Tasie Nwokanma V. Okachi Azuokwu & Anor (2000)
LawGlobal-Hub Lead Judgment Report
IKONGBEH, J.C.A.
This is an appeal against the ruling of the High Court, Isiokpo, Rivers State, wherein the court by an order of certiorari quashed the decision of the Isiokpo Customary Court given in favour of the appellant herein (as 2nd plaintiff) and his co-plaintiff representing the Nsirim family. That judgment resulted from an action instituted by the plaintiffs against the 1st respondent herein as the sole defendant representing the Azuokwu Umuisioha family. The plaintiffs claimed general damages for trespass to a parcel of land. After a full hearing, during which it heard four witnesses for the plaintiffs and five for the defendant, the court visited the land. At the locus in quo it heard more witnesses summoned by it. In its judgment it ruled in favour of the plaintiffs in part.
The defendant was dissatisfied with the judgment. His legal advisers believed that, because no Customary Court of Appeal existed in the State at the time, the only way out was to approach the High Court for a judicial review. Thus after obtaining leave ex-parte from the lower court, they applied for an order of certiorari to quash the judgment. Initially, the matter was against the Customary Court alone. On the application of the appellant, however, he was joined as the co-respondent, with the Customary Court standing as respondent. This party, however, took no part at all in the proceedings in the court below or before us.
Accompanying the application were an affidavit and a statement. The 1st respondent, as applicant, in the court below later amended the statement with leave of the court. The amended statement specified the following three grounds in support of the reliefs sought:
“1. The Isiokpo Customary Court has no jurisdiction to determine suit No. ICC/33/88 because the subject matter of the suit is land in an urban area.
2. The chairman and members of the Isiokpo Customary Court were biased in their judgment of suit No. ICC/33/88 and thereby failed to consider necessary evidence for the just determination of the suit.
3. As at the time of the judgment in suit No. ICC/33/88 there was no Customary Court of Appeal that the applicant can appeal against the said judgment”.
After hearing counsel for the parties that appeared before him the learned Judge, F.K.C. Peter-Amain J., delivered his ruling on 3/2/94, refusing the application on ground 1 but granting it on ground 2. After citing a number of cases relating to bias on the part of a tribunal, the learned Judge concluded at page 91 of the record:
“Applying this (i.e. the principle in the authorities cited) to the instant application. I will ask whether there are circumstances for any right thinking person to infer that there is a likelihood of bias. From the record of proceedings and the statement accompanying the motion and the affidavit evidence of both parties, I have no doubt in my mind that the circumstances of refusing the applicant’s witness to testify, calling a host of witnesses and exhaustively cross examining the said witnesses with influence a reasonable person to infer that there is real likelihood of bias on the part of the Customary Court judges in their conduct of this matter.
Lord Denning said in the Metropolitan case, supra,
‘Justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking, the judge was biased’.
In the total analysis I have come to the conclusion that from the circumstances of the case, I will hold that there is likelihood of bias in the Customary Court judge’s handling of this matter”. (Brackets and content supplied).
Dissatisfied with this conclusion, the co-respondent/appellant has come before us on six grounds of appeal. In compliance with the rules of this court, counsel on his behalf filed a brief of argument in which he identified only one issue for determination, which reads:
“Whether the learned judge of the court below was right to hold as he did that there is a likelihood of bias in the Customary Court judges’ handling of this matter”.
A brief of argument was also filed on behalf of the applicant/respondent. The following issue for determination was identified.
“Whether from the circumstances surrounding the trial or the suit in the Customary Court Isiokpo, the judge of the High Court Isiokpo was wrong to have, by order of certiorari, quashed the decision/judgment of the Customary Court in Suit No. ICC/33/88”.
Counsel on both sides have thus raised the same questions. I shall, therefore, go into all the points they have raised in their respective arguments, of course ignoring all the irrelevant ones, which, unfortunately, amount to quite a tidy lot.
