➥ CASE SUMMARY OF:
Rafiu Womiloju & 6 Ors. v. Mr. Fatai Ogisanyin Anibire & 4 Ors (2010) – SC
by PipAr Chima
➥ COURT:
Supreme Court – SC.211/2002
➥ JUDGEMENT DELIVERED ON:
Friday, April 30, 2010
➥ AREA(S) OF LAW
Bias
➥ NOTABLE DICTA
⦿ NATURE OF BIAS IN A PROCEEDING
‘Bias’, generally, is that instinct which causes the mind to incline toward a particular object or course. When a judge appears to give more favour on consideration to one of the parties before him, either in his utterances, attention or actions, which is capable of perverting the cause of justice, or where fair hearing cannot be said to take place, all in favour of the party he supports covertly or overtly, then an allegation of bias against him can be grounded. That of course is a Judicial bias. But where a trial has been conducted in which the authority of the court has fairly been exercised in consistence with the fundamental principles of justice embraced within the conception of the process of law, then there is said to be a fair hearing. This contemplates of allowing the parties equal opportunity to present evidence; to cross-examine witnesses and for the trial court to make findings which are supported by evidence. – T. Muhammad, JSC.
⦿ BIAS – CAPABLE OF PERVERTING JUSTICE MUST BE ESTABLISHED
On the ‘role’ played by Mr. Kolawole as counsel, even if Kolawole JCA was indeed the same person who participated as a solicitor to the plaintiffs and they lost and the suit proceeded to appeal court wherein one of the judges was alleged to have played a role when he was a lawyer, such allegation can hardly disqualify him from participating as a judge except where it can be established that his participation is capable of perverting the cause of justice against the adverse party. – T. Muhammad, JSC.
⦿ REAL LIKELIHOOD OF BIAS MUST BE INFERRED BY A REASONABLE PERSON
If it can be reasonably inferred by a reasonable person sitting in court, from the circumstances that there is a real likelihood of bias against one of the parties on the part of the court, it must follow irresistibly that party’s right to a fair hearing had been contravened and the decision on the issue between the parties by the court in such circumstances should not be allowed to stand. – T. Muhammad, JSC.
⦿ BIAS MUST BE REAL – IT MUST HAVE AN IMPRESSION ON OTHER PEOPLE
The test of determining a real likelihood of bias is that the court does not look at the mind of whoever sits in judicial capacity. It does not look to see if there was real likelihood that the judge would, or did, infact, favour one side at the expense of the other. It rather, looks at the impression which would be given to the other people. The likelihood of bias, nevertheless, must be real, not a surprise, caricature or a game of chance. – T. Muhammad, JSC.
⦿ LIKELIHOOD OF BIAS HAS TO BE ESTABLISHED
Where the conduct of a judge or tribunal is impugned, the court or tribunal is not concerned with whether the judge/adjudicator was infact biased. Where even the evidence adduced has pointed strongly to the inference that a judge or adjudicator was infact biased, the court confines itself to the determination of whether a likelihood of bias has been established. The question is always answered by inference drawn from the circumstances of the case. The reason for this attitude of the court is that it would be unseemly for the court to purport to pry into the state of mind of any judicial officer. – T. Muhammad, JSC.
⦿ FOREKNOWLEDGE OF FACT CONSTITUTES BIAS
Foreknowledge of fact in such circumstance is an aspect of bias, as he did not come to the dispute with an openness of mind that would enable him to hold an even scale and he should therefore have been disqualified from hearing the appeal. – O.O. Adekeye, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
T. Muhammad. J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Olatunde Adejuyigbe, Esq.
⦿ FOR THE RESPONDENT
– Ohwovoriole Esq.
➥ CASE HISTORY
The plaintiffs at the High Court of Justice of Ogun State (trial court), took out a writ of summons against the defendants. In both the writ of summons and paragraph 20 of the amended statement of claim, the plaintiffs indorsed their claims as follows, inter alia: “1. The plaintiffs claim against the Defendants jointly and severally is for: – 1) Declaration that the plaintiffs are entitled to a Statutory/Customary Right of Occupancy to that piece or parcel of land situate, lying and being at Orile-Agbogbo, Olorunleke, Ado-Odo, Local Government Area of Ogun State.
After the settlement of pleadings by the parties and taking evidence by the trial court, the claims of the plaintiffs were dismissed by that court. Dissatisfied with that decision, the plaintiffs appealed to the court below. The court below, after a review of the whole proceedings at the trial court, found merit in the appeal and allowed same.
Dissatisfied, the defendants now appealed to this court.
➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED WITH N50,000 cost]
I. Whether the Court of Appeal was not properly constituted by virtue of the inclusion of Honourable Justice Owolabi Kolawole, JCA as a member of the panel which heard the appeal and delivered judgment at the lower court on the 13th day of April, 1993?
RULING:
A. The principles of estoppel by record can have no operation or effect on the appeal on hand. So, even if the Kolawole referred to by the Customary Court, and perhaps who signed as solicitor to the plaintiffs in Exh.B, (which is not conceded by the respondents), it is beyond any per adventure that the two suits were not the same neither in terms of the parties therein, nor the subject matter in dispute. Thus, the appearance of Mr. Kolawole in Exh.B, will have no legal consequence whatsoever on suit No. HCL/3/85 which gave rise to this appeal, there is no relationship between the two whatsoever. If there is, it is not shown to exist through evidence.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ BIAS DEPENDS ON THE IMPRESSION IT WOULD CREATE ON OTHER PEOPLE
In the case Kenon v. Tekam (2001) 14 NWLR (pt. 732) pg. 12, Bias is defined as – “An opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the court so influenced will be unable to hold an even scale.’ On the test for determining real likelihood of bias, the court does not look at the mind of the Justice himself or at whoever it may be who sits in a judicial capacity. It does not look to see if there was real likelihood that he would, or did in fact favour one side at the expense of the other. The court looks at the impression which would be given to the other people. Even if he was as impartial or could be, nevertheless if right minded persons think that in the circumstances there was a real likelihood of bias on his part, and then he should not sit. And if he does sit, his decision cannot stand. The reason is plain enough. Justice is rooted in confidence and confidence is destroyed when right-minded people go away thinking that the judge was biased.”
➥ REFERENCED (OTHERS)
⦿ A JUDGE’S BIAS MUST BE PERSONAL
Black’s Law Dictionary Eight Edition defines judicial Bias as – “A judge’s bias towards one or more of the parties to a case over which the judge presides. 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.”
