STERLING PUBLICATIONS LTD v FIRST NATIONAL INSURANCE COMPANY LIMITED et al

SAINT: :GUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) SUIT NO. 515 OF 1995 Between: STERLING PUBLICATIONS LTD Plaintiffs v s (1) FIRST NATIONAL INSURANCE COMPANY LIMITED (2) WILFRED FLETCHER Defendants \ Miss Barbara Pierre for Plaintiff Mr. N. John for Defendants 1996: May 24th November 20th JUDGMENT d'Auvergne, J (Chambers) By a writ of Summons indorsed with a Statement o f Claim the- Plaintiff claimed the following : Jne thousand eight hundred and fifty pounds or the Eastern ( C Caribbean Dollar equivalent at the date hereof. 2 . Interest 0 0 the 3aid 3um at. the rate of 3% per annum above r .--t; Barclays Bank PLC base rate from time to time calculated on a day to day basis from the due date down to the date of actual payment. Damages. 4. Costs. On the 15th of August 1995 an appearance was entered on behalf of the Defendant then Caribbees Hotel. On the 17th of August 1995 a defence was entered, - a tot denial of the Statement of Claim and it further stated that Caribbeea Hotel is not a legal entity capable of entering into contracts aJld:; contractual obligations and:Jrayed that the Plaintiff's claim be dismissed with costs. On the 21st September, 1995 the Plaintiff applied by Summons to amend the writ and Statement of Claim. The application was granted and "Caribbees Hotel" was deleted;;a:a the Defendant and the following were substituted: (1) First National Insurance Company Limited. (2) Wilfred Fletcher The amended Writ and Statement aim were served on two new, Defendants. The amended prayer is as follows: And the Plaintiff claims against the First Defendant, or in the alternative, from the Second Defendant.

1.L1,850.00 or the Eastern Caribbean Dollar equivalent at that date hereof.

2.Interest on the said sum at the rate of 3% per annum above Barclays Bank PLC's base rate from time to time calculated on a day to day basis from the due date down to the date of actual payment. ~ ~~ ~ \~-~ ~ ~~~.~ On the 6t.h December 1995 appearances were ent.ered on behalf oE ~ ;;?,"." t wo Defendants by different Counsel. The defence of the First Defendant i s a general denial of aLL ~ averments made by t he Plaintiff save t hat it i s a comp~ r egistered under the Commercial Code of St. Lucia. The gist of. t.he Second Defendant's defence i s that he acted on behalf of the Fi~ Defendant . On t he 8th February I 1996 a Summons to serve i nterroga tories OIL ~ First Defendant was filed, was granted on the 20th day of M~ 19 96 and the order was fi l ed on t he 21st March, 19 96. On t he 2m% of April 1996 an Affi davit i n answer to i nterrogatories was fi~em by the First Defendant and is hereby reproduced in i ts entire~ AFFIDAVIT IN ANSWER TO INTERROGATORIES I , NOEL CADASSE of Roc~ey Bay i n the Quart e r o f Gros I slet in the Island of St. Lucia ma~e oath and say as fol l ows:- 1 . That I am the Managing Director of the First Named Defendant_ 2. That the First Named Defendant was at a l l material t ime~ t.~ proprietor of the Parcel of land registered as '1049 F 226. 3 . That the First Named Defendant was duri ng the period 1993 to 1995 i n possession of t he parcel of l and buil ding erected. t hereon. 4 . That che First Named Defendant i s stil l in possession of the parcel of land referred to in the f i rsc interrogatories. That t he hotel known as "Caribbees Hotel " was during the- period 1993 to 1995 located on the parcel of land referred to in the first i nterrogatories. 6 . fhat the hotel known as "Caribbees Hotel" is not still lO'ti!aiteiJI on the said parcel of land. 7 . That "Caribbees Hotel" is unregistered as a limited liablli.tjf company or as a business name under the Commercial Code~ Chapter 244, Revised Laws of St. LUCla. 8 . That the second Defendant was at all materi~l times emplo~ as General Manager of "Caribbees Hotel." On the 16th April, 1996 the Plaintiff filed a Summons under Order 14 of the Rules of the Supreme Court 1970 for final j udgnteD1i!: against the First Defendant supported by an Affidavi t of MichaeL Bruce Garnet Gordon which I hereby reproduce. AFFIDAVIT I , MICHAEL BRUCE GARNET GORDON, Attorney at Law of Vi.g.ie •. Castries, Solicitor for the above-named Plaintiff, make oath ~ say as follows: 1. The Defendant FIRST NATIONAL. INSURANCE COMPANY LIMITED is,. and. was at the commencement of this action, j ustly and tr:'tlil.."lP" indebted to the above-named Plaintiff in the s~m of L1850 ~ interest at the rate of 3% per annum above Barclays Bank PLC's base rate from March 31st, 1994 until payment f or the value of services rendered by the Plaintiff pursuant to a contract between the Plaintiff and the said Defendant. The particulars of the said claim appear by the Statement of Claim in this, act.ion. 2. I am informed by instructions from the Plaintiff, correspondence and other documents, and verily believe that the said debt was incurred and is still due and owing as aforesaid. Copies of the correspondence and other documents ------_ ..... __ .". - to which 1. refer are now shown to me marked "MBGG 1" - ~ 13" and are exhibited hereto. 3 . I verily believe that the Defendant FIRST NATIONAL INS~ COMPANY LIMITED has no defence to this action. On 15th May, 1996 The Managing Director of the First Defenc::ia:Dcr filed an "Affidavit In Opposition to application for fi.na].. judgment. II AFFIDAVIT OPPOSITION TO APPLICATION FOR FINAL JUDGEMENT I I NOEL N. S . CADASSE of Rodney Bay in the Quarter of GnlSlF Islet in the Island of St. Lucia make oath and say as followa= 1. That I am the Managing Director of the First Named Defen~ herein. 2. That I am informed and verily believe that the Plaintiff i~ applying for final judgment in this action against the First Named Defendant only for the amount claimed in the State~ of Claim, with interest, if any, and costs.

