Alexandra Henderson v Yamaha Motor Manufacturing Corporation of America
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, P |
| Judgment Date | 08 September 2022 |
| Neutral Citation | BS 2022 CA 119 |
| Docket Number | SCCivApp No. 153 of 2021 |
| Court | Court of Appeal (Bahamas) |
| Year | 2022 |
and
The Honourable Sir Michael Barnett, P
The Honourable Mr. Justice Evans, JA
The Honourable Madam Justice Bethell, JA
SCCivApp No. 153 of 2021
IN THE COURT OF APPEAL
Civil Appeal — Service of Writ — Application to Dispense with the Requirement of Court of Appeal Rule 27(5) — Application for Certification of a Point of Law of General Public Importance — Court of Appeal Rules 9, 27(5)
The Appellant brought an action in the court below against the Respondents for personal injury. The matter was brought before the Registrar of the Supreme Court to decide on an issue of service of the Writ. The Registrar delivered an oral ruling to the parties then reversed her oral ruling a few days later and allowed the Appellant's application. The Respondents then appealed the Registrars decision. The appeal was heard by Supreme Court Justice Bowe-Darville who found in favour of the Respondents. The Appellant then sought and obtained leave from the Supreme Court to lodge an appeal against the decision of Justice Bowe-Darville to this Court. The Appellant made applications to the court to certify that the proposed appeal raises points of law of general public importance that requires the consideration of this court and to dispense with the requirement of Rule 27(5) of the Court of Appeal Rules that the application for certification should first be made to a judge of the Supreme Court. The court heard the parties and reserved its judgment.
Held: the application to dispense with Order 27 (5) is allowed; the application for certification is refused. The decision of Bowe Darville J will stand. The record should however reflect that the order of the judge was to set aside the service of the writ on Yamaha and not to set aside the writ itself. Cost on both applications are the respondents to be taxed if not agreed.
The Appellant obtained leave from the judge to appeal the decision but she did not seek nor did she obtain from the judge a certification that the appeal involved a point of law and that the point is one of general public importance. That certification is a requirement to this court jurisdiction to hear this proposed appeal. Rule 9 permits this court to permit departure from the rules “where this is required in the interests of justice”.
The court determined that it would be wrong to shut the Appellant out because of the mistake of her counsel in not applying to the court below for the required certification and exercised the court's power to determine whether the proposed grounds were points of law of general public importance which required the consideration by this court in the proposed appeal.
The court addressed each of the four grounds of appeal and decided that the grounds were not of general public importance and even if they were it was not satisfied that the grounds could be a basis for setting aside the decision of the judge below. The Court thereby refused the application for certification.
Birkett vs. James [1977] 2 All ER 801 mentioned
Camera Care Ltd v Victor Hasselblad [1986] 1 F.T.L.R 348 considered
Eric Newbold v Island Hotel Ltd SCCivApp No. 135 of 2020 considered
Executors of Evans and another v Metropolitan Police Authority [1992] IRLR 570 considered
Flowers v Scavella SCCivApp. No. 101 of 2020 followed
Fund Haven Ltd v The Executive Director of the Securities Commission of The Bahamas [2021] UKPC 11 considered
L and B (children) [2013] UKSC 8 mentioned
Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874 considered
Moss v Moss (In her capacity as Administratrix of the Estate of the late Willard Nazi Moss) [2015] 2 BHS J No. 114 considered
Pratt v Kelly SCCivApp No. 39 of 2020 considered
Re Blenheim Leisure (Restaurants) Ltd. (No. 3) The Times, 9 November 1999 considered
Stewart v Engel [2000] 1 W.L.R. 2268 considered
West Bay Management Ltd v Bahamas Hotel Maintenance and Allied Workers Union SCCivApp No. 164 of 2015 considered
Ms. Christina Galanos, Counsel for the Appellant
Mr. Christopher Jenkins, with Mr. McFalloughn Bowleg Counsel for the Respondents
Judgment delivered by The Honourable
The appellant wishes to appeal a decision of a judge setting aside the service of a Writ on the respondents.
The applications before the court are; (i) to dispense with the requirement of Rule 27(5) of the Court of Appeal Rules that the application for certification should first be made to a judge of the Supreme Court and (ii) to certify that the proposed appeal raises points of law of general public importance that requires the consideration of this court. The two separate applications were heard together.
