In the Supreme Court of Bermuda

IN THE SUPREME COURT OF BERMUDA
CIVIL JURISDICTION
1996/280

BETWEEN:

            THE WESLEYAN METHODIST TRUSTEES                            1st Plaintiff
            of the Pembroke Parish Body No. 2
                                    and

            THE SYNOD OF THE WESLEYAN METHODIST                   2nd Plaintiff
                        CHURCH OF BERMUDA
            (joined by Order of the Court dated October 2, 1996)
                                    and

WILLARD LIGHTBOURNE 1st Defendant
and

GWYNETH LIGHTBOURNE 2nd Defendant

Grant & Associates for the Plaintiff
Smith & Scott for the Defendant
AND BETWEEN:

IN THE SUPREME COURT OF BERMUDA
CIVIL JURISDICTION
1996/282

IN THE MATTER OF THE BERMUDA CONSTITUTION ORDER 1968
AND
IN THE MATTER OF THE WESLEYAN METHODIST CHURCH
(CONSOLIDATION AND AMENDMENT) ACT 1930
BETWEEN

WILLARD RUDOLPH LIGHTBOURNE Plaintiff
and

THE SYNOD OF THE WESLEYAN Defendant
METHODIST CHURCH OF BERMUDA
(Consolidated by Order of the Court dated the 1st day of October 1996)

Grant & Associates for the Plaintiff
Smith and Scott for the Defendant

There are two writs before the Court. The first action 280/1996, a generally endorsed writ, was filed on the 15th July 1996 by the Wesleyan Methodist Trustees of Pembroke Parish Body No. 2 and The Synod of the Wesleyan Methodist Church of Bermuda (joined by order of the court dated October 2, 1996) against Willard and Gwyneth Lightbourne.

The second action 282/1996, a specially endorsed writ, was also filed on the 15th day of July 1996 by Williard Rudolph Lightbourne against the Synod of Wesleyan Methodist Church of Bermuda. This writ was amended and finally, with leave of the Court, re-amended on 2nd March 1998.

The 1st Plaintiff in action #280 of 1996 is one of the Trustees of Pembroke Body #2. The second Plaintiff in this action, who is also the Defendant in action 282/1996, is the Synod of the Wesleyan Methodist Church of Bermuda joined, as the second Plaintiff in action 280/1996, as indicated earlier by order of the court dated 2nd October 1996.

The Plaintiff in action 282/1996 is the same individual who is named as the first Defendant in action 280/1996.

At all material times the Plaintiff in action 282/1996 and Defendant in action 280/1996 has been a lay minister and one of the members of the congregation of Grace Methodist Church, Pembroke Body Number 2. He is the dully authorized representative of Grace Methodist Church and as such brings this Action in a representative capacity.

The Defendant in action 282/1996 is the Synod of the Wesleyan Methodist Church of Bermuda. And from 1930 has been a Presbytery within the Maritime Conference of the UCC.

The two actions were consolidated by order of the court dated 1st October 1996. The Plaintiff in action 280/1996 seeks:

"1. A Declaration that the 1st Plaintiff's are Lawful Trustees of Grace Methodist Church and the Beneficial Owners of the properties under the said trust contained in deeds above-mentioned.

2. An injunction restraining the 1st and 2nd Defendants their servants and/or agent from entering the properties of the said 1st Plaintiff.

3. A Declaration that the 1st and 2nd Defendants their servants and or agents are no longer members of the Grace Methodist Church nor affiliated with the Synod of the Wesleyan Methodist Church and the United Church of Canada.

4. Damages

5. Interest pursuant to statute.

6. Further or other relief.

7. Cost".

The Plaintiff in action 282/1996 seeks:

"1. An injunction to restrain the Defendant by himself, his servants or agents or otherwise from conducting any services at the said Grace Methodist Church situated at 167 North Shore Road, Pembroke Parish HM 14.

2. An injunction to restrain the Defendant by himself, his servants or agents or otherwise from the occupation of the Parsonage situate at 169 North Shore Road, Pembroke Parish HM 14.

3. An injunction to restrain the Defendant from hindering the freedom of worship of the congregation of the said Grace Methodist Church situate at 167 North Shore Road, Pembroke Parish HM 14.

4. A Declaration that on the true construction of the express trust the real property situate at 167 North Shore Road, Pembroke Parish HM 14 is held upon trust by the Wesleyan Methodist Trustees of Pembroke Parish Body #2 for the Plaintiff and those members of the congregation of Grace Methodist Church who are in association with and continue to seek to worship in adherence to the doctrine of the late Reverend John Wesley, and that no part thereof could be diverted to the use of any other association of Christians not following the teachings of the late Reverend John Wesley.

5. A Declaration that on the true construction of the implied trust the real property situate at 169 North Shore Road, Pembroke Parish HM 14 in these said Islands is held upon Trust by the Wesleyan Methodist Trustees of Pembroke Parish Body #2 for the Plaintiff and those members of the congregation of Grace Methodist Church who are in association with and continue to seek to worship in adherence to the doctrine of the Late Reverend John Wesley, and that no part thereof could be diverted to the use of any other association of Christians not following the teachings of the late Reverend John Wesley.

6. A Declaration that all the property vested as of the 30th day of June 1996 in the Wesleyan Methodist Trustees of Pembroke Parish of Body Number 2 was held by them and continues to be held by them for the purposes of the said trusts so declared and that no part thereof could be lawfully diverted to the use of any other association of Christians not maintaining the whole fundamental doctrinal principles embodied in the 25 Articles of Faith of the late Reverend John Wesley as practiced (sic) by the Methodist Church in these said islands in 1930.

7. A Declaration that the Grace Methodist congregation vested in 167 and 169 North Shore Road, Pembroke Parish HM 14 in these said Islands could not lawfully apply the same for and on behalf the Wesley Methodist Church of Bermuda or its members who remained in union with the United Church of Canada.

8. A Declaration that the Plaintiff and those members of Grace Methodist Church adhering to the doctrine and teachings of the late John Wesley are entitled to the exclusive use of the real property situate at #167 and #169 North Shore Road, Pembroke Parish HM 14 in these said Islands property and funds applied according to the terms of the trusts upon which they are respectively held as constitution (sic) the true and lawful Wesleyan Methodists of Bermuda.

9. A Declaration that the Defendant in liaison with the United Church of Canada today does not embody nor provide for maintaining intact the whole principles which were fundamental to the Methodist tradition and the 25 Articles of Faith of the late Reverend John Wesley.

10. A Declaration that the Defendant possesses no right, title or interest in any part of the property in question..

11. A Declaration that Gerald Brangman, Gretchen Brangman, Yvonne James, Richard Pulley, Olive Richards, Louis Smith, and Edna Thomas are the true Wesleyan Methodists Trustees of Pembroke Parish Body Number 2.

12. A Declaration that the Plaintiff and others adhering or associated with him and with the group calling themselves the congregation of Grace Methodist Church are entitled to have the whole lands, property and funds applied according to the terms of the trusts upon which they were respectively held for behalf of themselves and those adhering to and associated with them in constituting a true "Methodist" Church to worship as such in accordance with the doctrines of the late Reverend John Wesley.

13. A Declaration that the Wesleyan Methodist Church of Bermuda had no power to continue a link with the United Church if (sic) Canada once the United Church of Canada adopted a policy to ordain as priests declared homosexuals and lesbians.

