OTUNBA JUSTUS OLUGBENGA DANIEL V. FEDERAL REPUBLIC OF NIGERIA
 8 NWLR (PART 1410) 570
(2013) LPELR – 22148 (CA)
Delivered by the Court of Appeal, Ibadan Division
SUMMARY OF FACTS:
The Federal Republic of Nigeria through the Economic and Financial Crimes Commission (EFCC) filed a charge against the former Governor of Ogun State, Otunba Gbenga Daniel. The information dated the 2nd of April 2012 contained 38 offences including 13 counts that alleged that the former Governor while in office, with intent to defraud, converted land to some favored companies and individuals. While the charge was pending, the Ogun State Judicial Commission of Inquiry into the land allocation, acquisition, sales and concessions of government properties and administration of land policies, rules and regulations between January 2004 and May 2011 headed by Hon. Justice A.A. Akinyemi, a serving Judge of the Ogun State Judiciary issued a report wherein it found Otunba Gbenga Daniel liable for fraudulently converting the properties which formed the subject matter of the 13 counts in controversy. The White Paper issued by the Ogun State Government on the findings and recommendations of the Judicial Commission was published in different newspapers including the Punch Newspaper and the former governor (‘appellant’) filed Suit No: M/74/2012 – Otunba Olugbenga Daniel & Anor v. Governor of Ogun State & 6 Ors seeking an order quashing the report of the Commission of Inquiry as well as the decision of the Ogun State Government to accept it.
He also filed a motion in the criminal charge on the 15th of October 2012 seeking an order striking out the 13 counts dealing with conversion of land or alternatively an order staying proceedings in respect of the said counts or adjourning the trial indefinitely pending the outcome of Suit No: M/74/2012 which he had filed challenging the report of the Commission of Inquiry.
He contended that the damaging report of the Judicial Commission, which had been given wide publicity, would compromise his right to fair hearing in the criminal charge instituted against him by the Federal Government and also amounted to contempt of court. He also stated that the 13 counts, which dealt with the same allegations relating to the properties, amounted to an abuse of court process.
On the 8th of January 2013, the High Court of Ogun State refused the appellant’s motion and held that it would be unjust and unreasonable to grant the prayers for stay of proceedings or to adjourn the trial indefinitely. The appellant appealed against the decision and in a judgment delivered on the 29th of November 2013, the Court of Appeal dismissed the appeal.
ISSUES IN THE APPEAL:
The main issues dealt with in the appeal are fair hearing, abuse of court process and contempt of court.
The appellant’s position in the appeal was that the damaging findings against him by the Judicial Commission of Inquiry and the issuance of the Government White Paper on the findings and recommendations of the said Commission breached and would likely breach his right to fair hearing and that it amounted to an abuse of court process for the 13 counts relating to the same properties to be tried by another serving Judge of Ogun State Judiciary. Prof. Taiwo Osipitan SAN who led the team for the appellant argued that the appellant’s right to fair hearing had been compromised by both the Executive and Judicial arms of government as no reasonable minded member of the society would be persuaded by the innocence of the appellant in view of the findings of the Judicial Commission.
Mr. Rotimi Jacobs SAN who represented the Respondent in the appeal argued that the charges were filed by the Economic and Financial Crimes Commission (EFCC) which is an agency of the Federal Government and not the Ogun State Government, thus the activities of the Ogun State Government and the Commission of Inquiry set up by it were independent of the activities of the EFCC and thus the report issued by the Commission could in no way influence the prosecution of the appellant. He argued that Hon. Justice Akinyemi was playing an administrative and not a judicial role when he acted as chairman of the Commission of Inquiry and the findings and recommendations of the Commission was not a judicial decision.
Prof Osipitan SAN maintained that in respect of the 13 counts in controversy, the EFCC was an agent of the Ogun State Government and that by the fiat granted to the EFCC by the AG of Ogun State, the EFCC was a delegate of the power of the AG of Ogun State. He argued that in determining whether there was fair hearing, it is not the perception of the Judge that should be considered but the perception of ‘a layman who is not lettered in the law’.
