Okachi Azuokwu V. Tasie Nwokanma & Anor (2005)
LAWGLOBAL HUB Lead Judgment Report
KALGO, J.S.C.
This is an appeal from the decision of the Court of Appeal, Port Harcourt, delivered on 4th April, 2000. The case started at the Customary Court, Isiokpo, Rivers State, where the 1st respondent and one Udom Njoku as plaintiffs, on behalf of themselves and the Nsirim Omuisioha family of Ibaa, sued the appellant representing himself and the Azuokwu Omuisioha family of Ibaa, claiming the sum of N5,000.00 (five thousand naira only) as general damages for trespass into their family land and for injunction to restrain them from further entry into the land.
In the Customary Court, the appellant denied the claim of the respondent when it was read and explained to him. At the trial, both parties called witnesses in support of their case and in the end the Customary Court gave judgment in favour of the 1st respondent on the 11/8/89.
The appellant was not happy with this decision but instead of appealing against the judgment, he applied to the High Court at Ahoada, for an order of certiorari to quash the said decision. His application was granted and the case was then transferred to the new division of the High Court at Isiokpo where the application was heard and the judgment of the Customary Court was quashed on the ground of likelihood of bias in favour of the 1st respondent.
The 1st respondent thereafter appealed to the Court of Appeal against the decision of the High Court. The Court of Appeal, after hearing the appeal, found merit in it and allowed it. It set aside the order of the High Court quashing the judgment of the Isiokpo Customary Court and dismissed the application of the appellant in the High Court. The appellant now appealed to this court on 7 grounds.
Written briefs were filed and exchanged in this court by the appellant and the 1st respondent only as per the rules of court. The appellant identified 3 issues for determination by the court in the appeal. They read:
“1. Whether the Court of Appeal was right to hold that there was nothing on the record to suggest that the court (Customary Court) knew what any of the witnesses called by the court was coming to say or that the Chairman had called them deliberately to favour the appellant (now 1st respondent) against the 1st respondent (now appellant) inspite of the grave and serious allegations.
- Whether the High Court in his (sic) supervisory capacity over inferior courts (in an application for certiorari) was limited to consider the record of the inferior court as a whole to see whether there is error on the face of the record or a jurisdictional defect or irregularity which must be corrected by quashing the record of the inferior court.
- Whether from the depositions in the affidavit in support of the motion before the High Court of Rivers State and upon which the application for judicial review was fought, ¢ it can be said that the High Court had no materials at all to grant the relief sought and or to hold as he did that there was real likelihood of bias in the Customary Court.”
The 1st respondent on the other hand raised only one issue for determination in this appeal which reads:
“Whether the court below was wrong in allowing the 1st respondent’s appeal to that court.”
At the hearing of the appeal on 22/2/05, the appellant’s counsel conceded that his grounds of appeal 2 to 7 inclusive were struck out on 23/3/04, but he did not say which were the issues affected as a result of this. This means that all issues for determination distilled from the grounds 2 to 7 cannot also exist any more. There is therefore only ground 1 which survives in the appeal. That ground with its particulars read as follows:
“1. The Court of Appeal erred in law when it held as follow:
‘I agree with the appellant’s counsel that the learned Judge based his decision on grounds other than any “specified in the statement accompanying the application.’
This is a serious infringement of the provisions of Order 43 rule 6(1)”.
(a). The High Court had in his ruling set down Halsbury’s Laws of England 4th Edition Volume 11 page 818 paragraph 1559 where it said inter alia:
“Where certiorari is sought on the ground of absence or excess of jurisdiction, bias by interest, fraud or breach of the rules of natural justice, extraneous evidence of these matters will be admissible, and indeed necessary, if they are not apparent on the face of the record.”
“The High Court also sought and had support in the Supreme Court practice 1976 page 798 were it is stated thus:
‘The most important function of the (certiorari) Order is that by it, in exercise of the supervisory capacity of the High Court over inferior courts, judgments, Orders, convictions, other proceedings
of inferior courts, whether civil or criminal, made without or in excess of jurisdiction may be removed into the High Court to be quashed.’
