Western Cement Company Ltd v National Investment Bank et Al
| Jurisdiction | Jamaica |
| Judge | Panton P,Dukharan JA,Brooks JA |
| Judgment Date | 31 July 2017 |
| Neutral Citation | JM 2017 CA 56 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 56/2012 |
| Court | Court of Appeal (Jamaica) |
| Date | 31 July 2017 |
[2017] JMCA Civ 27
IN THE COURT OF APPEAL
THE HON Mr Justice Panton P
THE HON Mr Justice Dukharan JA
THE HON Mr Justice Brooks JA
SUPREME COURT CIVIL APPEAL NO 56/2012
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(Representative of the Estate of Horace Clarke dec'd)
Lord Anthony Gifford QC, Mrs Tana'ania Small-DavisandMs Sidia Smithinstructed byLivingston Alexander and Levyfor the appellant
Charles Piper QC and Miss Marsha Locke instructed by Charles E Piper and Associates for the 1 st respondent
Garth McBean QC and Mrs Jennifer Scott-Taggart and Jonathan Morgan instructed by DunnCox for 2 nd, 3 rd and 5 th respondents
Michael Hylton QC and Miss Melissa McLeod instructed by Hylton Powell Associates for the 4 th Respondent
Civil Appeal - Misfeasance in public office — Whether the judge misapplied the law in relation to misfeasance in public office — Requirements for establishing misfeasance in public office — Counter-notice of appeal — Disclosure — Whether the judge erred in finding that Mr. Clarke unlawfully used the company to solicit and receive public funds for his private use without disclosure — Whether Mr. Clarke's actions had any effect on the appellant's business — Causation — Whether the judge erred in finding that failure of the appellant company was not due to the loss of the Jamalco market — Whether the judge correctly assessed the reasons of the appellant company's failure — Whether the judge failed to give sufficient attention to the evidence — Conspiracy — Whether breach of fiduciary duty — Whether the judge should have awarded damages — Three Rivers District Council and others v. Bank of England (No 3) [1996] 3 All ER 558 — Martin and Coye v. The Attorney General of Belize [2011] CCJ 9 (AJ) — Industrial Chemical Co (Ja) Ltd v. Ellis (1986) 23 JLR 35 — National Commercial Bank (Jamaica) Ltd v. Hew (2003) 63 WIR 183 — Regal (Hastings) Ltd v. Gulliver [1967] 2 AC 134 — London Loan and Savings Co of Canada v Brickenden [1934] 3 DLR 465.
I have read the reasons for judgment that have been written by my learned brother Brooks JA, and wish to state that I agree with them in large measure and with the manner in which he suggests the appeal should be determined. We differ in respect of the counter-notice of appeal and I shall briefly state my reasons therefor.
The ground stated in the counter-notice of appeal reads thus:
“While the Learned Judge was correct in finding in favour of the Defendants the Learned Judge erred in law in considering the issue of disclosure by Mr Clarke to the Prime Minister or Cabinet that he was a significant investor in CLCL and that his company, Licojam, was used to solicit and receive public funds for his private economic gain when the issue of such disclosure did not arise on the pleadings filed by the Claimants, nor were the pleadings amended during the course of the trial to include this issue.”
From this it will be seen that the appellant Clarke is accepting the ruling in his favour by the learned trial judge, but is complaining that the judge discussed the question of disclosure without there being an issue raised. In my opinion, this is, with the greatest respect, frivolity at its highest. A judge cannot be straight-jacketed in a matter of this nature. He is entitled to make such comments as he sees fit in the circumstances. The fact that he may make a comment which irks a successful party does not give an entitlement to judgment on appeal.
No authority is needed for me to say that a Cabinet Minister in Jamaica ought not to use his public office for private gain. Where such a situation arises, it is not just the Prime Minister or the Cabinet that is to be informed. Parliament is to be informed, as that is the proper forum for the public to become aware. In the instant case, if disclosure had in fact been made, it would be a matter of public record so the appellant Clarke would have been expected to bring this to the attention of the Court at the hearing of the appeal, to show that the learned judge was indeed wrong in his reasoning and conclusion.
In the circumstances, I am of the opinion that the counter-notice of appeal ought to be dismissed on the ground that it is a very frivolous appeal, and costs ought to be awarded to Western Cement.
I wish to add that the trial judge did an excellent analysis of the huge mountain of facts, and applied the law correctly. My learned brother Brooks JA has dealt adequately with the issues and there is no reason for me to comment further.
