COA denies more time for appeal of case involving former finance minister

COA denies more time for appeal of case involving former finance minister

Court rules delay in filing appeal application inexcusable 

NASSAU, BAHAMAS — The Court of Appeal has denied a Bahamian-registered company additional time to appeal a judge’s decision to refuse its judicial review application.

TGO LTD, formerly Texas Gas & Oil Ltd, in a case in which former Finance Minister K Peter Turnquest was listed as a respondent, had been directed on July 15, 2019, via a notice, to produce numerous documents requested by United Mexican States (Mexico) within 28 days of the receipt of the notice.

The direction was given pursuant to Section 5 of the International Tax Cooperation Act, 2010.

On November 5, 2019, TGO sought leave to commence judicial review of the minister of finance and/or the financial secretary’s decision to issue the notice to produce documents.

The hearing was conducted before Justice Indra Charles who refused leave to commence judicial review, finding the application “unmeritorious”.

TGO Ltd subsequently obtained leave to appeal the judge’s ruling and sought to get an extension of the time for filing an appeal over the judge’s ruling.

The appellate court noted: “The learned judge, in refusing to commence judicial review proceedings, found that the minister did not misuse his discretion in arriving at the conclusion that all the necessary requirements have been complied with, albeit in compliance with the 2013 amendment, finding that it did not mean that he failed to comply.

“In her opinion, she found that it was a simple procedural inadvertence on the part of the competent authority.”

It was also noted that TGO had requested two extensions in order to produce the requested documents. The reasons given were that TGO Ltd’s office premises was damaged during Hurricane Dorian, as well as family and staff members were also affected by the same.

“The company had been granted the extension but only until November 5, 2019, as the documents were required by Mexico within a 90-day time frame,” the court noted.

The appellate court also noted: “The length of the delay between the grant of leave to appeal and the filing of the application for leave to appeal is seven months. That by itself can be considered inordinately long.

“The court is conscious of the unprecedented factors that occurred between the 20 March, 2020, and when the Court of Appeal Registry reopened in May 2020.

“This country, like the majority of other countries, went into lockdown due to the COVID-19 pandemic, one that is sadly still ongoing.”

The court added: “The intended appellant failed to file the application to appeal prior to the 20 March, 2020.

“The excuse given was that it was due to an oversight between the time the order was perfected on the 25 February, 2020, and prior to the state of emergency. That can be considered excusable bearing in mind the state of flux we all as human beings were coming to grasp with during those days just prior to lockdown.

“What the court finds unacceptable, however, is the delay between the reopening of the Registry of the Court of Appeal on 1 May, 2020, and the date of the filing of the EOT application on the 14 September, 2020.

“The reason for this delay proffered by the intended appellant was that it was due to press of work of the intended appellant’s counsel and also to lend assistance to others as well as the volume of work.

“Delay due to counsel’s workload is not an acceptable excuse.”