Imperial Life Assurance Company of Canada v Hanna
| Jurisdiction | Bahamas |
| Judge | Blackman, J.A.,Mr. Justice Blackman, JA.,Mrs. Justice Allen, P.,Conteh, J.A. |
| Judgment Date | 22 November 2012 |
| Neutral Citation | BS 2012 CA 79 |
| Docket Number | Civil Appeal 63 of 2004 |
| Court | Court of Appeal (Bahamas) |
| Date | 22 November 2012 |
Court of Appeal
Allen, P.; Blackman, J.A.; Conteh, J.A.
Civil Appeal 63 of 2004
Mr. Rawson McDonald for the appellant/respondent
Mr. Obie Ferguson for the respondent/applicant
Jurisdiction - Court of Appeal — Whether court had authority to make certain declarations after appeal was already determined.
The application by Mr. Obie Ferguson counsel for Mr. Hanna on a Notice of Motion seeking several declarations and/or orders in circumstances that there is no extant appeal subsisting, raises the issue of whether the Court has jurisdiction to consider the matter.
The Court heard Mr. Ferguson's application on October 10th, 2012 and after submissions from Mr. Ferguson and Mr. Rawson McDonald, counsel for Imperial Life, reserved its decision.
The relief sought by the Notice of Motion is for:
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(i) A Declaration that section 2 of the Civil Procedure (Award of Interest Act) Chap. 80, Laws of the Bahamas (The Act) applies to the judgment of the Court of Appeal dated 14th May, 2008 herein that the appellant pay the respondent's Costs to be taxed if not agreed;
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(ii) A Declaration that the 8th November, 2011 Certificate of Taxation allowing the respondent's Costs in the sum of $30,889.50 (“Taxed Costs ‘) is a judgment Order creating a Judgment Debt in terms of section 2 of the Act;
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(iii) A Declaration that the application of interest prescribed by section 2 of the Act accrues by operation of law and is not extinguished by the absence of the provision for interest in the Judgment Order;
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(iv) A Declaration that interest at 10% per annum in accordance with section 2 of The Act applies to the Costs payable from the date of entry of the Judgment Order for Costs in this instance the Order of 14th May 2008;
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(v) An Order directing that the appellant pay to the respondent all such sums of interest accruing on Costs ordered by this Honourable Court to be paid to the respondent inclusive of the sums of interest payable on the Taxed Costs, to date amounting to $11,442.83 and continuing at $8.40 per diem;
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(vi) Alternatively, an Order pursuant to Order 48 rule 2 of the Rules of the Supreme Court, 1978 that an officer of THE IMPERIAL LIFE ASSURANCE COMPANY OF CANADA the above named appellant/Judgment Debtor be examined as to whether any and what debts are owing to it and whether the said Judgment Debtor has any and what other property or means of satisfying the sums of interest accruing on the Order for Costs by Certificate of Taxation herein dated the 8th day of November, A.D., 2011 and that the said officer of the IMPERIAL LIFE ASSURANCE COMPANY OF CANADA the above named appellant' judgment Debtor produce any and all books and documents in its possession or power relating to the same before the Registrar of the Court of Appeal at the time of the said examination.
A brief historical overview of the litigation between the parties which had been initiated by Mr. Hanna shows that the decision of the trial judge on the 17th February, 2004 in favour of Mr. Hanna was reversed by the Court of Appeal on 24th February, 2005. Mr. Hanna's appeal to the Judicial Committee of the Privy Council was allowed, with Their Lordships remitting the matter to this Court for determination of the issues which had not been considered by the Court at the hearing in February 2005. In May 2008, the Court pursuant to the remit, and there being no appearance by Imperial Life, affirmed the 2004 rulings of the trial judge, which included a costs order in favour of Mr. Hanna. The Court also ordered that Mr. Hanna's costs on the appeal be taxed if not agreed.
On November 8th, 2011 the acting Deputy Registrar of the Court of Appeal issued a Certificate of Taxation in the sum of $30,889.50 in respect of Mr. Hanna's taxed costs on his appeal.
Mr. Sidney Campbell, Attorney at law, in an affidavit sworn in support of the Notice of Motion deposed to the exchange of correspondence between the parties. Notably, there has been no affidavit by the applicant, John Hanna, in support of the Notice of Motion.
Mr. Campbell's affidavit disclosed that immediately following the taxation, counsel for Mr. Hanna by letter dated November 8th, 2011 to Mr. Rawson McDonald, counsel for Imperial Life requested settlement of the taxed amount of $30,885.90. On November 16th, 2011 a further letter was sent by Mr. Ferguson claiming the amount of $41, 695.97, the additional amount being interest from May 14, 2008 to October 14, 2011. By further letter dated December 1, 2011 the explanation was pro-offered that the claim for interest arose from the provisions of Section 2 of the Civil Procedure (Award of Interest) Act Chap. 80, Laws of the Bahamas.
