In The Matter Of Caribbean And Overseas Trust Bank Limited

2.3 SAINI' VINCENf AND 1HE GRENADINES IN 1HE HIGH OOURT OF JUSITCE (CIVIL) A.D. 1991 SUIT 00: 306/1991 Mr.. Don.-ud Browne for Petitioner Mr. Brian Cottle for Trust Authority FINDll'lG: The Petitioner, A'ltonia N:i.mo::m .~:ragao F4,>uei.ra DeFreitas, filed a petition on 4th July, 1991, praying that the name of Caribbean and Overseas Trust Bank Limited (the Caupany) may be restoroo to the Register of Canpenies: that the Canpany be eranted a certificate of revival, and for such other order as the Court shall dean fit. The Comp.:my was incorporated in May 1979 under the International Ca:panies Act, 1976 {now the Internatiomll CalJpmue.q Act No. 12/1~B2 (The l~t). On 18th Juo<:., 1985, the petitioner, c creditor of the CatJt.ony t obt..'.li.ned n j~t in tlus Court against the Company in the sun of us $252,447.22 with interest thereon ond costs. On 31st f>ecem1x!r, 1934, the Scd.nt Vincent Trust Authority (nU} Authority) rLl(!Ucsted the Registrar of Companies ('lhe Registrar) to cancel the ('.aopm1Y·s rep,istration by virtue of section 25(2)(c) of the Act, when the canpany failed to ,~ p.'3ytnent of its annual licence fee on time. tlllc •••

-2­ The request for cancellation was acceded to in 1935, at \1hich date the Q.xnpany had paid up all arrears of licence fees t.o th<~ Authority. On 17tl1 December, 1987, an application was made to the Registrar for revival in accordance with Section 2G of the .Act. Tne Registrar forwarded this applicatioLl to the Authority oot the latter did net e:cant the applic.."ltion. Another ~pplication was I1'Iade direct to the Authority on l~tll Deceffieer, 1939. Again tl1e Authority declined to accede to this request. lhe matter was brousht to the attention of the Registrar and, on 12th J"u1y, 1990, another npplication for revival was made to the Authority. No response was recci.ved. In response to a letter dated 4th O:.tober, 1990, to the Authority, n reply dated 5th CCtober, 1990, was rcceivrxl refusing the cpplication. 'Ibis was followed by a letter dated 17th O:.tober, 1990, fran the Board of Directors of the. Authority denying the awlication for revival. No reason for the refusal for revivnl W1.lS given in these letters am the petitioner's solicitor wrote to the Ocirman of the Bom:d of Diro::.tors on 23J:d <k.to'ber, 1990, asldIl8 thot the reason for refusal be given. No reply b.-':lS been received by the solicitor. '.lbe petitioner in tho petition states that he was not aware at any time that proceedings were h?..ine tr.kCIl with a vi(''W to striki.ne the Ct:mpmy's n~ fran the Register of Canpanies, nor was he aware tl1et OIly prcceedings hod 1x.~ taken to cancel the registration f.l.Ild to strike the ccmpany' S Dane fran the Register tmtil he sousht to enfo:rce the jl.ldgaIKmt in respect. of SUDS it had deposited with the Ccmp.:':u:ty. /Dl<;•• ct.

-3­ 1ho P~titiooar states that the Ccmpany is J:X>S5'lSsed of assets in various ~ of the world and that it is just am equitable that the caopany be revived and its naoo restored to the Registe to enable the petitiouer to awly for a winliIlg up onler in order to tr:ac:.e the ccmpmy's assets wb:i.clt are scattered in different parts of the world. I accept that the petitionex: is n ere.{iter of the canpeny to the ti.aoo:of U5$252,447.22 with interest and costs thereon. Cbunse1 for the petitioner subnitted tbat section 28 of the Act provides fer revival of ccmpanies in r.ertain cases, rut that the instarees in ",irl.ch revival can t.ake place has not been specified. CJtmsel argued that the Authority is a statutory oothority p::rforming a judicial function an:l that it IlIJSt confotm with the rules of natural. justice. 11& cited Dc Smith Jtili.cial Review of Muinistmtiw J\ction page 70 and Itidgu v Baldwin (1963) 2AER Page 108. FUrther, Counsel areued, our legislation is silent on the question of restoration of Canpanies, and the Court IWSt look to the Unital Kinsdcm legislation, Section 353 (6) of the ~es Act, 1948. 0:1UDScl. for the ,-- 'JSt Authority contendf.!Cl that the Petitionar is not urrJne upon the Ux.rrt tha.t the petitioner was not given an ot-t:.ortunity to be bean:.!, rut that it ncrely says that reasons were not r;iven for the refusal. to restore to the Rep.istar. 'Ihe Q)urt, he subnitted, DlJSt consider tbe npplication before it. UulSe1 subnittErl t..~!t no indication is gh"t..'l1 to the UJurt as to whether Sec. 353 (6) of the United 1{j.D&d:m Act is awlicab~'1 here, mrl, in any event, that section enables restoration of a canprn:Iy in conjunction with a petition to wine! up. Sc..:>e OJDbrldge QJffoo Association Limited (1952) 1 Am 112.

