Montserrat Printery Ltd v Jemmotte

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.,Re
• Judgment Date: 30 April 1992
• Neutral Citation: MS 1992 HC 7
• Docket Number: 76 of 1989
• Date: 30 April 1992

Montserrat Printery Limited

and

Jemmotte

Redhead, J.

76 of 1989

High Court

Industrial law - Plaintiff alleged that defendant was employed by plaintiff as accountant and secretary — When defendant withdrew services he kept documents relating to the position that he previously held — Consequently company unable to file its tax returns and secure a loan since it lacked the necessary documents to prepare a financial statement — Plaintiff must prove positively that defendant has the material — Plaintiff's case dismissed.

Redhead, J.

1 The plaintiff company was acquired from M.S. Osborne and Company Ltd., by Bennetta Roach, Vincent Cassell and Melford Roach in 1981. Bennetta Roach and Vincent Cassell are brothers and live an Montserrat. Melford Roach is their cousin and lives in the United States of America.

2 Before the acquisition of the company, Vincent Cassell was manager of the company. He continued to be manager when it was acquired and later became the Managing Director and Bennette Roach became Director.

3 The defendant Winston Eric Jemmotte is a graduate of Algonein College, Ottawa where he majored in accounting. His courses at college included among other things Data Processing System. The defendant has since had various experiences in computer both in Trinidad where he worked for a time and on Montserrat.

4 In 1980 the defendant was appointed Deputy Director of Social Security Montserrat. In 1984 the defendant was employed by the plaintiff company among other things, to put in place a proper accounting system.

5 I refer to a memorandum dated 18 June, 1984 from the defendant to Vincent Cassell. This memorandum sets out the duties which the defendant was engaged to perform for the company.

“Dear Sir,

With reference to our discussions and my acceptance to carry out a Systems Revision and Update the Montserrat Printery financial records from 21st February, 1982 including the following:

• 1. To review and update the financial records as required.

• 2. Implementing Financial Controls ensuring proper maintenance of an financial records.

• 3. Submitting Audit and management Financial Reports as required.

• 4. Attending Board Meetings as required.

• 5. Preparation and Submission at Quarterly, General Ledger, Trial Balances and Annual Financial Report.

Yours Sincerely sign: Eric Jemmotte”

6 The defendant was to carry out his assignment with the company in his spare time as he was employed on a full time basis with the Social Security Department.

7 The Social Security Building and The Montserrat Printery are in close proximity. Bennett Roach said in his testimony that the defendant can walk from his office at Social Security to The Montserrat Printery in less than one minute.

8 The defendant would go to the Printery at odd intervals to explain things to the staff and to ensure that things were going well. Sometimes on his way to lunch, before getting into his car, he would go into the printery to check on things. Hr. Roach conceded that “the defendant did a good job for us in setting up the printery.”

9 However differences arose between the parties in or about October, 1988, In a memorandum Eric Jemmotte on 6th October, 1988 to B. Roach who was the General Manager of the company. He wrote as follows:–

“Accounting and Financial Management Procedures I have decided to make a presentation to The Montserrat Printery Ltd. Board regarding my ‘relationship’ and ‘responsibilities’ - Secretary/Accountant as soon as possible after I have updated the accounts mid-September, 1988 and maintain as promised, until the officer employed is capable of the maintenance of Montserrat Printery Ltd.. Systems and records etc. as approved. This is expected to be completed by October 15, 1988, at which time (soon after) I would expect the Board to meet to discuss my ‘Presentation’ until then I will regretfully be unable to contribute to my management discussions on ‘Corporate Taxes.” My No.1 priority at this time is to ensure that the Montserrat Printery Ltd. Accounts are current as can be expected under present circumstances.

Sign: Erie S. Jemmotte

Secretary/Accountant.”

10 On the following day Bennett Roach replied by memorandum to the Montserrat Printery to the defendant'S memorandum in the following terms:–

“Accounting and Financial Management Procedures

Referring to your memo of 6th October, 1988 on the above subject, I will reply as follows:–

• 1. I will be pleased to listen to and of course discuss your presentation as mentioned, as soon as you are prepared to do so; in fact I would suggest that you must not wait until the updating of accounts expect such presentation bears hearing on the accounts.

• 2. I will then decide whether there are matters from your presentation which requires consultation with any “Board of Directors.”

