3PLR – JEREMIAH AKOH AND OTHERS V AMEH ABUH
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com nd info@lawnigeria.com or text 07067102097]
JEREMIAH AKOH AND OTHERS
V
AMEH ABUH
3PLR/1988/46 (SC)
OTHER CITATIONS
(1988) 3 NWLR (Pt.85) 696
BEFORE THEIR LORDSHIPS:
BELLO, C.J.N.
REPRESENTATION
- Brown Peterside, S.A.N. (with him O. B. James and S. A. Aguda) – for Appellants
- Ayodele (with him D. D. Abutu & D. A. Agodo), – for Respondent
MAIN ISSUES
ADMINISTRATIVE LAW – Fair hearing- Likelihood of Bias.
PRACTICE AND PROCEDURE – Courts -Jurisdiction -Area Courts – Stay of proceedings.
WORDS AND PHRASES – “at any stage of proceedings” – Meaning of – “hearing” – Meaning of.
MAIN JUDGEMENT
KAWU, J.S.C. (Delivering the Lead Judgment):
The proceedings leading to this appeal were instituted in Suit No.6/84 by the respondent herein, as plaintiff, against the appellants, at the Ogugu Area Court Grade II, Benue State on the 3rd day of January, 1984. In that Court the respondent’s claim was for a declaration of title to a parcel of land.
At the trial the respondent gave evidence and called three witnesses in support of his claim. All the appellants testified and they all called witnesses who gave evidence in support of their claim. The trial court, at the invitation of the plaintiff, visited the locus in quo. At the conclusion of the hearing on the 29th February, 1984, the trial court adjourned the case to 15th March, 1984 for judgment. However on the 13th day of March, 1984, the Inspector of Area Courts, Ankpa, went to the Area Court and collected the Court’s Record Book containing the judgment which was to be delivered on the 15th March, 1984. He subsequently ordered a stay of proceedings and a transfer of the case to the Upper Area Court, Ayangba, acting in pursuance of his powers under s.48(1) of the Area Court Edict 1968.
The respondent was not happy with the Inspector’s order of transfer and consequently wrote petitions to the Chief Registrar against it. These petitions are Exhibits A, B, C. and D in this appeal. It should, however, be noted that each of these petitions was addressed to ‘The Chief Registrar, Judicial Department, Makurdi” and clearly marked:
“For the attention of
The Chief Inspector, Inspectorate Section, High Court of Justice, Makurdi.”
As a result of the petitions, the Chief Registrar of the Benue State High Court, on the order of the Chief Judge of the State, addressed a letter dated 11 /5/84 and signed by one Idachaba, to the Judge of the Ogugu Area Court directing the trial court to complete the hearing of the case. That letter is Exh. ‘E’ and it reads as follows:
“SCR/231 /vol.1 /112 11th May, 1984.
The Judge,
Area Court Grade II, Ogugu.
Directives – Re – Ameh Abu CV/6/84 Vs. Jeremiah Akoh And 2 Ors
Reference to my letter No.SCR/231/vol.1/62 of March, 1984, I have been directed by the Hon. Chief Judge to instruct you as follows having gone through proceedings in respect of the above case.
- Your court is hereby instructed to issue hearing notices to the parties and come to judgment, since it has completed its Judicial functions and any dissatisfied party may appeal. Comply strictly and communicate us at the Headquarters that you have so complied.
(Sgd.)
(P.S. IDACHABA) FOR: Chief Registrar
A copy of Exh. E was sent to the Inspector of Area Courts, Inspectorate Office, Ankpa as well as to the Judge of the Upper Area Court, Ayangba.
In compliance with. the directive contained in Exh.E the trial Area Court Summoned the partiesto Court and delivered its judgment on the 25th May, 1984, awarding the land in dispute to the respondent.
The appellants were dissatisfied with the judgment of the trial Area Court and so appealed to the High Court, and that Court (Coram A.I.K. Alu and T.U.F. Puusu), having carefully examined the appellant’s complaints, came to the conclusion that the trial Area Court was right in its decision and so dismissed, in its entirety, their appeal on the 15th day of May, 1985.
Still dissatisfied, the appellants appealed to the Court of Appeal, Jos Division. In that Court, there were two main complaints. The first was that the Chief Registrar’s letter Exh.E which was signed by one Mr. P.S. Idachaba remitting the case back to the trial Area Court for completion, was invalid and therefore all subsequent proceedings in the Area Court were null and void. Their second complaint was that the proceedings in the High Court in its appellate jurisdiction were a nullity as the said proceedings were tainted with likelihood of bias on the part of Hon. Justice U.T. Puusu as he was the Ag. Chief Registrar of the High Court at the time that the respondent addressed Exhibits A, B, C and D to his office.
The Court of Appeal, having given very careful consideration to both parties’ submissions on these two points, came to the conclusion that there was no substance in the appellants’ appeal which was dismissed.
Still being dissatisfied, the appellants have finally appealed to this Court on four original grounds which are as follows:
“Grounds of Appeal
- The learned Justices of the Court of Appeal erred in law when they held in effect that the Appellants had a fair hearing by dismissing Appellants’ grounds of appeal before their Lordships, which read as follows:
‘The Appellants did not have a fair hearing/trial before the Benue High Court presided over by Justice A.I.K. Alu and Justice Terna U. Fefa Puusu. This is so because there was a real likelihood that Justice Puusu who, in his capacity as Chief Registrar prior to becoming a Judge had received various petitions pertaining to this suit, was likely to be biased and/or influenced by his prior knowledge of the facts giving an Independent and Impartial judgment in this suit.”
Particulars of Error
The finding by Their Lordships that there was no evidence that Justice Terna U.F. Puusu, one of the Justices who hear the appeal before the Benue State High Court, and who was the Chief Registrar at the time petitions concerning the suit before the lower court were addressed to him did not personally see the said petitions, is untenable in law. This is because he is deemed in law to have seen the petitions addressed to him in his official capacity. (See L.P.D.C. v. Fawehinmi (1985) 2 N.W.L.R. page 300 at 334 and 385), where the Supreme Court held inter alia, that proceedings initiated against Respondent by letter and a charge sheet all signed by an officer in the Solicitor-General’s, office were initiated by the Attorney- General and that he was deemed to have preferred the charges against the Respondent.
- The learned Justices of the Court of Appeal further erred in law when they held that the power of the Inspector to stay proceedings before the court of first instance and to transfer the same is not a quasi judicial power, and this error occasioned a miscarriage of justice.
Particulars of Error
(a) What is “judicial” or “quasi judicial” has been stated by the Supreme Court in the case of the L.P.D.C. v. Fawehinmi supra, page 300 at 330. It is clear from the Supreme Court’s definition of “quasi judicial”, that in exercising his unfettered discretion to stay and transfer the proceedings in the court of first instance the Inspector clearly exercised a quasi judicial power.
(b) The exercise of a quasi judicial power can only be varied or annulled by a competent and superior authority or tribunal exercising judicial as opposed to an administrative function.
- The learned Justices of the Court of Appeal again erred in law when they held that the Inspector of Area Courts acted ultra vices when he exercised his discretion to transfer the suit before the court of first instance, and this error occasioned a miscarriage of justice.
Particulars of Error
In deciding that the Inspector of Area Courts acted ultra vires, the learned justice of the Court of Appeal drew a distinction between transferring a suit when the case is still at the hearing stage, and when the hearing has been concluded and the same adjourned for judgment. The foregoing is not borne out by law for the following reasons:
Section 48(1) of the Area Courts Edict 1968 under which the Inspector acted reads as follows:
“48 (1) An inspector shall have power at any stage of the proceedings before final judgment, either of his own motion or on the application of any party to a cause or matter before an area court, by order to stay the hearing of any cause or matter on such terms as he may consider just” In Chief S.O.L. Okafor v. D.O. lkeanyi & 3 Ors., reported in (1979) 3 & 4 S.C. 99 at 100 – 107, the Supreme Court considered the power of amendments under order 34 of the High Court Rules of Eastern Nigeria, which gives unfettered discretion “to the Court to allow amendments at any stage of proceedings” which is in pari materia with section 48(1) of the Area Courts Edict aforesaid, and decided that the power to exercise such a discretion could be exercised even after the case had been adjourned for judgment. In fact, in Chief Okafor’s case supra, an application was brought on the date of judgment to amend the pleadings and the learned trial Judge refused the same. But the Supreme Court held that “the learned Judge erred in the exercise of his discretion and ought to have granted the amendment.”
