Coopers and Lybrand v Edwards et Al

• Jurisdiction: Bahamas
• Judge: Allen, J.
• Judgment Date: 16 June 1998
• Date: 16 June 1998
• Court: Supreme Court (Bahamas)
• Docket Number: No. 715 of 1995

Supreme Court

Allen, J.

No. 715 of 1995

Coopers and Lybrand

and

Edwards et al

Appearances:

Mr. Emerick Knowles for the plaintiff

Mr. Brian Moree & Ms. Krystal Russell with him for the first and second defendants.

Mr. Reginald Lobosky and Mr. Rawson McDonald with him for the third defendant.

Practice and procedure - Applicant sought a declaration that the plaintiff shall be entitled to pay to the second defendant the sums it holds in connection with the Regent Centre Companies after deducting therefrom all the plaintiff's costs and expenses in connection with the action — Order 17, r. 5(3) of the Rules of the Supreme Court considered — Court allowed claim of plaintiff.

Allen, J.

1 The application herein is made by the plaintiff by Summons filed herein on the 23rd July, 1996 for an order inter alia:

• “1. That the plaintiff shall be entitled to pay to the second defendant the sums it holds in connection with the Regent Centre companies after deducting therefrom all the plaintiffs costs and expenses in connection therewith and in connection with this action, the third defendant having failed to file an Affidavit stating the nature and particulars of his claim to the ownership of the shares and the moneys the subject of this action.

• 2. That an Order be made declaring that the third defendant and all persons claiming under him be forever barred from prosecuting any claim he may have against the plaintiff in connection with the shares or the moneys the subject of this action.”

2 The application is made pursuant to Order 17, rule 5(3) of the Rules of the Supreme Court. That rule states: “Where a claimant, having been duly served with a summons for relief under this Order, does not appear on the hearing of the Summons or, having appeared, fails or refuses to comply with an order made in the proceedings, the court may make an order declaring the claimant, and all persons claiming under him, forever barred from prosecuting his claim against the applicant for such relief and all persons claiming under him, but such an order shall not affect the rights of the claimants as between themselves.”

3 The present application is made in the Interpleader action commenced by Originating Summons and filed herein on the 20” July, 1995. By the said Orginating Summons the plaintiff asks for the defendants named therein to appear and state the nature and particulars of their respective claims to:

4 A. the ownership of the shares of the following companies

1

Jansel Bahamas Limited 2. Sea Shore Investments Limited. 3. Dumor Limited. 4. Gull Investments Limited (hereinafter referred to as the “Regent Centre Companies”); and B. the ownership of the monies held by the plaintiff being the rents collected and attributable to the shareholding interests purchased by Mr. Milton Edwards (deceased) in the Regent Centre Companies amounting to $146,130.84 as of June 30, 1995.

5 Upon the hearing of the Originating Summons to which all of the claimants appeared, and on an application by the plaintiff, Mr. Justice Hartman Longley ordered inter alia, by Order dated the 28th March, 1996, (hereinafter referred to as “the said Order”), that the third defendant, within seven (7) clear days, file and serve on the attorneys for the first and second defendants an Affidavit stating the nature and particulars of the third defendant's claim to the ownership of the shares and the moneys held by the plaintiff as set out in the Originating Summons. The said Order was perfected and filed herein on the 6th June, 1996. counsel for the third defendant takes issue with the validity of the said Order on the ground that the same does not reflect the order which he says was made by the judge, i.e. that the third defendant file an Affidavit making a bare claim to the subject of the action.

6 I have considered the Affidavit of Mr. Lobosky filed herein on the 3rd February, 1997 and the Affidavit of Emerick Knowles filed herein on the 7th February, 1997 in connection therewith. Under section 99 of the Evidence Act, 1996, the law presumes the correctness of any document signed by a judge in the absence of anything to the contrary. I can find no evidence such as would displace that presumption.

7 Mr. Lobosky had an opportunity prior to the entry of the said Order to make application before the judge to have the matter clarified, he did not. Even after the entry and filing of the said Order, there was the opportunity to have it rectified under Order 20 of the Rules of the Supreme Court, if it was necessary to correct an error in expressing the intention of the court; or failing that to appeal the said Order.

8 In the circumstances, I hold that the said Order filed herein on the 6th June, 1996 correctly reflects the order made by Longley, J.

9 Pursuant to the said Order, the third defendant filed an Affidavit on the 9th April, 1996 which provides in paragraphs 5, 6, 7 and 8 thereof as follows:

• “5. In or about September 1992, at the request of Mr. Milton Edwards, I purchased the Edwards' entire interests...