Abdul Hasheeb v. Mendis Perera and others
MENDIS PERERA AND OTHERS
COURT OF APPEAL
TAMBIAH, J. AND G.P.S. DE SILVA, J.
CA APPLICATION NO. 1092/81P.C. GAMPAHA CASE NO. 385306 APRIL 1982, 14 JUNE 1982, 6, 7, 8 JULY 1982AND 10, 13 AND 14 SEPTEMBER 1982
Judicature, Act No. 2 of 1978, SS. 46 & 47 ■ Application for transfer of case fromone Primary Court to another – Failure to give notice in writing of the application tothe Attorney-General as required by s. 47(3) of the Judicature Act – Bias – Expediencyas ground for transfer of case.
It is section 46 which lays down the grounds of transfer applicable to every kind ofproceeding, be it criminal or civil, quasi civil or quasi criminal. Subsections (1) and (2)of section 47 are confined to a prosecution.
The*transfer contemplated in section 47(3) must be restricted to a transfer of aprosecution. An information filed under section 66 of the Primary Courts Procedure
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Act is clearly not a prosecution. Hence the petitioners were not required to give noticeof the application to the Attorney-General.
The tests for diqualifylng bias are –
the test of real likelihood of bias;
the test of reasonable suspicion of bias
On the application of either test, bias on the part of the Judge has not beenestablished.
The expression 'expedient" in section 46 means advisable in the interests of justice.As there were three connected cases pending, it would promote the ends of justiceif the case is transferred to another Primary Court.
Cases referred to:
In re Sidie (1948)2 All ER 995, 998
Butchery. Poole Corporation (1942)2 All ER 572, 579
Rex v. Sussex Justices, ex parte Me Carthy (1924)1 KB 256
R v. Rand (1866) LR 1 Q B 230
R v. Camborne Justices, ex parte Pearce (1954)2 All ER 850
Metroplitan Properties Co. (F.G.C.) Ltd. v. London (1968)3 All ER 304
Regina v. Colchester Stipendiary Magisrate, ex parte Beck (1972)2 WLR 637
In re Ratnagopal 70 NLR 409, 435
APPLICATION for transfer of case from Gampaha Primary Court to another PrimaryCourt.
H. L. de Silva, S. A. with Sunil Cooray for respondent – petitioners.
V. S. A. Pullenayagam with Faiz Mustapha, K. Balapatabendi and Miss. DeepaliWjesundera for 1st and 4th respondents.
Dr. Colvin R. de Silva with Faiz Mustapha, S. L. Gunasekera, A. Arunatilake deSilva and K. Balapatabendi for 2nd and 3rd Respondents.
Suri Ratnapala, State Counsel for Attorney-General.
Cur. adv. vult.
07 October, 1982
G. P. S. DE SILVA, J.
This is an application for the transfer of a case pending in thePrimary Court of Gampaha to another Primary Court. The applicationis made under sections 46 and 47 of the Judicature Act, No. 2 of1978. Counsel for the respondents, Dr. de Silva and Mr.Pullenayagam, raised a preliminary objection to the application onthe ground that the petitioners have failed to give notice in writing
CA Abdul Hasheeb v. Mendis Perera and others (G.P.S. De Silva, J.)245
of the application to the Attorney-General in terms of section 47(3)of the Act. Admittedly, the respondents-petitioners (hereinafter referredto as the petitioners) have failed to give notice of this application tothe Attorney-General and it was the contention of Counsel that suchnotice was an imperative requirement under the law. In the absenceof such notice, it was the submission of Counsel, that the applicationhad to fail. Both, Dr. de Silva and Mr. Pullenayagam, relied verystrongly on the ordinary and natural meaning of the words ofsubsection (3) of section 47 as the basis of the preliminary objection.Section 47(3) reads as follows:-
"Every person making an application for a transfer under thisChapter, shall give to the Attorney-General and also to theaccused or complainant as the case may be, notice in writingof such application together with a copy of the grounds on whichit is made. No order shall be made on the merits of theapplication unless and until at least 48 hours have elapsedbetween the receipt of such notice and the hearing of suchapplication. Every accused person making an application for atransfer under the preceeding section may be required by theCourt of Appeal, in its discretion, to execute a bond with orwithout surety conditioned that he will, if convicted, pay the costof the presecution."
