Lejeune v Caribbean Broadcasting Company Ltd et Al
| Jurisdiction | St Lucia |
| Judge | Heyliger, J. |
| Judgment Date | 24 March 1964 |
| Neutral Citation | LC 1964 HC 1 |
| Date | 24 March 1964 |
| Court | High Court (Saint Lucia) |
| Docket Number | No. 28 of 1963 |
Supreme Court of the Windward and Leeward Islands.
Heyliger, J.
No. 28 of 1963
V. A. Cooper for plaintiff.
Sir Garnet Gordon, Q.C., with D. A. McNamara for defendants 1 and 2.
Injunction - Disposal of assets
Facts: The plaintiff sought an injunction to restrain the defendant from disposing of the assets of the defendant company, a broadcasting station. The plaintiff was the mother-in-law of the defendant who was the founder of the station. The issue was whether an injunction should be granted.
Held: The company had power to sell and therefore to do so would not make the action ultra vires the company. The disposal of the assets of the company did not in any way affect the individual rights of the plaintiff. Judgment given for the defendant.
In this case the plaintiff in his declaration prays for: –
- An injunction to restrain the defendants their servants and agents from selling, disposing transferring or in anyway dealing with the assets of the defendant company including the Broadcasting Station and the licence to the detriment of the shareholders of the company. 2 An investigation into the affairs of Caribbean Broadcasting Company Limited and Radio Caribes. 3 Such other order as will meet the special circumstances of this case. 4 The costs hereof.
The relevant facts are as follows: The plaintiff is the mother-in-law of the defendant Michel Ferry. The defendant Michel Ferry, a writer and broadcaster by profession visited St. Lucia about the end of 1959 or early 1960. While in the island he noticed there was no commercial broadcasting station between Trinidad and Puerto Rico and realising the commercial possibilities of such a station in St. Lucia on his return to France he applied to the Chief Minister of St. Lucia by letter for a franchise to operate a radio broadcasting station in St. Lucia. He had a solicitor acting on his behalf in St. Lucia. The plaintiff was in no way his agent although she may, in replying to his letters, have kept him informed as to developments.
In April 1960, Michel Ferry returned to St. Lucia and on 21 st April 1960, had an interview with the Chief Minister and other ministers. The Secretary to the Chief Minister wrote Michel Ferry a letter dated 23 rd April 1960, is which he referred to Ferry's application and subsequent interview and informed him inter alia “that this Government has agreed in principle to the grant of a licence; but before issuing such a licence some additional information would be required from you concerning the operation of the project. This Government will proceed to inform the Federal Government that it is proposed to issue a licence to you and would seek the Federal Government's advice as to the terms on which the licence is to be issued”. This letter also contains a number of points, which were raised by Ferry in discussions with the Permanent Secretary. One of the points referred to a company in the following terms: –
-
(iv) That during the first two seals of operation, your Company (which is to be incorporated in St. Lucia) will be free of income tax.
This reference to a company was in no way a condition precedent to the grant of a licence and another letter front the Permanent Secretary Ministry for Trade and Industry to Mr. Donald B. James, Solicitor for Michel Ferry, dated 24 th March 1961, clearly shows that Michel Ferry, and not a company granted by the Government a two year tax free concession.
The letter reads as follows: –
W 18/60 (A)
24th March 1961,
Sir,
I am directed by the Minister to inform you that the Administrator-in-Council, in accordance with a decision to grant Mr. Michel Ferry a two-year tax concession, has decided that equipment imported into the territory in connection with his broadcasting station should be exempted from import duty.
It was further decided that Mr. Ferry be required to submit a list of all such equipment to the Supervisor of Customs and to make the necessary declaration.
I have the honour to be,
Sir,
Your obedient servant,
IRA M. SIMMONS
Permanent Secretary,
Ministry for Trade and Industry.
Donald B. James, Esq.,
Solicitor for M. Michel Ferry,
Chambers,
Castries
On the strength of the letter of 23 rd April 1960, Ferry began the technical studies for the erection and operation of a radio station in St. Lucia.
