Statutory Rules and Orders 1956,...
 Statutory Rules and Orders 1956,...
 Statutory Rules and Orders 1956,...
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Group Title: Official gazette, St. Christopher, Nevis, and Anguilla
Title: Official gazette
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00082876/00118
 Material Information
Title: Official gazette
Series Title: Official gazette
Physical Description: v. : ; 33 cm.
Language: English
Creator: Saint Kitts-Nevis-Anguilla
Publisher: The Authority
Place of Publication: Basseterre
Publication Date: January 3, 1957
Frequency: completely irregular
Subject: Politics and government -- Saint Kitts and Nevis   ( lcsh )
Politics and government -- Anguilla   ( lcsh )
Genre: periodical   ( marcgt )
Spatial Coverage: Saint Kitts-Nevis
Statement of Responsibility: published by Authority.
Dates or Sequential Designation: -v. 76, no. 4 (15th Jan. 1981).
Numbering Peculiarities: Includes extraordinary issues.
General Note: Masthead title: St. Christopher Nevis and Anguilla. Official gazette.
 Record Information
Bibliographic ID: UF00082876
Volume ID: VID00118
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: oclc - 08247893
 Related Items
Preceded by: Official gazette
Succeeded by: Official gazette

Table of Contents
    Statutory Rules and Orders 1956, no. 60: Shop Hours (Tourist Ships) (Nevis) Order, 1956
        Page 1
    Statutory Rules and Orders 1956, no. 61: Stamps (Alexander Hamilton Bicentenary) Order, 1956
        Page 2
    Statutory Rules and Orders 1956, no. 62: Proclamation dated the 28th day of December, 1956
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
    Judgment of the Supreme Court of the Windward Islands and Leeward Islands (no. 46 and 47 of 1955)
Full Text



Published by Authority.



Saint Chiistopher Nevis and Anguilla.

Statutory Rules and Orders.
1956, No. 60

The Shop Hours (Tourist Ships) (Nevis) Order,
1956 dated the 28th day of December, 1956,
made by the Governor in Council under,
section 3 (1) (c) of the Shops Regulation
Ordinance, 1942 (No. 5 of 1942).
1. SHORT TITLE. This Order may be cited as
the Shop Hours (Tourist Ships) (Nevis) Order, 1956.
2. AUTHORIZATION. Notwithstanding any of
the provisions contained in Regulation 3 of the Shop
Hours Order 1942 (S.R & O 1942, (No. 10), the Governor
in Council, by virtue of the powers in him vested under
section 3 (1) (c) of the Shops Regulations Ordinance,
1942, hereby orders that the shops situate in the island
of Nevis referred to in paragraphs (1) and (2) of the
aforesaid Regulation may be kept open for transacting
business with the public up to 7.00 p.m. on such days as
a Tourist Ship shall, at that hour, be lying at anchor in
the Charlestown ioadstead.
Made by the Governor in Council this 28th day of
December, 1956.

Clerk of the Council.

X [1]
3 ?. 7Q 7 /
e, 0:7


Saint Christopher Nevis and Anguilla.

Statutory Rules and Orders.

1956, No. 61.

WHEREAS by the Stamps (Saint Christopher
Nevis and Anguilla) (No. 2) Order 1954 (S.R. & 0. 1954
No. 43 L.Ls.) special stamps of the value of 24c. together
with stamps of other values were authorised for use
throughout the Colony.
AND WHEREAS for the purpose of comnrem-
orating the bicentenary of the birth of Alexander
Hamilton in the island of Nevis in the Colony of St.
Christopher Nevis and Anauilla it is deemed expedient
to authorise the uso of the said special stamps of the
value mentioned in the preceding recital of the design
specified in the Schedule hereto.
NOW, THEREFORE, the Governor in Council
doth hereby order as follows:-
I, CITATION. This Order may be cited as the
Stamps (Alexander Hamilton Bicentenary) Order,
2. USE OF STAMPS. The special stamps of
the value of 24c. and of the design specified in the
Schedule hereto are hereby authorised for use in the
Colony of St. Christopher Nevis and Anguilla.
stamps hereby authorised shall remain on sale until
the 30th day of April, 1957, or until stocks are exhaust-
ed whichever date is earlier, after which this Order
shall cease to be operative and such stamps (if any)
then remaining unsold shall forthwith be destroyed.
4. COMMENCEMENT. This Order shall come
into operation on the IIth day of January, 1957.
Made by the Governor in Council this 28th
day of December, 1956.
Clerk of the Council.
[ 12


The special stamps will be in large horizontal
format, recess printed in blue and green and will in-
clude a portrait of Her Majesty together with the
Crown and will feature a full length portrait of
Alexander Hamilton against a pictorial background.

Sdint Chiistopher Nevis andAnguilla.

Statutory Rules and Orders.
1956, No. 62

Proclamation dated the 28th day of December,
1956, declaring Friday the 11th day of
January, 1957 to be a public holiday
throughout the Colony for the purpose of
celebrating th: bicentenary of the birth of
Alexander Hamilton.
Acting Administrator.
WHEREAS by section 5 of the Public Holidays
Act, 1954 (No. 19 of 1954) it is enacted that it shall be
lawful for the Governor from time to time with the
advice of the Executive Council to issue a proclamation
appointing a special day to be reserved as a public holi-
day throughout the Colony :
AND WHEREAS the Governor with the advice of
the Executive Council of the Colony, considers it ex-
pedient that Friday the 11th day of January, 1957.
should be reserved and kept as a public holiday through-
out the Colocy for the purpose of celebrating the bicen-
tenary of the birth of Alexander Hamilton.
NOW, THEREFORE, I do, with the advice of the
Executive Council of the Colony, in exercise of the
powers conferred by the said section of the said Act,
appoint Friday the 1lth day of January, 1957, as a
special day to be reserved as a public holiday throughout
the Colony.
And all Her Majesty's loving subjects in the said
Colony and all others whom it may concern are hereby
[ 3]


required to take due notice hereof and to give their ready
obedience accordingly.

GIVEN at the
1956, in the

Government House, Saint
this 28th day of December
fifth year ot Her Majesty's


The attached judgment of the Supreme Court of the
Windward Islands and Leeward Islands in the following
civil cases is circulated with this Gazette and forms part

No. 46 of 1955


Eustace Wall



S. L. Horsford & Co., Ltd.

No. 47 of 1955


Eustace Wall


Daphne Marshall
William A. Kelsick
Bernice Blake
Sylvia Matheson
Lloyd Matheson

3rd January, 1957.






It is hereby notified for general in-
formation that the Imperial Colonial
Air Navigation Order, 1955, has been
amended by the Colonial Air Naviga-
tion (Amendment) Order, 1956, made
by Her Majesty in Council on the 24th
day of April, 1956 and laid before
Parliament on the same date. This
Amendment Order came into force on
the 1st July, 1956.

2. This Order amends the Colonial
Air Navigation Order, 1955, so as to
permit the use of a simplified docu-
ment in place of the journey log-book
and makes certain related amend-
ments in respect of the carriage
of this and other documents in aircraft.
In addition to some amendments of a
minor nature, amendments are also
made to the provisions of that Order
dealing with the following matters:-

(a) the performance of flights for
the purpose of experiment or
(b) the height of the nationality
and registration marks on cer.
tain parts of aircraft;
(c) the areas in which aerobatic
flight is prohibited;
(d) the requirements governing air
craft in flight by night, includ-
ing those relating to compliance
by such aircraft with Instrument
Flight Rules ;
(e) the requirements governing
flight along a line of landmarks,
or following a tract indicated by
a directional radio guide ;
(f) the notification of flight over an
area in which search and rescue
operations would be difficult.

3. A copy of this Order may be seen
if desired at the Offices of the Chief
Secretary or of any of the Administra-
tors of the Leeward Island, and the
Order will in due course form part of
the bound volume of the Laws of the
Leeward Islands for 1956.

The Secretariat,

21st December, 1956.

Mr. C. Carty, Junior Clerk, Treas-
ury Department. Anguilla, appointed
Acting Senior Clerk, Treasury Depart-
ment, Anguilla, with effect from 1st
November, 1956.

22nd December, 1956.

His Honour the Acting Administra-
tor has been pleased to appoint
the Reverend Father W. A. Janes as
a Marriage Officer for the Colony
under the provi-ions of the Marriage
Ordinance, 1915.
22nd December, 1956.

His Honour the Acting Administra-
tor has been pleased to appoint the
Reverend Father G. H. Bennett as a
Marriage Officer for the Colony under
the provisions of the Marriage Ordin-
ance, 1915.
22nd December, 1956.