- The learned Justices of the Court of Appeal erred in law when they held that Appellants had waived their right to a fair hearing (guaranteed by section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended) before the High Court of Benue State, by failing to object to Justice Puusu hearing their case, and this error occasioned a miscarriage of justice.
Particulars of Error
(a) The right to a fair hearing in the circumstances of this case is a fundamental right for the benefit of the Appellants as well as the general public. This being so, such right cannot be waived consciously or unconsciously. See Arlori & Ors. v. Elemo & Ors. (1983) 1 S.C. 13 at 69).
(b) In accordance with section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria as amended, a court or tribunal adjudicating on the civil rights and obligations of a person should be “constituted in such manner as to secure its independence and impartiality.” The Benue State High Court was not impartially constituted given the peculair facts of this case, hence the question of waiver, If at all, does not even arise.”
In addition to the four original grounds of appeal filed, the appellant sought and was granted leave to file and argue two additional grounds of appeal which are as follows:
The learned Judges of the Court of Appeal misdirected themselves on the facts when they held as follows:
“Nor was there evidence that the facts of the case before the trial court were brought to his (Justice Puusu) knowledge, when the petitions against the Inspector’s order of transfer were sent to his office. There is no evidence that he had foreknowledge of the issues in controversy before the trial court.”
And this misdirection occasioned a miscarriage of justice.
Particulars of misdirection
(A) In Exhibit ‘E’ purporting to remit the case back to the Ogugu Area Court Gd. II the Chief Registrar dearly stated inter alia: “I have been directed by the Hon. Chief Judge to instruct you as follows having gone through the proceedings in respect of the above case.”
(B) Since it appears that all the petitions in this case originally addressed to the Chief Registrar were ultimately referred to the Chief Judge, the irresistible inference to be drawn in the circumstances is that the said petitions must have been first seen by the Chief Registrar who endorsed or referred same to the Chief Judge, after having read the same.
(C) In view of (A) and (B) supra, the finding that the petitions were not brought to the knowledge of Justice Puusu is manifestly wrong and unreasonable.
(D) “His order of transfer dated 21st March, 1984 in the circumstances of that case, was more monstrous than the allegations levelled against the trial Judge and his members which appear not investigated”
The foregoing passage set out at page 43, lines 13 to 16 of the record which forms part of the judgment of the Makurdi High Court in this matter, points irresistibly to the conclusion that it must have been Justice Puusu who wrote the said judgment. This is so because there is nothing on the record to show that the allegation “levelled against the trial Judge and its members” form part of the record of appeal in respect of which the High Court judgment in this matter was based. The inference therefore must be that orgy someone who had handled the petition written against ‘the trial Judge and its members” by the appellants here in which petition does not form part of the record of proceedings, could have written the judgment aforesaid. That person must therefore be Justice Puusu who at the material time, was the Chief Registrar.
- The learned Justices of the Court of Appeal erred in law in reaching a decision on the Intention of the legislature regarding section 48(1) of the Area Courts Edict without giving the parties opportunity to address the court on the same, and this error occasioned miscarriage of justice.
Particulars of Error
(A) A careful perusal of the record in this case makes it quite clear that at no time during the hearing before the Court of Appeal did the parties in this suit or their counsel address the court on the intention of the legislature regarding section 48(1) of the Area Courts Edict 1968.
(B) This being so, the views expressed by the Court at page 84 line 28 to page 85 line 30 of the record pertaining to the intention of the legislature concerning section 48(1) of the Edict aforesaid are unsupportable in law, the Court not having been addressed on same by the parties in this suit.”
In compliance with the Rules of court both counsel filed briefs of argument in this appeal, and in his brief learned Senior Advocate of Nigeria, Mr. Gaily Brown-Peterside, for the appellant, formulated two issues for determination in this appeal as follows:
“Having carefully studied the proceedings in this case, it appears to me that the main issues for determination by this Honourable Court are:
- Whether the Ogugu Area Court Gd.ll had jurisdiction on 25/5/84 when it entered judgment for the Respondent in the light of the Inspector of Area Court’s order of 13/3/84 staying proceedings and subsequently transferring the suit to another Court, vis-a-vis the High Court Registrar’s directive of 11/5/84 remitting the case back to the trial court for judgment.
- Whether or not the Appellants had a fair hearing/trial given all the circumstances of this case.”
In his own brief Mr. Ayodele learned counsel for the respondent, formulated four issues for determination, but having considered the grounds of appeal filed, I have come to the conclusion that the issues formulated by Mr. Gaily Brown-Peterside for the appellants adequately cover all the points raised in the grounds of appeal, and in my view, they are the ones that need to be considered in this appeal.
With regard to the first issue, Mr. Brown-Peterside’s contention was that the trial court’s judgment which was given in respondent’s favour on the 25th May, 1984, was null and void as that court has no jurisdiction as of that date, to deliver the said judgment. The reason for this, he submitted, was “that the trial Area Court was no longer seised of this case after the order of stay of 13/3/84 aforesaid, notwithstanding the Chief Registrar’s directive of 11/5/84 (exhibit E) purporting to remit the case back to the trial court.” Exhibit ‘E’, he contended, was ultra vires the powers of the Chief Registrar and could not revest in the trial court jurisdiction over the case. With regard to the powers of the Inspector under section 48(1) of the Area Courts Edict, the learned Senior Advocate at page 6 of his brief states as follows:
“Appellants would further -contend that in law judgment is deemed to be given in a case only when the same in openly delivered or read by the presiding judge and not at anytime before then. Then Gear and unambiguous words of section 48(1) of the Edict emphasised the point that the Inspector’s power of transfer is exercisable at any stage of the proceedings before final judgment: and since no judgment whether written or unwritten had been delivered by the trial court on 13/3/84 the order of stay was validly made, and operated to oust the jurisdiction of the Ogugu Area Court Gr.ll. The finding by the Court of Appeal that the Inspector interferred with the judgment is therefore manifestly wrong.
Now, what exactly are the powers vested in the Inspector of Area Courts, under s.48(1) of the Edict No.4 of 1968 of Benue State? The section reads as follows:
“48 (1) An inspector shall have power at any stage of the proceedings before final judgment, either on his own motion or on the application of any party to a cause or matter before an area court, by order to stay the hearing of any cause or matter on such terms as he may consider just.”
In my view the wording of the section makes it abundantly clear that an Inspector of Area Court can, either on his own volition or at the request of any party to a cause or matter before an Area Court, order the stay of the hearing or further hearing of such cause or matter. It is also clear that he can exercise this power at any stage of the proceedings but only before the final judgment. Once an Area Court has come to a final decision on a matter or cause before it, and has pronounced its judgment, an Inspector of Area Courts can no longer exercise his powers under the section. In this case, however, the judgment of the Ogugu Area Court had not been pronounced before the Inspector exercised his powers under the section. At that stage the hearing of the cause or matter was still continuing in the Area Court since its judgment, although already written, had not been delivered. See Chief S.O.N. Okafor v. D.O. Ikeanyi & 3 Ors. (3-4, S.C. 1979) 99 at p.107, Onyeama Ezenwa v. Samual Ikegbunam Mazeli & 2 Ors. 15 W.A.C.A. 67 and the Duke of Buccleugh (1892) Probate 201 at p.212. Therefore the Inspector had the power to stay the proceedings of the Area Court and order the transfer of the case to another court at the time he did. Consequently, I am therefore unable to agree with Akanbi, J.C.A. when in his judgment he said:
“However, when as in this case, all the witnesses had been heard, and the court had written its judgment and all that was left to be done was for the court to deliver the judgment in open court, it would to my mind, be ultra vires the powers of the inspector to stay the pronouncement of that judgment. For in effect what the inspector did in the instant case is not to stay ‘the hearing of the case or matter’ but to prevent the court from delivering its judgment a few days to the date fixed for the delivery of same.”
