Culmer et Al v Nairn
| Jurisdiction | Bahamas |
| Judge | Conteh, J.A. |
| Judgment Date | 18 November 2015 |
| Neutral Citation | BS 2015 CA 136 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCivApp & CAIs No. 135 of 2014 |
| Date | 18 November 2015 |
Court of Appeal
Allen, P.; Conteh, J.A.; Adderley, J.A.
SCCivApp & CAIs No. 135 of 2014
Sir Cyril Fountain with Mr. Carlson Shurland, counsel for the appellants.
Mr. Maurice Glinton, QC with Ms. Meryl Glinton and Mr. Keith Major Jr., counsel for the respondent.
Lindwall v. Lindwall [1967] 1 All E.R. 470 considered
R v. Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 909 applied
Civil Practice and Procedure Jurisdiction — Whether the Court has the jurisdiction to determine this dispute — Whether the relief sought should have been sought by way of the originating summons procedure pursuant to Order 5, rule 4(2)(a) and (b) of the Rules of Supreme Court — Consideration of R v. Disciplinary Committee of the Jockey Club ex parte Aga Khan [1993] 909; [1993] 2 All E.R. 853 — Expulsion for life from the masonic lodge for alleged un-Masonic activities — Whether the expulsion without a hearing from the Lodge was contrary to section 6 of the Constitution of the Lodge — Right to be allowed to cross examine an affiant who made an affidavit in proceedings — Consideration of Lindwall v. Lindwall [1967] 1 All E.R. 470 — Appeal dismissed — Finding that the purported suspension and expulsion was a nullity and the Respondent was entitled to the full membership rights and privileges of the Lodge — The Elected Officers and Trustees of The Most Worshipful Prince Hall Grand Lodge of Free and Accepted Masons of The Commonwealth of the Bahamas
The respondent was a member of the Columbus Lodge No. 16 Prince Hall Grand Lodge of Free and Accepted Masons. By letter dated 13 August 2009 he was suspended for two years from any and all Prince Hall Affiliated Lodge activities on allegations of un-Masonic conduct. Thereafter, by letter dated 27 September 2010 he was expelled for life.
A declarations were sought by the respondent, the plaintiff in the Supreme Court, to determine whether the purported suspension and expulsion were in accordance with the Lodge's constitution. If they were not, the respondent sought a declaration that he was denied due process; that the suspension and expulsion were ultra vires the constitution and therefore a nullity and that he was entitled to full membership rights and privileges of the Lodge.
The appellants justify their suspension and expulsion of the respondent on the basis that their actions were taken by the Grand Master of the Lodge, by virtue of his inherent prerogative powers; it was, by the Customs, Usages and Ancient Land Marks of Freemasonry and its Constitution, final and unappealable.
The learned judge found, inter alia, granted the declarations sought by the respondent. It was against these declarations that the present appeal arose.
appeal dismissed. Declarations granted by the judge and his orders for costs affirmed. The respondent is also granted the costs of the appeal, to be taxed if not agreed.
The powers which the Lodge and its officers and bodies exercise over those who, like the respondent, agreed to be bound by its Constitution, derive from the agreement of the parties. However, it cannot be that membership of a Masonic Lodge automatically annuls members' right of recourse to the ordinary Courts of the land; especially where a claim is against the imposition of sanctions without due process, which it is claimed, is inconsistent with the Constitution of the Lodge itself.
It might, perhaps, have been part and parcel of the Ancient Landmarks and Usages of Freemasonry that the Grand Master could, without a hearing suspend and later expel a member of the fraternity. However, since the adoption of its Constitution, any such usage would now be subject to it; and to find validation, such suspension or expulsion must be reconcilable with the provisions of the Constitution.
There is, therefore no doubt that for an organization that is held in high esteem not only by its members but also by a large body of non-members, the Lodge in issue in this case, by its Constitution, has in place a detailed Code for the hearing and determination of charges and the imposition of sanctions against any member or officer that is found to be errant. This Code we find is compatible with the principles of fairness that is a part of any proper system of adjudication and imposition of sanctions.
In substance, this appeal arises out of a dispute between a member and officers of a Masonic Lodge regarding the suspension, and later the expulsion, of the former by the latter. Underlying the appeal is the question of whether the ordinary Courts of the country, including the Supreme Court and this Court, have jurisdiction to determine such disputes.