British Nationality Regu-
lations, 1948

Under Regulation 6 (b) of the British
Nationality Regulations, 1948. His
Excellency the Acting Governor has
been pleased to direct that, when an
application for the registration of a
person as a citizen of the United King-
dom Nationality Regulations, 1948, is
made to the Governor, such registration
shall, if the application is granted, be
effected in the Leeward Islands at the
Office of the Chief Secretary, in the
City of Saint John's in the Island of
2. Under Regulation 9 (3) (b) of the
British Nationality Regulations, 1948,
His Excellency the Acting Governor
has also been pleased to direct that,
where a certificate of naturalisation is
granted by the Governor, the oath of
allegiance required by Section 10 (1)
of the British Nationality Act, 1948,
to be taken shall be registered in the
Leeward Islands at the Office of the
Chief Secretary, in the City of Saint
John's in the Island of Antigua.
3. This notice supersedes the
notice on this subject which was pub-



lished in the Leeward Islands Gazette
of the 29th June, 1950.

Dated the 24th day of December,

By His Excellency's Command.

(Sd.) C. S. ROBERTS.
Acting Chief Secretary.

Office of the Chief Secretary,
Leeward Islands
At Antigua.

24th December, 1956.

The Secretary of State for the
Colonies has informed the Governor
that the power of disallowance will not
be exercised in respect of the under-
mentioned Ordinances:-

No. 7 of 1956- The Passengers
(Amendment) Ordinance, 1956.

No. 24of 1956- The Interpretation
and General Clauses Act (Amendment)
Ordinance, 1956.

31st December, 1956.

Her Majesty The Queen has been
graciously pleased to approve of the
appointment of Dr. G. D. McLean,

District Medical Officer for District 1,
as a Member of the Civil Division of
the Order of the British Empire.

1st January, 1957.

The Acting Administrator has been
pleased to appoint D. L.Matheson Esq.,
as a member of the Forestry Board,
St. Kitts, with effect from 2nd January,

2nd January, 1957.

The Acting Administrator of St.
Kitts-Nevis-Anguilla records with
regret the death on the 29th December,
1956 of Mr. R. E. Kelsick, 0. B. E.,
Acting] Agricultural Superintendent
and member of the Public Service
Commission of this Colony.

2nd January, 1957.

Mr. D. Gilfillan, Acting Teacher-
in-Charge, New River School, Nevis,
resigned with effect from 1st January,

2nd January, 1957.



R.O. 19.

Saint Christopher Nevis and Anguilla
13th December, 1956.

Schiedam, Netherlands have applied for Registration of one
Trade Mark consisting of the following:-

in Class 43, that is to say:-All kinds of spirits and beer.

The Applicants claim that they have used the said Trade
Mark in respect of the said goods for two years before the date
of their said Application.

Any person may within three months from the date of the
first appearance of this Advertisement in the Official
Gazette," give notice in duplicate at the Trade Marks Office,
St. Christopher Nevis and Anguilla of opposition to registration
of the said Trade Mark.

Registrar of Trade Marks.

PiHited for the Government of St. Christopher Nevis and Anguilla by A. M. LOSADA, Ltd.. Printers
by Authority "The St. Kitts Printery," Fort & Central Streets, Basseterre St. Kitts B.W.I.
[ 7]




No. 46 of 1955.




S. L. HORSFORD & CO., LTD. Defendants

No. 47 of 1955.








(Consolidated by Order of the Court dated 6th February, 1956) 1956,
February 6, 7, 8, 9, 10, 11; March 8th

Before Mr. Justice A. M. LEWIS.


The defendant company is a limited liability company carrying on
business as merchants and commission agents in the Presidency of St. Kitts-
Nevis-Anguilla. All but a few of its shares were owned by Burchell
Marshall its Managing Director, and after his death in June, 1951 were
divided equally amongst his five daughters, viz: the defendants Daphne
Marshall (formerly Daphne Malone) Bernice Blake and Sylvia Matheson
(to whom I shall hereafter refer collectively as "the three sisters"), and
Eulalie Mallalieu and Doris Wall (the plaintiff's wife.) The plaintiff
entered the employment of the company in 1932 as a junior clerk at a low
salary. By his ability and industry he gained rapid promotion and in-
creased salary and by 1939 he was acting as secretary to the company.
In December, 1939 he become a director. The Company's articles make no
provision for remuneration for its directors, and the plaintiff accordingly
received none. He continued to perform the duties, of his substantive post

and to receive the salary attached thereto. On 21st January, 1941 the
plaintiff retired from the Board of Directors; he was reappointed in July,
1944 and continued as a director up to the time when the events which
gave rise to the: present actions occurred. The plaintiff's salary gradually
increased as he rose in the company's employment and in October, 1948
he was earning $300 per month. In addition, like the other employees, he
received an annual bonus approved from year to year by the company in
general meeting, and ranging at this period from $500 to $1000. By this
time the plaintiff had achieved a senior position in the office, his substan-
tive employment being that of Office Manager. He was no longer the
company's secretary, the defendant Will. Kelsick, the company's account-
ant, having succeeded him. On 13th April, 1949 Burchell Marshall retired
from the company, and on the same day the plaintiff was appointed Man-
aging Director. The resolution for his appointment reads as follows:
Resolved that Mr. W. E. L. Wall be and is hereby
appointed as Managing Director of the Company
and that he shall continue to sign singly on be-
half of the Company, cheques and/or Bills of
Exchange issued or negotiated and that our
Bankers be advised accordingly ".
I shall deal later with the effect of this resolution. For the moment I
merely note that it mentions no salary or remuneration. After his ap-
pointment as Managing Director the, plaintiff continued in his post of Office
Manager and his next increase in salary was in February, 1951 when it
was increased to $340. He received further increases in February, 1952
and February, 1953, and in March, 1955 was earning a salary of $410
per month. In 1950 both Will. Kelsick and the plaintiff, who were the
senior employees of the company, requested that their bonuses be quanti-
fied. The request was granted and a basis of 21/2 per cent. of the annual
profits agreed upon.
Marshall had brought his five daughters into the business as employees
and directors, and they, with Will. Kelsick and the Plaintiff, formed the
Board of Directors at the material period to which these actions relate.

The first serious difference of opinion over the administration of the
business between the plaintiff and his co-directors occurred towards the
end of 1951, and related to two matters, viz: the insurance of the stock-
in-trade, and the, establishment of a club called the "Emporium Club" on
the company's premises. These matters were dealt with at a meeting
of the Board requisitioned by Mrs. Marshall and held on 14th December,
1951. The Emporium Club issue involved the question whether or not the
company should carry on a Club as part of the company's business. The
insurance issue involved the question whether the company should carry
part of its own insurance. Both these issues were decided against the
plaintiff's view. It is not necessary to decide which view was right or
whether the views, were reasonable. What is important to note is that in the
one case the complaint was that the plaintiff had attempted to pursue a
policy contrary to that previously decided upon by the Board of Directors,
without further consultation with the Board; while in the other case he was
attempting to change a policy laid down by the previous Managing Direc-
tor, Burcheil Marshall, without consulting the Board. The directors took
strong exception to the plaintiff's actions, and the plaintiff admitted
that he should have consulted the Board before putting his plans into
execution. The last three paragraphs of the minutes of this meeting are
revealing of the attitude which the. plaintiff had apparently begun to adopt
towards the other directors about the latter part of 1951, and of their
reaction to it.

"Mr. Kelsick then stated that he could not understand
Mr. Wall's attitude to him for the past few months. He
said that although it was the first time Mr. Wall made him
to understand in so many words that he was the managing
director yet this had been his attitude towards him. He
asked Mr. Wall to state if he had anything whatever
against him. Mr. Wall replied that he had nothing against
Mr. Kelsick.

Mrs. Mallalieu said that she was surprised at the pre-
sent state of affairs as not very long ago at their annual
general meeting everything appeared to be in order. She
further stated that no business could progress without har-
mony between those engaged in the direction of the
business. Mrs. Malone added that she would like Mr. Wall
to understand that he should at all times be courteous to the
employees and other persons engaged in the operation of the
business Mrs. Mallalieu and Mrs. Matheson signified their
approval to this policy.

