Tiffany Lindsey v Angelia Murphy

• Jurisdiction: Bahamas
• Judge: Darville-Gomez, J.
• Judgment Date: 31 August 2022
• Court: Supreme Court (Bahamas)
• Docket Number: 2022/App/Mag/ sts/ 000023

Between

Tiffany Lindsey

&

Tjasa Barr

Appellants

and

Angelia Murphy

Respondent

Before:

The Hon. Madam Justice Camille Darville-Gomez

2022/App/Mag/ sts/ 000023

IN THE SUPREME COURT

Common Law and Equity Division

Appearances:

Franklyn Williams for the Appellant

Angelia Murphy, the Respondent appearing Pro Se

Darville-Gomez, J.

Introduction & Background

1 This is an appeal by the Appellants from the decision of Stipendiary and Circuit Magistrate Mr. Samuel McKinney, made on the 20 ^th May, 2022 where he ruled as follows:

“In conclusion, having considered the evidence in this case, the court finds on the balance of probabilities that the defendant having been entrusted with the care of the Plaintiffs vehicle for her own personal use, breached that duty of care when without the Plaintiffs knowledge or permission, she allowed her daughter use of the Plaintiffs vehicle to attend a late night party. Judgment is entered for the Plaintiff in the amount of $5,000.00plus Costs $100.00.”

2 The Appellants filed a Notice of Appeal on the 8 ^th day of June, 2022 on the following grounds:

• (i) That the Learned Magistrate erred in Law and in fact by failing, disallowing, and or preventing Appellant Tjasa Barr from presenting a defence;

• (ii) That the Learned Magistrate erred in law by finding the Appellants monetarily liable upon the theft by person or persons unknown of the Respondent's vehicle;

• (iii) That the Learned Magistrate erred in law and in fact by finding that Appellants momentarily liable upon the theft by person or persons unknown of the Respondent's vehicle in circumstances in which the Respondent acknowledged having made an insurance claim for the replacement value of the Respondent's vehicle;

• (iv) Any other ground or grounds deemed just by this Honourable Court.”

Law — Jurisdiction

3 Section 68 of the Magistrate Court Act, 1897 prescribes,

“ The court may adjourn the hearing of the appeal, and may upon the hearing thereof confirm, reverse, vary or modify the decision of the magistrate or remit the matter with the opinion of the court thereon to the magistrate, or may make such other order in the matter as it may think just, and may by such order exercise any power which the magistrate might have exercised, and such order shall have the same effect and may be enforced in the same manner as if it had been made by the magistrate.”

Followed by Section 69 of the Act which reads,

“The court may make such order as to the costs to be paid by either party as it may think just, and in the event of costs being allowed may direct a lump sum to be paid by way of costs not exceeding fifty dollars, for each day of attendance at court according to the importance of the appeal, or the length of time occupied by the hearing thereof, and such sum shall cover all fees of office and all fees of counsel or attorney: Provided that no magistrate shall be liable to any costs in respect of any appeal against his decision.

Provided that no magistrate shall be liable to any costs in respect of any appeal against his decision.

4 I now consider each of the grounds of appeal of the Appellants.

The Grounds

GROUND 1- That the Learned Magistrate erred in Law and in fact by failing, disallowing, and or preventing Appellant Tjasa Barr from presenting a defence;

5 The Second Appellant swore an Affidavit in support of the appeal on July 25, 2022 where she confirmed that she is a full time student at Hillsborough Community College in Tampa, Florida. She averred that her attorney advised the Magistrate of this fact and requested a date after June, 2022 to accommodate her and enable her to be present and enter a defence. She asserted that the Magistrate agreed to do so. She explained that the hearing was adjourned until March, 2022 and the Magistrate was then reminded of her status and the Magistrate agreed to accommodate her. However, she asserted that the hearing was adjourned until May, 2022 and was concluded on that date. She complained that in concluding the matter on that date, an adverse finding was made against her and her mother. She complained that she was deprived and prevented from entering a defence and giving evidence that she is advised is corroborative of that of her mother.

6 The Record of Appeal does not reflect the Second Appellant's contention that she and the First Appellant were represented by an attorney; or, that the Magistrate acceded to her request for an adjournment until her return to the jurisdiction. While her Affidavit referred to her having an attorney, she did not provide the name and the attorney did not swear an affidavit to corroborate her contention. Further, it appeared from the transcript that neither the Appellants, nor the Respondent were represented by an attorney at the trial.

7 In any event, there was no obligation on the Magistrate to accede to her request for an adjournment until after June, 2022. From her own evidence, the Magistrate had already granted an adjournment from March to May, 2022. It was incumbent upon the Second Appellant as a party to an action to present herself on the adjourned date to defend the claim...