republic of trinidad and tobago in the high court of...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE Claim No. CV2014-04852

BETWEEN

CEMCU CREDIT UNION CO-OPERATIVE SOCIETY LIMITED (FORMERLY TRINIDAD CEMENT EMPLOYEES CREDIT UNION

CO-OPERATIVE SOCIETY LIMITED) Claimant

AND

TRINIDAD CEMENT LIMITED Defendant

AND

EDWARD DURITY

Proposed Second Defendant

Before the Honourable Mr. Justice V. Kokaram

Date of Delivery: Friday 19 June 2019

Appearances:

Mrs. Lynette Maharaj SC leads Mr. Alvin Ramroop instructed by Ms. Shaheera Allahar, Attorneys at Law for the Claimant. Mr. Jason K. Mootoo instructed by Ms. Gitanjali Gopeesingh, Attorneys at Law for the Defendant. Mr. Keith C. Scotland instructed by Ms. Jacqueline Change, Attorneys at Law for the Proposed Second Defendant.

JUDGMENT

1. By Notice of Application1, Mr. Edward Durity is seeking permission to be joined as a party to

1 Notice of Application filed 10th October, 2017. Amended Notice of Application filed 15th May, 2019

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proceedings between the Claimant, CEMCU Credit Union Co-Operative Society Limited

(CEMCU) and the Defendant, Trinidad Cement Limited (TCL). In those proceedings CEMCU

claims that it is entitled among other things, to an equitable assignment of monies due to

several of the employees of TCL who are members of CEMCU. CEMCU also obtained an

injunction in these proceedings restraining TCL from paying the said monies to those

members. Mr. Durity is one of those members and he claims that he did not authorise the

assignment of his monies to CEMCU. He has also applied for an order pursuant to Rule

26.1(1)(w) of the Civil Proceeding Rules 1998 (CPR) that the injunction2 be discharged and all

2 Order dated 11th November, 2015 states: UPON READING the Claimant’s Notice of Application and the Affidavit of Dr. Anthony Elias sworn to and filed on the 29th October 2015, the Claimant’s Claim Form and Statement of Case filed on the 22nd December 2014, together with the Claimant’s without notice Application filed on the 22nd December 2014, the Affidavit of Darren Singh sworn and filed on 22nd December 2014 and the Supplemental Affidavit of Darren Singh sworn on the 22nd December 2014 and filed on the 23rd December 2014 and the order of the Honourable Madam Justice Dean Armorer dated 22nd December 2014 continued on the 02nd January 2015 until 12th January 2015 and the undertaking by the Defendant through its Counsel dated 12th January 2015 which was continued to 06th February 2015 and thereafter 20th March 2015 and 11th May 2015 and the fresh injunction order 11th May 2015 continued on 26th June 2015 until 13th October 2015 and thereafter continued by order dated 01st October 2015 to 27th November 2015 UPON this application being dealt with in chambers without a hearing.

AND UPON the Claimant undertaking to abide by any order this court may make as to damages in case this Court shall hereafter be of the opinion that the Defendant shall have suffered any such damages by reason of this order which the Claimant ought to pay

IT IS ORDERED that

1) The Injunction granted by the Honourable Mr. Justice Kokaram on the 11th May 2015 and continued on the 26th June 2015 until the13th October 2015 or further order in respect of the employees of the Defendant (TCL) listed in exhibit to the Supplement Affidavit of DARREN SINGH sworn on the 22nd December 2014 and marked “D.S.8” be varied to read

a) The Defendant (TCL) by its directors, managers, agents, accountants, employees or by any other person in any other way be restrained from paying out to the employees of the Defendant (TCL) listed hereunder all or any of the sums payable by the Defendant (TCL) to them which they have by letters of authorization authorized by the Defendant (TCL) to pay to the Claimant (Credit Union) by way of repayment to the Claimant (Credit Union) of loans advanced to them on the condition that they issued irrevocable authorization to the Defendant (TCL) to deduct the repayment sums and pay same over to the Claimant (Credit Union);

I. Earl Alexander II. Richard Alexander III. Edward Durity IV. Mark Lee V. Radrehs Seedath VI. Joseph Henry VII. Dale Indarsingh VIII. Michael Joachim IX. Kennedy Lord

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monies held in escrow pursuant to that order be paid to him.

2. The grounds of the application are:

(a) Mr. Durity is an employee of the TCL and holds the position of Shift supervisor.

(b) There are issues between the parties that involve Mr. Durity which is connected to

the matter in dispute in these proceedings.

