Mundytours (nassau) Ltd v Benjamin

CourtSupreme Court (Bahamas)
JudgeSawyer, J
Judgment Date26 May 1992
Docket NumberCommon Law Side No. 1049 of 1988
Date26 May 1992

Supreme Court

Sawyer, J.

Common Law Side No. 1049 of 1988

Mundytours (nassau) Limited

Mr. F.R.M. Smith for the plaintiff

Mr. C.W. Mackay for the defendant

Practice and procedure - Default judgment — Application to set aside — Registrar ordered judgment in default of defence set aside — Leave given to defend — Application for stay of proceedings referred to judge in chambers — Hearing began in 1989 — File misplaced — Reconstituted — Hearing completed in 1992 — Onus on defendant to show duplication exists between the matter before arbitration tribunal and matter before court — Defendant failed to prove stay should be ordered.

Sawyer, J

This action itself was commenced by a generally endorsed writ of summons filed September 6, 1988 in which the plaintiff claims against the defendant, payment of “…all monies due the plaintiff by the defendant on his cash, personal and employee loan liability accounts whilst employed by the plaintiff along with costs, interest and such further or other relief as to the Court may seem just.” The Statement of Claim was filed 2 days later on September 8, 1988.


A memorandum of appearance to the writ was entered on October 17, 1988.


Judgment in default of defence was entered November 10, 1988


On November 14, 1988, a summons dated 11th November, 1988 was issued on behalf of the defendant asking that the judgment in default of defence be set aside and the defendant be given leave to defend the action by entering a defence within 7 days.


On November 18, 1988 an amended summons re-dated 17th November, 1988 (“the summons”) was issued. The summons included the application for the above-mentioned relief and sought additionally “…and thereafter that all further proceedings be stayed to abide the outcome of the proceeding commenced under the Industrial Relations Act, 1970…”


At the hearing before the Registrar, it was ordered that the judgment in default of defence be set aside and the defendant was given leave to defend the action; the application for the stay was referred to a judge in chambers.


Now the summons does not set out any written law under which the application for a stay is made.


The Supreme Court Act (Cr.’. 41, does not contain any express provision which is similar to e.g. section of the Supreme Court of Judicature (Consolidation) Act, 1925 of England (“the English Act”) which section reads: –

“Defence or stay instead of injunction or prohibition.

  • “41. No cause or proceeding at any time pending in the High Court or the Court of Appeal shall be restrained by prohibition or injunction, but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might formerly have been obtained, whether unconditionally or on any terms or conditions, may be relied on by way of defence thereto:

    Provided that

    • (a) Nothing in this Act shall disable either of the said Courts, if it thinks fit so to do, from directing a stay of proceedings in any cause or matter pending before it; and

    • (b) Any person, whether a party or not to any such cause or matter, who would formerly have been entitled to apply to any Court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule or order, in contravention of which all or any part of the proceedings in the cause or matter have been taken, may apply to the High Court or the Court of Appeal, as the case may be, by motion in a summary way, for a stay of proceedings in the cause or matter, either generally, or so far as may be necessary for the purposes of justice, and the Court shall thereupon make such order as shall be just”.


Section 17 of the Supreme Court Act (Ch. 41) however does contain the following provisions as to the exercise of their jurisdiction by the Justices of the Supreme Court–

  • “17.– (1) the Court shall be a superior Court of record, and, in addition to any other jurisdiction conferred by this or any other Act of Parliament or by any Act of the Parliament of the United Kingdom, shall, subject as in this Act mentioned, possess and exercise the jurisdiction which is vested in, or capable of being exercised by–

    • (a) Her Majesty's High Court of Justice in England; and

    • (b) the Divisional Courts of that Court, as constituted by the Supreme Court of Judicature (Consolidation) Act, 1925, and any Act of the Parliament of the United Kingdom amending or replacing that Act.

  • “(2) Subject to subsection (3), any Justice sitting alone shall be qualified to exercise all the jurisdiction, authority and powers of the Court.

  • “(3) The Rules Committee may make rules under section 29 of this Act prescribing the jurisdiction, authority and powers of the Court which shall be exercised by two or more Justices sitting together.”


