IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 6TH DAY OF FEBRUARY 1976
IKEHI OLUE AND OTHERS ............................................... PLAINTIFFS/APPELLANTS
OBI ENENWALI AND OTHERS ................................................ DEFENDANTS/RESPONDENTS
BEFORE: Sowemimo, Bello and Nasir, JJ.S.C.
Following a judgment entered in 1956 by consent of the parties, an application for implementation of that judgment came up in 1972 before a judge who had been counsel in the case in its early stages but had withdrawn before the consent judgment. On realizing that fact, the judge informed counsel of in open court and offered to proceed no further with the matter, adjourning to allow counsel to consult their clients.
Both counsel and the parties agreed that he should go on with the application, and he eventually made an order. The plaintiffs appealed, arguing (a) that the trial was unconstitutional and void because the judge was formerly counsel in the case and (b) that the parties could not waive the disqualification of the trial Judge in view of the provisions of s22 of the Constitution requiring a fair hearing by an independent and impartial judge.
(1) As both parties agreed that the trial Judge should continue with the proceedings, they cannot on appeal complain.
(2) The correct test for disqualification of the trial Judge is whether there were circumstances from which a reasonable person would think there was a real likelihood of bias on his part.
(3) Section 22 of the Constitution gave the right to the parties, a right to object to the judge which they could exercise if they wished or waive, and as they in fact expressly waived their right, s.22 of the Constitution was not infringed.
Obadara and Ors. v. The President, Ibadan West District Grade B Court 1 ALL N.L.R. 336.
R v. Camborne Justices (1955) 1 Q.B. 41
Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon  1 Q.B. 577,598.
Kujore and others v. Otubanjo (1974) 10 S.C. 173.
A.L.A.L. Balogun for the appellant.
A.I. Iguh for the respondents.
Nasir J.S.C. (delivering the judgment of the Court)-This is an appeal from the order dated the 12th November, 1973 made by Aghoghovbia J. sitting at Agbor High Court. The facts, as far as relevant to this appeal are not in dispute. The plaintiffs/appellants claimed from the defendants/respondents in case No. W/20/55. at the old Supreme Court sitting in Warri, for declaration of title, damages and injunction in respect of an area of land known as "Ofia Enugu". During the trial of the said case before Onyeama J. (as he then was), the parties agreed to settle the dispute amicably. Onyeama J. then gave a decision according to the terms of the settlement on 20th June, 1956. The agreed terms were signed by the solicitors of both parties and by the learned trial Judge. The most important provision in the settlement agreement was the demarcation of the boundary line between the lands of the plaintiffs and of the defendants. This boundary was clearly marked on plan No. GA/311/55 filed by the plaintiffs. This plan was accepted and agreed to as the correct and accurate plan for the purposes of the agreement. The cardinal points for the boundary between the parties on this accepted plan were marked A, B, X, Y, and Z. At a subsequent supplementary agreement before Duffus J. on 2nd June, 1958 it was agreed by the parties that the said points A, B, X, Y and Z as on the plan should be demarcated on the ground by an independent and experienced surveyor.
On the 26th of May, 1969, Uche Omo J. made another consent order which, among other things, appointed the Surveyor-General of the Mid-western State as the independent surveyor and was directed to refer only to plan No. GA/311/55 on which the boundary was clearly shown and marked 'A, B, X, Y and Z' by Onyeama J. The Surveyor-General came across some difficulties and he referred the matter back to the court for clarification. As a result of this request, another consent order containing the clarification was made on the 15th October, 1969.
As from the 2nd November, 1970, the presiding judge was M.A. Aghoghovbia J. who made various incidental consent orders in the efforts of the court to implement the consent judgment of the Onyeama J.
On the 2nd April, 1973, a motion on notice was filed by Mr Iguh [of counsel]. This motion was heard and the order made by Aghoghovbia J. on 10th April, 1973. After making the order the learned judge made the following remarks:-
The records of this case show that I was counsel in the matter at the early stages of hearing. I had to withdraw when it was part-heard and the case was later handled by some other counsel to conclusion.
There was a consent judgment in the case because of a faulty surveyor's plan, the parties had to solicit the court's aid for a neutral surveyor to demarcate the boundary between them. This exercise was on before I came to this station and I had made some orders in respect thereof before I only recently discovered that I have been counsel in the matter before. I have my doubts as to whether I can now proceed further with this matter. I also ask myself whether I should not now revoke any orders I might have already made in respect of this matter. Both counsel are anxious that the matter be disposed of and say they personally have no objection to my proceeding with the application in so far as it was a consent judgment. I do appreciate their confidence but would rather adjourn the matter to another date for both counsel to reconsider the point particularly after consulting their clients."
