Olalere Obadara & Ors V. The President, Ibadan West District (1964)
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BRETT, C.J.N.
The appellants have been charged in the Ibadan West District Grade B Customary Court with various offences of assault, contempt of court and conduct likely to cause a breach of the peace. Before the hearing of the charges began they obtained the leave of the High Court to apply for an order of prohibition to prohibit the customary court from further proceeding in the case, on the ground that the President of the Court, who is the respondent to this appeal, was biased against them, and a stay of proceedings in the customary court was ordered pending the determination of the proceedings In the High Court. On the 30th September, the High Court gave judgement refusing the application. On the 5th October, notice of appeal was given and a motion was brought in the High Court asking for a further stay pending the determination of the appeal. This motion was withdrawn and struck out, but the appellants allege in an affidavit that the respondent was present in the High Court when the motion came up, and that before they withdrew it the Judge had advised them to apply to the customary court for an adjournment and said that he expected that in the interest of justice it would be granted. However that may be, the hearing of the charges was started in the customary court on Friday, 9th October, and was continued on Saturday, 10th. It had not been concluded before Monday, 12th, when this Court granted a stay pending the determination of the appeal.
Four grounds of appeal have been filed, of which the first alleges a misdirection as to the nature and burden of proof required in an application of this nature and the others deal with questions of fact or of mixed law and fact. The appellants have also applied for leave to adduce evidence as to the proceedings in the High Court on the 5th October and in the customary court on the 9th and 10th October, as further proof of the bias of the respondent.
The respondent has raised a preliminary objection to the hearing of the appeal, on the ground that it is an appeal in criminal proceedings and as such does not lie without the leave of the High Court or of this Court except on a point of law, Counsel for the respondent said, however, that he would not oppose the grant of leave to appeal, and without giving an immediate ruling on the objection the Court granted leave to appeal and an extension of time to apply for it, in case it should hold that these were required, and the appeal was argued on the merits. It remains necessary, however, to decide whether this is an appeal in civil or in criminal proceedings, since although Part 3 of the Supreme Court Act, 1960, prescribes the powers of this Court in any civil appeal, no express provision is made for the powers of the Court in a criminal appeal where no person has been convicted or acquitted, and If the proceedings are held to be criminal the question will arise what powers, if any, are conferred by necessary implication by the Constitution of the Federation.
The cases in which appeals lie to this Court are set out in section 117 of the Constitution, and the matter turns on the correct construction of that section. Subsection (1) confers jurisdiction on this Court to hear and determine appeals from the High Courts. Subsection (2) sets out the cases In which an appeal shall lie as of right, and subsection (4) the cases in which an appeal shall lie with leave. Subsection (6) prescribes the persons by whom a right of appeal shall be exercisable. These subsections read as follows:
(1) ‘The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the High Court of a territory.
(2) An appeal shall lie from decisions of the High Court of a territory to the Supreme Court as of right in the following cases:
(a) final decisions in any civil proceedings before the High Court sating at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any criminal proceedings before the High Court sitting at first instance; (c) decisions in any civil or criminal proceedings on questions as to the Interpretation of this Constitution or the constitution of a Region;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter III of this Constitution has been contravened in relation to any person;
(e) decisions in any criminal proceedings in which any person has been sentenced to death by the High Court or in which the High Court has affirmed a sentence of death imposed by some other court; and
(f) such other cases as may be prescribed by any law in force in the territory: Provided that nothing in paragraph (a) of this subsection shall confer any right of appeal:
(i) from any order made ex parts;
(ii) from any order relating only to costs;
(iii) from any order made with the consent of the parties or
(N) In the case of a party to proceedings for dissolution or nullity of marriage who, having had time and opportunity to appeal from any decree nisi in such proceedings, has not so appealed, from any decree absolute founded upon such a decree nisi.”
“(4)Subject to the provisions of subsections (2) and (3) of this section, an appeal shall lie from decisions of the High Court of a territory to the Supreme Court with the leave of the High Court or the Supreme Court in the following cases:
(a) where the ground of appeal involves questions of fact, mixed law and fact or quantum of sentence, decisions in any criminal proceedings before the High Court sitting at first instance;
(b) any case in which, but for the terms of the proviso to subsection (2) of this section, an appeal would lie as of right to the Supreme Court by virtue of paragraph (a) of that sub- section;
(c) decisions in any civil or criminal proceedings in which an appeal has been brought to the High Court from some other court; and
(d) such other cases as may be prescribed by any law in force in the territory.”
