Of Hon Justice Oyewole, the Osun Governorship Election Appeal Tribunal & the Nemo Judex Injunction


Then went out the news (true or false) of inclusion of Hon Justice Oyewole, a serving justice of the Nigerian Court of Appeal and an indigene of Osun State, Nigeria, in the Election Appeal Tribunal to hear and determine the appeal arising from the 2019 Governorship Election Petition in Osun State. Then, I remembered an arm of the twin pillars of natural justice applies here: nemo judex in causa sua (one ought to not be a judge in one`s own case). Then I decided to refer to the following cases of interest and leave lawyers to ruminate over the same.

  1. In 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.
  1. 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”.
  1. 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.
  1. 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.’”
  1. 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.
  1. The need to avoid likelihood of bias is better explained by Lord Heward, C.J. in R. vs. Sussex Justices, ex p. McCarthy (1924) 1 K.B. 256, 259: “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.”
  1. Says section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended: *”In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”*
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Sylvester UDEMEZUE



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