Ruling given in a Recusal Application is an interlocutory order within the meaning of Section 12(2)(a)(i) of the Courts Act. A leave to appeal application is the proper remedy against such order. Special Leave to Appeal granted.
- Case summary
An application for special leave to appeal from the Ruling of the Constitutional Court of 24 January 2023 dismissing the Notice of Motion for the recusal of the Honourable Judges (“Notice of Motion”) pursuant to Rule 10 of the Guidelines of the Court of Appeal in Government of Seychelles & Anor v. Seychelles National Party & Ors, SCA 4 of 2014
DE SILVA JA (Dr. L. Tibatemwa-Ekirikubinza, Gunesh-Balaghee, JA concurring)
- This is an application for special leave to appeal from the Ruling of the Constitutional Court of 24 January 2023 (“Ruling”). The Court by that Ruling dismissed the Notice of Motion for the recusal of the Honourable Judges (“Notice of Motion”) pursuant to Rule 10 of the Guidelines of the Court of Appeal in Government of Seychelles & Anor v. Seychelles National Party & Ors, SCA 4 of 2014. The Notice of Motion was dismissed as it was held to be frivolous and vexatious and an abuse of the process of Court.
- The Applicants sought leave of the Constitutional Court to appeal against the Ruling. It was dismissed on the basis that the recusal application has nothing to do with the facts of the main case and therefore, is a separate and independent application in its own right. A direct appeal was held to be the proper remedy against the Ruling.
- The learned Principal State Counsel on behalf of the Respondents submitted that this application should be dismissed on two grounds. Firstly, it was submitted that a direct appeal is available against the Ruling. Secondly, it was submitted that the application for special leave does not meet the required test. Let me deal with the two issues separately.
Characterization of the Ruling
- Articles 120(1) and (2) of the Constitution reads:
“120(1). There shall be a Court of Appeal which shall, subject to this Constitution, have jurisdiction to hear and determine appeals from a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court and such other appellate jurisdiction as may be conferred upon the Court of Appeal by this Constitution and by or under an Act.”
“120(2). Except as this Constitution or an Act otherwise provides, there shall be a right of appeal to the Court of Appeal from a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court.” (Emphasis added).
- Articles 120(1) and (2) deal with two distinct and different aspects of jurisdiction namely forum jurisdiction and right of appeal. The law may vest a Court with jurisdiction to entertain appeals (forum jurisdiction) from inferior courts and tribunals. However, that does not create a right of appeal in favour of a party to invoke such jurisdiction. A right of appeal is statutory and must be expressly created and granted by statute. [See Martin v. Wijewardena (1989) 2 Sri.L.R. 409, Bakmeewewa v. Raja (1989) 1 Sri.L.R. 231, Gamhewa v. Maggie Nona (1989) 2 Sri.L.R.250, Gunaratne v. Thambinayagam and others (1993) 2 Sri.L.R. 355, Malegoda v. Joachim (1997) 1 Sri.L.R. 88]
- Article 120(1) of the Constitution vests appellate jurisdiction in the Court of Appeal to hear and determine the appeals specified therein. The forum jurisdiction is thus established.
- Article 120(2) creates the right of appeal to invoke such forum jurisdiction. It is broadly framed and arguably includes right of appeal against interlocutory orders. Nevertheless, it is qualified by the words “Except as this Constitution or an Act otherwise provides”. Accordingly, the right of appeal given by Article 120(2) may be modified by the Constitution or an Act. In terms of Schedule 2 (Article 6) of the Constitution “Act” means a law made pursuant to Article 86 which is a reference to the exercise of legislative power by the National Assembly.
- Sections 12(1) and (2) of the Courts Act, reads as follows:
“12(1). Subject as otherwise provided in this Act or in any other law, the Court of Appeal shall, in civil matters, have jurisdiction to hear and determine appeals from any judgement or order of the Supreme Court given or made in its original or appellate jurisdiction.
- from any interlocutory judgment or order of the Supreme Court; or
- from any final judgment or order of the Supreme Court where the only subject matter of the appeal has a monetary value and that value does not exceed ten thousand rupees.
(b) In any such cases as aforesaid the Supreme Court may, in its discretion, grant leave to appeal if, in its opinion, the question involved in the appeal is one which ought to be the subject matter of an appeal.