“Excess of jurisdiction is not shown merely because the inferior court has decided contrary to the facts or without evidence to justify the decision but only where in the circumstances it had no jurisdiction for example, where the court acquits a defendant having already convicted him or has imposed maximum or where there has been a disregard of the fundamental conditions of the administration of justice as where there is a real likelihood of bias or prejudice on the part of the tribunal.” The High Court further relied on the case of Egware v. Gov., Bendel State (1991) 3 NWLR (Pt. 178) 199 at 209.
(b) There was no appeal that the High Court as a Court of Equity lacked the power or jurisdiction to seek in his aid the above provisions to do justice in deciding the matter before him; particularly in his supervisory jurisdiction over inferior courts.
(c) These authorities took the High Court far beyond the provisions of Order 43 rule 6(1) of the Rules of the High Court.
(d) The High Court having armed himself as he did proceeded to review the entire evidence before the Customary Court and to see whether certiorari could apply.
(e) The High Court therefore, was no longer limited or to confine himself to what was only brought before him under and by virtue of Order 43 rule 6(1) by the applicant.”
It appears to me therefore that both issues 2 and 3 of the appellant have direct connection with ground of appeal 1, and are properly distilled from it. I shall consider these issues as formulated by the appellant. I shall take the issues 2 and 3 together. These issues refer particularly to the affidavits filed in the High Court in the certiorari application to quash the proceedings in the Customary Court and questions whether there was any real likelihood of bias by the Customary Court having regard to the circumstances of the whole case. In the affidavit in support of the application for certiorari, the appellant deposed in the following paragraphs that:
“3. That the Chairman of the Customary Court is not competent to hear and determine the case because of his relationship with the 2nd plaintiff who was his classmate in the school and who also is the Chairman’s family friend.
- That the Chairman is biased and it is evident that I cannot have justice in his court.
- That the Chairman was acting as counsel to the plaintiffs when the case was being heard.”
The 1st respondent who was the 2nd plaintiff filed a counter affidavit in answer to the appellant’s allegations. He said in paragraphs 6-9 and 13 thus:
“6. That the judgment was delivered without any inhibitions placed on the Customary Court by any superior court.
- That the applicant participated in the proceedings from the beginning to the end.
- That the Customary Court has not acted in excess of jurisdiction nor acted in any manner suggesting bias.
- That there is no relationship between me and the Chairman and members of the Customary Court Isiokpo.
- That the applicant at no time objected to the court hearing the matter.
(Italics mine).
From the above averments in the affidavit and counter-affidavit of the parties, it is very clear that the most serious allegation which might bring about the likelihood of bias was that both the Chairman of the Customary Court and the 1st respondent were classmates at school and that the 1st respondent was the family friend of the Chairman. But the 1st respondent flatly denied any relationship between himself and not only the Chairman but all the members of the Customary Court, Isiokpo. He also went further to depose that the appellant participated throughout the proceedings of the Customary Court and at no time did he object to the court hearing the case or any part thereof. He also deposed to the fact that the Customary Court acted within its jurisdiction, without any bias and was not influenced in its decision by any authority or superior court.
From the affidavit evidence, there is an obvious conflict on the relationship between the Chairman and the 1st respondent and this was not resolved by calling evidence as is required under the law. See Uku v. Okumagba (1974) 3 SC35; Falobi v. Falobi (1976) 9-10 SC 1 at 15; Din v. A.-G., of the Federation (1986) 1 NWLR (Pt.17) 471 at 487 C.A. This is therefore the end of this allegation. I have also examined the totality of the testimony given by the 1st respondent at the trial in the Customary Court and nowhere was any question of his being a classmate or family friend of the Chairman or any of the court members mentioned.
The learned Judge of the High Court in arriving at the decision to quash the proceedings of the Customary Court of Appeal which was reversed by the Court of Appeal had this to say:
“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 applicants witness to testify, calling a host of witnesses and exhaustively cross-examining the said witnesses will 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.”
