Incorporated Trustees of St. John's v Freeport Commercial and Industrial Ltd

• Jurisdiction: Bahamas
• Judge: Forbes, J
• Judgment Date: 20 December 2023
• Docket Number: 2009/CLE/GEN/1367
• Court: Supreme Court (Bahamas)

BETWEEN

Incorporated Trustees Of St. John's Particular Church of Native Baptists In The Bahamas

Plaintiff

and

Freeport Commercial and Industrial Limited

1 ^st Defendant

and

Grand Bahama Development Company Limited

2 ^nd Defendant

and

Godfrey R. Williams Ministries

3 ^rd Defendant

and

Godfrey R. Williams

4 ^th Defendant

and

Bank of The Bahamas

5 ^th Defendant

and

Godfrey R. Williams

Judgement Creditor

and

Incorporated Trustees of St. John's Particular Church of Native Baptists In the Bahamas

Judgement Debtor

and

Royal Bank of Canada Limited

Garnishee

BEFORE:

THE HONOURABLE Mr. Justice Andrew Forbes

2009/CLE/GEN/1367

2011/CLE/GEN/FP/00276

IN THE SUPREME COURT

Common Law & Equity Side

APPEARANCES:

Mr. Harvey Tynes KC with Ntshonda Tynes c/o Judgement Creditor

Dr. Peter Maynard KC with Ms. Tamika Pinder c/o Judgement Debtor

Ms. Tashana Wilson holding a watching brief c/o Royal Bank of Canada Limited

The Civil Procedure Rules 2023; The Rules of the Supreme Court 1978; Garnishee Proceedings & Appeals from the Registrar.

DECISION

Forbes, J

1 . The Court would have heard the parties and read the Skelton arguments laid over by the respective parties and indicated its intention to render a decision in the matter and do so now. The Court considered the arguments advanced by Counsel for the Judgment Creditor and found that they are without merit for the reasons discussed below.

BACKGROUND

2 . This Court will adopt the facts as identified by Madam Snr. Justice Evans (as she then was) from the Ruling published on the 16 ^th November 2021 which were as follows:

“ 15. Reduced to their bare essentials, the facts that led to the commencement of this action are that, following a request for the donation of land on which to construct a place of worship (“the Cathedral”) the second defendant, in a letter dated 1 ^st November 1988, addressed to Rev. Godfrey Williams, Pastor of the St John's Native Baptist Church in Freeport (“the Coral Road Church” /“the Freeport Church”/“the Local Church”), informed him of the approval of a donation of land on Settler's Way for the construction of “your church”. That land was, in fact, a 4.38-acre tract, being 4 Lot 2, at the northeast corner of Settler's Way in sections 29 and 32, Township 1 North, Range 1 East, in the area known “Fairfield East”, Freeport, Grand Bahama (“the Property”). The letter also indicated that the donation was subject to a building commitment, which, I understand meant that a conveyance of the Property would not be issued until the building had been completed or a conveyance was needed for a lending institution as security for a loan to complete such construction.

16. In or about 1997 the fifth defendant agreed to lend funds to the Coral Road Church to facilitate the completion of the construction of the building on the Property and the purchase of furnishings therefor. The fifth defendant required, inter alia, a mortgage over the Property as security for the loan. In a letter dated 23 September 1997 Mr. Wallace Allen of the firm of Christie, Davis & Co/Davis & Co wrote to Mrs. Willie A.M. Moss of the Grand Bahama Port Authority, Limited (““the Port”/“the Port Authority”) and informed her, inter alia, that his firm acted for the fifth defendant and advised that title to the Property was to be taken in the name of the plaintiff.

17. by a conveyance dated 10 ^th February 1998 (“first conveyance”/“FCIL conveyance”), the Property was purportedly conveyed to the plaintiff by the first defendant and by a mortgage of even date therewith, the plaintiff purportedly mortgaged the Property to the fifth defendant as security for the loan. The loan was further secured by the assignment to the fifth defendant of a fixed deposit in the sum of Five Hundred Thousand ($500,000.00).

18. In or about July 2001, the second defendant discovered that title to the Property was not vested in the first defendant at the date of the first conveyance and, therefore, the first conveyance was defective. In an attempt to rectify the situation, the second defendant prepared a confirmatory conveyance in favour of the plaintiff (“the second conveyance”) “confirming and perfecting title to St John's” and sent the same to the firm of Christie, Davis & Co. firstly for “perusal and approval” on behalf of “St John's”, then for execution by “your client” and return to the second defendant for its execution. The confirmatory conveyance was never executed.

19. The third defendant was incorporated on 11 ^th December 2002 and the second defendant, at the request of the fourth defendant, conveyed the Property to the third defendant by a conveyance dated 12 ^th December 2002 (“the third conveyance”). By the third conveyance, the first conveyance was declared to be null and void.

