Libyan Arab Uganda Bank for Foreign Trade & Development & Another v Vassiliads (Civil Appeal 9 of 1985) [1986] UGCA 23 (12 June 1986)

## IN THE COURT OF APPEAL

AT MENGO

(Coram: Wambuzi P, Lubogo Ag. J. A. and Odoki J. A.)

CIVIL APPEAL NO.9 OF 1985

Between

$\ldots, \ldots, \ldots, \ldots, \ldots)$ LIBYAN ARAB UGANDA BANK FOR FOREIGN TRADE AND DEVELOPMENT .................................... HAJI MOHAMMAD MAGID BAGALALIWO....................................

and

..... RESPONDENT

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ADAM VASSILIADS ...........

(Appeal from the judgment of the High Court of Uganda at Kampala (Opu J,) dated 11th June 1985 in (Civil Suit No.847 of 1983)

## JUDGMENT OF ODOKI J. A.

I had the benefit of reading in draft the judgment prepared by the learned President and I fully agree with him that this appeal must be allowed.

The facts of the case have been set out in detail in the judgment of the learned President and I do not propose to repeat them again. This appeal raises a question of great public importance. It concerns a matter which strikes at the very foundation upon which our system of administration of justice is based. It is a question to the fundamental right of every person in this which relates country to a fair trial in our courts as guaranteed by the Constitution. Article 15(9) of the Constitution provides,

"Any court or other adjudicating authority prescribed by law for the determination of the existance or extent of any civil right or obligation shall be established by law and shall be independent and impartial and where proceedings for such determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time"

This provision lays down two requirements for a fair trial: firstly, that the court must be independent and impartial and secondly, that the court must give the case a fair hearing. It seems to me that this provision embodies the two cardinal principles of natural justice, namely that no man shall be a judge in his own cause(the rule against bias) and that no man shall be condemned unheard (the right to be heard).

In the first two grounds of appeal, the appellants complained in effect that they never had a fair hearing due to the trial judge's mental illness, misconduct and bias. They asked for a fresh trial before another judge. The first two grounds of appeal were:

- That in law and fact the whole trial $"1.$ of the said civil suit and the decision arising therefrom were a complete nullity. The appellants will conterd that, owing to the trial judge's chronic mental illness which had recurred before, during and after the trial, the learned Judge was at all material time a person who was mentally unsound and therefore unfit to conduct the said trial. The grounds for the contention are contained in counsel's affidavit annexed hereto and marked Annexture "A" - 2. That the learned Judge's mental condition, misconduct and/or bias prevented the appellants from having a fair trial."

In support of these grounds of appeal, Mr. Kulumba-Kiingi, learned counsel for the appellants, sought to rely on his own affidavit "Annexture A" which had been filed as part of the record of appeal. In that affidavit, Mr. Kulumba-Kiingi sought to disclose what had transpired during and after the hearing of the case, which matters were not contained in the judge's notes of the proceedings. We ruled against the admission of this affidavit and I agree with the reasons given by the learned President for so ruling. Indeed the inclusion of the affidavit in the record of appeal offended against rule 85 of the Rules of this court. $/3...$

Columbia 24

The proper course for counsel to take would have been to make an application for leave to adduce additional evidence under Rule 29 of the Rules of this court which provides,

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$"29(1)$ On appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the court shall have power (a) to reappraise the evidence and to draw inferences of fact:

- (b) in its descretion for sufficient reason to take additional evidence or direct that additional evidence be taken by the trial court or by a commissioner. - (2) When additional evidence is taken by the court, it may be oral or by affidavit and the court may allow the cross-examination of any deponent."

Since the appellants did not make any application for leave to adduce additional evidence it is not necessary to consider whether their application would have been allowed. But in England the Court of Appeal has power to allow a party on application to rely on counsel's notes of the proceedings where the judge's note or transcript of evidence are inadequate or incomplete. See Ex parte Firth (1882) 19 Ch. D.419, Parkinson v. Parkinson(1947) 63 T. L. R. 439, Thomson v. Andrews(1968) 1 WLR 778.

