Jamaica Gasolene Retailers Association v Gasolene Retailers of Jamaica Ltd

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Mangatal J
• Judgment Date: 10 July 2012
• Neutral Citation: [2012] JMSC Civ 63
• Docket Number: SUIT NO. E 407 OF 2001
• Date: 10 July 2012

[2012] JMSC Civ 63

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO. E 407 OF 2001

Between

Jamaica Gasolene Retailers Association

Claimant

and

Gasolene Retailers of Jamaica Limited

Defendant

Mr. Garth McBean and Mr. Lancelot Cowan instructed by Lancelot Cowan & Associates for the Claimant.

Mr. John Graham and Miss Petagaye Manderson instructed by John G. Graham & Company for the Defendant.

Trade union — Whether trade union can sue in registered name when claiming beneficial interest in property or whether trustees must bring claim — Gift —Resulting trust

Court's Power to Revisit or reopen Judgment When Draft Judgment Delivered but Formal Judgment Not Yet Drawn Up, Perfected, Signed or entered in the Judgment Book and Sealed—Further Submissions made on Memorandum and Articles of Association handed up to Court after all of the evidence was presented and after closing submissions — Court's attention not drawn previously to particular Article

Mangatal J

1 The Claimant the Jamaica Gasolene Retailers Association ‘JGRA’ is registered as a trade union under the Trade Union Act. JGRA is also an organization registered under the Industrial and Provident Societies Act.

2 The Defendant Gasolene Retailers of Jamaica Limited ‘GRJ Ltd.’ is a limited liability company which was duly incorporated under the Companies Act.

THE NATURE, OBJECTS, AND COMPOSITION OF THE JGRA

3 A trade union is an unincorporated association of persons that owes its legal validity to the Trade Union Acts — Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1901] A.C.426, per Farwell J. pages 427-428. The Trade Union Act of Jamaica defines a ‘trade union’ as meaning ‘any combination whether temporary or permanent, the principal purposes of which are, under its constitution, the regulation of the relations between workers and employers, or between workers and workers, or between employers and employers, whether such combination would or would not, if this Act had not been enacted, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade’.

4 At pages 428-429, of the Taff Vale decision, Farwell J. quoted from Sir George Jessel in Rigby v. Connol (1880) 14 Ch. D. 489, who described the object and limitations of the Trade Union Act of England, which was in terms similar to our own. Farwell J. in this leading decision also made his own discerning comments :

The object and the limitations of the Acts were stated by Sir George Jessel in Rigby v. Connol as follows: ‘That Act, no doubt, was passed primarily with a view to preventing the treasurers and secretaries and officers of these societies from robbing them; that was the chief object. It was discovered that some of these men, abusing the confidence reposed in them, took advantage of the law which made these societies illegal, by appropriating their funds and property to their own use. That, no doubt, was one of the principal objects and therefore the Act was passed to get at these men. Another object was this: there was a great difficulty in suing and getting their property from third persons, and one object of the Act was to enable these societies to sue in respect of their property, and also to enable them to hold property, such as a house or office, but it was not intended that the contracts entered into by the members of the society should be made legal contracts inter se, so that Courts of Justice should interfere to enforce them. If that had been intended, the result would have been this, that an agreement between a number of workmen once entered into, compelling them to work in a particular manner, would have been enforceable according to law, and to a certain extent would have reduced some portion of the workmen to a condition of something like serfdom and slavery. Of course the Legislature, by interfering, had no idea of doing anything of that sort.’ But these limitations merely restrict the actual enforcement of trade union contracts by action or suit, and do not affect the question of the status of the association to which such members belong. Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an association that it is unknown to the common law. The Legislature has legalized it, and it must be dealt with by the Courts according to the intention of the Legislature.

5 The Constitution of the JGRA was one of the documents comprised in an agreed bundle of documents. Amongst the objects of the JGRA stated in its Constitution are the following:

4….

• (i) To regulate the relations in the Gasolene Retailers' business between employees and employers.

• (ii) To promote and protect the legitimate trade interests of its members by such lawful means as may from time to time seem expedient, ….

6 Provision 5 of the Constitution deals with the question of membership and it will be seen that there are several types of membership, including ordinary, associate, social and honorary membership. However, general membership and ordinary membership are delineated as follows:

5. (i) Any person, firm or company who shall desire to become a member of the Association shall make an application in writing in such form as the Committee shall from time to time prescribe and shall be investigated by two members of the Association and upon acceptance by the Committee shall be admitted a member of the Association. Every such person, firm or company shall thereupon become subject to the rules of the Association and shall be deemed to have agreed to be bound by and to observe the same.

(ii) The membership shall be categorised and shall be comprised as follows:

(a) Ordinary membership

Persons, firms or companies owning and/or operating petrol stations, or their nominated representatives, who shall be entitled to all the privileges of membership.

7 The management of the JGRA is dealt with in Provision 10. 10(i) and (ii) read as follows:

10. (i) The management of the Association shall be vested in a Committee of Management which shall have full power to act in the name of the Association.

(ii) The Committee shall consist of a President, First, Second and Third Vice Presidents, a Treasurer (hereinafter referred to as ‘Officers’) the immediate Past President, and five ordinary members who shall continue to act until their successors are appointed. Retiring members of the Committee shall be eligible for reelection.

8 Provision 12 deals with property, 13 with Trustees, and 18 with dissolution. They provide as follows:

PROPERTY

12. All moneys belonging to the Association shall be received by the Treasurer who shall thereupon pay all moneys as instructed by the Committee. So much of the funds of the Association as may not be wanted to meet the usual accruing liabilities may at the discretion of the Committee be placed on deposit at a Bank, used for the purchase of property of any nature including real estate, motor vehicles, machinery and equipment or invested in any security authorised by law for the investment of trust funds in the name of the Trustees of the Association.

TRUSTEES

13. (i)There shall be three Trustees of the Association .

(ii) Any Trustee may at any time be removed and a new Trustee appointed by a general meeting of the Association.

….

DISSOLUTION

18 …

(iii) Upon the dissolution of the Association the property of the Association not consisting of money shall be sold and the proceeds together with so much thereof as shall consist of money shall be applied in satisfaction of the debts and liabilities of the Association and subject thereto shall not be paid to or distributed among the members of the Association but shall be given or transferred to some charitable institution or institutions which shall prohibit the distribution of its or their income among its or their members such institution or institutions to be determined by the members of the Association at or before the time of dissolution or in default thereof by such Judge of the Supreme Court as may have or acquire jurisdiction in the matter and if and so far as effect cannot be given to the aforesaid provision then to some charitable object.

THE CLAIM

9 In its Amended Statement of Claim, JGRA avers that in 1975 the Government of Jamaica granted a 5 cent per gallon increase in the price of gasolene. From this 5 cent increase, 1 cent was credited to the accounts of the members of the JGRA to create a fund for the repayment of a loan taken out by the JGRA on behalf of its members.

10 JGRA states that the loan was paid off and a surplus of funds accrued to it. It is claimed that thereafter, in 1976 and 1977, the Managing Committee of the JGRA proposed, and the JGRA's membership agreed, to use the surplus funds to acquire a property to meet the expanding needs of the JGRA.

11 The JGRA through its managing committee, received advice that a company was required to be formed as the JGRA lacked the legal capacity to purchase and/or hold real property in its own legal right.

12 The membership of the JGRA agreed that the surplus funds would be and inure solely to the credit of the JGRA and not to each member in their individual capacity.

13 The proposal to use the surplus moneys to purchase a property was unanimously passed by the JGRA membership at its annual...