RAY UBA v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12073(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of October, 2018
CA/L/344CA/2018
RATIO
COURT AND PROCEDURE: LIKELIHOOD OF BIAS
“In law, to accuse a Court of bias or even likelihood of bias, which if made out would suffice, is not a light matter to be raised lightly or lackadaisically but must be raised with all seriousness and in good faith. It is not something to be toyed with or raised for the fun of it or to prolong and unduly delay the expeditious hearing and determination of the trial or intended merely to secure a de novo trial, upon the recusal of the trial judge and transfer of the matter to another judge, more particularly in a criminal trial. Thus, only genuine cases of bias or real likelihood of bias would and should warrant a favorable consideration for the recusal of one judge and transfer of a matter to another judge for a de novo trial. This is because justice itself is rooted in confidence and once confidence is eroded by genuine evidence of bias or real likelihood of bias, no justice can result from such a trial. After all, it has been said centuries ago, and over and over again, that justice should not only be done but must be manifestly seen to have been done!” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
RAY UBA – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the High Court of Lagos State, Ikeja Judicial Division; Coram: S. A. Onigbanjo J., in Charge No: ID/164C /2009: Federal Republic of Nigeria V. Ray Uba & Ors, delivered on 27/9/2017, in which the application by the Appellant for His Lordship of the Court below to recuse himself from continuing to preside over the charge against the Appellant as 1st Defendant was refused and dismissed for lacking in merit.
The Appellant was peeved with the ruling of the Court below dismissing his application and had with the leave of this Court granted on 12/4/2018 appealed to this Court vide a notice of appeal filed on 19/4/2018 on one ground at pages 4 – 5 of the Additional record of appeal. The record of appeal was duly transmitted to this Court on 19/3/2018 and the additional record of appeal was deemed as properly compiled and transmitted to this Court on 20/9/2018. The Appellant’s brief was filed on 7/5/2018 but was deemed on 20/9/2018. The Respondent’s brief was filed on 20/9/2018.
At the hearing of the Appeal on 20/9/2018, Chidi Okoroji Esq., learned counsel for the Appellant, adopted the Appellant’s brief as his arguments and urged the Court to allow the appeal and set aside the ruling of the Court below. On his part, Ayanfeoluwa Ogunsina Esq., learned counsel for the Respondent adopted the Respondent’s brief as his arguments and urged the Court to dismiss the appeal and affirm the ruling of the Court below.
BRIEF STATEMENT OF FACTS
The Appellant is standing trial along with some other persons before the Court below on a twelve count amended information filed on 12/3/2010 bordering on allegations of conspiracy and stealing contrary to Sections 516 and 390 of the Criminal code Cap C17 Laws of Lagos State of Nigeria, 2003. The Respondent had opened its case and called as two witnesses who testified respectively as PW1, Mrs. Omobola Faleye and PW2, Sergeant Hycent Olanna and they were both duly cross examined by all the Defendants including the Appellant. See pages 83A – 88, 89 – 91 of the record of appeal.
After the conclusion of Cross Examination of PW2, the Respondent called its third witness as PW3, one Mrs. Tonpre Oseagwina, a Deputy Detective Superintendent with the Economic and Financial Crimes Commission (EFCC) and she testified in chief to conclusion on 7/2/2013. However, issue surrounding her cross examination by the Appellant on 8/2/2013 led the parties on appeal to this Court in Appeal No. CA/L/366/2013: Ray Uba V. Federal Republic of Nigeria & Others. On 28/11/2014, this Court delivered its judgment allowing the appeal, setting aside the order of the Court below foreclosing the Appellant?s right to cross examine the PW3 and directed the recall of PW3 for the purposes of her cross examination by the Appellant . See pages 51 – 65 of the record of appeal.
Thereafter, the Court below proceeded to continue with the trial of the Appellant and the other Defendants. However, it appears the PW3 was not immediately made available for the Appellant to cross examine her and consequently the Appellant applied to the Court below to dismiss the charge against him for failure of the Respondent to produce the PW3 as directed by this Court in its judgment and the application was dismissed by the Court below on 21/6/2016. See pages 72 – 74 of the record of appeal.
On the strength of the above ruling, the Appellant once again on 11/10/2016 applied to the Court below to recuse itself from further hearing the charge against him on the grounds that the successful appeal against the earlier ruling of the Court below amounts to an embarrassment to the Court below in continuing with the trial of the Appellant coupled with some alleged prejudicial statement made by the Court below against the Appellant in the ruling of 21/6/2016. The application was supported by an affidavit of 5 paragraphs. In response, the Respondent filed a counter affidavit of 8 paragraphs. In reply, the Appellant filed a further and better affidavit of 4 paragraphs. On 24/4/2017, the application was heard and on 27/9/2017, the application was dismissed by the Court below in its considered ruling, hence this appeal with the leave of this Court obtained on 12/4/2018 and the subsequent notice of appeal filed on 19/4/2018. See pages 25 – 28, 33 – 34, 46 – 48, 98 – 101 and 102 – 105 of the record of appeal.