In Parkinson v. Parkinson(Supra) the husband petitioned for divorce, and the trial judge dismissed the petition. The judge made no note of the evidence nor was one available from the shorthand writer. Furing the hearing of the appeal the husband made an application under 0.58 r.ll of the Rules of the Supreme court to read an affidavit as to the evidence sworn by a solicitor. Scott L. J. allowing the application said,

> "The court has on several occasions previously admitted a note made by a solicitor's Clerk coupled with a statement by counsel that the note had been taken in court. In the present

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case there is no such statement by counsel, but, as the solicitor has put his note as the evidence in the form of an affidavit, the court has thought it right to admit it."]

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In Thomson v. Andrews (Supra) proceedings were taken before an official referee for damages for breach of contract. In accordance with the normal practice no official shorthand note of the proceedings was taken, but the defendant's solicitor took a very full note of the evidence. For purposes of appeal defendant's solicitors obtained the official referee's the own note of evidence but considering it to be inadequate, they obtained his agreement to the substitution of their own note for use on appeal. The plaintiff's legal advisers when approached objected to the proposed substitution. At the hearing of the appeal counsel for the defendant applied under RSC $(.59 r.12(1)(b)$ for substitution of the solicitors note for that official referee. The court of Appeal refused the application on the ground that there had been no agreement by the other side to the substitution. Salmon L. J, said,

> "The normal practice is that save in the most exceptional circumstances, this court will look only at something other than the shorthand note or the judge's note if it is an agreed note of evidence. Whether it be taken by a solicitor or counsel seems to me immaterial." (

Although the authorities I have cited are English decisions where the procedure for recording evidence may be different from Uganda, I respectfully agree with principles enunciated therein. In the absence of local decisions on the matter, I believe that they offer some guidance on the procedure-counsel may take where he intends or wishes to supplement the official record of proceedings as taken down by the trial judge with his own note of evidence or by affidavit of his own observations of the judge's conduct or incidents which happened during the hearing either in court or outside it.

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Having ruled that the affidavit was inadmissible, Mr. Kulumba-Kiingi abandoned the first ground of appeal, and the entire issue of the mental condition of the learned trial judge in the second ground of appeal. But before counsel did so, Mr. Kutesa learned counsel for the respondent argued that this court cannot inquire into the mental soundness of the trial judge. I do not for my part agree entirely with this broad statement. I agree that the issue of a judge's inability to perform the duties of his office either due to infirmity of body or mind or from any other cause, or for misbehaviour can only be inquired into by a tribunal appointed under Article85(5) of the Constitution, after the cabinet has represented to the President that the question of his removal should be investigated. But where it is alleged on appeal that the infirmity of the judge or misconduct has denied the parties a fair trial, this court must have the jurisdiction to determine the matter if it is appropriately raised. To hold otherwise would be to abdicate our primary duty to ensure that justice is done between the parties by remedying any miscarriage of justice.

The substantial question for consideration is whether the trial judge's misconduct and/or bias prevented the appellants from having a fair trial. I shall deal with the ground of bias first. Mr. Kulumba-Kiingi submitted that the trial judge was biased against the appellants. Counsel invited this court to infer from the record of proceedings that there was bias. He also contended that after he had withdrawn from the case, the appellants did not return to court to take part in further proceedings because they suspected that the judge was biased. Mr. Kutesa for the respondent submitted that the appellants could

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not raise objection based on bias since they accepted the judge's jurisdiction, and secondly that the allegations of bias were mere conjecture since they were not based on any evidence.

The learned trial judge commented on the allegation of bias at the end of his judgment in these words:

"Before I leave this suit, I am constrained. to make certain remarks. When I returned from Kabale and before I could write judgment in this case, I heard what I can only describe as bizzare happenings. When I was hearing the case, ablivious to me, events were taking place outside the court room which were totally unethical. An advocate of this court, who was a witness in the case conceived that I was bias against the defendants. He set out to remedy the situation which to him was a travesty of justice. He went to a well known Judge friend of his and raised his complaint. That Judge friend put the advocate to those who he thought could provide a remedy. I am astounded that this judge and his friend never realised that there was no remedy outside the court. The advocate was aspered to where it was believed vestress could be obtained. I am surprised that it did not occur to the judge, Advocate and others that they could not discuss a case which was being heard by another judge. I understand that a number of meetings were held about this case. I do not know what useful purpose these meetings would achieve or did achieve. I thought it elementary that once a judge is seized with a case the conduct of that case is sorely in his hands until judgment. I understand it is the right of an advocate to withdraw from a case as if he has good reason although this is usually not the best course. Usually a prudent advocate would proceed to the end. In case he thought the judge was bias, he would make that a ground of appeal. The spectacle of a badly behaved advocate withdrawing from a case and a witness advocate running helper scalter in search of non-existence assistance to me is at most undinified and down right stupid. What happened in this case was completely unethical and must never be repeated in my court. I am making available to the Chief Justice a copy of this judgment with a request that the conduct of Mr. Ndozireho and Kulumba-Kiingi be brought to the attention of the Uganda Law Society. I do not want my court to be disgraced. It is a mistake for any advocate to think that this court will be intimidated by allegations of bias."