(c) Should the Supreme Court refuse to grant leave to appeal under the preceding paragraph, the Court of Appeal may grant special leave to appeal.”
- Accordingly, the right of appeal granted in terms of Article 120(2) of the Constitution to appeal to the Court of Appeal from a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court has, by virtue of section 12(2) of the Courts Act, now been removed in relation to any interlocutory judgment or order of the Supreme Court. In such matters, the Supreme Court may, in its discretion, grant leave to appeal to the Court of Appeal if, in its opinion, the question involved in the appeal is one which ought to be the subject matter of an appeal. Where the Supreme Court refuses to grant leave to appeal, the Court of Appeal may grant special leave to appeal.
- It is in this context that the characterization of the Ruling arises for determination. The Courts Act does not define what is meant by any interlocutory judgment or order in section 12(2). The common law principles must therefore be applied to ascertain its true meaning. In this exercise, a comparative examination is instructive.
- The English Courts have adopted two tests, which were referred to as order approach test and application approach test by Sir John Donaldson MR in White v. Brunton[(1984) 2 All ER 606], to determine whether an order or judgment is final or interlocutory for the purpose of the relevant English Rules.
- The application approach appears to have been adopted in Standard Discount Co. v. La Grange [(1877) 3 C.P.D. 67] where Lord Esher held (at page 67) that if the decision given in one way will finally dispose of the matter in dispute, was given the other way to allow the action to go on, then it is not a final but interlocutory order.
- In Salaman v. Warner and Others [(1891) 1 QB 734 at 735] Lord Esher M.R., further clarified the application approach test for determining the question as follows:
“The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.”
Fry, L. J., expounded the same test in the following words (at page 736):
“I conceive that an order is “final” only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action. Conversely I think that an order is “interlocutory” where it cannot be affirmed that in either event the action will be determined. Applying this test to the present case, it is obvious that the order here was made on an application of which the result would not in one event be final. Therefore this is an interlocutory order."
Lopes L. J., enunciated the same test thus (at page 736):
"I think that a judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties."
The decision in Salaman (supra.) was adopted with approval in White (supra.).
- The order approach appears to have been adopted in Shubrook v. Tuffnell [(1882) 9 QBD 621] where it was held that an order is final, if it finally determines the matter in litigation. In Bozson v. Altrincham Urban District Council [(1903) 1 KB 547 at 548] Lord Alverstone, C.J., proceeded to lay down the order approach test as follows:
“It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory order".
- Several English decisions adopted the order approach enunciated in Bozson (supra.) [See Isaacs & Sons v. Salbstein (1916) 2 K. B. 139, 147, Ramchand Manjimal v. Goverdhandas Vishandas Ratanchand and others (AIR 1920 P.C. 86, 87), Abdul Rahman and others v. Cassim & Sons (AIR 1933 P. C. 58, 60), Haron v. Central Securities (1982) 2 All ER 481].
- Hence, the order approach test considers only the nature of the order made. If the order, taken in isolation, finally disposes of the rights of the parties in litigation without leaving the suit alive, the order is final and a direct appeal lies as of right. In Rank Xerox (Singapore) Pte Ltd. v. Ultra Marketing [(1991) 2 SLR (R) 912] it was held that the phrase “the rights of the parties” contained in Bozson (supra.) referred to the substantive rights in dispute in the particular action in which the summary judgment application was made.
- On the contrary, in the application approach test, the focus is on the nature of the application made to Court and not the order delivered per se. If the order given in one way finally disposes the matter in litigation, but if given in the other way will allow the action to continue, the order is interlocutory and not final. According to this approach, the order will be final only where, whichever way it is given, the order finally determines the rights of the parties in the litigation.
