Richard Johnson v Hon. Michael Pintard, MP

• Jurisdiction: Bahamas
• Judge: Madam Justice Deborah Fraser
• Judgment Date: 22 May 2023
• Docket Number: 2022/CLE/gen/01633
• Court: Supreme Court (Bahamas)

BETWEEN

Richard Johnson

Claimant

and

Hon. Michael Pintard, MP (Sued on his own behalf and in his representative capacity as Leader of the Free National Movement)

First Defendant

and

Dr. Duane Sands (Sued on his own behalf and in his representative capacity as Chairman of the Free National Movement)

Second Defendant

Before:

Her Ladyship The Honourable Madam Justice Deborah Fraser

2022/CLE/gen/01633

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

COMMON LAW AND EQUITY DIVISION

Application to set aside injunction — Rule 11.18 of the Supreme Court Civil Procedure Rules, 2022 — Rule 11.20 of the Supreme Court Civil Procedure Rules, 2022 — Material Non-Disclosure — Serious question to be tried — Balance of Convenience — Adequacy of Damages — Special Factors to be considered

Appearances:

Mr. Gregory Moss for Richard Johnson

Mr. Kahlil Parker KC with Roberta Quant and Lesley Brown for the Defendants

1 This is an application brought by the First and Second Defendants to set aside an order made by this Court on 08 March 2023.

Background

2 The Claimant, Mr. Richard Johnson ( “Mr. Johnson”) is a member and Vice Chairman of the Free National Movement, a political party in The Commonwealth of The Bahamas (“ FNM”).

3 The Hon. Michael Pintard is the leader of the FNM (“ Mr. Pintard”) and Dr. Duane Sands is the Chairman of the FNM (“ Dr. Sands” and collectively, “ Defendants”).

4 On 30 October 2022, Dr. Sands prepared and sent a memorandum to Mr. Johnson purportedly informing him that his duties as Vice Chairman have been reassigned and that he was not authorized to speak on behalf of the FNM, effective immediately (“ Purported General Suspension”). No formal charge(s) was provided to Mr. Johnson prior to receiving the Purported General Suspension.

5 On the same day, the Secretary General of the FNM issued a notice that a specially called Council Meeting would be held on 31 October 2022 for the purpose of deliberating: (i) the Purported General Suspension of Mr. Johnson; and (ii) Mr. Johnson's attendance at future Council meetings until the Disciplinary Committee had concluded its investigation and report. The subject of discussion was Mr. Johnson's alleged pattern of threating and abusive behavior, foul language and disruptive conduct at FNM meetings.

6 A meeting of the Executive Committee of the FNM took place on 31 October 2022 where Mr. Johnson was initially excluded, but was eventually allowed to attend. At the meeting, Dr. Sands informed the Executive Committee of the Purported General Suspension.

7 Dr. Sands then called a meeting of the Central Council where a motion was tabled to suspend Mr. Johnson from all future meetings of the Central Council (“ Purported Central Council Suspension”) until after the Disciplinary Committee deliberated on the Purported General Suspension.

8 Subsequently, a Statement of Charges were sent to Mr. Johnson on 17 November 2022.

9 On 28 November 2022, Mr. Johnson filed a Specially Indorsed Writ of Summons (“ Writ”) claiming that the Defendants did not follow the mandatory disciplinary procedure as outlined under the FNM Constitution prior to either of the purported suspensions and usurped his authority as Vice Chairman unlawfully. He also claims that all members who participated in the votes in favor of the purported suspensions were bias towards him. He asked the Court for the following reliefs:

• (i) A declaration that the purported suspensions are ultra vires of the FNM Constitution;

• (ii) An order that the Defendants disclose to Mr. Johnson names of all persons who participated in the respective votes in favor of the purported suspensions on the basis that such persons have displayed actual and/or apparent bias against Mr. Johnson.

• (iii) An injunction prohibiting all persons who participated in the respective votes in favor of the suspensions, inclusive of the Defendants, from acting as members of any Tribunal concerning this matter due to actual and/or apparent bias.

• (iv) General Damages and/or exemplary damages in the amount of $250,000 for unlawful interference with Mr. Johnson's membership rights and privileges as a Vice Chairman of the FNM.

• (v) General Damages and/or exemplary damages in the amount of $250,000 for mental distress by reason of loss of and/or unlawful interference with the membership rights and privileges of Mr. Johnson as a Vice Chairman of the FNM.

• (vi) Interest.

• (vii) Costs.

• (viii) Such further relief the Court deems just.

