14 years after the collapse of Clico, issues involving the largest insurance conglomerate in the Caribbean are still the subject of litigation in court hearings in Grenada.
High court judge Agnes Actie has just delivered a judgment in a case involving CLICO INTERNATIONAL LIFE INSURANCE LIMITED (Under Judicial Management) and EASTERN CARIBBEAN HOME MORTGAGE BANK.
The issue at stake is 20, 000 shares that Clico had deposited with the bank.
Thousands of persons in Grenada and the Eastern Caribbean have lost millions of dollars in the Clico debacle which is the worst financial shock experienced in the region for decades.
As a public service, THE NEW TODAY highlighted the Justice Agnes Actie ruling on the matter:-
Legal Analysis
[16] The sole issue arising is whether the claimant has jurisdiction to bring the claim against the defendant and to collect the dividends accrued and to deal with the shares.
[17] The sum due and owing as dividends is not in dispute. The only dispute raised by the defendant is the claimant’s jurisdiction to pursue the claim pursuant to the order made by Wilkinson J. The defendant contends that the court’s order giving extra territorial jurisdiction to the claimant to pursue the claim is ultra vires.
[18] The defendant’s contention involves three issues. Firstly, that the order of Wilkinson J. is ineffective, secondly the claimant has no locus standing to bring the action for the payment of the dividends, and thirdly the grounds for the claim should fail as this court does not have the jurisdiction to grant the reliefs claimed by the claimant.
[19] It is a well-founded and established principle that a court order, at least until it is set aside by a subsequent order, is to be treated as effective in law. This is because of the well-established rule by the Privy Council in the seminal case of Isaacs v Robertson where it is stated that “an order made by a court of unlimited jurisdiction … must be obeyed unless and until it has been set aside by the court”.
[20] In the case of Isaacs v Robertson, Lord Diplock pronounced that:
“The contrasting legal concepts of voidness and voidability form part of the English law of contract. They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular, it can be set aside by the court that made it upon application to that court; if it is regular, it can only be set aside by an appellate court upon appeal (if there is one to which an appeal lies).”
[21] The order of 11th April 2011 made by Wilkinson J. in The Registrar of Insurance et al v Clico International Life Insurance Limited authorized the Judicial Manager as an officer of the court to act in Saint Lucia or any foreign jurisdiction where he believes assets and property of the Company may be situated, and to have the right to bring any proceeding or action locally or in any foreign jurisdiction for the purpose of fulfilling his duties and obligations.
[22] The filing of this claim in Grenada is made pursuant to that order. Further, Smith J. in the same claim on 19th November 2018, empowered the Judicial Manager to take all steps as are necessary to recover the dividends due to CLICO from the defendant.
[23] The order of Smith J. is clear on the authority which the claimant possesses in relation to collection of dividends on the Shares. This authority is coupled with the direction of the court in the St . Lucia claim that relief be sought through the courts of Grenada, and the non-contest of the defendant as to the claimant’s entitlement to the dividends.
[24] The challenge to the court’s jurisdiction now being raised as a defence should have been raised in the proceedings before Wilkinson J. when the order conferring the authority of the Judicial Manager was made, and before Smith J. when the court directed collection of the dividends and the sale of the Shares by the Judicial Manager and also by the defendant in the claim before St. Rose Albertini J in Claim Number SLUHCV2019/0087 Clico International Life Insurance Limited (in Judicial Management) v Eastern Caribbean Home Mortgage Bank.
[25] Even if the court did not have jurisdiction, which is not admitted, it is not now open to the defendant affected by the order in this claim to challenge the court orders as a defence to the claimant’s claim. Whenever a judge makes an order, it must be taken implicitly that the judge had jurisdiction to make it. If the judge is wrong or makes an error whether of law or fact it can be corrected by an application to set aside or the Court of Appeal. The aggrieved party has the option to either apply to set aside the order or appeal.
[26] A party cannot in a subsequent proceeding raise a ground of claim or defence which upon pleadings or form of the issue was open to him in the former one.
[27] It was always open to the defendant affected by the orders to apply to set aside the order. As long as the order of the court remains in force, the defendant cannot effectively challenge the order to deny the claimant from bringing the action. Further, the dicta of Lord Diplock in Rochdale Metropolitan Borough Council v KW are consistent with principles of finality and certainty which are necessary for the administration of justice5. After having gained authority in the two orders of the High Court of St. Lucia to collect dividends on the Shares and being directed to pursue the said dividends in the High Court of Grenada, this court is constrained to allow the claimant’s claim to proceed.