"Mr. Kelsick then went on to say that he was quite pre-
pared to work with Mr. Wall in his capacity of managing
director and co-operate with him in every way possible. He
said that all he was asking in return was that Mr. Wall
would give him a reasonable hearing to any proposition
which he might make to him in relation to the operation of
the business. He did not expect that it would be possible
for Mr. Wall to agree with every proposition of his. Mr.
Wall then stated that should Mr. Kelsick and himself dis-
agree over any matter of a serious nature, he would call his
Board of Directors and have the matter thoroughly thrashed

Mr. Wall stated in evidence that this was a correct record, except that
Mrs. Marshall had also said that if you don't do what we tell you we'll
get somebody else to do it. "

Thereafter things proceeded fairly smoothly until 1954. Under
Wall's capable leadership the business continued to grow from strength
to strength. Between 1949 and 1954 its profits were more than doubled.
There is, however, some evidence of an undercurrent of tension between
the plaintiff and Mrs. Marshall which sooner or later was bound
to rise to the surface. This tension undoubtedly was engendered by
the plaintiff's declared policy of not consulting the female directors. He
would consult with Will. Kelsick but not with the others. Again and
again in the course of his evidence he stated this to be his policy : He
says :

"I was not in the habit of discussing the affairs of the
firm with any of the directors who were employees of
the firm. I discussed usually with Mr. Kelsick and if we
agreed, I acted, otherwise I took it to the Board. I
wanted always to keep the other directors (that is,
other than Will. Kelsick) from interfering in manage-
ment. They would have their time at a Board meeting
they were employed as clerks and should do their
work 'as clerks. "

He considered that they knew nothing about the business and they
are not capable of helping me in the management of the business "
Again, he says:

"I will brook no interference from these shareholders ex-
cept at meetings whether they are directors or not,
they are clerks and when I am in the office is not the
time to interfere. I would discuss with them at meetings,
not during office hours. "

All this, and other evidence, shows that for some time there was an
issue between the plaintiff and the female directors as to the adminis-
tration of the business. They were the, main shareholders and posed
as owners of the business and claimed the right ,as directors to be con-
sulted by and to consult with the Managing Director. Of this claim
Mrs. Marshall was undoubtedly the principal protagonist. The plain-
tiff's attitude towards her is expressed in the following statement:

"I have known her for many years and have always found
her a very aggressive and impertinent individual. In the
business she kept on interfering considerably with
management and hampering considerably co-operation
in the office. " I don't like Mrs. Marshall whether she's
impolite or not. "

So long as nothing outstanding occurred the embers of the fire of 1951
lay smouldering. But they were far from being extinguished and
it was not long before an incident was to occur which would fan them
once more into a vigorous and consuming frame.

So far as the plaintiff and Will. Kelsick were concerned, however,
relations, after a temporary coldness following the meeting of the 14th
December, 1951, appear to have returned to normal. The plaintiff
turned to him more and more for advice, discussing with him the day
to day business of the firm, both routine matters and matters of policy.
Relations between them were cordial and Will. Kelsick played his full
part in the development of the business. It was urged by learned
Counsel for the plaintiff that between 1951 and 1954 Will. Kelsick be-
came ambitious to be Managing Director of the company (and that he
saw in the Mount Gay affair an opportunity to realise' his ambition. As
to this, Will. Kelsick admits saying on occasions that Horsford & Cb.
should be glad to have such a combination as himself and plaintiff. The
plaintiff seys that on more than one occasion he, Will. Kelsick, suggest-
ed that Horsford & Co. should have joint Managing Directors like
Bennett Bryson & Co. of Antigua. The plaintiff's reply was that this
was a matter for the Board of Directors, but he never brought the
matter to the Board. Apart from this, I can find no evidence of any
desire on the part of Will. Kelsick to become a joint Managing Director,
and certainly there is no -evidence of any intention to displace the
plaintiff from his position.

In February, 1954 the plaintiff became seriously ill and went
to England. He was away from the business until September, 1954. At
his request Will. Kelsick carried on for him, and though the Board
did not actually appoint him they appear to have acquiesced in the

At this time the Company were agents in St. Kitts for Mount Gay
Distilleries Ltd. (hereinafter referred to as Mount Gay) the well-known
Barbados firm of manufacturers of rum known as "Mount Gay
Eclipse ", and for Fernandes & Co. Ltd. (hereinafter referred to sas
Fernandes) the well-known Trinidad firm of manufacturers of rum
known as Vat 19 ". The company imported rum from both these firms
for their own stocks and canvassed orders from other merchants, to
whom shipments were made directly, and on both sets of importations
they received a commission of 5 per cent. from each firm. I find that
Mount Gay was well established in the local market, their agency being
worth the company about $4,000 per annum, apart from profits on
resales, while Fernandes brought in only around $300. In August, 1954,
Fernandes, with 'a view to furthering their sales and to meeting com-
petitidn from Barbados rum suggested to the company that they
should import Vat 19 in larger quantities, ,say 250 cases, and dis-
tribute this rum themselves, in consideration of which they offered
to increase their commission to 10 per cent. with payment in 30
to 60 days. This was an attractive offer and Kelsick accepted it
on behalf of the firm after consultation with the grocery manager
and immediately placed an order for 250 cases. He did not
consider it necessary to put the matter before a meeting of the
Board though it involved tying up a much larger amount of capital
in Vat 19 than previously. He realized that in order to push the sales
of Vet 19 some other rum would have to suffer, but considered that as
Mount Gay was already well established it would be another Barbados
rum, and not Mount Gay, that would suffer.

On the plaintiff's resumption in September, 1954, Will. Kelsick
showed him the correspondence, and the plaintiff approved the policy
of pushing Vat 19 sales. His observation that 'at this time Vat 19 sales
were already increasing is borne out by the records. It is also a fact
that Mount Gay sales had shown a considerable decrease in 1954, due,
it appears to complaints about a defective shipment received in 1953.
Soon after the plaintiff's resumption Kelsick left the Colony for England
in early October, 1954.

This was the position when the plaintiff received from Mount Gay
a letter dated 28th October, 1954, the first in a correspondence which
eventually caused a crisis in the management of the company and led
ultimately to his removal from his office of Managing Director. This
letter referred to two outstanding customers' drafts and stated that
the non-receipt of these remittances was holding up the remittance to
the company of commissions due for the quarter ending 30th September,
1954. The letter appears to have angered the plaintiff, who considered
it an impertinence and a reflection upon the company that payment of
commissions should be held up because of the non-payment of custom-
ers' drafts. It may be that he felt in that view of the better terms
received from Fernandes, and the fact that Vat 19 sales appeared to be
on the increase while Mount Gay had shown a decline, the company
could afford to adopt a stern attitude towards Mount Gay. Whether or
not this was his real reason, or whether he merely acted hastily, he
wrote a reply, dated 2nd November, 1954, about which the mildest com-
ment that can be made is that it was discourteous. It was conceded by
his counsel, and I think even by the plaintiff himself, that the tone of
the final paragraph of that letter was offensive and not what would be
*expected from the head of a firm of the standing of S. L. Horsford & Co.
It is as follows :

"We would have you know that we do not tolerate con-
duct of this nature. We have repeatedly taken over
drafts from other parties, and have never once quibbled
about our responsibility in the matter. Unless, there-
fore, you are prepared to treat this firm with the respect
that is due us, we will be forced to place our orders in
future with other friends. "

The plaintiff himself at the time was in some doubt as to whether he
should send it, for I find that he showed Mount Gay's letter and
his draft reply to the company's Solicitor Fred Kelsick, and asked him
what he thought -of it. Fred Kelsick, perhaps without giving the mat-
ter sufficient thought, approved the reply, telling the plaintiff that he
was right and should stand no nonsense. Kelsick, unfortunately,
thought fit to deny this on oath, but I see no reason to disbelieve the
plaintiff on this point and Kelsick's subsequent conduct, to which I
shall refer later, convinces me that the plaintiff's story is true. This,
however, must be said in his favour. He did not know, and indeed
the plaintiff himself appears not to have realized, that the
plaintiff's grievance was altogether unwarranted. The withholding of
commissions until receipt of outstanding remittances was no new
policy of Mount Gay's. It had been in effect at least from January,
1952, and had been accepted by the company, whose practice it was in
bad cases to take over the drafts of defaulting customers in order to
enable the quarter's accounts to be closed. Even were this not so,
however, the plaintiff's conduct in writing a letter of this kind is in-
excusable. To this letter Mount Gay replied on 12th November, 1954,
and after mentioning that exception had never previously been taken
to their set policy by any of their agents in various parts of the world,
they wrote:
"Furthermore, the tone of the last paragraph, of your
letter is such that we can only assume you are no longer
interested in representing us in your territory. On the
assumption that our conclusions are correct, we have no
alternative but to request you to relinquish our agency,
and have decided that such arrangements as at present
exist between us be terminated with effect as at the 31st
December, 1954. . "we do resent your Mr. Wall tell-
ing us how to conduct our own affairs; we do resent his
implied threats, and, above all, we resent his importing
into our letter of the 28th ult. a suggestion of disrespect
for the firm of S. L. Horsford & Co., Ltd., which was
never -apparent or intended. "
The plaintiff admits that this letter left the door open for a reconcilia-
tion and that had he then written to say that his previous letter was
written in haste and that the company were still interested in the
agency it is possible that they might have kept it. He says however
that his sense of pride prevented him from doing so. In fact, he wrote
an 'even more arrogant and impolite: reply, saying that the company
relinquished the agency with the greatest pleasure, terminated at the
same time all further connection with Mount Gay, and hoped that they
would advise their agents and representatives that the company "will
not be bothered with their presence in our office: looking for business. "
He added that the company shed no tears whatever over the matter. "
In the witness box, the plaintiff endeavoured to justify the admit-
tedly offensive nature of his two letters. He said that Mount Gay had

