Globe-X Management Ltd Globe-X Canadiana Ltd First Appellants Silicon Isle Ltd Second Appellant v Clifford Johnson Wayne Aranha Respondents [ECSC]

• Jurisdiction: Anguilla
• Judge: GORDON J.A.,Justice of Appeal,Chief Justice [Ag.],Justice of Appeal [Ag.]
• Judgment Date: 23 May 2005
• Judgment citation (vLex): [2005] ECSC J0523-1
• Court: Court of Appeal (Anguilla)
• Docket Number: CIVIL APPEAL NO.4 OF 2003
• Date: 23 May 2005

[2005] ECSC J0523-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian Alleyne, S.C Chief Justice [Ag.]

The Hon. Mr. Michael Gordon, Q.C. Justice of Appeal

The Hon. Mr. Denys Barrow, S.C. Justice of Appeal [Ag.]

CIVIL APPEAL NO.4 OF 2003

In the Matter of Globe-X Canadiana Limited (In Liquidation) and Globe-X Management Limited (In Liquidation).

And In the Matter of Winding Up Orders of the Supreme Coourt of the Commonwealth of the Bahamas dated 5^th September 2002 appointing Clifford A Johnson and Wayne Aranha as Joint Liquidators of Globe-X Canadiana and Globe-X Management Limited.

And In the Matter of a Request from the Supreme Court of the Commonwealth of the Bahamas dated 4^th April 2003 for the recognition of the Winding Up Orders made on the 5^th September 2002

And In the Matter of a Request from the Supreme Court of the Commonwealth of the Bahamas dated 4^th April 2003 for assistance to be granted to Clifford A. Johnson and Wayne J Aranha, the Official Liquidators of Globe-X Canadiana Limited and Globe-X Management Limited

Between:

Globe-X Management Limited

Globe-X Canadiana Limited

First Appellants

Silicon Isle Limited

Second Appellant

and

Clifford Johnson

Wayne Aranha

Respondents

Appearances:

Mr. Kenneth Porter with Ms. Merlene Barrette for the First Appellants

Mr. Patrick Patterson with Ms. Eustelle Fontaine for the Second Appellant

Mr. Robert Hildyard Q.C. with Mr. James Hilsdon for the Respondents

GORDON J.A.

1 This appeal arose out of judgment of the High Court on an application made by the Respondents that the winding-up, and their appointment as joint liquidators, of the first Appellants (hereafter "the Globe-x companies") be recognized and given full effect in the jurisdiction of Anguilla together with a number of other Orders ancillary to the principal request.

2 The Globe-X companies were incorporated in the Bahamas some time in the early 1990s and carried on business as investment managers trading in commodity future contracts and government securities globally. On the 12^th July 2002 two Petitions for winding up were filed in the Supreme Court of the Commonwealth of the Bahamas. The Petitioner was a company called Cinar Corporation. Also on the 12^th July 2002 the Globe-X companies were re-domiciled in Anguilla as International Business Companies. The learned trial Judge found as a fact that the Certificate of Continuation was issued by the Registrar of Companies in Anguilla at about 4.00 pm. Crucially, the learned trial Judge found that the petitions for winding-up had been presented in the Bahamas before that hour. In other words, as between the petitions and the Certificate of Continuation, the petitions were first in time.

3 Silicon Isle Limited, the second Appellant (hereafter "Silicon") is a company incorporated in Anguilla. On or about 14^th May 2002, (some two months before the re-domiciliation of the Globe-X companies to Anguilla) Silicon became the sole shareholder of the Globe-X companies having purchased the shares from the previous shareholder. On that date, Silicon alleges, it also became a creditor of the Globe-X companies in the sum of some US$29 million.

4 The learned trial Judge on May 12, 2003 granted an Order that the Winding-up of the Globe-x companies by the Bahamian Court and the appointment of the liquidators, the Respondents, be recognized and given full effect in the jurisdiction of Anguilla together with a number of ancillary orders as sought by the Respondents. The liquidators were armed with a 'letter of request' from the Bahamian Court seeking the Anguillan Court's assistance in the interests of justice and good international relations. Written reasons for the decision were delivered shortly after.

5 The Globe-x companies appealed on three grounds, namely, (i) that the learned trial Judge misdirected herself as to the law applicable to insolvency proceedings in Anguilla having regard to the specific language in the International Business Companies Act; (ii) that the learned trial Judge erred in law in holding that the Bahamian Court had jurisdiction to make the winding-up orders at all; and, (iii) that the trial Judge was wrong in law in holding that the foreign liquidation in the Bahamas fell within the established bases of recognition at Common Law and that equity, convenience and comity demand that a foreign liquidation should be recognized by this Court. Silicon also appealed against the trial Judge's Order on the same three grounds.

6 I will deal with the second ground of appeal first, to wit that the learned trial Judge erred in law in holding that the Bahamian Court had jurisdiction to make the winding-up orders at all. It will be recalled that the learned trial Judge found as a fact that the winding-up petition had been presented in the Bahamian Courts priorin time to the re-domiciliation of the Globe-x companies in Anguilla. Learned Council for the Globe-x companies conceded in response to a question by the Court that in Anguilla a winding-up order related back to the filing of the petition. However, it was his position that whilst this might be so in Anguilla, the Court would be unable to state that this was so in Bahamas in the absence of expert evidence on Bahamian law.

7 InDicey & Morris, The Conflict of Laws1 the learned authors state the following as Rule 18:

• "(1) In any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence or sometimes by certain other means.

• "(2) In the absence of satisfactory evidence of foreign law, the court will apply English law to such a case"

InErtel Bieber and Co v Rio Tinto Co Ltd [1918] AC 2602 Lord Dunedin said the following:

"…I am clear that it is for those who say that the German law is different to the English to aver it as a fact and to prove it. This they have not done, and that being so the German law must be presumed to be the same as the English."

8 In the circumstances of this case where there was no expert evidence, I have no difficulty in holding that Bahamian law is the same as Anguillan law. In other words, once the petition to wind up was granted and an Order made by the Bahamian Court, that Order related back to the time of filing of the...