Col. Jubrin Bala Yakubu V. The State & Ors (2007)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A
The appeal in this matter is against the ruling of the High Court of Lagos State, Ikeja Judicial Division dated 3rd August, 2004 in charge NO.LCD/108/99 delivered by the Hon. Justice J. O. K. Oyewole in the exercise of his original jurisdiction.
The Appellant herein, as the 4th accused at the lower Court, was charged jointly with the 2nd to the 5th respondents with the offences of conspiracy, attempted murder, and causing grievous bodily harm contrary to the various provisions of the Criminal Code Law of Lagos State.
The brief facts of this case were that by a motion on Notice dated 5th July, 2004 the 4th respondent in this appeal as the 3rd accused at the lower court prayed the court to decline further adjudication in the trial on the ground of bias or likelihood of bias constituting antagonism to him or favoritism or partiality in favour of the prosecution. The stated grounds predicating the application were that:-
“(i) The 3rd accused/applicant is constitutionally entitled to a fair trial.
(ii) It is a constitutional requirement that a court seised of a case should be manifestly seen to be free from bias or partiality in the discharge of its judicial duties.
(iii) The trial judge has continuously demonstrated bias or likelihood of bias either against the 3rd accused and or in favour of the prosecution in this case by reason of which his impartiality in the case cannot be guaranteed or is in grave doubt.
(iv) The impartiality of the trial judge constitutes or is likely to occasion breach of the right of the 3rd accused/applicant to fair hearing in the case.
(v) A party whose right to fair hearing in any case is breached or is likely to be breached by the trial judge is entitled to complain against the breach or threatened breach of his right to fair hearing in the same proceedings.
(vi) The breach or likely breach of the constitutionally guaranteed right of the 3rd accused to fair hearing is a matter affecting the jurisdiction or competence of the trial judge or the court to exercise any adjudicatory power in the case.”
In the ruling of the learned trial judge delivered on the 3rd August, 2004 the application was dismissed as incompetent, and lacking in facts to substantiate the allegations of bias or likelihood of bias. The appeal at hand is therefore’ against the said ruling and same which was filed by the 4th accused as the appellant. The notice of appeal dated and filed on the 17th August 2004 contained four grounds of appeal. In accordance with the rules of court brief of arguments was filed on behalf of the appellant. None of the respondents however filed any respondents brief in response.
On the 20th November 2006, when the appeal was called up for hearing, Mrs. M. Afikuyomi represented the 2nd respondent; Mr. O. Esi also appeared for the 3rd respondent, while Abdul Fatai Alao- Thomas was for the 4th and 5th respondents. Both the appellant and the 1st respondent were neither in court nor were they represented by any counsel. All counsel in court urged that the matter be adjourned. However, the court vide the provision of order 6 rule 9(5) of the rules of this court heard the appeal and reserved same for judgment. This was in view of the appellant’s brief having been filed on the 14th October, 2005 and same served on the respondents who had all failed to file their respective respondents’ briefs. The appeal, even in the absence of the appellant’s counsel was therefore deemed argued as provided for under the relevant rule of court reference supra.
From the said notice of appeal the appellant’s counsel Mr. U. C. Ikegbule distilled three issues, from the four grounds for, determination as follows:-
“1. Whether the learned presiding Judge in this case has any personal legal interest or cause in the trial of the accused/appellant or the outcome of a review of any of his judicial acts or utterances so as to preclude the Judge from entertaining the application made to the court seeking that the Judge declines the jurisdiction to try the case on ground of bias or likelihood of bias?
2. Whether it is legally proper in the circumstances of this case for the learned presiding Judge to decline to consider the various facts contained in the affidavits filed in respect of the application for him to disqualify himself from adjudicating on this case and whether this refusal did not occasion a miscarriage of justice?
3. Whether there were no sufficient facts to justify the allegations of bias or likelihood of bias made against the learned presiding Judge in the circumstances of this case to warrant the learned Judge declining the jurisdiction to try the accused/appellant?
With reference to the three issues formulated by the appellant, the cumulative deduction of same all centred around only one central and main issue relating to whether or not the learned trial judge was either seized of bias or exhibited such element and thereby disqualifying himself from assuming jurisdiction to hear the matter which would otherwise have amounted to a miscarriage of justice on the part of the appellant. I would in consequence therefore determine all the three issues together to avoid repetition and monotony.
