The Alleged Bulkachuanization of the Nigerian Judiciary: What is Bias or Likelihood of Bias by Nwani Tailorson, Ogun State based Legal Practitioner. Email:Pegasuslegalassociates@gmail.com

Wonder shall never end; the saying goes was the feeling that griped Nigerians when Hon. Justice Kekere Ekun delivered the lead judgement in favour of Hope Uzodimma at the Supreme Court. The dissenting opinion of Hon. Justice Centus Nweze (as he then was) was a consolation to the surprised minds who are struggling to come to terms with the jurisprudence behind such verdict. The infallibility of the Supreme Court due to its finality has been felt by Imolites who has endured what an elite justice could do to the ordinary man, who left the arena with more question than answers on how the twists and turns were arrived at by the Bench.

Senator Bulkachuwa whose wife was the former President of the Court of Appeal at the helms of Election Tribunal cases, in a valedictory session at the floor of the senate made a shocking revelation of how he has used his wife office to help himself and friends, a confession that Senator Ahmed Lawan cut him short of completing the gory tale of judicial corruption. The truth is that confidence in our courts have gone south for quite a long time, as technical justice has overwhelmed substantial justice against the spirit of law.

This essay will make attempt at describing the various kind of bias as obtained in legal literature cum when would a judicial officer be asked to recuse himself on account of bias or likelihood of bias. For instance, bias of subject matter; Pecuniary bias; personal bias and legislative bias.

Bias of Subject matter: Bias of subject matter is also a disabling bias. This type of bias rarely invalidates judicial or quasi-judicial proceedings because judges being human are not forbidden from having personal opinion on a subject matter. Therefore, a mere personal opinion of the judge or Magistrate on the subject matter without more will not preclude them from hearing a case.

Bias towards subject matter has been described by Prof. S.A. De Smith thus: –

‘’Disqualification for bias may exist where a member of tribunal has an interest in the issue by virtue of his identification with one of the parties or has otherwise indicated partisanship in relation to the issue’’.

Several issues may arise but they are not exhaustive of circumstances of bias of this sub-heading. The first is where an adjudicator is associated with a body that institutes or defends the proceedings. The second scenario which is not easily identifiable is where the judge has shown partisanship in a corporate or private capacity. The issue of subject matter bias is not raised per se on the opinion of the umpire on the subject matter but must show real relationship between the umpire and the subject matter.

This principle is aptly captured in the American case Re Linahan (1943)138F 2^nd 650,652 where Frank J observed thus:

    ‘’If, however bias and partiality be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial, and no one ever will. We are born with predispositions and the process of education, formal and informal, creates attitudes which precedes reasoning in particular instances and which, therefore by definition are prejudices’’.

Pecuniary Bias: – arises when the umpire has a monetary interest in the subject matter of dispute. A clear example of this specie of bias is the House of Lords case in Dimes vs. Proprietors of Grand Junction Canal. In the case, Lord Cottenham, who presided as the judge and granted an injunction, had an interest as a shareholder in the Respondent company. His orders were set aside by the House of Lords for the reasons given below:

    ‘’No one can suppose that Lord Cottenham could be in the remotest degree, influenced by the interest he had in this concern, but…it is of importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause to which he is a party, but applied to a cause which he has an interest. Since I have had the honour to be chief Justice of Court of Queen’s Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took part in the decision. And it would have a most salutary influence on those tribunals when it is known that this High Court of last resort, in a case in which Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside’’.

Worthy of mention is the fact that pecuniary interest, however, small, disqualifies a member from acting as a judge in particular proceeding.

Personal Bias: – it is the most ominous of all the bias mentioned above. It ensues when a party to the dispute is a near relation of the deciding authority. Griffth and Street submitted thus on personal bias:

       ‘’The third type of bias is personal. A judge may be a relative, friend or business associate of a party or he may be personally hostile as a result of events happening either before or during the course of a trial. The Courts have not been consistent in showing when bias of this type will invalidate a hearing. The House of Lords in Frome United Breweries. Vs. Bath Justices approved an earlier test of whether there is real likelihood of bias’’. The House of Lords has since approved a dictum of Lord Hewart that ‘’Justice should not only be done, but should manifestly and undoubtedly be seen to be done’’. Therefore, in every judicial proceeding, nothing is to be done which gives room for a suspicion that there has been an improper interference with the course of justice.

As always, in a judicial proceeding, strong personal animosity towards a party disqualifies a judge from adjudicating, if it gives birth to real likelihood of bias. There must be very strong evidence of the likelihood of bias before it will avail the complainant. For instance, when the husband and wife is one of the presiding officers, it was held personal bias.

On the issue, close intimacy, if it gives birth to real likelihood of bias should be treated as disqualification. In Cottle Vs. Cottle, a Divisional Court submitted that a matrimonial case where the Magistrate was a friend of wife’s family and the wife’s mother had given the husband to understand that the Magistrate would be biased in wife’s favour.

Thus, it means that anyone close to a judge should not plead before the judge because of the issue of real likelihood of bias. There are black sheep in every profession, nay in every endeavor in life. But few as they are, they tarnish, by their machinations, the fair name of age-old institutions. It is incumbent upon those who occupied high public offices must take care to ensure that those who lay claim to be close to them are not allowed to exploit that closeness, alleged or real.

Legislative Bias: – Is an enactment made and skewed in such a manner that it unduly benefits one group while robbing the other or others. Generally, the individual or the group cheated by this bias has no remedy except if they could successfully pursue and prove judicial remedy by establishing ultra vires. Legislative bias is beyond the jurisdiction of law courts until the ultra vires issues vitiating it are established.

