⦿ CASE SUMMARY OF:
Gabriel Torwua Suswam v. Federal Republic Of Nigeria & Anor (2020) – CA
by NSA PaulPipAr
⦿ AREA OF LAW
– Administrative Law.
– Transfer of a case to another judge.
– De novo.
– Judicial bias.
1. Gabriel Torwua Suswam
1. Federal Republic of Nigeria
2. Omodachi Okolobia
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Emmanuel Akomaye Agim, J.C.A.
* FOR THE APPELLANT
– J.B. Daudu, SAN.
* FOR THE RESPONDENT
– O.A. Atolagbe, Esq. for 1st Respondent.
– Raymond Ashikem Esq., for 2nd Respondent.
⦿ FACT (as relating to the issues)
The appellant and 2nd respondent were arraigned on 10/11/2015 in the trial Court presided over by Hon. Justice A.R. Mohammed. Their trial proceeded thereafter and PW1, PW2, PW3 and PW4 conclusively testified as witnesses for the prosecution. On 22/5/2019, His Lordship A.R. Mohammed J. granted the appellant’s application for adjournment thusly: “Application for adjournment by 1st Defendant’s counsel is granted. It is hoped that the 1st Defendant’s counsel will be ready for the continuation of the trial on the next adjourned date. This case is therefore adjourned to 9th and 10th of July, 2019 for continuation of trial.”
Proceedings in the criminal case in the trial Court however resumed before another Judge, Honourable Justice O.E. Abang on 24/9/2019. On this date Learned Counsel for the prosecution informed the Court that they got hearing notice that the case was to be heard by O.E. Abang J, that since the case was coming up before His Lordship for the first time, and would as a result start de novo, he was applying that the defendants be arraigned afresh. Learned Counsel for the appellant objected to the said application for the arraignment of the defendants on the ground that they had filed an application on 23/9/2019 challenging the resumption of proceedings in the case before O.E. Abang J and contending that the trial Court presided over by O.E. Abang J had no jurisdiction to continue the proceedings in the case.
The trial Court, after considering the affidavits in support of the applications, the counter affidavits in opposition of the applications and the written addresses of all sides, rendered a ruling on 30/9/2019 dismissing the applications, ordered the trial of the case de novo and a fresh arraignment of the defendants the same day.
This appeal No. CA/A/1007C/2019 was commenced on 7/10/2019 when the appellant herein filed a notice of appeal against the judgment of the Federal High Court in criminal case No: FHC/ABJ/CR/362/2015 delivered on 30/9/2019 by O.E. Abang J.
The letter by A.R. Mohammed J. addressed to Honourable Chief Judge of this Court forms part of the records of the Court. Though the letter was not placed before the Court in any of the affidavits filed by the parties but they have made reference to the issue arising from the letter in the course of their argument. A portion of the letter is hereby reproduced for ease of reference starting from the 2nd paragraph of page 2 of the letter. Mohammed J. said – “A portion of the letter is hereby reproduced for ease of reference starting from the 2nd paragraph of page 2 of the letter. Mohammed J said- ‘Now another disturbing incident has occurred concerning the case. On 4th June 2019, the same Sahara Reporters have again published another report alleging that in June 2019, the 1st Defendant Gabriel Tarwua Suswam has bribed me with foreign currency (equivalent of 500 million) at the Transcorp Hilton Hotel, Abuja to quash the charge against him when the case comes up on 9th and 10th of July 2019. What I find very disturbing is the continuous attack on my integrity by SaharaReporters on this case. How can a Judge quash a case on a date when the trial is still ongoing. The prosecution is still calling evidence and has not close its case. This therefore makes it absurd to allege that a charge could be quashed at a stage when trial is still ongoing. Let me state categorically that there is no basis for me to continue presiding over this case. This is because if at the end of trial, the 1st Defendant is discharged or acquitted, the conclusion is that he has bribed me to do so. If on the other hand, the 1st Defendant is found guilty and convicted, the conclusion is that I did so to prove that I did not receive bribe from him. From whatever angle one looks at the situation it will be proper to recuse myself from handling this case. I therefore remit the case to your Lordship for re-assignment to another Judge in the overall interest of Justice.'”