Submitting in substantiation of issue No.1, the learned appellant’s counsel set out by drawing a distinction between the office of a judge and the occupant thereof. That a party to a dispute has an inherent procedural right in a case or matter to challenge the qualification or competence of a court to try him by a challenge to the qualification of the judge to preside over the case or matter.
Learned counsel submitted that a judge presiding over a matter or case does not acquire any justifiable legal right in the case by reason of his being the judge in the matter so as to invest him with a personal cause or interest in the said case set before him.
For the determination of whether an order disqualifying a judge from hearing a case prejudicially affect that judge, counsel in refuting same cited the authority by their Lordships of the Supreme Court in the case of Ikonne v C. O. P & Nnanna Wachukwu (1986) 4 NWLR (Pt.36) 473 at 503 per Karibi-Whyte JSC.
On the relevance of Section 56 of the High Court Law of Lagos State 2003, wherein regard was had to by the lower court, the learned counsel submitted same as inapplicable in the circumstance of this case, as the procedure is not mandatory. That an accused is not therefore precluded from canvassing his right to be tried by a court or tribunal constituted in such a manner to ensure its impartiality pursuant to Section 36(1) of the 1999 Constitution, by reason of his failure or refusal to have recourse to the administrative powers of the Chief Judge of the State to transfer or re-assign a case. That any reading of Section 56 of the High Court Law which precluded an accused from making an application to the court seized of his case and challenging the competence of the judge to try him would amount to placing a limitation on Sections 6(2) and (6) also 36(1) of the 1999 Constitution. That this was never intended by the legislature as it will bring the provision of Section 56 of the High Court of Lagos State into direct conflict with the Constitution. He further contended that a person who apprehends any disability on the competence of a court or judge to hear his case or matter is obliged to raise the objection timeously, and can so do even orally. Cited in support was the case of P. E. Ltd. & Anor. Vs Leventis Technical Ltd. (1992) 2 N.S.C.C. 228 at 239; also Secretary Iwo Central Local Government v Adio (2000) 8 NWLR (Pt.667) 115. Further more, that there can be no obligation for an accused to have recourse to the sole administrative powers of the Chief Judge under Section 56. That the accused in the circumstance will have no remedy open to him therefore, as he can neither sue the presiding Judge in view of the absolute legal immunity pursuant to Section 88(1) of the High Court Law of Lagos State nor appeal against the administrative Act of the Chief Judge. Reference in substantiation was made to the case of Egbe v Adefarasin (1985) 5 SC 50 at 559-563. That to hold otherwise counsel argued would be contrary to Sections 6(2) and (6) as well as 36(1) of the 1999 Constitution and the public policy. That this is more so when it is considered that the right to fair hearing before an independent and impartial court or tribunal is a public right which cannot be compromised, waived or lost by the non-recourse to the administrative powers of the Chief Judge of the State. Counsel cited further in support the case of Alake v Abalaka (2003) 6 NWLR (Pt.815) 124 at 143. He also referred to the case of Abiola v Federal Republic of Nigeria (1995) 7 NWLR (Pt.405) 1 where an objection was raised, to the competence of some of the justices of the Supreme Court to hear an appeal, on the ground of a likelihood of bias. The said application counsel argued was properly heard and determined by a panel constituting of some of the same justices against whom the objection to hear the appeal was taken.
Learned counsel submitted therefore that a judge cannot pick and choose the applications to hear and determine in a suit in which he is seized of. Rather that if the judge feels he has any interest in any aspect of a case or matter, the proper thing for him to do is to withdraw from the entire case. Counsel in support again cited the authority of Eviobuna v Obiorah (1999) 8 N.W.L.R. (Pt.616) 622 at 642. That the judge needed not wait until a formal application to that effect is made to the court as he can suo motu bring up the issue.
Counsel therefore urged this court to resolve issue No. one in favour of the appellant.
Issue No.2 poses a question whether or not it was legally improper and therefore amounting to a miscarriage of justice for the learned trial judge to have declined to consider the various factors contained in the affidavits filed in respect of the application which could lead him to disqualify himself from adjudicating on the case.