3.That I am informed and verily believe that the basis of the Plaintiffs application i s the allegation that the First Name~ Defendant has no defence to this action.

4.That on the 19th day of December, 1995 the First Named:. Defendant filed 2. Defence to the Plaintiff I s Statement of. Claim and served the same on the Plaintiff's solicitors on the 20th day of December 1995.

5.That I verily believe that there are issues and or questions in dispute which ought to be tried. -... --- ----.--.-. -------- rta ,.~..:&, .-:'.-::-~~

6.That. in paragraph 1 of the Statement oE '::laim: the PlariiTJ*!!1rll1l'; pleads in the alternative and consequently a finding of ~ must be made as to which of the al ternati ve::i is the t:r:ue position be,fore a decision can be made against the First. all" Second Defendant.

7.In paragraph 3 of the Statement of Claim the Plaintiff cla~ that the Second Defendant was acting as agent of the F±~st: Defendant or on his own behalf. The First Defendant has denied agency and consequently the Plaintiff must estahl.is. which of the alternatives advanced is the true and cor.r~ position.

8.Again, in Paragraph of the Statement of Claim the Plaintiff I s allegation is that the Second Defendant was act:i:DJ.:a as the agent of the First Defendant or on his own behalE_ 9 . That by the Plaintiff's pleadings alone it is clear t hat t~~ is the legal issue to determine as to whether the S~ Defendant was acting as an agent or acting on his own behai1.f_

10.The First Defendant has pleaded in paragraph 5 of the Def~ that the Second Defendant did not have actual or appa:1teDE: authority to enter into contracts for and on behalf of the First Defendant. That this is an issue to be determined by this Honourable Court.

11.That the First Defendant has pleaded i n paragraph 6 of its Defence that the manner, in which the Second Defendant signed and or executed the said AdvertisemE::l.1t Order: i1e did not purport to do so far and on behalf of the First Named Defendant or any body else. That I am informed and verily believe that this an i ssue to be determined by this Honourable Court.

12.That the mere fact that the Plaintiff has pleaded its case in the alternative suggest that the Plaintiff is of the view that there are at least two (2 ) possible alternative interpretations to the set of facts upon which this case is: based and that if the Court was to determine the matter in the alternative plea, t he First Named Defendant would not be liable to the Plaintiff.

13.I verily believe that the First Named Defendant has a genuine defence to this action and that in the very least there are factual and legal i ssues to be determined, for example, (a) the existence of agencYi (b) the extent of the actual and or apparent authority in this case; (c) whether the agent purported t o act as agent or principal i n the particular instance.