" asked for it" by the impertinent" way in which they dealt with the
company; that he was glad to be rid 'of Mount Gay because he con-
sidered it more profitable to deal with Fernandes; that the company
had embarked upon a policy of supporting Fernandes and releasing
themselves from Mount Gay; that it would not have been practicable
to keep both agencies. In my view none of these allegations is support-
ed by the evidence. Mount Gay's letters were perfectly reasonable and
restrained. Will. Kelsick, who made the decision to push the Vat 19
agency and who discussed the matter with the plaintiff before leaving
for England, says that there was no intention to give up the Mount Gay
agency; both were to be pushed, to the advantage of the company. No
sooner had the Mount Gay agency been lost then the plaintiff entered
into correspondence with Fernandes with respect to "the very keen
competition offered by Mount Gay Eclipse Rum, ... a rum which is so
well established on the market ", pointing out that Mount Gay prices
were lower than those of Vat 19 and suggesting that the margin be
narrowed. "Indeed ", he wrote on 23rd November, 1954, "we should
like to see it" (Vat 19) the leading rum, but this can only be done if
you are prepared to make your prices competitive." On the 13th
December, 1954 we find the plaintiff writing to Messrs. Martin Doorley
& Co. Ltd., another well known firm of rum manufacturers in Barbados:

"We are interested in the representation of a good Bar-
bados Rum which can compete against Mount Gay
Eclipse, both in price and quality. "
and asking whether they could meet the company's requirements. It
is perhaps indicative of the blow to their prestige in Barbados which the
company had suffered as a result of the plaintiff's conduct in dealing
with tha: Mount Gay issue that they received no reply to this enquiry.

Another opportunity to retain the Mount Gay agency before it was
too late was offered to the plaintiff. On 17th November, the day on
which the plaintiff wrote the shed no tears letter, Fred Kelsick
heard of the loss of the agency from his cousin Ivan Kelsick, an employee
in the company's office. Alarmed, no doubt at the unexpected conse-
quences of his ill-considered advice, he went to see the plaintiff at the
company's office. A discussion took place between them as a result of
which Fred Kelsick decided to call Mount Gay on the telephone and
try to use his influence with his friend Ward, the Managing Director of
Mount Gay, in order to retrieve the position. He did not tell the plain-
tiff of his intention, and when, after speaking with Ward, he 'again in-
terviewed the plaintiff on the 19th, the plaintiff received the impression
that it was Mount Gay who had taken the initiative and were trying to
persuade him to retain the agency. This was unfortunate; the plaintiff
rejected Mount Gay's request for an apology and laid down his own
conditions, namely, that Mount Gay must give the company the same
terms that Fernandes had given. This Mount Gay flatly refused to do,
and by 22nd November the agency had been finally lost.

It was suggested on behalf of the plaintiff that he arrived at his
decision to relinquish the Mount Gay agency after consultation with
the company's Solicitor. This suggestion is not supported either by
the plaintiff's account of 'his interview with Fred. Kelsick or by Kelsick's
subsequent action to which I have just referred. In any event, the re-
sponsibility for what was really a business decision was the plaintiff's
and consultation with the company's Solicitor could not relieve him of

The plaintiff did not inform any of the other directors of the dis-
pute with Mount Gay or of the loss of the Mount Gay agency until the
first week in December, 1954, when Mrs. Marshall asked him about it.
He says that he told her of the increase in the Vat 19 commission and
that they had nothing to fear as they would be able to establish Vat 19
to better advantage. Though she was usually interfering and aggressive,
he says that on this occasion she made no comment. She was, how-
ever, not satisfied, for a few days later, on 10th December, she returned
to him in his office and challenged him with having told her an un-
truth about the Mount Gay correspondence. A heated conversation
ensued, the exact words of which are in dispute, in the course of which
Mrs. Marshall called the plaintiff a liar. I do not find that the plaintiff
was in any way disrespectful to Mrs. Marshall or that he abused her in
the presence of the staff, as alleged in the Defence, but I do find that the
plaintiff resented her questioning him in his office about his handling
of the Mount Gay dispute, and considered that she had no right to
interfere in the management during offices hours, and that Mrs. Mar-
shall asserted her right to do so to the extent that she threatened to
sell her shares if she was not to be ,allowed to discuss th?: affairs of the
business with him. Later that evening Mrs. Marshall and her sister
Mrs. Blak2 visited the plaintiff at his house and the Mount Gay matter
was further discussed but no satisfactory decision seems to have been

The directors in St. Kitts, at the time of the loss of the Mount Gay
agency, besides the plaintiff and Mrs. Marshall, were Mrs. Blake, Mrs.
Wall and Mrs. Mallalieu. The other two directors, Mrs. Matheson and
Mr. Kelsick, were in England. The plaintiff gave as his reasons for
not consulting the directors that he considered the Mount Gay agency
a bagatelle in the business, and that the directors knew nothing about
the business and were incapable of helping him in its management.
Mrs. Marshall and Mrs. Blake did not accept this assessment of the
value of the 'agency and considered the plaintiff's attitude towards
them as another instance of his declared policy always to keep them
"from interfering in management." Though no specific incident
occurred between the 10th December (the date of the plaintiff's quarrel
with Mrs. Marshall) and the return of the other directors from
England, it is clear that both sides realized that an issue was being
made of the Mount Gay matter and were in communication with the
other directors about it. The plaintiff says that he noticed a change
in Mrs. Blake's attitude to him early in January, 1955. He himself
wrote to Will. Kelsick 'about the matter but received no reply. Mrs.
Matheson returned to St. Kitts at the beginning of January, 1955 and
the plaintiff says that her attitude towards him was strange. Will.
Kelsick returned on the 14th February, and the plaintiff sensed from
his attitude towards him that he was siding with Mrs. Marshall, Mrs.
Blake 'and Mrs. Matheson.

On February 17th, an informal meeting was held at Mrs. Matheson's
home at which were present the three sisters, Mrs. Judith Jeffrey (Mrs.
Marshall's daughter), Will. Kelsick, Fred Kelsick (the company's
solicitor) and Mrs. Blake's son Denis Sydney Blake. It is not clear
from the evidence whether the defendant Lloyd Matheson (Mrs.
Matheson's husband) attended this meeting, but he. attended either
this, or the subsequent meeting of the 20th February, or both. At this
meeting the Mount Gay matter was discussed and a decision taken
as a result of which on the following day (18th February) a notice
signed by Mrs. Jeffrey as Secretary was sent out summoning a meeting

of the Board of Directors at the instance of Mrs. Marshall, for the
following purposes:
1. To discuss the present management of the company
especially with a view to a satisfactory settlement of the
difference which has arisen between Mr. W. E. L. Wall
and Mrs. D. Marshall.

