The Incorporated Trustees of the Seventh Day Adventist Church Applicant v Jester Emmons Jerry Emmons Godwin Emmons Respondents [ECSC]
| Jurisdiction | Grenada |
| Judge | Ellis, J,Vicki Ann Ellis |
| Judgment Date | 27 May 2013 |
| Judgment citation (vLex) | [2013] ECSC J0527-6 |
| Court | High Court (Grenada) |
| Docket Number | CLAIM NO. GDAHCV2012/0062 |
| Date | 27 May 2013 |
IN THE SUPREME COURT OF GRENADA AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
CLAIM NO. GDAHCV2012/0062
Ellis, J.: By Amended Notice of Application (the Application) filed on 5th June 2012 the Applicant seeks an injunction to restrain the Respondents whether by themselves or agents or otherwise howsoever from entering and or using the lot of land and church building situated at Hillsborough in Carriacou (the Property) or in any way hindering the Applicant's enjoyment thereof. This interim application is made within the context of a Fixed Date Claim Form and Statement of Claim filed on the 29th February 2012 in which the Applicant seeks inter alia an injunction to restrain the Respondents whether by themselves or by the servants or agents or otherwise howsoever from entering or using the Property or in any way hindering the Applicant's use and enjoyment thereof.
The substantive grounds of the amended Application are as follows:
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i. That the Applicant is the owner of the Property.
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ii. The Applicant operated a church on the Property through the agency of the Respondents.
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iii. The Applicant dissolved the congregation of the church on 5th June 2011 and the Respondents have failed to deliver up possession of the Property despite being requested to do so.
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iv. There is a serious issue to be tried.
This Application was served on the Respondents and the hearing proceeded on aninter partes basis.
The Application was supported by two affidavits sworn by Clifton Lewis, an officer of the Applicant (filed on 29th February 2012) and by Charles Gittens, an officer of the Applicant and Secretary of the Grenada Conference of Seventh Day Adventists (filed on 25th June 2012).
In his affidavit, Clifton Lewis avers that the Applicant is the owner of the Property and church building by virtue of a Deed of Gift dated 18th October 2011 between the General Conference Corporation of Seventh Day Adventists and the Incorporated Trustees of the Seventh Day Adventists.
He deposes further that on or about the 23rd July 2003, the Applicant formed an organisation called the Grenada Conference of Seventh Day Adventists pursuant to the Church Manual which Conference consists of the local Seventh Day Adventist Churches in Grenada. This Church Manual governs the relationship between members of the Church, and as the Carriacou congregation were members of the Grenada Conference they too are bound by the Church Manual.
He stated further that the Respondents were members of the Carriacou congregation and respectively held the positions of First Elder, Treasurer andHead Deacon. He alleged that from September 2007 to June 2011 the Respondents and other members of the Carriacou congregation, in breach of the Church Manual, failed to recognise the authority of the Conference with the result that on 5th June 2011, the Conference in accordance with the Church Manual dissolved that congregation.
He also stated that despite reasonable requests to the First and Third Respondents the deliver up possession of the Property they have failed to do so. He contends that as a result the Applicant has been deprived of the use and enjoyment of the Property and has suffered loss and damage. Paragraphs 17 and 18 of his affidavit particularises this loss and damage.
The affidavit of Charles Gittens provides details as to the governance of the Seventh Day Adventist Church and the local, regional and international structure of that Church.
The Respondents' response to the Application is set out in an affidavit sworn on 10th April 2012 by the First Defendant, Jester Emmons. In it he avers that the church building in Carriacou was built in 1903 by the Carriacou congregation of Seventh Day Adventists, which at the time included his grandfather. He contends that the building was built with the consent of the General Conference Corporation of Seventh Day Adventists by the congregation for the worship by the congregation. He asserts that by virtue of this, the Carriacou congregation has an irrevocable licence by proprietary estoppel to worship in the said Church.
Mr. Emmons further avers that the Church was destroyed in the 1955 Hurricane and was rebuilt in 1957 by the members of the congregation which at that time included his father, the third named Respondent.
