The Secretary, Iwo Central L.G. & Ors. V. Taliatu Adio (2000)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE,J.S.C.

The plaintiff (now respondent) had sued the defendants claiming, as per the writ of summons:

‘”(i) A declaration that the instrument dated the 28th day of July, 1981 in so far as it purports to include Tadese family as a sub-section of the Adegunodo Ruling House of Oluwo of Iwo Chieftaincy is wrong and accordingly illegal and void.

(ii) An injunction restraining all servants officers and functionaries of the Government of Oyo State and of Iwo Central local Government from acting pursuant to or taken (sic) any steps to implement the aforesaid approved and amended registered declaration of 29th July, 1981 and any further steps in connection with the selection or nomination of candidate/candidates to fill the vacant stool of Oluwo of Iwo as directed by the secretary of the Iwo Central Local Government”.

Pleadings were filed and exchanged and in the case of the plaintiff and 3rd and 4th defendants, amended by leave of court. The case proceeded to trial before Ige J, (as she then was) who at the conclusion of evidence and after addresses by learned counsel for the parties, in a reserved judgment, dismissed the claims of the plaintiff.

Being dissatisfied with the judgment the plaintiff appealed to the Court of Appeal upon two original and five additional grounds of appeal numbered (1) – (7), Parties filed and exchanged their briefs of arguments in which issues for determination were formulated, At the oral hearing of the appeal, the plaintiff through his learned counsel withdrew grounds 1-5 leaving grounds 6 and 7 which read-

“6. The learned trial judge erred in law in not disqualifying herself from trying this case on grounds or interest or bias or likelihood of bias as she is the lawful wife of Chief Bola Ige the then Chief Executive of Oyo State and the substantive 1st defendant in this case as more clearly seen in Exhibit C 1’

7. The learned trial judge erred in law when she held as follows:

They have done many things together like protesting against Apara Report, whether or not they presented joint or separate petitions, they have held out Tadese family to the Government as member of Aclegunodo Ruling House at One time or the other. They have also held meetings together in the past where they had a common cause. It is my view that it is too late in the day for Tadese family to be excluded from Adegunodo Ruling House – See Exhibits K and O”.

The issues for determination based on these grounds and on which the appeal was argued and determined read:-

“(iv) Whether it was proper for the learned trial judge to preside and adjudicate over the case in view of the fact that the gravemen of the appellant’s complaints and allegations were made against a government which the learned trial judge’s husband was the Chief Executive even at the time of trial.

(v) Whether the holding of the learned trial judge that Tadese is a component part of Adegunodo ruling house is right having regard to S.2 of the Chiefs Law of Oyo State, the claims of the appellant and the evidence before the court”.

The Court of Appeal, in a split decision, allowed the appeal on the first of the two issue set out above and declared the decision of the trial High Court void. In the lead judgment with which Akpabio JCA agreed but Kolawole JCA dissented, Ogwuegbu JCA, (as he then was), found:

1. “It is my view that it was not wise for the learned trial judge to have sat over the case in those circumstances”,
2. “Even though Chief Ige signed Exhibit ‘CI’ (the Chieftaincy declaration in respect of the Oluwo of Iwo Chieftaincy) in his official capacity yet he was the substantive 1st defendant in the case sued in his official capacity. Viewing the matter objectively, to say that Chief Ige signed Exhibit ‘C1’ in historical capacity should not be stretched too far when the reviewing court is faced with Exhibit ‘C1’ which was being interpreted by the learned trial judge who happened to be the wife of the Governor”.

(Words in brackets mine)

3. “This matter must be determined upon probabilities to be inferred from the circumstances in which the learned trial judge sat. There is no doubt in my mind that there were circumstances from which a reasonable man would come to the conclusion that the learned trial judge was biased or that there was a real likelihood of bias”.

He finally adjudged as hereunder:

“In the present case, the appellant’s right to a fair hearing …by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality – See S.33(1) of the Constitution of the Federal Republic of Nigeria, 1979 was breached.

From the foregoing, I hold therefore that Ige, J. ought not have sat over the case. The decision she reached in the case is void”.

Akpabio, JCA appeared to have gone a little further than Ogwuegbu JCA. For in his own judgment he wrote:

“.. It was a breach of both the ‘nemo judex’ rule of natural justice as well as the provisions of S.33 (1) of the Nigerian Constitution 1979 on fair hearing, for the learned trial judge to have adjudicated over a civil case in which her husband’s Government was a defendant, and he also signed the document which was being interpreted in the proceedings”.

