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YANAWO v. STATE (2021)

YANAWO v. STATE

(2021)LCN/15902(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, December 10, 2021

CA/ABJ/CR/467/2020

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal                       

Stephen Jonah Adah Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

DANJUMA USMAN YANAWO APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO:

THE DETERMINATION OF THE LIKELIHOOD OF BIAS OF THE LEARNED TRIAL JUDGE

It is well settled law that in considering whether or not there was a real likelihood of bias, the Court does not look at the mind of the learned trial Judge to see if there was a real likelihood that he would or did in fact favour one side at the expense of the other. The Court rather looks at the impression created in the minds of “reasonable people” who were sitting in Court to observe the proceedings. If right thinking people sitting in Court would think that in all the circumstances, there was a real likelihood of bias on his part then his decision cannot be allowed to stand. But mere surmise or conjecture is clearly insufficient to establish real likelihood of bias. See: THE SECRETARY OF IWO CENTRAL LOCAL GOVERNMENT & ORS V. TALIA TU ADIO (2000) LPELR-3201(SC). UCHECHUKWU ONYEMENAM, J.C.A.

THE SETTLED LAW ON THE PRINCIPLE OF FAIR HEARING.

It was held in Abubakar Audu V. FRN (2013) 53 NSCOR 456 @ 4691 that:
“The law is indeed well settled that fair hearing within the meaning of Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground.”
See also: Nwokoro V. Onuma (1990) 3 NWLR (Pt.136) 22. UCHECHUKWU ONYEMENAM, J.C.A.

A BREACH OF FAIR HEARING IN A PROCEEDING WILL BECOME A NULLITY

It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. See: Tsokwa Motors (Nig) Ltd V. U.B.A Plc (2008) ALL FWLR (pt. 403) 1240 @1255 A- B; Adigun V. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 674; Okafor V. A.G. Anambra State (1991) 3 NWLR (pt. 200) 59; Leaders & Co. Ltd. V. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. AG, Rivers State V. Ude & Ors (2006) 17 NWLR (Pt 1008) 436; Nicholas Chukwujekwu Ukachukwu V. People’s Democratic Party & Ors (2014) LPELR-22115 (SC); PEOPLES DEMOCRATIC PARTY & ORS V. BARR. SOPULUCHUKWU E. EZEONWUKA & ANOR (2017) LPELR-42563(SC).
​This simply means that once there is a breach of the right to fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court become a nullity. See: Audu V. FRN (2013) LPELR-19897 (SC) 13; D-F; Akinfe V. The State (1988) 3 NWLR (pt. 85) 729, 753; Bamgboye V. University of Ilorin [1999] 10 NWLR (Pt. 622) 290, 333; ONUWA KALU V. THE STATE (2017) LPELR-42101(SC); OGED OVUNWO & ANOR V. IHEANYICHUKWU WOKO & ORS(2011) LPELR-2841(SC). UCHECHUKWU ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Niger State, Sitting in Bida; delivered on 30th January, 2017 in CHARGE NO: NSHC/NB/2C/2010 by Musa B. Abdul J.

The brief fact of the case as presented by the Appellant is that sometime in 2010 there was communal crisis in Mokwa Local Government Area of Niger State involving the Appellant’s community and its neighboring community; as a result of which five persons were said to have died and properties destroyed. That about two hundred persons were said to have participated in the war, but the Police arrested only a handful of persons including the Appellant. The Police eventually referred the case to the Director of Public Prosecution, Niger State (DPP) for further action.

​It was alleged that Alh. Musa Abdul, the then DPP, Niger State, initiated this case against the Appellant and others by filing an application for leave to prefer a charge against them on 11th August, 2010. By the Application, the accused persons were to be charged for alleged offences of conspiracy and culpable homicide punishable under Sections 97 and 22(a) of the Penal Code. The Appellant also alleged that the case was initially assigned to Justice Amina Wambai of the High Court of Niger State, but not long afterwards Alh. Musa Abdul got appointed as a Judge of the High Court of Niger State, and the matter was reassigned to him; notwithstanding his prior involvement in the matter

The learned trial Judge Musa Abdul J in his judgment held as follows:
“In view of my findings above, I find the accused persons namely:
1. TsowaNagodo
2. Babayanlsah
3. DanjumaUsmanYannawo
4. Usman Chita
5. LismanJibrin
6. Hussaini Musa and
7. ZhitsuNma guilty of the offence of culpable homicide not punishable with death contrary to Section 224 of the Penal Code for causing the death of (1) Muhammed Idris Gbogifu (2) Suleiman Abubakar (3) Fatima Abubakar (4) Mallam Ndagana and Mohammed Kolo and they are hereby convicted as charged under Section 224 of the Penal Code”.

