Paul F. Major v First Caribbean International Bank (Bahamas) Ltd

• Jurisdiction: Bahamas
• Judge: Mr. Justice Evans, JA
• Judgment Date: 11 August 2022
• Neutral Citation: BS 2022 CA 112
• Docket Number: SCCivApp. No. 77 of 2021
• Court: Court of Appeal (Bahamas)
• Year: 2022

Between

Paul F. Major

Applicant/Intended Appellant

and

First Caribbean International Bank (Bahamas) Limited

Intended Respondent

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Evans, JA

SCCivApp. No. 77 of 2021

IN THE COURT OF APPEAL

Civil Appeal — Application for conditional leave to appeal-Application for stay of execution — Whether appeal as of right — Whether the Court should exercise its discretion to grant leave to the Privy Council — Whether the intended appeal is one of general public importance — Section 23 of the Court of Appeal Act

On 26 April 2021, the Applicant's claims for unfair dismissal, wrongful dismissal, breach of contract and defamation were dismissed in the Supreme Court with costs certified for two counsel. The Applicant filed a Notice in the Court of Appeal on 7 June 2021. On 7 April 2022 the Court dismissed the appeal and affirmed the decision of the Supreme Court in its entirety. On 13 April 2022 the Applicant made an application for leave to appeal to the Judicial Committee of Her Majesty's Privy Council on the grounds that, inter alia, that his appeal to the Privy Council is as of right and he also requested a stay of execution. On 30 June 2022, after hearing the arguments, the Court reserved its decision.

Held: The applications for conditional leave to appeal and for a stay are dismissed. The costs are to be paid by the applicant to the respondent. Such costs are to be taxed, if not agreed. The costs are certified fit for two counsel.

The Court has found that the Applicant does not have an appeal “as of right”, and whether the Court grants leave is contingent upon its exercise of discretion. The Applicant bears the responsibility on the application of identifying those points for our consideration. The Court is not satisfied that this is a matter in which it can say that the Applicant has identified points of law of general public importance which are fit to be referred to her Majesty in Council. The Court does not think that it is its responsibility to sift through the proposed grounds to find points of law of general public importance.

As for the application for stay of execution, it is clear that the provision on which the Applicant seeks to rely is only relevant to a situation where this Court has determined that leave should be granted. As the Court has determined not to grant the leave of appeal, the Court has no jurisdiction to grant the stay sought by the Applicant.

Blue Illusions Limited v The Minister of Agriculture & Marine Resources et al, SCCiv App No. 290 of 2015 considered

Durity v. Judicial and Legal Service Commission and Another [1996] 2 LRC 451 considered

Elijah Saatori & Cerebe Design Ltd. v. Cheng Chun Mo alias Peter Cheng & Pioneer Advertising Ltd. No. 41 of 1992 considered

Emmott and Others v. The Treasurer of the Commonwealth of the Bahamas [2001] BHS J. No. 144 considered

Enos Miller v McKinney Bancroft & Hughes and Hartis Pinder SCCivApp. No. 27 of 2021 considered

Frederick Ferguson v Island Hotel Company Limited, IndTribApp. No. 249 of 2016 considered

Francis Farmer, et al. v. Security and General Insurance Co. Ltd. SCCivApp. No. 93 of 2011 considered

Fund Haven Ltd and another v Executive Director of the Securities Commission of the Bahamas [2021] WLR 4223 considered

Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR considered

Hunter v Chief Constable of the West Midlands Police (1982) 1 A.C. 529 considered

Lai Leung and Noray v. R (1972) 20 WIR 433 considered

Li Chen Ling Kaw v Societe Piang Sang Pere et Fils and another [2012] UKPC 19 considered

Julie McIntosh v. Family Guardian Insurance Company, SCCivApp. No. 64 of 2019

Zuliani and others v. Veira [1994] 2 LRC 705

APPEARANCES:

Ms. Krystal Rolle, QC with Ms. Kendrea Demeritte for the Applicant/Intended Appellant

Mr. Ferron Bethell, QC with Mrs. Viola Major for the Intended Respondent

RULING ON APPLICATION FOR CONDITIONAL LEAVE

Delivered by the Honourable Mr. Justice Evans, JA

INTRODUCTION

1 . The Intended Appellant (hereinafter ‘ the Applicant’) by Notice of Motion filed on the 13 ^th April 2022 makes application for leave to appeal to the Judicial Committee of Her Majesty's Privy Council (the “ Privy Council”) from a Judgment of this Court, delivered on the 7 ^th April, 2022 whereby it was adjudged that: (i) the Applicant's appeal from a Judgment handed down in the Supreme Court (the “Lower Court”) on 26 ^th April, 2021 was dismissed, (ii) the Judgment in the Lower Court was affirmed in its entirety, and (iii) the Applicant must pay to the intended respondent First Caribbean International Bank (Bahamas) Ltd. (“Intended Respondent” or “FCIB”) the costs of the appeal, certified fit for two counsel, to be taxed if not agreed. The Notice was supported by an affidavit sworn by Wallace I. Rolle and filed along with the said Notice.