Later in his judgment, the learned justice of the Court of Appeal asked:

“In the instant case if a wife does not consider herself too closely associated (by kindred) with her husband who was 1st defendant in the case through the Attorney-General, and who had personally signed a document sought to be declared ‘illegal and void in the proceedings. I do not know who else could be closer”.

On whether Governor Ige was a nominal party in the case. Akpabio JCA observed”

As regards the second defence, namely that Chief Bola Ige signed the document Exhibit C1 as part of his statutory functions as the State Chief Executive, and had no pecuniary or proprietary interest in the subject matter of the suit must say that this was not a case in which the Governor could be said to have been a merely ‘nominal’ party. The argument might have been tenable in a criminal case in which the charge is usually ‘The State v. The Accused’. In such a case the whole proceedings is to see whether the accused had committed breach of any section of the Criminal Code. No allegation is made against the State or Governor in the case. So any judge including a wife of the incumbent Governor could try such a case. But in any Civil case where specific misdeeds were being alleged against the State Governor, or any act of the Government or Governor was being challenged. such as in the instant case, I do not think it would be proper for the wife of the incumbent Governor, who happens to be a judge, to try the case, considering the legal unity that is supposed to exist between a wife and her husband. If a husband signs a document in his executive or legislative capacity, and his wife later interpretes the same document in her judicial capacity, will it not be one and the same person that is doing both acts In this connection, I think mention must be made of the case of Lawson v. Local Authority (1944) 10 WACA 288 where it was held that a trial by a Magistrate who was also an Administrative Officer or the Local Authority at whose instance the proceedings were taken was vitiated by the fact that the same person was both prosecutor and judge. Also in the instant case, it cannot be said that the State Governor had no interest in the case. In my view he certainly had an interest in enforcing the provisions of the Declaration Exh., C1 which he signed. People do not sign document at random. They do so only when they have interest in its validity or enforcement. However, the question whether the Governor had or did not have any pecuniary or proprietary interest in the subject matter is irrelevant in this case, as no one quarrels with Chief Bola Ige for signing Exh, C1. The quarrel is that his wife should not have tried the case not because she had any pecuniary nr proprietary interest in the case, but so as to void any real likelihood or bias”.

Concluding on the issue, the learned Justice said:-

“On the totality of the foregoing, I have no hesitation in saying that it was a breach of the Nemo Judex rule or natural justice for the learned trial judge to have tried a case in which the validity of a document signed by her husband was being challenged. It did not matter in what capacity her husband signed the document. Whether Chief Bola Ige was asserting to Government Bill or performing any other State duty at the time of signing Exhibit C1, made no difference, as he was merely earning his living like any other husband. I should also add here that a court presided over by the wife of a person who is a defendant in the case, and whose act was being challenged in the suit cannot, in my view be said to have been constituted in such a manner as to ensure its independence and impartiality as required by S.33(1) of the Constitution of Nigeria, 1979. It is my considered view therefore that immediately the learned trial judge saw that the document, Exhibit C1 was signed by her husband, she should have stopped further trial of the case, and referred the matter back to the State’s Chief Judge for re-assignment either to himself or to another judge. Not having done that, the whole trial must be declared a nullity and set aside for contravening a rule of natural justice”.

With the conclusion the majority of the Court reached on that issue the Court found it unnecessary to consider the other issue placed before it and allowed the appeal.

The 3rd and 4th Defendants, being aggrieved with the majority decision of the Court below have now appealed to this Court upon three grounds of appeal which, without their particulars, read:

“1. The Court or Appeal erred in law to have declared the judgment of Atinuke Ige J. a nullity.

2. The Court of Appeal erred in law when it held:

“In the present case, the appellant’s right to a fair hearing …by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality – see S.33(1) of the Constitution of the Federal Republic of Nigeria. 1979 was breached.’

3. The Court of Appeal erred in law when it held that Chief Bola Ige was the substantive 1st defendant in Suit No. HOS/64/82.

Particulars of Error

(a) Chief Bola Ige, as the Governor, cannot he the substantive 1st defendant since he was not sued in his official capacity as a party to the suit.

(b) Chief Bola Ige, as the Governor, did not become a defendant merely because he signed Exhibit C1 a subsidiary legislation which ought to be signed by him in accordance with Chiefs Law without being joined as a party to Suit No. HOS/64/82”.

The 2nd defendant also appealed and in his further amended notice or appeal raised four grounds of appeal, to wit:

“1. The Court of Appeal erred in law when after holding that Exhibit C1 was a subsidiary legislation which was made by the Governor-in-council went further to say that the subsidiary legislation is one with a difference and made pronouncements which are quite unrelated to issues before the Court of Appeal.

