UDENSI AGU OKORIE v. ONUOHA AGU OKORIE & ORS
(2019)LCN/12646(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of February, 2019
CA/OW/356/2013
RATIO
COURT AND PROCEDURE: THE LIKELIHOOD OF BIAS
“This is because it is settled law that likelihood of bias, is invariably inferred from the facts of a given case or the circumstances surrounding the case in question. The first of the cases I will like to cite and re-produce from on the issue, is that of OTUBANJO V. KUJORE (1974) LPELR 2829 (SC) wherein Atanda Fatayi-Williams, JSC; (as he then was) said thus: – The correct state of the law as to what constitutes a real likelihood of bias(sic) stated in Halsbury’s Laws of England 3rd Edition Volume II at p. 67. It is this: ‘Where the interest of the person adjudicating is not pecuniary, the Order (i.e. certiorari) will not be granted unless it is shown that his interest is substantial and of such character that it will give rise to a real likelihood of bias.’ In Regina v. Camborne Justice (1955) 1 Q.B. 41, at p. 51, Slad (sic) J. observed that “This Court is further of opinion that a real likelihood of bias must be made to appear not only from the material in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his enquiries.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
COURT AND PROCEDURE: WHETHER THE JUDGEMENT OF THE TRIAL COURT CAN BE OPPOSED
“I cannot do better than set down the views of the learned Justices of the Court of Appeal which in my view gave sufficient reasons for holding the judgment of 9th March, 1979 also vitiated. Said Uthman Mohammed: ‘It is my strong view that whatever decision the learned trial Judge had passed down in the second judgment, after his visit to the chambers of Chief Olunwa, the generality of the members of the public are bound to call for question on the impartiality of the learned trial Judge, and in the end even the first judgment would not escape the public screening'” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
UDENSI AGU OKORIE Appellant(s)
AND
1. ONUOHA AGU OKORIE
2. OKO AGU OKORIE
3. UDENSI AMAGHI OKORIE Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):
The appeal is against the judgment delivered on 5/6/2013 by the High Court of Justice, Abia State holden at Aba Judicial Division, presided over by Hon. Justice T.U. Uzokwe (hereafter to be simply referred to as the ‘lower Court’ and ‘learned trial Judge’ respectively).
The Respondents herein as Plaintiffs before the lower Court instituted the instant case against the Appellant herein as Defendant, by a writ of summons which issued on 8/8/2011. The claims of the Respondents as set out in their statement of claim dated 26/7/2011 and which issued on 8/8/2011 are for:-
1. A declaration that the claimants are the children and beneficiaries of the Estate of Chief Elder Agu Okorie who died intestate on 31/5/1986.
2. An order compelling the Defendant to deliver up to this Honourable Court for cancellation letters of administration of the estate of Late Chief Elder Agu Okorie fraudulently obtained by the Defendant from Abia State High Court Probate Division.
3. A declaration that a Will dated 22/3/1986 purportedly executed by late Chief Elder Agu Okorie is null and void.
4. An order compelling the defendant to render full and complete accounts of all monies he has been collecting as rent etc from the estate of late Chief Elder Agu Okorie since his demise on 31/5/986 (sic).
5. An order of Court compelling the defendant to produce and surrender to the Court title documents of the properties of late Chief Elder Agu Okorie which he removed at his death and has refused to surrender to the claimants despite repeated demands.
6. Perpetual injunction restraining the defendant, his servants, privies, assignees, successors-in-title, administrators from collecting rent and interfering in whatsoever manner with the estate of late Chief Elder Agu Okorie.?
The lower Court in its judgment (in which it disclosed that the Appellant was absent for reasons not disclosed to the said Court on every hearing date of the case), having reviewed and evaluated the evidence (oral and documentary) placed before it by the Respondents through their witnesses; and having also had the benefit of the written address of the Respondents stated thus: –
Having considered the evidence adduced by the Claimants which I find to be in line with their pleadings and after a careful perusal of Exhibits “A to F”, I shall start by saying that the production of the purported Will of the late father of the Claimants twenty-two years after he died appears very suspicious.
I am afraid that no prudent Court or any reasonable man can understand why a Will drafted (sic) by a lawyer is produced by the same lawyer twenty-two years after the death of the testator. Like C.W.1, C.W.2 and C.W.3 testified that the said lawyer E.E. Ukaegbu Esq., had always been their late father’s lawyer, knew when their father died and attended his burial ceremony why then did he have to wait for twenty-two long years before producing the Will Exhibit “B”. It is the evidence of C.W.1 corroborated by the evidence of C.W.2 and C.W.3 that when they heard that the said Counsel was in possession of a Will purportedly made by their father they got their own lawyer to write to him for a confirmation of that allegation but he never gave a reply to that letter, rather he waited till April 2008 to invite the Claimants and gave them a copy of the said Will purported to have been executed by their late father, twenty-two years after his death. This piece of evidence remains unchallenged or contradicted by the Defendant.
Also the assertion of the Claimants that the people who purportedly witnessed the Will had denied any knowledge of the existence of Exhibit “C” was also neither challenged nor contradicted by the Defendant. After a careful perusal of Exhibit (sic) “B”, “C” and “D”, it is clear to me that the signature on the Will Exhibit “B” does not look like the signatures of (sic) Exhibits “C” and “D” which was (sic) also signed by him.
