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:

  1. 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;
    1. that the Court or Tribunal shall give equal treatment, opportunity, and consideration to all concerned;
    1. 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
    1. 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]

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]

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:

  1. he has a personal bias or prejudice concerning a party or personal knowledge of facts in dispute;
    1. 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;
    1. 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;
    1. he or his spouse, or a person related to either of them or the spouse of such person-
  2. is a party to the proceedings, or an officer, director or trustee of a party;
  3. is acting as a legal practitioner in the proceedings;
  4. is known by the Judicial Officer to have an interest which could be substantially affected by the outcome of the proceedings; and
  5. 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:

  1. 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.
    1. 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.
    1. 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.

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Abiodun Muhammed Rufai, Esq.

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

[ii]             Adebesin V. State [2014] LPELR-22694(SC)

[iii]            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]            Lieutenant Colonel Omoniyi v. Central Schools Board and Ors. [1988] 4 NWLR (Pt.89) 448 at 451

[viii]           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

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