Murphy J
```markdown # IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN CAUSE NO:839/97 ## BETWEEN: - **KEMPTON M. WEBSTER** PLAINTEFF AND: - **(1) REGISTRAR OF LANDS** DEFENDANTS - **(2) AUDREY THOMPSON - EBANKS** **ROBERT EBANKS, ROXIE BODDEN AND** **ARAUNAH POWERY as joint trustees.** ## BEFORE MURPHY, J. **7 September, 1998** ### For applicant/second defendants: - D. Scharschmidt Q.C. - N. Levy ### For respondent/plaintiff: - P. Lamontagne Q.C. - S. Brooks --- ## REASONS FOR DECISION In a forming exhibit in that to is brethren, mark them which cause divisions and offences, contrary to the doctrine which ye have learned; and avoid them". Contrary to that exhortation by St. Paul to the Romans (16:17), and to notions of Christian charity, opposing ```
```markdown factions within two congregations of The Church of God, in West Bay and Breakers, are doing battle in four actions in this Court. Sadly, the underlying disputes are “stung by the venom of deceit, lies and violence”, to quote from an attorney’s letter. ## Related litigation The litigation involving the West Bay and Breakers congregations focuses upon rectifications made in July 1997 to the land registers for parcels upon which are situated the various Church of God church buildings. These rectifications resulted in the second defendants herein becoming registered proprietors “as joint trustees”. Prior thereto, the registered proprietors appeared as “The Church of God” or some variant of that name, indicating a voluntary association. It is sufficient for present purposes merely to say that other members of the West Bay and Breakers congregations objected to the new registrations. This reflects of course a fundamental rift within the two congregations mentioned. In the litigation, the West Bay purporting to include those now shown as registered trustees, have brought an action for, inter alia, trespass and property damage (Cause no. 816/97). The defendants in that action have responded with an action (Cause no. 835/97) in which rectification of the register is sought. ```
```markdown As to the Breakers church, the purported trustees now shown on the register sue an individual regarded by some as an Overseer or Pastor (or former Overseer or Pastor) for trespass and seek an injunction barring him from the premises (Cause 817/97). In the present Cause (839/97) another member of the Breakers congregation, Kempton M. Webster, seeks judicial review of the Registrar’s decision to alter the register for the parcel on which is situated the Breakers church. In this Cause, Graham J. on 23 December 1997 granted leave to the plaintiff to apply for judicial review. ## The present application The application before me is one brought by the second defendants (the purported trustees on the register) to strike out the proceedings brought for certiorari by the plaintiff, “on the ground that the plaintiff has no locus standi to bring such proceedings, the said proceedings are an abuse of the process of the Court, [and] the said proceedings are brought to embarrass or delay the fair trial for trnd which i subject ocest one Ex f tlants agassa zspass to las also the sin edings”. The first defendant herein, the Registrar of Lands, takes no position, and was not represented, on the application before me. ```
```markdown As indicated, the proceedings in which the present application forms a part, involve the Breakers church. I mention in passing that in Cause no. 835/97, the defendants, some West Bay congregation members including the purported trustees on the register, brought applications to discharge an ex parte injunction, and also to strike the statement of claim as disclosing no reasonable cause of action or being frivolous or vexatious or as an abuse of the process of the Court. In an unreported decision dated 7 August 1998, Douglas J. dismissed those defendants’ applications. ### Factual background I provide some brief background to the application before me. In doing so I am being careful, as I must, to dispose of the rather technical procedural points without trenching or infringing upon matters of substance which will be the concern of other Courts in this and related causes. I do not regard the basic factual backdrop as being in dispute in any case, and my actual reasons for decision, in the circumstances, can be brief. For greater certainty, however, I make it clear that I expressly do not make, alike, any findings or conclusions necessary to decide the procedural issues before me. The plaintiff, Kempton M. Webster, an active member of The Church of God at Breakers, on 12 June 1950 by deed of gift, gave the land described as ```
```markdown Registration Section Breakers, Block 52 C, Parcel 18 (“the land”) to trustees to be used for church purposes. The church was built and used for the intended purposes. The land was adjudicated to “The Church of God” as the proprietor thereof, as a result of the adjudication process, on 7 July 1975 and registered accordingly when the first register was opened on 28 August, 1976. “The Church of God” is arguably a voluntary association; it is not a corporate entity. In February 1997 the plaintiff applied to the Registrar for a change in the stated postal address of “The Church of God”. The Registrar declined to comply with that request on the ground (disputed in these proceedings) that the land should be properly recorded in the name of the church trustees. The plaintiff took no further action pursuant to his request. On or about 21 July 1997 the second defendants applied for the rectification of the register with respect to the land. They sought a change in the name of the registered proprietor from “The Church of God” to their own names and [illegible text]. The apparently the second defendant believed that the same suggestion was wanting to his application made pursuant to the plaintiff’s letter of 21 February 1997, and granted it in July 1997. There was no connection between the plaintiff’s application of February 1997 and that of the second defendants of July 1997. ```