Based on this letter addressed to the Honourable Chief Judge, Mohammed J. recused himself from the matter. The Chief Judge then in the discharge of his administrative functions re-assigned the matter to this Court as presently constituted.
1. Whether the learned trial judge was not right in refusing to decline jurisdiction when this case was reassigned to his Lordship Hon. Abang, J. after Hon. A.R. Mohammed, J. had voluntarily withdrawn from the case the second time.
⦿ RESOLUTION OF ISSUE(S)
1. AFTER CONSIDERING THE ISSUE, THE COURT OF APPEAL STATED: “On the whole, this appeal succeeds in part. It is hereby ordered that O.E. Abang J should discontinue the trial of Criminal Case No. FHC/ABJ/CR/362/2015 forthwith and that A.R. Mohammed J continue the trial of Criminal Case No. FHC/ABJ/CR/362/2015 in an accelerated manner. I make no order as to costs.”
i. As it is, the failure of A.R. Mohammed J to give the parties the opportunity to be heard on the need for his recusal or withdrawal from continuing the trial of the case before he recused himself therefrom and returned the case file to the Chief Judge for reassignment to another Judge for trial de novo, violates the fundamental rights of the parties given to them by S.36(1) of the 1999 Constitution. They were entitled to be heard before being deprived their right to the progression of the trial proceedings that had reached an advanced stage and being imposed with the obligation to start the trial afresh and suffer more financial and other costs than they would have suffered if the trial 21 had continued before A.R. Mohammed J. The criminal trial having commenced and reached an advanced stage, the parties therein had acquired a right to the progression and continuation of the trial. Neither of the parties to the proceedings should suffer a deprivation of that right without a hearing, especially, where, as in this case, the defendant has secured an advantage from the prosecution cross-examining its PW4, which advantage may be lost if the trial restarts. The decision of a Judge to deprive the parties of that right by recusing himself from continuing the trial can only be made after affording all the parties the opportunity to be heard on the need for his or her recusal. I do not agree with the argument of Learned Counsel for the 1st respondent that A.R. Mohammed J was right in suo motu recusing himself from trying the case without hearing the parties on the issue and that he need not do so.
ii. I agree with the submission of the Learned SAN for the appellant that it was wrong and unlawful for A.R Mohammed J. to have surreptitiously and suo motu recused himself from continuing the hearing of the criminal case after witnesses had testified for the prosecution and returned it to the Chief Judge of the Federal High Court for reassignment to another Judge without notice of the parties to the case and without affording them the opportunity to address him on that issue before he recused himself. A Judge of the Federal High Court can without an application from any of the parties to a case before him or her recuse himself or herself from the case by virtue of Section 22(1) of the Federal High Court Act Cap. F12 Vol.6 Laws of the Federation 2004 which provides that “A Judge of the Court may at any time or that any stage of the proceedings before final judgment, either with or without application from any of the parties thereto, transfer such cause or matter from before him to any other judge of the Court”. But this power cannot be exercised according to the whims of the Judge or in any manner. Since the trial of the case was ongoing and the matter had been adjourned from 22nd May 2019 to 9th and 10th July 2019 for continuation of trial, A.R. Mohammed J’s recusal or withdrawal from the case is a step or process in the case that sets aside his order adjourning the case for continuation of trial on 9th and 10th July 2019. Such a step or process by a Judge in the ongoing trial proceedings in a case before him must be done in open Court during the proceedings and not in the secrecy of his office without notice to the parties in the ongoing proceedings.