2. The Court of Appeal erred in law when it held as follows:-

‘From the foregoing, I hold therefore that Ige J. ought not to have sat over the case. The decision she reached in the case is void’.

3. The Court or Appeal misdirected itself in law for its failure to distinguish between the constitutional rule or Bola Ige as a Governor as opposed to his family role in his private capacity and thereby came to a wrong decision.

4(a) The Court of Appeal erred in law when it held

“This matter must be determined upon the probabilities to be inferred from the circumstances in which the learned trial Judge sat. There is no doubt in my mind that there were circumstances from which a reasonable man would come to the conclusion that the learned trial Judge was biased or that there was a likelihood of bias’.

4(b) The Court of Appeal erred in law in upholding the contention of the plaintiff/appellant that the learned trial judge should not have sat over the case after judgment had been given against the appellant”.

The particulars are omitted.

Pursuant to the rules of this Court the two sets of defendants/appellants filed and exchanged their respective written briefs of argument. The plaintiffs/respondents did not file a brief. Rather, Mr. Olujinmi, SAN his learned counsel raised a number of preliminary objections to the grounds of appeal and to the appellants’ brief filed, all of which were aimed at scuttling the appeal in limine. All these efforts failed. Seeing the futility of his efforts learned Senior Advocate then asked for adjournment to enable him file a respondent’s brier. The application was considered to be without merit and was rejected. He subsequently asked for, and was granted, leave to proffer oral arguments in answer to the submissions of learned counsel for the defendants/appellants. Thus at the oral hearing or the appeal, Learned counsel for all the panics addressed the Court.

Before I proceed further I think I must pause at this stage to give a resume of the facts in so far as they are relevant to this appeal. The Oluwo of Iwo Chieftaincy was for some years the subject of protracted commissions of inquiry and litigations. Eventually a chieftaincy declaration was made by the Chieftaincy Committee of the Iwo Local Government, approved by the Government-in-Council of Oyo State on 28th July, 1981 and registered on 29th July 1981. The Declaration – (Exhibit C1) was signed by Bola Ige, the Governor of Oyo State at the time. Paragraphs1 and 2 or the Declaration read:

“(1) Number of Ruling Houses: There are 3 (three ruling houses and the identity of the ruling houses is:

1. Alawusa 2. Adegunodo 3. Gbase

(2) Order of Rotation: The Order of Rotation shall be as follows:

(a) Alawusa (Present Ruling House)

(b) Adegunodo

(c) Gbase”

Following the making of the Declaration steps commenced to fill the vacancy that had occurred in the Oluwo chieftaincy. It was the turn of the Adegunodo Ruling House to present candidate(s). In the course on the exercise to nominate candidate(s) a dispute arose as to the Constitution of the said Ruling House. This resulted in the secretary to the Government writing a letter dated 30th July, 1982 to the Secretary. Iwo Central Local Government Council (Exhibit P) paragraph 2 of which reads:

“2. I am to inform you further that the breakdown of the families constituting each of the three ruling house in respect of the Oluwa of Iwo Chieftaincy is as follows:

(i) Adegunodo Ruling (including Tadese, Ifegoriade, Adeyemi, Adetokun ,etc.);

(ii) Gbase Ruling House (including Molasan, Modunle, Mogurala, Adedapo, etc.);

(iii) Alawusa Ruling House (including Ogunmakinde Ande Lamuye, Mogbede, Memudu. Osunwo, Adegorioye, etc.,

It was this letter that led the plaintiff to institute this action claiming as hereinbefore mentioned.

Now two questions are raised in the brief or the 2nd defendant and these are:

“(1) Whether or not the learned Justices of the Court of Appeal in their majority decision were right in holding that the signing of Exhibit C1 by Chief Ige the Governor in his official constitutional capacity and without any interest whatsoever constitutes him the substantive 1st Defendant and is sufficient to lead a reasonable and right thinking person sitting in Court, in possession of full facts to think that justice has not been done merely because his wife later turned out to be the judge who determined whether or not the inclusion of Tadese in Adegunodo Ruling family in the Chieftaincy Declaration, was proper

(2) If there is appearance of bias, which is denied, whether or not the implied waiver or acquiescence on the part of the appellants by their failure to object to the learned trial Judge hearing the case when they had adequate opportunity to do so, has defeated the objection and precluded them from subsequently impugning the proceedings on that ground

The 3rd and 4th defendants in their joint brief, however, pose one question, that is to say:

“Whether or not this is a proper case in which the learned trial judge ought to have disqualified herself on the known principles of law and or on the conduct of the plaintiff in this case considering the case as a whole”

Having regard to the grounds of appeal and the judgment appealed against I think the two questions formulated by the 2nd Defendant are the questions requiring consideration and determination in the two appeals before us.

