Introduction
By a letter dated 08.05.19 addressed to the President of
the Court of Appeal, Hon. Justice Zainab Bulkachuwa (the
President), the Peoples Democratic Party
(PDP) has demanded that the President recuse
herself from the Presidential Election Petition Tribunal
constituted to determine the Petition brought by the PDP and its
Candidate, Alhaji Atiku Abubakar against the All Progressives
Congress (APC), President Muhammadu Buhari and the
Independent National Electoral Commission (INEC)
following INEC’s declaration of President Muhammadu Buhari as the
winner of the 2019 Presidential Election.[i]
The ground of PDP’s demand is that the President is likely to be
bias and partial in the determination of the Petition since the
President’s family members are allegedly APC’s members and most
significantly, the President’s husband is an elected Senator of the
APC in the just concluded General Elections. PDP also views, as a
predetermination, the alleged remark made by the President at the
Pre-hearing session of the Petition that there are bound to be
complaints against any election in Nigeria no matter how well the
election was conducted.
PDP’s demand raises a significant issue not only to the Nigerian
justice system but more importantly, the Nigerian democracy as
millions of Nigerians are keenly interested in the outcome of the
Petition. Premised on this footing, it becomes sacrosanct to
appraise the demand vis-à-vis the legal position on allegation of
likelihood of bias against a judicial officer.
Right to Fair hearing
Allegation of bias or likelihood of bias goes to the root of
fair hearing. Denial of right to fair hearing is a logical
consequence of bias in any proceeding before a Court or a
tribunal.[ii] The Constitution of the Federal Republic of
Nigeria, 1999 as Amended (Constitution) guarantees
the right of an individual to fair hearing. An individual’s right
to fair hearing includes the right to have his/her rights and
obligations determined by an independent and impartial tribunal.
The above is clearly enshrined in Section 36 (1) of the
Constitution, which provides as follows: “In the determination
of his civil rights and obligations, including any question or
determination by or against any government or authority, 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
manner as to secure its independence and impartiality…”
The right to an independent and impartial tribunal is one of the
criteria or elements of fair hearing. The Supreme Court of Nigeria,
in Kotoye v. CBN [1989] 1 NWLR (Pt. 98) 419, laid
down certain criteria and attributes of fair hearing as
follows:
- that the Court shall hear both sides not only in the case but
also on all material issues in the case before reaching a decision,
which may be prejudicial to any party in the case; - that the Court or Tribunal shall give equal treatment,
opportunity, and consideration to all concerned; - that the proceedings shall be heard in public and all concerned
shall have access to and be informed of such a place of public
hearing; and - that having regard to all the circumstances, in every material
decision in the case, justice must not only be done but must
manifestly and undoubtedly be seen to have been done.
Evidently, PDP’s demand that the President recuse herself is
anchored on the belief that it has the constitutional guaranteed
right to an independent and impartial Election Petition Tribunal.
In adjudication, the principle of fair hearing is fundamental to
all court procedure and proceedings, and like jurisdiction, the
absence of it vitiates the proceedings no matter how well
conducted.[iii] Quite remarkably, the test of fair
hearing is the impression of a reasonable person who was present at
the trial, whether from his observation, justice has been done in
the case.[iv] Where it is established that an individual was
denied fair hearing, the entire proceeding becomes a
nullity.[v][1]
Real Likelihood of Bias and
Disqualification
In the dispensation of justice, judges are confronted with
allegations of bias towards a party before them. Like the PDP’s
demand, judges’ impartiality is challenged on the ground that they
are likely to be biased. As was held by the UK High Court in
Kimyani v Sandhu [2017] EWHC 151 (Ch), most
litigants are likely to oppose anything that they perceive might
imperil their prospects of success, even if, when viewed
objectively, their perception is not well-founded.
However, bias with its fuss is a state of mind incapable of
precise definition or proof, whatever impression it may
convey.[vi] The Supreme Court in Azuokwu v.
Nwokanma [2005] 11 NWLR (Pt.937) 537 defines bias to mean
an inclination or preparation or predisposition to decide a cause
or matter in a certain pre-arranged way without regard to any law
or rules.