2 . Over the years, numerous conditional leave applications have come before this Court and there are ample authorities dealing with the issues which have been raised and determined during those applications. In the case of Enos Miller v McKinney Bancroft & Hughes and Hartis Pinder SCCivApp. No. 27 of 2021 Crane-Scott JA succinctly summarized the existing legal framework governing appeals to the Privy Council as follows:-

“The legal framework regulating appeals to the Privy Council

• 17. As this Court (differently constituted) recently had occasion to point out, there is at present no law which provides for an appeal to lie to the Privy Council (whether “as of right” or “with leave”) from decisions of the Court of Appeal in criminal appeals. See Eric Stubbs v. Regina SCCrApp. No. 35 of 2021.

• 18. As for civil appeals and as is well known, the constitutional and legal framework providing for a substantive right of appeal to Her Majesty in Council (whether “as of right” or “with leave”) from a “judgment or order” of the Court of Appeal given on appeal from a decision of the Supreme Court in civil matters is located in: (i) Article 104(2) of the Bahamas Constitution (appeals involving the enforcement of fundamental rights and freedoms); or (ii) in section 23 of the Court of Appeal Act (in other proceedings).

• 19. An appeal from any decision given by the Court of Appeal on appeal from a final decision of the Supreme Court made in exercise of the jurisdiction conferred on the Supreme Court by Article 28 (relating to the enforcement of fundamental rights and freedoms) is an “as of right” appeal in accordance with Article 104(2) of the Constitution which provides:

  “ Appeals relating to fundamental rights and freedoms.

  • 104. (1)…

  • (2) An appeal shall lie as of right to the Judicial Committee of Her Majesty's Privy Council … from any decisions given by the Court of Appeal in any such case.” [Emphasis added]

• 20. Apart from Article 104(2), other appeals to the Privy Council from a “judgment or order” of the Court of Appeal in civil proceedings on appeal from the Supreme Court are governed by section 23 of the Court of Appeal Act. Such appeals broadly fall into two classes, that is to say: (i) “as of right” appeals in civil actions which exceed the stipulated $4,000 financial threshold; and (ii) “with leave” appeals from a “judgment or order” of the Court of Appeal “in other proceedings” arising from the Common Law, Equity, Admiralty or Divorce and Matrimonial sides of the jurisdiction of the Supreme Court.

• 21. In summary, section 23 of the Court of Appeal Act has two distinct limbs; the first provides for “as of right” appeals exceeding the financial threshold, while the second, provides for appeals in other proceedings and which require the grant of “leave”. The section provides:

  “Appeals to the Privy Council

  • 23. (1) An appeal shall lie to Her Majesty in Council from any judgment or order of the court upon appeal from the Supreme Court in a civil action in which the amount sought to be recovered by any party or the value of the property in dispute is of the amount of four thousand dollars or upwards, and with the leave of the court but subject nevertheless to such restrictions, limitations and conditions as may be prescribed in relation thereto by Her Majesty in Council, in any other proceedings on the Common Law, Equity, Admiralty or Divorce and Matrimonial sides of the jurisdiction of the Supreme Court .

  • (2) Save as is provided in this section the decision of the court in any civil proceedings brought before it on appeal shall be final .

  • (3) Nothing in this section contained shall be deemed to restrict or derogate from the right of Her Majesty in Council in any case to grant special leave to appeal from the decision of the court in any cause or matter.” [Emphasis added]

• 22. The procedural formalities for initiating an appeal to Her Majesty in Council (whether the intended appeal is “as of right” or one which requires the grant of “leave”) are governed by sections 3 and 4 of the Bahama Islands (Procedure In Appeals to Privy Council) Order, 1964 (“the 1964 Order”).

• 23. The relevant sections of the Order provide as follows:

  “ Application for leave to appeal

  • 3. Applications to the Court for leave to appeal shall be made by motion or petition within twenty-one days of the date of the judgment to be appealed from, and the applicant shall give all other parties concerned notice of his intended application .

    Conditional leave to appeal

  • 4. Leave to appeal to Her Majesty in Council in pursuance of the provisions of any law relating to such appeal shall, in the first instance be granted by the Court only –

    • (a) upon condition of the appellant, within a period to be fixed by the Court but not exceeding ninety days from the date of the hearing of the application for leave to appeal, entering into good and sufficient security to the satisfaction of the Court...