Williams v Central Bank of Nigeria
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Lord Justice Elias,The Master of the Rolls,The Chancellor,Black LJ,Tomlinson LJ |
| Judgment Date | 02 July 2013 |
| Neutral Citation | [2013] EWCA Civ 785,[2012] EWCA Civ 415 |
| Docket Number | Case No: A2/2012/0783,Case No: A2/2011/1229/QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 02 July 2013 |
[2012] EWCA Civ 415
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM High Court of Justice, Queen's Bench Division
Mr Justice Supperstone
(2011)EWHC876(QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Chancellor of the High Court
Lady Justice Black
and
Lord Justice Tomlinson
Case No: A2/2011/1229/QBENF
Guy Philipps QC and Edward Levey (instructed by Berwin Leighton Paisner LLP) for the Appellant
Jonathan Adkin (instructed by Alfred James & Co Solicitors LLP) for the Respondent
Hearing date: 7 February 2012
Introduction
In 1986 the claimant Dr Louis Elmovbira Williams, a national of Nigeria who had been resident in England since 1979, participated in a transaction whereunder, he alleges, he was defrauded of $6,520,190. He asserts, in proceedings commenced by him on 10th March 2010 against Central Bank of Nigeria ("CBN") alone, that an English solicitor, Reuben Gale, held that sum of money in his client account in trust for Dr Williams on terms that he would only release it if and when certain funds had been paid in Nigeria. Dr Williams asserts that in May 1986 Mr Gale fraudulently paid away $6,020,190 of the sum held by him for Dr Williams to the account of CBN with Midland Bank in England, that CBN was party to the fraud and that Mr Gale retained the balance of $500,000 for himself. In his amended particulars of claim Dr Williams asserts that:
(1) CBN was an active participant in the fraudulent scheme of Mr Gale and dishonestly assisted him in the fraudulent breaches of trust (para 29);
(2) CBN received and/or retained $6,020,190 paid by Mr Gale into its account knowing that they were paid in breach of trust and/or in circumstances where it would be unconscionable to retain them (para 30);
(3) By reason of its dishonest assistance in the breach of trust CBN is liable to account to him as a constructive trustee of $6,520,190 paid away by Mr Gale in fraudulent breach of trust (para 37(1));
(4) CBN received and/or retained $6,020,190 paid into its account at Midland Bank in England knowing such money to have been paid in breach of trust and/or in circumstances where retention of that money by CBN would be unconscionable (para 37(2));
(5) Dr Williams is entitled and claims to follow the $6,020,190 paid into CBN's account at Midland Bank in England, trace into the proceeds of such money and to be repaid such money or proceeds (para 37(3)).
The claim form and particulars of claim having been duly served on CBN in Nigeria pursuant to permission granted by Master Yoxall, on 8th April 2010 CBN applied for a declaration that the court had no jurisdiction and/or would not exercise any jurisdiction it might have in respect of this claim of Dr Williams. It sought an order that service of the claim form and amended particulars of claim be set aside. For the reasons given in his written judgment handed down on 8th April 2011 Supperstone J dismissed the application. This appeal of CBN from the order of Supperstone J is brought with the leave of the judge in respect of only one of the many points with which the judge had had to deal. That point is whether the claims of Dr Williams, summarised in paragraph 1, are barred by s.21(3) Limitation Act 1980, as CBN contends, or preserved by s.21(1)(a) thereof, as Dr Williams submits. That is a pure point of law which both sides invite us to decide now.
So far as relevant s.21 Limitation Act 1980 provides:
"(1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action—
(a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or
(b) to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use.
[(2)…]
(3) Subject to the preceding provisions of this section, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued.
…
[(4)…]"
It is not in issue that the claim brought by Dr Williams is (1) an action by a beneficiary under a trust, (2) in respect of any fraud or fraudulent breach of trust, (3) to which the trustee, Mr Gale, was a party or privy. The issue is whether in addition to satisfaction of those three conditions the terms of s.21(1)(a) only permit such an action to be brought outside the limitation period against the trustee, Mr Gale. Counsel for CBN contends that the words in s.21(1)(a) "to which the trustee was a party or privy" not only prescribe a constituent of the cause of action but also restrict the exception to the time bar prescribed by s.21(3) to actions brought against that trustee. This is disputed by counsel for Dr Williams.
In view of the submissions made to us it is convenient at the outset to describe in some detail the antecedents of s.21 Limitation Act 1980 and a number of relevant authorities before seeking either to summarise the submissions of counsel for the parties or to explain my conclusion. In doing so I do not overlook the argument of counsel for Dr Williams that as the Limitation Act 1980 was a consolidating measure its antecedents are irrelevant unless it is ambiguous and, in particular, such antecedents should not be allowed to create an ambiguity where none exists, Farrell v Alexander [1977] AC 59.
