CHIEF GODWIN UKAH & ORS
CHIEF CHRISTOPHER A. ONYIA & ORS
IN THE COURT OF APPEAL OF NIGERIA
ON THURSDAY, THE 21ST DAY OF JANUARY, 2016
BEFORE THEIR LORDSHIPS
HELEN MORONKEJI OGUNWUMIJU, J.C.A
MASSOUD ABDULRAHMAN OREDOLA, J.C.A
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A
CHIEF GODWIN UKAH & ORS - Appellant(s)
CHIEF CHRISTOPHER A. ONYIA & ORS - Respondent(s)
C.A. Esom - For Appellant
G.O. Ayoju for 2nd Respondent - For Respondent
Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Hon. Justice B. C. Nosike of the High Court of Enugu State delivered on 24/12/2007 wherein His Lordship gave judgment in favour of the 2nd Respondent against the Appellants for 5% of N 3.5m with interest at the rate of 3% per annum from 24/12/2007 till liquidation of the judgment debt. The facts that led to this appeal are as follows:
The Appellants were the 1st and 2nd Defendants at the trial Court. The 1st Respondent was the 3rd Defendant while the 2nd Respondent was the Plaintiff at the trial Court. The 2nd Respondent is a lawyer who also engages in buying and selling landed property for commission. The 1st Appellant is the Managing Director of the 2nd Appellant. In October 2000, one Mr Uchenna Anthony Onaga, a resident of the United States instructed the 2nd Respondent to search for a house for him to buy. The 2nd Respondent went in search of a house for sale and met the 1st Respondent in the course of his search. The 1st Respondent informed the 2nd Respondent that the Appellants had a building to sell at plot 4 otherwise known as No.5 Ogugua Street, Mainland Emene. The 1st Respondent then took the 2nd Respondent to a meeting with the 1st Appellant. The 1st Appellant informed the 1st Respondent that he wanted to sell the property for N3.5m and he was willing to pay 5% commission.
On 16/10/2000, the 1st Respondent gave a photocopy of the deed of assignment belonging to the 2nd Appellant to the 2nd Respondent and told the 2nd Respondent that the 1st Appellant was allegedly prepared to give a 5% commission to whoever secured a buyer for the property. The 2nd Respondent called Mr Anthony Uchenna Onaga who was not interested in the property. The 2nd Respondent went to the property on 19/10/2000 and met one Mr Emmanuel Umahi who lived and operated a restaurant on the premises. The 2nd Respondent told him to find an alternative residence since the property was on the market. On 22/10/2000 Mr Emmanuel Umahi informed the 2nd Respondent that he had a prospective buyer who was his relative, one Mr. John Ibe. Thereafter, the 2nd Respondent told him the conditions of sale of the property and obtained N500 (five hundred Naira) to conduct a search at the Lands Registry. The 2nd Respondent thereafter conducted a search on the property at the Lands Registry and gave the result of the search to Mr John Ibe.
On 23/10/2000, the 2nd Respondent told the 1st Respondent of the development, prepared a deed of assignment for the property and went to the office of the Appellants with the 1st Respondent to hand over the deed and receive payment. The 1st Respondent later informed the 2nd Respondent that the Appellants refused to collect the deed of assignment from him and had sold the property to Mr. John Ibe. The 2nd Respondent got to know that one month's notice to quit had been issued to Emmanuel Umahi, a tenant on the property by Mr. John Ibe. The 2nd Respondent claimed he never got any remuneration for finding a buyer for the property even though he insisted that the sale was based on the search he had conducted at the Lands Registry. After writing severally to the Appellants for the 5% commission, to no avail, the 2nd Respondent instituted an action at the Enugu State High Court on 12/12/2000 and in the amended statement of claim asked for the following:
1. The sum equivalent to 5% of N3.5 Million being commission due to the plaintiff for the sale of their property at their request (plot 4) No. 5 Ogugua Street Mainland Emene to Mr. John Ibeh.
2. The sum N100,000 being cost of phone call and transportation the plaintiff incurred in looking for willing and capable buyers.