14. A Declaration that the decision of the Wesleyan Methodist Church of Bermuda to remain in union with the United Church of Canada was ultra vires the power of the Wesleyans Methodist Church of Bermuda as per section 11 Wesleyan Methodist Church (Consolidation and Amendment) Act 1930.

IN THE ALTERNATIVE
15. A Declaration that the Plaintiff and those members of Grace Methodist Church who support the Plaintiff by declining to adhere to the Synod of the Wesleyan Methodist Church of Bermuda in union with the United Church of Canada but remaining under the name Wesleyan Methodists and Wesleyan Methodist Trustees of Pembroke Parish Body #2 and by electing to maintain themselves in occupation there from had not lost or forfeited any rights which they had at the time of the March 28 1993 Referendum or in the said lands, property and funds and/or subsequently at the time of their letter dated 30 (sic) 15th June 1995 but were entitled to the use and enjoyment thereof subject to the trusts effecting the same.

16. Damages.

17. Interest on damages at the statutory rate.

18. Further or other relief.

19. Costs".

THE BACKGROUND
The essential facts leading up to the filing of the writs are substantially undisputed.

By Deed dated the 6th day of November 1885 and on the 10th August 1899 two parcels of land at 167 North Shore Road, Pembroke Parish was conveyed to the Wesleyan Trustees of Pembroke Parish their successors and assignees to be held substantially upon similar trust to build a suitable building upon the land "to be used for the celebration" therein of the worship of Almighty God for the holding of Sabbath school and for other religious and moral purposes in accordance with the doctrine rules and usages of the Methodist Church and for no other use intent or purpose.

The 1885 indenture reads:

"This Indenture made the sixth day of November in the year of our Lord, one thousand eight hundred and eighty-five between John Nelson Hollis of Devonshire Parish in the Islands of Bermuda Grocer and Susan Catherine Hollis his wife of the one part and the Wesleyan Trustees of Pembroke Parish in the said islands of the other part........ to have and to hold the said parcel of land hereditaments and premises unto the Wesleyan Trustees of Pembroke Parish their successors and assigns to the use of the Wesleyan Trustees of Pembroke Parish their successors and assigns but nevertheless upon and for the trusts intents and purposes and with under and subject to the powers provisos agreements and declarations hereinafter expressed and declared of and concerning the same - that is to say - upon trust to cause to be built upon the said lot or parcel of land a suitable building to be used for the celebration therein of the Worship of Almighty God the holding of a Sabbath School and for other religious and moral purposes in accordance with the doctrine rules and usages of the Methodist Church and for no other uses intents or purposes whatsoever provided nevertheless that should the Building to be erected on the said lot or parcel of land as aforesaid at any time after the same shall be erected and built fall into disuse and not be used for any of the purposes aforesaid and in accordance with the trust hereby created for the space of two consecutive years that then and in such case the said lot or parcel of land with all the buildings and improvements thereon shall revert to and become the property of the said John Nelson Hollis his heirs and assigns and be entered upon held used and enjoyed in fee simple absolute in the same manner as the same would have been held had these presents not been made".

The 1899 indenture reads:

"This Indenture made the tenth day of April one thousand eight hundred and ninety-nine between Evelyn Kenneth Hollis of Devonshire Parish in the Islands of Bermuda an infant under the age of twenty-one years of the first part Susan Catherine Hollis of the same Parish Widow Relict of John Nelson Hollis deceased of the second part and the Wesleyan Trustees of Pembroke Parish in the said Islands of the other part......... to have and to hold the said lot or parcel of land hereditaments and premises hereby granted or expressed so to be unto and to the use of the Wesleyan Trustees of Pembroke Parish their successors and assigns but nevertheless upon and for the trusts intents and purposes and with under and subject to the powers provisos agreements and declarations hereinafter expressed and declared concerning the same that is to say "upon trust to cause to be built upon the said lot of parcel of land or partly thereupon and partly upon the lot of land next thereto on the West a suitable building to be used for the celebration there of the Worship of Almighty God the holding of a Sabbath School and for other religious and moral purposes in accordance with the doctrine rules and usages of the Methodist Church and for no other uses intents or purposes whatsoever".

By deed dated 2nd August 1971 the Wesleyan Methodist Trustees of Pembroke Parish Body #1 conveyed the land the subject of the 1855 and 1899 Deeds, subject to the Trust established in the Deeds to the Wesleyan Methodist Trustees of Pembroke Parish Body #2. As stated earlier this 1971 transfer was a voluntary conveyance for the purpose of compliance with section 5(3) of The Wesleyan Methodist Church (Consolidation and amendment) Act 1930 above mentioned.

By Deed dated the 13th June 1947 Lulu Watson Robinson of Pembroke Parish conveyed certain property (at #169 North Shore Road, Pembroke) to the Wesleyan Methodist Trustees of Pembroke Parish Body Number 2. The Deed for this parcel of land is missing.

It is axiomatic that the conditions of the grant were met as the existing structures which are known as the Grace Methodist Church, and the church parsonage were erected and the church has been used for some considerable period not only as a Methodist Church but also for Sunday school and other church related activities and the parsonage used as a home for supply ministers.

The issues involve maybe best understood if we go back in time and a helpful starting point would be The Wesleyan Methodist Church Consolidation and Amendment Act 1930, (the 1930 Act).

The 1930 Act consolidated and amended the provisions of the prior legislation relative to the Wesleyan Methodist Society afterwards called the Wesleyan Methodist Church and latterly called the Methodist Church which was established in Bermuda to practice the teachings of the late Reverend John Wesley, born 1703 - died 1791.

It is noteworthy that the Synod of the Wesleyan Methodist Church of Bermuda functions as Presbytery of the Maritime Conference of the United Church of Canada (UCC) and shall be entitled to all the privileges of a Presbytery in conference except the right to have submitted to it for approval legislation under the provision of Section 24(2) of the Polity Division of the Basis of Union.

All congregation of the Wesleyan Methodist Church shall be entitled to manage their local affairs to continue the organisation and practice previously enjoyed.

The agreement may be terminated by either of the said churches upon giving one years notice in writing to the other. See Sections 1, 3 and 4 of The Wesleyan Methodist Church (Consolidation and Amendment) Act, 1930 - Arrangement of Union with the United Church of Canada Resolution passed by the General Council of the United Church of Canada, September 22nd, 1930. (Exhibit 3).

I now list the Sections of the 1930 Act which provides the authority on how land is held in trust.

Section 4 of the 1930 Act stipulated that all lands held in trust "to be deemed to be lawfully vested in such present or acting trustees upon the trust and for the purposes on/or for which such lands... and real estates were originally conveyed, devised, granted, or assured and such present or acting trustees shall be deemed to be lawfully possessed of such lands, .... and real estates"

Section 5 of the 1930 Act reads:
"The local trustees of any church or chapel, school house or minister's residence, or land held in trust for any such purposes or for the purposes of a burial ground or any other purposes of the Wesleyan Methodist Church, and all persons hereafter to be elected or appointed to succeed them in the trust shall be a body corporate with perpetual succession under the style or title of "The Wesleyan Methodist Trustees of (name of Parish) Parish," and the name to accept purchase take hold and possess by gifts purchase devise or otherwise for the purposes of trust..".

