018, and I verily believe him that he is desirous of getting treatment to enable him offer his best defence to the Charge which totally threatens his existence both as a person and as a Legal Practitioner.
28. Applicant stands the chances of becoming permanently incapacitated or losing his life unless this Honourable Court permits him to travel to the United Kingdom for medical help and further orders for the release of his passport.
29. I am informed by the above mentioned Adrian T.H. Casey MB, BS, FRCS, SN Consultant Neurological & Spinal Surgeon, of the Wellington Hospital, London, over a telephone conversation on 20th day of February, 2018 at about 2 p.m. at the aforementioned address of the Applicant that the operation will take about 10 days and a recovery process will take another 5 weeks.
30. I know as a fact that International Passport and United Kingdom Visa of the Applicant is expired and it will take a minimum of 10 days to renew both documents, hence the Applicant requires a period of about 9 weeks to enable him get the relevant travel documents to proceed to the United Kingdom for the urgent medical treatment.
31. Applicant further informed me at his aforementioned address on 22nd February, 2018 and I believe him, that he will not abuse the indulgence sought, if granted by Your Lordship as he will ensure that he comes back within the time granted by this Honourable Court.
32. Further, Applicant has not attached a medical report in obedience to the order of this Court made on 25th January, 2018 where the Court stated that it will not countenance any medical report from any hospital in Nigeria.
33. It will be in the interest of justice that this application succeeds.
MOTION ON NOTICE FILED 16/05/16
1. An Order granting leave to the Applicant to travel to the United Kingdom for five weeks to attend to his deteriorating health at the Royal London Hospital, London, United Kingdom.
2. An Order releasing the Applicant’s International Passport to him to enable him proceed to the United Kingdom for the urgent medical attention.
3. And for such further or other orders as this Honourable Court may deem fit to make in the circumstance.
GROUNDS UPON WHICH THE APPLICATION WAS BROUGHT
1. Applicant was arraigned on the Original Charge dated 4/01/2016 and same was amended in an Amended Charge dated 16/02/2016.
2. Bail was granted him on the 19/01/2016 and was varied vide the Applicant’s Application filed on 25/01/2016.
3. The Applicant having been released on bail has been appearing in Court promptly and without fail.
4. Before the arrest and detention of the Applicant, he had been a patient of the National Hospital, Abuja.
5. The Applicant has before now been diagnosed with Cervical and Lumbosacral Spondylotic Disease.
6. With his fall at the office, the Applicant now finds it difficult to stand or sit for two hours and when he does, he does same with severe pain.
7. The Applicant now depends on Celebrex and Lyrica with Perbidine injection and diazepam (pain killer) to suppress the pain at intervals. These pain killers have their side effects to which the Applicant has been exposed to.
8. The medical condition has worsened hence the recommendation of the Applicant to Mr. Johnson Bull PhD FRCS (SN), Consultant Neurological and Complex Spinal Surgeon, Royal London Hospital, London, United Kingdom.
9. Unless the Application is granted and the Applicant’s International Passport released, the Applicant will not be able to proceed for the urgent medical need.
10. If this application fails, the Applicant may die or be prematurely incapacitated in which case he will be unable to defend himself in this suit.
11. The Applicant undertakes to return within the period granted him to continue with his trial.
The motion is supported by a 17 paragraph affidavit, deposed to by the Appellant herein, wherein Paragraphs 5 – 13 are pertinent, and reproduced hereunder:
5. Before my arrest, detention and trial, I had been a patient of the National Hospital, Abuja (for a period of over ten years) which hospital is acclaimed to be the best hospital in Nigeria in Neurological Medicine due to the medical facilities therein. My hospital registration number is 093590.
6. Local hospitals in Nigeria are unable to handle neurological in case which the National Hospital cannot deal with and my case is one of such cases.
7. Before my incarceration and trial, I had been diagnosed with Cervical and Lumbosacral Spondylotic Disease.
8. This condition has since worsened with my travail and the fall I had at a meeting in the office. Presently, I have further been diagnosed with Advanced Degenerative Disease of the Cervical and Lumbar Spine.
9. I visited the National Hospital on the 24th day of March, 2016 for a medical check on my neck due to the severe pain I experience in that area and I was issued a medical summary thereafter. Annexed as Exhibit 01, is the medical summary dated 24/03/2016.
10. On the 26th day of April 2016, I had a fall in my office as earlier averred and was rushed to the National Hospital which is the hospital that has my medical history and I was immediately admitted. A lumbar x-ray was ordered and taken. Herein annexed as Exhibit 02 are the receipt of payment for the x-ray and the Doctor’s report.
