By Sylvester Udemezue

I will find time next week to offer what I humbly believe to be a disinterested opinion on the MERIT of the Committee recently set up by BOSAN (the Body of Senior Advocates of Nigeria) to audit some of NBA’s past elections.

In the meantime, is the BOSAN Committee not dead on arrival? Chief Joe K. Gadzama, SAN, heading a Committee to audit NBA‘s past elections? Do not get me wrong; I have nothing against the person of the distinguished legal giant, Chief Gadzama. He is a very well respected silk. I personally hold him very high. He is a complete, renowned bar man. But, in respect of the present BOSAN Committee on audit of Nigerian Bar Association (NBA) Elections, I respectfully ask, What has become of nemo judex in causa sua? Recall that learned silk Gadzama is himself an aggrieved, interested party, being an NBA presidential candidate in 2016. How on earth did the respected BOSAN arrive at the decision to appoint him to head such a Committee? With the greatest respect to BOSAN (I mean no harm ooo) this is a gross breach of nemo judex in causa sua.

▪️This position holds true even if the terms of reference of the BOSAN audit committee exclude the 2016 NBA national elections; this is because Sir Joe Gadzama, SAN, is one who is already known to be NOT HAPPY about the way NBA elections have been conducted within the past five years, and about the persistent complaints and crises regarding credibility of the entire NBA electoral process, especially since the introduction of the universal suffrage and the regime of electronic voting. Don’t forget that Mr Gadzama had contested the NBA 2016 presidential elections in court and “lost.” With due respect, the learned silk is obviously an aggrieved party/person as far as the NBA electoral process is concerned. Let us consider what a reasonable, fair-minded onlooker would think. “Reasonable likelihood of bias” is the primary consideration here; it’s not “actual bias.”

▪️ Permit me now to humbly refer to my comment in the 40-page “Personal Memorandum Submitted To Nigerian House Of Representatives On February 02, 2018 On The Planned Joint-Committee Public Hearing On The Firdaus’ Hijab Controversy by Sylvester Udemezue:”

”In the case of Metropolitan Properties Co. (F.G.C.) Ltd. vs. Lennon (1969) 1 Q.B. 577, 598, Lord Denning, M.R., after reviewing the facts in the case before him, stated, in respect of the law regarding nemo judex in causa sua, as follows:“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. Regarding likelihood of bias, the same Lord Denning, MR, in R. v. Amber Valley DC, ex parte Jackson [1985] 1 WLR 298, [1984] 3 All ER 50, gave an insight into the determining factor, as follows: ‘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, then he should not sit. and if he does sit, his decision cannot stand”. It is irrelevant whether he was in fact biased, because “justice is rooted in [public] confidence.’ This rule has been applied in several cases, in Nigerian and elsewhere, to strike down decisions reached in such circumstances of reasonable likelihood of bias. The cases of R. v. Bow Street Magistrate ex parte Pinochet (No. 2) [2000] 1 AC 119 , [1999] 1 All ER 577 and R. v. Secretary of State ex parte Kirkstall [1996] 3 All ER 304 easily come to mind. See also the Nigerian case of ZAMAN v. STATE (2015) LPELR-24595(CA) where the Nigerian Court of Appeal stated as follows: ‘In considering whether there was a real likelihood of bias, the Court does not look 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 he would, or did, 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, then he should not sit. And if he does sit, his decision cannot stand; see R. vs. Huggins (1895) 1 Q.B. 563 and R. vs. Sunderland Justices (1901) 2 K.B. 357 at C.A. per Vaughan Williams, L.J. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: see R. vs. Camborne Justices, ex p. Pearce (1955) 1 Q.B. 41 and R. vs. Nailsworth Licensing Justices, ex p. Bird (1953) 2 All E.R. 652, D.C. There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. 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.’…. As Lush, J., said in Serjeant vs. Dale (1877) 2 Q.B.D. 558, 567: ‘The law, in laying down this strict rule, has regard not so much perhaps to the motive which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away everything which might engender suspicion and distrust of tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.’’ In the case of Olve & Ors. vs. Enenwali & Ors. (1976) 1 NMLR the Supreme Court of Nigeria (quoting the dictum of Brett, Ag. C.J.N, in the case of Obadara and Ors. vs. The President, Ibadan West District Grade “B” Court (1964) 1 All NLR 336) has held at page 49 to 50 (per Nasir, JSC, as he then was), as follows: ‘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 or for hesitating to follow the English decisions.”
(See: https://thenigerialawyer.com/personal-memorandum-submitted-to-nigerian-house-of-representatives-on-february-02-2018-on-the-planned-joint-committee-public-hearing-on-the-firdaus-hijab-controversy-by-sylvester-udemezue/).

▪️Permit me to humbly also refer to another comment of mine:
“Issues relating to whether or not a court of law [or tribunal, Panel or Committee] has jurisdiction are fundamental and lack of jurisdiction is fatal. See OTUKPO v. JOHN (2000) 8 NWLR (669) 507; BRONIK MOTORS v. WEMA BANK (1983)6 S.C. 158; see also OMOKHAFE v. Military Administrator (2005) 2 MJSC 173. In the Supreme Court case of MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 589, the Supreme Court had provided the following guide as to determining whether a court has jurisdiction. Hon Justice Vahe Bairamian (FJ) while delivering the lead judgment in that case stated as follows: ‘Put briefly, a court is competent when: (1) it Is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2)
the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and (3) the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” (See: “Does Nigeria’s Supreme Court Have Original Jurisdiction to Entertain the Case Filed by the Senate Over CJN Onoghen (A Legal Opinion by Sylvester Udemezue)” published on https://thenigerialawyer.com/rule-of-law-alert-does-nigerias-supreme-court-have-original-jurisdiction-to-entertain-the-case-filed-by-the-senate-over-cjn-onoghen-a-legal-opinion-by-sylvester-udemezue/). I think Point Number 1 above is relevant to the present circumstance regarding the BOSAN Committee.

▪️I SHALL BE BACK, on this, next week. Watch out for Part 2 thereof, as Nollywood would tell us. Lol ?. For now, please, udems, “off the mic; it’s okay!”

Respectfully,
Sylvester Udemezue
(Udems)
08/09/2020)