Kujore & Ors V. Otubanjo (1974)

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FATAYI-WILLIAMS, J.S.C.

The present appellant had been substituted for the plaintiff (now deceased) who had commenced these proceeding against the respondents as defendants in the Ijebu Ode Grade “A” Customary Court. Her claim was for declaration of title according to customary law to a piece of land behind No.5, Modisa Street, Oyingbo, Ijebu-Ode. She also claimed damages for trespass and an injunction.

The first defendant was at the material time the General Trustee of the African Church (Incorporated) while the other three defendants were the President, Treasurer and Secretary, respectively, all of the Bethel African Church, Ijebu Ode. They were all sued as representatives of the said Bethel African Church.

At the hearing in the Customary Court presided over by Chief E. Akinola Cole as sole President on 31st August, 1966, Mr. Odedina, who appeared for the plaintiff made certain allegations which the learned President recorded as follows:

“Mr. Odedina for plaintiff says he had instructions from his client that the president is legal adviser of the African Church, Ibadan Division, as such plaintiff do not feel that justice would appear to be done by me. He therefore asks for an adjournment to consider his client’s instruction.”

It is significant that the learned President against whom the allegation couched in the most polite and delicate terms, was directed did not see it fit to admit or deny the allegation immediately. Instead, he merely ignored it and adjourned the case to 30th September, 1966, for mention. After other adjournments, the learned President heard evidence from both sides during which one Emmanuel Oladiran Peter (2nd D/W) testified that he was once the Bishop in charge of the “Lagos Ijebu Division of the African Church” and that the land in dispute belongs to the “African Church”. The 1st defendant, who is the General Trustee of the Church, also testified and produced the Certificate of Incorporation (Ex.B) of the African Church. He testified that the Bethel African Church at Ijebu-Ode is a branch of the parent organisation. The learned President, in a reserved judgment, dismissed the plaintiff’s claim.

The plaintiff appealed to the Ijebu-Ode High Court against the judgment. The two “grounds of appeal argued before the learned judge of appeal read:

“( 1) that the trial is a nullity in that the presiding President being a member and the Chancellor of the African Church Incorporated, is an interested party and as such cannot preside over a matter in which he has an interest;

(2) That the trial President is biased in favour of the defendants as shown by his readiness to believe the Bishop of the defendants.”

At the hearing of the appeal, Mr. Adefalu who appeared with Chief Okenla for the defendants conceded that Chief Akinola Cole, the President of the Grade “A” Customary Court which tried the case, was legal adviser to the Ibadan Division of the defendants’ Church. He then submitted that notwithstanding this official position of the learned President in the Church’s set-up, it was the duty of the plaintiff to show that the President’s “interest is pecuniary or proprietary”. Learned counsel also complained that the plaintiff never pursued the complaint and did nothing beyond raising the matter.

In considering the arguments adduced before him, the learned judge of appeal observed as follows:

“Justice, it has always been said, must not only be done, but must appear to be done. Unfortunately, the learned President recorded no comment of this allegation. He did not record that it was not correct that he was (Le.up to the time the hearing was due to begin, since the allegation used the word ‘is’) legal adviser to one of the parties. Much as one would doubt whether he could be legal adviser as well as court President at the same time, the other side of the picture is that it was not impossible for him (although it may not be proper or right) to act as legal adviser possibly gratuitously on religious grounds to a church organisation. In fact, he was in the grounds of appeal described as Chancellor, although that description was not pursued.

Viewing the whole situation in a broad way, I consider that a judgment delivered by a legal adviser to one of the parties in favour of the person to whom he serves as legal adviser should not in the interest of justice be allowed to stand.”

The learned judge of appeal then allowed the appeal and ordered a retrial of the action in the same Ijebu-Ode Grade “A” Customary Court but before another President.