(c) On 10th February, 2008, Mr. Durity applied to the CEMCU for a residential mortgage

loan for his private property located in Siparia, Trinidad in the sum of $2,205,000.00.

X. Errol Narine XI. Donalson Wickham XII. Francis Daniel XIII. Reuben De Peza XIV. Christopher R. Holder XV. Keith Johnson XVI. Crishen Jorsingh XVII. Peter Ramdeen XVIII. Eric Kevin Simon

And that the injunction in respect of the following members be discharged:-

i. Sheldon Pascall ii. Carl Baptiste iii. Eversley Baptiste iv. Justinson Superville v. Ernest Martin vi. Sherwin Mc Donald vii. Gary Nelson viii. Bianca James Alexander ix. Gary Harper x. Brian Spencer xi. Reece Cowin Francis xii. Timothy Huggins xiii. Hezekiah Muckette xiv. Arjun Singh xv. Deo Soogrim

b) The Defendant (TCL) by its directors, managers, agents, accountants, employees or by any other person or in any other way be restrained from accepting from the members listed as I to XVIII above, letters of revocation revoking their letters of authorization to the Defendant (TCL) TO DEDUCT FROM THEIR SALARY AND/ OR BACK PAY SUMS OWED BY THE MEMBERS TO THE Claimant (Credit Union).

c) The Defendant (TCL) will stop payment on all cheque payments made to the members/ employees listed at I to XVIII above in breach of their letters of authorization to deduct from their wages monies payable to the Claimant and/ or to pay their back pay to the Claimant until 27th November, 2015 or further order.

That the costs of this application be the Claimant’s in any event.

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(Loan 1).

(d) Mr. Durity did not sign/execute/provide for TCL with an irrevocable letter of

authorization for deductions to be made from his salary relative to Loan 1.

(e) The letter of authorization dated 28th February, 2008 makes no mention of salary

deductions being made from Mr. Durity’s salary.

(f) In or around July 2008, Mr. Durity obtained a second loan from CEMCU for a

commercial mortgage for the purchase of a property in Tobago in the sum of

$2,593,500.00.

(g) Mr. Durity did not sign/execute/provide for TCL with an irrevocable letter of

authorization for deductions to be made from his salary relative to Loan 2.

(h) At no time did he sign any document authorizing deductions to be made from his

salary relative to either Loan 1 or Loan 2.

(i) CEMCU’s claim is misconceived in that the injunction and claim was premised on non-

payment of Loan 2, however, the purported irrevocable letter of authorization dated

28th February, 2008 relied upon in support relates to Loan 1 which in any event, Mr.

Durity contends that he did not agree to in respect of salary deductions being made

towards the loan repayment for Loan 1.

(j) A primary issue in these proceedings relates to the application/authenticity/legality

of the purported irrevocable letter of authorization dated 28th February 2008 issued

by Mr. Durity to TCL which formed the basis of the CEMCU’s claim and the injunction.

(k) Notwithstanding that CEMCU did not receive permission/written authorization from

the Commissioner of Co-operative Societies as mandated by section 43(2) of the Co-

operative Societies Act Chapter 81:03, CEMCU granted Loans 1 and 2 to Mr. Durity.

Loan 2 was granted as part of a joint business venture with CEMCU’s manager and

deponent in this matter, Mr. Darren Singh.

(l) Loans 1 and 2 are illegal, null and void and of no legal effect not being duly authorized

in accordance with section 43(2) of the Act.

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(m) On 3rd July 2014, CEMCU’s claim CV2013-01967 against Mr. Durity in respect of Loan

1 was dismissed by Aboud J. Subsequently, Mr. Durity referred the dispute to the

Commissioner against CEMCU regarding Loan 1 and that dispute remains unresolved.

(n) CEMCU referred a dispute to the Commission in case reference CU09010222 against

Mr. Durity and the Claimant’s deponent, Mr. Darren Singh for breach of contract

relative to Loan 2. The Commissioner in his judgment dated 7th May, 2015 found Loan

2 to be unenforceable.

(o) On 5th February in case reference CU09010222 the Commissioner made an order in

favour of CEMCU against Mr. Durity and Mr. Darren Singh in the sum of $5,919,847.20

in respect of Loan 2.

(p) The Commissioner’s judgment dated 7th May 2015 stated that it was understood that

Aboud J shared the view that CEMCU could not assume a carte blanche approval as

permission for a mortgage according to the Act.