The matter was then adjourned to the 22nd May, 1973. On that date the following was recorded before the matter was proceeded with:-
"Counsel for both sides asked whether they have consulted with their clients as to whether they consent to this Court going on with the matter. They each say the have and that their clients are quite agreed that this Court proceed with this matter".
After this one Abudu Umoru, a representative of the Surveyor-General, testified and put in plan No. AG.C.34 of 10/10/72; the witness was examined and cross-examined. He explained what was done and what was on the plan. The court ordered the Surveyor-General to produce a final plan based on this preliminary plan. On 12th November, 1973, one Thompson Kpeji representing the Surveyor-General brought to court the final plan No. AG.C.35 of 9th November, 1973. This witness too was examined and cross-examined. The learned trial Judge made his order as follows:-
"It has been a question of give and take by both sides to arrive at the present boundary by an impartial and independent surveyor, and both sides having earlier agreed and accepted the points A, B, X, Y and Z on the 22nd May, 1973, I now order that the plan No. AG.C.35 of 9th November, 1973 be the final plan indicating the common boundary agreed to by both parties. I shall therefore sign the said plan accordingly."
This is the order which gave rise to this appeal.
At the hearing of this appeal, learned Counsel for the appellants argued seven grounds of appeal, but the main argument of counsel was on grounds 3 and 4 which were argued together. They read as follows:-
"3. The whole trial was unconstitutional and void because the learned trial Judge conducted the trial in spite of the fact that he was formerly a counsel in the same cause.
4. The learned trial Judge erred in failing to observe that the consent of the parties cannot amount to a waiver of his disqualification to act as judge in view of the requirements of section 22 of the Constitution of the Federation."
The first leg of the arguments on these two grounds was that the learned judge was conducting a trial when he heard the evidence of the representatives of the Surveyor-General. It was further argued in ground 5 that "the learned trial Judge erred in his method of conducting the trial in that he heard the evidence of witnesses who were not witnesses of either party". We see no substance in this argument. The so-called witnesses were the representatives of the Surveyor-General and they did no more than produce plans as directed by the court on a consent order and answered questions asked in respect of the plans. These two witnesses could not be anything other than witnesses of both parties, whether what transpired when these witnesses were giving evidence was "conducting a trial" or not would seem to be of no substance as the said trial was no more than continuation of steps to implement the consent judgment of Onyeama J.
Learned Counsel streneously argued that the whole trial was unconstitutional and void because the learned judge was formerly counsel in the same case and argued further that the parties could not waive this disqualification in view of the requirements of section 22 of the Constitution of the Federation. He argued that the judge must not only be impartial but must also seem to be impartial and without any sign of bias. Learned Counsel referred to a number of authorities in support of his submission.
In reply, learned Counsel for the respondents, Mr Iguh, replied that the authorities referred to in support of the argument were mostly not relevant to the present appeal and, where relevant, they were in support of the respondents' case. He further argued that the case here was a case of consent judgment and in addition, the learned trial Judge had drawn the attention of the parties in open court to the fact that he was counsel at the early stages of the case. He further gave counsel time to consult their clients as to whether he should continue or not. The parties agreed that the learned trial Judge should continue with the proceedings. Mr Iguh in conclusion, argued that the appellants had, if anything, waived whatever right or complaint they might have had and were estopped from raising the issue on appeal.
Of the cases referred to by Mr Balogun, the case of Obadara and others v. The President, Ibadan West District Grade B Court (1964) 1 ALL N.L.R. 336 is in our view relevant in that it has enunciated the correct position of the law. In giving the judgment of the court, Brett, A.G. C.J.N. stated at page 344 as follows:-
"The principle that a judge must be impartial is accepted in the jurisprudence of any civilised country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow the English decisions. The English decisions were reviewed by the Divisional Court in Regina v. Camborne Justices  1 Q.B. 41, and we would adopt the following passage from page 51 of the judgment as setting out the law to be applied in Nigeria-
'In the judgment of this Court the right test is that presented by Blackburn J., namely, that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject matter of the proceeding, a real likelihood of bias must be shown. This court is further of opinion that a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries'."
The decision in Regina v. Camborne Justices, Ex parte Pearce  1 Q.B. 41 (already referred to above) together with other authorities were reviewed by Lord Denning M.R. in the more recent case of Metropolitan Properties Co. (F.G.C.) Ltd. v.. Lannon  1 Q.B. 577 at 598. After reviewing the facts in the case before him, His Lordship said in respect of the law as follows:-
"A man may be disqualified from sitting in a judicial capacity on one or two grounds. First, a 'direct pecuniary interest' in the subject matter. Second, 'bias' in favour of one side or against the other....