• 3. I am aware of my responsibility to provide the necessary machinery to maintain the printing systems and records a matter which receiving urgent attention. I am ready to discuss such or any system that you are ready to recommend in an attempt to achieving the objective.

• 4. I am indeed grateful for your efforts and assistance in our achievement with our attempt to computerise and simplify our records and system.

• 5. As regards our “Corporate Taxes” I am surprised that it took you this long to take your position and therefore cannot absolve you from responsibility of the situation of the matter.

Sgd: B.G.H. Roach

Chairman

Montserrat Printery Ltd.

11 In November the defendant received from Bennett Roach the following solution passed at a special meeting of the Board of Directors of the Montserrat Printery Limited, held at its. Offices on Parliament Street, Plymouth, Montserrat on 4th November, 1988.

“Upon motion duly made, seconded and unanimously carried, it was resolved that Winston E. Jemmotte will no longer have the Authority Act (sic) in any capacity as Secretary for or on behalf of Montserrat Printery Limited and is hereby recorded effective immediately. And be it further resolved, that Vincent Cassell be appointed as Secretary to the said company dated the 9th day of November, 1988.

Sgd: Bennent Roach

Chairman

Montserrat Printery Ltd.

12 Attached to the resolution was a note addressed to the defendant in the following terms:–

To: Mr. W.E.S. Jemmotte

From: Bennette Roach

Date: November 14, 1988

Re

Montserrat Printery Accounts 1983-1988

Please deliver to me schedule related to the above to include list of adjustments and list of debtors and accounts payable. These are required immediately. Attached is a copy of a resolution for your information. Please deliver to Mr. Cassell all records of minutes, resolutions, etc. that you hold for the company.

Sgd: B. Roach.”

13 On or about 18th November, too doubt as a result of memorandum and the note attached thereto, Vincent Cassell met with the defendant at his, the defendant(s home, where the defendant handed over a box with documents. According to Cassell the box contained, cancelled cheques, bank statements and receipt. Vincent Cassell said in evidence that he was expecting to pick up from the defendant original files, minutes, accounts and work sheets.

14 The plaintiff alleges that the defendant still has in his possession documents belonging to the company. The company as a consequence has demanded the return of these documents and alleges that the defendant has failed or refused to deliver the documents to the company.

15 On February 13th 1989, Mr. Brandt on behalf of the plaintiff company wrote to the defendant as follows:–

“Mr. W. Jemmotte

c/o Social Security Office

Harney Street

Plymouth

Dear Mr. Jemmotte,

I, attorney for Montserrat Printery Limited of Parliament Street, Plymouth, Montserrat.

According to my instructions you agreed with my client to perform the following functions:–

• 1. Review and update their financial reports.

• 2. Implement financial controls ensuring proper maintenance of all financial records.

• 3. Submit audit and management financial reports as required.

• 4. Attend Board meetings as required.

• 5. Prepare and submit quarterly, general ledger, trial balance and annual financial report, at an agreed fee.

I am instructed that:

• (a) You trove failed or refused to discuss financial matters of the company with the Managing Director or prepare and submit accounts for that purposes;

• (b) Since September of 1988 you withdrew your services from the company and as a consequence refused to do any accounting work for the company.

• (c) That you held all documents, minutes, schedule of accounts, records, journals of the day to day accounts of the company for 1988, including the computer records and programs which you refuse to deliver to my client, although you have been re-requested to do so on several occasions. You must be aware Mr. Jemmotte that it is almost impossible for my client to operate without the documents you old for them.

I am hereby demanding that you return the said documents to Mr. Bennett Roach at The Montserrat Printery by noon on January 17th, 1989 or legal action will be taken against you without further notice.

Sgd: David S. Brandt

Solicitor fur Montserrat Printery Ltd.”

16 I make the observation that there must have been a mistake so far as that dates are concerned because although the letter is dated 13th February, 1989. The Solicitor is making the demand that the documents be returned by noon on January 17th, 1989. On 30th June, 1989 the plaintiff filed a writ against the defendant claiming the return of the documents owned by the plaintiff and detained unlawfully by the defendant.

17 The plaintiff alleges in its statement of claim that the defendant was employed by the plaintiff as an Accountant and Secretary. As secretary he had the responsibility to prepare the minutes and resolutions of all board meetings. In September 1988, the defendant withdrew his services and wrongfully detained all...