Counsel for the respondents laid much stress on the generality ofthe words "every person making an application for a transfer underthis Chapter . . It was the submission of Counsel that section47(3) covers every person making an application and also everyapplication made under this Chapter. Further, it was the submissionof Dr. de Silva that the words "and also to the accused orcomplainant as the case may be", do not in any way restrict orqualify the generality of the words, "every person making anapplication for a transfer under this Chapter". Counsel relied stronglyon the literal rule of construction which, it was submitted, is theprimary rule of construction. Mr. Pullenayagam urged that plain wordsmust be given their plain meaning unless such meaning leads to amanifest absurdity. Counsel argued that there was nothing absurdin giving notice to the Attorney-Genera! of an application for atransfer of a civil case, for, to use Mr. Pullenayagam's own words,"the Attorney-General has been the constant and unfailing friend ofthe court." Mr. Pullenayagam suggested a possible reason for giving
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notice to the Attorney-General. He submitted that applications fortransfer of cases often alleged bias against judicial officers who arenot represented before court. It was suggested that the point of viewof the judicial officer could be best presented to court through theAttorney-General and accordingly there is nothing absurd in givingnotice of a transfer application even in respect of a civil matter tothe Attorney-General. There has been a deliberate change in the law,and Counsel for the respondents strenuously contended that thelegislature must be presumed to have said what it meant and meantwhat it said. The law having been changed from what it was underthe Courts Ordinance and the Administration of Justice Law, No. 44of 1973, Dr. de Silva submitted that no court is entitled to "negate"legislation through a process of interpretation.
State Counsel, Mr. Ratnapala, who appeared on behalf of theAttorney-General as amicus curiae, supported the submissions madeby Dr. de Silva and Mr. Pullenayagam, that plain words should begiven their plain meaning and that it is the duty of the court to givemaximum effect to the language used in the section. State Counselcontended that one consequence of the literal rule is that widelanguage should be given a wide construction. State Counsel alsosubmitted that all that section 47(3) requires is to give notice to theAttorney-General find not to make him a respondent.
This is a convenient point to consider the parallel provisions in therepealed Courts Ordinance and the Administration of Justice Law,No. 44 of 1973. Section 42 of the Courts Ordinance and section 44of the Administration of Justice Law contained provisions which arevery similar to section 46 of the present Judicature Act. Theprovisions which are parallel to section 47(1) and 47(2) of theJudicature Act were found in section 43 of the Courts Ordinance andsection 45(1) and 45(2) of the Administration of Justice Law. It issection 44 of the Courts Ordinance and section 43(3) of theAdministration of Justice Law which speak of an "accused person"giving notice to the Attorney-General. On the other hand, section47(3) of the judicature Act speaks of "every person making anapplication for a transfer" being required to give notice to theAttorney-General. Thus, prima facie, there appears to be a departurefrom the provision contained in section 44 of the Courts Ordinanceand section 45(3) of the Administration of Justice Law.
CA Abdul Hasheeb v. Mendis Perera and others (G.P.S. De Silva, J.)247
It seems to me that the question that arises for consideration is,whether section 47(3) of the Judicature Act is confined toprosecutions or whether it is applicable to all proceedings, civil andcriminal. This question cannot be answered by examining section47(3) in isolation. Sections 46 and 47 have to be read together inorder to ascertain the true meaning of section 47(3).