Synopsis 2 by Sir Vahe Bairamian at paragraph 1 page 1: Assumptions; aim: The Courts have to ascertain the meaning of a statute before they can apply it, and in this task they are guided by certain principles which are described rules of interpretation or construction. They assume, as matter of commonsense, that a legislator (1) uses the right words to express his intention (2) is reasonable and consistent and (3) legislates with a practicable object in view. The first aim is to arrive at an interpretation which the words of the statue can fairly bear and which yields a practicable result with due regard to the object of the statue; and the ultimate aim is to arrive at an interpretation which achieves harmony among the provisions of the statute as a whole, and which also produces consistency with relevant provisions, if any, in other statutes.
– Order 7 Rule 4 of the Court of Appeal Rules 2016.
⦿ SOME PROVISION(S)
Section 36(3) and (4) of the Constitution of the Federal Republic of Nigeria which requires that – (3) The proceedings of a Court or the proceedings of any tribunal relating to the matters mentioned in Subsection (1) of this section (including the announcement of decisions of the Court or tribunal) shall be held in public. (4) Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or tribunal.
Section 98 into the Administration of the Criminal Justice Act 2015 which provides as follows:- “98.(1) The Chief Judge of a High Court may, where it appears to him that the transfer of a case will promote the ends of justice or will be in the interest of the public peace, transfer any case from one Court to another. (2) The power of the Chief Judge referred to in Subsection (1) of this Section shall not be exercised where the prosecution has called witnesses. (3) Where the chief Judge is to exercise this power subsequent to a petition, the Chief Judge shall cause the petition to be investigated by an independent body of not more than three reputable legal practitioners within one week of receipt of such petition. (4) The investigating body shall submit its report within two weeks of appointment except otherwise specified.”
⦿ RELEVANT CASE(S)
N.A.B Ltd v Barri Engineering Nig Ltd (1995) LPELR ??? 2007 (SC) in which the Supreme Court held that “Public confidence in the administration of justice can be weakened by secrecy. Even handed justice is best done when it is done in the public gaze”.
Womiloju & Ors V. Anibire & Ors (2010) 10 NWLR (1203) 545 in which the Supreme Court restated the law on the point thusly: “Judicial bias is usually insufficient to justify disqualifying a judge from presiding over a case. To justify disqualification or recusal the Judge’s bias usually must be personal or based on some extrajudicial reason.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
I do not agree with the submission of Learned SAN for the appellant that the transfer of part heard cases is absolutely prohibited by Section 98(2) of the Administration of Criminal Justice Act. This provision cannot be read as placing an absolute ban on the transfer or reassignment of a part heard criminal case from one Judge to another by the Chief Judge. Being a legislation that prescribes the procedure to be followed in criminal trials, the word “shall” in subsection (2) of Section 98 should be read as giving a permissive power to choose to do so or not to do so, according to the dictates of the justice of the case, having regard to the fact that witnesses have already testified for the prosecution. It prescribes a guide for the exercise of the discretion vested in the Chief Judge by Section 19(3) and (4) of the Federal High Court Act and Subsection (1) of S.98 of Administration of Criminal Justice Act. This is the meaning that the said words of the provision can reasonably bear. In any case, it is settled law that mandatory words in statute prescribing procedure are not read as mandatory and sacrosanct. – Agim, JCA. Suswam v. FRN (2020)
It is a trite principle of interpretation that a statute must be read in a manner that makes it consistent or in substantial conformity with other States on the same subject matter. The statutes of a State on its Court system are read together as a single code. – Agim, JCA. Suswam v. FRN (2020)
There is no doubt that the principles of Interpretation of a Constitution and Statutes are well settled. The trite law is that provisions of a Constitution or Statute must be construed or interpreted literally giving the words in 61 such Constitution or Statute their ordinary grammatical meaning. The provisions must be read as a whole and not in isolation in order to bring out succinctly the real intention and desire of the law makers. – Ige, JCA. Suswam v. FRN (2020)