Justice Daniel-Kalio who delivered the lead judgment agreed with Prof. Osipitan SAN’s submissions that the test used to determine if a party was being afforded fair hearing in a suit was the view of a reasonable man and therefore began his resolution of the appeal by describing the personality of the reasonable man. He said:
“There is a legal personality known as the reasonable man. He is sometimes also known as a reasonable person or a reasonable citizen. His opinion is usually consulted in courts to solve legal problems. He is an ubiquitous fictional figure of the law. The reasonable man featured in Ibori v. Federal Republic of Nigeria (supra); Archibong v. Cross River State Newspaper Corporation & Anor. (supra) and Metropolitan Properties FGC Ltd. (supra), all cited by the appellant’s counsel. That reasonable man in some English authorities is the man in the Clapham Omnibus. For those of us in Nigeria who may not know anything about the Clapham Omnibus and the sort of man that takes a regular ride in it, Kayode Eso JSC gave us the Nigerian equivalent of that reasonable man in Adigun v. Attorney General of Oyo State (1987) 1 NWLR (Pt. 53) p. 678 at p. 720, paras. F – G. Said his Lordship:
“A reasonable person here may be a pleasant housewife shopping for meal in Sandgrouse…, he may be the ordinary worker in the Kano Native city living on his “Tuwo”…or he is the plain woman in Okrika dress…”
Apart from the case of Adigun v. Attorney General of Oyo State which he quoted above, he based his resolution of the issue on the case of Mohammed v. Kano NA. He stated:
“The statement of Ademola, CJN in Mohammed v. Kano NA (1968) 1 All NLR 424, (1968) SCNLR 558 at 561, paras. A-B encapsulated the guiding principle. In that case, Nigeria’s first Chief Justice of Nigeria said:
“We think a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing…The true test of a fair hearing, it was suggested by counsel, is the impression of a reasonable person, who was present at a trial whether from his observation, justice has been done in the case. We felt obliged to agree with this.”
He differed from Prof. Osipitan SAN in respect of what the ‘reasonable man’ ought to consider in arriving at a decision as to whether there has been a fair hearing or fair trial when he said “…it is not what the reasonable man thinks about the fair hearing that the appellant will get after the reasonable man might have read the Punch publication of the Commission’s report and the Ogun State Government’s White Paper on it that is to be reckoned with. It is what the reasonable man thinks of the proceedings from his observation while present at the trial that matters.”
Justice Tsammani in his concurring judgment adopted the definition of the reasonable man in the case of Pam v. Mohammed. He held:
“In Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) p. 1 at 69, paragraphs A – c, a reasonable person was described in the following words:
“The reasonable person and the impartial observer mean the same. They mean a complete stranger, unbiased person to the proceedings. A reasonable person is a person with reason having a faculty of the mind by which he distinguishes truth from falsehood, good from evil. A reasonable person is a fair, proper and just and unbiased person. An impartial observer is not partial. He is disinterested in the matters, as he treats both the plaintiff and the defendant alike. He is an unbiased person. Both the reasonable person and the impartial observer are like hypothetical legal standard for determining or judging fairness, fair play and equity. The test of the reasonable man in Nigerian Courts is no more the man at the Clapham junction in London but one in anywhere in the Nigerian cities.”
It would be noted therefore that the test of a reasonable person in Nigerian courts is not that of a person whose mind and thoughts are coloured by political, sectional or other primodial considerations. Such a reasonable person is one who is able to weigh his observations objectively. Fundamentally, such reasonable person is one who is present in court at the trial and must therefore arrive at a conclusion from his observations in court and not based on other events outside the court.
The court’s reasoning was that the opinion of the reasonable man to be relied upon in deciding whether the appellant would be given fair hearing is the impression of the reasonable man who would be present all through the trial and who would base his opinion on the proceedings of the court in the trial of the suit and not extraneous matters such as newspaper reports of the case or the indictment of the Appellant by the Commission of Inquiry and the White Paper published by the Ogun State Government. Any party that would therefore allege a breach of his fair hearing must rely on facts and events that occurred during the proceedings of the trial of his suit and not on extraneous matters such as a false, biased or tainted reportage of the trial in the media or opinion of the public in respect of the suit. Justice Daniel-Kalio highlighted the importance of this when he said:
“If the position taken by the appellant’s counsel were to represent the position of the law, it is my humble view that virtually every case involving a public figure will be dead on arrival in our courts because of the penchant for sensationalizing things by newshounds especially of matters affecting public figures and celebrities. The courts cannot fail to do justice just because simpletons, fickle minded people and credulous folks believe everything they read in newspaper. Justice is based on evidence presented before the court and a reasonable man in court observing that proceedings follow the proper standards of adjudication cannot query the fairness of a hearing or trial. The reasonable man is no moron or fool.”