Let me now examine the proceedings of the Customary Court generally. The actual trial commenced on 19th September, 1988.
The 1st respondent called 4 witnesses in support of his case and each was examined-in-chief, cross-examined and re-examined. The appellant, as defendant, called 5 witnesses each of whom was also examined in chief, cross-examined and re-examined. So far the proceedings were properly conducted.
On the 27th of April, 1989, the Customary Court conducted the locus in-quo by visiting the land in dispute. There again all the parties were present. The appellant showed the court round the parcel of land in dispute and explained to the Customary Court the nature of the land and the different families that occupied part of it from time to time. The court recorded everything as shown on pages 33 and 34 of the record. On page 34, the court listed traditional elders of the families mentioned by the appellant during the locus in-quo as having been associated with the land in dispute and the Customary Court decided to call the elders of those families to give further clarification about the land in dispute. They were therefore called as additional witnesses by the court. There were 3 of them and from the record it is very clear that each of them was cross-examined by each of the parties after being examined by the court. This means that although the witnesses were called by the court to further explain more about the land in dispute, each party was given the opportunity to ask the witnesses any question he wanted.
It is pertinent to observe that the procedure followed by the Customary Court at the locus in-quo was quite proper when it brought with it all the parties in the case and allowed the appellant, as plaintiff, to explain the nature and circumstances of the land in dispute and the court put everything in writing. This, to my mind, is in order and in accordance with law and practice of courts in situations like that. See Olusanmi v. Oshasona (1992) 6 NWLR (Pt.245) 22 at 40.
It is also normal and usual for a native or Customary Courts, which is normally not bound by rules of procedure and evidence or indeed any court, to call a witness be he an expert or otherwise, in a particular case, to assist it in explaining some issues to be determined in the case. But what is essential in that respect is that the parties in the case must be given ample opportunity to ask the witness or witnesses so called any question they may wish by way of cross-examination.
See Olusanmi (supra). This has been done in this case.
There was nothing to show that the Chairman or any member of the Customary Court acted as counsel to the 1st respondent. In fact, only one witness was asked a question by the court. There was also nothing on record to show that the Customary Court refused to hear the testimony of any witness brought before it. Even D.W.3, who was stopped from giving evidence at the beginning was recalled as D.W.6 to complete his evidence before the court inspected the locus in-quo.
Bias in relation to a court or tribunal is an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules and the likelihood of bias may be drawn or surmised from many factors such as corruption, partisanship, personal hostility, friendship, group membership or association and so on, towards’ or involving a particular party in a case.
Also in a case where bias is being alleged against a court or Judge, it is not the real likelihood that the court or Judge could or did favour one side at the expense of the other that is important, it is that any person looking at what the court or Judge has done, will have the impression in the circumstances of the case, that there was real likelihood of bias. See Metropolitan Properties Co. Ltd. v. Lannon (1969) 1QB 577; Olue & Ors. v. Enenwali & Ors. (1976) 2 SC 23.
From all what I examined above, there is no iota of evidence from which bias or likelihood of it can be found or even inferred in the circumstances of this case on the part of the Customary Court, Isiokpo, in the conduct of this case against the appellant or in favour of any party in the case. It is therefore my respectful view that the appellant has failed to prove any bias on the part of the Chairman or any member of the Customary Court. The High Court, Isiokpo, must perforce be wrong in holding otherwise and there are no material evidence on record upon which its decision can be justified. I so find.
The Court of Appeal had carefully and exhaustively considered all the allegations of bias raised by the appellant before it, one by one, and came to the conclusion that they were all mere speculations and doubtful inferences which the appellant has awfully failed to prove against the Customary Court or any of its members. I entirely agree with the findings and conclusions of the Court of Appeal on this. In the circumstances I answer issues 2 and 3 in the affirmative and against the appellant.
In sum, I find that there is no merit in this appeal. I dismiss it and affirm the decision of the Court of Appeal delivered on the 4th of April, 2000. I award N10,000.00 costs to the 1st respondent against the appellant.
SC.120/2000