DEDUWA & ORS V. OKORODUDU & ORS. (1976)

In The Supreme Court of Nigeria

On Friday, the 15th day of October, 1976

SC.74/1974 (CONSOLIDATED)

Before Their Lordships

DARNLEY A. R. ALEXANDER  Justice of The Supreme Court of Nigeria

ATANDA FATAYI-WILLIAMS Justice of The Supreme Court of Nigeria

GEORGE S. SOWEMIMO  Justice of The Supreme Court of Nigeria

AYO G. IRIKEFE  Justice of The Supreme Court of Nigeria

CHARLES O. MADARIKAN  Justice of The Supreme Court of Nigeria

MOHAMMED BELLO  Justice of The Supreme Court of Nigeria

CHUKWUNWEIKE IDIGBE  Justice of The Supreme Court of Nigeria


Between

1. A.U. DEDUWA
2. CHIEF S.O. OLOGIDE
3. CHIEF P.O. ARUNURE – (SUIT NO.W/22/68)
4. DOGBOR OROBIROKA
(for themselves and on behalf of
Eribregbe family of Ogunu Village)

1. Emmanuel Amoma Okorodudu.
2. Laye Atiyo Arubu
(for themselves and on behalf of Yonwuren
and Agbeje families of Ugbuwangue)
3. Itsekiri Communal Land Trustees
4. Etsitso Agbamu
5. Oritsetimeyin Agbamu
6. Ogbe Agbamu
7. Asatu Denedo – (SUIT NO. W/28/69)
8. EREWA Ofolu
9. John Oji Oboro
10. Kenera Oluyemi Denedo
11. Samuel Ojeh Ofolu
12. Sampson Edun Afiekpone
13. Solomon Mene
(For themselves and on behalf of the Ubeji Community)

(CONSOLIDATED)Appellant(s)

AND

1. EMMANUEL AMOMA OKORODUDU.
2. LAYE ATIYO ARUBI
(for themselves and on behalf of Yonwuren
and Agbeje families of Ugbuwangue)
3. Itsekiri Communal Land Trustees
4. Shell-BP Petroleum Dev.
COMPANY OF Nig. Ltd. – (SUIT NO.W/22/68)
5. Etsitso Agbamu
6. Oritsetimeyin Agbamu
7. Ogbe Agbamu
8. Asatu Denedo
9. Erewa Ofolu
10. JOHN OJI OBORO
11. KENARA OLUYEMI DENEDO
12. SAMUEL OJEH OFUJE
13. SAMPSON EDUN AFIEKPONE
14. SOLOMON MENE
(For themselves and on behalf of the Ubeji Community

1. A.U. Deduwa
2. Chief S.O. Ologide
3. Chief P.O. Arumure
4. Dogbor Onobiroka – (SUIT NO. W/28/69)
(for themselves and on behalf of Eribregbe
family of Ogunu village)
5. Shell-BP Petroleum Dev Co. of Nig. Ltd).

