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DETERMINATION OF LIKELIHOOD OF BIAS IS OBJECTIVE TEST TO BE APPLIED

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In the determination of a likelihood of bias the test is not subjective but objective. In other words, it is from the point of view of a reasonable man who happened to be present in the court and watched the proceedings. In Chief Abiola v. Federal Republic of Nigeria (1995) 7 NWLR (pt.405) 1, the Supreme Court referred to its earlier decision in Deduwa v. Okorodudu (1976) 1 NMLR 236 in which the court cited with approval what Lord Denning said in Metropolitan properties Co. Ltd v. Lannan and Others: “In considering whether there was a real likelihood of bias, 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 he 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, and then he should not sit. And if he sits, his decision cannot stand … The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘The Judge was biased.” The moment right-minded or right-thinking people are of the view that the Judge was biased or there was likelihood of bias so much violence is done to the fair hearing principles as contained in section 33(1) of the 1979 constitution. This is because the Judge in his biased mind has closed the frontiers of fair hearing against the party he hates as he opens the door to accommodate the case of the party he favours. That is injustice and a court of Law should not be involved in it.

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

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RAISING BIAS ON JUDGES BASED ON TRIBE OF LITIGANT

I must not conclude this judgment without addressing the unnecessary and unfair allegations against the learned trial judge by Appellants’ counsel. Judges are human beings, they do not fall from heaven nor are they manufactured from Mars or Neptune. As with all human beings they originate from somewhere, a race, a community, or tribe. Appellants’ counsel devoted a lot of energy on attacking the personality of the learned trial judge on pages 17-19 of the Appellants’ brief on the basis of an alleged kinship with the 2nd Respondent. The attack was unnecessary and mischievous in the circumstances of this case. This Court held in Abalaka v. Minister of Health (2006) 2 NWLR (Pt. 963) 105 at 134 per Muhammed JCA thus: “The constitutional provision of fair hearing has no tribal insinuation of the composition of the bench vis- a-vis the tribes of the parties. A party should not be heard to complain that because he is not of the same tribe with members of the bench, he cannot have a fair hearing. That in my humble view is the most invidious and incongruous approach to this very important legal principle. If the contention is correct, then most if not all trials in our judicial system, must be faulted because the composition of most Courts may not agree with the tribes of the litigants. Perhaps an example will make the point clearer. No Asian, American, German or any other foreigner would submit to the jurisdiction of a Nigerian Court because virtually all Courts in Nigeria are constituted by Nigerians. Was Section 3 of the 1979 Constitution, which is now Section 36 of the 1999 Constitution , designed to cure such a crude situation. No, not at all. Tribal Composition at the bench per se cannot be basis for the charge of bias or likelihood of bias, unless the aggrieved party shows by the conduct of the bench such bias, or likelihood of bias. The constitutional provision of fair hearing is already large and omnibus and I am not prepared to expand the frontiers beyond its onerous content or ambit.”

— H.M. Ogunwumiju, JCA. Godwin Ukah & Ors. V. Christopher A. Onyia & Ors. (CA/E/295/2008, 21 Jan 2016)

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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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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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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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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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WHAT IS BIAS?

Egwumi v. State (2013) LPELR-20091(SC) 23, A-B per Rhodes-Vivour, J.S.C. defined ‘bias’ as follows: “Bias means anything which tends or may be regarded as tending to cause a Judge to decide a case otherwise than on the evidence.”

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