Dufour et Al v Helenair Corporation Ltd et Al

• Jurisdiction: St Lucia
• Judge: SIR VINCENT FLOISSAC, C.J.
• Judgment Date: 12 February 1996
• Neutral Citation: LC 1996 CA 3
• Judgment citation (vLex): [1996] ECSC J0212-2
• Court: Court of Appeal (Saint Lucia)
• Docket Number: CIVIL APPEAL No.4 of 1995
• Date: 12 February 1996

Between:

(1) Michel Dufour

(2)Martin Pedro Toussaint

(3)Samuel Mason

(4)Aamille Dufour (acting herein and represented by her duly appointed attorney Martin Pedro Toussaint)

Appellants

and

(1)Helenair Corporation Ltd.

(2)Joaquin Willie

(3)Arthur Neptune

(4)Mario Reyes

Respondents

[1996] ECSC J0212-2

Before:

The Rt. Hon. Sir Vincent Floissac Chief Justice

The Hon. Mr. C.M. Dennis Byron Justice of Appeal

The Hon. Mr. Satrohan Singh Justice of Appeal

CIVIL APPEAL No.4 of 1995

IN THE COURT OF APPEAL

Appearances:

Mr. Parry J. Husbands Q.C. and Mr. V.P. La Corbiniere for the Appellants

Mr. Mario R.F. Michel and Mr. A. St. Clair for the Respondents

SIR VINCENT FLOISSAC, C.J.

1 The appellants and the second, third and fourth named respondents are shareholders in the first named respondent (the Company) which is the sole shareholder in Helenair Corporation (Grenada) Limited (the Subsidiary Company). The second, third and fourth-named respondents constitute the Board of Directors (the Board) of the Company.

2 On 13th July 1993, the appellants instituted an action against the respondents under suit 1993 No. 424. The issues in the suit are (1) whether the fourth-named appellant's 50,000 shares (numbered 150,004 to 200,003) in the capital of the Company were validly forfeited (2) whether 11,120 shares in the capital of the Company were validly transferred to the fourth-named respondent (3) whether the sum of $12,800.00 was validly transferred from the account of the Company to or for the use of the Subsidiary Company (4) whether the use by the Subsidiary Company of the aircraft and resources of the Company was wrongful and (5) whether the Board neglected and/or refused to have accounts of the Company for the years 1991 and 1992 audited in accordance with article 115 of the Articles of Association of the Company.

3 On 7th March 1994 and nearly five months after the pleadings in the suit were deemed to have been closed, the appellants issued a summons under R.S.C. Ord. 33 r 2 which provides as follows:

"The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated."

4 By the summons, the appellants applied for "an order that the following question or issue raised by paragraph 9 of the Statement of Claim be tried as a Preliminary issue before the trial of the other questions or issues in this action and that until the determination of the preliminary issue all further proceedings in this action be stayed."

5 The summons specified the question or issue to be: "That THE BOARD has neglected and or refused to have the accounts of THE COMPANY audited accordance with Article 115 of the Articles of Association of THE COMPANY for the years 1991 and 1992 and that in light of this the Court appoints an Independent Auditor to Audit the accounts of THE COMPANY for the years 1991 and 1992 and to submit his report accordingly. "

6 The summons purported to have been in pursuit of the allegation in paragraph 9 of the appellants' Statement of Claim and the relief claimed in respect thereof. Paragraph 9 of the Statement of Claim states that "THE BOARD has neglected and or refused to have the accounts of THE COMPANY audited in accordance with Article 115 of the Articles of Association of THE COMPANY for the years 1991 and 1992." The relief claimed is "An Order that THE BOARD do cause the accounts of THE COMPANY to be audited in accordance with Article 115 of the Articles of Association of THE COMPANY for the years 1991 and 1992. "

7 Article 115 of the Articles of Association of the Company reads:

"Once at least in every year the accounts of the Company shall be examined, and the correctness of the profit and loss account and balance sheet ascertained by one or more properly qualified auditor or Auditors."

8 The summons was heard by d'Auvergne J. By judgment delivered on 13th January 1995, the learned judge dismissed the summons. This appeal is against that interlocutory judgment.

9 We are thus here concerned with an appeal against a judgment given by a trial judge in the exercise of a judicial discretion. Such an appeal will not be allowed unless the appellate Court is satisfied (1) that in exercising his or her judicial discretion, the learned judge erred in principle either by failing to take into account or giving too little or too much weight to relevant factors and considerations or by taking into account or being influenced by irrelevant factors and considerations and (2) that as...