(CONSOLIDATED)Respondent(s)Alexander, C.J.N. (Delivering the Leading Judgment): The appellants were the plaintiffs in Suit No. W/22/68 filed in the High Court of Mid-Western State (now Bendel State) of Nigeria at Warri in the Warri Judicial Division, while the respondents, including Shell-BP Petroleum Development Company of Nigeria Limited, hereinafter referred to as “Shell-BP”, were the defendants in that suit.  On the other hand, the respondents, excluding Shell-BP, were the plaintiffs in Suit No. W/28/69 filed in the same High Court, also at Warri in the Warri Judicial Division, while the appellants and Shell-BP were the defendants in that suit.  In Suit No. W/22/68 Shell-BP was the 4th defendant, while in Suit No. W/28/69 Shell-BP was the 5th defendant.
The plaintiffs in Suit No. W/22/68 (now the appellants) claimed against the defendants (now the respondents) as follows:
“(1)  As against the 1st, 2nd, 3rd and 5th to 14th defendants jointly and severally a declaration of title to all that piece or parcel of land lying and situate in Ogunu territory verged in pink on survey plan No. AR.663 filed in support of this action.
(2)    An order for payment over to the plaintiffs of the sum of 10,623.10pounds or any sum paid or payable by the 4th defendant as first annual rent and or compensation in respect of 4th defendant’s occupation and/or user of the piece or parcel of land described and shown as in (1) above.
(3)   An order that the plaintiffs as owners and/or persons formerly in occupation (i.e. prior to the 4th defendant’s occupation and/or user as from February 1968) of the piece or parcel of land aforesaid are entitled as against the 1st, 2nd, 3rd and 5th to 14th defendants to all rent and/or compensation due from and payable by the 4th defendant’s occupation and/or user of the said piece or parcel of land.
(4)    An order that the 4th defendant do pay over to the plaintiffs the sum of 982 pounds already assessed by plaintiffs and 4th defendant being compensation due to the plaintiffs for their mangrove and other economic trees growing on the said land which were destroyed by the 4th defendant in or about January 1968”.
On the other hand, the plaintiffs in Suit No. W/28/69 (now respondents) claimed against the defendants therein (now appellants with the exception of Shell-BP which is also a respondent) as follows:
“(1)  A declaration that in accordance with Itsekiri Customary Law, all that piece or parcel of land verged pink on the Plan No. T.J.M.1609 is under the overlordship right of the Olu of Warri now vested in and exercisable by the Itsekiri Communal Land Trustees by virtue of the Communal Land Rights (Vesting in Trustees) Law 1958 and the Warri Division (Itsekiri Communal Lands) Trust Instrument 1959.
(2)    A declaration that in accordance with Itsekiri Customary Law that part of the land in dispute verged pink on the plan No.T.J.M. 1609 less the area verged blue is the property of the Yonwuren and Agbeje families of Ugbuwangue village in Warri Division subject to the overlordship rights of the Olu of Warri now vested in and exercisable by the Itsekiri Communal Land Trustees.
(3)    A declaration that in accordance with Itsekiri Customary Law, that part of the land in dispute verged blue on the plan No. T.J.M. 1609 filed by plaintiffs in this suit is the property of the Ubeji community subject to the overlordship rights of the Olu of Warri now vested in and exercisable by the Itsekiri Communal Land Trustees.
(4)    A declaration that in accordance with Itsekiri Customary Law, the 1st, 2nd, 3rd and 4th defendants or the Eribregbe family of Ogunu have forfeited their rights of occupation or possession or any rights to rents or compensation or any other rights or benefits, estates in or on the said land in dispute verged pink on the plan No. T.J.M. 1609 filed by plaintiffs in this suit.
(5)    An order of forfeiture of all rights, estates or interests that the 1st, 2nd, 3rd and 4th defendants may have in or over the said land in dispute.
(6)    An order of perpetual injunction to restrain the 1st, 2nd, 3rd and 4th defendants, their servants or agents from entering the said land in dispute or making any grant or grants of the said land to the 5th defendant or any other person or persons.  The land in dispute is verged pink on the plan No. T.J.M. 1609 filed by plaintiffs in this suit”.
Pleadings were ordered, filed and delivered and amended in the process and in due course the two suits were with the agreement of counsel for all the parties and by order of the court consolidated for hearing.  At the conclusion of the hearing the court delivered judgment dismissing the plaintiffs’ claims against the defendants in Suit No. W/22/68 and granting the plaintiffs’ claims against the defendants in Suit No. W/28/69.  In regard to the position of Shell-BP the learned Judge said ‘
“The 4th defendants appear to me to be stakeholders and have signified their intention to pay compensation to anyone adJudged to be the owner of the land they acquired.”
The learned Judge also pointed out in his judgment that the rival claims in the consolidated action were virtually if not precisely to the same piece of land.
The plaintiffs in Suit No. W/22/68 who were, of course, also the defendants in Suit No. W/28/69, being dissatisfied with the decision of the learned Judge, appealed to this court on the following grounds:
“(1)  The learned trial Judge erred in law and on the facts in hearing these suits before the final determination by the Supreme Court of important preliminary and/or interlocutory matters as to joinder and/or settlement of parties and pleadings in respect of which he had granted leave to appeal to the appellants who had exercised their undoubted right of appeal.
(2)    It was an error both in law and on the facts for the learned trial Judge to adjudicate in respect of these cases in which he had an interest in the subject-matter in dispute by reason of his being one of the beneficiaries of the Trust represented by the 3rd respondents, the Itsekiri Communal Land Trustees.
(3)    The learned trial Judge erred in law and on the facts in hearing the suits when there was a real likelihood of bias on his part.  (Particulars were then given).
(4)    There was no fair hearing and/or determination of the appellants’ rights having regard to grounds ((2) and (3) above.
(5)    The learned trial Judge erred in law on the facts in giving judgment for the respondents when their claim and evidence did not support the said judgment”.
Ground (5) was ultimately not pursued by learned leading counsel for the appellants, Dr. Odje.  Learned leading counsel for the 1st and 2nd respondents, Chief F.R.A. Williams (supported by learned leading counsel for the 3rd respondent, Chief O.A. Awolowo, and learned leading counsel for the 5th to 14th respondents, Dr. E.A. Ajayi) raised preliminary objections to grounds (1), (2), (3) and (4) and applied to have them struck out.
As regards ground (1) Chief Williams contended that the only appeal before this court was against the judgment of the High Court delivered on November, 24, 1973; that the decision of the learned Judge to grant leave to appeal against the interlocutory rulings referred to in this ground of appeal was conditional on this not being allowed to ‘hinder’ the hearing of the case; that he had further decided that the case should proceed; that there had been no appeal against these decisions and no application for stay of proceedings; and that, consequently, there was no justification for allowing this ground to be argued by the appellants and that it should therefore be struck out.Dr. Odje was quite obviously unable to justify the retention of this ground, and we found ourselves in agreement with the contention of Chief Williams.  We were of the opinion that the appellants having failed to obtain a stay of proceedings in the court below, and having failed to file any application to this court for such a stay of proceedings, could not be allowed to rely on their own default in arguing ground (1) and that, in any event, there could not in law be any justification for its retention.  We accordingly ordered that it be struck out.
Chief Williams then proceeded to attack grounds (2), (3) and (4).  He referred to a letter written by the 1st, 2nd and 3rd appellants to the Registrar of the High Court requesting that the learned Judge should not try the case on the ground that his alleged ethnic affinity to the respondents and alleged interest in the subject matter of the action and, consequently, the likelihood of bias on his part, disqualified him from doing so.  The contents of this letter were found by the learned Judge to be a contempt of court for which he ordered the 1st, 2nd and 3rd appellants to show cause before convicting them and ordering them to pay a fine of N100.00 or to serve six months imprisonment in default.  Subsequent to the proceedings for contempt, learned counsel for the appellants withdrew his appearance. The following dialogue then ensued between the court and the appellants.
‘Court:  Have you got another lawyer?
Answer: No.  Our family asked us to take the file from the lawyer and our instruction is that we should not do the case in this court because we were sentenced in court yesterday to a fine.
Court:    The case will proceed and if you wish to brief another lawyer I give you up to 9.00 a.m. tomorrow to do so.  You will all report in court tomorrow at 9.00 a.m. with your new lawyer if you so desire’.
The case was then adjourned to the following day at 9.00 a.m.
Chief Williams went on to submit ”
(1)    that the contempt proceedings followed by the withdrawal of learned counsel for the appellants and the reluctance, at that stage, of the appellants to proceed with the trial of the action before the learned Judge resulted in a ‘ruling or determination’ that the trial should proceed; that the appellants were complaining about a decision on a question of an alleged contravention of their constitutional right to a fair hearing under section 22(1) of the Constitution of the Federation (hereinafter referred to as the Constitution) from which there may be an appeal as of right under section 117(2)(d) of the Constitution; and that the appellants did not avail themselves of this right to appeal against that decision;
(2)    that there was a specific application which was specifically rejected and that the appellants are bound by it since they did not appeal against it as of right as provided by section 117(2)(d) of the Constitution, or bring an action in the High Court by writ under section 32 of the Constitution for declaration and injunction before delivery of judgment or, if judgment has already been delivered, a declaration and order setting aside the judgment and consequential orders of the court.
We appreciate the anxiety of learned counsel for the respondents to have this appeal disposed of ‘in limine’ and the thoroughness (with the support of a number of authorities) with which Chief Williams dealt with these points and, in particular, the distinctions made by him between ‘