“(6)Any right of appeal to the Supreme Court from the decisions of the High Court of a territory conferred by this section:
(a) shall be exercisable in the case of civil proceedings at the instance of a party thereto or, with the leave of the High Court or the Supreme Court at the Instance of any other person having an Interest In the matter and in the case of criminal proceedings at the Instance of an accused person or, subject to the provisions of section 104 of this Constitution and any powers conferred by the constitution of a Region to take over and continue or to discontinue such proceedings, at the instance of such other persons or authorities as may be prescribed by any law in force in the territory; and
(b) shall be exercised in accordance with any Acts of Parliament and rules of court for the time being in force in the territory regulating the powers, practice and procedure of the Supreme Court.”
Of the subsections of which the text has not been quoted, subsection (3) deals with appeals in election petitions and the like, subsection (5) is procedural and subsection (7) contains a definition of “decision”, which is of no assistance in the present case.
The respondent relies on the fact that in England it has been held in a series of judgements that a judgement of the High Court given on an application for a writ or order of prohibition to preclude an inferior court from proceeding with a trial for a criminal offence is a “judgement in a criminal cause or matter”, for the purpose of section 47 of the Supreme Court of Judicature Act, 1873 (now section 31 (1) (a) of the Supreme Court of Judicature (Consolidation) Act, 1925, which provides that no appeal shall lie to the Court of Appeal from any judgement of the High Court in any criminal cause or matter. A “decision in criminal proceedings” is not necessarily synonymous with a “Judgement in a criminal cause or matter’ and we do not consider that the correct way of interpreting section 117 of the Constitution of the Federation is to look to decisions on the meaning of an English statute with different wording. Having regard to the origin of the Nigerian legal system and statute- book, decisions on English statutes will naturally carry very great weight where the wording is identical, but, to adapt what was said by Lord Herschell in the House of Lords in Bank of England v. Vagliano [18911 A.C. 107, in relation to a statute which Is declaratory of the common law, the proper course in construing the Constitution is in the first instance to examine the meaning of the statute, and to ask what is its natural meaning, uninfluenced by any considerations derived from the law of England, and not to start with inquiring how the law of England stands, and then assuming that it was probably intended to adopt it unaltered.
The relevant subsections of section 117 of the Constitution have been quoted. For the purpose of deciding the cases in which an appeal lies, subsections (2) and (4) have regard to the nature of the proceedings in the High Court, and classify them as civil or criminal, at first instance or on appeal. The proceedings in the High Court in this case were not an appeal from the customary court, but sought to prevent that court from trying the applicants. They were before the High Court sitting at first instance and the question to decide is whether they were civil or criminal. Even if these subsections stood alone it is by no means self-evident to one approaching them with an open mind that proceedings for an order to prohibit an inferior court from dealing with any matter vary in their own nature according to the nature of the proceedings which it is sought to prohibit. But they do not stand alone, and subsection (6) (a) makes it clear that for the purpose of section 117 criminal proceedings are proceedings in which there is an accused person. The appellants in the present case are accused persons in the proceedings before the customary court, but it would be an abuse of language to say that they were accused persons in the proceedings in the High Court. In our view the meaning of the section when read as a whole is plain, and the Court would be acting on wrong principles of construction If it were to introduce a limitation on the rights conferred by the section because of decisions on the meaning of a section of an English statute which not only uses different wording from that of the section which the Court is now construing, but was designed for quite a different purpose: whereas the Supreme Court of Nigeria has appellate jurisdiction both in civil and criminal proceedings the Court of Appeal in England has not, and as Lad Esher, M.R. said in Ex p. Woodhalf (1888) 20 Q.B.D. 835, the intention of the English section was that no appeal to the Court of Appeal should lie in any “criminal cause or matter” in the widest sense of the term, the Court of Appeal being constituted for the purpose of hearing appeals in civil causes or matters. We are therefore satisfied that the proceedings in the High Court were civil proceedings for the purpose of section 117 of the Constitution, and that this appeal lies as of right.
