Continental Finance Trading Company, S.A. v Geosurvey Holdings Ltd et Al; Geosurvey Holdings Ltd et Al v Continental Finance Trading Compnay S.A. et Al
| Jurisdiction | Bahamas |
| Judge | Osadebay, J. |
| Judgment Date | 13 March 1997 |
| Court | Supreme Court (Bahamas) |
| Docket Number | No. 230 of 1992 |
| Date | 13 March 1997 |
Supreme Court
Osadebay, J.
No. 230 of 1992
Mr. Thomas Evans Q.C. and Mr. Milton Evans for Banca Della :Svizzera Italiana, 2nd. defendant by Counterclaim.
Mr. Brian Moree, Mr. Liddell and Mrs. Metta MacMillan-Hughes for Geosurvey Holdings Ltd. and Umma Holdings Ltd., plaintiffs by Counterclaim and defendants by Original Action.
Mr. Philip Dunkley and Mr. Van Gaitor for Shannahan Limited, defendant by Original Action and plaintiff by Counterclaim.
Practice and procedure - Application to set aside order granting leave to serve and service — Order 12, r. 7 of the Rules of the Supreme Court and/or the inherent jurisdiction of the court — Second defendant by counterclaim sought an order to set aside the order granting leave to serve the defence and counterclaim out of the jurisdiction of the court — Ruling that the second defendant was a necessary and proper party and the counter claim was a proper one for service out of the jurisdiction — Service was also upheld.
Practice and procedure - Application that the action be dismissed — Second defendant sought an order that the action of the plaintiffs by counterclaim be stayed and/dismissed on the grounds of the forum non conveniens — Application dismissed.
This is an application by Banca Della Svizzera Italiana S.A., (B.S.I.) second defendant by Counterclaim, pursuant to Order 12, r.7 of the Rules of the Supreme Court and/or the Inherent jurisdiction of the Court, for an Order:
“1. to set aside the order granting leave to serve the Defence and Counterclaim herein out of the jurisdiction of the Court; and/or
2. to set aside the service of the said Defence and Counterclaim; and/or
3. that the action of the plaintiffs by Counter-claim be stayed and/or dismissed on the grounds of forum non conveniens; and
4. that the costs of the application be paid by the plaintiffs by Counterclaim to the Second defendant by Counterclaim.
5. Such further and/or other reliefs as to this Honourable Court seems just.”
This application took its rise from the Order of the Registrar of the Supreme Court made Ex Parte on the 20th. July, 1993, granting leave to the Companies to serve a copy of the Counterclaim filed herein on the 19th day of April, 1993, on the defendant, Banca della Svizzera Italiana, (B.S.I.) at No. 2 Via Magatti, 6900 Lugano, Switzerland or elsewhere in Switzerland,” outside the jurisdiction.
Before dealing with the respective submissions of counsel in this matter I shall endeavour to set down, by way of summary the background history and the facts, taken from the numerous affidavits filed in this matter, leading to this application before me.
Continental Finance Trading Company S.A. (CFT), the plaintiff by Original Action and 1st. defendant by Counterclaims is a Company incorporated and existing under the laws of the Republic of Panama. It is stated that CFT is beneficially owned and controlled by Dr. Ibrahim Mustafa Kamel, the 4th defendant by Counterclaim herein.
Geosurvey Holdings Limited (GHL), 1st. defendant by Original Action and 1st plaintiff by Counterclaim, UMI\4A Holdings Limited (UT-IL) 2nd defendant by Original Action and 2nd plaintiff by Counterclaim and Shannahan Limited (Shannahan), defendant by Original Action and plaintiff by Counterclaim are all companies incorporated and existing under the laws of the Commonwealth of The Bahamas.
UHL was incorporated on 10th. January, 1984 and the shares were owned as follows:–
“Anders International S.A.–
355.169
23.61%
Sheik Faisal Al Kassimi–
36.463
2.42%
Mr. Abdel Malik Al Hanar–
13.613
0.9%
Mr. Ali Mohammed Shorafa Al Amadt–
36.463
2.42%
Mr. Khalya Juma Al Naboodah–
13.594
0 9%
Gartap Inc -.
50.000
3.32%
H.R.M. Princess Noaf Bint Abdullah Al Muhana–
15.000
1%
Mr. Abdullah Abdulghany Nasser –
80.938
5.38%
Jala & Co. –
208.812
13.88%
Consolidated Mining Investment Corp. –
72.600
4.83%
Nexus Holdings Corp.–
290.400
19.3%
Trio Pininsula & Co. –
200.000
13.29%
Kennedy Financial Inc.