(q) Mr. Durity has appealed the Commissioner’s decision which is pending appeal.

(r) Mr. Durity has in his possession expert evidence namely a report from Mr. Glen

Parmassar hand writing expert which verifies that Mr. Durity’s signature was

transposed from letter of 28th February 2008 to 2nd July 2008.

(s) On 9th March 2016, CEMCU commenced fresh proceedings CV2016-00688 against Mr.

Durity and Mr. Darren Singh seeking registration of the terms of the order made by

the Commissioner for the sum of $5,919,847.20 relative to Loan 2.

(t) Proceedings were commenced by CEMCU against Mr. Durity for an assessment of

means and liabilities which is engaging the attention of this Court.

(u) The application for the injunction was misconceived and erroneously premised.

(v) Mr. Durity has not received any of his salary since January 2015 and is aggrieved.

(w) He has suffered and continues to be gravely affected as a consequence of the interim

order, in that he has no source of income and he and his family are presently living off

handouts from family and friends and has mounting debts which are yet to be

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satisfied.

(x) Mr. Durity requires access to his salary funds being held in escrow pursuant to the

interim injunction in order to facilitate his day to day living needs and mounting debts.

(y) CEMCU will not be prejudiced if the injunction was discharged as they have in their

favour a registered judgment against Mr. Durity relative to Loan 2 and Mr. Durity’s

dispute regarding the validity of Loan 1 is before the Commission for determination.

Brief Facts

3. CEMCU is a Credit Union and Co-operative society registered under the Co-operative

Societies Act Chapter 81:03. CEMCU contends that by an irrevocable letter of authorization

some of its members who are employees of TCL authorized TCL to deduct from their salary

and back pay certain sums which were paid over by TCL to CEMCU so as to repay the loans

which CEMCU had made to them under loan agreements.

4. Some of CEMCU’s members were terminated by TCL and they were not paid so that TCL

ceased making payments on behalf of those members and their loans fell into arrears. The

members were subsequently reinstated and TCL was processing payments to them but failed

to deduct monies which had to be paid to CEMCU. Some of the members revoked the

irrevocable instructions and TCL paid them without making deductions.

5. On 22nd December 2014, CEMCU brought a claim against the TCL and sought interim

injunctive relief for an order that TCL honour an equitable assignment made by the members

including Mr. Durity of their bonus, dividend, back pay and salary in favour of CEMCU. The

injunction was granted and CEMCU applied for an order that the interim injunction granted

be continued until the hearing and determination of the claim. By order dated 27th November,

2015, it was ordered by consent that the injunction be varied so that the injunction in respect

of certain members were discharged and the injunction in respect of other members

continue. Mr. Durity was one member in respect of whom the injunction continued.

6. Mr. Durity contends that he did not sign the “LOAN REPAYMENT AUTHORISATION” section of

an “Application for Loan” relative to Loan 1. In March 2009, he requested to view his file with

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CEMCU and upon viewing same he observed the signature “E.DURITY” that now appears on

the bottom half at the back of the form under “LOAN REPAYMENT AUTHORIZATION” with the

date 28th February 2008. He contends that at no time was that signature and date inserted

by him.

7. Further, he did not agree for the entirety of his salary or monthly sum of $27,177.00 to be

taken from his wages and forwarded to CEMCU. The only deductions to be made relevant to

Loan 1 was with respect to his bonus, dividend and backpay. In any event, the sum of

$27,177.00 exceeds his monthly salary and is contrary to CEMCU’s policies and procedures

for loans which states that “a member’s monthly commitment would not exceed fifty percent

of gross salary.”

8. Mr. Durity maintained that at no time did he sign any authorization form permitting TCL to

deduct money from his salary and forward same to CEMCU in respect of Loan 1.

9. CEMCU contends that pursuant to the terms of the injunction, TCL has deducted

$27,177.00/monthly from the salary of Mr. Durity and has held his bonus, dividend and back

pay pursuant to the equitable assignment, however, it is being held in an escrow account and

TCL has not paid it over to CEMCU.

10. CEMCU further contends that on 28th February, 2008, Mr. Durity attended the CEMCU’s office

and completed the “Loan Agreement” and “Loan Repayment Authorization” sections setting

out that in consideration of CEMCU granting him a loan, Mr. Durity authorizes TCL to deduct

from his wages the sum of $27,177.00 plus interest and pay same to CEMCU. Mr. Durity’s

signatures for the “Loan Agreement” and the “Loan Repayment Authorization” was

witnessed by H. Gopaul. Mr. Durity was given a letter dated 28th February, 2008 advising that

the loan application was approved and that the approval was subject to certain requirements

set out therein and he signed that letter. On the said date, Mr. Durity also signed a completed

“Loan Refinancing Form” setting out that increased deduction was $27,177.00.

