Lawrence V. Attorney General of the Federation (2007)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
This is an interlocutory appeal from the decision of the Federal High Court Lagos delivered on the 8th of October, 2004 refusing an application for transfer of suit No FHC/L/219C/04 to another Federal High Court Judge for hearing and determination on ground of likelihood of bias.
An application for the extradition of the appellant to the United States of America was made by the respondent and same was filed at the Federal High Court Lagos. The matter was assigned to Shuaibu J. for hearing and determination. In the course of hearing the application, the appellant expressed dissatisfaction with the way and manner the trial Judge was handling the matter. Appellant then, filed a motion on notice dated 7th day of October, 2004 praying for an order permitting, allowing and or authorizing the transfer of the suit No FHC/L/219C/2004 from Federal High Court No 8 (Annex) presided over by Shuiabu J. to any other court and/or Judge of the Federal High Court, Lagos. On 7th day of October 2004 the motion was moved by appellant’s counsel. In a considered ruling delivered on 8th day of October, 2004 Shuaibu J. dismissed the application for transfer of the Suit to another Judge on the ground that there was absence of apparent bias or likelihood of same from the facts of this case.
Aggrieved with this decision, appellant lodged his Notice of Appeal dated 11th day of October, 2004 which contained 7 grounds of appeal.
In compliance with the rules of court at the time the appeal was filed both parties filed their respective briefs of argument. Appellant’s brief dated 24th day of February, 2006 was deemed filed and served on 1/11/06. While respondent’s brief dated 8th day of February, 2007 was deemed filed and served on 12/03/07. Appellant’s reply brief was also deemed filed and served on 5/07/07.
When the appeal came up for hearing on 3/10/07 both counsel adopted their respective briefs of argument.
From the seven grounds of appeal filed, appellant distilled two issues for determination as follows:-
2.1 (1) whether having regards to the circumstances surrounding this case, it was proper for the learned trail Judge to preside or continue to preside and adjudicate over the case or refuse to transfer the matter to another Judge in view of the allegation of likelihood of bias against the Judge and apparent loss of confidence in the trial Judge by the Appellant (Grounds 1, 3, 4, 5, 6 & 7).
(2) whether the hearing by the learned trial Judge of the Appellant’s application for transfer in the circumstances of the case particularly in the face of allegation of likelihood of bias made against him does not contravene the principles of natural Justice and therefore a nullity.
(Grounds 2).
The respondent formulated three issues for determination by this court. The issues are:-
2.0 (i) whether having regards to the facts and circumstances of the case, the trial court was wrong in refusing the Appellant’s application for transfer of the case to another Judge.
(ii) whether the learned trial Judge erred in law when he continued with the matter after it was reassigned to him by the Chief Judge after the courts vacation.
(iii) whether having regards to the circumstances of this case, it can be said that the learned trial Judge was biased against the Appellant to warrant the allegations of bias against the court as contained in the Appellant’s Notice of Appeal and brief of argument in the matter.
I have examined all the issues filed by both counsel. Appellant did tied the two issues to the seven grounds of appeal filed. While respondent on the other hand failed to tie the three issues to any of the grounds of appeal filed by appellant.
Before I proceed I find it necessary to determine whether issue 2 formulated by appellant and issue 2 formulated by respondent are competent or not. As regards appellants issue 2 it is evident from the record of appeal that appellant allowed the trial Judge to hear the application for the transfer without objection. The said motion dated 7/10/04 the subject of this appeal was moved by the appellant without any complaint. Having failed to challenge the competence of the trial Judge to hear the application in the first instance, makes such complaint raised at this stage of the appeal to be regarded as a fresh issue. It was not part of the decision of 8/10/04 appealed against by the appellant. Grounds of appeal against a decision of a trial court must relate to that decision and should be a challenge to the ratio of the decision. A ground of appeal must arise from the Judgment. Where a ground of appeal is not related to the judgment of the court it becomes incompetent. See Adelekan Vs ECU -line NV (2006) All FWLR (Pt 321) 1213 at 1223 Paras B-E.
