Evelyn Julia Frith v Scotiabank (Bahamas) Ltd

JurisdictionBahamas
CourtCourt of Appeal
JudgeMr. Justice Roy Jones, JA:
Judgment Date18 May 2022
Neutral CitationBS 2022 CA 071
Docket NumberSCCivApp. No. 88 of 2021
Between
Evelyn Julia Frith
Appellant
and
Scotiabank (Bahamas) Limited
Respondent
Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCivApp. No. 88 of 2021

IN THE COURT OF APPEAL

Civil Appeal — Mortgage — Application for Leave to Appeal to the Privy Council — s.11(f) & 23 of the Court of Appeal Act — Whether the Appeal is as of Right

This is an application by the appellant/applicant for leave to appeal to the Judicial Committee of Her Majesty's Privy Council against a written Judgment of this Court handed down 15 December, 2021 whereby the Court affirmed the decision of Charles J, in the Supreme Court denying the appellant's application under Order 20 rule 10 of the RSC 1978 to vary amounts in a judgment by Evans J, to reflect payments made by the appellant to the respondent. The application is made pursuant to s.23 of the Court of Appeal Act and s3 and 4 of the Bahama Islands (Procedure) in Appeals to the Privy Council Order 1964.

After hearing the contending arguments, the Court refused leaved with reasons to follow.

Held: The application for leave to appeal to Her Majesty in Council is refused. The respondent shall have its costs of the application to be taxed, if not agreed.

An application for leave to apply to the Privy Council requires consideration of two issues. First, is the appeal as of right? Second, if it is not, should we exercise our discretion to grant the applicant leave to go to the Privy Council?

There is no right to appeal interlocutory decisions. The appeal was not from a “final decision” by the Supreme Court, as there was no determination of the substantive issues in the case. Second, the appeal does not fall into any of the exceptions provided in the statute.

The applicant has not shown that this application is subject to any of the exceptions provided for in RSC O.20, r.10 and notes to White Book 1985 at O.20, r.11. There is no serious issue of law that arises here and this Court accordingly refused to exercise our discretion to grant leave to apply to the Privy Council.

The law regarding the application of the slip rule does not require clarification. There is no uncertainty in the law and no claim by the appellant to an exception under this rule.

Freeport Container Port v Jermaine Campbell SCCivApp No 130 of 2020 considered

Hatton v Harris 1982 AC 547 considered

Lockhart and another v Mitsui Sumitomo Insurance (London Management) Ltd and others SCCivApp & CAIS Nos. 110 & 114 of 2010 applied

Shaun Miller And Premier Importers Ltd SCCivApp No. 9 of 2019 followed

APPEARANCES:

Ms. Travette Pyfrom, Counsel for the Appellant

Ms. Michaela Barnett-Ellis, Counsel for the Respondent

REASONS FOR DECISION

Judgment delivered by The Honourable Mr. Justice Roy Jones, JA:

INTRODUCTION
1

This is a Notice of Motion dated January 4, 2022, by the appellants under s.23 of the Court of Appeal Act for leave to appeal our decision of December 15, 2021, to the Privy Council. In that judgment we affirmed the decision of Charles J, in the Supreme Court denying the appellant's application under Order 20 rule 10 of the RSC 1978 to vary amounts in a judgment by Evans J, to reflect payments made by the appellant to the respondent. The judge denied the appellant's application on the grounds that the court was functus officio.

2

The application for leave to the Privy Council seeks the following:

  • a) To reverse the judgment of the Court of Appeal dated the 15 December 2021;

  • b) That the Intended Appellant is entitled to its costs in the Privy Council, the Court of Appeal and the court below;

  • c) That the Evans Order be corrected to reflect the overpayments made by the intended Appellant on account of the bank's admission that the loan was not converted to a mortgage.

THE APPLICATION
3

The appellant set out the following grounds for the application:

(i) The application to the Privy Council is as of right under s.23 of the COA as “the value of the subject matter exceeds the sum of Four thousand dollars ($4,000.00);

(ii) the learned Judges of the Court of Appeal erred and misdirected themselves in law and fact in dismissing the appeal of the Appellant from the decision of the Honourable Madam Justice Indra Charles given on the 27th May 2021 and in ordering the Intended Appellant to pay the costs in the Court of Appeal and in particular in finding:-

a. In paragraph 21 of the judgment

“it must be noted that by the time the appellant's summons before the judge was filed, the Evans Order may have been perfected.”

b. In paragraph 28 of the judgment

“It is evident that in Barker, both parties were mistaken in their belief, the substratum of their agreed set-off sum, that that sum was the correct figure. This is not the situation in the present appeal as the respondent contends that the interest levied in the “mortgage” was correct.”

c. In paragraph 49 of the judgment

“…I understand the judge's use of the term in the circumstances of this case where she has found that the appellant was seeking to totally alter the order made by Evans J, that she was precluded from acting on that application. If the effect of the application was to alter the order the Judge would not be able to accede to the application. She would in effect, be functus officio.”

d. In paragraph 54 of the judgment

“What then is the manifest intention of the Evans Order? In my view it was intended to give effect to the plea contained in the OS; and that is precisely what it did. In the premises there is no slip, no accidental omission.”

e. In paragraph 55 of the judgment

“I am satisfied that had the judge acceded to the appellant's application to correct the Evans Order, she would have fallen in the same error as the judge in Miller (Supra). Thus, the views expressed by the judge that the avenue open to the appellant to seek relief was via an appeal, is not incorrect.”

f. In paragraph 57 of the judgment

“I am satisfied that the Judge got it right when she denied the appellant's application to amend the Evans Order. In the premises the appeal is denied.”

g. In paragraph 58 the judgment

“It is the usual practice for the costs of the appeal to go to the successful party and that is the order which I propose to make subject to any representations that the parties may wish to make in writing within one week of the pronouncement of this judgment. Should none be made, the costs of the appeal are those of the respondent.”

[Emphasis supplied]

4

On February 16, 2022, we considered the submissions of the applicant and respondent in this matter and were not satisfied that the application for leave to the Privy Council had merit. In the circumstances, we dismissed the application. We promised to put our reasons in writing, and this is the fulfilment of that promise.

ISSUES:
5

An application for leave to apply to the Privy Council requires consideration of two issues. First, is the appeal as of right? Second, if it is not, should we exercise our discretion to grant the applicant leave to go to the Privy Council?

(a) As of Right in a Civil Action
6

Section 23(1) of The Bahamas Court of Appeal Act provides:

“(1) An appeal shall lie to Her Majesty in Council from any judgment or order of the court upon appeal from the Supreme Court in a civil action in which the amount sought to be recovered by any party or the value of the property in dispute is of the amount of four thousand dollars or upwards, and with the leave of the court but subject nevertheless to such restrictions, limitations and conditions as may be prescribed in relation thereto by Her Majesty in Council, in any other proceedings on the Common Law, Equity, Admiralty or Divorce and Matrimonial sides of the jurisdiction of the Supreme Court.

(2) Save as is provided in this section the decision of the court in any civil proceedings brought before it on appeal shall be final.

(3) Nothing in this section contained shall be deemed to restrict or derogate from the right of Her...

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