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Cases On Human Rights

SC.112/98

Michael Ekundayo Ogundare, JSC. (Presided)
Uthman Mohammed, JSC.
Samson Odemwingie Uwaifo, JSC.
Emmanuel Olayinka Ayoola JSC.
Niki Tobi, JSC. (Read the Leading Judgment)

Friday, 20th September, 2002

FUNDAMENTAL RIGHTS – Fair hearing – Where court arrives at correct decision in breach of fair hearing – Whether breach vitiates the decision

NATURAL JUSTICE - Bias and Likelihood of Bias – Judicial panel composed of judges sharing tribal affinity with plaintiff – Whether it is sufficient ground to allege bias or likelihood of bias

ADMINISTRATION OF JUSTICE – Appointment of Lay-Spokesman by respondents to present their case before a customary court – Whether procedure known to law - Whether respondents can turn around to claim breach of fair hearing on the basis that the court did not avail them the opportunity to present their cases individually

Issue for determination:
Whether the Respondents were given a fair hearing at the trial.

Facts:
The Appellants as Plaintiffs sued the Respondents as Defendants before the Koko District Customary Court claiming jointly and severally a declaration of title of customary ownership of Olumagada, Uton-Ugboro, Ukpamaje and Abarumeji Villages in Ureju Town, N100.00 damages for trespass on Ukpamaje land, and perpetual injunction restraining the defendants, their servants and agents from further acts of trespass upon the plaintiff's land.

The parties led evidence in support of their cases. The Respondents (Defendants), were represented by a spokesman of their choice. The court also visited the locus in quo in the course of proceedings. In a reserved judgment, the court granted the Appellants' reliefs. The Respondents (Defendants) being dissatisfied appealed to the Warri Area Customary Court which dismissed their appeal. They further appealed to the Customary Court of Appeal, Asaba, which allowed their appeal. The court then ordered a trial de novo by the Warri Area Customary Court. The Court of Appeal, Benin Division dismissed the appeal of the Plaintiffs on the ground that the respondents were denied fair hearing at the Koko District Customary Court. The Court of Appeal held that the district court, presided by officers of the same tribal affinity with the plaintiffs, was not constituted in a way to ensure its impartiality, and that there were several breaches of the principles of natural justice. The Appellants appealed to the Supreme Court.

Held (Unanimously allowing the Appeal):
A party should not be heard to complain that because he is not of the same tribe with the members of the bench, he cannot have a fair hearing. Mere tribal affinity in the composition of the Koko District Customary court with the plaintiffs/appellants is not sufficient basis of an allegation of bias or likelihood of bias unless the aggrieved party shows by the conduct of the 2. Effect of Breach of Rules of Fair Hearing on Proceedings
The fair hearing principles entrenched in the constitution is so fundamental in the judicial process for the administration of justice that breach of it will vitiate or nullify the whole proceedings.[page 404 para D]

3. Breach of Fair Hearing Vitiates by otherwise Correct Decision:
Where a court arrives at a correct decision in breach of the principle of fair hearing, an appellate court will throw out the correct decision on the basis of the breach.[page 404 paras E-F]

4. Ethnic Affinity of Members of the Bench alone not Ground to Vitiate Trial
The composition of the Bench vis-à-vis the tribes of the parties bears no relevance to the constitutional requirements of fair hearing.

On the Record: PER TOBI, JSC
“The constitutional provision of fair trial has no tribal insinuation of the composition of the bench vis-à-vis the tribes of the parties. A party should not be heard to complain that because he is not of the same tribe with members of the bench, he cannot have a fair hearing. That in my humble view, is the most invidious and incongruous approach to this very important legal principle. If the contention is correct, then most, if not all trials in our judicial system, must be faulted because the composition of most courts may not agree with the tribes of the litigants. Perhaps, an example will make the point clear. No Asian, American, German or any other foreigner would submit to the jurisdiction of any Nigerian court because virtually all courts in Nigeria are constituted by Nigerians. Was section 33 of the 1979 Constitution, which is now section 36 of the 1999 Constitution, designed to cure such a crude situation? No, not at all. Tribal composition of the bench per se cannot be a basis for the charge of bias or likelihood of bias, unless the aggrieved party shows by the conduct of the bench such bias or likelihood of bias. The constitutional provision of fair hearing is already large and omnibus and I am not prepared to expand its frontiers beyond its onerous content or ambit.” [page 415 paras A-D]