Closely related to this issue is the issue of a publication on court proceedings amounting to contempt of court. The appellant accused the Commission of Inquiry and the Ogun State Government of contempt of court by reason of the fact that the Commission of Inquiry issued a report and the Ogun State Government accepted it and published its report and a White Paper on it in the Punch newspaper during the pendency of the criminal charge. In deciding this issue, the court looked at when a publication in the newspaper would amount to contempt of court. Justice Daniel-Kalio held in the lead judgment held:
“Mere publication will not amount to a contemptuous act unless it is calculated to bring a court or a Judge of the court into contempt or to lower his authority or to interfere with the course of justice.”
It would therefore seem that the law places a presumption on the ability of our judges to be self-immune from outside pressure or influences in his or her duty in evaluating evidence and witnesses before him or her. The Court of Appeal said as much when Justice Daniel-Kalio stated:
“In this case, the only person that one can say that pressure is being brought to bear upon is not a party but the trial Judge. But can a judge be so easily pressured? This is what the learned authors of Halsbury’s Laws of England Fourth Edition have to say on this question at page 13 under the head of “Publication tending to influence a court against a party.”
“In the case of a trial by a judge alone, it is only in rare cases that a publication will be held to constitute contempt under this head as it is accepted that judges are capable to guarding against allowing any prejudicial matter to influence them in deciding a case.”
While speaking on the effect a media publication would have on a trial, Justice Dongban-Mensem had held that “extensive media publication per se does not therefore constitute an impediment to a fair-hearing.” He said:
“I must say that in recent times, I wonder whether the legal principle of subject “sub judice” has been abolished from our legal system. Usually, a matter which is “sub judice” should be protected from the media, it is expected to be treated with some measure of restraint in reportage on the subject while proceedings are on-going. However, the rider/caveat which qualifies this expected restraint is that the publication is “calculated to impugn the fairness of the trial”. While some publications can be so obvious, the intention of some are not so easily discernible. The focal point then is not whether there is a publication on the subject matter but whether such publication is “calculated to impugn the fair trial” of the pending suit.”
The Court also determined the issue of whether the criminal charge which included counts in respect of offences that the Commission of Inquiry had indicted the Appellant amounted to an abuse of court process. Justice Daniel-Kalio in the lead judgment relied heavily on the position of the law as set down in Saraki v. Kotoye (1992) 9 NWLR (Part 264) p. 156. Quoting from the decision of the Supreme Court in the suit, the learned justice held:
“In that case the Supreme Court per Karibi-Whyte, JSC, stated thus:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice…
But the employment of judicial process is only regarded generally as an abuse when any party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West Africa Inc (1966) 1 All NLR 170, (1966) 2 ScNLR 35. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and the manner of the exercise of the right, rather than the exercise of the right, per se. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice, such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds”.
Applying the definition of abuse as including multiplicity of actions, the Judge was of the view that there was no multiplicity of judicial actions. He held: “Clearly the multiplicity of actions referred to in the passage above is with reference to actions in courts. Regarding the alleged abuse of process in this case, the multiplicity of actions is not in courts. Indeed the term action in the passage denotes a civil or criminal judicial proceeding which a Commission of Inquiry is certainly not.”
Justice Tsammani in his concurring judgment added that a process would only amount as an abuse if it “is lacking in bonafides”. He defined abuse of process as “an improper use or perversion of process after it had been issued” and as “a malicious perversion of a regularly issued process, civil or criminal, and for a purpose or to obtain a result not unlawfully warranted or properly attainable thereby.” On the allegation of abuse of court process in the suit, he held:
“Applying the above stated principles to the instant case, the appellant was arraigned before the Ogun State High Court for sundry criminal offences, amongst which are the 13 counts sought to be quashed. That is in line with the law because, once a person is accused of a criminal offence, the proper place to try him is a court of law, where the complaints of his accuser can be ventilated and the accused afforded an opportunity to defend himself. The offences for which the appellant stands trial before the lower court are offences under the Criminal Code and therefore triable only by regular courts established by law in Ogun State. The Judicial Commission of Inquiry, though headed by a High Court Judge is not a court of law. It was therefore not competent to adjudicate the allegations which are criminal in nature. What it did, was at best a fact finding by an administrative body, which findings were not subject to appeal to a higher court, but subject to acceptance by the executive.”
He concluded: “That being so, it is my view that the actions in the High Court and in the Judicial Commission of Inquiry are not aimed at achieving the same purpose. While the action at the High Court may lead to a conviction of the appellant, the action before the Judicial Commission of Inquiry will not and cannot. So, the issue of abuse of process does not arise at all in the circumstances.”
The appeal was unanimously dismissed.