2. To discuss a resolution which will be proposed at the
meeting by Mrs. Marshall that Mr. W. A. Kelsick be made
a Managing Director of the company to act jointly with
the present Managing Director of the company. "
Mr. Christian made a gricat deal of this letter, wnicn ne aeocriDea as
" the first shot in the campaign against the piamnil ", ana laia mucn
stress on the fact that it was signed by Ivirs. Jetirey, wno was rno
secretary to tne company, and tnat the plaintiff was not consulted
Delore it was sent out. The facts 'are that tne plaintiff had appointed
Mrs. Jeffrey to act as Secretary during Will. Kelsick's absence from
the Colony; Will. Kelsick resumed his duties on the 17th February, was
informed of this fact, 'and allowed her to sign the notice. Probably,
being personally involved, he did not enquire too closely into the matter,
but his failure to see that the plaintiff was informed was undoubtedly
improper. It was contended that the summons was invalid in that
it gave only one day's notice of the meeting whereas Article 64 of the
company's Articles calls for seven days notice. Article 64, however,
applies to general meetings of the company and not to directors'
meetings, while Article 108 expressly states that the directors may meet
together for the despatch of business as they think fit. So far as the
legality of the meeting proposed for the 19th February was concerned,
nothing would in the event have turned on these objections, for all
the directors of the company were present at the appointed time, and
could validly have proceeded to the despatch of such business as they
might think fit. The plaintiff however had in the meantime consulted
his own personal solicitor 'and no doubt acted on his advice. There
is a serious conflict between the plaintiff's account and Will. Kelsick's
account of what took place. The plaintiff says that he declared the
meeting open, the minutes of the previous meeting were read and con-
firmed, and that he was about to proceed to the items stated on the
agenda when Mrs. Marshall observed that she had been informed that
he objected to Mrs. Jeffrey having signed the notice. He says that
he told her that was correct but offered to proceed with the meeting
if Will. Kelsick would sign the notice, and that Mrs. Marshall then
said : If things are not in order we shall put them in order and
got up and left the room, followed by Mrs. Matheson and Mrs. Blake.
He says that Mrs. Marshall appeared not to want the meeting. Will.
Kelsick's 'account is that the meeting never began at all, the plaintiff
objecting to the summons as being invalid because Mrs. Jeffrey had
signed as Secretary and because the notice was too short. He denies
that the plaintiff offered to proceed with the meeting if Kelsick would
sign the summons. I accept Will. Kelsick's version as being correct.
If, as the plaintiff says, the meeting had already begun, it seems un-
likely that the question of Kelsick's signing the notice would have
arisen at that stage. Further, the minute book shows that the minutes
of the previous directors' meeting were not confirmed by the plaintiff
on the 19th February, as he stated, but by Will. Kelsick on 8th March,
so that the plaintiff's recollection here is clearly at fault. Finally, as
Mrs. Marshall had requisitioned the meeting it is inconceivable that

she would have abandoned it, when all the directors were present, if
the plaintiff had been willing to proceed. I accept the view put tor-
ward by the Defence that the plaintiff endeavouracd to prevent the
holding of the meeting by raising technical objections because he was
averse to the proposal that Will. Kelsick should be appointed joint
Managing Director. The evidence of Denis Sydney Blake, which I also
accept 'and to which I shall refer later, confirms this, as does the fact
that reference is made to his attitude at this meeting in paragraph
5 (d) of the letter from the three sisters to him dated 22nd February,

The plaintiff's attitude at this meeting confirmed the three sisters
in their conviction that he w'as unwilling to discuss the Mount Gay
issue with the directors or to co-operate with them in finding a sastis-
factory solution to the differences which 'had arisen between Mrs
Marshall and himself with respect to the part shet was entitled to
take in the management of the business. This conviction, as well as
the plaintiff's statement made to Blake on the same day and later
reported to them, that he had no intention of tolerating the appoint-
ment of Will. Kelsick or anyone else for that matter as joint Manag-
ing Director, caused the three sisters to come to the decision that the
plaintiff shouldd be removed from his office as Managing Director. They
held another informal meeting at Matheson's house on Sunday, 20th
February, at which Will. Kelsick and Fred. Kelsick were also present,
and on the next day they wrote to their two sisters, MmI. Wall and
Mrs. Mallalieu, informing them of their decision. On the 22nd they
wrote the plaintiff the following letter, which he received at 12.15 p.m.,
calling for his resignation ts Managing Director and from the Board
of Directors by 4.00 p.m. of the same day.

22nd February, 1955.

Mr. W. E. L. Wall,
St. Kitts.

Dear Sir,

We regret to inform you that as the majority shareholders
in the firm of S. L. Horsford & Co. Ltd., we consider that it
would not be in the best interest of the company for you to
continue in your present position as Managing Director of the
firm and/or on its Board of Directors.

In view of your long association with the firm it is
naturally with considerable hesitation and only after the most
careful consideration that we have come to this decision, but
it now appears clear that the course of action on which we
have decided is imperative as well as urgent for the future
welfare of the firm.

In the circumstances we give you the opportunity of
tendering your resignation before we take any steps under the
Articles of Association in pursuance of our decision. We! shall
therefore be obliged if you would send your resignation, as
Managing Director and from the Board of Directors, in writing,
to the Secretary of the Comp'any by 4 p.m. today.

We regret to state that unless your resignation is received
by the Secretary within the time stated we shall immediately
requisition the holding of an Extra-ordinary General Meeting
at the earliest possible opportunity to consider 'a resolution
which we shall move for your retirement from your present
position in the company. Among others, our reasons for our
decision are as follows :-

(a) Your actions resulting in the loss to the Company of
the Agency for Mount Gay Distilleries Ltd;

(b) Your failure to discuss the disagreement with Mount
Gay Distilleries Ltd. with the other Directors of the
company before coming to a final decision in the
matter ;

(c) Your conduct towards Mrs. Marshall, a Co-Director,
when she attempted to discuss with you your decision
re the Mount Gay Agency;

(d) Your conduct following on the receipt of a notice
dated 18th February, 1955 from Mrs. J. Jeffrey, pur-
porting to act as Secretary of the Company, summon-
ing a meeting of the Directors, at which purported
meeting you evinced an attitude of non-cooperation
with some of the Directors present;

(e) Your present apparent absence of desire to continue
to cooperate with other members of the Management
and staff of the company which can only result in
serious internal dissatisfaction and dissension and
thereby cause financial loss to the Company;
(f) Your apparent unwillingness to consult the Board of
Directors re important matters of policy as recently
evidenced by your decision in the Mount Gay Agency
and your subsequent unreasonable attitude to Mrs.
SMarshall when she brought the matter before you.
We trust that you will not compel us to bring this matter
before a General Meeting of the Company but we must state
clearly that the decision which we have arrived at is final.
We shall propose to the Company and take all necessary steps
for the payment to you of a reasonable compensation on the
termination of your services.
Yours faithfully,

(Sgd.) Daphne Marshall
,, Bernice Blake
,, Sylvia A. Matheson

The plaintiff did not tender his resignation, and the three sisters re-
quisitioned an extraordinary general meeting of the company to con-
sider the following resolution :
That Mr. Willi'am Eustace Llewellyn Wall be, and he
is hereby removed from office as a Director of this
company. "

The meeting was duly summoned for the 5th March, 1955, and it is
to be noted that in the summons the resolution is described as an
"extraordinary resolution. On receiving the notice, Mr. Matheson,
to whom a number of shares had been transferred on 23rd February,
wrote a letter to the company dated 26th February, 1955 in which
he stated

"When the question arose of my holding, temporarily, a
limited number of shares in the Company, I made it quite
clear that I had no intention of attending any meetings in
connection with the crisis at present confronting the
Company, also that I would only hold the shares during my
wife's absence in the near future in England.

All this was said in the presence of yourself, Mr. F. E.
Kelsick, Mr. Sydney Blake, Mrs. D. Marshall, Mrs. B. Blake
Mrs. J. Jeffrey, and my wife. As the inclusion of my name
as 'a shareholder in the letter mentioned may have caused
misunderstanding of my intentions, I shall be grateful if
the enclosed copies of this letter could ble sent to the other

This letter was circulated to the shareholders, the Secretary confirming
" that the contents of Mr. M'atheson's letter are correct. "

The minutes of the meeting of the 5th March, 1955 are in evidence.
All the shareholders resident m St. Kitts, with the exception of Mr.
Matheson, were present. One shareholder, absent from the Presidency,
was represented by her proxy Mrs. Marshall. After various formalities,
Will. Kelsick, who had been elected Chairman for the meeting, put
the resolution before the meeting as an extraordinary resolution. Will.
Kelsick and the three sisters had been advised by the company's
solicitor that an extraordinary resolution would be effectively passed
if it were passed by a majority of votes on a show of hands or on a
poll vote. It is admitted by the Defence that that advice was incorrect,
and that a three-fourths majority was required. (Sections 89 and 153
of the Companies Act, Cap. 140 of the Federal Acts of the Leeward
Islands.) It is also admitted that although there was a majority in
favour of the resolution it was not passed by the majority required
by law. The plaintiff took no part in the discussion on the
resolution, and neither he, nor his wife nor Mrs. Mallalieu, who both
spoke in his favour, nor anyone else at the meeting, Vaised the question
of the loss of the Mount Gay agency. This is extremely strange, since
it was this issue which had led to the impasse. Both the plaintiff and
the company were of the opinion that the resolution was effective to
remove him from his office of director, 'and consequently Managing
Director. The plaintiff considered that he had been, wrongfully dis-
missed and never went back to work. On the. same day, 5th, March,
the Board of Directors by a majority vote removed the plaintiff from
his office of Managing Director. No evidence was given of this meeting,
but it was admitted in the pleadings and I must assume that it was
properly held. The plaintiff was informed by letter "that as a result
of ran extraordinary resolution duly passed at, an extraordinary general
meeting of the company he had been removed from office as a director,
and consequently had immediately ceased to be Managing Director. On
March 10th the company sent him a cheque, for $14,400 "without
prejudice, and in appreciation of your long association with the

business. This cheque the plaintiff accepted "without prejudice to
any claim which I may make in respect of my removal from office, or
otherwise. On 8th March, Will. Kelsick was appointed Managing
Director, and on 26th April, Lloyd Matheson was appointed joint
Managing Director with him. On the 20th October, 1955 the plaintiff
issued the writs in the present actions (1) against the company for
damages for wrongful dismissal and (2) against thl three sisters,
Lloyd Matheson eid Will. Kelsick for damages for, conspiracy to
procure his dismissal from his employment and: for damages for wrong-
fully procuring the same. By consent, the actions were: consolidated.

