Sands et Al v Finance Corporation of Bahamas

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeBlackman, J.A.
Date06 November 2008
Docket NumberCivil Appeal No. 29 of 2008

Court of Appeal

Blackman, J.A.

Civil Appeal No. 29 of 2008

Sands et al
and
Finance Corporation of Bahamas
Appearances:

Mr. Wayne Munroe for the appellants

Miss Tara Archer with Miss Cherise Bowleg for the respondents

Civil practice and procedure - Appeal — Application for leave to file appeal out of time — Period of delay was 8 days — Leave allowed.

Blackman, J.A.
1

On September 1, 2008 the applicants by Notice of Ex parte Application applied to this Court for:

(1) A stay of the Order of Mohammed, J. made on the 27th February, 2008 whereby the applicants were (inter alia) ordered to give up possession of their property to the Respondent Mortgagee within 28 days, and the respondent as Mortgagee to exercise its power of sale under an Indenture of Mortgage and Further Charge; and (2) Leave to file an appeal out of time.

2

At the hearing on September 11, 2008 Counsel for the applicants advised that the judgment of the Court had already been executed, in that a Writ of Possession had been issued. As the Court of Appeal Rules do not permit the grant of a stay where execution has issued, the only matter for consideration is the application for an extension of time to lodge the appeal.

THE CASE FOR THE APPLICANTS.
3

The time for lodging an appeal expired on April 9, 2008. The Notice of Motion of Appeal was filed on April 17, 2008 resulting in a delay of eight days. This application is supported by affidavits sworn on August 28, 2008 by Mrs. Clarita v. Lockhart, former counsel for the applicants, and the applicants, Derek and Lenora Sands.

4

The jurisdiction of this Court to entertain an application for an extension of time is contained in Rule 9 of the Court of Appeal Rules, 2005, and the Court may grant that extension on such terms as it thinks fit. An application to the Court shall be by motion supported by affidavit stating the reasons for the application.

5

Counsel for the applicants has submitted that the factors to be taken into account are as stated in C M Van Stillevoldt BV v. El Carriers Inc [1983] 1 All E.R. 699, at p.704 letter a, namely:

  • (a) length of the delay;

  • (b) reasons for the delay;

  • (c) whether there is an arguable case on the appeal succeeding; and

  • (d) the degree of prejudice to the potential respondent if time is extended.

6

Mr. Munroe further submitted that eight (8) days is not an inordinate period to constitute prejudicial delay. In support of this submission, he cited the observation made by Ackner, L.J. (as he then was) in Palata Investments Ltd v. Burt & Sinfield Ltd [1985] 2 All E.R. 517 at p.521 that:

‘…in cases where the delay was very short and there was an acceptable excuse for the delay, as a general rule the appellant should not be deprived of his right of appeal…’

7

In noting the reasons for the delay, Mr. Munroe referred to the affidavit of former counsel for the applicants, Mrs. Clarita V. Lockhart in which she deposed as to her efforts to obtain the perfected Order of Mr. Justice Mohammed for attachment to the Affidavit in support of the application as an exhibit. Mr. Munroe also drew to the Courts attention the observation made by this Court in Rev. Cyril Sands v. The Assemblies of God in the Bahamas, Civil Appeal No. 59 of 2005 (unreported) that the perfected Order should be attached to the affidavit in support of the application as an exhibit, else the Court would have no jurisdiction to entertain the application. Mr. Munroe noted that only after it became apparent that the perfected Order would not be obtained in time, that Mrs. Lockhart filed the Notice of Appeal Motion and realized thereafter that the time had been miscalculated.

8

Mr. Munroe submitted that in all the circumstances the foregoing recital of events constituted a good reason for the delay. Moreover, he urged that the miscalculation of time by the former counsel for the applicants/defendants constituted a just cause for the Court to exercise its discretion in extending the time in which to appeal. In support of this position, Counsel cited Gatti v. Shoosmith [1939] 3 All E.R. 916 at p. 919, letter g where Sir Wilfred Greene MR stated that:

“…the fact that the omission to appeal in due time was due to a mistake on the part of a legal adviser, may be a sufficient cause to justify the Court in exercising its...

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