11. Thereafter, CEMCU notified TCL of the irrevocable authorization signed by Mr. Durity when

CEMCU forwarded a copy of the form with the Loan Repayment Authorisation and the

Request to adjust Mr. Durity’s payroll deduction dated 8th March 2018. The records of CEMCU

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show that the instalment for payment of this loan was made by (1) deductions from the sum

of $13,000.00 from the Mr. Durity’s salary and (2) deductions from Mr. Durity’s shares in the

sum of $14,000.00 per month. This continued until August 2010.

12. Subsequently, Mr. Durity was terminated by TCL and his loans fells into arrears and CEMCU

took steps to set off against the loans, the shares and other entitlements of Mr. Durity in

CEMCU. Mr. Durity along with other members issued stop notices to TCL revoking his

authorisation for the deductions from his salary and backpay. When Mr. Durity was re-

instated, TCL failed to pay CEMCU the monies due and owing and instead paid monies directly

to the members.

13. CEMCU contends that the issue being raised by Mr. Durity touches the business of CEMCU

between Mr. Durity who is a member and CEMCU and ought to be referred to the

Commissioner for Co-operative Development for resolution pursuant to section 67(1) of the

Co-Operative Societies Act.

14. CEMCU also contends that Mr. Durity’s second loan has nothing to do with the current claim.

The Issues

15. The following issues therefore arise for consideration:

(a) Whether it is “desirable or necessary” to add Mr. Durity to resolve the matter in dispute

or in controversy in these proceedings.

(b) Whether the issue concerning the validity of the letters of authorisation executed by Mr.

Durity are matters which touches the business of CEMCU qua member/society and ought

to be referred to the Commissioner.

(c) Whether Mr. Durity’s application amounts to an abuse of process.

(d) If Mr. Durity is to be joined as a party, what consequential orders should be made, either:

(i) discharging the injunction in relation to the withholding of the salary of Mr. Durity or

staying the proceedings in relation to Mr. Durity’s claim.

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The Joinder Application

16. Rule 19.2(3) of the CPR bestows upon the Court a wide discretion to add a new party to the

proceedings:

“19.2(3) The court may add a new party to proceedings if—

(a) it is desirable to add the new party so that the court can resolve all the matters in

dispute in the proceedings; or

(b) there is an issue involving the new party which is connected to the matters in dispute

in the proceedings and it is desirable to add the new party so that the court can resolve

that issue.”

17. CEMCU submitted that Mr. Durity’s application for Joinder as a party can only be to be joined

as a defendant pursuant to part 19.4 of the CPR which provides:

“19.4 However—

(a) Where a claimant claims a remedy to which some other person is jointly entitled with

him all persons jointly entitled to the remedy must be parties to the proceedings, unless

the court orders otherwise.

(b) If any person does not agree to be a claimant, he must be made a defendant, unless

the court orders otherwise.

18. This rule, however, is not applicable to Mr Durity. He is not someone who is jointly entitled

to the remedy being sought by TCL and does not agree to be a Claimant. So for example, the

letter of authorisation may have been signed to satisfy debts to two creditors. In that case

both creditors ought to be Claimants unless one creditor does not agree to be a Claimant in

which case he must be added as a Defendant. Mr. Durity has, in my view, correctly invoked

the proper rule of 19.2(3) which is the procedural device for the Court to ensure that all

parties connected to the matters in dispute should be made a party to the proceedings. Of

course depending on their connection to the dispute either as a Claimant or Defendant.

19. In United Film Distribution v Chhabria [2001]EWCA Civ 416, it was observed:

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“[38] Although the Rules of the Supreme Court have been replaced by the Civil Procedure

Rules, it is not suggested that ….the circumstances in which a person may properly be

joined as a defendant to a claim are narrower under r 19.2(2) of Civil Procedure Rules

than under its relevant predecessors, namely Ord 15 rr 4(1) and 6(2)(b) of the Rules of

the Supreme Court. Rule 19.1(2) of the Civil Procedure Rules provides that the court may

order a person to be added as a new party if (a) it is desirable to add the new party so

that the court can resolve all the matters in dispute in the proceedings or (b) there is an

issue involving the new party and an existing party which is connected to the matters in

dispute in the proceedings, and it is desirable to add the new party so that the court can

resolve that issue. The court's power to add or substitute a party is wide. Although the

expression “necessary or proper party” to the claim does not appear in that rule it can

scarcely be supposed that the court would order a person to be added or substituted as

a party on the ground that it is “desirable” to do so if that person were not either a

necessary or a proper party to the claim in question.