As to whether Exh. ’E’ validly countermanded the inspector’s order of 21st March, 1984, I am in complete agreement with the submissions of Mr. Ayodele, learned counsel for the respondent, that it did. Exh.’E’ was an order emanating from the Hon. Chief Judge of Benue State, directing the trial Area Court to deliver its judgment. In my view it was an order validly made pursuant to the Chief Judge’s supervisory power under section 44(1) of the Area Court (Amendment) Edict No.6 of 1969. It follows, in my judgment, that the judgment of the Ogugu Area Court delivered on the 25th May, 1984 was a valid judgment.
The second issue concerns the alleged bias or likelihood of it, on the part of Justice Puusu who was one of the two judges in the High Court who heard and dismissed appellant’s appeal from the decision of the trial Area Court. It was contended that the appellants did not have a fair hearing. It was the appellant’s contention that Justice Puusu who was the Ag. Chief Registrar of the High Court at the time the respondent addressed his petitions to his office and who, as a result of the petitions, remitted the case to the trial Area Court for completion, should not have taken part in the hearing of the appellant’s appeal. At p.9 of his brief, learned Senior Advocate for the appellant stated as follows:
‘To all intents and purposes, his mind must have been influenced by his prior knowledge of the facts of the case, and he thus lacked the requisite impartial mind for the discharge of his judicial duty, since there was a real likelihood of his being biased or influenced however little by the views expressed in the various petitions aforesaid. Reliance would be placed on the following cases:
- Oyelade v. Araoye and Attorney-General (1968) N.M.LR. 46 – 47.
- AU. Deduwa & Ors. v. E.A. Okorodudu, (Consolidated) (1976) 9 – 10 S.C. 329 at 349.
- Obadara & Ors. v. The President West District Council Gd.B Customary Court (1965) N.M.L.R. 39 at 44.”
Although it is true that Justice Puusu was the Ag. Chief Registrar of the High Court of Benue State at the time the respondent addressed his petitions to his office, there was no evidence whatsoever that the petitions which were all dearly marked ‘Yor the attention of the Chief Inspector for Area Courts. Inspectorate Division, Makurdi’ ever received his personal attention.
Still on the issue of bias, Mr. Brown-Peterside further contended that the Justices of the Court of Appeal were wrong in their finding that there was no evidence that Justice Puusu had had prior knowledge of the issues in controversy between the parties before the trial court. That finding, he submitted “is not only contrary to Exhibit ‘E’ in which the Chief Registrar dearly asserted that he had gone through the proceedings in respect of the case ……………… but is also inconsistent with the decision of this Honourable Court in L.P.D.C. v. Fawehinmi (1985) 2 N.W.L.R. 300 at 334 and 385 where it was held that proceedings initiated against the Respondent by a letter and charge sheet all signed by an officer in the Attorney- General’s office were deemed to have been initiated by the Attorney-General:”
With regard to Exh.’E’ the contents of which have been set out earlier in this judgment, I am of the firm view that the learned Senior Advocate’s interpretation of the letter to the effect that it was the Chief Registrar who had gone through the proceedings of the trial court, cannot be right; and this is because the letter itself clearly states that the directive contained therein was given by the Chief Judge after he had gone through the proceedings in respect of the case.
As to the decision of this Court in Fawehinmi’s case (supra), I agree entirely with Mr. Ayodele, learned counsel for the respondent, that the facts in that case are entirely different from the facts in the case now on appeal. In that case this Court held that there was a real likelihood of bias when the Attorney-General of the Federation, acting through an officer of the Ministry, received a complaint of an alleged misconduct on the part of the respondent, drafted the charge to be preferred against the respondent and proceeded to sit as Chairman of the body charged with the duty of adjudicating on the matter. It is obvious that in such circumstances an inquiry could not be conducted in accordance with the principles of natural Justice. 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 i he has so conducted himself in relation to the matters to be investigated as to lead a reasonable man to suspect that he may have a bias. But in my view, there must be some evidence tending to support such an allegation. This point was emphasised by Lord Denning when considering the issue of bias in Metropolitan Properties v. Lannon (1969) 1 O.B. 277 at p.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…………………………………………………….
In this case there is no evidence whatsoever to support the allegation that Justice Puusu had had personal knowledge of the dispute between the parties before he participated in the hearing of the appellant’s appeal in the High Court. Indeed at the hearing of this appeal in this Court, Mr. Brown-Peterside S.A.N., candidly conceded that there was in fact no evidence of bias and that the appellant’s argument was based on mere speculation.
In the result I have come to the conclusion that there is no merit in any of the points urged upon us in this appeal and consequently the appeal must fail. The appeal fails and it is hereby dismissed. The judgment of the Court of Appeal is hereby confirmed. The respondent is entitled to costs which are assessed at N500.00.
BELLO, CAM.: I had a preview of the judgment just delivered by my learned brother Kawu, J.S.C. I concur.
I shall only make some observation on the interpretation put by Akanbi J.C.A. on section 48(1) of the Area Courts Edict 1968 which provides:
“48 (1) An inspector shall have power at any stage of the proceedings before final judgment, either of his own motion or on the application of any party to a cause or matter before an Area court, by order to stay the hearing of any cause or matter on such terms as he may consider just.”
In considering the power of an inspector, he stated as follows:
“However, when as in this case, all the witnesses has been heard, and the court had written its judgment and all that was left to be done was for the court to deliver the judgment in open court, it would to my mind, be ultra vires the powers of the Inspector to stay the pronouncement of that judgment. For in effect what the inspector did in the instant case is not to stay ‘the hearing of the cause or matter’ but to prevent the court from delivering its judgment a few days to the date fixed for the delivery of same.”
It appears from his interpretation of the powers of an inspector under the section, Akanbi J.C.A. applied the narrow meaning of the word “hearing” and limited it to the hearing of the witnesses of the parties and writing of a reserved judgment. He
thought delivery of the judgment was not part of the “hearing” of the case. I do not think that interpretation to be correct.
Now, section 48(1) states that an inspector may “at any stage of the proceedings before final judgment————— stay the hearing of any cause or matter” (Italics mine). For the correct interpretation of the sub-section, the extent in time within which the power may be exercised and the meaning of the word “hearing” must be ascertained.
It is trite law that where a court is empowered to do anything “at any stage of proceedings” it can do the thing at any time before the delivery of its final judgment. As long as there is any thing that remains to be done, the court may exercise the power if the justice of the case so demanded: Okafor v. lkeanyi & Ors. (1979) 3 & 4 S.C. 99 and the Duke of Buccleugh (1892) p.201. That being the extent of the time limit set by the phrase “at any stage of the proceedings”, it seems the addition of the words “before final judgment” to the phrase puts statutory emphasis on the meaning of the phrase. The power may be exercised at any time before delivery of final judgment. It cannot be exercised after the final judgment has been delivered.
Now, ‘the hearing of the cause” is the subject-matter on which the power to stay may be exercised. The Court of Appeal thought since the witnesses of the parties had been heard and judgment written, though not delivered, “the hearing” of the case ceased. Consequently, there was no “hearing” to stay.
