Blades et Al v Jaggard et Al

• Jurisdiction: Barbados
• Judge: Stoby, C.J.
• Judgment Date: 18 December 1961
• Neutral Citation: BB 1961 HC 20
• Court: High Court (Barbados)
• Docket Number: No. 393 of 1961
• Date: 18 December 1961

Supreme Court

Stoby, C.J.

No. 393 of 1961

Blades et al

and

Jaggard et al

Mr. W. Hanschell instructed by Messrs. Browne & Chapman for the plaintiffs.

Mr. J. Dear instructed by Messrs. Carrington & Sealy for the defendants.

Natural justice — Right to be heard — Building alterations to church — Faculty sought from Bishop of Barbados without prior consent of congregation — Common law requirement Judgment for the plaintiffs.

Stoby, C.J.

1 The plaintiffs issued a writ against the defendants claiming:

• (1) A declaration that the building alterations which are currently being carried out at St. Matthias Church, Christ Church, under the control and direction of the defendants have been and are being irregularly and/or illegally executed and without valid authority;

• (2) alternatively a declaration as to the plaintiffs' rights in the circumstances to a proper judicial determination of their objection and/or opposition to a faculty which was applied for in connection with the said current building alterations at St. Matthias Church, Christ Church, and more particularly described in a notice of citation dated August 26, 1961, and exhibited at the said Church between the said August 26, 1961 and September 15, 1961.

2 Six (6) days after the said writ was filed, special leave was obtained to serve a notice of motion on the defendants together with the writ. The motion is for the purposes of restraining the defendants, their servants or agents by injunction until the trial of the motion, from continuing executing or carrying on certain building alterations which were then in progress at St. Matthias Church.

3 Counsel for the plaintiffs and the defendants agreed that the hearing of the motion should be treated as the trial of the action, and that the affidavits filed by and on behalf of the plaintiffs and defendants should be used as evidence.

4 The affidavits disclosed that the dispute between the parties arose in the following way:

5 St. Matthias Church, an Anglican Church, is situated in the parish of Christ Church. The, plaintiffs are regular worshippers at the church and have taken communion for about 30 and 26 years respectively. The first defendant is the Priest in charge of the church in the absence of the Vicar; while the other defendants are members of the Management Committee of the Church, a statutory committee under the provisions of the Anglican Church Act 1911. On September 2, 1961, the Vicar, the Reverend Arnold Morralee, sent a circular letter to the congregation in which he informed the members of his impending departure on sick leave, and of the arrangements made for carrying on his work during his absence. He also wrote this:

“I think you will all know of our plans to provide St. Matthias with a small chapel for weekly services, and a vestry for the clergy (which will also serve as an office). The plans have all been worked out and approved by your Church Committee, the Bishop, and the Archdeacon.”

6 Before September 2, viz. on August 26,1961, a notice was affixed to the Church door for the purpose of informing the members of the congregation that the Lord Bishop of Barbados had received a petition from the Vicar of St. Matthias and the Church Committee praying for the issue of a faculty for certain alterations (specified in the said notice) and that the Lord Bishop intended to issue the faculty unless a valid reason against his doing so were shown. The notice required any person who objected to the issue of the faculty to send his reasons for objecting with full name and address to the Bishop of Barbados or to the Reverend Morralee within 21 days of the publication of the notice.

7 On September 7,1961, the first-named plaintiff forwarded a letter to the Bishop objecting to the issue of the faculty and stating her reasons for her objection. On September 13, 1961, the second-named plaintiff forwarded a letter to the Bishop objecting to the issue of the faculty and stating her reasons for objecting. On September 16,1961, the Bishop replied to the first-named plaintiff overruling her objection and intimating that he proposed to issue a faculty for certain of the alterations applied for. He gave his reasons far doing so. On the same day, he informed the second-named plaintiff of his decision and suggested that she communicate with the first-named plaintiff with a view to reading the letter which he had written to the said plaintiff.

8 In accordance with the Bishop's decision to grant a faculty, the work which had been commenced prior to his approval continued. Correspondence ensued between the solicitors for the respective parties, and eventually this writ was filed.