Bench, such bias or likelihood of bias. The true test of fair hearing is the impression a reasonable person who was present at the trial would have, whether in his opinion, having observed the trial, justice has been done in the case. The respondents cannot allege breach of fair hearing because they were afforded ample opportunities to present their case which they did through their common spokesperson, and when they cross-examined the appellants' witnesses at the locus in quo.

Details of Principles in the Judgment

1. On True Test of fair Hearing
The true test of fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation justice has been done. [page 404 para G]

2. Effect of Breach of Rules of Fair Hearing on Proceedings
The fair hearing principles entrenched in the constitution is so fundamental in the judicial process for the administration of justice that breach of it will vitiate or nullify the whole proceedings.[page 404 para D]

3. Breach of Fair Hearing Vitiates by otherwise Correct Decision:
Where a court arrives at a correct decision in breach of the principle of fair hearing, an appellate court will throw out the correct decision on the basis of the breach.[page 404 paras E-F]

4. Ethnic Affinity of Members of the Bench alone not Ground to Vitiate Trial
The composition of the Bench vis-à-vis the tribes of the parties bears no relevance to the constitutional requirements of fair hearing.

On the Record: PER TOBI, JSC
“The constitutional provision of fair trial has no tribal insinuation of the composition of the bench vis-à-vis the tribes of the parties. A party should not be heard to complain that because he is not of the same tribe with members of the bench, he cannot have a fair hearing. That in my humble view, is the most invidious and incongruous approach to this very important legal principle. If the contention is correct, then most, if not all trials in our judicial system, must be faulted because the composition of most courts may not agree with the tribes of the litigants. Perhaps, an example will make the point clear. No Asian, American, German or any other foreigner would submit to the jurisdiction of any Nigerian court because virtually all courts in Nigeria are constituted by Nigerians. Was section 33 of the 1979 Constitution, which is now section 36 of the 1999 Constitution, designed to cure such a crude situation? No, not at all. Tribal composition of the bench per se cannot be a basis for the charge of bias or likelihood of bias, unless the aggrieved party shows by the conduct of the bench such bias or likelihood of bias. The constitutional provision of fair hearing is already large and omnibus and I am not prepared to expand its frontiers beyond its onerous content or ambit.” [page 415 paras A-D]

On the Record: PER OGUNDARE, JSC
An allegation of bias or real likelihood of bias is not to be based on mere conjecture or speculation. It is not enough, as alleged in this case, that the trial Judge is of the same ethnic group as one of the parties; he must be shown to have pecuniary or proprietary interest in the subject matter of the dispute or that by his conduct of the proceedings, he has demonstrated favouritism to the party that is of the same ethnic group as his or hostility to the other party. None of these has been shown to exist in this case. The independence and impartiality of a court or tribunal is not taken away merely, and without more, by ethnic affinity of the Judge(s) of the court or tribunal with any of the parties” [page 425 paras F-I, page 428 para A]

On the Record: PER UWAIFO, JSC
“… I have to say that it is invidious to suggest that simply because a Judge and a party to a case belong to the same ethnic group, there arises a case of likelihood of bias based on nemo judex in causa sua as the court below did. The fact does not per se raise any such case of bas or the likelihood of it. It is the attitude displayed by the Judge, if that is apparent, that may be examined as to whether he was biased. Again, if the Judge is shown to derive any pecuniary or substantial benefit from the subject-matter of litigation in such a situation, the issue of likelihood of bias would arise.

