In 2019, a case came before the Magistrate’s court in Lagos state, Nigeria involving a micro-lending company looking to recover a loan from a borrower. A lawyer represented the micro-lender. The borrower represented himself because he could not afford to retain the services of a lawyer. The lawyer filed an application for summary judgment for the entire loan sum. The borrower responded through an affidavit and a written memorandum. He argued that judgment could not be summarily given to the micro-lender because he had repaid part of the loan.
However, all the material aspects of the borrower’s affidavit were arguments instead of facts. This was contrary to the law governing affidavit evidence. The microlender’s lawyer objected and asked the court to disregard all the material aspects of the affidavit. Without these material aspects, the borrower effectively had no response to the application for summary judgment. The magistrate intervened by informing the borrower that if he had to decide the microlender’s application, “based on the documents before me, the summary judgment application is more likely than not to succeed because your affidavit is not in compliance with the Evidence Act. So, I will grant you an adjournment to put your house in order.” The magistrate’s words aggrieved the self-represented borrower. He concluded that the magistrate and the opposing lawyer were against him. Therefore, he petitioned the head of the magisterial district to have the magistrate removed from the case.
In Canada, SRLs routinely reach out to us at the National Self-Represented Litigants Project (NSRLP) to express their concern that opposing lawyers, the courts, or both have a bias against them – sometimes, they even worry that the opposing counsel and the adjudicator are working together to conspire against them. The SRLs’ fears raise a challenging issue: How can judges and lawyers navigate a suspicion of bias raised by SRLs during litigation? I intend to think through some of the themes concerning this issue by drawing from my education and work experience in two common law jurisdictions: Nigeria and Canada.
The law and the apprehension of bias
The Canadian and Nigerian judicial systems are primarily modelled on the English common law system. Therefore, the principles underpinning bias in the two countries have a similar common law origin. The Lord Justices of the House of Lords stated in the case of Ranger v. Great Western Ry. Co., that a judge, “ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than the other.” This means that judges must stand outside the adversarial contest between the parties, lest the dust raised by the parties settle upon the judges’ heads.
Hence, judging requires specialized training and strong ethical grounding. In addition to having sound knowledge of the law, judges are also expected to be of the highest integrity and impeccable character. Their job requires them to conduct themselves within and outside the courtroom in a way that neither jeopardises their integrity nor casts doubts on their character. Their appointment process is painstakingly rigorous and stringent. So much so that after passing through this appointment process, the law assumes that every judge is impartial until the contrary is proven.
But unfortunately, we do not live in a judicial wonderland or an imaginary and fantastical realm of perfection. Judges will not always be as they ought to be merely by the design of our legal systems. The reality is that Judges are human beings. They bring their personalities and predispositions to their jobs like everyone else. So, the law recognizes that parties might be apprehensive of bias in certain instances. In such instances, the apprehensive party can either request the judge to remove (recuse) themself from the case, or the judge can remove themself from the case without being asked. Canadian law requires that a party alleging apprehension of bias must request the suspected judge recuse themself. Nigerian law is similar, however, it is very rare for a lawyer to allege bias against a judge in an open court in Nigeria. The conventional thing to do in such instances is to make a formal request – through a letter served on the offices of the judge and the opposing lawyer – to the head of the court for reassignment of the case. In both countries, the party alleging bias may have an opportunity to appeal.
In determining an application for recusal, the law has developed guideposts that judges must follow when a party raises suspicion of bias. The foundational guidepost is that apprehension of bias must be reasonable, because the zero-sum nature of most litigation may incite claims of partiality. The Supreme Court of Canada (SCC) identified the test for determining whether a suspicion of bias is “reasonable” in the case of Committee for Justice and Liberty v. National Energy Board. Accordingly, the question for determining whether an apprehension of bias is reasonable is, “… what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?” This test appears to be a simple bar for allegations. But the reverse has been proven to be true because recusal motions rarely succeed.
Exclusion and self-represented litigants’ apprehension of bias
SRLs in Canada and Nigeria have reported feeling excluded by stakeholders when interacting with the justice system. This exclusion manifests in different forms. For instance, the official language of the common law courts in Canada and Nigeria is English. Linguistic competency is a major determining factor for how well a party does in court. As in the larger society, SRLs have differing competency levels with this language. Complicating this further is that the language of the law is a jargonish one that is peculiar to the legal profession. Understandably, an SRL might feel excluded when an opposing lawyer and the judge converse and use this jargonish language.