Apart from the statutory power to stay such proceedings, the High Court in England always had inherent jurisdiction to stay proceedings before it which were an abuse of its process — such as frivolous, vexatious or harassing proceedings or those which are manifestly groundless or in which there is clearly no case of action in law or in equity — see e.g. Metropolitan Bank v. Pooley (1885) 10 App. Cas. 210.


It was said by Cotton, L.J., in Re Wickham (1887) 35 Ch. D. 272 at p. 279 – 280, that the inherent jurisdiction of the [High] Court to stay pending actions is preserved by provision (a) to s. 42 of the English Act.


I considered whether there was any other written law which would have given the Court express power to stay proceedings pending before it and in doing so considered s. 4 of the Arbitration Act, (Ch. 168) which does contain express provision for the stay of proceedings where there is a submission to arbitration under that Act. in this case however, by the express provision of paragraph 14 of the Fourth Schedule to the Industrial Relations Act (Ch. 296) (“the Act”) the provisions of the Arbitration Act do not apply to any proceedings or award of an Arbitration Tribunal appointed under the Act.


Looking at section 17 of the Supreme Court Act (Ch. 41) in light of section 41 of the English Act I would hold that a Justice of the Supreme Court of The Bahamas, (“the Court”) has jurisdiction to grant or refuse a stay of proceedings pending before the Court.. Further, that such Justice has an inherent jurisdiction to do so even apart from the English Act because of the provisions of section 17 of (Ch. 41) and of s. 2 of the Declaratory Act (Ch. 4).


The hearing of the summons began before me in May 1989 but thereafter the file was misplaced and only re-surfaced recently, after counsel had been put to the trouble of supplying copies of all the documents previously filed in the matter. The submissions of counsel were therefore only completed on 30th March, 1992.


On that first occasion when the summons was before me Mr. Mackay had submitted, as I understood him, firstly, that as the subject-matter of this action was also pending before an Arbitration Tribunal appointed under the Act, by way of counterclaim by the plaintiff to a trade dispute filed by the defendant with the Ministry of Labour and as any app al from a decision of such a tribunal lies directly to the Court of Appeal (as does any appeal from a decision of the Court) there was a possibility of two tribunals being seized of the same matter and reaching different conclusions.


Secondly, Mr. Mackay submitted, in effect, that the Arbitration Tribunal appointed under the Act has exclusive jurisdiction under paragraph 13 of the Fourth Schedule to the Act to deal with a trade dispute of which it is properly seized subject to a right, of course, to appeal to the Court of Appeal.


On the first occasion, Mr. Smith (as I understood him) had submitted among other things, that paragraph 13 of the Fourth Schedule to the Act was unconstitutional. I therefore ruled that the question of the constitutionality of the legislation could only be decided after full argument and in open court and that the Attorney-General should be joined for that purpose. Subsequently Mr. Smith has indicated that he has withdrawn that point so the matter continued in chambers.


On the first occasion when the summons was before me, Mr. Smith had submitted that the issue before the Arbitration Tribunal and that before this Court are two completely separate issues; the former conducting an investigation as to whether or not the defendant was wrongfully dismissed the defendant claiming $29,000.00 by way of damages for wrongful dismissal in that matter. In this action the plain-tiff, which is defendant before the Arbitration Tribunal, is suing for a debt due to it from the defendant. There was, Mr. Smith said, no conflict of jurisdiction because the Arbitration Tribunal has no jurisdiction to entertain a counterclaim. Consequently on 8 March 1989 the plaintiff in this action had officially withdrawn its counterclaim from the Arbitration Tribunal.


Mr. Smith referred to the defendant's right to set-off the sum claimed by him in the arbitration (if he succeeds there) against the sum claimed by the plaintiff in this action.


Mr. Smith also submitted that when the defendant makes an application such as this the onus lies on him to establish duplication, abuse and absence of probable cause and that the outcome of this case will have no bearing on the case before the Arbitration Tribunal.


Mr. Mackay in reply on that occasion, pointed out that the matter of a counterclaim is a matter of procedure and that if one looked at all the circumstances of the case — including the fact that the plaintiff in this action in the dispute before the Tribunal is claiming that the defendant was dismissed because of the debt, repayment of which is claimed in this action. Mr. Mackay continued that if e.g., the Arbitration Tribunal wre...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT