Republic Bank Ltd (as Trustee) v Colonial Life Insurance Company (trinidad) Ltd et Al

JurisdictionTrinidad & Tobago
JudgeLucky, J.
Judgment Date10 January 1996
Neutral CitationTT 1996 HC 16
Docket NumberNos. 2031, 2027 and 2403 of 1995
CourtHigh Court (Trinidad and Tobago)
Date10 January 1996

High Court

Lucky, J.

Nos. 2031, 2027 and 2403 of 1995

Republic Bank Limited (as Trustee)
and
Colonial Life Insurance Company (trinidad) Limited et al

Mr. Solomon S.C., Mr. Armour and Mr. Bisnath for the plaintiff

Mr. Martineau S.C. and Mr. F. Hosein for the defendants

Injunction - Continuation — By summons plaintiff sought the continuation of injunctions which were granted ex parte by Jones, J — Injunction restraining CLICO from doing acts such as the disposing of securities which were purchased from the Trinidad and Tobago Electricity Commission Pension Plan and that Viveka be restrained from dealing with shares in the Republic Bank Limited purchased from the said plan on the Trinidad Stock Exchange — Whether there was a serious question to be tried — American Cyanamid v. Ethicon Ltd [1975] A.C 396 — Court found that there were not serious issues to be tried -Damages would be an adequate remedy if injunction were discharged and plaintiff was successful at trial — Summons to continue ex parte injunctions was dismissed and injunctions discharged.

JUDGMENT OF THE COURT:
1

By consent the parties agreed to proceed as follows on the summons of the 16th June 1995:

  • (i) The parties should file and exchange written submissions on or before 26th October, 1995.

  • (ii) The parties should file and exchange written responses to written submissions on or before 9th November 1995.

  • (iii) Limited oral submissions from the parties to be heard on the 16th November 1995, and 23rd November (commencing 9 a:m), counsel agreeing to the following guidelines with respect to such limits: (a) For each defendant one(1) hour.(b) For the plaintiff three(3) hours, inclusive of reply.

  • (iv) The section 100 application (2403/95), to strike out the proceedings, to follow; with further directions that may be applied for.

History:
The Parties
2

The plaintiff Republic Bank Limited, “the Bank”, is a public company engaged in the “business of banking”. It also carries on the business of professional trusteeship. The bank is the appointed trustee of the Trinidad and Tobago Electricity Commission Pension (the Pension Plan).

3

The first defendant, Colonial Life Insurance Company (Trinidad) Limited (Clico) is an insurance company. It is wholly owned by C. L. Financial Limited, the holding company for several companies.

4

The second defendant is Viveka Holdings Limited (Viveka). Lawrence Duprey, the chairman of Clico, and Andre Monteil are two of five shareholders/directors of Viveka. The other directors, Claude Musab-Ali, Kerston Coombs and Michael Fifi are also directors of C.L. Financial Limited and Clico.

5

The third defendant is Andre Monteil. He is an Executive Director, Trustee and Financial Comptroller of Clico and C.L. Financial. He is also a director of Viveka. He is the Chairman of Trinidad and Tobago Electricity Company (T&TEC) and Chairman of the Management Committee of the T & TEC Pension Plan.

6

The fourth, fifth, sixth, seventh, eight and ninth defendants Hakeem Ahmad, John Commissiong, Patrick Rambert, Sylvester Ramquar, Harrison Thompson and Halcyon Rouse are members of the Management Committee of the Pension Fund.

The Decision and Sale
7

On 24th February 1995 the management committee decided to sell the entire portfolio of the pension plan. The portfolio comprised shares in Angostura Holdings, Bank of Nova Scotia Trinidad and Tobago Limited, Royal Bank of Trinidad and Tobago Limited, West Indian Tobacco Company Limited and a sizable quantity of shares in Republic Bank. Mr. Monteil declared his interest and took no part in the decision (see minutes of the meeting).

8

On 10th March 1995 the entire portfolio of the pension plan which included $54,337,046.88 million worth of Republic Bank shares was offered for sale on the stock market. Viveka bought all the Republic Bank shares and Clico bought $85,100,393.96 worth of the rest.

Management of the Pension Plan
9

The Trinidad and Tobago Electricity Commission (the commission) established the plan by a trust deed which provides for a management committee and trustees. Both are separate entities.

10

The bank's duties are to manage and administer the plan at the expense of the commission; in accordance with the directions of the committee to pay or to arrange to pay persons entitled thereto the pensions and benefits provided by the plan and the rules; and to comply with the provisions of the trust deed and rules and with any laws for the time being affecting the establishment or management of pension plans.

11

It is apparent that the interpretation and application of the provisions of the trust deed are of paramount importance in determining this matter.

The Application
12

By summons dated 16th June 1995 and filed on 20th June 1995, the plaintiff seeks to continue the following injunctions which were granted ex parte by Jones J:–

  • “(1) That CLICO be restrained from doing (whether by its directors or by its servants or agents or any of them or otherwise howsoever) the following acts or any of them that is to say of disposing or dealing with the securities (specified in the summons) which were purchased from the Trinidad & Tobago Electricity Commission Pension Plan on or about March 10,1995 on the Stock Exchange of Trinidad and Tobago or other assets now or anytime hereafter representing the same respectively.