Question (1):

This is the main question that calls for determination in this appeal chieftaincy declaration is, by virtue of the Chiefs Law of Oyo State Cap. 21 Laws of Oyo State 1979, a statement declaratory of the customary law regulating the selection of a person to be the holder of a recongnised chieftaincy. It is thus a subsidiary legislation in that it is made under the authority of the Chiefs Law.

Now, Chief Bola Ige was the Governor of Oyo State from 1979 to 1985 and particularly at all time relevant to this appeal and it was he who by virtue of his office signed into law Exhibit C1 in the same way that he signed into law bills passed by the House of Assembly of Oyo State during the relevant period. The Honourable Justice Atinuke Ige was at the relevant time (and still is) wife to Chief Bola Ige. She presided over the trial of this case at the High court of Oyo State. The question that then arises is: will this fact, without more raise a presumption of real likelihood of bias on the part of the learned trial judge

Let me digress a little: In this case, it was perceived, though wrongly. That Exhibit C1 contained a statement to the effect that the Tadese family was a sub-section of the Adegunodo Ruling House. And it was on this perception that it was sought to impugn the correctness of Exhibit C1. I say wrongly in that what was perceived is in fact not contained in Exhibit C1 which Chief Bola Ige signed into law on 28th July, 1981. I have already set out paragraphs 1 and 2 of the Declaration, Exhibit C1: these paragraphs speak for themselves. An end could have been put to this case long ago if the defendants had canvassed this point. But they did not do so for the reason(s) I cannot fathom nor hazard a guess. I shall, therefore say no more on it but proceed to deal with this appeal on the basis it was fought all along, that is, that Exhibit C1 contained the “alleged” Statement relating to Tadese family.

I now go back to the question posed the mediate paragraph above. As this question was never raised in the trial court, we do not have the views of the trial Judge on it. It was in the Court of Appeal that it was raised for the first time. The Court, by majority decision, held the view that as Chief Bola Ige, the husband of the trial Judge, signed Exhibit C1 into law and was the main defendant (though in official capacity), there was established a real likelihood of bias on the part of the Honourable Justice Ige which vitiated the proceedings before her and rendered her judgment null and void. Kolawole JCA, who dissented, thought differently.

Alhaji Y.A. Agbaje, SAN learned counsel for the 2nd Defendant/appellant both in his brier and oral argument, argued that Chief Bola Ige was not a party in this action, either in his personal or official capacity. He argued that the joining of the Attorney-General was merely to have the government represented so as to be bound by the result of the action. It is learned Senior Advocate’s contention that the substantive defendant was the Chieftaincy Committee of the Iwo local Government Council who made Exhibit C1 whose correctness was being challenged, learned Senior Advocate further contended that as Chief Bola Ige had no interest in the making of the declaration, Exhibit C1, it would not be proper to find that his wife, Justice Ige, was ajudge in her own cause. Alhaji Agbaje submitted that to succeed the plaintiff must show-

(i) that Chief Bola Ige was a party to the action:

(ii) that he must have an interest in the subject matter of the action;

(iii) the interest must not be too remote or too indirect but one capable of affecting the judicial mind of justice Ige; and

(iv) there was a departure from the standard of even-handedness of justice or circumstances from which a reasonable man would think it likely or probable that justice was not done in the case or that justice Ige would or did favour one side unfairly at the expense of the other.

Learned Senior Advocate argued that all the above ingredients had not been established. He submitted that the fact that Exhibit C1 was a subsidiary legislation would make no difference to it being a law assented to after being passed by the House of Assembly. It is the Senior Advocate’s contention that the circumstances arising in this case would not lead a reasonable man into thinking it likely or probable that justice had not been done in the case. Learned counsel drew attention to the fact that justice Ige is a judge of a superior court whose honesty and integrity should not be questioned. Alhaji Agbaje finally submitted that there had been no breach of any principle of natural justice and urged the Court to allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of the trial High Court. Learned Senior Advocate cited many legal authorities which will be referred to later in this judgment.

Mr. Abiodun, learned counsel for the 3rd and 4th Defendants/appellants adopted and relied on arguments in his written brief and associated himself with the submissions of Alhaji Agbaje, SAN. He too urged the Court to allow the appeal and restore the judgment of the trial High Court.

Mr. Olujinmi, SAN, for the plaintiff/respondent submitted, in oral argument, that there was a breach of the fair hearing rule by justice Ige sitting to hear the matter when her husband, Chief Bola Ige signed into law the Chieftaincy Declaration, Exhibit C1. he relied on Metropolitan Properties Co. Ltd. v. Lannon (1969) 1 QB 577,599 and Bendel State Civil Service Commission v. Buzugbe (1984) 1 ANLR 372, 385-6. He urged the court to dismiss the appeals.