In alleging error on the part of the learned trial judge, the counsel submitted undisputed facts on the affidavits to justify the allegations of bias or a likelihood of same and which the court is obliged to take judicial notice of its record of proceedings and all that transpired before it. That the disqualification of the judge arose by the reason that he deliberately misrepresented the submission made by the counsel to the appellant on the 5th December, 2003, when the judge delivered his ruling dated 28th June, 2004 refusing bail to the appellant thereby favouring the prosecution. Also that the learned Judge descended into the arena of conflict when being informed by the counsel to the appellant during the proceedings of 1st July, 2004 that he had a motion to set aside the arraignment of the appellant on the ground of nullity but had not served the State as the prosecution would not accept service in court. That in response, the judge answered for the prosecution to the effect that “the State would accept service” even when the prosecution had not said so.
That it is necessary to observe that there was no order of court striking out the said affidavit which the learned judge refused to consider, consequent to which counsel submitted as improper for the lower court not to have considered the facts they contained in relation to the issue of bias. That assuming without conceding, the various affidavits filed on the issue of bias were irregularly filed, counsel contented that the court was not precluded from determining the issue of bias raised based on the merit of the case devoid of technicalities. Counsel cited the re-iteration by their Lordships of the apex court in the case of Ezewani v Emordi (1986) 4 NWLR (Pt.33) 33 per Oputa JSC wherein courts are enjoined to strive to do substantial justice to parties and not to indulge in technicalities to defeat same.
Further more, that it is on record that the question as to whether the learned presiding judge openly answered for the prosecution even when it was present in court is not in dispute as same was not only admitted by the judge on his ruling and also evidenced on the record of appeal. That to refuse to consider those facts in the affidavit in the circumstances, counsel submitted, is to indulge in technicalities by the judge. Reliance was again made to the case of Abiola v Federal Republic of Nigeria supra at page 14 where it was held that a real likelihood of bias could be made to appear not only from materials 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 enquiries. Again and also in further support is the case of the Secretary Iwo Central Local Government v Adio under reference supra at 134, 141 and 149. He therefore re-iterated that the record of proceedings and ruling of court were all attached as exhibits evidenced at pages 104-111 of the record of appeal in this case and which constitute such further facts; these counsel argued might readily have been ascertained and easily verified in the course of the enquiry into the issue of bias raised in the instant case had the learned presiding judge cared to do justice to the objection. Learned counsel urged that the said issue number two should also be resolved in favour of the appellant.
The last issue number three relates to whether there were enough and sufficient facts to justify the allegations of either bias or likelihood of such made against the learned presiding judge in the circumstance so as to warrant him declining the jurisdiction to try the accused/appellant? In defining the word bias, the learned counsel cited the case of Lawal v Oloruntoba-Ojo (2004) Vol.48 W.R.N. 35 at p.117.
That in deciding the question as to whether or not a judge was biased, or likely to be biased in a matter, the appellate court is enjoined not to either look at the mind of the trial judge, or to see if there was a real likelihood that the judge would, or did, in fact favour one side at the expense of the other, rather the court is to look at the impression which would be given to other reasonable people abreast of the facts of the case. That justice which must be rooted in confidence, would be destroyed when right-minded people go away thinking; “This judge was biased.” Cited in substantiation are the authorities of:- Lawal v Oloruntoba-Ojo (supra); Kenon v Tekan (2001) 14 N.W.L.R. (Pt.732) 12 at 36-37; and Adio v Attorney General of Oyo State (2000) 3 WRN 80 at pages 98-99. That the conditional determinant of bias is dependent on the circumstances of the case, the nature of the inquiry, the rule under which the tribunal is acting, the subject matter that is being dealt with and so forth. Counsel in support again relied on the case of Adio v Attorney General of Oyo State reference supra.
Unflinchingly affirming his stand on the grounds of bias or the likelihood complained of, the learned counsel submitted the expectation of a judge to be above suspicion and the general expectation of him to do justice, which must not only be done, but also manifestly be seen to be done. Counsel cited the English authority of R. V. Essex Justices, Ex-parte Perkins (1927) All E. R. 393 where in an appeal, a justices clerk having worked as solicitors, immediately before the hearing of the case, in a firm that had acted as solicitors, to the wife of one of the parties, was held to constitute injustice. This was regardless of his lack of knowledge that his firm had acted as solicitors.