ISSUE FOR DETERMINATION
In the Appellant’s brief, a sole issue was distilled as arising for determination from the two grounds of appeal, namely:
Whether the learned trial judge has not breached the Appellant’s right to fair hearing by an impartial Tribunal in criminal proceedings by the ruling of 27th day of September 2017, given all the circumstance.
In the Respondent’s brief, a sole issue was also distilled as arising for determination in this appeal, namely:
Whether in the circumstance of this case, the refusal of a misconceived application constitutes judicial bias against the Appellant.?
I have taken time to review the facts, applications by the Appellant and the entire proceedings of the Court below leading to this appeal. I have also considered the submissions of counsel in their respective briefs in the light of the decision of the Court below refusing the application by the Appellant to recuse itself from continuing to preside over the trial of the Appellant and I am of the view that the sole issue as identified in the Respondent’s brief, though with a slight modification, best represent the only pertinent issue arising from the sole ground of appeal, a consideration of which, in my view, would also cover the sole issue as identified in the Appellant’s.
SOLE ISSUE
Whether in the circumstance of this case, the refusal of the Appellant’s application for the judge of the Court below to recuse himself constitutes judicial bias against the Appellant.?
APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellant had submitted that by virtue of Section 36 (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) whenever any person is charged with a criminal offence he shall be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal, which contemplates three clear elements of fair hearing, trial within a reasonable time and before an impartial arbiter and contended that in law fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing and urged the Court to hold that in the circumstances in which the Court had made prejudicial statement against the Appellant in its earlier ruling on 21/6/2016 and is likely to be embarrassed by the overturning of another of its earlier ruling by the Court of Appeal on appeal by the Appellant, there is every ground to believe that the Appellant will not receive a fair trial from the Judge of the Court below, who ought therefore, to recuse himself from continuing with the trial of the Appellant. Counsel referred to the Book: The Criminal Procedure of the Southern States of Nigeria, by Fidelis Nwadialo, 2nd Edition @ p. 58 and relied on Mohammed V. Kano Native Authority (1968) All NLR 424 at p. 426 per Ademola CJN.
It was further submitted that this Court had in its judgment in Appeal No: CA/L/366/2013 in setting aside an earlier ruling of the Court below found that the trial judge of the Court below had denied the Appellant his right to fair hearing and contended in such circumstance the Court below ought to have considered the relevant principles on allegation of bias and fair trial rather than relying solely on the age of the case in arriving at its decision whether or not to recuse itself and urged the Court to hold that no reasonable person viewing the conduct of the trial would conclude that the trial was fair against the Appellant after his victory in this Court over an earlier decision of the Court below, which clearly would embarrassed the Court below.
It was also submitted that the pertinent issue raised in the Appellant’s application before the Court below was not a highly speculative, perverted imagination, or reading perverse meaning into clear directive of this Court but rather whether a reasonable person would walk away from the trial of the Appellant before the Court below believing that justice has not been done and contended that in law independence and impartiality of a Court are part of the attributes of fair hearing, which requirements are intended to prohibit a person from deciding a matter in which he has either pecuniary or any type of interest which may arise from his personal relationship with one of the parties to the case or may be inferred from his conduct or utterances during the hearing of the matter. Counsel relied on Abiola V. FRN (1995) 7 NWLR (Pt. 405) 1 @ p. 24 per Uwais JSC (Later CJN); King V. Sussex Justices Ex-parte Mc Carthy (1924)1 KB 256 @ p. 259 per Hewart CJ.; Anosika V. Igbeke (1999) 8 NWLR (Pt 616) 656 : p. 695.
It was also further submitted that the statement of the Court below to the effect that ”I do not have any doubt that under those circumstances the Prosecution cannot be rightly accused of failure to produce PW3 for cross -examination by the 1st Defendant as alleged and as the 1st Defendant only has himself to blame for failing to cross – examine the witness when made available for that purpose by the prosecution” was highly prejudicial against the Appellant and contended that in law in deciding whether a Court is partial and therefore disqualified from presiding over an enquiry, the Court will not enquire whether the Tribunal did, in fact, favor one side unfairly as all the Court looks at is the impression of right minded people and thus if reasonable people would think that, in the circumstances of the case, there was a real likelihood of bias, then the decision cannot stand, the basis of this is that justice must be rooted in confidence and confidence is destroyed when right-minded people go away with the impression that the Judge was biased and urged the Court to allow the appeal. Counsel relied on Comm. of Local Government V. Ezemuokwe (no citation supplied); Onigbede V Balogun (no citation supplied); Anosika V. Igbeke (1999) 8 NWLR (Pt. 616) 656 @ p. 695.
