Paradise Island Ltd v Knowles et Al
| Jurisdiction | Bahamas |
| Judge | Sawyer, J. |
| Judgment Date | 04 July 1994 |
| Court | Supreme Court (Bahamas) |
| Docket Number | No. 1423 of 1993 |
| Date | 04 July 1994 |
Supreme Court
Sawyer, J.
No. 1423 of 1993
Mr. J. Ferron M. Bethel for the applicant
Mr. A. Lincoln Bethel for the first & second respondents
Mr. D. C. Bethell for the 3rd respondents
Judicial review - Order of prohibition — Applicant sought an order of prohibition directed to the first respondent to prevent it from proceeding to entertain and/or approve applications made by the third respondent for the grant of a hotel licence and a restaurant liquor licence — Applicant obtained an injunction against E.C. Enterprises from which the third respondent claimed to hold a lease of the subject premises — Applicant claimed that both E.C. and the third respondent were fixed with notice of the injunction — Court found that the applicant was alleged to be the developer of the sub—division and therefore had locus standi to make the application — Order of prohibition was issued to the first respondent
By a notice of motion dated 22nd December, 1993, filed December 29, 1993 pursuant to leave granted on 17th December, 1993, Paradise Island Limited (“the applicant”) seeks an “order of prohibition directed to the Licensing Authority for New Providence (“the Licensing Authority”) to prevent it from proceeding to entertain and/or approve applications made by Golden Palm Resorts Company Limited (“the third respondent”) a Company incorporated under the laws of the Commonwealth of The Bahamas… for the grant of an hotel licence and a restaurant liquor licence (to sell by retail all intoxicating liquors on premises situate on lot 5 and/or of Block 3 in the [Paradise Island Colony Subdivision] “the subdivision”).
The grounds on which the order of prohibition is sought are set out in the applicant's statement filed in support of its application for leave pursuant to order 53 rule 1(2) of the Rules of the Supreme Court, 1978.
“3. The grounds upon which the said relief is sought are as follows:
1. That by Injunction granted by Mrs. Justice Joan Sawyer on the 31st day of March, A.D. 1993 it was ordered that:
‘El Condor Enterprises Limited by itself, or by Gold Palm Resorts Company Limited, or by its servants or agents, or otherwise howsoever, be restrained, and an injunction is hereby granted restraining them from carrying an or permitting to be carried on, on property known as Lot 6 Block 3 in the Paradise Island Colony Subdivision, Paradise Island, New Providence, Commonwealth of The Bahamas, the trades or business of hotel operator, bar and restaurant proprietor or any other trade or business, and from using the said hereditaments otherwise than in the operation and management of residential apartment.’
2. That El Condor Enterprises Limited have made application for a stay of execution of the said Injunction, pending an Appeal filed by El Condor Enterprises Limited against Justice Sawyer's Order, but applications to Justice Sawyer, the Honourable Mr. Justice Joaquim Gonsalves Sabola sitting as a single judge of the Court of Appeal, and to the full Court of Appeal have all been refused and, hence, the Injunction remains in effect and of full force.
3. That notwithstanding the aforesaid, El Condor Enterprises Limited and Golden Palm Resorts Company Limited continue to carry on or to permit to be carried on, on the said hereditaments the operation of a Hotel styled and known as the ‘Golden Palm Resort’, and despite the said Injunction of which it has actual notice Golden Palm Resorts Company Limited now seeks a renewal of the Hotel and/or Liquor Licences for the continued unlawful and contemptuous user of the said hereditaments as an hotel and restaurant.
4. That the applicant is aware of other objections that have been made to the aforesaid intended first respondent opposing the granting of licences to Golden Palm Resorts Company Limited, namely by one Hans J. Schrader. Further the applicant is advised that the Licencing Authority has been provided with a copy of the aforesaid injunction by Mr. Schrader's attorney, Mr. Jerome Pyfrom.”
The facts are gleaned from the admissible affidavit evidence as well as the viva voce evidence off Mr. Conrad J. Knowles, Chairman of the Licensing Authority.