`I begin by observing that there was no allegation, or even suggestion of actual bias nor want of good faith against the learned trial Judge. It is not also suggested that the learned judge had any pecuniary or personal interest in the case. Plaintiffs’ case was based on a real likelihood of bias. According to him, the fact that Chief Bola Ige as Governor of Oyo state, signed into law the Oluwo of Iwo Chieftaincy Declaration (Exhibit C1) which was being challenged in the suit instituted by the plaintiff and in which the Attorney-General of the State, among others, is a defendant. Justice Atinuke Ige, the Governor’s wife should not have sat over the case but should have excused herself. There are the circumstances relied on by the plaintiff from which he is urging us to draw the inference that by justice Ige sitting over the case there was a real likelihood of bias against him. Reliance is placed both by Mr. Olujinmi, SAN and the Court below on Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (supra) where Lord Denning M.R. said:

“….in considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the Chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances there was a real likelihood of bias on his part, then he should not sit And if he does sit, his decision cannot stand: See R.v. Haggins (1875-1991) All ER Rep. 914; (1895) Q.B. 563; and R. Sunderland Justices (190 t) 2k.B. 357 per Vaughan Williams, L.J. at 373 Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: See R. v. Camborne Justice. Ex. parte Pearce (1954) 2 All E.R. 850 at 8: (1955) 1 Q.B. 41 at 48-51; R. v. Nailsworth Justices. Ex p. Bird (1954) 2 All E.R. 652. 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 al the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking: “The judge was biased’ “. (Italics mine)

I agree entirely with this dictum of Lord Denning. But applying the principle enunciated by Lord Denning to the facts of the instant case, would one say that justice Atinuke Ige was precluded from sitting This is the question I now address myself to answering.

In the Metropolitan Properties Co. case, the Court of Appeal (England) held that on the facts of the case the chairman of the Rent Assessment Committee ought not to have sat as Chairman of the committee. What are these facts They are, as appearing in the head note to the report:

“Three tenants in a block of flats in Oakwood Court West kensington. London, applied to the rent officer to register a fair rent for each of the flats under the Rent Act 1965, the landlords having proposed to increase the rents. The landlords objected to the rent officer’s determination and applied to the rent assessment. The Chairman of the committee was a solicitor, he lived with his father, who was a tenant at Regency Lodge., the landlord of which was an associate company belonging to the same group as the landlords of Oakwood Court. The chairman’s firm had from time to time acted for other tenants in Regency Lodge who were in dispute with their landlord on matters similar to those of the present case, and the chairman had himself assisted in writing a letter to the rent officer making representations on behalf of his father. The committee, fixed as the fair rent in respect of each flat an amount that was not only below the amounts put forward by the experts called at the hearing on behalf of the landlords and the tenants but also below those put forward by the rent officer and those offered by the tenants. In accordance with S.12 of the Tribunals and Inquiries Act, 1958, the committee gave written reasons for their decision in which they omitted to give their reasons why they had not accepted any of the evidence given about what the rents should be and why, having accepted the determined fair rent of a flat in another block of flats in the exact same locality as a guide, they then fixed the rent at Oakwood Court at a lower figure.”

The facts in the instant case are clearly far from being similar to the facts in the Metropolitan Properties Co. case. Thus apart from the principles of law enunciated by Lord Denning M.R.in that cases, it is not apposite to the case on hand. So also are the facts in Bendel State Civil Service Commission & Anor v. Buzugbe (supra) on which Mr. Olujinmi also relied. There the Head of service who set the disciplinary action in motion sat as chairman of the disciplinary committee. It was held, and rightly too, that he could not be a judge in his own cause. In the present case Justice Ige was said to be disqualified from sitting because of her matrimonial relationship with Chief Bola Ige who acted in his official, rather than personal relationship.

In R. v. Camberne Justices (1955) I QB 41 at p.51 Slade J. laid down the law in these words:

” ….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”.

