Renald Ferguson v Charles Evans

• Jurisdiction: Bahamas
• Court: Court of Appeal (Bahamas)
• Judge: Sir Michael Barnett, P
• Judgment Date: 15 June 2021
• Neutral Citation: BS 2021 CA 97
• Docket Number: SCCivApp. No. 132 of 2020

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, P

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Milton Evans, JA

SCCivApp. No. 132 of 2020

Between

Renald Ferguson

Intended Appellant

and

Charles Evans

Intended Respondent

APPEARANCES:

Appellant appeared Pro se

Ms. Eugenia Butler, Counsel for the Respondent

Sigma Construction Inc v Birch Development Ltd and others [2019] 95 WIR 166

Williams v Rolle [2017] 1 BHS J No 49 Junkanoo Estates v UBS [2017] UKPC8

Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326

Peace Holdings Limited v. First Caribbean International Bank (Bahamas) Ltd. [2014] 2 BHS J. No. 73

Civil Appeal — Striking out — Sections 10 and 11 ofthe Court of Appeal Act — Interlocutory order

By way of generally indorsed Writ of Summons the appellant brought an action against the respondent in the court below as a result of an accident which occurred in 2008. On 1 May 2020, the Respondent filed an application pursuant to Order 18 rule 19 of the Rules of The Supreme Court to have the Writ struck out. After hearing the matter, the learned judge acceded to the application, exercised his discretion and struck out the action. The appellant now seeks to appeal that decision.

Held: notice of appeal is struck out. Costs are awarded to the intended respondent to be taxed if not agreed.

As this is an interlocutory order, leave is required before the court has jurisdiction to hear the matter, no leave was sought or obtained by the intended appellant. As no leave has been obtained, the Notice of Appeal filed on the 9 ^th November, 2020 is a nullity and the notice of appeal must be struck out as the court had no jurisdiction to hear the matter.

Sir Michael Barnett, P

Judgment delivered by the Honourable

1 The process before us is a Notice of Appeal filed 9 November, 2020.

2 It reads:

“TAKE NOTICE that the Court of Appeal will be moved as soon as PRO SE RENALD FERGUSON can be heard on behalf of the aboved named Appellant on Appeal from the Judgement herein of the Honorable Justice Mr. Keith Thompson given on the 5th. October 2020 where the learned Trial Judge ruled and Ordered that:

[ 3 ]. This case has an interesting history if I may say so. It is a

2011 Action. 4.””’ 5.’”’’.

[ 6 ]. On June 24 ^th 2020 the Court decided that the matter had lingered and languished far too Long in the system and that it would allow the Plaintiff the opportunity to have the matter Move forward by ordering that an Unless Order be agreed between the Parties. The Parties were to return July 01, 2020 at 1.00 pm to Lay over the Unless Order.

[ 7]. This is a 2011 action and I was made to understand that at the insistence of the Plaintiff The Unless Order was carried over into 2021. This being Totally unacceptable and not a a good use of Judicial time, the Court then decided that it would entertain the Summons to strike out after that was put to the Court by the Defendant. The summons to Strike Out was heard on July 28 th 2020. 8.’''''' 9.’'''''

[10 ].The Plaintiff has set out some eleven (11) paragraphs in his reply to the application. In reviewing these arguments the Court is of the view that paragraph 8 that requires attention in this matter.

[11]. Order 18 Rule 19/17 in the 1988 White Book provides: “Para (1), (a) confers upon the Court in express terms powers which Which the Court has hithe rto exercised under its inherent justification Where there appeared to be ““AN ABUSE OF THE PROCESS OF THE COURT “This term connotes that the process of the Court MUST BE USED BONA FIDE and properly and must not be abused. The Court will Prevent the improper use of its machinery from being used as a means of Vexation and oppression in the process of litigation (See CASTRO V MURRAY (1975) 10 EX. 213.

[12]. The Plaintiff's Conduct of this case has been totally unacceptable. Surely when. One looks at the sample of history of the conduct of this matter by the Plaintiff, It begs the application of Order 31 A Rule 20 (1), (b) which provides.

[13]. Order 31 A Rule 20(1), (b) provides :-

“20 (1) — In addition to any powers under these rule s, the Court may strike out A pleading or part of a pleading if it appears to the Court.

(a) ……………………………………………………………………..

(b) that the pleadings or the part to be struck out is an abuse of the process of The process of the Court or “IS LIKELY TO OBSTRUCT THE JUST DISPOSAL OF THE PROCEEDINGS.

[ 14 ] In the Courts view there has been more than Obstruction and oppression as against Defendant. Certain affidavits were filed by the Plaintiff even while he had Counsel Retained. The Defendant in every action must know the case he has to meet. (See PHILLIPS V PHILLIPS (1978) 4 Q.B.D.127).

