French v Hedgeintro International Ltd and Others (02 of 2011)  SCSC 40 (15 February 2011);
IN THE SUPREME COURT
MR. ASHLEY FRENCH Applicant
(of 306 Idaho Building, Deals Gateway, London SE13 7QG, United Kingdom) (who elects his domicile for service at his Attorney's Chambers, Suie 5 & 6 Trinity House, Huteau Lane, Victoria, Mahe, Seychelles)
HEDGEINTRO INTERNATIONAL LTD 1st Respondent
(herein represented by the Registered Agent Sterling Off-Shore Lt, of Suite 305, Capital.City Building, Victoria, Mahe, Seychelles, representd by its Director Mr. Bobby L Brantley)
MR. MOTILAL MISHRILAISINGHAI 2nd Respondent
(of B-16, Mansavovar Colon, Shahpura, Bhopal (M.P) 462039, India, (hereinafter represented by the Registered Agent, namely Sterling Off-Shore Ltd, represented by its Director, Mr. Bobby L Brantley, of Suite 305, Capital City Building, Victoria, Mae, Seychelles)
SARAH LOUISE PETRE-MEARS 3rd Respondent
(of Winwood Villa, Shaws Estate, St James Parish, Nevis West Indies (hereinafter represented by the Registered Agent, namely Sterling Off-Shore Ltd, represented by its Director, Mr. Bobby L Brantley of Suite 305, Capital City Building, Victoria, Mahe, Seychelles)
MR. RAMINDER SINGH PANESAR 4th Respondent
(of Mullions, West End Lane, Stoke Poges, Bucks, SL2 4ND (hereinafter represented by the Registered Agent, namely Sterling Off-Shore Ltd represented by its Director, M. Bobby L Brantley, of Suite 305, Capital City Building, Victoria, MAhe, Seychelles)
Civil Side No: 02 of 2011
Mr. A. G. Derjacques for the Applicant Mr. Sabino along with Ms. Micock for the 1st and 2nd Respondent 3rd Respondent not present/ Unrepresented Mr. Renaud for the 4th Respondent
Learned counsel for the applicant filed notice of motion seeking an injunction,
i) restraining the 4 respondents from accessing or paying out any sum of
money from account number 7656693 of Barclays Bank (Seychelles)
ii) ordering that the applicant have immediate access, control and payment
from the said account, in the sum of US $201,118.72
iii) that the applicant shall be registered as signatory to the said account with
access and payment of 50% of all fees and monies from the said account.
iv) that the Barclays Bank (Seychelles Limited) shall facilitate the order.
On the 13th January 2011 this court made order restraining and preventing the aforementioned 2nd respondent from withdrawing any sum of money from the said account. On this day notice of motion had been served on the registered agent of the 3rd respondent however she was not present in court.
Learned counsel for the 4th respondent stated he had limited instructions from his client and objected to the said application on the following grounds,
a) that the notice of motion was not in conformity with the law.
b) as the 4th respondent was no more a director of the 1st respondent company the service of notice of motion on the registered agent of the company was not proper and should be by personal service.
With regard to ground (a) urged by learned counsel it is to be noted that section 305 of the Seychelles Code of Civil Procedure Cap 213 relating to applications for injunctions reads as follows:
Application under 304 shall be made by way of motion upon due notice of motion.
The procedure for application by way of motion for incidental demands is set out in section 121 and 122 of the Seychelles Code of Civil Procedure and reads as follows: Section 121,
Either party to a suit may in the course of the suit apply to the court by way of motion to make it an incidental demand Section 122,
The motion shall be accompanied by an affidavit of the facts in support thereof and shall be served upon the adverse party.
Thus it follows that in terms of section 122 of the Code of Civil Procedure the motion should be accompanied by an affidavit which on perusal of the record learned counsel for the applicant has attached to the said motion. Therefore this court holds that the said application for injunction is proper and in conformity to the provisions of the Code.
With regards to the ground (b) learned counsel for the 4th respondent has informed court that his client is no more a director of the 1st respondent company, and therefore service on the registered agent of the company is not proper. When one considers the background facts of this case the applicant too admits that the 2nd respondent is presently the sole director of the said company and further admits that the 4th respondent and him were former directors. Therefore service on the registered agent of the 1st respondent company in terms of section 64 (1) and (2) with the International Business Companies Act No 24 of 1994 would not suffice as the 4th respondent admittedly is no more a director of the said company. The mere fact he still remains a signatory to the bank account in the view of this court, is not sufficient grounds for such service.
Therefore this court makes order that service of all process in respect of the 4th respondent should be to his personal address.
However in regards to the facts of this case it is admitted by counsel for the 4th respondent that his client is still a signatory to the said bank account. Therefore in order to ensure that no party is deprived of the benefit of his litigation if successful and in the interest of justice this court makes order as follows:
a) that in terms of prayer (i) of the application all respondents to the application are restrained from accessing or paying out any sum of money from account number 7656693 of Barclays Bank (Seychelles Limited) till such further order is made.
b) that in terms of prayer (ii) the request for an injunction by the applicant ordering that he shall have immediate access control and payment from the said account in a sum of US $201,811.72 or any other sum be denied till as such time he establishes and satisfies court in respect of his claim and till such further order is made by court.
c) It follows that for the aforementioned reason prayer (iii) requesting an injunction that the applicant be registered as signatory to the said account and payment of 50% of all fees and monies from the said account to the applicant is also denied till such further order is made by court.
A copy of the said order to be served on the bank concerned.
Dated this 16th day of February 2011