England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/01/2012

Mr Justice Beatson:

Introduction

1. The claimant, Dr Louis Emovbira Williams, is a Nigerian qualified barrister who has been resident in England for over 30 years. His claims against the defendant, the Central Bank of Nigeria, arise out of what he alleges was a transaction that was part of a fraudulent undercover sting operation directed against one of his clients and himself by elements in the Nigerian State Security Service ("SSS") in which the defendant participated and was involved. By notice dated 29 July 2011 he applied for permission to re-amend the Amended Claim Form and Amended Particulars of Claim and to serve out of the jurisdiction. The defendant contends that the requirements for permission to serve out are not satisfied.
2. This is the second time such an application comes before the court. Proceedings were originally issued in February 2010. Master Yoxall granted the claimant permission to serve the Claim Form and Particulars of Claim on the defendant in Nigeria. The defendant applied to have that Order set aside and the claimant sought permission to amend the Claim Form and Particulars of Claim. At that time the claimant (whose solicitor was then Sandra Williams) sought to advance three claims. Two were based on fraudulent breach of trust: the "1986 Trust" and the "1993 Trust" claims. The third was based on an agreement the claimant alleges he made with the President of Nigeria in 2009 (the "2009 agreement" claim).
3. On 8 April 2011 Supperstone J held ([2011] EWHC 876 (QB)) that only the 1986 Trust claim satisfied the first two requirements for permission to serve a foreign defendant out of the jurisdiction, and that in respect of that claim, England is the natural forum. There has been no appeal by the claimant in respect of the decisions setting aside service out of the 1993 Trust and the 2009 Agreement claims. Supperstone J, however, gave the defendant permission to appeal against his decision rejecting the application to set aside the service out of the 1986 Trust claim. That appeal is due to be heard in early February. I was informed that the issue in it is whether, in considering whether there is a serious issue to be tried on the merits, the court is required to decide whether or not the claim is time-barred. The defendant's case had initially been put as a straightforward challenge to jurisdiction and not as a preliminary issue or trial on limitation. But during the course of the hearing it was argued on the basis of Carter v Clarke [1990] 1 WLR 578 and ICI Chemicals v TTE Training [2007] EWCA Civ 725 at [12] that the court should decide the limitation issue as opposed to considering whether there was a serious issue to be tried. Supperstone J stated (see [27]) that in the circumstances it would not be appropriate for him to decide the issue.
4. The present application is to introduce three new claims. They are based on contract, trust and Nigerian law. They are based on a document dated 29 September 1993 which the claimant states came into his possession in May 2011, a month after Supperstone J's decision. The defendant does not admit the authenticity of this document.^[1] The evidence is that this and another document were discovered by a Mr Pogoson, a Nigerian lawyer who was a close associate of the Attorney-General of Nigeria at the material time, now deceased.^[2] Mr Pogoson worked with the Attorney-General after his return to private practice in late November 1993. His evidence is that some of the Attorney-General's papers were stored at his office, that, at the request of the claimant, he undertook a search of the papers at the end of April 2011 and found the two documents.
5. The documents are on paper headed "Office of the Presidency Dodan Barracks". One is a communication to the Governor of the Defendant Bank and the Permanent Secretary of the Federal Ministry of Finance. Its sub-heading is "Financial Command Instructions FCI No 2279 1993 for the protection of Dr L.E Williams assets purportedly forfeited to the Federal Government by 7 Man Muri Okunnola Military Tribunal". It states it is enclosing copies of "FCI No 2279 1993 Fidelity Guarantee and Abiding Memorandum of Understanding and Assurance in favour of Dr Williams". The second document upon which the new claims are based is the enclosure. Its sub-heading is "Financial Command Instructions Order No 2279 this day September 29 1993 issued by his Excellency C-in-C to protect the assets of Dr L.E Williams now domiciled in the UK as set out herein below". Paragraph (2) describes it as "this Fidelity Guarantee and Abiding Warranty" and as "made as an Order for Execution by the Central Bank of Nigeria", and as an Order "having been acceded and accepted by CBN…in favour of Dr Louis Emorbiva Williams…" The last page of the document inter alia states that the Order was "noted and accepted by CBN" and contains a signature which Mr Adkin, on behalf of the claimant, stated is that of the Governor of the defendant bank. The document is marked to be copied inter alia to the Attorney-General's Office. Mr Adkin referred to this document as "the Memorandum". Mr Philipps QC, on behalf of the defendant, referred to it as "the Fourth Directive". I shall refer to it as "the Fidelity Guarantee".