The Craft of Freemasonry has a deep-rooted history; it is however, a closed-world to non-members who, in the vocabulary of the Craft, are designated and termed “profane.” This designation is not necessarily to be taken as derogatory; it is to be understood against the origins of the society itself, meaning “outside the temple”, that is, all those not belonging to the Craft of freemasonry. However, it is undoubted that membership of Freemasonry is voluntary. Members of the Craft enjoy certain rights and privileges.
As previously noted, at the heart of the case was first, the suspension of the respondent from any and all Prince Hall Affiliated Lodge's activities from 14 August 2009 to 14 August 2011; and secondly, his subsequent expulsion for life from the Lodge for alleged un-Masonic activities.
All the parties were members of the Columbus Lodge No. 16 Prince Hall Grand Lodge of Free and Accepted Masons. The respondent was himself a past Master of the said Lodge. The first appellant in his affidavit described himself as the “Most Worshipful Grand Master of Free and Accepted Masons and of all masons subject to the Prince Hall Grand Lodge jurisdiction within the Commonwealth of The Bahamas” and claimed that he “had all the powers inherent or otherwise of the Grand Lodge when not in session.” The second appellant described himself as “Right Worshipful Grand secretary of the Most Worshipful Prince Hall Grand Lodge of Free and Accepted Masons of the Commonwealth of The Bahamas.”
At the trial, the learned judge had before him the evidence, which consisted of several affidavits with their accompanying exhibits; the affidavit of the respondent filed on 30 July 2010, filed in support of his originating summons; and a supplemental affidavit filed on 6 May 2011. The appellants, who were defendants to the originating summons, relied on the respective affidavits of Carl Culmer and Wendell Barry filed on 18 May 2011.
The appeal is against the judgment of Evans J in the Supreme Court dated 14 May 2014, in which he granted certain declarations sought by the respondent to this appeal in his amended originating summons against the appellants. The amended originating summons sought a determination by the Court originally of five questions:
“1. Whether in the events which have happened, in particular the purported suspension of the plaintiff from participating in activities of Columbus Lodge No. 16 Prince Hall Grand Lodge by letter dated the 13 August 2009 and the subsequent purported expulsion of the plaintiff from membership of the said Lodge notified by letter dated the 27 September 2010 are in accordance with the procedure under Article XXV of the Constitution?
2. Whether the allegations against the plaintiff of which he is accused constitute un-Masonic conduct to justify suspension of him from activities of Columbus Lodge No. 16 Prince Hall Grand Lodge or his expulsion from membership of the said Lodge as were purportedly effected in his case?
3. If the answer to either Question 1 or 2 is in the negative, then,
(i) a declaration to that effect; and
(ii) a declaration that the said purported suspension and/or said purported expulsion of the plaintiff were a denial of due process and ultra vires the Constitution and a nullity; and
(iii) a declaration that the plaintiff is entitled to full membership rights and privileges of Columbus Lodge No. 16 Prince Hall Grand Lodge.
4. Whether, notwithstanding that the answer to Question 1 or 2 is in the affirmative, the plaintiff's suspension or expulsion is necessary or harsh and/or oppressive?
5. If the answer to either Question 1 or 2 is in the negative, then, a declaration that the plaintiff is entitled to his said purported suspension and said purported expulsion being reconsidered in accordance with the procedure established by Constitution.
After analyzing the evidence and the submissions of counsel for the parties, the judge stated at paragraph 27 of his judgment:
“As a result of my findings, I hereby answer question 1 of the Amended Originating Summons in the Negative and grant the declarations sought in paragraphs 3 and 5 of the summons. Questions 2 and 4 have been withdrawn by Mr. Glinton and I agree that those particular questions are best answered by the Grand Lodge acting in accordance with their Constitution.”
In short, questions 2 and 4 were withdrawn, and having answered question 1 in the negative, the declarations in paragraphs 3 and 5 of the respondent's summons were granted by the learned judge.
That is to say, in light of the events that had occurred, he declared that the respondent's suspension and subsequent expulsion from the Prince Hall Grand Lodge by letters dated 13 August 2009 and 27 September 2010, respectively, were not in accordance with the procedure set out in Article XXV of the Lodge's Constitution. He further declared that the purported suspension and expulsion of the respondent were a denial of due process, ultra vires that Constitution and a nullity; he also declared that the respondent was entitled to full membership rights and privileges of Columbus Lodge No. 16 Prince Hall Grand Lodge; and that he was...
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