I have read the draft judgment of Brooks JA. I agree with his reasoning and conclusion and have nothing further to add.
The appellant, Western Cement Company Ltd (WCC) is dissatisfied with a judgment by Sykes J, handed down on 16 March 2012. In his decision, the learned trial judge gave judgment for the respondents herein on the claim, and judgment to the 1 st respondent, National Investment Bank of Jamaica (NIBJ), on its counter-claim against WCC and three of WCC's directors, who are not parties to this appeal. The counter-claim arose from the failure by WCC to repay financing, which NIBJ had provided to WCC. Repayment had been guaranteed by WCC's directors, or, at least some of them.
The formal order of Sykes J's judgment states, in part:
“1. Judgment for the First, Second, Third, Fourth and Fifth [Respondents] on the claim;
2. Judgment for [NIBJ] against [WCC and the directors] in the sums of US$7,918,489.12 and J$9,533,955.14 on the counterclaim with interest on the sum of US$582,398.69 at the rate of 13% per annum on the sum of US$3,258,722.37 at the rate of 14% per annum and on the sum of US$4,077,368.06 at the rate of 12% per annum from June 1, 2010 to the date of Judgment;
3. Stay of execution granted for six (6) weeks.”
WCC asserted, in its appeal, that the learned trial judge misapplied the relevant law, particularly in relation to the tort of misfeasance in public office and to the duties that NIBJ, as an investment banker, owed to WCC. WCC also contended that Sykes J misunderstood some of the factual issues.
The 5 th respondent, Ms Kirby Clarke, has filed a counter-notice of appeal. She asserted that the learned trial judge was in error in one of his findings in respect of the matter. She contended that the issue on which the finding was made, was not one for resolution by the learned trial judge.
The backdrop to WCC's case is the industry concerned with the manufacture and sale of calcium oxide, which is commonly known as lime or quicklime. Quicklime is processed from limestone, which is to be found in abundance in Jamaica. The process involves burning the limestone in a kiln. Quicklime is said to be a very versatile product. It is, among its many purposes, an essential element in the processing of bauxite.
The bauxite industry uses large quantities of quicklime. The main bauxite mining and processing companies in Jamaica, at the relevant time, were Jamalco, Alcan and Alpart. Those companies produced some of their quicklime needs, but also purchased the commodity from outside sources. Jamalco was the largest consumer of quicklime in Jamaica.
WCC was engaged in the mining of limestone and the manufacture of quicklime. The company conducted its operation in Maggoty in the parish of Saint Elizabeth. The company was formed in 1992, but by June 2003 had been placed into receivership by NIBJ, as a result of its failure to repay the debt owed to NIBJ.
After being placed in receivership WCC, and two of its directors, filed a claim in the Supreme Court against these respondents. Two other defendants were named in the claim but WCC did not pursue the claim against those persons. WCC's directors abandoned their claims against all the defendants.
WCC alleged that the respondents conspired to ruin its business by preventing it, by various means, from contracting with Jamalco, and promoting and preferring WCC's competitor, Rugby Jamaica Lime and Minerals Limited (RJLML), for supplying quicklime to Jamalco. WCC alleged that misfeasance in public office by certain of the respondents, was utilised as part of the conspiracy.
In the claim, WCC sought damages for economic loss suffered by it, due to, as it alleged, the conspiracy and misfeasance. The charge of misfeasance in public office was levelled at Mr Horace Clarke as well as the respondents NIBJ and Dr Vincent Lawrence. The conspiracy charge was levelled at all the respondents, namely, those mentioned above, as well as Clarendon Lime Company Limited (CLCL) and Limestone Corporation of Jamaica Limited (Licojam).
NIBJ was a limited liability company in which the majority shareholding was owned by the Government of Jamaica. NIBJ was responsible, among other things, for fostering economic growth in Jamaica. It was mandated to do so by providing financial assistance to applicants. Where it provided financing it sometimes took, by way of security, shares in the applicant's enterprise. Its operations have since been taken over by Development Bank of Jamaica.
One of WCC's allegations against NIBJ was, in essence, that NIBJ entertained WCC's 1996 application for financing, despite the fact that NIBJ was already involved in financing another enterprise, CLCL, which also aspired to produce quicklime. WCC contended that NIBJ, as part of the application process, required and received confidential information from WCC, including production plans, market strategy and product pricing. Further, WCC alleged, NIBJ concealed its involvement in CLCL, from WCC. NIBJ went further, WCC contended, by appointing a...
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