That bias may arise if a judge, either explicitly or impliedly, indicates partisanship in a cause or matter before him, or if he expresses hostile opinion or hostile personal relationship to one of the parties. The case of Alake v Abalaka under reference supra was cited in support. That the pronouncement of the judge about the submission of the appellant’s counsel was not only a manifestation of hostility toward the appellant, but also indicated partisanship in favour of the State and against the appellant in as much as it had the effect of weakening his case on the bail application. Reference in grounding the submission was made to the case of Denge v Ndakwoji (1992) 1 NWLR (Pt.216) 221.
Further more learned counsel argued, that a judge is not allowed to descend into the arena of conflict by expressing his personal opinion or bias other than on the facts before him. The case of State v Osoba (2004) 21 W.R.N. 113 at p.124 was apt in support. That in the absence of any explanation from either the judge or the prosecution on the allegation of deliberate misrepresentation of the submission of counsel to the appellant, it was not therefore difficult to infer bias or a likelihood of same. The case in point and support was Kujore v Mrs. Ebun Otubanjo (1974) 9 & 10 SC 122. That it is not for the judge to take the place of the prosecution and to answer for him. That the circumstance, is suggestive that the learned presiding judge must have been communicating with the prosecution, and perhaps is privy to the position of the state which has not been made open to the other litigants, and therefore capable of an inference of a partnership between the judge and the prosecution or respondent. The said counsel on the cumulative deduction of that which transpired, and for the reasons so given, urged that the said issue number three should also be resolved in favour of the appellant. The learned counsel in the result therefore urged us to allow this appeal, set aside the ruling of the lower court dated 3rd August, 2004 and order that the case be re-assigned to another judge for trial de novo.
I have stated at the onset of this judgment that none of the five respondents filed any respondents brief in response to the appellant’s brief. The appeal would therefore be determined on the merit or not of the appellant’s brief alone.
The totality of the appeal at hand is against the lower court refusing to decline jurisdiction on the ground alleging and suggestive of bias or likelihood of same. The appellant in summary squarely relied on two grounds which the learned counsel argued were firmly in support of the allegation leading to the complaint. The first, learned counsel argued related to the judge’s misrepresentation of the submission of the appellant’s counsel and thereby holding as reproduced on page 8 of the appellant’s brief of argument as follows:-
“Further more, the applicant cannot be allowed to approbate and reprobate. The court is seised of its record, while arguing his earlier rejected motion for stay of proceedings, it was then his contention that this suit had not been delayed and speed should not be a consideration. His position then was rejected by this court. He admits exercising his pre-trial rights to various applications but cannot turn round to deny the repercussion for his own express actions.”
The second ground relied upon by counsel related to the refusal of the prosecution to accept service of process seeking to set aside the arraignment of the appellant on the ground of nullity. Counsel therefore complained of the court’s response wherein it said “the state would accept service” even when the prosecution had not said so.
The contention of the second allegation is whether by the decision of the court that the state will accept service of process filed by the 4th accused/appellant in court, constituted enough materials to show a likelihood of bias against the 3rd accused/applicant at the lower court and in favour of the State.
In respect of the 1st line of argument reproduced at page 8 of the appellant’s brief relating to the grounds relied on as being suggestive of bias or likelihood thereof, supra, I would wish to state straight away that I have carefully perused the ruling of the learned trial judge appealed against at pages 122-133 of the record. To my utter surprise and dismay, there is nowhere held by the learned judge as alleged by the counsel of the deliberate misrepresentation of his submission as reproduced. One wonders why the accosting unto a judge that which did not form part of his judgment.
The crux of this appeal is whether the allegation of bias or likelihood of same could be accorded to the lower court and thereby robbing it of the exercise of jurisdiction.
The concept of bias has been defined in plethora of judicial authorities. It is for instance generally defined as a feeling in favour of one side in dispute or argument resulting in the likelihood that the court so influenced will be unable to hold an even scale in the matter before it. See the authority in the case of Lawal v Oloruntoba-Ojo under reference supra.
