Col. Jubrin Bala Yakubu V. The State & Ors (2007)

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CLARA BATA OGUNBIYI, J.C.A

The appeal in this matter is against the ruling of the High Court of Lagos State, Ikeja Judicial Division dated 3rd August, 2004 in charge NO.LCD/108/99 delivered by the Hon. Justice J. O. K. Oyewole in the exercise of his original jurisdiction.

The Appellant herein, as the 4th accused at the lower Court, was charged jointly with the 2nd to the 5th respondents with the offences of conspiracy, attempted murder, and causing grievous bodily harm contrary to the various provisions of the Criminal Code Law of Lagos State.

The brief facts of this case were that by a motion on Notice dated 5th July, 2004 the 4th respondent in this appeal as the 3rd accused at the lower court prayed the court to decline further adjudication in the trial on the ground of bias or likelihood of bias constituting antagonism to him or favoritism or partiality in favour of the prosecution. The stated grounds predicating the application were that:-

“(i) The 3rd accused/applicant is constitutionally entitled to a fair trial.

(ii) It is a constitutional requirement that a court seised of a case should be manifestly seen to be free from bias or partiality in the discharge of its judicial duties.

(iii) The trial judge has continuously demonstrated bias or likelihood of bias either against the 3rd accused and or in favour of the prosecution in this case by reason of which his impartiality in the case cannot be guaranteed or is in grave doubt.

(iv) The impartiality of the trial judge constitutes or is likely to occasion breach of the right of the 3rd accused/applicant to fair hearing in the case.

(v) A party whose right to fair hearing in any case is breached or is likely to be breached by the trial judge is entitled to complain against the breach or threatened breach of his right to fair hearing in the same proceedings.

(vi) The breach or likely breach of the constitutionally guaranteed right of the 3rd accused to fair hearing is a matter affecting the jurisdiction or competence of the trial judge or the court to exercise any adjudicatory power in the case.”

In the ruling of the learned trial judge delivered on the 3rd August, 2004 the application was dismissed as incompetent, and lacking in facts to substantiate the allegations of bias or likelihood of bias. The appeal at hand is therefore’ against the said ruling and same which was filed by the 4th accused as the appellant. The notice of appeal dated and filed on the 17th August 2004 contained four grounds of appeal. In accordance with the rules of court brief of arguments was filed on behalf of the appellant. None of the respondents however filed any respondents brief in response.

On the 20th November 2006, when the appeal was called up for hearing, Mrs. M. Afikuyomi represented the 2nd respondent; Mr. O. Esi also appeared for the 3rd respondent, while Abdul Fatai Alao- Thomas was for the 4th and 5th respondents. Both the appellant and the 1st respondent were neither in court nor were they represented by any counsel. All counsel in court urged that the matter be adjourned. However, the court vide the provision of order 6 rule 9(5) of the rules of this court heard the appeal and reserved same for judgment. This was in view of the appellant’s brief having been filed on the 14th October, 2005 and same served on the respondents who had all failed to file their respective respondents’ briefs. The appeal, even in the absence of the appellant’s counsel was therefore deemed argued as provided for under the relevant rule of court reference supra.

From the said notice of appeal the appellant’s counsel Mr. U. C. Ikegbule distilled three issues, from the four grounds for, determination as follows:-

“1. Whether the learned presiding Judge in this case has any personal legal interest or cause in the trial of the accused/appellant or the outcome of a review of any of his judicial acts or utterances so as to preclude the Judge from entertaining the application made to the court seeking that the Judge declines the jurisdiction to try the case on ground of bias or likelihood of bias?