Colin Wright v The Bahamas Communications and Public Officers Union Plan & Trust Fund
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Jon Isaacs JA |
| Judgment Date | 17 February 2021 |
| Neutral Citation | BS 2021 CA 22 |
| Date | 17 February 2021 |
| Docket Number | SCCivApp. No. 111 of 2018 SCCivApp. No. 157 of 2018 SCCivApp. No. 158 of 2018 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
The Honourable Mr. Justice Roy Jones, JA
SCCivApp. No. 111 of 2018
SCCivApp. No. 128 of 2018
SCCivApp. No. 157 of 2018
SCCivApp. No. 158 of 2018
In the Matter of The Bankruptcy Act, Chap. 69 of the Statute Laws of The Bahamas
Re: Colin Wright
Ex parte The Bahamas Communications and Public Officers Union Plan & Trust Fund
(By Avril Clarke, Andrea Culmer, and Steve Hepburn in their capacities as trustees) (A Judgment Creditor)
In the Matter of The Bankruptcy Act, Chap. 69 of the Statute Laws of The Bahamas
Re: Bernard Evans
Ex parte The Bahamas Communications and Public Officers Union Plan & Trust Fund
(By Avril Clarke, Andrea Culmer, and Steve Hepburn in their capacities as trustees) (A Judgment Creditor)
In the Matter of The Bankruptcy Act, Chap. 69 of the Statute Laws of The Bahamas
Re: Ray Nairn
Ex parte The Bahamas Communications and Public Officers Union Plan & Trust Fund
(By Avril Clarke, Andrea Culmer, and Steve Hepburn in their capacities as trustees) (A Judgment Creditor)
In the Matter of The Bankruptcy Act, Chap. 69 of the Statute Laws of The Bahamas
Re: Shawn Bowe
Ex parte The Bahamas Communications and Public Officers Union Plan & Trust Fund
(By Avril Clarke, Andrea Culmer, and Steve Hepburn in their capacities as trustees) (A Judgment Creditor)
Mr. Maurice Glinton, QC, with Ms. Meryl Glinton for the Appellants
Mr. Kahlil Parker, with Ms. Roberta Quant, for the Respondent
Callenders & Co (a firm) v The Comptroller of H. M. Customs SCCivApp. No. 63 of 2012 considered
Crawford and others v Financial Institutions Services Ltd [2003] UKPC 49, (2003) distinguished
Electrotec Services Ltd v Issa Nicholas (Grenada) Ltd [1998] 1 WLR 202 mentioned
Fisher v Minister of Public Safety and Immigration [1998] A.C. 673 considered
Kemrajh Harrikissoon v The Attorney General of Trinidad & Tobago Privy Council Appeal No. 40 of 1977 applied
Lopes v Valliappa Chettiar [1968] 2 All ER 136 mentioned
Martinus Francois v Attorney General St Lucia Civil Appeal No 37 of 2003 considered
Ramson v Barker [1986] 33 W.I.R. 183 considered
Renaissance Ventures Ltd v Comodo Holdings [2018] ECSC J1008-3 mentioned
Responsible Development for Abaco (RDA) Ltd. ex p The Queen v The Rt. Hon. Perry Christie,
Prime Minister et al SCCivApp. No. 248 of 2017 mentioned
Siddiqui and others v Athene Holding Limited (2019) 95 WIR 342 Civil Appeal No. 1 of 2019 mentioned
Stubbs v Gonzales and Anor [2005] UKPC 22 distinguished
Thakur Persad Jaroo v Attorney General [2002] 5 LRC 258 considered
Civil Appeal — Bankruptcy proceedings — Application for leave to appeal to the Privy Council — Whether the applicant has an arguable case — Whether the intended appeal involves a point of general public importance
The appellants are all former trustees of the BCPOU Pension Plan & Trust Fund who were sued by two of the Fund's trustees for the recovery of the total amount of two unauthorized loans made to a construction company. The respondent (judgment creditor) initiated and succeeded in bankruptcy proceedings against all four appellants (judgment debtors) in the Supreme Court. In June 2020 this Court dismissed the applicant's appeal against the judge's decision not to recuse herself as well as their appeals against adjudications of bankruptcy. The applicants now seek leave to appeal that dismissal to the Privy Council, averring that their constitutional rights were breach by the Court's failure to deliver a more timely judgment.
Held: leave refused; application for stay pending appeal is also refused.
