Mbasogo and another v Logo Ltd and Others

JurisdictionEngland & Wales
JudgeLORD JUSTICE AULD
Judgment Date23 October 2006
Neutral Citation[2006] EWCA Civ 1370,[2006] EWCA Civ 608
Docket NumberA2/2005/2222 (D) , A2/2005/2222 (E) , A2/2005/2222 (F),Case No: A2/2005/2222
CourtCourt of Appeal (Civil Division)
Date23 October 2006
Between:
(1) Teodoro Obiang Nguema Mbasogo
The President of The State of Equatorial Guinea
(2) The Republic of Equatorial Guinea
Represented By The Attorney General
Claimants/Appellants
and
(1) Logo Limited
A Company Incorporated In The British Virgin Islands
(2) Systems Design Limited
A Company Incorporated In The Bahamas
(3) Greg Wales
(4) Simon Francis Mann
(5) Eli Calil
(6) Severo Moto
Defendants/Respondents

[2006] EWCA Civ 1370

[2005] EWHC Civ 2034

Before:

The Master of The Rolls

Lord Justice Dyson and

Lord Justice Moses

Case No: A2/2005/2222

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

The Hon Mr Justice Davis

Royal Courts of Justice

Strand, London, WC2A 2LL

Sir Sydney Kentridge QC, Mr Harry Matovu and Mr John McLinden (instructed by Penningtons Solicitors LLP) for the Claimants

Mr Philip Shepherd QC and Mr Bajul Shah (instructed by Kerman & Co LLP) for the First, Second and Fourth Defendants

Mr Michael McLaren QC and Mr Paul Sinclair (instructed by Collyer-Bristow) for the Fifth Defendant

Sir Anthony Clarke MR:

This is the judgment of the court, to which all members of the court have contributed, although the justiciability section has been largely written by Dyson LJ and the section relating to the first claimant has been largely written by Moses LJ.

Introduction

1

This is an appeal against an order made on 21 September 2005 by Davis J in which he struck out both claimants' claims for damages but refused to strike out the claim for an injunction. There is a cross-appeal by the respondents against the judge's refusal to strike out the claim for an injunction. Further, by a respondent's notice, the respondents submit that the claims are not justiciable.

The facts

2

The alleged facts, on the basis of which this appeal must be determined, emerge from the seventh draft re-amended particulars of claim, which is the latest redraft of the claimants' case. In 2005 the African State of Equatorial Guinea had a population of only 521,000, but it was (and is) rich in oil and gas. Its capital, Malabo, is situated on the island of Bioko, which lies off the coast of Cameroon, approximately 160 kilometres from the mainland coast of Equatorial Guinea.

3

The first claimant is the President of the Republic of Equatorial Guinea. He enjoys international recognition as head of state and the United Kingdom has full and reciprocal diplomatic relations with the country of which he is head.

4

The appeal arises out of an alleged conspiracy by the defendants to overthrow the government by means of a private coup, to seize control of the state and its valuable assets, to kill or injure the first claimant and to install the sixth defendant who is an Equato-Guinean living in Spain, as the new President.

5

The particulars of claim allege that the conspiracy took place between March 2003 and March 2004 in England and elsewhere. It is alleged that the attack was to comprise an assault force of some 70 experienced former Special Forces soldiers who had served in South Africa. Further, an advanced group of 20, including experienced former South African Special Forces soldiers, had gone to Malabo to gain intelligence and to prepare and participate in the attack (see paragraph 8 of the re-amended particulars of claim) .

6

The particulars of claim detailed munitions to be used in the attack; they included AK rifles, light machine guns, grenade launchers, rocket-propelled grenade projectiles, mortars, high-explosive mortar bombs and hand-grenades (see paragraph 8A of the re-amended particulars of claim, which is quoted below) .