RESPONDENT’S COUNSEL SUBMISSIONS
On the sole issue, learned counsel for the Respondent had submitted that on the facts and circumstances of this appeal and the penchant of the Appellant to appeal over every issue and to use the appellate procedure to scuttle the expeditious determination of the charges against him in the interest of justice, there has not been made out against case of bias or breach of the right to fair hearing of the Appellant in this appeal against the Court below and contended that in law the true test of bias is not restricted to the account of the party alleging same but it lies in the evaluation of the circumstances from which a reasonable man would think it likely or probable that the judge would, or did, favor one side unfairly at the expense of the other as it suffices that reasonable people might think he did since justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking the judge was biased. Counsel relied on Deduwa & Ors V. Okorodudu & Ors (1976) 1 NMLR 236 @ pp. 245 – 246 per Alexander, CJN.; R. V. Rand (1866) L.R. 1 C.P. 230; Queen V. Mckenzie (1892) 2 QB. 519.
It was further submitted that the complaint of the Appellant that since this Court had overruled the Court below and ordered the recall of PW3 the trial judge of the Court below must automatically recuse himself from the trial is totally unfounded and contended that the very clear order of this Court to recall PW3 can only be carried out by the very judge sought to be recused by the Appellant in that another judge cannot commence the trial of the Appellant with the recall of PW3 as ordered by this Court and urged the Court to hold that the Appellant is merely involved in a strange interpretation of the order of this Court with additional conjectures, which the Court below saw through and rightly refused the misconceived application to recuse itself from the trial. Counsel relied on Kayode Babarinde & Ors V. The State (2013) LPELR 21896 (SC); Womiloju V. Anibire (2010) 10 NWLR (Pt. 1203) 545 @ p. 571; Kenon V. Tekam (2001) 14 NWLR (Pt. 732) 12.
It was also submitted that in the entire circumstances of this appeal, there is no element of bias against the Court below as being merely imagined by the Appellant and who is merely making the wild accusation deliberately to mislead this Court to make an order that will merely lead to a de novo trial after 9 years of trial in the hope that the Respondent will no longer be able to present its original witnesses to prove the case against the Appellant and the other Co – Defendants and urged the Court to refuse this ploy by the Appellant and to dismiss the appeal for being frivolous, misconceived and lacking in merit and was even based on an incomplete record of appeal which also rendered it incompetent.
Counsel relied on Chief Thomas Ekpemupolo & Ors V. Godwin Edremoda & Ors (2009) 8 NWLR (Pt. 1142) 166; Chief Okocha & Ors V. Chief Animkwoi & Ors (2003) 18 NWLR (Pt. 251) 1; Sommer V. Federal Housing Authority (1992) 1 NWLR (Pt. 219) 548; 992) 1 SCNJ 73; Orugbo & Anor V. Bulari Una & Ors (2002) 9 SCNJ 12; Chief Fubara & Ors V. Chief Minimah & Ors (2003) 5 SCNJ 142 @ p. 168.
It was also further submitted that on the facts of this appeal there is a difference between a party standing by a principle and hiding behind one and contended that the Appellant is rather hiding behind the issue of fair hearing having been responsible for the prolonged trial and delays orchestrated by the Appellant himself through series of frivolous applications before the Court below all in a bid to stall the expeditious trial of the charges against him and urged the Court to hold that the Appellant had by his conduct the architect of his own misfortune and cannot and should not be allowed to push the blame at will and point an accusing finger on the Court below so as not allow him to make a mockery of the criminal justice system and urged the Court to dismiss the appeal. Counsel relied on INEC V. Musa (2003) 3 NWLR (Pt. 806) 72.
RESOLUTION OF SOLE ISSUE
My Lords, the crux of the sole issue for determination in this appeal is simply whether or not from the facts and circumstances leading to the application by the Appellant for the recusal of the trial judge from continuing the trial of the Appellant amounted to bias or real likelihood of bias as would warrant the recusal of the trial judge as sought by the Appellant in the application of 11/10/2016, which dismissal is the subject matter f this appeal.
To properly situate the facts and circumstances leading to this appeal therefore, recourse must be had to the entire facts surrounding this appeal as could be gleaned from the record of appeal and the additional record of appeal.
