COA: Still open to Govt to correct 'omission'

BY KEVA LIGHTBOURNE,GUARDIAN STAFF REPORTER

The Supreme Court ruling declaring Holy Cross Member of Parliament Sidney Stubbs bankrupt was out of their jurisdiction as there was no provision in the Court of Appeal Act or the Bankruptcy Act for such an appeal to be made, COA justices said Monday.

In an 11-page written ruling, the COA explained why Mr Stubbs' application was "dismissed."

The judgment of the court was delivered by COA president Joan Sawyer.

Mr Stubbs, who last Thursday was given a six-month reprieve by virtue of a House of Assembly Resolution after the 150-day extension allowed by the House Speaker had been exhausted, is set to return to the Supreme Court on Nov. 9 before Justice Jeanne Thompson, in an attempt to have the matter resolved.

In March, in a case stemming from a nine-year debt of $55,000 owed to Gina Gonzales, Justice Thompson declared Mr Stubbs a bankrupt.

Omission

In its written judgment, the COA noted that in 1925, section 108 of the Bankruptcy Act, 1914 contained express rights of appeal to the Court of Appeal (England) and in specified cases, to the House of Lords with leave. The judgment stated that despite the existence of the express right of appeal in the 1914 Act, the Parliament in England nevertheless considered it necessary to enact section 26(2)(d) of the 1925 Act in England.

"By parity and reasoning, it was a matter for the Parliament of The Bahamas to consider whether it wished to confer a right of appeal on persons declared bankrupt by a Justice of the Supreme Court to this Court or any other court, once The Bahamas was given its own Court of Appeal. It is still open to the Parliament of The Bahamas to enact legislation to supply the present omission in the Act. It is not for this, or any other court to create a right which Parliament has not, so far, chosen to confer," the judgment stated.

Ruling 'supported'

Additionally, it said, considering the English position, if it were legally possible to rely on the general provision regarding civil appeals as conferring a right of appeal in bankruptcy cases, the express right of appeal in the 1914 Act would have been nugatory in 1925.

"We are supported in the view we have taken, that the appellant has no right of appeal to this Court by section 59 of the Act itself which expressly forbids any appeal from the decisions of a court dealing with the administration of a bankrupt's property except in the manner directed by that Act

"No other provision of the Act mentions a right of appeal from any decision of a judge of the Supreme Court adjudicating a person bankrupt or from decisions made by such a judge in the course of administering the bankrupt's property for the benefit of his creditors," the justices said.

'Practical difficulty'

Accordingly, it was pointed out, there was also a practical difficulty in trying to equate an appeal in a bankruptcy matter with a civil appeal. It was explained that if a person is bankrupt, then by definition that person will not be able to comply with the provisions of rules 26 and 27 of the Court of Appeal rules (which deal with the posting of bonds for security for costs and payment for the preparation of the record of appeal) except by acting in breach of the Act.

"In light of the history of the Act, its actual provisions and the Court of Appeal Act and in light of the fact that a right of appeal can only arise from statute (or in case of alleged infringement of the human rights provisions of the Constitution - the Constitution itself) and in light of the fact that there is no express right of appeal to this Court in the Act, we concluded that we did not have any jurisdiction to hear the appellant's purported appeal because he has no right to appeal to this court," the judgment read.

Case history

According to the Court of Appeal judgment, the "undisputed" facts were that on March 10, on an unopposed application, Mr Stubbs was declared bankrupt by Justice Jeanne Thompson in the Supreme Court. The application before the learned judge was by way of a Debtors Summons issued by the judgment creditor which had been served on Mr Stubbs in sufficient time for him to appear if he so desired. The application was supported by an affidavit filed in the Supreme Court on Nov. 26 2003.

1966 civil action

From that affidavit, it appears that Mr Stubbs allowed judgment in default to be entered against him in 1996 in a civil action for recovery of the sum of $55,000 with interest thereon at the contractual rate of eight per cent from 15 September 1996.

Mr Stubbs had paid some $10,000 on account of the judgment leaving $45,000 outstanding. He made no further payments, hence the application was filed to have him declared bankrupt.

No show

According to the judgment, "Mr Stubbs (the appellant) did not appear in the Supreme Court and so far, has given no explanation for his failure to appear either in person or by counsel and attorney." The judgment noted that "On those undisputed facts and bearing in mind the impact a declaration of bankruptcy would have on his personal affairs as well as his status as a sitting member of the House of Assembly, it is difficult to understand why he did not attend at the Supreme Court and deal with the application at that level. Instead, he allowed the decision to be given in his absence when he appears to have had adequate notice that the respondent was applying to that court to have him declared bankrupt."

No Constitutional recourse

Mr Stubbs filed a notice of motion in order to appeal to the Court of Appeal against the adjudication of bankruptcy on a number of grounds, including: The provisions of section 5(3) of the Limitation Act, 1995 and his immunity as a sitting Member of Parliament from service of court process while in the "precincts of the House of Assembly."

At that time, Mr Stubbs who was represented by attorney Charles Mackay, "did not seek to pursue any of those grounds before us as none of them had been raised before the learned judge in the Supreme Court who, therefore, could have made no ruling on them," the judgment explained.

"As the court pointed out the difficulties inherent in his submission, Mr Mackey was eventually driven to submit that the appellant had a right of appeal to this court from the declaration that that he is bankrupt under Article 49(2) of the Constitution," the judgment continued.

However, it was concluded, Article 49(2) had to be considered in the context of the entire artcle, and as there was no "existing right of appeal as there is in cases of sentences of death or imprisonment under the relevant statutes...(it could not be) read to confer a right of appeal on a Member of Parliament from an adjudication of bankruptcy..."

In its judgment the COA also quoted the authors of Halsbury's Laws to the effect that, "When a man becomes bankrupt, he is subject to certain disqualifications as a citizen and otherwise. Although no longer looked upon as a crime, as it once was, bankruptcy is considered to involve a change of status, and to carry with it quasi-penal consequences."