The position of the law is that an appellant will not be allowed to raise on appeal a point or issue that was not raised, canvassed or argued at the trial without the leave of the Appeal Court. The only exception is where issue of jurisdiction is involved, then it can be raised on appeal even though leave has not been obtained. See IBWA vs Sasegbon (2007) 16 NWLR (Pt.1059) 195; Elugbe Vs Omokhafe (2004) 18 NWLR (Pt 905) 319; M.L.G. Kwara State Vs Oyebiyi (2006) 10 NWLR (Pt 988) 520 at 333.
In the instant appeal, Ground 2 did not relate to or challenge the validity of the ruling of 8/10/04 appealed against. The complaint of the appellant as per the ruling of 8/10/04 was against the refusal of the learned trial Judge to transfer the case to another Judge for hearing since there was allegation of likelihood of bias against him. The fact that the trial Judge heard the application for transfer himself was not made an issue by the appellant at the court below. Since the appellant did not ask for leave to argue fresh issue on appeal Ground 2 should be discountenanced. Consequently, Ground 2 and issue 2 arising from it, as well as the argument canvassed in respect of same are hereby struck out.
I have also observed that respondent’s issue 2 did not arise from any of the seven grounds of appeal filed by the appellant. The issue of reassignment of the case to the learned trial Judge after vacation was not also mentioned in the ruling appealed against. It has to be noted that a respondent who did not cross-appeal or filed respondent’s notice can only formulate issues from the grounds of appeal filed by the appellant, otherwise, the issues would be discountenanced and struck out. See Nzekwu Vs Nzekwu (1989)) 2 NWLR (Pt 104) 373; Edopkolo & Co Ltd Vs Seun -Edo Wire Ltd (1989) 4 NWLR (Pt 116) 473 and Adeniran Vs Ashabi (2004) 2 NWLR (Pt 857) 405.
I agree with appellant’s counsel that issue 2 should be discountenanced. For the reason stated hereinabove I will discountenance respondent’s issue 2 as well as the arguments canvassed in respect of it and same is struck out.
Having discountenanced appellant’s issue 2 and respondent’s issue 2, what is left to be considered in this appeal are appellant’s issue 1 and respondent’s issues 1 and 3. I have examined the contents of respondent’s issues 1 and 3 as couched. Respondent just decided to proliferate it if not they could be treated as one issue just as couched by the appellant. In order to avoid repetition I will treat issues 1 and 3 together as one issue because they are similar to issue 1 formulated by the appellant.
Appellant’s issue 1 is whether having regards to the circumstances surrounding this case, it was proper for the learned trial Judge to preside or continue to preside and adjudicate over the case or refuse to transfer the matter to another Judge in view of the allegation of likelihood of bias against the Judge and apparent loss of confidence in the trial Judge by Appellant.
Grounds 1, 3, 4, 5, 6 & 7).
Appellant’s counsel contended that the ruling of the learned trial Judge delivered on the 8th October, 2004 is manifestly oppressive as against the Appellant and a glaring attempt to prevent the Appellant a fair and unbiased hearing and determination of the case against him. It was contended that the court below dismissed the motion on Notice on the ground that no averment in the Appellant’s affidavit specifically states the nature and/or the form of either the conduct or utterances that indicate bias on the part of the trial Judge. Learned counsel further contended that there was no basis for this line of reasoning and went on to enumerate some conducts of the learned trial Judge. See page 4 of the Appellant’s brief of argument. The learned trial Judge ought to have disqualified himself from hearing or further hearing the case and should have returned the file to the Judge originally handling the case or allow the case to be taken before any of the other Judges of the Federal High Court.
It was further contended that the learned trial Judge failed to balance the requirements of fair hearing with the requirements of hearing to be within a reasonable time. See Salu Vs Ejesson (1994) 6 NWLR (Pt 348) 22 at 40. It is settled law that Justice must only be done but manifestly and undoubtedly be seen to have been done. See Kwajaffa Vs Bank of the North (2004) 5 SC (Pt 103) 134 per Pats Acholonu JSC.