It is abundantly clear from the above remarks that the

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allegation of bias was somehow brought to the attention of the trial judge. It is not clear however, how it was brought to his cognisance. The learned judge only states that it was conceived by Mr. Ndozireho during the hearing of the case, as a result of which various meetings were held over the matter. There is nothing in the record of proceedings other than the judgment to indicate that this allegation of bias was raised in court. Therefore we do not know the nature of bias that was suspected against the trial judge.

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Bias may be established against a person sitting in a judicial capacity on one of the two grounds. The first is direct pecuniary interest in the subject matter. The second is bias in favour of one side against the other: See Metropolitan Properties Cc. F. G. C. Ltd. v. Lannon 1969 1 QB 577. Bias therefore means a real likehood of an operative prejudice whether conscious or unconscious. See R. V. Justices of Queens Court (1908) 2 IR 282. In considering the possibility of bias it is not the mind of the judge which is considered but the impression given to reasonable persons. See Tumaini v. Republic 1972 E. A. 441. In Metropolitan Properties Co. F. G. C. Ltd. v. Lannon (Supra) Lord Denning said, at p.599,

"In considering whether there was a real likehood of bias, the court does not look at the mind of the Justice himself or at the mind of the Chairman of the tribunal or whoever it may be who sits in a judicial capacity. It does not look to see if there was a real likehood that he would or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was impartial as could be, nevertheless if right minded persons would think that in the circumstance there was a real likehood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. See Reg.v. Huggins(1895) 1 QB 563. Nevertheless there must appear to be a real likehood of bias. Surmise or conjecture is not enough: See <u>Reg. v. Cambone</u><br>Justices, Ex parte <u>Pearce</u> (1955) 1 QB 41, 48-51,

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(1954) 2 All E. R. 850 and Reg. v. Nailsworth<br>Licensing Justices ex parte Bird (1953) 1 WLR 1046, (1953) 2 All E. R. 652. There must be circumstances<br>from which a reasonable man would think it likely or probable that the justice or chairman as the case may be would or did favour one side unfairly at the. expense of the other. The court will not inquire whether he did in fact favour one aide unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right minded people go away thinking: The Judge was biased"

Indeed it is a well settled principle that justice must not only be done but must be seen to be done. As Lord Hewart C. J. said in an oft quoted passage, in R. V. Sussex Justices Ex parte Mcarthy (1924) 1 KB 256 at p. 259

"a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done"

As regards the evidence of bias, the authorities are clear that there must be reasonable evidence to satisfy the court that there was a real likelihood of bias. Objection cannot be taken at everything that might raise a suspicion in somebody's mind or anything which could make fools suspect. There must be something in the nature of real bias, for instance evidence of propriatary interest in the subject matter before the court or a likehood of bias based on close association with one of the parties as was the case in Tumaini v. Republic (Supra). In R. V. Justices of Queen's court(Supra) cited in R. V. Combone Justices ex parte Pearce(Supra) Slade J, said,

"There must in my opinion be reasonable evidence to satisfy us that there was real likelihood of bias. I do not think that mere vague suspicions of whissical, capricions and unreasonable people should be made standard to regulate our action here. It might be a different matter if suspicion rested on reasonable grounds - was reasonably generated but certainly merely flimsy, elusive morbid suspicions should not be permitted to form a ground of decision" $19...$ In the present case, there is no reasonable evidence to satisfy<br>me that there was a real likelihood of bias on the part of the learned trial judge. There was no evidence or oven suspicion that he had a direct pecuniary interest in the subject matter of the suit. There was no evidence that he was likely to favour the respondent against the appellants. And even if the trial judge may have been thought to have formed some opinion beforehand on the case, it is not enough to establish bias. (per Lord Goddard C. J. in R. V. Nailsworth Licensing Justices ex parte Bird(1953) 2 All E. R. 652 at p. 654. I therefore agree with the submission of Mr. Kutesa that the allegation of bias was mere conjecture and was not based on any evidence or reasonable suspicion.

