➥ CASE SUMMARY OF:
Rt. Hon. Chibuike Rotimi Amaechi V. The Governor of Rivers State & Ors. (CA/PH/342/2015, 8 May 2017)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Jurisdiction;
Cause of action;
Commission of enquiry.
➥ CASE FACT/HISTORY
The background facts of this matter are that, at the trial Court, the Appellant, the immediate past Governor of Rivers State was the Claimant, while the 1st Respondent, the incumbent Governor of Rivers State and the 2nd to 10th Respondents were the 1st to 10th defendants thereat respectively. Upon assumption of office, the 1st Respondent, pursuant to Section 1 of the Commissions of Inquiry Law, Cap.30, Laws of Rivers State, 1999, set up the 3rd Respondent, a Judicial Commission of Inquiry to investigate the sales of some valued assets of Rivers State and other related matters under the past administration of the Appellant.
The 4th Respondent is the Chairman and the 5th to 10th Respondents are the Members of the 3rd Respondent. Consequent upon the inauguration of the 3rd Respondent on 19th June, 2015, the 1st Respondent directed the 3rd to 10th Respondents to conclude the assignment as contained in the Terms of Reference within one month of the said inauguration.
Sequel to the action of the 1st Respondent, the Appellant commenced a suit against all the Respondents at the trial Court vide an Originating Summons dated and filed on 6th July, 2015.
This is an appeal against the decision of the High Court of Rivers State, sitting in Port Harcourt, (hereinafter referred to as the trial Court) per S.C. Amadi, J., delivered on 20th August, 2015 in Suit No. PHC/189/2015.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED, in part]
↪️ I. Whether the learned trial Judge rightly held that the Appellants suit was liable to be struck out for lack of jurisdiction of the trial Court to entertain the suit?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE APPELLANT HAS MADE UP A PRIMA FACIE CLAIM AGAINST THE RESPONDENTS – HAS LOCUS STANDI
‘From the above identifiable and set out particulars supplied by the Appellant, it is quite feasible and we hold that his civil rights and obligations are very likely to be impacted upon one way or the other in the course of investigating the transactions listed in the Terms of Reference, Exhibit B, under the immediate past government of Rivers State headed by the Appellant. The facts averred in the two affidavits in support of the reliefs sought, particularly the relevant portions set out above, are recognizable both in law and equity and if proved are capable of enforcement against each and all of the four sets of Respondents. In other words, it is the capableness or sufficiency of the said set of facts to ground a judgment in favour of the Appellant unless debunked by the Respondents that gives the Appellant a reasonable cause of action against the Respondents. Therefore, on the first appearance of the set of facts contained in the Originating Summons and its accompaniments, the Appellant has made out a kind of prima facie claim against the Respondent on the subject-matter of the investigation to be conducted specifically by the 1st Respondent through the 3rd to 10th Respondents. For the said set of facts if backed up by admissible evidence are capable of grounding the reliefs sought by the Appellant in his Originating Summons against all the Respondents.’
‘Upon scrutinizing the Originating Summons of the Appellant and its accompaniments, the relevant portions of which we have equally set out and adverted to earlier on in this judgment, the disclosure of the interest of the Appellant and how the interest has arisen in the subject-matter of his suit are clear as a bell. The subject-matter of the Appellants suit is the investigation of the dealings pertaining to the items listed in the Terms of Reference, Exhibit B. The said transactions were sealed by the immediate past government of Rivers State. It is indisputable, for all the Respondents are ad idem on this, that the Appellant was the head of and led that government, being the Governor during the Administration. It is most unlikely that such transactions of the magnitude of the items being probed would have been carried out without the knowledge let alone approval of the Appellant. Therein lays the interest, the locus standi of the Appellant in the subject-matter of his suit against the Respondents. What is more, the Public Notice has as its theme: ..Investigation of the Administration of Governor Chibuike Rotimi Amaechi. The Appellant is the Alter Ego of the said Administration. That is, he is the imposing personality that becomes visible when the veil of the said Administration is lifted. He is the person behind the big masquerade. If you will, he is the synonym of the said Administration headed and led by him. Hence, he is in the best position to pose a complaint in the matter of the investigation. What is more, the said Notice was an invitation to all and sundry-see page 208 of the Record of Appeal. Moreover, pursuant to Section 7 (c) of the Commissions of Inquiry Law (supra), the 3rd Respondent is empowered to summon any one, we dare say, the Appellant not excluded but inclusive, to appear before it in the course of its sittings and it may very likely find against his interest in its eventual recommendations to the 1st Respondent on the subject-matters of the Terms of Reference, Exhibit B.’