​The Appellant dissatisfied with the judgment of the trial Court approached this Court via a Notice of   Appeal filed on 14th February, 2017. Counsel on both sides filed their relevant processes as required by the rules of the Court and the appeal was heard on 30th September, 2021.

VICTOR U. UDEH ESQ., with EKERE E. BASSEY, ESQ appeared for the Appellant. They adopted and relied on the Appellant’s Brief of Argument filed on 2nd September, 2020 which was deemed properly filed and served on 30th September, 2021 and urged the Court to allow the appeal. AHMED YUSUF ESQ. ACSC MOJ. Niger State, appeared for the Respondent. He adopted and relied on the Respondent’s brief of argument filed on 19th February, 2021 which was deemed properly filed and served on 30th September, 2021.

In the Appellant’s brief of argument settled by VICTOR U. UDEH ESQ., 3 issues were distilled for determination as follows:
1. Whether the Appellant’s constitutional right to fair hearing was not violated when he was tried, convicted and sentenced by the Learned Trial Judge who while serving as Director of Public Prosecution Niger State, had previous knowledge and involvements in the case and indeed initiated the case against the Appellant and others and upon an affirmative determination of the above question. Whether the trial Court was competent to preside over the trial of the Appellant?
2. Whether the lower Court was wrong to have assumed jurisdiction to try, convict and sentence the Appellant upon a “charge” that was neither preferred nor filed as required by law.
3. Whether the lower Court wrongly relied on the extra-judicial statements admitted and marked as exhibits 1-6 at the trial and thereby occasioned a miscarriage of justice on the Appellant in the entire circumstances.

In the Respondent’s brief of argument settled by Ahmed Yusuf Esq., 3 issues were also formulated for determination; the issues are as follows:
1. Whether the Appellant’s constitutional right to fair hearing was breached when his matter was entertained and adjudicated upon by the trial Judge who while serving as the Director of Public Prosecutions signed the application to prefer the charge upon which the Appellant was tried.
2. Whether the learned trial Judge was right to have assumed jurisdiction to try and convict the Appellant upon the charge attached to the application for leave to prefer a charge in the High Court.
3. Whether having regard to the totality of the evidence on record and particularly the confessional  statement of the appellant, the lower Court was right in holding that the charges against the appellant had been proved beyond reasonable doubt.

From the issues submitted by parties, I am  of the opinion that the 3 issues submitted by the Appellant for determination will be adequate in the determination of this appeal.

SUBMISSIONS ON ISSUE 1.
1. Whether the Appellant’s constitutional right to fair hearing was not violated when he was tried, convicted and sentenced by the Learned Trial Judge who while serving as Director of Public Prosecution Niger State, had previous knowledge and involvements in the case and indeed initiated the case against the Appellant and others and upon an affirmative determination of the above question.
Whether the trial Court was competent to preside over the trial of the Appellant?
Mr. Udeh in the Appellant’s brief of argument submitted that it is a clear breach of the nemo judex principle for the Abdul Musa, J. to decide a criminal case which he commenced by filing an application to prefer a charge. He added that by hearing the case and convicting the Appellant, the learned trial Judge clearly played the role of a prosecutor and a Judge in the same case; thereby occasioning a breach of fair hearing in the circumstance. In support of his argument, the learned counsel cited the cases of: Akpabuyo Local Government v. Hon. Orok Edim (2003) 1 NWLR (Pt.800) 42; Adigun v. Attorney General, Oyo State (1987) 1 NWLR (pt. 53) 678 and Audu v. Federal Republic of Nigeria (2013) 5 NWLR (Part 1348) 397, 410 F—H; General Electric Company v. Akande & 4 Ors. (2012) 16 NWLR (Part 1327) 593, 611 C; Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (Pan 7) 300, 333; Womiloju & 6 Ors. v. Anibire& 4 Ors. (2010) 10 NWLR (part 1203) 545 at 566 D-E; Azuokwu v. Nwokanma (2005) LPELR-SC 120/2000, and Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) 1; Eriobuna & 5 Ors. v. Obiora (1999) 8 NWLR (Part 616) 622, 644 B-D; Oni v. Odeyinka & 3 Ors. (1998) 8 NWLR (Part 562) 425,431 B—D. He went on to submit that the inevitable result is that there was bias or at least likelihood of bias on the part of the learned trial Judge in his trial and conviction of the Appellant.

