JUSTICE MUST NOT ONLY BE DONE: A CURSORY LOOK AT THE ISSUE OF JUDGES’ RECUSAL
In most democratic settings, the judicial arm is entrusted with the task of dispensing justice through the businesses of the courts. In just the same way, they have a duty to despatch this duty in the best way possible, employing the fairest of means, and arriving at just decisions.
Since the courts are regarded as the last hope of the common man, it therefore lies on them, the burden to see to it that the processes leading to justice are fair and not only fair- but also seen by the people to be fair.
Just like the often-repeated dictum of Lord Hewart C.J. in the popular R v Sussex Justices’ Case  1 KB 256: “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. ”
On the Issue of Judges’ Recusal
This essay focuses on the recusal of judges, a legal issue which translates simply as the withdrawal of a judge from continuing to adjudge a case-in the interest of justice and fair hearing.
The court in The Queen v McKenzie (1892) 2 QB 519 provided a succinct definition of ‘fair hearing.’ “What is a fair hearing? A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice.”
We should recall the two pillars of natural justice. First, audi alterem partem (hearing the other side) and second, that no one be a judge in his own cause.
From the foregoing, it is sufficient to say that fairness and impartiality are the hallmark of any good judiciary.
The Court of Appeal in the recent case of Zaman v The State (2015) LPELR-24595 (CA) quoted the decision of the Supreme Court in the case of Olue v Enenwali (1976) 1 NMLR wherein it was stated: “the principle that a judge must be impartial is accepted in the jurisprudence of any civilized country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England.”
On the issue of recusal, Rule 2, Paragraph B of the FRN Code of Conduct for Judicial Officers provides:
“A judicial officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned…”
The various instances where a judge would be required to recuse himself from a case were enumerated in the Code, although the list is inexhaustible.
Lord Devlin MR in Metropolitan Properties Ltd. V Lennon (1969) 1 QB 577, 598 however summed them up into two broad categories;
“A man may be disqualified from sitting in a judicial capacity on one or two grounds. First, a ‘direct pecuniary interest’ in the subject matter. Second, ‘bias’ in favour of one side or against the other.”
Where bias is claimed, the court in R v Camborne Justices (1955) 1 QB 41 stated that a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining.
When however, the question as to the likelihood of bias becomes contentious, it is important to bring back to fore the words of Lord Hewart C.J which preaches that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
Thus, in considering whether there was bias, the court does not look at the judge or whoever it may be, who sits in a judicial capacity. It does not look to see if he (the judge) would, or did favour one side at the expense of the other.
The court will look at what right-minded persons would think in the particular situation. The reason for this is simple, justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking ‘the judge was biased.’
In instances where direct pecuniary interest is claimed, Alexander C.J.N in the case of Deduwa v Okorodudu (1976) 1 NMLR 236 cited the dicta of Blackburn C.J (in R v Band):
“There is no doubt that any direct pecuniary interest however small in the subject matter of inquiry does disqualify a person from acting as a judge in the matter.”
At this juncture, we must note the attitude of the court to motions of recusal. According to Blackstone; “the law will not suppose a possibility of bias or favour in a judge who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.”
Procedurally, whenever there is a motion of recusal, the challenged judge has two popular options; first, to exercise his discretion and rule on the motion himself and second, to transfer the motion upon receipt of same without ruling on its substance.
Therefore, even after a party submits an application or motion for recusal, the judge reserves the authority to insist on hearing the case if he feels he can dispose the case fairly and without prejudice.
In the recent case of Honeywell Flour Mills Plc. v Ecobank Nigeria Ltd (Suit No: CA/L/1247/2015), Justice Mohamed Idris of the Federal High Court, Lagos refused to recuse himself from the case after the counsel to Ecobank had applied for the withdrawal of the judge on the allegation of bias. Justice Idris said;
“if all judges were to recuse themselves from cases simply because litigants criticised their rulings and judgments, the judiciary would soon find itself in a situation where litigants choose the judge to adjudicate on their matters; and this is not in the interest of the law.”
What is your opinion on this? Leave a comment.
Damilola Akinsanya is a fresh graduate of the Faculty of Law, University of Ibadan, Nigeria. He is an Environmental Law enthusiast and a former President of Clean Earth Society, University of Ibadan. He is the founder of The Triads NG- a fast-rising online hub of refined works of art. When he is not writing, he is either spending time with children or reading about Africa. He is an unrepentant Arsenal FC fan. You can follow him on @damzyofficiall on Instagram & Twitter.