- In Salter Rex & Co. v. Ghosh [(1971) 2 All ER 865] Lord Denning MR having considered the two tests held (at page 866):
“Lord Alverstone CJ was right in logic but Lord Esher MR was right in experience. Lord Esher MR's test has always been applied in practice. For instance, an appeal from a judgment under RSC Ord 14 (even apart from a new rule) has always been regarded as interlocutory and notice of appeal had to be lodged within 14 days. An appeal from an order striking out an action as being frivolous or vexatious, or as disclosing no reasonable cause of action, or dismissing it for want of prosecution – every such order is regarded as interlocutory. See Hunt v Allied Bakeries Ltd 3 All ER 513,  1 WLR 1326. So I would apply Lord Esher's test to an order refusing a new trial. I look to the application for a new trial and not to the order made. If the application for a new trial were granted, it would clearly be interlocutory. So equally when it is refused, it is interlocutory. It was so held in an unreported case, Anglo-Auto Finance (Commercial) Ltd v Robert Dick, and we should follow it today.″
Sri Lankan Law
- In Siriwardena v. Air Ceylon Ltd. [(1984) 1 Sri.LR. 286] the Supreme Court adopted the order approach advocated by Lord Alverstone C.J. in Bozson (supra.) in determining whether an order was interlocutory or a final. However, later in Ranjit v. Kusumawathie [(1998) 3 Sri.L.R. 232] the Court adopted the application approach advocated in Salman (supra.) and Salter Rex (supra.). A fuller bench in Chetttiar v. Chettiar [(2011) 2 Sri.L.R. 70] and Dona Padma Priyanthi Senanayake v. Chamika Jayantha [(2017) BLR 74] reviewed all the previous decisions and held that the application approach test must be applied to ascertain whether an order or judgment is interlocutory or final.
- In Delcy v. Camille [(2005) SLR 87] the Defendant was ordered to pay FF 496,667, R20,000 and costs of action in a sum of R8975, the equivalent in Seychelles Rupees being approximately R511,536. No appeal was filed against that final judgment. On 13 January 2004, upon an application for summons to show cause being filed by the Plaintiff under Section 251 of the Code of Civil Procedure as the judgment debt had not been paid, the Court by order dated 7 February 2005 ordered that the judgment debtor be civilly imprisoned for a period of six months unless the judgment was satisfied within three months. However, Court made a further order granting the judgment debtor a last opportunity to avoid imprisonment by paying R200,000 of the judgment debt within three months, and the balance in in installments of R5000.
- The question arose before the Court whether this order dated 7 February 2005 was “interlocutory” or “final” for the purposes of Section 12(2)(a)(i) of the Courts Act. The Court examined both the order approach propounded in Bozson (supra.) and the application approach advocated in Salman (supra.) and Salter Rex (supra.) and followed in White (supra.). The Court adopted the application approach test and held that the impugned order was interlocutory in nature.
- In Financial Intelligence Unit v. Mares Corp. 2011 [(SCA 48 of 2011) (2011) SCCA 33 (09 December 2011)] the Court of Appeal was called upon to inter alia determine the nature of an order made in an application made pursuant to section 4 of the Proceeds of Crime (Civil Confiscation) 2008 Act (POCCCA). Twomey JA. noted that section 22 of the POCCCA provides that " ... an appeal from an order made under this Act. .. shall lie to the Court of Appeal." and held that although the matter concerned an interlocutory order of the Supreme Court, section 22 of the POCCCA would supersede section 12(1) of the Courts Act. It was held that the Appellant therefore should have simply proceeded by way of appeal to this Court. It was further held (at page 3) that:
“…the term interlocutory order has been used in this jurisdiction mainly in relation to injunctions. In those cases, the Seychelles Code of Civil Procedure provides for their process. In any case, such matters are clearly interim in nature as they take place in the course of a suit. The term interlocutory in the POCCCA is however to be read in its own context because it appears from section 4 that it may in many cases in fact be the final proceedings between the applicant and the respondent.”
Fernando JA. (as he then was), held (at page 5) that:
“Interim order referred to herein is one made under section 3 of POCA. Even if one were to be guided by section 12(2)(a)(i) of the Courts Act this was not an "interlocutory judgment or order of the Supreme Court" as set out therein, but a final order which disposed of the whole action leaving no subordinate or ancillary matters for decision by the Supreme Court.”
My reading of the opinion of Fernando JA is that he was applying the order approach test.
- In Vijay Construction (Pty) Ltd. v. Eastern European Engineering Limited [(2020) SCCA 22], the Court of Appeal had to grapple with the issue whether the impugned order was “interlocutory” or “final”. It was an application filed as an appeal against the imposition of a condition that the Applicant pay security in the form of a bank guarantee in the sum of EURO Twenty Million as a condition of a Stay of Execution of the judgment of the Supreme Court delivered on 30 June 2020 in a like sum against the Applicant. This condition was imposed by Carolus J. by order dated 24 July 2020.