This dictum has received approval in a number of cases in this country – See for example, Obadara & Ors v. The President West District Grade B Customary Court (1964) ANLR 331,339. The law on the subject of likelihood of bias is ably set out in paragraph 69 of vol. 1. page 83 Administrative law of Halsbury’s laws of England (4th Edition). There the following appears:

“Likelihood of bias. In a wide range of other situations the impression may be received that an adjudicator is likely to be biased. A person ought not to participate or appear to participate in an appeal against his own decision, or act or appear to act as both prosecutor and judge; the general rule is that in such circumstances the decision will be set aside. Normally it will also be inappropriate for a member of a tribunal to act as witness. Likelihood of bias may also arise because an adjudicator had already indicated partisanship by expressing opinions antagonistic or favourable to the parties before him. or has made known his views about the merits of the very issue or issues of a similar nature in such a way as to suggest prejudgment because he is so actively associated with the institution or conduct of proceedings before him, either in his personal capacity or by virtue of his membership of an interested organisation, as to make himself in substance, both judge and party, or because of his personal relationship with a party or for other reasons. It is not enough to show that the person adjudicating holds strong views on the general subject matter in respect of which he is adjudicating, or that he is a member of a trade union to which one of the parties belongs where the matter is not one in which a trade dispute is involved.

The fact that an administrator may incline towards deciding an issue before him one way rather than another, in the light of implementing a policy for which he is responsible, will not affect the validity of his decision, provided that he acts fairly and with a mind not closed to argument; and similar standards may be applied to other persons whose prior connection with the parries or the issues are liable to preclude them from acting with total detachment.

It is unnecessary to establish the presence of actual bias, although the courts are not precluded from entertaining such an allegation. It is enough to establish a real likelihood that in the circumstances of the case an adjudicator will be biased. Alternatively, it may be sufficient to establish that a reasonable person acquainted with the outward appearance of the situation would have reasonable grounds for suspecting bias. In some situations a more exacting test will be adopted, and the court may set aside a determination if justice has not been manifestly seen to be done; such a test has been applied in cases where a clerk to a tribunal has retired with the tribunal, and given the impression of participating in its decision”.

What then is a “real likelihood” of bias’ It means, in my respectful view, a substantial possibility of bias and the test to be applied is based on the reasonable man apprehension of a reasonable man who is in full knowledge of the facts or circumstances and not that of a capricious and unreasonable man. There are dicta which appear to make it more exacting for the courts. In Eckersley v. Mersey Docks and Harborne Board (1894) 2 QB 667 at 670-671, Lord Esher M.R. Stated thus:

“When the proposition sought to be established on behalf of the plaintiffs is examined, it comes to this, that the disputes ought not to be referred to the engineer because he might be suspected of being biased, although in truth he would not be biased. It is an attempt to apply the doctrine which is applied to judges, not merely of the Superior Courts, but to all judges – that, not only must they be not biased, but that, even though it be demonstrated that they would not be biased. they ought not to act as judges in a matter where the circumstances are such that people – not necessarily reasonable people, but many people – would suspect them of being biased””.

In R. v. Justices of County Court (1910) 2 I. R 271 at 275 Lord O’Brien CJ criticised the dictum of Lord Esher. He said:

“That, in my opinion, goes too far. It makes the mere suspicions of unreasonable persons a test of bias. I think that the judgment was not a considered one, and that Lord Esher made use of some loose expressions, We decline, on a consideration of the case, to go so far as that very eminent judge. There must, in the words of Blackburn J., be a ‘real likelihood’ of bias: Reg. v. Rand (L.R.1 Q.B. 230, 233. In Rex (De Vesci) v. Justices of Queen ‘s Co. (1908) 2 I.R. 285, 294, I expressed myself as follows: ‘By ‘bias’ I understand a real likelihood of an operative prejudice, whether conscious or unconscious. There must, in my opinion, be reasonable evidence to satisfy us that there was a real likelihood of bias. I do not think that the mere vague suspicions of whimsical, capricious and unreasonable people should be made a standard to regulate our action here. It might be a different matter if suspicion rested on reasonable grounds – was reasonably generated – but certainly mere flimsy, elusive, morbid suspicions should not be permitted to form a ground of decision”.

I am more inclined to the views of Lord O’Brien above.

Again, in R. v. Sussex Justices, Ex parte McCarthy (1924) 1 KB 256 at P.259 Lord Hewart CJ reiterated the “suspicion” lest when he said:

“….a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicious that there has been an improper interference with the course of justice”.

With profound respect to their Lordships who adopted the “suspicion” test, 1 think the stand of Lord O’ Brien is to be preferred. A mere whimsical suspicion will not suffice. There must be a real likelihood of bias, an inference which must be drawn from proved circumstances. In R. v. Salford Assessment Committee, Ex p. Ogden (1937) 2 All E.R. 98: (1937) 2 KB1. Slesser L.J. and Luxmoore J applied the “reasonable likelihood” test, similarly, in Cottle v. Cottle (1939) 2 All E.R, 535 at 541. Sir Royal Merriman P asked whether the party complaining

“….might reasonably have formed the impression that Mr. Browning (the chairman of the bench) could not give this case an unbiased hearing”,

In the same case, Bucknill, J. opined:

“The test which we have to apply is whether or not a reasonable man, in all the circumstances, might suppose that there was an improper interference with the course of justice if Mr. Browning sat as chairman’”.