​The learned counsel submitted that a breach of fair hearing nullifies the entire proceedings no matter how well conducted. He relied on the cases of: Orugbo & Ors. v. Una & Ors. (2002) 16 NWLR (Part 792) 175, Tsokwa Motors (Nig.) Ltd v. UBA Plc. (2008) 2 NWLR (pt. 1671) 347, and Chitra Knitting & Weaving Manufacturing Company Ltd. v. Akingbade (2016) LPELR (40437) 1 at 28 (SC); in urging the Court to resolve this issue in favour of the Appellant and nullify the proceedings of the trial Court.

​MR. YUSUF in the Respondent’s brief of argument submitted that the Appellant’s right to fair hearing had not been breached in any way and that no bias was occasioned against the Appellant by the learned trial Judge. He conceded that the learned trial Judge was at one time the Director of Public Prosecution in the State; he added that it is not true that the said learned trial Judge conducted the proceedings as the prosecuting counsel at the trial Court. The learned counsel went on to say that assuming without conceding the learned trial Judge faced any likelihood of bias on account of his former position as DPP or signing the application for leave to prefer the charge against the Appellant, which implies a previous knowledge; that any alleged bias would only amount to a technical breach of rules of natural justice and would therefore not vitiate the proceedings. He relied on the cases of: IKOMI V. State (1986) 3 NWLR PT. 28, 340 @ 344; R V. Commonwealth Conciliation and Arbitration Commission ex parte Angliss Group (1969) 122 CLR, 546, 553.

The learned counsel for the Respondent submitted that apart from failing to show that the learned trial Judge participated in the prosecution of the Appellant before his elevation to the High Court bench, it is evident on the record that the learned Appellant’s counsel who also appeared for the Appellant at the trial Court failed to raise this issue of likelihood of bias throughout the proceedings at the trial Court only to bring it up for the first time in this Court. He relied on the case of: ONI V. FAYEMI (2014) ALL FWLR PT.738, 987 @ 989; to submit that where there is an allegation of likelihood of bias in a matter that has been determined to finality, the Court cannot exercise jurisdiction in favour of the Applicant. He also cited the case of: KENON V. TEKAM (2001) FWLR PT. 70, 1660 @1664-1665; and urged the Court to dismiss the appeal.

RESOLUTION OF ISSUE 1
Black’s Law Dictionary Eighth Edition defines Judicial Bias 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 extra-judicial reason.
In the case Kenon V. Tekam (2001) 14 NWLR (pt. 732) pg. 12, bias was defined as –
‘An opinion or feeling in favour 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. ‘

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 with likelihood of or actual bias should not take part in the decision making process where the adjudicator is under a duty to act fairly. The Supreme Court in RAFIU WOMILOJU & ORS V. MR. FATAI OGISANYIN-ANIBIRE & ORS (2010) LPELR- 3503(SC) held as follows:
“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 or 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. ”
See also: Bamgboye V. University of Ilorin (1999) 10 NWLR pt. 622 pg. 270. Yabugbe V. C.O.P. (1992) 4 NWLR pt. 234 pg. 152. Cooper V. Wilson (1937) 2 ALL E.R pg. 726. R V. Hendon RD.C. Exp. Cholley (1933) 2 K.B. pg. 696 Ononuju V. Ononuju (1991) 5 NWLR pt. 192 pg. 479. Adio V. A-G Oyo State (2000) 5 SC pg. 87; Deduwa V. Okorodudu (1976) NSCC (Vol. 10) 499 at 505-506.
​It has been held that a fore-knowledge, a previous knowledge of the facts of a pending case is something reasonably likely to bias or influence the mind of a Judicial Officer; a Judge or Magistrate in particular. See: Akoh V. Abuh (1988) 3 NWLR (Pt.85) 696 at 20; J. O. Abbey V. A.C. Lamptey (1947) 12 WACA 156; Abbey V. Lamptey (1947) 12 WACA 156.