11. Following the increased pain and my inability to walk and sit painlessly after my Court appearance in Charge No. F.C.T High Court) on 09/05/2016, I was rushed to the National Hospital, on 10/05/2016 and again was admitted. Annexed herewith is the receipt of payment dated 10/05/2016 for the bill and same is marked Exhibit 03. I now rely on Cerebrex and Lyrica, with Pethidine injection and diazepam, (pain killers), for the suppression of the acute pains. These pain killers have their side effects to which the Applicant has been exposed to.
12. Based on the findings of the Medical Doctor who ordered an urgent MRI Cervical, Thoracic and Lumbosacral spine to be conducted, I was then referred to Mr. Johnson Bull PhD FRCS (SN), Consultant Neurological and Complex Spinal Surgeon, Royal London Hospital, London, United Kingdom for immediate medical assistance. Now annexed as Exhibit 04 are copies of the letter of reference and MRI C/SPINE.
13. Since the deterioration of my health, I have ceased to function in my office as the National Publicity Secretary of the Peoples’ Democratic Party and indeed, on Doctor’s observation while waiting to travel for the medical treatment in the United Kingdom, if the Court will graciously accede to this application.
APPLICATION FILED 24/1/17
1. For an order temporarily suspending or varying in the manner prayed hereunder that condition in the Order of Court, granting the Applicant bail which required the International Passport of the Applicant to remain in the custody of the Registry of the Federal High Court, Abuja pending the conclusion of his trial.
IF PRAYER 1 IS GRANTED:
2. FOR AN ORDER directing the Registrar of the Federal High Court or any other staff of the Federal High Court in possession of the International Passport of the Applicant to release same temporarily to the Applicant for the sole purpose of undergoing medical treatment in Wellington Hospital, Wellington Place, St. John’s Wood Road, London, W89LE, United Kingdom, and such other hospitals in London where the Applicant’s medical condition can be treated.
3. FOR AN ORDER permitting the Applicant to travel to London for the sole purpose of attending the said Wellington Hospital and such other hospital in London where the Applicant’s medical condition can be treated for the treatment of his medical condition for a period of eight (8) weeks and thereafter to return the International Passport to the custody of the Registrar or such other staff of the Federal High Court in whose custody the Passport shall remain, pending the determination of the trial.
FOR SUCH FURTHER ORDERS as this Honourable Court may deem fit and proper to make in the circumstance.
GROUNDS UPON WHICH THE APPLICATION IS BROUGHT.
1. The Applicant is standing trial before the Federal High Court and in the process was granted bail by the Honourable Justice Abang on 19th January, 2016.
2. Applicant initially was unable to satisfy the condition of his bail but following an application for review filed on 25th January 2016, the Honourable Justice Abang graciously reviewed the conditions of the bail.
3. Applicant was diagnosed with Cervical and Lumbrosacral Spondylotic Disease which protracted and worsened, despite treatment of the condition with Celebrex and Lyrica, with Pethidine injection and others which have virtually no palliative effect.
4. Applicant’s condition had been managed by the National Hospital, Abuja for a protracted duration and surgery is now inevitable.
5. Applicant has gone to doctors at the LUTH, UNTH and UBTH (all of which are Federal Government teaching/tertiary hospitals in Lagos, Enugu and Benin), and has received no guarantee that the surgery can successfully be performed in Nigeria.
6. Recently, Applicant on the contrary, was recommended to Mr. Adrain T. H. Casey, MBBS, FRCS, SN, Consultant Neurological and Spinal Surgeon, at the said Wellington Hospital, who is the leading expert in that field of medical practice.
7. It will be in the interest of justice to grant the application so that the Applicant will live to attend to his trial.
The Motion is supported by a 26 paragraph affidavit deposed to by the Appellant. I consider paragraphs 3 – 25 to be pertinent. I hereunder reproduce them.
3. I was admitted to bail on the 19/01/2016 but because of the onerous conditions attached to the bail, the Honourable Court graciously varied the conditions of bail vide my application filed on 25/01/2016.
4. I have kept to the conditions of the bail by appearing in Court promptly on trial days even in contravention of medical advice of my doctors which confined me to hospital admission and bed rest.
5. Before my arrest, detention and trial, I was a patient at the National Hospital, Abuja for a period of over ten years, which hospital is acclaimed to be the best hospital in Nigeria in Neurological Medicine, due to the medical facilities therein. My hospital registration number is 093590.
6. I know local hospitals in Nigeria are unable to handle neurological cases which the National Hospital cannot deal with and my case is one of such cases. My belief is derived from the fact that I have gone to various Teaching Hospitals in Nigeria and my condition could not be helped.
