By Victor O. Ubaka Esq

Victor O. Ubaka Esq offers critical scrutiny of the objections on likelihood of bias raised by Akintayo Balogun Esq against the decision of the National Industrial Court intervening in the remuneration of judicial workers. The author contends that the likelihood of bias does not exist in this case on account of the restrictive understanding and application of the equitable doctrine by the Supreme Court in T. M. Orugbo & Anor v. Bulara Una & Ors. Victor Ubaka concludes that learned senior counsel’s approach to bias audaciously shoots down the constitutional balance of power invested in the Courts to hear and determine cases on the question of civil right or obligation litigated in Chief Sebastine Hons’ suit.

Facts

On Friday, the 15th of July 2022, the National Industrial Court, Coram Hon. Justice Osatohanmwen Obaseki-Osaghae, sitting in Abuja, delivered a judgment in the suit between CHIEF SEBASTIAN HONS V NATIONAL ASSEMBLY & 2 ORS with Suit No. NICABJ/142/2022. The Court had ordered the National Assembly, the Revenue Mobilization, Allocation and Fiscal Commission (RMAFC), and the Attorney General of the Federation (AGF) to urgently initiate measures to ensure upward review of the salaries and allowances of judicial officers in the country.

Introduction

Learned Senior Counsel Akintayo Balogun upon appraising the decision raised 3 (three) major issues which constituted the grounds of his objection to the propriety of the judgment.

Whether the honourable Justice of the National Industrial Court can be a judge in a matter in which he has an interest.
Whether the Claimant, Chief Sebastine Hon, who sued in his personal, capacity has the locus standi to institute this action on behalf of the judicial officers in Nigeria.
Whether the National Industrial Court has the jurisdiction to determine the suit between a non-employee of an organization and the organization.
Scrutiny of the Objections

Upon carefully examining the objections raised by the learned counsel, I found the issues raised, profoundly intelligent and worthy of appraisal.

On the second objection, this author completely agrees with the learned counsel on the issue of locus standi of the learned Silk who instituted the action with no apparent standing to sue on behalf of the judicial officers.

The author also agrees with the jurisdictional challenge learned counsel canvassed against the Claimant’s choice of judicial forum where the decision emerged.

However, this author somewhat disagrees with learned counsel’s articulated argument on the Likelihood of Bias that exists on account of the National Industrial Court Judge adjudicating over the suit.

In his article, learned Counsel strenuously argued with equitable principles and case law, that the Justice O.O Obaseki of the National Industrial Court of Nigeria (NICN), and any judicial officer for that matter would be impacted by bias because their interests in improved remuneration consistently features and is canvassed for in the suit.

The learned counsel had raised this issue of bias even when the claimant devoid of standing, does not represent the interest of judicial officers in his mere personal capacity.

My questions are:

Will this line of argument be sustainable if the NJC had been the original claimant in the suit?

Will counsel’s line of argument still be cognizable within the principles of “Nemo

Judex in causa sua” where the NJC originally instituted the action, seeing that the NJC as a body represents the interest of judicial officers including the interest of the judex to adjudicate over the suit?

If we consistently applied counsel’s test of Bias to this present instance, it would lead to the same conclusion, notwithstanding the fact that the NJC is the appropriate body to institute the suit challenging poor remuneration of judicial officers, of whom the presiding judge is one of.

The real question should be: Is the judicial arm of government as an associative body precluded from approaching the courts, which it constitutes, in matters that affect them or their interests especially where those interests involve entitled legal right; a right that is capable of being injured and therefore constitutionally redressable within the judicial system?

Where do we draw the line against which a claim for likelihood of bias will no longer be cognizable within the understanding of that equitable principle? In other words, what is the limit and the extent to which likelihood of bias can be canvassed?

Is it desirable to have a recognizable limit to the invocation and application of the equitable maxim on bias? These questions are not only germane to scrutinizing the objections, they promote balance in the application of equitable maxims to prevent absurd outcomes.

It is trite that Bias manifests itself in different forms and circumstances: political bias, for example is a recognized form of bias; and so is religious bias, ethnic bias, professional bias, etc. The list is not exhaustive. See ADEBESIN v. STATE (2014) LPELR-22694(SC) where the Supreme Court identified three categories of bias: peculiar bias, personal bias and official bias.