In a further argument appellant’s counsel submitted that appellant was not given adequate time and facilities for the preparation of defence contrary to section 36 (1) & (6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 as appellant prayed for 2 weeks and he was given 2 days adjournment. Appellant’s counsel relied on the case of Udo Vs The State (1988) 3 NWLR 316 where the Supreme Court held that a trial Judge must, grant an adjournment iii a murder charge once the defence counsel is absent; at the hearing for the right of the accused to fair hearing is not only statutory but constitutional. Learned counsel contended that the trial Judge ought to have adjourned the case to await the Chief Judges directive instead of proceeding with the hearing despite the fact that appellant’s counsel Adebayo Onifade esq on 6/9/04 told court that appellant lost confidence in him.
It was further submitted that the impression of a reasonable man watching the conduct of the proceeding of the learned trial Judge is that the court had made up its mind on the case against the Appellant even before hearing him as the trial Judge took up the role of a Judge and a prosecutor at the same time. According to counsel there was real likelihood of bias on the part of the learned trial Judge. See Metropolitan Properties Coo (FGC) Ltd Vs Lannon (1969) 1 QB 577 at 599 per Lord Denning M. R and Okoduwa Vs The State (1988) 3 NWLR (Pt 77) 333.
It is submitted further that when the learned trial Judge delivered his ruling, instead of adjourning the matter to enable appellant either decide on whether to appeal against the decision or file a counter-affidavit/defence to the Respondent’s Extradition application the learned trial Judge called on the Respondent to argue his application for Extradition of the appellant. That foreclosed appellant’s constitutional right of appeal and/or right of defence. He said a citizen should not be denied the right of appeal conferred by the constitution. A matter coming up for ruling cannot properly be treated as coming up for hearing. See F.B.N. Vs Ejikeme (1996) 7 NWLR (Pt 462) 618 and Okereke Vs NDIC (2002) FWLR (Pt 100) 1392, at 1398. Learned counsel further submitted that the respondent did not file counter-affidavit to the affidavit in support of the motion seeking for transfer which is the subject of this appeal as such the averments being unchallenged are taken as correct and needing no further proof. The test is one of likelihood of bias and not actual bias need to be proved.
Respondent’s counsel on the other hand submitted that the learned trial Judge was right in refusing the transfer of the case to another Judge as he had no power to do otherwise. Learned counsel contended that the power to assign or withdraw a case from a particular court is vested in the Chief Judge. See S.G.B (Nig) Ltd Vs Aina (1999) 9 NWLR (Pt 497) 293 at 311 to 312 paras G-H and Apavex Int. Co. Ltd Vs Ibwa (1994) 5 NWLR (Pt.347) 686 at 696 paras G-H. Where there is no bias, prejudice or likelihood of the same, whether express or implied is apparent from the facts of the case, there can be no basis for an order of transfer of a case to another Judge for trial.
It was further contended that appellant’s counsel never wanted the Respondent to move his application for the appellant’s extradition that was why he brought frivolous applications for adjournments. The trial court only frowned at the delay tactics employed by the appellant to frustrate timely prosecution of the case and hence delay the course of Justice in the matter. See Omega Bank (Nig) Plc Vs OBC Ltd (2002) 16 NWLR (Pt 794) 483 at 519 paras B-C and Okpoko Vs Uko (1997) 11 NWLR (Pt 527) 94.
Learned counsel contended that appellant was accorded every opportunity of presenting his case but he chose to throw it away himself by staying at home and requesting for unwarranted adjournments even when he was not the only counsel appearing in the matter. Counsel contended that it is trite that matters of adjournment are discretionary, thus, a court has a discretion to grant or refuse applications for unwarranted adjournments. Such adjournments are to be discouraged by the court itself or at worst reduced to the barest minimum, as most adjournments are designed to delay and defeat the course of Justice and usually lead to miscarriage of Justice. See Akpan Vs The State (1991) 3 NWLR (Pt 182) 646 at 661 and 662 para A where Supreme Court held that adjournments that have the above tendencies should be discouraged by the court. See also Saipen SPA VS Tefa (2002) 16 NWLR (Pt 793) 410 at 431 paras D-F and University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) 143.
In a further submission, respondent’s counsel contended that an application to the Chief Judge for a transfer of a case cannot act as a stay without the actual directive of the Chief Judge being obtained to that effect. To ask for adjournment because an application has been made to the Chief Judge without more, must especially an application made on a day the matter was slated for hearing, shows clearly the inordinate delay tactics employed by the appellant in the matter. It was contended that the trial Judge was right in holding that appellant did not employ due diligence in the defence of his case.
