Towner v Sabga et Al

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Williams, J.
• Judgment Date: 12 July 1983
• Neutral Citation: BB 1983 HC 50
• Docket Number: No. 770 of 1979
• Date: 12 July 1983

High Court. (Civil Jurisdiction)

Williams, J.

No. 770 of 1979

Towner

and

Sabga et al

Appearances:

Mr. A. Shepherd for the plaintiff.

Mr. H. deB. Forde, Q.C., and Mr. P.D.H. Williams for the defendants.

Practice and procedure - Defence — Amendment

Williams, J.

1 This is an application by the plaintiff for an order that the Defence of the second defendant be struck out and judgment be entered for the plaintiff against the second defendant in terms of the amended Statement of Claim.

2 The plaintiff originally claimed damages for wrongful dismissal from the defendant, Mr. Anthony Sabga alone. He pleaded that the defendant was the chairman of the Ansa Group of Companies which included Standard Distributors (Barbados) Limited and that the defendant agreed to employ him as financial controller of all Ansa's financial matters in Barbados on the following terms –

• (a) that the agreement was to be for three years; and

• (b) that he was to be paid a basic salary of $1,500.00 plus a travel allowance of $500.00 and 10% of the increase in the profits of Standard Distributors (Barbados) Limited for the years ending in September 1978, September 1979 and September 1980, over and above the profit for the year ending September 1977.

3 The damages which he sought were loss of salary and loss of bonus or incentive for the years ending in September 1978, September 1979 and September 1980.

4 The defendant in his defence denied that he employed the plaintiff and pleaded that he would contend that the plaintiff was employed at all times by Standard Distributors (Barbados) Limited.

5 The plaintiff then sought and obtained leave to amend his writ and Statement of Claim by adding Standard Distributors (Barbados) Limited as a second defendant. In his amended Statement of Claim he pleaded in the alternative that the first defendant had entered into the contract with him as servant and agent of the second defendant and that his subsequent dismissal by the first defendant was done by the first defendant as servant or agent of the second defendant. He claimed in the alternative damages against the second defendant.

6 The second defendant in its defence denied that it wrongfully terminated the plaintiff's employment. It pleaded that the plaintiff was not reasonably competent to perform the functions of a financial controller. It further pleaded that the plaintiff was negligent and/or indifferent in the performance of his duties and in breach of the faithful discharge of fidelity and loyal service to the second defendant. It denied that the plaintiff is entitled to damages as claimed or at all.

7 On the 14th of July, 1981 the second defendant obtained leave to amend its defence in so far as it denied that the plaintiff was entitled to damages as claimed or at all. The relevant paragraph 5 was amplified as follows –

“The aforesaid letter of the 18th day of March, 1977 so far as material to any claim for damages (the plaintiff's entitlement to which is denied) provides as follows:–

“On satisfactory completion of 3 years service there will be available to you (the plaintiff) either the above mentioned B$18, 000 or 10% of the net profits before tax for the years to end September 1978, September 1979 and September 1980 in excess of the same net profit for the year ended September 1977. For the purpose of computing the excess of net profits of later years over that for September 1977, it will be necessary to use the Company's audited accounts adjusted in respect of increase or decrease in reserves by a formula to be agreed between the Directors and yourself.”

8 In respect of the aforesaid, the defendant will contend:–

• (1) that there was no satisfactory completion of 3 years' service by the plaintiff;

• (2) that there was made available and paid to the plaintiff the sum of $500.00 per month as part payment of the said sum of $18,000.00 and the plaintiff is not entitled to the said sum and to share in the profits; and

• (3) that there was no formula agreed between the Directors and the plaintiff.

9 It is to be noted that on the same date the second defendant was refused leave to amend the defence by filing out of time further and better particulars of its defence that the plaintiff was not reasonably competent, was negligent and/or indifferent, and was in breach of the faithful discharge of fidelity and loyal service to the second defendant.

10 On the 9th of March, 1982 the second defendant took out a summons seeking discovery of documents and in particular documents relating to his entitlement to 10% of the increase in profits of the company for the years ending September 1978, September 1979 and September 1980 over and above the profit for September 1977. His affidavit in support stated that in order to ascertain the 10% to which he was entitled under his contract it was envisaged that the audited accounts were to be adjusted. In order to adjust these audited accounts it was necessary, he said, to use figures appearing in the managerial accounts of the company and the second defendant had neglected to make these accounts available to him or his counsel.

11 On the 30th of March, 1982 leave was granted to amend the summons so as to request discovery specifically of all managerial accounts, all monthly accounts prepared by the accounts department and all monthly balance sheets and monthly profit and loss accounts.

12 On the 9th of June, 1982 an order was made in terms of the amended summons.

13 On the 6th of October, 1982 the second defendant gave discovery. In paragraph 3 it stated that it had, but had not then, in its...