Junkanoo Estates Ltd v UBS (Bahamas) Ltd (in Voluntary Liquidation)

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeMadam Justice Crane-Scott, JA
Judgment Date26 October 2022
Neutral CitationBS 2022 CA 146
Docket NumberSCCivApp. No. 24 of 2018
Between
Junkanoo Estates Ltd.
Appellant
Yuri Starostenko
Second Appellant
Irina Tsareva-starostenko
Third Appellant
and
UBS (Bahamas) Ltd (In Voluntary Liquidation)
Respondent
Before:

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

The Honourable Madam Justice Bethell, JA

SCCivApp. No. 24 of 2018

IN THE COURT OF APPEAL

Civil appeal — Common law doctrine of functus officio — Residual jurisdiction — Finality in litigation — Whether the Court is functus officio — Whether the Court has the jurisdiction to hear a Motion for interlocutory relief filed but not heard prior to the determination of the substantive appeal — Motion for interlocutory relief listed for hearing at Appellants' insistence following determination of substantive appeal — Preliminary Objection on the basis that the Court is functus officio — Court's residual power to reopen an appeal in exceptional circumstances — Exercise of discretion

The Appellants appealed against an order for summary judgment granted by Evans J in the Supreme Court on 23 March 2015. Their appeal was heard and dismissed by the Court of Appeal (differently constituted) on 11 August 2020. Following the dismissal of their appeal, the Appellants approached the Judicial Committee of the Privy Council (“the JCPC”) directly seeking permission to appeal. Permission to appeal was refused after which the Appellants returned to the Court of Appeal seeking conditional leave. This was also refused on 4 April 2022.

The Appellants approached the Registrar of the Court of Appeal on numerous occasions seeking to have a Notice of Interlocutory Applications filed on 15 February 2018 listed for hearing before the Court. The Notice which sought a variety of interlocutory relief had not been heard before their appeal was dismissed. At their insistence, the Registrar listed the Appellants' Notice on the Court of Appeal's Cause List for hearing before the full Court.

The Respondent filed a Notice of Intention to Rely upon Preliminary Objections supported by an affidavit setting out the Respondent's objections to the Court embarking on a hearing of the Appellants' Notice of Interlocutory Applications of 15 February 2018.

After hearing oral and written submissions on the Respondent's Preliminary Objections, the Court gave an oral ruling upholding the objections and declining jurisdiction to entertain the Appellants' Notice. At the time of its oral ruling, the Court promised to provide fuller reasons later.

Held: The Preliminary Objection is upheld. The Court declined jurisdiction to reopen the proceedings to hear the Appellants' Notice of Interlocutory Applications which were filed on 15 February 2018 and 17 February 2020. Costs of the application are the Respondent's to be taxed, if not agreed.

The functus officio doctrine is a finality rule which is directed at decision-makers (be they a court, arbitrator or administrative tribunal or commission or other statutory body). The rule operates to circumscribe the jurisdiction of the decision-maker by delineating when the jurisdiction of the decision-maker is to be regarded as exhausted and at an end.

The authorities clearly demonstrate, that notwithstanding the functus officio rule, the Court of Appeal (as an intermediate appellate court) has a residual jurisdiction in an exceptional case, to reopen proceedings which it had already heard and determined, if it is clearly established that “a significant injustice has probably occurred and that there is no alternative effective remedy.”

In the present case, the issue for consideration was whether on the one hand (as the Respondent contended) the Court was functus officio, it having discharged all of its functions in relation to the appeal; or whether on the other hand (as the Appellants contended) the Court had a residual or implicit power in exceptional circumstances to re-open the proceedings and to hear the Appellants' interlocutory applications which had never been heard.

Having considered the matter, the Court was satisfied that notwithstanding that all avenues of appeal have been exhausted and there is now no alternative effective remedy, this was not an appropriate case for us to accede to the Appellants' request to reopen the proceedings.

While admittedly, the appeal was determined on a narrow point, the Court of Appeal is ostensibly functus officio in relation to the appeal as it has undeniably discharged all its judicial functions in relation thereto.

The appeal having since been heard and dismissed, the appellate proceedings are effectively now at an end. The Court has discharged all its judicial functions in relation to the appeal and is functus officio. There must be finality in litigation. The Appellants' interlocutory applications cannot now be heard. The Court was satisfied that the Appellants have not established that this was an appropriate case in which the Court should exercise this Court's exceptional jurisdiction to reopen the appeal.