- It is important to note that this application was made while the appeal, made by the Applicant against the judgment dated 30 June 2020 delivered in Eastern European Engineering Limited v. Vijay Construction (Pty) Ltd. [(CS23/2019) (2020) SCSC 350], was pending.
- The majority held that the impugned order dated 24 July 2020 is one made by the Supreme Court in its original jurisdiction and an “interlocutory order” so far as the pending appeal to the Court is concerned and thus within the purview of section 12(2)(a)(i) of the Courts Act. They rejected the contention of the counsel for the Applicant that “interlocutory order” referred to in section 12(2)(a)(i) of the Courts Act was limited to orders made during the pendency of a trial before the Supreme Court and before the delivery of judgment. This was seen as an attempt by the Counsel for the Applicant to read in the words “during the pendency of a trial” into the words “interlocutory matter or order” in section 25(1) of the of the Seychelles Court of Appeal Rules 2005.
- Fernando PCA (at page 6) held that a case before the Supreme Court does not end until an appeal against the judgment of the court has been disposed off or where there is no appeal, until the time period for the filing of an appeal has expired.
- Hence the majority view appears to include a wide array of orders within the term “interlocutory order” in section 12(2)(a)(i) of the Courts Act including orders made after judgment is delivered. The majority did not apply either of the tests applied by English courts to determine whether an order is interlocutory or final.
- Robinson J.A. in her dissent examined Bozson (supra.), Salman (supra.), Salter Rex (supra.) and White (supra.) and went on to hold the impugned order as “final” by applying the test in Bozson (supra.) and in Financial Intelligence Unit (supra.).
- A survey of judicial precedent in Seychelles indicates that both the application approach test as well as the order approach test have been applied to determine whether an order is an “interlocutory order” or “final order” for the purposes of section 12(2)(a)(i) of the Courts Act. I need not venture to make a choice between the two tests, for the result in this matter is the same irrespective of the test applied. Let me elaborate.
- The Applicants filed the application before the Constitutional Court seeking a review of the constitutionality of the Constitution of the Republic of Seychelles (Tenth Amendment) Act. In this application, they are seeking special leave to appeal against the Ruling by which the Recusal Motion was dismissed. That Ruling, taken in isolation, did not finally dispose of the rights of the parties in litigation. The constitutionality of the Tenth Amendment remains to be determined. The suit remains alive. Hence, the application of the order approach test establishes that the impugned Ruling is an “interlocutory order”.
- Applying the application approach test, brings about the same result. Whichever way the Recusal Motion is decided, the constitutionality of the Tenth Amendment remains to be determined. Accordingly, even where the application approach test is applied, the impugned Ruling must yet be characterized as an “interlocutory order”.
- The Respondents drew our attention to the decision of this Court in Government of Seychelles and Others v. Seychelles National Party and Others [Application No. MA 34 & 35 of 2014 in SCA CP No. 04 of 2014] on 26 September 2014 and submitted that in that matter, a decision on a recusal motion was held by this Court to be subject to a final appeal. The impugned order there disqualified one judge from sitting on the bench in the Constitutional Court and ordered his recusal from the hearing of the main application.
- Fernando JA (as he then was) held that the impugned order conclusively determined an issue wholly separate from the merits of the case before the Constitutional Court. Nevertheless, it was held that the impugned order was not an interlocutory judgment or order. The Court went on to state that an interlocutory order contemplated by section 12(2) of the Courts Act is generally intended to last for a limited period until the judgment determining the issues before court and the rights of the parties are made.
- With the greatest of respect, I am afraid I cannot accept that the conclusion in Government of Seychelles and Others (supra.) reflects the correct legal position. The Court did not elucidate the test to be applied in determining whether the impugned order was final or interlocutory. In fact, Court specifically states that the impugned order conclusively determined an issue wholly separate from the merits of the case before the Constitutional Court.
- Hence an application of both the application approach and the order approach tests characterizes the impugned Ruling as an “interlocutory order” against which a special leave to appeal application should have been made. Moreover, it is inconsistent with the majority view in Vijay Construction (Pty) Ltd. (supra.) where it was held that a wide array of orders falls within the term “interlocutory order” in section 12(2)(a)(i) of the Courts Act including orders made after judgment is delivered.