We now turn to the facts of the case. The appellants relied primarily on an affidavit sworn to by Chief A. M. F. Agbaje, of counsel, and their case was
(a) that the first appellant and the respondent belong to different political parties;
(b) that the respondent manifested an intention to proceed with the trial without allowing the appellants sufficient time and opportunity to prepare their defence;
(c) that the respondent showed bad faith over the grant of bail by first fixing it in an excessive sum and later refusing it without assigning reasons, after he had been to a place where several members of his political party were.
These allegations were denied and seven counter- affidavits were filed; in the High Court the first appellant and two other persons gave oral evidence in support of the application and the respondent and two of the other persons who had sworn to counter-affidavits were cross-examined on their affidavits. Chief A. M. F. Agbaje, who appeared in the High Court as counsel for the appellants, was not cross-examined on his affidavit.
We would here interpolate a comment on the undesirability of counsel’s appearing in a professional capacity in a case in which he is a material witness. The principles underlying the rule of practice in this matter are considered by Holden J., in Horn v. Rickard 1963 N. N.LR. 67 and we agree with the passage in his judgement in which he states the rule as follows:
“There would be little harm in counsel swearing an affidavit setting out formal facts required to be established to support a purely formal ex parte application where there is no possibility of those facts being disputed, but even in such a case there would be little need for counsel himself to swear the affidavit as some member of his staff could easily depose to the same facts as a matter of Information and belief (due heed being paid to section 87 and section 88 of the Evidence Ordinance). If on the other hand counsel finds himself in the position where he is the only person with the knowledge necessary to swear the affidavit, and where the facts to which he is to swear are likely to be in dispute, then he should for the purposes of that application withdraw from the case and brief other counsel.”
We were glad to observe that on the argument of this appeal Chief Agbaje accepted a hint given when this Court granted a stay, and did not appear as counsel.
Returning to the facts of this case, when the evidence and addresses were completed the Judge delivered a short ruling refusing the application. He did not examine the evidence in detail or state what facts he found proved, though he had previously held that one of the witnesses for the respondent had perjured himself. In a matter where so much turns on the credibility of the witnesses this Court is not in a position to come to its own conclusion without knowing what view the trial Judge held, and the case must go back for retrial before another Judge. We hope that he will set out his findings of primary fact where there is a conflict of evidence before drawing his conclusions of fact and applying the law to the facts.
It remains to express our view as to the Judge’s comments on the nature of the evidence required to sustain an application of this kind. The Judge began by saying that there was “a great and well established presumption that all courts will do justice.” He went on:
“Now, it does seem to me imperative that to displace the presumption that a Court of law would dispense justice or that a fair trial would be got, there must be very very strong proof. To come to a conclusion that a Court would not do justice, one had to be persuaded by strong compelling and irresistible proof, otherwise it is obvious that the whole foundation upon which the administration of justice is based would be destroyed.”
The principle that a Judge must be impartial is accepted in the jurisprudence of any civilised country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow English decisions. The English decisions were reviewed by the Divisional Court in Regina v. Camborne Justices [1955] 1 O.B. 41, and we would adopt the following passage from page 51 of the judgement as setting out the law to be applied in Nigeria:
“in the judgment of this court the right test is that prescribed 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.”
The following order is made:
The judgment of the High Court of Western Nigeria in Suit No. M/30/64 Olalere Obadara and others versus The President, Ibadan West Grade B Customary Court, Is set aside and it is ordered that the suit be reheard de novo before another Judge of the High Court;
And that the parties be at liberty at the rehearing to adduce evidence as to events which have taken place subsequently to the original hearing, such evidence to be first set forth in affidavits filed and delivered in advance.
And that the appellants be awarded costs of the appeal assessed at sixty-guineas;
And that the costs of the original hearing do abide the result of the retrial. And that the proceedings in the Ibadan West District Grade B Customary Court in case No. C26/64 be stayed pending the determination of the aforesaid suit in the High Court.
Appeal allowed:
Suit be reheard de novo.
Other Citation: (1964) LCN/0409(SC)