It is well settled law that in considering whether or not there was a real likelihood of bias, the Court does not look at the mind of the learned trial Judge to see if there was a real likelihood that he would or did in fact favour one side at the expense of the other. The Court rather looks at the impression created in the minds of “reasonable people” who were sitting in Court to observe the proceedings. If right thinking people sitting in Court would think that in all the circumstances, there was a real likelihood of bias on his part then his decision cannot be allowed to stand. But mere surmise or conjecture is clearly insufficient to establish real likelihood of bias. See: THE SECRETARY OF IWO CENTRAL LOCAL GOVERNMENT & ORS V. TALIA TU ADIO (2000) LPELR-3201(SC).

​In the instant appeal, it is the contention of the Appellant that the learned trial Judge breached the nemo judex principle as he was the officer who signed and filed the application to prefer the charge against the Appellant, and when elevated to the Bench as a High Court Judge he was also the Judge that heard the case; tried and convicted the Appellant. He noted that the case was assigned to Amina Wambai J. before the trial Judge was elevated to the High Court and after his elevation, the case was reassigned to him. The learned counsel for the Respondent chose to be silent on this allegation. Although he conceded to the fact that the learned trial Judge was at one time the Director of Public Prosecution in the State; he argued that the learned trial Judge did not participate in the conduct of the case. See page 5 paragraphs 4.3 of the Respondent’s brief of argument.

In the records of appeal before me, particularly at page 1 of the records is an application for leave to prefer a charge in the High Court under Section 185 (b) of the Criminal Procedure Code. The said application reads thus:
“I forward herewith an application to prefer a charge under Section 185 (b) of the Criminal Procedure Code in respect of the above mentioned case. The application which is in five copies is accompanied with the following documents.
a) Proof of evidence of witnesses
b) The charge intended to be preferred in this case.
The application is in accordance with Rule 3 of the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970 and it is submitted herewith for your necessary action”.

The application was signed by Alh. Musa B. Abdul Director Public Prosecution; for Hon. Attorney-General & Commissioner for Justice.

Also at page 2 of the records is an untitled process signed by Alh. Musa B. Abdul Director Public Prosecution; for Hon. Attorney-General & Commissioner for Justice. The said process is vital and will aid in the resolution of this issue; it reads thus:
“04. It is considered that the case is not a complicated one and that to occasion an unnecessary delay.
05. It is considered desirable and expedient to dispose of the said case without further delay.
09. the evidence shown in the trial and disclosed by the proofs of evidence is to the best of my knowledge and information a true case.” (Underlined emphasis is mine).

​The above reproduced paragraphs of the untitled process attached to the application to prefer a charge is conclusive in the sense that Alh. Musa B. Abdulwho authored the same had already concluded the outcome of the case by upholding the veracity of the evidence and noting that the offence of Conspiracy and Culpable homicide which is a capital offence is not a complicated one based on his already disclosed opinion. The law has always been that an accused person is assumed innocent until found guilty by a competent Court, but from the learned trial Judge’s comment attached to the Writ up at page 2 as a DPP; he had made up his mind as to the guilt of the Appellant before he assumed the seat of a Judge over the case. See: AKEEM AFOLAHAN V. THE STATE (2017) LPELR-43825(SC); CAPTAIN O. ABIDOYE V. THE FEDERAL REPUBLIC OF NIGERIA (2013) LPELR-21899(SC); OLUWATOYIN ABOKOKUYANRO V. THE STATE (2016) LPELR-40107(SC); COMMISSIONER OF POLICE V. MR. EMMANUEL AMUTA (2017) LPELR-41386(SC); BEMDOO MINDI V. THE STATE (2020) LPELR-52897(SC).

​In the instant appeal, it is distinctly clear from the evidence reproduced above that the learned trial Judge signed the application to prefer a charge and the untitled process attached to the said application. Just like a Writ of Summons and a Statement of Claim in a Civil Proceedings; an application to prefer a charge and a Charge sheet can be said to form part of an Originating process in a Criminal Proceedings. This settles the fact that the learned trial Judge had fore-knowledge of the facts of the case he sat over as a Judge. He therefore was both the initiator of the charge against the Appellant and the Judge in the case he initiated. Thus violates the natural justice rule of nemo judex in causa sua which means a person should not be a judge in his own cause. See: R.N.H.W. V. Sama (1991) 2 NWLR (Pt. 171) 64; Egwu V. University of Port Harcourt (1995) 8 NWLR (Pt. 414) 419; T. M. ORUGBO & ANOR v. BULARA UNA & ORS(2002) LPELR-2778(SC).