Antecedents of s.21 Limitation Act 1980s.21 Limitation Act 1980
The first statute to provide for a period of limitation in respect of actions for a breach of trust was Trustee Act 1888. S.8(1) thereof, so far as material, provided:
"In any action or other proceeding against a trustee or any person claiming through him except where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use, the following provisions shall apply:—
(a) All rights and privileges conferred by any statute of limitations shall be enjoyed in the like manner and to the like extent as they would have been enjoyed in such action or other proceeding if the trustee or person claiming through him had not been a trustee or person claiming through him;
(b) If the action or other proceeding is brought to recover money or other property, and is one to which no existing statute of limitations applies, the trustee or person claiming through him shall be entitled to the benefit of and be at liberty to plead the lapse of time as a bar to such action or other proceeding in the like manner and to the like extent as if the claim had been against him in an action of debt for money had and received…"
There are a number of points to be noted. First, the section applies to actions or proceedings against, not only "a trustee", but also "any person claiming through him". Second, the expression 'trustee' was defined by s.1(3) as including "a trustee whose trust arises by construction or implication of law as well as an express trustee." S.1(4) provided that the provisions of the Act relating to a trustee should apply as well to several joint trustees as to a sole trustee. Third, each of those persons is entitled to rely on the time bar for which sub-section (1)(b) provides but subject to the exceptions comparable to those for which s.21(1) now provides. Ss. 1 and 8 Trustee Act 1888 remained unaltered until 1939.
Limitation Act 1939 was both an amending and consolidating measure. Its enactment was preceded by the Law Revision Committee's Fifth Interim Report. The chairman was Lord Wright MR and its members included Romer LJ. In paragraph 11 it considered "Limitations of Actions against Trustees". Having referred to the terms of s.8 Trustee Act 1888 it noted that those provisions were considered to be satisfactory when Trustee Act 1925 was enacted. The committee considered the possibly anomalous position of personal representatives as indicated in the cases to which the Committee referred. The paragraph then continues:
"It is difficult to find any real justification for the rule that an executor or other person holding property as a trustee, but not on an "express" trust, can plead the statute, though he still retains the trust property or has converted it to his own use. The rule has been extensively modified by decisions giving such a wide meaning to "express trust" as to bring most cases of fiduciary relationship within the exception to the Trustee Act, and to raise serious doubt as to where the line is to be drawn for this purpose between express and constructive trusts. See the judgment of Bowen L.J. in Soar v Ashwell [1893], 2 Q.B. at p. 395) and the authorities there cited, and the cases referred to by Romer J. in ( re: Eyre Williams [1923], 2 Ch. 533). It is perhaps too late now to suggest that the Trustee Act, 1888, was intended to do away with the distinction between express and constructive trusts for the purpose of the limitation of actions, though the definition of "trustee" in Sec 1(3) seems to point to that conclusion. At any rate we consider that the distinction should now be abolished, and we recommend that the exception in Sec. 8 of the Trustee Act, 1888, should be expressly made to extend to trustees whether holding on express or constructive trusts, including the personal...
To continue reading
Request your trial
-
Madoff Securities International Ltd ((in Liquidation)) v Stephen Raven and Others
...v. DB Thakerar & Co [1999] 1 All ER 400, at 408; Gwembe Valley Developments Ltd v. Koshy [2004] 1 BCLC 131, at [86]-[91]; Central Bank of Nigeria v. Williams [2013] QB 499, at [37]. My finding that the directors acted honestly precludes the application of this 386 Were I wrong in this co......
-
Williams v Central Bank of Nigeria
...UKSC 10 before Lord Neuberger, President Lord Mance Lord Clarke Lord Sumption Lord Hughes THE SUPREME COURT Hilary Term On appeal from: [2013] QB 499 Appellant Guy Philipps QC Edward (Instructed by Berwin Leighton Paisner LLP) Respondent Jonathan Adkin QC (Instructed by Alfred James & Co S......
-
Hague Plant Ltd v Martin Hartley Hague and Others
...Lloyd QC. 90 . He pointed out that it was possible that the Supreme Court would overrule the decision of the Court of Appeal in Central Bank of Nigeria v Williams [2012] EWCA 415. If that happened Jean Angela would have a limitation defence to the claim for dishonest assistance 1. 91 . He s......
-
Alpha Sim Communications Ltd (in Compulsory Liquidation) and Others v CAZ Distribution Services Ltd and Others
...and the claim in unlawful trading 108 Before me the case was conducted on the basis of the decision of the Court of Appeal in Williams v Central Bank of Nigeria [2013] Q.B. 499 that a claim in dishonest assistance escapes dismissal under the general six-year limitation period. That was howe......