    That Viveka be restrained from doing (whether by its directors or by its servants or agents or any of them or otherwise howsoever) the following acts or any of them that is to say;

    • (a) disposing of or dealing with securities namely 5,731,756 shares in Republic Bank Limited, purchased from Trinidad & Tobago Electricity Commission Pension Plan on or about March 10,1995 on the stock exchange of Trinidad and Tobago or other asset now or anytime hereafter representing the same respectively.

    • (b) from taking any steps or any further steps to cause the said shares to be registered in its name in the register of shareholders of Republic Bank Limited or to cause the share certificates with respect thereto to be issued to it.”

The Evidence:
13

The evidence is set out in the following affidavits –

14

Affidavit of Gregory Ian Thomson sworn to on the 16th June, 1995 and filed on the 20th June, 1995 with the exhibits thereto (filed on behalf of Republic).

  • (2) Affidavit of Margaret Chow sworn to and filed on the 22nd June, 1995 with the exhibits thereto (filed on behalf of Clico).

  • (3) Affidavit of Margaret Chow sworn to and filed on the 23rd June, 1995 with the exhibits thereto (filed on behalf of Clico).

    Affidavit of Louis Andre Monteil sworn to and filed on the 23rd June, 1995 with the exhibits thereto (filed on behalf of the third named defendant).

    Affidavit of John Commissiong sworn to and filed on the 23rd June, 1995 with the exhibits thereto (filed on behalf of the fifth named defendant).

    Affidavit of Sylvester Ramquar sworn to and filed on the 23rd June, 1995 with the exhibits thereto (filed on behalf of the seventh named defendant).

    Affidavit of Harrison Thompson sworn to and filed on the 23rd June, 1995 with the exhibits thereto (filed on behalf of the sixth named Defendant).

  • (8) Affidavit of Patrick Rambert sworn to and filed on the 23rd June, 1995 with the exhibits thereto (filed on behalf of the sixth named defendant),

  • (9) Affidavit of Halycon Rouse was sworn to and filed on the 23rd June 1995 with the exhibits thereto (filed on behalf of the ninth named defendant).

  • (10) Affidavit of Lydia Mendonca sworn to on the 23rd June, 1995 and filed on the 26th June, 1996 (filed on behalf of Republic).

  • (11) Affidavit of Gita Sakai sworn to and flied on the 26th June, 1995 with the exhibits thereto (re-sworn and re-filed: see (15)] (filed on behalf of Viveka).

  • (12) Affidavit of Victor Mouttet sworn to and filed on the 26th June, 1995 with the exhibits thereto (filed on behalf of Republic).

  • (13) Affidavit of Victor Mouttet sworn to and filed on the 26th June, 1995 with the exhibits thereto (filed on behalf of Republic).

  • (14) Affidavit of Peter Clarke sworn to and filed on the 26th June, 1995 (filed on behalf of Republic).

  • (15) Affidavit of Gita Sakai sworn to on the 5th June, 1995 and filed on the 7th July, 1995 with the exhibits thereto (filed on behalf of Viveka).

  • (16) Affidavit of Gita Sakai sworn to and filed on the 7th July, 1995 with the exhibits thereto (filed on behalf of Viveka).

  • (17) Affidavit of Gita Sakai sworn to and filed on the 10 th July, 1995 with the exhibits thereto (filed on behalf of Viveka).

  • (18) Affidavit of Margaret Chow sworn to and filed on the 14th July, 1995 with the exhibits thereto (filed on behalf of Clico).

  • (19) Affidavit of Victor Mouttet sworn to and filed on the 17th July, 1995 with the exhibits thereto (filed on behalf of Republic).

  • (20) Affidavit of Alvin Johnson sworn to on the 14th July, 1995 and tiled on the 17th July, 1995 with the exhibits thereto (filed on behalf of Clico).

  • (21) Affidavit of Wendy Hoyte sworn to and filed on the 19th July, 1995 with the exhibit thereto (filed on behalf of Viveka).

  • (22) Affidavit of Wendy Hoyte sworn to on the 19th July, 1995 and filed on the 20th July, 1995 with the exhibits thereto (filed on behalf of Viveka).

  • (23) Affidavit of Sylvester Ramquar sworn to and filed on the 19th July, 1996 with the exhibits thereto (filed on behalf of the third, fourth, fifth, sixth, seventh, eight and ninth defendants).

  • (24) Affidavit of Christine Morrison Joseph sworn to and filed on the 19th July, 1995 with the exhibits thereto (filed on behalf of the third, fourth, fifth sixth, seventh, eight and ninth defendants).

  • (25) Affidavit of Victor Mouttet sworn to and filed on 20th July, 1995 with the exhibits thereto (filed on behalf of Republic).

  • (26) Affidavit of Gregory Ian Thomson sworn to and filed on the 25th July, 1995 with the exhibits thereto (filed on behalf of Republic).

  • (27) Affidavit...

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