20. In or about 2003 the fifth defendant agreed to, and did, lend funds to the third defendant secured, inter alia, by a debenture/mortgage over the Property dated 26 September 2003. Proceeds from that loan, along with the aforesaid sum of Five Hundred Thousand ($500,000.00) held on fixed deposit were used to pay off the said mortgage and a satisfaction thereof executed by the fifth defendant on 8 ^th December 2003.

21. The third conveyance and the debenture/mortgage were lodged for record at the Registry of Records on 9 ^th December 2003 and the satisfaction of mortgage was lodged for record on 12 ^th June 2006.

22. The plaintiff claims that it was not informed of the error with the first conveyance or the actions taken, subsequent thereto, and asserts that all of those actions were done or taken without its knowledge or consent. Further, that it only discovered the third conveyance and the fact that the first conveyance had been declared null and void through a search conducted on its behalf at the Registry of Records on 9 ^th December 2003.”

3 . That Madam Snr. Justice Evans then dismissed the Plaintiff's claims against the Fifth Defendant with cost to be taxed if not agreed. That the Counsel for the Fifth Defendant then filed their Application for taxation, commencing with their Notice of Taxation, Statement of Parties and Bill of Cost which were each filed on the 15 ^th February 2022. The Summons to Review Taxation was then filed on the 17 ^th November 2022. That the Fourth Defendant was subsequently awarded his cost in which the Deputy Registrar awarded an Interim Cost Award of Five Hundred and Eighty Nine Thousand Nine Hundred and Six Dollars and Fifty Eight cents ($589,906.58).

4 . After which an Interim Certificate of Taxation was filed on 7 ^th December 2022. That upon this award of the Cost, Fourth Defendant's Counsel made an Application to have the Awarded Cost reviewed by the filing of a Summons on the 17 ^th November 2022, and upon review the Deputy Registrar made minimum adjustments to the Original Awarded Cost. Again the Fourth Defendant's Counsel sought to have the Judge in Chambers intervene, it is unclear where that application stands at this time. Additionally the Fourth Defendant's Counsel filed an Application for Garnishee Order which was filed on the 21 ^st December 2022 and supported by an Affidavit sworn by Tanisha Tynes Cambridge and also filed on 21 ^st December 2022.

5 . The Garnishee Order Nisi was granted by the Deputy Registrar and filed on the 4 ^th October 2023. While the Application for Garnishee Nisi was proceeding the 4 ^th Defendant's Counsel likewise applied for the Judgement Debtor to attend Court pursuant to Part 44.3 of the Civil Procedure Rules (CPR). The records are unclear what transpired at that hearing, however, the 4 ^th Defendant's garnishee nisi was set aside and the 4 ^th Defendant Counsel filed an Appeal against the Deputy Registrar decision to set aside the Garnishee Nisi. That Notice of Appeal was filed on the 7 ^th December 2023 and the sole ground is that “the Deputy Registrar wrongly applied the Supreme Court Civil Procedure Rules 2022.”

6 . That the Court heard from Counsel for the Judgement Creditor and the Judgement Debtor as they both laid over for the consideration of the Court, skeleton arguments, supplemental and authorities. The Court will seek to distill the essential arguments being advanced.

SUBMISSIONS

7

• 17. Other than these two exceptions (noted at paragraph 2(l)(b)(i) and (ii) of the Preliminary paragraphs of the CPR), the CPR have no application whatsoever to the civil actions commenced before 1 ^st March, 2023.

• 18. The Instant action was commenced before the 1 ^st March, 2023. Therefore, unless the instant action falls within the two exceptions at 2(l)(b)(i) and (ii), the CPR have no application for it.

• 19. In the instant action, the trial has not only been fixed, the trial has been concluded since November of 2021. Therefore, the instant action does not fall into either of the two exceptions found at Preliminary paragraph 2(l)(b)(i) and (ii) of the CPR.

• 20. In light of the provisions of Preliminary paragraphs 2(l)(b) and 4, applications made in the instant action are governed by the RSC and the CPR have no application whatsoever with respect thereto.

• 21. Accordingly, it is respectfully submitted that Order 58 of the RSC governs the Judgment Creditor's appeal from the decision of the learned Deputy Registrar and Order 49 of the RSC governs the Judgment Creditor's garnishee application.

• 22. In all the circumstances, it is respectfully submitted that the Garnishee Order Nisi ought properly to be made absolute.

8 . Counsel for the Judgment Creditor in its Supplemental Submissions stated:

“19. Given the above, the Savings and transitional rule at Preliminary rule 4, (introduced by the Supreme Court Civil Procedure (Amendment) Rules, 2023) serves three functions.

• 1. it mandates that the RSC remain in force with regard to a specific category of actions;

• 2. it acknowledges that the CPR do NOT apply to the specific category of actions for which the RSC remain in force;

• 3. it specifically identifies...