Assuming the NJC brought this suit against the National Assembly, the only way the likelihood of bias challenge can be brandished against the presiding judge, is if a broad and flexible understanding of that equitable rule prevails. This result by necessity compels the NJC to seek a political solution to canvass its interest as a Pressure Group to the relevant authority in charge of determining remuneration for judicial officers, a solution, a learned counsel is convinced is most desirable even though the evident fruit of its undesirability confronts the judiciary and stakeholders in the legal system.

However, this consequence entrenches the idea that the NJC as a body could not, if it could, institute an action before a court of law to advance or canvass its interest or anything affecting the body, which the adjudicating officer (the Judex) will benefit by virtue of his employment as a judicial officer. As a matter of factly, it denies the constitutional existence of the body’s right to approach a court where it’s legal right suffers injury amenable to judicial resolution .

The concept of bias therefore, in this circumstance, requires a restrictive application to prevent a floodgate of unreal bias challenges disguised as legitimate objections of fair-hearing.

There are a handful of decisions that have dealt with bias and whether they exist within the facts of the case in question.

The Court of Appeal in Denge v. Ndakwoji (1992) 1 NWLR (Pt. 216) 221 at 233 – 234 per Ndoma-Egba, enthused on bias thus:

The term real likelihood of bias may not be capable of exact definition since circumstances giving rise to it may vary from case to case, but it must mean at least ‘a substantial possibility of bias’. This may arise because of personal attitudes and relationships such as personal hostility, personal friendship, family relationship, employer relationship, partisan in relation to the issues at stake and a whole range host of other circumstance of a real likelihood of bias may be drawn…..

In applying this principle restated above even before now, the Court of Appeal in Adio v. A.G Oyo State & Ors [1990] 7NWLR (Pt. 163) 448, held that Justice Ige, the wife of Chief Bola Ige, the erstwhile Governor of Oyo State, ought to have recused herself over a matter in which the validity of an instrument issued by her husband in his official capacity as the Governor, was in issue.

To drive home this author’s point on existence of bias and whether a claim in that regard raises substantial likelihood of bias, the Supreme Court in a case somewhat similar to learned counsel’s challenge of bias against this present suit, had the opportunity to pronounce on the realness of bias alleged.

Thus, In T. M. Orugbo & Anor v. Bulara Una & Ors [2002] LPELR-2778(SC), the Appellants had contended before the court that since all the panel of justices were from the same ethnic group as the Respondents, there was likelihood of bias against them.

The Supreme Court rejected this contention and held that, the fact that all the justices were members of the same ethnic group with the Respondents, does not raise any case of bias or the likelihood of it.

This is how Justice Niki Tobi (of blessed memory) reacted to that allegation of bias. The Justice of the Supreme Court warned that:

The constitutional provision of fair hearing has no tribal insinuation of the composition of the bench vis-à-vis the tribes of the parties. A party should not be heard to complain that because he is not of the same tribe with member 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.

The Apex court in the above decision characterized that approach to claiming bias as invidious and incongruous, which, if it were to be considered, would lead us to fault every composition or paneling of the court on the ground that it does not reflect the “federal character” particular to the litigants.

The same warning applies in this case much the same way.

The composition or the empanelling of the presiding judge and any other judge for that matter would be challenged and faulted because their interest in improved remuneration constitutes the substantive cause of action.

Respectfully, this approach taken in learned senior counsel’s article and his concomitant application of this equitable principle, should attract the criticism of the Supreme Court , being incongruous. This has to be so, because, in the very first place, no judicial officer will be capable of sitting in adjudication over the matter without being faulted as Justice Niki Tobi (of blessed memory) correctly observed.

More so, learned counsel’s approach will accomplish manifest absurdity in preventing the judicial body through its association, from approaching the courts in respect of a constitutionally redressable injury.

If the judiciary cannot in a litigant capacity approach the court for redress, then, it presupposes that they are either above the law; too holy to set the judicial process in motion like other litigants, or too lowly to have their petty squabbles about money resolved in a court of law. The absurdity of this converse implication is truly incongruous as the apex court found similarly in T.M Orugbo’s case.

Illustrating with a Moot Point

Assuming the likelihood of bias question was raised at the Supreme Court’s hearing of the suit filed by the Cross Rivers State Govt challenging the removal of former Chief Justice of Nigeria, Justice Walter N. Onnoghen, which it dismissed for lack of standing, how do we suppose the court might look on such an allegation seeing that of a truth the empaneled justices and all other justices would be professional colleagues of the embattled Former Chief Justice of Nigeria with whom he had professional relationship with for years?

