My friend Obiorah Polo Okeke sent me this picture and a message this morning
“Can a judge recuse herself and later come back to handle the case?”

LEGAL OPINION ON JUDICIAL RECUSAL AND REINSTATEMENT: THE NNAMDI KANU CASE

Introduction

The principle of judicial recusal is fundamental to the right to a fair trial and the independence of the judiciary. Once a judge recuses themselves from a matter, they are deemed to have voluntarily stepped aside due to concerns of bias, conflict of interest, or other legitimate reasons. The recent controversy surrounding the recusal of Justice Binta Nyako in the case of Federal Republic of Nigeria v. Nnamdi Kanu raises pertinent legal questions: Can a judge who has recused themselves unilaterally return to hear the same matter without an express order reinstating them? This opinion examines the legal framework surrounding judicial recusal and whether Justice Nyako’s continued involvement is tenable under Nigerian law.

Legal Framework on Recusal

Judicial recusal is anchored in the constitutional right to a fair hearing as provided under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This provision guarantees that litigants must have their matters adjudicated by an impartial tribunal.

The Supreme Court of Nigeria has held in several cases that a judge who has demonstrated bias or is perceived to be biased ought to recuse themselves. The locus classicus on judicial bias in Nigeria is Deduwa v. Okorodudu (1976) 10 SC 329, where the court emphasized that justice must not only be done but must be seen to be done. Similarly, in Metropolitan Properties Co. Ltd v. Lannon (1969) 1 QB 577, Lord Denning MR stated that “The test for bias is whether a fair-minded observer would conclude that there was a real possibility of bias.”

Once a judge voluntarily recuses themselves, the legal consequence is their automatic disqualification from further proceedings in the matter. The decision to recuse is akin to a decision on jurisdiction—once made, it cannot be reversed arbitrarily.

Can a Judge Who Has Recused Themselves Return to Hear the Case?

The established legal position is that a judge who has recused themselves cannot unilaterally return to the case unless a competent authority—such as the Chief Judge or an appellate court—sets aside the recusal through a formal order. The principle was reinforced in R v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119, where the House of Lords held that a judge who has recused themselves is functus officio in that case.

In the Nigerian case of Okoduwa v. State (1988) NWLR (Pt. 76) 333, the Supreme Court held that a judge’s withdrawal from a case due to allegations of bias renders any subsequent involvement in the same case improper. Similarly, in Rashidi v. Ministry of Health (1990) 2 NWLR (Pt. 133) 324, the court emphasized that judicial integrity requires that recusal decisions be final unless properly reviewed.

Thus, if Justice Nyako recused herself from Nnamdi Kanu’s case, her continued involvement—absent a formal order setting aside the recusal—raises serious questions about procedural regularity and judicial impartiality.

Implications of Justice Nyako’s Continued Involvement

1. Potential Violation of Nnamdi Kanu’s Right to a Fair Trial
Given that recusal is based on perceived bias, allowing a judge to return to the case without a proper legal process could undermine the legitimacy of the trial and violate Kanu’s rights under Section 36 of the Constitution.

2. Grounds for Appeal and Possible Mistrial
If Justice Nyako proceeds to hear the case despite her prior recusal, it could constitute a procedural irregularity that may provide grounds for appeal. The appellate court could declare the proceedings a nullity, as held in State v. Onagoruwa (1992) NWLR (Pt. 221) 33, where bias vitiated the entire trial.

3. Public Perception and Judicial Integrity
The judiciary’s integrity is at stake. A judge’s unilateral return after recusal can create a public perception of partiality, eroding confidence in the courts. As stated in Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12, justice must not only be done but seen to be done.

In general, it can be said that the principle of judicial recusal is not a mere formality; it is a safeguard against bias and ensures the independence of the judiciary. Once a judge recuses themselves, they become functus officio in the matter unless a superior court reinstates them through a formal order.

Justice Binta Nyako’s continued involvement in Federal Republic of Nigeria v. Nnamdi Kanu raises serious legal concerns. Without a clear and legally sound process setting aside her recusal, her participation may amount to a violation of the right to a fair trial, grounds for appeal, and a potential miscarriage of justice.

The appropriate step would be for the Chief Judge of the Federal High Court or the appellate court to issue a formal ruling clarifying her status in the case. Until such an order is made, her continued adjudication may be challenged as improper.

By adhering to established legal principles, the courts can ensure justice is served in a manner that upholds public confidence and the rule of law.

Emezie Ndeokwelu, KSM.
Spectra Juris
11th February 2025