Furthermore, it was submitted on behalf of the respondent that an allegation of bias or likelihood of bias against a trial court is a very serious matter as it can be a disqualifying factor of such a Judge in the matter. Consequently, an appellate court faced with such an allegation must look for a strong and cogent evi4ence or proof of such an allegation before accepting or sanctioning it. See MFA Vs Inongha (2005) 7 NWLR (Pt 923) 1 at 25-26 Paras G-A and Apavex Int Co Ltd Vs IBWA (1994) 5 NWLR (Pt.347-8) 685 at 701 Paras F; Adeniran Vs Ashabi (2004) 2 NWLR (Pt 857) 375 at 392 Paras D-G.
On relevant consideration for determining existence of real likelihood of bias respondent’s counsel referred to the Supreme Court decision in Abiola Vs Federal Republic of Nigeria (1995) 7 NWLR (Pt 405) 1 at 14 paras D-E. What the court looks at is the impression of right minded people. If reasonable people would think that, in the circumstances of the case, there was a real likelihood of bias, then the decision cannot stand, the basis of this is that Justice must be rooted in confidence and confidence is destroyed when right minded people go away with the impression that the Judge was biased. See Comm. For Local Government etc Vs Ezemuokwe (1991) 3 NWLR (Pt 181) 615.
It was contended that the appellant’s allegation against the trial Judge in the present appeal is not just unfounded but unfair, mischievous and calculated attempt to delay the course of Justice in the extradition of the appellant. See Ajibola Vs Popoola (1997) 4 NWLR (Pt 498) 206 at 214 Paras A-B. Learned counsel further contended that the Judge in this case did not express any hostile opinion against the appellant and neither has he indicated partisanship in the matter. There must be real likelihood of bias, surmise or conjecture is not enough. See Apex Court decision in Onigbede Vs Balogun (2002) 6 NWLR (Pt 762) 1 at 22-23 Para C-A. It was further submitted that none of the situations mentioned in the case of PDP Vs KSIEC (2005) 15 NWLR (Pt 948) 230 at 255 Paras G and Udo Vs CSNC (2001) (Pt 732) 116 at 150 Paras G applies to the circumstances in the case at hand.
It was submitted further that appellant was not denied any right of appeal as enshrined in S.241 of the 1999 Constitution. Appellant was not only allowed the right to appeal but the proceedings were stopped to enable him prosecute the appeal. There was no defence filed in form of counter-affidavit filed so the court was right to go on. See Ogbanu Vs Oti (2002) 8 NWLR (Pt 670) 582 at 591.
Learned counsel further contended that appellant’s failure to establish allegation of bias or likelihood of bias is fatal to his case. See Section 136 Evidence Act and Omega Bank (Nig) Plc Vs O.B.C. Ltd (2002) 16 NWLR (Pt 794) 483 at 518 Paras E-G.
Learned counsel “submitted further that the right to fair hearing is a right that cannot be denied a litigant. However, the principle of fair hearing does not accommodate the notion that a litigant should take inordinate time to prosecute his case. In the instant case appellant was given sufficient time but he failed to prosecute his case. See Saipem S.P.A. Vs Tefa (2002) 16 NWLR (Pt 793) 410 at 430 Paras F-G.
Finally, learned counsel contended that there was no basis for an order of transfer, as there was no proof of bias or likelihood of bias either express or implied and urged the court to dismiss the appeal. See Ompadec Vs Incar (Nig) Ltd (2001) 7 NWLR (Pt 712) 327 at 336 Para D.
Furthermore, she contended that the court of appeal in the case of Edosomwan Vs Erebor (2001) 13 NWLR (Pt 730) 265 reiterated the need for counsel to refrain from levying unfounded allegations on Judges.
In the reply brief appellant’s counsel maintained that not only was Appellant’s confidence that Justice would be done to him destroyed, right minded people watching the proceedings would have gone away with the impression that the Judge was biased. See Commissioner for Local Government etc Vs Ezemuokwe (1991) 3 NWLR (Pt 181) 615. Learned counsel further submitted that there can be no exhaustive list as to what constitutes “personal interest” in a case. Counsel contended that rushing to hear or take the respondent’s application for extradition of the Appellant on a day the matter was only coming up for ruling also goes to buttress their submission that there was bias or likelihood of bias on the part of the trial Judge. See F.B.N Vs Ejikeme (supra). Finally, learned counsel urged the court to allow the appeal.