7. Before my incarceration and trial, I had been diagnosed with Cervical and Lumbosacral Spondylotic Disease.
8. This condition has since worsened with my travail and the fall I had at a meeting in the office at the Peoples’ Democratic Party, National Secretariat. Presently I have further been diagnosed with Advanced Degenerative Disease of the Cervical and Lumbar Spine.
9. I visited the National Hospital on the 24th day of March, 2016 for a medical check on my neck, due to the severe pain I experience in that area and I was issued a medical summary thereafter. Annexed as Exhibit 01, is the Medical Summary dated 24/03/2016.
10. On the 26th day of April, 2016, I had a fall in my office as earlier averred and was rushed to the National Hospital which is the hospital that has my medical history and I was immediately admitted. A lumber x-ray was ordered and taken. Herein annexed as Exhibit 02, is the receipt of payment for the x-ray and the Doctor’s report.
11. Following the increased pain and my inability to and sit painlessly after my Court appearance in Charge No. (FCT High Court) on 09/05/2016, I was rushed to the National Hospital on 10/05/2016 and again admitted. Annexed herewith is the receipt of payment dated 10/05/2016 for the bill and same is marked Exhibit 03. I was placed on Celebrax and Lyrica, with Pethidine injection and Diazepam (pain killers) for the suppression of the acute pains. These pain killers for the suppression of the acute pains. These pain killers have their side effects to which I have been exposed.
12. Based on the findings of the Medical Doctor who ordered an urgent MRI Cervical, Thoracic and Lumbosacral Spine to be conducted, I was then referred to Mr. Jonathan Bull PhD FRCS SN, Consultant Neurological and Complex Spinal Surgeon, Royal London Hospital, London, United Kingdom for immediate medical assistance. Now annexed as Exhibit 04 are copies of the letter of reference and MRI/SPINE.
13. On 8th January, 2017, I was attending my Sunday devotion at the Church (Guilding Light Assembly, Area 11, Garki, Abuja) when I began to experience splitting upper back and lower neck pain. This eventually degenerated when I suddenly felt cold on my lower limbs which immobilized my legs.
14. I was rushed to the National Hospital, Abuja where I was instantly admitted. Numerous consultants attended to me which included Professor Bwala, the Chief Consultant Neurologist. On 10th January 2017, Charles Ugwuanyi MD, FMCS, FNIMC, Neurological Complex Spine and Skull Base Surgeon wrote a report of my condition as at that date. Hereto attached and marked Exhibit 05 is the letter signed by Charles Ugwuanyi.
15. Till presently, I have not quite recovered full bladder sensation, muscle tone and power ambulation and I am still under severe pain.
16. Although I was discharged after a period of seven (7) days at the hospital, I am still an outpatient and constantly being observed by numerous consultants including those mentioned above who had informed me that owing to the delicate nature of my condition which could easily degenerate to paralysis, my best chance was to embark on the surgery at the said Wellington Hospital, London, United Kingdom where adequate neurological monitoring can be effectively guaranteed and undertaken. Delivered and marked as Exhibit 06 is a letter signed by Adrian T.H. Casey and addressed to the head of my medical team, Dr. Raymond Onwuelo accepting to perform the requisite surgery after being fully briefed of my medical condition.
17. From the opinion of the expert, the post surgical duration will span for a period of ten days to two weeks, with a requisite rehabilitation period of eight weeks.
18. I acknowledge that on a previous occasion, I had applied for the release of my passport to enable me embark on the desired surgery abroad. His Lordship noted the procedural inadequacy of the application and refused the same.
19. I verily believe that the present application is different in form as well as in substance, as informed by my lead Counsel, Dr. Onyechi Ikpeazu OON, SAN at my residence in Prince & Princess on 21st January, 2017 at Z30 p.m.
20. I have not appealed the Order granting bail or the refusal of my previous application but rely on the discretion reserved in Court to do justice in matters concerning the bail of a Defendant.
21. I verily believe from the conclusions of all the Doctors I interacted with in the course of my treatment, that I will either lose control of my limbs or die, if I am compelled to embark on the recommended surgery in Nigeria.
22. I want to live so that I can offer my defence to the Charge which totally threatens my existence both as a person and as a Legal Practitioner.
23. I am aware that this Honourable Court though not preside over by Your Lordship has granted similar indulgence in the interest of justice and annexed as Exhibit 07 are the Orders made in respect of Charge Numbers FHC/ABJ/CR/389/2015; FHC/ABJ/CR/81/2013; FHC/ABJ/CR/292/15; and FHC/A BJ/CR/297/2015.
24. I hereby undertake that I will not abuse the indulgence sought if granted by Your Lordship.
25. It will be in the interest of justice to grant this application as well as in furtherance of my constitutional right to life.
The question now is whether there has been a changed circumstance to activate the discretion of the Court in favour of the Appellant.
