Stopping the Aspersions Being Cast On Rhodes-Vivour, By Akingbolade Akinbobola

Should the judiciary, on the basis of an alleged bias
that is neither actual nor apparent but merely contrived,
disqualify an upright man who has served admirably in the temple of
justice for over forty years? Should a judge who has served
meritoriously on the Bench for twenty-five years be subjected to
caustic and malicious persecution on phantom allegations of
unsubstantiated bias?

Nigerian politicians now seem to have a new stock-in-trade: the
politically-motivated smearing of judges with the aim of
‘forum-shopping’. Forum-shopping is that expression known in legal
circles as referring to a litigant’s attempt to determine (or, at
least, have influence on) the choice of the particular court or
judge that will adjudge his case. Every sane legal system
discourages, and in some cases, punishes forum-shopping.

Observers have watched with great concern and alarm, the recent
trend in Nigeria by which politicians attempt to effectively
‘forum-shop’ by disqualifying certain judges on the basis of
politically-motivated smears and contrived or outlandish
conjectures. Of course, if a judge has demonstrably substantial
interest in a matter, he should not sit in judgement over this. But
to seek out to smear and, by so doing, effectively disqualify
judges on the basis of the affiliation of their relatives with
certain political parties, or on the basis of their assumed loyalty
to tribal sentiments, or on the basis of their perceived loyalty to
political leaders from their states of origin, borders on the
ridiculous, reeks of desperation, and should not only be
discouraged but condemned in the strongest terms possible.

I am motivated to put pen to paper on this matter because of the
appalling opinions and sentiments that have been expressed
regarding the selection of the Supreme Court panel put together to
hear the appeal emanating from the Court of Appeal’s decision on
the Osun State election petition brought by the candidate of the
Peoples Democratic Party in that election, Senator Ademola Adeleke.
The most vitriolic smears have been directed at Justice Olabode
Rhodes-Vivour (CFR), the impeccable justice of the Supreme Court,
who has a pristine record as a brilliant, capable, and fair-minded
judge. Every unbiased legal practitioner in Nigeria worth his salt
would readily attest to Justice Rhodes-Vivour’s sagacity,
brilliance, and earned reputation for courage and forthrightness.
It is thus sad and disheartening that unfounded aspersions are now
being cast on this widely-admired jurist.

While one should rightly feel concerned for the eminent jurist,
the greater concern should be reserved for the implications of
these conducts on the health and integrity of our systems and
institutions. We all must rise as a people to denounce and abort
the efforts of politicians who attack judges for political gains
for the following reasons, among others:

a. Such attacks will further erode confidence in our
institutions in general and in the legal system in particular;

b. Such gradual erosion of confidence will have long term and
far-reaching devastating effects on the cohesion of the nation, the
effectiveness of our institutions and, indeed, the survival of our
democracy;

c. Politically-motivated attacks on judges and the resulting
erosion of confidence in the judiciary will allow political
disputes of a legal character to fester and remain unresolved. This
could be dangerous in a country as diverse and as susceptible to
violent eruptions as ours; and

d. Our judiciary will be starved of the best of legal minds who
will not want to be subjected to such unwarranted mudslinging and
embarrassing falsehoods.

Of course, allegations of bias should be taken seriously. The
fundamental principle underlying the concept of judicial bias is
that a man may not be a judge in his own case. To this end, there
are two recognised types of bias: actual bias and apparent bias.
There will be actual bias where the judge is a party to the
litigation or has a financial or other interests in its outcome.
The interest does not have to be pecuniary or proprietary but can
involve the promotion of a cause. Apparent bias may be alleged
where the judge’s conduct or behaviour, interests or allegiances
give rise to a suspicion that he is not impartial.

In the case of Justice Olabode Rhodes-Vivour (CFR), the bias
alleged so far by innuendoes on social media is neither actual nor
apparent. At best, it may be described as contrived and, at worst,
as phantom. The 68-year-old justice of the Supreme Court who
started his career in the Lagos State Ministry of Justice and was
appointed a judge in the Lagos State Judiciary in 1994 has,
throughout his illustrious career, exhibited exceptional devotion
to duties and established an unimpeachable reputation for candour,
both of which have stood him in good stead, so much that his
nominations and subsequent appointment to the Court of Appeal and
later to the Supreme Court were greeted with widespread acceptance
in legal circles. There has never been a proven allegation of
impropriety against this eminent judge and his staunchest
detractors have been unable to credibly fault the legal and logical
validity of his judgements and opinions.

Where does this leave us? Should the judiciary, on the basis of
an alleged bias that is neither actual nor apparent but merely
contrived, disqualify an upright man who has served admirably in
the temple of justice for over forty years? Should a judge who has
served meritoriously on the Bench for twenty-five years be
subjected to caustic and malicious persecution on phantom
allegations of unsubstantiated bias? And, if we are now going to
recognise unsubstantiated and contrived bias as a new nebulous
class of actionable bias, is it not a concern that we will soon run
out judges to hear and determine disputes because any litigant
would then be able to, out of thin air, contrive bias against any
judge?

Is that where we are headed? Is that where we should be
heading?

Akingbolade Akinbobola writes from Ondo, Ondo
State.

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