‘It is our overall candid opinion and we hold that, the subject-matter of the investigation will in one way or the other affect the Appellant. Accordingly, he sure has the locus standi to initiate an action in respect thereof against the Respondents who are identifiable as the principal players in the matter of the investigation. To put it in other words, the Appellants claims as reflected in his action the subject of this appeal in respect of the theme of the probe set in motion by the 1st Respondent, are quite legitimate. Consequent upon the above expositions and in conclusion, we find that, the Appellant has both the locus standi and a reasonable cause of action in the Suit No. PHC/189/2015 instituted by him against the Respondents at the trial Court pursuant to Sections 6(6)(b) and 46(1) of the 1999 Constitution. Accordingly, the trial Court is cloaked with the requisite jurisdiction to enquire into and determine the said suit.’]
.
.
↪️ II. Whether the Commissions of Inquiry Law, Cap. 30, Laws of Rivers State of Nigeria, 1999 can vest judicial powers in the 3rd Respondent?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE COMMISSION OF INQUIRY LAW CANNOT VEST JUDICIAL POWERS ON THE 3RD RESPONDENT
‘Without hesitation, we hereby answer in the negative the poser, whether the Commissions of Inquiry Law (supra) can vest judicial powers in the 3rd Respondent, for there is no gain-saying the law that judicial powers are only vested in Courts and Tribunals by the 1999 Constitution (supra). Since the decisions in the cases of: (1) Doherty V. Balewa (1961) 2 SCNLR p.256; (2) Balewa V. Doherty (1963)1 WLR p.949 at p.960 and recently (3) Fawehinmi V. Babangida (supra), the Supreme Court has laid it down that only Sections of a Commission of Inquiry Law which empower a commission of inquiry to impose a sentence or a fine or term of imprisonment shall be declared void for being inconsistent with the provisions of the Constitution which forbid deprivation of personal liberty by any order save an order of a Court of justice-See Sections 35 (1) and 46 of the 1999 Constitution. However, compulsive powers given to a commission of inquiry are authorized.’
‘The trial Court in our view, after a proper diagnosis of Sections 7 (b) (f), 12, 13, 14, 17, 18 and 21 of the Commissions of Inquiry Law (supra), found rightly that only Section 7 (d) of the said Law is the virus in the said Law and therefore unconstitutional. Section 7(d) provides that: 7. The Commissioners shall have the following powers- d. to issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails to do so, and does not excuse such failure to the satisfaction of the commissioners, and to order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his refusal to obey the summons and also to fine such person a sum not exceeding N50,000, such a fine to be recoverable in the same manner as a fine imposed by a Magistrates Court. We are at one with the stance of the trial Court in this regard. It is equally our opinion and we hold that Sections 7 (b), (c) and (f), 12, 13, 14, 17, 18 and 21 of the Law do not vest the 3rd Respondent with powers to try, convict and sentence persons for any offence. As learned Senior Counsel for the 2nd Respondent rightly pointed out, Sections 12, 13 and 14 of the Law for example create offences but do not vest the 3rd Respondent with jurisdiction to try the offences.’
THE 3RD RESPONDENT IS A FACT FINDING BODY AND NOT A JUDICIAL BODY
‘It is also our very firm view and we hold that the 3rd Respondent is a facts finding and an investigative body. Generally, a body exercising powers which are merely investigative in character and which do not have any legal force, until confirmed by another body or which is involved only in making preliminary investigations, will not normally be held to be acting in a judicial capacity. See the case of: Military Governor of Oyo State V. Adekunle (2005) 3 NWLR (Pt. 912) p.294. It does not matter the name the body is called. The description of such body as a Judicial Commission of Inquiry does not change its character from being a facts finding body. There is no distinction between a Commission of Inquiry and Judicial Commission of Inquiry. Therefore, the contention of the learned Counsel for the Appellant that the 1st Respondent is only empowered to set up a Commission of Inquiry as against a Judicial Commission of Inquiry which he had set up in the instant matter, is misconstrued and baseless.’]
.
.