Ayoola JSC in the case of Kenon vs. Tekan (2001) 14 NWLR
(Pt.732) 12 at 41-42 held the concept as:-
“Opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the judge so influenced will be unable to hold an even scale.”
Edozie JCA, as he then was also had this to say in the case of Udo v Cross River State Newspaper Corporation & Anor. (2001) 14 NWLR (Pt.732) 116 at 150-151.
“Bias is a very serious attack on the person and integrity of a judge and a counsel who decides to attack a judge on that must show concrete evidence in support of the charge, if it may be fairly inferred by reasonable persons sitting in court from the circumstances, that there is a real likelihood of bias against one of the parties on the part of the trial court, it must follow irresistibly that that party’s right to a fair hearing had been contravened and the decision on the issue between the parties by the trial court in such circumstances cannot stand.”
For the proof of bias to hold water, there must be the mandatory prerequisite underlying factors. In other words, that, there must be the need to show concrete evidence in support of the charge or the allegation. A flimsy, whimsical and or mere unguarded or unfounded suspicion are not forces to be reckoned, with, as they would not suffice. This is fundamental especially where the charge seeks to erode the very cardinal and ethical principle of the confidence reposed in judges as custodians of justice. Bias removes the concept of justice and fair hearing; thus contravening our very constitutional safeguard by eroding its foundational purport. The various judicial authorities requiring strict measures of proof are very much desirous for the purpose of safeguarding the integrity of judges and forestalling unwantom and unfounded allegations.
Bias must therefore be sufficiently proved and should not be based on mere conjective, speculation, mere accusation or the subjective view of the party alleging or his counsel. See the case of Oyedeji v Akinyele (2002) 3 NWLR (Pt.755) 586 at 611.
On a related same principle of the concept of bias occasioning injustice and thus violating the principle of fair hearing Niki Tobi JSC also in the case of Orugbo v Una (2002) 16 NWLR (Pt.792) 175 at 199 by his extrapolation said:-
“The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case … The reasonable man should be a man who keeps his mind and reasoning within bounds of reason and not extreme. And so if in the view of a reasonable man who watched the proceedings, the principle of fair hearing was not breached, an appellate court will not nullify the proceedings.”
In a further Supreme Court decision of Ojengbede v Esan (2001) 18 NWLR (Pt. 746) 771 at 784-785 Ighu JSC also said:-
“To charge a court with bias or likelihood of bias is a grave matter and the accuser must be able to establish the facts and grounds he relies upon before he can succeed in his complaint.”
One of the bone of contention by the appellant’s counsel was to question the propriety of the learned trial judge in presiding over its own conduct to assess itself and give a verdict. At page 128 of the record of appeal, the court had thus to say amongst others:-
“It is a fundamental principle of fair hearing that none must be a judge in his own cause and it is to forestall situations such as this that Section 56 of the High Court Law Cap H3 Laws of Lagos State 2003 was put in place thereby vesting the Honourable Chief Judge of the State with administrative powers to handle situations such as this.”
In the case at hand, the learned presiding Judge held that he was precluded from hearing the application made to the court seeking that he declined the jurisdiction to try the case and that the application was therefore incompetent as he could be a judge in his own cause.
From available judicial authorities for example in the case of P. E. Ltd. & Other v Leventis Technical Ltd. supra, it was settled and as rightly submitted by the learned appellant’s counsel on the one hand, that a person who apprehends any disability on the competence of court or Judge to hear his case or matter is obliged to raise an objection timeously. On the other hand, the provision of Section 56 of the High Court Law of Lagos State also vests the Honourable Chief Judge of the State with administrative powers to transfer or re-assign a case. The two alternatives are open to an accused/appellant and are operational. The confirmation has been made by the appellant himself in submitting that the said “Section 56 of the High Court Law of Lagos State is not a mandatory procedure and the accused is not precluded from canvassing his right to be tried by a court or tribunal constituted in such a manner to ensure his impartiality pursuant to Section 36(1) of the 1999 Constitution” where he refuses to resort to the administrative powers of the Chief Judge. The submission by counsel of the inapplicability of Section 56 of the High Court Law therefore is not tenable. Rather any of the two alternatives is open to the appellant who cannot be refused one from the other but has the latitude to choose which ever is preferred. It was not within the powers of the learned trial judge therefore to have ruled the misdirection and incompetence of the application.