(1)    an attack on a decision on the ground that it is wrong in law and in fact, and
(2)    an attack on a decision on collateral grounds, e.g. grounds not concerned with error in the decision itself but based upon a ground that, right or wrong, the decision has been arrived at by a tribunal that was not qualified to adjudicate or, though qualified, it had contravened the provisions relating to fundamental rights in the Constitution.
(3)    A pre-trial application and one made during the trial, and
(4)    An appeal involving a point of jurisdiction and one that does not.
Dr. Odje countered by pointing out, first of all, that the appellants’ right of appeal from the judgment of the High Court is not qualified in any way and that section 117(2)(a) of the Constitution entitles them to appeal ‘as of right’ against that judgment which in fact contained passages dealing with the very matter complained of in the grounds of appeal.  He further contended that the indications given by the court at the end of its dialogue with the appellants that it would proceed with the case could not qualify as a decision or order of the court that can be extracted and enrolled.  He argued in support of the inclusion of grounds (2) to (4) in the appellants’ grounds of appeal.  He then went on to submit that, even assuming that the court’s indication that it would proceed with the case on the following day could qualify as a ‘determination’. Order VII, rule 25 of the Supreme Court Rules is a complete answer to the objection raised by learned counsel for the respondents and makes no distinction between interlocutory orders made ordinarily or in respect of constitutional matters.
Chief Williams’ reply to the point that Order VII, rule 25 of the Supreme Court Rules applies, was that this rule was not intended to apply to all interlocutory matters, but to those orders that incidentally determine points of law or fact which arise again when this court is considering what judgment or order it ought to make on an appeal against that final judgment.  He further submitted that all interlocutory decisions that are given from the time of commencement of the trial up to the date of judgment can be raised on an appeal against the final judgment since appeals in this court are by way of rehearing and that Order VII, rule 25 will apply to interlocutory appeals of this nature.
We gave careful consideration to the arguments of Chief Williams and Dr. Odje.  First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ‘ruling or determination’ of the High Court wasa judicial ‘decision’ or ‘determination’ within the meaning of section 117(7) of the Constitution.  This provision reads as follows ‘
“In this section ‘decision’ means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this subsection, a judgment, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.”
More light is thrown on the meaning of the words ‘decision’ and ‘determination’ in the case of The Automatic Telephone and Electric Co. Ltd. v. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola CJR., in giving the ruling of the court said at page 432 ‘
“We have been referred to the Shorter Oxford Dictionary for the meaning of determination.  It means ‘a bringing or coming to an end’ or ‘the mental action of coming to a decision’, or ‘the resolving of a question’.

