Christopher Stubbs Shanna's Cove Estate Company Ltd v Allan Crawford Sharon Crawford

• Jurisdiction: Bahamas
• Judge: Sir Michael Barnett, P
• Judgment Date: 25 January 2023
• Neutral Citation: BS 2023 CA 7
• Docket Number: SCCivApp. No. 59 of 2020
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, P

The Honourable Mr. Justice Evans, JA

The Honourable Sir Brian Moree JA

SCCivApp. No. 59 of 2020

Between

Christopher Stubbs Shanna's Cove Estate Company Ltd.

Appellants

and

Allan Crawford Sharon Crawford

Respondents

APPEARANCES:

Mr. Alexander Dorsett, Counsel for the Appellants

Mr. Khalil Parker, KC with Roberta Quant and Giahna Soles-Hunt, Counsel for the Respondents

Civil appeal — Application for final leave to appeal to the Privy Council — Non-compliance with the Bahama Islands (Procedure in Appeals to Privy Council) Rules — Record not properly prepared — Application to set aside grant of conditional leave — Extension of time for the preparation of the Record — Rules 4 and 8 of the Bahama Islands (Procedure in Appeals to Privy Council) Order, 1964

Conditional leave to appeal to the Privy Council was granted to the appellants on the usual terms on 4 May 2022. On 6 September 2022 the appellants applied for final leave to appeal to the Privy Council. The respondents objected to final leave being granted on the basis that there has been non-compliance with the Order granting conditional leave, in that the Record was not properly prepared. In the circumstances, the respondents ask that the conditional leave granted be set aside.

Held: Time for compliance with the Order granting conditional leave, with respect to the preparation of the Record, is extended by sixty days from the date of this judgment. With respect to the issue of costs, the Court will receive written submissions within seven days of the date of this judgment.

As per the Bahama Islands (Procedure in Appeals to Privy Council) Order, 1964 (the Privy Council Rules) the preparation of the Record shall be a cooperative effort between the parties, under the supervision of the Court/Registrar, but the primary responsibility for the preparation of the Record is that of the appellant.

Unlike Rules 3 and 4(a) of the Privy Council Rules, there is no time limit imposed by Rule 4(b) of the Privy Council Rules which relates to the preparation of the Record and its dispatch to England.

Following a review of the authorities, the Court is of the view that it does have jurisdiction to extend the time for the preparation of the Record and its dispatch to England.

In the present case, the interest of justice is not served by setting aside the conditional leave granted; but rather by extending the time for the preparation of the Record for sixty days from the date of this judgment

Cunningham v Broadcasting Corporation of The Bahamas SCCivApp. No. 168 of 2014 distinguished

Reid v Charles and another (1987) 39 WIR 313 applied

Roulstone v Panton (1979) 33 WIR 238 applied

Sir Michael Barnett, P

Judgment delivered by the Honourable

1 . This is a contested application by Christopher Stubbs and Shanna's Cove Estate Company Limited (“the appellants”) for final leave to appeal to the Privy Council. Allan and Sharon Crawford (hereinafter called “the respondents”) oppose the grant of final leave on the basis that the appellants have not complied with the conditions imposed when conditional leave was granted, and the time for compliance has expired.

2 . The appellants were granted conditional leave to appeal a judgment of this Court dated 13 January 2022. Conditional leave was granted on 4 May 2022 on the following terms:

“Leave to appeal to Her Majesty in Council is granted on the condition that within a period of 90 days from the date hereof, each applicant do enter into a good and sufficient security in a sum not exceeding $2,861.00 for the due prosecution of the appeal and the payment of all such costs as may become payable by each applicant in the event of their not obtaining an order granting them final leave to appeal or of the appeal being dismissed for non-prosecution or of the Judicial Committee ordering each applicant to pay the costs of the appeal; and that within 90 days from the date hereof, the applicants and each of them shall take the necessary steps for the purpose of procuring the preparation of the record and the dispatch thereof to England.”

3 . On 6 September 2022 the appellants applied for final leave to appeal to the Privy Council. The Motion was supported by an Affidavit of Compliance sworn to by Italia Kelly in the following terms:

• “1. That I make this affidavit base (sic) on my own knowledge, except as otherwise stated. This affidavit is in support of the Appellants' application for final leave to appeal to the Privy Council.

• 2. That in compliance with the Order made on the 4th day of May, A. D. 2022, upon the Appellants application for conditional leave to appeal to the Privy Council, the record of Appeal was filed on the 28 ^th day of July, 2022, and the bonds were posted or paid by the Appellants on the same date.

• 3. That to the best of my knowledge, information and belief the contents of this affidavit are correct and true.”

