28 August 2020, Port of Spain, Trinidad and Tobago. In a judgment released today, the Caribbean Court of Justice (CCJ) dismissed the appeal and affirmed the decision of the Court of Appeal of Guyana in the matter of Shir Affron Nabi, Rafael Nabi & The Estate of Shir Amineen Nabi v Ashmidphiraque Sheermohamed, S.A. Nabi & Sons Limited, Maurice Solomon (in his capacity as Liquidator/Receiver/Manager). The Court also ordered that the appellant pay the respondent the costs of this appeal.
The company, S. A. Nabi & Sons Limited, is a family-owned company. Following its incorporation, the relationship between the shareholders deteriorated. In light of the circumstances on 11 November 2009 Ashmidphiraque Sheermohamed (the first respondent) filed a petition in the High Court seeking an order that the company be wound up under section 354 (e) of the Companies Act on the basis that it was just and equitable so to do. The High Court (Justice Persaud) granted the order for the just and equitable winding up of the company.
In 2015, the appellants filed an appeal against this order (the first appeal). Some months later, they applied for a stay or revocation of the same order. However, Justice Persaud of the High Court refused to grant this application and instead appointed a receiver-manager. The appellants then appealed also this order to the Court of Appeal in 2016, making it the second appeal. The Court of Appeal held that it had the legal authority to hear the first appeal but none to hear the second appeal They dismissed the appeals, the first one on the merits. The appellants then appealed to the CCJ arguing that that the Court of Appeal made an error when they upheld the decision which granted the order to wind up the company.
The CCJ was satisfied that the Court of Appeal acted upon correct principles of law in upholding Persaud J’s section 354 (e) discretion in ordering the winding up of the company. As such, the question which the CCJ had to answer was if the Court of Appeal misapplied those principles to the evidence before it, as contended by the appellants.
The CCJ was satisfied that the Court of Appeal had enough evidence to hold that Mr Sheermohamed was a shareholder or in the position of a shareholder which legally allowed him to file a petition to wind up the company. The CCJ also found that the Court of Appeal did not misapply the just and equitable principles as there was an abundance of evidence to support the finding that the parties were in deadlock. The general decision-making process within the company had broken down and there was no realistic prospect of it being repaired.
For these reasons, the CCJ dismissed the appeal and ordered the appellants to pay the respondents’ cost. The Court was presided over by the Honourable Mr Justice Jacob Wit, Mr Justice Winston Anderson, Mme Justice Maureen Rajnauth-Lee, Mr Justice Denys Barrow, and Mr Justice Andrew Burgess .
The full judgment of the Court and a judgment summary are available on the CCJ’s website at www.ccj.org