In Oaten v. Auty (1919) 2 KB 278 Pray J. at page 284 interprets the word ‘determine’ as meaning ‘make an end of the matter’.  In our own experience in this (Supreme) court, we send a matter back to the High Court for a rehearing and determination: the word ‘determination’ therein meaning ‘ending of the matter’.”
It is not therefore every indication of the court’s intention or state of mind or repetitive observation or remark made by the court that qualifies as a decision or determination of the court.  When the court stated that it would proceed with the case and directed the appellants to report in court the following day at 9.00 a.m. with their new lawyer if they so desired, it did not do so as a result of any application before it, nor was there any issue before it for hearing and determination.  The court’s observation came at the end of a rather lengthy and mostly irrelevant dialogue with counsel for the appellants followed by the appellants themselves.  The court had, even before this, indicated in an earlier ruling given after the grant of leave to appeal against its interlocutory rulings, that the case will proceed as scheduled. Is this also to be called a ‘decision’ or ‘determination’?
We are firmly of the opinion that the so-called ‘ruling or determination’ was not a judicial ‘decision’ or ‘determination’ of the High Court but merely an observation confirming the court’s intention to continue to be adamant in not granting an adjournment to the appellants beyond the following day, and in proceeding with the trial without further delay.
We are also firmly of the opinion that, even assuming that the so-called ‘ruling or determination’ were to be regarded as a judicial ‘decision’ or ‘determination’, Order VII, rule 25 would have been a complete answer to the submission that the appellants’ remedy lay in appealing against it.  Order VII, rule 25 reads as follows ”
“No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the court from giving such decision upon the appeal as may seem just.”
As regards the distinction sought to be made between pre-trial interlocutory orders and interlocutory orders made during the course of a trial, as far as Order VII, rule 25 is concerned, we are unable to find any basis for this distinction either in the relevant High Court Rules or the Supreme Court Rules or, for that matter, in the English Supreme Court Practice.  We are satisfied that Order VII, rule 25, does not recognize any such distinction and applies to all interlocutory judgments, decisions, determinations and orders.  Consequently, we hold that Order VII, rule 25, would prevent any such interlocutory judgment, decision, determination or order from which there has been no appeal from operating so as to bar or prejudice this court from giving a just decision on any appeal before us.
We therefore overruled the preliminary objections raised and argued by learned counsel for the respondents in respect of grounds (2), (3) and (4) and refused his application that they should be struck out.
As regards ground (2), learned counsel for the appellants referred to the provisions of the Warri Division (Itsekiri Communal Lands) Trust Instrument, 1959, as amended, and contended that the learned Judge was a beneficiary of the Trust by virtue of his parentage, his mother being Itsekiri.
It is not, however, disputed that the learned Judge’s father was Urhobo and therefore of the same ethnic group as the appellants.  Counsel submitted that every member of the Itsekiri community has an interest in the Trust and that the learned Judge has an interest in the Trust through his mother and was consequently disqualified from hearing the consolidated suits filed by the appellants and the respondents who are Urhobos and Itsekiris respectively.
From an examination of the provisions of the Trust Instrument, as amended, it can be clearly seen that the object of the Trust was to vest in the Trustees all rights in or over land in Warri Division that are exercisable on behalf of the Itsekiri Community by the Olu of Warri.  Trustees are appointed under the Instrument and the expenditure of the revenue arising under the Trust, which is to be used for defraying the expenses of the Trust and for the advancement of the education or culture or maintenance of the tradition of the Itsekiri community, is to be supervised by an Itsekiri Lands Representative Committee.  Counsel does not say that the learned Judge is either a Trustee or a member of this Committee.  His argument is based solely on the fact that the learned Judge’s mother is Itsekiri and that this fact alone makes him a beneficiary of the Trust and therefore disqualified him from hearing the consolidated action.  He went on to speculate, there being no evidence whatever to that effect, that the learned Judge’s children may be educated from the trust fund.  In short, his submission was that because the learned Judge’s mother is Itsekiri and he lived in an Itsekiri community at the material time, he had an ‘interest’ in the Trust which disqualified him from hearing the action.  Learned counsel did not, however, support his contentions with any relevant authorities.  Learned counsel for all the respondents contended that the learned Judge had no such interest, that is, no pecuniary or proprietary interest, in the Trust, and was therefore not disqualified from hearing the action.
The principles to be applied in these circumstances have been stated many times in a number of dicta.  In R. v. Rand (1866) LR 1 CP 230, Blackburn, J. said at page 232 ‘
“There is no doubt that any direct pecuniary interest however shall in the subject of inquiry does disqualify a person from acting as a Judge in the matter”.
In the Queen v. McKenzie (1892) 2 CR 519 it was contended that a conviction by justices for an offence against section 7 of the Conspiracy and Protection of Property Act 1875 should be quashed on the ground that three of the convicting justices were disqualified by reason of ‘interest’ and ‘bias’.  The facts were that the prosecutor was the local agent of a shipping federation, whilst the justices were shareholders in shipping companies whose ships were issued in societies which were members of the federation.  It was admitted that the justices had no pecuniary interest in the matter.  The court held further that the justices so-called ‘interest’ was too indirect to sustain an allegation of pecuniary interest or bias on their part.
It is not disputed that the learned Judge in the present case has never received any pecuniary benefit from the Trust and there is indeed no evidence of this.  Nor is there evidence of his having any proprietary interest in the subject-matter of the Trust which could be regarded as a legal or equitable interest in a jurisprudential sense.
We are firmly of the opinion and we hold that the learned Judge had no pecuniary or proprietary interest in the Trust and therefore no legal interest as could have disqualified him on that ground from hearing this action, notwithstanding the fact that the Itsekiri Communal Land Trustees were parties in the consolidated suits.  This ground of appeal therefore fails.

