Directors’ row keeps banana group at standstill

The All Island Banana Growers Association Limited (AIBGAL) has been at a standstill for nearly two years because of a row between former and present directors over the current composition of the board, which has affected banana and plantain growers.

The association sued nine former and present board directors in September 2021 over their appointment.

It claimed that, since June 2021, they had breached the memorandum and articles of the association and had also flouted the provision for the appointment of directors.

It had also accused the defendants of presenting themselves to the public as the newly constituted board of directors purportedly appointed on July 16, 2021.

AIBGAL is a farmer’s organisation intended to promote and institute measures to foster the well-being of banana and plantain growers in Jamaica.

Five of the defendants, however, had succeeded in their application to have the matter struck out last year July.

But, in a recently published judgment in which the court ordered that the association’s general manager and six directors pay the defendants’ legal costs, it was disclosed that the impasse between the directors was creating a situation where AIBGAL’s business was not being attended to and farmers were being affected.

“Even with the defendants’ success in having the claim struck out, the business of the company is at a complete standstill. With the deadlock, no resolution has been forged, nor has any party taken steps in court in the wake of the court’s ruling,” said Justice Andrea Pettigrew-Collins.

General Manager Donald Elvey, Annette Thompson, Lincoln Tobin, Louis Chambers, Adrian Burke, Michael Garrick and Shane Jackson were also ordered by the judge to pay the legal costs for the association, which was the claimant in the matter.

The order was made against the general manager and the group of directors, who the court has named the pursuers, although they were never a party to the claim.

The pursuers, however, had initiated the claim against Osbert Johnson, Frederick Morgan, Marvel Chambers, Hermine Campbell, and Kenneth McLaughlin, Byron Henry, Glendon Harris, Seymour Webster and Winston Crosdale. Elvey was said to have supported the claim.

But Webster and Crosdale had asked for their names to be removed from the lawsuit, stating that they had stopped attending meetings and that there was a motion in 2020 for their names to be scratched from the directors’ registry.

The five defendants, Osbert Johnson, Frederick Morgan, Marvel Chambers, Hermine Campbell, and Kenneth McLaughlin, triumphed in getting the matter thrown out after the court found favour with their argument that the pursuers had no authority to bring the claim in the name of the association.

The association was seeking relief, including an order for the court to quash the notice of appointment for the July 2021 board of directors as unconstitutional and of no effect. It also wanted the election of the defendants declared ultra vires and of no effect.

However, during the cost hearing, attorney-at law Mark Cowan, who represented Johnson, Chambers, Morgan, McLaughlin and Campbell, argued that it was the initiator of the claim who should bear the cost for the ligation, while fingering the pursuers.

He stated that they have all contributed to the initiation and continuation of the claim, even when the evidence was clear that the association’s articles were being violated and that the special resolution purported to bring the suit was illegal.

Cowan also argued that the pursuers should cover the legal costs for the association, including that which is owed or paid to the association’s attorneys.

SHOULD BE HELD RESPONSIBLE

Counsel for the other defendants, Tedesha Cowell, added that the pursuers should be held responsible for her clients’ legal costs as they did not do their due diligence in bringing the claim, as her clients had no interest in the association.

Furthermore, she added that, even after the pursuers were notified that her clients maintained no interest in the association, no steps were taken to remove them from the claim.

Consequently, she said it would be unreasonable for the association to be taxed with the liability of costs for her clients.

Both attorneys’ arguments were accepted by the judge, however she declined to make an order for cost on an indemnity basis in respect to AIBGAL.

She agreed that the association should not be held responsible for cost for the defendants, and that the defendants were entitled to costs from the pursuers and in opposition to the format of the case.

“In bringing a claim, the individuals responsible for doing so also had a responsibility to ensure that the claim was properly instituted. In this instance where it was intended that the claim was to be brought by the company, that meant ensuring that the proper steps were taken to empower the company to institute the claim,” the judge said.

At the same time, she said, it was not that there was never any prospect of success for the claimants, but that the claim was not properly initiated.

Attorneys-at-law Tana’ania Davis and Cavelle Johnston appeared for the association while Peta Gaye Manderson represented Harris.

tanesha.mundle@gleanerjm.com