It is pertinent to note that the Defendant who was served with all Court processes did not bother to come to Court to defend this Suit even after the Court processes (sic) went out of its way to order a fresh hearing notice to be served on him. He did not bother to come to Court to challenge the evidence of the Claimants by way of cross-examination even when the Suit was adjourned to enable him do so. Moreover he did not bother to put up any defence. In law he is therefore deemed to have accepted the facts as put forward by the Claimants.
It is noteworthy that for unchallenged evidence to merit acceptance and probative value, it has to be credible and sufficient to support the pleadings of a party. I am satisfied that the evidence of C.W.1, C.W.2 and C.W.3 are (sic) credible and overwhelmingly supports the Claimant’s pleadings and is therefore of high probative value.
Furthermore, pleading cannot constitute evidence and a Defendant who does not give or lead evidence in support of the averments in his pleading or in challenge of the evidence of the Claimant as in this case is deemed to have accepted the facts adduced by the Claimant.
Pleadings are mere averment as it requires evidence on the part of the party to prove the facts pleaded. Any fact not proved or supported by evidence is deemed to have been abandoned.
It is also the law that where the Defendant as in this case did not give evidence in support of his averments, he is deemed to have accepted the facts adduced by the Claimants notwithstanding the general traverse in the statement of defence.
Where evidence was never challenged, the standard of proof required in establishing the fact that the Defendant fraudulently and without the knowledge of the Claimants obtained Letters of Administration by purporting to be the only son of the deceased, is unchallenged, the burden assumed by the Claimants is discharged by minimum proof.
I am therefore satisfied that the Claimants have discharged the burden placed on them to prove their case more especially in a situation as in this case where the Defendant was given ample opportunity to cross-examine C.W.1, C.W.2 and C.W.3 and also for him to provide a witnesses to prove his case or averment but he failed to do so.
The evidence of the Claimants that he has been collecting rents from father’s properties without giving account of the money collected; also remain unchallenged by the Defendant.
I believe the evidence of the C.W.1, C.W.2 and C.W.3 which like I earlier said is in line with the pleaded facts.
I am afraid that our civil jurisprudence does not permit an indolent or unwilling party to frustrate or depress a party who has genuine complaint. The Defendant has clearly shown and exhibited indifference despite the service of all processed (sic) on him and evidence of a fresh hearing notice, consequently the positive evidence given by the Claimants in support of their claim was not challenged or contradicted by the Defendant. The position of the law is that evidence that is not successfully challenged is entitled to be relied on.
It is a coordinal (sic) principle of our adversary system that a person who avers to a fact must prove the fact by evidence. See Section 138 of the Evidence Act Cap. 112 Laws of the Federation. This like I earlier said, the Claimants have competently done.
I reiterate that the Defendant who was duly served but refused to take part in the proceedings cannot be heard to complain of denial of his constitutional right to fair hearing as he was given the opportunity to appear and defend this Suit against him but he failed to avail himself of that opportunity afforded him by this Court.
Lack of fair hearing is not just whether or not a party has been denied fair hearing. It is judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties equal opportunities to put their case to the Court before the Court gives its Judgment.
Given the totality of the proceedings in this Suit, the Defendant was granted equal opportunity for a fair hearing but he failed or refused to make use of same. Legally he cannot therefore complain of lack of fair hearing.
I am afraid that the Defendant cannot hold this Court at ransom by deliberately staying away from the Court.
It will suffice to say that from the unchallenged and uncontroverted evidence adduced by the Claimants, I am satisfied that the Claimants have proved their claim beyond a preponderance of evidence.
The Claimants are therefore entitled to Judgment and I therefore enter Judgment for them in the following terms: –
(A) It is hereby DECLARED that the Claimants are the children and beneficiaries of the Estate of Chief Elder Agu Okorie who died intestate on 31/5/1986.
(B) The Defendant is hereby ORDERED to deliver up to this Court for cancellation Letters of Administration of the Estate of late Chief Elder Agu Okorie fraudulently obtained by the Defendant from Abia State High Court Probate Division.
(C) It is also DECLARED that the Will dated 22/3/1986 purportedly executed by Chief Elder Agu Okorie is null and void.
(D) The Defendant is hereby ORDERED to render full and complete account of all monies he has been collecting as rent, etc; from the Estate of late Chief Elder Agu Okorie since his demise on 31/5/1986.
(E) The Defendant is also hereby ORDERED to produce and surrender to the Court title documents of the properties of late Chief Elder Agu Okorie which he removed at his death and has refused to surrender to the Claimants despite repeated demands.
(F) The Defendant is PERPETUALLY RESTRAINED by himself, his servants, privies, assignees, successors-in-title, administrators from collecting rent and interfering in whatsoever manner with the Estate of late Chief Elder Agu Okorie.
(G) The Claimants are also entitled to the cost of this Suit.
Mr. Adeniyi Jones – I ask for N50,000.00.
ORDER AS TO COSTS:
The Defendant is to pay the cost of this Suit assessed at N10,000.00.
ORDER AS TO EXHIBITS:
Exhibits ‘B’, ‘C’ and ‘D’ are to be returned to the Claimants 90 days from today if there is not (sic) Appeal.