  We shall now deal with grounds (3) and (4) together since the arguments in respect of these grounds appear to be inextricably interwoven and, also, because in our opinion the issues of ‘real likelihood of bias’ and ‘fair hearing’ are interdependent in the circumstances of this case. Section 22(1) of the Constitution provides:
‘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 a manner as to secure its independence and impartiality …’
It is, of course, beyond question that the High Court at which the learned Judge presided is a court established by law and constituted in such a manner as to secure its independence and impartiality.  The question to be answered and decided in this context is, therefore, what is a ‘fair hearing’. A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice.  Evershed M.R. said in Abbot v. Sullivan(1952) 1 KB189, at page 195 ‘
“The principles of natural justice are easy to proclaim, but their precise extent is far less easy to define”.
However, the two essential elements of natural justice with which we are concerned in this appeal are that ”
(1)    no man shall be Judge in his own cause; and
(2)    both sides shall be heard, or audi alterem partem.
As regards the first principle, the truism that ‘Judges, like Caesar’s wife, should be above suspicion’ was given due recognition in the dictum of Bowen L.J. in Leeson v. General Council of Medical Education (1890) 43 Ch D 366, at page 385.  We have already dismissed the argument that the learned Judge had a legal ‘interest’ which disqualified him from hearing the action, on account of his alleged beneficial interest in the Trust. However, the examination of the allegation of “interest” or ‘bias’ or real likelihood of bias on the part of the trial Judge in the conduct of the proceedings before him goes much further than this.  Although the smallest pecuniary interest will disqualify a Judge, there are other grounds based on public policy on which bias or the real likelihoood of bias may disqualify a  Judge
“The law, in laying-rule has regard not so much perhaps to the motives which might be supposed to bias the Judge as to the susceptibilities of the litigant parties.  One important object, at all events, is to clear away everything which might engender suspicion and distrust of tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security”.
Again, in Metropolitan properties v. Lannon (1969) 1 QB 577, Lord Denning M.R., said at page 599 –
“In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or 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 “. Nevertheless, there must appear to be a real likelihood of bias.  Surmise or conjecture is not enough “.  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 enquiry 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”.
Although the decision in that case concerned the chairman of a rent assessment committee, and the allegation made was that the decision of his rent assessment should be upset on the footing that he had an interest in the matter of a disqualifying character, we nevertheless find ourselves in entire agreement with the approach of Lord Denning to the question of ‘real likelihood of bias’, an approach we consider to be applicable to the circumstances of the present case which we shall later describe in some detail.
The test of a ‘real likelihood of bias’ was also explained and applied in Obadara & Ors. v. Commissioner of Police(1987) NMLR 39 and in Oyelade v. Araoye & Attorney-General (1968) NMLR 41 confirming Obadara’s case, but in somewhat different circumstances.  In Obadara’s case Brett, Ag. CJN., said at page 44 – “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 English decisions”.
We shall first of all test the submissions and arguments of learned counsel in the light of these most authoritative principles.    All arguments, therefore, by learned counsel for the appellants or the respondents calculated or tending to show the learned Judge was in fact biased or not biased, need not be considered further if there is a foundation of fact for holding that the impression created by his conduct of the proceedings in the minds of ‘reasonable people’ was that, in the circumstances, there was a real likelihood of bias on his part.  If such impression was created, he should not have proceeded to hear the action and in such circumstances his decision at the conclusion of the hearing would not be allowed to stand.
The fact that on a number of occasions spread over a number of days prior to the hearing, the court awarded costs in respect of a number of interlocutory applications either to the appellants or to the respondents in a manner considered to be fair and just, or that he granted an adjournment when he could have dismissed or struck out the appellants’ case in default of their attendance, is neither here not there.  We have also decided that, for the purposes of our consideration of grounds (3) and (4), it is not necessary for us to delve into the contempt proceedings against the appellants, other than referring to their conviction for contempt by the learned Judge in the course of the proceedings prior to the hearing when, as already mentioned, the 1st, 2nd and 3rd appellants were each sentenced to pay a fine of N1000.00 or in default of payment to serve six months imprisonment with hard labour.  In addition each was to enter into a bond to keep the peace and to be of good behaviour generally for one year, in the sum of N1,000.00 ‘in self-recognisance’.
It was submitted by learned counsel for the respondents that the failure by the appellants to attend court for the trial of the action was an act of ‘utter irresponsibility’.  That may well be so.  However, the appellants may also have absented themselves at a time after the impression could have been created in their minds, as well as in the minds of ‘reasonable people who had witnessed the proceedings prior to the hearing, that there was a real likelihood of bias on the part of the learned Judge, if he should decide ultimately to hear the action.