The background

6. Before dealing further with the contents of the Fidelity Guarantee and the submissions based on it, I briefly summarise the background to the claimant's case, and the nature of the claims he advanced at the time of the earlier hearing. It is possible to do so briefly because these matters are set out in Supperstone J's judgment (at [2] – [11]) and there was no issue between the parties as to his treatment of these matters. As there was also no issue as to the way he summarised the requirements for service out (see [12] - [13]) it is not necessary to set out those requirements here.
7. The transaction out of which these proceedings arose was ostensibly for the importation of foodstuffs to Nigeria. In 1986 a client of the claimant's, Pearl Konsults Ltd ("PKL"), agreed to sell the foodstuffs to a Mr Chukwu for 30 million Naira. The claimant's case is that Mr Chukuwu was operating on the instructions of the SSS. Payment for the foodstuffs was to be by bankers' drafts to be encashed at a bank in Nigeria. It was agreed: (1) that PKL would give US$6,520,190 as security against the risk of encashment of the Naira bankers' drafts prior to supply of the foodstuffs; (2) PKL would borrow this sum from its bank and the claimant would guarantee the bank's loan to PKL; and (3) PKL would transfer the US$6,520,190 to a Mr Rueben Gale, Mr Chukwu's solicitor in England.
8. The loan was given to PKL. It was guaranteed by the claimant. The money was paid to Mr Gale. In a letter dated 19 April 1986, Mr Gale undertook that he would "not release to anybody" the US$6,520,190 which he held "until 30,000,000 Naira are released by Merchant Securities Ltd to Pearl Konsults Ltd". The Naira bankers' drafts were encashed in Nigeria, but the funds were immediately frozen. Mr Gale subsequently paid some US$6,020,190 of the monies he held into an account in the defendant's name at the Midland Bank in England. There is uncertainty about what happened to the remaining US$500,000 but that sum may have been retained by Mr Gale as commission. Because the Naira were frozen and Mr Gale had transferred the US$6,020,190 to the defendant's account, PKL was unable to proceed with the transaction or to repay its bank loan, and the lender had recourse against the claimant under the guarantee.
9. While in Nigeria in connection with the transaction, the claimant was arrested and charged with exchange control offences. In 1987 he was convicted and imprisoned, but he escaped and returned to England. In 1993 a special judicial panel set up by the Attorney General on the President's orders found that he was innocent of all charges. As a result, he received a Presidential pardon which was published in the Official Gazette on 1 September 1993.