In resolving issue 1, the question I will pose is whether, it was proper for the learned trial Judge to refuse the transfer of the matter when there was allegation of likelihood of bias against him.
The word “bias” was defined in Black’s Law Dictionary (5th Edition) as an inclination, bent, a preconceived opinion or predisposition to decide a cause or an issue in a certain way which does not leave the mind perfectly open to conviction.
The apex court held in Kenon Vs Tekan (2001) 14 NWLR (Pt. 732) 12 at 41-42 paras H – A, that bias, in its ordinary meaning is opinion or feeling infavour of one side in a dispute on argument resulting in the likelihood that the court so influenced will be unable to hold on even scale.
In deciding whether a tribunal is partial and therefore disqualified from presiding over an enquiry, the court will not enquire whether the tribunal did, infact, favour one side unfairly. The court looks at the impression of right minded people. If reasonable people would think that, in the circumstances of the case, there was a real likelihood of bias, then the decision cannot stand, the basis of this is that Justice must be rooted in confidence and confidence is destroyed when right -minded people go away with the impression that “the Judge was biased”. See Comm of Local Government etc Vs Ezemuokwe supra; Onigbede Vs Balogun supra and Awosika Vs Igbeke (1999) 8 NWLR (Pt 616) 656 at 695.
Furthermore, the Supreme Court in Abiola vs Federal Republic of Nigeria (1995) 7 NWLR (Pt 405) 1 at 14 paras D-E state, inter alia, on relevant consideration in determining existence of real likelihood of bias thus:-
“The principle that a Judge must be impartial is acceptable in the jurisprudence of any civilized country and there are no grounds for holding that the law of Nigeria differs in this respect. Thus to disqualify a person from acting in a Judicial or quasi Judicial capacity upon the ground of interest (other than pecuniary or propriety) in the subject-matter of the proceedings, a real likelihood of bias must be made to appear not only from the material ascertained by the party complaining but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries”. See also Apavex Int Co Ltd Vs IBWA Supra.
In the instant appeal the grounds for the allegation of likelihood of bias averred in paragraphs 4(a) – (c) of the affidavit in support of the motion on notice was reproduced and relied upon by the learned trial Judge in his ruling delivered on 8/10/04 the subject of this appeal (see page 108 of the record). Paragraph 4(a) – (c) of the supporting affidavit read as follows:-
“(a) Hon. Justice Shuaibu has made several open remarks about the Accused/Applicant which frightened and robbed the accused/Applicant’s confidence in the independence and impartiality of his court.
(b) The overall conduct of Hon. Justice Shuaibu with regard to this case leading to the withdrawal of Adebayo Onifade & Co. (of Counsel previously representing the Accused/Applicant) clearly indicates that His Lordship has an interest in the matter raising reasonable fear of likelihood of bias. Attached hereto and marked as Exhibit “FA1 and FA2 are application for transfer of this suit lodged With the Honourable Chief Judge dated Friday September 3rd, 2004, by Adebayo Onifade & Co. (of Counsel previously representing the Accused/Applicant and medical extract made by D. Sibudu of the Federal High Court clinic, who resuscitated the Accused/Applicant following his collapse from shock received from His Lordship utterances and pronouncement on the 20th August, 2004 respectively.
(c) Notwithstanding the above, Hon. Justice Shuaibu has insisted on trying the matter at all cost despite objection of the Applicant and his solicitors.”
The learned trial Judge after considering the grounds referred to supra, refused the application on the ground that there was absence of apparent bias or likelihood of same from the facts of this case.
