Junkanoo Estates Ltd v UBS (Bahamas) Ltd

• Jurisdiction: Bahamas
• Judge: Madam Justice Charles, JA
• Judgment Date: 19 September 2024
• Neutral Citation: BS 2024 CA 117
• Docket Number: SCCivApp. No. 49 of 2024
• Court: Court of Appeal (Bahamas)

Between

Junkanoo Estates Ltd

and

Yuri Starostenko

and

Irina Starostenko

Intended Appellants

and

UBS (Bahamas) Ltd

(In Voluntary Liquidation)

Intended Respondent

Before:

The Honourable Madam Justice Charles, JA

The Honourable Mr. Justice Smith, JA

The Honourable Mr. Justice Turner, JA

SCCivApp. No. 49 of 2024

IN THE COURT OF APPEAL

Civil appeal — Appeal from the Supreme Court in civil proceedings — Application for judicial review made directly to the Court of Appeal — Whether the Court of Appeal has original jurisdiction to hear an application for judicial review when the application was not made to the court below — Section 10 of the Court of Appeal Act — Sections 7 and 17 of the Supreme Court Act — Rule 24 of the Court of Appeal Rules

On 11 April 2024 the Intended Appellants sought the leave of this Court to commence judicial review proceedings seeking orders of mandamus, prohibition and certiorari with respect to certain orders made by the court below. The Intended Respondent filed a preliminary objection on the basis that this Court had no jurisdiction to entertain the application as the Intended Appellants failed to seek the leave of the court below, this Court has no original jurisdiction to hear and determine the application and the proposed application is not an appeal within the meaning of the statute.

The issue to be decided was whether this Court has original jurisdiction to hear an application for judicial review when such application was not made to the court at first instance.

Held: the Court acceded to the preliminary objection of the Intended Respondent and dismissed the application of the Intended Appellants. Fixed costs in the amount of $2,000.00 were awarded to the Intended Respondent, to be paid by the Intended Appellants by 31 July 2024.

Pursuant to Section 10 of the Court of Appeal Act, in relation to matters which originate in the Supreme Court, the jurisdiction of the Court of Appeal is limited to determining appeals from the judgments or orders of the Supreme Court. The Intended Appellants do not currently have an ‘appeal’ pending before this Court arising from the decision of a Supreme Court judge relative to the issue before the Court.

This Court is not vested with “original” jurisdiction, like the Supreme Court, to determine originating actions.

The Intended Appellants' application did not seek to appeal the decision of a judge of the Supreme Court. The proper person to hear and determine an application for leave to commence judicial review proceedings is a Judge of the Supreme Court and there is no order or decision of a judge refusing their purported application for leave.

Au Wai Pang v Attorney-General and another [2014] SGCA 23 considered

Boyce v Beckles (Magistrate for District “A”) BB 2004 HC 2 mentioned

Bazie v Attorney General of Trinidad & Tobago (1971) 18 WIR 113 mentioned

R v Industrial Injuries Commissioner, ex parter Amalgamated Engineering Union [1966] 2 QB 21 mentioned

APPEARANCES:

No appearance by and on behalf of the First Intended Appellant

Second and Third Intended Appellants appearing Pro Se

Mr. Marco Turnquest with Ms. Chizelle Cargill, Counsel for the Intended Respondent

Madam Justice Charles, JA

Judgment delivered by the Honourable

Introduction

1 . On 20 June 2024, we heard and acceded to the Intended Respondent's Preliminary Objection that we do not have original jurisdiction to entertain the Intended Appellants' Application for orders of Mandamus, Prohibition or Certiorari filed on 11 April 2024 (“the 11 April 2024 Application”). We dismissed the Application and fixed costs at $2,000 to be paid by 31 July 2024. We promised to provide our written reasons for doing so. We do so now.

2 . The 11 April 2024 Application is made pursuant to Section 10 of the Court of Appeal Act, 1964, Rule 24(1) of the Court of Appeal Rules, 2005 and Section 17(1) of the Supreme Court Act, 1996. In their Application, the Intended Appellants seek leave to commence judicial review proceedings in this Court. They also seek the following relief:

• a. An order that the Supreme Court Orders dated 14 July 2023, 8 December 2023 and 11 December 2023 (“the Supreme Court Orders”) made by Card-Stubbs J in Supreme Court Action CLE/gen/No. 01620 of 2014 and No. 01451 of 2015 (“the Supreme Court Action”) were made without or in excess of the court's jurisdiction;

• b. An Order of Mandamus requiring the Supreme Court to schedule a case management conference, pre-trial review and set trial dates before any further steps are taken in the Supreme Court Action;

• c. An Order of Prohibition restraining the Supreme Court from exceeding its jurisdiction and;

• d. An Order of Certiorari to quash the Supreme Court Orders.