On 11/10/2016, the Appellant had filed an application by way of a Motion on Notice before the Court below praying for the following reliefs, namely:
i. An order of this Hon Court declining jurisdiction to continue hearing this Charge No: ID/164C/2009 against the 1st Defendant/Applicant, the Court of Appeal Lagos having validly found that the Hon Court denied fair hearing to the 1st Defendant/Applicant, a finding that may embarrass the Hon Court and challenge the impartiality of the Court in determining the charge
ii. An order directing that the file in Charge No: ID/164/2009, be taken to the Chief Judge through the Registry of the Lagos High Court, Ikeja, for further reassignment to a new judge.
iii. Any further order the Court may deem fit to graciously make in the circumstances of this suit. See page 25 of the record of appeal
The grounds for the application were that:
”The Hon Court of Appeal Lagos Division, in its unanimous judgment in Appeal No. CA/L/366/2013: Ray Uba V. Federal Republic of Nigeria & 8 Others, an appeal against the decision of this Hon Court dated 8/2/2013, in this Charge, foreclosing the right of the Defendant/Applicant to cross examine PW3, found and held that the 1st Defendant/Applicant has been denied fair hearing by the Hon Court and this finding may embarrass the Hon Court and affect its impartiality in hearing and determination of this charge.” See pages 25 – 26 of the record of appeal.
The application was supported by an affidavit of four paragraphs deposed to by one, Bassey Effiwatt, wherein it was stated inter alia as follows:
3. I was in chambers at the Law firm of Umunnakwe & Associates, 13, Okesuna Street, Lafiaji, Lagos, on 5/10/2016 when the 1st Defendant/Applicant came to Chambers and did inform me and I verily believe as follows:
a. The Hon Court of Appeal has already delivered judgment in Appeal No. CA/L/366/2013; Ray Uba v. Federal Republic of Nigeria & 8 Others an appeal by the 1st Defendant/Applicant against a decision of this Hon Court in this charge.
b. The hierarchy of Courts in Nigeria as established and provided under the Constitution demands that appeals may go to the Hon Court of Appeal from this Court.
c. The Hon Court of Appeal Lagos Division, in its unanimous judgment in Appeal. No. CA/L/366/2013: Ray Uba V. Federal Republic of Nigeria & 8 Others, an appeal against the decision of this Hon Court dated 8/2/2013, in this Charge, foreclosing the right of the 1st Defendant/Applicant to cross examine PW3, found and held that the 1st Defendant/Applicant has been denied fair hearing by the Hon Court and this finding may embarrass the Hon Court and affect its impartiality in hearing and determination of this charge.
d. It will be most expedient under the circumstance for the Hon Court to order that the file in Charge No: ID/164C/2009 be taken to the Chief Judge through the Registry of the Lagos High Court, Ikeja, for further reassignment to a new judge. See pages 27 – 28 of the record of appeal.
In response, the Respondent filed a counter affidavit of 8 paragraphs deposed to by one Seyi Afolabi, wherein it was stated inter alia as follows:
4. That, Mr. Ogunsina, one of the Counsel in-charge of this case informed me in his office in the legal unit of the Economic and Financial Crimes Commission Lagos office on Thursday 21st July, 2016 at about 10:00 am and I verily believe him as to the following facts:
c. That the Court of Appeal ruled that PW3 be recalled for: cross-examination by the applicant/defendant herein.
d. That the Defendant/Applicant did not seek any order to transfer the case file to the Chief Judge and same was never ordered by the Appellate Court.
5. I know as a fact that the Defendant applicant deliberately refused to attach a copy of the said judgment to further conceal the truth.
6. That the application is brought mala fide and it is an abuse of Court process. See pages 33 ? 34 of the record of appeal.
In reply to the counter affidavit, the Appellant filed a Further and Better affidavit of 4 paragraphs deposed to by one Halima Isa, wherein it was stated inter alia as follows:
3. I was in chambers at the Law firm of Umunnakwe & Associates, 13, Okesuna Street, Lafiaji, Lagos, on 8/3/2017 when the 1st Defendant/Applicant came to chambers and did inform me and I verily believe as follows:
3.2.4 .That on 3/2/2015, a certified true copy of the Court of Appeal judgment in Appeal No. CA/L/366/2013: Ray Uba V. Federal Republic of Nigeria & 8 Others was duly sent to the Complainant/Prosecution, while another CTC of the same judgment was also forwarded to the Court through the Registrar of Court.
3.2.7. That this application is not brought mala fide but to ensure the non pollution of the stream of justice.
3.2.8 Had Mr. Ogunsina followed proceedings before this Hon Court in this charge, it would have noted that on 24/9/2013, this Hon Court at pages 5-6 of a ruling on 1st Defendant’s Motion on Notice for Stay of Proceedings pending appeal in Appeal No. CA/L/366/2013, had made prejudicial holding to the effect that:
From the foregoing, and without unduly trying to preempt the decision of the Court of Appeal in the Applicant’s appeal No: CA/L/366/2013, going by the Applicant’s single ground of appeal i.e. ‘Denial of Fair Hearing’ as stated in his Notice of Appeal one does not need to be a rocket scientist to realize that the Applicant’s appeal stands little or no chance of success at the Court of Appeal?.
3.2.10. The Hon Court having ruled as quoted above will definitely be embarrassed to preside over this charge after the appeal in Appeal No: CA/L/366/2013 succeeded.