4 . On 21 October 2022 the respondents filed an Affidavit of Shelly Beadle in response to the Affidavit of Italia Kelly. The Beadle Affidavit was in the following terms:

• “1. I am a Legal Assistant with Cedric L. Parker & Co., Co-Counsel for the Intended Respondents herein, and that I am duly authorized to swear this Affidavit on the Intended Respondents' behalf, which I do from my own knowledge and based on information provided to me by the Intended Respondents and Counsel for the Intended Respondents.

• 2. I make this Affidavit in opposition to the Intended Appellants' application by the Notice of Motion filed herein on the 6th day of September A.D. 2022 for an Order granting them Final Leave to appeal to His Majesty in Council and seeking an Order dismissing the Intended Appellants' said Notice of Motion and application for Final Leave.

• 3. The Intended Appellants failed to comply with the conditions upon which Conditional Leave to Appeal was granted to them, having failed to within 90 days of the said Order, or at all, to take the necessary steps for the purpose of procuring the preparation of the record and the dispatch thereof to England.

• 4. The Intended Respondents are in receipt of the Intended Appellants' Affidavit of Compliance, filed herein on the 6 ^th day of September A.D. 2022, the contents of which are disputed, and which Affidavit is hereby under reply. The Intended Respondents maintain that the Intended Appellants have failed to file and serve a Record of Appeal pursuant to and in accordance with the relevant rules and the Order of this Court granting Conditional Leave to Appeal on the 4 ^th day of May A.D. 2022.

• 5. The Intended Respondents are in receipt of several volumes of what purports to be a Record of Appeal filed by the Intended Appellants on the 28 ^th day of July A.D. 2022, with no case number indicated, which purported Record of Appeal was neither approved by the Intended Respondents nor prepared under the supervision of the Court. The Intended Respondents received from the Intended Appellants a purported Record of Appeal comprised of a Volume 1, 1A, 2, 3, 3A, 3B, 3C, and 4.

• 6. The said purported Record of Appeal failed, to the Intended Respondents' prejudice, to include essential documents, in particular:

  • i. Letter from Andrew O'Brien to Jackson McIntosh dated the 5 ^th day of December A.D. 2014, regarding the Crawfords' demand to cease and desist construction, and the encroachment over the Access Road.

  • ii. Plaintiffs' List of Documents filed on the 28 ^th day of April A.D. 2017.

  • iii. 1st and 2nd Defendants' List of Documents filed on the 18 ^th day of October A.D. 2018.

  • iv. Plaintiffs' Submissions for Trial submitted the 14 ^th day of January A.D. 2019.

  • v. Appellants' Submissions filed on the 17 ^th day of June A.D. 2021.

  • vi. Notice of Motion for Supplemental Record of Appeal filed on the 18 ^th day of October A.D. 2021.

  • vii. Supporting Affidavit of Cedric Moss filed on the 18 ^th day of October A.D. 2021.

  • viii. Transcript of the hearing before the Court of Appeal on the 21 ^st day of October A.D. 2021.

  • ix. The Supplemental Record of Appeal filed on the 2 ^nd day of November A.D. 2021.

  • x. Transcript of the hearing before the Court of Appeal on the 2 ^nd day of November A.D. 2021.

  • xi. Transcript of the hearing before the Court of Appeal on the 13 ^th day of January A.D. 2022.

  • xii. Notice of Motion for Conditional Leave to Appeal filed on the 24 ^th day of January A.D. 2022.

  • xiii. Affidavit of Floyd Armbrister dated the 24 ^th day of January A.D. 2022.

  • xiv. Respondents' Submissions filed on the 18 ^th day of October A.D. 2022.

  • xv. Respondents' Submissions with authorities filed on the 28 ^th day of October A.D. 2022.

  The Intended Respondents undertake to highlight such further omissions as may be discovered in due course as we seek to navigate the disjointed purported record produced by the Intended Appellants.

• 7. The said purported Record of Appeal also included documents not properly before the Court, in particular the Witness Statement of Patrick Ferguson (Item 49), dated the 18 ^th day of October A.D. 2018, which witness did not give evidence at trial and whose witness statement was not entered into evidence. The Intended Appellants have also included inappropriately annotated documents in, and omitted pages of documents from, their purported Record of Appeal, which is not reasonably or properly indexed or tabulated to afford effective navigation of the several volumes. The said purported Record of Appeal is fundamentally unusable as presented.

• 8. The Intended Appellants' failure to procure the preparation of a proper Record of Appeal, and have the same dispatched to England, in accordance with the Order granting them Conditional Leave entitles the Intended Respondents to the relief sought and the dismissal of this application. The Intended Appellants'...