Craft Development SCI v Actis LLP (a firm) & Ors

A foreign judgment appointing a provisional administrator may have immediate legal effect even without an executory formula or a grosse, where the appointment is not capable of forced execution by bailiffs. The executory formula is directed to compulsory enforcement, such as seizure of property or attachment of money. It does not govern every judgment merely because the judgment affects legal rights.

In determining foreign law, the court considers expert evidence together with the decisions and practice of the foreign courts, giving significant weight to decisions of the highest foreign court. An appeal or application for a stay may suspend the administrator’s mandate, but the possibility of such suspension does not prevent authority arising on appointment.

Craft Development SCI, a Cameroonian company, brought proceedings in England against Actis entities. The claim was issued by Mr Ngoua Elembe Hiob, who relied on his appointment by the High Court of Wouri as provisional administrator of Craft, upheld by the Littoral Court of Appeal.

The defendants applied to strike out the claim, arguing that Mr Hiob had no authority because the Cameroonian judgments had not been issued and served with an executory formula in the form of a grosse. The respondents argued that those formalities concerned only forced execution and were unnecessary for an appointment conferring status and authority.

The preliminary issue was the effect of the Cameroonian judgments under Cameroon law.

1. Application dismissed. The 8 March Judgment of the High Court of Wouri, upheld by the 21 January Court of Appeal Decision, had substantive legal effect and conferred authority on Mr Hiob to act as provisional administrator. The absence of a grosse did not invalidate his authority.
2. The court had to determine Cameroon law as a question of fact. It considered the expert evidence, statutory materials and the acts and decisions of the Cameroonian courts. In accordance with Yukos Capital S.a.r.L v OJSC Oil Company Rosneft, significant weight was given to decisions of the foreign courts, particularly the Supreme Court of Cameroon.
3. Section 11 of Law No. 2006/0015 required the executory formula only for judgments capable of forced execution by bailiffs. The formula was a command to bailiffs and supporting state forces to enforce a judgment. The relevant concept was exécution forcée, involving measures such as seizure of goods, attachment of money or freezing assets.
4. A judgment appointing a provisional administrator was different in kind from a judgment ordering payment or transfer of property. It conferred status and powers on the appointee, who was not obliged to accept the appointment. If the appointee declined, the court would appoint another person. The appointment therefore was not capable of forced execution in the relevant sense.
5. The refusal of provisional execution in the 8 March Judgment supported that conclusion. The High Court of Wouri distinguished the appointment of a provisional administrator from contractual debt claims and stated that provisional execution was unnecessary. The judgment also required publication of the appointment within 15 days, indicating immediate legal effect.
6. The later extension orders made by the High Court of Wouri, and the Supreme Court’s refusal of a stay so that Mr Hiob could accomplish his mission, strongly supported the existence of authority despite the absence of a grosse. An appeal or stay application could suspend the mandate, but did not mean that authority had never arisen.
7. The later issuance of grosses was anomalous and supported the defendants’ case to some extent, but it did not outweigh the evidence from the Cameroonian courts and the other indicators of immediate legal effect. The issue concerning Dr Nasah’s authority therefore did not arise.