IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: 270 of 2008

BETWEEN :

ASHWIN CHANDRA, SATIKA DEVI CHAND in their own behalf and as next of kin of SHAGRIKA ASHLYN CHAND (an infant), ADARSH JASHWIN CHANDRA (an infant) and ADESH ASWIN CHAND (an infant)
Plaintiffs

AND :

CITY AUTO TRIMMERS LTD a limited liability company having its registered office at 10 Jai Hanuman Road, Vatuwaqa, Suva.
First Defendant

AND :

PRAMOD PRAKASH of Suva
Second Defendant

BEFORE : D. C. Alfred, J
COUNSEL : Mr. V Maharaj for the Plaintiffs
Mr. S P Sharma for the Defendants

Date of Judgment : 16 March 2015

INTERLOCUTORY JUDGMENT

FACTUAL BACKGROUND

[1]	This civil claim is what is commonly described as a running down action. The Plaintiffs are claiming damages for injuries, loss and 

damage suffered by them as a result of an accident on 27 August 2005 when the vehicle they were travelling in was involved in a road accident with the First Defendant's vehicle driven by the Second Defendant at the material time.

[2]	The Plaintiffs subsequently filed this Civil Action in the High Court of Fiji on 20 August 2008. 

[3]	The matter came up for hearing on 22 November 2012 and after a full trial on various dates involving the testimony of parties and witnesses the hearing was concluded on 22 March 2013, when Judgment was reserved.

[4]	Unfortunately, however, the judge left Fiji for Sri Lanka at the end of his contract without the judgment having being delivered.

[5]	The matter came up for mention before me on 24 February 2015, when I ordered counsel for both parties to make oral submissions before me on the two issues at hand. 

[6]	These issues were:

(i)	Whether the matter should be reheard denovo or whether I was to deliver judgment based on the written record of the proceedings herein.

(ii)	Whether I should recuse myself from hearing the matter because I had knowledge of the interim payments made herein by the Master.

[7]	Both counsels appeared before me on 11 March 2015 and made their submissions at the conclusion of which I reserved my Judgment to be delivered at 2:30pm on 16 March 2015.

I proceed now to do so.

REASONS FOR THE ORDERS
First Issue

[8]	The first issue is not an area of law on which there is any statutory provision and so therefore I have to rely on the common law position, for its resolution.

[9]	The decided cases, both within and without this country, do not unequivocally lay down a single proposition. Some cases decide the trial should be reheard denovo, while others that the second judge may proceed to deliver judgment from where the first judge had left off, for whatever reasons, whether that was due to his death, illness or inability to proceed to the conclusion of the hearing and the delivery of his judgment.

[10]	In making my decision in the particular circumstances of this case, I have to perform a delicate balancing act between the interests of the Plaintiffs in juxtaposition with the interests of the Defendants. 

[11]	The Plaintiffs would prefer that the matter not be heard anew for a number of reasons which I set down as follows:

(i)	Firstly those witnesses may no longer be available.

(ii)	Secondly the memory of witnesses may not be so sharp given the passage of the ten years since the occurrence of the accident.

(iii)	Thirdly the fresh expenses, costs and fees that will be entailed by the Plaintiffs if the matter were to go back to square one and be re heard.

[12]	The Defendants on their part say:

(i)	That the matter has to be reheard denovo because this is a running down action where the trial judge has the benefit of observing the demeanour of witnesses and drawing the necessary inferences therefrom, which advantage another judge could not possess by a mere perusal of the cold notes of proceedings.

(ii)	This being a running down action with conflicting views of how the accident occurred, must necessitate the judge who is delivering judgment to have actually heard the different testimonies of the witnesses before him.

[13]	To my mind, there is validity in both points of view although they are diametrically opposed to each other. But a judge to dispense justice must serve the ends of justice and therefore it is my considered opinion that this particular case is a matter that requires to be heard denovo.

[14]	In coming to this conclusion I am aware that this is not in consonance with the Roman adage "interest reipublicae ut sit finis litium" which is defined in Osborn's Concise Law Dictionary, 7th Edition, as "it concerns the State that lawsuits be not protracted".

Second Issue

[15]	As a general proposition, a judge should not lightly consent to a request for recusal because he is there to adjudicate upon disputes. 

[16]	A judge is not a lay man who fills a position as a member of a jury or as an assessor in a trial. A judge is a legally qualified person, with many years of legal experience and practice and is perfectly capable of keeping out of his mind, when it comes to the time for him to make a 
decision, all those pieces of information which are prejudicial but are extraneous to the matter in hand. 

[17] 	If there is no written rule or statutory provision governing the given situation, the judge has to make a decision whether to recuse himself or not entirely on his own. It cannot be made for him by another nor can another impose his decision upon the judge. The final word has to be that if a judge has come to the conclusion in his own mind that he is unable to do justice to the parties before him, then and only then should he recuse himself.

[18]	Having said that however, I note that Order 29 Rule 15 of the Rules of the High Court (Rules) states quite categorically that no communication of the fact of an interim payment "shall be made to the Court at the trial, or hearing," until all questions of liability and amount have been determined.

[19]	The operative words here are no communication shall be made. The Oxford Advanced Dictionary of Current English defines "shall" as expressing the ideas of command or obligation and in the negative of prohibition. In other words, they are mandatory and not discretionary.

[20]	The Rules therefore prohibit any communication to the trial court of the fact of an interim payment, unless the Defendants consent or the Court so directs, which is certainly not the case here.

[21]	Therefore, because the information of the interim payments was made 
by the Counsel for the Plaintiffs to me in Court on 24 February, 2015, I am compelled in the circumstances of this matter to recuse myself. 

[22]	Before I spell out my orders, I have a general observation to make. 	In the Rules as annotated by Marie Chan, it is reported in the Annotation the interim payments made to the infant Plaintiffs in the instant case. 

[23]	These interim payments are also referred to the judgment in "Edlin Mani v Dharmendra Kumar and Yees Cold Storage Seafood Ltd, at page 56 of (2012) 1FLR.

[24]	I have read this note of interim payments in my reading of the Rules and Law Report. What would be my position if counsel had not informed me of the interim payments but, nevertheless, I had information about them from reading the Rules or the Law Report. These not being communications made to the Court which is prohibited by Order 29 Rule 15, would I still be required to recuse myself? 

[25]	This is a question that is open for decision but which I am not called upon to decide in the particular circumstances of this matter. 

CONCLUSION

I therefore for the above reasons make the following orders:

1.	That this civil action is reheard denovo.

2.	That because I am recusing myself from hearing this matter, it be sent back to the Registry to fix this action for mention before another judge of the High Court who would then take charge of the proceedings thenceforth. 

3.	There shall be no order as to costs.

Dated and Delivered in Suva on 16 March, 2015

............................
D. C. Alfred
JUDGE