- I am fortified that in certain other jurisdictions an order made in an application for recusal has similarly been characterized as an “interlocutory order”. In Brunning and Fontaine et al [2019 ONCA 98] the Ontario Court of Appeal held (at para. 11) that:
“[…] the recusal order does not finally determine any substantive rights of the parties nor does it determine a substantive claim or defence in the matter before court. It is thus an interlocutory order that may only be appealed to the Divisional Court, with leave.”
- For all the foregoing reasons, I hold that the Ruling is an interlocutory order against which special leave to appeal is available.
Special Leave to Appeal
- According to section 12(2)(c) of the Courts Act, where leave to appeal is refused by the Supreme Court, the Court of Appeal may grant special leave to appeal from any interlocutory judgment or order of the Supreme Court. The Respondents submit that the Applicants have not demonstrated that their application passes the test for granting of special leave to appeal.
- Parties are at variance on the test to be applied by this Court in exercising its discretion on whether special leave to appeal should be granted. The learned counsel for the Respondents submitted that the test enunciated at paragraph 15 in Gangadoo v. Cable & Wireless Seychelles Ltd. [(2013) SLR 317] is determinative of the issue. According to that test, before leave to appeal is granted, the Court must be satisfied that:
- The interlocutory judgment disposes so substantially of all the matters in issue as to leave only subordinate or ancillary matters for decision; and
- There are grounds for treating the case as an exceptional one and granting leave to bring it under review.
- In Gangadoo (supra.) the Court sought to (at paragraph 18) elucidate what is meant as exceptional as follows:
“[T]o treat a case as exceptional which would necessitate special leave of this Court to bring the interlocutory judgment or order of the Supreme Court under review, the applicant must be able to show that the interlocutory judgment or order is manifestly wrong and irreparable loss would be caused to him or her if the case proper were to proceed without the interlocutory judgment or order being corrected”.
- On the other hand, the learned counsel for the Applicants submitted that in Morel v. Registrar Supreme Court [(2005) SLR 16] it was suggested that for leave to be granted, the proposed appeal must not only raise a matter of public interest but must also have a reasonable chance of success.
- However, it was submitted that in Re: Ailee Development Corporation Ltd. and the Companies Act 1972 Liquidator of Ailee Development Corporation Ltd. [(2008) SLR 87] there was a notable departure from the position expressed in Morel (supra.) and that it was possible for the Court to grant leave for a number of reasons, even if it is not satisfied that the appeal is likely to succeed. The following grounds expounded by Lord Wolf in Smith v. Cosworth Casting Processes Ltd. [(1997) 1 WLR 1538, EWCA Civ 1099 (1997)], cited with approval therein, was held to be consistent with section 12(2)(b) of the Courts Act:
- The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding in the appeal.
- The court can grant the application even if it is not so satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should, in the public interest, be examined by the court or, to be more specific, the court may take the view that the case raises an issue where the law requires clarifying.
- Let me examine the factual matrix relevant to this special leave to appeal application and the indicative grounds of appeal before proceeding to apply any one or more of the above tests.
- The Applicant filed the Notice of Motion for the recusal of the Honourable Judges on two main grounds.
- Firstly, it was contended that a news report published on the State House Website on 15 June 2022, entitled “President Ramkalawan assents to the Constitution of the Republic of Seychelles (Tenth Amendment) Bill 2022”, states that the 2nd Respondent (President of the Republic of Seychelles) acknowledged the involvement of the Judiciary, among other organisations, in the preparation of the Tenth Amendment.
- Secondly, recent publications in the national media brought to the attention of the public that in April 2022 the Honourable Chief Justice was sold a further plot of State land at a consideration lower than its true value in breach of the Government’s stated policy and also the State Land and Rivers Reserve Act and the Stamp Duty Act. I hasten to add that these remain as allegations and we shall proceed on that assumption.
- The Applicants have identified the following indicative grounds of appeal:
- The Learned Judges erred and, in particular, acted in disregard of Recusal Guidelines set by the Court of Appeal by proceeding to determine the Notice of Motion themselves.
- The Learned Judges erred in dismissing the Notice of Motion on what is essentially questions of substantive merits, after giving the assurance that they would only consider the point of procedure raised in the affidavit of the Attorney General, thus denying the Applicants a fair hearing.