Being aggrieved by the decision of the lower Court, the Appellant initiated the instant appeal by lodging at the registry of the lower Court on 26/6/2013 a notice of appeal bearing the same date. The process contained the omnibus ground of appeal only. An amended notice of appeal against the whole decision of the lower Court including the award of costs, was subsequently filed in the appeal on 10/4/2015. The process dated 26/3/2015 and filed on 10/4/2015 was deemed as having been properly filed on 15/2/2016. The process contains 7 grounds of appeal. The grounds of appeal with their respective particulars read thus: –
GROUNDS OF APPEAL
GROUND ONE: ERROR IN LAW
The learned trial Judge erred in law by ignoring a pending Suit No. A/139/2013 Between UDENSI AGU OKORIE V. HON JUSTICE S.O.E. NWANOSIKE & HON. JUSTICE T.U. UZOKWE seeking to transfer the suit No. A/167/2011 Between MR. ONUOHA AGU OKORIE & 2 others V. UDENSI AGU OKORIE out of High Court 2 Aba to another Court, an order for stay of proceedings, and an injunction restraining the trial Court (Hon. Justice T.U. Uzokwe) from hearing the matter on the grounds inter-alia of likelihood of bias pending its determination and duly served on him from exercising jurisdiction over this suit till the determination of the said suit.
PARTICULARS OF ERROR
(a) The Appellant on the 23/5/2013 filed suit No. A/139/2013 BETWEEN UDENSI AGU OKORIE V. HON JUSTICE S.O.E. NWANOSIKE & HON JUSTICE T.U. UZOKWE for mandamus to issue, causing the Acting Chief Judge of Abia State to transfer this suit out of Hon. Justice T.U. Uzokwe’s Court and an injunction restraining the learned trial Judge from hearing of the suit and stay of proceedings pending the determination of the summons.
(b) The Trial Judge was duly served with the suit on 30/5/2013.
(c) The trial Judge ignored the originating summons of mandamus, heard the matter and went on to deliver judgment despite being served of (sic) the processes and being aware of the said processes.
(d) In January 2013 the trial Court was intimated formally of (sic)application for transfer of the suit out of the Court through a letter dated 8/1/2013 addressed to the Acting Chief Judge which was also copied to the claimants (sic) counsel and despite this fact, he still went ahead to determine the suit.
GROUND TWO: ERROR IN LAW
There was a likelihood of bias against the Appellant and his solicitor a staunch member of the Nigeria Bar Association (NBA) Aba Branch for boycotting the trial Court.
PARTICULARS OF BIAS
(a) The trial Judge made a report of professional misconduct against a member of the Nigerian Bar Association (NBA) Aba Branch over a case in his Court and submitted the record of proceedings to Nigerian Bar Association Aba Branch for necessary action.
(b) The lawyer under investigation equally submitted his own certified true copy (CTC) of the record of proceedings obtained from the same trial Judge Court over the same case/matter.
(c) The Nigerian Bar Association (NBA) Aba Branch discovered a lot of discrepancies in the trial judge’s record over the said allegation and found that the trial judge indulged in falsification of her records and tell lies.
(d) A record of inter-alia forgery/falsification of Court record, false return of Court’s record was made to the Acting Chief Judge of Abia State and Chief Justice of Nigeria.
(e) The Nigerian Bar Association (NBA) Aba Branch passed resolutions to boycott the said High Court 2 Aba and for members to apply for transfer of their cases out of the said Court.
(f) The Chief Justice of Nigeria queried the trial Judge and investigations are ongoing by the National Judicial Commission based on the petition.
(g) The Appellant applied for the transfer of the case to the Acting Chief Judge of Abia State at the behest of the defendant’s solicitor on 8/1/2013.
(h) The Appellant consequently filed suit No. A/139/2013 Between UDENSI AGU OKORIE V. HON. JUSTICE S.O.E. NWANOSIKE & HON. JUSTICE T.U. UZOKWE for mandamus, a motion for stay of proceedings and injunction against the trial Judge from proceeding with the matter pending the trial of the aforementioned suit.
(i) In spite of the (mandamus) suit duly filed and served on the Acting Chief Judge of Abia State and Honourable Justice T.U. UZOKWE (the trial Judge, Court below), he still went on with the trial and delivered judgment against the Appellant.
(j) The Appellant solicitor Igwe Ogwo Esq. of Hagler S.O. & Co. is a staunch member of Nigerian Bar Association Aba Branch.
(k) The Nigerian Bar Association (NBA) Aba Branch in condemning and protesting against the unacceptable conduct of the High Court 2 Aba presided over by Hon. Justice T.U. Uzokwe staged a peaceful demonstration.
(I) The Appellant solicitor took active part in the said peaceful demonstration organized by the Nigerian Bar Association Aba Branch which the Judge captured with his camera.
(m) The Defendant/Appellants (sic) one of the vital witnesses, Barrister E.E. Ukaegbu also a staunch member of the Nigeria Bar Association Aba Branch, declines to appear before the said High Court 2 Aba to give evidence in the matter.
GROUND THREE: ERROR IN LAW
The learned trial Judge erred in law when he gave judgment in a vague prayer that demanded the Defendant to produce title documents of the late Elder Agu Okorie’s properties.
PARTICULARS OF ERROR
(a) The claimants alleged that the Defendant/Appellant removed their late father’s title documents upon his demise.
(b) The Claimants/Respondents failed to specify the particular title documents they alleged the Defendant/Appellant removed from their late father’s house.
