The rule of law in every society is rooted in two very important principles; ‘Nemo judex in causa sua’ and ‘audi alteram partem’. These terms simply mean that no person shall be a judge in his own cause and that both sides to a dispute should enjoy equal opportunity to present their cases. They are the principles of natural justice otherwise described as the twin pillars of justice. Nemo judex in causa sua which is the focus of this piece is one of the rules of natural justice and it is not confined to a cause in which a person is a party alone, but also applies to a cause in which a person has an interest or that he is involved in. It underlines the doctrine of reasonable apprehension of bias which is not permitted because even a slight taint of bias would destroy the integrity of the proceedings conducted in such contexts.
To properly understand the principle of nemo judex in causa sua, we will take a journey across jurisdictions to understand how legal proceedings are conducted in other climes in comparison to the Nigerian judicial process.
The American judiciary unlike its European counterpart practices the adversarial and jury system, where the judge is not allowed to descend into the arena, he is only allowed to sit as an independent arbiter who acts as an umpire, listening to different parties argue their case, present evidence and then make a pronouncement based on the decision of the jury. He is not allowed the liberty to personally inquire into the case, he cannot ask questions outside the evidence presented by the parties in the case before him, he cannot also interrogate the evidence presented by both parties, neither can he investigate the investigations done by law enforcement, or form opinions around his own beliefs or understanding of the case. He must limit himself to the words and evidence of the litigants and their counsel. In reaching his decision, he is only allowed to guide the jury, who are members of the community of the accused or litigants, and who are selected by the state to sit as a panel to hear the evidence presented by parties and make a judgement in both civil and criminal proceedings.
European countries on the other hand employ the inquisitorial system, in which a judge investigates the facts, interviews witnesses, and renders a decision. Juries are not held in high regard in an inquisitorial court, and the parties to the case are only moderately involved in the fact-finding process. The main emphasis in a European court is the search for truth, whereas in an American courtroom, truth is secondary to the aim of reaching the fairest decision in the resolution of the dispute. It has been suggested that the inquisitorial system, with its goal of seeking and finding the truth, is a more just and equitable legal system. However, proponents of the adversarial system maintain that the truth is most likely to emerge after all sides of an argument are put forward.
In Nigeria, the situation is quite different. Our judicial jurisprudence is built on the adversarial system of adjudication where all a judge does, is sit on his throne and listen to litignts and their legal counsel canvass their arguments, present evidence, make submissions and thereafter make a ruling or pass a judgement based on the preponderance of evidence or on the balance of probability in civil cases or beyond a reasonable doubt in criminal cases.
A judge in a Nigerian court should ordinarily never be seen as delving into the arena of conflict unlike his European counterparts, he must restrict himself to the limits created by the rules governing the courts. A judge must not assume the role of a party or counsel in the proceedings before it. This principle has even been enshrined in section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and given judicial imprimatur in a plethora of cases. See Ani v. Out (2023) 8 NWLR (Pt. 1886) 301 SC where the Supreme Court defined the concept as follows:
“Nemo judex in causa sua is a latin phrase, which means no man should be a Judge in his own cause. It is a principle of natural justice that no person can judge a case, in which he has a personal interest or involvement. This rule of natural justice is, therefore, not confined to the cause in which the person is a party, but it also applies to a cause in which he has an interest or he is involved in. It underlines the doctrine of reasonable apprehension of bias, which is not permitted in law because a taint of bias would destroy the integrity of the proceedings conducted in such a manner. In the instant case, the positions occupied by the respondents would not ipso facto disqualify them from being nominated, selected and presented as the candidate of their respective Houses.”
But a simple question begs for clarification; if our constitution is rooted in the rule of law, and the rule of law holds sacred the twin pillars of justice “Nemo Judex in Causa Sua and Audi Alteram Patem” which translates into “A man shall not be a judge in his own case and Hear the Other Side”, why then will a judge sit as a judge in their own case?
That question might sound surprising to you, but when you find yourself in a court room, and a litigant through his counsel raises the question of bias against the sacred throne holder, you become amazed, you ask yourself, can a court be bias? Is the Judex not supposed to be a neutral arbiter? Are the courts not supposed to be the gatekeepers of justice? Why then will a court be bias? That is a question I cannot answer, but that is not the reason for this piece, my concern is not the reason for bias, but how the court deals with it, when it is raised by either party to a suit.
I was witness to a case in a court in Abuja where a defendant had raised the issue of bias against the court, counsel to the litigant backed it up by making a written application to the court, praying the court to recuse itself and transfer the case to the Honourable Chief Judge for reassignment. The next phases of this procedure which I witnessed in my opinion defeats the entirety of the foundations of justice upon which our laws are predicated and which the courts are sworn to and should uphold and defend.
