LIVA & ORS v. SHETTIMA
CITATION: (2021) LPELR-56080(CA)
In the Court of Appeal
In the Gombe Judicial Division
Holden at Gombe
ON TUESDAY, NOVEMBER 30, 2021
Suit No: CA/G/19/2021
Before Their Lordships:
JUMMAI HANNATU SANKEY Justice, Court of Appeal
TUNDE OYEBANJI AWOTOYE Justice, Court of Appeal
EBIOWEI TOBI Justice, Court of Appeal
1. AUDU LIVA
2. KAMSULUM IBRAHIM
3. IBRAHIM KWALDDA
4. DR. MUHAMMED GULZE – Appellant(s)
5. UMAH MALLAM AHMADU
6. MUSA ABUBAKAR
7. USMAN ABUBAKAR
ADAMU SHETTIMA – Respondent(s)
LEADING JUDGMENT DELIVERED BY EBIOWEI TOBI, J.C.A.
This appeal is against the ruling of Justice Musa Mustapha of the High Court of Gwoza Borno State.
The appellants filed an application at the court, seeking the order of the court to remit to the office of the Chief Judge of Borno State, the case file, for re-assignment to another Judge of the High Court of Maiduguri, Borno State. The premise for the application was the incident in court on 10/3/2020, which the appellant said has led to his losing confidence in the court. The court interpreter was alleged to have given a wrong interpretation, which resulted in the rejection of the statement on oath of the 1st appellant.
Appellants therefore, wrote a petition to the Chief Judge of Borno State against the court interpreter, and further sought for a reassignment of the case to another judge. The Court heard the arguments of counsel, and dismissed the application on the ground that, the reason advanced was not sufficient for him to exercise his discretion in favour of the appellant. He found that the allegation by the appellant was directed at the court interpreter, and not at the court, and so the appellant had failed to establish how a transfer of the case would serve the interest of justice.
Dissatisfied, appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The appeal was determined on a lone issue viz: “Whether the lower Court was right in refusing the Appellants’ application to remit back the case file of suit no: BOHC/GZ/CV/009/2019 having lost confidence in the lower Court.”
In addressing this sole issue, learned counsel to the appellants urged court to resolve same in favour of the appellants as the lower Court erred in law when it refused to remit the case file to the Chief Judge for re-assignment since the appellants have lost confidence in the lower Court. It is the firm submission of counsel that taking into cognizance the whole case and the circumstances therein, the lower Court should have heard the arguments on the admissibility of the document before rejecting same. Having failed to do that, it is the case of the appellants that their fundamental right was breached in violation of S.36(1) of the constitution of the Federal Republic of Nigeria 1999 (as amended).
Respondent’s Counsel on the other hand submitted that the sole issue should be resolved in favour of the Respondent. His submission is based on the premise that the Appellants could not prove denial of fair hearing or bias on the part of the judge of the lower Court particularly when the petition was not against the Judge but against the Court staff. Counsel submitted emphatically that the Appellants have not shown sufficient reason why the issue should be resolved in their favour.
RESOLUTION OF THE ISSUES
The Court of Appeal in determining the issue before it gave a recap of the facts leading to this appeal to the effect that: The Appellants are unhappy that the lower Court refused to transfer the case file to the Chief Judge of Borno State for re-assignment to another judge for determination. The reason given for the re-assignment sought is that, the Appellants have lost confidence in the lower Court since it rejected the written deposition on oath of the 1st Appellant based on the wrong interpretation of the Court staff. The lower Court’s refusal to transfer the case to the Chief Judge for re-assignment gave birth to this appeal.
The court stated that the main question before it is whether the reason given for seeking a transfer of the case is a reason known to law for the transfer of a case file to the Hon. Chief Judge of Borno State for re-assignment. The appellants are challenging the refusal of the lower Court to transfer the case. It was made clear on the authorities of NATIONAL BANK OF NIGERIA LIMITED VS P.B. OLATUNDE & COMPANY LIMITED (1994) 3 NWLR (pt 334) 512; (1994) LPELR-1950(SC), LAMBERT NZEKWE VS DOMINIC ANAEKWENEGBU (2019) LPELR-49002 (SC), that the power to transfer a case is a discretionary power and as such, the appellate court will exercise restraint in interfering with the exercise of such discretion by a lower Court.
