Flowers Development Company Ltd v The Bahamas Telecommunications Company Ltd

• Jurisdiction: Bahamas
• Judge: Mr. Justice Evans, JA
• Judgment Date: 29 November 2022
• Neutral Citation: BS 2022 CA 164
• Docket Number: SCCivApp No. 14 of 2022
• Court: Court of Appeal (Bahamas)
• Year: 2022

Between

Flowers Development Company Limited

Applicant/Intended Appellant

and

(1) The Bahamas Telecommunications Company Ltd

and

(2) Mr. Kenneth Whyms

and

(3) Emerald Palms of South Andros

Respondents/Intended Respondents

BS 2022 CA 164

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Evans, JA

SCCivApp No. 14 of 2022

IN THE COURT OF APPEAL

Civil Appeal — Application for Extension of Time-Rule 9 of the Court of Appeal Rules — Rule 11 of the Court of Appeal Rules — Judicial Discretion — Prospects of Success — Whether there was procedural unfairness and bias-Errors of fact and law — Whether there was misdirection by the Judge

On 3 December 2021 Bowe-Darville, J determined that on the trial of the preliminary issue of title on property situated in South Andros comprising 4,583 feet that the Applicant had no title, interest or right to use and/or occupy the property. The learned Judge dismissed the Applicant's Writ of Summons and made certain declarations as to the ownership of the disputed property. On 24 January 2022 the Applicant filed a Notice of Appeal Motion and Summons for Extension of Time of time to appeal the Judgment of Bowe-Darville J on the grounds that, inter alia, there was procedural unfairness and bias, errors of fact and law and misdirection by the learned judge.

Held: The application for extension of time is dismissed. The Applicant is to pay the costs of the application; certified fit for two Counsel. Costs are to be taxed if not agreed.

It must be understood that the fact that a Judge disagrees with submissions made or evidence lead is not ipso facto a basis for finding bias. This applies even in those cases where a reviewing Court finds that the Judge's appreciation of the facts and the evidence was erroneous. Bias has more to do with a judge abandoning the duty to act fairly and adopting an attitude of mind that prevents the judge from making an objective determination of the issues that he [or she] has to resolve.

In my review of the evidence and assessment of this case which is admittedly affected by the absence of a proper record of appeal, I am unable to find that Applicant has a real prospect of succeeding in showing that the circumstances of this case would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased. It follows that I would refuse leave on any and all of the grounds which allege that the judge was biased

It was for Applicant to satisfy the Court that he either had good documentary or satisfactory evidence of possession of the land on which he claimed the First Respondent was trespassing. After considering all of the evidence the learned Judge found that she was not satisfied by the evidence put forward in support of the claim. I see no reason to believe that the challenge to that finding has any realistic prospects of success.

I find that none of the grounds proffered by the Applicant has any realistic prospect of success. It is for the foregoing reasons that I would dismiss the application for an extension of time within which to appeal.

Alexander Williams v R SCCrApp. No. 155 of 2016 considered

Bahamasair Holdings Ltd v Messier Dowty Inc — [2019] 1 All ER 285 applied

Blue Planet Group Ltd v William Downie BS 2020 SC 71 mentioned

Central Bank of The Bahamas and Lorenzo Deveaux SCCivApp No. 143 of 2021

Derek Harold Sands and Lenora Sharell Sands v Finance Corporation of The Bahamas SCCiv App. No.29 of 2008 considered

Fairness Limited v Bain SCCivApp No 30 of 2015 considered

Frampton v Pinard et Al; Sanford v Graneau et Al; Ferreira v Henderson et Al; Newton v Bannis-Roberts et Al; Prevost v Blackmoore et Al. Civil Appeal No. 15 of 2005. Court of Appeal (Dominica). (DM 2006 CA 1) considered

Ocean Estates v Norman Pinder [1969] 2 A.C. 19 considered

Porter and another v Magill [2002] 1 All ER 465 considered

Re estate of McDonald (deceased); Pegler and others v McDonald and another [2022] EWHC 2288 considered

R v Kamoli and others — [2022] 2 LRC 573 considered

Re AZ (a child) (recusal) [2022] EWCA Civ 911 considered

Save Guana Cay Reef Assn Ltd and Others v R and Others [2010] 2 LRC 530 considered

St. George at al v Hayward et al BS 2008 SC 112 mentioned

Sturrup and another v Gibson et al [2011] 3 BHS J considered

Symonette, M.P. et Al 1993/CIVIL/CONSTITUTIONAL/179 BS 2004 SC 27 considered

APPEARANCES:

Mr. Mark Flowers, Counsel for the Applicant/Intended Appellant

Mr. Raynard Rigby, KC, with Ms. Shadé Munroe, Counsel for 1 ^st and 2 ^nd Intended Respondents

Ms. Ruby Gray, Counsel for the 3 ^rd Intended Respondent

Delivered by the Honourable Mr. Justice Evans, JA

1 . By Notice filed on the 24 ^th January 2022, the Applicant seeks an Order pursuant to Rule 9 (1) of the Court of Appeal Rules for an extension of time to file a Notice of Appeal Motion which would enable it to appeal the whole of the Judgement (or Order) of the Honorable Mrs. Justice Ruth Bowe-Darville given at the trial of this action on 3 December 2021 with written reasons delivered on 14 December 2021.