For the purposes of polemics, would it have been an appropriate argument at the time to strip the apex court of its judicial powers because of the likelihood of bias that might be canvassed on these points? Would it accord with the principles of Justice as we know it and fair hearing to prevent the then Chief Justice from seeking judicial redress if his claims were cognizable under the law?

Would it be an appropriate advice to suggest that his remedy subsists only in the political realm?

The author has gone down this path to establish that the equitable doctrine of bias is not open ended. They are restrictable particularly in instances where absurdity is the inevitable outcome.

Illustrating with Other Cases

Not many cases dealing with judicial bias or likelihood of bias strike a semblance with the facts in Chief Sebatine Hon’s suit. Notwithstanding, a couple of decisions from the apex and appellate courts demonstrate the similarity relevant to the scrutiny of these objections.

The case of Ajileye Vs Fakayode (1990) 5 NWLR (148) 92, could very well qualify for a comic award in the literary and creative industry. In that case the plaintiff/appellant a retired Judge of The Oyo State High Court sued Defendants/respondents for libel contained in an Article published in the New Nigerian Newspaper. The 1st respondent was the retired Chief Judge of The State. The New Nigerian Newspaper was the 2nd respondent. The learned trial Judge found that He had jurisdiction to entertain the subject matter of the dispute but disqualified himself and all other Judges of the Oyo State High Court from hearing the case on the ground that, since both the Appellant and 1st respondent were retired Judges of The Court, it would not be in the interest of justice For any of the Judges including himself to preside over the matter. He therefore disqualified himself and all other judges of the High Court and struck the suit out. The Court even went further to advise the parties to institute a fresh action before a High Court in any other jurisdiction in the country where the New Nigerian Newspaper was published.

It took the intervention of the appellate court to correct the hilarious but serious blunder of the trial court. The Court of Appeal held inter alia that the trial judge could for his own reasons disqualify himself, but that he could not disqualify all other Judges of the High Court from entertaining the suit and then striking out the suit.

Analysis of Ajileye’s case

The case probably illustrates the best example of extreme conception and application of the equitable principle on Bias. The Trial Judge went overboard in disqualifying himself and all other judges in the State from hearing the matter on grounds of judicial Bias because the Appellant and the 1st respondent, were both retired Judge of the High Court and retired Chief Judge of the High Court, respectively.

By disqualifying himself on the basis of likelihood of bias, the judge denied the litigants access to ventilate their grievances in a court of law within jurisdiction, thus, effectively ousting the jurisdiction of the other Judges of the Oyo State High Court. This strange ruling worked manifest injustice and accomplished an ineludibly absurd outcome.

In FRN v. ADEMOLA (2021) LPELR-52831(CA), the Court of Appeal had cause to pronounce on the likelihood of bias challenge canvassed by the Prosecution which alleged that the trial judge was biased because he (the trial judge) had a similar case with the National Judicial Council (NJC). The Court held thus:

In a nutshell, the mere fact that the trial judge had a similar case at the NJC is not enough reason to state that the trial judge was bias. The trial judge was not hostile nor did he show any strong animosity. A dispassionate reading of the quoted sections of the trial Court’s ruling does not in fact show any bias.” Per MOHAMMED BABA IDRIS, JCA (Pp 90 – 94 Paras D – C)

Analysis of Ademola’s Case

The Court Appeal rejected an extreme application of the rule on bias and found that the allegation did not rise to the level of potential bias. This is even more so when the said allegation was not established with credible, cogent evidence that would support the inference of bias as consistently and previously held in a litany of apex Court decisions. See WOMILOJU & ORS v. OGISANYIN-ANIBIRE & ORS (2010) LPELR-3503(SC), where the Supreme Court held that an allegation of bias must be rooted in evidence and not mere suspicion.

It must be supported by clear, direct, positive, unequivocal and cogent evidence from which real likelihood of bias could be inferred and not mere suspicion.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 31 – 31 Paras A – C)

See also Amachree v Nigeria Army (2002) LPELR 5833 CA.

Proving Likelihood of Bias in the Judgment of the NICN in Sebastian Hon’s suit

It is settled law that Proving Bias or likelihood of bias requires a standard of proof higher than advancing mere suspicion, or conjectures. Cogent, direct and clear evidence of bias constitute the only acceptable threshold of proof from which an inference of real likelihood of bias could be drawn.

The argument that the learned trial judge of the NICN and any other judge at first instance would be impacted by bias due to the court’s pecuniary interest in improved remuneration which constitutes the cause of action in the suit, ought to be scrutinized from the prism of adequate proof, restrictive application of the principle of bias and inevitably absurd constitutional outcome.

