Compagnie Noga d'Importation et d'Exportation SA v Australia & New Zealand Banking Group Ltd and Others and related actions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Tuckey,Lady Justice Hale |
| Judgment Date | 31 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1142 |
| Docket Number | Case No: A3/2001/2482/A; A3/2001/2482 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2002 |
[2002] EWCA Civ 1142
Lord Justice Waller
Lord Justice Tuckey and
Lady Justice Hale
Case No: A3/2001/2482/A; A3/2001/2482
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Lord Justice Rix (sitting as a High Court Judge)
Steven Gee QC and Vasanti Selvaratnam QC (instructed by Messrs Stephenson Harwood) for the Appellant
Gordon Pollock QC and Mr Paul Stanley (instructed by Messrs Dechert) for the Respondents
Mr Andrew Mitchell (instructed by Messrs D J Freeman) for the Federal Government of Nigeria
Introduction
This appeal raises an important point in relation to the position of a respondent to an appeal and in particular as to the circumstances where a respondent needs permission to raise points in a respondent's notice. In particular it raises the question whether a judge should grant a declaration in relation to a conclusion to which he had come on the facts (the trial of which had taken up most of the time of the court), albeit he had found despite that conclusion that the respondent should succeed at first instance. In this case Noga (for whom Mr Gee QC appeared both here and below) had sought a declaration that an action had been compromised in return for payment of the sum of $100 million by the SJ Berwin Defendants (for whom Mr Pollock QC appeared both here and below). Noga also sought a judgment for $100 million. In considering whether a valid compromise had been reached, a key issue was whether $100 million had either been agreed or even mentioned, and a further issue was whether if it had, the agreement was only conditional. After a lengthy trial the judge concluded that the $100 million had both been mentioned and indeed agreed, but also held that the agreement was only conditional, and thus that no valid compromise had been reached. Noga sought to get him to change his mind about the conditional nature of the agreement which the judge refused. He did however give Noga permission to appeal on the conditional aspect. The position of the SJ Berwin defendants was that as respondents they would seek to uphold the judge's conclusion that there was no settlement agreement on the basis that his findings of fact in relation to the $100 million were wrong, and that no permission to appeal was needed for them to be entitled to confirm his judgment on those grounds in the Court of Appeal. Both parties accepted before the judge that if the form of declaration made by the judge was limited to declaring that "no settlement had been concluded", the SJ Berwin defendants were right. The judge (who it is right to say even at this stage was resistant to the notion the SJ Berwin defendants were right), following a suggestion of Mr Gee inserted as part of the declaration "no settlement", a declaration that he found that the $100 million had been agreed. On that basis the SJ Berwin defendants accepted that they would now need permission to appeal, and albeit protesting the form of declaration, applied for permission. That permission was refused by the judge, but the judge gave permission to appeal his ruling as to the form of the declaration. This is the appeal from the ruling on the form of order, the reasons for which the judge gave in a written judgment of 23 October 2001 known as Noga 3.
The facts
The above introduction sets out the point in issue, but it is right to expand a little on the background. That background is set out at the commencement of Noga 3, and since the position is undisputed it is convenient simply to incorporate paragraphs 1 to 11 in this judgment. Before doing so however I should explain, so as to dispose of a point at the outset, that in addition to the point argued as between Noga and the SJ Berwin defendants, a similar point arises as between FGN and the SJ Berwin defendants on another declaration. Mr Mitchell at the outset of this appeal, explained on behalf of FGN that his clients were neutral in the stance they took on the declaration affecting them, and were simply prepared to abide the result of the decision as between Noga and the SJ Berwin defendants. That was acceptable to all parties and Mr Mitchell withdrew.
Paragraphs 1 to 11 of the judgment of Rix LJ:
"1. This trial has concerned the settlement of three actions brought in London but arising out of events in Nigeria. It has been conducted entirely by reference to English law, but the issues have been very largely ones of fact. Three settlement agreements are in issue. Are any of them binding, and if so which? In particular, was an oral agreement made for the payment of $100 million.
2. The trial has been complicated by the fact that there are three actions involved, and three parties interested in the disputed settlements, as well as by the circumstance that the principal documents are themselves the subject of controversy. With one exception, all the witnesses heard by the court have had their credit impugned by one or other of the opposing parties. Disclosure has continued during the trial. In the event, a trial which was fixed at short notice on the basis that it would be finished within some six to eight days has consumed, with some interruptions, a total of six months.
3. The three parties are: Compagnie Noga d'Importation at d'Exportation SA ("Noga"), a Geneva based trading company, which is claimant in two actions 1999 Folio No 404 and 1999 Folio No 405; the Federal Government of Nigeria ("FGN"), which is the claimant in the third action 1999 Folio No 831; and certain of the defendants in all three actions who have been known by the name of their original solicitors as the "SJ Berwin defendants". These are the personal representatives of the estate of a former ruler of Nigeria, General Sani Abacha, his second son, Mr Mohammed Sani Abacha, as well as the latter's business partner Mr Abubakar Bagudu and two of their companies, Mecosta Securities Inc ("Mecosta") and Standard Alliance Corporation. Noga is also a defendant to the FGN's action.
4. General Abacha presided over a military government as Head of State of the Federal Republic of Nigeria from November 1993 until his death on 8 June 1998. Following his death, successive military and democratic governments of Nigeria investigated allegations that during his regime he had pillaged Nigeria of billions of dollars. Members of his family were implicated in those allegations, foremost among them being Mohammed Abacha. Mohammed succeeded his elder brother, Ibrahim, as head of the family's business, following Ibrahim's death in a plane crash on 17 January 1996. Ibrahim and Mr Bagudu had begun to work together in late 1994. Mr Bagudu became a trusted business associate first of Ibrahim and then of Mohammed. He was treated as one of the family, and lived in a house which belonged to Mohammed Abacha and was next door to the latter's house.
5. Foremost among the matters investigated after General Abacha's death was the so called security funds scandal. It is alleged that more than $2 billion was taken from the Central Bank of Nigeria ("CBN") in cash (dollar, sterling and Nigerian naira banknotes), travellers' cheques and bank transfers under the guise of votes of money for security purposes. Mohammed Abacha and Mr Bagudu have accepted that they were personally involved in the receipt of some $700 million or so of such funds. This cash was delivered by the CBN to General Abacha, handed on by the General to his son Mohammed, and by Mohammed to Mr Bagudu. Mr Bagudu banked these monies with Nigerian banks and ultimately arranged for them to be exported abroad, through the CBN, where they were deposited in the bank accounts of various companies. Following the death of General Abacha and the setting up of a special investigatory panel ("SIP"), these sums were returned to the CBN. To what extent either of Mohammed Abacha or Mr Bagudu were involved beyond the sums returned is in dispute.
6. Among the matters conducted by General Abacha's government with his personal authority but which became subject to criticism and investigation following his death was the Ajaokuta bills of exchange buy-back transaction. These bills of exchange had been drawn by organs of the USSR, which had built and financed the construction of a steel plant at Ajaokuta in Nigeria for the Nigerian Steel Development Authority, to secure payment for the plant pursuant to a contract dated 13 July 1979. The bills were guaranteed by the FGN. Some of them had been paid over the years, but others, viz nos 8–15 and 20, remained outstanding, together with unpaid interest upon them. In 1996, after the succession of the Russian Federation to the former USSR's interests, the outstanding bills were sold by their Russian holders to a company called Parnar Shipping Corporation ("Parnar"), which sold them on to another company called Mecosta, one of the SJ Berwin defendants. Mecosta is a BVI company jointly owned by Mohammed Abacha and Mr Bagudu. It may be that Parnar is also in their ownership, but that is disputed. At any rate Mecosta resold the bills to the FGN for twice what it paid Parnar for them. Mecosta paid some 26% of the fact value of the notes, and the FGN paid 53% to Mecosta. The sums in question were of the order of DM 486 million by way of purchase and DM 972 million by way of resale. The gross profit was distributed into various accounts under the control of Mohammed Abacha and Mr Bagudu. The Nigerian buyer was the Federal Ministry of Finance, on whose behalf the CBN...
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