Williams v The Attorney General of the Commonwealth of the Bahamas et Al

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Strachan, J.
• Judgment Date: 12 June 1996
• Docket Number: No. 173 of 1996
• Date: 12 June 1996

Supreme Court

Strachan, J.

No. 173 of 1996

Williams

and

The Attorney General of the Commonwealth of the Bahamas et al

Appearances:

Mrs. Allyson Gibson with Ms. Gail Lockhart for applicant.

Mr. Jon Issacs with Ms. Rochelle Deleveaux for respondents.

Judicial review Order of Certiorari - RSC O.53 — Applicant was aggrieved by the findings and recommendation made by the Commission of Inquiry which adversely affected him — Applicant applied to have these findings and recommendations quashed — Whether the Attorney General should remain a party — Whether certiorari lies — Whether there was an excess of jurisdiction — Whether there was failure by the Commission to observe the rules of natural justice — Held that notwithstanding the provisions of s.12 of the Crown Proceedings Act, Ch. 257 Article 78 of the Constitution, the RSC O.15, r.6(2) and the absence of any cause of action having been shown against the Attorney General he should remain a party — Enough was said to displace all the objections raised being amenable to certiorari — Commission had freedom to regulate its own procedure — Applicant succeeded.

Strachan, J.

1 The applicant, Mr. Edward Williams, is a businessman. He recently assisted as a witness at the Commission of Inquiry (the Commission) appointed by letters patent dated 30 December, 1992 and 11 February, 1993 by His Excellency, the Governor-General of The Bahamas under section 2 of the Commission of Inquiry Act (Ch. 72), (the Act) He is aggrieved by the findings and recommendation made by the Commission which adversely affect him. On the 13th February, 1996, the court acceded to his application for leave under RSC O 53 to apply to have them quashed. Mr. Williams was, like Mr. Murray, a principal shareholder of Famona a subject of paragraph 340 of the report.

2 His grounds, as can be seen from the prescribed statement, were stated in some detail but may be briefly and adequately identified as follows (1) failure by the Commission to observe the rules of natural justice (2) excess of jurisdiction. The terms of reference of the three-member Commission, comprised of an eminent jurist and two distinguished members an accountant and a businessman were, so far as relevant, to Bahamasair to inquire into “the practices, procedures, policies, systems and mechanisms, financial and otherwise” and report upon the extent of and the methods employed in the conduct and operation of Bahamasair with specific reference to the following –

• “(a) the expenditure of public funds allocated to or received by them;

• (b) the awarding of contracts by them;

• (c) …

• (d) in relation to Bahamasair Holdings Limited, the circumstances touching and concerning the acquisition, repair and maintenance of property and, in particular, the purchase of leasing of aircraft and their parts and equipment;

• (f) [its] procurement, policies and practices;

• (g) [its] employment practices including but not restricted to the employment and dismissal of staff;

• (h) any and all allegations of fraud, corruption, breach of trust, conflict of interest or any wrongdoing whatsoever made by anyone against any person whatsoever arising out of and in connection with any or all of the affairs of Bahamasair;

• (i) the examination of all banking arrangements entered into by them, and their financial activities generally, and more specifically the management, care and conduct of their financial affairs; and

• (j) the examination, analysis and consideration of their practices, procedures, policies, systems and mechanisms, financial and otherwise, with the view to making such recommendation as may be considered appropriate in respect of any abuses or wrongdoings, or that would prevent any future abuse or wrongdoing and ensure the proper functioning and administration of the aforenamed public entities:”

3 The inquiry into these matters was, by section 7 of the Act required to be “full, faithful and impartial” and was to be conducted “in accordance with directions”, if any, in the Commission. Their report once forwarded to the Governor General, went next to both Houses of Parliament where after debate it was published and became the subject of public scrutiny.

4 On the opening day of the Commission, the President's statement, intended it appears to gave guidance and information, was as follows–

• “1. My colleagues and I have been appointed by His Excellency, The Governor General, to be members of this Commission of Inquiry pursuant to the Commissions of Inquiry Act (Chapter 172 of the 1987 Revised Edition of the Statute Law of the Bahamas), to conduct a diligent and full inquiry into the extent of and the methods employed in the conduct and operation of Bahamasair Holdings Limited, the Hotel Corporation of The Bahamas and The Bahamas Telecommunications Corporation.