The case of the Appellant simply put, is that because of his inability to travel to the United Kingdom due to the unavailability of his International Passport, his health had been greatly and progressively affected, and that right now he is unable to move the lower part of his body.
A detailed look at the paragraphs of the affidavits adumbrated above, reveals that no new case had been made out in favour of the Appellant. All the depositions and annexures to the applications reveal the Appellant, for a period of over ten years had been diagnosed with Cervical Thoracic and Lumbosacral Spondylitc Disease. This does not qualify as a new case, as contemplated by the apex Court’s decision in the case of NNADOZIE v. MBAGWU (2008) LPELR 2055 (SC), where the apex Court defined a new case as:
“A case which was not existing before. A new case is a different case, different from the original case. A new case is a fresh case. A new case is a case which the Court is just beginning to know about for the first time in the judicial process.”
There is nothing in the depositions in the Appellant’s affidavit in support, that disclose a new case, to necessitate the exercise of the Court’s discretion, in the Appellant’s favour.
In considering the issue of whether a new case had been made out by the Appellant, the Trial Court had this to say:
” ?. I agree with learned counsel for the Prosecution, S. Tahir that no circumstance has changed to make this application different from the two applications earlier dismissed by the Court. It is indeed the same application seeking for the release of the International Passport based on the same ill health. The remedy of the Applicant lies in seeking a recourse elsewhere and not to come before this Court with this application. Having filed an application in the past on two occasions, on the same issue and same refused by the Court, this Court lacks jurisdiction to entertain the same application the third time. I lack the jurisdiction to exercise discretion afresh on the same sets of facts and issues that were considered in the two applications earlier dismissed. There can be an end to the Court’s exercise of its discretion if it is sought on the same facts and issues that have been considered before the same Court. I agree entirely with the Learned Prosecuting Counsel that the instant application is an unpardonable and reckless abuse of judicial process.”
I find the above decision of the Trial Court unassailable, and adopt same as mine. I therefore answer the question,
“Whether the Trial Court was right to decline jurisdiction, after holding that the extant application was an abuse of Court process, in the affirmative and resolve this issue, (comprising Issues one, two and three formulated by Counsel on both sides), against the Appellant.
ISSUE TWO
Whether the Trial Court properly evaluated the affidavit evidence/exhibits presented by the Appellant in support of his application that warranted the dismissal of the application. (Comprises Issues 4 and 5 both sides)
It is submitted for the Appellant that the Trial Court did not properly evaluate the affidavit evidence/exhibits presented by the Appellant in support of his application.
Learned senior counsel for the Appellant stated that the Trial Court did not dispassionately approach the case of the Appellant which occasioned a gross miscarriage of justice.
According to him, all the exhibits annexed to the Appellant’s application, copiously attested to the Appellant’s deteriorating health, a situation which the Trial Court glibly overlooked, in its attempt to deny the Appellant a fair trial and impugn the opinion of the experts, through whom the exhibits emanated.
On the meaning of an expert opinion, learned senior counsel referred to the following authorities:
SECTION 68 OF THE EVIDENCE ACT 2011; OGORO v. SEVEN UP BOTTLING CO. PLC (2016) 13 NWLR (PT 1528) 1; R v. TURNER (1975) Q.B. 834; UDOM v. UMANA (NO.I) (2016) 12 NWLR (PT 1526) 179
Learned senior counsel for the Appellant contended that the Trial Court’s scrutiny and conclusion on Exhibit 3 in an interlocutory application, was totally wrong as this Court had held in the case of JIMOH v. HON MIN. FCT (2016) LPELR 40422 (CA), that the law is that documents attached to an affidavit in an interlocutory application should not be objected to, as the issue of admissibility does not arise at that stage. He maintained that the Trial Court’s unsolicited scrutiny and conclusion on Exhibit 3 in an interlocutory application was totally wrong and if corrected, will result in the exercise of discretion in favour of a grant of the application. He placed reliance on the following: ADEJUMO v. GOVERNOR OF LAGOS STATE (1970) ANLR (PT. 1) 187; OLUTAYO v. UNIVERSITY OF TECHNOLOGY MINNA (2007) 13 NWLR (PT 1051) 301; NWOSU v. ISESA (1990) 2 NWLR (PT 135) 618.
He therefore urged this Court to resolve these issues in favour of the Appellant and hold that the Trial Court’s failure to act on the unchallenged evidence placed before it, was injurious to the Appellant and occasioned a miscarriage of justice.