The argument of Learned SAN for the appellant that the letter dated 5th July, 2019 did not form part of the record of the trial Court in the case before it is incompetent and invalid because there is no ground of this appeal complaining against the specific holding of the trial Court that the letter is a document in the case file relevant to the proceedings. In the Court’s file, I stumbled on a letter written by A.R. Mohammed J. addressed to the Honourable Chief Judge of this Court dated 5/7/2019, informing His Lordship of his withdrawal from the matter, that the matter be re-assigned to another Judge for adjudication. This document in the file case is relevant to the proceedings in order to do justice in this matter. The letter by A.R. Mohammed J. addressed to Honourable Chief Judge of this Court forms part of the records of the Court. Though the letter was not placed before the Court in any of the affidavits filed by the parties but they have made reference to the issue arising from the letter in the course of their argument. By not appealing against this holding, the appellant accepted it as correct, conclusive and binding. Having accepted it as correct, conclusive and binding, he cannot competently and validly argue contrary to the holding. – Agim, JCA. Suswam v. FRN (2020)
Since the said letter of A.R. Mohammed J. is a document in the file of the case and is relevant to the issues arising for determination from the applications of the defendants objecting to the hearing of the case by O.E. Abang J, it was validly relied on by O.E Abang J to determine the issue of how the case file moved from A.R. Mohammed J. to him. The argument of Learned SAN that the trial Court should not have relied on the said letter because it was not brought to the attention of the parties to the case and therefore none of the parties had knowledge or notice of it is not correct. A Court can rely on every record in the file of the case before it in determining the issues raised by the parties for its determination. The record of a case includes the recordings of the daily proceedings, the processes filed in the case, the endorsements and documents in the case file concerning the administrative actions of the Judge or the registry staff concerning the case. Some of these administrative actions may not be brought to the notice of the parties to the case. In our present case, one of such administrative actions of the Judge has created a situation where a criminal case whose hearing before him had progressed to an advanced stage is now being heard de novo by another Judge. In determining the issue of how and why the said case, adjourned for continuation of hearing by A.R Mohammed J, is now before O.E. Abang J, the record in the case file showing why and how the case came before him was correctly relied on by Abang J to determine the issue of how and why the case adjourned for continuation of hearing by A.R. Mohammed J. moved to him. He could not have validly ignored and disregarded the letter in the case file that shed light on how the file moved to him from A.R. Mohammed J. in determining the issue of how and why the file so moved, even though the letter did not form part of the affidavit evidence adduced by the parties before him. This is because it is part of the record of the case file. – Agim, JCA. Suswam v. FRN (2020)
It is obvious from this unchallenged finding that O.E. Abang J did not unilaterally take over the case from A.R. Mohammed J. It was reassigned to him by the Chief Judge of the Federal High Court in exercise of his power under Section 19(3) and (4) of the Federal High Court Act which provides that: (3) The Chief Judge shall determine the distribution of the business before the Court amongst the Judges thereof and may assign any judicial function to any Judge or Judges or in respect of a particular cause or matter in a Judicial Division. (4) Subject to the directions of the Chief Judge, every Judge of the Court shall sit for the trial of civil and criminal causes or matters and for the disposal of other legal business the Chief Judge may think fit. – Agim, JCA. Suswam v. FRN (2020)
The reasons A.R. Mohammed J stated in his letter of 5/7/2019 to the Chief Judge for his recusal from continuing the trial of the case do not justify his said recusal in law. Upon being assigned a case file to adjudicate upon, a legal duty is imposed upon the Judge to try the dispute in the case diligently and expeditiously, within a reasonable time to its conclusion, dispassionately without fear or favour. Although S.22 of the Federal High Court allows for the transfer of the case by the Judge to another, it would amount to an abdication of his judicial duty, if he suo motu or upon the application of any of the parties stops the continuation of proceedings in the case, and withdraws from continuing to adjudicate upon it and send it back to the Chief Judge for reassignment or transfer it to another Judge for reasons that are not permitted by law. – Agim, JCA. Suswam v. FRN (2020)
