Junkanoo Estates Ltd v The Court of Appeal of The Commonwealth of the Bahamas

• Jurisdiction: Bahamas
• Judge: Charles, JA
• Judgment Date: 18 December 2024
• Neutral Citation: BS 2024 CA 174
• Docket Number: SCCivApp. No. 24 of 2018
• Court: Court of Appeal (Bahamas)

Between

Junkanoo Estates Ltd

Yuri Starostenko

Irina Starostenko

Claimants

and

The Court of Appeal of The Commonwealth of the Bahamas

Defendant

UBS (Bahamas) Ltd (In Voluntary Liquidation)

Interested Party

BEFORE:

The Honourable Madam Justice Charles, JA

The Honourable Mr. Justice Smith, JA

The Honourable Mr. Justice Turner, JA

SCCivApp. No. 24 of 2018

IN THE COURT OF APPEAL

Civil appeal — Application seeking leave to apply for judicial review to the Privy Council — Application pursuant to Article 104(2) of the Constitution and Section 23 of the Court of Appeal Act — Section 10 of the Court ofAppeal Act — Rule 24 of the Court ofAppeal Rules — Part 54 of the Civil Procedure Rules 2022

Held: leave application dismissed. Costs to UBS to be taxed if not agreed.

Section 23(1) of the Court of Appeal Act only provides for the granting of leave to appeal in relation to orders that are on appeal from the Supreme Court. The Court of Appeal has pronounced on multiple occasions that it has no jurisdiction to entertain applications for leave to appeal to the Privy Council where the intended appeal does not come within the ambit of section 23 of the Court of Appeal Act.

The Claimants have conflated their application for leave to apply for judicial review with an application for conditional leave to appeal to the Privy Council. While this Court has the power to grant conditional leave to appeal to the Privy Council in appropriate cases, it does not grant leave for judicial review to the Privy Council.

In the present case, there is no order or decision seeking to be appealed at all. The Claimants are seeking to engage the Privy Council as a court of first instance to determine a judicial review application which has never been made in the Supreme Court and therefore did not give rise to an appeal in the Court of Appeal.

C.B. Bahamas Limited v Arawak Homes Ltd. [1988] BHS J. No. 48 mentioned

Enos Miller v McKinney Bancroft and Hughes et al SCCivApp. No. 27 of 2021 mentioned

Junkanoo Estates Ltd & Ors v UBS (Bahamas) Ltd (In Voluntary Liquidation) SCCivApp. No. 49 of 2024 (delivered on 19 September 2024) considered

Phillippa Michelle Finlayson v The Bahamas Pharmacy Council [2019] 1 BHS J. No. 63 considered

Rubis Bahamas Limited v Lillian Antoinette Russell SCCivApp. No. 86 of 2022 (delivered 27 February 2024) considered

APPEARANCES:

No appearance by and on behalf of the First Claimant

Second and Third Claimants appearing Pro Se

No appearance for and on behalf of the Defendant

Mr. Marco Turnquest with Ms. Chizelle Cargill, Counsel for the Interested Party

Charles, JA

Judgment delivered by the Honourable Madam Justice

1 On 12 June 2024, the Claimants (as they refer to themselves) filed an application against the Court of Appeal of the Commonwealth of The Bahamas (“the Defendant”) which was never served and the Interested Party (“UBS”) seeking leave to apply for judicial review of a written Judgment of this Court, differently constituted, handed down on 26 October 2022 (the “26 October Judgment”) to the Privy Council (the Leave Application”).

2 In the 26 October Judgment, the Court declined jurisdiction to reopen a concluded appeal of the 23 March 2015 Summary Judgment Order made by Evans J (as he then was) to hear their Notice of Interlocutory Applications filed on 15 February 2018 and 17 February 2020 respectively. Subsequently, the Claimants sought leave to appeal the 26 October Judgment in the Court of Appeal and special leave to appeal in the Privy Council, twice. These applications were all dismissed.

3 In the Leave Application, the Claimants state that they make this application pursuant to:

“ (i) Section 10 of the Court of Appeal Act, 1964 [“the COA Act”] and Rule 24(1) of the Court of Appeal Rules, 2005 (“the Rules”) conferring to this Court in relation to an appeal “all the powers and duties as to amendment and otherwise of the Supreme Court” and

(11) Part 54 of the Civil Procedure Rules, 2022 (CPR), providing rules of practice and courses of procedure of judicial review of decisions, actions or failures to act by the public bodies, including inferior courts.’”

4 In their Skeleton Arguments filed on 12 July 2024, the Claimants state that the Leave Application is made pursuant to Article 104(2) of the Constitution - the constitutional provision prescribing one of the two categories of cases in respect of which appeals to His Majesty in Council lie: decisions involving a breach of any of the fundamental rights and freedoms guaranteed by Articles 16 to 27 of the Constitution.

5 Then, in their submissions in response filed on 12 August 2024, the Claimants submitted that their application is within section 23(1) of the Court of Appeal Act (the “COA Act”) for the following reasons:

(i) The Original Appeal SccAppCais (sic) No. 0024/2018 would still be pending until the Appellants properly exhaust all rights and remedies available to them and;

(ii) The Leave Application is within the second prong of Section 23(1) of the COA Act which provides that the Court of Appeal has jurisdiction to grant a leave in all other occasions: “ in any other proceedings on the Common law, Equity, Admiralty or Divorce and Matrimonial Sides of the Supreme Court.

6 It is therefore unclear under what provision(s) of the law is the Leave Application made. That said, the Claimants now allege that:

• (i) The Court of Appeal erred in law when exercising its powers and disregarded its obligations to act independently and impartially and in breach of their fundamental right to have a fair hearing guaranteed by Article 20(8) of the Constitution of the Bahamas;

• (ii) There is a real likelihood of prejudice by the Court of Appeal; and

• (iii) The Court of Appeal's decision-making process was procedurally unfair as...