This Court has never accepted the “suspicion’ test. For in Oyelade v. Araoye & Anor (1968) NLMR 41 at p. 46 Brett JSC delivering the judgment of this Court said:

“In the rare cases where it could be proved that a decision had actually been affected by the bias of the person making it, that would no doubt be conclusive, but while suspicion is not enough the courts do not appear to have required that actual bias operated on the mind of the person making the decision….In our view the correct test is that adopted by this court in Obadaru v. President, Ibadan West District Grade B Customary Court, following R. v. Camberne Justices, namely that a real likelihood of bias must be shown …”

See also Yabugbe v. C.O.P. (1992) 4 NWLR (Pt.234) 152 at 173-174 per Akpata JSC. at p. 177. per Uwais JSC (as he then was) at p. 177.

In the instant case, there is no suggestion of any impropriety against Justice Ige who sat and heard the case. It is equally accepted that Chief Bola Ige acted throughout in his official, as against his personal capacity. It was submitted, and this round favour with the Court below, that the Attorney-General being a defendant in the case, Chief Bola Ige was the substantive defendant. With profound respect I think this submission is preposterous. The Attorney-General was brought in as a nominal defendant so that the Government of Oyo State might be bound by the result of the action. It is not the case of the plaintiff that Chief Bola Ige had any pecuniary or proprietary interest or other personal interest in the Oluwo of Iwo Chieftaincy Declaration, All that he did was to sign Exhibit C 1 (made by the Chieftaincy Committee of the Iwo Local Government Council) into law. I cannot reasonably infer from such circumstance, without more, that his spouse sitting as a judge over the instant case, a real likelihood of bias would arise. To hold otherwise would mean that Justice Ige was disqualified in any case where any legislation signed into law by her husband was in issue. And the same must obviously apply to any judge whose spouse had been in a similar position as Chief Bola Ige. I think this is carrying the principle of real likelihood of bias too far. Such a suggestion must be rejected and I do so reject it in this case. After all, the maxim is: De Fide et officio non recipitur quaestio, sed de scientia sive sit error juris sive facti (The honesty and integrity of a judge cannot be questioned, but his decision may he impugned for error, either of law or of fact) (Bacon Max rep. 17)

One of the cases relied on by Ogwuegbu JCA. is Olue & Ors v. Enewali & Ors. (1976) 2SC 23 where the presiding judge was counsel to one of the parties at the early stages of the hearing. When the matter eventually came before him after he had been appointed to the bench he drew the attention of both parties to that fact. Counsel for the parties said they had no objection to his continuing with the case.

The learned judge nevertheless adjourned to another date to enable counsel reconsider the point after consulting their clients. On the adjourned date both counsel again told the court that their clients agreed that the judge should continue with the case. At the conclusion of the case and after judgment had been entered, the losing party appealed to this court and argued, through his counsel, that the whole trial was unconstitutional and void, citing in aid section 22(1) or the 1963 Constitution which is in pari materia with section 33(1) of the 1979 Constitution applicable in the present proceedings and that the parties could not waive the disqualification in view or section 22 of the 1963 Constitution. This Court, per Nasir JSC, as he then was, held at pages 37-338, that:

“In the circumstances of the present case we cannot see how the independence or the impartiality of the learned trial judge could be impeached. The learned trial judge expressly drew the attention of counsel and their clients to the fact that he was counsel to one side at the early stages of the proceedings and offered to withdraw from continuing with the proceedings. Both counsel and clients expressly wanted the judge to go on. We cannot see how section 22 can apply in this case. We also consider the argument of learned counsel for the respondents, that the parties have expressly waived their rights under section 22, as well founded. The right to challenge or impugn proceedings of any court or tribunal which was tainted by the adjudicator being: disqualified by interest or likelihood of bias may be lost by express or even by implied waiver of the right to object to the adjudicator at the first opportunity during the proceedings.

There would however be no waiver or acquiescence unless the party entitled to take the objection was aware of the nature of the disqualification and had opportunity of so objecting”

It is interesting to note that in the course of the judgment Obadara & ors. v. The President, Ibadan West District Crude B Customary Court (supra), R. v. Camberne Justices (supra); Metropolitan Properties Co. (FCC) Ltd. v. Lannon (supra) and Kujore & ors. v. Ebun Otubanjo (1974) 10 SC 173 were referred to and considered.