131,334.000
8.73%”
It is also said that Anders International S.A. stated above is beneficially owned and controlled by the said Dr. Ibrahim Mustafa Kamel with permanent residence in Switzerland. I have no evidence that the shareholdings have changed since they were first issued as stated above.
It is stated that after incorporation of GHL, its shares were held as follows:–
UHL - 51%
Shannahan - 49%
GHL is said to be active in the field of geological and geophysical research and surveys and that after incorporation, it took over the business activities of Geosurvey International (Antigua) Ltd. (GIL) engaged in surveying, field mapping, exploration and data management. GIL was beneficially owned by Dr. Peter G. Gollmer. It is also said that the shares in Shannahan are beneficially owned and controlled by the said Dr. Peter Gollmer.
UHL became the holding Company of the following companies and held interests as follows:
“(i) Sixty-seven percent (67%) of the shares of Capital Intelligence Ltd. (“CI”) incorporated under the laws of the Commonwealth of the Bahamas.
(ii) Umma Services S.A. (“USSA”) a company incorporated under the laws of Switzerland.
(iii) DTU. (Dar Tardine Al Umma Ltd.)
(iv) Fifty-one percent (51%) of the shares of GHL.”
It is stated that GIL had accumulated considerable assets in various countries including equipments and aircrafts for its field operations.
BSI is a financial Institution incorporated under and exists under the Laws of Switzerland where it carried on and still carries on the major part of its operations in Lugano. BSI Overseas (Bahamas) Limited (BSIO) is a company, a financial Institution, incorporated under the laws of the Commonwealth of The Bahamas and is said to be a subsidiary of BSI but carried on its own business separate and apart from that of BSI. A number of Directors on the Board of BSI were also Directors on the Board of BSIO.
rior to 1987 a Customer/Client relationship had developed between UHL, GHL and BSIO whereby BSIO provided certain financial facilities for the operations of these companies. During those years UHL and GHL dealt with entirely with BSIO. Both BSI and BSIO had presence in the Bahamas.
Dr Kamel is said to have come into the arena about 1984. In September, 1986 or thereabout Dr. Kamel was appointed Executive Chairman of the Board of Directors of UHL and all its subsidiaries including USSA.
I have stated these background facts the better to enable one to understand the relationship between the respective companies, to assess the abilities of the respective individuals who may be described as the “Movers and Shakers” within the organisations and to understand the activities of the Companies they invested their monies in.
There is evidence before me, which I accept, that though GHL had its field operations outside Switzerland where over 250 persons were employed in various capacities, its corporate management of GHL and UHL were done in Switzerland. As Vincenzo Piantedosi put it - “the company structure and the administration of the company was handled out of Switzerland and the field operations were handled in Saudi Arabia.” Switzerland at the material time was the base of the corporate activities different from the field operations. The Accounting office of GHL was at the material time maintained in Switzerland but was later maintained in Cairo, Egypt.
When Dr. Ibrahim Kamel was appointed the Executive Chairman of UHL and all subsidiaries of UHL and President of USSA in September, 1986, he was given power and authority, inter alia, as follows:–
“To negotiate and execute on behalf of the Company documents, instruments and contracts in the course of business of the Group.
To call and conduct Board and Shareholders meetings and approve agendas thereof.
To formulate business plans/objectives/policies and strategies of the Group for the approval of the Board.
To formulate financial and budgetary policies of the Group for the approval of the Board.
To ensure execution of business plans, targets and policies approved by the Board.
To represent parent company in the capacity of Chairman on Boards of respective subsidiaries.
To ensure implementation of parent company's global business policies and objectives at subsidiary Board level.
To advise Board, whenever necessary, of departure from approved business policies resulting from business dictates under special condition.
To establish and maintain at highest level, government and business contracts to represent and promote Group's business objectives.
To ensure coordination, interaction and provide guidance on operational matters among Group subsidiaries at Senior Executive level.
To select, appoint, determine salaries and terminate employment of key executives in keeping with business objectives.
To negotiate and execute on behalf of the company documents, instruments and contracts in the course of business of the Group.
To open and operate bank accounts within Switzerland and inter-nationally in accordance with the general policies laid down by the Board.
To operate jointly with one other Board members bank accounts of the Group for sums exceeding US$1 million.
To approve variations to the budget and authorize disbursement accordingly.
To authorize extraordinary items of expenditure in cases of exceptional business circumstances and to advise Board verbally.
To delegate such powers and responsibilities vested in him to such persons on such terms as deemed necessary.
To appoint outside consultants for feasibility and technical studies relating to the business of the Group.
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