Therhemen Tarzoor V. Agbom A. Avine & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Ruling)

In an application dated and filed on 19th October, 2011 the 1st and 2nd Respondents/Applicants seek for the following 2 main reliefs. They are:-

(1) An order of the Honourable Court disqualifying itself from hearing of this Appeal for reason of real likelihood of bias; and

(2) An order of this Honourable Court remitting this appeal to the President, Court of Appeal, Abuja, for the purpose of re-assigning same to any other similar Appeal Court differently constituted for the purpose of hearing and determining of the appeal.

This application was brought pursuant to S. 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended and order 7 r.1 of the court of Appeal Rules, 2011.

Also, the application is predicated on the following 13 grounds and a 24 paragraph affidavit with 4 Exhibits attached thereto. The grounds are:-

1. This Honourable court had on the 16th day of September, 2011 delivered two judgments in Appeal No. CA/MK/EPT/07/2011, between Gabriel Torwua Suswam v. Prof. Steve Torkuma Ugba & 3 Ors, and Appeal No.: CA/MK/EPT/10/2011 between Peoples Democratic Party v. Prof. Steven Torkuma Ugba and 3 others.
2. That in Appeal No. CA/MK/EPT/907/2011, this court held that Motion Ex-Parte is an appropriate method of applying for Pre-hearing Section before the lower Tribunal.
3. In appeal No. CA/MK/EPT/10/2011, this court held that leave has to be first sought and obtained before an application for Pre-Hearing Section can be competent.
4. By virtue of this Court’s judgment in Appeal No. CA/MK/EPT/10/2011, the lower Tribunal was urged to treat the petition as abandoned and some was dismissed.
5. The Appeal against the judgment of this court in CA/MK/EPT/10/2011 is pending before Apex Court in Nigeria, i.e. Supreme Court of Nigeria.
6. That Ground one in this Appeal is to the effect that leave was necessary in an application for the issuance of Pre-Hearing Notice of the lower Tribunal.
7. The various divisions of this Court have given conflicting judgments on the proper made of making an application for pre-hearing session, with this Division inclusive.
8. In view of the earlier decision of this Court on the issue of leave to apply for pre-hearing session in Appeal No. CA/MK/EPT/10/2011, the 1st and 2nd Respondents strongly believe that this Honourable Court as presently constituted cannot approach this appeal with an open uninfluenced mind.
9. That the decision of this Court in this appeal is final.
10. That the 1st and 2nd Respondents will suffer irreparable loss if this appeal is decided against the 1st and 2nd Respondents based on the ground one of the Notice of appeal and the Supreme Court decides that leave was not necessary of the lower tribunal.
11. That it will be expedient and more transparent for this Appeal to be determined by a neutral panel that has never pronounced on the issue of leave to commence pre-trial.
12. The decision of this Court in CA/MK/EPT/10/2011 has affected various petitions filed by the 2nd Respondent.
13. The Supreme Court of Nigeria is yet to decide the appeal to it against the decision of this Court in Appeal No. CA/MK/EPT/10/2011.

Upon being served, the Respondents joined issues with the Applicants to oppose the application in their Respective counter affidavits. The counter affidavit of the Appellant/Respondent is of 15 paragraphs and it was sworn to by one Miss Patricia N. Jooji, a junior Counsel in the team of lawyers representing the Appellant/Respondent. The counter affidavit of the 3rd Respondent/Respondent was sworn to by Mr. T. T. Igba, a counsel in the law firm of A. A. Ijohor & Co. Counsel to the 3rd Respondent/Respondent. It is of 20 paragraphs and accompanied by a written address in opposition to the application. On its part, the 4th Respondent/Respondent filed a 5 paragraph counter affidavit sworn to by Mr. Momodu O. Abodunrin, a member of the team of lawyers, representing the 4th Respondent/Respondent it is also accompanied by a written address in opposition to the application.