The Respondents' position is that the Deed of Gift in 2011 does not change the fact that the Church building was built by the congregation to their detriment andwith the consent of the owner thereby creating an irrevocable licence by proprietary estoppel.
The Respondents do not accept the validity of the Grenada Conference of Seventh Day Adventists and dispute its legal status. They deny the Church Manual was produced by the Applicant or that the Manual governs their relationship. They state rather that the Carriacou congregation is governed by the Word of God. The Respondents state that they do not represent themselves to be members of the Conference of Seventh Day Adventists. In fact they indicate that the members of the Carriacou congregation have recently registered a company called the Hillsborough Adventist Church and that they continue to worship in the church which they have built and worshipped in since 1903.
They deny that the Applicant ever sought possession of the Property but state rather that the request came from the Grenada Conference of Seventh Day Adventist, which has no authority to demand possession of the Property. Further, even if the request had come from the Applicant, the Respondents state that the Applicant would not be entitled to possession because of the irrevocable licence.
The grant of any injunction is in the discretion of the court and the court is vested with a wide discretion. The general principles which a court must take into account have long been laid down in the classic case ofAmerican Cyanamid Co. v Ethicon [1975] 2 WLR 2161. In that case the House of Lords prescribed that the court must first be satisfied that the applicant's case is not frivolous or vexatious and that there is a serious question to be tried. Once that is established, the governing consideration is the balance of convenience. A significant factor in assessing the balance of convenience is the adequacy of damages to each party. If that does
not provide a definitive answer, then other aspects of the balance of convenience will have to be considered. If the balance of convenience does not clearly favour either party, then the preservation of the status quo will be decisive. Only as a last resort is it proper to consider the relative strength of the cases of both parties and only when it appears from the facts set out in the affidavit evidence as to which there is no credible dispute, that the strength of one party's case is disproportionate to that of the other.TheAmerican Cyanamid case has since been critically considered in recent case law. In Series 5 Software v Clarke [1996] 1 All E.R. 8532 Laddie J held that where on an application for an interim injunction the court is able from reading the evidence to form a clear view as to the relative strengths of the parties' cases, it should take that view into account in deciding whether to grant of refuse the injunction. In his judgment, the proper approach of the Court should be as follows:
"(1) The grant of an interim injunction is a matter of discretion and depends on all the facts of the case. (2) There are no fixed rules as to when an injunction should or should not be granted. The relief must be kept flexible. (3) Because of the practice adopted on the hearing of the applications for interim relief, the court should rarely attempt to resolve the issues of fact or law. (4) the major factors the Court can bear in mind are (a) the extent to which damages were likely to be an adequate remedy for each party and the ability of the other party to pay (b) the balance of convenience, (c) the maintenance of the status quo and (d) any clear view that the court was able to reach as to the relative strength of the parties cases."
While these cases set out the general approach which a court must adopt when considering an application for an interim injunction, it is clear that over the course
of time the application of these principles has been further refined in particular circumstances.By way of example, which is particularly relevant to the facts of this case, the courts have determined that a landowner is prima facie entitled to an injunction to restrain trespass on his land (where title is not in issue and even if he suffers no harm) unless the defendant can show an arguable case that he has the right to enter or remain on the Claimant's land.3 This legal position was definitively outlined by the English Court of Appeal in Patel v W H Smith (Eziot) Ltd. and Another [1987]2 All E. R. 5694 in which it held that it is only where a defendant could show an arguable case that he had the right to do what an applicant seeks to prevent, that a court should then proceed to consider the balance of convenience, the preservation of the status quo or the adequacy of damages as a remedy.
In that case, the applicant and the defendant were freehold owners of adjoining properties which once had been in common ownership. There was a right of way in favour of the defendant over the applicant's yard, plus the right to park for the purpose of loading and unloading. For 30 years the defendant had used the yard for general parking. The applicant commenced proceedings to restrain that use. The defendant claimed a prescriptive right by virtue of a lost modem grant or 20...
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