Adderley v Yamacraw Beach Estates Ltd

JurisdictionBahamas
CourtCourt of Appeal
JudgeBlair-Kerr, P.,Duffus, J.A.,Luckhoo, J.A.
Judgment Date05 Mar 1980
Neutral CitationBS 1980 CA 6
Docket NumberCivil Side No. 7 of 1978

Court of Appeal

Blair-Kerr, P.; Duffus, J.A.; Luckhoo, J.A.

Civil Side No. 7 of 1978

Adderley
and
Yamacraw Beach Estates Ltd.

Practice and procedure - Appeals — Extension of time

Practice and procedure - Title to land — Filing of adverse claim — extension of time.

Judgment of the Court:
1

The appellant, by petition filed pursuant to section 3 of the ( Quieting Titles Act, sought a declaration that he was entitled to certain land. He then applied ex parte under rule 3 of the Quieting Titles Rules for various directions; and on 17th August 1976 the Chief Justice ordered, inter alia, as follows:–

  • “1. That notice of the petition in the usual form be advertised at ten day intervals on three consecutive occasions in the Nassau Guardian and Tribune intimating that copies of the plan filed herein may be inspected at the Registry of the Supreme Court and at the chambers of the Petitioner's attorney…. and setting out the last date fixed for the entry and service of notice of adverse claims.

  • 2. That notice of adverse claims in the prescribed form be entered arid served on or before the

    11th October 1976 …”

2

We do not know whether it was negligence or inadvertence on the part of the appellant, or the fact that the newspapers were not in a position to accept advertisements. But, whatever the reason, the appellant did not comply with the Chief Justice's directions; and, on 27th September 1976, he took out a summons seeking an order “that the date fixed for the filing of adverse claims herein be extended”.

3

Although there had been no publication, it had come to the notice of the respondent company that a petition had been filed, and that an order had been made on 17th August 1976. Noting that the last day for the filing of adverse claims was 11th October 1976, they prepared their adverse claim on Friday 8th October 1976. They could not file the document on Monday 11th October 1976 because that was a public holiday. Therefore they filed it on Tuesday 12th October 1976; and they also took out a summons seeking an order, inter alia, (1) that the time for filing adverse claims be extended (2) that the appellant give security for costs (3)….and (4) in the alternative that the petition be dismissed.

4

It appears that at one stage the Chief Justice dismissed the appellant's petition; but a subsequent summons was taken out for a re-hearing; and on 26th November 1976 the Chief Justice made the following order:–

  • “1. I revoke my previous order dismissing the petition.

  • 2. I allow an extension of time for the advertisement of the petition in the usual form in the two newspapers referred to in my order dated 17th August 1976, the first advertisement to appear within 7 days of today's date, stating inter alia, that adverse claims be filed on or before the 15th January 1977.

  • 3. I direct that a copy of the said notice be served at the registered office of Yamacraw Beach Estates Ltd. within 10 days of today's date. _

  • 4. …………………………………

  • 5. …………………………………”

5

On 26th January 1978, the appellant filed a notice of motion, on the hearing of which he sought an order that the adverse claim filed on 12th October 1976 is null and void on the ground, inter alia, that it was not filed “within the period of time fixed by section 6 of the Quieting Titles Act….. and was not filed in compliance with section 7 of the Act.” On 27th April 1978, the Chief Justice dismissed the appellant's application; and this is an appeal from that decision.

6

At the outset of the hearing of this appeal it was submitted on behalf of the respondent that leave to appeal from the order of the learned Chief Justice made on April 27, 1978, should have been sought and obtained prior to this appeal being launched. Counsel for the respondent, Mr. Kendall Isaacs, contended that the order in question was an interlocutory order and that by reason of s.10 (f) of the Court of Appeal Act, Cap. 34, no appeal lay without leave of the Supreme Court or of this Court. Mr. Isaacs intimated to us that he offered no objection to this court granting the necessary leave should the Court consider that his submission in limine was well founded.

7

We reserved our decision on this question and the appeal was argued on the footing that if leave was required it would be granted.

8

Having heard the appeal, we were of the opinion that it should be dismissed; and on 22nd November 1979 we so ordered, indicating that we would record the reasons for our decision and make them available to the parties later.

9

On the question whether leave to appeal should have been sought and obtained prior to this appeal being launched, Mr. Bethell, counsel for the appellant, submitted that the order in question, going as it did to the status of a party, was a dual order and therefore leave to appeal the order was not required. Mr. Bethell referred to the notes to 0. 59, r.4 (2) of the Supreme Court Practice, 1979 which set out tests to be applied to ascertain whether an order is final or interlocutory for the purpose of an appeal being brought. Mr. Bethell relied on the case of Bozson v Altrincham Urban District Counsel [1903] 1 K.B. 547. Here Lord Alverstone, C.J. said that “…the test is whether the judgment or order as made finally disposed of the rights of the parties”. Mr. Kendall Isaacs, however, relied on those judgments where the test applied looked to the nature of the -application to the court and not the nature of the order which the court eventually made. Such a test was applied in Salaman v Warner [1891] 1 Q.B. 734 by the English Court of Appeal. In that case Lord Esher, M.R. at p.785 said:

“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 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”.

10

Fry and Lopes, L.J.J. were of a similar opinion.

11

The test enunciated in Salaman v Warner was applied by, the English Court of Appeal in Salter Rex & Co. v Ghosh [1971] 2 Q.B. 597. The trial judge in that latter case had refused the defendant's application for a new trial and the defendant attempted to lodge an appeal to the Court of Appeal four weeks after the judge's order in the belief that that order was a final order. The officer of the court refused to accept it on the ground that it was an appeal from an interlocutory order and should have been lodged within 14 days. On the defendant's application to the Court of Appeal for leave to have the time for appealing extended, the question was whether the order refusing a new trial was interlocutory or final. The Court of Appeal held that the order was interlocutory. In the course of the arguments presented to the Court the merits of the judgments in the cases of Salanan v Warner and Bozson v Altrincham Urban District Council were canvassed. Lard Denning, M.R. at p.607 (in whose judgment Edmund Davies and Stamp, L.J.J, concurred) referred to those cases and said:

“Lord Alverstone was right in logic but Lord Esher was right in experience. Lord Esher's test has always been applied in practice……So I would apply Lord Esher's test to an order refusing a new trial. I look to the...

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