Murray v The Attorney General of the Commonwealth of the Bahamas et Al

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Strachan. J.
• Judgment Date: 02 June 1996
• Docket Number: No. 175 of 1996
• Date: 02 June 1996

Murray

and

The Attorney General of the Commonwealth of the Bahamas et al

Strachan, J.

No. 175 of 1996

Supreme Court

Judicial review - Order of certiorari — Report of the Commission of Inquiry disclosed findings and a recommendation adverse to the applicant and others — Applicant requested an order to quash these findings and recommendation — Whether the findings, conclusions and recommendation were unreasonable and arbitrary — Whether the findings and recommendations were reached in breach of the requirement of natural justice or fairness — Whether the findings, conclusions and recommendation “amounting to or convicting the applicant of a crime” were ultra vires the Commission — Judgment that the application succeeded.

Appearances:

Mr. Philip Davis and Mr. Charles Mackey for the applicant.

Mr. Jon Isaacs and Ms. Rochelle Deleveaux for the respondents.

Strachan. J.

1 By letters patent dated 15th February, 1993, His Excellency, the Governor General, appointed under section 2 of the Commission of Inquiry Act (Ch. 172), (the Act) a three-member Commission of Inquiry (the Commission) to make a full, faithful and impartial inquiry to inquire into “the practices, procedures, policies, systems and mechanisms, financial and otherwise” and report upon the extent of and the methods employed in the conduct and operation of the state-owned corporations, including Bahamasair Holdings Limited (Bahamasair). The report of that Commission disclosed, on publication, findings and a recommendation adverse to the applicant and others. He is in fact the third, in a list of four, to whom leave has been granted to apply to have the adverse findings and consideration removed into this court and quashed. The fourth, heard by consent at the same time as this, is that of Mr. Edward Williams who like him is and was a businessman and was a principal shareholder of Famona, a subject of paragraph 340 of the report..

2 Like Mr. Williams, he attacks the findings contained in paragraph 340 and the recommendation subparagraph 13 of paragraph 342 (the recommendation). He advanced three grounds for quashing the finding and recommendation: (1) the findings, conclusions and recommendation are unreasonable and arbitrary (2) the findings and recommendation were reached in breach of the requirement of natural justice or fairness and (3) the findings, conclusions and recommendation, “amounting to or convicting the applicant of a crime”, are ultra vires the Commission. At the hearing counsel for the applicants, Mr. Murray and Mr. Williams have, from time to time quite properly and helpful, adopted what was advanced on an issue common to their respective grounds by the other. I have however been unable to follow and adopt submissions and arguments in the absence of amendment to the grounds appearing in the documents filed in support of the application.

3 More must now be said of the Commission's terms of reference and the President's opening statement should also be reproduced. Its mandate required it to report upon –

• “(a) the expenditure of public funds allocated to or received by them;

• (b) the awarding of contracts by them;

• (c) ….

• (d) in relation to Bahamasair Holdings Limited, the circumstances touching and concerning the acquisition, repair and maintenance of property and, in particular, the purchase of leasing of aircraft and their parts and equipment;

• (f) [its] procurement, policies and practices;

• (g) [its] employment practices including but not restricted to the employment and dismissal of staff;

• (h) any and all allegations of fraud, corruption, breach of trust, conflict of interest or any wrongdoing whatsoever made by anyone against any person whatsoever arising out of and in connection with any or all of the affairs of Bahamasair;

• (i) the examination of all banking arrangements entered into by them, and their financial activities generally, and more specifically the management, care and conduct of their financial affairs; and

• (j) the examination, analysis and consideration of their practices, procedures, policies, systems and mechanisms, financial and otherwise, with the view to making such recommendation as may be considered appropriate in respect of any abuses or wrongdoings, or that would prevent any future abuse or wrongdoing and ensure the proper functioning and administration of the aforenamed public entities:”

4 The inquiry into these matters was, by section 7 of the Act required to be “full, faithful and impartial”, and “in accordance with directions”, if any, in the mandate. Their report once forwarded to the Governor General was next transmitted to both Houses of Parliament where it was, of course, considered and later published and became, like the inquiry, the subject of wide media coverage and discussion..