↪️ III. Whether the learned trial Judge rightly held that the period given to the 3rd Respondent to conclude its assignment afforded the Appellant adequate opportunity to present his case?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THERE IS NOTHING TO SHOW THAT THE FAIR HEARING RIGHT OF THE APPELLANT HAS BEEN BREACHED
‘We agree with the holding of the trial Courts at page 514 of the record of appeal, in its judgment that the thirty days given to the 3rd Respondent to conclude its assignment was not in breach of the Appellants right to fair hearing. This is moreso when there was nothing to show that the period cannot be extended should the 3rd Respondent be unable to conclude the assignment within the said thirty (30) days granted it to do so. The Appellant having not appeared before the 3rd Respondent at all, cannot be heard to complain that the time given to it was too short for him to make his own presentation. There is no evidence that he even wrote to either the 3rd Respondent to request for specified time frame to make a presentation before the 3rd Respondent or complained that the thirty days given to the 3rd Respondent to conclude its assignment was too short for him to prepare and make his presentation before the 3rd Respondent. It is unfathomable how the Appellant would determine his own fate from the comfort of his house without making his fears if any, known to either the 3rd Respondent or 1st Respondent. Fair hearing cannot be determined from such a subjective position. The poser, whether the Appellant was not given enough time to make a presentation before the 3rd Respondent can only be determined by a reasonable man who was at the sitting of the 3rd Respondent and noticed that the Appellant did not have adequate time to make his presentation. It is also noted that the Appellant did not venture to submit a memorandum, rather he merely hypothesized and concluded that he would not have adequate time to make a presentation before the 3rd Respondent. There is no challenging the fact that the resort to an allegation of the infraction of his right to fair hearing by the Appellant is totally misplaced.’]
.
.
↪️ IV. Whether the terms of reference of the 3rd Respondent are within the legislative competence of the Rivers State House of Assembly?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE ITEMS IN THE TERMS OF REFERENCE ARE WITHIN THE LEGISLATIVE COMPETENCE OF THE HOUSE OF ASSEMBLY
‘The Commission of Inquiry, can look at any matter in respect of which in the opinion of the 1st Respondent an inquiry would be for the public welfare of the people of Rivers State. It is the 1st Respondent who under the law decides which matter would be for the public welfare. It is our very strong view and we hold that, the proposition of the Appellants learned senior counsel right from the trial Court that there are Twenty-Three (23) items in the Terms of Reference of the 3rd Respondent is misconceived in view of Paragraph 5 of the Appellants Further Affidavit in support of the Originating Summons and Exhibit B annexed thereto.’
‘Therefore, we are at one with the findings of the trial Court in its judgment at pages 489 to 490 of the record of appeal as follows: The Learned Senior Counsel referred to the 23 items submitted to the 3rd Defendant for investigation and submitted that the items which he said includes sale of companies, gas plant are not within the legislative competence of the House of Assembly but are within the exclusive competence of the National Assembly. Let me pause here to say that the terms of reference of the 3rd Defendant as per Exhibit B does not show 23 items but rather 6 items. I therefore do not know where the Claimant saw 23 items. (The underlining is supplied by us for emphasis).’
‘Furthermore, after examining the Terms of Reference, Exhibit B, earlier on reproduced in this judgment, the trial Court at page 515 of the record of appeal found as follows: Let me preface my resolution of this issue by firstly saying there is no law known to me which prohibits any State Government from finding out how its resources were expended, money saved and kept in the State reserve fund were withdrawn and how money meant for agricultural loan were disbursed by the previous government or administration of the state. Secondly, in the affidavit in support, the Claimant admitted that the terms of reference constitute matters which were approved and ratified by the State Executive Council. His Learned Senior Counsel submitted that they were matters ratified by the State House of Assembly. How come now that the matters now fall outside the legislative competence of the Rivers State House of Assembly? If they were matters approved and ratified by the State Executive Council, that in itself presupposes that the Rivers State House of Assembly were/are competent to legislate on them. To accept the submission of the Learned Senior Counsel for the Claimant means that where, for instance state money was expended on a project not within the legislative competence of the State House of Assembly, the State Government is disabled from finding out why and how much was spent on the project even when it was the State House of Assembly that approved the monetary allocation for the project in the State budget.’]
.
.