Section 5(3) of the 1930 Act stipulated:
"Whenever there is or shall be only one body of local trustees in any parish in these Islands its corporate name shall be "The Wesleyan Methodist Trustees of (name of parish) Parish", and whenever there is or shall be more than one body of local trustees in any parish in these Islands their respective corporate names shall be "The Wesleyan Methodist Trustees of (name parish) Parish, Body No. 1," The Wesleyan Methodist Trustees of (name of Parish) Parish, Body No. 2," and so on with consecutive numbering according to the order in which the respective trusts in that parish were created."

Section 5(4) of the 1930 Act reads:
"A person, being one of the local trustees, who:-

a) Shall not be, or shall hereafter cease to be, a member of the congregation of the Wesleyan Methodist Church by expulsion under the rules and regulations of such Church or otherwise, or,

b) Shall be, or shall hereafter be in connection with any other religious body, denomination, sect or society, or,

c) Shall be absent from these Islands for at least one year, or,

d) Shall absent himself from six consecutive meetings of the local trustees after receiving notice of such meetings,

shall cease to be a trustee upon a notice in writing to that effect, signed by the majority of the other persons comprising the local trustees of which such person is a trustee or member, being posted in a prepaid registered envelope or cover addressed to such person at his last known place of abode in these Islands."

Section 9 of the 1930 Act reads:
"In every case the local trustees shall keep a record-book in which shall be duly and at all times entered the appointments or elections of trustees, and the names of the local trustees, for the time being; and such books shall in all Courts and for all purposes, (except in any proceedings concerning the validity of the election or appointment of any future trustee), be conclusive evidence of the due appointment of the trustees and of their title to the trust property:

But nothing in this Act shall be construed to deprive any person of any land or other real estate or any estate or interest therein to which but for this Act he would be entitled, otherwise than on account of the validity of the appointment or election of any trustee or trustees, or for want of the trust having been legally continued from time to time by proper deeds and assurances...."

Section 11 of the 1930 Act reads:

a) "The Synod shall have power to compile and/or adopt a design, discipline, laws, rules, ordinances and regulations which the Synod finds are not inconsistent with the doctrine of the Wesleyan Methodist Church for the governing of the said Church and its ministers for the time being, with power to vary or alter the said design, discipline, laws, rules and regulations from time to time or to compile and adopt a new design, discipline, laws, rules and regulations in place thereof: Provided that a copy of every design, discipline, laws, rules and regulations and every variation or alteration thereof shall be transmitted in writing and under the seal of the Synod to every Official Board in these Islands before the same shall come into operation.

b) Every such design, discipline, laws, rules, ordinances and regulations compiled as aforesaid and every variation and alteration thereof which shall be compiled and adopted in manner by this section provided shall be deemed to be binding on the members or congregations for the time being of the Wesleyan Methodist Church in the same manner as if such members and congregations had mutually contracted and agreed to abide by and observe the same, and shall be capable of being enforced in all Courts of law and equity in relation to any property in the same manner and to the same extent, as if such property had been expressly, granted or conveyed upon trust to be held occupied and enjoyed by persons who should observe and keep, and be in all respects bound by the said design, discipline, laws, rules, ordinances and regulations.

c) Before every such design, discipline, laws, rules, ordinances and regulations compiled as aforesaid and every variation, alteration or recission thereof shall be adopted by the Synod of the Wesleyan Methodist Church such Synod shall transmit the same in writing to every Official Board in these Islands, and every Official Board shall, within one calendar month after the receipt of the same from such Synod convene a meeting of the congregation of every church or chapel in respect to which such Official Board functions and at which meeting or an adjournment thereof such congregation shall vote on each and every matter transmitted by such Synod as aforesaid and within two calendar months after the receipt of such matter transmitted as aforesaid every Official Board shall inform such Synod in writing the number of votes given or cast for and against every such matter.

d) Notice of every meeting convened under the provisions of the last preceding sub-section of this section of this Act shall be posted in some conspicuous place in every church or chapel by the Official Board of such Church or chapel for at least three weeks and read at the morning, afternoon or evening service held on three Sundays preceding such meeting, briefly stating that business to be transacted.

e) Every design, discipline, laws, rules, ordinances and regulations and every variation, alteration or recission thereof shall not be adopted by the Synod of the Wesleyan Methodist Church unless a majority of Three-fourths of the members of the Wesleyan Methodist Church residing in these Islands, present at the meetings provided for in sub-sections (c) and (d) of this Section of this Act and voting, shall be in favour of such adoption.

f) Should any Official Board neglect or refuse to convene any such meeting or any congregation of any church or chapel in respect to which such Official Board functions or should such congregation neglect or refuse to attend any such meeting any such neglect or refusal by such Official Board or such congregation shall not in any way affect the validity of anything done under the provisions of all or any of the subsections of this section of this Act.

g) Every design, discipline, laws, rules, ordinances and regulations and the variations, alterations and recissions thereof for the time being in force shall be known as "The Wesleyan Methodist Manual".

Provided that nothing in this enactment shall be construed to alter or vary or to sanction the alteration of the doctrines of the Wesleyan Methodist Church for the maintenance and promulgation of which any property has been or shall be conveyed to the local trustees, as defined or declared by any deed grant devise or assurance under which such property has been or shall be acquired or is held.

In 1971 the Wesleyan Methodist Trustees in compliance with Section 5(3) of the 1930 Act voluntarily conveyed the land vested in them by the 1855 and the 1899 Deed subject to certain trust established in those Deeds to the Wesleyan Methodist Trustees of Pembroke Body #2.

These proceedings arise from a rift between two factions (hereinafter called the Lightbourne faction and the Pulley faction) of the Grace Church congregation of the Christian denomination known as the Wesleyan Methodist Church, Pembroke Body #2. The Lightbourne faction consists of Mr Willard Lightbourne and Mrs Gwyneth Lightbourne and the majority of the congregation of the Grace Methodist Church, Pembroke Body #2. The Pulley faction consists of Mr Richard Pulley, Miss LaNeane Henry and the minority of the congregation of the Grace Methodist Church, Pembroke Body #2.

Over time and particularly since 1988 the United Church of Canada has been adopting changes which the Lightbourne faction maintains is at variance with the doctrine and faith of John Wesley.

According to the evidence before the court the seminal step in this dispute began when the Lightbourne faction disagreed with what they understood as the 32nd General Council of the UCC's decision to permit the ordination of practicing homosexuals. This faction maintains that this decision constituted a clear departure from the earlier doctrinal position of the 25 Articles of Faith of John Wesley. The Pulley faction does not accept that the 32nd declaration permits the ordination of practicing homosexuals; in any event it does not wish to separate from the Synod and or the U.C.C.

The impasse of the rift resulted in a dispute about the ownership of the property the subject of the 1971 voluntarily conveyance. The Parties have now resorted to the civil courts to resolve the question, which of the two factions is entitled to the ownership of the property.

Unhappy differences arose between the two factions. Victor Alexander MacLeod, a clergyman at Ebenezer Wesley Methodist Church, put it this way. On 21st June 1996 I was a member of the synod as well as its secretary. At that time "I was aware of the differences between the synod and some of the members of Grace Methodist Church".

Mr Leopold Mills a member of the Wesleyan Methodist Church and Chairman of the Synod for 2 years from May 1993, was called to testify in action 282/1996 by the Plaintiff in action 280/1996. Mr Mill's said the dissension between the two groups relate to some of the declarations made by the General Council of the UCC.

The catalyst for the Dissension was the decision of the UCC that all person who professed faith and belief in Jesus Christ were eligible to be considered for ordination. And as a result of that decision very largely there were differences in a number of congregations and the synod sought to address the differences.

