Williams v Central Bank of Nigeria

Permission to serve proceedings on a foreign defendant requires a serious issue to be tried, a good arguable case within an applicable jurisdictional gateway, and England being clearly or distinctly the appropriate forum.

A dishonest assister is not thereby a trustee or fiduciary for limitation purposes. However, whether a claim against such an assister is an action “in respect of” a fraudulent breach of trust under section 21(1)(a) of the Limitation Act 1980 may raise a serious issue to be tried.

An express trust requires certainty of intention, subject matter and objects. Money said to be held on trust must ordinarily be segregated or separately identified. England is the natural forum where the material transactions and receipt of trust property occurred there.

The claimant alleged that the defendant, Nigeria’s central bank, participated in a fraudulent scheme in 1986 and received approximately $6 million in England. He advanced claims concerning a 1986 trust, a trust allegedly created by a presidential directive in 1993, and an agreement allegedly made in 2009 for repayment.

The defendant challenged jurisdiction and sought to set aside permission for service out of the jurisdiction. The claimant sought permission to amend his pleadings and, where necessary, to serve the amended proceedings out of the jurisdiction. The central issues were whether each claim disclosed a serious issue or arguable case and whether England was the appropriate forum.

1. Applicable test. The claimant had to establish: a serious issue to be tried on the merits; a good arguable case that the claim fell within an applicable gateway; and that England was clearly or distinctly the appropriate forum. The test was summarised by reference to AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7.
2. 1986 Trust. The defendant accepted that the claim arguably fell within the relevant constructive-trust, restitution and property gateways. The court declined to determine finally whether the claim was time-barred because the issue had not been presented as a preliminary trial and was factually and legally unsuitable for summary disposal. A dishonest assister is not a fiduciary or trustee in the relevant sense and may plead the limitation legislation. That conclusion was supported by Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 and Peconic Industrial Development Ltd v Lau Kwok Fai [2009] 5 HKC 135. Nevertheless, the alternative construction of section 21(1)(a), based on the words “in respect of”, raised a serious issue to be tried.
3. 1993 Trust. An express trust required certainty of intention, subject matter and objects. The evidence did not show that the claimant’s money had been segregated or separately identified. It therefore did not establish an arguable case, or a serious issue to be tried, that an express trust had been created.
4. 2009 Agreement. The evidence did not support the contention that the President acted as the defendant’s agent. The Central Bank of Nigeria Act 2007 described the bank as independent in the discharge of its functions, and the President was not authorised generally to contract on its behalf. There was consequently no arguable case that the defendant was a party to the alleged agreement.
5. Forum. England was the natural forum for the 1986 Trust claim. The negotiations, payment, transfers constituting the alleged breach and receipt of the proceeds occurred in England. No specific convenience or expense factor required trial in Nigeria. Permission to serve out was therefore maintained for that claim, refused for the 1993 Trust claim, and jurisdiction was unavailable for the 2009 Agreement claim.