(c) There was no evidence as to the particulars of the title document alleged to have been removed by the Defendant/Appellant yet the trial Court gave judgment on the said vague prayer.
GROUND FOUR: ERROR IN LAW
The learned trial Judge erred in law when he ordered the Defendant/Appellant to deliver to Court for cancellation an alleged existing letter of administration of the estate of late Chief Elder Agu Okorie purportedly obtained by the Defendant/Appellant illegally, criminally and fraudulent (sic) without signing the purported document.
PARTICULARS OF ERROR
(a) There is no evidence to show that the alleged letters of Administrations were in existence.
(b) The Claimants/Respondents failed to produce in Court either primary or secondary (evidence) document of the alleged letters of Administration purports (sic) to be in existence.
(c) C.W.2 (Mrs. Uzoma Agu Okorie) in her evidence alleged that the Defendant/Appellant fraudulently apply (sic) for letters of Administration of their late fathers (sic) estates.
(d) The C.W.1 and C.W.3 alleged that the Defendant/Appellant fraudulently applied and got the letters of administration which he used to administer their late father’s estate.
(e) The Claimants/Respondents did not plead the particulars of fraud they alleged in their (statement of claim) pleadings.
GROUND FIVE: ERROR IN LAW
The learned trial Judge erred in law when he place (sic) and attach (sic) probative value to the claimants (sic) Exhibits A, C, D, E and F which were at variances with the statement of claim in declaring the alleged will null and void.
PARTICULARS OF ERROR
(a) The Claimant (sic) in their pleadings did not state/say that Barr. E.E Ukaegbu refused to response to a letter written to him as they alleged in their written deposition (evidence).
(b) The Claimants did not call the people that witness (sic) the purported will whom they alleged refuted signing the will or no (sic) nothing about the will to give evidence in Court.
(c) The admission of the evidence of the alleged witnesses of (sic) the will who were not call (sic) to give evidence in Court is an admission of hearsay evidence.
(d) The claimants did not provide the particulars of alleged tenants that gave them the (sic) Exhibits C and D.
(e) The claimants did not call the alleged tenants that provide (sic) the Exhibits C and D to tender it in Court and no reason was given for not producing them in Court.
(f) The letter allegedly written to Barr E.E. Ukaegbu to confirm the existence or otherwise of the will was not pleaded and tender (sic) in evidence.
GROUND SIX: ERROR IN LAW
The learned trial Judge erred in law when he gave judgment in an incompetent summon.
PARTICULARS OF ERROR
(a) There is no an accompany (sic) written depositions on Oath of the Claimants/Respondents summons on his originating summons filed on 8/8/2011.
(b) The supposed written depositions were not sworn before the commissioned (sic) of Oath.
GROUND 7: MISDIRECTION OF FACTS
The learned trial Judge misdirected himself when he made an order that is perversed (sic), vague and at variance with the claimants (sic) evidence by declaring that the claimants are children and beneficiaries of the estate of late Elder Agu Okorie.
PARTICULARS OF ERROR
(a) The claimants did not file the suit in representative capacity for themselves and on behalf of the entire family of Late Chief Agu Okorie.
(b) The C.W.2 Madam Uzoma Agu Okorie in her evidence in chief averred that there (sic) late father (late Chief Agu Okorie) was a polygamous man with 15 (fifteen) children.
(c) There was no evidence led by the claimants to show that all the 15 (fifteen) children of late Chief Agu Okorie have all died except the claimants in the suit.
(d) The claimants in their evidence acknowledge that the defendant is one of the children of late Chief Agu Okorie.
(e) The tone of the order of the Court denies the right and the privilege of the defendant in the estate of late Chief Agu Okorie their late father.
The relief which the Appellant seeks from this Court as contained in the amended notice of appeal is that the entire judgment of the High Court of Abia State, Aba Judicial Division of 5/6/2013 delivered by Hon. Justice T.U. Uzokwe be set aside including the award of cost.
The appeal was entertained on 5/11/2018 with learned counsel, Igwe Ogwo in urging the Court to allow the same, adopting and relying on Appellants’ amended brief of argument dated 3/3/2016 and filed on 4/5/2016 but deemed as properly filed on 18/10/2016 as well as Appellants’ reply brief of argument dated 15/6/2017 and filed 7/7/2017 but deemed as properly filed on 5/12/2017.
In the same vein, learned counsel, Chinedu Orji in urging the Court to dismiss the appeal adopted and relied on Respondents’ brief of argument dated 15/6/2017 and filed on 7/7/2017 but deemed as properly filed on 10/3/2017.
The Appellants formulated 7 issues for the determination of the appeal in their amended brief of argument. They read thus: –
1. Whether the learned trial Judge was right and acted in good faith in hearing and delivered (sic) judgment in suit No. A/167/2011 BETWEEN ONUOHA AGU OKORIE & 2 OTHERS V. UDENSI AGU OKORIE having been served with a writ of mandamus duly filed in suit No. A/139/2013 BETWEEN UDENSI AGU OKORIE V. HON. JUSTICE S.O.E. NWANOSIKE & HON. JUSTICE T.U. UZOKWE before a Court of competent jurisdiction that is still pending, motion for stay of proceedings and injunction.
