By NEIL HARTNELL
Tribune Business Editor
A Cuban government-owned travel agency has failed in its latest bid to obtain summary judgment against the Bahamian government and CIBC Caribbean in a dispute over a 25 year-old cheque worth $90,000.
Senior justice Deborah Fraser, in a March 20, 2025, verdict, rejected demands by Havanaturs (Bahamas) that the commercial bank pay the $90,000 sum to it despite the competing claim from the Attorney General and Bahamian treasurer. She found instead that there are “serious issues to be tried” in a full trial and that CIBC Caribbean has “an arguable defence” to the claims.
The dispute over who the quarter-century old cheque should be paid to erupted after Havanaturs (Bahamas), which has facilitated travel to Cuba for thousands of Bahamians and foreign nationals from its East Bay Street offices, alleged that a former manager “removed a blank cheque book” without authorisation and used it to obtain $100,000 for himself as “compensation for wrongful dismissal”.
As a result, the travel agency is asserting that the $90,000 belongs to it. The judgment reveals that, at end-August 1999 when the events giving rise to the dispute occurred, Havanaturs (Bahamas) was flush with cash having more than $1.91m split between its two bank accounts.
The legal battle was triggered on January 7, 2000, when Dom’s International Importers initiated an action against the then-CIBC Bahamas accusing it of “breach of contract” for not honouring a manager’s cheque made payable to itself.
The cheque, for $90,000 and dated August 31, 1999, was made payable by the former Havanaturs (Bahamas) manager, Mr Garcia, and endorsed to Dom’s International Importers but CIBC (Bahamas) did not honour it when it was presented for payment on September 3, 1999.
The Canadian-owned bank, in its legal reply, requested that the travel agency replace it as defendant. Floyd Watkins, the late former Delaporte MP and Havanturs (Bahamas) then-attorney, alleged in a November 2000 affidavit that Mr Garcia “claimed $100,000 as compensation for wrongful dismissal against Havanaturs and retained a blank check.
“A year after his dismissal, Nelson Garcia used the blank cheque to purchase the manager’s cheque to compensate himself. Mr Watkins further averred that Havanaturs’ bank account was suspended and ceased to be operational from November 1998 to August 1999,” senior justice Fraser recorded in a previous verdict.
However, following a further flurry of legal filings, the cheque dispute “became dormant” for 17 years after 2003. It was revived on July 30, 2020, when Havanaturs (Bahamas) filed its “intention to proceed” even though Dom’s International Importers - not itself - was the named plaintiff in the matter.
Following failed bids to obtain summary judgment, and have the case struck out for want of prosecution, the Cuban government-owned travel agent sought to be “joined” as a plaintiff against CIBC (Bahamas) and replace Dom’s International Importers in this role. It also demanded that the bank pay it $90,000, and argued that the case should be decided solely on the evidence it had presented.
CIBC Bahamas, in its evidence said it had “no interest” in the $90,000. It was allegedly told by Havanturs (Bahamas) in August 1999 not to honour the cheque because it was not authorised by the company, a position that was reiterated by the late Mr Watkins, who “undertook to indemnify CIBC against any claims, losses or damages for which it might suffer as a result of not honouring the said cheque”.
Dom’s International Importers principal was identified as Don Brown, and CIBC pledged that it “does not collude in any manner” with either party and was willing to hand the $90,000 over to the rightful party as determined by the Supreme Court.
Senior justice Deborah Fraser, in a verdict last year, determined that the Government - through the Treasurer and the Attorney General - should replace Dom’s International Importers as plaintiff on the basis that the company was struck off the Companies Register and ceased to exist as of August 23, 2019.
The legal justification for her ruling was based on section 273 of the Companies (Amendment) Act 2019, which mandates that assets and property belonging to a dissolved company “vest in the Treasurer for the benefit of The Bahamas”. With Dom’s International Importers now struck off, its claim to the disputed $90,000 sum now passes to the Government as a potential asset should it win the legal battle.
Havanturs (Bahamas), in its latest bid for summary judgment, argued that CIBC Caribbean “has no real prospect of successfully defending the claim” and that the allegation of fraud against Mr Garcia extends to the bank. The travel agency also alleged that CIBC Caribbean “has been holding the $90,000 on trust for it within the framework of a constructive trust”.
However, senior justice Fraser said of CIBC Caribbean’s position: “The defendant is of the position that if the third claimant [Havanaturs] is awarded $90,000, the latter would be unjustly enriched. The defendant also denies the claim that it is a trustee under a constructive trust. The defendant asserts that there’s no breach of trust because there is no evidence that the $90,000 was removed from the third claimant’s account.
“The defendant also asserts that it has a complete defence on the ground of statutory limitation if the court finds that a trust did arise. The defendant asserts that the third claimant cannot invoke Section 33 of the Limitation Act because the latter did not specifically plead fraud.”
And she found that CIBC Caribbean “has a real prospect of defending the claim” because Havanturs (Bahamas) bank statements “do not provide evidence of a debit or withdrawal of $90,000” at the relevant time. They only show its account balance went from $92,335 on August 26, 1999, to $1.1m five days later.
“Thus, the issue of whether the $90,000 was withdrawn from one of the third claimant’s accounts is still a live issue,” senior justice Fraser found. “Furthermore, the defendant’s counsel in her oral submissions asserted that upon review of the March 23, 2023, affidavit of Jeremy Gibbs (a CIBC executive), not even Mr Gibbs can locate a statement of the third Claimant’s accounts that could reflect a removal of monies had occurred.
“This is an issue of fact. If determined in a trial, it could provide the defendant with a successful defence against the claims brought by the third claimant. If it is found in trial that no monies were deducted from either of the third claimant’s accounts, the defendant now has a strong defence that it is not holding the third claimant’s funds in abeyance.
“More so, this finding of fact would substantiate the defendant’s counterclaim that the third claimant is attempting to use these proceedings to ‘double dip’.” The judge also noted that Havanturs had failed to plead fraud, and said a full trial is needed to determine who is the rightful beneficiary and owner of the $90,000.
“The third claimant is not assisting the court in dealing with the current matter expeditiously and fairly by compelling all other parties to decipher the affidavit(s) and come to a consensus on what the claimant’s case actually is. Such a situation is wholly unfair to the defendant,” she added.
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