3 . On 3 May 2024, the Intended Respondent (“UBS”) filed a Notice of Intention to rely on a Preliminary Objection. UBS objected to this Court hearing the 11 April 2024 Application on the grounds that:

• (i) Section 10 of the Court of Appeal Act does not confer original jurisdiction on this Court to hear and determine applications for leave to commence judicial review proceedings pursuant to Part 54 of the Supreme Court Civil Procedure Rules, 2022 (“the CPR”);

• (ii) The Intended Appellants having failed to first apply for leave to commence judicial review proceedings in the Supreme Court, this Court does not have original jurisdiction to entertain the 11 April 2024 Application and

• (iii) The 11 April 2024 Application does not constitute an “Appeal” as defined by Rule 10(1) of the Court of Appeal Rules.

Background facts

4 . The background facts are undisputed. On 14 July 2023, the Intended Appellants and representatives for UBS appeared before Card-Stubbs J at a case management hearing in the Supreme Court Action (“the 14 July hearing”). At the time of the 14 July hearing, the Intended Appellants had twenty-four (24) outstanding interlocutory applications. UBS had one (1) outstanding application. UBS's application sought leave to market for sale the Lyford Cay Property (“the Property”) owned by the Intended First Appellant (“Junkanoo”) (“the Marketing Application”).

5 . At the 14 July hearing, Card-Stubbs J made certain directions (“the 14 July Directions Order”) ordering the Marketing Application to be set down for hearing on 8 December 2023. She also scheduled three (3) of the Intended Appellants' outstanding applications namely (i) for an injunction restraining the sale of the Property; (ii) for possession of the Property and (iii) for permission to re-enter the Property, to be heard at the same time, as they were all related. A further Directions Hearing was scheduled for 11 December 2023.

6 . On 26 July 2023, the Intended Appellants filed a Notice of Application in the Supreme Court seeking leave to appeal the 14 July Directions Order (“the 26 July Application”).

7 . On 6 December 2023, the Intended Appellants filed an Application for Leave to Appeal in the Court of Appeal (“the 6 December Application”) also seeking leave to appeal the 14 July Directions Order.

8 . The Marketing Application was heard on 8 and 11 December 2023. At the 8 December 2023 hearing, the Intended Appellants made an application for the recusal of Card-Stubbs J from the Supreme Court Action (“the Recusal Application”). Card-Stubbs J refused to recuse herself.

9 . On 11 December 2023, Card-Stubbs J made a further directions order (“the 11 December Directions Order”) setting down the Intended Appellants' Applications to be heard on 22 and 29 April 2024 and scheduling a further directions hearing for 24 June 2024.

10 . On 21 December 2023, the Intended Appellants filed a Notice of Application in the Supreme Court Action seeking, among other things, leave to appeal the 11 December Directions Order and the dismissal of the Recusal Application.

11 . On 4 March 2024, the Intended Appellants' 26 July Application for leave to appeal the 14 July Directions Order was dismissed in the Supreme Court Action.

12 . On 5 March 2024, this Court also dismissed the 6 December Application for leave to appeal the 14 July Directions Order for prematurity.

13 . On 8 March 2024, the Intended Appellants filed a second application in this Court seeking leave to appeal the 14 July Directions Order. That application was dismissed by this Court on 12 September 2024 on the basis that the proposed appeal had no real prospect of success and there was no issue of public interest or points of law which required clarification. Further, the intended appeal was filed outside of the time limited for appealing interlocutory orders, but the intended appellants failed to apply for an extension of time within which to appeal.

Discussion

Appellate court jurisdiction

14 . First, the Intended Appellants relied upon Section 10 of the Court of Appeal Act, 1996 and Rule 24 of the Court of Appeal Rules, 2005 to ground the 11 April 2024 Application. They asserted that these two statutory provisions confer on this Court “ all the powers and duties as to amendment and otherwise of the Supreme Court.” Second, they contended that Section 17 of the Supreme Court Act 1996 confers on the Supreme Court “jurisdiction to make orders of mandamus, prohibition and certiorari”. They also relied on CPR Part 54 and the cases of Bazie v Attorney General of Trinidad & Tobago (1971) 18 WIR 113 and Boyce v Beckles (Magistrate for District “A”) BB 2004 HC 2. Bazie concerns issues relating to fundamental rights and freedom and the right to a fair hearing. In the latter case of Boyce, the Intended Appellants relied on the dicta of Blackman J who stated:

“8. An order of certiorari is a discretionary remedy which, on an application for judicial review, a superior Court issues to quash the decision of an inferior tribunal or authority, if the Court finds that the inferior body has not exercised its power according to law, and it thinks that it ought to have exercised its...