Belgravia International Bank & Trust Company Ltd. and anor. v Sigma Management Bahamas Ltd. SCCivApp. No. 75 of 2021 considered

British Columbia (Workers' Compensation Appeal Tribunal) v. Fraser Health Authority (2016) 1 SCR 587 mentioned

Chandler v. Alberta Association of Architects [1989] 2 SCR 848 mentioned

Chopra v. A-G of Canada (2013) FC 644 mentioned Coral Beach Management Company Limited v. Anderson and another [2014] BHS J. No. 14 considered

Daniel Coakley v R SCCrApp. No. 15 of 2017 mentioned

Dickins v. Parole Board for England and Wales [2021] EWHC 1166 (Admin) mentioned

Edney Burrows Jr & Thaddeus Williams Jr v. Regina SCCrApp. Nos: 12 & 23 of 2021 mentioned

George Prince Williams v. Regina SCCrApp. No. 229 of 2014 mentioned

Helios Oryx v. Trustco Group Holdings [2021] EWCA Civ 1845 considered

Kabourakis v. Medical Practitioners' Board of Australia [2006] VSCA 301 mentioned

Ladd v Marshall [1954] 3 All ER 745 mentioned

Maycock Sr. v. The Commissioner of Police [2014] 2 BHS J. No. 97 considered

Minister for Immigration and Multicultural Affairs v. Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 mentioned

Ormand Leon v The Director of Public Prosecutions SCCrApp. No. 51 of 2016 mentioned Palms of Love Beach Building B Management Company et al v. Love Beach Properties Ltd et al [Unreported] 2010/CLE/gen/001673 mentioned

R v. Camberwell Green Magistrates' Court ex parte Brown (1983) 4 FLR 767 considered

R v. Essex Justices ex p Final (1962) 3 All ER 924 mentioned

R v. Norfolk Justices, ex parte Director of Public Prosecutions [1950] 2 KB 558 considered

Re 56 Denton Road Twickenham, Middlesex [1952] 2 All ER 799 mentioned

Regina (Demetrio) v. Independent Police Complaints Commission; Regina (Commissioner of Police of the Metropolis) v. Independent Police Complaints Commission [2015] EWHC 593 (Admin) considered

Ridge v. Baldwin [1964] AC 40 mentioned

Rootkin v. Kent CC [1981] 2 All ER 227 mentioned

Rosina Smith v. Fidelity Bank (Bahamas) Limited SCCivApp. No. 122 of 2020 applied

S (an infant) by Parsons (his next friend) v. Manchester City Recorder (1971) AC 481 considered

Scott v Brown, Doering, McNab & Co. [1892] 2 QB considered

Shawn Miller v R SCCrApp. No. 166 of 2011 mentioned

Smith v. Regina [2015] 1 BHS J. No. 12 considered

Snell v. Unity Finance Ltd [1963] 3 All ER 50 considered

South Seas Tuna Corporation Ltd v. Palaso and another [2019] 3 LRC 382 considered Steward v. Director of Public Prosecutions (2003) 4 All ER 1105 mentioned

Taylor and another v. Lawrence and another [2003] QB 528 considered

Appearances:

No appearance by or on behalf of the First Appellant

Second Appellant appeared Pro Se

Third Appellant appeared Pro Se

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

REASONS FOR DECISION
Delivered by The Honourable Madam Justice Crane-Scott, JA :
Introduction
1

On 1 February 2018 the Appellants appealed against an order for summary judgment granted by Evans, J. in the Supreme Court on 23 March 2015. Their appeal was heard and determined by the Court of Appeal (differently constituted) on 11 August 2020. Addressing the single ground of appeal for which leave to appeal had been granted in the court below, the Court of Appeal held that although it had discretion (in the interest of justice) to vacate the Summary Judgment entered in the Supreme Court, the Appellants had provided no basis to justify interference with the order which the judge had made.

2

Following the dismissal of their appeal, the Appellants approached the Judicial Committee of the Privy Council (“the JCPC”) directly seeking permission to appeal. On 10 November 2021, after considering the parties' written submissions, the JCPC refused them permission to appeal from the judgment of the Court of Appeal of 11 August 2020. In refusing permission to appeal, the JCPC advised Her Majesty as follows:

“(1) permission to appeal and a stay of execution should be refused because the application does not raise an arguable point of law. The Applicants in addition should have applied for leave to the Court of Appeal;

(2) the Respondent is entitled to the costs of their opposition application and subject to any submissions (to be filed within 21 days of the date of this Order) the Appellants should pay the Respondent's costs and, where the Respondent applies for costs, the amount of those costs be assessed if not agreed.”

3

Following the refusal of permission to appeal to the JCPC, the Appellants returned to the Court of Appeal by way of an application filed on 14 December 2021 seeking conditional leave to appeal to the JCPC. Their conditional leave application was similarly dismissed by the Court of Appeal (differently constituted) on 4 April 2022.

4

Thereafter, the Appellants approached the Registrar of the Court of Appeal on numerous occasions seeking to have a Notice of Interlocutory Applications...

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