3.2.14. That it will continue to embarrass the Hon Court to continue sitting over the same matter that succeeded on an appeal which the Court had earlier held to have little or no chance of success. See pages 46 – 48 of the record of appeal.
It was on the strength of the above pieces of affidavit and counter affidavit evidence of the parties and their written addresses as duly adopted by their respective counsel on 24/4/2017 that the Court below had in its ruling delivered on 27/9/2017 held inter alia as follows:
”Upon a careful consideration of the application, the grounds for bringing same as well as argument of Counsel vis-a-vis the circumstances of this case, I think that I ought to dismiss same in-limine for being totally misconceived and lacking in merit. I have no doubt that this must be so bearing in mind the age of this part – heard joint criminal trial wherein the Applicant is just one of Co-Defendants jointly standing trial on the information filed in this suit and which trial is ongoing with the recall of the PW3 for cross – examination by the 1st Defendant/Applicant only in line with the directive of the Court of Appeal in the appeal against the foreclosure of the 1st Defendant/Applicant’s right to cross-examine that witness being one of the pending issues in the said trial. To me therefore and as was rightly argued for the prosecution, the issue of the Court?s embarrassment should it proceed with the trial in this suit as argued by the Applicant is highly speculative and in my view a mere creation of the Applicant’s Counsel’s perverted imagination since clearly from the argument proffered by Counsel, Applicant’s Counsel even before cross-examining the PW3 as directed by the Court of Appeal in its considered judgment so heavily relied upon by the Applicant or placing whatever defense the Applicant has to the information in this suit before the Court, counsel is already speculating a scenario of the likely conviction of the 1st Defendant/Applicant by the Court! It appears to me that the Applicant by bringing this application is seeking to read his own perverse meaning into the clear directive of the Court of Appeal in its judgment relied upon by the Applicant in support of this application by unilaterally implying an order transferring the suit to another judge for rehearing de-novo into a clear directive for the recall of the PW3 for purposes of cross-examination by the 1st Defendant/Applicant only.
Furthermore on this issue, because the Applicant is just one of about eight (8) remaining Co-Defendants to the information in this suit, it would be grossly unfair to them if I grant this application as prayed thus tying the fate of Applicant’s Co-Defendants to that of the Applicant without their express consent. It is for the forgoing reasons that I find no merit in this application and order the same dismissed in-limine.” See pages 102 – 104 of the record of appeal.
My Lords, I have taken the time to reproduce as above the pertinent facts and circumstances leading to this appeal as put forward by the parties. I have also time to dispassionately consider these facts and reviewed the submissions of counsel for the respective parties in the light of both the rulings of 21/6/2016 and 27/9/2017 of the Court below and what indeed is the reason or reasons proffered by the Appellant for the application the recusal of the trial judge of the Court below from further presiding over the charge pending against the Appellant?
This is a trial that commenced over nine years ago in which two Prosecution Witnesses have been taken in chief and cross examined by the Appellant and the other Defendants. This is a case of which an aspect of it had travelled to this Court on appeal in Appeal No: CA/L/366/2013: Ray Uba V. Federal Republic of Nigeria, which appeal was successful in the judgment delivered by this Court on 28/11/2014, and had returned to the Court below for continuation of trial. The Appellant had complained that the Court below had in its ruling of 21/6/2016 on his application for dismissal of the charge due to failure of the Respondent to reproduce PW3 for the purposes of cross – examination by the Appellant, made some prejudicial statement against him which makes it untenable for the trial judge of the Court below to continue with the hearing of the charge against him and therefore, warrants a recusal of himself. The Appellant had also stated that the judgment of this Court overturning an earlier decision of the Court below is an embarrassment that will continue to hinder the impartial dispensation of justice by the trial judge of the Court below unless it is timely transferred to another judge of the Court below.
Now, the order of this Court in the judgment of 28/11/2014 was that the Respondent should be ordered by the Court below to reproduce or recall PW3 for the purpose of her cross examination by the Appellant. I have immediately wondered, going by the Appellant’s application that the case file be remitted to another judge, how such a great victory obtained by the Appellant can be accomplished if the matter is reassigned to another judge and commences de novo? Can the new judge order the recall of PW3 as ordered by this Court? I think not! So, who is the best position to order compliance with the orders of this Court to recall PW3 for cross examination by the Appellant? Certainly, it is the trial judge of the Court below and none other! It does appear to me therefore, that while on the one hand the Appellant is relying on the judgment of this Court to contend that it amounts to an embarrassment for the trial judge, whose earlier decision had been overturned, to continue with the trial, on the other hand the Appellant is seeking to clearly jettison the very essence of the judgment of this Court and thus making it incapable of enforcement should the case file be remitted to another judge of the Court below for trial to commence de novo.