In its response, it is submitted for the 1st Respondent that contrary to the Appellant’s contention, the 1st Respondent did infact vehemently oppose the applications of the Appellant. Learned counsel for the Appellant referred this Court to pages 603 – 615 of the Record, and submitted that the Trial Court discharged its duty, having evaluated the affidavit and further affidavit of the Appellant vis–vis the 1st Respondent’s counter affidavit as well as the written and oral arguments canvassed by counsel on both sides, before coming to its conclusion.
Learned counsel for the 1st Respondent argued further that an affidavit stands and falls on its own merit, and failure of a respondent to file a counter affidavit does not automatically amount to the success of an applicant’s claims. Reliance was placed on the following:
OKONKWO v. FRN (2011) 11 NWLR (PT 1258) 215;
OKOYE v. CENTREPOINT MERCHANT BANK LTD (2008) 15 NWLR (PT 1110) 335;
BELLO v. AG LAGOS STATE (2007) 2 NWLR (PT 1017) 115.
He urged this Court to resolve these issues against the Appellant, and hold that the Trial Court was right in its decision that the affidavit evidence and exhibit attached thereto, in the Appellant’s application, were not credible enough to sustain the application.
In reply, it is submitted for the Appellant that where a counter affidavit is filed, but did not controvert paragraphs of the affidavit in support and the documents attached thereto, as in the instant case, the proponent of an application clearly will be justified to submit that the facts were not controverted, and therefore, the cases of OKONKWO v. FRN supra, OKOYE v. CENTRE POINT MERCHANT BANK LTD supra and BELLO v. AG LAGOS STATE supra, cited by the 1st Respondent, are of no assistance to it.
This Court is again urged to resolve these issues in favour of the Appellant.
The relevant portions of the Appellant’s depositions in his affidavits in support, have been marshaled out above and need no repetition.
In his response to the above adumbrated depositions of the Appellant, Ibrahim Musa, a detective officer with the EFCC, stated in his counter affidavit in opposition to the Appellant’s motion dated 23rd February 2018, as follows at Paragraphs 7 – 17:
7. That the depositions in the said affidavit and the affidavit of urgency are mostly incorrect, untrue, speculative and baseless, particularly Paragraphs 7, 8, 9, 10, 11, 12, 15, 16, 17, 8, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33 and 34.
8. That contrary to the depositions contained in Paragraphs 7,8, 9, 10,11, and 12 of the affidavit in support of the motion, the Defendant/Applicant has been attending to political and social engagements including attending the Special Convention of his party on the 9th December, 2017, attending social functions in Aba few days before the resumption of trial on the 22nd January, 2018, but suddenly claimed to be unwell in order to stay away from his trial in this case.
9. That contrary to the depositions contained in paragraphs 15, 16, 17, 18 19 and 20 of the affidavit in support of the motion, all the purported admission of the Defendant at the Nnamdi Azikiwe University Teaching Hospital, Nnewi, (NAUTH), his alleged referral to the University of Nigeria Teaching Hospital (UNTH) Enugu and his conveyance in an ambulance to the National Hospital, Abuja were mere scripts acted to hoodwink the Court and gullible members of the public into believing that the Defendant/Applicant is seriously ill which is utterly false.
10. That further to the above, and contrary to the depositions contained in paragraph 19 of the Affidavit, the appearance of the Defendant/Applicant in Court on a stretcher has since been found out to be an orchestrated drama aimed at currying favour and sympathy of the Court and public opinion, as indeed no medical staff of the National Hospital Abuja or any other Hospital accompanied/conveyed the Defendant/Applicant on the ambulance or the stretcher, save his relations and friends who partook in acting the script.
11. That contrary to the depositions contained in paragraphs 21,22,23, 24, and 28 of the affidavit in support of the motion, none of the Exhibits attached to the affidavit in support of the motion made a referral of the Defendant/Applicant to any Hospital in London, in the United Kingdom or any other hospital abroad.
12. That Paragraphs 25, 26 and 27 of the affidavit in support of motion are speculative and false as there is no medical report before the Honourable Court, opining that the Defendant/Applicant’s ill health is life threatening or that he will lose control of his limbs as alleged.
13. That paragraph 29 of the affidavit in support of motion is utterly false, as the deponent, not being the Defendant/Applicant was unlikely to engage in the telephone conversation with Adrian T.H. Casey MB, BS, FRCS, SN Consultant Neurological and Spinal Surgeon, Wellington Hospital, London as alleged.
14. That from all the unfolding events since the commencement of trial, in this case in January 2016, it is clear that the Defendant/Applicant is not interested in seeing to the conclusion of this trial despite all the indulgence accorded him by the Honourable Court.
15. That contrary to the depositions contained in Paragraphs 30, and 31 of the affidavit in support of motion, the Defendant/Applicant is a highly politically exposed person, who is desperate to circumvent the judicial process and will definitely abscond/bolt away if his international passport is released to him and allowed to travel abroad as he is unlikely to come back to the country to face his trial.