20. In Pegang Mining Company Limited v Choong Sam and others PC Appeal Number 5 of 1968

Lord Diplock noted:

“It has been sometimes said as in Moser v. Marsden (1892 1 Ch. 487) and in In re I.G.

Farbenindustrie A.G. (1944 Ch. 41) that a party may be added if his legal interests will be

affected by the judgment in the action but not if his commercial interests only would be

affected. While their Lordships agree that the mere fact that a person is likely to be better

off financially if a case is decided one way rather than another is not a sufficient ground

to entitle him to be added as a party, they do not find the dichotomy between “legal” and

“commercial” interests helpful. A better way of expressing the test is: will his rights

against or liabilities to any party to the action in respect of the subject matter of the action

be directly affected by any order which may be made in the action?”

21. The main dispute in these proceedings between CEMCU and TCL concerns the obligation of

TCL to deduct certain entitlements due to its employees to satisfy their mortgage and loan

commitments to CEMCU. Such an obligation arises on the basis of letters of authorisation

executed by the employees of TCL. The claims sought in these proceedings against TCL is

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therefore grounded in trust and that of the equitable assignment of salary and benefits by

Mr. Durity to CEMCU who is entitled to call upon the trustee of those benefits, TCL, to pay

same over to it without notice to the assignor, Mr. Durity.3

22. TCL, of course, are strangers to the authenticity of these instruments of authorisation

3 The reliefs sought include the following:

a) A declaration that the irrevocable letters of authorization listed in Appendix “C” in the Statement of Case filed herewith and given by the listed Credit Union members to the Claimant (Credit Union) and notified by the Claimant (Credit Union) to the Defendant (TCL) are equitable assignments by the members to the Claimant (Credit Union) of monies due to them by the Defendant (TCL) in respect of their employment with the Defendant (TCL).

b) A declaration that the Defendant (TCL) is a constructive trustee for the Claimant (Credit Union) as a beneficiary of all or part of the salary and/or back pay owed by the Defendant (TCL) to the employees who are the members of the Claimant (Credit Union) and which the member employees irrevocably authorize the Defendant (TCL) in writing to deduct and pay over to the Claimant (Credit Union) by way of loan repayment.

c) A declaration that the Defendant (TCL) as constructive trustee of the funds irrevocably authorized by members to be deducted from the members’ salaries and/or back pay and be paid to the Claimant (Credit Union) was not authorized to accept a revocation of the authorization to pay over the said funds to the members and such acceptance was improper and a breach of trust.

d) A declaration that by reason of the equitable and/or illegal assignment of monies from their salary and/or back pay owed to the members/employees and notified to the Defendant (TCL), the Defendant (TCL) owed to the Claimant (Credit Union) a duty of care to deduct and pay over to the Claimant (Credit Union) the assigned funds which they breached.

e) Damages for negligence. f) Damages for breach of trust. g) An injunction to restrain the Defendant (TCL) by its directors, managers, agents, accountants, employees

or by any other person or in any other way from paying out to the employees of the Defendant (TCL) named in the list annexed to the Statement of Case filed herewith and marked Appendix “B” all or any of the sums payable by the Defendant (TCL) to them which they have by letters of authorization authorized the Defendant (TCL) to pay to the Claimant (Credit Union) by way of repayment to the Claimant (Credit Union) of loans advanced to them on the condition that they issued irrevocable authorization to the Defendant (TCL) to deduct the repayment sums and pay same over to the Claimant (Credit Union) pending the hearing and determination of the claim herein or at all.

h) An injunction restraining the Defendant (TCL) from accepting from the members, letters of revocation revoking their letters of authorization to the Defendant (TCL) to deduct from their salary and/or back pay sums owed by the members to the Claimant (Credit Union) pending the hearing and determination of the claim herein or at all.

i) An injunction directing the Defendant (TCL) to pay over to the Claimant (Credit Union) with interest thereon all monies assigned to the Credit Union by the members/employees by their irrevocable letters of authorization to deduct.

j) An order directing the Defendant (TCL) to put a stop payment on all cheque payments made to he listed members/employees in breach of the constructive trust pending the hearing and determination of the claim herein.

k) An order that the Defendant (TCL) do pay to the Claimant (Credit Union) all monies due under the equitable assignments by the members and/or employees together with interest thereon.

l) Such further or other relief as the Court may deem fit. m) Costs.

