Matteo Volpi v Delanson Services Ltd
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Evans, JA |
| Judgment Date | 30 April 2020 |
| Neutral Citation | BS 2020 CA 39 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCivApp No. 145 of 2019 |
| Date | 30 April 2020 |
IN THE COURT OF APPEAL
The Honourable Madam Justice Crane-Scott, JA
The Honourable Mr. Justice Jones, JA
The Honourable Mr. Justice Evans, JA
SCCivApp No. 145 of 2019
Mr. Fenner Moeran, QC, with Mr. Adrian Hunt, Counsel for the Intended Appellant
Mr. Brian Simms, QC, with Mr. Marco Turnquest and Mr. Wilfred Ferguson, Counsel for the First Intended Respondent
Mr. Stephen Smith, QC, with Ms. Wynsome Carey, Counsel for Second Intended Respondent
Arrow Air, Inc. v Bahamas (Minister of Tourism) [1995] BHS J. No. 36 followed
Junkanoo Estate Ltd and others v UBS Bahamas Ltd (In Voluntary Liquidation) [2017] UKPC 8 applied
Junkanoo Estates Limited v UBS (Bahamas) Limited SCCiVApp No 89 of 2015 followed
Knowles v Government of the United States of America and another — [2007] 1 WLR 47 considered
Peace Holdings limited v First Caribbean International Bank (Bahamas) Ltd. SCC App No.57 of 2014 Considered
Salaman v Warner and Others [1991] 1 QB 734 mentioned
Sumukan Ltd v The Commonwealth Secretariat [2007] EWCA Civ 243 [2007] 2 Lloyd's Rep 87 distinguished
Civil Appeal — Injunctive Relief — Arbitration Act s 55 — Failing to obtain leave to appeal
The appellant sought injunctive relief under Section 55(2) (e) of the Arbitration Act. The application was heard and dismissed. The appellant thereafter filed a Notice of Appeal in this Court without obtaining leave of the Supreme Court. The respondents filed preliminary objections to the Appeal being heard on the basis that inter alia, leave of the Supreme Court is required for any appeal from a decision of the Court under Section 55 of the Arbitration Act and that the appellant had failed to obtain such leave and therefore the Notice of Appeal is a nullity.
Held: appeal is a nullity; cost to the respondents to be taxed if not agreed.
It is well established that an appeal filed without leave of the court, where leave is required, is a nullity.
It is clear that when the learned Judge granted the interim Injunction in the present matter he did so pursuant to the powers vested by Section 55 of the Act. The application by the appellant to continue that Injunction and the application by the respondent to set aside the leave granted to serve out of the jurisdiction all related to the assistance granted pursuant to Section 55 of the Act. It follows that the orders made by the learned Judge on the 7 August 2013 were made further to the application under section 55. The corollary is that in order to properly lodge an appeal the appellant had to comply with order 55 (7).
Mr. Moeran's attempted to segregate his Appeal into two separate claims. However, a review of the Notice of Appeal which was lodged shows the futility of that approach.
It is clear that at issue at any appeal will be the question as to whether the Judge was right to set aside the service out of the jurisdiction under Order 11 of the Rules of the Supreme Court. The issue as to the Injunctive relief is inextricably bound to that question and as such the segregation approach posited by Mr. Moeran is unsustainable. The essence of the appellant's claim before the Judge was for assistance to the arbitral process by the exercise of his powers under section 55 of the Act.
The learned Judge was at all times operating on the basis that he was determining what assistance he could give to the arbitral proceedings having regard to his powers under section 55 of the Act. His decision was in our view obviously made under Section 55 and the distinction which Mr. Moeran sought to draw is with respect a distinction without a difference.
Judgment delivered by the Honourable
On 30 November 2018 the appellant filed an Originating Summons seeking injunctive relief under Section 55(2) (e) of the Arbitration Act. This was followed by an ex parte Summons filed on the same day seeking injunctive relief under section 55 of the Arbitration Act. Winder J, having granted the Order ex parte, heard the application Inter parties and dismissed the appellant's Summons on 7 August 2019. The appellant then filed his Notice of Appeal in the Court of Appeal on 21 August 2019. However, the appellant failed to obtain leave of the Supreme Court to file his Appeal.
