BY CHIEF J.S.OKUTEPA, SAN.
The decision of Hon. Justice James Omotosho of the Federal High Court, Abuja, to recuse himself from the trial of Ali Bello and Dauda Sulaiman deserves careful and dispassionate scrutiny. The issue is not whether the learned Judge acted in good faith. Nothing in the reported facts suggests otherwise. The deeper question is whether the circumstances that arose concerning the alleged tampering with Exhibits N and O legally required the learned tria Judge to abandon a trial in which the Economic and Financial Crimes Commission (EFCC) had already called 17 witnesses and closed its case, leaving the defendants at the stage of their no-case submissions.
The reported facts of the case and the proceedings are extraordinary. The EFCC closed its case on 2 June 2026 after calling 17 witnesses. The defendants thereafter made no-case submissions. The alleged interference with the exhibits had, however, arisen months earlier, and the court itself had ordered an investigation into the conduct of its registrar and the alleged involvement of the second defendant. The learned trial Judge subsequently concluded that continuing with the case might create a perception of bias because Exhibit N was, in his assessment, a material piece of the prosecution’s case and might have to be evaluated in deciding whether the prosecution had established a prima facie case. His lordship therefore returned the case file to the Chief Judge for reassignment.
With profound respect, that decision may itself have created a greater procedural and prosecutorial difficulty for administration of justice than the problem it sought to cure. First the recusal is intended to protect impartial adjudication, not to restart a completed prosecution with the attendant problems.
The constitutional starting point is section 36(4) of the Constitution of the Federal Republic of Nigeria 1999, which guarantees a person charged with a criminal offence a fair hearing in public within a reasonable time by a court or tribunal constituted to secure independence and impartiality.
There is equally no dispute that justice must not only be done but must manifestly be seen to be done. Nigerian jurisprudence has consistently recognised the objective test of reasonable apprehension or real likelihood of bias. See, for example, Abiola v FRN (1995) 7 NWLR (Pt. 405) 1. But that principle does not mean that whenever an unusual incident occurs during a trial, as in this case, the judge must automatically withdraw. The question should be: Would a reasonable and properly informed observer conclude that the Judge could no longer fairly and impartially determine the case on the evidence before him? That is different from asking whether continuing to sit might generate criticism, speculation or public suspicion.
Indeed, the Nigerian judicial-conduct commentary recognises that recusal turns upon a reasonable apprehension of bias viewed objectively, not merely upon the possibility that somebody may speculate about the judge’s impartiality. Secondly the alleged tampering did not necessarily make the Judge a witness or an interested party. This is perhaps the most important point.The alleged tampering was not alleged to have been committed by Justice Omotosho. On the contrary, according to the reported account, the matter was brought to his attention; the court investigated it procedurally and ordered the relevant security agencies to investigate the registrar and the defendant.
It is submitted with respecr that the mere fact that the incident occurred in relation to an exhibit before the court does not, without more, establish that the Judge has acquired a personal interest in the outcome. Nor does the fact that the Judge might have to determine the evidential significance of Exhibit N necessarily amount to bias. That is precisely what trial judges are required to do. A judge routinely determines: whether evidence is admissible; whether evidence is credible;
what weight should be attached to evidence; whether evidence has been compromised; whether the prosecution has established a prima facie case; and whether a defendant has a case to answer. Those are judicial functions, not evidence of bias.
Thirdly and the most troubling aspect of the decision of his lordship to recus himsef from the case is the timing of the recusal.This is where the decision becomes particularly difficult to understand from a procedural standpoint.The alleged tampering became known in February 2026. The court ordered investigation.The EFCC subsequently continued its prosecution and ultimately called its 17th witness and closed its case on 2 June 2026. The defendants then filed their no-case submissions. If the alleged tampering had already raised a reasonable apprehension that the Judge could not fairly determine the case, why was that apprehension not considered sufficiently serious to require recusal before the prosecution closed its case?
The timing is significant. By the time the learned trial Judge recused himself, the court had already heard substantial evidence over a considerable period. The prosecution had finished presenting its case. The defendants had invoked the court’s jurisdiction to determine whether the prosecution had established a case requiring them to enter a defence. Recusal at that point potentially means that a substantial part of the judicial work already undertaken by the court becomes practically difficult to utilise without further procedural complications. That raises a fundamental question: If the Judge was sufficiently impartial to supervise the reception of the evidence, determine admissibility and allow the prosecution to close its case, what new fact occurring between the closure of the prosecution’s case and the no-case submission made him incapable of determining the no-case application?. That question deserves an answer.
Fourthly the integrity of an exhibit is not the same thing as the impartiality of the Judge. The alleged alteration or deletion of portions of Exhibits N and O is undoubtedly serious. Reports indicate that the court was informed that messages had been deleted from the mobile-phone evidence and that the court ordered investigation by the DSS and Police. But there are two distinct issues: First: whether the exhibits were tampered with and what legal consequences flow from that. Second: whether the Judge was thereby disqualified from continuing to adjudicate the case.