The above aside, from the record of appeal, the Court below had in obedience to the orders of this Court in the Judgment of this Court delivered on 28/11/2014 ordered the Respondent to recall the PW3 on 18/1/2018 and 29/1/2018 respectively for the purposes of cross examination by the Appellant and continuation of trial. I have also taken a calm look at the ruling of the Court below on 21/6/2016, in which it refused the Appellant?s application to dismiss the charge against him for the failure of the Respondent to reproduce the PW3 as ordered by this Court for the purposes of cross examination by the Appellant. The Court below cataloged, in the said ruling of 21/6/2016, the chequered history of the case, including but not limited to the fact that on 8/2/2013 the PW3 was duly cross examined by the other Defendants in the case; that by the orders of this Court unless and until the PW3 is reproduced for cross-examination the trial is unwittingly put on hold; that the failure of the Appellant’s counsel to cross examine PW3 when produced and the resultant order of this Court for the reproduction of PW3 for cross-examination by the Appellant was that the trial will continue until the order of this Court is complied with the Respondent and that any resultant delay to the trial was one occasioned by the Appellant by his refusal to cross examine the PW3 when she was initially made available for cross examination. See pages 72 – 74 of the record of appeal.
So, on the strength of the above ruling being the reason d’tre for the allegation of bias and the application by the Appellant for recusal of the trial judge of the Court below, did the Appellant made out any bias or reason for the recusal of the trial judge of the Court below and was the Court below wrong when it refused to accede to the Appellant’s request and rather dismissed the said application for lacking in merit? On the answers to these two crucial questions, which in my view is the crux of this appeal, lies the due resolution of the sole issue for determination in this appeal.
In law, to accuse a Court of bias or even likelihood of bias, which if made out would suffice, is not a light matter to be raised lightly or lackadaisically but must be raised with all seriousness and in good faith. It is not something to be toyed with or raised for the fun of it or to prolong and unduly delay the expeditious hearing and determination of the trial or intended merely to secure a de novo trial, upon the recusal of the trial judge and transfer of the matter to another judge, more particularly in a criminal trial. Thus, only genuine cases of bias or real likelihood of bias would and should warrant a favorable consideration for the recusal of one judge and transfer of a matter to another judge for a de novo trial. This is because justice itself is rooted in confidence and once confidence is eroded by genuine evidence of bias or real likelihood of bias, no justice can result from such a trial. After all, it has been said centuries ago, and over and over again, that justice should not only be done but must be manifestly seen to have been done!
It was in the old English case of King V. Sussex Justices Ex-parte Mc Carthy (1924)1 KB 256 @ p. 259, that Hewart C J., had penned down those immortal words inter alia thus:
?It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to have been done.”
What then in law is ‘bias or real likelihood of bias’and when can it be said to have been made out against a judge as to warrant a transfer of the case before him to another judge? The word ‘bias’ as it relates to judicial proceedings have been severally defined and pronounced upon by the Courts in a plethora of decided cases as are replete in the Law Reports. In the definition of the word bias, learned authors have also made their input to the discourse. Thus, the terms ‘judicial bias’ and ‘bias’ have been explained in Black’s Law Dictionary 8th Edition as:
”A Judge’s bias towards one or more of the parties to a case over which the judge presides. Judicial bias is usually insufficient to justify disqualifying a Judge from presiding over a case. To justify disqualification or recusal, the judge’s bias usually must be personal or based on some extrajudicial reason.”
In Abiola V. Federal Republic of Nigeria (1995) 7 NWLR (Pt. 405) 1 @ p. 14, the Supreme Court per Uwais JSC., (as he then was but later CJN) had reiterated the relevant consideration in determining the existence of real likelihood of bias inter alia thus:
”The principle that a Judge must be impartial is acceptable in the jurisprudence of any civilized country and there are no grounds for holding that the law of Nigeria differs in this respect. Thus to disqualify a person from acting in a Judicial or quasi Judicial capacity upon the ground of interest (other than pecuniary or propriety) in the subject-matter of the proceedings, a real likelihood of bias must be made to appear not only from the material ascertained by the party complaining but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.”
Similarly, in Kenon V. Tekam (2001) 14 NWLR (Pt. 732) 12, the Supreme Court had defined the word bias as:
”An opinion or feeling in favor of one side in a dispute or argument resulting in the likelihood that the Court so influenced will be unable to hold an even scale.”
Now, there is a consensus of opinion that in its ordinary meaning bias is an opinion or feeling in favor of one side in a dispute or argument resulting in the likelihood that the judge so influenced will be unable to hold an even scale. Judicial Bias is that instinct which causes the mind to incline towards a particular object or course, and when a Judge appears to give more favor on consideration to one of the parties before him, either in his utterances, attention or action, which is capable of perverting the cause of Justice or where fair hearing cannot be said to take place all in favor of the party he supports covertly or overtly, then an allegation of bias against him can be grounded.
