Louis Emovbira Williams v Federal Government of Nigeria & Anor

Service of process on a foreign State may be effected in an alternative manner agreed by that State under State Immunity Act 1978, section 12(6). The agreement need not require service on a formally appointed ambassador or high commissioner, provided the agreed method is sufficiently established on the evidence. A claim arising from a commercial transaction is outside the State’s immunity under section 3(1)(a). A claim concerning funds held on trust in England may also fall within section 3(1)(b). Where service was validly agreed and the claim falls within an exception to immunity, a default judgment will not be set aside for non-compliance with the ordinary diplomatic-service route.

The claimant obtained default judgment against the defendants in 2018 concerning money allegedly obtained through a fraudulent breach of trust connected with a Nigerian food-import transaction. The judgment was served through diplomatic channels in December 2019.

The defendants applied in September 2020 to set aside the judgment. They argued that the claim form had not been served in accordance with section 12(1) of the State Immunity Act 1978, that it had not been served out of the jurisdiction within six months, and that Nigeria was immune under section 1. The claimant sought dismissal of the application as an abuse of process and orders concerning costs and security.

1. The defendants’ application to set aside the default judgment was dismissed. The claimant’s cross-application was also dismissed.
2. Section 12(6) of the State Immunity Act 1978 permits service in any manner to which the State has agreed. On the evidence, Nigeria had agreed that proceedings could be delivered to the Nigerian High Commission in London and forwarded to the Attorney General in Abuja. The absence of a formally appointed high commissioner at the relevant time did not prevent an acting high commissioner from accepting service pursuant to that arrangement.
3. The claimant’s evidence of the agreement was repeated and essentially consistent. It was corroborated by the acting high commissioner’s confirmation and by the fact that the documents were forwarded to the Attorney General. The defendants provided no evidence from the Solicitor General or other source directly contradicting the alleged agreement.
4. Because service was effected pursuant to an agreement under section 12(6), the ordinary diplomatic-service requirements in section 12(1) did not govern. The argument based on service out of the jurisdiction within six months therefore could not assist the defendants.
5. Nigeria was not immune from the proceedings. The claim arose from a commercial transaction within section 3(1)(a). It also appeared to fall within section 3(1)(b), because the trust required the funds to be held by a trustee in England on behalf of the Federal Government of Nigeria.
6. The defendants’ delay in progressing their application was substantial and unexplained, but would not alone have justified dismissal if the application had possessed substantive merit. The court therefore dismissed both applications.