However, and having resolved thus far, the learned trial judge proceeded to determine the merit of the application as an alternative consideration in the event he is overruled on the 1st line of thought; in other words whether this application is such as can be validly entertained by him, as it is the case in my humble view.
It is expedient to again recapitulate and reproduce even in the face of repeatition ground number three predicating the application and alleging bias against the learned trial judge at the lower court, and therefore serving as the crux of the application. The ground states:-
“(iii) The trial judge has continuously demonstrated bias or likelihood of bias either against the 3rd accused and or in favour of the prosecution in this case by reason of which his impartiality in the case cannot be guaranteed or is in grave doubt.”
For the purpose of, substantiation of the allegation paragraphs 9, 10, and 11 by the 3rd accused as the propounder of the application become very relevant. This I say because by the very nature of the accusation, same is a matter of fact. The reproduction of the said paragraphs of the affidavit are therefore relevant.
”’9. That the 3rd accused/applicant further informed me at the said meeting which took place at the State Security Services office on 2/7/2004 and I verily believe him that the facts for his belief as contained in paragraph (8) above are as follows:
(i) the Honourable Justice J.O.K Oyewole has refused him (the 3rd accused) access to the documents and materials which he (the 3rd accused) requires for the preparation of his defence.
(ii) on 1/7/2004, the said Justice J.O.K. Oyewole also frustrated his (the 3rd accused’) right to have the Court of Appeal Lagos Division pronounce ‘on the 3rd Accused’s motion for state of further Proceedings in Appeal NO.CA/L/159M/2004 ruling that he (the Justice J.O.K. Oyewole) would proceed with the trial.
(iii) that although the ground for his (3rd accused’s) application for adjournment of the court proceedings on 1/7/2004 was the need for the trial court to accord the Court of Appeal respect by allowing the Court of Appeal to rule on his (3rd accused’s) motion for stay of proceedings which had been fixed for hearing on 27/09/2004 the trial judge in his ruling willfully clouded the merit of the issue by stating in his ruling that his (the 3rd accused’s) application is for perpetual adjournment pending the determination of his (3rd accused’s) appeal against the decision of the trial court dismissing the 3rd accused’s application filed on 30/12/2003.
(iv) that on 12/2/2004 the Honourable Justice J.O.K. Oyewole disallowed his (3rd accused’s) counsel to refer to the counter affidavit filed on behalf of the Director of the State Security Services on 15/1/2004 in opposition to the 3rd accused’s motion dated 1/12/2003 in the course of argument of the 3rd accused motion filed on 30/2/2003 on the ground that the said counter-affidavit had been withdrawn by the State Security Services and struck out by the court.
(v) that his (3rd accused’s) counsel had informed the court that he wanted to refer to the said counter-affidavit of the State Security Services filed on 15/1/2004 to show the contradiction between the said withdrawn counter-affidavit and another counter-affidavit subsequently filed by the State Security Services in opposition to the 3rd accused’s fresh motion dated 30/12/2003 with a view to submitting that no weight should be attached to the subsequently filed counter-affidavit.
(vi) that Justice J.O.K. Oyewole against his earlier position that the withdrawn counter affidavit could not be referred to by counsel permitted or allowed the prosecution to freely refer to the same withdrawn counter affidavit filed by the State Security Services on 15/1/2004 for the purpose of showing that there were no contradictions between the said State Security Services counter affidavit of 15/1/2004 and the counter affidavit subsequently filed by the State Security Services in the same proceedings.
(vii) that when his (3rd accused’s) counsel objected to the prosecuting Attorney General making use of the said State Security Services counter-affidavit filed on 15/1/2004, Justice J.O.K. Oyewole replied that he (the Attorney General of Lagos State) could do so because he is the state.
10. That the 3rd accused/applicant further informed me at the said meeting of 2/07/2004 and I verily believe him that the trial Judge again demonstrated his attitude of patronizing the prosecution during the court proceedings of 1/07/2004 in the following manner:
(a) when the counsel to the 4th accused informed the court that he 4th accused had just filed a motion on 1/7/2004 praying the court to set aside the arraignment of the 4th accused on the ground that the arraignment was a nullity, he said that he had not served the motion on the state (the prosecution) because they would not accept service of court processes in court.
