Rev. James Sands v Rev. Vernal Hanna

• Jurisdiction: Bahamas
• Judge: Madam Senior Justice Deborah Fraser
• Judgment Date: 03 August 2023
• Docket Number: Claim No. 1995/CLE/gen/0029
• Court: Supreme Court (Bahamas)

BETWEEN

Rev. James Sands

Rev. Howard Williams

Rev. Daniel Scott

Rev. Newton Williamson

Rev. Alexander Bethel

Rev. Sylvanus Petty

Rev. Faith Maycock

Rev. Annis Antrobus

Rev. Alvin Greenslade (Trustees of The African Methodist Episcopal Church, Eleventh Episcopal District, Bahamas Branch, “Ame Church Bahamas”)

Claimants

and

Rev. Vernal Hanna

Mrs. Jane McIntosh White

Mr. Benjamin Lightbourn

Mrs. Jestina Hanna

Rev. E.L. Penn

Defendants

Before:

Her Ladyship The Honourable Madam Senior Justice Deborah Fraser

Claim No. 1995/CLE/gen/0029

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

COMMON LAW & EQUITY DIVISION

Preliminary Issue — Locus Standi — Whether an individual acting under Power of Attorney can bring a claim personally on behalf of others — Legal Professions Act, 1993 sections 2, 10, 20 and 22 — Unqualified Persons not to act as counsel and attorney — Law of Agency

Appearances:

Ms. Ciji Smith-Curry for the Claimants

Ms. Julie McIntosh (under a Power of Attorney) for Reverend Vernal Hanna

No appearance for Mrs. Jane McIntosh White, Mr. Benjamin Lightbourn, Mrs. Jestina Hanna or Reverend E.L. Penn

1 This is an application regarding the locus standi of Ms. Julie McIntosh, an individual empowered by a Power of Attorney to act on behalf of Reverend Vernal Hanna.

Background

2 By an Indenture of Conveyance dated the 19 August 1967 made between Lady Freda Genevieve Roberts of the one part and Reverend L.O. Moss, Verenell C. Hanna, the Reverend E.L. Penn, James S. Sands, Ophilia Moss, Benjamin Lightbourne, the Reverend E.W. Adderley, Jane McIntosh and Justina Hanna of the other part and recorded in Volume 1005 at pages 21 to 24 in the Registry of Records in the island of New Providence, Lady Freda Genevieve Roberts conveyed her interest in all that piece, parcel or lot of land having the Number 11 (No. 11) in Block Number Thirty-Seven (No. 37) on the plan of lots of the Subdivision laid out by the New Providence Land Company Limited in the Eastern District of the Island of New Providence (“ Property)” to the aforementioned parties.

3 The African Methodist Episcopal Church Bahamas Conference constructed St. Mark's AME Church on the Property.

4 Shortly thereafter, Reverend Vernal Hanna appointed himself as Pastor of St. Mark's AME Church and subsequently refused to relinquish such post as pastor to the pastors who were appointed by the Bishop of the Conference.

5 On 11 January 1995, the Claimants filed their Specially Indorsed Writ of Summons. According to the pleadings, the Claimants seek vacant possession of the Property which Vernal Hanna refuses to vacate. Subsequently the Defendants filed a Memorandum of Appearance on 23 January 1995 but failed to file and serve a Defense prior to the expiration of time as per the Rules of the Supreme Court (“ RSC)”. Further, a notice of Intention of Proceed and a Memorandum of Appearance were filed by the Claimants on 25 February 2004. On 22 October 2014, a Notice of Appearance was entered by the Defendants.

6 On 26 April 2018, the Honourable Madam Justice Indra Charles, upon hearing an application on behalf of the Plaintiffs, there being no appearance for the Defendants and no Defence served by the Defendants, ordered, inter alia, that the Plaintiffs were at liberty to enter judgment against the Defendants for possession of the property.

7 On 29 December 2021, Ms. Julie McIntosh (“ Ms. McIntosh)” filed a Notice of Appointment of Power of Attorney/Agent for the Defendants and on 06 August 2022 filed a summons “ for an application by the Defendants that the Plaintiffs be stopped from falsely claiming ownership and possession of the order dated the 10 ^th day of May A.D. 2018 on the grounds that the Defendant has a good and viable defense….”

8 On 24 November 2022, the Parties appeared before Justice Charles and after hearing both parties, the Court ordered, inter alia, that as the Order made on 26 April 2018 was not perfected it was to be set aside and the Defendants were permitted to file a Defence (which they did). This subsequent order was perfected on 08 December 2022.

