Republic and Others v Abdourahman Mohamed Mahmoud Boreh and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Field |
| Judgment Date | 07 June 2013 |
| Neutral Citation | [2013] EWHC 2393 (Comm) |
| Date | 07 June 2013 |
| Docket Number | Case No: 2012 Folio 1333 |
| Court | Queen's Bench Division (Commercial Court) |
2013 EWHC 2393 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
The Rolls Building
Fetter Lane
London EC4A 1NL
Mr Justice Field
Case No: 2012 Folio 1333
Khawar Qureshi QC and Daniel Goodkin (instructed by Gibson Dunn & Crutcher LLP) for the Claimants
Christopher Butcher QC andKeir Howie (instructed by Byrne & Partners LLP) for the first Defendant
Hearing dates: 5 & 6 June 2013
Approved Judgment
This an application for summary judgment by the first Defendant, Mr Abdourahman Boreh ("Mr Boreh"), under CPR 24.2 in respect of: (i) the claims made against Mr Boreh based on Articles 1991, 1992 and 1993, of the French Code Civil as applicable in Djibouti; and (ii) an alternative claim under Article 6 of the Djibouti Code de Procédure Pénale.
The claimants are the Republic of Djibouti, the Autorité des Ports et des Zones Franches de Djibouti ("the DPFZA"), established by presidential decree on 2 June 2002, and Port Autonome International de Djibouti ("PAID"), established in 1980 as the statutory ports authority having jurisdiction over the ports of Djibouti.
Mr Boreh is a wealthy businessman who is a Djibouti national and also a citizen of France. In the mid-1990s he based himself in Dubai, from where he expanded his empire internationally. By presidential decree number 2003/0093/PRE, it was decreed that a Board of Directors should be formed charged with administering the DPFZA and should consist of five named individuals, including Mr Boreh, who was to be president of the board.
Articles 3 and 4 of the decree provided:
3. With a view to the effect of establishment of the Djibouti Free Zone Authority, the members of the board of directors shall have as their primary duties negotiating the Free Zone administration agreement between the Jebel Ali Free Zone Authority and the government of the Republic of Djibouti, harmonising and reforming the legislation and regulations on investment in the Free Zone of the Republic of Djibouti, considering any new creation of a Free Zone in the Republic of Djibouti, advising the government on any matters pertaining to the Free Zone.
4. The board of directors is under the authority of the president of the republic and it's members are to carry out their duties in complete autonomy in respect of any ministries that may be affected by the operations of the Djibouti ports and Free Zone Authority.
Mr Boreh remained as president of DPFZA until 2008, when he left Djibouti, having by now found himself in dispute with the Djibouti government over tax claims that had been levied against him and on at least one of his companies.
The claimants allege that whilst he was president of DPFZA, he improperly profited from his position in numerous ways, including (1) receiving commissions from a Chinese company in respect of a contract for cranes for use at a new container terminal; (2) causing contracts to be concluded for the benefit of one of his companies, Soprim Construction SARL; (3) procuring large payments to himself regarding an alleged finders' fee and for purported expenses in respect of the dry port; (4) obtaining a 30 per cent interest in the share capital of a Free Zone company, Horizon Djibouti Terminal Limited; and (5) procuring contracts for the provision of security-related services by a company, Nomad, in which he had a two-thirds interest, for PAID and Port Secure FZCO, a company partly own by DPFZA.
Articles 1134, 1991, 1992 and 1993 of the French Civil Code are pleaded in paragraph 7 of the Points of Claim as giving rise to the duties that Mr Boreh owed to the claimant. Paragraph 7 pleads (in relevant part) the provisions of the articles just recited as follows:
(a) Article 1134: "[Agreements] must be performed in good faith";
(b) Article 1991: "An agent is bound to perform the agency so long as he is responsible for it and is liable for the damages which may result from his non-performance…"
(c) Article 1992: "An agent is liable not only for intentional breach but also for faults committed in his management, nevertheless the management for faults is implemented less rigorously against the one whose agency is gratuitous than against the one receiving a salary"
(d) Article 1993: "Every agent is bound to account for his management, and to return to the principal, all that he received by virtue of his power of attorney, even where what he received was not owed to the principal".