Mr. E. A. Amadi argued in the appellant’s brief of argument that by ruling the way he did, the learned Judge granted to the respondent relief based on grounds different from the ones contained in the accompanying amended statement. Counsel referred to Order 43, Rule 6(1) of the Rivers State High Court Civil Procedure Rules. He then drew attention to the accompanying statement, which, he pointed out, contained only three grounds supporting the reliefs, the second being the only one relevant to this appeal. He contended that this ground is different from and in no way related to the grounds on which the learned Judge based his ruling. The grounds on which the Judge decided the case, he finally complained, were his own formulation.
Mr. H. D. D. Uwom answered this point by contending that the learned Judge based his decision on the same grounds as the 1st respondent set out in the amended statement accompanying his application. Counsel drew attention to the grounds stated in the statement, especially ground 2, which I set out earlier on in this judgment.
Counsel then argued that –
“The ‘And’ is disjunctive. In the main, the 1st respondent alleged that the Customary Court was biased and also that the bias made them not to consider relevant evidence. So, even if it was not proved that they failed to consider relevant evidence the parent/substantive issue/ground or bias is not affected and remains intact”.
By this submission, I understand learned counsel to be making two points. Firstly, counsel appears to have conceded that it had not been established that the Customary Court failed to consider any relevant evidence. Nowhere in the brief did counsel draw attention to the failure by the court to consider relevant evidence. Nor in my view, could he, for the judgment of the Customary Court shows that the judges considered every aspect of the evidence before them.
The second point made by counsel is in effect that merely alleging that the tribunal whose decision is complained of was biased without specifying any particular ground for the allegation is sufficient. This is a reasonable interpretation of counsel’s argument here. Saying, as counsel has done, that it does not matter if the specified ground fails amounts, in my view, to the same thing as saying that it does not matter if no ground at all was specified in the first place.
With all due respect, I cannot agree with counsel on this point. Bias is a concept that cannot exist in vacuo. One cannot allege bias against another unless something has happened to make one come to the conclusion that the other is biased. There must always be something that leads one to say that there has been bias on the part of another. This interpretation is intrinsic in the very nature and content of the word ‘bias’. 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”. (Italics mine for highlight).
That something that happened, or the thing that tends to or may be regarded as tending to convey the impression, together with the allegation, in my view, make up the ground of bias for the purpose of the requirements of Order 43, Rule 6(1) of the High Court Civil Procedure Rules regarding the content of the statement. It cannot be enough, if it is to be meaningful, to merely allege bias without at the same time alleging some circumstances from which one can infer it. It follows, in my view, therefore, that whoever alleges bias must state his reason for suspecting, or the circumstances from which he expects the court to infer bias.
From what I have said, it is my view that the 1st respondent had not raised a proper ground, as bias against the Customary Court. He has merely alleged bias in the statement accompanying his application without specifying what prompted him to make the allegation. As has been seen, counsel on his behalf conceded that the alleged circumstance that he specified, i.e. that the court did not consider all necessary evidence has not been proved to exist.
Let us suppose, however, that he had raised a proper ground for suspecting bias and that that ground, as stated in the amended statement, was that the chairman and members of the court failed to consider the relevant evidence. The question then is, and this is the substance of the appellant’s complaint here, was the learned Judge of the court below permitted in law to consider the reasons that he considered in arriving at the conclusion that there was a likelihood of bias? The reason given by the learned judge for his conclusion are clearly different from those by the 1st respondent.
As has been seen, it has been submitted on behalf of the appellant that Order 43 Rule 6(1) precludes him from doing so. I am inclined to agree with counsel here. Rule 6(1) is specific on this. It expressly provides that –
“6(1) Copies of the statement in support of an application for leave under rule 3 shall be served with the copies of the notice of motion or summons and, subject to paragraph (2), no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement”.