```markdown The evidence is that neither the plaintiff nor, so far as he knows, any other member of The Church of God at Breakers was aware that the name of the registered proprietor had been changed, until 19 November 1997 after some unpleasant incidents at the West Bay church caused them to investigate the state of the register for their church land. The trespass action against the alleged former Overseer or Pastor (Cause 817/97) followed in early December. Later that month the plaintiff brought his judicial review proceedings alleging, essentially, that the Registrar’s decision to rectify the register was illegal and contrary to principles of fairness. ### Grounds for attack upon the judicial review application It became apparent to me that the second defendants’ attack upon the judicial review application herein was a much narrower one than was mounted unsuccessfully against the claim in the West Bay proceedings. Accordingly, it can be dealt with on quite narrow bases. #### 1) Locus Order 53, rule 3 (7) provides that “the Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates”. Of course, the application for leave is ex parte, and the ```
```markdown locus standi issue *per se* is unlikely to be canvassed fully at that stage. I do not think that there is anything procedurally improper in making the issue the subject of an application such as this. There is, however, leading House of Lords authority, *Inland Revenue Commissioners v National Federation of Self Employed and Small Businesses Ltd.* [1981] 2 All E.R. 93 that would suggest that normally the desirable course is to leave the matter of standing to the court hearing the substantive judicial review application. As Lord Wilberforce put it at 96-7: > "There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application; then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications. But in other cases this will not be so. In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and the breach of those said to have been committed. In other words, the question of sufficient interest cannot, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual matters of the application with which the interest is concerned, in the context of the alleged breaches or failure of those duties of which the federation complains." Lord Scarman (at 113) would have limited any initial screening to preventing "abuse by busybodies, cranks and other mischief makers". ```
```markdown I do not regard the plaintiff here as having “no interest at all, or no sufficient interest to support the application”. He is not a busybody or crank. Procedurally I would have no compunction about leaving this issue (if it is a real issue) to the Court hearing the substantive application. However, I regard the matter as so clear here that I will determine it at this stage. The second defendants submit (in their written argument) that “the Applicant herein is a mere busybody [and] takes sides with the Defendant Brooks [in Cause 817/97] and seeking (sic) to gain a tactical advantage on his behalf”. I pause to observe that the present Cause and Cause 817/97 are conceptually different and involve different sets of parties. Nothing in Cause 817/97 will assist the plaintiff in the present Cause in having the register rectified. In response to some hypothetical questioning by me, second defendants’ counsel conceded that a member of the Church would have standing. He took the position, though, that the plaintiff brought these proceedings merely as one who gifted a land in 1950, not as a member of the Church. This ignores the plaintiff’s affidavit sworn 13 February 1997 in the context of the application to rectify the address of the Church on the register (which application and evidence the second defendants rely upon in another aspect of their argument), the plaintiff makes it clear that ```
```markdown he is “a Deacon and Member of the Church of God at Breakers where I have worshipped from in the early 1950’s”. I confess to some considerable difficulty understanding who would have standing if someone like the plaintiff does not. There was some suggestion in argument that the plaintiff, once rebuffed in his attempt to have the register rectified in February 1997 to change the Church’s mailing address, had somehow prejudiced his standing. I reject this. The unchallenged evidence is that the subject rectification in favour of the second defendants was not even made until July 1997, and the plaintiff and those in sympathy with him had no reason to suspect until November 1997 that “The Church of God” was no longer the registered proprietor. Second defendants’ counsel submitted that a Church member could not have standing if his “motive is not the correct motive”. He invited me to conclude that the plaintiff’s prosecution of the judicial review application was not bona fide and that he was merely using the procedure for an “ulterior motive” - presumably a tactical manoeuvre to frustrate the second defendants’ prosecution of Cain which [illegible]. --- **Footnote:**
