Kujore & Ors V. Otubanjo (1974)

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FATAYI-WILLIAMS, J.S.C.

The present appellant had been substituted for the plaintiff (now deceased) who had commenced these proceeding against the respondents as defendants in the Ijebu Ode Grade “A” Customary Court. Her claim was for declaration of title according to customary law to a piece of land behind No.5, Modisa Street, Oyingbo, Ijebu-Ode. She also claimed damages for trespass and an injunction.

The first defendant was at the material time the General Trustee of the African Church (Incorporated) while the other three defendants were the President, Treasurer and Secretary, respectively, all of the Bethel African Church, Ijebu Ode. They were all sued as representatives of the said Bethel African Church.

At the hearing in the Customary Court presided over by Chief E. Akinola Cole as sole President on 31st August, 1966, Mr. Odedina, who appeared for the plaintiff made certain allegations which the learned President recorded as follows:

“Mr. Odedina for plaintiff says he had instructions from his client that the president is legal adviser of the African Church, Ibadan Division, as such plaintiff do not feel that justice would appear to be done by me. He therefore asks for an adjournment to consider his client’s instruction.”

It is significant that the learned President against whom the allegation couched in the most polite and delicate terms, was directed did not see it fit to admit or deny the allegation immediately. Instead, he merely ignored it and adjourned the case to 30th September, 1966, for mention. After other adjournments, the learned President heard evidence from both sides during which one Emmanuel Oladiran Peter (2nd D/W) testified that he was once the Bishop in charge of the “Lagos Ijebu Division of the African Church” and that the land in dispute belongs to the “African Church”. The 1st defendant, who is the General Trustee of the Church, also testified and produced the Certificate of Incorporation (Ex.B) of the African Church. He testified that the Bethel African Church at Ijebu-Ode is a branch of the parent organisation. The learned President, in a reserved judgment, dismissed the plaintiff’s claim.

The plaintiff appealed to the Ijebu-Ode High Court against the judgment. The two “grounds of appeal argued before the learned judge of appeal read:

“( 1) that the trial is a nullity in that the presiding President being a member and the Chancellor of the African Church Incorporated, is an interested party and as such cannot preside over a matter in which he has an interest;

(2) That the trial President is biased in favour of the defendants as shown by his readiness to believe the Bishop of the defendants.”

At the hearing of the appeal, Mr. Adefalu who appeared with Chief Okenla for the defendants conceded that Chief Akinola Cole, the President of the Grade “A” Customary Court which tried the case, was legal adviser to the Ibadan Division of the defendants’ Church. He then submitted that notwithstanding this official position of the learned President in the Church’s set-up, it was the duty of the plaintiff to show that the President’s “interest is pecuniary or proprietary”. Learned counsel also complained that the plaintiff never pursued the complaint and did nothing beyond raising the matter.

In considering the arguments adduced before him, the learned judge of appeal observed as follows:

“Justice, it has always been said, must not only be done, but must appear to be done. Unfortunately, the learned President recorded no comment of this allegation. He did not record that it was not correct that he was (Le.up to the time the hearing was due to begin, since the allegation used the word ‘is’) legal adviser to one of the parties. Much as one would doubt whether he could be legal adviser as well as court President at the same time, the other side of the picture is that it was not impossible for him (although it may not be proper or right) to act as legal adviser possibly gratuitously on religious grounds to a church organisation. In fact, he was in the grounds of appeal described as Chancellor, although that description was not pursued.

Viewing the whole situation in a broad way, I consider that a judgment delivered by a legal adviser to one of the parties in favour of the person to whom he serves as legal adviser should not in the interest of justice be allowed to stand.”

The learned judge of appeal then allowed the appeal and ordered a retrial of the action in the same Ijebu-Ode Grade “A” Customary Court but before another President.

A further appeal by the defendants to the Western State Court of Appeal was allowed on the ground that there was no proof of any likelihood of bias on the part of the learned President. On this point, the learned judges of the Court of Appeal observed as follows:

“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 proceeding, a real likelihood of bias must be shown (or made to appear) from facts ascertained or ascertainable by the party complaining.

Real likelihood of bias must be proved because the court will not assume or presume it. It would be unseemly for the court to pry into the state of mind of the person reasonably suspected of bias and that is why the court is never concerned with the question of actual bias but with the issue of real likelihood of bias that should be inferable from the circumstances of the particular case. So the burden is on the complaining party to produce evidence concerning some statement, acts, attitude or interest on the part of the adjudicating officer to show that he is likely to be biased in the subject-matter of the proceedings-see de Smith’s ‘Judicial Review of Administrative Actions’ 2nd Edition page 243.”

The only point canvassed in the appeal now before us against the decision of the Western State Court of Appeal was whether, from the material available, the inference can and should be drawn that there is a real likelihood of bias on the part of the learned President. The correct state of the law as to what constitutes a real likelihood of bias stated in Halisbury’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 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, inasmuch as the clerk was a member of the firm which had acted for the applicant’s wife.”

In the case in hand, “the materials ascertained by the party complaining” were those put delicately before the learned President of the Customary Court at the hearing on 31st August, 1966. If the learned President was not likely to be biased, would he not have said something, there and then, about the allegation made against him, particularly as the allegation is true, bearing in mind the admission made later by Mr. Adefala before the High Court 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 infetred 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.

For these reasons, we have come to the conclusion that the learned judges of the Western State Court of Appeal were in error when they said that there is no evidence to support the views of the learned judge of the Ijebu-Ode High Court that there was a real likelihood of bias on the part of the learned President The appeal therefore, succeeds and it is allowed.

The judgment of the Western State Court of Appeal in Appeal No. CAW/53/72 delivered on 12th April, 1973, including the order as to costs, is set aside. The judgment of the Ijebu-Ode High Court in Suit No. HCJ/8A/79 delivered on 22nd June, 1971, setting aside the judgment of the Ijebu-Ode Grade “A” Customary Court in Suit No. JDGA/2CL/65 and ordering that the case be reheard de novo (including the order for costs of N105.00 awarded in that High Court) is restored, save that the case should be reheard, not in the Customary Court, but in the Ijebu-Ode High Court where the parties shall be at liberty to ask for pleadings if they are so advised.

The plaintiff is awarded the costs of this appeal assessed at N127 .00, and in the Western State Coon of Appeal at N84.00. The costs of the first trial shall abide the result of the retrial.

Other Citation: (1974) LCN/1869(SC)