The first does not automatically establish the second. Indeed, the very fact that the integrity of the evidence was contested could make the Judge’s determination of its evidential value even more important. A trial judge is not disqualified merely because evidence before him has been challenged. The appropriate judicial response may instead have been to determine, on the evidence, what part of the exhibit remained reliable, what had been compromised, whether the alleged tampering affected the prosecution’s case, and what weight—if any—the court could safely attach to it.
Fifthly the no-case submission presented a defined legal question.The defendants were not asking Justice Omotosho to decide their ultimate guilt or innocence at that stage.They were asking the court to determine whether, after the prosecution had called 17 witnesses, the evidence disclosed a prima facie case requiring them to enter a defence. That is a distinct and limited judicial exercise.If Exhibit N was a “backbone” or material part of the prosecution’s case, as reported, that does not necessarily mean that the Judge was conflicted from determining its evidential value.
Indeed, the proper question could have been whether, excluding the compromised portions of the exhibit or treating them with appropriate caution, the remaining evidence of the 17 prosecution witnesses was sufficient to require the defendants to answer the charge.That is a judicial determination which could be made without any personal interest in the outcome.
Sixthly there is also a danger in allowing the perception of bias to become a substitute for the legal test. The learned Judge reasoned that if he gave Exhibit N substantial weight, some might think he was reacting to the alleged tampering, while if he gave it little or no weight, others might conclude that he was minimising or concealing the significance of the incident.
With respect, this reasoning creates an almost impossible standard for judicial adjudication. If a judge recuses himself whenever one possible interpretation of his decision might cause someone to question his impartiality, virtually any controversial evidential ruling could become a ground for recusal. Judicial decisions inevitably disappoint one side. A judge may admit evidence and be accused of favouring the prosecution. He may reject evidence and be accused of favouring the defence. He may believe a witness and be accused of bias; he may disbelieve the witness and face the same accusation. The law therefore requires something more substantial than the possibility of public misunderstanding. It requires real likelihood or reasonable apprehension of bias based on objective circumstances. Nigerian authorities have repeatedly emphasised that mere suspicion, conjecture or surmise is insufficient.
Seventhly the recusal may unintentionally reward the very misconduct that endangered the evidence.There is another institutional concern.If tampering with an exhibit leads to the trial judge withdrawing after the prosecution has closed its case, the system risks creating an undesirable precedent: misconduct concerning evidence may inadvertently derail an otherwise mature trial. This may be the trap set by those who tempered with the Exhibits.That cannot be the objective of the administration of criminal justice.
The answer to alleged interference with evidence should ordinarily be to identify the perpetrators, preserve the original evidence where possible, determine the evidential consequences and continue the judicial process in accordance with law.
Otherwise, a person who allegedly interferes with evidence could, however unintentionally, create procedural consequences capable of frustrating or resetting a trial.That would be deeply undesirable for the integrity of the criminal justice system. The issue of the Judge’s earlier forfeiture decision requires careful distinction.The learned trial Judge in the ruling under consideration referred to an earlier forfeiture of property in Gwarimpa which he said was connected with the defendants and the present matter. If that earlier proceeding involved substantially the same parties, subject matter or disputed facts, that circumstance deserves separate examination. It does not. Forfieture proceedings is not against the persons but the properties which are the subject of proceedings. The Defendants in the criminal trial were not parties to that proceedings.
But even here, a judge having previously adjudicated a related matter does not automatically establish bias. The legal question remains whether the previous proceeding created an objective and reasonable basis for apprehending that the Judge could not approach the present case with an open and impartial mind.
That determination must be based on the actual relationship between the two proceedings rather than merely their connection.
Conclusion
Justice Omotosho’s concern for the integrity of the judicial process is understandable and, in principle, commendable. A judge is entitled to protect public confidence in the administration of justice. But public confidence is not protected merely by avoiding every circumstance capable of generating suspicion. It is also protected by judges courageously deciding difficult questions according to law and by ensuring that procedural misconduct does not determine the fate of a trial. The central criticism of the recusal is therefore not that the learned Judge acted improperly or in bad faith. It is that the reported reasons for recusal raise a serious question whether the constitutional and jurisprudential threshold for disqualification had actually been reached, particularly after the EFCC had called 17 witnesses, closed its case, and the defendants had invoked the court’s jurisdiction to determine their no-case submissions.
The better course, subject to the precise contents of the record and the actual ruling, may have been for the learned Judge to confront the evidential problem judicially: determine the effect of the alleged tampering, assess the surviving evidence, decide the no-case submissions, and leave any proven misconduct by the registrar or other persons to be dealt with separately according to law. A court must protect the integrity of its evidence. But it must equally protect the integrity of the trial itself. The danger is that in attempting to ensure that justice is seen to be done, the recusal may have created another question: who now takes responsibility for the judicial determination of a case after the prosecution has completed its evidence before the original trial judge? That is a legitimate jurisprudential question which should not be obscured by the political identities of the parties or by the seriousness of the allegations. The defendants are entitled to a fair trial, and the State is equally entitled to have a criminal charge determined on the evidence and according to law. Section 36 of the Constitution protects both the integrity and impartiality of the process. But for the elevation of his lordship to the Court of Appeal, the prosecution may need to appeal the decision of his lordship. The interest of justice will be best served if the decision is appealed.