The imputation of bias of any kind to a judge does not only
diminish the stature and integrity of the judge but destroys the
foundation of his/her judgment however sound.[vii] This is why a judge has the duty to
recuse him/herself whenever he/she thinks that he/she has the
likelihood to be biased in the just determination of the case
before him/her. Real likelihood of bias by a judicial officer may
arise from personal attitudes and relationships, such as: personal
hostility; personal friendship; family relationship; professional
and vocational relationship; employer and employee relationship;
partisanship in relation to the issue at stake. It could also arise
from other circumstances from which the inference of a real
likelihood of bias may be drawn.[viii][2][3]
In this regard, our laws require a judicial officer to recuse
him/herself where he or she finds him/herself in this position.
First, by Section 1 of the Code of Conduct for Public Officers
contained in the Fifth Schedule to the Constitution, a public
officer including a judicial officer, shall not put himself in a
position where his personal interest conflicts with his duties and
responsibilities. By this, where a judge finds that his
constitutional duties conflict with its interest, he/she should
honorably recuse himself.
Second, the Revised Code of Conduct for Judicial Officers of the
Federal Republic of Nigeria regulates the conduct of judicial
officers. Rule 12 (1) of the Code provides that:
“A Judicial Officer should disqualify himself in a proceeding in
which his impartiality may genuinely and reasonably be questioned,
including but not limited to the instances where:
- he has a personal bias or prejudice concerning a party or
personal knowledge of facts in dispute; - he served as a legal practitioner in the matter in controversy,
or a legal practitioner with whom he previously practiced law,
served during such association as a legal practitioner concerning
the matter or the Judicial Officer or such legal practitioner has
been a material witness in the matter; - he knows that he individually or as a Judicial Officer or his
spouse or child; has a financial or any other interest that could
be substantially affected by the outcome of the proceeding; - he or his spouse, or a person related to either of them or the
spouse of such person-
- is a party to the proceedings, or an officer, director or
trustee of a party; - is acting as a legal practitioner in the proceedings;
- is known by the Judicial Officer to have an interest which
could be substantially affected by the outcome of the proceedings;
and
- is to the Judicial Officer’s knowledge likely to be a material
witness in the proceedings.
By Rule 12 (2), the judicial officer could disclose the basis of
his/her disqualification under C and D above and if the parties
jointly agree that the relationship is immaterial, she/he can
adjudicate. The above places a duty on a judicial officer to recuse
him/herself in a proceeding in which his impartiality may be
questioned.
The pertinent question to be answered is: how is likelihood of
bias by a judicial officer determined? In other words, what is the
test to prove that a judicial officer is likely to be bias? In
Metropolitan Properties v. Lannon [1969] 1 QB 577
at 599, Lord Denning M.R. held that:
- 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 the justice 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. - 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. Justice must be rooted in
confidence, and confidence is destroyed when right-minded people go
away thinking: “The Judge was biased.”
The test stated in Metropolitan Properties v. Lannon has been
the test relied on by our courts.[ix] Thus, a court faced with
the duty of determining whether a Judge was likely to have been
biased is only concerned with the impression of a reasonable man.
This is the same test for fair hearing. Hence the reason why
allegation of likelihood of bias is rooted in fair hearing.
Should the President recuse herself from the
Election Petition Tribunal?
Assuming the PDP’s allegations are true, does the law require
the President to recuse herself from this national assignment of
determining who indeed won the 2019 Presidential Election.
As indicated earlier, litigants are likely to oppose anything
that they perceive might imperil their prospects of success, even
when objectively unfounded. An example of this is the case of
Azuokwu v. Nwokanma [2005] 11 NWLR (Pt.937) 537
where the Appellant had argued at the Supreme Court that the
Chairman of the Customary Court who adjudicated at the trial court
was biased because the 1st Respondent was his classmate
and a family friend. The Supreme Court rejected the Appellant’s
contention and dismissed the appeal on the ground that evidence was
not called to disprove the 1st Respondent’s denial of
ever being a classmate or a family friend to the Chairman or any
member of the panel who heard the matter.
Similarly, in T. M. Orugbo & Anor v. Bulara Una
& Ors [2002] LPELR-2778(SC), the Appellants had
contended that since all the panel of justices were from the same
ethnic group as the Respondents, there was likelihood of bias
against them. The Supreme Court rejected the contention and held
that the fact that all the justices were members of the same ethnic
group with the Respondents does not raise any case of bias or the
likelihood of it.