16. That paragraph 32 of the affidavit in support of motion is utterly untrue and false as the Court can never discountenance any medical report duly brought to its attention. The Court had indeed looked at all medical reports previously filed on its merits.
17. That it will be in the best interest of justice to refuse the Defendant/Applicant’s motion as granting same will seriously prejudice the Complainant/Respondent.
These depositions, in the main are attacking the Appellant’s depositions in the affidavits in support. The Appellant herein has annexed various medical reports from Government/tertiary hospitals in Nigeria, stating that Appellant is in need of surgery for the ailment already stated. He is however placing great reliance on the Medical Report of a certain Adrian T.H. Casey MB BS FRCS SN, Consultant Neurological & Spinal Surgeon, The Wellington Hospital Wellington Place, St. John’s Wood Road, London NW 8 9LE, admitted in evidence as Exhibit 3.
The salient portion of the letter is as follows:
“I have been contacted by the medical team of Mr. Metuh who has a spinal code injury. He has a severe neurological problem with paralysis. He has a flicker of movement in his legs. This is a potentially reversible situation with surgery.
The surgery will be complex spinal neurosurgery which will involve decompression of his spinal cord and potentially stabilization of his spine. I would recommend that he is assessed and seen in the Wellington Hospital for optimum medical and surgical management of this paralysis….”
The Appellant herein is contending that the Trial Court did not properly evaluate the depositions in the supporting affidavit and the various medical annexures, before coming to its decision that no new case had been made out for the Appellant to warrant the Trial Court’s favorable exercise of discretion to vary the Appellant’s bail conditions.
The Trial Court, after considering the depositions in the Appellant’s affidavit, had this to say at pages 43 to 44 of the Ruling delivered on the 19th of April, 2018:
“I agree with the learned Prosecuting counsel Mr Syvanus Tahir the Exhibit 3 attached to the Applicant’s affidavit in support of the application is a documentary hearsay and has no evidential value. Exhibit 3 is a letter issued by one Mr. Adrian T.H. Casey, claimed by the 1st Defendant to be a Consultant Neurological Spinal Surgeon of Wellington Hospital, London, a person not known to Court.
From the contents of the said letter, he did not personally examine the 1st Defendant… To the extent that the author of the letter is relying on the contents of the two letters dated 2017 and 30th January 2018 to come to a conclusion that the 1st Defendant needs medical treatment in the UK, outside the country, Exhibit 3 is documentary hearsay which is not credible the issue here is that author of Exhibit 3 cannot rely on purported reports issued by Dr. Raymond Onwuelo to come to the conclusion that the 1st Defendant be referred to his hospital in the UK for surgery to help reverse the degree of alleged paralysis and the letter he made reference to not produced before the Court. To that extent, it is documentary hearsay, notwithstanding that the letter is attached to an affidavit and not tendered in Court, during plenary trial. The author of Exhibit 3 cannot rely on documents not shown to Court and that will constitute a referral letter, where he did not have the opportunity to examine the 1st Defendant personally…”
From the above findings and decision of the Trial Court, I cannot agree with learned counsel for the Appellant that the Trial Court did not properly evaluate the evidence before it. It is apparent from the Record before this Court that the Trial Court meticulously considered all the evidence before it, before coming to its conclusions.
What is more, it is evident that the author of Exhibit 3 document merely narrated therein the course of treatment that the applicant had received vide the letters dated January 2017 and January 2018. He did not personally examine the Appellant before arriving at this decision. This at best is documentary hearsay as rightly held by the Trial Court. It is hearsay because the letter seeks to establish the truth of what is contained in the letters referred to above and not to establish the fact that it was indeed made. The use of medical terminologies in Mr. T.H. Casey’s letter does nothing to make its contents any more impressive or weightier.
See ABACHA v. STATE (2002) LPELR 15 (SC).
There is thus nothing before this Court, beyond the exaggerated and unsubstantiated claims of learned counsel for the Appellant, to show that the state of health of the Appellant at the time the extant application was filed, that a new case or circumstance existed, to invoke the Trial Court’s favorable exercise of discretion.
In ABACHA v. STATE supra, it was held that the special medical need of an accused person whose proven state of health needs special medical attention which the authorities may not be able to provide is a factor that may be put before the Court for consideration in the exercise of discretion to grant bail to the accused person. Such need is not brought before the Court by mere assertion of the accused or his counsel, but on satisfactory and convincing evidence.
In the case, there is nothing before this Court to show that the Trial Court wrongfully evaluated the evidence placed before it, as contended by the Appellant. It is manifest that there is really no substance to the application, and the Trial Court rightly refused it.