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between Mr. Durity and CEMCU. However, to date the injunction against TCL making

payments to the employees have correctly been continued and parties have been in

negotiations. As a result of those negotiations the injunctions have been varied to permit its

discharge against various employees over time. The Court is unaware of the reasons and

circumstances for the variation save that the parties agreed that is should be done.

23. TCL, of course, cannot dispute the issue of the authorisation of the letters unless they have

the evidence to deal with that issue. Understandably, that evidence can only come from its

own employees to confirm or refute the authenticity of those letters. The nature of the

dispute, therefore, is one which is invariably connected to these proceedings in that if Mr.

Durity’s propositions are proven on the balance to be sound, there would be no basis to order

repayment from him in the terms prescribed by the loan agreement. It would therefore be

desirable to add Mr. Durity as a party to these proceedings.

Jurisdiction of the Court to Determine the Dispute

24. However, section 67 (1) of the Co-operative Societies Act ousts the jurisdiction of the Court

over disputes between the Credit Unions and its members touching the business of the

society. Section 67(1) provides:

“67. (1) If any dispute touching the business of a society arises—

(a) among members, past members and persons claiming through members, past

members and deceased members;

(b) between a member, past member, or person claiming through a member, past

member or deceased member, and the society, its board, or any officer of the society;

(c) between a member and the society arising out of or under any bye-law or bye-laws

relating to the disposal of the produce of agriculture or animal husbandry, or under any

contract, made under section 27;

(d) between the society or its board and any officer of the society;

(e) between the society and any other society; or

(f) between the society and any of its creditors,

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the dispute shall be referred to the Commissioner for decision.

25. There is a long line of cases setting out the history and purpose of this exclusion of the Court’s

jurisdiction.

26. In Western United Credit Union Co-Operative Society Limited v Corrine Ammon Civ App No.

103 of 2006, Kangaloo JA observed:

“…it must be borne in mind that the Supreme Court does not lightly relinquish its

jurisdiction. Thus any statutory provision which attempts to oust its jurisdiction must be

clearly worded and strictly construed.”

“The court’s approach to the construction of ouster clauses is prescribed by well-settled

principles which were set out in the judgment of Luckhoo J.A. in Guyana Sugar

Corporation v Seeram Teemal as follows:

“(1) the jurisdiction of the court was not ousted by statute expect by express

words or by necessary implication; (2) a statute imposing restrictions upon a

citizen’s right of action in a court should be strictly construed and should not be

extended beyond what the words used actually covered; and (3) where a right or

liability not existing at common law was created by statute, which gave a special

remedy for enforcing it or appointed a specific tribunal for its enforcement, a party

seeking to enforce his right must resort to that remedy or to that tribunal and not

to others… The rights of a citizen must always be the concern of the courts unless

their jurisdiction is clearly excluded by some express statutory provision or by

necessary implication”

27. The Court of Appeal found that in determining whether the High Court lacked jurisdiction,

the issues to be determined were:

“(i) Whether the dispute was one which touched the business of the Defendant.

(ii) Whether the dispute must be as a result of the member’s membership of the appellant

or whether membership is merely incidental to the dispute.”

28. With regards to the first issue, Kangaloo JA gave the following guidance:

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“8. Any attempt at a liberal interpretation of section 67 would clearly fall afoul of the strict

interpretation which is regularly placed upon ouster clauses.”

9. To my mind the better view is that the meaning of the phrase “touching the business

of the society” must be informed by the objects of the society. This approach serves to

mitigate the risk that the scope of section 67 would be widened so as to include every

dispute involving a Co-operative Society. In this appeal guidance as to the objects of the

appellant can be derived from its bye-laws.”

