Louis Emovbira Williams v The Federal Government of Nigeria
| Jurisdiction | England & Wales |
| Judge | Bird |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] EWHC 1891 (KB) |
| Year | 2023 |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2019-001682 |
[2023] EWHC 1891 (KB)
HIS HONOUR JUDGE Bird (SITTING AS A JUDGE OF THIS COURT)
Case No: QB-2019-001682
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Oluwole A Ogunbiyi (direct access counsel) for the Claimant
Mr A. Aderemi (instructed by Setfords) for the Defendants
Hearing dates: 5 July 2023
Approved Judgment
HIS HONOUR JUDGE Bird (SITTING AS A JUDGE OF THIS COURT)
Introduction
Dr Williams says that in or about 1986 he was the victim of a state sponsored fraud as a result of which he lost the sum of US $6,520,190. Thereafter he says he was unlawfully detained by the first Defendant and was unlawfully deprived of a further US $5,880,611. He says these wrongs have been formally acknowledged by the first Defendant and that on 29 September 1993 a decree was issued by the then President of Nigeria requiring that these sums, together with punitive interest, be repaid to him. On 8 May 2019 he issued proceedings seeking to recover these sums. By then the claim amounted to more than US $80m.
A dispute has arisen as to the jurisdiction of this court to deal with the claim. The Claimant asserts that the Court has jurisdiction because the proceedings have been properly served on each Defendant by delivery to the High Commissioner of the first Defendant in London on 9 May 2019 or in the alternative because the Defendants have each submitted to the jurisdiction. The Defendants deny that there has been good service and assert that they have not submitted to the jurisdiction.
Whilst the issue concerns both Defendants it was acknowledged in the course of the hearing that the second Defendant has been joined simply as a matter of form and that no relief is sought against him.
Service
The Law
Service on a foreign state (and therefore on the first Defendant) is governed by section 12 of the State Immunity Act 1978. In General Dynamics v Libya [2021] UKSC 22, the Supreme Court held by a majority that the Act sets out “ for proceedings within its scope, the exclusive and mandatory method for service on a foreign state”. The version of that provision in force on 9 May 2019 provided as follows:
“12. Service of process and judgments in default of appearance.
(1) Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and Service shall be deemed to have been effected when the writ or document is received at the Ministry.
….
(3) A State which appears in proceedings cannot thereafter object that subsection (1) above has not been complied with in the case of those proceedings.
….
(6) Subsection (1) above does not prevent the service of a writ or other document in any manner to which the State has agreed and subsections (2) and (4) above do not apply where service is effected in any such manner.”
The parties agree that service was not affected on the first Defendant in accordance with section 12(1). The remaining options for good service are therefore that the first Defendant has “ appeared in proceedings” and so submitted to the jurisdiction of the Court or that service was affected in a manner agreed by the first Defendant.
Section 12 does not apply to the second Defendant. He must therefore be served in the normal way. It is accepted that although the relevant claim documents were posted to the Attorney General's office in Nigeria there was never permission to serve out of the jurisdiction. The Attorney General would not be entitled to contest jurisdiction if he had submitted to the jurisdiction.
Submission to the jurisdiction
During the course of argument I suggested to the parties that the test set out in the following passage from Dicey, Morris & Collins on the Conflict of Laws accurately summarised the law. Neither side made any contrary submissions and I do not regard these propositions as in any way controversial:
“In order to establish that the defendant has, by its conduct in the proceedings, submitted or waived its objection to the jurisdiction, it must be shown that it has taken some step which is only necessary or only useful if the objection has been waived or never been entertained at all. In Deutsche Bank AG v Petromena ASA191 the Court of Appeal held that there are two types of waiver which might give rise to a submission to the jurisdiction. First, there is “common law waiver”, which is the performance of an act which is inconsistent with maintaining a challenge to the jurisdiction. Such an act must clearly convey to the claimant and the court that the defendant is unequivocally renouncing its right to challenge the jurisdiction. In judging this, it is useful to consider whether a disinterested bystander with knowledge of the case would regard the acts of the defendant (or the defendant's solicitor) as inconsistent with making and maintaining a challenge to the jurisdiction. Secondly, there can be a statutory form of submission to the jurisdiction, as in CPR, r.11(5) and (8), for example by filing an acknowledgment of service of proceedings, but then failing to make any application to dispute the court's jurisdiction or failing in that application. In that situation the “disinterested bystander test” has no application; the sole issue is whether the conditions of those paragraphs have been met.”
