Barbuda Light and Power Company Ltd v Hewlett et Al

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Lewis, C.J.,St. Bernard J.A.
• Judgment Date: 23 June 1972
• Neutral Citation: AG 1972 CA 3
• Docket Number: Civil Appeal No. 2 of 1972
• Date: 23 June 1972

Court of Appeal

Lewis, C.J.; Lewis, J.A.; St. Bernard, J.A.

Civil Appeal No. 2 of 1972

Barbuda Light and Power Co. Ltd.

and

Hewlett et al

Tribunal - Commission of Inquiry Act, Cap. 305 — Companies Act, ss. 95—100 — Whether Commission of Inquiry was null and void — Whether the investigative powers of the Commission were restricted by the Companies Act.

Practice and procedure - Interlocutory Injunction — Order 24, Rule 9 of Rules of the Supreme Court.

Facts: Evidence revealed that the Government was the principal shareholder and only debenture holder in the company which provided light and power for the country and was also constructing a hotel. Both services were abandoned by the Company and had to be taken over by the Government.

Facts: The issue was whether the trial judge erred in using statements from the Attorney General's Affidavit in deciding not to grant the appellants an injunction.

Held: In this particular instance, the Company could not claim that its affairs were private and therefore shielded from the scrutiny of a public inquiry. Appeal dismissed.

Held: Under the above rules of the Supreme Court the appellants should at least have made an application for an adjournment. However, no objection was made against using the affidavit at the hearing, and the appellants were barred from complaining post facto.

Lewis, C.J.

1 This is an appeal against an order of Louisy, J. refusing an interlocutory injunction to restrain the respondents from continuing to hold an enquiry and to take evidence by virtue of a commission issued to the respondents by the Governor on 17th February 1972, under section 2 of the Commissions of Inquiry Act. Cap. 305.

2 The matter arises in this way. The appellants are a public company incorporated under the Companies Act, Cap. 358 having their registered office in Codrington, Barbuda. On 17th February 1972 the Governor issued his commission in which he stated that he deemed it advisable for the public welfare that a commission should be issued an& appointed the respondents Commissioners “to inquire into and to investigate the financial activities and conduct of the” appellant company “from its inception to the present date”.

3 On 26th February 1972, the appellants issued a specially issued writ against the respondents. By paragraph 4 of the Statement of Claim they alleged that –

“the effect of the inquiry is to empower the defendants to investigate and inquire into the internal or private affairs of the company end that the Commissions of Inquiry Act does not authorise the issue of such a commission.”

4 They claimed a declaration that the said commission is null and void and an injunction restraining the respondents from continuing to act thereunder.

5 On 11th March, l972, the appellants took out a summons for an interlocutory injunction In an affidavit sworn on 11th March, 1972, Mr. McChesney George, the managing director of the appellant company, after referring to the writ and stating that a conditional appearance had been entered thereto, deposed as follows:–

4

The defendants have set on several occasions examining the official records of Government departments and, in particular, the Treasury relating to transactions with the plaintiff and its documents of incorporation (all of which are public natters) but on the 6th day of March 1972, a summons was issued a copy of which is annexed hereto and marked ‘X’ for the appearance of the witness therein named on the 8th day of March, 1972 before the defendants to give evidence. 5. The said witness appeared as directed and was asked and answered questions relating to the number of meetings of the Board of the plaintiff; the manner in which the meetings were conducted; the manner and form of the records of its decisions; the names and descriptions of persons present; the amount of fees received by the directors; the manner in which the plaintiff raised its capital and what was done with the money so raised; all of which constitute matters relating to the internal management, of the plaintiff's affairs. 6. The meetings of the defendants are held in public and some of the matters given in evidence were published as news through the information media of the Government of Antigua. 7. “Unless restrained the defendants intend to continue the inquiry and thus adversely affect in advance any rights which the Court may declare in favour of the plaintiff on the hearing of the action.”

6 On 13th March 1972 the respondents took out a summons to set aside the writ on the ground that it discloses no reasonable cause of action and is frivolous and vexatious. In support of this summons Mr. Louis H. Lockhart, Acting Attorney General, swore an affidavit, and this affidavit was read without objection on the hearing of the summons for the interlocutory injunction on the 14th March. Paragraph 5 of this affidavit is as follows:–

“The Governor has not been made a party to the action and the Commissioners are performing an authorised act namely an inquiry into the financial activities and conduct of the Barbuda Light and Power Company Limited which is a public company in which the Government of Antigua is the principal shareholder and only debenture holder and has made considerable advances to the Company and the Company is one whose activities included the operation of a power plant providing electricity for the ward Island of Barbuda and the construction of a hotel both of which projects have been abandoned by the Company and had to be taken over by the Government.”

7 Louisy. J. held that as the Government of Antigua had used public funds to participate in and make advances to the appellant company its financial affairs and conduct were a public affair, and that the commission was valid. He further held that the provisions of section 5 of the Companies Act, Cap. 358, which empower the Governor to appoint inspectors to examine the affairs of a company upon the application of members holding one-fifth of the share capital, do not preclude the appointment of a commission under the Commissions of Inquiry Act. He concluded that “there is no serious question to be tried at the hearing” end refused the application.

8 The appellants have appealed on two grounds –

• (1) error in concluding that there was no serious question to be tried at the hearing;

• (2) that the judge ought not to have used the statements in the affidavit of the Acting Attorney General to ground his decision for the following reasons–

  • “(a)The affidavit was in support of another application and no advanced notice was given of intention to use it on the hearing of this application; and

  • (b)The statements were not vouched for by exhibits or otherwise and ought not to have been accepted but left for investigation at the trial;

  • (c)Alternatively, if the Learned Judge intended to base his order upon the affidavit, an opportunity ought to have been given to the appellant to file a count or affidavit.”

9 Dealing with the second ground first, the simple answer is that no objection was taken at the hearing of the summons to the use of the affidavit when application was made to read it, nor was an opportunity sought to file a counter affidavit. Learned counsel for the appellant, stated that his clients were in possession of the affidavit on the morning of the 14th March before the hearing begun but were taken by surprise by the application to use it as paragraph 6 of the affidavit stated that it was intended to use it on the hearing of the summons to set aside the writ. One would have thought that in these circumstances, if the affidavit contained statements which either were not admitted or called...