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The record was silent as to whether counsel for the appellants objected to the judge hearing the case on the ground of bias. In my opinion counsel should have raised this objection at the trial and even if it were overruled, he should as the trial judge remarked in his judgment, have continued with the hearing and made it a ground of appeal. I agree with what Lord Loreburn L. C. said in Lord Mayor & Co. of Leeds v. Ryder and others (1907) A. C. $420$ at p. $424$ .

"Justices are not able satisfatorily to discharge their duty if the propriety of their sitting and adjudication is admitted when the case is before them and then is combated in courts of law afterwards. It is a reprehensible practice".

However in the instant case it can be said that appellants admitted the trial judge to adjudicate on their case because they seem to have refused to take part in further proceedings of the case before him. But the point that the appellants should have raised objection to the trial judge against his sitting still holds.

The appellants also argued before this court that they decided to abandon the hearing because they suspected that the trial judge had prejudged the case against them beforehand, and that it was futile to continue with the case before him. In this

$/10...$ connection, I wish to recall the words of Holroyd Pearce L. J. in Brassington v. Brassington (1961) 3 All E. R. 988 at p. 990,

"Before considering the effect of the remarks of which complaint is made, we must observe that only very strong case indeed could justify a refusal by a party to continue to take part in the trial. If a party though aggrieved, continues to present his evidence and arguments he can always reserve his complaint and appeal against unfair decision when it has been given. And any remarks which show that the tribunal prejudged the case against him before he had called his evidence will always in this court add very great weight to the substance of the appeal and may in themselves constitute a sufficient ground of appeal. The aggrieved party will<br>then at least have shown that he has a genuine case on which he either ought to have or could have succeeded."

Holroyd Pearce L. J. continued to say that a heavy burden of proof lies on a party refusing to continue with the trial to satisfy the Court of Appeal that he was justified in his apprehension that it would be futile for him to continue and that had he done so he would not have had a fair hearing. This is what he said,

"Whatever be the truth of the matter where parties refuse to call their evidence or to take part in any further part in the trial a very onus lies on them, to satisfy the Court of Appeal that the apprehension that for them, it would have been futile to continue and that had they done so, they would not have had a fair, proper and satisfactory hearing, was truly justified. (See per Lord Evershed M. R. in<br>Badcock v. Middlesex County Council, March 15, 1960. The Times March, 16 (1960)."

The reason why this heavy onus is imposed in the party who declines to proceed with his case on grounds of prejudgment is that if it were open for such a party to break off a losing battle when the court appears to be very much against him and then ask this court for a re-hearing, it would create an opportunity for many appeals to this court by underserving litigants.

In the instant case I am unable to find anything said or done by the learned trial judge which reasonably led the appellants to the conclusion that the learned trial judge has made up his mind

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against their case and that it would, therefore, be futile for them to continue with the hearing of the suit.

The other leg on which the second ground of appeal is based is the misconduct of the trial judge. Mr. Kulumba-Kiingi submitted that the trial judge's misconduct consisted in the judge's unnecessary interruption of counsel for the appellant during his cross-examination of the respondent, and in striking too soon. He submitted on the authority of Jones v. National Coal Board (1957)2 QB 55, that excessive intervention by court during counsel's cross-examination can amount to an unfair trial to warrant an order for a new trial. Counsel contended further that the trial judge struck too soon when he stopped counsel during cross-examination of the respondent and thus prevented the appellants from putting forward their case. As a result of that intervention no sufficient primary facts were elicited in the trial as the appellants were prevented from calling their evidence. In support of his submission that the trial jude struck too soon, Mr. Kulumba-Kiingi cited the cases of Fletcher v. London & North Western Railway Co. (1892) 1 QB 122 and Allen v. Francis (1914) 3 KB 1065.

Mr. Kutesa, for the respondent, submitted that the trial judge did not intervene in the proceedings at all until counsel for respondent became rude. He pointed out that it was then that the judge intervened to give soungel a dressing down. It was Mr. Kutesa's submission that it is not misconduct for a trial judge to comment on the discourtesy of an advocate. Secondly, Mr. Kutesa submitted that the trial judge did not strike too soon. He distinguished the case cited by Mr. Kulumba Kiingi on the ground that in those cases the parties were not allowed to state their cases. Mr. Kutesa pointed out that in the present case there were many adjournments on record, and when the hearing started, counsel for the appellants decided to with lraw from the case during cross-examination of the respondent,

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at his own instance, not that of the court. Even after counsel had withdrawn, an adjournment of two weeks was granted to enable appellants to engage another advocate. Therefore, Mr. Kutesa submitted, the record shows that the trial judge bent backwards to accommodate the appellants in order for them to have a fair trial.