The claims considered by Supperstone J

10. The claimant maintains that the 1986 Trust claim arises from the defendant's knowing assistance in, and receipt of monies from, Mr Gale's fraudulent breach of trust. It is said that Mr Gale received and held that monies on trust for the benefit of PKL and the claimant subject only to the specified purposes identified by his undertaking, and that in paying the money to the defendant when he knew the 30 million Naira were not released and available he acted in breach of trust. Supperstone J held that the claimant had established a serious issue to be tried on these points. It was not in issue that this claim fell within the gateway set out in paragraph 3.1(11), (15), (16) of CPR Part 6 PD 6B and (see [41] – [42]) it was held that England is clearly the appropriate forum for resolution of the claim.
11. The basis of the 1993 Trust claim, which Supperstone J found did not raise an arguable case or serious issue to be tried, was a number of documents, one predating the promulgation of the Presidential Pardon, the others postdating it. These documents, like that relied on in this application, are on paper headed "Office of the Presidency Dodan Barracks".
12. The first is a letter dated 30 July 1993 addressed to the Governor of the defendant. The subject heading is "Special Presidential Financial Directives and Instructions No/1991/1993". It refers to the pending gazetting of the Pardon and directs the Governor to return the US$6,520,190 to the claimant on the release of the Gazette.
13. The second document is a letter dated 7 September 1993 to the claimant's lawyer, a Mr Nwalialor, informing him of the pardon and telling him that the claimant was "free to apply to the various government authorities to recover all his assets in the possession of the authorities and to have de-frozen his accounts…". The letter also stated that the Governor of the defendant had been directed to take the necessary action to carry out the President's directives.
14. The third document is dated 14 September 1993 and is addressed to the Governor of the defendant and the Permanent Secretary of the Federal Ministry of Finance. The heading to the text states "Presidential Directives on matters arising from grant of pardon to Dr L.E. Williams:- in particular issues of de-freezing of local accounts in the banks throughout the federation". It refers to the report of the special judicial review panel, and in summary directs the defendant to return the claimant's monies to him, and that the parties should "meet and work out the interest earned on this sum" for payment to the claimant.
15. The fourth document is a letter dated 28 September 1993 to Mr Nwalialor about a complaint that it was proving difficult to secure meaningful discussions with the defendant about the rate of interest "payable on the US$ balances in the UK in the account of Central Bank belonging to Dr Williams" and on Naira balances in the bank's headquarters "belonging to" him. It stated that the President approved rates of 17.5% for the US$ and 25% for the Naira and that the defendant "has been directed to release the principle sums" of the US$ amounts in the UK "with immediate effect to Dr Williams or his order", and that the sums "are due immediately". The letter also states that as the Governor of the defendant "has been flown abroad for medical attention … the Deputising Governor will have to obtain the necessary reassurances required to proceed with execution of the Presidential Directives".
16. The claimant contended that the documents established an agreement by the defendant to hold the monies received from Mr Gale at the direction of the President of Nigeria, and that pursuant to that direction the defendant was constituted the trustee of the monies for the benefit of the claimant, so that the defendant is liable to account for those monies. Supperstone J concluded that the claimant had not established an arguable case or a serious issue to be tried on the merits of the 1993 Trust claim because there was no evidence that the claimant's monies were ever segregated or separately identified in 1993 or at any later time. While the President directed the defendant to return the claimant's money to him, there was no evidence that any express trust was established in respect of any particular trust fund: see [32].
17. The 2009 agreement claim was based on the claimant's allegation that in or around June 2009 he reached an agreement with the defendant for the repayment of the disputed monies. Reliance was placed on an agreement between the claimant's representatives and counsel for the President and an instruction by the President that the defendant pay the claimant. Supperstone J held there was no arguable case or even serious issue to be tried because the documents provided no support for the submission that the President was acting as the defendant's agent when making the alleged agreement, and because of some inconsistency between the pleadings and the evidence as to the date of the alleged agreement.

The Fidelity Guarantee (Memorandum/Fourth Directive)

18. Mr Adkin submitted that there is a serious issue to be tried that, "in executing the Memorandum" the defendant constituted itself trustee for the claimant's benefit of the monies referred to in it which represent the monies taken from the claimant, and that "by the Memorandum D gave contractual undertakings to the Federal Republic of Nigeria to repay to C the monies identified" in it and that there was a trust of the defendant's promise which the Republic, as promisee, held for the benefit of the claimant. The third of the new claims is the submission by the claimant (skeleton argument at [44]) that "the Memorandum constituted a valid and effective decree issued by the President (and Commander in Chief) which was enforceable as such under Nigerian law and that, consequently, [the claimant] has a valid and enforceable claim arising out of the memorandum under Nigerian law".
19. I have summarised and set out the relevant part of paragraph (2) of the Fidelity Guarantee at [5]. The other relevant provisions are:

"…

(13) The C-in-C has therefore ordered the pardon of Dr Williams as of right and innocence, not ex gratia, and therefore ordered all assets purportedly forfeited to FNG to be returned to Dr Williams.