At the hearing of the application Mr. S. A. Ngavan, of Counsel introduce his junior Mr. Femi Falana as the Counsel to argue it. Learned Counsel Mr. Falana introduced this application and its supporting processes and relied on same.

He read out the 2 main reliefs as set out on the face of the motion paper and reproduced hereinabove. In his opening argument, Mr. Falana, of Counsel identified Exh. 2 attached to the affidavit in support as the judgment of this court delivered on 16/9/2011 and explained that the applicants have averred that on appeal had been filed against it at the Supreme Court. He then emphasized that while making on allegation of likelihood of a bias against the panel of Justices of this Court hearing this application, the Applicants have not made allegations of impropriety of any kind against the court.

Against this background, learned Counsel identified and pointed out the gravamen of this application to be centered on the fact of the existence of a binding decision of this court which will prejudice the hearing of this appeal in violation of the provisions of S. 36(1) of the Constitution, as amended. According to learned counsel Mr. Falana, a court cannot be said to be impartial if its position with respect to a matter is known. He added that were this to be so, then the decision of a court has become a pre-judgment. A pre-judgment, according to Counsel, is a denial of fair hearing. He then refered to Vol. 1 of 4th Edition of Halsburys Laws of England paragraph 69 of page 83 for what amounts to a pre-judgment in the con of a likelihood of bias. Mr. Falana, of Counsel maintained that likelihood of bias goes beyond impropriety.

He described the judgment of this Court of 16/09/2011 as one that amounts to a pre-judgment on the decision of this Court in this appeal which involves the question or issue of the need or otherwise of leave to bring on application pursuant to paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010, as amended.

On the question of the definition and test of likelihood of bias, learned Counsel refered to the cases of WOMILOJU V. ANABIRE (2010) 10 NWLR (Pt. 1203) 545 at 568 and ABALAKA V. MINISTER OF HEALTH & ORS. (2006) 2 NWLR (pt. 963) 105 at 130. Further to this, learned Counsel explained that this court is bound by its previous decisions subject to the important exceptions set out in the famous case of YOUNG V. BRISTOL. He refered to the Supreme Court decision in USMAN V. UMARU (1992) 7 NWLR (Pt. 254) 377 to emphasise the strong foundation of the Principle that this Court is bound by its previous decisions. In conclusion, learned Counsel typified the situation in this appeal as “come for your assured judgment”. He submitted that on irreparable damage would have been occasioned on the applicants if this Court proceeds to hear and determine this appeal in a pre-determined manner. He urged the Court to grant the application.

In his reply learned Counsel to the Appellant/Respondent, Mr. Dodo SAN, introduced and relied on the 15 paragraph counter affidavit of Miss. P. N. Jooji to oppose this application. The learned SAN characterized this application as most malicious and brought mala fide. He relied on paragraph 14 of his counter affidavit and pointed out that this application is a grand design to defeat the hearing of this appeal on the merit. According to Mr. Dodo SAN, all the authorities refered to by Mr. Falana, of Counsel are against this application, and to that extent inapplicable in the circumstance. Still on the nature of this application, learned Counsel Mr. Dodo SAN, refered to it as most preposterous as it seeks to challenge the power of a Court to hear and determine matters of similar facts and circumstances on the some set of rules and precedents. He urged this Court to resist this challenge. Mr. Dodo SAN did not hide his sentiment when he remarked that the chaos and anarchy this type of application would bring into our jurisprudence is so deep and profound.

Sentiments aside, learned counsel Mr. Dodo SAN continued and pointed out that though learned Counsel Mr. Falana, had been alluding to a pending appeal to the Supreme Court against the judgment of this Court of 16/09/2011, no notice of appeal had been exhibited to show that this appeal to the Supreme Court was no more than a pipe dream in the imagination of Mr. Falana, of Counsel. Mr. Dodo SAN also pointed out that this appeal has 8 grounds with the issue of steps leading to the issuance of pre-hearing notice being just one of the 8.