I therefore resolve Issues 4 and 5 on both sides against the Appellant.
ISSUE THREE
Whether the Trial Court had demonstrated any bias in the consideration of the instant application/case to warrant an order transferring the case to another Judge?
It is submitted for the Appellant that the Trial Court displayed manifest pre-judgment of the matters before it, as to divest it of the objectivity required in the adjudication of the charge.
According to the learned SAN for the Appellant, a study of the decision of the Supreme Court on appeal of the refusal of the no-case submission, will easily reveal that the Trial Court substantially misrepresented the decision of the apex Court, thus exposing its mindset towards the case before the Court. He referred this Court to the case of OLISA METUH v. FRN & ANOR (2018) 10 NWLR (PT 1628).
He maintained that the Trial Court’s obvious lack of objectivity towards the Appellant, were manifest in the debilitating comments of the Trial Court. He referred this Court to pages 10 -13, 13 – 15, 20 – 22, 25, 38, 40, 42, and 56 of the Ruling, and submitted that these comments were mostly cynical, misanthropic and disdainful of the Appellant, capped with bold assertions that the Appellant had a hidden agenda, all amounted to the fact that the Trial Court already passed judgment on the Appellant’s character and ability to tell the truth, which is tantamount to a likelihood of bias, against the Appellant.
He relied on these cases:
MBAS MOTEL LTD v. WEMA BANK LTD (2013) LPELR 20736 CA; WOMILOJU v. ANIBIRE (2010) 10 NWLR (PT 1203) 545.
He asked this Court to hold that the Trial Court lacked the requisite objectivity required in the Appellant’s case, and resolve this issue in favour of the Appellant.
In conclusion, this Court is urged to allow the appeal and grant the reliefs sought at page 28 of the Appellant’s brief.
In response, it is submitted for the 1st Respondent that the fact that the Trial Court misapprehended the judgment of the Supreme Court as a dismissal of the appeal, instead of the appeal having been struck out for incompetence, does not in any way warrant an allegation of bias against the Trial Court, to transfer the case to another Judge.
Learned counsel for the 1st Respondent argued that the phrases listed by the Appellant at paragraph 10.05 of his brief, which were used by the Trial Court, were mere expressions of his opinion by the learned trial Judge and did not constitute judgment on the Appellant’s character. The case of ENEKWE v. IMB (NIG) LTD (2006) 19 NWLR (PT 1013) 146 SC, was cited in reliance.
On the meaning of “judicial bias”, this Court as referred to these cases:
WOMILOJU v. ANIBIRE supra;
KENON v. TEKAM (2001) 14 NWLR (PT. 732) 12;
ALIZE v. UMARU (2002) 14 NWLR (PT. 787) 369.
He submitted in conclusion that the Appellant has woefully failed to substantiate the wild, unbridled and bogus allegation of bias made against the trial Judge to warrant an order transferring the case to another Judge.
This Court is urged to so hold, and dismiss the appeal.
In reply, it is submitted for the Appellant the Appellant’s case is not simply that the trial Judge erred, but that His Lordship made it obvious through the language employed by him that the character of the Appellant was seriously in doubt.
It is the view of learned SAN for the Appellant that in the face of clear evidence from experts under the employment of the 1st Respondent, such conclusion against a person whose evidence will ultimately be evaluated and whose liberty will thus be dependent is frightening.
He relied on the case of LAWRENCE v. ATTORNEY GENERAL OF THE FEDERATION (2007) LPELR 8566 CA, where it was held that “in deciding whether a Court or Tribunal is partial and therefore disqualified from presiding over the matter, the Court will not enquire into whether the Court did in fact favour one side unfairly. The Court looks at the impression of right minded people. If reasonable people would think that, in the circumstance of the case, there was a real likelihood of bias, then the decision cannot stand..”
This Court is again urged to so hold, and resolve all the issues raised in this appeal in favour of the Appellant, and allow the appeal.
The thrust of this issue is for an order directing the Chief Judge of the Federal High Court or any Judge acting in his stead to transfer the case to any Judge of the Court other than Honourable Justice Okon E. Abang, for reasons bordering on bias.
On the issue of Judicial bias, the Supreme Court, in WOMILOJU v. ANIBIRE (2010) 10 NWLR (PT. 1203) 545 @ 561-562 held as follows:
“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 fairly been exercised in consistence with the fundamental principles of justice embraced within 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 findings which are supported by evidence. See: Omoniyi v. General Schools Board, Akure & Ors (1988) 4 NWLR (Pt. 89) 449 at page 463; Elike v. Nwakwoala & 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 disqualifying a judge from participating in a case which is properly brought before him for adjudication (sic). The allegation cannot be founded on mere conjecture or hearsay.”