If a party intends to rely on a different ground or seek a different relief. Then he can take advantage of the provisions of paragraph (2), which empowers the court to grant leave to the applicant to “amend his statement whether by specifying different or additional grounds of relief or otherwise …” As has been seen, the 1st respondent took advantage of this provision and it was the amendment thus granted that brought the statement to the state that it was when the court heard the application. To further confirm that leave to amend must be specifically sought and obtained, paragraph (3) goes on to provide that the applicant who intends to amend shall give notice of his intention and of any proposed amendment to every other party. This, to my mind, put it beyond argument that the court cannot, without an amendment sought and had suo motu, depart from the grounds given in the accompanying statement and base his decision on a different ground. I have demonstrated that the ground, for the purpose of these provisions, is comprised of the allegation of bias and the reason that impelled the complainant to make the allegation.
It will, in my view, be idle to call in aid the provisions of Order 2, which save proceedings from being nullified on account of procedural mistakes. What is involved here is more serious than mere procedural matters. We are talking about the fundamental rights of the other party to a fair hearing. He is entitled to know what case he is coming to court to meet. If the applicant intends to amend his grounds or to rely on fresh or additional facts the other party is entitled to know this fact and the nature of the amendment or fresh or additional facts so that he can prepare his case.
The question now is, whether the learned Judge of the court below breached this fundamental injunction not to unduly prejudice the appellant?.
It has been seen that if the 1st respondent specified any reason at all for saying that the Judges of the Customary Court were biased, it was that they failed to consider relevant evidence. Provision for verifying affidavit is made in Order 43, Rule 3(2) (b), which requires that the application for leave to apply –
“shall be supported –
(b) by an affidavit… verifying the facts relied on”.
“The facts relied on” as used here, i.e. the facts to be verified, in my view, are such statements of fact that constitute the specified grounds. It is my view, therefore, that the facts that the 1st respondent was obliged to verify in the affidavit supporting his application were such facts as showed that the judges of the Customary Court failed to consider relevant evidence, that is, if at all that was his ground for suspecting bias.
Now, what facts did the supporting affidavit in support in fact verify?. The relevant averments are in paragraphs 3, 5, and 6, and 11, which read:
“3. That the Chairman of the Customary Court is not competent to hear and determine the case because of his relationship with the 2nd plaintiff who was his classmate in school and who was the chairman’s family friend.
5. That already the plaintiffs had been boasting and this is buttressed by the judgment he gave despite the fact that he was served a copy of the motion pending at Ahoada High Court for stay of proceedings.
6. That the chairman was acting as counsel to the plaintiff when the case was being heard.
11. That I also filed another application for stay of proceedings on ground of bias before the vacation judge and the order was made and rolled up and served on the Chairman of Isiokpo Customary Court but the Chairman ignored the order and delivered the judgment.”
The other paragraphs that I have left out are either merely introductory or introduce exhibits before the court or were merely the opinion of the deponent. It can thus be seen that the affidavit did not verify any facts in relation to the ground specified in the accompanying statement. The ground was that the judges were said to be biased because they failed to consider the relevant evidence. The facts verified, however, were that the chairman was classmate and family friend of the plaintiff (para. 3), the court gave judgment in spite of the restraining order of a superior court (paras. 5 and 11), the chairman acted as counsel to the plaintiff (para. 6).
Now, we have seen the conclusion of the learned Judge that I set out earlier. They contain the grounds for his decision. The facts and circumstances from which he concluded that there was a likelihood or bias were that the court –
1. disallowed one of the 1st respondents witnesses from testifying:
2. called a host of witnesses; and
3. exhaustively cross-examined those witnesses.
As has been seen, the 1st respondent did not specify any of these facts in his accompanying statement or the supporting affidavit as being his grounds for alleging bias against the court. In the circumstances, I must answer the question I posed earlier in the negative. I agree with the appellant’s counsel that the learned Judge based his decision on grounds other than any specified in the statement accompanying the application. This is a serious infringement of the provisions of Order 43, Rule 6(1).