2. Whether there would have been a likelihood of bias on the part of the learned trial Judge against the Defendant/Appellant considering the active role played by his solicitor which was captured by the trial judge with his camera.
3. Whether the learned trial Judge was right when he gave judgment in a vague prayer made by the claimants demanding the Defendant to produce title documents of the late Elder Agu Okorie’s properties.
4. Whether the learned trial Judge was right when he ordered the Defendant to deliver to Court for cancellation an alleged letter of administration of the estate of late Chief Elder Agu Okorie purported to have been fraudulently obtained which was not in any way proved to be in existence.
5. Whether the learned trial Judge was right when he attached and placed probative value to the claimants written depositions on Oath which were at variance with their pleadings (statement of claim) and Exhibits C and D to nullify the Will allegedly made by their late father Elder Agu Okorie?
6. Whether the learned trial Judge was right to have delivered judgment based on an incompetent statement of claim?
7. Whether the learned trial Judge was right when he made a vague order that were (sic) in variance and inconsistence (sic) with the claimants’ evidence in Court
The Respondents formulated a lone issue for the determination of the appeal in their brief of argument. It reads thus: –
‘Whether from the totality of evidence adduced at the trial Court, the Respondents were entitled to the judgment entered in their favour.’
The appeal in my considered view, is better resolved on the issue formulated for its determination by the Respondents as the Respondents by formulating the said lone issue, in my considered view, impliedly are taken as having distilled the same from all the grounds of appeal; while the Appellant by failing to tie his issues to the grounds of appeal would appear to have left this for the Court to do. This is an imposition which the Court finds distasteful and deprecates in strong terms. It would appear that some learned counsel in preparing briefs of argument for their clients see no reason to comply with the standard stipulated for brief writing in myriad of decisions of the appellate Court. This perhaps, is because no strict sanction is usually imposed on defaulting counsel.
Perhaps, the time has come for stiffer measures to be imposed on parties whose counsel relying on the usual principle that non-compliance with rules of Court in many regards should always be waived have literally thrown away the rules of Court as it were. This will surely enhance standard.
In any case, it is clear from the manner in which the Respondents have argued their lone issue that they averted their minds to the issues formulated by the Appellant to the extent that they have urged the Court that grounds 1, 2 and 6 of the grounds of appeal, should be struck out for incompetence as they do not arise or flow from the judgment of the lower Court appealed against, and a fortiori issues 1, 2 and 6 formulated by the Appellant from the said incompetent grounds of appeal. Likewise, the Respondents urged the Court to expunge pages 70 to 105, and 157 to 167, respectively of the records. This is because they are extraneous materials to the proceedings in the lower Court and documents tendered at trial.
The Respondents called on this Court to denounce the practice whereby extraneous materials (such as documents not set out in the list of documents that the Appellant intended to tender at trial or admitted as exhibits),are purposely inserted in the records in order to rubbish a respected Judge of a High Court, and to get ?justice? (victory is a better word in my considered view) at all cost. It is also the position of the Respondents that the Appellant who smuggled the pages of the record in question therein, has failed to inform the Court that the allegations in some of the documents smuggled into the record, in order to bias the mind of this Court, have been determined by the National Judicial Commission (sic). That the National Judicial Council not only found the allegations against the learned trial Judge to be lacking in merit and struck out the petition against him, but also gave a stern warning to Nigerian Bar Association against ever cooking up false allegations against any Judge.
The Appellant responded at length to the complaints of the Respondents as highlighted hereinbefore, at paragraphs 2.0 – 3.9 in his reply brief. In the main, he maintained that the grounds of appeal and issues that the Respondents attacked are in order and that the lower Court ought to have hands-off the instant case given the allegation of bias raised against the learned trial Judge or stayed proceedings in the instant case pending the determination of the action he (Appellant) brought against the said learned trial Judge and which the materials that the Respondents want this Court to expunge go to establish.
It would appear that the position of the law regarding a ground of appeal has been expanded much more than the Respondents conceive given one of the pronouncements of the Supreme Court per Ibrahim Tanko Muhammad, JSC; (as he then was) in the case of AKPAN V. BOB (2010) LPELR 376 (SC). His lordship said thus: –
‘Authorities are agreed on the legal definition of a ground of appeal. It is said to be the error of law or facts alleged by an appellant as the defect in the judgment appealed against upon which reliance has been placed to set it aside. In other words, it is the reason(s) why the decision is considered wrong by the aggrieved party.
Although many authorities lay emphasis that a ground of appeal must stem from the of the judgment (ipsissima verba), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
a) from the of the decision appealed against (ipsissima verba)
b) from the procedure under which the claim was initiated
c) from the procedure under which the decision was rendered or
d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.
The ideal thing is to have a pronouncement from the Court from which the appeal emanates. But, where that Court fails to make a pronouncement such as where motions or objections filed before it are still pending, where it ought to have made one, that will give rise to a ground of appeal. In other situations, the Court from which the appeal emanates may not have to make a pronouncement as it may not have had the opportunity to do so for instance where a judgment was delivered outside the 90 days period in contravention of Section 258(1) of the 1979 Constitution, but now Section 294 of the 1999 Constitution, if non-delivery within the time limit can cause a miscarriage of justice.
Equally, in a case where a judge delivers his judgment after having fully known that he has ceased to be a judicial officer or that he has been elevated to a higher Court. This may furnish a ground of appeal. Or still, where without genuine cause, proceedings or judgment were conducted or delivered in chambers.