3. General damages N75,000 (Seventy Five Thousand Naira) only.
4. An interest rate on judgment figure of 22% of the prevailing bank rate.
The learned trial judge in a considered judgment ordered the Appellants to pay the sum equivalent to 5% of N3.5m with interest at 3% per annum and dismissed all other claims.
Dissatisfied with the decision of the Trial Court on 24/12/07, the Appellants filed a Notice of Appeal on 2/1/2008 containing a ground of appeal and transmitted records on 15/7/08. Records were deemed compiled on 11/4/11. An amended Notice of Appeal with four additional grounds of appeal was filed on 8/10/10, deemed filed on 11/4/11. Appellants' brief was filed on 12/5/14, Appellant's reply brief was filed on 17/4/15. The 2nd Respondent's brief was filed on 6/6/14. The 1st Respondent did not file any brief.
In the Appellants' brief settled by Esom M. Casmir Esq., four issues were identified for determination as follows:
1. Whether assuming without conceding the fact that there was agency relationship between the Respondents and the 1st and 2nd Appellants, the 2nd Respondent had the legal capacity to act as an estate agent in view of the decision in the case of Alex O. Odudu v Emmanuel O. Onyibe (2001) FWLR (Pt. 79) Page 1403 at Ratio 1?
2. Whether given the facts, evidence and circumstance of this case, the Learned trial judge at the Court below was right in holding that there was an agency contract between the 2nd Respondent on one hand and the 1st and 2nd Appellants on the other hand in the transaction that led to this dispute?
3. Whether having regard to the statement of the learned trial judge as shown in his judgment which went thus: "It is the evidence that the 3rd defendant hailed from Mgbowo in Awgu local Government Area of Enugu State, and relation of the 1st defendant. It is also in evidence that both (sic) Mr. Umahi, Cosmas Okibe and John Ibe hailed from Mgbowo town" (see record page 110 line 15-21 and page 122 lines 8-13) which statement came before the judge continued by saying "this Court hereby holds that the plaintiff was properly appointed an agent of 1st and 2nd Defendant," it can be safely said that his judgment was tainted with bias and sentiment because he felt that Mgbowo people were trying to cheat out his brother and friend Udi man?
4. Whether it is proper in law for an agent to represent the seller and the buyer in the same estate transaction and whether it was proper for the learned trial judge to have refused to resolve that issue before arriving at his decision?
In the 2nd Respondent's brief settled by Chief Chris A. Onyia (the 2nd Respondent) four issues were also identified for determination as follows:
1. Whether the respondent has a legal capacity to act as an agent in property transaction, not being an estate agent but a Barrister and Solicitor of the Supreme Court of Nigeria.
2. Whether there was an agency relationship/ contract between the plaintiff/respondent on one hand and the 1st and 2nd defendant/appellant on the other hand.
3. Whether the judgment of the Court below was tainted with bias.
4. Whether an agent can represent both the seller and the buyer in the same transaction.
The issues for determination settled by both parties, although worded differently are the same in essence. I have crystallised only one issue for determination thus:
Whether from the totality of the evidence before the trial Court, the learned trial judge was right to hold that the 2nd Respondent was an agent of the Appellants and entitled to commission in the circumstances of this case.
On this issue, Appellants' counsel submitted that on the basis of Alex O. Odudu v Emmanuel O. Onyibe (2001) FWLR (Pt. 79) Pg. 1403, any agency contract between a vendor of landed property and a non-member of the Nigerian Institution of Estate Surveyors, Agents and Valuers is a nullity and the actions of such a person regarding an estate contract are void and of no effect.
Counsel submitted further that the 2nd Respondent admitted under cross-examination that he is not a licensed surveyor or agent, but a Barrister and Solicitor in business.
Appellants' counsel argued that unless a person is a qualified estate surveyor and valuer he cannot enter into an agency relationship and perform a job as an agent in an estate transaction and since the 2nd Respondent admitted that he is not a licensed agent, he lacked the capacity to do estate work and demand for a commission even if he indeed had an agency relationship with the Appellants.