Q.;unse1 b.n:L~ ::;ulmitted that tl~e is not sufficient ~is I?rovided to the Court to Cl18blc the CDurt to ;3X".:mt t.hc relief sought. I an of the view t:lnt wtl,;%e our l~]isL"lUon is sllent or lIrlkes no 1-1t"ovision for a particular situation, the prtJVi.sions of the U.K. lE:[.';islaticn apply. This is providel fer ty the West .lilies Associntoo Stlltcs Strj;>ra~ Cctn:t (StUnt Vinceut) Act. 1970 No. 8 of 1970" s~ti('.;n 11 which reads: '''lhe jurisdiction vestee! in the 11if11 Q)urt in Civil lJE'ccee::lings, .::.nd in ProtXlte, Di-.1Qrce arid i'btrimonial causes, sr.all Le ~crc.ised in accol.cmc.e with the ProvisionB (Jf this l.et and. any other lnvl in z)l:;eratLm in 3...".:lnt Vi.ncent and. rules nf Ccurt .::ud where no 5f-£.Ci.ci. prl;vision is tIler'ein contained such jurisGicticn sMll l:e exen:isl.\.1 00 l1eIlrly as Iilc'1Y be i.ll confnrmity with the Irn'l anI practi.('~ a.(\ninisterea. for thE! time being in the UO:, h t f J t' ." 1 , II u ....s cour 0 US:L~ III .B aIK,. The reh;vant section ill the U.K. Ccm.'t\'IDies l\ct is 353 (6) Which is as follows: ..: (l ccmr~my ur OIlY manber cr crl.:.0itor thercQf feels Ofl',!.'i(~-eC by the CnIr..xmy hnvi.rJr; Leen stulCk off the rep.iatcr, the Q'llt't on an 8r;pliCc"ltion l1II:lde by th(:: Ci:lni:..:my o.r manL-er or creditor More t.he ("..xpixation of t\Mlty yevrs frcm the [:.ublicntion in the GazGtte of the ty,)ticc aforos.i.i.G m::y, if satisfied t:hc.t the catJI:.:eny Wt.lS nt tile time of the strinng off Cl.u:ry:i.n::. on business ur ill f)~;erctiC'l'l, or otllerwise that it is ju.qt that the caap:myLc rcstorec1 to the register, 0"Tder the n::s1lC of t.."'1c ~~ny tc I.e rcstor.eG to tl:K.! register, and u;:on nIl offie.e copy of the oreler bc~i.u(; (1cliver€d to the ReGistrar for registration the c..mp~ny shall 1x2 (}e(tllt?,.l tc havr.: continua:! in existence Cla if its n'D!:;! n'ld net oc''crl ntruck off; nJl:l tlx:! iliurt los scan.....

as seem just for placinG the (bupany m1d all other persons in " tha s.-~ J..X)Sition as nearly e.s may 00 as if tbe limle of the <hnl:ony haG not 1xat sb:uck off." I consider that it ls just that the c.unrcny be restored to the Register of U:cnradcs, and I grant the prayer of the l;~tition. I orucr thnt (1) the nnmc of Cnri::.:.:'~n nnu OverSellS Trust Bank Limited 00 l.'"eSt':::ral to the Register of \...c:lI1f>aIlics. (2) tbe said Q:;mpany be: grnnta! ~ Ccrtific~te of Revivnl.. I llI;o108i~c fer th(! delay in (1f....1h""Crin~3 the FincJing. Both ccunsel o'l[7;?rcciaw the pcsition, I tlLl sure. I eaw rrlority to the Lmd /1l'A}llisition (cotter. 17th Nov-Gnber, 1991.

SUIT No. 306 of 1991 Joseph J Delivered: 17/11/91