(14) The CBN therefore is ordered and herein has consented to act with utmost good faith and assurance and to return to Dr Williams the following sums of money:-

(a) US$ 6,520,190 with interest fixed 17.5% compound interest on rollover basis from 1986.

[(b) and (c) deal with Naira 5,013,316 in banks in Nigeria and the interest rate and rate of exchange of the claimant's Naira balances in those banks].

(15) The C-in-C orders CBN to hold and CBN accepts that CBN is holding the proceeds and sums in (14) as a custodian for Dr Williams and would with utmost good faith release the same to Dr Williams, not only on demand, but also by CBN reaching out to Dr Williams as a matter of duty.

(16) …CBN is ordered and hereby consents that if it is any difficulty in effecting payment as a matter of last resort it shall employ a solicitor in England and Wales to deposit the proceeds of the sum in UK HM Royal Court of Justice to await Dr Williams formal application to retrieve (14) in the UK…

…

(19) To the extent that the amount in (14) above remain unpaid…any account on which enforcement action is pursued, be it in Nigeria or outside Nigeria, shall be deemed to belong to Nigerian state and/or CBN less the amounts in (14) above.

…

(21) In the unlikely event, if and when Dr Williams is constrained to take legal proceedings to secure and enforce the release of his monies in (14) above, the FNG orders and CBN herein agrees that:-

(i) It would be a matter for Dr Williams to make a choice of his forum for that purpose, be it the UK or Nigeria or any other country,

(ii) English law is to apply in (21)(i) above,

(iii) Neither the Nigerian state nor CBN shall raise or invoke any defences so as to deprive Dr Williams of his monies in (14) above or make it financially onerous and burdensome such as requiring Dr Williams to deposit security for costs or suffer from CBN's objections or pleadings such as a fluction of time, acts of state, state privileges, state secrecy and state immunities and the like. All these defences and the like shall be deemed to have been waived without any equivocation and doubt whatsoever. "

The claimant's case on the new claims

20. Mr Adkin submitted that there is a serious issue to be tried on the new trust claim because there is a strong case that the three certainties required for the establishment of a trust are met in this case. He submitted that the subject matter of the trust is identified in paragraph (14) of the Fidelity Guarantee (Memorandum/Fourth Directive) as being the sums of money taken from the claimant together with the specified interest. The intention to create a trust of the monies is, he argued, clearly indicated by paragraph (15) and in particular the acceptance by the defendant that it holds the proceeds and the sums in paragraph (14) "as a custodian" for the claimant and would "with utmost good faith" release the sums, not only on demand but also by the defendant "reaching out to" the claimant "as a matter of duty". He also relied on the description of the monies as "his monies" (paragraph (21)), the reference to "proceeds", i.e. of sums taken from the claimant (paragraph (13)), and the "return" to the claimant of all assets purportedly forfeited by him (paragraph (13)).
21. As to the jurisdictional gateways, Mr Adkin principally relied on CPR PD 6B, paragraphs 3.1(12) (claim to execute the trusts of a written instrument where trust ought to be executed according to English law and person to be served is a trustee), 3.1(6)(c) and (d) (claim in respect of a contract governed by English law or with English jurisdiction clause), and 3.1(11) (whole subject matter of claim relates to property within the jurisdiction). He submitted there is a good arguable case that the trust gateway applies because of the express provision in paragraph (21) that English law is to apply to a claim for the payment of monies, or alternatively because English law is the system with which the trust is most closely connected. He submitted the contract gateway was satisfied because of the choice of law and jurisdiction clauses in paragraph (21). He only relied on CPR PD 6B paragraph 3.1(11) in relation to the US$ 6,520,190 because there is a good arguable case that the money is in England. Moreover, he accepted that the restitutionary gateway in paragraph 3.1(16) did not add to the trust and contract gateways.
22. In relation to the new contract claim, Mr Adkin submitted that, by the Fidelity Guarantee (Memorandum/Fourth Directive) the defendant gave contractual undertakings to the Federal Republic of Nigeria to repay to the claimant the monies identified in paragraph (14), that the promisee, the Federal Republic, held the benefit of the defendant's promise on trust for the claimant, and that the claimant was accordingly entitled to bring proceedings to enforce that promise. As to the jurisdictional gateways, Mr Adkin relied on paragraphs 3.1(6)(c) and (d) (see [21] above) and 3.1 (7) (breach of contract committed within the jurisdiction). He again relied on the choice of law and jurisdiction provisions in paragraph (21), emphasising that, for that gateway, it is only necessary (see Greene Wood v Templeton Insurance [2009] 1 WLR 2013 at [18] – [20]) that the claim be "in respect of a contract" and does not have to be made by a party to the contract.
23. In relation to the Nigerian law claim, the opinion of Chief Oguntade, a former Chief Justice of Nigeria which is before the court as an expert report is that the Fidelity Guarantee (Memorandum/Fourth Directive) and Financial Command Instructions FCI No 2279 1993 (the other document referred to at [5]) are both legislative orders under Nigerian law and enforceable as such as a matter of Nigerian law. Mr Adkin submitted that, in the light of the former Chief Justice's evidence, there is, at the very least, a serious issue to be tried that the claimant is entitled to pursue that claim. For this claim he relied on the jurisdictional gateways in CPR PD 6B paragraphs 3.6(d) (term providing for claimant to choose forum and choice by claimant of England) and 3.1(11) (whole subject matter of claim relates to property in England), the latter subject to the qualification to which I have referred: see [20].