However, let us continue our supposition and assume that the 1st respondent had properly verified the facts he relied on. This leads me to another point made on behalf of the appellant. Learned counsel contended that the facts alleged in support of the allegation that the judges of the Customary Court, particularly the chairman, were biased were not proved. He drew attention to the averments in the supporting affidavit and the denial of them in the counter affidavit. In particular, counsel contended that there is no evidence on record, other than the ipse dixit of the respondent that any order was made by any court and served on the Customary Court staying proceedings before it. He also contended that there was no evidence on record that the chairman of the panel acted as Counsel to the plaintiffs. Nor, counsel further pointed out, there any evidence that the chairman was once classmate to the appellant or that he was the latter’s family friend. He then urged us to hold that these allegations were a mere afterthought calculated to mislead.
On this point Mr. Uwom, for the 1st respondent, submitted that the evidence before the lower court justified that court in coming to the conclusion that there was a likelihood of bias. Counsel drew attention to paragraph 11 of the supporting affidavit, which averred that the Customary Court proceeded with the hearing of the case before it in defiance of an order by a superior court staying proceedings and made some arguments on it. Counsel pointed out that, neither the chairman nor any member nor office of the Customary Court filed any affidavit countering this averment. According to learned counsel, the counter-affidavit sworn to by, and filed on behalf of the appellant was irrelevant because “it does not lie in the mouth of the appellant to challenge/refute” the averment. For this rather strange viewpoint, counsel cited and relied on Sections 86, 88 and 89 of the Evidence Act. Since no counter-affidavit was forthcoming from the Customary Court and the one from the appellant was irrelevant, it followed, counsel reasoned, that the averment had not been challenged. And not having been challenged, counsel continued breezily, it must be true. Q.E.D. Learned counsel then went on to build on this foundation he had laid for himself. What special interest, queried Counsel, did the Customary Court have in the case to warrant such brazen defiance of a superior court order? He provided the answer:
“This situation will give a reasonable man the impression/suspicion that the Customary Court chairman/members were biased.”
Counsel cited in re Metropolitan Properties Co. (F.C.C.) Ltd. v. Lannon (1969) 1 QB. 277.
I must point out straightaway that the averment in paragraph 11 of the supporting affidavit is not quite relevant to this appeal. As has been seen, the learned Judge based his decision on only the three grounds that I set out earlier on, the matter raised in this paragraph is not one of them. The appellant did not raise it at all in his grounds of appeal. All the arguments of Mr. Uwom on it therefore, really go to no issue.
Be that as it may, I shall proceed and see whether it was proved that the chairman of the Customary Court was the plaintiff’s classmate or family friend, or acted as counsel to the plaintiff during the trial or that any order was made or serve on the Customary Court staying the proceedings before it.
The averments in the supporting affidavit were countered in paragraphs 6 – 12 of the counter-affidavit sworn to by the Appellant and which read:
“6. That the judgment was delivered without any inhabitations placed on the Customary Court by any superior Court of record.
9. That there is no relationship between me and the chairman and members of the Customary Court Isiokpo.
10. That paragraph 3 of the affidavit used to obtain leave is not true.
11. That paragraphs 4, 5 and 6 of affidavit used for leave are totally false. No such bias or relationship exist.
12. That paragraph 11 is also not true. No such order was served.
On Mr. Uwom’s contention that the appellant was incompetent to refute the averment that a court order staying proceeding before the Customary Court was served on that court, we have seen that counsel relied on Sections 86, 88 and 89 of the Evidence Act. The sections provide:
“86. Every affidavit used in the court shall contain only a statement of the facts and circumstances to which the deponent deposes, either of his own knowledge or from information which he believes to be true.
88. When a person deposes to his belief in a matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
89. When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant and the time, place and circumstances of the information.”
Counsel appears to be saying that the appellant did not have personal knowledge of the facts he had deposed to and so could not depose to them without disclosing his source of information. This, with due respect, is to lose sight of the important fact, of which the 1st respondent is fully aware, that the appellant, as one of the two plaintiffs, was a very active, if not the most important, party to the proceedings before the Customary Court. Or is counsel saying that the order of stay of proceedings was obtained clandestinely behind the back of the Appellant and his co-plaintiff?. In any case, counsel has not said that. The appellant made it clear in paragraphs 2 and 15 of his counter-affidavit that he was a party and that what he deposed to was true and correct. He did not say he obtained the information second hand.