↪️ V. Whether the 3rd Respondent was set up to investigate activities of the Appellant bordering on the public welfare of the people of Rivers State?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[3RD RESPONDENT WAS SET-UP TO INVESTIGATE ACTIVITIES BORDERING ON PUBLIC WELFARE
‘The trial Court rightly observed at pages 518 to 520 of the record of appeal, that there is nothing wrong for the 1st Respondent in constituting the 3rd Respondent to inquire into the sales of those valued Assets of Rivers State Government and determine if due process was observed or into the non-completion of Justice Adolphus Karibi-Whyte Specialist Hospital for which monies had been appropriated and disbursed for the construction of that outfit or the dippings into the State Reserve Funds were in accordance to law. Thus by the Terms of Reference, Exhibit B the focus was on the 3rd Respondent to look into the specified activities of the Administration of the Appellant as the past Governor of Rivers State and not his person. Therefore, it is neither unlawful nor out of place for the 1st Respondent to constitute the 3rd Respondent for this purpose. See the case of: Onyekwuluje and Anor. V. Benue State Government and 2 Ors (supra).’]
.
.
↪️ VI. Whether the 3rd Respondent can investigate and probe the Appellant who is no longer under the Public Service of Rivers State?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[3RD RESPONDENT WAS NOT SET-UP TO INVESTIGATE THE APPELLANT; BUT ACTIVITIES DURING HIS TENURE
‘Viewed against the background of the instant appeal, the inquiry is on the items listed in the Terms of Reference, Exhibit B that is, items conceived and executed during the tenure of the Appellant who as at the time the transactions therein were executed, was in the Public Service of Rivers State Government, being the Governor of the State. In the case of: Attorney General of Lagos State v. Eko Hotel Ltd. (supra), a warrant was issued to compel the attendance of a person who was no longer in the Public Service of the State within the period covered by the subject-matter of the Inquiry. It was therefore held that, to hold out such a person as a Public Officer, is inconceivable. It is our opinion and we hold that the conclusion reached at the trial Court on this point at page 512 of the record of appeal is unassailable. The trial Court found as follows:- I have considered the submission of the learned Senior Counsel for the Claimant and the reply by the Defendants on the issue of fair hearing. I am of the respectful view that the affidavit evidence of the Claimant on lack of fair hearing and the submissions of his learned counsel are mere speculations. The 3rd Defendant was not set up to investigate the Claimant as a person but rather to investigate circumstances surrounding the sale of valued assets, withdrawal of money from the State Reserve Fund and the disbursement of money as agricultural loan to people during the administration of the Claimant as the Governor of Rivers State. All the items to be investigated belong to the people of Rivers State and not the Claimant.’]
.
.
↪️ VII. Whether the Appellant is permitted to make findings on issues not submitted to it for adjudication?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[COMMENTS WAS MERE OBITER DICTA
‘In the instant case, although an allegation of bias was raised as an item in the particulars of error to Ground 13 of the grounds of appeal, there is no evidence on record to establish any extra judicial conduct to link the trial Judge with the remarks made by him. In our view therefore, the remarks referred to in this exercise are nothing more than Obiter Dicta, that is, remarks against which there can be no appeal.’]
.
.
.
✓ DECISION:
‘Accordingly, the appeal is dismissed. The Judgment of the trial Court delivered on 20th August, 2015 dismissing the Appellants Suit No. PHC/189/2015 is accordingly affirmed by us. The parties herein are to bear the costs expended by them in the prosecution and defence of the appeal respectively.’
➥ FURTHER DICTA:
⦿ BRIEF OF ARGUMENT TO BE FILED AFTER EXPIRATION OF TIME
Any brief of argument filed by a party out of time and without extension of time sought and obtained is incompetent and will not be taken but struck out at the hearing of an appeal. Where the extension of time granted has also expired, the party will still need another extension of time for revalidation or else the brief will be incompetent and liable to be struck out. See the cases of: (1) Mohammed V. Klargester (Nig.) Ltd. (1996) 1 NWLR (Pt. 422) p.54 at p.61 and (2) Goji V. Ewete (2001) 15 NWLR (Pt. 736) p.373. — O.F. Omoleye JCA.
