CORAM
BRETT, JUSTICE, SUPREME COURT
AJEGBO, JUSTICE, SUPREME COURT
BAIRAMIAN, CHIEF JUSTICE, NIGERIA
OLUKAYODE ARIWOOLA
IDIGBE, JUSTICE, SUPREME COURT
BRETT JUSTICE, SUPREME COURT
AJEGBO JUSTICE, SUPREME COURT
ONYEAMA JUSTICE, SUPREME COURT
BAIRAMIAN JUSTICE, SUPREME COURT
IDIGBE JUSTICE, SUPREME COURT
PARTIES
OLALERE OBADARA SAMUEL ORIOWO ADEGOKE IYANDA OGUNSOLA MOSES LAWANI ONIKEDE APPELLANTS
THE PRESIDENT, IBADAN WEST DISTRICT
RESPONDENTS
AREA(S) OF LAW
CRIMINAL LAW-ASSAULT-CONTEMPT OF COURT-CONDUCT LIKELY TO CAUSE BREACH OF THE PEACE-STAY OF PROCEEDINGS
SUMMARY OF FACTS
The appellants were charged of the offences of assault, contempt of court, conduct likely to cause breach of the peace. Before the hearing of the charges began they obtained the leave of the High Court to apply for an order of prohibition to prohibit the customary court from further proceeding in the case.
HELD
The Court held that it is satisfied that the proceedings in the High Court were civil proceedings for the purpose of section 117 of the Constitution, and that this appeal lies as of right and that the judgement of the High Court Is set aside and it is ordered that the suit be reheard de novo before another Judge of the High Court.
ISSUES
Whether this is an appeal in civil or in criminal proceedings.
RATIONES DECIDENDI
PROOF OF BIAS
“In the judgment of this court the right test is that prescribed 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.”
ON WHETHER DECISION IN CRIMINAL PROCEEDINGS IS SYNONYMOUS WITH JUDGEMENT IN A CRIMINAL CAUSE OR MATTER
A “decision in criminal proceedings” is not necessarily synonymous with a “Judgement in a criminal cause or matter and we do not consider that the correct way of interpreting section 117 of the Constitution of the Federation is to look to decisions on the meaning of an English statute with different wording.- Brett Ag. CJN
ON PROPRIETY OF COUNSEL DEPOSING TO AN AFFIDAVIT
There would be little harm in counsel swearing an affidavit setting out formal facts required to be established to support a purely formal ex parte application where there is no possibility of those facts being disputed, but even in such a case there would be little need for counsel himself to swear the affidavit as some member of his staff could easily depose to the same facts as a matter of Information and belief (due heed being paid to section 87 and section 88 of the Evidence Ordinance). If on the other hand counsel finds himself in the position where he is the only person with the knowledge necessary to swear the affidavit, and where the facts to which he is to swear are likely to be in dispute, then he should for the purposes of that application withdraw from the case and brief other counsel.-Brett Ag. CJN
RETRIAL
In a matter where so much turns on the credibility of the witnesses this Court is not in a position to come to its own conclusion without knowing what view the trial Judge held, and the case must go back for retrial before another Judge.- .-Brett Ag. CJN
ON WHETHER DECISION IN CRIMINAL PROCEEDINGS IS SYNONYMOUS WITH JUDGEMENT IN A CRIMINAL CAUSE OR MATTER
A “decision in criminal proceedings” is not necessarily synonymous with a “Judgement in a criminal cause or matter’ and we do not consider that the correct way of interpreting section 117 of the Constitution of the Federation is to look to decisions on the meaning of an English statute with different wording.- Brett Ag. CJN
ON PROPRIETY OF COUNSEL DEPOSING TO AN AFFIDAVIT
‘There would be little harm in counsel swearing an affidavit setting out formal facts required to be established to support a purely formal ex parte application where there is no possibility of those facts being disputed, but even in such a case there would be little need for counsel himself to swear the affidavit as some member of his staff could easily depose to the same facts as a matter of Information and belief (due heed being paid to section 87 and section 88 of the Evidence Ordinance). If on the other hand counsel finds himself in the position where he is the only person with the knowledge necessary to swear the affidavit, and where the facts to which he is to swear are likely to be in dispute, then he should for the purposes of that application withdraw from the case and brief other counsel.’-Brett Ag. CJN
RETRIAL
In a matter where so much turns on the credibility of the witnesses this Court is not in a position to come to its own conclusion without knowing what view the trial Judge held, and the case must go back for retrial before another Judge.- .-Brett Ag. CJN
PROOF OF BIAS
“In the judgment of this court the right test is that prescribed 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.”
CASES CITED
1.Bank of England v. Vagliano [18911 A.C. 107
2. Ex p. Woodhalf (1888) 20 Q.B.D. 835,
3. Horn v. Rickard 1963 N. N.LR. 67
4. Regina v. Camborne Justices [1955] 1 O.B. 41
STATUTES REFERRED TO
1. Supreme Court Act, 1960
2. Supreme Court of Judicature Act, 1873
3. Supreme Court of Judicature (Consolidation) Act, 1925
4. Evidence Ordinance