Appellants' counsel in their reply brief argued that the roles of a legal practitioner as defined by both the Legal Practitioners Act and the Blacks Law Dictionary do not include the business of purchase and sale of land or commission agency.
Appellants' counsel submitted that the 2nd Respondent misconceived the law when he included commission agency as part of conveyance and property management. Counsel cited Article 7 (2) of the Rules of Professional Conduct for Legal Practitioners.
Counsel further submitted that by requesting for 5% commission on the purchase price of sale of house of the Appellants, the 2nd Respondent was in violation of Article 7(2) of the Rules of professional ethics of legal practitioners. Counsel contended that it is illegal for somebody to hold himself out as an estate agent when he is not a member of the Nigerian Institution of Estate Surveyors, Agents and Valuers (NIESV).
Counsel submitted that from the evidence of the 2nd Respondent on Record, the only person the 2nd Respondent could have had an agency relationship with is one Mr. Anthony Uchenna Onaga who 2nd Respondent claimed had employed his services to find him a property initially. Counsel submitted further that it was the 1st Respondent who had an agency relationship with the Appellants as it was the 1st Respondent who knew of and told the 2nd Respondent of the property that the Appellants had for sale. The 1st Appellant in turn gave the photocopy of the title documents to the 1st Respondent and not the 2nd Respondent. It was the 1st Respondent that gave the photocopy to the 2nd Respondent.
Learned Appellant's counsel submitted that the 2nd Respondent had not shown that he stopped acting as agent for the said Mr Anthony Uchenna Onaga and started acting on behalf of the Appellants nor that he is allowed to do so by law. He cited Herman v Jeuchner (1885) 15 QBD 561 at 563; Halsbury's Law of England 3rd Ed. Vol 8 Pg 126 to 1063.
Counsel contended that the trial Court's findings that the 2nd Respondent was properly appointed as an agent by the Appellant is misconceived. Counsel argued that Appellants' evidence was unchallenged and the 2nd Respondent did not prove his case.
In respect of the allegation of bias levelled against the trial judge, learned Appellants' counsel submitted that the law merely requires the establishment of likelihood of bias in the act or decision of the judge. He cited Salowa Oyelade v Sanusi Araoye (1960) 1 WLR P.223; The Prerogative Writs and Orders under Nigerian Law and Constitution by S.I. O. Aguolu at Pg. 37. Any act of bias violates S.36(1) of the 1999 Constitution and this Court should set aside the judgment of the trial Court. He cited Ikomi v State (1986) 3 NWLR (Pt. 28) Pg. 340. S.C.
Counsel posited that blood relationship, business ties, professional relationship, personal friendship, hostility in the course of trial are some indices for establishing bias which can disqualify a judge or a person from acting in a judicial or quasi-judicial capacity. He cited LPDC v Fawehinmi (1985) NWLR P. 300.
Learned Appellants' counsel in his Reply brief submitted that the 2nd Respondent is a brother with both professional and personal ties to the trial judge. Counsel submitted further that although the trial judge hails from Ezeagu Local Government Area and the 2nd Respondent from Udi Local Government Area, the Ezeagu Local Government Area used to be a part of Udi Local Government Area and both obviously still share brotherhood sentiments.
Counsel submitted that the fact that the 2nd Respondent acted for both the buyer and seller without disclosing his new interest to his principal, Anthony Uchenna Onaga or John Ibe vitiated the agency contract and his action amounts to illegality in law. He cited Odudu v Onyibe (Supra), S. 650 -651 Contract Laws of Enugu State .
In reply to the Appellants, the 2nd Respondent in the brief settled by him, argued that it is on record that 2nd Respondent is a Barrister and solicitor of the Supreme Court as well as a business man involved in the business of buying and selling landed property for profit and commission. Counsel argued that the Blacks Law Dictionary 7th Ed. Defined lawyers as barristers, special pleaders not at the bar, certified conveyancers or solicitors. Counsel insisted that as a legal practitioner within the confines of S.2 of the Legal Practitioners Act Law of Federation L.11 2004, the 2nd Respondent is entitled to practice in the manner prescribed by the Blacks Law Dictionary.