(b) that without asking the Attorney-General who was leading the prosecuting team whether or not he would accept service, Justice J.O.K. Oyewole provided answer for the prosecution by saying that the state would accept service of the 4th defendant’s motion filed on 1/07/2004.
11. That the trial Judge has always uphold and sustained the positions taken by the prosecution since the start of the proceedings in the case.”
Having outlined the facts originating the application and the allegation of bias against the learned trial judge, it is obvious that one cannot allege bias against another unless there is a happening event from which the allegation stems. The concept cannot certainly exist in vacuo but must have a basis from: an eventful event. It cannot therefore be meaningful to merely allege bias without at the same time alleging some circumstances from which one can infer it. The question that rightly follows from the matter at hand is having regard to the circumstance and facts alleged as reproduced on the affidavits supra, do same warrant sufficient reasons and thus confirming bias or the element of the likelihood?
According to Jowitt’s Dictionary of English Law, 2nd ed., by John Burke, the word, in relation to anyone acting in a judicial capacity, conjures up the idea of –
“anything which tends or may be regarded as tending to cause that person to decide a case otherwise than on the evidence.”
Judicial authorities on this concept are also very numerous. In the case of Nwokanma v Azuokwu (2000) 8 NWLR (Pt.670) 767 for instance, at page 782 this court had this to say:-
“whoever alleges bias is obliged under the law to establish the ground he has stated by strong and clear evidence.”
Further still and in the case of Akon v Abuh (1988) 3 NWLR (Pt.85) 696, Kawu JSC in the lead judgment at page 711 had this to say:
“In Law v Chartered Institute of Patent Agents (1919) 2 Ch. D. 276 at 290 it was held that a person who has a judicial duty to perform is disqualified from performing it if he has so conducted himself in the matters to be investigated as to lead a reasonable man to suspect that he may have a bias. But in my view, there must be some evidence tending to support such an allegation.
This point was emphasized by Lord Denning when considering the issue of bias in Metropolitan Properties v Lannon (1969) 1 Q.B.277 at 599 where he said:
“…Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough …There must be circumstances from which a reasonable man would think it likely or probable that the justice, or Chairman as the case may be, would or did, favour one side unfairly at the expense of the other…”
Obviously and from the foregoing authorities, it is not enough to say that there was the suspicion of bias, rather such suspicion must be reasonable and looked at from an objective stand point of a reasonable person and not from the subjective stand point of an aggrieved party. In other words the suspicion must not be fancifully entertained.
In the same authority of Akon v Abuh supra, Oputa JSC in his contribution at page 720 had this to say amongst others:
“…To invite this court to start considering bias… on mere speculation and doubtful inferences, learned counsel is inviting us to embark upon a sea which has no shore.”
This is a venture which is endless. The explorer is better informed of the predicament and consequences involved before setting the court on a voyage of no return. The interpretation certainly is to place an obligation and expectation on the accuser of bias to show concrete evidence in support of the charge alleged as a matter of strict proof. There is wisdom in this expectation especially with the nature of the allegation impugning on the integrity and wholesome personality of the judge thus portraying and bringing the entire administration of justice into disrepute and question.
Further related authorities are the cases of Oyedeji v Akinyele (2001) 29 WRN 69, L.P.D.C. v Fawehinmi (1985), 2 NWLR (Pt.7) 300, and Kenon v Tekan (2001) 14 NWLR (Pt.732) 23. The learned appellant’s counsel relied heavily on the case of Abiola v Federal Republic of Nigeria (1995) 7 NWLR (PtA05) 1 at 14. In that case, Bello CJN (of blessed memory) on relevant consideration in determining existence of real likelihood of bias – adopted the pronouncement made in the case of Obadara v The President, Ibadan West District Court (1964) 1 All NLR 336 where Bret; Ag. CJN stated at pages 344-345 as follows:-
“The principle that a judge must be impartial is accepted in the jurisprudence of any civilized 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 the English decisions. The England decisions were reviewed by the Divisional Court in Regina V Camborne Justices (1955) 1 Q.B.41 and we would adopt the following passage from page 51 of the judgment as selling out the law to be applied in Nigeria.