I shall deal first with the 'action for wrongful dismissal. The iplain-
tiff alleged that he was 'employed in the company in the year 1932
and as Managing Director in the year 1949 and continued to hold such
office until 5th March, 1955 when the Board of Directors purported
to remove him therefrom; that the company's letter of 5th March
informed him that he was removed from his office of director
and accordingly Managing Diractor by an extraordinary resolution
passed by the company on 5th March; that his dismissal was illegal
and wrongful because the resolution was not passed as required by
law, and because it was against the principles of natural justice
and without just cause ; .nd that as a result he had suffered financial
and other loss.

It may be useful to set out here the relevant articles of the company
dealing with the appointment and position of directors and of a
Managing Director.

85. (7) On the termination of the original management, the
Directors (if any) then in office: shall forthwith
convene a General Meeting of the Company, for the
purpose of electing a Board of Directors, and if they
do not convene such meeting within 14 days after the
termination of the original management any five
members of the Company may convene such meeting.
After the termination of the original management
the Directors shall have power from time to time, and
at any time to appoint any other persons to be
Directors, but so that unless otherwise determined by
a General Meeting, the total number of Directors at
any time shall not exceed seven.

91. The Governing Director or an ordinary Director may
hold office or place of profit in the company in con-
junction with his Directorship, and may be appointed
thereto upon such terms as to remuneration, tenure
of office, and otherwise, as the Governing Director,
or, after the termination of the original management,
in the case of an ordinary Director, as the Directors
may arrange.

92. The Directors may from time to time appoint any one
or more of their body to be Managing Director or
Managing Directors, for such period and upon such
terms as they think fit, and may vest in such Managing
Director or Managing Directors such of the powers
hereby vested in the Directors generally, as they may
think fit, and such powers may be made exercisable

for such period or periods, and upon such conditions
and subject to such restrictions, and generally upon
such terms as to remuneration, and otherwise as they
may determine. The remuneration of a Managing
Director may be by way of salary, or commission, or
participation in profits, or by any or all of those

93. A Managing Director shall not, while he continues to
hold that office, be subject to retirement by rotation,
and he shall not be taken into account in determining
the rotation of retirement of Directors, but he shall,
subject to the provisions of any contract between him
and the Company, be subject to the lame provisions
as to resignation and removal as the other Directors
of the Company, and if he cease to hold the office
of Director, he shall ipso facto and immediately cease
to be a Managing Director.

94. The business of the Company shall be managed by
the Directors, who may pay all such expenses of, and
preliminary and incidental to the promotion, form,
ation, establishment, and registration of the Company
as they think fit, and may exercise all such powers
of the Company, and do on behalf of the Company,
all such acts as may be exercised and done by the
Company, and as are not by the Statutes, or by these
Articles required to be exercised or done by the
Company in General Meeting, subject nevertheless to
any regulations of these Articles, to the provisions of
the Statutes, and to such regulations being not in-
consistent with the aforesaid regulations or provisions,
as may be prescribed by the Company in General
Meeting but no regulation made by the Company in
General Meeting shall invalidate any prior act of the
Directors which would have been valid if such re-
gulation had not been made.

Articles 100 and 101 deal with the retirement of directors by rotation.

107. After the termination of the original management, the
Company may, by Extraordinary Resolution, remove
any ordinary Director before the .expiration of his
period of office, and m'ay, if thought fit, by ordinary
Resolution, appoint .another Director in his stead ; but
any person so appointed shall retain his office so long
only as the Director in whose place he is appointed
would have held the same if he had not been removed.

The only record of the terms on which the plaintiff was appointed
Managing Director is contained in the resolution of the Board of
Directors of 13th April, 1949. This resolution mentions neither period,
nor remuneration. Mr. Christiarn submitted that this resolution and
the course of dealing between the plaintiff and the company constituted
a contract of employment and that the 'Court should imply a term in
such contract that the remuneration which the plaintiff had previously
received as Office Manager should now be paid to him as Managing
Director. He contended that the plaintiff's duties as Office Manager

had merged with his duties as Managing Director with a consequential
increase m salary. The plaintiff's evidence is that after his appoint-
ment as Managing Director he continued in the post of Office Manager,
and that he received no increase of salary between October, 1948 and
February, 1951. He received no additional remuneration in respect
of his new duties, and there is no evidence that the increases
which he subsequently received were given in respect of
them. Under Article 92 of the company's Articles, the power of
determining the remuneration of the Managing Director was vested
in the Board, land they alone could exercise it. Thomas Logan Ltd. v.
Davis, 104 L.T. 914. It does not appear that this matter was ever con-
sidered by the Board. I cannot find that the quantifying of his bonus
in 1950 on 'a basis of 2 /2 per cent. of annual profits necessarily relating
to the plaintiff's office of Managing Director, for Will. Kelsick was
treated in a similar manner, and further, the bonus, though quanti-
fied, retained its quality of a gratuitous payment requiring to be voted
at each annual general meeting by the company, upon whose will
it depended. The plaintiff was not appointed for a fixed period and
it was conceded at the Bar that in those circumstances he was liable
to be removed at any time by an extraordinary resolution of the com-
pany. Similarly, he might have elected at any time to relinquish his
office of Managing Director. It seems clear that in either of these
events he would have continued in his post of Office Manager at what-
ever salary he was then receiving. Moreover, Article 91 expressly
provides that a "director may hold office or place of profit in the
company in conjunction with his directorship and this applies to the
case of the Managing Director, though the office of Managing
Director may carry its own remuneration thus indicating that the
"office or place -of profit land the office of Managing Director are
separate and distinct. I see no ground, therefore, for holding that the
plaintiff's appointment as Managing Director involved a merger with
his employment as Office Manager or that a term as to remuneration
should be implied.

As the plaintiff was appointed without remuneration and for no
fixed period he was merely in the position of a delegate of certain powers
of the directors and his appointment did not constitute 'a contract.
Foster v. Foster (1916) 1 Ch. 533. While it was not disputed that
the company could by an extraordinary resolution remove him
from his office of director, and consequently of Managing Director,
it was suggested that in as much as the resolution of the 5th March
was admittedly ineffective to remove him from his directorship, he was
wrongfully removed by the Board of Directors from his office of
Managing Director. This is in effect a submission that the plaintiff
was entitled to remain as Managing Director so long as he remained
a director. In my view, this is directly contrary to what was decided
in Foster v. Foster, where Peterson J., dealing with a case in which
the article regulating the appointment of a Managing Director was
somewhat similar to Article 92, said (at p.543) :

"In this case also it appears to me that the directors
have power from time to time to appoint any one or
more of their body to be managing director or directors,
and it does not involve as a consequence that, if they
are dissatisfied with the person whom they have ap-
pointed Managing Director, or think that another of
their body would fill the position more adequately, they

are unable to substitute a new managing director in
place of the old one. "

It is to be noted that Article 93 while stipulating that the Managing
Director, though not subject to retirement as a director by rotation,
shall, subject to the provisions of any contract between him and the
Company, be subject to the same provisions as to removal as the other
directors, that is, removal by extraordinary resolution of the Company
in general meeting, does not reserve to the Company in general meet-
ing the power to remove the Managing Director merely from that office
without also removing him from his directorship, as was the case in
Read v. Astoria Garage (Streatham) Ltd. (1952) 2 All ER. 292. Article
92 expressly confers upon the Board the power to appoint a Managing
Director, while Article 94 enables the directors "to exercise all such
powers of the Company, and do on behalf of the Company all such acts
as mray be exercised and done by the Company, and as are not by the
Statutes, or by these Articles required to be exercised or done by the
Company in General Meeting ". In my view the true construction
of these articles is that they give to the directors the power to appoint
and to revoke the appointment of 'a Managing Director from time to
time, subject to any contract which may have been made between him
and the company. I hold that there was no contractual relationship
between the plaintiff and the company in respect of his office of
Managing Director, and therefore no breach of contract, that it was
within the competence of the Board of Directors to remove him. from
that office, and that his removal by the Board by its resolution of 5th
March, 1955 was valid and lawful.

