Ferguson and Ferguson v Wright et Al

• Jurisdiction: Bahamas
• Judge: Thorne, J.,J.
• Judgment Date: 25 February 1992
• Court: Supreme Court (Bahamas)
• Docket Number: Common Law Side No. 1306 of 1990
• Date: 25 February 1992

Supreme Court

Thorne, J.

Common Law Side No. 1306 of 1990

Ferguson and Ferguson

and

Wright et al

APPEARANCES:

Mr. David Bethel for plaintiffs

Ms. V. Wallace-Whitfield for first defendant

Mr. Orlander for second and third defendants

Judicial Review - Application for leave to apply for judicial review in trade dispute — Whether arbitration tribunal was properly seized of jurisdiction to hear and determine dispute — Whether rules of natural justice breached by part of proceedings being conducted in plaintiff's absence — Order 53, Rules of the Supreme Court, 1978.

Statutory interpretation - What constitutes “employer” within s. 2 of the Industrial Relations Act — Unincorporated body.

Thorne, J.

1 The plaintiffs Moses Ferguson and Irma Ferguson (“applicants”) seek an order of certiorari to remove into the Supreme Court and quash an order made by an Arbitration Tribunal, the second defendants. The first defendant Katura Wright (“the employee”) was employed in a restaurant owned by the applicants and known as Castaways Restaurant and Lounge (“Castaways”). She was dismissed from her employment and on the 30th June, 1989 she made a report of a trade dispute to the Ministry of Employment and Immigration in which she alleged that she was wrongfully dismissed. The matter was referred to an Arbitration Tribunal pursuant to section 76 of the Industrial Relations Act Chapter 298. At the hearing before the Tribunal on the 29th May, 1990 the employee testified and at the close of her case Moses Ferguson, who was not represented by counsel, asked to be heard on behalf of Castaways. The hearing was then adjourned by the Tribunal to enable Castaways to engage the services of an attorney. At the resumption of the hearing on 12th July, 1990 the employee again gave evidence and was cross-examined by Mr. David Bethel, attorney who appeared on behalf of Castaways. The hearing was again adjourned and in August, 1990 Mr. Bethel adduced evidence through Moses Ferguson that Castaways was not an incorporated body but a business owned by Moses Ferguson and his wife, Irma Ferguson. The hearing was again adjourned and at the further hearing on the 25th September, 1990 a submission was made by Mr. Bethel that the Tribunal had no jurisdiction to hear the matter be-cause Castaways was not a legal entity and did not have the capacity to be a party to the proceedings. The Tribunal then ruled that the objection to the jurisdiction had been waived and gave leave to the employee's counsel to amend the name of the respondent in the proceedings to include the names of Moses G. Ferguson and Irma Ferguson doing business as Castaways Restaurant and Lounge. The hearing was again adjourned for Mr. Bethel to call a witness and the present application was then made in this Court.

2 Mr. Bethel, counsel for the applicants argued three points. First, that the Tribunal had no jurisdiction to hear and determine the dispute because Castaways Restaurant & Lounge was not a legal entity and could not be a party to the proceedings. Second, that the amendment of the name of the respondent in the proceedings to read “Moses Ferguson and Irma Ferguson trading as Castaways Restaurant & Lounge” did not give the Tribunal jurisdiction because the applicants as employers had been deprived of their statutory entitlement to nominate an arbitrator. And third, that the rules of natural justice had been breached because Irma Ferguson had not been advised of the hearing, and part of the proceedings was conducted in her absence.

3 On the first point Mr. Bethel submitted that Castaways Restaurant & Lounge is not a legal entity, being an unicorporated business carried on by Moses Ferguson and Irma Ferguson. It could not be an employer or a party to the proceedings before the Tribunal and therefore the tribunal had no jurisdiction to hear and determine the dispute.

4 The report of the trade dispute made by the employee to the Minister of Employment and Immigration and dated the 30th June, 1989 gave the name of the employer as “Mr. Moses Feguson trading as Castaways Restaurant and Lounge”. This report was followed by a Notice from the Ministry dated 11th August, 1989 fixing a date for a conciliation meeting. The employer was stated to be “Castaways Restaurant and Lounge”, and according to the affidavit of the applicants filed on the 26th September, 1990 a copy was delivered to Moses Ferguson “on behalf of Castaways Restaurant & Lounge”. He attended the conciliation meeting but no settlement was reached. Then a letter dated the 18th September, 1989 was sent by the Ministry to “Mr. Moses Ferguson, Castaways Restaurant and Lounge” inviting him to nominate an arbitrator to sit on an arbitration tribunal. No one was nominated by the employer and a Tribunal was appointed by the Minister, one of the members of the tribunal being a nominee of the employee. On the 4th October, 1989 the Minister sent another letter to “Mr. Moues Ferguson owner of Castaways Restaurant & Lounge informing him of the appointment of the Tribunal and requesting him to submit copies of his brief. He did so.

5 At the hearing, the record shows, Mr. Bethel appeared for the respondent, and the respondent is stated to be Moses Ferguson. The proceedings were intitutled “Katura Mae Wright vs. Castaways Restaurant & Lounge”. The employee gave evidence and was cross-examined by Mr. Bethel. Moses Ferguson then gave evidence and was cross-examined by Mr. Wallace-Whitfield, counsel for the employee. Mr. Bethel then submitted that since Castaways Restaurant & Lounge was not incorporated and was merely a business name, it was not a legal entity and there could not be a complaint against it.

6 It is to be noted that this submission by Mr. Bethel was made after the employee (complainant) had closed her case and Moses Ferguson had himself testified. The respondent was represented by counsel almost from the inception of the hearing. In-my view by appearing and taking part in the proceedings the respondent had voluntarily submitted to the jurisdiction and could not thereafter object to it. In any event, the error made by omitting the names of the owners of the business did not deprive the tribunal of jurisdiction. The omission of their names does not mean, as is submitted, that a complaint was made against a non-existent person. It was merely a misnomer which, in my opinion, could be corrected by amendment.

7 A similar problem arose in Whittam v. W. J. Daniel & Co. Ltd. (1961) 3 All ER 796. The facts are sufficiently set out in the headnote which reads as follows:–

“On Sept. 10, 1957 the plaintiff, who was employed by W. J. Daniel & Co. Ltd.,...