“I can find no basis for the conclusion that the defendants were not given a fair hearing, nor of the unsupported view of the Court of Appeal that the Koko District Customary Court sat on its own cause simply because the members and the plaintiffs belong to the same ethnic group.” [page 429 paras E-H]

Nigerian Cases Referred to in the Judgement:
1. Abiola v. Federal Republic of Nigeria (1995) 7 NWLR (Pt. 405) 1
2. Adio v. Attorney General of Oyo State (1990) 7 NWLR (Pt. 163) 448
3. Ajuwon v. Akanni (1993) 9 NWLR 182
4. Balogun v Oshodi (1929) 10 NLR 50
5. Ceekay Traders Ltd v.Gen Motors Co Ltd (1992) 2 NWLR Pt. 222) 132
6. Deduwa v.Okorodudu (1976) NSCC (Vol 10) 499;(1976)1NWLR 236
7. Egwu v.University of Port Harcourt (1995) 8 NWLR (Pt. 414) 419
8. Ejidike v. Obiora (1951) 13 WACA 270
9. Funduk Engineering Limited v. Mcarthur (1995) 4 NWLR (Pt.392) 640
10. Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) 410
11. Mohammed v. Kano Native Authority (1969) 1 All NLR 428
12. Nwizuke v. Eyeyok (1953) 14 WACA 345
13. Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599
14. Otapo v. Sumonu (1987) 2 NWLR (Pt. 58) 587
15. Oyekan v. Adele (1957) 1 WLR 876
16. R.N.H.W. v. Sama (1991) 2 NWLR (Pt. 171) 64
17. Suberu v. Sumonu (1957) 2 FSC 33
18. Univ of Nig Teaching Hosp Mgt Board v. Nnoli (1994) 8 NWLR (Pt. 363) 376
19. Yakubu v. Governnor of Kogi State (1995) 8 NWLR (Pt. 414) 386

Foreign cases Referred to in the Judgment:
• Cottle v. Cottle (1939) 1 ALL ER 535

Nigerian Statutes Referred to in the Judgment:
• Constitution of the Federal Republic of Nigeria, 1979, sections 33, 33(1)(2)
• Constitution of the Federal Republic of Nigeria, 1999, sections 36, 36(1)
• Court of Appeal Act 1976, section 15
• Evidence Act, Cap. 62, Laws of the Federation, 1958, sections 58, 73 (1)(2)

Nigerian Rules of Court Referred to in the Judgment:
• Customary Court Edict, 1978, Order IX rule 1 (1)
• Customary Court Rules, 1978, Order IX; Order X Rules 3(1), 4

Representation
1. Chief Debo Akande, SAN, (with him, O. M. Odje) – for the Appellants.
2. D. O. Okoh (with him, R. E. O. Esite) – for the Respondents.
TOBI, JSC (Delivering the Leading Judgment): This case has passed through four courts: Koko District Customary Court, Warri Area Customary Court, Customary Court of Appeal, Asaba and the Court of Appeal, Benin Division.This is the fifth court.

The plaintiffs, who are now the appellants in the court, in their amended claim, sought against the defendants/respondents jointly and severally for (1) a declaration of title of ownership of Olumagada, Uton - Ugboro, Ukpamajeand Abarumeji villages in Ureju Town, (2) N100.00 general damages for trespass on the Ukpamaje land, and (3) perpetual injunction restraining the defendants, their servants and or agents from further acts of trespass upon the plaintiffs' land.

The Koko District Customary Court gave judgment for the appellants. The Warri Area Customary Court, in a majority decision, dismissed the appeal from the Koko District Customary Court. In other words, that court affirmed the decision of the Koko District Customary Court. The Customary Court of Appeal, Asaba allowed the appeal of the appellants/defendants in that court, thereby reversing the decisions of both the Koko District Customary Court and the Warri Area Customary Court. That court ordered a trial de novo by the Warri Area Customary Court.

