By Ikechukwu Nnochiri & Henry Ojelu

The decision of Justice Binta Nyako of the Federal High Court in Abuja to continue presiding over the trial of the detained leader of the proscribed Indigenous People of Biafra, IPOB, Nnamdi Kanu, despite recusing herself from the case earlier, has elicited varied reactions from legal practitioners in the country.

It will be recalled that Kanu, who is facing a seven-count treasonable felony charge the Federal Government initiated against him, had in the open court, challenged the legal propriety of allowing Justice Nyako to conduct his trial.

According to the embattled IPOB leader, the judge, having issued an enrolled order with respect to a ruling she delivered on November 24, 2024, to recuse herself from the trial, has become functus-officio (lost the legal footing) in his case.

Addressing the court, Kanu insisted that a directive of the Chief Judge of the Federal High Court, Justice John Tsoho, which returned his case file back to Justice Nyako, was inferior to the enrolled order. 

He argued that only the Court of Appeal could override the subsisting recusal order. 

The drama that trailed Kanu’s outburst from the dock, led to the adjournment of his case sine-die (indefinitely).

Meanwhile, while some Senior Advocates of Nigeria declined to offer their opinion on the issue which they described as highly sensitive, those that spoke to Vanguard, gave conflicting views.

According to a ranking SAN, Mr. Mohammed Abeny, it was possible for the trial judge to return to the case after her earlier recusal order.

“Recuse is a situation where a judge withdraws from presiding over a case, either on his own motion or at the request of a party or parties in the case.

“Whichever way, it is unusual for a judge who has recused himself from a case to return to the case unless for a compelling reason,” he added.

However, a frontline human rights lawyer, Mr. Jideobi Johnmary, argued that it was not legally proper for Justice Nyako to continue presiding over the case.

He said: “It is good to begin from the beginning by referencing Section 287(3) of the amended 1999 Constitution providing in the following lucid language:

“The decisions of the Federal High Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other courts, respectively.

“There is no doubt that on September 24, 2024, the Federal High Court of Nigeria [Coram Nyako, J.] entered a Ruling recusing herself from further trying Mazi Nnamdi Kanu and returning the case file to the Chief Judge of the Federal High Court following the application made to the Court by Mazi Nnamdi Kanu. 

“According to the Constitution, decisions of Courts include; ‘Rulings’, ‘Judgments, ‘Decrees’. 

“So, rightly, the Ruling entered by the Federal High Court on September24, 2024 falls within the compass of decisions contemplated by the Constitution that ought to be enforced by all authorities and persons who include both the Chief Judge of the Federal High Court, the very Judge that entered the Ruling and the Prosecution (which is the Nigerian State). 

“Refusal of the Honourable  Chief Judge of the Federal High Court to enforce the decision of the Federal High Court handed down on September 24, 2024 by issuing an administrative directive to undermine same, should worry all those who subscribe to constitutional democracy.

“The Hon. Justice B.F.M. Nyako has lost the jurisdiction to continue trying the charge brought against Mazi Nnamdi Kanu by the Federal Government of Nigeria. She cannot sit on appeal over her own decision. 

“It is only the Court of Appeal that possesses the constitutional vires to review and either upturn or uphold the decision of the Federal High Court entered on the 24th of September, 2024. This is elementary law. 

“It is most unfortunate that the Chief Judge of the Federal High Court could issue an administrative directive to the Honourable Justice B.F.M. Nyako that purports to upset a [judicial] decision entered by the Federal High Court which has neither been upturned on appeal nor stayed but rather still subsisting. 

“There is no constitutional warrant for the course taken by the Honourable Chief Judge of the Federal High Court.

“The Honourable Chief Judge of the Federal High Court is called upon to withdraw the administrative directive which constitutes a brazen assault particularly on Section 287(3) of the 1999 Constitution (as amended) and comply with the terms of the Order entered on 24th September, 2024. 

“By his action, he has arrogated to himself powers he constitutionally does not possess.”

While disagreeing with Johnmary’s position, another human rights lawyer, Chief Nkereuwem Udofia Akpan, said: “You must look at the Federal High Court establishment Act and the Rules governing the Practice and Procedure in the court, for this purpose. 

“A community reading of the aforementioned will show that it is within the statutory and jurisdictional competence of the Honourable Chief Judge of the Federal High Court to assign cases to all judges of the Federal High Court. 

“Now a judge may for good cause shown, recuse himself or herself from handling a matter and return the file to the Chief judge to be reassigned to another judge. 

