Martigua International S.A. v Doli Ltd

• Jurisdiction: Barbados
• Judge: Williams, J.
• Judgment Date: 28 May 1982
• Neutral Citation: BB 1982 HC 39
• Docket Number: No. 395 of 1982
• Date: 28 May 1982
• Court: High Court (Barbados)

High Court

Williams, J.

No. 395 of 1982

Martigua International S.A.

and

Doli Ltd.

Mr. F.G. Smith, Q.C., of Messrs. Smith & Smith and Mr. A. Clarke for the plaintiff.

Mr. H.deB. Forde, Q.C., and C. Williams for the defendant.

Injunction - Application for interlocutory injunction to restrain sale of shares being voted on at nnual meeting — Court must be careful not to allow its power to be used by one party to obtain an advantage over other — Application refused.

Williams, J.

1 This application follows the filing of an action by Martigua International S.A., a Panamanian Corporation, against Doli Limited, a Barbadian Company, in which the following relief is sought, namely,

• (1) a declaration that the purported sale and transfer by Martigua to Doli of 20 067 shares in Sanitary Laundry Company Limited was null and void as being contrary to Panamanian law, the transfer and sale having been made without the affirmative votes of the stockholders holding a majority of the shares of Martigua entitled to voting power, given at a stockholders meeting called for that purpose in the manner provided in “Articles 40 and 44 of Law 32, February 26, 1927 General Corporation Law of the Republic of Panama;

• (2) a declaration that the transfer of those shares effected the transfer of the controlling interest in Sanitary and was effected without the knowledge, authority or consent of the stockholders of Martigua and was obtained by fraud; and

• (3) an order that the transfer of those shares be set aside.

2 In this application Martigua seeks orders that, until the determination of the said action,

• (a) Doli, its directors, officers and shareholders be restrained from participating in or voting or attempting to vote, in respect of all or any of the 20 067 shares, at the Annual General Meeting of Sanitary to be held on Monday 31st May, 1982, or any adjournment thereof,

• (b) Doli and its directors and officers be restrained from transferring any interest in the said shares.

3 The application is supported by affidavits of Robert Edgar Heal, Arlene Griffith, Arden Selbourne Sealy and Jaime Mora Solis.

4 In Heals affidavit of 24th May, 1982 in support of leave to serve short notice of motion he swore that time was of the essence, the object of the motion being to prevent the shares from being voted at Sanitary's annual general meeting. In Heals other affidavit of 24th May, 1982 he swore at paragraphs 39 to 41 –

• (i) that so long as the 20 067 shares remain in Doli, Martigua has the chance of recovering them if successful in the action but that this chance would be lost if the defendant arts with the shares or any of them prior to the conclusion of the action

• (ii) that the exercise by Doli of any voting or other rights in respect of the shares would occasion irreparable loss and damage to the Company; and

• (iii) that Martigua cannot be adequately compensated in damages since the major loss would be a loss of its controlling interest in Sanitary and a loss incapable of quantification.

5 Paragraphs 27 and 34 of this last mentioned affidavit of Robert Heal appear to contain the gist of Martigua's case against Doli. These paragraphs read –

“27. I am the single largest stockholder, 671 shares out of 1, 000 in the plaintiff and I, in my capacity as President of the plaintiff have been advised by the Attorneys at Law acting in these proceedings on behalf of the plaintiff and verily believe that the said transfers of the plaintiff's Shares in Sanitary Laundry to the defendant were made in bad faith by Mr. Owens and were unlawful according to the Laws of Panama and...