There has been no deprivation of the appellants' right of access to the courts. The fact that they are presently before this Court is a pellucid affirmation of the right they claim has been denied to them. Moreover, they have failed to demonstrate any possible prejudice they may have suffered as a result of these alleged breaches. The intended appellants seek by artifice to shoehorn their appeals into that category of an appeal which would enable them to appeal as of right. Were we to allow such a stratagem to succeed, an aggrieved litigant in a civil case would only have to invoke an Article of the Constitution to ensure his appeal is sent on to the Privy Council, notwithstanding that his appeal does not otherwise qualify for such consideration.
The appellants' appeals are against adjudications of bankruptcy and the delay by the Judge in the delivery of her judgment. Neither of these complaints bring the appellants within section 23 of the Rules. Moreover, they do not engage Articles 20 and 28 of the Constitution for our consideration at this juncture in the proceedings, viz, such constitutional complaints ought to have been raised in the Supreme Court because the Constitution invests in that court the original jurisdiction to hear matters involving alleged breaches of the fundamental rights found in Articles 16 to 27. In such a hearing, evidence would have had to be led before the court to demonstrate any breach that may have occurred. It is not appropriate for the appellants at this stage to seek to litigate these alleged constitutional breaches.
The intended appellants' applications based on breaches of their constitutional rights are wholly devoid of merit and are intended solely to delay the consequences of the adjudication orders; thereby rendering the applications an abuse of the processes of the court. The Judge was functus officio once final judgment had been entered and, even if she had been minded to entertain a summons questioning the propriety of the result in the case, she would have fallen into error had she so done.
Judgment delivered by the Honourable
The intended appellants are seeking leave to appeal to the Judicial Committee of Her Majesty's Privy Council (“the Privy Council”) pursuant to section 23 of the Court of Appeal Act (“the CAA”) and Article 104 of the Constitution of The Bahamas (“the Constitution”). They are dissatisfied with the judgment of the Court to dismiss their appeals against adjudications of bankruptcy made by Madam Justice Indra Charles (“the Judge”) on 15 January 2018; and the Court's failure to deliver a more timely judgment that has resulted – they allege – in a breach of their constitutional rights under Article 20 of the Constitution. They contend that their appeals are as of right inasmuch as they have raised complaints of breaches of their constitutional rights and the value of the property in dispute is in excess of four thousand dollars.
For the reasons we express below, we decline to grant the leave sought by the intended appellants to appeal to the Privy Council.
Madam Justice of Appeal Crane-Scott delivered the judgment of this Court in the intended appellants' appeals on 18 June 2020; and in it, outlined the factual matrix of the appeals. We cannot improve upon it, hence we merely reproduce paragraphs 1 through 12 of her judgment:
“1. By way of a Supreme Court Writ action 2012/CLE/Gen/No. 0573 instituted by the Bahamas Communications and Public Officers Union Pension Plan and Trust Fund (acting by two of its trustees) and filed on 27 April, 2012, the appellants were sued in their capacity as former trustees for the recovery of the amount of two unauthorized loans made to the Kendal Williams Construction Company Limited (totalling $1,350,000.00) which the appellants were alleged to have negligently disbursed to the company in breach the Trust Fund's rules and in breach of the appellants' fiduciary and other duties owed to the Trust Fund.
2. Subsequently, pursuant to a Consent Order made by Barnett CJ (as he then was) on 7 October, 2014, Final Judgment in the sum of $1,350,000.00 was entered against the appellants on 15 October, 2014 with interest and costs. When the Consent Order was made, the appellants were represented by their Counsel on record, Mr. Donovan L. Gibson. It is undisputed that following the entry of the Final Judgment, neither the Consent Order nor the Final Judgment has ever been appealed to this Court and accordingly, they remain in full force and effect to this day.
3. Following entry of Final Judgment, the respondent/judgment creditor applied pursuant to O. 48, RSC for examination of the appellants/judgment debtors; and by Order dated 1 March, 2016, they were required to appear before the Acting Assistant Registrar on 19 April, 2016 for examination.
4. Some 19 months after the entry of Final Judgment and some 4 days prior to the date fixed for their examination before the Acting Assistant Registrar, the four appellants/judgment debtors applied by Summons filed on 15 April, 2016 in Supreme Court Writ action 2012/CLE/Gen/No. 0573 (“the Impugned Action”) to postpone the examination; and for further orders to strikeout the Writ of Summons and vacate the Final Judgment as it related to each of them.
5. We pause to observe that in practical terms, this essentially meant that rather than taking steps to appeal against the Consent Order and the Final Judgment, the four appellants/judgment debtors launched an attack by Summons on the validity of the Impugned Action itself, alleging it to have been a nullity ab initio. As appears on the face of the Summons, the strike-out application purported to be made pursuant to RSC, O. 18 r. 19 (1)(a) and (b) and under the inherent...
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