Chief Williams submitted that there are two types of bias –
(1)        an allegation attacking the qualification of the tribunal to try the case, that is, an attack on the constitution of the tribunal and
(2)        hostility to a party’s case or to the party,
and that, in the latter case, it is not possible for a person to claim lack of fair hearing unless he participates in the trial.  He contended further that in every case where the court has held there was not a fair hearing there has been a trial.  In Mohammed v. Kano N.A. (1968) 1 All NLR 424, Ademola CJN., (delivering the judgment of the court) said at page 426 ‘
“We think a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing.  We therefore see no difference between the two.  The true test of a fair hearing it was suggested by counsel is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case.  We feel obliged to agree with this”.
Chief Williams went on further to submit that since a fair hearing involves a fair trial the party complaining must have been present at the trial.  He went on to point out the distinction between bias and the right to be heard: See Kanda v. Govt. of Malaya (1962) AC 322, 337.  There is, of course, also a distinction to be drawn between the right to be heard at all and the right to a fair hearing.  Chief Awolowo went on to analyse the two ingredients of a fair hearing (1) that there must be a hearing and (2) that the hearing must be fair and also submitted that if a party does not avail himself of his right to a fair hearing under section 22 of the Constitution and give evidence at the trial, he cannot complain of lack of fair hearing, and that from the record of the civil proceedings, there is clear evidence of a fair hearing.  Dr. Ajayi associated himself with these submissions and contended further that the dialogue between the learned Judge and the appellants and their counsel following the conviction of the appellants for contempt of court did not raise the question of ‘real likelihood of bias’ and that a mere altercation was not sufficient to raise that question.  He referred to the opinion of Maugham J. in MacLean v. The Workers’ Union (1929) 1 Ch. (02 at page 25) ‘that mere personal prejudice, even resulting from a previous dispute or altercation, is not comprehended within the term’, that is, it does not necessarily amount to disqualifying bias.  But that, of course, depends on the particular circumstances.
Dr. Odje on behalf of the appellants emphasized the hostile attitude of the learned Judge to the appellants both during and after the contempt proceedings and complained, in particular, against the dialogue between the learned Judge and the appellants and their counsel, after the contempt proceedings.
We have carefully considered all the submissions and arguments of learned counsel for the appellants and the respondents.  We hold, first of all, that it is immaterial whether or not a court has heard one party or both parties to a suit, or whether or not one party or the other has willfully absented himself from the hearing or failed to give evidence, and that once a trial has commenced after issue has been joined on the pleadings, there is a hearing to which the test of fairness under section 22(1) of the Constitution may be applied, within the context of the proceedings between the parties as a whole.  If, of course, there is no hearing of one party’s side of the case, especially if it is through no fault of his own, this may also amount to no ‘fair hearing’ of his side of the case and he will not have had a ‘fair hearing’ in the determination of his civil rights and obligations to which he is entitled under section 22(1) of the Constitution.  If it may be fairly inferred by reasonable persons sitting in court, from the circumstances, that there is a real likelihood of bias, against one of the parties, on the part of the trial court, it must follow irresistibly that that party’s right to a fair hearing has been contravened and that any decision on the issue between the parties by the trial court in such circumstances cannot stand.
It is now necessary to make particular reference to the dialogue between the learned Judge and the appellants and their counsel, which took place on November, 21, 1973, that is, the day after their conviction for contempt of court.  Indeed, it is necessary, at this stage, to quote verbatim the remarks made by the learned Judge and the replies thereto, in order to have a clear and proper understanding of what was said and the likely effect of what was said on, and the impression likely to have been gained by, reasonable people sitting in court.  It is true that we cannot capture, sitting in this court, the actual ‘atmosphere’ which pervaded the trial court at the time.  However, suffice it to say that we are absolutely satisfied that there is overwhelming evidence in the passages quoted below from which the only reasonable inference to be drawn (and, indeed, we find this inference irresistible) is that there was a real likelihood of bias on the part of the trial court even before it embarked on the trial.
The quotation commences.
‘PROCEEDINGS BEFORE MR. JUSTICE ATAKE JUST BEFORE HEARING
The four plaintiffs in W/22/68 are present:
The defendants are also present:
4th defendants represented by Mr. T.O. Agbonifo:
3r defendant is represented by S. Mikoro:
Dr. Akpojaro for plaintiffs:
Ogbe for 1st and 2nd defendants:
Rewane for 3rd, 5th to 14th defendants:
Dugbe (with him, Niemogha ) for the 4th defendants:
Dr. Akpojaro  says that yesterday evening the plaintiffs (his clients) in W/22/68 and defendants in W/28/69 came to his chambers and took away the Case File and withdrew their instructions.  I therefore humbly ask to be discharged from this case at this stage.
Court:  Saving that it now emerges clearly that each time there is a motion to impugn the integrity of this court both in this case and in the Suit (W/115/69) each time this court is to be scandalised you will appear for your clients and when the case is to proceed to hearing you will announce that your instructions have been withdrawn by your clients.  What have you to say to that?  In both cases the attack on the court is on no other ground than that he belongs to the Itsekiri tribe.  What have you to say to that?
Dr. Akpojaro:  I respectfully submit that I do not do anything of the type.
Court:  My records indicate you do.  You would conduct the case when the Judge is to be scandalised and as soon as the court has dealt with that situation and the case is to proceed to hearing you turn round and say your instructions have been withdrawn?
Dr. Akpojaro:  I assure the court that I did not contribute to the court being attacked on tribal grounds.