Discussion

24. Before dealing with the substance of the application, I address two preliminary points that were taken. The first concerns the authenticity of the Fidelity Guarantee (Memorandum/Fourth Directive) which, as I have stated, is not accepted by the defendant. The second (see defendant's skeleton argument, paragraphs 7 and 43 – 45 and, to a lesser extent, paragraph 50) is that the new trust and contract claims repeat claims disposed of by Supperstone J.
25. While Mr Philipps QC made a number of telling points about the Fidelity Guarantee (Memorandum/Fourth Directive), the defendant has filed no evidence that it is a forgery. While in certain circumstances it may be possible summarily to conclude that a document is a forgery, in this case it cannot be so concluded, a position apparently accepted by the defendant's solicitor as recently as 30 September 2011.
26. As to the second preliminary point, it was not argued by Mr Philipps that the new trust and contract claims are an abuse of process. Whatever the similarities, the issue is whether the differently formulated claims based on an obligation that arose on a different date, (29 September 1993, rather than 30 July, or 7, 14 or 28 September 1993), and, in the case of the contract claim, based on a trust of the promise rather than a direct contract between the claimant and the defendant, satisfy the requirements for service out.
27. In the present case, the issue of whether a trust and a contract exist is relevant both to the question of "serious issue to be tried" and to whether the requirements of the trusts and contract jurisdictional gateways have been satisfied. Although formally an applicant for permission to serve out has to show "a good arguable case", where the question is also relevant to the jurisdictional gateways, the court applies the test by, in effect, requiring a higher standard. This is because (see Christopher Clarke J in Cherney v Deripaska (No. 2) [2008] EWHC 1530 (Comm) at [41] – [44]) the jurisdiction to serve out is an exorbitant one over those who are not within the ordinary reach of the court, and the court seeks to avoid the risk of compelling individuals or companies to submit to a jurisdiction to which they ought not, in truth, to be made subject. In Canada Trust v Stoltenberg (No. 2) [1988] 1 WLR 547 at 555 – 557, Waller LJ expressed the higher standard by asking whether the applicant "has much the better of the argument", and this gloss has been applied: see AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7 at [71] per Lord Collins. That case did not comment on the suggestion by Hamblen J in Cecil v Bayat [2010] EWHC 641 (Comm) at [24] that "it would probably be clearer and simpler" to apply the former test "not least because it avoids the uncertainty of exactly what the word 'much' adds to it". I, like Hamblen J, consider that, in the absence of an authoritative determination, I am bound to apply the test of who has "much the better" of the argument. I understand this to mean that it must be shown "not merely that on balance they have the better of the argument, but that they clearly do so". It was not, however, suggested that the different formulations of the requirement have any practical impact in the context of this case.
28. In this case, the claimant seeks to add claims to a Claim Form and Particulars of Claim already served out of the jurisdiction. Since he can only do so if the amendments are to introduce claims in respect of which service out would be granted, the pending appeal concerning the 1986 Trust claim is not a complicating factor save in relation to the Nigerian law claim. I accept Mr Philipps' submission that the new trust and contract claims do not satisfy the "better" or "much better" of the argument test in relation to the gateways relied on. I also have doubts as to whether they raise serious issues to be tried on the merits. At the outset I observe that in the context of the Nigerian law claim the claimant maintains that the Fidelity Guarantee (Memorandum/Fourth Directive) constitutes a valid and effective decree issued by the President and Commander-in-Chief, a legislative instrument. The submissions on behalf of the claimant seek to characterise that instrument as also constituting a trust and a contract and giving rise to private law obligations. In principle, it may be possible for such an instrument also to be or to create a trust or a contract. But, if it is, notwithstanding declarations of assent or consent such as those in paragraph (14) – (16), it is in reality a "compulsory" trust or contract rather than one based solely or primarily on the intention of the defendant.
