By LYNAIRE MUNNINGS
Tribune Staff Reporter
lmunnings@tribunemedia.net

THE Court of Appeal has ruled that neither the government nor Bahamian resident Dahene Nonard will be required to pay legal costs in a long-running citizenship case that became controversial after a retired Supreme Court justice issued a ruling nearly three years after leaving office.

The ruling was delivered by Justice Crane-Scott, JA, with Chief Justice Sir Ian Winder, Justice Charles, Justice Smith, and Justice Turner all concurring. The panel determined that fairness and justice demanded that both sides bear their own costs, stating that “the justice of this particular case dictates that there be no order as to the costs of the appeal.”

The case originated in 2013 when Ms Nonard applied to be registered as a citizen of The Bahamas. After years without a decision, she filed for judicial review and constitutional relief on November 7, 2018, arguing that the government had failed to process her application properly.

The matter was heard in February 2021, but the presiding judge reserved her ruling. It was not until August 2, 2024, three years and five months later, and nearly three years after she had retired, that the judgment was finally delivered. The government appealed, contending that the retired justice lacked constitutional authority to issue a ruling after demitting office.

In July 2025, the Court of Appeal agreed, finding that the August 2024 judgment was unconstitutional, invalid, and a nullity. The court set aside the ruling and remanded the case to the Supreme Court for rehearing by a sitting judge. However, the cost question remained unresolved until now.

The government, represented by attorney Kayla Green-Smith with Adele Mangra and Nevado Frazer, argued that as the successful party, it was entitled to costs under the general rule that the losing side should pay. Ms Nonard, represented by Frederick Smith, KC, Dawson Malone and Raven Rolle, urged the court to make no order on costs, arguing that the delay and the resulting appeal were caused solely by the judicial system.

Justice Crane-Scott, delivering the court’s ruling on costs, agreed that both parties were innocent victims of the delay.

“Obviously, neither the appellants nor the respondent are responsible for the delay which transpired after the learned judge reserved her decision in February 2021,” the court said. “The conduct of the proceedings after the judge reserved her decision clearly rests squarely on the shoulders of the Judiciary as an arm of the Crown.”

The court stressed that, while the government technically prevailed on appeal, its victory rested on the finding that the judgment was unconstitutional, not on the merits of its legal arguments.

“As a result of the learned judge’s unconstitutional act, the respondent’s proceedings have been remitted to the Supreme Court for rehearing and determination before another judge,” she wrote.

“It would be unconscionable if the usual costs rule were to be applied and the respondent were, through no fault of hers, to be fixed with costs of the appeal.”

Justice Crane-Scott noted that section 30(1) of the Supreme Court Act gives judges discretion over costs, and Rule 24(5) of the Court of Appeal Rules allows the appellate court to make any order it considers just. The court referenced previous rulings such as Scherer v Counting Instruments Ltd, which held that a successful party has no automatic right to costs, and that each case must be considered on its own facts.