⦿ BRIEF OF ARGUMENT MAY NOT BE DISCOUNTENACED WHERE THE OTHER PARTY HAS REPLIED TO IT
Notwithstanding the above, it is pertinent to note that the 3rd Respondent, in paragraph 9 of the affidavit in support of the application for extension of time to file the 3rd Respondents brief of argument, averred that Exhibit C attached to the affidavit was the 3rd Respondents brief. Yet, after the grant of the application, the 3rd Respondent proceeded to a file a different brief of argument thereby taking both the Appellant and the Court for a ride. This conduct must be and is viewed with disapproval. The 3rd Respondents Brief filed on 24th November, 2016 would have been discountenanced by this Court for this reason except for the fact that the Appellant has replied to it. As by filing the said reply to that brief, the Appellant had waived his right to have the process struck out or discountenanced by this Court. Accordingly, the objection of the Appellants counsel is hereby discountenanced. — O.F. Omoleye JCA.
⦿ NATURE OF JURISDICTION OF COURTS
Jurisdiction is to a Court what a door is to a house. The question of a Courts jurisdiction is called a threshold issue because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. Oloba v. Akereja (1988)3 NWLR (Pt.84)508; Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 105; Petrojessica Ent. Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675; Barclays Bank v. C.B.N. (1976) 6 SC 175; African Newspapers (Nig.) Ltd. v. F.R.N. (1985) 2 NWLR (Pt. 1006) 608; A.-G., Anambra State V. A.-G., Fed. (1993) 6 NWLR (Pt. 302) 692; Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221. (The underlining is supplied by us for emphasis). Under the Nigerian legal system, Courts are creations or creatures of statutes or legislations such as the grundnorm itself, that is, the Constitution or Decrees or Acts or Laws or Edicts. Hence, it is the legislations themselves that cloak the Courts with powers or adjudicatory jurisdiction. Therefore, if the Constitution, Decrees, Acts, Laws and Edicts do not grant jurisdiction to a Court, the Court itself and or parties cannot by agreement endow the Court with jurisdiction. For once there is a defect in the competence of a Court to adjudicate upon an action, the proceedings in the action no matter how otherwise so well, properly and brilliantly conducted would amount to a nullity and an exercise in futility. Therefore, since Courts are creatures of statutes, their jurisdiction is confined, limited, restricted and circumscribed by the statutes creating them. Moreover, a Court must study the statute which creates it and must not misconstrue same to exercise jurisdiction not donated to it thereby. See also the cases of: (1) Ndaeyo v. Ogunnaya (1977) 1 SC p. 11; (2) National Bank of Nigeria v. Shoyoye (1977) 5 SC p. 181 and (3) A.-G., Fed. v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) p. 187. — O.F. Omoleye JCA.
⦿ IT IS THE CLAIM OF THE PLAINTIFF THAT IS CONSIDERED TO EXAMINE JURISDICTION
To put it in different words, the jurisdiction of a Court is determined by the plaintiffs claim as disclosed in the endorsement on the writ of summons cum statement of claim or as in the present case, originating summons cum its supporting affidavit and not the averments contained in the statement of defence or counter affidavit to the originating summons. That is to say, it is the claim of the plaintiff before the Court that has to be examined in ascertaining whether or not it falls within the jurisdiction conferred on the Court by the Constitution or Statute establishing the Court and prescribing its jurisdiction. — O.F. Omoleye JCA.
⦿ GENERAL DETERMINANTS OF JURISDICTION
In the case of: Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) p. 172 at pgs. 243 244, paras. H-B, the Supreme Court restated the purport of the above set out determinants of jurisdiction of Court and the effect where any one of them is lacking, per Muhammad, JSC, as follows: in addition, all law Courts or Tribunals, while exercising their powers must be guided by the general determinants of jurisdiction (a) The statute establishing the Courts/Tribunal. (b) The subject-matter of litigation. (c) The litigating parties. (d) The procedure by which the case is initiated. (e) Proper service of process. (f) Territory where the cause of action arose or, as the case may be, where the defendant resides. (g) Composition of the Court/Tribunal. If any of the above is lacking, then the subject matter, the parties or the composition of the Court/Tribunal is defective which may lead to a nullity. — O.F. Omoleye JCA.
