Re Farrvella Enterprises Ltd; Re Rose et Al
| Jurisdiction | Bahamas |
| Judge | Sawyer, J. |
| Judgment Date | 06 November 1991 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Equity Side No. 2 of 1990 |
| Date | 06 November 1991 |
Supreme Court
Sawyer, J.
Equity Side No. 2 of 1990
MR. Alphin O. Russell, for the petitioner in Eq. No. 2 of 1990
MR Richard Cooper, for the petitioner in Eq. No.44 of 1971
MR. Wayne Munro, for the petitioner in Eq. No. 12 of 1977
Administrative law - Natural justice — Allegation of bias made against trial judge — Actions consolidated in January 1991 — Trial judge acted as counsel in one action — Impartiality in issue — Application for trial judge to disqualify herself — Article 20(8) of the Constitution — In all the prevailing circumstances application granted.
At the trial of the above petitions, the hearings of which were ordered consolidated, after taking the oral and documentary evidence presented on behalf of the Petitioner in Eq. No. 2 of 1990 as well as the oral and documentary evidence of the witness, Mr. Elkin Collie, in Eq. No. 12 of 1977, Munroe applied for an adjournment which application was opposed by Mr. Russell.
After listening to what both counsel had to say for and against an adjournment, I asked Mr. Munroe what would be his position if his application for an adjournment was refused. Mr. Munroe then said that in such a case he was instructed to ask that I disqualify myself from any further hearing of the case because of certain questions put to the witness, Mr. Elkin Collie (who holds a power of Attorney for the Petitioner, Ms. Mercy Moss, in Eq. No. 12 of 1977) and who was the first witness called on her behalf.
The questions to which Mr. Munroe referred were concerned with another action which was brought on behalf of the treasurer to set aside a certificate of title which had been granted to one Morris Rolle in respect of some 93 acres of land at Carmichael road in which petition Mr. Collie had filed an adverse claim which was subsequently withdrawn at the hearing of the petition. In the action to set aside the certificate, it was alleged, inter alia, that fraud had been committed by various persons (apparently including Mr. Collie, in obtaining that certificate of title). There was no evidence that the court had in fact pronounced any judgment on any of those allegations. However, Mr. Munroe pointed out that in that case I was the counsel of record who had presumably settled the pleadings and in light of my questions and in light of my comment that the questions went to credibility, Mr. Collie felt that I was not completely objective in respect of his evidence. Of course, I should point out that neither. in that neither in that case nor in this case is it alleged that I have nor had any personal interest in the subject-matter of the action nor in its outcomes.
Further, his answers to those questions, were, to my knowledge, truthful and it seemed clear to me that as far as his evidence went he was also truthful when he said he had never visited Long Cay and that his evidence as to what farming crops were on the land was told to him by his aunt Ms. Mercy Moss — (to mention only a few matters that he was questioned about).
Nevertheless, as Mr. Collie, by his instructions to Mr. Munroe, clearly did not feel that the court in this case was impartial and, unless I can find on the evidence that he is not a reasonable man, then I must take it that there was at least some reason, at least, for suspicion that the rule of natural justice against bias may appear to an officious bystander, to have been breached. I refuse to find without evidence that Mr. Collie is not a reasonable man and since he apparently felt that way, then I must assume that other reasonable persons may also feel that way despite what I have written above. In those circumstances, I feel I ought to remove myself from further hearing of this petition.
There have been many decisions on the question of bias in relation to inferior tribunals but the locus classicus in respect to courts of law is the well-known case: of Dimes v. Grand Junction Canal (Proprietors of) (1852) 3 H.L.C. 759 in which it was held by the House of Lords that the decision of the Lord Chancellor Cottenham, who in a Chancery suit had made a number of decrees in favour of a canal company in which he was a shareholder to the extent of several thousand pounds must be set aside on account of his pecuniary interest in the Canal Company.