7

The coup failed. On about 7 March 2004 the fourth defendant and other mercenaries were detained by the Zimbabwe authorities before they, and the munitions they were taking with them, could be loaded on an aircraft and taken to Malabo. The following day a Mr du Toit, who (it is alleged) had agreed to assist, and others of the advance group were arrested in Equatorial Guinea. The fourth defendant was convicted in Zimbabwe of offences relating to unlawful procurement of munitions and, on 10 September 2004, sentenced to 7 years imprisonment, reduced on appeal to 4 years. The main body of mercenaries received lesser sentences for immigration offences. At the end of 2004 and beginning of 2005, others, including Sir Mark Thatcher, pleaded guilty and were convicted of offences contrary to the South African Regulation of Foreign Military Assistance Act 1998. Those arrested in Equatorial Guinea, as members of the advance group, were prosecuted and convicted in October 2004 of offences relating to the coup attempt. They were given long sentences and remain in prison in Equatorial Guinea. The third and sixth defendants heard of the failure when, it is alleged, they were about to leave Mali.

8

The consequences of the attempted coup are fundamental to the allegations made in the amended particulars of claim. It is alleged that the first claimant was caused great apprehension and fear, particularly for his own and his family's safety. He believed that both he and his family were likely to be injured or killed in the course of the attack.

9

Moreover, it is alleged that the defendants' actions caused what is described as "mayhem" within the Republic. It is alleged that the country is dependant on assistance from abroad to help it to develop its natural resources and infrastructure. Reports of the failed coup resulted, so it is contended, in a serious brake being put on such assistance, with a consequential serious impact on the country's infrastructure.

The judge's order

10

The judge struck out the first claimant's claim for damages for assault, conspiracy and intentional infliction of harm by unlawful means against the first, second and fourth defendants (known as the "Kerman defendants") , against the fifth defendant and, of his own motion, against the third and sixth defendants. He struck out the second claimant's claim for damages for conspiracy against the Kerman defendants, the fifth defendant and, of his own motion, the third and sixth defendants. He refused permission for amendment of the particulars of claim relating to the first claimant's claim for damages for the causes of action we have identified in respect of which both claimants made claims. But he refused to strike out the claim for an injunction and granted permission to the claimants to amend the particulars of claim in pursuit of that relief.

Issues

11

The following issues arose on this appeal:-

i) What are the necessary ingredients of the tort of conspiracy, in circumstances where it is not alleged that the predominant purpose was to cause injury? The principal issue debated was whether it is necessary that the unlawful means relied upon by the claimants should be actionable as against at least one defendant or whether it is sufficient, provided the other necessary elements are present, that the means relied upon are unlawful, whether independently actionable or not. The judge took the view that, as a matter of principle, there was no requirement of actionablity but struck out the claim on the basis that he was compelled to do so by the authority of this court in Powell v Boladz [1998] 1 Lloyd's Rep. Med. 116.

ii) Does there exist what was described as a novel cause of action comprising intentional infliction of harm by unlawful means? The judge took the view that no such tort existed and that, in any event, no action would lie for compensation consisting of the distress, anxiety and disruption to personal life and work alleged by the first claimant.

iii) Are the facts pleaded capable of amounting to the tort of assault, as alleged by the first claimant? The judge concluded that there was no overt act indicating an immediate intention to commit battery, coupled with the capacity to carry that intention into effect.

iv) Are the claims justiciable or should the court decline to entertain them because they amount to an exercise of sovereign power by Equatorial Guinea within the jurisdiction of the English courts?

12

The rival submissions in relation to these issues were coloured by rival approaches to striking out claims. It was not disputed that the power to strike out should only be exercised in an obvious case. But the claimants laid particular stress on their assertion that novel points were involved in areas of developing jurisprudence. There should, accordingly, be even greater reluctance to drive them from the judgment seat in circumstances where there were compelling reasons of public interest and policy for permitting the actions to continue where the law was unsettled. It was alleged that the life of the head of a foreign friendly state had been at stake with billions of pounds of assets placed in jeopardy. A case of international terrorism against a friendly state had been master-minded and financed within the jurisdiction of the English courts. In those circumstances it was the proper function of the law to ensure that such wrongs were remedied.

13

Such a clarion call to arms, was parried by the defendants' attempts to disparage the position of the first claimant. We should however say at the outset that the resolution of this appeal does not depend upon the aspersions cast against the first claimant. It makes no difference whether he is a Tiberius or a Marcus Aurelius. Moreover we agree with the judge that it is not necessary to identify the motives which have driven these claimants to bring these proceedings. They stand or fall on the merits of the legal arguments advanced.

14

Further, it was alleged that these proceedings were merely...

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