Background Facts
Duncanson & Co. (Beryn Duncanson dba) filed several appeals (CL-AP 08, 13, and 14/2023) against East Wind Development Company Ltd, William Dean Reeves, Richardson Arthur, Jeffrey Herman, Ronnie Moore, John Fleming, William Maddox, WB Corporate Management Ltd, and Saunders & Co. (Norman Saunders Jr. dba). The appeals relate to orders made by the Court on October 27, 2023.
Allegations of Bias
The Appellant alleges that Justice Bernard Turner, who was part of the panel, is a long-standing member of the Freemasons fraternity in the Bahamas. This information came to light recently, causing concern about apparent bias due to the connection with Gruchot J, who was the judge in the lower court. The Appellant argues that Freemasons are known to assist their "brothers in need," leading to a fear of not getting a fair trial.
Allegations of Fraud
In CL-AP 14/2023, the Appellant alleges that the judgment was obtained by fraud. Counsel for the Respondents and Crown allegedly misrepresented that the Registrar of Lands did not believe he had made a mistake in registering the restrictions, while the Crown's earlier submissions stated otherwise.
Allegations of Mistake
The Appellant contends that the Court's judgment in CL-AP 14/2023 contains numerous inadvertent mistakes on points of fact and law, rendering the judgment inconsistent and unsafe.
Costs in CL-AP 08/2023 and CL-AP 13/2023
The Court initially ordered indemnity costs against the Appellant in these appeals. However, the Acting President of the Court of Appeal later attempted to amend the costs order via email, seeking to grant the Appellant costs on the issue of abuse of process.
Outcome:
The Court of Appeal dismissed the appellant's appeals against the lower court's decisions. The applications for conditional leave to appeal to the JCPC were refused as being out of time. The respondents were awarded 85% of their costs as the overall successful parties, despite unreasonably pursuing one issue.
Bias:
- The court held there was no merit in the bias ground of appeal. The allegations of bias were "ludicrous" and "spurious speculation" with no evidentiary basis (para 58).
- "There is absolutely no evidence to confirm that the Judge, is a member of the Masonic brotherhood or that there is a connection between Gruchot J and the Judge that would lead the Judge to be at risk of influence 'high in terms of rank of the shared social connection of Freemasons'". (para 58)
- "To suggest that the Judge would betray his judicial oath, as Counsel for the Respondents submitted, would be nothing but improper and offensive." (para 58)
Fraud:
- The court found no merit in the fraud ground of appeal. There was no evidence of "conscious and deliberate dishonesty" by counsel that was an "operative cause" for the court's decision. (para 69-70)
- "In my view, this did not constitute fraud since there is no evidence that it was a conscious and dishonest misrepresentation." (para 70)
- "I am of the view that the Appellant has not proven that the judgment was obtained by fraud." (para 73)
Mistake:
- The court held there was no merit in the mistake ground of appeal. The appellant failed to clearly identify and demonstrate the alleged errors. (para 79-80)
- "However, this does not automatically mean that the orders must be set aside on the ground of mistake by the Court." (para 80)
Conditional leave to appeal to JCPC:
- The applications were refused as being out of time under the statutory framework. The court has no power to extend time. (para 58-59)
Costs:
- The respondents were awarded 85% of their costs as the overall successful party, despite unreasonably pursuing the abuse of process issue. (para 117-118)