In the circumstances, I cannot agree with the 1st respondent’s counsel that all the material averments in the supporting affidavit have not been effectively countered. The averments in the appellant’s counter-affidavit seriously put in issue the facts (1) that the chairman and the plaintiff had any relationship to each other, (2) that any order was made staying proceedings before the Customary Court, (3) that the chairman acted as counsel to the plaintiff. It might be possible to see from the record of proceeding before the Customary Court whether or not the chairman did act as counsel as alleged. There is, however, no way it can be deduced from the record as it stands now whether or not the chairman and the plaintiff were friends and classmates. On this point at least, it was, therefore, imperative that some other evidence be sought for clarification. This, in my view, was an occasion when oral evidence ought to have been taken. As the Supreme Court per Udo Udoma, J.S.C., pointed out in Uku & Ors. v. Okumagba & Ors. (1974) 3 S.C. 35, at 64 – 65.
“There are authorities for the proposition that as a matter of practice an application which is supported by an affidavit against which there is also a counter-affidavit where the facts deposed to in such affidavits are irreconciliably in conflict then in order to resolve such conflicts the judge ought to call oral evidence if they wish. Such oral evidence will enable him to test the affidavit evidence and thereby to be enabled to resolve such conflicts (See Government of Ashanti v. Adjuah Korkor and others 4 W.A.C.A 83; Akinsete v. Akindutire (1966) 1 All NLR 147”.
Now, it is clear from the ruling of the learned Judge that he did not appreciate this point. He proceeded as if the only evidence before him was the affidavit evidence proffered by the 1st Respondent herein. He only made a passing reference to the evidence on the side of the appellant but generally treated the averments in the affidavit of the 1st respondent herein as having established the facts in controversy. He made no effort to resolve the obvious conflict in the affidavits. For instance, at P. 86 of the record he observed:
“Since it is now clear that bias or likelihood of bias can be a ground for an application for the order of certiorari. I will now examine the affidavit evidence and the Record of Proceedings whether there was bias or likelihood of bias as stated by the applicant.
The applicant in his affidavit in support of the motion deposed to the fact that the chairman of the Customary Court is biased and that the chairman was acting as counsel to the plaintiffs when the case was being heard. See Paragraphs 3, 4, 5, 6 and 7.
And in his amended statement he said that the customary court was biased in their judgment in that they failed to consider the evidence of the Owhor-holders who gave evidence at the trial”.
On the basis of the facts, which he took as established, the Judge proceeded to consider the issues in controversy. He did not advert to the fact that the appellant denied the facts deposed to by the 1st respondent.
With all due respect, the learned Judge was wrong on the way he proceeded. He ought first to have resolved the conflict in the opposing affidavits, either by taking oral evidence or by some other recognized method. The facts involved were very material facts. In the circumstances of this case, I do not think it could be said that the truth of any of them had been established as the affidavit evidence stood.
I will now critically examine the circumstances relied on by the Judge for his conclusion to see whether they in fact supported that conclusion. As was seen, the learned Judge in effect found that the Judge disallowed the defendant’s witness to testify, that it called a host of witnesses, and that it exhaustively cross-examined those witnesses. We have seen too that he held that the combined effect of these acts could create the impression of bias in the mind of a reasonable man.
Did the evidence before the Customary Court show that that court did any of these things alleged? And did these acts alleged against the court have the alleged effect, either singly or in combination with one another?
On the allegation that the court disallowed the 1st respondent’s witness to testify, the record does show that at one point the court stopped D.W.3 from testifying. This followed the revelation by the witness that –
“None of the other chiefs has accompanied me to this court to confirm what I have to tell the court”.
The court then stopped him, saying:
“This court is not ready to listen to this witness who has no backing for what he has to say as the decision of a group.
It then adjourned the case “for defence witness”.
