Kranston Key et Al v Senior Stipendiary and Circuit Magistrate Derence Rolle-Davis, The Attorney General of the Commonwealth of the Bahamas and Walter Capron

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Klein, J.
• Judgment Date: 02 May 2025
• Year: 2025
• Docket Number: 2018/PUB/CON/00038

Kranston Key Et Al

and

Senior Stipendiary and Circuit Magistrate Derence Rolle-Davis, The Attorney General of the Commonwealth of the Bahamas and Walter Capron

Klein, J.

2018/PUB/CON/00038

Supreme Court

Appearances:

Maria Daxon for the Applicants.

Franklyn Williams for the First and Second Respondents Brian Dorsett for the Interested Party.

RULING

INTRODUCTION AND BACKGROUND

Klein, J.

1 This is an application for constitutional redress arising out of the grant of an Order for vacant possession by a senior stipendiary and circuit magistrate (“the Magistrate”) in a long-running dispute over possession of property located at Fleming Street, Nassau. These proceedings have a complex procedural history, involving multiple applications, appeals to the Supreme Court and Court of Appeal and a related quieting titles action.

2 The applicants claim that they were denied the right to a fair hearing during the proceedings before the Magistrate, as they were unrepresented by counsel, not given adequate time to prepare their defence and were not informed of their right to appeal. They also challenged, amongst other things, the Magistrate's jurisdiction to make orders related to title to land, although (as discussed below) many of these complaints are irrelevant to the constitutional claim.

3 The second respondent (“the Attorney General”) and the Interested Party (“the IP”) filed summonses to strike out the constitutional motion on the traditional R.S.C. 1978, Order 18, r. 19 grounds, namely that the action discloses no reasonable cause of action, is frivolous or vexatious, or otherwise an abuse of the process of the court. They contend that the applicants' appeal of the Magistrate's decision and the constitutional claim raise the same or similar issues, and therefore the applicants are seeking to litigate issues that have already been decided. The Attorney General also submits, as a procedural matter, that the Magistrate is protected by judicial immunity and is not a proper party to the constitutional motion. Further, it is argued that the claim is an abuse of process as the applicants have not exhausted adequate alternative remedies that were available to them, and they are therefore precluded from making a constitutional claim.

4 As will become apparent from the reasons given below, the application for constitutional redress must fail, and the second respondent's and IP's applications to strike out are granted. I am satisfied that the application is misconceived and indeed precluded by virtue of the proviso to art. 28(2) of the Constitution.

PROCEDURAL BACKGROUND

5 This matter was commenced by Notice of Motion for Constitutional Relief (“the Motion”) filed 24 October 2018. That Motion sought a curious admixture of orders and declarations, many of which would have been more appropriate for an action in judicial review, or a common law claim.

6 These included orders for: (i) certiorari to quash the decisions of the ‘Respondent’, S&C Magistrate Derence Rolle-Davis (“the Magistrate”) granting an order for vacant possession; (ii) a stay of the proceedings before the Magistrate (which was heard and determined); and (iii) damages for “having unconstitutionally subjected the Applicants to being removed from their homes”. To this was added claims for some 12 declarations, including declarations that:

• (i) the order of 4 July 2014 for vacant possession is “unlawful, void, illegal and of no effect”.

• (ii) the Magistrate did not “have jurisdiction to adjudicate this matter due to the value of the land and the statute of limitations”;

• (iii) the Applicants' rights to be treated fairly with due process and in accordance with the Constitution of the Bahamas have been breached;

• (iv) “the Respondent” be restrained from treating as valid or acting upon the Orders for vacant and ‘immediate’ possession (notwithstanding that the sole named Respondent at this point was the Magistrate himself);

• (v) the Magistrate's decision was so “manifestly unreasonable that no reasonable authority or tribunal entrusted with its powers could reasonably have come to that Decision”;

• (vi) the Respondent has acted “unfairly, unlawful, unreasonable, arbitrarily, capriciously and abusive” (sic) towards the Applicants; and

• (vii) the claim to rent was statute-barred.

7 The Motion and connected proceedings were supported by a battery of affidavits as follows: (i) the affidavit of Anya Jasmine filed 21 December 2018; (ii) the affidavits of Kranston Key filed 24 October 2018, 4 December 2018, 24 December 2019 and 27 July 2020; (iii) the affidavits of Devin Sears filed 21 October 2018, 21 December 2019 and 27 July 2020; (iv) three affidavits of Daneisha Williams, two filed 19 May 2021 and one filed 20 May 2021; (v) the affidavit of Anthony Harris filed 12 March 2021; and (vi) the affidavit of Dancia Knowles filed 20 May 2021. Mr. Capron filed affidavits on 9 July 2020, 4 January 2021, 8 January 2021 and 22 March 2021.