- The Learned Judges erred in the finding that the Notice of Motion was not compliant with the Recusal Guidelines.
- The Learned Judges erred in overlooking that the necessary inquiry into whether the other judges of the Supreme Court were involved in the preparation of the Tenth Constitutional Amendment as indicated in the State House press report of 15 June 2022 was the administrative responsibility of the Learned Chief Justice.
- For the above reason, the Learned Judges erred in finding that the Notice of Motion deprived the other Judges of the Supreme Court of their right to a fair hearing.
- The Learned Judges erred in relying on their oath of office to negative the Applicants suspicion of bias, without an evaluation of the evidence of the suspected bias.
- The Learned Judges erred in their finding that the Recusal Guidelines are not applicable and recusal is not available to litigants where there is a suspicion of bias against all the judges.
- The Learned Judges erred in their application of the doctrine of necessity to dismiss the Notice of Motion, given that there is no constitutional limit on the number of judges that may be appointed and the precedents ) including recent practice acknowledged in the Respondent’s affidavit) in this jurisdiction.
- The Learned Judges erred in speculating the outcome of a determination of the Notice of Motion by a single judge unconnected with the case and concluding that the Notice of Motion would necessitate the appointment of seven new judges.
- The Learned Judges erred in their finding that the appointment of an ad hoc or temporary judge pursuant to the Constitution to hear the Notice of Motion would lead to “a procedural irregularity” or “an impasse” or would be objectionable to the Applicants. These findings are speculative and overlook the constitutional provisions ensuring that judicial appointees can competently and impartially discharge the function of their office.
- The Learned Judges were wrong to conclude the granting of the Notice of Motion would give the Applicants the possibility of “forum shopping”, given that in such event the Applicants would have no influence or control over the appointment of the judge that would hear the matter.
- The Learned Judges erred in omitting to address the second ground of recusal, seeking the recusal of the learned Chief Justice solely.
- Given the uncontroverted evidence adduced by the Applicants, raising suspicion of judicial bias, the Learned Judges were wrong to conclude that the Notice of Motion was frivolous and vexatious.
- Further, the conduct, comments and findings of the Learned Judges in these proceedings show bias against the Applicants, adversely affecting the structural integrity of the proceedings and the Applicants’ right to a fair hearing.
- The indicative grounds of appeal urged by the Applicants goes to the very core of the rule of law which the preamble of Constitution proclaims to uphold. A central constituent of the rule of law is the independence of the judiciary. The Constitution has recognized that the independence of the judiciary is a fundamental human right and freedom. Article 19(7) of the Constitution states that “Any court …shall be independent and impartial, …the case shall be given a fair hearing…”.
- The word “independent” is of a wider import than merely the state of mind of the judge in the actual exercise of judicial power. It includes the status or relationship of the judiciary with regard to the other two branches of government, the executive and the legislature. In this matter, the Notice of Motion is based on an alleged collaboration between the executive and the judiciary in the preparation of the Constitution of the Republic of Seychelles (Tenth Amendment) Act which is impugned by the Applicants.
- An impartial judge is a fundamental requisite for a fair hearing. Although the concepts of “independent” and “impartial” are closely linked, Article 19(7) of the Constitution appears to recognize a distinction between the two concepts. In my view, an “impartial” hearing is a reference to a “state of mind or attitude of the Court in relation to the issues and the parties in a particular case”. It requires that judges must not harbour preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties.
- The judiciary must ensure that it remains independent and that it is seen to be independent of any influence that might reasonably be perceived as compromising its ability to judge cases fairly and impartially. The need for an independent judiciary is fortified by important public policy considerations. The necessity to maintain the confidence of the people in the independence of the judiciary cannot and should not be measured by the expenses that may be expended to determine the issues by ad hoc appointments given the clear precedents.
- The indicative grounds of appeal raise significant constitutional issues of great public interest. They are arguable and not frivolous. They have a reasonable chance of success for the Applicants. Irreparable harm would be caused to the Applicants if the case proper were to proceed.
- For all the foregoing reasons, I grant special leave to appeal.
Signed, dated and delivered at Ile du Port on 18 December 2023.
J. De Silva JA
I concur: - _____________________ Dr. L. Tibatemwa-Ekirikubinza JA
I concur: - _____________________ K. Gunesh-Balaghee JA