Although section 17(3) speaks of "under this Chapter" there are onlytwo sections (sections 46 and 47) in Chapter VIII, which refer to thepower to transfer cases. It is significant that section 46(1) which setsout the subject matter of the transfer, uses the expression “anyaction, prosecution, proceeding of matter" – – an expression of theutmost generality. The words, "proceeding or matter", signify theresiduary class which may not fall within "action or prosecution". . Thisexpression occurs thrice in subsection (1) of section 46 and alsooccurs once in each of the subsections (2) and (3). It is alsoimportant to observe that it is section 46(1) which spells out thegrounds of transfer applicable to "any action, prosecution, proceedingor matter". In other words, it is section 46 which lays down thegrounds of transfer applicable to every kind of proceeding, be itcriminal or civil, quasi civil or quasi criminal. Therefore, having regardto the subject matter and the amplitude of the language used, I amof the view that it is section 46 which is the general provision relatingto the transfer of every kind of proceeding.
Turning now to section 47, the absence of the expression "action,prosecution, proceeding or matter" or of an expression similar to it,is significant. The difference between the two sections is alsoapparent on an examination of the structure of section 47. Section47(1) is limited to "any inquiry into or trial of any criminal offence"and deals with the Attorney-General's power of transfer by the issueof a fiat. Section 47(2) speaks of the steps that may be taken by“any person aggrieved by a transfer made" under section 47(1). Thus,it is clear that subsections (1) and (2) of section 47 are confined toa prosecution.
There follows subsection (3) of section 47, which begins with the verywide words – "Every person making an application for a transferunder this Chapter. . .Mr. H. L. de Silva, Counsel for the petitioners,submitted that the meaning of this collection of words is uncertain.Mr. de Silva posed the question, does it refer to every type ofapplication made under "this Chapter" or to an application made in
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the context of subsection (3) of section 47? In other words, does itrefer to a transfer of a "prosecution" or action proceeding or matter"?
Mr. de Silva relied strongly on the words that follow — "and also tothe accused or complainant as the case may be", which, in hissubmission, pointed unmistakenly only to a prosecution. Mr. de Silvaargued that if section 47(3) is a general provision which applies alsoto a civil action, then the words, "accused or complainant" will notbe meaningful since there is no complainant or accused in a civilproceeding. Moreover, if section 47(2) cpntemplates a civil action,then there is no requirement to give notice to the opposing party,the defendant or the plaintiff as the case may be. Accordingly, Mr.de Silva urged that section 47(3) contemplates a case where theparties on record are the accused and the complainant.
What is more, the giving of notice to the Attorney-General in respectof a transfer of a prosecution is understandable, having regard .tothe powers conferred on the Attorney-General by the Code ofCriminal Procedure Act, No. 15 of 1979. The Attorney-General hasa legitimate interest in receiving notice where there is a deviationfrom the place of inquiry of trial prescribed in the Code or CriminalProcedure Act.
On a consideration of the submissions outlined above, I am of theview that the words, "under this Chapter" in section 17(3), shouldbe given a meaning which is consistent with the rest of thesubsection and which harmonises best with the structure of section47 read as a whole. The phrase, "under this Chapter" takes its colourand content from the words that follow – “and also to the accusedor complainant as the case may be“. It is necessary to emphasizethat section 47(3) contemplates the double requirement of notice tothe Attorney-General as well as notice to the accused or complainant,as the case may be. As stated by Lord Greene M.R. in re Sidie (1)- "The first thing one has to do, 1 venture to think, in construingwords in a section of an Act of Parliament is not to take these wordsin vacuo, so to speak, and attribute to them what is sometimes calledtheir natural or ordinary meaning. Few words in the English languagehave a natural or ordinary meaning in the sense that they must beso read that their meaning is entirely independent of their context.The method of construing statutes that I prefer is not to takeparticular words and attribute to them a sort of prima facie meaning
CAAbdul Hasheeb v. Mendis Perera and others (G.P.S. De Silva, J.)249
which you may have to displace or modify. It is to read the statuteas a whole and ask oneself the question: 'In this state, in thiscontext, relating to this subject-matter, what is the true meaning ofthat word'?“ Again, in the words of du Parcq, L.J. in Butcher Vs.Poole Corporation (2),
"It is of course impossible to construe particular words in an
Act of Parliament without reference to their context and to the
whole tenor of the Act.”