Paragraphs 8 and 9 of the Points of Claim plead:
8. The duty to account in article 1993 has two elements: (a) an obligation on the agent to provide the principal with details of all actions performed on his behalf and of the full accounts of the management (payments made to third parties, benefits received, etc); and (b) an obligation on the agent to return all that he receives by virtue of his agency, even if what he receives was not owed to the principal.
9. Pursuant to decree 2003/00933/PRE and the law of Djibouti:
(a) the defendant's role as President of the Board of Directors of the DPFZA was one which put him in a position of public authority;
(b) the defendant became an agent of the claimants or each of them (i) to perform the responsibilities of the President and Board of Directors of the DPFZA, referred to in decree 2002/0098/PRE, Decree 2003/0093/PRE, Loi 53/AN/04/5ème and Decree 2004/0178/PRE; and (ii) to supervise and manage the activities of PAID.
(c) the Defendant was required, pursuant to Article 5 of Loi LR/77-001 which made Articles 113(4) and 991 to 93 of the French Civil Code applicable in Djibouti ("the Civil Code"):
(i) to perform his role as an agent for the Claimants or each of them and:
(ii) to account for his management and return to the Claimants or each of them all that he received by virtue of his appointment as an agent, even where what he received was not owed to any Claimants.
Articles 1984 to 2010 of the French Civil Code constitute the content of Titre 13, headed "Du Mandat" of the Third Book of the Code. Whilst Djibouti was a colony of France, the law of Djibouti was the law of France, including the Civil Code.
By virtue of Djibouti's Loi Constitutional number 1, the laws applicable before independence remain in force in Djibouti, including the French Civil Code, unless subsequently repealed. Thus Djibouti continues to be governed by the French Civil Code as in effect at 1977, and French jurisprudence on the Civil Code pre-1997 remains applicable. French jurisprudence post-1977 serves as a reference.
The approach the court should take on a summary judgment application was formulated by Lewison J. in paragraph 15 of his judgment in Easyair v Opal Telecom [2009] EWHC 339. In particular: (1) The court must consider whether the claimant has a realistic as opposed to a fanciful prospect of success ( Swain v Hillman [2001] 1All ER 91). (2) A realistic claim is one that carries some degree of conviction. This means a claim that is more than merely arguable. ( ED& F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]; (3) In reaching its conclusion the court must not conduct a mini trial ( Swain v Hillman). (4) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents (ED&F Man Liquid Products v Patel at [10].
Mr Butcher QC for Mr Boreh contends that the claimants' pleaded case based on Articles 1991, 1992 and 1993 of the Civil Code has no real prospect of success and is wholly unconvincing.
Mr Butcher advances two principal submissions. First, he argues that it follows as a matter of Djibouti law from the claimants' pleaded admission that Mr Boreh's appointment as President of the Board of DPFZA put him in a position of public authority, that the misconduct by Mr Boreh in that office complained of is governed not by the private law provisions of the Civil Code, but by administrative law, which is part of public law.
Second, Mr Butcher submits that the relationship on which Articles 1991, 1992 and 1993 are predicated did not exist between any of the claimants and Mr Boreh. In Mr Butcher's submission, the relationship of mandat requires there to be a contract between the principal — the mandate— and the agent — the mandataire — the predominant objective of which is the creation of an acte juridique such as the formation of contracts concluded by the mandataire in the name and on behalf of the mandat. In the claimants' pleaded case they rely on the Presidential Decree appointing Mr Boreh as President of DPFZA for the creation of a mandat relationship and a relationship between the claimants and Mr Boreh, and Mr Butcher says that it is manifest that there was never a contract between any of the claimants and Mr Boreh.
Further, Mr Boreh was not authorised by the decree to enter into contracts in the name of the claimants or to transact anything else in the nature of an acte juridique.
Each side relies on expert evidence from a number of different witnesses. The principal expert relied on by the claimant is Maître Omar, who is a lawyer admitted to the Djibouti Bar in 1996, having obtained a Master's degree in law from the University of Amiens in 1991. Mr Omar's first expert report is dated 11 July 2012 and was served before Mr Boreh issued his application for summary judgment. In his first report Mr Omar states in paragraph 2.6 and 2.7:
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