*Judicial Review of this Idjan annoma v Handb k (2nd ed) at para. 5.1.2.* ```
```markdown (Here I observe that the second defendants’ attack takes on somewhat the same character as their attack on the claim in the West Bay proceedings. I agree with Douglas J’s basic (and rather self-evident) conclusion there that a proceeding to challenge title to land that will, if successful, have the effect of undermining another’s claim, can hardly be an abuse of process.) The thin basis upon which I was invited to find mala fides on the plaintiff’s part was the “suspicious” evidence of the plaintiff that the rectification of the register was not discovered until November 1997, and that Cause 839/97 was commenced after Cause 817/97. I could never responsibly make a finding of mala fides on the basis of this “evidence”. In any case the plaintiff’s evidence 1) as to the circumstances leading to the discovery of the rectification of the register and 2) that the judicial review application was not prompted by the trespass action, stands uncontradicted and I accept it. I have no hesitation in concluding that the plaintiff has locus standi to bring this application for judicial review. --- ### Abuse of Process/Embarrassing Proceedings Under this head, the second defendants’ attack was extremely narrow and technical. It was largely couched in terms of “jurisdiction”, or more accurately the plaintiff’s supposed “waiver” of or “acquiescence” in the Registrar’s February 1997 decision not to rectify the register, which, second defendants’ ```
```markdown counsel submitted, somehow precluded the plaintiff from challenging a subsequent rectification (the July 1997 rectification). The argument was that because the plaintiff had made application in February, 1997 he could not maintain that the Registrar had no power to rectify in other circumstances in July 1997. I confess that I found this submission bizarre and unreal. As indicated above the plaintiff in February 1997 attempted unsuccessfully to have the register rectified in a minor way (presumably pursuant to the provisions of s. 139 of the Registered Land Law (1995 Revision)) to change the Church’s mailing address. The plaintiff and other congregation members had no inkling of a substantive rectification of the register out of the Church’s name and into that of the second defendants until November 1997. That prompted this application for judicial review. How the plaintiff is estopped, by his February 1997 action or inaction viz-a- viz the Registrar, from making an issue of an administrative decision in July 1997 which he only discovered in November 1997, I do not know. Pathetic characterization by the defendants’ counsel of the unchallenged evidence as “not evidentiary” does not avail. I reject this “jurisdiction” argument. Perhaps the strangest part of the application was a submission by second defendants’ counsel to the effect that “the documents relied upon by the ``` The text has been transcribed faithfully, with headings and paragraph structures preserved as markdown. The content is exactly as visible in the image, without any invented or additional material.
```markdown 12 1. Applicant [that is the affidavit in support of the judicial review application, with exhibits] were not the documents on which the Registrar relied to make his order and do not constitute the record in the matter in which judicial review is sought". 6. In making this submission, defendants’ counsel seemed to lose sight of the fact that the plaintiff’s application does not assert “error of law on the face of the record,” but rather lack of jurisdiction and/or absence of procedural fairness. 10. Second defendants’ counsel initially seemed to suggest that I could not have regard to the plaintiff’s affidavit filed in support of the judicial review application. This submission was made, surprisingly, despite the facts that 1) the second defendants themselves had filed evidence on the application before me, and 2) second defendants’ counsel conceded that the plaintiff’s affidavit could be considered by the Court hearing the substantive judicial review application! 17. In response to my queries, second defendants’ counsel ultimately conceded that I could have regard to the affidavit. When counsel for the plaintiff indicated that they would rely only upon the exhibits (all, by counsel for the plaintiff, clearly in the defendants’ file), counsel for the plaintiff conceded that I could have regard to them as well. In any event, the balance of the exhibits, consisting largely of rambling handwritten and pamphlet accounts of church history (and included only out of an abundance of caution pursuant to ```
```markdown 13 1. a duty to make full and frank disclosure on the ex parte application for leave)
are of no assistance to me on this application and I have not considered them.
There is no issue here, despite weak efforts to manufacture one.
This application was futile, pointless and devoid of merit. I dismiss it in its
entirety, with costs to the plaintiff in the cause.
--- **J.D. Murphy** Judge of the Grand Court