Court:    I do not believe that your instructions have been withdrawn and it appears to me that you are only coming up with another attempt to attack and scandalise the court and to further delay the hearing of this case: this case will proceed as hitherto fixed.
Dr. Akpojaro: I want the court to believe that the file has been withdrawn from me.  I cannot go on because I have not got the file.
Court:   But had you got the court’s permission to withdraw before you gave away the file?
Answer: They said they wanted their file.  I cannot proceed.
Court:     to the  Did you take away your file from
plaintiffs your lawyer?
Answer:     Yes
Court:        Have you got another lawyer?
Answer:    No the family asked us to take the file from the lawyer and our instruction is that we should not do the case in this court because we were sentenced in court yesterday to a fine.
Court:             The case will proceed and if you wish to brief another lawyer I give you up to 9.00 a.m. tomorrow to do so.  You will all report in court tomorrow at 9.00 a.m. with your new lawyer if you so desire.
Case adjourned to tomorrow, 22/11/73, at 9.00 a.m.
Sgd.  F.O.M. Atake
JUDGE
BEFORE THE HONOURABLE MR. JUSTICE F.O.M. ATAKE, JUDGE: AT WARRI: ON THURSDAY THE 22ND DAY OF NOVEMBER, 1973
Suit No. W/22/68 &
        W/28/69:                 Â
    (Consolidated)
All 4 plaintiffs present:
All defendants present:
Court to plaintiffs:  Have you got your lawyer now?
Answer by Chief P.O. Arumure:  No.
Court:  All 4 plaintiffs in person.
Rewane, (with him, Ogbe, Akporiaye, Ajuyah, Popo), for 1st, 2nd, 3rd, 5th to 14th defendants:
Dugbo, (with him, Niemogea and Egborobi), for the 4th defendants:
Court:  Case to proceed and the plaintiffs in Suit W/22/68 are to begin.
Plaintiffs say:  We cannot go on.  We have no lawyer.
Court:          You cannot give evidence?
Chief Arumure:  We cannot go on in this court.  We are striking.
Court:          I am afraid your claim will be dismissed.
Court to :     Are you going on with your case?
Mr. Rewane
Answer:      We did not expect a situation like this and so we did not bring our witnesses thinking that the plaintiffs will begin.  We ask for one hour to get our witnesses, at least our surveyor.  I pray for just one hour adjournment.