Allegations in an online news medium that in June 2019 the Judge trying the criminal case has been bribed with foreign currency in the sum equivalent to 500 million naira by the appellant to quash the charge against him when it comes up on 9th and 10th July 2019, which allegation is not made by any of the parties to the case and has been held by the same Judge to be false, spurious and absurd, not being established, therefore remaining mere allegation, do not show the existence of a reasonably real likelihood that the Judge would be biased or partial in the trial of the case. In any case, non of the parties applied for the recusal of the Judge from continuing the hearing of the case. – Agim, JCA. Suswam v. FRN (2020)
There is no doubt that allegations of judicial corruption against a Judge in the news media, even though obviously false, baseless, illogical, unreasonable and malicious, easily disrepute the Judge as it generates odium against him by a public that is more excited by such allegations. As a popular Woloff proverb says, sai sai (the fool) has not spoken the truth, but he has spoilt the mind. Such allegations are bound to traumatise and psychologically harass the Judge and his or her family. But should Judges simply abdicate their judicial duties whenever such allegations are made against them. Certainly not. If that is allowed, no case would be conclusively tried by any Judge. While suffering the psychological pain of such allegation in any case, their oath of office, code of judicial conduct and the Constitution binds them to continue the hearing of the case to conclusion, if there is no reasonable basis for any of the parties to the case to fear that he is likely to be biased or partial. The fear the allegation has generated in the mind of the Judge cannot be a valid basis for the Judge to abandon his judicial duty to try the case by recusing himself from trying the case. The fear nursed by the Judge is whimsical and baseless since he has adjudged the allegations as false, baseless and absurd and both parties insist that they have confidence in the impartiality of the Judge. – Agim, JCA. Suswam v. FRN (2020)
Against the background of the insistence by all the parties that he continues the trial of the case to avoid them suffering the hardship that a trial de novo would entail and their assurance of their confidence that he would try the case fairly, A.R. Mohammed J’s repeated refusal to continue the trial of the case, could not have been meant to further the ends of justice in the case. The recusal clearly impairs the expeditious and economic trial of the case. To avoid this kind of reaction to allegations of judicial corruption by a Judge concerning his conduct of a case before him, the law has established objective criteria on the nature of the allegations and expressions of lack of confidence in the impartiality of the Judge that can result in a Judge recusing himself or herself from hearing or continuing the hearing of a case. – Agim, JCA. Suswam v. FRN (2020)
The administration of a Court must pursue the sole objective of promoting the ends of justice in each case that comes to the Court and should not treat the convenience and choices of a presiding Judge as more important than the justice of the case. I agree with the submission of Learned SAN for the appellant that the trial Court per O.E. Abang J erred in law when it held that a Judge who voluntarily recuses himself or herself from trying a case cannot be compelled to try it. A Judge has no right or power to pick and choose according to his convenience, which, amongst the cases assigned to him, to try or not try. He or she has no such choice in law. – Agim, JCA. Suswam v. FRN (2020)
In any case, it is settled law that mandatory words in statute prescribing procedure are not read as mandatory and sacrosanct. – Agim, JCA. Suswam v. FRN (2020)
The Court in interpreting the provision of a legislation must be progressive in its approach, beginning with an adherence to the express words of the said provision, and, considering if the literal meaning of those words does not defeat the intendment or object of the statute or produce injustice. If the literal 47 meaning of the expressed words defeat the intendment of the statute or yield injustice or absurdity, then that is not the meaning that the said words can reasonably bear. – Agim, JCA. Suswam v. FRN (2020)
By virtue of the provision of Section 19(3) and (4) of the Federal High Court Act, O.E. Abang J was bound to comply with the directions of the Chief Judge reassigning the case to him for trial. O.E. Abang J has no power to review the manner A.R. Mohammed J recused himself from the case and how the Chief Judge exercised his discretion to reassign the case to him. Even though the reassignment of the case to O.E. Abang J is obviously arbitrary, unreasonable and does not promote the ends of justice, the Judge cannot refuse to comply with the direction of the Chief Judge. – Agim, JCA. Suswam v. FRN (2020)