Thus, in giving a contextual interpretation to section 47(3), there isno departure from the well-recognised canons of statutoryinterpretation. Having regard to the immediate context in subsection47(3), the structure of section 47, and considering the fact thatsection 46 is the general provision which is applicable to every typeof proceeding, I am of the view that the "transfer" contemplated insection 47(3), must be restricted to a transfer of a prosecution. Aninformation filed under section 66 of the Primary Courts' ProcedureAct, is clearly not a prosecution. I, therefore, hold that the petitionerswere not required to give notice of this application to the Attorney-General. The preliminary objection is accordingly overruled.
I shall now proceed to consider the application on its merits and thebasis upon which the petitioners seek to have the case transferredfrom the Primary Court of Gampaha to another Primary Court. Mr.
L. de Silva, at the outset of his submissions, stated that the groundupon which he relies is section 46(1 )(a) of the Judicature Act but,in the course of his reply to the submissions of Counsel for therespondents, he relied on an alternative ground as well, namely,section 46(1) (d).
The 1st to the 6th petitioners are members of one family. The 1stpetitioner is the husband of the 2nd petitioner, the 3rd and 5thpetitioners are the sons of the 1st and 2nd petitioners while the 4thpetitioner is the wife of the 3rd petitioner and the 6th petitioner isthe wife of the 5th petitioner. The land in respect of which aninformation was filed in terms of section 66(1) of the Primary CourtsProcedure Act, No. 44 of 1979, is called "Werellawatta", situated atYakkala in Gampaha. The case for the respondents is that this landoriginally belonged to one Mohideen who died in 1973 leaving a lastwill in terms of which his widow (4th respondent) and his two
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daughters became entitled to the land. The widow and the daughtersof Mohideen were negotiating to sell the property from aboutSeptember 197S. The land was surveyed in'October 1979 and thesurveyor, in his affidavit, states that he was able to enter the landonly with the assistance of the Police. Ultimately the land was soldon 31st March, 1981 by deed No. 4413, attested by Mr. HermanJ.C. Perera, to A.N. Munasinghe and D. Munasinghe (hereinafterreferred to as the Munasinghe brothers) who are the 2nd and 3rdrespondents. Thereafter, on 3rd April, 1981, the Munasinghe brotherssought to take possession of the land but they were prevented fromdoing so by the 1st petitioner and his sons. This was reported toHasheeb (1st respondent) who is the brother of the deceasedMohideen and who had assisted in the negotiations to sell theproperty to the Munasinghe brothers. According to the respondents,the petitioners have no right, title or interest in the land and the 1stpetitioners have no right, title or interest in the land and the 1stpetitioner was merely the conductor or watcher who had beenemployed by the deceased Mohideen. Hasheeb made a complaintto the Gampaha Police on 7th June, 1981. Sergeant Austin of theGampaha Police, conducted inquiries into the complaint of Hasheeband on 28th August, 1981, filed the information under section 66(1)of the Primary Courts Procedure Act, No. 44 of 1979, which is thesubject matter of the present application for transfer. The petitioners,on the other hand, claim title to the land by right of prescription,inheritance and purchase, and they assert that they have been inpossession of the land from the last several years. Their claim isfounded partly on certain recent deeds of transfer.
Sergeant Austin of the Gampaha Police, has conducted investigationsinto the claim of title put forward by the petitioners and a prosecutionhas been instituted (Case No. 14595/B of Magistrate's Court ofGampaha) against the 1st petitioner and members of his family,alleging a conspiracy to forge the deeds relied on by the petitioners.
It is to be noted that one of the accused in this prosecution forconspiracy to commit forgery is a daughter-in-law of the 1st petitionernamed Punyawaihie Jayakody.