In any of the above situations, a ground of appeal may be validly filed as of right or by leave of the Court, as the case may demand.
I am of the considered view that it would be obvious to the blind of average intellect and who is not also deaf and dumb upon the processes filed in the instant case and judgment therein, being read to him/her that grounds 1 and 2 of the grounds of appeal clearly do not arise from the issues joined in the case and upon which the lower Court apparently based its judgment.
However, as it is clear from the BOB case (supra) cited above, that facts intrinsic and/or extrinsic to a given case when sufficiently related to the proceedings therein, can properly be a ground of appeal, it becomes obvious that grounds 1 and 2 in the amended notice of appeal inasmuch as they raise the issue of likelihood of bias on the part of the lower Court, qualify as valid grounds of appeal. I have deliberately restricted myself to grounds 1 and 2 in the amended notice of appeal as I simply do not appreciate how ground 6 in the said notice which has been re-produced hereinbefore and which questions the competence of the suit in which the lower Court delivered its judgment, can be said to be invalid on any basis.
Having held that grounds 1 and 2 amended in the notice of appeal are valid grounds, I now have to resolve Appellant’s issues 1 and 2 which the Respondents have graciously identified as flowing from the said grounds. The two issues as said hereinbefore raise the question of likelihood of bias on the part of the lower Court in the instant case. I intend to resolve the issue, through the cases or by taking a glean into some cases.
This is because it is settled law that likelihood of bias, is invariably inferred from the facts of a given case or the circumstances surrounding the case in question. The first of the cases I will like to cite and re-produce from on the issue, is that of OTUBANJO V. KUJORE (1974) LPELR 2829 (SC) wherein Atanda Fatayi-Williams, JSC; (as he then was) said thus: –
The correct state of the law as to what constitutes a real likelihood of bias(sic) stated in Halsbury’s Laws of England 3rd Edition Volume II at p. 67. It is this:
“Where the interest of the person adjudicating is not pecuniary, the Order (i.e. certiorari) will not be granted unless it is shown that his interest is substantial and of such character that it will give rise to a real likelihood of bias.”
In Regina v. Camborne Justice (1955) 1 Q.B. 41, at p. 51, Slad (sic) J. observed that “This Court is further of opinion that a real likelihood of bias must be made to appear not only from the material in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his enquiries.”
Thus, in R. v. Essex Justices, Ex parte Perkins (1927) All E.R. 393, the complaint was that the justice?s clerk, having acted as solicitor for one of the parties until immediately before the hearing, took part in the hearing. The Court accepted the statement made by the justice’s clerk that he was not in fact aware that his firm had been acting as solicitors for one of the parties, the fact being that the business of his office was conducted entirely by a managing clerk who reported weekly. In quashing the order made by the justices at the hearing, Avory J. observed as follows:
?The only difficulty which arises in this case arises from the fact that the clerk has stated on affidavit and I accept it that he did not in fact know that his firm had acted; and if we had to decide whether there was in fact bias, that would be most material, but what we have to determine is whether it would appear to one of the parties that justice was not being done. In my view, although the clerk did not know that his firm had acted, I think the necessary or at least the reasonable view would be that justice was not being done, in as much as the clerk was a member of the firm which had acted for the applicant’s wife.”
After all, as the Western State Court of Appeal itself has rightly pointed out in the course of its judgment in this case, a real likelihood of bias can only be inferred from the circumstances of the particular case. It is our view, depending of course on particular circumstances, that it is sufficient if materials are supplied which, in the opinion of an independent person, could be considered as suggesting a real likelihood of bias. Adverting once again to the present case, there is no doubt in our mind that, in the absence of an immediate retort from the learned President at the time of the allegation, which he must have known to be true, was made, any reasonable person making such a factual complaint would conclude that the learned President, for some inexplicable reason, was bent on hearing the case in spite of the allegation. Such a person would undoubtedly also conclude that the President would not be impartial and would be likely to be biased against him. We do not think that any further proof of likelihood of bias is necessary.
The second of the cases is that of BAKARE V. APENA (1986) LPELR ? 709 (SC) wherein Nnamani, JSC; stated thus: –
“The question of bias and likelihood of bias in adjudicators has recently been dealt with by this Court in Donald Ikomi and 2 Ors. v. The State (1986) 3 N.W.L.R. (Pt. 28) 340. In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1969) 1 Q.B.D. 577, 599 Lord Denning M.R. said of the bias which would vitiate proceedings:
“In considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was real likelihood that he would or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand”.
On the face of it, it would appear that there was a likelihood of bias in this case. I am of the view, however, that if one looked closely at the records of proceedings, and the circumstances what one finds is really not bias or likelihood of it, but rather some slight erosion of confidence in the judicial process. There is nothing on record indicating that the learned trial Judge was minded to favour one side or the other.
It is perhaps understandable that it is the respondents who, in the circumstances of this case, would suspect bias but it has to be remembered that as was decided in the Whitford case (supra):
“The test of bias, …whether there is a reasonable suspicion of bias looked at from the objective standpoint of a reasonable person and not from the subjective stand point of an aggrieved party”
In the learned Judge’s favour, it was conceded on all sides both in the Court of Appeal and this Court, that there was no question about his integrity. It seems to me that the learned trial Judge was motivated by nothing more than what Nnaemeka-Agu, J.C.A aptly described as “his characteristic enthusiasm for the job?. It was an enthusiasm which clearly and unfortunately robbed him of his better judgment in this matter.