It is I think well established law that excessive intervention in the proceedings by a trial judge may amount to misconduct justifying the grant of a new trial. See Jones v. National Coal Board (1957) 2 QB 55. In Patel v. Joshi (1952) 19 E. A. C. A. 42 the Court of Appeal for Eastern Africa held that a judge should not descend into the arena where his vision may be clouded by the dust of the conflict, but an appellate court will refuse a retrial unless it is convinced that the vision of the judge had become so clouded.

In Jones v. National Coal Board (supra) the trial judge intervened during the evidence for the plaintiff in order to understand the technicalities of expert evidence. During the evidence of the defendants the judge intervened frequently both during examination-in-chief and during cross-examination, at times conducting the examination of a witness himself, at times interrupting cross-examination to protect a witness against questions which he considered misleading. The nature and extent of his interventions were such as to break the sequence of question and answer. The complaint on appeal was

> "that the nature and extent of the Judge's . interruptions during the hearing of the evidence called on behalf of the defendants made it virtually impossible for the plaintiff to put the plaintiff's case properly or adequately or to cross-examine the witness called on behalf of the defendants adequately or effectively."

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The Court of Appeal held that although the judge may have been actuated by the best motives, his interventions taken together were excessive and ill timed with the result that no sufficient primary facts had been elicited to enable an appellate court to determine the issues of as to liability and therefore there must be a new trial. In so holding Lord Denning said, at page 63,

> "Nevertheless we are quite clear that the interventions taken together were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties not to conduct an investigation or examination on behalf of society at large, as happens, we believe in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question "How is that?" His object, above all is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon L. C. who said in a notable passage that truth is best discovered by powerful "statements on both sides of the<br>question." See Ex parte Lloyed (1822) Mont 70, 72n. And Lord Green M. R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Green, should himself conduct the examination of witness, he so to speak descends into the arena and is liable to have his vision clouded by the dust of conflict: See Yuill v. Yuill (1945) page 15, 61 T. L. R. 176 (1945) 1 All E. R. 183".

The facts of the above case are slightly distinguishable from those in the present case in that in this case the learned judge did not descend into the arena by taking part in the cross-examination of the witness. But like in the Jones case the trial judge in the instant case interrupted counsel during cross-examination although it seems there was only one interruption which led counsel to withdraw from the conduct of the case. Im both cases the complaint is that the intervention of the trial judge prevented the appellants from putting forward their case and therefore they did not have a fair hearing.

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After the respondent had been examined in chief, the record of proceedings shows the intervention as follows:

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"By Mr. Kulumba-Kiingi: I live in my own house. I could be a lease. I do not know anything about mailo land. I do not know whether there was consent from the Minister. Court: At this stage Kulumba-Kiingi advocate for the defendants became provocative and rude. I suffer no rudeness in my court slightly. I gave him a dressing down. I prifue (sic) he decided to withdraw from the case.

Mr. Kulumba-Kiingi - I am withdrawing."

It is clear that the intervention took place during crossexamination by Mr. Kulumba-Kiingi. The learned trial judge intervened to give counsel what he called "dressing down" for being provocative and rude. But there is no record of the remark made by counsel which the learned judge considered provocative or rude. To whom was counsel rude - to the court or the witness? Therefore, we do not know the nature and extent of the provocation or rudeness suffered by the learned judge. One thing which is clear is that as a result of the dressing down, counsel for the appellants withdrew from the case.

It was also argued that this intervention by the trial. judge amounted to striking too soon. In Fletcher v. London & North Western Railway & Co. (1892) 1 QB 122, the trial judge, after hearing the opening statement of counsel for the plaintiff. non suited the plaintiff without the consent of his counsel and inspite of his insisting that he ought to be allowed to call his witness. Lord Esther M. R. said,

> "I am of the opinion that the learned judge struck too soon. I will state in its broadest favour. In my opinion a judge has no right without the consent of the plaintiff's counsel to non suit the plaintiff upon his counsel's statement of facts. The opening of counsel may be incorrect in consequence of his having had wrong instructions."