Another reason for this exclusion is the disparity between the available resources to the party represented by a lawyer and the SRL. Added to these factors is the SRLs’ limited knowledge and understanding of the judicial process, particularly as compared to opposing counsel and judges. These factors can together manifest an apprehension of bias throughout the judicial process for SRLs. Where this apprehension is not addressed, it invariably leads to allegations of bias, recusal requests, and broader mistrust of the justice system.
The suspicion of bias strikes at the root of the integrity of the entire justice system. Therefore, “insiders” such as judges and lawyers should work to ensure that any apprehension of bias by “outsiders” is addressed. Below, I highlight a few suggestions on ways to do this.
Some takeaway points for judges and lawyers regarding SRLs’ apprehension of bias
As noted earlier, judges need to understand that SRLs feel excluded when interacting with the judicial system due to several factors, including the peculiar nature of the legal profession, technical rules of procedure, and jargonish legalese. Any mismanagement of this feeling of exclusion lends itself to SRLs’ suspicion of bias against them. Judges have a role in assuaging the fears and apprehensions of “outsiders” who engage with the system. Several decisions attest that judges are expected to adjudicate cases involving SRLs actively. Judges are expected to contextualize their role in such cases, and extend accommodation to SRLs that would otherwise not be available to a party represented by a lawyer. As suggested here by the NSRLP’s Executive Director, Dr. Jennifer Leitch, “changes to the procedural and evidentiary rules must be implemented by judges who take seriously their engagement with self-represented litigants as legitimate and deserving participants in the legal process.”
For instance, in the case of Canadian College of Business & Computers Inc. v. Ontario (Private Career Colleges), the Ontario Court of Appeal (ONCA) allowed Mr. Kannuthurai, who represented himself at the hearing stage, to raise the issue of bias for the first time on appeal to the ONCA. This was a clear departure from the general rule that bias must be raised at the hearing stage. The ONCA based this accommodation on several factors, principal amongst them being that Mr. Kannuthurai did not know that he was expected to have raised the issue at the hearing stage before the adjudicator he suspected of bias. This decision reflects the necessity for judges to accommodate the peculiarities of cases involving SRLs, and contextualise the rules of procedure to meet the requirements of justice in such cases. Contextualization by judges should be the norm rather than the exception when SRLs appear before the courts. SRLs are more likely to be less apprehensive of bias when they see that judges take due cognizance of the peculiarity of their circumstances, explain the process, and are willing to make necessary accommodations for them in the interest of fairness and justice.
Whenever SRLs raise suspicion of bias, adjudicators should consider taking steps to verify the veracity of such suspicion. Adjudicators should ask the SRLs for the specifics of their apprehension, and not dismiss it out-of-hand. When an adjudicator believes such apprehension is based on a misunderstanding of the law or the practice in court, the adjudicator can take the opportunity to understand and perhaps clarify the source of the SRLs’ concern. Where such apprehension is not based on rules of procedure or the law, adjudicators should endeavour to reflect and take cogent steps to address the issue.
When SRLs are involved in your cases, lawyers representing opposing parties should reduce the usage of legalese . Legal Advocacy collectives, such as the Advocates’ Society, can also reduce suspicion of bias through initiatives that prepare litigants, especially SRLs, for the courtroom. A leaf can be borrowed from initiatives such as the NSRLP’s School for Family Law Litigants. Specialized organizations such as the Advocates’ Society should consider creating a toolkit to assist self-reps in understanding notions of judicial impartiality and neutrality. They could consider creating a course on written advocacy for SRLs similar to their Annual Course on Written Advocacy for legal professionals. Together these types of initiatives can make the judicial system’s rules and practices more accessible to the public, thereby reducing the suspicion of SRLs that the justice system is biased.
A responsibility to the public
It is essential to emphasize that the suspicion of bias strikes at the root of the integrity of the entire justice system. Therefore, stakeholders have a role in assuaging the fears and apprehensions of “outsiders” who engage with the system. Taking this responsibility seriously can make the court, its rules, and practices more accessible to the public, thereby reducing the fears of bias.