The Appellant's relevant Notice of Motion filed 20 July 2022 was in the following terms:
“TAKE NOTICE that the Court of Appeal will be moved so soon as Counsel can be heard on behalf of the above-named Appellant on the hearing of an application pursuant to rule 9(1)(c) of the Court of Appeal Rules FOR AN ORDER directing a departure from rule 27(5) of the Court of Appeal Rules in the ventilation of the Amended Notice of Motion for an order for the issue of a certificate that the points of law involved in the instant appeal are of general public importance, which was filed herein on the 20th day of July, A.D., 2022”.
And the same day the Appellant filed an Amended Notice of Motion:
“TAKE NOTICE that the Court of Appeal will be moved so soon as Counsel can be heard on behalf of the above-named Appellant on the hearing of an application pursuant to section 21(1) of the Court of Appeal Act and rule 29(1) of the Court of Appeal Rules FOR AN ORDER for the issue of a certificate that the points of law involved in the instant appeal are of general importance. The said points of law are listed in the proposed grounds in the Notice to Amend, filed herein on the 28 th day of March, A.D., 2022 and they all contains points/questions of law, which are of general public importance as follows:
This case has a long history.
On the 24 February, 2013 the appellant had an accident at Harbour Island whilst driving a Yamaha Rhino golf cart. She suffered injuries. On the 23 February, 2016 she brought an accident for damages for personal injuries. The Writ was issued the day before the three year limitation period provided for by section 9 of the Limitation Act expired.
The defendants named in the Writ of Summons were Yamaha Motor Manufacturing Corporation of America, Yamaha Motor Co. Ltd. Harbourside Marine Ltd, Robert W. Miller and Breezes of the Caribbean Limited. The two Yamaha companies are the parties to this appeal. They are both companies operating in Georgia in the USA. They are not alleged to be carrying on business in The Bahamas other than they sold their product Yamaha Rhinos in The Bahamas.
Notwithstanding that the addresses of Yamaha were located outside The Bahamas, the Writ was issued without the leave of the court and the Writ was not marked “Not for service out of the jurisdiction”. Order 6 Rule 6 provides:
“No writ which or notice of which is to be served outside the jurisdiction shall be issued without the leave of the court”
On the 15 February, 2017 almost a year after the Writ was issued the plaintiff applied ex parte under Order 11 Rule 1 for the following orders:
“1) That the Plaintiff has leave to serve the Writ of Summons filed here in on the 23 rd day of February, A.D., 2016 on the First and Second Defendants, Yamaha Motor ‘Manufacturing Corporation of America and Yamaha Motor Co. Ltd. Respectively at 1000 Highway 34 East, Newman, Georgia 30265, United States of America, or elsewhere in the United States.
(2) That the time for entering an appearance in the action by the First and Second Defendants be 28 days after service on them of the said Writ of Summons.”
The application was supported by an affidavit of Sherrimae Rahaming, the office manager of Henderson's attorney, based upon information and belief. The affidavit was as follows:
“I, SHERRIMAE RAHMING of the Southern District of the Island of New Providence one of the Islands of the Commonwealth of The Bahamas make oath and say as follows:
1. I am the Office Manager of the firm Messrs. CG Chambers of MECAM House, Dowdeswell & Deveaux Streets, Nassau, Bahamas, Attorneys for the Plaintiff and I am duly authorized to make this Affidavit on its behalf.
2. Unless otherwise stated I depose to the facts and matters herein from my own personal knowledge and from knowledge acquired by me from review of the pages, documents and files in our possession and from information supplied to me, which information I believe to be correct and true to the best of my knowledge, information and belief.
3. By virtue of a Service Agreement dated 5 th November, 2011, the Plaintiff became an employee/caretaker for the Third and Fourth Defendants.
4. While working for the Third and Fourth Defendants, the Plaintiff would often commute by way of a 2005 Yamaha Rhino 660 Golf Cart, Identification Number 5Y4AMO4Y55A01477Y (hereinafter referred to as “the said Rhino”), which was purchased by the Fourth Defendant, through the Fifth Defendant for the employees' use at the Fourth Defendant's residence (hereinafter referred to as “the said residence”).
5. On or about 24 th February, 2013 at approximately 9:00 pm, the Plaintiff was operating the said Rhino, which was provided to her by the Fourth and Fifth Defendants as part of her employment in commuting around the said residence on a daily basis in order to fulfill her duties under the said Service Agreement when the said Rhino tipper over at a low rate of speed and crushed the Plaintiff's left leg causing the Plaintiff to suffer devastating injuries to her left leg.
6. Since the...
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