Counsel submitted that no law required a legal practitioner to be enrolled with any other professional body before he can practice his profession in relation to legal conveyance and property management.
The 2nd Respondent submitted that Odudu v Onyibe Supra cited by Appellants' counsel is irrelevant as the facts are not the same as the facts in this case. The 2nd Respondent posited that the Court in Odudu v Onyibe was concerned with a person, who not qualified under the laws and regulations guiding the profession he aspires to, misrepresented himself as a qualified professional. The 2nd Respondent likened the situation in Odudu v Onyibe to a law student who has not been called to the Nigerian Bar holding himself out as an associate of the Law firm he is assigned to during his chambers attachment at law school.
2nd Respondent defined the term estate agent as an independent person engaged on a commission basis to find and introduce a willing purchaser for a property to the seller. He cited Engr. Obi Nwabueze Ezenwa v Roy Ekong & Ors (1999) 11 NWLR (Pt. 625) 55 C.A ratio 5.
2nd Respondent on this issue also argued that by the Blacks Law Dictionary 7th Edition, agency is defined as a fiduciary relationship created by express or implied contract or law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or actions, which can be created in writing, orally, expressly or impliedly. He cited S. 595 of the Contract Laws of Enugu State Cap 26 Revised Laws of Enugu State 2004; Harold Gill Reuschelin & William A. Gregory, the Law of Agency and Partnership 2nd Ed. 1990.
2nd Respondent contended that in this case, the 2nd Respondent was appointed orally by the Appellants a fact which had been admitted by the 1st Respondent when he stated in evidence thus:
"It was in the 1st defendant's office that the 1st defendant instructed the plaintiff to place a buyer for the said property. That was after the photocopy was handed over to the plaintiff. I was present in the office of the 1st defendant when the said defendant (sic) instruction was given".
2nd Respondent submitted that by the provisions of S. 605 of the Contract Laws of Enugu State (Supra), an authority given to two or more persons is presumed to be given jointly, unless from the nature of the items or authority a contrary intention is obvious. Counsel submitted further that an authority given to one or more persons severally, or jointly and severally may be executed by one of the persons without the concurrence of the others.
The 2nd Respondent argued that the 1st Respondent was duly appointed a co-agent of the 2nd Respondent and the moment the 1st Appellant instructed the 1st Respondent on 16/10/2000 to procure a buyer for the property in question on the commission rate of 5% payable to him or any person who procured a buyer for the property in this case, the 2nd Respondent. The 2nd Respondent became an agent of the Appellant.
The 2nd Respondent on this issue, submitted that bias is an issue of fair hearing in law under S. 36(1) of the 1999 Constitution and the test of real likelihood of bias is that there must be circumstances from which a reasonable man would think it is likely or probable that the decision makers would or did in fact favour one side unfairly. He cited Saleh v Monguno (2003) 1 NWLR (Pt. 801) 221.
The 2nd Respondent argued that the 2nd Respondent's reference to the fact that the 1st Appellant, one Mr Umahi, one Mr. Cosmas Okibe and another John Ibe and 1st Respondent all hailed from Mgbowo town is a fact not in dispute and was given in evidence and not to incite any bias on the part of the trial judge.
2nd Respondent argued further that the Appellants' counsel tried to mislead this Court by stating that the fact that the 2nd Respondent or the trial judge hails from Udi was on Record when it is in fact not. Counsel then stated that the trial judge hails from Ezeagu while the 2nd Respondent hails from Udi, two different Local Governments in Enugu State and if Appellants had any issues with that, they should have applied for change of Court to the State Chief Judge before the trial was concluded.
2nd Respondent contended further that there is no likelihood of bias since the 2nd Respondent has no blood, business, or any personal ties with the trial judge except to the extent of appearing before the trial judge in a Court of law in the course of his legal profession. Counsel submitted that the only relationship he has with the trial judge is shared with the Appellants as they were all from the Enugu West Senatorial Federal Constituency.