⦿ CAUSE OF ACTION IS A COMBINATION OF FACTS THAT GIVES RIGHT TO SUE
Cause of action has been defined as the facts or combination of facts which give rise to a right to sue. In the case of: Afolayan v. Ogunrinde (1990)1 NWLR (Pt. 127) p. 369, the Supreme Court per Obaseki, J.S.C., (of blessed memory) held thus: In its simplest terms, I would say that a cause of action means (1) a cause of complaint; (2) a civil right or obligation fit for determination by a Court of law; (3) a dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine. It consists of every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. Therefore, a cause of action is the bundle or aggregate of facts which law and equity will recognize as giving the plaintiff a substantive right to make the claim for the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognized by law and or equity as giving rise to a substantive right capable of enforcement or being claimed against the defendant. See the cases of: (1) Ogbimi v. Ololo (1993) 7 NWLR (Pt. 304) p. 128; (2) Bello v. A.-G., of Oyo State (1986) LPELR 764 and (3) Cookey v. Fombo (2005) 15 NWLR (Pt. 947) p. 182. — O.F. Omoleye JCA.
⦿ JUDGES SHOULD RESTRICT COMMENTS TO ONLY ISSUES BEFORE THE COURT
We need to point it out from the onset and there is no disputing this age-long legal position that, no Court has the powers to veer into questions or issues not placed before it. The primary objective of a Court is to confine itself to the hearing and determination in an appeal of issues raised in the grounds of appeal and issues formulated therefrom and in the case of a Court of first instance like the trial Court in the instant matter, only the issues presented by the parties in a suit for the Courts resolution. The Court is therefore legally forbidden from transgressing into issues not presented before it. See the case of: Agbor V. The Polytechnic, Calabar (2009) LPELR 8690 (CA). However, this is not to say that Judges cannot express themselves by way of making passing remarks commonly referred to in legal parlance as obiter dicta. Our Law Reports are replete with comments, opinions or remarks and such expressions that Judges are known to make in the course of the delivery of their decisions, but these remarks and opinions do not usually address the core issues that are central to the determination of the case that the Court was called upon to decide, that is, the ratio decidendi of that case. That is why remarks made by way of obiter dicta are not appealable and if per chance an appeal is lodged against an order dictum, that appeal is necessarily irregular and must be struck out, as not being the decision of the Court in the case. — O.F. Omoleye JCA.
⦿ WHERE OBITER DICTA DID NOT LEAD TO MISCARRIAGE OF JUSTICE, THE JUDGEMENT STANDS
The law is trite that, a Judgment will be allowed to stand where in the opinion of the Court, the remarks of the Judge Obiter Dicta have not occasioned any miscarriage of justice. See the case of: Bamgboye V. University of Ilorin (1999) 10 NWLR (Pt. 622) p. 290, where as in the instant case, bias was alleged and the need arose to have the remarks looked into. It was held in that case that, When a trial Court expresses an opinion on an issue not pleaded, such opinion is Obiter Dictum which if it does not occasion any miscarriage of Justice, the Judgment stands. See Mora v. Nwalusi (1962) 2 SCNLR 73; (1961)1 All WLR pgs. 681 687 and Ayoola v. Adebayo (1969)1 All NLR p.159 at 164. — O.F. Omoleye JCA.
⦿ NATURE OF A BIAS
The above reproduced remarks cannot be translated to a statement of bias. As bias in its ordinary meaning is the expression of an opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold the even scale of justice – See the cases of: (1) Kenon and Ors V. Tekam and Ors (2001) 14 NWLR (Pt. 732) 12 and (2) Womiloju V. Anibire (2010) 10 NWLR (pt. 1203) 545. For an allegation of judicial bias to succeed the person relying on it must establish his allegation based on concrete evidence of some extra judicial factors such as conduct of the person/Judge against whom the allegation is made. The Court, upon that evidence would then consider and decide whether the test laid down in Olue V. Enenwali (1976) 2 SC 12 or (1976) All NWLR 70 that is, from the perspectives of a reasonable man, the allegation of bias was established. The test is objective. See the case of: Womiloju V. Anibire (supra). — O.F. Omoleye JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Oyebisi Folayemi Omoleye, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Rickey M. Tarfa, SAN.
⦿ FOR THE RESPONDENT(S)
E.C. Ukala, Esq., SAN, for 1st Respondent;
E.C. Aguma, SAN, for 2nd Respondent;
D.C. Denwigwe, Esq., SAN, for 3rd Respondent;
K.C.O. Njemanze, Esq., SAN, FCIArb, for 4th – 10th Respondents.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)