Strange as the conduct of the learned trial Judge has been, the passages show a mind anxious and determined to make corrections which he thought he had power, and above all the duty, to make. The passages do not show bias or likelihood of bias. They rather show a misconception, in all good faith, of what ought to be done in the circumstances. It certainly would have been safer to leave the matter to the Court of Appeal.
The question which arises then is this. If there is no question of bias or likelihood of bias ought Chief Sowemimo’s contention that the judgment of 9th March, 1979 should stand not be accepted. I would answer that it ought not and I still do not accept it.
I think I can best state my reason for agreeing that judgment too cannot stand, as due to the erosion of confidence in the adjudicative process brought about by the conduct of the learned trial Judge. Lord Hewart C.J. in R. v. Sussex Justices Exparte Macarthy (1924) 1K.B. 256, 259 stated these words which have come down the ages.
“It is said, and no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while this is so, a long line of cases show that it is not merely of some importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
I cannot do better than set down the views of the learned Justices of the Court of Appeal which in my view gave sufficient reasons for holding the judgment of 9th March, 1979 also vitiated. Said Uthman Mohammed:
“It is my strong view that whatever decision the learned trial Judge had passed down in the second judgment, after his visit to the chambers of Chief Olunwa, the generality of the members of the public are bound to call for question on the impartiality of the learned trial Judge, and in the end even the first judgment would not escape the public screening”
In the view of Ademola, J.C.A.
“What happened on the 10th March by the visit to the counsel’s chambers and the attitude of their counsel to the request made by the Judge had their worst fears confirmed by what the Judge did on the 12th March. The issue here is that of confidence in the Judge who writes a judgment and not the soundness of his judgment. A Court of Appeal cannot be indifferent to the mood of the parties in the situation present here”
In his own judgment Nnaemeka-Agu, J.C.A. said ?”The question is whether, the appearance in counsel’s chambers and his running around to play the role of Court bailiff giving notice of rehearing and engaging in an argument with the appellant’s counsel all in the full view of the appellants would inspire confidence in the appellants that their case had been decided on its merits. In my view the circumstances of the second judgment go far beyond the question of his being functus officio: One is inclined to agree with Mr. Olunwa that it casts some doubts on the merit of the first”
The third of the cases is the case of STATE CIVIL SERVICE COMMISSION V. BUZUGBE (1984) LPELR ? 3115 (SC) wherein Aniagolu, JSC; said thus: –
In Obadara and Others v. President of Ibadan West District, Grade B Customary Court (1965) N.M.L.R. 39 at 44 Brett, Ag. C.J.N., delivering the judgment of the Supreme Court, stated that: “The principle that a judge must be impartial is accepted in the jurisprudence of any civilised country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow English decisions.”
In determining the likelihood of bias the Court looks at the impression which would be given to other people. The decisions of Lord Denning in Metropolitan Properties v. Lannon (1969) 1 Q.B.D. 577 at 599 and, earlier in 1962, in Kanda v. Government of Malaya (1962) A.C. 322 at page 337 make this clear. The principle has been accepted by this Court in Deduwa and Others v. Okorodudu and Others (1976) 9 and 10 S.C. 329 at 346 to 349, a case in which Metropolitan Properties v. Lannon (supra) was cited with approval. Said Lord Denning in Metropolitan Properties v. Lannon at 599.
In the earlier Kanda case, at p.337 Lord Denning had this to say: ”The Court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. This Court will not go into the likelihood of prejudice. The risk of it is enough.”
The fourth and last of the cases, is that of WOMILOJU V. OGISANYIN-ANIBIRE (2010) LPELR ? 3503 (SC) wherein Ibrahim Tanko Muhammad, JSC; (as he then was) said thus:-
Bias, generally, is that instinct which causes the mind to incline toward a particular object or course. When a judge appears to give more favour on consideration to one of the parties before him, either in his utterances, attention or actions, which is capable of perverting the cause of justice, or where fair hearing cannot be said to take place, all in favour of the party he supports covertly or overtly, then an allegation of bias against him can be grounded. That of course is a Judicial bias. But where a trial has been conducted in which the authority of the Court has 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. The allegation cannot be founded, on mere conjecture or hearsay.
I think I need to draw attention of litigants generally and legal practitioners in particular that the allegation of bias is a very serious attack on the person and integrity of a judge. A counsel who decides to launch such attack on a judge must be prepared to show by concrete evidence in support of his allegation. If it can be reasonably inferred by a reasonable person sitting in Court, from the circumstances that there is a real likelihood of bias against one of the parties on the part of the Court, it must follow irresistibly that party’s right to a fair hearing had been contravened and the decision on the issue between the parties by the Court in such circumstances should not be allowed to stand. The test of determining a real likelihood of bias is that the Court does not look at the mind of whoever sits in judicial capacity. It does not look to see if there was real likelihood that the judge would, or did, infact, favour one side at the expense of the other. It rather, looks at the impression which would be given to the other people. The likelihood of bias, nevertheless, must be real, not a surprise, caricature or a game of chance. Where the conduct of a judge or tribunal is impugned, the Court or tribunal is not concerned with whether the judge/adjudicator was infact biased. Where even the evidence adduced has pointed strongly to the inference that a judge or adjudicator was infact biased, the Court confines itself to the determination of whether a likelihood of bias has been established. The question is always answered by inference drawn from the circumstances of the case.