Bias, is also an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules. The likelihood of bias may be drawn or surmised from many factors such as corruption, partisanship, personal hostility, friendship, group membership or association and so on, towards or involving a particular party in a case. In all, it is simply an inclination, bent, prepossession, a preconceived opinion, a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. It is a condition of mind which sways judgments and renders the Judge unable to exercise his functions impartially in a particular case. It also refers to mental attitude or disposition of the Judge towards a party to the litigation and not to any views that he may entertain regarding the subject matter involved. See Black’s Law Dictionary 7th Edition @ p. 162. See also Kenon V. Tekam & Ors. (2001) 14 NWLR (Pt. 732) 12; Womiloju & Ors. V. Anibire & Ors. (2010) 10 NWLR (Pt. 1203) 545; Mbaji V. Amobi (2011) LPELR ? 3989 (CA); Azuokwu V. Nwokanma (2005) 11 NWLR (Pt. 937) 537; Ibrahim V. Ojonye (2011) LPELR-3737 (CA); Adefulu V. Okulaja (1998) 5 NWLR (Pt. 550) 435; Onigbede V. Balogun (2002) 6 NWLR (Pt. 762) 1.
Thus, in deciding whether a Court is partial and therefore disqualified from presiding over a trial, the Court called upon to decide this will not enquire whether the Court did, in fact favored one side unfairly but will look at the impression of right minded people and if indeed reasonable people would think that, in the circumstances of the case, there was a real likelihood of bias, then the decision of the Court being challenged cannot stand. This is indeed so because justice is and must be rooted in confidence and in law confidence is destroyed when right – minded people go away from the Court with the impression that truly the Judge was biased. See Deduwa & Ors V. Okorodudu & Ors (1976) 1 NMLR 236 @ pp. 245 – 246 per Alexander, CJN. See also Abiola V. Federal Republic of Nigeria (1995) 7 NWLR (Pt. 405) 1 @ p. 14; R. V. Rand (1866) L.R. 1 C.P. 230; Queen V. Mckenzie (1892) 2 QB. 519; Kayode Babarinde & Ors V. The State (2013) LPELR 21896 (SC); Womiloju V. Anibire (2010) 10 NWLR (Pt. 1203) 545 @ p. 571 per Adekeye JSC.
Having sufficiently averted my mind to the succinct principles of law on the issues of bias and judicial bias and their effects on fair hearing, I have dispassionately considered the entirety of the facts of this appeal, particularly the ruling of the Court below on 21/6/2016, the affidavit of the Appellant in support of his application filed on 11/10/2016 praying for the recusal of the trial judge and consequent reassignment of the case file to another judge; the depositions in paragraphs 3 (a) – (d) of the affidavit of one Bassey Effiwatt in support of the Appellant’s application; the counter affidavit of one Seyi Afolabi for the Respondent in opposition to the Appellant’s application; the further and better affidavit of one Halima Isa in support of the Appellant’s application. I have also reviewed the considered ruling of the Court below delivered on 27/9/2016, the subject matter of this appeal, particularly the reasons and findings therein on the undeniable facts that the trial of the Appellant has lasted for several years and that the Appellant is not a sole Defendant but one of several Defendants, out of which some of the Co – Defendants had already pleaded guilty, convicted and sentenced by the Court below. See pages 25 – 28, 33 – 34, 46 – 48 and 102 – 105 of the record of appeal.
In the light of all the above facts, I find as fact that there was no bias or any real likelihood of bias made out against the Court below by the Appellant. I also find that the Court below was right when it considered the totality of the facts and circumstances of the case before it, more particularly the age of the case, it being a joint trial and a part heard matter in coming to its conclusion that the Appellant’s application lacked merit and consequently dismissed it. I therefore, have no difficulty holding that the Court below was correct in its conclusions and findings in its ruling of 27/9/2016, the subject matter of this appeal, that the issue of embarrassment raised by the Appellant, based merely on the Appellant?s successful appeal against the earlier ruling of the Court below, was purely speculative and indeed existed only in the pigment of imagination of the Appellant and his counsel. In the light of the findings above, therefore, the sole issue for determination is hereby resolved against the Appellant in favor of the Respondent.
In considering this appeal, I gave due regards to the clear objectives of the ACJL of Lagos State 2011, which is to ensure that the system of administration of criminal justice in Lagos State promotes efficient management of criminal justice institutions, speedy dispensation of Justice, protection of society from crime and protection of the rights and interests of the suspect, and the victim and therefore, the Courts, law enforcement agencies and other authorities or persons involved in criminal justice administration in Lagos State shall ensure due compliance with the provisions of the law for the realization of its purposes. Thus, speedy dispensation justice in criminal trial is key and all unwarranted delays must be avoided and discountenanced by the Courts. In FRN V. Hon Farouk M. Lawan (2018) LPELR – CA/7I7C/2017, this Court per Owoade JCA., took cognizance of the need to bear the purpose of the law in mind while interpreting it, when he stated inter alia thus:
”It is important to give a background of the state of the criminal justice system in Nigeria before the enactment of the Administration of Criminal Justice Act 2015 (the ACJA). Before now, the administration of criminal justice was in a chaotic state, and the problem of incessant delay topped the list of the overall malfeasance in the system.
