Bias: Effect on Trial and Decision of the Court

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In the Court of Appeal of Nigeria

Abuja Judicial Division

Holden at Abuja

On Wednesday, the 16th day of December, 2020

Before Their Lordships

Stephen Jonah Adah

Mohammed Mustapha

Mohammed Baba Idris

Justices, Court of Appeal

CA/A/CR/306/2020

Between

1. Olisa Metuh Appellant

And

1. Federal Republic of Nigeria

2. Destra Investment Limited Respondents

(Lead Judgement delivered by Honourable Stephen Jonah Adah, JCA)

Facts

The Appellant and the 2nd Respondent were arraigned at the Federal High Court, Abuja, presided over by Honourable Justice O.E. Abang. The amended seven-count Charge on which they were arraigned, relate to offences of criminal breach of trust, corruption and money laundering. The Appellant was alleged to have received and controlled the sum of N400 million, paid into the account of the 2nd Respondent with Diamond Bank (which he is a sole signatory to), from the account of the Office of the National Security Adviser with the Central Bank of Nigeria, without contract award. While the 1st Respondent maintained that the Appellant ought to have known that the money was proceeds of unlawful activities of the then National Security Adviser, the Appellant posited that the money was received for political activities of the People’s Democratic Party.

The Appellant, as well as the 2nd Respondent, pleaded not guilty to the counts. The matter went to trial, with the 1st Respondent calling eight witnesses. At the conclusion of the case of the prosecution, the Appellant filed a No-Case submission, which was dismissed by the trial court, the Court of Appeal and the Supreme Court. The Appellant therefore, opened its defence, whereat he testified for himself and called fourteen other witnesses. By its judgement, the trial court convicted the Appellant on the seven counts, and on the whole, sentenced him to seven years imprisonment, to run concurrently.

In the said judgement, the trial Judge recounted how the Appellant and his counsel used a section of the press to review the earlier decisions of the court; attack and humiliated his person by portraying him as inhuman; how he would have summarily dealt with counsel for the Appellant at the trial court, but decided to be patient with him even in the face of the contemptuous application for the learned trial Judge to recuse himself; how the two senior learned counsel for the Appellant were pre-occupied with writing frivolous petitions against the court; how God had sustained him through the years of hostility from the Appellant and his team of Lawyers; et.al.

The Appellant appealed the decision of the trial court. The grounds of fair hearing, bias and prejudice were raised in the Notice and Grounds of Appeal filed by the Appellant. Counsel for the 1st Respondent filed a Motion on Notice, wherein it raised a Preliminary Objection to the competence of Grounds 12 and 14 (relating to fair hearing, bias and prejudice), which they argued were not based on the ratio decidendi of the judgement of the trial court, but on obiter dictum. The Court of Appeal, however, dismissed the objection on the basis that the issues of bias and prejudice raised in the grounds are fundamental to the appeal, as the effect thereof, can vitiate the entire proceedings.

Issues for Determination

The Appellant and the Respondents formulated ten issues each for determination of the appeal. The court however, determined the appeal on the following two issues:

1. Whether the Appellant was given a fair trial at the court below.

2. Whether the entire trial, judgement and sentence of the Appellant was tainted with prejudice and bias on the part of the learned trial Judge as evident, amongst others, from the disparaging remarks which the learned trial Judge made about the Appellant, and learned Senior Counsel for the Appellant whom he accused of using every opportunity to humiliate the court by writing hopeless, reckless and frivolous petitions against the court, and using a section of the press to sponsor blackmail against the court – which was presented as inhuman and heartless with the Appellant going as far as falling down in the court room, just to have unmerited sympathy from the international community.

Arguments

Arguing issues one and two, counsel for the Appellant contended that the decision of the trial court impinged on the Appellant’s right to fair hearing, as guaranteed in the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He submitted that the right to be tried by an impartial Judge is deeply embedded in the Constitution, and mere possibility of bias is enough to vitiate the entire proceeding. Counsel relied on various judicial authorities in support of his contention that any reasonable, disinterested observer, informed person viewing the matter realistically and practically, would conclude that the Appellant and counsel representing him were not treated fairly and courteously by the trial Judge – ALAKE v ABALAKA (2002) FWLR (Pt. 88) 931 at 944. He also invited the appellate court to draw an inference of bias from the remarks made by the trial Judge in the judgement, emphasising that outside the offences with which the Appellant was charged, the trial Judge went further to show his bias against the Appellant by branding him as aggressive, hardened and difficult. In support of his position that the Appellant was denied fair hearing, he cited the example of the trial Judge’s refusal of the subpoenaed witness, Col. Sambo Dasuki (Rtd.) (the former National Security Adviser to the President) to refresh his memory. Counsel urged the court to allow the appeal.