‘In the judgment of this court the right test is that presented by Blackburn J, namely, that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject matter of the proceeding, a real likelihood of bias must be shown. This court is further of opinion that a real likelihood of bias must be made to appear not only from the materials 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 inquiries. Their Lordships of the apex court found sufficient evidence having established the allegation which did form the opinion that a reasonable man would think there would be real likelihood of bias and in the circumstance therefore allowed the disqualification.
In applying the foregoing authorities to the case at hand, in the light of the facts deposed to on the paragraphs of the affidavit reproduced supra, can it be said that an ordinary reasonable man in the circumstance could read a real or likelihood of bias having been proved in accordance to the test adopted particularly in Abiola v Federal Republic of Nigeria supra.
Per the succinct summary of the complaint on the affidavit at paragraphs 9, 10 and 11 reproduced supra and alleging bias, the originating nucleus arose from the earlier paragraph 8 of the same affidavit, the reproduction which also states as follows:-
“8. the 3rd accused/applicant informed me and I verily believe him that he (the 3rd Accused/Applicant) believed that the Presiding Judge in this case Honourable Justice J.O.K. Oyewole has by his conduct and utterances demonstrated bias or likelihood of bias and prejudice against him and or in favour of the prosecution in this case.”
The whole concept of paragraph 8 reproduced supra revolved around the belief by the 3rd Accused/Applicant. It is very emperative on the applicant to have established the basis of that belief. The idea of belief is subjective and which would not, in the light of the authorities reference supra, serve a concrete proof of bias or likelihood thereof thus discharging the burden placed on the accused/appellant. Again in Abiola v Federal Republic of Nigeria supra, the test of bias is well propounded. In other words not only that “a real likelihood of bias must be shown (but) further that a real likelihood of bias must be made to appear not only from the materials 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 inquires.”
With due reference to paragraphs 9, 10, & 11 of the affidavit supra which were alleged to be the facts constituting the allegation of bias, or likelihood of bias the averments in my humble view are ambiguous, at large and attacking on the discretional judicial function of the judge, which should have been by way of an appeal.
Furthermore, and on the complaint by the appellant of procedural unfairness in not allowing his counsel to make reference to the withdrawn counter affidavit of the SSS and while allowing the prosecution to make use of same, there was the necessity of the appellant to have produced evidence to prove the allegation. The same stance also applies in respect of the directive complained of, in otherwords, that the state would receive service of proceedings in court. It is expected of the applicant in proof of the allegation to have specifically made reference to the proceedings of the court which would have served as evidence.
Perceived general and subjective aspersions on the learned trial judge are not within the purview and intendment of the test of bias as clearly specified in Abiola’s case supra. The case at hand in my humble opinion therefore is very much distinguishable with that of Abiola under reference. The submission by the learned appellant’s counsel in that regard does not therefore hold.
On the totality of all the issues as consolidated, they do not, with the greatest respect to the appellant’s counsel, constitute or even indicate any bias or likelihood of same as alleged. Rather, it is my view that the eventual effect of such complaints would serve repugnant to the well being and proper functioning of our judicial system where beliefs which are unfounded, and unguarded should not be allowed to thrive. Certainty and caution ought to be applied. This is not however to say that genuine and founded complaints of bias are to be suppressed. To do this would certainly undermine the purport of the constitutional provision relating to fair hearing.
With the determination thus arrived at, I hold the firm view that the entire allegations of bias against the learned trial judge are all unfounded and without basis in the absence of proof thereof. In the result, to disqualify the learned trial judge in the circumstance would be akin to allowing the appellant to dictate the tune for the piper. He should not be allowed to have his way because, doing so would encourage and serve a dangerous precedent, which would have a serious and negative effects on our judicial system. The appellant is crying “wolf’ where there is none. He should only be allowed to be heard if and only if the cry is justifiable. In the circumstance at hand there is no reason justifying his cause. Rather he is therefore condemned in very strong terms especially as he is seeking to negate the ethics of the legal profession and the oath of office sworn to by the learned judge in question.
The totality of this appeal is devoid of merit and same is accordingly dismissed. The ruling of the lower court dated 3rd August 2004 and dismissing the application dated 5th July 2004 is upheld. The court is to proceed with the adjudication of the case before it.
Other Citations: (2007)LCN/2230(CA)
