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A CHARGE OF BIAS ON THE JUDGE

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A charge of bias arises when a Judge shows an act of partiality, see Akinfe v. The State (1988) 3 NWLR (pt.85) 729. Etymologically, bias means slant, personal inclination or preference; a one-sided inclination. It also means a pre-conceived opinion, a pre-disposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. Bias creates a condition of mind which sways judgment and renders a Judge unable to exercise his functions impartially in a particular case. There is another expression and it is likelihood of bias. When a party in an action contends that there is likelihood of bias, he is anticipating that the Judge will be biased in the judicial process. The act of bias is not formalised. The act of bias is not concretised, but by the generality of the conduct of the Judge, the possibility of bias is overt. And the possibility is substantial. See generally LPDC v. Chief Fawehinmi (1985) 2 NWLR (Pt.7) 300. In a charge of bias, the integrity, honesty or fidelity of purpose and the Judge’s traditional role of holding the balance in the matter are questioned. He is branded or seen as one who leaves his exalted, respected and traditional arena of impartiality to descend unfairly on one of the parties outside all known canons of judicial discretion. The Judge is said to have a particular interest, a proprietory interest which cannot be justified on the scale of justice, as he parades that interest recklessly and parochially in the adjudication process to the detriment of the party he hates and to the obvious advantage of the party he likes. The Judge, at that level, is incapable of rational thinking and therefore rational judgment. His thoughts are blurred against the party he hates. He is poised for a fight, an uninstigated fight in which he is the main participant. The conduct of the Judge invariably and unequivocally points to one trend and it is that he will give judgment to the party he favours at all cost, come day or night, come rain or sunshine. Such is the terrible state of mind of the biased Judge or one who is likely to be biased.

— Niki Tobi, JCA. Nnamdi Eriobuna & Ors. V. Ikechukwu Obiorah (CA/E/77/99, 24 May 1999)

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BIAS DEPENDS ON THE IMPRESSION IT WOULD CREATE ON OTHER PEOPLE

In the case Kenon v. Tekam (2001) 14 NWLR (pt. 732) pg. 12, Bias is defined as – “An opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the court so influenced will be unable to hold an even scale.’ On the test for determining real likelihood of bias, the court does not look at the mind of the Justice himself or at whoever it may be who sits in a judicial capacity. It does not look to see if there was 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 the other people. Even if he was as impartial or could be, nevertheless if right minded persons think that in the circumstances there was a real likelihood of bias on his part, and then he should not sit. And if he does sit, his decision cannot stand. The reason is plain enough. Justice is rooted in confidence and confidence is destroyed when right-minded people go away thinking that the judge was biased.”

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BIAS MUST BE REAL – IT MUST HAVE AN IMPRESSION ON OTHER PEOPLE

The test of determining a real likelihood of bias is that the court does not look at the mind of whoever sits in judicial capacity. It does not look to see if there was real likelihood that the judge would, or did, infact, favour one side at the expense of the other. It rather, looks at the impression which would be given to the other people. The likelihood of bias, nevertheless, must be real, not a surprise, caricature or a game of chance.

– T. Muhammad, JSC. Womiloju v. Anibire (2010) – SC.211/2002

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FOREKNOWLEDGE OF FACT CONSTITUTES BIAS

Foreknowledge of fact in such circumstance is an aspect of bias, as he did not come to the dispute with an openness of mind that would enable him to hold an even scale and he should therefore have been disqualified from hearing the appeal.

– O.O. Adekeye, JSC. Womiloju v. Anibire (2010) – SC.211/2002

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THE EFFECT OF BIAS ON A JUDGE

On the subject of bias, I make bold to say that the allegation once made is a serious one. This in my opinion is more serious because in this instance, the integrity of the Judge is being attacked. The language of bias is indicative of a deliberate action by the Judge to look outside the law and the facts to decide a matter. Accusing a judicial officer of bias is to say that the judicial officer is not fit to take over the responsibility of such great honour and a direct affront to the oath of office that he took on the day he was sworn in. In fact, a Judge is a representative of God on earth and therefore should imbibe the principle of justice and therefore jealously guide this divine calling. To be a judicial officer takes more than knowledge of the law and been intelligent but must more requires good character in both the strict and general sense of the word. An appeal on grounds of bias is a challenge on the character, the integrity of the judicial officer. It is a challenge that takes away from him the covering of decency as a judicial officer. I am going into all that to drive home the point that lawyers should be very careful in accusing a judicial officer of bias except when there is convincing evidence to buttress that. I make bold to say that the time has come for disciplinary action to be taken against lawyers who accuse a Court or Judge of bias which he can not establish. Once a Court has been accused of bias, unfortunately it cannot be taken back and no matter how clean the judicial officer is, there is a dent on his integrity even if it is by one person who earlier held him in high esteem. – EBIOWEI TOBI, J.C.A. Abdul v. State (2021)

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REAL LIKELIHOOD OF BIAS MUST BE INFERRED BY A REASONABLE PERSON

If it can be reasonably inferred by a reasonable person sitting in court, from the circumstances that there is a real likelihood of bias against one of the parties on the part of the court, it must follow irresistibly that party’s right to a fair hearing had been contravened and the decision on the issue between the parties by the court in such circumstances should not be allowed to stand.

– T. Muhammad, JSC. Womiloju v. Anibire (2010) – SC.211/2002

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NATURE OF BIAS IN A PROCEEDING

‘Bias’, generally, is that instinct which causes the mind to incline toward a particular object or course. When a judge appears to give more favour on consideration to one of the parties before him, either in his utterances, attention or actions, which is capable of perverting the cause of justice, or where fair hearing cannot be said to take place, all in favour of the party he supports covertly or overtly, then an allegation of bias against him can be grounded. That of course is a Judicial bias. But where a trial has been conducted in which the authority of the court has fairly been exercised in consistence with the fundamental principles of justice embraced within the conception of the process of law, then there is said to be a fair hearing. This contemplates of allowing the parties equal opportunity to present evidence; to cross-examine witnesses and for the trial court to make findings which are supported by evidence.

– T. Muhammad, JSC. Womiloju v. Anibire (2010) – SC.211/2002

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