Both of the intended respondents filed preliminary objections to the Appeal being heard on the basis that (1) That pursuant to Section 55 (7) of the Arbitration Act the leave of the Supreme Court is required for any appeal from a decision of the Court under Section 55 of the Arbitration Act and that since the appellant has failed to obtain such leave, his Notice of Appeal is a nullity;(2) That pursuant to Rule 27(5) of the Court of Appeal Rules the appellant's application for a leave to appeal should have been made in the first instance to the Supreme Court.
In response the appellant submitted that firstly, no such permission is required for the appeal: and secondly, the Notice of Preliminary Objections were filed late, and should be rejected, given that both the respondents have up to this point accepted and made submissions on the basis that the appeal was legitimate, involved a question of jurisdiction and that accordingly the Court of Appeal had jurisdiction in this matter.
After hearing submissions from Counsel we determined that the preliminary objections should be upheld and declared the purported appeal to be a nullity. We promised at that time to provide reasons for our decision and we do so now.
It is trite that this Court's jurisdiction to hear appeals is derived from statute and thus we cannot obtain jurisdiction from the acquiescence or consent of the parties. It follows therefore that the salient question which we must answer is whether there is jurisdiction to hear the proposed appeal in the circumstances where leave has neither been sought nor granted from the Court below.
Section 55 (7)5 of the Arbitration Act expressly provides that:
“The leave of the Court is required for any appeal from a decision of the court under this section.”
It is well established that an appeal filed without leave of the court, where leave is required, is a nullity. In Arrow Air, Inc. v Bahamas (Minister of Tourism) [1995] BHS J. No. 36, the Court of Appeal noted that:
“7 …. Until a Notice of Appeal is filed nothing is pending in the court and where leave to appeal is required no Notice of Appeal can be filed until leave is granted …”
In Junkanoo Estates Limited v UBS (Bahamas) Limited SCCiVApp No 89 of 2015 the appellants filed a notice of appeal from an interlocutory order without leave of the Supreme Court. The respondent took a preliminary objection that the appeal was a nullity. The Court of Appeal held that an interlocutory appeal, filed without leave of the Court, is a nullity. The Court of Appeal noted:
“Consequently section 11(1) (f) of the Court of
Appeal Act requires the leave of the court below or of the Court of Appeal to appeal interlocutory orders or judgments. Moreover, rule 27(5) of the Court Of Appeal Rules provides that where an application may either be made to the court below or the Court of Appeal, it shall be made in the first instance to the court below… ….. Inasmuch as the Court of Appeal derives its jurisdiction to hear and determine appeals from section 10 of the Court of Appeal Act and in the absence of any application having been made and refused in the court below, on the authorities, there is therefore no appeal before us because the purported Notice of Appeal is a nullity.
The Court of Appeal's decision in Junkanoo was upheld on appeal to the Privy Council where their Lordships observed as follows:
“5. Under section 11(f) of the Court of Appeal Act, an appeal to the Court of Appeal from an interlocutory order lies only with the leave of the Supreme Court or that of the Court of Appeal. Rule 27(5) of the Court of Appeal Rules provides:
“Wherever under the provisions of the Act or of these Rules an application may be made either to the court below or to the court, it shall be made in the first instance to the court below.”
It is common ground that for this purpose an order giving summary judgment is an interlocutory order. The English rule to this effect was stated in White v Brunton [1984] QB 570 and has been applied for many years in the Bahamas”. [See [2017] UKPC 8]
The respondents submitted that in the instant case, the requirement to obtain leave under Section 55 (7) of the Arbitration Act is analogous to obtaining leave from an interlocutory judgment. As such they contend that the same principals apply to this situation. Thus, they conclude the appellant's Notice of Appeal is a nullity and must be struck out.
Faced with these authorities which are beyond challenge Mr. Moeran, QC made a valiant effort to persuade us that the current matter could be distinguished. He acknowledged that Section 55(7) of the Arbitration Act provides that the leave of the court is required for any appeal from a decision of the court under that section. However, he contended that this appeal is not an appeal from a decision under section 55 as: (i) The appeal on permission to serve out of the jurisdiction is an appeal against a decision relating to and under the RSC; and (ii) The appeal on jurisdiction is precisely that — an appeal on the jurisdiction of the Court as to what it could do under s.55, rather than a determination under the section. He concluded that it is a preliminary decision on whether the Court could exercise its discretion under s.55, rather than whether it would do so. The appellant says that the Court declined jurisdiction, and accordingly failed to reach a decision under the section at all and consequently s.55(7) did not apply.
To continue reading
Request your trial