Reasonable Likelihood of Bias as a Vitiating Factor in Judicial Proceedings: – it is a given that bias affects the credibility of whatever decision-making process. In an allegation of bias, the issue remains whether there is reasonable ground for believing that he was likely to be biased. According to Prof. Jain, the test is that a right-minded person thinks that there is a real likelihood of bias in the circumstances of the case. Therefore, a real likelihood of bias means at least a substantial possibility of bias. It is the reasonable man standard that is applicable. It would always be question of fact in each case depending on its peculiar circumstances.

Worthy of mention is the fact that the test of likelihood of bias which is applicable in number of cases is the reasonable man apprehension i.e. of a reasonable man fully cognizant with the fact. Courts have quashed decisions on the reasonable suspicion of the aggrieved without having made a finding that a real likelihood of bias in fact existed. Such apprehension must be judged from a healthy, reasonable and average point of view and not on mere apprehension of any person who does not agree with the decision. It is the reasonableness and the apprehension of an average honest man that must be take into consideration. The test of bias is when a reasonable intelligent man, fully in tune with all the circumstances of the case, would feel serious apprehension of bias. Thus, a real likelihood of bias is at least substantial possibility of bias.

Again, issue of real likelihood of bias depends not upon what actually was done but upon what might appear to be done. The standard is whether a litigant in a reasonable man position left the court feeling that the outcome of the dispute is as a result of the bias attributed to one member of the tribunal or some of the members as the case may be. Justice must not only be done but must appear to have been done.

According to A.S. Misra in his Law of bias and Malafides, fourth edition,2007. The author submits thus; –

  ‘’ It may not be always possible to furnish actual proof of bias. But the Courts for this reason, cannot be said to be in a crippled state. There are many ways to discover bias, for example, by evaluating the facts and circumstances of the case or applying the test of real likelihood of bias or reasonable suspicion of bias. Reasonable suspicion test looks mainly to the outward appearances while real likelihood test focuses on the court’s own evaluation of the probabilities’’.

If a reasonable man would think that on the basis of the prevailing circumstances at the trial that he is likely to be prejudiced, that is enough to set the decision aside. For instance, the judge advocate who presided over a court martial was found to have written a letter threatening to deal with the defendant. It was held to be real likelihood of bias and the decision was quashed.

Prof. Jain submits; –

  ‘’A welcome achievement of the Indian judiciary has been to insist that a decision-making body is obligated to give reason for its decision as an element of natural justice. Even when a lower body has given reasoned decision, the higher appellate authority should also give its reason for its decision even though it may be agreeing with the lower body. The logic behind this is that a decision-making authority must apply its mind to the circumstances of the case before reaching its decision; it must not adopt a complacent attitude of mechanically agreeing with the lower body without itself giving thought to the whole matter. This can be ensured if the court is made to give its own reason for its decision. Even when the upper body agrees with the lower body it may do so for different reason than the lower body. The courts supervisory functions can be discharged effectively only when the decision-making authority reveals its own mind and thought processes. In proceeding for assessment of custom duties, an appeal lies from the Assistant Collector to the Collector and, finally to the Government of India. The Supreme Court has emphasized in Siemens Engg. & Mfg. Co. of India Ltd. Vs. Union of India (1976) 2 SCC 981, that each of those custom authorities must give its own reason for its decision and that the reason must be sufficiently clear and explicit. That is the only way in which quasi-judicial bodies will carry credibility with and inspire the confidence of the people. The rule of giving reasons is basic principle of natural justice and it should be observed in its proper spirit and mere pretense of compliance with it would not satisfy the requirement of law’’.

Whatever form of judicial bias depending on the underlying causes and events, is a reprehensible issue in judicial proceeding. A person on appointment as a judge, begins not a new chapter in his life, but really a new life in which he has to forget his past antecedents and interests and embark upon a righteous control over the infirmities inherent in a man as human being.  He becomes a trustee of a sublime cause of the highest value in society, the cause of justice between man and man. He has to get rid of all subjectivity, emotion, affection and sentiments while occupying the hallowed seat of justice. The public expects a super-man in him, but while this expectation may be exaggerated, he is nonetheless thought to be the embodiment of the highest standard of behaviour, morality and residuary virtues. But the idea that by taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine is a myth.  See R.Vs Barnsley Licensing Justices, (1960) 2 QB 167, 187 per Delvin, L.J.

Sequel to the above, the 2023 Election Petition verdicts, appeals and counter appeals ensuing therefrom, has thrown up a lot of challenges inherent in our judiciary. The valedictory lecture of Hon. Justice Musa Dattijo (Rtd) thrown a lot of genuine issues to the ongoing discussion on how the country is in urgent need of judicial reform. The recent conflicting record certified records of appellate court from Kano State Guber appeal, to Plateau where the Election Plateau where the Appellate Court spring surprises sacking several lawmakers with the incumbent Governor; a verdict that the Apex Court deprecated heavily while nullifying the verdict of the appellate court.

However, the Apex Court verdict on Plateau reversing the Appeal Court on the Guber Verdict has brought more debate on the fate of the sacked lawmakers who have exhausted their right of appeal at the Appellate Court where the Governor has approached the Apex Court on the same issue that ruined their mandate at the lower court. But one issue that is crying for attention more than the named challenges raised by elite justice system is the fact that an average man has lost confidence in the judiciary.

Above all, no litigant should leave the court feeling reasonably that his case was not heard and considered on its merits. If he does, then justice even though done in the case failed to live up to its true bidding. See Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as Amended on fair hearing and its prevailing circumstances.