10 On 18 January 2023, the Defendants filed a Defence denying all allegations and put Mr. Johnson to strict proof. They aver that there was no suspension and that Mr. Johnson was merely informed that his duties as Vice Chairman were reassigned. They further assert that he has no powers and/or privileges save and except those designated to him by the Chairman of the FNM. Also, they assert that on 31 October 2022, the Central Council reasonably and lawfully resolved to exclude Mr. Johnson from Executive Committee and Central Council meetings pending the conclusion of the disciplinary proceedings instituted against him by the Executive Committee.

11 The Defendants further aver that Mr. Johnson was duly served with a Statement of Charges on 17 November 2022. They also assert that Mr. Johnson posed a threat to members of the FNM entitled to peacefully attend and participate in Central Council and Executive Committee meetings. The Defendants further aver that Mr. Johnson demonstrated and declared an intention to continue his pattern of disruptive, abusive and threatening behavior which necessitated the Central Council's decision to exclude him from further meetings pending the decision of the disciplinary tribunal.

12 Subsequently, on 08 March 2023, Mr. Johnson made an ex-parte application (with a Certificate of Urgency attached dated 08 March 2023 and filed 29 March 2023) for and was granted an injunction restraining the following: (i) any interference with Mr. Johnson's duties as Vice Chairman of the FNM, attendance and participation in meetings of the Executive Committee and the Central Council pending determination of the Plaintiff's claim or further order of the court; and (ii) Bryan Brown, Jaunianne Dorsett and Clement Penn Sr. participating in any Tribunal convened or to be convened to hear and determine the Statement of Charges against Mr. Johnson or any appeal by reason of their actual/apparent bias against Mr. Johnson pending determination of the Plaintiff's claim or further order of the court (“ Injunction”).

13 On 17 March 2023, the Defendants filed an application to have the Injunction set aside. A certificate of urgency was filed subsequently on 20 March 2023.

14 On 30 March 2023, an order (“ 30 May Order”) was made directing all parties to: (i) act cordially to one another during all meetings of the FNM; (ii) refrain from any personal attacks on social media; and (iii) refrain from discussing these proceedings outside of court. The Court then afforded the parties an opportunity to arrive at a consent position, however, the parties were unable to.

ISSUES

15 The issue that this Court must decide is whether the Injunction ought to be set aside?

Defendants' Evidence

16 The Defendants filed the Affidavit of Sherman Stevens (“ Mr. Stevens”) on 17 March 2023. The affidavit states that: (i) Mr. Stevens is a Meritorious Council Member of the FNM; (ii) on 16 March 2022, Mr. Stevens heard loud outbursts with expletives from Mr. Johnson during an Executive Committee Meeting; (iii) members of the FNM were fearful and reluctant to attend FNM meetings due to Mr. Johnson's abusive behavior and the potential consequence of such members in attendance becoming targets of Mr. Johnson's social media tirades; (iv) Mr. Johnson's loud and belligerent behavior has been ongoing for months and that the Defendants tried to manage his behavior on a consistent basis; and (v) Mr. Johnson's continued presence at any FNM meetings would disrupt and prevent pertinent business of the FNM.

17 On 22 March 2023, the Defendants filed the Affidavit of Donald L. Saunders (“ Mr. Saunders”) which provides that: (i) Mr. Saunders is the Deputy Chairman of the FNM; (ii) Mr. Johnson did not have any specific duties assigned to him as Vice Chairman of the FNM; (iii) the Vice Chairman has a right to be present at Executive Committee and Central Council meetings, but that such right is not absolute and is circumscribed by requirements such as the obligation to respect the rights of other Executive Committee and Central Council members, the power of the Central Council to protect and preserve the integrity and safety of the members and constitutional operation of the FNM; (iv) Mr. Johnson's behavior over the past several months has given rise to serious complaints and was the subject of disciplinary proceedings; (v) neither of the Defendants purported to exclude Mr. Johnson from his membership in the Executive Committee and/or Central Council; (vi) the Central Council exercised its discretion to prevent Mr. Johnson from attending Executive Committee and Central Council meetings until disciplinary proceedings against him have concluded; (vii) Mr. Johnson, through voice notes and social media posts, has publicly declared his opposition to the leadership of the FNM. Accordingly, this precipitated the Central Council's decision to prevent Mr. Johnson's attendance at meetings as politically sensitive matters are routinely discussed at such meetings; (viii) Mr. Johnson was served with a Statement of Charges on 17 November 2022 and he provided a response on 30 November 2022. The next step was to appoint a Disciplinary Tribunal, but Mr. Johnson approached the Court before the Disciplinary Tribunal could be empaneled; (ix) the rules of natural justice have been adhered to by virtue of the process the FNM attempted to utilize and adhere to; (x) the suggestion that Mr. Brian Brown, Mrs. Juanianne...