• 2. We, as Commissioners, have, under section 6 of the said Act, with the approval of the Governor General appointed Mr. Colin C. Deane and Miss Teizena G. Coakley, to be the Secretary and Assistant Secretary to the Commission.

• 3. By virtue of this Order the Commission is also empowered, under Section 10 of the said Act, to cause summonses to be issued for the attendance of any person named in the summons to give evidence upon oath of the truth of any fact relating to the matters to be inquired into or any other matter touching or appertaining thereto, and to produce documents or things including the power to retain.

• 4. In Section 12 of the said Act any person whose conduct may become the subject of this Inquiry or who is implicated or concerned in a matter under inquiry shall be entitled to be represented by Counsel at the whole of the Inquiry. Any other person who may consider it desirable that he should be so represented may, with the leave of the Commission, be represented by counsel. Applications for such leave to appear should be made in writing addressed to the Secretary to the Commission, at the Commission of Inquiry Building, Thompson Boulevard, P.O. Box N-3217, Nassau.

• 5. Notices have already appeared in the press inviting any person who feels that he or she is able to assist the Inquiry to come forward. The Commission would welcome the full cooperation and assistance of members of the public in this regard.

• 6. Any person desirous of giving evidence should contact the Secretary to the Commission at the Commission of Inquiry Building, Telephone 326-4550/4 and indicate to him the substance of the material he or she wishes to put before the Commission.

• 7. As a general rule all evidence at the hearing is to be led through Counsel assisting the Commission including that of persons seeking to adduce evidence on their own behalf who will be required to submit in advance a copy of the proposed evidence to Counsel for that purpose. However. where circumstances justify such a course. any particular person may be allowed. By special direction of the Commission to produce evidence through his own Counsel.

• 8. After examination by counsel assisting the Commission, cross-examination will follow.

• 9. The Commission may upon occasion notify persons whose conduct is thought likely to be the subject of inquiry by the Commission before the evidence relating to him is taken so that he/she may attend the hearing and if he/she so wishes, arrange to be represented by counsel. If a person is named by a witness to his or her detriment without prior notice, steps will be taken to inform the person thus named and arrangements will be made for that witness to be made available for cross-examination by counsel on behalf of the person named; or that person himself, if not represented, may cross-examine through the Commission.

• 10. The Commission will follow the practice normally adopted by Commissions of Inquiry into matters of this kind but it is to be remembered that we are not sitting as a court. We are here to inquire into and report upon the extent of and the methods employed in the conduct and operation of Bahamasair Holdings Limited, the Hotel Corporation of The Bahamas and the Bahamas Telecommunications Corporation.

• 11. The Commission will sit in this hall each day as necessary from Monday to Friday. The hours of sitting will in general be from 10:00 a.m., to 1:00 p.m. and from 2:30 p.m. to 4:30 p.m. However, the Commission reserves the right to vary these times in extenuating circumstances.” (Emphasis added)

5 The applicant seeks to impugn paragraph 340 and recommendation number 13 of paragraph 342. They are respectively –

“We are satisfied that the contract entered into by Boeing De Havilland and Sovereign was for the corrupt purpose of passing on a bribe to any person in the Bahamas whose duty it was to decide on the acquisition of aircraft for Bahamasair. The contract between Sovereign and Famona was in furtherance of that corrupt purpose. A substantial portion of the Commission paid by Boeing De Havilland was paid out within the same time frame in roughly similar amounts to close relatives of Mr. Philip Bethel and Mr. Darrell Rolle two former Chairmen of Bahamasair. The so-called purchase of an interest in a property development in Eleuthera and the “loan” for the restaurant franchise were in each case merely a device to attempt to conceal the payment of bribes to Mr. Philip Bethel and Mr. Darrell Rolle.

Investigations with a view to prosecution should be instituted into the conduct of Mr. Edward Williams and Mr. Frederick Murray in connection with the said Commission.”

6 I should pause here to comment that, Mr. Frederick Murray, another aggrieved person, has likewise been granted leave and while the two actions were not formally consolidated, counsel agreed to them being heard, as they were, at the same time. Much of what they seek and why are common.

7 As with the three earlier applications, ex parte Rolle, ex parte Knowles, and ex parte Murray, counsel for the respondents took three points in limine and, as...