The full text of the 32nd General Council of the United Church of Canada declaration, which has resulted in the divide, and to which much reference was made reads:
Council Declared....
1. "That all persons regardless of their sexual orientation who profess Jesus Christ and obedience to Him, are welcome to be or become full members of the Church.

2a. All members of the Church are eligible to be considered for ordered ministry.

b. All Christian people are called to a lifestyle patterned on obedience to Jesus Christ

c. That all congregations, presbyteries, and conferences covenant to work out the implications of sexual orientation and lifestyles in the light of the Holy Scriptures, according to their responsibilities as stated in the Manual.

3. That the 32nd General Council affirm the present ordination/commissioning procedures as outlined in the Manual, and those actions taken at the 30th General Council, which state, it is inappropriate to ask about the sexual orientation of those in the candidacy process, or those in the call/appointment/settlement process.

4. That the report, "Toward a Christian Understanding of Sexual Orientation, Lifestyles and Ministry" does not reflect the present position of The United Church of Canada; therefore this report ought to be considered an historic document and the decisions of the 32nd General Council be circulated for study and reflection in our struggle to find God's direction for our church.".

As a result of the declaration in October 1992 a decision, ratified by the Synod, was taken to hold a referendum in the spring of 1993 to consider whether The Wesleyan Methodist Church of Bermuda should continue their union with the UCC.

This referendum was held on 28th day of March, 1993, and a majority of Methodist Congregations in Bermuda voted for the Wesleyan Methodist Church of Bermuda to remain in union with the UCC. However by the same referendum of 28th March 1993, 82.8% of the voting members of the congregation (Lightbourne faction) of Grace Methodist Church voted for the Wesleyan Methodist Church of Bermuda to sever ties with UCC whilst 17.2% (the Pulley faction) voted to remain.

By a letter dated 15th June, 1995, forty-eight members of the congregation, including five of eight elected trustees at Grace Methodist Church signed a letter to the secretary of the synod. This letter reads:
"Re: The Future of Grace Methodist Church

The Synod is aware that at the referendum held Sunday, March 28, 1993, Grace Methodist Church voted 82.8% to relinquish affiliation with the United Church of Canada.

The congregation requested to remain as Methodist of Bermuda, but we have been informed that this is not possible.

The numerous developments that have occurred between our congregation and the Methodist Synod has caused the congregation to carefully assess what has happened at Grace Methodist Church.

Therefore, we, the congregation at Grace Methodist Church have decided it is in the best interest of our church and its future progress, to hereby give the Methodist Synod of Bermuda one year's notice that we are relinquishing all our ties with the Methodist Synod of Bermuda, and with the United Church of Canada, effective June 30, 1995.

Yours faithfully,

The Grace Methodist Church Congregation".

On January 17, 1996 some 7 months later, the chairman of the Synod responded to the 15th June 1995 letter:
"Dear Mrs James.

We are in receipt of your letter dated June 15, 1995 which was received by the secretary of the Synod on Oct. 14th. The letter has been passed along, by action of Synod, to a special committee, of which I am the chairperson.

The petition signed by many of the congregation, does give a good indication of the wishes of Grace Church as to the desire of many not to be associated with either the Synod or the United Church of Canada after June, 1996. However, the petition has no official or binding status with the Synod. In order to assist the congregation in a process to achieve the results desired, I refer you to the appropriate sections of the Manual (1995) of the United Church by which we operate in all matters except that of the holding of property.

Section 269 "Congregation Disbanding", page 122:
(a) In order for a congregation to initiate the process to disband, the congregation shall pass a resolution indicating its desire to disband and shall seek the approval of the Presbytery (Synod) of the resolution to disband. (A legal meeting requires that members of synod are present and it must be chaired by a (sic) an ordained minister).

(b) Provided the Presbytery (Synod) agrees with the resolution, the Congregation shall make provisions for the transfer of its members to other Congregations as may be desired by its members, shall submit to Presbytery (Synod) a proposal for the disposition of its property, both real and personal, ... and shall place with the Presbytery (Synod) the records of the Congregation in order that these may be forwarded to the Conference Archives".

We need to meet with the members of your congregation to discuss all these matters. Although the vote you mention stated that %82 wanted to separate from the synod, %18 wished to stay. There are many details to be discussed and the best way to do this is by way of a meeting.

We will notify all your confirmed members by mail that the Synod is calling a congregational meeting for February the 22nd, at 7:30 in order to address the issues. We are asking that you have this announcement made during the worship on the 2 Sundays prior to the meeting. All confirmed members are expected, and required, to attend. A delegation from synod, composed of the pastoral relations and pastoral oversight committees, will be present, as well as the chair of the Synod.

The matter of property has to be addressed in a proper manner. The manual of the Synod of 1930 states clearly that property is held in trust for the congregation "for the furtherance of Methodism". Separation from Synod is not for the "furtherance of Methodism" which means that the disposal of property is not a simple matter nor a foregone conclusion. A dissenting congregation cannot, by law, take with them property that is under the trusteeship of Grace. (There are legal aspects of this process that can best be addressed by those of the legal profession, and it is a considered opinion that the best way to handle this is for each of us, failing all else, to retain legal counsel and, in an appropriate manner, find the process necessary to allow us together to go to a court of law for a ruling and/or action).

Our hope is that we can find some resolution for this situation that has continued for far too long. Let us sit down and attempt to open ourselves to the Spirit of God as we move into the future. There are possibilities that we must explore together.

Sincerely,

Rev. Ron Vincent
Chair of Synod."

I pause here to interject that this is not a case of the congregation disbanding they are protesting the UCC's decision.

As the months passed without any resolution the parties became more restive and on 21st June, 1996 the Secretary to the Synod wrote to the "members and adherents of Grace Methodist Church" informing them amongst other things that: "beginning on July 1st..., 1996, synod will assume responsibility for conducting Worship Services at Grace Methodist Church and the overseeing of Grace Congregation, (Manual section 333). This will continue until a satisfactory state' exists at Grace Church".

The full text of the letter reads:

"June 21st, 1996.

To members and Adherents of Grace Methodist Church

Dear Friends:

It is the responsibility of Synod to insure that a 'satisfactory state' exists within Churches in its bounds (Manual Section 333(a) and (b).) It is apparent to Synod that an 'unsatisfactory state' exists at Grace Methodist Church. This has been brought to the Synod by the Synod itself through a specially appointed committee and the Pastoral Charge Supervisor (Manual Section 333 (b).) Attempts have been made to address this issue, but there has been a refusal to co-operate by those presently giving leadership.

Synod is aware that there are a number of people at Grace Church who no longer wish to associate themselves with the Wesleyan Methodist Church. This has been indicated in a letter dated 15th June, 1995 from Grace Methodist Church which really has no validity since proper congregational meeting procedures were not followed (Manual Section 111). This was also stated at an Anniversary Worship Service on April 28th. 1996.

At the same time Synod has been informed that there a (sic) number of people at Grace Church who wish to remain within the Wesleyan Methodist Church. At a recent meeting of the Bermuda Synod a motion was passed to support those persons who wish to continue on in the Wesleyan Methodist Church. The motion was as follows, "that Bermuda Synod give its full support to those of Grace Church, who wish to continue as a Methodist congregation within the bounds of the Bermuda Methodist Synod. This action is to be fulfilled by the Pastoral Relations Committee in keeping within the laws and rules of the Church and the Country of Bermuda". Therefore, the cause of the Wesleyan Methodist tradition will continue at Grace Church.

