LEGAL PRINCIPLE: CONSTITUTIONAL LAW – Fair Hearing – Substantive Unfairness (Bias)
PRINCIPLE STATEMENT
Substantive unfairness arises where the Judge approaches his adjudicative function with a mind closed or a mind influenced by considerations other than the facts in evidence before him or facts on which the parties are in agreement, or is influenced by factors extraneous to his proper role as an umpire. The latter aspect of unfairness is often described as bias or real likelihood of bias. Bias in its ordinary meaning is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Kenon & Ors v. Tekam & Ors (2001) NLC-611995(SC) at p. 21; Paras B–D.
"Substantive unfairness arises where the Judge approaches his adjudicative function with a mind closed or a mind influenced by considerations other than the facts in evidence before him or facts on which the parties are in agreement, or is influenced by factors extraneous to his proper role as an umpire. The latter aspect of unfairness is often described as bias or real likelihood of bias. Bias in its ordinary meaning is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale."
EXPLANATION / SCOPE
Substantive unfairness occurs when the judge has a closed mind, is influenced by extraneous factors, or favours one side. Bias means opinion or feeling favouring one side, making an even scale unlikely. The judge must approach adjudication based solely on evidence and agreed facts. Extraneous influences include personal relationships, prior commitments, or prejudicial knowledge. The judge must act as an umpire—neutral and detached. The test is whether the judge can hold an even scale. Bias may be actual or apparent. The appearance of bias is sufficient for disqualification. The principle ensures judicial impartiality. The judge must recuse if there is a real likelihood of bias.