The word “hearing” has a much wider meaning than the one ascribed to it by the Court of Appeal. To “hear” a cause or matter means to hear and determine it: see Stroud’s Judicial Dictionary, Fourth Edition, Volume 2. In re Green 51 L.J.Q.B. 25 at p.40 Lord Blackburn stated the meaning and scope of to “hear” a cause or matter in this terms:
‘There are various things to be done by him (a Judge) under the Act before the hearing and preparatory to it: orders as to evidence, orders as to attendance of witnesses, notices, orders for the production of documents. Technically those are not a part of the hearing, but I entertain no doubt whatsoever that those things, and every other thing preliminary and antecedent to the hearing, are covered by and are included in the authority to “hear’, which I consider means to hear and finally determine, ’The matter of the representation,” which I consider to be equivalent to the cause – the whole matter. Those antecedent things are in my judgment within that authority, and the “hearing” within the meaning of these words does not appear to me to terminate till the whole matter is disposed of; therefore it includes not only the necessary antecedents, but also the necessary or proper consequences.”
It is clear from the foregoing that from its commencement up to and including the delivery of final judgment, a case is in the process of being heard. Delivery of final judgment is an integral part of the hearing of a case. Under Order 14 rule 1 of the Area Courts (Civil Procedure) Rules 1972, the judgment of an Area Court is delivered by its pronouncement in open court by the Area Court Judge. Consequently, a written judgment which has not been pronounced in accordance with the rules is not a final judgment.
In the case on appeal the inspector stayed the delivery of the written judgment three days before it was for pronouncement. In my opinion, the inspector validly exercised the power. I dismissed the appeal because in the exercise of his supervisory power the Chief Judge of State the had set aside the Inspector’s order.
OBASEKI, J.S.C.: The issue of jurisdiction of the High Court to hear appeal from the Area Court was first raised in the Court of Appeal the ground being that T.U.F. Puusu, J., was not competent to sit with A.I.K. Alu, J. to hear the appeal. The objection is that when he was Chief Registrar of Benue State High Court, he dealt with the subject matter as there were petitions to the Area Court when the Inspector, Area Courts Inspectorate Office, Ankpa, transferred the case from the Area Court and prevented the Court from delivering its decision. The Chief Judge considered the matter and reversed the decision of the Inspector in writing. The letter conveying the Chief Judge’s decision was signed by P.S. Idachaba for Chief Registrar. The objection was also based on the ground that the proceedings were tainted with the likelihood of bias on the part of Hon. Justice T.U.F. Puusu, as he was the Ag. Chief Registrar of the High Court when the respondent addressed Exhibits A, B, C and D to his office and he signed the letter Exhibit E remitting the case for judgment.
The Court of Appeal found no substance in the argument of the appellants and so dismissed the appeal. Hence, the appellant lodged this appeal to this Court complaining of want of fair- hearing in the High Court and that the Court of Appeal was in error to have held that the Inspector of the Area Court acted in error.
Appellants’ further contention was that the Area Court had no jurisdiction on 25th May, 1984 to deliver the judgment, the suit having been transferred by the Inspector of the Area Court.
Their contentions have been dealt with fully in the judgment of my learned brother, Kawu, J.S.C. I agree with him and as his opinions accord with mine, I adopt those opinions as mine. I too will, for those reasons, dismiss the appeal and I hereby dismiss the appeal with N500.00 costs to the respondent.
NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Kawu, J.S.C. and I agree with his conclusions.
For purposes of this concurring judgment, I adopt the facts of this case as stated in the lead judgment except such as I may need for my comments. The appellants, having lost in the Court of Appeal, have now appealed to this Court. The two issues which necessitated the empanelling of this Constitutional Court (a full Court) are reflected in the two issues for determination as formulated by the learned Senior Advocate appearing for the appellants. These are,
- Whether the Ogugu Area Court Grade II had jurisdiction on 25/4/84 when it entered judgment for the Respondent in the light of the Inspector of Area Court’s Order of 13/3/84 staying proceeding and subsequently transferring the suit to another court, vis-a-vis, the High Court Registrar’s directive of 11/5/84 remitting the case back to the trial Court for judgment.
- Whether or not the Appellant had a fair hearing/trial given all the circumstances of this case.
Taking the first issue, it would appear that the Ogugu Area Court Grade II had completed hearing in the suit between the parties and on 29/2/84 adjourned it for judgment on 15/3/84. Before judgment could be delivered, the Inspector of Area Courts on 13/3/84 ordered a stay of further proceedings in the case and on 21/3/84 transferred the case to another Court. The Appellants contended that his action was valid, and that a subsequent directive of 11/5/84 remitting the case back to the Ogugu Court was invalid. Consequently the argument continues, the judgment delivered by that Court on 25/5/84 was without jurisdiction and was therefore Null and Void.
The Inspector of Area Courts purported to act under section 48(1) of the Area Courts Edict, 1968 (hereinafter referred to as the Edict). The Edict provides in section 48(1),
“An Inspector shall have power at any stage of the proceedings before final judgment, either of his own motion or on the application of any party to a cause or matter before an Area Court, by order to stay the hearing of any cause or matter on such terms he may consider just.” (italics mine.)
It does seem to me that the scope of this provision can be derived from its very words. The Inspector is empowered to take action at any stage of the proceedings before final judgment. I am of the view that by the provision of this section of the Edict up to that point such action can affect proceedings which have been concluded but in which judgment has not been delivered. But this is not where the section of the Edict ended. It proceeded to define clearly what action the Inspector can take. He can order the stay of hearing of any cause. It seems to me that makes all the difference to the proper meaning of this section of the Edict. Surely when the hearing of the cause is completed and judgment reserved, there is no hearing in respect of which the Inspector can order a stay. I am, therefore, of the view that the section must be read to mean that the Inspector can only order a stay of proceedings while the cause is being heard. I would certainly have agreed with the appellants if the section of the Edict had not used any words relating to hearing. I an, therefore, in agreement with the interpretation which the Court of Appeal put on it.
I respectfully disagree with Appellant’s counsel that the case of S.O.N. Okafor v. D.O. Ikeanyi & 3 Ors. (1979) 3 & 4 S.C. 99,107, supports his contention. That case was concerned with the refusal of a motion by one of the parties to amend the Statement of Claim on the day fixed for judgment but before the judgment was delivered. This Court held that the learned trial Judge was wrong. As Bello, J.S.C. (as he than was) said,
‘The object of the amendment was to comply with the rule of pleading. We cannot see what injustice would have been done to the Respondents by such compliance.”
The provisions of Order XXXIV of the High Court Rules of the former Eastern Nigeria under which the application was made reads,
‘The Court may at any stage of the proceedings either of its own motion or on the application of either party, order any proceeding to be amended…………….”
On the face of it, it would seem to be the same as section 48(1) of the Edict under consideration. I think, however, that there is a world of difference. While in my view there is no hearing to be stayed once there is further hearing, in this case on the day of judgment all the proceedings (here it was a statement of claim) are still before the Court and can surely be the subject of amendment. It is in fact trite that amendment can be taken at any stage even up to judgment.
The other case of Onyeama Ezenwa v. Samuel l. Mazelli & Ors. (1955) 15 W.A.C.A. 67, referred to by the Respondent’s learned counsel, Mr. Ayodele, in his brief, is a little more difficult. There the issue related to the question of joinder of new parties. There Commamond, Ag. C.J. made the following observation,
“I see no reason for restricting the meaning of the term “hearing” as suggested by Mr. Taylor, I consider that a trial Judge, may, where necessary, re-open the hearing before delivering his Final Decision. This is just what the learned trial Judge did in the present case. The order of joinder was made in the course of the re-opened hearing and I consider that it was properly made”.
I think the learned acting C.J., as indeed he did say, was moved by the power of the judge to order amendment so as to settle the main issues in controversy between the parties. I am of the view that the extension of the meaning of hearing which the learned Acting C.J. had in mind was the re-opening of hearing. I do agree with Respondent’s counsel that no such powers have been conferred on the Inspector under section 48(1) of the Edict. Once the hearing was concluded, as it was here, that in my view was the end of his powers.
