Universal Merchants Ltd v The Financial Secretary of The Government of Jamaica (Shirley Tyndale) and Others
| Jurisdiction | Jamaica |
| Judge | WOLFE, C.J. ,F.A. SMITH J., G. Smith. J. |
| Judgment Date | 18 March 2002 |
| Judgment citation (vLex) | [2002] 3 JJC 1801 |
| Date | 18 March 2002 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO. M81 OF 2001 |
PUBLIC LAW - Constitutional redress - Declaration that Memorandum of Association void - Order cancelling Certificate of Incorporation - Constitution of Jamaica, sections 19 and 23
Before embanking upon the pith and substance of this matter let me dispose of a preliminary matter.
This matter was set down for hearing in July 2001 but was taken out of the list upon the receipt of a letter from Berthan Macaulay, Q.C, that he would be unavailable to argue the matter due to his illness.
On October 4 and 11, 2001, further letters were received from Mr. Macaulay with medical certificates indicating that he was still ill.
The medical certificate which accompanied the letter of October 11, under the hand of Professor Owen Morgan, professor of medicine and neurology, indicated that Mr. Macaulay, Q.C would not be able to argue appeals before January 2002. In keeping with the medical certificate, the Registrar of the Supreme Court set this matter down for hearing in the penultimate week of the month of January, 2002.
On the matter coming on for hearing, Mrs. Macaulay announced that she appeared to make an application for adjournment on behalf of Mr. Macaulay, Q.C, on the ground of his illness.
The Learned Solicitor General for the respondents opposed the application.
The Court refused the application for the following reasons.
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(i) The motion was filed from as far back as July 2001 and set down for hearing on July 25, 2001 and removed from the list on the ground of Mr. Macaulay's illness.
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(ii) In January 2002 application was again made for the matter to be adjourned on the basis of Mr. Macaulay's illness.
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(iii) There was no indication as to when Mr. Macaulay would be well enough to argue the matter.
The Court was only advised that he was improving.
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(iv) Mr. Oswald James, Attorney-at-Law, has been involved in the matter from the outset and was actually instructing and appearing with Mr. Macaulay and ought to be sufficiently seized of the matter to argue same.
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(v) The prolonged nature of Mr. Macaulay's illness ought to have alerted him of the necessity to make contingency arrangements for the matter to be heard.
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(vi) Attorneys-at-Law who move the Jurisdiction of the Constitutional Court or the Judicial Review Court must understand the difficulty which is experienced in setting up a court of three Judges and must take every step to ensure that matters are heard as scheduled.
Had this case been adjourned the Court would have broken down for the entire week, all the other matters having been disposed of.
Finally, Mr. James assured the Court that he was ready, willing and able to proceed with the matter, albeit after the Court had indicated that it was not minded to grant the adjournment.
With that preliminary matter out of the way, I now proceed to address the substantive matter.
This motion filed on the 17 th day of July, 2001 under sections 19,93 and 25 of the Jamaica Constitution and section 15 of the Financial Administration and Audit Act, seeks:
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(1) A Declaration that the Memorandum of Association signed on the 29th day of January, 1997, by the First and Second Respondents, delivered to the Third Respondent for the Third Respondent to issue a Certificate of Incorporation, incorporating a company to be named Finsac Limited as No. 56,160 be declared void, on the ground that the First and Second Respondents acted in excess of the powers conferred on them by section 93 of the Constitution and by the Jamaican Parliament under section 15 of the Financial Administration and Audit Act;
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(2) An Order, that the Third Respondent doth cancel the said Certificate of Incorporation referred to in the foregoing paragraph 1, issued by the name Finsac Limited;
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(3) A Declaration that the provisions of section 19 of the Constitution, including its right to confidentiality are being or are likely to be contravened in relation to the Applicant by the First and Second Respondents in that the purported company which the First and Second Respondents purport to sign the Memorandum of Association procuring the Third Respondent to incorporate a company bearing the name Refin Trust Limited;
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(4) A Declaration that the Memorandum of Association for Refin Trust Limited is null and void;
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(5) A declaration that the Certificate of Incorporation issued by the Third Respondent in the name of Refin Trust Ltd. is invalid; and for an Order that the Third Respondent doth cancel the said Certificate of Incorporation under the name of Refin Trust Limited;
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(6) An Order that the purported companies; Finsac Limited and Refin Trust Limited be restrained from disclosing information relating to the bank accounts of the Applicant to the third persons which they unlawfully acquired from National Commercial Bank Jamaica Limited and Union Bank of Jamaica Limited.
Mrs. Macaulay at the outset sought leave to amend the motion in the terms set out below -
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(1) To delete paragraph 3 and substitute therefor the following:
"A declaration that the provisions of section 18 and 19 of the Constitution are being or are likely to be contravened in relation to the Applicant by the Company Finsac Ltd. incorporated by the First and Second Respondents and Refin Trust Limited incorporated by the said Finsac Limited."
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(2) To add as a seventh paragraph the following:
"A declaration that the purported assignment of Applicant's property by Finsac Limited incorporated by First and Second Respondents without notice to the Applicant is illegal and of no effect"
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(3) To amend the heading by inserting in the line commencing:
"IN THE MATTER" the figure 18 after the word sections and also by inserting a comma thereafter.
The court granted the application to amend as prayed at 1 and 3. The Application as set out at 2 was refused.
The circumstances giving rise to this motion have been admirably and accurately set out in the Judgment of Mr. Justice Smith. Consequently, I will refrain from repeating them.
SUBMISSIONS
GROUNDS 1, 2, 4 and 5
Mr. James submitted that the second respondent is a creature of statute pursuant to section 15 of the Financial Administration and Audit Act. The functions of the office having been specifically set out in the statute it must be presumed that Parliament did not intend to add further functions, thereby limiting the scope of the particular office.
It follows therefore that if the Accountant General exercises a function which he is not permitted to perform by section 15 of the Financial Administration and Audit Act, he or she has acted ultra vires and the consequence of the act would be null and void.
He contends that section 15 of the Financial Administration and Audit Act does not empower the Accountant General to subscribe to the Memorandum of Association and in so subscribing to the Memorandum of Association, incorporating Finsac Limited, the Accountant General has acted ultra vires . The act is therefore void. The Memorandum of Association incorporating Finsac has not been properly subscribed and therefore Finsac Limited has not been lawfully incorporated and does not exist To state the obvious, he continues by saying if it does not exist it cannot hold property.
Similarly, he contends, the Financial Secretary who also subscribed to the Memorandum of Association incorporating Finsac Limited is a creature of section 93 (3) of the Constitution and is deemed to be a Permanent Secretary by virtue of section 126 (4) of the said Constitution.
Section 93 (1) of the Constitution enacts:
"Where any Minister has been charged with the responsibility for a subject or department of government, he shall exercise general direction and control over the work relating to that subject and over that department; and, subject as aforesaid to such direction and control, the aforesaid work and the department shall be under the supervision of a Permanent Secretary appointed in accordance with the provisions of section 126 of this Constitution. (emphasis mine)
Based on the foregoing Mr. James concludes that the Financial Secretary is without the authority to subscribe to the Memorandum of Association of Finsac Limited. By parity of reason, he says, if Finsac Limited does not exist then Refin Trust which is incorporated by Finsac Limited is still born, or rather, the victim of a miscarriage. Reliance was placed on the dictum of Lord Denning in Macfoy v United Africa Co. Ltd. [1961] 3 All ER 1169 at p. 1172.
"The defendant here sought to say therefore that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though...
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