It was held in Abubakar Audu V. FRN (2013) 53 NSCOR 456 @ 4691 that:
“The law is indeed well settled that fair hearing within the meaning of Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground.”
See also: Nwokoro V. Onuma (1990) 3 NWLR (Pt.136) 22.
It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. See: Tsokwa Motors (Nig) Ltd V. U.B.A Plc (2008) ALL FWLR (pt. 403) 1240 @1255 A- B; Adigun V. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 674; Okafor V. A.G. Anambra State (1991) 3 NWLR (pt. 200) 59; Leaders & Co. Ltd. V. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. AG, Rivers State V. Ude & Ors (2006) 17 NWLR (Pt 1008) 436; Nicholas Chukwujekwu Ukachukwu V. People’s Democratic Party & Ors (2014) LPELR-22115 (SC); PEOPLES DEMOCRATIC PARTY & ORS V. BARR. SOPULUCHUKWU E. EZEONWUKA & ANOR (2017) LPELR-42563(SC).
​This simply means that once there is a breach of the right to fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court become a nullity. See: Audu V. FRN (2013) LPELR-19897 (SC) 13; D-F; Akinfe V. The State (1988) 3 NWLR (pt. 85) 729, 753; Bamgboye V. University of Ilorin [1999] 10 NWLR (Pt. 622) 290, 333; ONUWA KALU V. THE STATE (2017) LPELR-42101(SC); OGED OVUNWO & ANOR V. IHEANYICHUKWU WOKO & ORS(2011) LPELR-2841(SC).

In view of the above, the learned trial Judge having had the fore knowledge of the fact of the case leading to the instant appeal while serving as the Director of Public Prosecution should have recused himself to hear and determine the case as that stems real likelihood of biased against him.

​Secondly, the learned counsel for the Appellant alleged that the case was assigned to Amina Wambai J. before the learned trial Judge was elevated to the High Court and that after he was elevated, the case he initiated was reassigned to him. This raises the likelihood of the learned trial Judge having personal interest in the said case. Despite this inference, the learned counsel for the Respondent chose not to say anything on this strong allegation.

Consequently, I hold that the learned trial Judge Musa B. Abdul J. who was the Director Public Prosecution in Niger State, having had the fore knowledge of the fact of the case; was wrong in law to hear and determine the case as he cannot be a prosecutor and a Judge in the same case. Having tried and convicted the Appellant on the referred charge, the learned trial Judge breached the natural justice rule of nemo judex in causa sua. The proceedings and decision of the learned trial Court are therefore nullities.

In all, I resolve this issue in favour of the Appellant and against the Respondent.

Having concluded that the judgment of the trial Court is a nullity, there is nothing this Court will exercise its appellate jurisdiction on. Accordingly, the decision of the High Court of Niger State, delivered on 30th January, 2017; in CASE NO: NSHC/NB/2C/2010 by MUSA B. ABDUL J.; is hereby nullified for the breach of the Appellant’s right to fair hearing and in particular, the natural justice rule of nemo judex in causa sua. Appeal is allowed, the case file is hereby remitted for retrial.

​It is ORDERED that the Chief Judge of Niger State reassigns CASE FILE NO: NSHC/NB/2C/2010; to another Judge of the same jurisdiction for hearing and determination.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft, the judgment just delivered by my learned brother, Uchechukwu Onyemenam, JCA.

I am in agreement with the reasoning and the conclusion thereat. I adopt the reasoning as mine. I also, do allow this appeal. I abide by the consequential Order of retrial as made therein.

DANLAMI ZAMA SENCHI, J.C.A.: I read in advance, the lead judgment of my learned brother UCHECHUKWU ONYEMENAM, JCA just delivered, and I agree with the findings and conclusion reached therein that this appeal is meritorious and it is accordingly allowed. I abide by all the consequential Orders in the lead judgment as mine.

