Lloyd v Roycan International Banking Ltd et Al

• Jurisdiction: Bahamas
• Judge: Sawyer, J.
• Judgment Date: 02 October 1990
• Court: Supreme Court (Bahamas)
• Docket Number: Equity Side No. 856 of 1990
• Date: 02 October 1990

Supreme Court

Sawyer, J.

Equity Side No. 856 of 1990

Lloyd

and

Roycan International Banking Limited et al

Appearances:

Mr. D. Gomez for plaintiff

Mr. D. C. Bethell for 2nd and 3rd defendants

Mrs. M. Macmillan-Hughes for 4th defendant

Costs - Security for costs — Plaintiff a citizen of United States of America — Whether plaintiff “ordinarily resident outside the jurisdiction — Meaning of “ordinarily resident” — Whatever the likelihood of plaintiff's success at trial is a factor for court to consider in deciding whether to grant security for costs — Order 23, r. 1, Rules of the Supreme Court.

Sawyer, J.

1 In this action begun by originating summons filed on 22nd June 1990, the 2nd and 3rd defendants who purchased the property, subject-matter of the action, from the 1st defendant (hereafter referred to as “the purchasers”) have applied by summons issued 9th July, 1990 seeking, inter alias, the following interlocutory relief:–

• “1. pursuant to 0. 23 r. 1(1) of the Rules of the Supreme Court 1978 that the plaintiff give security for the costs of the second and third defendants in the sum of $10,000.00, the plaintiff being at all material time an alien and resident out of the jurisdiction of the court;

• “2. the plaintiff take no further step in this action until after security for costs is given;

• [Paragraph 3 was obviated by the plaintiff's taking out a notice of hearing of the originating summons on 19th July, 1990]

• “4. that the plaintiff, whether by himself and/or his servants/agents or otherwise howsoever, is restrained from any act of interference with the possession by the 2nd and 3rd defendants of any part of the land in issue herein or of the College Gardens Apartments thereon or any tenant or tenants of the second and third defendants therein until after the hearing and determination of this action; and

• “5. that the costs of and occasioned by this application be taxed and paid by the plaintiff forthwith to the second and third defendants.”

2 Order 23, r. 1 of the Rules of the Supreme Court provides:–

• “1. -(1) Where, on the application of a defendant to an action or other proceedings in the Supreme Court, it appears to the court —

• (a) that the plaintiff is ordinarily resident out of the jurisdiction, or

• (b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the cost of the defendant if ordered to do so, or

• (c) subject to paragraph (2) the plaintiff address is not stated in the writ or other originating process or is incorrectly stated therein, or

• (d) the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation,

then if, having regard to all the circumstances of the case, the court thinks it just to do so, it may order the plaintiff to give such security for the defendants' costs of the action or other proceedings as it thinks just.”

3 Paragraph (2) of that rule which is an exception to 1 (c) provides —

• “(2) The court shall not require a plaintiff to give security by reason only of paragraph (1) (c) if he satisfies the court that the failure to state his address or the misstatement thereof was made innocently and without intention to deceive.”

4 Under the rubric “Directions for Entering Appearance” of the Originating Summons it is stated —

“This summons was taken out by Dennis Gomez & Co., of Chambers and whose address for service is 110 Collins Avenue, Nassau, in the Island of New Providence, Bahamas, Attorneys for the plaintiff.”

5 In dealing with the purchasers' application, I need to first determine whether the plaintiff is ordinarily resident out of the jurisdiction since in the originating summons his address is not stated.

6 In an affidavit of the plaintiff sworn to at Nassau, Bahamas on the 31st July, 1990, the plaintiff describes himself as being of (… No. 21 Tall Pines in the Western District of the Island of New Providence, … formerly of Coral Gables, in Dade County, in the State of Florida one of the United States of America but presently visiting the Island of New Providence, Bahamas, Businessman …(

7 In an affidavit sworn at Coral Gables, Dade County, Florida, on 10th August, 1990 by Cheryl Thompson-Lloyd, the wife of the plaintiff, she describes herself as being of “…Miami, Florida and of Winton Estates in the Eastern District of the Island of New Providence…”

8 Mrs. Lloyd also swore, among other things, in paragraph 3 and 5 of her said affidavit thus:–

• “3. That the statements made by the second defendant in paragraph three (3) of her affidavit are absolutely false. I have no relatives residing in Coral Gables, Florida. My husband and I have never resided with any of my relatives. My husband has recently often visited the Bahamas in preparation for taking up residence in the Bahamas.

Our children have been enrolled in schools in the Bahamas and moving preparations are in process. I categorically deny that my husband has fallen out with my relatives. My husband never lost the right to reside in the Bahamas.' No marital difficulties developed as a result of any issue of my husband's residency in the Bahamas.

• “5. That it is the intention of my husband and myself and our children to complete the process of re-establishing residence in the Bahamas at the earliest possible date.” (Emphasis added)

9 In an affidavit of the plaintiff sworn and filed on 13th August, 1990 he describes himself as being of (…Number 23 Tall Pines Subdivision in the Western District of the Island of New Providence … formerly of Coral Gables in Dade County in the state of Florida …(

10 No evidence was produced by the plaintiff to show that he had immigration permission to enter or remain in The Bahamas for any period of time. Indeed in paragraph 3 of his affidavit of 13th August, 1990, the final sentence, he states–

“…Indeed I have never at any time applied for or been issued a Permit by The Bahamas Immigration Department, nor did I at any time lose the right to reside in The Bahamas.”

11 If he was never issued a permit to reside then he could not have lost it and if he never had it and does not claim to have it, he cannot be presumed to have such a right. It was not denied by the plaintiff that he is a citizen of the United States of America, originally of the State of New Jersey. Such a person would not originally have a right to reside indefinitely in The Bahamas unless it was under the constitution or the Immigration laws.

12 Mr. Gomez urged upon me that the plaintiff is ordinarily resident in The Bahamas and relied on the statements of Mrs. Lloyd in paragraphs 3 and 5 of her affidavit excerpted above as evidence of that fact.

13 The 2 sentences of paragraph 3 I have emphasized above do not, in my view, show that the plaintiff is in fact ordinarily resident in The Bahamas since, as a non-citizen, it would also have to be shown that he has a right to reside here without more. Further, those sentences looked at in their context, merely speak of preparations to move to The Bahamas and of an intention to complete the process of re-establishing residence in The Bahamas at the earliest possible date.

14 Appah v. Monseu [1967] 1 W.L.R. 893 was a case where a Ghanian woman who had been residing in England...