At this stage, it is relevant to observe that while PunyawathieJayakody is a party to the information filed under section 66 of thePrimary Courts Procedure Act and an accused in the criminal casereferred to above, she is also the complainant in a private plaint she
CA Abdul Hasheeb v. Mendis Perera and others (G.P.S. De Silva, J.)251
filed in the Magistrate’s Court of Gampaha, accusing Sergeant Austinof the Gampaha Police of using criminal force on her with intent tooutrage her modesty, an offence punishable under section 345 ofthe Penal Code. These criminal proceedings (Case No. 3832 M.C.Gampaha) were instituted on 28th August, 1981, which was the samedate on which Sergeant Austin filed the information under section66(1) of the Primary Courts Procedure Act. The allegation is thatSergeant Austin used criminal force on Punyawathie Jayakody in thecourse of his investigations into the complaint of Hasheeb that thepetitioners were refusing to hand over possession of the land to theMunasinghe brothers.
Thus, it is seen that there were three connected cases, two in theMagistrate's Court of Gampaha (M.C. Gampaha Case Nos. 14595/B and 3832) and one in the Primary Court of Gampaha, pendingbefore the same Judge, since the Magistrate of Gampaha functionsalso as the Primary Court Judge of Gampaha — It is in this contextthat the instant application for the transfer of the case pending inthe Primary Court of Gampaha to another Primary Court has beenmade.
The petitioners, in their application for a transfer of the case, do notspecifically allege that they will be denied a fair and impartial trial.Mr. H.L. de Silva submitted that, having regard to the material placedbefore this court, he was inviting the court to draw the inference thatthere was either a "real likelihood of bias” or "a reasonable suspicionof bias" on the part of the Judge against the petitioners. The mattersset out in the petition as indicative of bias are:-
that the Judge attended the wedding of Munasinghe's son(paragraph 6 of the petition);
that when the private plaint was filed against Sergeant Austin,"the Magistrate did not issue a summons or warrant as isrequired by law, but fixed the case for the next working day inthe expectation that the accused will then be in court as aprosecuting officer for the Gampaha Police" (paragraph 7 of thepetition);
the application made on behalf of the petitioners for a longer dateto file their affidavits in the case before the Primary Court wasrefused, although the Judge was informed that the 1st petitioner
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was in hospital and that seven of his sons were on remand onthe allegation of forgery of deeds (paragraph 9 of the petition);
the Judge failed to appreciate the submission made by thelawyers appearing for the petitioners, that there is no basis inlaw for the prosecution on charges of forgery and accordingly,the several orders of remand were wholly unjustified (paragraphs10 and 11 of the petition).
Mr. H.L. de Silva invited our attention to the information filed bySergeant Austin under section 66 of the Primary Courts ProcedureAct. He stressed the fact that there was nothing in the report toindicate that there was a threat or likelihood of a breach of the peaceat the time the information was filed on the 28th of August, 1981.The attempt by the Munasinghe brothers to take possession of theland was as far back 3rd April, 1981 and the complaint made byHasheeb to the Gampaha Police was on 7th June, 1981. Theinformation .filed by Sergeant Austin, nowhere states that any incidentlikely to cause a breach of the peace had occurred between 3rdApril, 1981 and 28th August, 1981. Since it is the apprehension ofa breach of the peace which determines the jurisdiction of the courtin an application made under section 66, Mr. H.L. de Silva submittedthat, had the Primary Court Judge perused the information filedbefore him, it would have been manifest to him that the applicationcould not have been entertained. In regard to the forgery case, Mr.de Silva submitted that, if the Magistrate had perused the reportsfiled by the Police as he should have done, it would have been clearto him that no offence of forgery was disclosed, for the reason thatthe allegation was that the impugned deeds were executed to makea false claim to title. Mr de Silva drew our attention to the relevantjournal entries and the submission made by the lawyers appearingfor the accused, that this was a civil matter and that the accusedshould be granted bail. The Magistrate, however, refused allapplications for bail and kept the accused on remand for about11/2months.