I add however that from the facts on record in the appeal, the Appellant and others were convicted for the offences of Culpable Homicide not punishable with death under Sections 97 and 224 of the Penal Code. The facts on record show that the trial Judge, before his elevation as a Judge of the High Court of Niger State was the Director of Public Prosecution, Ministry of Justice Niger State, who signed the Application for Leave to Prefer a Charge in the High Court under Section 185(b) of the Criminal Procedure Code.

He (Alhaji Musa B. Abdul – as the then Director of Public Prosecution) at page 2 of the Record of Appeal signed another Process on behalf of the Hon. Attorney General and Commissioner for Justice, wherein he expressed his opinion that the Proof of Evidence is shown to be true and therefore it is desirable and expedient to dispose of the case without further delay. He further stated in the Process at page 2 of the Record of Appeal as follows:
“The evidence shown in the trial and disclosed by the proofs of evidence is to the best of my knowledge and information a true case.”

​The case of the Appellant was then assigned to Justice Amina Wambai of the High Court of Niger State, and with the appointment of Alhaji Musa B. Abdul as a Judge, the case was reassigned to his Court. And as the Record of Appeal reveals, Musa B. Abdul, J. convicted the Appellant and others for the offence of culpable Homicide not punishable with death under Section 224 of the Penal Code. Dissatisfied with the judgment of the trial Court, the Appellant appealed to this Court. The learned counsel to the Appellant submitted three Issues for determination in this appeal. The lead judgment of my brother has extensively dealt with all the issues and I reemphasize that the Latin maxim nemo judex in causa sua is an integral part of our jurisprudence, entrenched and preserved in the Constitution of the Federal Republic of Nigeria 1999 (As Amended), under Chapter Four.
The Latin maxim mentioned above simply means that the Natural Justice rule is that a person should not be a Judge in his own cause. See ORUGBO V. UNA (2002) LPELR-2778 (SC); R.N.H.W. V. SAMA (1991) 2 NWLR (PT. 171) 64 and EGWU V. UNIVERSITY OF PORT HARCOURT (1995) 8 NWLR (PT. 414) 419.
In the case of FEDERAL UNIVERSITY OF AGRICULTURE MAKURDI & ORS V. EJEWENTOTOR EFE ADAIPONU (2021) LPELR-54772, this Court held as follows:
“Looking at the Record, particularly the facts that gave birth to this issue, it is pertinent to point out that the principles of Fair Hearing, nemo judex in causa sua meaning “no one can be a judge in his case” is best suited for the determination of this issue. Consequently, this rule simply means that no one should be both a Prosecutor and a Judge in the matter in which he is involved or has an interest. Therefore, a Judge should be unbiased and uninterested in the subject matter placed before him for adjudication. In the instant case, it is glaring that from the perusal of the Record particularly the pleadings and evidence of the Defendants/Appellants, DW1 who chaired the committee that decided the alleged examination misconduct of the Plaintiff/Respondent and summarily expelled him, took part in the investigation of the alleged malpractice and indeed wrote the report titled Exhibit E which was submitted to the Acting Head of department of Civil Engineering. Again, paragraph 3.10 of the Defendants/Appellants’ Final Written Address at pages 184-216, the evidence of DW1 on whose instruction the Respondent wrote the incriminating statement was the investigator, the prosecutor and indeed the chairman of the committee whose sole decision was implemented by the Appellants. ” The facts on the Record of the instant appeal in this Court show that the learned trial Judge (then the DPP) initiated the case of the Appellant before the High Court of Niger State and he signed the Processes in the matter and indeed expressed his opinion on the merit of the case. And on his appointment as a Judge, the case on which he expressed his views was reassigned to him from another Judge. Instead of declining to accept the case on grounds of fair hearing, the trial Judge proceeded to accept, try and convict the Appellant. The role of the trial Judge offends the twin pillars of justice, especially on the rule that a person should not be a Prosecutor and a Judge in a matter in which he is involved. Particularly in this case, he had expressed his opinion, which opinion was in his mind, and he eventually convicted the Appellant.
The whole proceeding of the lower Court was not a fair trial and the judgment is a nullity, it is hereby set aside. I adopt the Order of retrial as mine.

Appearances:

VICTOR U. UDEH ESQ., with EKERE E. BASSEY, ESQ For Appellant(s)

AHMED YUSUF ESQ. ACSC MOJ. Niger State, For Respondent(s)