Ferry v Gifford et Al
| Jurisdiction | St Lucia |
| Judge | Heyliger, J. |
| Judgment Date | 01 January 1963 |
| Neutral Citation | LC 1963 HC 1 |
| Docket Number | No. 9 of 1963 |
| Court | High Court (Saint Lucia) |
| Date | 01 January 1963 |
Supreme Court of the Windward and Leeward Islands.
Heyliger, J.
No. 9 of 1963
Sir Garnet Gordon, Q.C., with D. A. McNamara for plaintiff
V. A. Cooper for defendants.
Company law - Manager — Appointment of manager
Facts: The issue was whether the first defendant had the authority under the Articles of Association to appoint the second defendant as manager of the company in question. The second defendant had taken over the company from the plaintiff.
Held: Neither the Article of Association nor the general law could establish the first defendant as a director with such a power. At most the first defendant was a shareholder and as such had no right of management of the company or to appoint a manager.
In this case the plaintiff claims damages for the delict of trespass on the Broadcasting Station known as Radio Caribbean International (St. Lucia) (hereinafter referred to as “the Broadcasting Station”) situate in a building leased by the Plaintiff at Vigie in the Quarter of Castries.
The action is founded on Art. 985 of the Civil Code, which states: –
“985. Every person capable of discerning right from wrong is responsible for damage caused either by his act, imprudence, neglect or want of skill, and he is not relievable from obligations thus arising”.
The plaintiff, a broadcaster by profession, came to St. Lucia with his wife around the end of 1959 or early 1960 and at that time the defendant Elizabeth Lejeune, who is the mother-in-law of the plaintiff, was living in St. Lucia. The plaintiff discovered that there was no commercial broadcasting station between Puerto Rico and Trinidad, and realising the commercial possibilities of such a station opened negotiations with the Chief Minister of St. Lucia. The plaintiff left St. Lucia on or around the 8 th January 1960, but returned three or four times during 1960 in connection with the negotiations, and some time in October, 1960, he considered the project sufficiently advanced and so placed an order with Collins Radio Company (France) for equipment for a broadcasting station. The equipment began to arrive in St. Lucia in January 1961, and was installed in a building at Vigie.
On the 15 th February 1961, the Administrator in Council granted a licence under s. 3 of the Wireless Telegraphy Ordinance and, subject to the terms and conditions therein contained, it conferred on the plaintiff the right to establish and maintain a radio broadcasting transmitting station and a broadcasting receiving station and the right to maintain a commercial radio broadcasting service.
The Station began to broadcast on the 22 nd February 1961, and the plaintiff was the General Manager.
On the 18 th November 1960, the Registrar of Companies issued a Certificate of Registration of the Caribbean Broadcasting Company Limited, being a private company limited by shares.
The share capital of the Company was 90,000 divided into 30,00 ordinary shares of $3.00 each and the signatories to the Memorandum of Association were Michel Mark Ferry (the plaintiff) for 29,000 shares, and Elizabeth Lejeune (the defendant) for 1,000 shares.
These persons also signed the Articles of Association as subscribers. The number of directors and the method of their appointment are specifically dealt with in articles 22 and 23 which read as follows:–
“22. There shall be two directors or more but not exceeding five, in the discretion of the Company in general meeting, one of whom shall be a Managing Director. Except as provided by article 23, the Managing Director shall be elected from the directors by ballot of the Company in ordinary general meeting, and he shall be chairman of all meetings of the company.
23. The first directors of the Company shall be: MICHEL FERRY, who shall be Managing Director and shall hold office during the term of his natural life or until he resigns; and such director or directors as the Company shall appoint who shall hold office from the date of the first ordinary meeting for one year”.
After the station went on the air the defendant, Elizabeth Lejeune, used to do clerical work at the station in the evenings after she was finished teaching at the College where she was employed, and also on Saturdays and Sundays. She was so employed until March or April, 1961, and during that period she drew no pay for, as she put it, “I was working as a mother would work her children”.
On the 13 th of August 1962, a conditional agreement was signed at Montreaux between Michel Ferry (plaintiff) and the Society Caribbean Broadcasting Company of St. Lucia represented by Michel Ferry of the one part and Marcel Gasser representing the Society A.C.A.P.E.C. of the other part and, as I see it, neither the Caribbean Broadcasting Company nor the Defendants nor either of them acquired any rights under that agreement. It may be observed that when the plaintiff was away on this occasion no objection was made by defendant Lejeune about the management of the station.
On or about the 15 th December 1962, the plaintiff left Lucia for Switzerland with his wife...
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