The other case before the same Judge was the private plaint filedby the 6th petitioner, Punyawathie Jayakody, against Sergeant Austin,on a charge under section 345 of the Penal Code. Mr. de Silvainvited us to examine the journal entries in this case. The plaint inthis case was filed on 28.08.81, which was the very date on whichSergeant Austin riled the information under section 66 of the Primary
CA Abdul Hasheeb v. Mends Perera and others (G.P.S. De Silva, J.)253
Courts Procedure Act. The prosecution instituted by the 6th petitionercame to an abrupt end on 12 October, 1981, when the Magistratedischarged Sergeant Austin. The journal entry of that date shows thatthe complainant on being questioned by court, had stated that sheis not ready for trial. The Attorney-at-Law appearing for SergeantAustin, thereupon moved for the discharge of the accused. TheMagistrate, in his Order discharging the accused, stated that thecomplainant has not taken any steps to summon witnesses and thatit appears that she is not taking any interest in the matter. Mr. deSilva strenuously contended that this was a perverse order, clearlyindicative of bias on the part of the Magistrate, for it was impossiblefor the complainant, who was on remand on the allegation of forgerysince 11.09.81 and who was present in court on 12th October fromthe remand jail, to have got ready for trial.
Mr. de Silva submitted that the purpose of the Police bringing acharge of forgery and moving for the remand of the petitioners wasto remove the petitioners from the land in dispute and to facilitatethe taking over of possession by the Munasinghe brothers. It waswith the same purpose in view, Counsel contended, that SergeantAustin filed the information under section 66 and moved for aninterim order under section 67(3) of the Act. In short, his submissionwas that the Police were acting hand in glove with the Munasinghebrothers to ensure that the Munasinghe brothers obtained possessionof the land. It was his submission that the filing of an informationunder section 66 of the Act was a "short-cut" which the Munasinghebrothers have adopted to obtain possession of the land. While theMunasinghe brothers with the assistance of the Gampaha Policewere making every endeavour to obtain possession of the land,Counsel submitted, that the trial Judge was repeatedly making clearlywrong orders in all three cases – – orders which were, Counselcontended, always to the detriment of the petitioners and for thebenefit of the respondents. Mr. de Silva argued, while he cannotprove actual bias on the part of the Judge yet, having regard to thecircumstances in which the several orders were made in the threecases, the petitioners reasonably entertained an apprehensive thatthey would be denied a fair and impartial trial. It was the contentionof Mr. de Silva that the conduct of the Magistrate in the two criminalcases, impinged on his conduct in the case pending before theprimary Court.
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The question that has now to be considered is whether, the factsset out in the petition (which I have enumerated above) and theconduct of the Judge, having regard to the s'everal orders made byhim in all three cases, show that the petitioners would be denied afair and impartial inquiry. In other words, does it appear that theJudge is biaseo against the petitioners? At the outset of hissubmissions, Mr. H.L. de Silva referred to the well-known dicta ofLord Hewart, C.J. in Rex vs. Sussex Justices, Ex parte Me Carthy
"… a long line of cases shows that it is not merely of someimportance but it is of fundamental importance that justiceshould not only be done, but should manifestly and undoubtedlybe seen to be done . . . Nothing is to be done which createseven a suspicion that there has been an improper interferencewith the course of justice …"
In the subsequent authorities cited before us, two tests fordisqualifying bias have been formulated:-
the test of real likelihood of bias; and
the test of reasonable suspicion of bias.