The Court of Appeal dismissed the appeal from the Customary Court of Appeal, Asaba. Akpabio, JCA, coram Nsofor and Ige JJ. CA, held that the respondents were denied fair hearing at the Koko District Customary Court. Akpabio, JCA said at page 203 of the record:

“From all that have been said above, there can be no doubt that the defendants/respondents did not receive a fair trial at the Koko District Customary Court. Not only was the trial court not constituted in such a way as to ensure its impartiality as required under section 33(1) of our Constitution of 1979, there was several breaches of the rules of natural justice of audi alteram partem, nemo judex, etc. In view of the foregoing, I am of the firm view that the Customary Court of Appeal was right in setting aside the judgment of the trial court on ground of unfair hearing, and ordering a trial de novo before the Warri Area Customary Court.”

Dissatisfied with the judgment of the court below, the appellants appealed to this court. As usual, briefs were filed and duly exchanged. The appellants formulated five issues for determination:

(i) Whether the respondents were given a fair hearing at the trial.
(ii) Whether the composition of the court constituted a bias against the respondents as held by the Court of Appeal.
(iii) Whether there was a failure of invitation to the respondents to take part at the inspection exercise at the locus in quo.
(iv) Whether the respondents were denied the opportunity to cross- examine the 1st plaintiff/appellant and his 4 witnesses and to testify for themselves
(v) Whether the use of historical books by the trial court constituted a breach of fair hearing”

The respondents adopted the above five issues formulated by the appellants, although they contended in another breath that the main issue for consideration in this appeal is whether the respondents were given a fair hearing at the trial.

Learned Senior Advocate for the appellants, Chief Debo Akande, in arguing issues Nos. 1, 3 and 4 together, submitted that since the trial court was a Customary Court, rules of evidence are not strictly adhered to and that court proceedings are conducted in an informal way as legal practitioners do not appear there.

Learned Senior Advocate referred to page 16 of the record where the amended claim was duly considered by the trial court in the presence of the respondents and interpreted into Ijaw by one Jonah Bunuzor, appointed by the respondents. Counsel pointed out that the respondents did not raise any objection to the motion, which was admitted as exhibit A.

Still on page 16, learned Senior Advocate contended that all the parties were present at the inspection of the locus. He went further and referred the court of pages 20 and 21 where the inspection report of the locus is given. Learned counsel submitted that in the light of the above, the judgment of the court below which was based on lack of fair hearing cannot be sustained.

Learned Senior Advocate called the attention of the court to four decisions cited by the court below on fair hearing and argued that since all the cases are criminal cases, where the standard in favour of the accused is higher than in civil courts, they are not relevant. He also pointed out that the cases are criminal cases, where the standard in favour of the accused is higher than in civil courts, they are not relevant. He also pointed out that the cases dealt with situations where the accused persons were not given a chance to have counsel or chance to conduct their defence, which was not the situation in this appeal.
It was the contention of learned Senior Advocate that although the respondents were not sued in a representative capacity, they were sued jointly and severally and that the respondents agreed and nominated a spokesman who had the benefit of an interpreter. Counsel did not see the applicability of the principle of audi alteram partem. In this regard, he referred to page 8 of the record where the respondents pleaded to the motion.

On the issue of denial of cross-examination, learned Senior Advocate referred to page 10 of the record where the conclusion of the evidence-in-chief is shown and was followed by what was a cross-examination by the defence and the court.

Learned Senior Advocate argued that since the respondents seemed to have conducted their case in a representative capacity through a spokesman who appeared to have cross-examined the witnesses of the appellants, no injustice was done to them; and this is more so when no other respondent indicated his wish to do his case outside what the spokesman did for them.

On issue No. 2, learned Senior Advocate raised the following points:
(1) there is nowhere in the record where the respondents raised any objection to the panelists to the effect that they were Itsekiris.
(2) There is no affidavit evidence after the trial court to actually show that the panelists were all Itsekiris.
(3) The judgment of the Customary Court of Appeal did not make any finding on the issue.
(4) The issues raised by the respondents in their brief before the Court of Appeal did not cover the issue.
(5) The Court of Appeal, in making/raising the issue did not show on which evidence it is based.
(6) The cases cited by the Court of Appeal show that there was an objection at the start of the trial while one of the cases is totally inapplicable

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