On the 15 th October 1960, the Permanent Secretary to the Chief Minister wrote the following letter to Michel Ferry: –
15 th October 1960.
Dear Mr. Ferry,
I am directed by the Chief Minister to inform you that this Government has agreed that a licence be issued to you for operating a broadcasting station in St. Lucia. As soon as the draft you saw this morning is duly modified, it will be issued to your solicitor.
I have the honour to be,
Sir,
Your obedient servant,
C. W. KING,
Permanent Secretary,
Chief Minister.
Mr. M. Ferry,
Castries.
As a result of this communication Ferry, by letter dated 24 th October 1960, placed an order for radio equipment with Collies Radio Company (France) and in addition also ordered other necessary equipment from the United States of America.
Equipment began to arrive in the island is November, 1960, and Ferry began to erect the equipment in a building at Vigie which he rented from the Presentation Brothers for $100 a month from 5 th November 1960, that is 13 days before the incorporation of the Caribbean Broadcasting Company Limited. The transmitter arrived in January 1961. It appears that subsequently a lease, in writing of the premises was drawn up in the name of the Caribbean Broadcasting Company Limited, but it was not signed as Ferry objected to certain terms, and so continued in occupation as a monthly tenant.
On the 14 th December 1960, the Incorporated Trustees of the Presentation Brothers charged the Caribbean Broadcasting Company Limited before the First District Court with the offence of carrying on a noisy business. The Company was convicted. That, in my view, is no evidence that the station was owned by the Company but simply shows the general carelessness of all those who had anything to do with the charge. It may however, be noted that no attempt has been made to enforce the penalty imposed against the Company.
On the 18 th November 1960, the Registrar of Companies issued a Certificate of Registration of Caribbean Broadcasting Company Limited. The only subscribers to the Memorandum of Association were Michel Marc Ferry (the defendant) for 29,000 shares and Elizabeth Lejeune (the plaintiff) 1,000 shares. They were also the only subscribers to the Articles of Association. The share capital of the company was $90,000 divided into 30,000 ordinary shares as $3. Michel Ferry personally paid the formation expenses of the Company. The plaintiff, an alien, did not and never did obtain a licence from the Administrator in Council to take shares in the Company. In this connection I must say that I have grave doubts as to whether an unlicensed alien can lawfully hold shares and so be properly considered a shareholder even though the registration of the Company may not be affected by the unlicensed alien signing the memorandum and articles.
The only documents ever filed with the Registrar of Companies in relation to the Caribbean Broadcasting Company Limited were the Memorandum and Articles along with the statutory declaration of the solicitor. These documents were filed on the 17 th November 1960 and on 18 th November 1960 the Registrar issued his Certificate of Registration.
The Company never complied with any of the following requirements of the Commercial Code: –
| ARTICLE 114 — The annual list and summary which should be sent to the Registrar signed by the Manager or Secretary within seven days after the fourteenth day after the first or only general meeting in the year. |
| ARTICLE 122 (2) — Notice to the Registrar of the situation of the registered office. |
| ARTICLE 125 (1) — First statutory meeting never held |
| ARTICLE 136 — List of directors to be sent: to the Registrar |
| ARTICLE 172 — Obligations of a private company. |
Table “A” in the appendix to Title IV Companies contained in the Commercial Code applies to the Caribbean Broadcasting Company Limited in so far as they are applicable and not inconsistent with or modified by the Articles.
The number of directors, their method of appointment and duration of office are set out in Articles 22 and 23 of the Articles of Association:
| ARTICLE 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 |
| ARTICLE 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. |
| ARTILCLE 29 refers to the Seal of the Company and reads as follows: – |
| ARTICLE 29 — The Seal of the Company shall not be affixed to any instrument except by the authority of a resolution of the Board of Directors in the presence of at least two directors, or of one director and the secretary ox such other person as the directors may appoint for the purpose; and the two directors, or director and secretary or other person as aforesaid, shall sign every instrument to which the Seal of the Company is so affixed in their presence. |
It therefore semis to me that regulation 71 of Table “A” which states that, “The business of the Company shall be managed by the directors…” applies to the...
To continue reading
Request your trial