When the Licensing Authority, as presently constituted, was appointed towards the end of 1992, it became aware of prior application by the third respondent for licences under the Liquor Licences Act (Ch. 336) (“the act”) and of an objection thereto on the grounds of nuisance and the apprehended breach of restrictive covenant in respect of the property on which the subject premises is situate.
The Licensing Authority, as presently constituted, had therefore refused the earlier application by the third respondent in November 1992 both because of the objection because the applicant had not appeared.
In March 1993, in Equity action No. 873 of 1992, the applicant obtained an injunction against El Condor Enterprises, Limited (“El Condor”) from whom the third respondent claims to hold a lease of the subject premises.
The injunction reads:–
“IT IS ORDERED AND DIRECTED that the defendant El Condor Enterprises Limited by itself, or by Gold Palm Resorts Company Limited, or by its servants or agents, or otherwise howsoever, be retrained, and an injunction is hereby granted restraining them from carrying on or permitting to be carried on, on property known as lot 6 block 3 in the Paradise Island Colony Subdivision, Paradise Island, New Providence, Commonwealth of The Bahamas, the trades or business of hotel operator, bar and restaurant proprietor or any other trade or business, and from using the said hereditaments otherwise than in the operation and management of residential apartments.”
El Condor's applications for a stay of execution of the injunction to the trial judge, his Lordship the Chief Justice sitting as a single judge of the Court of Appeal, and to the full Court of Appeal were unsuccessful.
It appears that while there may be a notice of appeal filed on behalf of El Condor, against the decision in Equity Action No. 873 of 1992, that appeal has not yet been heard and determined by the Court of Appeal so that without stay of execution having been granted anyone who has notice of the injunction is bound by it — see e.g., Drewry v. Thacker 3 Swan 529at p. 546 – 547, Hadkinson v. Hadkinson [1952] 2 All E.R. 567 at p. 569 — and must obey it — see also Chuck v. Cremer (1846) Coop. Temp. Cott. 47 E.R. 884 at 885 and Isaacs v. Robertson [1984] 3 All E.R. 140 at p. 142 b – f and Eastern Trust Co. v. McKenzie Mann & Co. Ltd. [1915] A.C. 750.
In this regard Mr. D. C. Bethell referred to the well known decision of the Privy Council in MacFoy v. United Africa Co. Ltd [ 1961] 3 All E.R. 1169, [1962] A.C. 152, [1961] 3 W.L.R. 1405 as he was suggesting that the decision in Eq. No. 873 of 1992 was a nullity.
At p. 143 of Isaacs v. Robertson cited above, Lord Diplock dealt with the MacFoy case thus:–
“Their Lordships would, however, take this opportunity to point out that in relation to orders of a Court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are ‘void’ in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that are ‘voidable’ and may be enforced unless and until they are set aside. Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions ‘void’ and ‘voidable’ respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in Marsh v. Marsh [1945] A.C. 271 at 284 and MacFoy v. United Africa Co. Ltd [1961] 3 All ER 1169, [1962] A.C. 152; but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a Court of unlimited jurisdiction been held to fall in a category of Court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a Court of unlimited jurisdiction of this kind: what they do support is the quite different proposition that there is a category of orders of such a Court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the Court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make. The judges in the cases that have drawn the distinction between two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order into the category that attracts ex debito justitiae the right to have it set aside, save that specifically it includes orders that have been obtained in breach of rules of natural justice.
The contrasting legal concepts of voidness and voidability form part of the English law of contract. They are inapplicable to orders made by a Court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the Court that made it on application to that Court; if it is regular it can only be set aside by an appellate Court on appeal if there is one to which an appeal lies.”
I adopt his Lordship's reasoning and apply it to the facts of this case.
From the affidavit of Mr. William Arthur Branville McCartney sworn and filed December 17, 1993, in support of the applicant's application for leave to apply for an order of prohibition, it is stated as a fact, that one Leon Howard Smith, was a director, at the material time, of both...
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