29. I deal first with the new Trust claim. The word "custodian" in paragraph (15) of the Fidelity Guarantee (Memorandum/Fourth Directive) cannot bear the weight placed on it by Mr Adkin. He argued that the word is "near the language of trust", is in itself "enough" or "arguably enough", and is not consistent with a debtor/creditor relationship. But, as Mr Philipps submitted, on this argument every bailee would arguably be a trustee. Similarly, the statement in paragraph (15) that the monies are to be released "with utmost good faith" on demand does not mean that there is arguably a trust. Secondly, there are a number of important indications in the document that the defendant is not constituted a trustee by it.
30. The first and most important of these indications is that the document is a "command instruction order" by the President/C-in-C, making directions to the defendant bank and so describes itself: see [5]. I reject the defendant's submission that the document is an executive order to the defendant to pay "compensation". I do so because of the references in paragraphs (13), (14) and (21) to the "return" and "release" of the money. But, although paragraph (3) describes the document as a "Fidelity Guarantee and Abiding Warranty", and although the document states (e.g. in paragraphs (14) and (15)) that the defendant consents and accepts the directions given, those references do not change the fundamental nature of the document as a legislative or quasi-legislative instrument giving mandatory directions to the defendant. Since, on the claimant's own case, the instrument imposes a legislative obligation on the claimant, there is no need to read it as manifesting an intention to create a private law trust. The position is similar to that in relation to regarding the instrument as a contract and the implication into that contract of a trust of a promise considered at [36] below, relying on the analogy of Swain v Law Society [1983] AC 598, 622.
31. Secondly, the document does not contain a direction that the defendant hold the monies described in paragraph (14) separately. The document contemplates the defendant "returning" or "releasing" the monies (see paragraphs (13), (14), (15) and (21)) but does not require it to segregate the monies pending such "return" or "release". Although in R v Clowes (No. 2) [1994] 2 All ER 316 at 325 Watkins LJ stated that "the fact that a transaction contemplates the mingling of funds is…not necessarily fatal to a trust", he accepted that the effect of the authorities is that "a requirement to keep monies separate is normally an indicator that they are impressed with a trust and…the absence of such a requirement, if there are no other indicators of a trust, normally negatives it". Mr Adkin focused on the italicised words and submitted that the use in particular of the terms "custodian", "obligations of good faith", and "proceeds" are such other indicators. But, for the reasons I have given and in view of the nature of the document, I do not consider they are.
32. Channell J in Henry v Hammond [1913] 2 KB 515 at 521 stated that, if a recipient of money "is not bound to keep the money separate, but is entitled to mix it with his own money and deal with it as he pleases, and when called upon to hand over an equivalent sum of money, then he is not a trustee of the money but merely a debtor". More recently, Millett LJ in Paragon v Thakerar [1999] 1 All ER 400 at 416 stated that "any right on the part of [a person] to mix the money which he received with his own and use it for his own cash flow would be inconsistent with the existence of a trust". For these reasons, even if the words "custodian", "obligations of good faith", and "proceeds" can be understood as some indication of a trust, it cannot be said that the claimant has "the better of the argument" on this matter, let alone "much the better of the argument" for the purposes of the jurisdictional gateway.