Learned 2nd Respondent submitted that a legal practitioner can represent both the vendor and vendee in a land transaction and recover his fees from each of them according to the rules subject to prior disclosure. He cited S. 15(3) of the Legal Practitioners Act and S.650 and S.651 of the Contract Laws of Enugu State.
2nd Respondent argued that the Appellants knew that the 2nd Respondent will be acting for them and the prospective buyers and the issue of non-disclosure does not apply in this case neither was it pleaded in the Appellant's statement of defence.
First, I want to determine the actual part taken by the 2nd Respondent in this property sale transaction and the capacity in which he partook.
An agency is a fiduciary relationship said to be created when a person (principal) gives authority to another (agent) to act on his behalf and the agent accepts to act on the authority. The authority may be express or implied. This relationship is usually not determined by the terminology used by the parties to describe their relationship but on the nature of their agreement and the circumstances of the relationship between parties. See Bayero v Mainasara & Sons Ltd (2006) LPELR-7587 CA; (2006) 8 NWLR (Pt. 982) Pg. 391; Upkanah v Ayaya (2010) LPELR-8590 (CA).
An agency can be created by any of the following;
1. Agreement whether formal or not between the parties.
2. Ratification by the principal of the acts done on his behalf.
3. Operation of law under the doctrine of necessity.
See Niger Progress Ltd v N.E.L. Corp (1989) NWLR (Pt. 107) 68; (1989) LPELR-1996 (SC) 33; Edem v Canon Balls Ltd & Anor (2005) 12 NWLR (Pt. 938) 27; (2005) LPELR-1007 (SC); (2005) 6 S.C (Pt. II) 16; Ukpanah v Ayaya (Supra).
The idea behind agency is that the law acknowledges that a person does not always need to act in person to change his legal relations. He may either employ the services of another to change them or do something to change them. Ordinarily, the idea is that the agent can affect the principal's legal position by certain acts which, though performed by the agent, are to be regarded as acts of the principal. See Idowu v Olorunfemi & Ors (2013) LPELR-20728 (CA).
The finding of the learned trial judge is that the 2nd Respondent started acting for the vendor immediately the vendor gave him the sale price and the rate of commission. I have to agree with that finding. I have read the Record and the attempts to wriggle out of the oral instructions given to the 2nd Respondent cannot work. There is no doubt that the 1st Appellant informed several agents including the 2nd Respondent to look for a buyer for the property. There is also no doubt that the Mr. John Ibe who eventually bought the property was introduced to the seller- 1st Appellant by the 2nd Respondent. I have to agree with the finding of the learned trial judge on Pg. 121 of the Record that the 1st Appellant from his demeanour was not a witness of truth. As an appellate Court, I cannot depart from a finding based on the credibility of the witness. It was the 2nd Respondent who gave the property documents to Mr. Emmanuel Umahi who showed Mr. John Ibe (his cousin) who was a prospective buyer. Having said all that, I must iterate that it does not appear to me that the 2nd Respondent was a sub-agent to the 1st Respondent.
It appears to me that they were assigned severally as agents to look for a buyer for the property. One not being a sub agent of the other, there was no exclusive contractual agreement, the property was open in the market and any of the agents could have found a buyer for it. Therefore, the argument that 2nd Respondent was an agent of the Appellant and not an agent of the 1st Respondent appears to me reasonable in the circumstances of this case. Not being a sub-agent therefore, the maxim "delegatus non potest delegare" is inapplicable in this case. Having established that the 2nd Respondent was an agent along with other agents at large for the purposes of finding a buyer for the house of the Appellants, is he entitled to his claim of commission on the sale of property in this case? In order for a real estate agent to succeed in a claim for a commission, it is not enough to show that he introduced a purchaser, but he must also show that the introduction was an efficient cause in bringing about the sale of the property. See Mike Achoru v INEC (2010) LPELR-3588; NPMC v Alli Balogun (1961) LLR 69. The principle in Miller Son & Co. v Readford (1903) 19 TLR 575, Erabor v Incar (Nig) (1973) NCLR 273 is to the effect that the introduction by an agent to the purchaser of the property and its eventual purchase by the defendant at the price proposed by the estate agent made the consummation of the transaction possible and the agent cannot be ignored but should be compensated for his efforts.