This is sufficient to dispose of the action for damages for wrongful
dismissal; but I must deal with the other issues raised in the case. The
plaintiff alleged that in its decision to remove him from his office of
Managing Director the defendant company contravened the principles
of natural justice in that no charges were alleged against the plaintiff
and consequently the plaintiff was not heard in his defence, and that
his dismissal was without just cause. The allegation that the princi-
ples of natural justice were contravened was not argued on behalf ot
the plaintiff at the trial, and in my opinion rightly so, since this is an
action on an alleged contract of employment rand no question of
natural justice is involved. As to the allegation that the dismissal
was without just cause, if, as I have held, the plaintiff's appointment
as Managing Director was validly terminated, the. question of just
cause does not arise. It is not for the Court, in the absence of fraud,
to enter into the reasons which influenced the Board in arriving at its
decision, or to determine whether or not such cause existed as in a
court of law would be deemed reasonable. Inderwick v. Snell & ors.
2 M. & G. 216; 86 R.R. 73. If, however, I am wrong, and a contract
existed between the plaintiff and the company in respect of his office
of Managing Director which could not be terminated without just cause
then it becomes important to consider whether the company had just
cause for dismissing the plaintiff. Three matters were pleaded as
constituting just cause: (a) that the plaintiff was guilty of conduct
incompatible with the due and proper discharge of his duties to the
company in his dealings with the Mount Gay agency matter; (b) his
declared unwillingness to allow the appointment of a joint Managing
Director or to work with one; (c) abuse and aspersions on the integrity
of 'a fellow director in the presence of the staff. As to (a), I have
already discussed the evidence relating to the plaintiff's conduct in the
matter of the loss -of the Mount Gay agency and his failure to inform

the other directors of the dispute with Mount Gay and of the loss
of the agency. I consider that the termination of the Mount Gay
'agency was a matter of importance to the company about which the
directors were entitled to be consulted, that the plaintiff's conduct in
his dealings with Mount Gay w!as prejudicial to the company's interests,
and that he failed in his duty to the company in not consulting his
co-directors about the dispute or informing them of the loss of the
agency until they had heard of it otherwise. The plaintiff admits that
the decision to let the Mount Gay agency go was a change in the
company's policy. He knew from his experience in 1951 that the
directors did not agree to his effecting changes in policy without con-
sulting the Board. Yet even when, as he thought, Mount Gay was
offering to continue the !agency if he apologised, he never brought the
matter to the notice of the Board or sought the opinion of his co-
directors about it. The point was taken that Will. Kelsick had decided
upon increasing the company's investment in Vat 19 without consulting
the Board. Quite apart from the obvious advantage which would ac-
crue to the company from an acceptance of Fernandes' attractive offer,
it seems to me that there is a clear distinction between the development
of an existing !agency and the termination of an old established and
valuable one. Further, the plaintiff's reluctance to discuss the matter
with Mrs. Marshall or the other directors at a time when Will. Kelsick
was absent from the office, in pursuance of his declared policy of keep-
ing them from taking part in the management of the business, is in-
consistent with his duty to them as Managing Director. A Managing
Director i., an ordinary director to whom the directors have delegated
certain of their powers, but this delegation does not relieve the other
directors from their responsibility to continue to exercise a proper
supervision over the company's affairs, or confer upon the Managing
Director the power to exclude them therefrom. As to (b) I have al-
ready said that I accept Blake's evidence on this point and I think
that the plaintiff showed his intentions by his attitude in blocking
the meeting of the 19th February. This attitude of non-cooperation
with thi wishes of the majority of the directors was clearly against the
interests of the company; it is not difficult to visualise the situation
which would have resulted from a decision to force a joint Managing
Director upon him. Grounds (a) and (b) in my opinion constitute
just cause for the plaintiff's dismissal. Ground :(c) relates to three
occasions, on the 22nd and 23rd February, and the 5th March, 1955
respectively, when incidents occurred between the plaintiff and Will.
Kelick. The incident of the 22nd February arose out of a conversation
between the plaintiff's wife and Will. Kelsick, which the plaintiff's
wife reported to him, as !a' result of which the plaintiff accused Will.
Kelsick of slinging mud at him. The plaintiff admits that he was up-
set and that he considered that Will. Kelsick was trying to poison, his
wife's mind against him. I find that he abused him in the presence
of the office staff, but having regard to the mental stress which the
plaintiff was at the time undergoing and of which the staff must have
been aware I do not think that this could in any way have affected
the discipline of the staff or have been otherwise prejudicial to the
interests of the company. With regard to the alleged remarks to
Spence, the representative of the company's auditors, on 23rd February
the plaintiff denies them, none of the staff was called to support Will.
Kelsick's evidence, and I am not satisfied that they have been proved.
The same applies to the allegation that the plaintiff on 5th March,
accused Will. Kelsick of having fabricated the minutes.

There is one further submission on this action with which I must
even if the plaintiff's appointment as Managing Director did not con-
stitute a contract, yet the evidence showed that it was the company's
intention to dismiss the plaintiff from his cont'!actual employment as
Office Manager, that there was no just cause for this dismissal and that
the piaintiff was accordingly entitled to damages. I am not at all
satisfied that the evidence supports this submission, but it is not neces-
sary for me to consider this, as I do not think the submission helps the
plaintiff. Indeed, it is inconsistent with the basis on which he put
forward his case, namely, that the duties of Office Manager became
merged with those of Managing Director in a new contract of employ-
ment, with an implied term as to remuneration. I have already held
that there is no ground for implying !any such term. The plaintiff's
office of Managing Director was in my view separate and distinct from
his employment as Office Manager, though their duties were performed
concurrently. The plaintiff has based his statement of claim upon his
alleged wrongful dismissal from the office of Managing Director and
not from the post of Office Man'ager, the whole case has proceeded on
this basis and it is now too late for him to endeavour to change his
cause of action.

In my opinion, therefore, the action of wrongful dismissal fails.

I turn now to the action for conspiracy. The question to be de-
cided is whether on the facts as set out above the defendants are liable
to the plaintiff for illegal conspiracy. I adopt the! definition of con-
spiracy as set out by Viscount Simon in Crofter Hand Woven Harris
Tweed Co. v. Veitch (1942), 1 ALL E.R. 142, (to which I shall herein-
after refer as Crofter's case) at p. 146 :

"Conspiracy when regarded as a crime, is the 'agreement
of two or more persons to effect any unlawful purpose,
whether as their ultimate aim or only as a means to it,
and the crime is complete if there is such agreement,
even though nothing is done in pursufance of it. (I am
omitting consideration of those cases; on the borderland
of illegality, where the combination was held to amount
to a criminal conspiracy because the purpose aimed at,
though not perhaps specifically illegal, was one which
would undermine principles of commercial or moral
conduct.) The crime consists in the agreement,
though in most cases overt acts done in pursuance of
the combination are available to prove the fact of
agreement. The tort of conspiracy, however, is con-
stituted only if the agreed combination is carried into
effect in a greater or less degree and damage to the
plaintiff is thereby produced. It must be so, for, regard-
ed as s civil wrong, conspiracy is one of those wrongs
(like fraud or negligence) which sounds in damage,
and a mere agreement to injure, if it was never acted
upon at all land never led to any result affecting the
party complaining, could not produce damage to
him ".