It has been indicated by a number of people at Grace that they wish to "relinquish all ties with the Methodist Synod of Bermuda, and the United Church of Canada" effective one year from June 30th, 1995.

Therefore, beginning on July 1st, 1996, Synod will assume responsibility for conducting Worship Services at Grace Methodist Church and the overseeing of Grace Congregation (Manual section 333). This will continue until a 'satisfactory state' exists at Grace Church. In the near future meetings will be held at Grace Church to help facilitate the life and work of this Church. Everyone who is interested and supportive of this cause is invited to join in the Worship and activities at Grace Methodist Church. Indeed, Synod invites and encourages any who have been thinking of leaving the Wesleyan Methodist tradition to reconsider and join with us in preserving this great Church. Those who do not wish to share in the continued life of the Wesleyan Methodist Church at Grace are of course free to leave.

Synod has made the following arrangements for Grace Methodist Church, Rev. Victor A. MacLeod, Co-Minister at Ebenezer Methodist Church has been asked to conduct Worship and Administer Communion on July 7th. Rev. Dr. Leicester Bigby of Montreal, Canada, to be Supply Minister for most of July and August.

We look to you for your prayers and support as we work together to further the work of God's Kingdom in the name and spirit of Christ our Lord.

In the Service of our Lord.

Rev. Victor A. MacLeod
Secretary
The Synod
The Wesleyan Methodist Church of Bermuda".

On 7th July 1998 the first Sunday after the Synod's purported assumption of responsibility Synod attempted to conduct a service which turned out to be most contentious. Both groups sought to exercise possession. Reverend McLeod said: "the organ was locked, the piano was tampered with. So we proceeded to put the piano in order. Mrs Thomas who had been the organist up until this time and whom I had called to ask if she will play for the service told me that she would be playing the organ but not for the Synod. We proceeded to secure someone to play the music of the worship and when the piano was in readiness she (Mrs Ileen Vanzort) proceeded to play the piano. In the meantime Mrs Thomas showed up and she took the place at the organ. I had noted that Mr Lightbourne was present and meeting with the choir and so I proceeded to indicate to him and the choir that Synod had notified them that I was to conduct the service. I proceeded to attempt to conduct the service with disruptions from Mr Lightbourne. We proceeded to carry the service out. We announced one hymn Mr Lightbourne called another and the organist being the louder was disruptive. We gave communion but it was a disruptive service."

This bitter confrontation resulted in each group filing the writs now being considered. Writs were filed and were followed by a number of interlocutory applications, the details of which are not necessary to be mentioned here.

Mr Scott, Counsel for the Plaintiff in action 280/1996 addressed the court extensively. First he advanced the argument that by virtue of their own action the signatories to the letter dated the 15th June 1995 are no longer members of the Wesley Methodist Church. Even more significantly the Trustees Mrs Yvonne James, Edna Thomas, Madge Swan, Gerald Brangman and Greta Brangman 'the dissident Trustees' by signing the letter of 15th June 1995 resigned as Trustees effective 1st July 1996. The property remained vested in the remaining trustees namely Louise Smith, Richard Pulley and Olive Richards. In order to establish this proposition Mr Scott referred to Halsbury's Laws of England Volume 48 4th Edition at paragraph 694 which states:

"A Disclaimer or refusal to an (sic) Act in the trust takes effect ab initio and vests the trust property, as from the date when the trust disposition came into operation, exclusively in the trustees who consent to act, Smith v. Wheeler (1671) Adams v Taunton (1820), Small v Marwood (1829). Peppercorn v. Wagman (1852)

Further:
" A person who has disclaimed or refused a trust reposed in him cannot afterwards act in it, even by exercising the power of appointing a new trustee." Re Birchall, Birchall v. Ashton (1889) 40 Ch. D.

Mr Scott maintained it is the Plaintiffs case that in so far as the dissident Trustees are concerned, their letter of June 15th, 1995 giving notice of termination effective June 30th, 1996, is caught by the meaning and effect of disclaimer.

Mr Outerbridge countered that the word disclaimer is a synonym for renunciation. Both words are used in estate practice and only estate practice and relate to the situation where a trustee is appointed under a will and refuses to accept the appointment. He renounces or disclaims.

In my view it is clear that the letter of 15th June 1995 was sent following a stream of correspondence ventilating much distress between the two factions. Once the dispute erupted each faction tried to exercise ownership and control over the property. I've scrutinized the full text of the authorities cited by Mr Scott, and the authorities do not support the proposition that these serving Trustees have renounced or disclaimed their office. In Underhill v Hayton Law of Trusts and Trustees 15 Edition 1995, at page 436 under the heading Disclaimer of a Trust it is there stated: "No-one is bound to accept the office of a Trustee. Both the office and the estate may be disclaimed before acceptance 'but not afterwards' by deed or by conduct tantamount to a disclaimer." See Re Lister 1926 Chancery 149. Re Sharman's Will Trust 1942 Chancery 311.

In this matter the Trustees accepted their duty and all are serving. In any event: "the disclaimer should be made within a reasonable period having regard to the circumstances to the particular case. Part of a trust cannot be disclaimed if other parts be accepted. The onus of proving disclaimer is on those who assert it." See Underhill at page 437. The parties in action 280/1996 have not discharged that onus.

Mr Scott further advanced the argument that the Defendants by their own volition, severed their contract with the Synod of the Methodist Church of Bermuda and by extension the UCC within the meaning of the 1930 Act. Their subsequent entry upon and attempts to conduct independent services without consent of the lawful owners as mirrored by the Deeds dated 6th November 1855, 10th April 1899 and 2nd August 1971 amounted to trespass. Mr Scott continued, the Defendants are not in possession but continue to visit the premises. As a consequence of the unresolved difference, the Synod acting under the powers conferred upon them by the 1930 Act assumed interim responsibility for the management of the affairs of Grace Methodist Church. Having severed all ties the Defendants are now another body not bound by the manual nor protected by the Act. They are now trespassers and the court should declare them so.

Dealing with the issue of trespass Mr Outerbridge on the other hand submitted that the contest for possession did not arise until after 30th June 1996 when there was a confrontation between the Reverend MacLeod and Mr Williard Lightbourne and Mrs Edna Thomas on Sunday 7th July 1996. It cannot be said that there has been a change in possession at that time since at the end all in attendance were in possession lawfully. Subsequently synod changed the locks to the church thereby asserting an act of contrary possession. In response the congregation changed the lock and retook possession and thereafter remain in possession worshipping every Sunday up to the present time. The Defendants Lightbournes' do not cross claim for trespass.

Mr Outerbridge further submitted that after October 1996 any possession would be subject to the Court's order. Both parties and the Court have keys. The Honourable Court maybe said to have taken interim possession and all parties use the premises with the Honourable courts permission and consent.

Mr Outerbridge added that the only issue is whether the congregation acted lawfully. He submitted they did not because as Trustees they were the true owners and entitled to possession against the world. As a congregation they were in possession with the consent and the authority of the owner. As such their possession could not be displaced by another who had no higher title or authority to possession than was theirs. This consent or authority to enter upon the premises was never withdrawn or revoked by the Trustees. Still further the congregation came on to the premises to worship in terms identical to the purpose of the trust. Additionally the Synod at all material times relied upon the congregation to pay all of the bills and expenses connected with lawful possession.