That question forms the crux of this appeal. That is the first question posed to us for determination by both parties. The position of the Appellant is that the 2nd Respondent who was plaintiff at the trial Court cannot act as a commission agent in respect of sale of property or cannot receive any commission from the sale of landed property not being a qualified estate surveyor and valuer, nor a member of the Nigerian Institute of Estate Surveyors, Agents and Valuers (NIESV).
Article 7 of the Rules of Professional Conduct provides thus:
Unless permitted by the General Council of the Bar (hereinafter referred to as the "Bar Council", a lawyer shall not practice as a legal practitioner at the same time as he practices any other profession.
(2) A lawyer shall not practice as a legal practitioner while personally engaged in;
a. The business of buying and selling commodities,
b. The business of commission agent;
c. Such other trade or business which the Bar Council may from time to time declare to be incompatible with practice as a lawyer or as tending to undermine the high standing of the profession.
The Legal Practitioners (Remuneration for Legal Documentation and Other Land Matters) Orders S.I. 7 1991 provides a schedule to guide legal practitioners in charging fees in respect of business not otherwise regulated. S. 1 of the Order states:
The remuneration of a legal practitioner in respect of business connected with any sale, purchase, lease, mortgage and other matter of legal documentation and in respect of other business not otherwise regulated and not being business in any action or transaction in any Court shall be regulated Rule 7(2)(b) of the Rules of Professional Conduct for Legal Practitioners, 2007 RPC, therefore forbids a lawyer from practicing as a legal practitioner while personally engaged in the business of a commission agent. A proper dissection of this Rule shows that what is forbidden is practicing as a lawyer, while engaged in the business of a commission agent. In other words, the active part of the provision/prohibition is practice as a legal practitioner. The provision does not forbid a legal practitioner from engaging in the business of a commission agent. Rather, it forbids a legal practitioner engaged in the business of commissioned agent from practicing as a legal practitioner while so engaged. In construing this provision, it is pertinent to note that the qualification of a person as a legal practitioner is distinct from practice as a legal practitioner while the former borders on the mere appellation of one as a lawyer upon being called to the Nigerian Bar, the latter is a question of fact and evidence.
The Rules of Professional Conduct (RPC) is made pursuant to S.11(4) of the Legal Practitioners Act (LPA). S. 11(4) of the LPA is certainly not enacted for the purposes of determining the validity or otherwise of commercial transactions. The RPC is made purely for disciplinary purposes. This point is accentuated by Rule 55(1) of the RPC which stipulates in clear terms, the means of enforcing the provisions of the RPC, including those of Rule 7(2)(b) of the RPC. Rule 55 (1) of the RPC provides as follows:
"If a lawyer acts in contravention of any of the Rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of professional misconduct and liable to punishment as provided in the Legal Practitioners Act, 1975"
Again, a joint reading of S.11(1) and (4) of the LPA shows clearly that only the relevant disciplinary committee has the jurisdiction to enforce the provisions of the RPC.
It is my humble view therefore, that even though in this case, the 2nd Respondent while practicing as a legal practitioner had an agreement and became an agent of the Appellants to secure a vendee for their property, thus acting as an estate agent for commission on the said property, that "contravention" if you will, of the RPC cannot vitiate the agreement between the parties.