The reason for this attitude of the Court is that it would be unseemly for the Court to purport to pry into the state of mind of any judicial officer.
Adekeye, JSC; in his contributory judgment equally said thus: –
“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. 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.
The processes on pages 70-158; 159-160; 161-166; and 167; respectively, of the record (which are the materials on which the Appellant has predicated his allegation of bias or likelihood of bias against the lower Court, and which I don’t think I can properly expunge or discountenance having regard to their relevance to the said issue of likelihood of bias alleged against the said Court), undoubtedly show that the relationship between learned counsel for the Appellant (who was one of the staunch supporters of the boycott order the NBA, Abia State Chapter, issued against the lower Court as presided over by the learned trial Judge), was one that had degenerated to the point that the said Appellant had to take out a writ of summons against the then Acting Chief Judge of Abia State and the learned trial Judge herein, consequent to the non-transfer of the instant case as prayed for in a petition addressed to the said Acting Chief Judge.
The application for the transfer of the instant case which was clearly made to the Ag. Chief Judge of Abia State before hearing commenced in the instant case was copied to the Respondents’ counsel. Though the Respondents herein were not parties on record in the case filed against the learned trial Judge and the Ag. Chief Judge, it is not in doubt that the learned trial Judge having been served with the writ of summons on 30/5/2013, had actual notice of the suit filed by the Appellant for the purpose of having the instant case transferred from the lower Court even as the said case came up on 3/6/2013 ?for the defence to open its case or for adoption of written address and then to 5/6/2013 for judgment?. While it is not for this Court in this appeal to attempt to determine the merit of the case filed by the Appellant to have the instant case transferred from the lower Court, the question that agitates my mind is why the lower Court did not simply hands-off the case when it came up on 3/6/2013 but recorded in its judgment thus:
‘The Court did emphasize that a longer date would be given for the defence if need be if the Defendant then decide to defend this Suit’.
I find it absolutely absurd that the learned trial Judge in the knowledge of the case filed against him, could reasonably expect the Appellant herein, to appear before it for the purpose of defending the action talk less of seeking for more time to defend the said case. The lower Court glaringly had it at the back of its mind (and this in my considered view is against the backdrop of the unwholesome or unpleasant attitude of the Appellant’s counsel to it), that the Appellant might resort to the allegation of the breach of his fundamental right to fair hearing in an attempt to void all that took place in the case; hence the said Court gave details of the service of hearing notices that were issued and served on the Appellant. It would however appear that the lower Court apparently, forgetful of the fact that the provisions of the 1999 Constitution in relation to fair hearing have consistently been held by the Courts to be only a re-enactment of the twin pillars of the principle of natural justice into our Constitution; suppressed as it were, the fact of the institution of an action by the Appellant against the learned trial Judge and the Ag. Chief Judge in respect of the case in which it delivered judgment.
The question then is, what would be the reaction of a reasonable person in the knowledge that the learned trial Judge seised of the case, prior to the delivery of the judgment he delivered, had been served with Court processes seeking for the transfer of the case? I am of the considered view having regard to the cases I have cited hereinbefore and the portions re-produced therefrom, that a reasonable man would without hesitation conclude at the least that there has been an erosion of confidence in the adjudicative process brought about by the conduct of the learned trial Judge or at the worst that there was likelihood of bias on the part of the learned trial Judge who having been served with a Court action, in which the transfer of the case before him was being sought, still proceeded to entertain it to completion. Either way therefore, the decision or judgment of the lower Court in law, cannot be allowed to stand.
Flowing from all that has been said is that Appellant?s issues 1 and 2 must be and are hereby resolved in his favour.
In the final analysis, the appeal is meritorious inasmuch as Appellant?s issues 1 and 2, have been resolved in his favour. Suffice it to say that given the issues that have warranted the success of the appeal, this Court has no option than to set aside the proceedings and judgment delivered in the instant case by the lower Court on 5/6/2013. The Court also see no basis, to consider any other issue(s) in the appeal as it is simply not wise to have this Court make findings in an appeal in respect of a case that is being sent back for re-hearing by the lower Court. Doing this, might amount to this Court foisting its view in respect of matters that might be in contest between the parties, on the lower Court. Issue 6 raised by the Appellant is one of such issues. In conclusion, it is hereby ordered that the case file in respect of this case be remitted to the Chief Judge of Abia State for the case to be heard de novo by another Judge of the High Court of the State.
I make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading before now, the lead judgment just delivered by my Brother AYOBODE OLUJIMI LOKULO-SODIPE J.C.A. I agree with his reasoning and conclusion. I allow the appeal.
I also order that the matter be remitted to the Chief Judge of Abia State, to be heard by another Judge.
I abide by the consequential order made as to costs. that there shall be no order as to costs.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother Hon. Justice Ayobode Olujimi Lokulo-Sodipe, J.C.A. I completely agree with his reasoning and conclusions. I have nothing more to add. I adopt his orders as mine.
Appearances:
IGWE OGWOFor Appellant(s)
CHINEDU ORJIFor Respondent(s)
