Malik Momin v February Point Resort Estates Ltd

JurisdictionBahamas
CourtCourt of Appeal
JudgeMr. Justice Isaacs, JA
Judgment Date27 April 2020
Neutral CitationBS 2020 CA 38
Date27 April 2020
Docket NumberSCCivApp. No. 185 of 2018

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Mr. Justice Jones, JA

The Honourable Mr. Justice, Evans, JA

SCCivApp. No. 185 of 2018

Between
Malik Momin
Appellant / Respondent
and
February Point Resort Estates Ltd.
Respondent / Applicant
APPEARANCES:

Ms. Christina Galanos, Counsel for the Respondent

Ms. Candice Hepburn, Counsel for the Applicant

Colonial Life Insurance Co Holdings (Barbados) Ltd v Royal Bank of Canada (No. 2) (2002) 66 WIR 18 applied

Paradise Harbor Limited v Simon Townend et al [2014] 2 BHS J. No. 813 distinguished

Roulstone v Panton (1979) 33 WIR 238 applied

Civil appeal — Application for an extension of time within which to dispatch the record of appeal to the Judicial Committee of the Privy Council — Rule 9 of the Court of Appeal Rules — Section 4 of The Bahama Islands (Procedure in Appeals to Privy Council) Order 1964

On 18 November 2019 this Court granted conditional leave to the applicant to appeal to the Judicial Committee of the Privy Council. The conditions imposed required (a) the payment of a bond for the due prosecution of the appeal within ninety days and (b) the preparation and dispatch of the record of appeal to England also within ninety days. The bond was paid on 13 January 2020 and the record was filed on 18 February 2020. The applicant sought an extension of time within which to file the record.

Held: Extension of time granted. Record filed on 18 February 2020 validated. The applicant has until 18 May 2020 to dispatch the same to England.

Section 4 of The Bahama Islands (Procedure in Appeals to Privy Council) Order 1964 provides two conditions upon which leave may be granted to appeal to the Judicial Committee of the Privy Council. Sub-section (a) provides for the payment of a bond by the intended appellant “within a period to be fixed by the Court but not exceeding ninety days”. Sub-section (b) requires the preparation and dispatch of a record of appeal to England. These conditions are distinct in that the Court has no discretion to extend time under sub-section (a) but may, in certain circumstances, extend time under sub-section (b).

Having regard to the evidence of the efforts made by the applicant to have the record completed the Court was of the view that time should be extended for the preparation and dispatch of the record.

REASONS FOR DECISION
Mr. Justice Isaacs, JA

Decision delivered by the Honourable

1

. On 21 April 2020, the Court heard an application for an extension of time to file and dispatch the record of appeal in this matter, such filing and dispatch being made a part of the conditional leave of the Court granted to the applicant for it to appeal to the Judicial Committee of Her Majesty's Privy Council (“the Privy Council”). The application to extend time was not opposed by the respondent. The Court granted the leave sought and extended the time to 18 May 2020. We promised to give our reasons for acceding to the application; and we do so now.

2

. The hearing of this application marked a significant and historic milestone in the life of this Court inasmuch as it was conducted via the Application known as “Zoom”. This enabled the Court to convene in the sight and hearing of Counsel for the parties; and for Ms. Galanos' client to listen to the proceedings. Further, the Court's clerks and stenographer provided the necessary support for the hearing to occur and to be memorialised.

3

. The Court's recourse to the Zoom technology was made necessary due to the exigencies created by the COVID-19 pandemic which has caused the nation, and indeed countries around the world, to be placed under a state of emergency that has impinged on the everyday life and business of the country. The Court has not been immune to the effects of the disease; but this hearing demonstrated that although we may be bowed, we are not defeated.

Brief History
4

. On 18 November 2019, the Court granted leave to the applicant to appeal the Court's decision rendered on 1 May 2019, to the Privy Council upon the following conditions:

  • “a. That the Intended Appellant deposits or secures by bond within Ninety (90) days the sum of Two Thousand, Eight Hundred and Sixty-One Bahamian Dollars (B$2,861.00) for the due prosecution of the appeal and the payment of all such costs as may become payable by the Intended Appellant in the event of it not obtaining an order granting it final leave to appeal, or of the appeal being dismissed for non-prosecution, or of the Judicial Committee ordering the Intended Appellant to pay costs of the appeal (as the case may be); and

  • b. That the Intended Appellant shall take the necessary steps for the purposes of procuring the preparation of the record and the dispatch thereof to England within Ninety (90) days.”

5

. On the 13 January 2020, the applicant paid the requisite Bond and Bond Fee pursuant to the terms of the Conditional Leave; but did not file the record until 18 February 2020, due to ongoing communications between Counsel in regard to preparation of the same.

6

. The applicant founded its position that the Court is seised with the power to extend the time for compliance on Rule 9(1) of the Court of Appeal Rules (“the CA Rules”), which states, inter alia:

  • 9. (1) The court may, on such terms as it thinks just, by order —

    • (a) extend the period prescribed by...

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