The learned authors of Wade and Bradley's, Constitutional and Administrative Law, 10th Edition ( “Constitutional and Administrative Law”) at p. 642 state the rule of natural justice against bias in this way:–
“The essence of a fair judicial decision is that it shall have been made by an impartial judge. The rule against bias laid down in R. v. Rand is that disqualification of a judge from acting in a particular case can arise in two ways: (a) where he has any direct pecuniary interest, however small, in the subject matter of inquiry.. “
As indicated above there is not even a suggestion that i have any pecuniary interest in any of the claims in these petitions nor in the subject-matter of the case of the land at Carmichael road.
The learned authors of Constitutional and Administrative Law continues at p. 642 — 6–13 thus:
“(b) where, apart from direct pecuniary interest, there is a real likelihood that the judge would have a bias in favour of one of the parties. Where bias is alleged, the reviewing court does not decide whether the decision was in fact biased, but whether in the circumstances a reasonable possibility of bias was established R. v. Sussex Justices, ex paste McCarthy is an extreme instance of the principle that justice should not only be done, but should manifestly be seen to be done.”
What Mr. Munroe was submitting, if I may paraphrase it here, is not that there was any bias in favour of any party or against any party but that there may appear to an officious bystander that there may have been something suspicious in the line of questions and the comment that they went to credibility.
In the case of R. v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256–
“The acting clerk to the justices was a member of a firm of solicitors who were to represent the plaintiff in civil proceedings as a result of a collision a in connection with which the applicant was summoned for a motoring offence. The acting clerk retired with the bench but was not asked to advise the justices on their decision to convict the applicant. Held that, as the clerk's firm was connected with the case in the civil action, he ought not to advise the justices in the criminal matter and therefore could not, had he been required to do so, properly have discharged his duties as clerk. The conviction was accordingly quashed, despite the fact that the clerk had actually taken no part in the decision to convict.”
(The above summary is copied from Constitutional and Administrative Law at p. 643).
The learned authors of Constitutional and Administrative Law continue at p. 643 of the work cited as follows:–
“To disqualify a person from acting in a judicial capacity, an unreasonable suspicion of bias is not enough, particularly when further facts could readily have been verified.”
The decision referred to an authority for that proposition is R. v. Camborne JJ. ex parte Pearce [1954] 415. In that case a county council had prosecuted a trader under the Food and Drugs Act, 1938. It was there decided that the fact that the justices' clerk was a member of the council but was not a member of the council's health committee which had in fact directed the prosecution, was not a ground of objection to the conviction.
At page 421 of the report, Slade, J., who delivered the judgment of the court, after dealing at length with a number of decisions on the point, said –
“In the judgment of this court the right test is that prescribed by Blackburn J., namely, that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) In the subject-matter of the proceeding, a real likelihood of bias must be shown. This court is further of opinion that a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.”
Having dealt with the ease with which the person making the allegation of bias in that case could have ascertained further facts obviating any question of bias, Slade J., continued at p. 422 –
“The frequency with which allegations of bias have come before the courts in recent times seems to indicate that Lord Hewart's reminder In the Sussex Justices case that it ‘is of ‘fundamental importance that justice ‘should not only be done, but should manifestly and undoubtedly be seen to be ‘done’ is being urged as a warrant for quashing convictions or invalidating orders upon quite unsubstantial grounds and, indeed, in some cases upon the flimsiest pretexts of bias. Whilst indorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, this court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done.”
The learned authors continue at p. 643 of the work cited in this way.–
“According to recent case-law, a, judicial decision must be set aside if there are grounds for a reasonable suspicion of bias on the part of one or more members of the tribunal, and it is not necessary that the reviewing court should decide that there was in fact a real likelihood of bias.” (Emphasis mine)— The case cited in support of that proposition is Metropolitan Properties Limited [1969] 1. Q.B. 577 –
“ Metropolitan Properties Ltd. v. Lannon [1968] 1...
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