Whether the claimant is entitled to the dividends
[28] The pledge was signed by the claimant with the Registrar of Insurance as a deposit to satisfy its insurance business in Saint Lucia. It is to be assumed that the shares pledged and accepted by the Registrar of Insurance at the time were owned by the claimant and considered as its assets. The Judicial Manager appointed by the court to administer the affairs of the claimant in Saint Lucia rightly anticipates that he has the power to deal with the claimant’s assets as well as its liabilities, in keeping with his mandate, upon his appointment by the court.
[29] The defendant alleges that the shares were owned by Clico Barbados and that it is the Judicial Manager in Barbados that has jurisdiction to claim the dividends. The defendant has not provided any textual basis for such purported restriction of the Judicial Manager to deal with the assets of the claimant, in relation to its business in Saint Lucia. Assets which had been deposited as part of the insurance fund would have been considered as the claimant’s assets for its business in Saint Lucia, unless otherwise agreed.
[30] The pledge with the Registrar of Insurance was set aside only because the shares pledged did not form part of the recognizable assets in the schedule of the Insurance Act. Had the shares formed part of the schedule of recognizable assets, then the Registrar of Insurance would have had jurisdiction to benefit from any dividends from those shares, if it became necessary to utilize the funds forming part of the claimant’s capital. The payment in respect of the dividends on the shares are deemed to be payment out of the claimant’s capital.
[31] A shareholder has a right to follow its assets wherever they are located and bring the necessary actions to enforce its rights. This inherent right was conferred upon the Judicial Manager by the court. It is not disputed that the claimant pledged the shares to the Registrar of Insurance in Saint Lucia for the conduct of its business in Saint Lucia, and the underlying purpose of the pledge was clear. In any event, the Pledge over the 20,000 F Class shares has been discharged and the shares have been released to the Judicial Manager, who is authorised to deal with them.
[32] The conduct of the parties, that is the Claimant and the Registrar of Insurance took place on the basis of a state of affairs namely that the claimant owned the shares pledged as money value for its insurance business in Saint Lucia. This would be on the guarantee given by the claimant at the time, that the shares formed part of its assets. The transactions took place on the basis of that assumption, and their course was influenced by it in the sense that, if the assumption had not been made, the course of the transactions would without doubt have been different.
[33] The conduct of the claimant and the Registrar of Insurance was agreed and assumed by both parties to be true and on the basis of which they had entered into the pledge transaction. The conduct of the parties gave rise to an estoppel by convention which estopped each party as against the other from questioning the truth of the facts assumed by them to be true.
[34] Spencer Bower and Turner on Estoppel by Representation states:
“When the parties have acted in their transaction upon the agreed assumption that a given state of facts is to be accepted between them as true, then as regards that transaction each will be estopped against the other from questioning the truth of the statement of facts so assumed.”
[35] The defendant’s assertions that it is the Judicial Manager appointed in Barbados to pursue the payment of the dividends, is not supported by the evidence before this court. No evidence was produced from the Judicial Manager, (Barbados) in the form of a witness statement or affidavit to persuade the court. There is no question that the Shares are the property of the claimant and having pledged these shares as security with the Registrar of Insurance to conduct insurance business in Saint Lucia, it is clear that this asset was intended to benefit the claimant’s business in Saint Lucia.
[36] The pledge in favour of the Registrar of Insurance having been discharged, therefore it is axiomatic that the unencumbered shares have reverted to the claimant. Reading of the two orders together, they have clearly conferred jurisdiction to the Judicial Manager to pursue this claim and to deal with the shares and dividends, including selling the shares.
[37] The claimant having satisfied its claim on a balance of probabilities is entitled to the reliefs claimed and judgment is entered accordingly.
Conclusion
[38] The court orders and declares as follows:
(1) Judgment is entered in favour of the claimant.
(2) The claimant acting through the Judicial Manager, Richard Surage, appointed by the High Court of Justice of Saint Lucia is entitled to the 20,000 Class F Shares owned by the claimant in the defendant and to deal with the shares and may sell for such sum and under such terms as the Judicial Manager shall think fit, subject only to the Bye-Laws of the defendant, the Eastern Caribbean Home Mortgage Bank Agreement Act Cap. 85B of the 2010 Continuous Revised Edition of the Laws of Grenada and the Companies Act Chapter 58A of the Laws of Grenada.
(3) The dividends due and owing to the claimant by the defendant on the 20,000 Class F shares numbered 074563 to 094562, for financial years 2011 to 2019 shall be paid to the claimant, together with interest at the rate of 6% per annum from the date judgment until payment in full.
(4) Costs agreed in the sum of $75,000.00 to be paid by the defendant within Sixty (60) days of today’s date.
Agnes Actie
High Court Judge
By the Court
Registrar