Home Park Caterers Ltd v Hon. The Attorney General & J.A.O.; Primus Ochieng & Metropolitan Health Services Ltd (Interested Parties)

The court distinguished the unlimited coordinate jurisdiction under section 60 from the special original jurisdiction under section 84 protecting Chapter V rights. That jurisdiction binds the Executive, Legislature and Judiciary, which enjoy no constitutional immunity, and is exercisable by any High Court judge without reference to rank. Maharaj (Trinidad and Tobago), on all fours with section 84, and local precedents (Labhson, KBS, Karua, Muiruri) confirm it. Because no one may be a judge in his own cause, the challenged judge referred the matter to the Chief Justice.

The earlier ruling by the challenged judge dealt only with a teacher/student relationship between the judge and one counsel. The present petition rests on the judge's consultancy to the HIV & AIDS Task Force, his sharing a platform with the plaintiff's counsel and key witness, and non-disclosure - facts the petitioner first learnt in November 2006, after that ruling, and which it could not reasonably have raised earlier. Different issues and facts defeat res judicata notwithstanding Booth Irrigation's application of the doctrine to constitutional applications.

Section 123 defines 'person' to include incorporated and unincorporated associations, and in Lemeiguran a two-judge bench allowed an unincorporated association to articulate rights. A company could not claim, for example, personal liberty because it cannot attach naturally to a corporate body; but the petitioner here asserted its right under section 77(9), and companies assert civil rights daily. The Bill of Rights binds the Judiciary, and access to the court under the rules cannot be hampered.

In an adversarial system any party likely to be affected by a determination must be heard - the court must recognise each affected party's right to equality of arms. The initials JAO were lifted from the ongoing suit, where they were used to disguise identity given the sensitivity of the subject matter, and JAO's existence as a party was not in doubt. The interested parties are parties to HCCC 38/03 and likely to be affected, so joinder upheld; a court must hold the scales evenly.

The court set out the seven prayers (HIV testing without informed consent, disclosure of status, confidentiality, counselling omissions, termination on HIV-positive grounds, reinstatement/damages) against Task Force recommendations on consent with pre- and post-test counselling, confidentiality of employee medical data, non-discrimination in employment, and sympathetic judicial outlook. The evidence of Catherine Mumma, joint secretary of the Task Force and the plaintiff's principal witness, overlapped the suit's issues without disclosure that plaintiff's counsel was co-secretary.

Adopting Sussex Justices, Lannon, Pinochet (No 2), Dimes, SARFU, Webb and Locabail's ten ethical rules, the court held that what matters is the impression on right-minded people, not the judge's actual mind - which no court may read. The judge's consultancy, his uncontraverted presentation of 'strong personal opinions', platform-sharing with plaintiff's counsel and key witness, and failure to disclose identified him with one party's cause. The record showed no actual bias, and past accommodation of the petitioner was irrelevant to apparent bias.

Distinguishing institutional independence (objective guarantees vis-à-vis the other arms of government, not here impugned) from individual impartiality (a state of mind per Valiente, with subjective and objective elements per Daktaras and Karttonen), the court held the individual judge's independence vis-à-vis the parties was compromised. Because impartial justice must manifestly and undoubtedly be seen to be done, continued trial before the challenged judge would contravene section 77(9); the five lost years from a rehearing were the price of a fair hearing.