I have to say that a party who has benefitted from a contract cannot evade his obligations under the contract by relying on an allegation of illegality. For such illegality to avail the party if at all, it must be ex facie. In W.C.C Ltd v. Batallia (2006) 9 NWLR (Pt. 986) Pg. 595 at 616, 620, the Supreme Court held as follows:
"The law is also settled that whoever intends to claim illegality as a defence must not only plead the illegality he is also required to set out the particulars of the illegality in his pleadings. This requirement is mandatory in all cases where the contract is not ex facie illegal and the question of illegality depends on the circumstances of the case"
There is no doubt that there is no ex facie illegality in the agency agreement between the 2nd Respondent and the Appellants. I cannot agree with the Appellants that they are entitled to resile from it on the basis of perceived illegality because the 2nd Respondent is a legal practitioner or is not an estate agent. There is nothing ex facie illegal in the agreement between the parties. In any event, as the learned trial judge rightly observed on Pg. 122 of the Record, the issue of illegality of the agreement between the Appellants and the 2nd Respondent was not pleaded. See also Awojugbagbe Light Industries Ltd v. Chinukwe (1995) 4 NWLR Pt. 390 Pg.379 at 426 and Chidoka v FCFC Ltd (2013) 5 NWLR Pt. 1346 Pg. 144 at 163.
I must not conclude this judgment without addressing the unnecessary and unfair allegations against the learned trial judge by Appellants' counsel. Judges are human beings, they do not fall from heaven nor are they manufactured from Mars or Neptune. As with all human beings they originate from somewhere, a race, a community, or tribe. Appellants' counsel devoted a lot of energy on attacking the personality of the learned trial judge on pages 17-19 of the Appellants' brief on the basis of an alleged kinship with the 2nd Respondent. The attack was unnecessary and mischievous in the circumstances of this case. This Court held in Abalaka v Minister of Health (2006) 2 NWLR (Pt. 963) 105 at 134 per Muhammed JCA thus:
"The constitutional provision of fair hearing has no tribal insinuation of the composition of the bench vis- a-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 clearer. No Asian, American, German or any other foreigner would submit to the jurisdiction of a Nigerian Court because virtually all Courts in Nigeria are constituted by Nigerians. Was Section 3 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 at the bench per se cannot be 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 the frontiers beyond its onerous content or ambit."
There is no doubt that the allegation of bias on the basis of kinship in this case is completely unfounded in the circumstances. Admittedly the learned trial judge raised the issue of kinship first, but in the context of the relationship of the Defendants to each other. The learned trial judge held as follows on Pg. 122 of the Record.
"It is in evidence that the 3rd defendant hailed from Mgbowo in Awgu Local Government Area of Enugu State, and a relation of the 1st defendant. It is also in evidence that both Mr. Umahi, Cosmas Okibe and John Ibe hailed from Mgbowo town"
The imputation of allegation of conspiracy between the Defendants at trial against the Plaintiff at trial attributed to the trial judge by the Appellant on appeal is in my view not borne out by the Record. The learned trial judge did not give the impression that the Court found a conspiracy between the Defendants at trial to cheat the Plaintiff at trial.
The above quoted obiter of the learned trial judge did not form part of the ratio decidendi of the judgment and is a good example of the less said, the better by way of obiter in a judgment. In any event, the current penchant of counsel to allege bias against judicial officers under every imagined pretext must be highly deprecated, condemned and discouraged. It does not enhance the confidence of the public in the judicial process and only serves to erode the rule of law. Justice is rooted in confidence. If the parties felt strongly that there was a fiduciary relationship between the Bench and any lawyer or party, it was their duty to draw attention to it BEFORE the case was heard and determined by the judge. It is obviously the antics of a bad loser to cry foul after the case had been lost. In the circumstances, the appeal is wholly without merit and hereby dismissed. N50,000 costs to the Respondent against the Appellant. The judgment of Hon. Justice B. C. Nosike in suit No E/802/2000 is hereby affirmed.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.:
The draft of the leading judgment just delivered by my learned brother, Justice Helen Moronkeji Ogunwumiju, JCA was made available to me before now. I am in tandem with the reasoning and conclusion reached therein to the effect that the instant appeal has no merit whatsoever. Additionally, that it should be dismissed. In this regard and more, I also dismiss the appeal.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.:
I had read the draft of the judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU JCA, I agree with his reasoning and conclusions. I also hold that the appeal has no merit and is accordingly dismissed. I abide by all the orders made therein.