LEGAL PRINCIPLE: CONSTITUTIONAL LAW – Fair Hearing – Bias – Test for Determining Real Likelihood of Bias
PRINCIPLE STATEMENT
The court does not look at the mind of the Justice himself or 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 (the Judge) would, or did, in fact 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.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC, adopting the statement of Denning, M.R. in Metropolitan Properties Ltd. v. Lannon (1968) 3 All E.R. 304, in Kenon & Ors v. Tekam & Ors (2001) NLC-611995(SC) at p. 14; Paras A–C.
"The court does not look at the mind of the Justice himself or 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 (the Judge) would, or did, in fact 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."
EXPLANATION / SCOPE
The test for bias is objective: would right-minded persons think there is a real likelihood of bias? The court does not examine the judge’s actual state of mind. The impression given to others matters, not the judge’s actual impartiality. Even if the judge is impartial, the decision cannot stand if right-minded persons would perceive bias. The test protects the appearance of justice, not just its reality. The reasonable observer is fair-minded and informed. The threshold is real likelihood, not mere suspicion. The principle ensures public confidence in the judiciary. The court applies the test to the circumstances of each case. The appearance of bias is as damaging as actual bias.