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In Allen v. Francis (1914) 3 KB 1065 the county judge asked counsel who had been retained by Allen and the Prudential Society whether he was instructed by the society and for whom he appeared. Counsel in his discretion did not answer and the judge thereupon dismissed the application with costs. No evidence was before the judge but Allen was ready to be called. Lord Cozens Hardy M. R. said at page 1067,

> "In my opinion the judge struck too soon. He ought to have heard Allen and perhaps other witnesses and finally ascertained the facts. If he had then come to the conclusion that it was not really Allen's application and that Allen's name was merely being used by the Prudential the order dismissing the application would have been proper."

The facts in cases of Fletcher and Allen are also distinguishable from the present case in that in those cases the plaintiff's claim was dismissed without his being given an opportunity to prove his case. But the two cases reflect the same fundamental error of denying a party a fair opportunity of presenting his case, and thus being condemned without being heard.

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It was contended on behalf of the respondent that the trial judge did not strike too soon because he granted a two weeks adjournment to enable the appellants to engage another advocate. It is true that the adjournment was granted but when the court reconvened after the adjournment Mr. Rugasira is recorded as having appeared for the first appellant and yet counsel for the respondent applied to proceed ex parte on the ground that the appellants were absent and the application was granted. It is therefore not clear in my mind whether the opportunity which was given to the appellants to engage another advocate to represent them was not thrown overboard by denying Mr. Rugasira a hearing. It is doubtful whether in these circumstances the 1st appellant can be said to have had a fair trial.

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It seems to me that the blow the learned trial judge struck by his intervention had profound effect on the course of proceedings in this case. Counsel for the appellants did not only withdraw from the case, but the case proceeded ex parte after the adjournment. The learned judge observes in his judgment that meetings consisting of another judge, counsel and others were held over the case. The judge himself also made several abortive attempts to hold a meeting with both counsel and an advocate who was a witness in the case. It is not clear to us why he sought to meet Mr. Kulumba-Kiingi who had withdrawn from the conduct of the case and Mr. Ndozireho who was merely a prospective witness. This was before he delivered his judgment. We do not know what the learned judge intended to do. It may be that he intended to discuss allegations that had been made against him or to give the appellants an opportunity of being heard.

In these circumstances, I am not satisfied that the hearing of this case was conducted in a satisfactory manner and that the appellants had a fair trial. I am unable to say that the learned trial judge did not strike too soon or that his intervention, though may have been actuated by the best of motives, did not prevent the appellants from putting forward their case. Since the case proceeded ex parte, I am unable to say that the decision reached was the inevitable decision because we have not all the material facts for the purpose. As Lord Denning said in Jones v. National Coal Board (supra) at page 61.

> "We much regret that it has fallen to our lot to consider such a complaint against one of Her Majesty's judges: but consider it we must because we can only do justice between these parties if we are satisfied that the primary facts have been properly found by the judge on a fair trial between the parties. Once we have the primary facts fairly found we are in as good a position as the judge to draw inferences or conclusions from those facts, but we cannot embark on this task unless the found tion of primary facts is secure."

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I respectfully agree with those sentiments and principles which apply with equal force to this case.

I agree that this is a proper case in which to order a new trial before another judge since the trial was not conducted sitis actorily. It is trite law that in gene , ral a retrial will be ordered only where the original trial was illegal or defective. It will also be ordered where it is likely to cause any injustice to any party. Fatehali Manji v. Republic (1966) E. A 343. As the trial was unsatisfactory the appellants never had a fair hearing and therefore the interests of justice require that there should be a retrial. I agree entirely with the dictum of Wills J.in R.v. Huggins $(1895)$ 1 QB 563 when he said,

> "It is impossible to overrate the importance of keeping the administration of justice by magistrates clear from all suspicions of unfairness."

Accordingly, I agree with the orders and directive proposed by the learned President.

DATED at MENGO this 12th day of June 1986.

Signed:

J. B. ODOKI JUSTICE OF APPEAL

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Mr. Kiingi-oflM/s. Kulumba-Kiingi and Company Advocates for the applicant.

Mr. Nkurunziza of M/s. Mulenga and Company Advocates.

I certify that this is a true copy of the original.

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M. K. KALANDA<br>REGISTRAR COURT OF APPEAL