The first application was for discovery and permission to cross examine witnesses from both Discovery Land Company and the Government defendants – the Queen, the Prime Minister, the Treasurer of the Bahamas, and Wendell Major, the Cabinet Secretary.
Yet the Court of Appeal rejected the application by the Association for a leave to appeal the interlocutory decision of Justice Norris Carroll, who refused the discovery and cross-examination.
The Association and its attorney, Frederick Smith, had also sought to have three executives from Discovery Land Company – Steve Adelson, Joseph Arenson and Michael Meldman – committed to prison for alleged contempt of court.
The grounds for this were that Discovery Land Company had allegedly breached an undertaking not to do any new work at Baker’s Bay until the trial on the substantive issues was completed.
The court rejected this, too.
The Justices told Mr Smith that they did not have the right to grant an appeal under the circumstances presented.
“If you are right or wrong, we will deal with it when it comes before us,” said Dame Joan. “We would be pre-determining the merits, when we don’t know what the merits are. This is not a court of first instance. All of your issues can be dealt with in other ways, but not in this court.”
The Justices explained that they had already made an Order in December, stating that the case should go forward, based on its merits, and that it should be completed by January 31.
“We can’t order for a trial to continue, and then suspend it,” she said. “Justice delayed is justice denied, and the public is not served by this.”
The case before Justice Canoll continues today: Mr Smith argued that justice could not truly be served in the case, because it would be difficult for him to deliver closing arguments without being able to test the evidence. It was for this reason he had applied to the Court of Appeal to allow for him to be able to cross-examine the witnesses brought by the Government and the developers. Justice Osadebay told Mr Smith that if he felt the facts were in dispute, he should have chosen to file a writ.
On the issue of the developers breaching the court order by continuing their land clearing and dredging, the Justices said that issue was “totally different” from what was brought before the Court.
Encouraging Mr Smith to follow the guidelines of the Court if he wished to appeal the decision of Justice Carroll at the end of the ongoing trial, the Justices said there was no way they could deal ﾠwith the substance of his complaints at this time, ﾠuntil they were able to deal with the substance of ﾠa judgment.
Whether or not the Association wins the case in the court below, they will have to foot the bill for ﾠthe series of lawyers – six of them present yesterday – who were present to argue against the applications presented.
The respondents are the Queen, the Prime Mister, the Treasurer of the Bahamas, and Mr Major. Additional respondents, which have been added by leave of the Court, are Passerine at Abaco Ltd and five other associated developer companies.
Pursuant to the leave of the Court of Appeal given in November 2005, Aubrey Clarke, a resident of Guana Cay, was added as an additional applicant.
By A FELICITY INGRAHAM, Tribune Business Reporter