I do not propose at this stage to examine the submission regarding whether the Tort of trespass to land is made out because it would appear that in making the submission Mr Scott overlooked a critical issue. Before the question of trespass can arise the issue of lawful possession of the property must be established. If a person or group of persons is found to be in lawful possession then that person or group cannot be found liable of trespass to land. Once the Court establishes who had lawful possession the answer to Mr Scott proposition will become self evident.

In regard to this matter Mr Outerbridge sees the issue of Trust as one of the principal issues in this case. According to him this issue can best be divided into four components;
i) Who are the Trustees.

ii) Was the property held under the terms of an express or implied trust and what are the terms of such trust?

iii) What is meant by the words "Methodist Church" as it appears in the wording of the Trust deeds?

iv) Who is entitled to possession under the terms of the trust, i.e. which of the disputants?

As regards the first of the four components who are the Trustees, Mr Outerbridge submitted that at all material times the Trustees are Yvonne James, Edna Thomas, Gerald Brangman, Gretchen Brangman, Olive Richards, Richard Pulley and Louis Smith, they were elected prior to any of the events at issue and remained in office throughout the whole period. Section 5 of the 1930 Act created a body corporate which empowers the Trustees to hold in their corporate name for the purposes of the trust all real property which shall be vested in them.

Mr Outerbridge further submitted that Section 5 (4) enumerates the acts of a Trustee which would disqualify a Trustee from serving but this same section makes it clear that they do not cease to be Trustees until certain conditions are met. There is no evidence that the Section 5(4) requirement has been complied with consequently they continue as Trustees.

I agree with Mr Outerbridge's submission. Relating to Section 5(4) taking particular note of sub-paragraphs 4a to d, Section 5(4) says that a person ceases to be a Trustee only after notice in writing signed by the other persons comprising the local trustees of which he/she is a Trustee, to the effect that he/she ceases to be a Trustee. The Notice must be posted in a prepaid registered envelope or cover address to the individual at his last known place of abode. And Section 9 says that "in every case the local trustee shall keep a record-book in which at all times the appointment or elections of trustee shall be entered. Such book shall be in all courts and for all purposes be conclusive evidence of the due appointment of the trustees of their title to the trust. There is no evidence that Section 5(4) and Section 9 have been complied with. The evidence constitutes conclusive evidence of the due appointment of the Trustees and their title to the Trust property.

The next question to be resolved ought logically to be how is the property held. In order to answer this question the Court must look to the Deeds and the 1930 Act.

I agree with Mr Outerbridge's submission that a simple examination of the Deeds disclose that both the conveyance of 1885 and 1899 are to Wesleyan Trustees of Pembroke Parish on essentially the same express trust. The Deeds of 1885 and 1899 declared the purpose of the grant to be for the building of a suitable church to be used for the "celebration therein of the worship of Almighty God the holding of sabbath school and for other religious and moral purposes [ subject to the determination of the significance of the existing words] in accordance with the doctrine, rules and usages of The Methodist Church and no other uses, intents or purposes whatsoever". Indeed Mr Scott said, "the structure of ownership of the said property is not disputed by the parties".

Mr Scott and Mr Outerbridge have asked the Court to accept that although a third conveyance to the Trustees deeding the property of the parsonage to them does not state the terms of the trust, this trust should by implication be deemed to be held on the same terms of the two express trusts deeded by the 1885 and 1899 conveyance. I agree with that suggestion subject to the caveat unless and until evidence to the contrary is presented in the future.

The fundamental issue for the court to determine is what is comprised within the ambit of the limiting words, "in accordance with the doctrine rules and usages of the Methodist Church and for no other uses, intents or purposes whatsoever".

I will turn therefore to examine what is meant by the words, "doctrine rules and usages of the Methodist Church", in other words the doctrinal standard upon which The Methodist Church was founded and according to which the two factions practice until the rift developed.

As regards the meaning of the word "Methodist Church" as it appears in the wording of the trust deeds Mr Outerbridge submitted that the word "Methodist Church" is used to define the doctrine rule and usages that govern and control the trust. He continued, Dr Victor Shepherd, who was called and accepted by the court as an expert on the doctrine and theology of John Wesley and Wesley's 25 Articles of faith, stated that John Wesley abhorred novelty or change.

Mr Outerbridge submitted that we are assisted by the preamble to the 1930 Act. It reads:
"Whereas a branch of the Wesleyan Methodist Society has been established in these Islands professing the doctrine taught by the late Reverend John Wesley, Clerk, sometime Fellow of Lincoln College, in the University of Oxford AND WHEREAS certain Acts relative to the said Society afterwards called the Wesleyan Methodist Church and latterly called the Methodist Church were passed by the Legislature of the said Islands AND WHEREAS it is expedient to consolidate and amend the provisions of such Acts":

He submitted that neither the statute nor the manual confer any power to change, alter or vary the 25 Articles of faith of John Wesley or the doctrine of the Methodist Church. In support of this contention he referred to the proviso to Section 11 (g) of the 1930 Act which states:

"Provided that nothing in this enactment shall be construed to alter or vary or to sanction the alteration of the doctrines of the Wesleyan Methodist Church for the maintenance and promulgation of which any property has been or shall be conveyed to the local trustees, as defined or declared by any deed grant devise or assurance under which such property has been or shall be acquired or is held."

Additionally Section 13 of the 1930 Act empowers the Synod to contract with any church or denomination the doctrine it finds to be in substantial agreement with the doctrine of the Wesleyan Methodist Church.

Section 13 reads:
"The Synod shall have power from time to time to arrange and/or contract with any Church or denomination, the doctrines of which the Synod finds to be in substantial agreement with the doctrines of the Wesleyan Methodist Church as declared by the twenty-five articles of the late Reverend John Wesley, M.A., for the supply of ministers and carryout the objects and purposes of the Wesleyan Methodist Church in these Islands upon such terms and conditions as the Synod shall deem fit but all such ministers shall be bound by the provisions of section 11 of this Act as shall be for the time being in force in the same manner as if such ministers were members of the Wesleyan Methodist Church".

Mr Outerbridge submitted that the words "Methodist" or words "Methodist Church" relates to the doctrine that was definitive of Methodism and the Methodist Church as of the date of the Deeds and the original gift. This he maintained would give full effect to the words, "and for no other uses intents or purposes whatsoever". Such a meaning would require adherence to the 25 Articles of the Faith of John Wesley.

Mr Scott submitted that the Methodist Church prior to 1930 is now the Wesleyan Methodist Church. When the dissidents say they want to remain Methodist they want to be associated with another body. It was Wesley Methodist they agreed to be bound by. They are running hot and cold they want to be Methodist but not Wesley Methodist. They are now another body not bound by the Manual and not protected by the Act.

Mr Scott submitted that the 1930 Act placed the property in the hands of the Trustees. The Bermuda 1930 Act governs in a large measure the relationship of this union. Section 11 of the 1930 Act is a protection devise which does not allow anyone to do anything contrary to the 25 Articles of Faith of John Wesley. This was a spot of genius from antiquity.

Mr Scott further submitted the dissident group were practicing some form of religion but he 'suspects' it was not under the 25 Articles of Wesley and they did not want to be associated with the UCC. By their own re-amended pleading (paragraph 7) the dissidents have admitted a breach of Section 5(4) of the 1930 Act. Once they made the decision not to be associated with the UCC they were outside the bounds of the Church and to protect them is "hearsay".