In Ogboka v. State (2021) 17 NWLR (Pt. 1804) 139 SC. The Supreme Court once again cautioned when it said that:
“The court’s neutrality or impartiality in a case, under section 36(1) of the 1999 Constitution guaranteeing fair hearing to the parties before it, is summarised by the phrase – nemo judex in causa sua (a Judge should not be a judge in own cause). In this case, the trial court erred when it dismissed the prosecutor’s insistence and prayer that the appellant be convicted for the lesser offence of culpable homicide not punishable with death as the respondent had admittedly failed to prove the alleged intentional culpable homicide. (P. 174, paras. E-F; G-H).
This is very instructive in what follows after counsel filed his application.
The Claimant after being served with the defendant’s application, filed a counter-affidavit and address opposing the allegation of bias and the application to the court to recuse itself from hearing that suit. The court fixed a date for hearing and on that date, parties adopted their processes, the same court which had been allegedly indicted by a party to the suit for bias fixed a date for ruling on the said application. This same court whose neutrality is being questioned goes on to subject the processes filed by parties to judicial review by itself, the same court that was accused of bias reviews the allegation of bias against itself and ruled on it too. Is that not a judicial absurdity? I witnessed the ruling of the court opposing the allegation of bias and refusing the application to recuse itself. Is that alone not telling enough?
It is trite that a court must not only do justice but must be seen to do justice in every case brought before it. The confidence of the society in the neutrality of the courts is the foundation of the power and efficacy of courts. Where a court can be seen to be bias and then uphold the bias by judicial discretion and prerogative, the confidence in the judiciary is diminished. The Court of Appeal had this to say about the effect of bias in Omoniyi v. Central Schools Board (1988) 4 NWLR (Pt. 89) 448 when it held that “The imputation of bias of any kind to a trial Judge including favouritism and selective treatment, does not only diminish the stature and integrity but destroys the foundation of his judgment, however sound and consistent with the rules of court, pleadings and evidence. These considerations ordinarily should guide the court whenever a question of bias is raised by a party to a suit.
The Nigerian judiciary has come under heavy criticism for its seeming lack of independence and its inability to actually play the role of being the last hope of the common man. This impression by the society has significantly eroded the trust and confidence which the society should have in the courts, it has placed the courts in a limbo of distrust, uncertainty and abuse.
The court must be neutral, fair, compliant, flexible, attentive, unbiased, responsive, decisive and independent. It must not give any room for its stakeholders to perceive or allege bias. It must ensure the highest standards of equity are observed and this equity must not only be done, but must be seen by all who observed, the litigants, the parties and the mere observer in the court.
In conclusion, I will anchor on the words of Honourable Justice Ayobode Olujimi Lokulo-Sodipo who in the case of Orogbemi v. State (2024) 13 NWLR (Pt. 1954) 71 CA., held that:
It is a grave matter to charge a court with bias or likelihood of bias, and the accuser must be ready and able to establish the facts and grounds he relies upon before he can succeed in his complaint. To charge a court with bias or likelihood of bias, there must be cogent and reasonable evidence to satisfy the court that there was in fact such bias or real likelihood of bias as alleged. Allegations of bias cannot be founded on mere conjectures but on concrete and real evidence. Although justice in law must not only be done but seen to be manifestly done, bias cannot be proved by sheer and vague suspicion and scandalous allegation against a court. In the instant case, the appellant did not make out a credible case to sustain the allegation of bias against the trial court. [Ojengbede v. Esan (2001) 18 NWLR (Pt. 746) 771; Osayomi v. State (2007) 1 NWLR (Pt. 1015) 352;…”
Flowing from the above, where there exist a suspicion of bias and the attention of the judex has been brought to it with cogent facts within the knowledge of all the parties, the judge being accused of bias cannot and should not be allowed to rule on an application for recusal or transfer. That application should in the interest of preserving the neutrality and integrity of the courts be heard by a neutral judge who will be presented with all the facts in the case of bias and that judge alone, must be allowed to hear parties and rule on it. This must be included in our judicial jurisprudence for the development of the law and the sustenance of the confidence of the people in the court system.
I will finally add that a procedure be established within the court’s rules and directives for the processes to be followed where a party alleges bias and the court is not inclined to suo motu recuse itself but seeks to hear the accusing party establish the alleged bias before it. This will create a clear pathway for what must be done in instances where the integrity and neutrality of the court is questioned, especially in cases involving regular litigants before the courts, politically exposed persons and in other cases before trial courts.
Leslie Iheduru, a legal practitioner with the ICPC.
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