It was however stated that such discretion is not unfettered citing the case of IDEOZU & ORS VS OCHOMA & ORS (2006) 2 S.C. (PT II) 113; (2006) LPELR-1419(SC).
It was held that, it is the general position of the law that a court while exercising its discretion must do so judiciously and judicially. While the exercise of discretion is at the instance of a court and must be respected by the appellate court, a court can interfere with the exercise of the discretion if it is not exercised judiciously and judicially. This was held to be the decision of the Supreme Court in BANNA VS TELEPOWER (NIG) LTD (2006) 7 S.C. (PT 1); (2006) LPELR-1352(SC).
The implication of the above position of the law was held to be that an appellate court will only interfere with the discretion if it is wrongly exercised, that is, the discretion was tainted with some illegality or substantial irregularity or the tenet of justice demands its interference. A judicial discretion should therefore be exercised honestly and in the spirit of the law, founded upon facts and circumstances presented to the Court based on justice and common sense. See ONUORA MBA VS UDEOZOR CHIGHO MBA (2018) LPELR-44295 (SC).
The point was made clear that a High Court Judge has powers within the law and rules of Court to transfer a case file to another Judge or to the Chief Judge of the State for re-assignment just as the Chief Judge has the power to reassign any case transferred to him or petitioned to him for reassignment. Citing DEC OIL & GAS LTD VS SHELL NIG. GAS LTD (2019) LPELR-4934(SC); OJOMO & ANOR VS ALAYE & ORS (2018) LPELR-44371 (CA); PATIL VS FRN (2014) LPELR-24078(CA). Though this power is within the exclusive preserve of the Hon. Chief Judge, it is not unfettered and must be exercised judiciously and judicially.
Applying the position of the law to the case at hand, it was held that, the appellant alleged that the lower Court wrongly exercised its discretion when it failed to transfer the case to the Hon. Chief Judge of Borno State for re-assignment since the appellants had clearly shown that they have lost confidence in the lower Court. The loss of confidence was based on the wrong interpretation by the court staff. The appellant petitioned the Chief Judge to re-assign the case. It was stated that the Petition was made against the staff and not against the Judge. That if there was an error, it was not by the Judge but rather by the staff of the court, which did the interpretation. It was then asked if this error, if any at all by the court staff, is sufficient for the appellant to lose confidence in the court and indeed compel the Judge to which no proved allegation was made to transfer the case to the Hon. Chief Judge to transfer the case? The appellants was held to have insinuated bias but there was no evidence to establish that.
It was held that to raise an allegation of bias against a Judge a party must present evidence as it is irresponsible for a party to raise an allegation of bias without any evidence.
That in view of the very serious nature of the allegation of bias, an appellate court or a Chief Judge will not be quick at ordering transfers of a case to another judge as the party alleging bias has the duty to prove the bias alleged. Reliance was placed on the Supreme Court’s decision in ODUNSI & ORS VS. ODUNSI (1979) ANLR 77; (1979) LPELR-2246(SC), per Sowemimo, JSC (as he then was). It was held that a Court cannot be said to be biased simply because the decision of the Court did not go the way the party wants or expected. The point was made that the mere fact that a party has lost confidence in the Court alone does not warrant a Court remitting a case file to the chief judge for re-assignment. The Court must enquire further to know what informed the loss of confidence in the Court. If the Court is satisfied that the reason for the loss of confidence is correct then the Court can transfer. That the power to transfer should not be encouraged to accommodate any litigant who is not happy with the interlocutory decision of a Court.
The lower Court was held to have been right in exercising its discretion against the granting of the Appellants prayer to remit the case file to the Chief Judge.
The Court resolved the issue against the Appellant and dismissed the appeal.
A. Ahmed, Esq. with him, M. S. Abubakar For Appellant(s)
Awal Idris For Respondent(s)
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