14.I am informed and verily believe that the Plaintiff is not entitled to summary judgment under Order 14 and therefore ask t hat this application be dismissed with costs. On the 24th day of May 1996 the matter was heard in Chambers. Learned Counsel for the Plaintiff commenced her arguments by reading from her written skeleton arguments. She said that the application was made under Order 14 Rule 1 of the Rule s of the Supreme Court on the ground that the Defendant had no defence and quoted the cases of Mc. Lardy v Slateum 1890 24 Q.B.D 504 at 506 and Home and Overseas Insurance Co. Ltd vs Mentor I:n.au:.c'CUlce Co. (U.K.) Ltd (in liq) 1989 3 ALL ER Page 74 at page 77. "The purpose of Order 14 is to enable a plaintiff to obtain a quick judgment where there is no defence to the claim. If the defendant's only suggested defence is a point of law and the court can see at once that the point is misconceived the '''._ .. ifW 7" Iii: Plaintiff is enti tIed to judgment. If at first signt ~ point appears to be arguable but with a relatively short: argument can be shown to be plainly unsustainable the: plaintiff is also entitled to judgment ............... " She argued that though the amended defence appears t o raise points of law at first sight these points of l aw were plainly unsustainable and Counsel enume::-ated why she said so. She argued. that during the period 1993 to 1995 the First Defendant owned "Caribbees Hotel" a non-le3'al entity but contended that the buildings in which the business of "Caribbees" was being carried out were on land belonging to the First Defendant and t hat during the period noted above the said First Defendant was in possession of the said land and the buildings thereon. She contended that based on Article 369 of the Civil Cod. of St_ Lucia .1 the ownership of soil carries wi th it ownership of what is. above and what is below it ••.••••. " and "products they may yi. .. l.d,,· the:: argument that the First Defendant is not the owner of "Caribbees Hotel" is misconceived and unsustainable. She said that it was an undisputed fact t hat the Second Defendant was the General Manager of the "Caribbees Hotel" owned by the First Defendant and by applying the principle of Agency t~e conclusion to be arrived at is that the General Manager, the Second Defendant, had actual authority t o enter into contracts on behalf o f t he First Defendant trading as "Caribbees Hotel. " She argued that a Company not being a physical person acts through its agents and ~~oted Article 139 (1) (i) Commercial Code Chapter 244 of Law. of Saint Lucia Article 1605 of the Civil Code of St. Lucia and Chitty on Contracts Vol. 11 26th Edition Paragraph 2545. .''';",'';';--=;iiitll •••••••• She also quoted: Freeman and Lockyer (A Firm) VB Buckhurst Park Prop~i (Manga~) Ltd and another 1964 2 (,l.B. Page 480 a.t ~ 503. ~a She said that one hacl to ascertain whether a contract entered by an ~ agent on behalf of principal was made on the agent's own behalf o~ on behalf of the principal. She argued that in the case under discussion the agent contracted in the name used by his principal to carry on its Hotel business and not in his own name. Learned Counsel submitted that the Plaintiff may neverthelesa enforce the contract entered into by the Second Defendant on behalf of the First Defendant even if the Defendants were in breach of the' Business Names Ordinance and quoted Registration of Businesa HIla •• , Ordinance Chapter 247, s.10(1) (b). She concluded by stating that based on the above f the First Defendant's defence that it was not the owner of IICaribbees Hotellt at the time when the Second Defendant entered into the contract with the Plaintiff cannot be sustained in the light of its ownership and possession of the land and buildi~gs, where the business was carried out and that neither could the second limb of its defence be sustained since it is within the general authority of a General Manager to enter into contracts on behalf of a company. Learned Counsel for the First Defendant submitted that for the Plaintiff to succeed in the application it must be showed that points of law expressed and implied in the Defendant's defence are misconceived and that Learned Counsel's argument on behalf of the Plaintiff is a short one. He submitted that Order 14 was not intended: to be a det:ail.ea delivery of facts and comprehensive argument on points of Law. He contended that the mere fact that Counsel had to submit four (4 ). pages of legal argument supports the submission that the matter does not entail relatively short argument but t he contrary and therefore the case for the defence is sustainable rather than unsustainalJle. He said that the legal arguments as submitted by Learned Counsel for the Plaintiff are not matters to be dismissed summarilYi that Learned Counsel demonstrated by her submissions and arguments that this was a matter which i nvolves triable i ssues. In reply Learned Counsel for the Plaintiff said that t here is, a distinction between clear principles and vague points of l aw. CONCLUSION Having listened to the l egal arguments submitted by both Counse,l and bearing in mind the l'Affidavit in opposition to applicatiOD:;, for- Final judgment by Noel N.S. Cadasse filed on the 15th day of May 1996 (reproduced at Page 5 of this judgment). I t is my vie~that there are issues and questions in dispute which o4ght to be tried and t hat the matter cannot be disposed of under Order 14 of the Rules of the Supreme Court. My order is as follows: (1 ) The application is dismissed. (2) Costs to be costs i n the cause. ~~~~ .................

SUIT NO. 515 OF 1995 D’Auvergne, J Delivered: 20/11/96