One of the earliest cases in which the test of real likelihood of biaswas laid down is R vs. Rand (4), in which Blackburn, J. said:-
"Wherever there is a real likelihood that the Judge would, fromkindred or any other cause, have a bias in favour of the parties,it would be very wrong in him to act; . . "
A Divisional Court in R Vs. Camborne Justices ex parte Pearce (5)applied the dictum of Blackburn, J. in R Vs. Rand (supra) and ruledin favour of the “real likelihood" test. The possible difference betweenthe two tests arose from the facts in the case. An information waslaid against the applicant under the Food and Drugs Act by anofficer of the Cornwell County Council. At the trial of the applicant,Mr. Thomas who had been elected a member of the County Council,acted as clerk to the Justices. After the Justices had retired toconsider their verdict, the chairman sent for Mr. Thomas to advisethem on a point of law. Mr. Thomas advised the Justices on thepoint of law but the facts of the case were not discussed at all with
CA Abdul Hasheeb v. Mendis Perera and others (G.P.S. De Silva, J.)255
him. Having given his advice, he returned to the court. An order forcertiorari was sought on the basis that there was a reasonablesuspicion of bias because Mr. Thomas was at the time of the trial,a member of the County Council on whose behalf the informationwas laid against the applicant. It was argued that therewas a suspicion of bias but the court rejected that test and statedthus:-
"In the judgment of this court, the right test is that prescribedby Blackburn, J. in R. Vs. Rand, namely that to disqualify aperson from acting in a judicial or quasi judicial capacity on theground of interest (other than pecuniary or proprietory) in thesubject matter of the proceeding, a real likelihood of bias mustbe shown . . .The frequency with which allegations of bias havecome before the courts in recent times, seems to indicate thatthe reminder of Lord Hewart, C.J. in R. Vs. Sussex JJ ex parteMe Carthy, that it is 'of fundamental importance that justiceshould not only be done, but should manifestly and undoubtedlybe seen to be done' is being urged as a warrant for quashingconvictions or invalidating orders on quite unsubstantial groundsand, indeed, in some cases, on the flimsiest pretexts of bias.While indorsing and fully maintaining the integrity of the principlereasserted by Lord Hewart, C.J., this court feels that thecontinued citation of it in cases to which it is not applicable maylead to the erroneous impression that it is more important thatjustice should appear to be done than that it should in fact bedone. In the present case, this court is of opinion that there wasno real likelihood of bias and it was for this reason that the courtdismissed the application . . "
The next important case in which the rule against bias wasconsidered is Metropolitan Properties Co. (F.C.C) Ltd. Vs. Lannon
. A solicitor sat as chairman of a rent assessment committee toconsider an application by the landlords for increases in the rentsof several flats. The solicitor's firm had acted for other tenants andthe solicitor lived with his father who was tenant of a flat owned byan associate company belonging to the same group as the landlordswho had sought an increase in rent. He had assisted his father ina dispute with his landlords. The rent assessment committee fixedas the fair rent of each flat, an amount which was not only belowthe amount put forward by the experts called at the hearing on behalf
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of the tenants and the landlords, but also below the amount offeredby the tenants themselves. The Court of Appeal held that, on thefacts, the solicitor should not have sat as chairman. It would appearthat Lord Denning was inclined to adopt the "real likelihood" test butsaid that it was satisfied if there were circumstances "fromwhich a reasonable man would think it likely or probable that thejustice or the chairman, as the case may be, would, or did, favourone side unfairly at the expense of the other", Lord Denningemphasized that “the court looks at the impression which would begiven to other people". "The reason" he said " is plain enough,Justice must be rooted in confidence; and confidence is destroyedwhen right minded people go away thinking; the Judge was biased."Edmund Davies, L.J., however, adopted the test of "reasonablesuspicion of bias" and approved the dictum of Lord Hewart.Danckwerts, L.J. seemed to be inclined to adopt the Hewartapproach and said that on the facts, it was “not wise" for thechairman to have acted.
Mr. Pullenayagam cited Regina Vs. Colchester StipendiaryMagistrate ex parte Beck (7) wherein Lord Widgery, C.J.characterized Lord Denning's judgment in Lannon's case (Supra) as"a modern statement of what is meant by bias in the sort of contextwith which we are now dealing". I find that de Smith's 'JudicialReview of Administrative Action', 4th Edition at pages 263 and 264,cites Lannon's case in support of the “reasonable suspicion" test. Asimilar view is expressed by Wade in his work on 'AdministrativeLaw', (4th Edition) at page 411.
Mr. Pullenayagam submitted that not only do the English casessupport the test of "real likelihood of bias” but also a Divisional Courtof the then Supreme Court adopted the same test in "in reRatnagopal" (8). Mr. Pullenayagam referred us to the followingpassage at page 4T5 –
“The proper test to be applied is, in my opinion, an objectiveone and I would formulate it somewhat on the following lines;'Would a reasonable man, in all the circumstances of the case,believe that there was a real likelihood of the Commissionerbeing biased against him?" '
Mr. Pullenayagam submitted that both in principle and on authority.