In the instant case, it is my view that all the grounds relied
upon by the PDP in establishing that the President may likely be
biased are remote. The mere fact that the President’s family are
APC’s members or the fact that the President’s husband is a
senator-elect of the APC does not preclude her from performing her
duty impartially.
No doubt, the President’s case falls under Rule 12 (1) (c) and
(d) which requires a judicial officer to disqualify himself where
he or his spouse or a person related to either of them or the
spouse of such person or a child of the judicial officer has a
financial or any other interest that could be substantially
affected by the outcome of the proceeding. The important factor
here is that the spouse, like the President’s husband or family
members, must have an interest that could be substantially affected
by the outcome of the proceeding. It is the opinion of the writer
that the President’s husband or family members do not fall within
the people that would be substantially affected by the outcome of
the Petition. The election, which the Petition is subject of, is
not that of the President’s husband. Neither is the President’s
husband or any of her family member a party to the Petition.
However, even though PDP’s grounds are remote, a reasonable
Nigerian may see otherwise. The relationship of the President with
her husband, an APC Senator and the other family members who
allegedly belong to the APC may seem to create the impression of
likelihood of bias in the mind of a reasonable Nigerian. This,
coupled with the alleged remark she made that there would always be
complaint against election in Nigeria no matter how well conducted,
may seem to suggest that a reasonable Nigerian would think she is
likely to be biased. As indicated above, the impression which
would be given to other people is sine qua non.
In Adio v. A.G Oyo State & Ors [1990] 7NWLR
(Pt. 163) 448, the Court of Appeal held that Justice Ige, the wife
of Chief Bola Ige, the then Governor of Oyo State should not have
sat over a matter in which the validity of an instrument issued by
her husband in his official capacity as the Governor was in issue.
The Court of Appeal, whilst dealing the test of a reasonable man
held that: “we should also bear in mind that we are dealing
with a native community whose standard of sophistication and
education are not comparable with those of their counterparts in
advanced countries”.
In Adio’s case, the Court recognised that the test of the
reasonable man to be used is not that of a sophisticated person but
one that fits the circumstances of the case. In the present case,
the mind of an average reasonable Nigerian would tilt in favour of
likelihood of bias as alleged by the PDP.
Conclusion
Whilst PDP’s demands may be premised on grounds that are
remotely insufficient, the impression that may be created in the
mind of a reasonable Nigerian, in the circumstance, is that: “what
do you expect? Her husband is an APC Senator”. It is suggested that
the President should recuse herself. It is better to avoid a
situation where the Supreme Court would render as nullity
everything done at the Presidential Election Petition Tribunal on
the ground that the President was likely to have been biased. In
any case, the Court of Appeal, by virtue of the Court of Appeal
(Amendment) Act, 2005 has seventy Justices. The President thus has
many competent Justices to replace her should she decide to recuse
herself.
Abiodun Muhammed Rufai,
Esq.,Associate, Olaniwun
Ajayi LP
[i]
https://www.pulse.ng/news/local/atiku-vs-buhari-pdp-demands-withdrawal-of-appeal-court-president-from-petition/bksdprh[4]
[ii]
Adebesin V.
State [2014] LPELR-22694(SC)
[iii][5]
Tano v. A.G
Bendel State [1988] 2 NWLR (PART 75) 132.
[iv]
Pam v.
Mohammed [2008] 16 NWLR (Pt.1112) 1 S.C.
[v]
Nwabueze v.
The People of Lagos State [2018] LPELR-44113(SC) 13-14, Paras.
A-A
[vi]
Denge v.
Ndakwoji [1992] 1NWLR Pt.216 Pg. 233 Para F
[vii][6]
Lieutenant Colonel
Omoniyi v. Central Schools Board and Ors. [1988] 4 NWLR (Pt.89) 448
at 451
[viii][7]
L.P.D.C. v.
Fawehinmi [1985] NWLR (Pt.7) 300 at 333, para G.
[ix]
Deduwa &
Ors. v. Okorodudu & Ors. [1976] 9-10 S.C.(REPRINT) 207