9 The plaintiffs' case, as presented by counsel on their behalf, is that the method adopted by the Bishop in granting the faculty was so irregular that this court ought to exercise its declaratory jurisdiction in favour of the plaintiffs. No accusation of impropriety is made against the Bishop. Indeed, no such accusation could be whispered. There is no suggestion that in granting the faculty the Bishop acted other than with the best of motives and in the interests of the Church. The submission is, that certain recognised procedures were not complied with either by the defendants or the Bishop, and that the failure to do so necessitates the court's intervention.

10 Counsel for the defendants' first submission is that ecclesiastical law other than such statute law enacted by the Legislature of Barbados is not and never has been part of the law of Barbados. He contends that if this submission is correct, whatever may be the recognised procedure of the English Ecclesiastical Courts, there is no need for the Bishop to follow a procedure which has no application in this Island. He insists that the method adopted was fair and unimpeachable and in accordance with rules properly made under the authority of the Anglican Act 1911.

11 The first point then which falls for consideration is whether ecclesiastical law is part of the law of this island. Before deciding whether it is or not, some undisputed historical facts must be restated.

12 By the Act of Supremacy 1558, the Sovereign became the Supreme Governor of the Realm in all spiritual and ecclesiastical clauses as well as temporal. The Act of Uniformity, 1558, continued the definition of the relation between Church and State. The ecclesiastical law ceased to be the canon law of a universal church and became part of the law of England — the King's Ecclesiastical Law. (See Potter's Historical Introduction to English Law and Wade and Phillips Constitutional Law). Lord Blackburn in Mackonochie v. Lord Penzance [1861] 6 A.C. 446 said this:

“The ecclesiastical law of England is not a foreign law. It is part of the general law of England — of the common law — in the wider sense which embrace all the ancient and approved customs of England which form law, including not only that law administered in the courts of Queen's Bench, Common Pleas, and Exchequer, to which the term Common Law is sometimes in a narrower sense confined, but also that law administered in Chancery and commonly called equity, and also that law administered in the Courts Ecclesiastical, the last law consisting of such canons and constitutions ecclesiastical as have been allowed by general consent and customs within the realm — and form, as is laid down in Caudre's Case, the King's ecclesiastical law. All these laws may be, and are, altered by statutes.”

13 Such then, was the state of the law in England when the settlers arrived in Barbados in 1625. What law did they bring with them? The law is stated thus in Halsbury's Volume 13, 3rd Edition, Page 16:

“The introduction of English law into a colony does not carry with it English ecclesiastical law.”

14 The following passage occurs in Volume 5 of the same edition at Page 697:

“The common law of England and the statute law existing at the date of the formation of the colony apply to colonies acquired by settlement, but statutes subsequently enacted do not apply unless they are expressly applied. This principle is, however, subject to this restriction, that so much only of the law of England is carried with them by the colonists as is applicable to their situation and the condition of the infant colony. Thus, while the general laws of inheritance and of protection of personal injuries are introduced, it is not so with enactments relating to the property of a great and commercial nation, to police and revenue, the Established Church, ecclesiastical courts, and similar subjects, which are inapplicab;e to the colonial circumstances.”

15 On the other hand, the First Edition of the work, Vol. 11 page 486 contains this passage:

“Where a new and uninhabited country is discovered by subjects of the King, they carry their laws with them, including such, if any, of the ecclesiastical laws as are binding on them, and, in the absence of any express provision, any church then and there constituted by them is prima facie presumea to be organised on the basis of those laws, so far as they are applicable in the particular case”

16 The authority cited in support of this latter passage is R. v. Brampton (Inhabitants) (1808) 10 East 282 When Brampton's case is carefully perused, one observes that the law enumerated in the text at Volume 11 is not justified by the decision. The case cited in respect of the text in the 3rd Edition, Volume 13, is re Lord Bishop of Natal (1864) 16 E.R. 43 This case must now be considered. The Bishop of Natal case decided among other things, that where there is an independent Legislative Assembly in a colony, there is no power in the Crown by virtue of its prerogative without the provisions of a statute of the Imperial Parliament to establish a Metropolitan See or Province or to create an ecclesiastical corporation whose status, rights and authority, the colony could be...