8 It will not be necessary to refer to most of the affidavits filed by the applicants, as much of the content is repetitive. Others merely recite steps taken by counsel for the applicants in connection with the proceedings, or exhibit various correspondence issued by counsel in the course of these proceedings.

9 By summons filed 9 July 2020, Mr. Capron applied to be joined as a party to the constitutional action and for it to be struck out pursuant to the Ord. 18, rule 19 grounds as disclosing no reasonable cause of action, being scandalous, frivolous or vexatious, or otherwise an abuse of the process of the Court. By Order dated 29 July 2020, K. Thompson J. ordered Mr. Capron joined to the proceedings as an interested party, but the strike-out application was adjourned for hearing by another Judge.

10 When the matter came before this Court, Mr. Capron was the sole respondent opposing the application, and apparently there had been no response to the Motion from the Office of the Attorney General on behalf of the named respondent (the Magistrate). The Court therefore, in early 2021, issued new directions for the hearing of the matter, which included directions for the Office of the Attorney General to be served with the documents and notice of the hearing in the matter, and granting leave to the parties for the filing of any additional evidence and submissions.

11 The Attorney General entered an appearance on behalf of the Respondent and filed a summons on 7 May 2021 pursuant to R.S.C. Ord. 18, r. 19(1)(a) and/or (d), or under the inherent jurisdiction of the court to strike out the Motion or have it dismissed on the grounds that: (i) the action is frivolous and vexatious and an abuse of process, as the applicants had an alternative remedy available to them at common law (by way of an appeal); and (ii) an order pursuant to R.S.C. Ord. 15, r. 6(2)(a), or under the inherent jurisdiction of the Court that the respondent be removed as an improper party. The summons was supported by the affidavit of Ms. Cordell Frazier.

HISTORY OF PROCEEDINGS

12 Before dealing with the issues that arise on the Motion and the cross-summons to strike out, it is necessary to set out some of the significant history to give context to these proceedings. This history is derived from the numerous affidavits filed in connection with these proceedings, the Ruling of K. Thompson J. in a Quieting Title Action (2014/CLE/qui/013039) (the “QTA”) and the Ruling of the Court of Appeal in SSCivApp. No. 83 of 2020.

13 The story begins in or about the 4 July 2014, when it appears that Mr. Walter Capron, pursuant to a summons filed 19 May 2014, obtained an Order for vacant possession against the applicants before the Magistrate (Case No. 5234 of 2014). The applicants are said to be longtime residents of the property, but there is some dispute over how long they have occupied the property or whether they occupied the property as tenants, licensees, or squatters. According to the affidavit of Anthony Harris filed 12 March 2021 (“the Harris Affidavit”), it was indicated to the Court by counsel for Mr. Capron that the applicants owed arrears of rent for some six years, which they disputed, but that Mr. Capron was willing to forgo that rent (if any was due) if the applicants vacated the property. The summons was indorsed with a claim for $5,000.00 in rent and also sought an order for vacant possession.

14 The Harris Affidavit further averred that the last time the applicants paid rent was 1999, and that it was during that same year that they got permission from a Mr. Glee Musgrove (who is identified in the submissions of the applicants as the brother of Eva Musgrove) to remain on the property subject to maintaining it. In the affidavit of Anya Jasmine, filed 21 December 2018, she described Eva Musgrove as “the legal owner” of the property, and said that “while she was alive, Ms. Musgrove allowed us to remain on the said land undisturbed.”

15 As detailed in the affidavit of Walter Capron filed 4 January 2021, Mr. Capron claims as the sole surviving beneficiary under the will of Eva Nancy Musgrove, in respect of which Letters of Administration with the Will Annexed were granted by the Supreme Court on 25 March 2014. Those documents were said to be before the Magistrate when he made his determination in July of 2014, and this has not been controverted. For their part, the applicants asserted before the Magistrate a possessory right to the land based on occupation for over twelve years.

16 It appears that the Magistrate pronounced oral judgment on 4 July 2014, but the applicants were nevertheless afforded another date to be heard before any Order pursuant to the judgment was perfected. In this regard, another hearing was scheduled for 15 July 2014, which the applicants attended with their attorney. No transcript or other record of the proceedings were before the Court. However, based on the applicants' affidavit...