The record does, however, also show that this same witness was allowed back in the witness as D.W.6 and that he testified fully and was cross-examined. He indicated on this second occasion that at least one of the other chiefs i.e. Chief Nlegwum Esobie, was around. I can see nothing from the record, which was all that the learned Judge in the court below had before him, from which to infer that the court did what it did out of bias. In my view, no reasonable man who had witnessed the proceedings of the two days when this witness appeared in court would infer any bias from what transpire on those two days. There has been no suggestion that the court exhibited any hostility towards the 1st respondent or the witness in question or that it did any other thing to suggest that he was inclined in favour of the appellant and against the 1st respondent. What I can discern from the record in the circumstances is that, the court was not prepared to listen to the witness until he came with any of the other chiefs with whom he had earlier sat to settle the parties. That might not have been the correct procedure. But it does not necessarily imply bias without more. The process of judicial review is not concerned with the correctness of the decision of the tribunal whose proceedings are complained of. What the reviewing court is concerned with is the propriety or otherwise of the tribunal’s decision making process. See Chief Constable of North Wales Police v. Evans (1982) 1 W.L.R. 1155, at 1160, per Lord Hailsham, L. C.
In these circumstances, I must agree with the Counsel for the appellant that there is no basis whatsoever for the learned Judge’s conclusion that there had been a total refusal by the Customary Court to allow any witness to testify. I agree with Counsel also that what transpired did not in the circumstances amount to a denial of fair hearing.
On the allegation that the Customary Court called witnesses, who were the witnesses that the Court called, and in what circumstances? At the conclusion of the inspection at the locus in quo, the court made this recording.
“Court: To be summoned are (a) the elders and traditional chiefs of lbaa who heard the case between the plaintiff and Ogo’s family (b) members of Ogo’s family (c) the elders of the All Saints’ (Anglican) Church Ibaa.”
It then listed the particular persons to be subpoenaed. On the resumption of hearing, the court selected one person from each of the three groups to represent and speak for the group. Thus, Amakiri Nyenke represented and testified on behalf of the All Saints’ Church. Chief Emenike Kpoi spoke for the elders and chiefs of Ibaa, and Chief Brown Ogo Chinda spoke for the Ogo family.
The record shows clearly that after the inspection of the land, what the court had before it was the evidence of the parties and their witnesses, all of whom were partisan. The persons that the court called were independent persons who were mentioned by both sides in evidence. In my view, the Court, being a Customary Court, where rules of procedure are more relaxed, was perfectly entitled to summon independent witnesses, even without the permission of the parties, as a method of breaking any impasse created by a word-against-word situation that it may be faced with. There is nothing on the record to suggest that the court knew what any of these witnesses was coming to say, or that he had called them deliberately to favour the appellant against the 1st Respondent. Here again, I have to express agreement with appellant’s counsel that there was absolutely no justification for the learned Judge’s observation that-
“This definitely means that the court has descended to conduct the case for one of the parties.”
There is also the allegation that the Customary Court was guilty of “exhaustively cross-examining the said witnesses”. This is the most frivolous of the allegations. Nothing could be farther from the truth than that the court exhaustively cross-examined any of the witness. Of the three groups of person summoned by the Court, only one testified for each group. The record shows at pages 35 to 38 that the first witness was Amakiri Nyenke. He testified and was cross-examined by the plaintiff and the defendant. The court did not cross examine him at all. The second witness was Emenike Kpoi. The record at p. 36, 11.28-29, shows that the court asked only one question. It is true that no other person asked any question. But there is no suggestion that the court stopped them. Surely, if the court had done that the 1st Respondent, who is scraping around for complaints to slap on the court, would have shouted it from the mountain-top. The third witness was Chief Brown Ogo Chinda. He was cross-examined by the parties. But, again the court did not ask him one single question.
Where then is the evidence of exhaustive cross-examination by the Customary Court?