“It is critical for the lay public to understand that it is within the absolute discretion of the Chief judge of the Federal High Court to accept or reject the reasons advanced by the judge who wishes to be so recused. 

“If in the opinion of the Chief judge of the Federal High Court, the reasons advanced by the judge wishing to be recused, are not cogent, verifiable or otherwise untenable, then, the Chief judge may send the file back to the judge concerned to continue the matter. 

“This later decision by the Chief judge, sending the file back is final and cannot be interfered with by any other authority or power.

“There is no provision in any law for the time being in force that gives the concerned judge the option of returning the file for a second time. 

“On the issue of whether or not the accused person can pick and choose the venue of his trial or how the court should be constituted or the panel that will hear his appeal, in the case of Appeal, the answer is that an accused person has no such rights in any law, convention and or statute.

“What the constitution provides for, as a fundamental right, in Chapter IV, is that the accused person, who is hauled before a court or other tribunal must be given a fair hearing and that the court, panel or tribunal trying him or her, must be constituted in such a manner that secures its independence and impartiality.

“Let me add this perhaps and with the greatest respect to my learned friends in the Defence Team of Nnamdi Kanu, some of whom I have known personally, that they do not seem to be in control of the proceedings. 

“It seems to me that they dropped the ball by pandering to Kanu and allowing some of these controversies under their watch. The entire drama of the Kanu trial and the approach adopted by his legal team is truly confusing to me as a practitioner and if the counsel were fully in charge of the matter,  that case  would have been concluded years ago.   

“However, it would be impossible for some of us to be counsel in a matter where the client is commanding us to ‘sit down’ in open court. 

“Let us just say we might be too proud to condone such from clients,   no matter how highly placed or how much is being paid as professional fees. Our practice is governed by the Rules of Professional Conduct (RPC) and one of the cardinal Rules of professional conduct is that a lawyer must be in Control of proceedings and not lower the prestige of the Bar for any reason, including financial gain.

“Secondly, the lawyer while representing his client, is an officer of court and Minister in the temple of justice and not a servant of the accused person. I will like to leave it at that,” he added.

Legal scholar, Dr. Lemme Ughegbe emphasized that judicial impartiality is a fundamental tenet of justice, citing the legal maxim nemo judex in causa sua—no one should be a judge in their own case.

Ughegbe referenced key cases affirming this principle: Dime v. Proprietors of Grand Junction Canal (1852) – Judges must recuse themselves if they have a direct or indirect interest in a case.

Metropolitan Properties Co Ltd v. Lannon (1969) – The test for bias is whether a reasonable observer would perceive a real likelihood of bias. Ameh v. Sosanya (2010) – Even the perception of bias can invalidate judicial proceedings.

Ughegbe argued that Justice Nyako’s continued involvement violates due process. He stressed that an administrative letter from the Chief Judge instructing her to continue does not override a valid court order. The only lawful means to set aside a recusal order is through an appeal to a superior court.

He further warned that the insistence on keeping Justice Nyako on the case raises concerns about political interference and could undermine public trust in the judiciary.

Legal analyst, Evans Ufeli explained that recusal ensures fairness in judicial proceedings. A judge should step down if: They have a personal interest in the case, have prior involvement that could affect their objectivity or if there is a reasonable perception of bias.

He emphasized that continuing to preside after recusal undermines judicial integrity and could lead to allegations of bias.

Ufeli referenced past Nigerian cases reinforcing judicial impartiality: Afolabi v. Abidoye (2001) – Judges must avoid situations where bias could be perceived. Oni v. Obasanjo (2005) – Recusal is necessary when a judge has previously expressed views related to the case. SCN v. Umana (2016) – A judge must disqualify themselves if concerns about impartiality arise.

Given the political sensitivity of Kanu’s case, Ufeli stressed that judicial impartiality is crucial to maintaining public confidence in the legal system.

Executive Director of the Nigerian Law Society, Tonye Clinton, noted that Nigeria lacks explicit legal provisions on recusal procedures for cases like Kanu’s.

He argued that this legal gap could be addressed through litigation or legislative amendments. Clinton referenced a 2023 Federal High Court ruling that called for an amendment to Section 438 of the Administration of Criminal Justice Act (ACJA) to align with constitutional due process guarantees.

He stressed that legal reforms are necessary to eliminate ambiguity in recusal cases and ensure consistency in judicial practice.