Court:   It is now 10.55.  I grant you only one hour adjournment.  Court will assemble at 12 noon.
Sgd. F.O.M. Atake
JUDGE
COURT RE-ASSEMBLES AT 12 NOON
The four plaintiffs are present:
Defendants present:
The four plaintiffs in person:
Rewane, (with him, Ogbe, Ajuyah), for 1st, 2nd, 3rd, 5th to
14th defendants in Suit W/22/68 and for all plaintiffs in Suit
W/28/69:
Rewane:  Says he is now ready with his witnesses.
1st witness for the defendants in Suit W/22/68 and plaintiffs in W/28/69-
Theophus John: On Bible sworn states in English: I live at 49 Warri/Sapele Road, Warri; Civil Engineer and licensed Surveyor.  I know the Suits W/22/68: A.U. Deduwa and others v. Emmanuel A. Okorodudu and W/28/69: Emmanuel Amoma Okorodudu & ors. v. A.U. Deduwa and Ors.  In both cases I was commissioned by the people of Ugbuwangue, Ubeji and Itsekiri Communal Land Trustees to carry out the survey and prepare a plan of the area in dispute in these suits.  I did the survey and prepared the plan accordingly.  It is Plan No. TJM 1609.  After preparing it I submitted it for the usual countersignature of the Surveyor-General, Mid-Western Nigeria and it was duly countersigned.  I produced it.  Mr. Rewane seeks to tender it.  No objection by counsel.  Court: Tendered, admitted and marked Exhibit 1.
Evidence
Continues:  When I prepared the plan several members of :the communities which commissioned me took me round the area, amongst whom was one Arubi the 2nd defendant in W/22/68 and the 2nd plaintiff in W/28/69.  On the plan I showed many features and topographical details which I actually observed on the land.
Court to Deduwa and the other plaintiffs in W/22/68:  Do you wish to cross-examine the witness?
Chief Arumure:  We will ask no question.  We want to try our case in another court.
Cross-examination by Niemogha:  Nil.
Rewane:   At this stage we beg to ask for adjournment till tomorrow morning because as I had indicated we were taken by surprise by the plaintiffs in W/22/68 whom we expected to give evidence for at least three days.  But we had to go for this formal witness not to keep the court idle.  We assure the court we will get our witness tomorrow.
Mr. Niemogha:  We do not object.
Court:  Further hearing is accordingly adjourned to tomorrow, 23/11/73 at 9.00 a.m.
(Sgd.) F.O.M. Atake
JUDGE”
After the appellants were given one day to brief another counsel (their counsel having withdrawn) the hearing proceeded (the appellants refusing to participate) on Thursday, November, 22, Friday, November, 23, and Saturday, November 24, 1973.  Judgment was written in court immediately after the conclusion of the trial and delivered before the court rose for the day.  We have it on the authority of Chief Awolowo that the judgment ran into fifteen pages and contained 4,586 words.  Mr. O.N. Rewane also for the 3rd respondent, furnished the information that the trial court rose at 4.00 p.m. on that Saturday after writing the judgment on the Bench, and that this took him about three to four hours.
In fairness to the learned Judge and as pointed out by Mr. Ajayi, the case in question had suffered the fate of having to be adjourned on numerous occasions and the learned Judge was determined in the circumstances to try the case and bring the matter to a conclusion.  It was most unfortunate, however, that he should have engaged in such an undignified and emotionally charged dialogue tending to engender in the minds of reasonable and right-thinking people sitting in court during those proceedings the impression that there was indeed a real likelihood of bias on his part.
We hold, therefore, that these grounds of appeal succeed in that it has been shown conclusively that there was a real likelihood of bias on the part of the learned trial Judge.  His decision on the issues between the appellants and the respondents cannot therefore stand.
This appeal is accordingly allowed.  The judgment and all consequential declarations and orders (including all orders as regards costs) of the learned trial Judge are hereby set aside and if such costs have already been paid they shall be refunded.  It is further ordered that Suit No. W/22/68 and Suit No. W/28/69, already consolidated for hearing by agreement of the parties be heard de novo before another Judge of the High Court of Bendel State in Warri Judicial Division.  It is also ordered that the respondents do pay to the appellants the costs of this appeal assessed at N400.00.

Appearances

Dr. M. Odje, (with him, Mr. J.O. Akpojaro)For Appellant

AND

Chief F.R.A Williams, (with him, Mr. A.L.A.L. Balogun and Mr. M.N. Elias)
Chief O. Awolowo, (with him, Mr. S.A. Ajuah and Mr. E. Omaghobi)
Mr. T.K. Dugbo
Dr. F.A. Ajayi, (with him, Mr. N.E. Akporiaye and Mr. E. Okonedo)For Respondent

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