The law relating to bias is very clear. Whoever alleges bias is obliged under the law to establish the ground he has stated by strong and clear evidence, the court in our, and other common wealth jurisdiction have hammered on this time and again. In Akon v. Abuh (1988) 3 NWLR (Pt. 85) 696, Kawu, J.S.C in the lead judgment of the Court said at page 711:
“In Law v. Chartered Institute of Patent Agents (1919) 2 Ch.D. 276, at p. 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. The 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…”
Nnamani, J.S.C., in his contribution observed at page 717:
“The appellant’s complaint here was particularly that there was a likelihood of bias in that Hon. Justice U. Tefa Puusu… Of course, if indeed it could be established that Hon. Justice Puusu… saw those petitions… he would be in violation of one of the twin pillars of justice…
As Mr. Peterside did readily concede during oral interview in this appeal, the thing remains in the domain of speculation. There is no evidence that Justice Puusu saw those petitions… In Whitford Residents and Rate Payers Association v. Manukan City Corporation (1974) 2 N.Z.L.R. 340, the test of bias was put as –
‘Whether there is a reasonable suspicion of bias looked at from the objective standpoint of a reasonable person and not from the subjective standpoint of an aggrieved party.
And in R. v. Commonwealth Conciliation and Arbitration ex parte Angliss Group (1969) 122 C.L.R. 546, 553 the test was said to be.
‘a suspicion of bias reasonably, and not fancifully entertained by reasonable minds.’
I think the suspicion here was a fanciful one.”
Oputa, JSC, in his characteristically picturesque language had this to say at page 720.
“It has been held that afore-knowledge, a previous knowledge of the previous facts of a pending case is something likely to bias or influence the mind of a judicial officer…. See J. O. Abbey v. A. L. Lamptey (1947) 12 WACA 156. …
But before the principle in Abbey v. Lamptey (supra) can apply to the case now on appeal, it has to be shown directly positively, and without any equivocation that Puusu, J…. not only dealt with the petition… but also had a fore-knowledge of the facts of the case before he became a Judge…
..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”
Finally, Nnaemeka-Agu made his contribution thus:
“Therefore in cases of bias other than pecuniary interest, there must be clear proof of the ground from which likelihood of bias could be inferred. Vaughan Williams, L. J. emphasized this at page 372 to page 373 in Rex v. Sunderland Justices (supra) where he said:
‘The substance of the law on the subject is stated by Blackburn. J. in R. v. Meyer (1875) 1 Q.B.D. 173, p. 177). The effect of what was there said appears to be that, where there is no pecuniary interest, mere possibility of suspicion that a Judge or Justice may be biased is not sufficient as shown by R. v. Dean Rochester (1851) 17 Q. B. 1); he must be substantially interested in the proceedings, so as to have a real bias’.
These cases and the principles which they illustrate have been cited and applied by various courts in this country. See:
Obadare & Ors. v. Com. Of Police (1967) N.M.L.R. 39;
Oyelade v. Araoye & Att. General (1968) N.M.L.R. 41;
Adekunle Odunsi & Ors. v. Ademola Odunsi (1979) 3-4 SC. 128
Umenwa v. Umenwa (1987) 4 NWLR (Pt. 65) 407.
All that all the cases on the point come to is this: Where there is an allegation of real likelihood of bias on the part of a trial Judge, it is taken very seriously. If it is based on grounds other than pecuniary interest, the law insists that there must be clear evidence in support of it, evidence from which real likelihood of bias could reasonably be inferred. Mere suspicion is not enough..”
All emphasis in all the quotations supplied by me.
The 1st respondent, who was the applicant before the court below, in the words of Oputa, J.S.C., invited that court to start considering bias on mere speculation and doubtful inferences. He invited that court to embark upon a voyage in a sea that has no shore. The learned Judge, who was the captain of the ship, threw his chart, sextant, compass, and all other forms of navigational aid overboard and ventured forth full steam ahead into the frothy angry sea without a shore. The result was that his decision floundered as mightily as the great Titanic, never to be salvaged.
Consequently, this appeal seeking a declaration to that effect succeeds and is allowed. The order of Peters-Amain, J. quashing the judgment of the Isiokpo Customary Court in suit No. ICC/33/88 is hereby set aside. In its place I make an order dismissing the 1st respondent’s application before the learned Judge. The 1st respondent shall pay costs of this appeal assessed at N5,000.00
Other Citations: (2000)LCN/0743(CA)