[ 15 ]. Additionally, the Plaintiff on numerous occasions has filed documents under the Style of RAY REYNOLDS & CO., RENALD ALLEN FERGUSON, RAY REYNOLDS & CO.#67, THE ROTHUNDER WESTRIDGE ESTATES WESTRIDGE AND OCEAN VIEW DRIVE.

[ 16]. In this regard Section 20 and 21 of the Legal Profession Act 1992 also beg to be Applied.

[ 17]. Sections 20 and 21 provides:-

“20. (1) Save where expressly permitted by this or any other Act, No unqualified person shall act as a Counsel and Attorney, Or as such sue out any writ or process, or commence, carry On or defend any action, suite or other Proceedings in the Name of any other person or in his own name, in any court, Or act as Counsel or Attorney in any case Civil or Criminal, To be heard or determined in any Court.

(2) Any person contrave ning this section is guilty of an offence And liable on summery conviction to a fine not exceeding one Thousand dollars or to impris onme nt for a term not exceeding Six months.

“21. Any unqualified person willfully pretends to be, or takes or uses Any name, title, addition or description implying that he is Qualified, or recognized by law as qualified, to act as Counsel As Counsel and Attorney, a registered Associate or a legal Executive, is guilty of an offence and liable on summary Conviction to a fine not exceeding one thousand dollars”

[ 18 ].A person who wishes to Represent himself pro se can do so, but he or she cannot hold Himself out as an Attorney by drafting documents in the style as was done by the Plaintiff.

[ 19 ]. In light of the circums tance s and after having taken into account the entire Conduct of this Matter, inclusive as to how much Judicial time has been spent on this matter. I hereby Accede to the Defendant's application to strike the Plaintiff's Reamended Writ of Summons. I also strongly recommend that the Bahamas Bar Association inve stigate this matter further As to how the Plaintiff held himself out as Counsel and Attorney many times in this action and If necessary take action against the Plaintiff.

[ 20 ]. The Reamended Writ of Summons stands dismissed and costs of the Action to the Defendant To be taxed if not agreed.

For an Order That :

1. The Judgement be Quashed and set aside in its entirety and the Appellants claim as so set So set out in his Re-Amended Writ of Summons proceed to Trial. AND FURTHER TAKE NOTICE that the grounds of this Appe al are: 1. The learned Judge erred and misdirected himself in Law and fact when he found that the Order 18 rule 19,1 (b) and (d) did apply to this case as Scandalous, frivolous and Vexiaous

2. The Learned Judge erred and misdirected himself in Law and fact when he classified a personal injury matter as an abuse of the Process of the Court under Order 18 rule 19, (1) d.

3. The Learned Judge erred and misconducted himself in law and fact when he found that this Personal Injury matter was an abuse of the process and that the Courts machinery was used as a means of vexation and oppression in the process of Litigation. Order18 rule 10/17 which is in contravention of the constitutional rights of having a fair trial.

4. That the Learned Judge erred and misdirected himself in law and fact when he found that the Reamended WRIT of Summons filed was likely to obstruct the Just disposal of the Proceedings which is also a circumvention of the constitution of a right to a fair hearing.

5. That the Learned Judge erred and misdirected himself in Law and fact when he denied the Plaintiff his constitutional rights to recover all of his losses especially in a Personal Injury matter. And denied him his right an Appeal within the Supreme Court as set out by Articles 28 (4) The Enforcement of Fundamental and Rights in the Constitution of the Bahamas and under the Univ e rs al Declaration of Human Rights.

6. The Learned Judge erred and misdirected himself in law and fact when he ascertained that certain Affidavits were filed by the Plaintiff even while he had Counsel, without requesting discovery or evidence but he omitted the Removal of Attorney Notice and Charge of Attorney Notices filed on the records ple adings by the Plaintiff.

7. The Learned Judge erred and misdirected himself in law and fact when he accepted into Court an unauthorized unorthodox and unorganized Replica of the Original Supreme Court File #01238/2011 from the Defense Attorney Mrs. Eugenia Butler without demanding its Authenticity. The same file that had prejudiced the case before it was transferred to him from Justice's Ian Winders Court. And the same file that adjourned the case because of its controversial composition. Of which he could not find the Reamended Statement of Claim himself in that File. And the Judge and his Staff denied the Plaintiff the right to view and inspect this Replica of the Original missing file. Which is a Procedural Impropriety. In order to Prejudice the Plaintiff's case a second time with Bias from the bench.

8. The Le arne d Judge erred and misdirected himself in law and fact under Paragraph 17.ofhis Judgment, Section 20 & 21 of the Legal Profession Act of 1992 where he intentionally omitted section 22 which also refers to unqualified Persons preparing documents. He accused the...