33. Before Supperstone J (see [32]) there was no evidence that the monies in this case were in fact separately identified or segregated: see his reference to an internal memo dated 29 December 1989. There is also no evidence of this before me. Indeed, a document dated 19 January 1990 from the Governor of the Central Bank stated that the claimant's Naira funds had been "returned" to the "Consolidated Account of the Federation" and the US$6.5 million gross with interest had been "placed" in that account to await the final decision of the President/Commander in Chief. If anything, that supports the defendant's case. Mr Adkin submitted that, since the claimant has no means of knowing how the defendant holds the monies, the evidential silence of the defendant is telling. It is, however, for the claimant to satisfy the "much the better of the argument" standard, and he has not done so.
34. Thirdly, although I consider this factor carries less weight than the others, the Fidelity Guarantee, unlike many of the other documents, was not sent to the claimant or his lawyers.
35. As to the contract claim based on a trust of a promise, this too depends on characterising the legislative or quasi-legislative Fidelity Guarantee (Memorandum/Fourth Directive) as an instrument creating a contract and thus private law rights. I reject Mr Philipps' submission that permission to bring this claim ought to be refused because the claimant has not joined the promisee, the President/Federal Republic, as a party to the proceedings. It is clear on the authorities that if the claimant has the better of the argument that the instrument is a contract and that it creates a trust of the defendant's promissory obligation, this omission can be cured at any stage before judgment: see Three Rivers DC v Bank of England (No. 1) [1996] QB 292 at 309H. But, for similar reasons to those in relation to the trust claim (see [30]), I do not consider that the instrument can be regarded as a contract.
36. I also accept Mr Philipps' submission that the decision in Swain v Law Society [1983] AC 598 is of analogical assistance. The House of Lords stated that the fact that the rules of an indemnity scheme made by the Law Society gave those insured by this scheme a direct statutory remedy against the insurers was a reason for not finding a trust of the insurers' promise. The direct statutory remedy meant it was not "necessary" to imply a trust: [1983] AC 598 at 621F – G. In that case, in making the indemnity scheme, the Law Society was acting pursuant to statutory powers and thus in its public capacity, and subject to the requirements of public law rather than in its private capacity. Here the President/C-in-C was acting pursuant to statutory powers and it is similarly not necessary to imply a trust of the promise.
37. It is also not clear from the expert evidence before the court as to the Nigerian law claim whether the President/Commander-in-Chief was able to repeal the order unilaterally. If he is, that is itself a factor militating against a trust of any promise, because it would retrospectively remove the equitable rights of the third party (here the claimant). But if he is not able to repeal the instrument, the traditional reluctance in purely private law situations to find that a contractual promise is held on trust for a third party to the contract is in point. The reluctance arises at common law because the consequence of a trust would be that the contracting parties would lose the right to vary the contract by mutual consent: see Re Schebsmann [1944] Ch 83 at 104.
38. I have stated that the nature of the Nigerian law claim is set out in the opinion of former Chief Justice Oguntade. He states that the Fidelity Guarantee (Memorandum/Fourth Directive) and Financial Command Instructions Order No 2279, the other document dated 29 September 1993 (see [5]) are "laws validly made by the Government of Nigeria and … remain valid and enforceable with full effect". His report is undated but was served on 20 December 2011. It is stated on behalf of the defendant (note to paragraph 59 of its skeleton argument) that "for obvious reasons" the defendant does not have expert evidence of its own in response and that, for the purposes of the hearing before me, but for no other purpose, it accepted that, assuming the Fidelity Guarantee (Memorandum/Fourth Directive) is genuine, it is a law which can be enforced by the claimant as a matter of Nigerian law.