9 Before the trial of the action, on or about 24 February 2023, Ms. Julie McIntosh appeared before Deputy Registrar Edmund Turner who granted a Writ of Possession to the Defendants. The Writ of Possession cited the order dated 08 December 2022 and “ Judge's Ruling on December 14 2023 that the last Order of December 8 ^th 2022 stands” as their authority for Deputy Registrar Edmund Turner to grant the writ of possession. The validity of the Writ of Possession is now being challenged as it is alleged that it was obtained under false pretenses as it references an order made by Justice Charles on 14 December 2023 and there is no record of any hearing regarding that order taking place.

10 Prior to any further proceedings being heard by this Court, a preliminary issue was raised regarding Ms. McIntosh's standing in this matter.

ISSUE

11 The issue that the Court must decide is whether an individual who is empowered by a Power of Attorney has the right to conduct litigation or render legal services on behalf of the donor of the power?

Ms. McIntosh's Submissions

12 From the Court's understanding of Ms. McIntosh's submissions, she appears to rely on rules 1.1(2), 1.1(2)(a), 1.1(2)(c) and 1.2(1)(b) of the Supreme Court Civil Procedure Rules, 2022 (“CPR”), to advance the position that she is permitted to act on behalf of the Defendants and defend this claim. Those rules state:

“ 1.1 The Overriding Objective

(1) The overriding objective of these Rules is to enable the Court to deal with cases justly and at proportionate cost.

(2) Dealing justly with a case includes, so far as is practicable:

(a) ensuring that the parties are on an equal footing;

(b) …

(c) dealing with the case in ways which are proportionate to —

(iv) the financial position of each party.

1.2 Application of overriding objective by the Court.

(1) The Court must seek to give effect to the overriding objective when —

(a)…

(b)…

(c) exercising any discretion given to it by the Rules;”

13 Ms. McIntosh states “ with more than four decades in [one] profession, The Power of Attorney/Agent and Trustee knows her calling in the Chosen Career. She states that the Power of Attorney (dated 08 October 2021 between Reverend Vernal Hanna of the one part and Julie C. McIntosh of the other part and recorded in Volume 13856 at pages 279 to 283 in the Registry of Records in the City of Nassau, The Bahamas – “ Power of Attorney”) bestows her with the ability to defend the action as against the named Defendants.

Claimants' Submissions

14 The Claimant's counsel submits that Ms. McIntosh is not a qualified counsel and attorney at law in the Commonwealth of The Bahamas and thus does not have a right of audience. Counsel further asserts that Ms. McIntosh is an unqualified person as defined under the Legal Professions Act, 1993 (“ LPA)” She cites sections 2, 10(1), and Parts A, B and C of the First Schedule of the LPA, which provide:

““ unqualified person” means either a person whose name does not for the time being appear on the Roll or counsel and attorney whose name is on the Roll but who is for the time being suspended from practice, but does not include —

(a) a person specially admitted, a registered associate or a legal executive as respects the performance by him of any function falling within his competence under this Act as a person specially admitted or as a registered associate or a legal executive; or

(b) any person within the benefit of section 25, and “qualified person” shall have a corresponding meaning.

10. (1) No person shall be admitted to practice unless he is qualified in disqualified for admission under subsection (2).

PART A

A person is qualified for admission to practice under this

Part of this Schedule if —

(a) he has been called to the Bar of England, Scotland, Northern Ireland or Eire, or of such other country, whether within the Commonwealth or not, as may be prescribed; or

(b) he has been admitted to practice as a solicitor in the Supreme Court of England, Scotland, Northern Ireland or Eire, or of such other country, whether within the Commonwealth or not, as may be prescribed.

PART B

A person is qualified for admission to practice under this Part of this Schedule if he has been awarded a Legal Education Certificate by the Council of Legal Education of the West Indies.

PART C

A person is qualified for admission to practice under this

Part of this Schedule if he —

(a) holds a degree in law from a university or institution approved by the Bar Council and the Council of Legal Education of the West Indies as being academically equivalent to a Bachelor of Laws degree from the University of The West Indies;

(b) is a person who completed the period of articleship required by subsection (2) of section 43 with a counsel and attorney in actual practice in The Bahamas and such articles began on or before the expiration of two years from the appointed day or on such later date as the AttorneyGeneral may by order designate;

(c) has passed the examinations approved by the Bar Council and the Council of Legal Education of the West Indies for the purposes of this Part.”

15 Counsel then cites section 20 and 22(1) of the LPA, which read:

“ 20. (1) Save where expressly permitted by this or any other Act, no unqualified person shall act as a counsel and attorney, or as such sue out any writ or process, or commence, carry on or defend any...