29. With respect to the second issue, it was observed:

“…I am of the view that in order for section 67 to apply the dispute must be between the

society and a member in his capacity as member. Thus section 67 cannot apply to a

situation where the membership is merely incidental to the dispute. This approach is

consistent with that of Koylass J in David Rhyzer v Diego Martin Consumers Co-operative

Society Ltd where it was held that a dispute concerning the payment of rent and an

alleged distress did not fail within section 67 because, inter alia, it did not arise between

the society and the member in his capacity as a member. Similarly, in the instant appeal

the dispute surrounding the respondent’s terminal benefits arose between the appellant

and the respondent in her capacity as a past officer. In my view the fact that she also

happens to be a member of the appellant is not by itself sufficient to bring this dispute

within the meaning of section 67 of the Act. I am fortified in this approach by the strict

construction which must be placed upon ouster clauses in keeping with the role of the

courts in preserving the citizen’s right of access to the courts.” [Emphasis added]”

30. In Harvey Borris v Eastern Credit Union Co-operative Society Limited CV2015-04009, the

Claimant instituted proceedings against the Defendant in relation to his dismissal from the

Defendant as an Executive Director and as a Director of EPL Properties Limited, a subsidiary

company of the Defendant. The Defendant contended that the Court did not have jurisdiction

to hear and determine the matter by virtue of section 67(1) of the Co-operative Societies Act

and that the Court must look at the objects of the Defendant in order to determine whether

the claim touches the business of the Defendant. Further, the Court should regard the powers

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which were vested in the Claimant as Director of the subsidiary company and the relationship

of these powers to the object in order to determine whether the termination of the Claimant

was related to the powers he exercised and whether such powers touched and concerned

the business of the Defendant. The Claimant contended that there was no connection of the

objects of the Defendant and the conduct of the Defendant in terminating the Claimant. The

objects of the society as outlined in section of the society’s bye laws were:

“(a) To improve the economic and social conditions of its members by:

i. Promoting thrift and saving among its members (using shares and other

instruments);

ii. Providing loans to members for provident and product purposes (as defined in the

Loan Policy); and

iii. Providing such services as the Board sees fit from time to time.

(b) To encourage the spirit and practice of self-help and cooperation and promote the

development of co-operative ideas by:

i. Educating members in co-operative philosophy, principles and practices;

ii. Affiliating or collaborating with any other Society or Organization; and

iii. To do all such lawful things as are incidental or conducive to the attainment of the

above objectives.”

31. Madame Justice Joan Charles held that the issue of the termination of the Claimant as

Executive Director and employee of the Defendant did not touch the business of the society.

The issue of the Claimant’s dismissal was directly linked to his relationship as an employee of

the Defendant. His claim was for unfair dismissal and was merely incidental to his position as

an officer of the society. The Court of Appeal dismissed the appeal stating that Corrine

Ammon is binding on them and if regard was had to the objects of the company, then the

dispute did not come within it.

32. In Bobby Mungal (Trading as Best Choice Meats) v El Dorado Consumers’ Co-Operative

Society Limited CV2009-0278, the Defendant was a Co-operative Society whose primary

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object was “to improve the economic and social conditions of its membership by purchasing

and selling to members, goods, stores and consumer articles of all kings for general use, of

good quality, weight and measure from wholesalers, retail dealers and other Co-operative

Societies.” The Claimant was a supplier of dry goods and meats which it sold to the Defendant

in the course of its business. The Claimant claimed sums of monies due and owing by the

Defendant for the purchase of the Claimant’s goods. The issue was whether the Court had

jurisdiction to hear and determine the claim which concerned a dispute between the Society

and one of its creditors. Gobin J ruled that the jurisdiction of the High Court was ousted based

on section 67 and the matter ought to be determined before the Commissioner of Co-

Operatives.

33. In Brent Zephyrine v Ronald Jones CV2015-02457 the Claimant sought an award of damages

for defamation and conspiracy arising out of words published in a letter issued by the

Defendants to the offices of the Commissioner for Co-Operative Development and the

Minister of Labour and Small and Micro Enterprises development. The Defendants contended

that jurisdiction to determine the claim fell within the purview of the Commissioner pursuant

to section 67 of the Co-operative Societies Act. They stated that the letter was written by the

second defendant in her official capacity arising out of statements made by the Claimant at a

Board meeting, therefore, the letter was done as part of the business of the Credit Union.

The Claimant contended that the Defendants were sued in their personal capacity with no

assertion that the Credit Union was vicariously liable.

34. Rampersad J concluded that the dispute did not touch the business of the society because

the claim “as couched” was against the Defendants who had allegedly defamed the Claimant

which is a personal act directed to the Claimant’s personality as opposed to the business of

the society.

35. In David Walcott v Eastern Credit Union and Alicia Hosein CV2011-02378, the Claimant

claimed damages for breach of contract, negligence and detinue against the Defendants

which arose from an alleged “hold” on the Claimant’s account. The Defendants contended

that the Court had no jurisdiction to determine the matter since the Claimant, having held

and account with the First Defendant is a member or past member of it and as such, the claim

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touches the business of the First Defendant.