39. The claimant relied on two sub-paragraphs of CPR PD 6B. The first is paragraph 3.1(6)(d). It was submitted that the claim is brought in respect of an agreement which, see paragraph 21(i) of the Fidelity Guarantee (Memorandum/Fourth Directive), contains a provision to the effect that the English court shall have jurisdiction to determine the claimant's claim. The second is paragraph 3.1(11). That applies where the whole subject matter of claim relates to property within the jurisdiction.
40. As to paragraph 3.1(6)(d), this gateway concerns "claims in respect of a contract". For the reasons I have given, I do not consider that the claimant has the better of the argument that the Fidelity Guarantee (Memorandum/Fourth Directive) is, contains, or evidences a contract. Accordingly, this gateway does not apply.
41. As to paragraph 3.1(11), since the Fidelity Guarantee (Memorandum/Fourth Directive) includes monies held in bank accounts in Nigeria, the whole subject matter of the claim does not relate to property located within the jurisdiction. Mr Adkin's submission assumes it is permissible to apply the phrase "whole subject matter" to the property subject to directions in the Fidelity Guarantee (Memorandum/Fourth Directive) which is in the jurisdiction. In this case this is the, in round terms, US$6 million paid pursuant to the obligation in the original transaction (see [7]), which is referred to in paragraph (14)(a) of the Fidelity Guarantee. If it is possible to apply the phrase "whole subject matter of the claim" to the claim to that sum, to hear that claim in this jurisdiction would be to contemplate dealing with different parts of the Nigerian law claim in different jurisdictions.
42. At this stage of the analysis, the position of the proceedings in relation to the 1986 Trust claim, shortly to come before the Court of Appeal, is relevant. If the Court of Appeal decides that the gateway requirement has been satisfied in relation to that claim, the defendant has not questioned Supperstone J's finding that England is clearly the appropriate forum for the trial of the dispute. In that case, the claimant's position is that, given proceedings in respect of that claim are already on foot in this jurisdiction and significant time and money have been invested in them by both parties, there is no sense in hiving off the Nigerian law claim. This, Mr Adkin submitted, was a factor to which significant weight should be given because the claimant's evidence is that he cannot travel to Nigeria. He stated that he has been told repeatedly by the Nigerian High Commission in London that he will not be granted a Nigerian passport or a visa enabling him to travel to Nigeria: see his statement dated 25 March 2011. There is force in Mr Adkin's submission, but it does not take account of the fact that, in relation to sub-paragraph 3.1(11), on his own submissions only part of the Nigerian law claim could be heard in London. That concerning the Naira balances in bank accounts in Nigeria could not be. Moreover, if the defendant succeeds in the Court of Appeal and service out of the 1986 trust claim is set aside, this argument falls away.
43. None of the gateways to English jurisdiction in CPR PD 6B paragraph 3.1 expressly permit a putative claimant to pursue a claim in this jurisdiction to enforce a foreign law. For the reasons I have given, the present claim does not fall within paragraph 3.1(6) and I doubt that it falls within paragraph 3.1(11). However, even if it does, I do not consider that England is "clearly or distinctly the most appropriate forum" for the trial of a claim to enforce a Nigerian law, particularly when, even on the claimant's case, parts of the claim cannot be determined in England. For these reasons, permission to serve out of the jurisdiction in respect of the new claims is refused.

Note 1    The defendant adopted a similar position in relation to the documents upon which the 1993 Trust claim and the 2009 agreement claim were made, but Supperstone J’s decision was made on the assumption that the documents were genuine.    [Back]

Note 2    In the claimant’s statement the name of the former Attorney-General is given as Mr Okpamgbo. In Mr Pogoson’s statement and paragraph (8) of the second document (“the Fidelity Guarantee”) it is stated to be Mr Akpamgbo.    [Back]