The next question to be answered is: who is entitled to possession under the terms of the trust, i.e. which of the disputants? Mr Outerbridge submitted that on the evidence of Doctor Shepherd the Grace Church congregation most closely adhered to the original principles of the trust, that is, the original doctrine, polity and practice of the Methodist Church of John Wesley and in particular the 25 Articles of Faith.

Mr Outerbridge submitted interalia that the Synod being offered the opportunity to sever their relationship with the UCC refused to do so despite the fact that less than the statutory 75% required by Section 13(4) of the 1930 Act voted in the referendum to remain.

Section 13(4) reads.
"Every arrangement and/or contract and every variation, alteration or recession thereof shall not be made by the Synod of the Wesleyan Methodist Church unless a majority of Three-fourths of the members of the Wesleyan Methodist Church residing in these Islands present at the meetings provided for in subsections (2) and (3) of this Section of this Act and voting, shall be in favour of such adoption".

Mr Outerbridge added the Synod refused to sever ties with the UCC despite the fact that the Synod knew that they possessed no power as Wesleyan Methodist to amend the doctrine of the Methodist Church or the 25 Articles of Faith, and the fact that the UCC did possess the legislative capacity to amed and change it's own doctrine even that which at the time of the union in 1925 was congruent with John Wesley, despite the fact that the issue of the ordination of homosexual persons had split the Wesleyan Methodist Church of Bermuda on racial lines; and despite the fact that they had received notice from four (4) predominately black congregation including that of Grace Methodist Church of their desire to sever all relationship with the UCC because of their disagreement with the UCC's decision regarding the ordination of gays and lesbians, same gender covenants marriage and the report on the authority and interpretation of scripture. In Dr Shepherd's opinion the differences were so fundamental and deep-seated to be irreconcilable. Dr Shepherd said in his opinion that "neither in its formal nor in its informal theology" can the UCC Church of Canada be said to be congruent with the doctrine of the 25 Articles of Faith of the late John Wesley.

Dr Shepherd said:
"The documents on sexuality (Exhibit D3) cannot be reconciled and would be rejected outright by Wesley. The new Creed and the Amendments to the Hymn Book "Voices United" (Exhibit 4) are non-Methodist. The Authority of Scripture (Exhibit D5) is totally offensive to Wesley's 25 Articles and Mending The World (Exhibit D4) violates the principle centrepiece of the Christian Faith and therefore Methodism namely the Uniqueness of Jesus Christ".

Mr Outerbridge submitted that the congregation wanted to be permitted to worship as Methodists, however the Synod told them that they could not worship as Methodists of Bermuda outside of the formal organisation and structure of the Synod. This was quite wrong, to cite an example in point, Dr Shepherd said the Synod failed to acknowledge the existence of the African Methodist Episcopal as "Methodists".

In conclusion, Mr Outerbridge submitted that the congregation of Grace Methodist Church should be granted possession under the trusts and an order issued excluding the Synod except on the invitation and with the consent of the congregation.

Mr Scott further submitted that the Defendants have pleaded that the Plaintiffs have hindered them under Section 8 of the Constitution. But once they stepped outside the Wesleyan hallowed grounds they had breached their trust. Three good persons are forced to protect the trust and they did and they brought this action. He maintained that the dissidents continue to come and trespass having given up their rights.

Mr Scott on behalf of the Plaintiffs in action 280/1996 concluded the adherents are not in possession but continue to visit the premises. They are trespassers and the court should declare them so.

CONCLUSION
The fundamental question to be determined by the court is what is the underlying trust purpose on which the property is held.

The Wesleyan Methodist Church (Consolidated and Amendment Act) 1930 was enacted "to consolidate and amend all prior acts relative to the Wesleyan Methodist Church (The Methodist Church). This Act and its various provisions provides how the Methodist Church in Bermuda is established.

Detailed analysis of the 1930 Act and the UCC's Manual of 1995 and the 1885, and 1899 and 1971 Deeds reveal that the property the subject of this dispute was to be held by the Trustees on the application of the property to certain doctrinal and religious ends namely:
"to be used for the celebration of the worship of Almighty God.... and for other religious and moral purposes in accordance with the doctrine rules and usages of the Methodist Church and for no other uses intents or purpose whatsoever......"

Section 11 (a) of the 1930 Act gives the Synod power to adopt the Wesleyan Methodist Manual and vary it.

"Section 11 (a) reads:
The Synod shall have power to compile and/or adopt a design, discipline, laws, rules, ordinances and regulations which the Synod finds are not inconsistent with the doctrine of the Wesleyan Methodist Church for the governing of the said Church and its ministers for the time being, with power to vary or alter the said design, discipline, laws, rules and regulations from time to time or to compile and adopt a new design, discipline, laws, rules and regulations in place thereof: Provided that a copy of every design discipline, laws, rules and regulations and every variation or alteration thereof shall be transmitted in writing and under the seal of the Synod to every Official Board in these Islands before the same shall come into operation".

And Section 11(g) of the 1930 Act stipulates that there shall be no alteration of the doctrines of the Wesleyan Methodist Church.

Section 11 (g) reads:
"Every design, discipline, laws, rules, ordinances and regulations and the variations, alterations and recissions thereof for the time being in force shall be known as "The Wesleyan Methodist Manual".

The next question then is what is meant by the word "Methodist Church?"

The opinion of Dr Victor Shepherd the only expert called in the case is clear and compelling. Dr Shepherd is a Doctor of Theology. He is a distinguished scholar and is currently chair of Wesley Studies Ontario Theological Seminary.

The Court accepted that by virtue of Dr Shepherd's training experience, and distinction as a scholar, and extensive research in the theology of John Wesley and Methodism that he is an expert in the doctrine of the late Reverend John Wesley and his experience is appropriate for the needs of this case. I therefore accept his definition of what constitutes the doctrine of the Methodist Church.

He testified that he was asked by Mr Outerbridge to compare the theology and doctrine of the UCC today (1998) with the theology and doctrine of the Methodist Church as exemplified by the 25 Articles of Faith of John Wesley and the doctrinal beliefs and practice of the Methodist Church of Canada in 1925 (the date when the article of the UCC was enacted). He reported that the listing of the 25 Articles of the Methodist Church is prefaced by the statement, "The Doctrine of the Methodist Church are declared to be those contained in the twenty-five articles of Religion and those taught by Reverend John Wesley, MA. In his notes on the New Testament, and in the first fifty-two sermons of the first series of his discourses, published during his lifetime".

To continue Dr Shepherd said that, "Here the Methodist Church of 1925 (Canada) and 1930 (Bermuda) demonstrates its oneness with its predecessors and its continuity with classical Methodism in the era of Wesley himself, for the standard of doctrine were defined as sermons and notes on five occasions in conference of 1773, 1780, 1781; in Wesley's letter to the conference of 1783 and in conference of 1784. Dr Shepherd said the 25 Articles (the briefest expression); the 52 sermons which is an amplification of his notes of the New Testament must be examined together before any seeming omission in the Article is deemed to render Wesleyan doctrine deficient. The documents are essentially consistent with each other.

Dr Shepherd gave detailed evidence of his comparison between the United Church Twenty Articles of Faith (Basis of union) and the Methodist Churches 25 Articles of Faith of John Wesley which is a matter of record.

Dr Shepherd said the document "Membership, Ministry and Human sexuality - a new statement of the United Church of Canada by the 32nd General Council (Exb 16) is an official document of the UCC approved at the 1988 General Council. This document sets out the UCC's position on many items pertaining to sexual conduct. It became the UCC's official position on sexual behaviour and it aroused enormous furor in the UCC. The document seemed to have departed from the moral law of God which was being upheld.