I am strengthened in this construction by the fact that if the delivery of judgment is considered part of the hearing, the section would have been worded differently. If the Inspector is empowered to stay the hearing of any cause or matter and this can be done even when the matter is reserved for judgment, what is the hearing he is staying? I also think that it would have been unnecessary to add before any final judgment in the section. I would have had no other interpretation If the section had merely empowered the Inspector to order stay at any stage of the proceedings before final judgment without using hearing of the cause later in the section. In such a case, I would have held that at any stage of the proceedings before final judgment would cover a situation where judgment has been reserved.
This takes me to the next issue which is the effect of the directive of 11 /5/84. The said letter was signed by one P.S. Idachaba and was also issued on the directives of the Chief Judge. It was argued that that letter, which was Exhibit E in the proceedings in the High Court, was ultra vires the powers of the Chief Registrar. The directive given by the Chief Judge pursuant to which Exhibit E was written was said to have been given under section 43 and 44 of the Edict as amended by Edict No.9 of 1969. Section 44 provides as follows:
“44 (1) The functions of the Chief Registrar for purposes of this Edict shall include –
(a) the advising of the Chief Justice in respect of the constitution, jurisdiction and membership of Area Court,
(b) subject to the general or special directions of the Chief Justice, the organisation guidance and supervision of Area Courts.”
I do not think that there is any doubt that the Chief Judge (who has replaced the Chief Justice) has powers under section 44(i)(b) of the Edict to give general or specific directions to the Chief Registrar in matters pertaining to the “organisation, guidance and supervision of Area Courts.”
Such directions must include such as the Chief Judge gave in the instant case. Such a supervisory role was vested in the Chief Registrar and the Chief Judge to enable them maintain a high standard of performance by Inspectors of Area Courts as well as the Courts themselves. The significance of that role was clearly brought out in this suit in which, on the printed record, the Inspector of Area Courts issued his order of transfer of the cause to another Area Court when the case was reserved for judgment. He personally went to the Ogugu Area Court Grade II to cart away the records of proceedings! Although, I do not pass any judgment on the various petitions written by the Respondent to the Chief Inspector of Area Courts in the Chief Registrar’s Office, I am certain the Chief Judge must have been convinced that they raised substantial complaints before he gave the directives that led to Exhibit E. It follows that Exhibit E was well within the powers of the Chief Registrar and the Chief Judge. The letter Exhibit E in my judgment validly re- transferred the suit back to the Ogugu Grade 11 Area Court. The judgment of that Court on 25/5/84 was within the jurisdiction of that Court and cannot be attacked on that ground.
The judgment of the High Court which affirmed that decision was attacked on the ground that the appellants did not have a fair hearing/trial. This is issue No.2 as indicated earlier. This is clearly the more important issue for as this Court has held repeatedly, fair trial/hearing is a fundamental prerequisite for a just determination of disputes between parties.
The appellant’s complaint here was particularly that there was a likelihood of bias in that Hon. Justice U. Tefa Puusu, who was Acting Chief Registrar of the Benue State High Court at the time petitions and counter-petitions were addressed to his office, now sat as Judge on the appeal from the Ogugu Grade II Area Court. Of course, if indeed it could be established that Hon. Justice Puusu as Acting Chief Registrar, saw those petitions, and indeed was involved in the issuance of Exhibit E, he would be in violation of one of the twin principles of natural justice – Nemo debet esse Judex in propria sua (no one should be a judge in his own cause). He would be a judge in his own cause and the likelihood of bias would be easy to establish. Such a situation would vitiate the proceedings, for a violation of that maxim knocks at the very root to a fair adjudication under our system.
As Mr. Peterside did readily concede during oral argument in this appeal, the thing remains in the domain of speculation. There is no evidence that Justice Puusu saw those petitions, or more important, that he dealt with them. The petitions though addressed to the Office of the Chief Registrar were all marked For the Attention of the Chief Inspector of the Area Courts. In Whitford Residents and Rate prayers Association v. Manukan City Corporation (1974) 2 W. 2L. 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 form the subjective standpoint of an aggrieved party.”
and in R. v. Commonwealth Concilliation and Arbitration Commission ex pane 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 mind.”
I think the suspicion here was a fanciful one. See also State Civil Service Commission v. Buzugbe (1984) 7 S.C. 19; Olakunrin & 6 Ors. v. Ogunoye & 6 Ors. (1985) 5 S.C. 161, 193, 233. I do not find it necessary to examine L.P.D.C. v. Fawehinmi (1985) 2 N.W.L.R. 300 on which the appellants placed so much reliance as I think that case is clearly different from the instant case.
For these reasons, and the fuller reasons in the lead judgment, I too dismiss this appeal. I abide by all the orders made by Kawu, J.S.C.
OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Kawu, J.S.C. and I am in complete agreement with him that this appeal is totally lacking in merit.
It was thought that this appeal merited the empanelling of a full Court. And so the Chief Justice of Nigeria empanelled one. The constitutional issue calling for a full court was the issue of fair hearing raised by and in the Additional Grounds of Appeal. But as it turned out there was no basis of fact, no foundation, on which such an issue could be considered. The other issue agitated in the Appellant’s Brief was that following the order of transfer made by the Inspector of Customary Court the continued hearing of the case by the Ogugu Area Court and all other subsequent proceedings were all null and void.
It maybe helpful to state the facts of this case briefly. The Respondent as Plaintiff instituted an action against the Appellants in the Ogugu Area Court claiming as follows:
“Cause of action – Claim of fathers’ land situate at Okegbi Ogugu”.
The trial court heard the plaintiff and his three witnesses.
The Defendants also gave evidence and called three witnesses. The trial Judge visited the locus in quo and called 3 witnesses suo motu. On 29/2/84 the trial court adjourned the case to 15/3/84 for judgment. On the 13th March, 1984 two days before the date for judgment, the Inspector of Area Courts acting pursuant to the powers conferred on him by section 48(1) of the Area Courts Edict. 1968 ordered a stay of proceedings in the case and on 21/3/84 transferred the case to another court – the Ayangba Upper Area Court. This transfer opened the flood gate of petitions and Counter petitions culminating in an ‘order’ of the Hon. Chief Judge of the State directing the Ogugu Area Court to deliver its judgment which had been written and ready for delivery, before the transfer order was made by the Area Court Inspector. The Ogugu Area Court found for the Plaintiff. Dissatisfied the Defendants appealed to the Idah High Court, Appeal Division presided over by Hon. A.K.I. Alu (as he then was) and Tefa Puusu, J. who was the Chief Registrar where the petitions and counter petitions against the order of transfer made by the Area Court inspector were flying forward and backward. The High Court dismissed the Defendant’s appeal.
The Court of Appeal Jos Division likewise dismissed the Defendants’ appeal. The Defendants have now appealed to this Court.
During his oral argument in elaboration of, points and issues agitated in his Brief, learned counsel for the Defendants/Appellants – Brown-Peterside, S.A.N. said he would not be passing the order stopping the transfer but will leave the matter as argued in his Brief. There is no doubt about the power conferred on an Inspector by section 48(1) of the Area Court Edict 1968 which stipulates:
“An Inspector shall have power at any stage of the proceedings before final judgment either of his own motion or on application of any party to a cause or matter before an Area Court, by order to stay the hearing of any cause or matter on such terms as he may consider just.”
The expression “at any stage of the proceedings before final judgment “has been given judicial interpretation by our highest Courts. In Onyeama Ezenwa v. Samuel l. Mazeli & Ors. (1955) 15 W.A.C.A. 67 the West African Court of Appeal held that “during the hearing” or “at any stage of the proceeding” meant what it says. Thus at p.69 the court held:
“I see no reason for restricting the term “hearing” as suggested by Mr. Taylor. I consider that a trial Judge may, where necessary, re-open the hearing before delivering his final decision. This is just what the learned trial Judge did in the present case. The order for joinder was made in the course of the re-opened hearing and I consider it was properly made.”