The short remark I need make about the Olue case is that the facts in the instant case are completely different from the facts in the case. It is not the case here that justice Ige was at any time a counsel to any of the parties in respect or the Oluwo chieftaincy.

Again, reliance was also placed on the case of Legal Practitioners Disciplinary Committee v. Gani Fawehinmi (1985) 2 NWLR (Pt.7) 300. This case too is not apposite, for in the case the Attorney-General who was the complainant sat as Chairman of the Committee to try the complaint. This court rightly held that he could not be a judge in his own cause. I think the same observation applies to Lawson v. Local Authority (1944) 10 WACA 228 relied on by Akpabio JCA. In that case the appellant was charged at the instance of the Administrative Officer qua Local Authority (the Tax Collection Authority) for failure to pay income tax, and was tried by that officer qua Magistrate. He was convicted. On appeal to the West African Court of Appeal, it was held, and quite rightly too, that the proceedings were vitiated by the fact that the same person was both prosecutor and judge.

Akpabio JCA also referred to a case Alice Ibidun v. Isiah Adewunmi Kujore & 3 Ors. (1973) 3 WSCA 102 (I am not too sure if it is not the same case as I.A. Kujore & Ors v. Mrs. Ebun Otubanjo (1974) 10 SC 173 which found its way to this Court and where this Court set aside the judgment of the Western State Court of Appeal and restored that of the appellate High Court Ijebu-Ode. If it is the same case then the facts are clearly not apposite to the facts in the instant case. There, Fatayi- Williams JSC (as he then was), delivering the judgment of this Court said at pages 180-181.

“It is our view, depending of course on particular circumstances, that it is sufficient if materials are supplied which, in the opinion of an independent person, could be considered as suggesting a real likelihood of bias. Adverting once again to the present case, there is no doubt in our mind that, in the absence or an immediate retort from the learned president at the time the allegation, which he must have known to be true, was made, any reasonable person making such a factual complaint would conclude that the learned president for some inexplicable reason, was bent on hearing the case in spite or the allegation. such a person would undoubtedly also conclude that the president would not be impartial and would likely to be biased against him. We do not think that any further proof or likelihood of bias is necessary.”

With respect, it would appear that their Lordships of the court below who constituted the majority overlooked the facts of the cases they relied on in corning to their conclusions that there was a real likelihood of bias shown in this case. Had they properly adverted their minds to these facts it would not have been difficult to see the difference in the circumstances in these cases and those of the instant case.

From all I have been saying, I have come to the conclusion that Question (1) must be resolved in favour of the appellants. I cannot imagine any reasonable man drawing the inference from the circumstances of this case that there was a real likelihood of bias on the part of Justice Atinuke Ige in presiding over this case at the High Court.

In view or this conclusion, I do not consider it necessary to go into Issue (2). Suffice it to say that it appears that that issue has been resolved by this Court in the Olue case.

Before I end this judgment I like to comment briefly on a remark by Akpabio JCA in his judgment. He said:

” …1 must first make a preliminary observation, namely, that I noticed that the case of Oyelade v. Araove (1968) NMLR 41 was cited by both the learned counsel for the appellant and that for the 4th respondent. As the same authority could not possibly support both sides of the same case at the same time, I took special interest to read it, and found as a fact that that authority was more in support of the case of the appellant in the instant case than that of the 4th Respondents. In that case, One of the questions for determination was whether it was proper for a certain Mr. Enahoro to conduct an inquiry under the Inter-Tribunal Boundaries Settlement Law Cap 52, Laws of Western Nigeria 1959 after he the said Enahoro had earlier signed the letter recommending it. It was held inler alia by the Supreme Court that:

‘A real likelihood of bias has been shown and the rights of the plaintiffs have not been determined by a tribunal constituted in such manner as to ensure its independence and impartiality,’

This is just an aside, but counsel should always refrain from attempting to mislead the court by citing authorities which do not support their cases”.

I think the counsel rebuked in the above passage acted in the best tradition of the profession as a worthy officer of the court. Counsel in a case has a duty not only to bring to the attention of the Court authorities that support his case but also those that decide otherwise and attempt either to distinguish such authorities or to advance arguments why they should not be followed. It will be a sorry day when counsel hide from the court authorities he is aware of and relevant to the case before the court simply because such authorities do not favour him. I am sure if the learned Justice of the Court of Appeal was aware of this duty of counsel he would not have rebuked counsel in the manner he did. What counsel did cannot in any sense be referred to as misleading the Court.

Finally, this appeal succeeds and it is hereby allowed. I set aside the judgment of the Court below and restore that of the trial High Court. I award N10,000.00 costs of this appeal to each set of appellants against the plaintiff/respondent.

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SC.143/1994