36. Charles J held that the dispute concerned monies withheld from the Claimant in his “share

savings and deposit” account with the First Defendant which touches the business of the First

Defendant. The claim was between the Claimant who was a member of the First Defendant

and the First Defendant itself, therefore, the Court did not have jurisdiction to determine the

matter.

37. The Courts will of course jealously guard its jurisdiction and will apply any ouster clause

restrictively. However, so long as the dispute is as between the Credit Union and member

qua member and society touching the business of the Credit Union as set out in the objects

of the Co-operative Societies Act, then the Commissioner retains jurisdiction over the dispute.

His decisions are then enforceable in our Court with the same force as an order of the Court

pursuant to Rule 44.10 CPR and section 67(8) of the Co-operative Societies Act.

38. The dispute concerning the authorisation of member of a cooperative society for its employer

to deduct his salary to liquidate the debts due and owing to the society which are executed

allegedly together with or in support of advances made by the society to the member under

the Act is a matter touching and concerning the business of the society and relates to both

the society and member qua member. There is no incidental relationship. His membership is

central to the facility alleged to have been executed by him.

39. Insofar, therefore, that there exists a factual dispute as to what transpired in February 2008

with regard to the signing of the Loan Agreement and the Loan Repayment Authorisation, the

forum for the determination of this dispute is not in these proceedings brought by the CEMCU

against TCL. Such disputes are indeed matters which touches and concerns the business of

the Credit Union under the Co-operative Societies Act in the making of advances to members

and securing its repayment.

40. Indeed, the Commissioner has had cause to examine such complaints before. The fact,

however, that the Commissioner is indeed seized of some of the matters which fall for

consideration in Mr. Durity’s dispute underscores the point that Mr. Durity’s dispute with

CEMCU to be accommodated in these proceedings will be an abuse of process.

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Abuse of Process

41. Although I agree with CEMCU that Mr. Durity has been guilty of undue delay of over eight

years after discovery of the alleged fraud, he is not seeking to make a claim which will be

statute barred by virtue of section 3 and section 14 of the Limitations of Certain Actions Act

Chapter 7:09, but raising the issue of the authenticity of the assignment.

42. Although Mr. Durity has made a complaint to the Commissioner of the same issue and the

dispute between Mr. Durity and CEMCU is currently engaging the attention of the

Commissioner, it is still desirable to add Mr. Durity to the proceedings to make final orders

over the disposition of the monies held by TCL on his behalf which bind both TCL and Mr.

Durity.

43. The Court, however, has no jurisdiction of the actual determination of the dispute between

Mr. Durity and TCL. To that extent, that aspect of the proceedings can be stayed under the

Court’s inherent jurisdiction.

Consequential Orders

44. The Court has the power under rule 26.1(f) CPR to stay any proceedings or part thereof until

a specified date or event. Having regard to my ruling that the questions raised by Mr. Durity

touched the business of CEMCU, the appropriate order would be to stay these proceedings

which relate to the payment to CEMCU by TCL of Mr. Durity’s funds. The final orders as to the

destination of those funds would be made after the decision of the Commissioner is made

which is enforceable in this Court.

45. In light of the competing claims, the injunction cannot be discharged. The general principle

in the granting of an injunction is for the Court to exercise its discretion in a manner which

will cause the least risk of irremediable prejudice and is guided by the fundamental question

of determining where the balance of justice will lie in either granting or refusing an

injunction4. In this case, it would mean that the balance of justice lies in favour of a varying

of the injunction to the effect that TCL by its directors, managers, agents, accountants,

4 See National Commercial Bank Jamaica Ltd v Olint Corporation Ltd [2009] 1 WLR 1405 and Jetpak Services Ltd v BWIA International Airways Ltd (1998) 55 WIR 362

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employees or by any other person be restrained from paying out to Mr. Durity or CEMCU all

or any sums payable by TCL by letters of authorization pending the determination of the

dispute between CEMCU and Mr. Durity in relation to those letters of authorisation by the

Commissioner or further order.

Conclusion

46. For the reasons set out in this judgment, Mr. Durity will be joined to these proceedings and

the injunction varied as set out above. To this extent, having joined Mr. Durity only for the

purpose of making final orders of the disposition of hi funds, there would be no need to deal

with the interpleader application as contemplated by TCL. I would invite Counsel’s view on

same.

47. I will hear the parties on costs. However, my preliminary view is that each party should bear

its own costs.

Vasheist Kokaram

Judge

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