Bilson v. Apaloo [1980] GLR 15

Material Facts:

The plaintiff is seeking a declaration to quash the decision of the court in Tuffour v. Attorney-General [1980] G.L.R. 637, S.C., in which judgement was given in favour of Tuffour.

Before the action could be heard, the plaintiff raised an objection to Justice Sowah and Justice Charles Crabbe sitting as part of the panel to hear the action. He primarily contends that these two justices formed part of the panel of the Court of Appeal in the case of Tuffour v. Attorney-General and that it is their judgement in that case that is now being sought to be quashed as a nullity. They cannot, thus, be part of the panel to hear the present action challenging their own decision in Tuffour v. Attorney General (supra).

Issue:

1. Whether or not Justice Sowah and Justice Crabbe should be withdrawn from hearing the substantive case of the plaintiff on the grounds that a person cannot be a judge in his own cause

Arguments of the Plaintiff:

1. There is a natural justice rule that prevents a person from being a judge in his own cause. The present action challenges the decision of Sowah and Crabbe in Tuffour v. Attorney General, and they will be sitting on their own cause if they are allowed to sit as judges in the present case.
2. That justice should not only be done but should manifestly and undoubtedly be seen to be done. Justice will not be seen to be done if Justice Sowah and Justice Crabbe, whose decision is sought to be quashed, form part of the judges that will entertain the appeal.
3. It cannot be said that the two judges should adjudicate because there will be no judge to replace them if they are disqualified. The executive can simply appoint fresh judges to adjudicate the matter.

Arguments of the Defendant:

1. That Justice Apaloo, in empanelling the Court in that case, was merely acting in fulfilment of articles 121(1)(c) and 4, which confer such powers on him.
2. Sometimes, the decisions of a court may be reviewed, and in those instances, the same judges who delivered the initial verdict also hear the review application.
3. Whether or not a real likelihood of bias arises in this case against the two named justices is essentially a question of fact, dependent on the facts of the case and not on the several legal matters canvassed by the plaintiff’s counsel.
4. The underlying principle of the rule against bias is that no man should be a judge in his own cause. However, it cannot be said that when the Chief Justice empanels a court, he thereby becomes a judge in his own cause. On the contrary, he merely exercises his administrative powers under the Constitution, 1979.
5. The fact that a trial judge is invited to sit with other judicial colleagues on appeal from his own decision has never been accepted at common law as a ground of legal bias on his part.
6. At common law, an exception to the rule against judges sitting in their own causes is that when no replacement can be found for the disqualified judge, they will be allowed to adjudicate their own cause ex necessitate (out of necessity).

Holding:

1. The justices cannot be withdrawn because doing so will prevent the Supreme Court from having a quorum. Under the doctrine of necessity, a well known exception to the nemo judex in causa sua rule, the two justices will be allowed to hear the plaintiff’s action.

Ratio Decidendi:

The objection raised by the plaintiff revolves around the rules of natural justice, which

…provide minimum standards of fair decision-making imposed by the common law on adjudicating bodies. The two principal rules are nemo judex in causa sua (nobody is to be a judge in his own cause) and audi alteram partem (hear the other side). The first rule aims at fair judicial decisions by impartial and disinterested judges and adjudicators; while the second rule ensures that no man is to be condemned without a fair hearing. Both rules are necessary if the public are to have confidence in the administration of justice.

The principle of nemo judex in causa sua, also known as the rule against judicial bias, arises in two ways:

(a) where the adjudicator is disqualified because he has any direct financial or proprietary interest in the subject-matter of the suit; and

(b) where there is a real likelihood that the adjudicator would have a bias in favour of one of the parties. This likelihood of bias may spring from such causes as membership of an organisation that is a party to the suit; or from partisanship expressed in extra-judicial pronouncements; or from active championing of the cause of a party; or from family relationship with a party or from other close relationship with a party, etc.

However, there are three exceptions where a person may be allowed to judge a case in which he has an interest or in which he is likely to be biased in favour of one party. The first exception is if the disputing parties waive their right to object to a judge with such an interest or disposition. The second exception is if an enactment permits the judge to sit on the case despite his interest or despite his likelihood of being biased. The third exception, known as the doctrine of necessity, is that:

an adjudicator, who may be otherwise disqualified, is nevertheless eligible and indeed obliged to sit if there is no other competent tribunal or if a quorum cannot be formed without him. The policy reason underlying this third exception is necessity: in other words, the common law considers it expedient that justice shall be dispensed even by a "disqualified" judge than that there should be a failure of justice or that the machinery of justice should grind to a halt in a particular case.

To illustrate this doctrine of necessity as an exception to the general rule that no one can be a judge in his cause, judges in Judges v. Attorney-General for Saskatchewan (1937) 35 T.L.R. 464 were called to determine whether the salaries of judges were liable to income tax. Although the judges had a pecuniary interest in the matter, they assumed jurisdiction. They, however, reached a decision adverse to themselves. On appeal, the Privy Council held that the judges were right to decide the case out of necessity because if they declined jurisdiction, there would be no one to assume jurisdiction.

In the present case, even if it is assumed that the two judges will be biased, the court will hold that the present case is one where natural justice has to yield to the doctrine of necessity. The present Supreme Court has a total of six judges, and per Article 115(2) of the Constitution, 1979 , there must be a minimum of five Justices of the Supreme Court before it can hear a case. If two of the Justices are disqualified, that leaves a total of four justices, which is one short of the stipulated mandatory minimum quorum of five under Article 115 (2). His lordship concluded that the two justices cannot be withdrawn from hearing the substantive action because doing so "would automatically result in a failure of justice and in the inability of the Supreme Court as duly constituted to hear and determine the plaintiff’s suit."