NASSAU, BAHAMAS — In a landmark decision the Court of Appeal has issued a scathing condemnation of a former Supreme Court Justice, ruling that a judgment delivered nearly three years after her retirement was unconstitutional, void, and amounted to a “complete mockery” of the Constitution of The Bahamas.
The appellate panel — comprised of Chief Justice Sir Ian Winder, Justices of Appeal Crane-Scott , Charles, Smith and Turner (who delivered a dissenting decision) unanimously struck down the written judgment of now retired Supreme Justice Ruth Bowe-Darville, delivered on August 2nd 2024, nearly two years and eight months after she formally demitted office on December 3rd 2021.
The Court’s ruling arose from a landmark immigration case in which the now-retired Justice Bowe-Darville had awarded $575,000 in damages against the Immigration Department for a six-year delay in processing Dahene Nonord’s application for Bahamian citizenship. Nonord, born in The Bahamas to Haitian parents who are legal residents, applied for citizenship under Article 7 of the Constitution in 2013. Her Certificate of Identity, first granted in 2011, expired in 2016.
It was noted that when the appeal first came on for substantive hearing on March 31st, 2025, the President of the Court of Appeal invoked the proviso to section 7 of the Court of Appeal Act, explaining that the case raised a substantial point of constitutional law that had “been lurking around for a little while” and was likely to reappear in other matters. Declaring it time to “take the bull by the horns and deal with it head on,” the Justice Milton Evans, Court of Appeal President directed that the matter be adjourned and set for hearing by a full panel of five Justices. The appeal was subsequently heard on May 20th.
Delivering the lead judgment, Madam Justice Crane-Scott firmly rejected any notion that Article 96(3) of the Constitution could validate a judgment handed down by a former judge years after leaving office:
“Article 96(3) cannot (without considerable conceptual difficulty) be read as extending to things done by a former Justice of the Supreme Court or by a Justice who has retired, resigned from or otherwise vacated his office as a Justice of the Supreme Court. Such a strained or extended interpretation of Article 96(3) would, in my view, make a complete mockery of the specific tenure regime of Justices of the Supreme Court set out in the preceding two paragraphs of Article 96.”
She emphasized that relying on the de facto officer doctrine to excuse such conduct is dangerous and undermines the Constitution itself:
“The time has obviously come for this unconstitutional practice to be brought to an end. In my view, public confidence in the administration of justice in the Supreme Court will be maintained and promoted not by this Court repeatedly and routinely invoking the de facto officer doctrine to save obviously unconstitutional judgments issued by former Supreme Court Judges, but rather, by adherence to the ‘mopping-up’ regime expressly set out in Article 96(2) for completing the unfinished judicial business of an outgoing Justice of the Supreme Court before he vacates office.”
Chief Justice Sir Ian Winder noted: “I would hold therefore, that the written judgment of Justice Bowe-Darville (Ret.) is unconstitutional.”
“I am satisfied that the de facto officer principle should not be applied to the instant appeal for numerous reasons: (1) the act of the Retired Judge in issuing the judgment was unconstitutional as she had no valid authority to act as a judge, a fact she is deemed to have been aware of as a result of the decision in Rubis and Clemenza, in which case she could not be clothed with any colourable authority to act; (2) the Judge having retired, the post which she occupied has been filled by other judges since her retirement in December 2021… (5) the practice albeit engaged in by others, in good faith, was unconstitutional.”
Justice Charles warned that allowing judges to act indefinitely post-retirement would destroy the constitutional structure. “To interpret Article 96(3) as a freestanding provision would risk conferring ‘indefinite’ judicial authority on a judge solely on the basis of a valid appointment even after their constitutional tenure has ended.”
Justice Charles noted that: Permitting judgments to be delivered years after retirement risks rendering those constitutional provisions nugatory,” adding, “That interpretation, though generous, would in truth subvert the very structure the Constitution seeks to preserve.”
Justice Smith noted that Justice Bowe-Darville acted without lawful title. “This is one of those difficult cases which in my view is distinguishable from the Rubis Bahamas case, and where I must conclude that the trial judge crossed the line and was what in the eyes of the law, is termed a mere usurper who did not act under any colourable title pursuant to the de facto officer doctrine. This is not an indictment on the trial judge but a finding based upon the terminology used to describe a state of affairs.”
“I find great difficulty to accept that after such a direct and pointed decision against the same trial judge delivering any more judgments, the trial judge could somehow think that she still had colourable authority to deliver a judgment some 15 months later on (3rd August 2024). At the very least the facts suggest a situation where the trial judge shut her eyes ‘to what was obvious’.”
The lone dissent came from Justice Turner, who held a more expansive view of Article 96(3). He noted: “The lack of a constitutional prohibition on the delivery of a judgment after a person has acted in the office of a Judge informs the consideration as to the interpretation of the meaning of Article 96(3), as no constitutional principle is being infringed by an interpretation which allows for a decision being delivered which has been prepared by a Judge who has attained the age by which he was required to vacate his office.” He maintained that actions done by judges post-retirement may still be valid depending on the circumstances, but acknowledged the sensitivities of the issue.
Justice Bowe-Darville’s decision in the Dahene Nonord case has been set aside in full. The matter has been sent back to the Supreme Court for a fresh trial before a sitting judge.