Adekeye, JSC in the said case held, at Page 571 paras B-E:
“One of the twin pillars of the Rules of Natural Justice is the rule against bias, which is expressed in the maxim Nemo judex in causa sua. It means that no one should be a judge in his own cause. Fairness of proceedings require that a person who is tainted by likelihood of or actual bias should not take part in the decision making process where the adjudicator is under a duty to act fairly. For instance, an adjudicator must not have any direct financial or proprietary interest in the outcome of the proceedings. In the process of adjudication, there must not be reasonable suspicion of bias or likelihood of bias. Other factors which could show a real likelihood of bias are:- (1) Hostility of strong personal animosity towards a party. (2) Personal friendship, family or professional relationship. The test is the impression created in the minds of right minded people. If right thinking persons would think that there is a real likelihood of bias or that the trial judge had not been impartial then his decision cannot stand..”
See also
EXECUTIVE GOVERNOR, NASARAWA STATE & ANOR v. UKPO (2017) LPELR 42445 (CA);
ABDULKADIR v. SALEH (2014) LPELR 24632 (CA).
Therefore, a bias must demonstrate a real likelihood of an operative prejudice whether conscious or unconscious. There must be cogent evidence as opposed to mere vague suspicion to support, a contention of real likelihood of bias.
In the appeal under consideration, can it be said that the Trial Court was biased or showed strong personal animosity towards the Appellant to justify disqualifying the trial Judge from participating in the instant case?
It is amply borne out of the Record before this Court that the Appellant?s trial at the Trial Court, suffered several adjournments, all at the instance of the Appellant. See pages 49 to 55 of the Ruling dated 19th April, 2018.
At pages 55 – 56 of the Ruling, the Trial Court held as follows:
“The Court on 25th January, 2018 did not grant the Prosecution’s application that the 1st Defendant’s bail be revoked.
Though it was deserving that such application be granted, rather on account of human sympathy and in exercise of its discretion in favour of the 1st Defendant, gave the 1st Defendant another opportunity to be in Court. The matter was then adjourned to 5th February 2018 for continuation of trial. It was on 5th February 2018 that surprisingly, the 1st Defendant then appeared in Court in a stretcher without any medical personal accompanying him. This fact was disclosed by the Prosecution in their counter affidavit in opposition of the instant application. Seeing him on a stretcher, I was deeply touched. Though the defence counsel asked for 1 month adjournment, in exercise of my discretion I gave the 1st Defendant 6 weeks adjournment to enable him treat himself, if he was indeed sick.”
Based on the above decision of the Trial Court, can it be said that the Court was biased against the Appellant? I think not. There is nothing before this Court to show that the Trial Court was biased or showed strong personal animosity towards the Appellant to justify disqualifying the trial Judge from participating in the instant case.
It is my view that the authority of the Trial Court was fairly exercised in consistence with the fundamental principles of justice embraced within the conception of the process of law. The Appellant has not demonstrated to this Court that the trial Judge exhibited a real likelihood of an operative prejudice whether conscious or unconscious towards him. For a case of judicial bias to succeed against a Judge, there must be cogent evidence as opposed to mere vague suspicion to support a contention of real likelihood of bias. No such evidence has been presented by the Appellant herein.
I therefore resolve this issue against the Appellant and hold that the Trial Court had not demonstrated any bias in the consideration of the instant application/case to warrant an order transferring the case to another Judge.
In the final analysis, having resolved all the issues distilled for determination against the Appellant, I feel no hesitation in coming to the conclusion that this appeal is utterly without merit and should be dismissed. I accordingly dismiss it.
The Ruling of the Trial Court delivered on the 19th of April, 2018 per Hon. Justice O.E. Abang, is hereby affirmed.
There shall be no order as to costs.
ADAMU JAURO, J.C.A.: I have had the advantage of reading in advance the lead judgment just delivered by my learned brother, Abdu Aboki, PJCA. I am in complete agreement with the reasoning and conclusions contained therein to the effect that the appeal is lacking in merit.
I adopt the said judgment as mine, in dismissing the appeal. I abide by all consequential orders made.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE ABDU ABOKI, PJCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
Emeka Etiaba, SAN with him, Ozoemena Nwogbo, Esq., Kasie Ogbuawa, Esq., Obinna Onya, Esq., Deanabasi Essien, Esq., A. A. Akaahs, Esq., Emeka Chinwuba, Esq. and Ifunanya Enedu, Esq.For Appellant(s)
F. A. Jiabo with him, Fatima Ado Gwaram for the 1st Respondent.
Onwe Francis for the 2nd RespondentFor Respondent(s)
