FundHaven Ltd and another v The Executive Director of the Securities Commission of the Bahamas (Bahamas)

A certificate under section 21(1) of the Court of Appeal Act of the Commonwealth of The Bahamas must itself identify and state the point or points of law of general public importance. The appeal court should be able to determine from the certificate alone what has been certified. Grounds of appeal, transcripts and submissions cannot be used to discover an unstated point. Certification is a formal written requirement. The Court of Appeal may consider certification for itself, and may refuse it where the proposed grounds concern fact or mixed fact and law, or where the alleged legal issue is case-specific and lacks demonstrated general public importance. Its assessment of general public importance attracts considerable deference.

Accuvest Fund Services Ltd and South American Investment Fund Ltd appealed to the Supreme Court of The Bahamas against disciplinary findings and fines imposed under the Investment Funds Act 2003 and the Investment Fund Regulations. The Supreme Court dismissed the appeal, subject to reducing the fines.

The appellants sought leave to appeal out of time to the Bahamian Court of Appeal. A first certificate referred generally to the grounds of appeal. A later certificate stated two proposed questions concerning the statutory definition and deeming of an investment fund, but it was signed by the Deputy Registrar after the certifying judge had retired. The Court of Appeal rejected the certificates, declined to certify the proposed points, and dismissed the application. The Privy Council considered whether a valid certificate had been issued and, if not, whether the Court of Appeal was justified in refusing certification.

1. Appeal dismissed. The Board advised that the appeal should be dismissed. There was no certificate to discharge because the judge had not certified a point of law of general public importance for the purposes of section 21(1) of the Court of Appeal Act of the Commonwealth of The Bahamas.
2. A certificate under section 21(1) must identify and state the point or points of law of general public importance in the certificate itself. The certification process is documentary and formal. The Court of Appeal should not have to search transcripts, skeleton arguments or oral submissions to find the certified point. The first certificate merely referred to grounds of appeal involving a point of law of public importance. Those grounds principally alleged errors in fact-finding or mixed fact and law and did not state a legal point.
3. Oral certification could not assist the appellants. Section 21(1) contemplated a written certificate, and the judge’s oral ruling was itself unclear because it referred to certifying the appeal rather than identifying a point of law.
4. The second certificate was also ineffective. A Registrar might record an order already made as a ministerial act, but could not determine or create its terms. The judge had neither adopted nor endorsed the two points set out in that certificate. It therefore did not contain certification by a Justice of the Supreme Court.
5. The Court of Appeal was entitled under section 21(1) to consider certification for itself. Its conclusion that the proposed grounds involved fact or mixed fact and law was justified. The first suggested question depended on an unsupported factual assertion that SAIF was not carrying on business as an investment fund. The second assumed that section 7(1) of the Investment Funds Act 2003 was the only basis on which SAIF could be an investment fund, whereas the evidence supported an inference that SAIF was carrying on such business independently of the deeming provision.
6. The proposed points also lacked demonstrated general public importance. They depended on the particular facts, did not arise from a demonstrated uncertainty caused by an incorrect interpretation of law, and were not shown to affect persons beyond the appellants. The Court of Appeal’s assessment on this local question attracted considerable deference.

• Privy Council: appeal from the Bahamian Court of Appeal dismissed; advice given that the appeal should be dismissed.
• Court of Appeal of the Commonwealth of The Bahamas: on 22 June 2016, declined to certify points of law of general public importance, declined jurisdiction to hear the application for leave to appeal out of time, and dismissed it with costs.
• Supreme Court of The Bahamas: on 6 January 2012, dismissed the appeal against the Commission’s disciplinary decision, reducing the fines by one third.