NASSAU, BAHAMAS — A Supreme Court judge has determined that the company once at the center of the Renward Wells Letter of Intent (LOI) controversy has little to no prospect of success in its legal battle and denied its request to be allowed more time to appeal to the Supreme Court Registrar’s decision.
Supreme Court Justice Neil Brathwaite, in a May 2 judgment, refused an application by Stellar Waste to Energy Bahamas Limited and Stellar Energy Limited to appeal a March 2019 decision of Deputy Supreme Court Registrar Carol Misiewicz.
Misiewicz had found that Stellar Energy Limited and Stellar Waste to Energy Bahamas Limited, the first and second plaintiffs respectively, were not parties to the LOI yet signed the document. The Registrar also noted that the LOI automatically expired one year from the date of its execution on July 3, 2015, and was a discussion document subject to contract, not binding in law. Stellar contended that the registrar erred in coming to those conclusions.
Stellar had been ordered to pay costs in the sum of $20,000 to the defendants, Wells, Allen, Allen, and Co., and Frank Forbes (Sigma Holdings Ltd), the first, fourth, and fifth defendants respectively, but it was never paid. The Deputy Registrar had also found that the plaintiffs did not have a good and arguable case against any of the defendants.
Wells, at the time of the LOI signing, was the Parliamentary Secretary in the Ministry of Works with responsibility for the Bahamas Electricity Corporation under the Christie administration. He became embroiled in controversy in mid-July 2014 when the Stellar LOI was leaked to the media, and he was accused of signing it on the Government’s behalf without proper authorization. The saga ultimately led to his dismissal from the Government. Stellar had proposed to build a $650 million waste-to-energy plant on New Providence and launched a legal attack over its failure to obtain a Memorandum of Understanding (MOU) and other associated documents enabling the company to proceed with the project.
Justice Brathwaite noted that the decision of the Deputy Registrar was made on March 8, 2019. The plaintiffs were required by the rules to appeal the decision within five days of it being made. Unfortunately, this timeframe was not met. The plaintiffs, within nine days following the last day to appeal the ruling, filed a notice of appeal to the Court of Appeal. Counsel for Stellar had claimed that this was inadvertently done and was therefore withdrawn. However, a considerable time lapsed between the filing of the notice of appeal and Hurricane Dorian in September 2019, during which the matter lay dormant. I take judicial notice of this event. It was not until October 2019 that the Stellar withdrew the notice of appeal and filed a summons to extend the time to appeal to a judge in chambers. Since the filing of this summons, the judge noted that Stellar did not file an affidavit in support to furnish the court with the reason for their delay.
There were some five months since the filing of the Notice of Appeal to the Court of Appeal and Hurricane Dorian. Counsel for Stellar at the hearing that when the notice of appeal was filed, he was not retained as counsel in the matter. However, there was no affidavit stating this. Furthermore, following the application to extend the time to appeal, there was another five-month lapse before the COVID-19 pandemic, during which no action was taken on behalf of Stellar.
The judge noted that during COVID lockdowns, the court was able to resume hybrid operations with legal documents being filed and virtual hearings conducted.
The plaintiffs took no further action to have the application heard before a judge until sixteen months later or even put their action properly before the court with a supporting affidavit.
“I find that the delay on behalf of the plaintiffs to apply for leave to extend the time to appeal is excessive. I also find that there are timeframes in which the plaintiffs were able to make the application and failed without providing any reason for the same,” the judge noted.
Justice Brathwaite stated: “I find that the plaintiffs have no prospects of success if time was extended to appeal as their cause of action founded in contract and/or tort law does not disclose a reasonable cause of action against the first defendant (Wells). I also consider that should the plaintiffs’ application be granted this would be prejudicial to the first defendant. As the first defendant submitted, this matter was initiated almost 10 years ago with significant delays on behalf of the plaintiff to appeal with little to no prospect of success.”