In order to appreciate the complaint of the appellant, I find it necessary to briefly state the facts as appearing in the record of proceedings from 17/8/04 to 8/10/04 when the ruling subject matter of this appeal was delivered. On 17/8/04 the application for extradition was mentioned and it was adjourned to 20/8/04 for hearing at the instance of appellant’s counsel Mr. Onifade. On 20/8(94 appellant slumped in court so the matter was further adjourned to 31/8/04. On 31/8/04 one Mr. S.M.O. Mohammed asked for a stand down of the case to enable him reach the leading Counsel Onifade esq. The matter was stood down till 12.00 noon. When the court resumed sitting at 12 noon, Mr. Mohammed sought for adjournment because leading counsel Onifade esq was not in court. Respondent’s counsel objected and urged the court to strike out the preliminary objection filed by appellant which was fixed for hearing that day. Mr. Mohammed failed to argue the notice of Preliminary objection. Consequently, it was struck out by the court, the trial Judge remarked that in absence of cogent and convincing reason advanced for the adjournment same cannot be granted as adjournment could not be granted as a matter of course. The court, however, adjourned the hearing of the main application to 1/9/04 since the date was fixed for hearing of the notice of preliminary objection. On 1/9/04 Onifade esq filed a motion on notice and notice of preliminary objection. The motion on notice was heard that date and ruling delivered same date. Other motions were fixed against 6/9/04 for hearing. On 6/9/04, Onifade sq intimated the court that he applied to the Chief Judge for the transfer of the case to another court. He applied for adjournment to await the directive of the Chief Judge. The reason for the adjournment was not accepted by the trial Judge. At this stage Appellant’s counsel Onifafe esq applied to withdraw his appearance from the matter. The court granted the prayer. The pending notice of preliminary objection was struck out on the application of counsel to the applicant now respondent. The court adjourned the matter to 20/9/04 to enable appellant engage services of a new counsel. On 20/9/04 the matter was adjourned at instance of counsel to the applicant now respondent because defendant now appellant was not represented. On the next adjourned date being 23/9/04 one Femi Atoyebi SAN appeared with Femi Akande esq for the defendant now appellant. Atoyebi SAN still maintained that the case be transferred to another court because he could not get Justice. He opted to await the Chief Judge’s formal response to the application. The court further adjourned the application to 5/10/04 due to the absence of applicant’s counsel. But the trial Judge declined to adjourn or stay proceedings to await the Chief Judge’s directives. On 5/10/04, defendant now appellant was in court but his counsel was absent. There was a letter from defence counsel seeking for adjournment which was served on applicant’s counsel. Incidentally the letter was not served on the court but since applicant’s counsel did not oppose the application the learned trial Judge adjourned the matter at the instance of the defence counsel to 7/10/04 with an order that fresh hearing notice to issue on the defendant’s counsel. On 7/10/04 appellant filed a motion on notice seeking for the transfer of this matter to another court which is the subject of this appeal. One Akande appeared in court and moved the motion. Although counsel to the applicant Mrs. Ironumbe was not served with the motion, she did not object to the hearing of the application. On 8/10/04 the trial Judge delivered a considered ruling which appellant appealed against same.
From the above stated facts can the appellant’s complaint of breach of fair hearing be sustained? What is required under the principle or concept of fair hearing is an ambidextrous standard of Justice in which the court must or must be seen to be fair equally to both sides of the conflict or dispute. See Amadi Vs Thomas Aplin & Co (1972) 4 SC 428 and Mohammed Vs Olawunmi (1990) 2 NWLR (Pt 133) 458 at 485. Thus the principle of fair hearing as codified and entrenched in Section 36 of the 1999 constitution requires the court to decide a case on the evidence of or after hearing, both parties to the dispute. This rule of fair hearing has been described by our apex court as not a technical doctrine but one of substance and the test or question applied to it is not whether in Justice has been done or not from the judgment in question but whether a party entitled to be heard before deciding on his right was in fact given the opportunity of hearing. Kotoye Vs C.B.N. (1989) 1 NWLR (Pt 98) 419 at 448.