In conclusion Dr Shepherd said:
"On the basis of having perused both the Twenty-five Articles of the Methodist Church (which articles were written by the late Reverend Mr John Wesley) and the many documents The United Church of Canada has issued (the content of which documents became positions the denomination espoused as policy), it is my opinion that The United Church of Canada has, in its articulation of its formal theology and its fostering of its day-to-day operative theology, contravened the aforementioned Articles. Such infringement has occurred not once but many times, and not witlessly by inadvertence (as might be the case with a denomination that drifted doctrinally on account of theological naiveness); such infringement has occurred, rather, as successive positions and policies have been adopted intentionally".

"It is my opinion that neither in its formal theology nor in its informal theology can The United Church of Canada be said to be congruent with the doctrine of the Twenty-Five Articles of the late Reverend Mr John Wesley. Anyone of these documents published by the United Church standing alone is directly contrary to John Wesley's theology and doctrinal statements as they are reflected in the Twenty-Five Articles. The documents on sexuality cannot be reconciled and would be rejected outright by Wesley. The New Creed and the amendments to the Hymn Book "Voices United" are non "Methodist". The authority of Scripture is totally offensive to Wesley's Twenty-Five Articles and Mending the World violates the principal centrepiece of the Christian Faith and therefore Methodism namely the Uniqueness of Jesus Christ. Finally, the whole exchange with the Moderator of the United Church and the Executive of General Council brings into focus the continuing violation of the Twenty-Five Articles of faith down to the present day. The United Church in its interpretation of its own doctrinal statements is in conflict with the same Twenty-Five Articles".

In cross examination by Mr Scott, Dr Shepherd said that in view of the fact that the document (Exb. 16) was never disapproved, rejected or repudiated it just sat there as an historic document it was the implicit meaning that the UCC would ordain gays or lesbians. The fact that "sexual orientation" includes sexual practice was tested when an ordained person known to be homosexually active was employed at the National Office and an affidavit was sworn attesting to that person's life style. Whereupon that employee was ordained and subject to discipline was not disciplined. Subsequently General Council found 10 congregations in Canada where such ordained person could be placed.

Dr Shepherd said at no point did the UCC laid to rest the suspicion and anger of the people that homosexual conduct would disqualify one from ordination.

Dr Shepherd agreed with Mr Scott that John Wesley sometimes stood outside the status quo but he added, never with respect to doctrine or ethics. Homosexual behaviour is an instance of human sin and John Wesley would never confirm homosexuality. Mr Scott has asked the court to reject Dr Shepherd's opinion as it is "simply an opinion", but he has not produced any, evidence contradicting this clear and compelling evidence. It is somewhat surprising that the parties to action 280/1996 did not call expert evidence in support of their contention.

The approach to church disputes was discussed by the author in Ogilvie M.H. Church Property Dispute, some organising Principles (1992) 42 University of Toronto Law Journal 377 Ogilvie reviewed a number of authorities where similar issues arose and at page 377 states:
"The eruption of disputes about the ownership of church property from Church courts into the civil courts is almost invariably the final result of an irreparable rift within a church about a fundamental doctrinal matter".

And at page 384 Ogilvie says:
"A trust for a church is to be enforced for the benefit of those adhering to the original principles of that trust, irrespective of their numbers".

And at page 389:
"In situations where congregational schisms have occurred on doctrinal lines, property has been founded to inhere in those who subscribed to the original doctrinal position on which the congregation was established".

A similar conclusion was arrived at by the Privy Council in the Scottish case of General Assembly of the Free Church of Scotland and Lord Overton and others [1904] A.C. 515. In that case the question was whether funds invested in the names of trustees and real property held in trust for the benefit of the Free Church of Scotland, have been dealt with in a way which constituted a breach of trust. The court held at page 704 that:
"The law applicable to funds which had been given for the purpose of a voluntary association such as the Free Church is well settled, and it is not necessary for [the court] to do more than refer to the decision of [their] Lordships' House in Craigdallie v Aikman (1) to shew that such funds, in the absence of express provision, must be applied for the benefit of those who adhere to the original principles of the founders. If the terms of the foundation of the trust provide for the case of schism the Courts will give effect to them, but if there be no such provision, the cestuis que trust are those who adhere to the fundamental principles upon which the association was founded".

In my judgment the Plaintiff in action 282/1996 has made out a formidable case that the current doctrinal standards of the UCC of Canada is at variance with the doctrines of the 25 Articles of Faith of John Wesley. I reject Mr Scott's submission that there is no evidence that the UCC will ordain homosexuals. I am satisfied that paragraphs 1, 2A and 3 of the Council's declaration (see Page 14 aforesaid) read together says: that all persons regardless of their sexual orientation, if they profess Jesus Christ and obedience to him can become full members of the church. There is no bar, no limitation and all members are eligible to be considered for ordered ministry. Paragraph 3 affirms what has been previously agreed. The UCC's decision to admit homosexuals is a deviation from the original doctrinal standards of the 25 Articles of Faith of John Wesley. I accept Dr Shepherd's opinion that UCC has, in its articulation of its formal theology and its fostering of its day to day operative theology contravened the 25 Articles of the Methodist Church which was written by the late Reverend John Wesley. This infringement has occurred many times and not witlessly by inadvertence but adopted intentionally as successive positions and policies. Since 1988 this divergence and disparateness occurred very rapidly and these differences are so "fundamental" and deep-seated as to be irreconcilable".

Which of the disputants is entitled to possession under the terms of the trust? The Trustees have an active duty to perform. The land was Deeded to them to build a suitable church to be used for the celebration therein of the worship of Almighty God in accordance with the doctrine, rules, and usages of the Methodist Church and for no other use intent or purpose. The legal estate is in the Trustees to enable them to carry out the duty imposed upon them. According to the evidence of Dr Shepherd of the two disputants the Plaintiff in action 282/1996 most closely adhere to the original doctrine, polity and practice of the Methodist Church of John Wesley and the 25 Articles of Faith. The Plaintiffs in action 280/1996 do not want to sever ties with the UCC which according to Dr Shepherd neither in its formal theology nor its informal theology can the UCC be said to be congruent with the doctrine of the 25 Articles of the late Rev. John Wesley which is the foundation upon which the Methodist Church was established.

In Associated Dairies Ltd v Baines [1997] A.C. 524 @ p. 532 it is stated in the speech of Lord Nicholls of Birkenhead that:

"In the process of statutory interpretation there always comes a stage, before reaching a final decision, when one should stand back and view a suggested interpretation in the wider context of the scheme and purpose of the Act. After all, the object of the exercise is to elucidate the intention fairly and reasonably attributable to Parliament when using the language under consideration".

In coming to my conclusion I have taken into account all the matters on which this court was addressed including the evidence of Miss LaNeane Henry and Mrs Yvonne James which have been given due consideration. I have of course stood back and looked at the wider context of the 1930 Act and the Trust Deeds as a whole. I find that the parties to action 280/1996 have acted and continue to act ultra vires the trust whilst the parties to action 282/1996 are acting in accordance with the trust. The terms and effect of the trust is clear and no-one can alter same.

For the above reasons I therefore dismiss the case entitled action 280/1996 and I find for the Plaintiff in action 282/1996.

DATED the 10th day of June 1998.

Norma M. Wade-Miller
PUISNE JUDGE

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