If a case can be reopened anytime and at any stage before final judgment, then also it can be transferred anytime before final judgment if there exists a power (as there certainly did in the case now on appeal) to order such a transfer.
In Rainy v. Bravo. (1872) L.R. 4 P.C. 287 an application for an amendment was made when the trial Judge was in fact reading his judgment. It was refused as having been applied for, far too late. The Privy Council at p.298 held:
“At the end of his case it must have been apparent that there was a variance between the evidence of the witnesses and the statement of the libel in the declaration and then before the Judge had pronounced his decision was the proper time for the appellant to have applied to him for an amendment.”
The Privy Council allowed the amendment applied for when the judgment of the trial court was being read. What greater authority need be considered to arrive at the conclusion that “at any stage of the proceedings before final judgment” means just what it says. In the case now on appeal it was wrong of the appellate High Court and the Court of Appeal to hold that because the judgment had been written but not yet delivered it was then too late in the proceedings for the Area Court Inspector to order a transfer. It was not. The “Inspector was perfectly within his rights and his statutory powers.” But the matter did not end there.
The Chief Judge of the State in exercise of his own supervisory jurisdiction over Area Courts, conferred on him by section 43 of the Area Court Edict 1968, countermanded the transfer order of the Inspector. During his oral argument Mr. Brown Peterside was asked which of the two orders will prevail. He conceded that the C.J.’s order will supercede that of the Area Court Inspector. And that is quite correct. This knocked the bottom out of any ground of appeal or/and arguments based on the Inspector’s transfer order. All arguments and suggestions that proceedings after the transfer order were nulltties, can no longer be maintained or sustained as they are now powerless and ineffectual.
The next important issue canvassed before us was the alleged infringement of the Defendants/Appellant’s right to a fair hearing by reason of the alleged involvement of Puusu, J. in the petitions and counter-petitions that led to the C.J.’s Order.
It is the general principle of our law that magistrate and judges, and in fact all those exercising be it but a quasi judicial authority, ought to be quite clear of any interest in the case brought before them. Pecuniary interest is the commonest and most effective type of disqualifying interests. But it is not the only one. It has been held that a fore- knowledge, a previous knowledge of the facts of the pending case is something reasonably likely to bias or influence the mind of a judicial officer – a judge or Magistrate – In a particular case see J.O. Abbey v. A.L. Lamptey (1947) 12 W.A.C.A. 156. In that case there was an order of transfer to Land Court before a named Judge. That Order was not promptly drawn up. The case was ultimately heard by Coussey, J. (as he then was) who was already aware of the facts. The West African Court of Appeal at p.158 observed:
‘There is no question in the present instance of the learned Judge having any interest in that particular case either pecuniary or otherwise, but can it be said that a fore-knowledge of the facts of the case is not “something reasonably likely to bias or influence” his mind? We think not, and while we would not wish to be understood for one moment as expressing the view that the learned Judge did allow or would have allowed his previous knowledge of the facts consciously to affect his judgment thereon, it is our opinion that, in trying these cases of the facts of which he was already aware, as appears from the Order of the 4th April, 1945 the learned Judge followed a course, no doubt unwittingly, which was inconsistent with the principle which requires that justice should not only be done, but that it should be apparent also that it has been done.”
But before the principle of 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. and Chief Registrar not only dealt with the petitions and counter- petitions but also had a fore-knowledge of the facts of the case before he became a Judge. When asked by the Court to show the evidence of Puusu, J.’s connection with the facts of this case Mr. Brown-Peterside, S.A.N. replied:
There is nothing on record showing that as C.R. (Chief Registrar) Puusu dealt with or saw the petitions. But I ask the Court to infer that as C.R. he did”
At this stage the Honourable the Chief Justice of Nigeria cut in an said:
This is speculation not fact and this Court cannot go on speculation. It goes on facts’
Justice Coussey’s disqualification in Abbey v. Lamptey (supra) was based on the evidence of the transfer order itself. It was based on hard, solid fact. To invite this Court to start considering bias and want of fair hearing of mere speculation and doubtful inferences, learned counsel is inviting us to embark upon a sea which has no shore. We will decline that invitation. This ground of appeal also fails.
Learned Counsel for the Appellants canvassed two major points in support of this appeal. The first was about Transfer Order of the Area Court Inspector. This failed and amounted to nothing. The second was about fair hearing – that too failed and amounted to nothing. To express it in arithmetical term 0+0 = 0. The entire appeal therefore fails.
In the final result and for all the reasons given above and also for the fuller reasons in the lead judgment of my learned brother, Kawu, J.S.C. I will and do hereby dismiss this appeal with N500.00 costs to the Respondent.
NNAEMEKA-AGU, J.S.C.: This is a further appeal by the defendants against the judgment of the Court of Appeal, Jos Division, in a land case.
The plaintiff had claimed title of ownership to land in dispute in the Area Court II, Ogugu. After hearing the witnesses called by both sides the Area Court not only inspected the land in dispute in the presence of both parties but also, suo motu, took evidence in the matter from the Beaded Chief of the area, Ochogu Okeleji Idoko, the Village Head, Yunusa Oko, and the District Head, Thomas Akpa Onoja, each of whom was presented to the parties for cross-examination. On 29/2/84, the court concluded hearing and adjourned for judgment. The judgment was actually written, signed and dated 15/3/84 but was not read in open court until 25/5/84, for reasons which I shall now give.
Apparently because of some form of representation which the defendant made to the Inspector of the Area Court, Ankpa, – strikingly there is no petition to him from the defendants on record he, on the 13th March, 1984, came in person to the Area Court, Ogugu, and physically took custody of the record book of the court and thereby prevented the judgment of the court from being announced. He formally made the order of transfer in writing on 21/3/84. By several petitions, on record as Exhs. A to D, each addressed to:
The Chief Registrar, Judicial Department, Makurdi.
For the attention of.
The Chief Inspector for Area Court, Inspectorate Division,
Makurdi.”
The plaintiff accused the Inspector, Area Court, Ankpa, of having acted in complicity with the defendants and of having been influenced by some personalities in the defendants’ clan to transfer the case from Ogugu Area Court. Then, in response
to these petitions, one P.S. Idachaba, the Chief Inspector for Area Courts, Inspectorate Division of the High Court, wrote Exh. E, which has been copied in the lead judgment of my learned brother, Kawu, J.S.C. I may observe that at the time of these petitions and reply, one Mr. T.U.F. Puusu was the Chief Registrar of the High Court. But there is nothing on record to show that he ever saw the petitions or the reply or ever dealt with them.
However, in accordance with the directive in Exh. E, the Ogugu Area Court II went ahead and delivered its judgment on 11/5/84 and unanimously found for the plaintiff. The defendants’ appeal to the High Court, coram: T.U.F. Puusu (who had become a High Court Judge) and A.I.K. Alu, J., which court dismissed the appeal. Their further appeal to the Court of Appeal, Jos Division, was also dismissed by Akanbi, Jacks, and Macaulay, JJ.C.A.
In this yet further appeal to this Court, no issue of the fact has been raised. The two issues for determination as raised by the grounds of appeal filed on behalf of the appellants have been summarised by learned counsel on their behalf thus:
- ‘Whether the Ogugu Area Court Gd. II had jurisdiction on 25/5/84 when it entered judgment for the Respondent in the light of the Inspector of Area Court’s order of 13/3/84 staying proceedings and subsequently transferring the suit to another Court, vis-a-vis the High Court Registrar’s directive of 11/5/84 remitting the case back to the trial court for judgment.
- Whether or not the Appellants had a fair hearing/trial given all the circumstances of this case.”