Bearing in mind the above principles what is required to be applied to the facts and circumstances of the present case is the true test of fair hearing which is the objective impression of a reasonable person who was present at the trial and his view on whether from his observation Justice has been done in the case. See Whyte Vs Police (1966) NWLR 215 at 219 and Ekiyor Vs Bonor (1977) 9 NWLR (Pt 579) 1 at 11-15. On the question of whether or not appellant was accorded fair hearing, it is my humble view, that a reasonable man who was hypothetically present in the proceedings before the Lower court will opine that the said court or trial Judge afforded the appellant ample opportunity to present his defence. The proceedings of 8/10/04 clearly shows that after the application for extradition was taken appellant’s counsel was granted adjournment to another date to present his reply. The learned trial Judge did not compel appellant’s counsel to present his reply on 8/10/04. It is worthy of note that from 17/8/04 when the matter was first mentioned to 8/10/04 when the application was argued appellant did not file any counter-affidavit. It is apparent that appellant made no effort to file the counter-affidavit within the period mentioned, so he cannot be heard to say that he was not given adequate time to prepare his defence. Both parties in my humble view were treated fairly. Appellant’s argument that he was denied opportunity to present his defence cannot hold water.
Appellant also complained about the conduct of the proceedings of 31/8/04. It is evident from the brief summary of what transpired in court on 31/8/04 that the learned trial Judge granted adjournment in respect of the main application for extradition. It was only the application for adjournment in respect of the notice of preliminary objection that was refused, which in my humble view was in order because the reason given by Mr. Mohammed the counsel who appeared on behalf of the appellant was unacceptable. Mr. Mohammed did informed the court that himself and Onifade esq were handling the case together. As rightly submitted by respondent’s counsel Mr. Mohammed could conveniently move the notice of preliminary objection without having to wait for Onifade esq. Adjournments which are designed to delay the proceedings should not be allowed by the court. See Akpan Vs State (1991) 3 NWLR (Pt 182) 646 at 661 Paras 4 and 662 Para A.
Furthermore, it could be observed from the entire proceedings of the trial court that on all the occasions in which the trial Judge refused adjournment requested by the appellant, he gave sound reasoning which cannot be faulted. A court has the discretion to decide whether or not to grant an adjournment of its proceedings. In exercising such discretion, the court shall not only give the applicant the opportunity of obtaining substantial Justice by hearing or granting him fair hearing but shall also ensure that no in Justice is thereby caused to the other party. See Saipem S.P.A. Vs Tefa supra . Where trial court exercises its discretion bonafide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, an appellate court will not interfere with the exercise of that discretion. See Udensi Vs Odusote (2003) 6 NWLR (Pt 817) 547.
Appellant alleged that the trial Judge made several open remarks about him which frightened and robbed his confidence in the independence and impartiality of the trial court. Appellant referred particularly to the proceedings of 20/8/04. For purposes of clarity I will reproduce same hereunder. The record of proceedings of 20-/8/04 are as follows:-
” Defendant in court.
J. I. Pius Lorunmbe: Applicant
A.B. Onifade: Defendant (with S.M.O. Molid Defendant)
Mrs. Pius Lorumbe: The matter is for hearing of our application and I received a process this morning from the defendant that is a notice of preliminary objection of the application. I do not intend to file anything and we are ready to serve (sic) for the unfortunate incident to the defendant who slumped in court and now on admission at the Federal High Court Clinic. I will now concede for an adjournment.
Mr. Onifade: That is the position.
Court: The matter is adjourned to 31/8/2004 for hearing at 11.00 a.m.”
I have examined the above proceedings of 20/8/04. I find it difficult to appreciate the complaint of the appellant. The learned trial Judge adjourned the hearing because appellant slumped in court and was taken to Federal High Court Clinic for treatment. The proceedings speaks for itself. I agree with the submission of respondent’s counsel that appellant did not state the nature of the utterances of the trial Judge indicating bias. Appellant ought to have deposed in the affidavit in support the alleged remarks or utterances made by the trial Judge on 20/8/04. This court cannot work on assumption. It is the duty of the appellant to place sufficient materials before the court to substantiate his allegation. I therefore hold that appellant’s complaint as regards the trail Judges remarks or utterances is not tenable.
