The Court of Appeal in The Bahamas has issued a landmark ruling, declaring that neither the government nor Bahamian resident Dahene Nonard will be required to pay legal costs in a protracted citizenship case that has stirred controversy due to a delayed judgment issued by a retired Supreme Court justice nearly three years after leaving office. The decision, delivered by Justice Crane-Scott with the concurrence of Chief Justice Sir Ian Winder, Justice Charles, Justice Smith, and Justice Turner, emphasized that fairness and justice necessitated both parties bear their own costs. The court stated, “the justice of this particular case dictates that there be no order as to the costs of the appeal.”
The case traces back to 2013 when Ms. Nonard applied for Bahamian citizenship. After years of inaction, she sought judicial review and constitutional relief in November 2018, alleging the government’s failure to process her application. The matter was heard in February 2021, but the presiding judge reserved her ruling. It was not until August 2024, three years and five months later, that the judgment was delivered—nearly three years after the judge’s retirement. The government appealed, arguing the retired justice lacked constitutional authority to issue a ruling post-retirement. In July 2025, the Court of Appeal agreed, deeming the August 2024 judgment unconstitutional, invalid, and a nullity. The court set aside the ruling and remanded the case to the Supreme Court for rehearing.
The cost issue remained unresolved until the recent ruling. The government, represented by attorney Kayla Green-Smith, argued it was entitled to costs as the successful party. Ms. Nonard’s legal team, led by Frederick Smith, KC, countered that the delay and appeal were caused by the judicial system, urging no order on costs. Justice Crane-Scott acknowledged both parties as innocent victims of the delay, stating, “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 highlighted that while the government technically prevailed on appeal, its victory was based on the judgment’s unconstitutionality, not the merits of its legal arguments. Justice Crane-Scott emphasized that applying the usual costs rule would be unconscionable, as Ms. Nonard had no fault in the delay. The ruling referenced section 30(1) of the Supreme Court Act and Rule 24(5) of the Court of Appeal Rules, which grant judges discretion over costs. It also cited precedents like Scherer v Counting Instruments Ltd, affirming that a successful party has no automatic right to costs, and each case must be evaluated on its unique facts.