CA Abdul Hasheeb v. Mendis Perera and others (G.P.S. be Silva, J.)
the proper test to apply in relation to an allegation of bias on thepart of a judicial officer was the test of "reai likelihood of bias".
While I find Mr. Pullenayagam's submission not without attraction, yet,on the facts and circumstances of this case, it is not necessary togive a ruling as to which of the tests is the proper test when anallegation of bias is made against a judicial officer. The reason isthat, in my view, the petitioners have failed to prove the allegationof bias on the application of either of the tests.
It is of course not necessary to prove that the judicial officer was,in fact, biased. However, even on the application of the test ofreasonable suspicion, it must be shown that the suspicion is basedon reasonable grounds — grounds which would appeal to thereasonable, right thinking man. It can never be based on conjectureor on flimsy, insubstantial grounds. Adopting the words of LordDenning in Lannon's case (Supra), Mr. Pullenayagam submitted that“bias" in this context would mean, "a tendency to favour one sideunfairly at the expense of the other" — a submission with which Iagree.
In this view of the matter, it seems to me that the facts set out inthe petition are too remote and too tenuous in charactor to foundan allegation of- bias on the part of a judicial officer, who it must beremembered, is one with a trained legal mind. As submitted by Mr.Pullenayagam, it is a serious matter to allege bias against a judicialofficer and this court would not lightly entertain such an allegation.The several orders made by the judge in the three cases, which Mr.H.L. de Silva complained were clearly erroneous in law and indicativeof bias, are to my mind, at most instances of a wrongful or improperexercise of a discretion. Whatever may be the relationship betweenSergeant Austin and the Munasinghe brothers, yet it is not sufficientto impute bias to the Judge. The totality of the circumstances reliedon by the petitioners, do not show that the Judge has extendedfavours to one side "unfairly at the expense of the other" and Iaccordingly hold that the allegation of bias has not been established.Thus, the first ground on which the transfer is sought (section46(1 )(a) of the Judicature Act) fails. I
I turn now to the alternative ground relied on by Mr. H.L. de Silva — that the transfer is "expedient on any other ground". I agree withMr. Pullenayagam's submission that the expression "expedient" in the
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(1991) 1 Sri L.R.
cotext means, advisable in the interests of justice. Indeed, thepurpose of conferring the power of transfer as provided for in section46 of the Judicature Act, is to ensure the 'due administration ofjustic.
There were three cases pending before the same Judge. They wereall "connected cases" in the sense that they had a bearing on thedispute in regard to the possession of "Werellawatte”. The chargesof forgery were based on deeds alleged to have been executed tosupport a false claim to title of the land in dispute. The allegedincident relating to the charge of criminal force is said to have takenplace in the course of the investigations into the dispute regardingthe possession of "Werellawatte". As submitted by Mr. H.L. de Silva,the petitioners in making this application for a transfer, are takingonly preventive section. They are not seeking to set aside an orderwhich they allege is bad in law. It so happened that the severalorders made by the Judge, tended to operate against the 1stpetitioner or one or more members of his family. Having regard tothe course the proceedings took in each of these cases, and inparticular, the unusual circumstances in which Sergeant Austin wasdischarged in the criminal force case, thereby denying thecomplainant of an opportunity of presenting to court her version ofthe incident, I am of the opinion that it would promote the ends ofjustice if this case is transferred to another Primary Court. I
I accordingly make order that the case be transferred to the PrimaryCourt of Minuwangoda.
In all the circumstances. I make no order as to costs.
Before I conclude, I wish to make it clear, that nothing I have saidin the course of this judgment was intended in any way to reflectadversely on the integrity or the conduct of the judicial officialconcerned.
TAMB3AH. J. – I agree.
Transfer of case ordered.
ABDUL HASHEEB v. MENDIS PERERA AND OTHERS