Tasie Nwokanma V. Okachi Azuokwu & Anor (2000)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

This is an appeal against the ruling of the High Court, Isiokpo, Rivers State, wherein the court by an order of certiorari quashed the decision of the Isiokpo Customary Court given in favour of the appellant herein (as 2nd plaintiff) and his co-plaintiff representing the Nsirim family. That judgment resulted from an action instituted by the plaintiffs against the 1st respondent herein as the sole defendant representing the Azuokwu Umuisioha family. The plaintiffs claimed general damages for trespass to a parcel of land. After a full hearing, during which it heard four witnesses for the plaintiffs and five for the defendant, the court visited the land. At the locus in quo it heard more witnesses summoned by it. In its judgment it ruled in favour of the plaintiffs in part.

The defendant was dissatisfied with the judgment. His legal advisers believed that, because no Customary Court of Appeal existed in the State at the time, the only way out was to approach the High Court for a judicial review. Thus after obtaining leave ex-parte from the lower court, they applied for an order of certiorari to quash the judgment. Initially, the matter was against the Customary Court alone. On the application of the appellant, however, he was joined as the co-respondent, with the Customary Court standing as respondent. This party, however, took no part at all in the proceedings in the court below or before us.

Accompanying the application were an affidavit and a statement. The 1st respondent, as applicant, in the court below later amended the statement with leave of the court. The amended statement specified the following three grounds in support of the reliefs sought:
“1. The Isiokpo Customary Court has no jurisdiction to determine suit No. ICC/33/88 because the subject matter of the suit is land in an urban area.
2. The chairman and members of the Isiokpo Customary Court were biased in their judgment of suit No. ICC/33/88 and thereby failed to consider necessary evidence for the just determination of the suit.
3. As at the time of the judgment in suit No. ICC/33/88 there was no Customary Court of Appeal that the applicant can appeal against the said judgment”.

After hearing counsel for the parties that appeared before him the learned Judge, F.K.C. Peter-Amain J., delivered his ruling on 3/2/94, refusing the application on ground 1 but granting it on ground 2. After citing a number of cases relating to bias on the part of a tribunal, the learned Judge concluded at page 91 of the record:
“Applying this (i.e. the principle in the authorities cited) to the instant application. I will ask whether there are circumstances for any right thinking person to infer that there is a likelihood of bias. From the record of proceedings and the statement accompanying the motion and the affidavit evidence of both parties, I have no doubt in my mind that the circumstances of refusing the applicant’s witness to testify, calling a host of witnesses and exhaustively cross examining the said witnesses with influence a reasonable person to infer that there is real likelihood of bias on the part of the Customary Court judges in their conduct of this matter.
Lord Denning said in the Metropolitan case, supra,
‘Justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking, the judge was biased’.
In the total analysis I have come to the conclusion that from the circumstances of the case, I will hold that there is likelihood of bias in the Customary Court judge’s handling of this matter”. (Brackets and content supplied).

Dissatisfied with this conclusion, the co-respondent/appellant has come before us on six grounds of appeal. In compliance with the rules of this court, counsel on his behalf filed a brief of argument in which he identified only one issue for determination, which reads:
“Whether the learned judge of the court below was right to hold as he did that there is a likelihood of bias in the Customary Court judges’ handling of this matter”.

A brief of argument was also filed on behalf of the applicant/respondent. The following issue for determination was identified.
“Whether from the circumstances surrounding the trial or the suit in the Customary Court Isiokpo, the judge of the High Court Isiokpo was wrong to have, by order of certiorari, quashed the decision/judgment of the Customary Court in Suit No. ICC/33/88”.

Counsel on both sides have thus raised the same questions. I shall, therefore, go into all the points they have raised in their respective arguments, of course ignoring all the irrelevant ones, which, unfortunately, amount to quite a tidy lot.

Mr. E. A. Amadi argued in the appellant’s brief of argument that by ruling the way he did, the learned Judge granted to the respondent relief based on grounds different from the ones contained in the accompanying amended statement. Counsel referred to Order 43, Rule 6(1) of the Rivers State High Court Civil Procedure Rules. He then drew attention to the accompanying statement, which, he pointed out, contained only three grounds supporting the reliefs, the second being the only one relevant to this appeal. He contended that this ground is different from and in no way related to the grounds on which the learned Judge based his ruling. The grounds on which the Judge decided the case, he finally complained, were his own formulation.

Mr. H. D. D. Uwom answered this point by contending that the learned Judge based his decision on the same grounds as the 1st respondent set out in the amended statement accompanying his application. Counsel drew attention to the grounds stated in the statement, especially ground 2, which I set out earlier on in this judgment.
Counsel then argued that –
“The ‘And’ is disjunctive. In the main, the 1st respondent alleged that the Customary Court was biased and also that the bias made them not to consider relevant evidence. So, even if it was not proved that they failed to consider relevant evidence the parent/substantive issue/ground or bias is not affected and remains intact”.

By this submission, I understand learned counsel to be making two points. Firstly, counsel appears to have conceded that it had not been established that the Customary Court failed to consider any relevant evidence. Nowhere in the brief did counsel draw attention to the failure by the court to consider relevant evidence. Nor in my view, could he, for the judgment of the Customary Court shows that the judges considered every aspect of the evidence before them.

The second point made by counsel is in effect that merely alleging that the tribunal whose decision is complained of was biased without specifying any particular ground for the allegation is sufficient. This is a reasonable interpretation of counsel’s argument here. Saying, as counsel has done, that it does not matter if the specified ground fails amounts, in my view, to the same thing as saying that it does not matter if no ground at all was specified in the first place.

With all due respect, I cannot agree with counsel on this point. Bias is a concept that cannot exist in vacuo. One cannot allege bias against another unless something has happened to make one come to the conclusion that the other is biased. There must always be something that leads one to say that there has been bias on the part of another. This interpretation is intrinsic in the very nature and content of the word ‘bias’. According to Jowitt’s Dictionary of English Law, 2nd ed. by John Burke, the word, in relation to anyone acting in a judicial capacity, conjures up the idea of-
“anything which tends or may be regarded as tending to cause that person to decide a case otherwise than on the evidence”. (Italics mine for highlight).
That something that happened, or the thing that tends to or may be regarded as tending to convey the impression, together with the allegation, in my view, make up the ground of bias for the purpose of the requirements of Order 43, Rule 6(1) of the High Court Civil Procedure Rules regarding the content of the statement. It cannot be enough, if it is to be meaningful, to merely allege bias without at the same time alleging some circumstances from which one can infer it. It follows, in my view, therefore, that whoever alleges bias must state his reason for suspecting, or the circumstances from which he expects the court to infer bias.

From what I have said, it is my view that the 1st respondent had not raised a proper ground, as bias against the Customary Court. He has merely alleged bias in the statement accompanying his application without specifying what prompted him to make the allegation. As has been seen, counsel on his behalf conceded that the alleged circumstance that he specified, i.e. that the court did not consider all necessary evidence has not been proved to exist.