From the angle of proof, the question is: is the mere fact that the presiding judge possesses a non-exclusive pecuniary interest common to all judicial officers at the trial level in the suit, establish likelihood of bias? We should be mindful that the bias alleged in this case by learned senior Counsel, Akintayo Balogun, is not exclusive to the judge, rather, it is a bias unique to each judicial officer envisaged under that suit.

Is this non-exclusive bias adequate to constitute cogent, direct, positive and unequivocal proof as prescribed by the Supreme court and applied in several appellate decisions?

In ADEBESIN v. STATE (2014) LPELR-22694(SC), the Court of Appeal described 3 types of bias: a) Peculiar Bias; b) Personal bias; c) official bias.

Peculiar Bias presupposes that the bias is peculiar to the judge sitting in adjudication over the matter. It implies that the bias is exclusive to the judge sitting over the matter. It clearly does not contemplate a non-exclusive bias common to all judicial officers. In Adebesin’s case, the court defined Peculiar bias as a unique exhibition of bias by a member of the tribunal or the Court having a pecuniary interest in the subject matter.

Is the pecuniary interest in improved remuneration a peculiar pecuniary bias exclusive to the Judge of the NICN? If it is not, and since it is clear that it is not, then, does this non-exclusive pecuniary interest constitute cogent, direct, and positive proof of bias? The answer to that must be in the negative. This does not however foreclose any other type of bias from manifesting itself in the conduct of the judicial officer.

However, to prove bias or likelihood of bias in this case, would require more than just a non-exclusive pecuniary interest that all judges of the high court at first instance possess. Cogent, direct, and unequivocal proof of personal or official bias divorced entirely from the pecuniary interest already common to all the judges at the trial level would convincingly draw an inference of bias against the adjudicating authority.

The analysis from the prism of proof already captures the argument of restrictive application of the principle. To fortify this submission, the decision of the apex Court in T.M Orugbo promotes this restrictive application of the equitable principle in deserving instances. The Apex Court held categorically that:

The constitutional provision of fair hearing has no tribal insinuation of the composition of the bench vis-à-vis the tribes of the parties. A party should not be heard to complain that because he is not of the same tribe with member of the bench, he cannot have a fair hearing.

It should be settled at this point, that, non-exclusive pecuniary interest of judicial officers at first instance in this suit, cannot translate to denial of fair-hearing or constitute evidence of exclusive pecuniary bias.

From the angle of manifest absurdity, this author fortifies his earlier submission on this point with the Court of Appeal case of Ajileye v Fakayode (supra), wherein the Court held that the striking out of the suit following the judge’s disqualification of himself and all other judges of the Oyo State High Court on grounds of personal bias relationship with the one of the retired litigant judges, was a violation of section 6(6)(b) of the 1979 Constitution.

Similar to Ajileye’s case, learned senior counsel, Akintayo Balogun’s argument on likelihood of bias is bound to secure an unescapably absurd outcome that is fundamentally unconstitutional, against the provisions of section 6(6)(b) of the 1999 Constitution as amended. His argument strips a claimant with standing, of a right to constitutionally redressable injury, and by implication, ousts the jurisdiction of trial courts, competent to adjudicate over the matter of remuneration of judicial officers, contemplated by section 6(6)(b) of the 1999 Constitution as amended.

Conclusion

While the suit filed by Chief Sebastine Hon (SAN) demonstrates that the likelihood of bias challenge is inextricably tied to and fundamentally affects the cause of action; the decision in T.M Orugbo, equally demonstrates that the likelihood of bias challenge fundamentally attacks the composition and Constitution of the court, delegitimizing the apex court in the process. In both cases, the consequence imposes a perpetual foreclosure on the court from assuming its adjudicatory function, contrary to section 6(6)(b) of the 1999 Constitution as amended. This is the undesirable outcome that learned counsel’s line of argument accomplishes.

In line with the correct observation of the apex court, this author is of the opinion that this outcome following counsel’s approach to the equitable principle on Bias, upsets the judicial wisdom that inheres in this binding precedent. This author concludes that, learned counsel’s approach to the challenge on bias audaciously shoots down the constitutional balance of power invested in the Courts to hear and determine cases on the question of civil right or obligation litigated in Chief Sebastine Hons’ suit.

Aside from this critical observation, the other two issues raised in learned counsel’s article are profoundly intelligent objections, and this author aligns himself with them.

Victor O. Ubaka Esq writes from Abuja.