5 On the opening day of the Commission, the President's statement, intended it appears to give guidance and information, was as follows–

• “1. My colleagues and I have been appointed by His Excellency, The Governor General, to be members of this Commission of Inquiry pursuant to the Commissions of Inquiry Act (Chapter 172 of the 1987 Revised Edition of the Statute Law of the Bahamas), to conduct a diligent and full inquiry into the extent of and the methods employed in the conduct and operation of Bahamasair Holdings Limited, the Hotel Corporation of The Bahamas and The Bahamas Telecommunications Corporation.

• 2. We, as Commissioners, have, under Section 6 of the said Act, with the approval of the Governor General appointed Mr. Colin C. Deane and Miss Telzena G. Coakley, to be the Secretary and Assistant Secretary to the Commission.

• 3. By virtue of this Order the Commission is also empowered, under section 10 of the said Act, to cause summonses to be issued for the attendance of any person named in the summons to give evidence upon oath of the truth of any fact relating to the matters to be inquired into or any other matter touching or appertaining thereto, and to produce documents or things including the power to retain.

• 4. In section 12 of the said Act any person whose conduct may become the subject of this Inquiry or who is implicated or concerned in a matter under inquiry shall be entitled to be represented bar counsel at the whole of the Inquiry. Any other person who may consider it desirable that he should be so represented may, with the leave of the Commission, be represented by Counsel. Applications for such leave to appear should be made in writing addressed to the Secretary to the Commission, at the Commission of Inquiry Building, Thompson Boulevard, P.O. Box N3217, Nassau.

• 5. Notices have already appeared in the press inviting any person who feels that he or she is able to assist the Inquiry to come forward. The Commission would welcome the full cooperation and assistance of members of the public in this regard.

• 6. Any person desirous of giving evidence should contact the Secretary to the Commission at the Commission of Inquiry Building, Telephone 3264550/4 and indicate to him the substance of the material he or she wishes to put before the Commission.

• 7. As a general rule all evidence at the hearing is to be led through Counsel assisting the Commission including that of persons seeking to adduce evidence on their own behalf who will be required to submit in advance a copy of the proposed evidence to Counsel for that purpose. However, where circumstances justify such a course, any particular person may be allowed, by special direction of the Commission, to produce evidence through his own Counsel.

• 8. After examination by counsel assisting the Commission, cross-examination will follow.

• 9. The Commission may upon occasion notify persons whose conduct is thought likely to be the subject of inquiry by the Commission before the evidence relating to him is taken so that he/she may attend the hearing and, if he/she so wishes, arrange to be represented by counsel. If a person is named by a witness to his or her detriment without prior notice, steps will be taken to inform the person thus named and arrangements will be made for that witness to be made available for cross-examination by counsel on behalf of the person named; or that person himself, if not represented, may cross-examine through the Commission.

• 10. The Commission will follow the practice normally adopted by Commissions of Inquiry into matters of this kind, but it is to be remembered that we are not sitting as a court. We are here to inquire into and report upon the extent of and the methods employed in the conduct and operation of Bahamasair Holdings Limited, the Hotel Corporation of The Bahamas and the Bahamas Telecommunications Corporation.

• 11. The Commission will sit in this hall each day as necessary from Monday to Friday. The hours of sitting will in general be from 10:00 a.m., to 1:00 p.m. and from 2:30 p.m. to 4:30 p.m. However, the Commission reserves the right to vary these times in extenuating circumstances.” (Emphasis added)

• As with the two earlier applications, ex parte Rolle and ex parte Knowles, counsel for the respondents took three points in limine and, as then, they fall to be considered at the outset. Since my conclusions are to the same effect, in this action, I trust I can be forgiven for being brutally brief. That said, I turn to the first.

Should the Attorney General remain a party?

6 I agree with the respondent that notwithstanding the provisions of section 12 of the Crown Proceedings Act (Ch. 57), article 78 of The Bahamas Constitution, the RSC O.15, r.6(2) and the absence of any cause of action having been shown against the Attorney General (AG), he should remain a party. The A G having entered a non conditional appearance is of itself strong reason for not releasing her. I note that in Privy Council No. 34 of 1994 no objection was taken to the A G's presence when, as here, what the Commission had done was challenged. Secondly,...