Whilst the point was not argued, I note that in AELF MSN 242 LLC v Surinaamse Luchtvaart Maatschappij NV DBA Surinam Airways [2021] EWHC 3482 (Comm) it was decided that a common law waiver was sufficient to satisfy the requirements of section 12(3) of the State Immunity Act (see paragraph 100). I note in that case that the Defendant was held to have submitted to the jurisdiction of the Court because it had applied to extend time for serving its defence (see paragraph 73).
The acts said to amount to common law submission
After purported service of the proceedings in May 2019 very little happened for some time.
On 21 September 2020, the Claimant made an application to amend the Particulars of Claim. No order has yet been made on that application.
On 23 October 2020, the Defendants' solicitor sent a part 18 request to the Claimant's solicitor seeking a response within 21 days. It was made clear that in default of response the Defendants would seek a court order. It was clear from the request that it was made on behalf of both Defendants. In a preamble to the requests, the Defendants said: “ the Defendants [intend] to defend this claim. In order to prepare the defence, the Defendants need further and better particulars of the claims.” The request stretches over 8 pages and has 33 numbered requests many of which are sub-divided. Requests 2 to 7 and 9 raise questions about service. The Defendants accept that this was the first time (some 17 months or so after the proceedings came to their attention) that the issue had been raised. Many of the requests are for the production of documents referred to in the Particulars of Claim.
No response was supplied and on 10 December 2020, the Defendants issued a part 23 application seeking an order that the Claimant be required to provide responses. The evidence in support of the application was set out within the application and included an explanation of why the responses were needed. Echoing the request itself the Defendants said: “ the request is necessary so that the Defendant[s] can put together a Defence to this matter. Hence, we seek this court order”.
The application was listed to be heard on 25 February 2022. On 24 February (so the order records) the parties emailed the court asking for the hearing to be vacated because they had “ agreed to deal with the requests and other tangential issues as part of efforts to deal with the matter holistically”. An order reflecting the agreement and making no order as to costs was made on 25 February by Master Thornett.
On 14 March 2022, the Claimant requested judgment in default of Defence in the sum of £83,763,496.00. On 16 March 2022, the Defendants responded with an application seeking an order that the claim be dismissed “for want of jurisdiction”. In their evidence in support, the Defendants asserted that the application was not to be treated as a submission to the jurisdiction. They also, quite apart from contesting jurisdiction, set out their case for resisting the entry of judgment (see in particular paragraphs 3(iii), (iv), (vi), 26 to 29). At paragraph 29 Defendant ask that the claim be “ dismissed or otherwise struck out”. The evidence also responded to the “ purported application” to amend the claim.
On 4 April 2022, the Claimant issued an application seeking an order that the Defendants be debarred from defending the claim.
The effect of these actions
The Defendants used the request for further information and the subsequent application to the court, to make it clear that it intended to defend the claim and that it needed the information it had requested to do so. The Defendants plainly wanted to progress the case to trial and asked the Court to compel such progress in circumstances where its own requests of the Clamant had failed to achieve any progress. In my judgment it is plain that a disinterested bystander with knowledge of the case would regard the application for a court order as inconsistent with an assertion that the Court lacked jurisdiction. By asking the court to make a case progression order, the Defendants were invoking the Court's jurisdiction not denying it. Further, the position is put beyond all doubt in the present case because the Defendants (in concert with the Claimant)...
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