It is also worthy of note that the power to assign or withdraw a case from a particular court is vested in the Chief Judge. See Order 35 Rule (2) and (3) of the Federal High Court (Civil Procedure) Rules 2000 and S.G.B. (Nig) Ltd Vs Aina (1999) 9 NWLR (Pt 619) 414 at 426 Paras G-H. In S.G.B. (Nig) Ltd Vs Aina supra the Court of Appeal held that it is within the administrative power of the Chief Judge to assign cases to courts and he could in the exercise of this power withdraw a case from a court to which he has earlier assigned it and place it in another court not necessary in the same Judicial division. See also Apavex Int. Co. Ltd v. IBWA (1994) 5 NWLR (Pt 347) 685 at 696 Paras G-H. In the instant case it was the Chief Judge that assigned the case to Shuaibu J. for hearing and determination. After the appellant petitioned the Chief Judge that the matter be removed from his court to another court, the Hon. Chief Judge did not sanction the request. Shuaibu J. was directed to continue with the case despite the allegation of likelihood of bias on his part raised by appellant in his petition. Had it been the Chief Judge found substance in the allegation as stated in the Petition attached to the motion for transfer as Exhibit ‘FA1’ (see page 96 of the record), the matter would not have been returned to Shuaibu J. for continuation. Under the circumstances, the trial Judge had no power to transfer the case to another Judge.
Having examined the entire proceedings of the trial court reproduced supra, the question is, can it be said that appellant has established the allegation of bias or likelihood of bias on the part of the trial Judge. In other words can right-minded people go away with the impression that “the Judge was biased.” Without much ado, it is my humble view that no reasonable person in all the circumstances might suppose that there was an improper interference with the course of Justice. An allegation of bias or likelihood of bias on the part of a Judge is a very serious matter and as it is a disqualifying factor, it should not betaken lightly but seriously. As rightly submitted by respondent’s counsel, there must be real likelihood of bias, surmise or conjecture is not enough. See Onigbede vs balogun Supra. In Omega Bank (Nig) Plc Vs O.B.C. Ltd (2002) 76 NWLR (Pt 784) 483 at 518 Paras E-G the Court of Appeal had this to say:-
“Proof of allegation of bias or likelihood of bias on the part of Judge entails a description of the issue before the court and must therefore be supported by clear, direct, positive, substantial, unequivocal, real and solid evidence. It is not enough that a party alleging it is suspicious and not at ease with the ruling of the Court.”
The fact that the trial Judge refused application for adjournment on some occasions is not enough proof of allegation of likelihood of bias on his part. Where a party or his counsel orchestrates a plan designed to foist a situation of helplessness or naivety upon a court, it is the duty of the court to assert its control over the proceedings before it. See Fagbule vs Rodrigues (2002) 2 NWLR (Pt 765) 188 at 207. The contention of appellant’s counsel that the depositions in their supporting affidavit should be accepted as correct and require no further proof since respondent did not file counter-affidavit to the motion for transfer is not tenable. The statement of the law that there is a presumption that unchallenged and uncontroverted averments are deemed admitted do not hold in all situations. Where averments in affidavit in support of an application are contradictory or if taken together are not sufficient to sustain the applicant’s prayers a counter-affidavit in challenge of such averments would manifestly become unnecessary. See Ejefor vs Okeke (2000) 7 NWLR (Pt 665) 363 at 369. In other words every case must be treated according to its given set of facts and circumstances. In the instant case, by the nature of the allegation the burden is on the appellant to substantiate the allegation of likelihood of bias on the part of the trial Judge. The position of the law is that he who asserts, must prove the assertion by cogent and credible evidence. See sections 135 – 137 Evidence Act 1990. I am of the humble view that the appellant has failed to discharge the burden placed on him by law. I hold that no reasonable person in all the circumstances might suppose that there was an improper interference with the course of Justice. In the circumstances since there is, no bias, prejudice or likelihood of the same, whether express or implied is apparent from the facts of the case, there can be no basis for an order of transfer of a case to another Judge for trial. I am of therefore of the firm view that the learned trial Judge rightly refused the application to transfer the matter to another Judge.
In the final analysis, I would resolve issue 1 in favour of the respondent. Grounds 1, 3, 4, 5, 6, and 7 from which issue 1 was distilled are dismissed. I also wish to note that appellant’s issue 2 as well as Respondent’s issue 2 have already been struck out.
Consequently, the appeal fails and is dismissed. I affirm the decision of the trial Judge delivered on 8/10/04. I make no order as to cost.
Other Citations: (2007)LCN/2580(CA)