Mr. McDonald, in a response dated December 2nd, 2011 disputed that the above Act applied and reiterated his preparedness to pay the amount certified on taxation. Finally, on December 8th, 2011 Mr. Ferguson, in response to Mr. McDonald's letter of December 2nd, 2011 set out his propositions as to why interest was applicable to the costs order, with supporting authorities. However, he accepted the payment of $30,885.90 in costs without prejudice to his right to pursue legal proceedings, to recover the interest payable thereon.
As noted at the outset of this judgment, while the issue of the declarations may be of moment for the applicant, Mr. Hanna, the Court is concerned whether there is any authority for it to make the declarations sought.
While declaratory orders or judgments are expressly provided for in PART IV of the Supreme Court Act Cap 53 and in the Rules of the Supreme Court (see 0. 15 Rule 17 of the RSC), there are no similar provisions in the Court of Appeal Act Cap 52 of the Laws of the Bahamas (the Court of Appeal Act) and Rules. Therefore, the declarations sought from this Court are more properly sought in the Supreme Court and not in the Court of Appeal. This Court would be usurping the original jurisdiction of the Supreme Court if it were to entertain the application to interpret sections 2 and 3 of the Civil Procedure (Award of Interest) Act and make a declaration of the same at this stage. Moreover, cost orders are enforced by the Supreme Court in accordance with its Rules of Procedure.
The Court of Appeal is a creature of statute and its authority is to hear civil appeals from the Supreme Court, Magisterial Courts and statutory tribunals as provided for by sections 10, 11 and 21 of the Court of Appeal Act. In my view, the operative section in the instant matter is Section 10.
Section 10 of the Act, so far as is material, provides that: “Subject to the provisions of this Part of this Act and to the rules of Court, the Court shall have jurisdiction to hear and determine appeals from any judgment or order of the Supreme Court given or made in civil proceedings.
As noted at paragraph four above, the Court's appellate jurisdiction in the instant matter was engaged in 2004, and came to an end 14 days after the issue of the Certificate of Taxation on November 8th, 2011, namely, at the expiry of the time within which one may review a decision of the taxing officer (See Rule 35 (20) of the Court of Appeal Rules 2005). Further, as submitted by Mr. McDonald, counsel for Mr. Hanna disregarded the rules with respect to the review process, and instead instituted the current proceedings. Additionally, as noted at paragraph 6 above, immediately following the taxation, Mr. Ferguson requested payment of the taxed amount.
In all the circumstances, I am of the view that there is no longer an extant appeal which would enable Mr. Hanna to move the Court by his purported Notice of Motion. The Court, once it has determined an appeal, is functus and its jurisdiction under Section 10 of the Act is exhausted.
The principle that there should be finality to litigation is well known. The judgment of Lord Woolf CJ in the English Court of Appeal case of Taylor v. Lawrence (2003) QB 528 a case concerned with an application to reopen an appeal for the admission of new evidence, and adopted by the Judicial Committee of the Privy Council in the New Zealand case of Bain v. The Queen [2009] UKPC 4 is instructive. Lord Woolf said at page 536:
“Once the judgment is perfected, however, the Court that has delivered the judgment, be it the Court of first instance or the Court of Appeal, would not entertain an application to reopen the judgment in order to consider the effect of the fresh evidence. This is not because of any express statutory prohibition. In considering the extent of their jurisdiction the Courts have ruled that a perfected judgment exhausts their jurisdiction because this accords with the fundamental principle that the outcome of litigation should be final.”
For all the above reasons, the purported Notice of Motion is dismissed and the several declarations and orders sought, refused. The applicant, John Hanna is to pay Imperial Life its taxed costs of this ill-conceived application.
The Hon Mr. Justice Blackman, JA.
Mr. Justice Blackman, JA.I have read the decisions in draft of my learned brothers and I agree unreservedly with the disposition proposed by Blackman JA for the reasons set out therein. I would also dismiss the Notice of Motion with costs to Imperial Life to be taxed in default of agreement.
The Honourable Mrs. Justice Allen, P.
I have read in draft the judgment written by my brother Blackman, JA, with which the President agrees. I, regrettably, am not able to share the views stated in that judgment regarding the jurisdiction of this Court in respect of the proceedings in this case. There is, of course, an undoubted interest in the public and of the parties to litigation themselves in having finality to litigation. The present proceedings, in my view, far from...
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