So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr Lannon, and no want of good faith. But it was said that there was, albeit unconscious, a real likelihood of bias. This is a matter on which the law is not altogether clear; but I start with the often-repeated saying of Lord Hewart C.J. In Rex v. Sussex Justices, Ex parte McCarthy  1 K.B. 256 at 259): 'It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.'
In Reg. v. Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers' Association  2 Q.B. 167 at 187) Delvin J. appears to have limited that principle considerably, but I would stand by it. It brings home this point: in considering whether there was a real likelihood of bias, the court does not look at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a 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 other people. Even if he was as impartial as could be, nevertheless, if right minded persons would think that, in the circumstances, there was a real likelihood of bias, on his part, then he should not sit. And if he does sit, his decision cannot stand: see Reg. v. Huggins , 1 Q.B. 563) and Rex v. Sunderland Justices  2 K.B. 357 at 373 C.A.) per Vangham Williams L.J. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: see Reg. v. Camborne Justices, Ex parte Pearce  1 Q.B. 41) and Reg. v. Nailsworth Licensing Justices Ex parte Bird  2 ALL E.R. 652 P.C.). There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'
We agree with the above quoted passages and we think they state the correct principle and approach as far as the law of this country is concerned. In the case before us we have no hesitation in holding that any reasonable person would come to the conclusion that the learned judge was impartial and was not in the least biased. Even though the circumstances of the present case considerably differ from the circumstances of the case of I.A. Kujore and others v. Mrs Ebun Otunbanjo (1974) 10 S.C. 173, the legal principle is the same. This was a case where the president of a customary court was challenged by the plaintiff that he was the legal adviser of the defendants and therefore the plaintiff complained that she could not "feel that justice would appear to be done" by the president to her. The president made no comment on the allegation and ultimately decided the case. In giving the judgment of the court (at page 180) Fatayi-Williams J.S.C. stated:
"It is our view, depending of course on particular circumstances, that it is sufficient if materials are supplied which, in the opinion of an independent person, could be considered as suggesting a real likelihood of bias. Advertising once again to the present case, there is no doubt in our mind that, in the absence of an immediate retort from the learned President at the time the allegation, which he must have known to be true, was made, any reasonable person making such a factual complaint would conclude that the learned President, for some inexplicable reason, was bent on hearing the case in spite of the allegation. Such a person would undoubtedly also conclude that the President would not be impartial and would be likely to be biased against him. We do not think that any further proof of likelihood of bias is necessary."
Learned Counsel for the appellants further argued that the consent of the parties could not amount as a waiver to the disqualification of the judge in view of the requirements of sub-section (1) of section 22 of the Constitution of the Federation. In answer to this, Mr Iguh submitted that section 22 of the Constitution did not apply to this case but even if it did, the section gave right to the parties which they could use if they wanted to, and the parties could waive their right whether it was statutory or otherwise. The subsection reads:-
"22 (1). In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality."
In the circumstances of the present case we cannot see how the independence of the impartiality of the learned trial Judge could be impeached. The learned trial Judge expressly drew the attention of counsel and their clients to the fact the he was counsel to one side at the early stages of the proceedings and offered to withdraw from continuing with the proceedings. Both counsel and clients expressly wanted the judge to go on. We cannot see how section 22 can apply in this case. We also consider the argument of learned Counsel for the respondents, that the parties have expressly waived their rights under section 22, as well founded. The right to challenge or impugn proceedings of any court or tribunal which was tainted by the adjudicator being disqualified by interest or likelihood of bias may be lost by express or even by implied waiver of the right to object to the adjudicator at the first opportunity during the proceedings. There would however be no waiver or acquiescence unless the party entitled to take the objection was aware of the nature of the disqualification and had opportunity of so objecting. In Rex v. Essex Justices, Ex parte Parkins,  2 K.B. 475 at 489, Avory J. said:
"The question is whether in these circumstances the applicant can be said to have waived his right to make the objection. In answering that question, we ought, in my view to act upon the principle laid down by Lord Romilly M.R. in Vyvyan v. Vyvyan, (30 Beav. 65, at 74) in these words: "Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim."
Applying the above test to the present case there is not the slightest dispute that the parties knew their rights and had specifically waived the rights by consenting to the learned trial Judge continuing with the proceedings. It would be completely wrong and in breach of principle to allow them to raise the issue on appeal contrary to what they had consented to.
We see no substance in the other grounds argued by learned Counsel for the appellants. In the result this appeal fails and it is hereby dismissed. The appellants will pay the respondents the costs of this appeal assessed at