Plain Talk : Whch Factor Of The Law Did We Get Wrong?

By Jomo Thomas
Fri, Aug 14, 2020

At a recent sitting of the Court of Appeal, there was an exchange between a local counsel and the court that was both amusing and instructive.

In pursuing his client’s case, the lawyer told the court: ‘My Lords, it appears that you all are not with me. Therefore, I will abandon this ground and move on.’

A Justice of Appeal replied: ‘Counsel, it is not that we are not with you; neither the facts nor the law is with you.’

We were reminded of this exchange on Wednesday when PM Gonsalves, in an oblique reference to our July 31 column entitled ‘Not so fast Minister Gonsalves,’ said: ‘The article had both the facts and the law wrong…If it was the property company which had employed the people, the workers would have gone at the time of liquidation to see if they can get money because government taxes would take top priority in the liquidation and then you would the workers’ pay or severance but they are two separate legal entities.’

And then this: ‘Government didn’t employ anybody. Sandals didn’t take over a company. Sandals is buying a property which had been already part of the property, the Harlequin part, because, as I have outlined, there are several property owners which form the footprint of what Sandals buying, but that substantial part which belongs to that Harlequin property company, that had gone through the court with Brian Glasgow as the trustee in bankruptcy.’

It is critical to point out that Gonsalves did not point to any specific law. He simply spoke around the law. The only reference distinguishing point he made was that there were two companies: Buccument Resort – the management company and Harlequin Limited – the company that held the asset, Ames’ only asset in SVG.

By citing the Protection of Employment Act and the National Insurance Service and its regulations, we simply showed that our employment laws allowed government and its agencies to protect Vincentian workers, but the government failed to do so.

Everyone in SVG knows that PM Gonsalves and the ULP leadership maintained a cuddly relationship with Ames. Even after Ames became a fugitive, Minister of Labour Camillo Gonsalves proudly declared to the nation that he was engaged in negotiations with Ames; negotiations that will soon result in the payment of the workers and all other parties owed.

The government never called on Interpol for help in apprehending Ames. It never tried to have Ames extradited from the UK to face Vincentian justice. In fact, Ames was probably the only person in Vincentian history who was charged with such serious crimes and told he does not have to come to court.

Rather than attempt to cheapen and politicize the discourse, it would have been enlightening to hear PM Gonsalves’ exposition of the other relevant laws and how they apply. We can think of at least two: The Bankruptcy and Insolvency Act and the Commercial (Business) Act.

CHAPTER 136 BANKRUPTCY AND INSOLVENCY ACT
Act No. 43 of 2007
116. Proven creditors may examine proofs of claim
(1) Every creditor who has lodged a proof of claim is entitled to see and examine the proofs of other creditors.
(2) Proofs of claims for wages of workers and others employed by the bankrupt may be made in one proof by the bankrupt or someone on behalf of the bankrupt or by a representative of a ministry responsible for labour matters or a representative of a union representing workers and others employed by the bankrupt, by attaching to the proof a schedule setting out the names and addresses of the workers and others and the amounts severally due to them, but that proof does not disentitle any worker or other wage earner to file a separate proof on their own behalf.

CHAPTER 136 BANKRUPTCY AND INSOLVENCY ACT
• Act • Subsidiary Legislation •
ACT
Act No. 43 of 2007
72. Claim of farmer or fisherman
(1) Where—
(a) a farmer has sold and delivered products of agriculture or a fisherman has sold and delivered products of the sea, to another person, in this section referred to as the “purchaser”, for use in relation to the business of the purchaser?
(2) The charge ranks above every other claim, right or charge against that inventory, regardless of when that other claim, right or charge arose, except a supplier’s right to repossess goods pursuant to section 71, notwithstanding any other Act or law.

One of the things experienced lawyers tell newcomers is to be confident with their research, and refrain from trying cases in the corridors of the courthouse. Clearly, PM Gonsalves has parts of the law, but the law is nuanced and arguments are grounded in facts.

Our government admits to taking over Harlequin, which was the parent of Buccament Resort. It admits to selling that property to Sandals. Therefore, what does PM Gonsalves mean Sandals is not buying a company.

Sandals is acquiring Harlequin’s property which the government bought. Harlequin was a company registered under the laws of SVG.

There is case law to support our contention. At least one Constitutional court has ruled ‘The payment of outstanding wages of workers/labourers shall take precedence over all other types of creditors, including secured creditors’ claims and claims of states’ rights, auction houses and public institutions established by the Government, whereas the payment of other rights of workers/labourers shall take precedence over all claims, including claims of states’ rights, auction house, and public institutions established by the Government, except for claims by secured creditors.’

There are other crucial areas of Business law that address winding up of companies that touch and concerns Harlequin and Buccament, government and Sandals.

And to think we have not even touched the issue of piercing the corporate veil. We will.