Dealing with the first issue first, it appears.to me that the correct answer depends on the proper interpretation of sections 48(1) – (4) of the Benue/Plateau State Area Courts Edict, 1968 as well as sections 43 and 44 of the same which spell out the positions and functions of the Chief Judge and the Chief Registrar in the matter. In sum-
(i) Section 43 gives to the High Court general supervisory powers over Area Courts. This power includes that to determine, on the application of either party to a cause, in which Court the cause may be heard.
(ii) Section 44 of the Edict (as amended by Edict No.9 of 1969) gives to the Chief Registrar of the High Court the powers of an Inspector under the Edict and generally gives him the power of organisation, guidance, and supervision of Area Courts. On the materials before us in this case a Chief Inspector in charge of the Inspectorate Division of the High Court, one Mr. Idachaba, who personally exercised inspectorate function on behalf of the Chief Registrar.
(iii) Section 48(1) and (2) of the Edict give to the Inspector of Area Courts the power to transfer any cause or matter, at any stage of the proceedings to another Area Court, either on his own motion or on the application of any party in the case and to order a stay of proceedings until the complaint has been inquired into.
(iv) Section 48(4) provides that where a matter has been reported to the High Court under the Edict, it shall direct in what mode and in what Court the cause or matter may be heard and determined.
(v) Section 49 deals differently with stay of proceedings by and under an order of transfer.
It appears to me therefore from the above that the Inspector of the Area Court, Ogugu, had the power to order a transfer of the matter before the Ogugu Area Court and that that order operated as a stay of proceedings. With respects, I do not agree with the learned Justices of Appeal that in the circumstances of this case in which judgment had been reserved for delivery on the 15th of March, 1984, the inspector of Area Courts physically seized the records of the case and transferred them to another Court, that it can be said that the hearing had been completed. In the case of S.O.N. Okafor v. D.O. Ikeanyi & 3 Ors. (1979) 3 & 4 S.C. 99, this Court held that a power of stage of the proceedings was exercisable even where the Court had adjourned the case for judgment but judgment had not been delivered. See also Onyeama Ezenwa v. Samuel lkegbunam Mazeil & Ors. (1955) 15 W.A.C.A. 67 where a power of joinder of parties was exercised after the case had been adjourned for judgment. So, at any stage of the proceedings includes the period up to the delivery of judgment I do not think that the meaning of the provision has in any way been whittled down by the fact that what is to be stayed is “the hearing”. This is because to ‘hear’ a matter is to hear a determine it. It follows, therefore, from what I have been saying that the Inspector of Area Courts, Ogugu, had the power to transfer the case at that stage of the proceedings. His manner and reasons for exercise of the power are different questions which do not arise in this appeal. No ground of appeal complains of the manner of exercise of the power as such. That order of transfer operated as a stay of proceedings.
The joint effect of sections 43, 44 and 48 of the Edict is that the High Court had general supervisory jurisdiction over Area Courts. That jurisdiction includes the power to look into complaints such as raised by Exhs. A – D in these proceedings. In particular, section 48(4) gives the Chief Judge the power to direct in what Court the cause or matter should be heard and determined. Therefore, when Mr. P.S. Idachaba for Chief Judge directed that the matter be sent back to Ogugu Area Court for determination, the Chief Judge was within his powers. I therefore agree that the judgment which that Court read thereafter was in order. I must, therefore, resolve the first issue against the appellants.
The facts upon which the issue of fair hearing is based fills within a very narrow compass, factually. It is this that Mr. Puusu was holding the office of Chief Registrar at the time when the petitions Exhs. A – D were written to the High Court. As Akanbi, J.C.A., rightly in my view, pointed out, there is nothing to show that he took the decision which resulted in Exh. E or even saw any of the petitions himself. Clearly there was an Area Court Division in the High Court which was headed by one P.S. Idachaba, as Chief Inspector of Area Courts, who did all material acts in the name of the Chief Registrar. Later Mr. Puusu was appointed a High Court Judge and along with Honourable Justice A.I.K. Alu heard and determined the appeal in the case in the High Court of Benue State. It is on the above facts that the learned counsel for the appellants has submitted that in view of the fact that the petitions (Exhs. A – D) and the decision thereon (Exh.E) were entertained and made in the Inspectorate Division of the High Court when Honourable Justice Puusu was Chief Registrar his taking part in the decision in the High Court amounted to unfair hearing.
I must begin my consideration of this aspect of the appeal by associating myself with an important observation which Akanbi, J.C.A., made in the Court below. He noted, and I agree with him, that the appellants in the High Court failed to confront Hon. Justice Puusu with the fact that he saw Exhis. A to D and took part in the decision which led to Exh. E. Moreover, on the face of it, Exh. E was written by Mr. P.S. Idachaba at the direction of the Honourable Chief Judge of Benue State and all the petitions were written “For the Attention of The Chief Inspector, Inspectorate Dim vision High Court of Justice Makurdi.”
There is therefore nothing upon which to hold that Mr. Puusu, as Chief Registrar, ever saw or dealt with the petitions. I must, therefore, consider the issue on the footing that the sole ground upon which the issue of fair hearing is being raised is that Mr. Puusu was holding the office of Chief Registrar at the time but that there is nothing to show that he saw or dealt with the petitions.
The tenor of the argument on behalf of the appellants dictates that I must first consider the nature and essence of this aspect of fair hearing. It is an extension of the maxim: nemo/udexin cause sue -no one can be a judge in his own cause. Judicial developments have extended it to prohibition of participation in the adjudication of cases in which a party has interest. The grounds of objection are that there is a real likelihood of bias on his part and that justice must not only be done but must be seen to have been done. The interest which may disqualify a judge from adjudication may be pecuniary or for favour. The difference in essence between the two is that proof of any pecuniary interest in the subject matter of the case, however small, on the part of a judge, disqualifies him from adjudication. In the second class of bias, that is challenge for favour, there must be actual evidence upon which it can be based. This may be as a result of a proven personal relationship of the judge to one of the parties, or to his having previously played a role whereby he cannot be expected to receive the evidence in the instant case and decide the issues with an open mind. Blackburn, J., adumbrated the law in the case of Queen v. Rand & Ors. (1866) L.R. 1 Q.B. 230.
But Sir A.R. Smith, M.R., Summed up the law on the aspects of bias in Rex v. Sunderland Justices (1901) 2 K. B. 357, at pp.366-367, thus –
“If the justice acting is pecuniarily interested, there clearly is a bias which disqualifies him ——————— ——— Then what is the rule with regard to bias in cases other than those in which there is a pecuniary interest on the part of the justice? ————— ———————— —————————— ——————— —But the only way in which the facts could affect their impartiality would be that they might have a tendency to favour those for whom they were trustees; and that is an objection not in the nature of interest, but of a challenge to favour. Wherever there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong in him to act; and we are not to be misunderstood to say that, where there is real bias of this sort, the Court would not interfere.”
Therefore in cases of bias other than for 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 and 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 that country. See:
Obadara & 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 S.C. 128; Umenwa v. Umenwa (1987) 4 N.W.L.R. (part 65) 407.
All that all the cases on the point come to is this: Where there is an allegation of a real likelihood of bias on the part of the 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. Once it is established by evidence, the Judge is disqualified from adjudicating in the case if it is a trial court, but If he has decided the matter, his decision will be set aside on appeal or upon review. For this purpose the appellate or reviewing court is not concerned with proof of actual bias, but in proof of circumstances and facts which make it likely that the trial Judge was likely to be biased. It is not a technical doctrine but a rule of substantial justice. This means that it affects a judgment when a substantial rule of hearing before deciding or hearing by a person not interested and not likely to be biased in favour of one party has been shown to have been infringed or clearly threatened with infringement not when a mere technical rule is suspected to have been infringed. This explains the stand of this Court in cases relating to variation of panels of Native Court/Customary Court Judges. In Adeigbe AND ANOTHER v. Salami Kusimo & Ors. (1965) N.M.L.R. 284, the Supreme Court made it clear that variations in such panels were not an issue that went to the jurisdiction of the court, but was an irregularity the effect of which would depend on the effect it had on judgment itself. See also Ogiamen v. Ogiamen (1967) N.M.L.R. 245. Hence in The Olulebu of ljebu v. Oso, The Eleda of Ede (1972) 1 All N.L.R. (pt.ll) 93 where two members who did not take part in the hearing of a case sat in, among four members who heard and decided the case, during the delivery of the judgment, the Supreme Court held that no rule of natural justice was breached in so far as those two who did not hear evidence in the case were not shown to have taken part in the decision. In the instant appeal, the position would have been different if Mr. Puusu (as he then was), as the Chief Registrar was shown to have done anything in connection with Exhs. A, B, C and D. But no evidence to that effect was on record.
In Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 N.W.LR. 300, at p.334, which the appellants rely upon, it was clear that the then Attorney-General of the Federation, Chief Akinjide, took part in the deliberations of the Bar Association where the alleged misconduct of Chief Fawehinmi was discussed and decision taken to prosecute him before the Committee. Then, as he had statutory responsibility over such matters, his office initiated the proceedings before the Committee.
And the Honourable Attorney-General was a member of the Committee. He was then one of the complainants, the prosecutor, and a judge in the same matter. It was held In the circumstances that a clear case of likelihood of bias had been made out. This case is different. There is nothing to show that Mr. Puusu, as Chief Registrar, ever had personal knowledge of the facts of, or complaints in, the case. Applying the above principles to the instant case, it will be seen that all that the appellants were able to show was that Honourable Justice Puusu who took part in the case on appeal to the High Court was at the time that the petitions (Exhs. A-D) were written to the High Court registry for the attention of the Chief Inspector of Area Courts. Acting Chief Registrar of the Benue State High Court. There is nothing to show that he saw the petitions or took part in the decision conveyed in Exh.E. There is therefore nothing to show that anything which took place while he was in the High Court Registry affected his mind during the process of adjudication in this case. I therefore agree with the learned Justices of the Court of Appeal that the allegation of a real likelihood of bias was not proved.
For all I have said above for the fuller reasons contained in the judgment of my limed brother, Kawu, J.S.C., I also dismiss the appeal as lacking in substance.
1 subscribe to the orders made in the said lead judgment.
WALI, J.S.C.: I have had the privilege of reading in advance the lead judgment in this appeal, of my learned brother, Kawu, J.S.C. and I agree with his reasoning and conclusions which I hereby adopt as mine.
The brief facts of the case resulting in the present appeal are as follows –
The Respondent in this appeal instituted an action against the appellant at the Ogugu Area Court claiming his father’s farmland situated at Okpegbi Ogugu. All the appellants denied the respondents’ claim whereupon the respondent was called upon by the Court to adduce evidence in support of his claim. He called three witnesses. The Court then called upon the appellants who testified for themselves and called three other witnesses who testified in their favour. The Court, pursuant to the provisions of Order 13 Rule (1) of the Area Courts Civil Procedure Rules 1972, suo motu called 3 witnesses who also testified before it and on the 29th of February, 1984, adjourned to the 15th day of March, 1984 the case for judgment.
However, before judgment could be delivered, the Inspector of Area Courts, and by virtue of the powers conferred on him by section 48(1) of the Area Courts (Amendment) Edict No. 6 of 1969- Edict of Benue State, issued on 13th March 1984, an order of stay of further proceedings in the case and subsequently transferred it to another court on 21st March 1984. At the time the proceedings were stopped, the trial court had already written the judgment in the Record Book.
As a result of this order there were petitions and counter- petitions by both the Respondent and the Appellants respectively. The Hon. Chief Judge of the State exercising the powers conferred on him by sections 43 and 44(1) of the Area Courts (Amendment) Edict No. 6 of 1969, issued a directive through his Chief Registrar remitting the case to the trial court for continuation and delivery of the judgment that had already been written and contained in the court’s Record Book.
Against this order, the appellants’ appeal to both the High Court Benue State and the Court of Appeal Jos, respectively, were dismissed.
The appellants have now further appealed to this Court. Four Grounds of Appeal were originally filed and with the leave of this Court, two more were added. Parties filed and exchanged briefs which they adopted during the oral hearing.
It was part of the appellants’ complaints that the letter in which the Chief Judge’s directive was conveyed was written and signed by one P.S. Idachaba on the instruction of the then Chief Registrar, Mr. T.U.F. Puusu, and that at the time the case was considered on appeal by the Benue State High Court, the same T.U.F. Puusu had become a judge of that court and also sat in the panel that adjudicated on the matter.
The following Issues were formulated by the appellants in their brief for determination by this Court:-
“1. Whether the Ogugu Area Court Gd.ll had jurisdiction on 25/5/84 when it entered judgment for the Respondent in the light of the Inspector of Area Court’s order of 13/3/84 staying proceedings and subsequently transferring the suit to another court, vis-a-vis the High Court Registrar’s directive of 11 /5/84 remitting the case back to the trial court for judgment.
- Whether or not the Appellants had a fair hearing/trial given all the circumstances of this case.”
Learned Counsel for the Respondent formulated four issues which have substantially been covered by the two issues formulated by the appellants and reproduced supra.
In the course of his oral submissions before the Court, learned Counsel for the appellants, Mr. Brown-Peterside, S.A.N. conceded that the question of bias as it affects fair hearing was based on speculation and not on facts as there was nothing to show on the printed record that Mr. Puusu, in his capacity as the Chief Registrar did anything in the case. Learned Counsel for the appellants also agreed and conceded that the issue of ‘Waiver” is hinged to the complaint involving ‘fair hearing”, and since there were no facts to support the latter, he cannot argue the point. The mere fact that Mr. Puusu (now a Judge of the High Court) was the Chief Registrar of the Benue State High Court at the time the Chief Judge’s directive complained of was carried out by Mr. Idachaba is not enough to sustain the allegation of bias made against him as there is nothing to show that he took any action on the petition other than passing the Chief Judge’s directive to Mr. Idachaba who conveyed the same to the trial court.
On the question of application and interpretation of section 48(1) of the Area Courts (Amendment) Edict of 1969 and which is linked with issue (1) in the appellants’ brief, sections 43 and 44(1) of the Edict have made the position clear. While section 48(1) vests the Inspector of Area Courts with power, “at any stage of the proceedings before final judgment, either of his own motion or on the application of any party to a cause or matter before an Area Court, by order to stay the hearing or any cause or matter on such terms as he may consider best, sections 43 and 44(1) of the Edict vest the Chief Judge with the general power of supervision of these Courts thus enabling him to countermand, in the interest of justice, any directive given by the Inspector in the exercise of that power.
The two sections provide as follows:
“43. (1) Subject to the provisions of section 27 of the High Court Law, all Area Courts shall be subject to the general supervision of the High Court.
(2) Without prejudice to the generality of sub-section (1), if it shall appear to the high Court that –
(a) it is necessary for the purpose of securing, as far as possible, a fair and impartial trial; or
(b) it is expedient in the interests of justice generally, that a particular cause or matter which is within the jurisdiction of an Upper Area Court should not be tried at first instance by any other Area Court having jurisdiction to do so, the High Court may order that such cause or matter shall be tried by such Upper Area Court.
(3) The powers of the High Court under this section maybe exercised by it either on its own motion or on application of any party to a cause or matter in an Area Court.”
The functions of the Chief Inspector for the purposes of this Edict shall include:
(a) the advising of the Chief Justice in respect of the constitution, jurisdiction and membership of Area Courts;
(b) subject to the general or special directions of the Chief Judge, the organisation, guidance and supervision of Area Courts.”
The provisions in sections 43 and 44(1) show that the exercise of the power by an Inspector of Area Courts is subject to the directives as may be given by the Chief Judge.
For these and the more detailed reasons contained in the lead judgment of my learned brother, Kawu, J.S.C., I too hereby dismiss the appeal and abide by the consequential orders made by him.
Appeal Dismissed.