The plaintiff, therefore, in order to make out his case, must establish
(a) agreement between the defendants (b) to effect tan unlawful pur-
pose (c) resulting in damage to the plaintiff. In his statement of

Claim, as amended, he alleges that the defendants with intent to injure
him wrongfully 'and maliciously conspired to bring about his removal
from hi,3 office of Managing Director by purporting at an extraordinary
meeting held at their instance to pass an extraordinary resolution,
without the majority required by law, removing him from his office of
director and consequently of Managing Director; that the Board of
Directors purported by a majority vote to remove him from his office
of Managing Director; and that he has suffered damage as a conse-
quence of the said conspiracy in that he is not receiving his salary and
commissions. At the close of the case for the plaintiff I held, uphold-
ing 'a submission made by Mr. Butt, that there was no case for the
defendants Will. Kelsick and Lloyd Matheson to answer, as there was
no evidence from which it could reasonably be inferred that either of
them had conspired at all. In my judgment, the evidence, in particu-
lar Matheson's letter of 26th February, 1955 and the fact that he did
not attend the meeting of the 5th March, showed clearly that Matheson
dissociated himself from any combination to induce the company to
remove the plaintiff from his office; and there was no evidence that
Kelsick did anything more than was his duty as Secretary of the com-
pany or, though present at the informal meetings of the 17th and 20th
February held at Matheson's house, took part in the combination
against tha plaintiff. That feelings were strained between them and
the plaintiff after their return from England in February is clear, but
this does not in my opinion constitute evidence of conspiracy. Accord-
ingly I dismissed the case against these two defendants.

On behalf of the three sisters (Daphne Marshall, Bernice Blake
and Sylvia Matheson) it was submitted that the plaintiff had no cause
of action because (1) shareholders cannot in contemplation of law
conspire to do an act which can only be done at all in combination
between them and which they have a lawful right to combined to do, (2)
directors cannot conspire to do an act which they can only do in com-
bination. In support of his submission counsel referred to De Jetley
Marks v. Greenwood and others, (1936) 1 ALL E. R. 863; Said v. Butt
(1920) 3 K.B. 497: Scammell v. Hurley (1929) 1 K.B. 419. I agree with
this submission in so far as it relates to shareholders acting in general
meeting and to directors acting in Board meeting, for the reasons stated
by Mc. Cardie J. in Said v. Butt (supra) at pp. 504 to 507. Me. Cardie J.,
in his valuable judgment, pointed out that in all the cases in which
liability for the tort of procuring one person to commit a breach of his
contract with another had been established, the person who procured
the breach of contract was, in fact, a stranger, that is, a third person,
who stood wholly outside the bargain made between the two contrac-
ting parties. This observation appears to be just as true today as it
was in 1920. But I do not think that the reasoning of Me. Cardie J.
applies to shareholders acting outside of a general meeting since they
are not the servants or agents of the company and can in no sense be
deemed its alter ego. I think that some, at any rate, if not all of the
shareholders could conspire, before the meeting was held, to induce
the company in general meeting to break its contract, or, as in this
case is alleged, to remove a Managing Director with intent to injure
him. Further, in so far as the three sisters are concerned, it is at least
doubtful whether the proposition covers the facts of this case; for each
of them held sufficient shares to enable her individually to requisition
a meeting, yet they combine to do so. It is this combination which
might make their conduct unlawful, for as Lord Macnaghten affirmed
in Quinn v. Leathem (1901) A.C. 495, at p. 510, basing himself on the
words of Lord Watson in Allen v. Flood (1898) A.C. 1, at p. 108:

"a conspiracy to injure might give rise to civil liability
even though the end were brought about by conduct and
acts which by themselves and apart from the element
of combination or concerted action could not be re-
garded as a legal wrong ".
The question is however a difficult one and as in the view that I have
taken of this case it is not necessary for me to decide it, I express no
final opinion upon it.

It was agreed at the Bar that the law applicable to the tort of
conspiracy is that stated in Sorrel v. Smith (1925) A.C. 700, and later
analysed and explained in Crofter's Case. In the latter case the two
propositions formulated by Lord Cave, L.C., in Sorrell v. Smith, (supra)
e.t p. 712, as resulting from the famous trilogy of cases, while con-
sidered to be not necessarily exhaustive, were accepted 'as sound.
They are as follows:

(1) A combination of two or more persons wilfully to
injure !a man in his, trade is unlawful and if it results
in damage to him, is actionable.

(2) If the real purpose of the combination is, not to in-
jure another, but to forward or defend the trade of
those who enter into it, then no wrong is committed
and no action will lie, although damage to another
These propositions recognize the distinction between a conspiracy to
injure and a se;t of acts dictated by business or other legitimate interest.
The word injure in the first proposition is to be understood in its
correct meaning of wrongful harm. The plaintiff must prove that he
has been damnified by tortious action. He does not prove that by
showing that he has been harmed by acts done by the defendants in
combination these acts being, apart from any question of combination,
otherwise within the defendants' rights. It is: not for the defendants to
justify these acts. The plaintiff must establish that he has been dam-
nified by a conspiracy to injure that is, that there was a wilful and
concerted intention to injure without just cause and consequent
damage. It is not a question of onus of proof. It depends on the cause
of action. The plaintiff has to prove the wrongfulness of the de-
fendants' object. Per Lord Wright in Crofter's Case, 'at pp. 162, 163.

It was submitted by Mr. Christian that the defendants (the three
sisters) had combined to do an unlawful act, namely, to induce the
company to pass a resolution for the plaintiff's removal from his
office of director, in order that he might consequently cease to be
Managing Director, reckless as to whether or not they possessed the
majority necessary to that this submission fails. There is no evidence that either the com-
pany, or Will. Kelsick who was elected 'Chairman of the meeting of the
5th March, or the defendants individually, acted recklessly. On the
contrary, it is clear that throughout the period they were. acting in
close consultation with the company's solicitor, Fred Kelsick who was
also their personal solicitor, and that on this very question of the
majority required for the passing of an extraordinary resolution both
they and the company sought and obtained his advice. I find that
Will. Kelsick and the three sisters acted bona fide upon that advice,

and the fact that that advice was incorrect cannot in any way be
attributed as a fault to them. It was contended that the resolution
itself was illegal because improperly passed; that even though otherwise
lawful, it w'as rendered unlawful because of the mistake in the pro-
cedure adopted for passing it. I do not agree. The true legal result
seems to me to be that the resolution was not in fact passed as an extra-
ordinary resolution and was therefore ineffectual to accomplish its

Since the resolution was ineffective, the act which the company
attempted to do by it was never accomplished, and the plaintiff suffer-
ed no injury as a result of it. Did he suffer any from the act of the
Board of Directors in removing him from his office? In reality, this
question only arises on the assumption that the three sisters induced
the Board to remove the plaintiff, a iact of which there is no direct
evidence. However, even assuming that they did, I have already held
that his appointment as Managing Director did not constitute a con-
tract, that there was no wrongful dismissal, and that his removal was
lawful; so that the plaintiff suffered no injury. As to the damage
alleged, the plaintiff's appointment to the office of Managing Director
attracted no pecuniary emoluments, and no damage ensued from its

On the facts of the case, I have formed the clear opinion that the
real purpose of the defendants' combination was to defend and forward
their business interests. It was admitted by the plaintiff that the three
sisters, and in particular Mrs. Marshall were dissatisfied by his actions
and conduct in connection with the Mount Gay affair. Their dissatis-
faction showed itself in Mrs. Marshall's challenging his actions in
December, 1954, rand in the strained feelings which existed between them
as a result. On the return of Mrs. Matheson and Will. Kelsick in Feb-
ruary they proposed the appointment of Will. Kelsick as joint Manag-
ing Director as a possible solution. Rightly or wrongly, in my view
rightly, they formed the impression from the plaintiff's action in
opposing the meeting of the 19th February and his statement to Blake
that he would be unwilling to work with a joint Managing Director,
that it would be against the interest of the company and of themselves
as majority shareholders either to force one on him or to allow him to
continue in office. I am unable to accept Mr. Christian's submission
that the defendants' were motivated in, their decision to remove the
plaintiff by the fact that he had taken exception to Mrs. Jeffrey's hav-
ing signed the summons for the. meeting of the 19th. I think they
were concerned with a much graver issue than that the harmonious
management land administration of the company's business and the
fact that only loss could accrue to a house divided against itself. It
is not for this Court to enter into the question whether or not they
acted hastily, or whether a different or more tactful approach to the
plaintiff, in view of his long and successful association with the busi-
ness, and the personal family relationship which existed, might have
yielded different results. It is sufficient that I am satisfied that they
acted bona fide for the protection of their business interest, and that
this and not tan intention to injure the plaintiff was their true purpose.
This being so, the case falls within the second of Lord Cave's proposi-

The plaintiff has failed to prove a conspiracy to injure him or that
he has suffered damage, and the faction accordingly fails.


In the result, both actions are dismissed with costs.

(Sgd.) A. M. LEWIS,
Acting Puisne Judge.

S. T. Christian and M. H. Davis for plaintiff.

Malcolm Butt Q.C. and G. P. Boon for defendants.


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