There was undue delay in the prosecution of even the most important cases and sometimes the most serious offences. There were long and sometime inexcusable periods of adjournments, unpreparedness or un-tardiness in the calling of witnesses, transfer of Prosecutors, Magistrates and Judges without effective plans for the cases they are handling and indeed poor working attitudes of the various stake holders”
The essence of the Administration of Criminal Justice Act, 2015 (ACJA) was to ensure amongst others, speedy trial and quick disposal of criminal cases in the interest and as of right of a suspect, the defendant, the victim and in fact the society at large. Section 98(2) of the ACJA was put there to ensure that part heard criminal matters do not suffer unnecessary transfers from one Court to the other for whatever reason, where an unsatisfied party has the option of an appeal if not satisfied with the outcome of the trial. I would add the popular saying that, justice delayed is justice denied or no justice at all. In some cases, some of the accused persons do not live to see the end of their trials for offences alleged to have been committed by them due to long and unending trials. To curb this trend is the essence of the ACJA.
On the whole therefore having resolved the sole issue for determination against the Appellant in favor of the Respondent and holding firmly that there has been no iota of bias or even real likelihood of bias made out by the Appellant against the Court below and there also being not an iota of any action or statements of the Court below disclosing any bias or real likelihood of bias against the Appellant, I hold that this appeal is devoid of any iota of merit and thus liable to be dismissed. Consequently, and without much ado, it is here by so dismissed.
In the result, this appeal against the Ruling of the High Court of Lagos State, Ikeja Judicial Division; Coram: S. A. Onigbanjo J., in Charge No: ID/164C/2009: Federal Republic of Nigeria V. Ray Uba & Ors, delivered on 27/9/2017, in which the application by the Appellant for His Lordship of the Court below to recuse himself from continuing to preside over the charge against the Appellant was dismissed for lacking in merit is hereby affirmed.
Consequentially, it is hereby ordered that the Court below shall proceed expeditiously on the basis of an accelerated hearing to conclude the trial and determination of the substantive matter pending before it according to law.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the thorough judgment prepared by my learned brother, Biobele Abraham Georgewill, J.C.A., which I read in print.
I wish to add by way of emphasis that from the record of appeal, the Court below cannot be justifiably accused of bias. Firmness and full control of proceedings for the purpose of attaining speedy dispensation of criminal justice which is what the Court below has done so far in this case cannot amount to bias or likelihood of bias. It is rather a commendable posture which is in tandem with the provisions of the forward-looking current Administration of Criminal Justice Law of Lagos State.
Allegation of bias or likelihood of bias could be raised on familiar grounds of the adjudicator having pecuniary/proprietary or personal interest, for example, in the outcome of the case adjudicated upon by the adjudicator; or outright partisanship exhibited by the adjudicator in the course of adjudication; not on the presumptuous ground raised in the present case by the appellant which was fully treated in the judgment prepared by my learned brother, Georgewill, J.C.A.
I too find no substance in the appeal and hereby dismiss it and order that having regard to the age of the case, it should be fast- tracked by the Court below (Onigbanjo, J.).
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have been privileged to read in advance, the judgment prepared and delivered by learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA.
I am in total agreement with his reasoning and conclusion reached in dismissing the appeal. I may only add by way of emphasis, that allegations of bias against a Court or judge should not be so casually, perhaps carelessly made by Counsel or litigants except where it is based on a highly probable and substantial evidence that is deducible on the face of the record of proceedings, and which would leave an independent and reasonable third party who reads the record of proceedings that the judge or Court was likely bias in favour of one of the parties against the other.
It is in my view of utmost importance, that Counsel must always see themselves, first as officers of the Court, and should never be engaged in making frivolous and unfounded allegations of bias against a Court on account that its decision was unfavourable to one of the parties. To do so casually as in this appeal, will invariably, and in the long run, bring the Court to disrepute and public odium.
I have not found any merit in the appeal having regard to the facts garnered from the record of Appeal filed. I agree that the appeal be dismissed. I also abide with the consequential order made that the case, the in Charge No. ID/164C/2009: F.R.N. V. RAY UBA & ORS be remitted to the trial judge, S. A. Onigbanjo, J., to be accorded accelerated hearing.
The appeal lacks merits, and it’s accordingly dismissed.
Appearances:
Chidi Okoroji, Esq.For Appellant(s)
Ayanfeoluwa Ogunsina, Esq.For Respondent(s)