2 . The application arises from a Supreme Court action commenced by the Applicant by Writ of Summons dated 16 June 2017 whereby the Applicant claimed against the First and Second Defendants (“Respondents”) the following relief:

• “(i) A Declaration that the First and Second Defendants have no title, interest or right to use and/ or occupy the Plaintiff's said Property or any portion thereof;

• (ii) General Damages;

• (iii) Damages for Trespass of Mesne Profits, loss of profits and other losses and damages as aforesaid arising therefrom;

• (iv) A mandatory injunction that the First Defendant do forthwith remove the Telecommunications Station from the Plaintiff's said Property;

• (v) A prohibitory injunction restraining the First Defendant whether by itself, its servants, agents and/or otherwise from entering upon or crossing on the Plaintiff's said Property or from continuing the said acts of trespass thereon and/or from committing any further acts of trespass thereon whether in exercise of an alleged claim or right or otherwise;

• (vi) Alternative to sub paras. 4 & 5, damages in lieu of an injunction;

• (vii) Interest on any and all sums awarded pursuant to section 3 of the Civil Procedure (Award of Interest) Act, 1992 at such rate and for such period as the Court may deem fit;

• (viii) Such further or other relief as the Court deems just.

• (ix) Costs.”

3 . In the action, the Applicant claimed the right, title and interest in 4,583 square feet situate in South Andros on the compound of Emerald Palms of South Andros (“the disputed property”) where the First Defendant had erected a tower. The First Defendant sought and obtained an order joining Emerald Palms of South Andros as a Third Party to the action on the basis that it had secured a lease of the disputed property from Emerald Palms. The Defendants and Emerald Palms (“the Third Party”) filed Defences denying the Plaintiff's claims.

4 . The parties subsequently agreed to have the issue regarding the ownership of the disputed property (being the 4583 square feet site) tried as a preliminary issue. After the trial of the preliminary issue, the learned Judge dismissed the Applicant's Writ of Summons and made certain declarations as to the ownership of the disputed property.

5 . In assessing the Applicants' claim to the disputed property the learned Judge made the following observations—

• “12. The evidence: The Plaintiff, by Michael Flowers, averred in his Written Statement that his ancestors cultivated, lived upon and was in possession of the land (planting coconut trees etc.). He reflected on points of interest and stories that his grandfather told him which evidenced his family's possession of these entire tracts of land. Most of what he related was hearsay and was not corroborated in any material particular. It seemed that constant repetition of these stories became fact to Michael Flowers. In this regard, the Hearsay Rules do not assist the Plaintiff and as such much is inadmissible.

• 13. Michael Flowers was very aware of the coming of the Emerald Palm's predecessors in title and of the construction of the hotel and its development on “his purported land”. Yet, the Court noted that no action was ever taken against Emerald Palms nor was there any claim of this property until the Flowers became aware of the erection of the tower and, perhaps, the payment of rents for the twenty-five year lease.

• 14. The Court had no doubt that Flowers was familiar with the land but other than some falling “boundary walls” that he claimed his ancestors built, some Coconut trees that pervade the entire shore line and throughout the island, specific type trees, wells etc., there was no evidence of continuous undisturbed and exclusive possession. There were no walls/fences which determined the extent of the Plaintiff's claim. On the site visit Flowers pointed out the remnants of a stone wall (the falling boundary walls) but this wall was clumped in a limited space and did not extend the length of the property being claimed. The Plaintiff in its submissions tried to substantiate the presence of the boundary walls as delimiting the boundary of the family's claim and relied on the finding of Hall, CJ in the Burnt Ground, Long Island Quieting Petition. In the latter case the boundary walls were raised and ran the entire length of the different properties and represented dividing walls. In fact, the rock walls could be seen from the air. These characteristics were not apparent on the site visit. Flowers asserted that he had signs but none was on or in close proximity to the tower site. There were no outward evidence or signs that would have put an interested or usual observer or member of the public on notice that the subject property was in...