Responding to the submissions above, counsel argued for the 1st Respondent that from the inception of the case, the Appellant had, without basis, levelled allegations of bias and denial of fair hearing against the trial Judge, in order to have the case transferred to another Judge. He referred to the Petition written by the Appellant to the Chief Judge of the Federal High Court in March, 2016 to have the case transferred to another Judge, on ground of bias. Further, the Appellant filed a Motion on Notice praying the trial Judge to recuse himself and return the case file to the Chief Judge, which application was dismissed as lacking in merits – ESSEIN v ESSEIN (2009) 9 NWLR (Pt. 1146) CA 306 at 342. Counsel argued that the real test of bias or likelihood of bias is that of a reasonable man, not that of a man who has made up his mind to pull down the institution of justice in a desperate bid to rubbish the judicial process, and get off the hook by any means. Regarding the allegation of denial of fair hearing, counsel dismissed this as unfounded. He argued that refusal by the trial Judge to sign a subpoena to compel the attendance of Col. Sambo Dasuki (Rtd.) to appear in court to testify on behalf of the Appellant, was mere exercise of judicial function and discretion. By the way, the appeal by the Appellant on this issue was successful, and the appellate court directed the trial Judge to issue the subpoena – METUH v FRN & ANOR. (2018) 3 NWLR (Pt. 1605) CA 1. He concluded that the trial Judge afforded the Appellant an opportunity to present his case, and so, he cannot be heard to complain about denial of fair hearing.

Court’s Judgement and Rationale

Deciding the two issues together, Their Lordships noted that the issues relate to denial of fair hearing and whether the entire trial of the Appellant was tainted with prejudice and bias on the part of the trial Judge. The appellate highlighted the paragraphs relating to the comments of the trial Judge as contained in the record of appeal, to show how the trial Judge went to town in bemoaning the perceived grievances nursed against the Appellant and his counsel. The appellate court compared the passion with which the trial Judge gave the rendition of his account, as that of someone giving a valedictory speech. The Court of Appeal highlighted some comments of the trial Judge, including the failure of the Appellant to display sobriety when confronted with the statement of account of the 2nd Respondent which showed transfer of money from the said account to that of the Appellant’s wife, and thereby describing the Appellant as hardened, difficult and stubborn; the comments of the trial court on how counsel for the Appellant humiliated the court by writing hopeless, reckless and frivolous petitions against the court; among others.

Their Lordships of the Court of Appeal held that from the outburst of the trial Judge in the judgement, it can be inferred that everyone in the court who watched the proceedings, could read the mind of the trial Judge. The outburst appears to be that of a person who has an axe to grind against the Appellant, and his team of Lawyers. An ordinary man in court would have concluded that, the trial Judge cannot be free to hold an even balancing scale of justice. While it may be impossible to measure or know the mind of the Judge by direct evidence, the attitude displayed by the Judge, which is apparent, may be examined to determine if he is biased – KENON v TEKAM (2001) 14 NWLR (Pt. 732) 12. The trial Judge catalogued the series of what he nursed against the Appellant and his legal team. The inference from the narrative shows that, the Judge was angered or wounded in his mind towards the Appellant and his Lawyers. This, without more, is an inference that the trial Judge was likely to be biased, and indeed, was biased against the Appellant.

Justice is universally rooted in confidence. When in a criminal trial a person accused sniffs the polluted air of bias in any tangible form, the responsibility of the court is to be circumspect of what gives the accused person reason to complain. This unfortunately, is not what happened in the instant case. The learned trial Judge took the complaint, it appears, to be a personal assault to his person and his court. He then began to labour to cope with the burden of hearing the case before him, and ended up reeling out what shows the colour of his bias against the Appellant in his judgement. In all this, the court was being watched by the ordinary people in the court. A straight assessment of the utterances of the learned trial Judge in this case, shows an exhibition of bias.

In this instance, the inference of bias is drawn from all that the learned trial Judge said. The duty of a trial Judge, is to be completely detached from the case before him. The Judge owes a duty of fairness to the parties. This role is sacred; by virtue of his position as an impartial arbiter, a trial Judge must determine disputes between parties speedily, efficiently and in a manner that ensures evenhanded justice to both parties.

Where bias is established as in this case, the decision of the trial court cannot be anything but a nullity. The appellate court, in its duty, must set the decision aside.

Appeal allowed

Representation

Essien Andrew with Eddiong Usungurua Esq.; Chika Odoemena, Esq.; MaryFrances Orji Esq. and A.A.O. Akpan, Esq. for the Appellant.

Sylvanus Tahir, Esq. with Richard Dauda, Esq. and H.M. Mohammed, Esq. for the 1st Respondent.

Tobechukwu Onwugbufor, SAN with O. Francis Esq. and C. Onwugbufor, Esq. for the 2nd Respondent.

Reported by Optimum Publishers Limited

Publishers of the Nigerian Monthly Law Reports (NMLR)

(An Affiliate of Babalakin & Co.)