Jersey Unreported Judgments

Companies - an appeal against the Master's decision on 9^th November, 2017

[2018]JRC081

Royal Court

(Samedi)

2 May 2018

Before     :

Sir William Bailhache., Bailiff, sitting alone.

 

Advocate N. G. A. Pearmain for Mr Kiereini.

Advocate D. S. Steenson for Mr Njonjo.

Advocate J. P. Speck for RBC Trust Company (International) Limited.

judgment

the bailiff:

1.        This judgment concerns an appeal by Jeremiah Kiereini ("Mr Kiereini") and Mr Charles Njonjo ("Mr Njonjo") against the decision of the Master on 9^th November, 2017, (CMC Holdings v Forster and Others [2017] JRC 190) refusing their respective applications to strike out and/or obtain summary judgment on the third party claims against them by RBC Trust Company (International) Limited and the Regent Trust Company Limited ("Third Party Plaintiffs").

The claims

2.        In the original order of justice the plaintiffs assert that they are long established Kenyan companies which import vehicles from overseas vehicle manufacturers and supply them to the East African market.  They claim relief inter alia against the Third Party Plaintiffs in respect of their alleged participation in a secret scheme which operated between 1977 to 2011 as a result of which, it is said, funds properly due to the plaintiffs were diverted at the instruction of certain directors of the plaintiffs in breach of fiduciary duty and in breach of trust.  The claim against the Third Party Plaintiffs is a claim in dishonest assistance, based upon the allegation that they were at all material times fiduciary and corporate services providers in Jersey, and in the alternative upon the basis that they are vicariously liable for the dishonest assistance rendered by their employees and agents in the various breaches of duty alleged against the directors.  The claim is that the scheme received payments in two phases, phase 1 between 1977 through to the late 1990s, and phase 2 from the late 1990s until this scheme ceased in 2007. 

3.        On 17^th January, 2017, the Master permitted the joining of the Third Party Defendants, including Mr Kiereini and Mr Njonjo to the proceedings following the defence and third party claim of the Third Party Plaintiffs.  This was to the effect that if, which is not admitted, the plaintiffs or either of them are entitled to the relief sought against the second and third defendants/Third Party Plaintiffs on the basis that they dishonestly assisted the Core Defaulting Directors in breaches of duty or breaches of trust, the Core Defaulting Directors are the persons primarily liable for such breaches of duty - and Mr Njonjo and Mr Kiereini were defined as being among the Core Defaulting Directors.  In his judgment of 17^th January, 2017 (CMC Holdings Ltd v Forster and Others [2017] JRC 014A), the Master considered the contention of the plaintiffs that the Court did not have any jurisdiction to fashion a remedy or seek a contribution or indemnity from a third party.  By contrast, Advocate Speck on behalf of the Third Party Plaintiffs had contended that they were entitled to convene the Core Defaulting Directors including Mr Kiereini and Mr Njonjo upon the basis that if a dishonest assistance claim was established, it would be unjust to allow the entirety of any loss found to have arisen, which necessarily had to be predicated on a breach of fiduciary duty by one or more of the Core Defaulting Directors, to be borne by the Third Party Plaintiffs as dishonest assisters, if that were found to be the case.  That argument essentially amounted to an extension, on the present case law, of the doctrine of unjust enrichment. 

4.        At paragraph 76 of his judgment of 17^th January, 2017, the Master said this:-

"In my judgment the argument in this case is whether any of the Core Defaulting Directors would be said to be enriched on the assumption they were found to have acted in breach of duty, assuming the second and third defendants are found to have acted dishonestly.  If this were to happen and the consequent judgment was then enforced against the second and third defendants [the Third Party Plaintiffs] the question is whether this means that the Core Defaulting Directors have been enriched at the expense of the second and third defendants.  If they have the next question that arises is whether the Court considers that such enrichment has arisen in circumstances that the law deems to be unjust.  There are no obvious answers to these questions."

5.        The Master then concluded that the relief or remedy based on unjust enrichment was connected to the original subject matter of the action, and it was therefore appropriate to join the Third Party Defendants; and if he was wrong in that respect, he considered that in any event it was arguable that the Court could use its inherent jurisdiction to apportion liability between the Third Party Plaintiffs and the Core Defaulting Directors as third parties on the basis of unjust enrichment. 

Mr Njonjo's application before the Master

6.        In September 2017, the Master issued his decision (CMC & Ors v Forster and Anor [2017] JRC 141) in respect of Mr Njonjo's application to strike out the third party proceedings against him on the basis that the third party proceedings contained no reasonable cause of action.  The primary submission made by Advocate Steenson on behalf of Mr Njonjo to the Master appears to have been that Mr Njonjo, who was said by the plaintiffs to have been a director of the first plaintiff between 1985 and 1987 and from 1990 until 2011 and to have received significant sums of money from the scheme totalling at least £572,000, had in fact received payments only during what is described as phase 2; and as the claim against the Third Party Plaintiffs was in respect of the payments made under phase 1, there could be no unjust enrichment for which Mr Njonjo was required to account in relation to that period.  Advocate Steenson also submitted to the Master that the third party claim was inadequately pleaded because it did not particularise the alleged breaches of duty or breaches of trust committed by Mr Njonjo and did not allocate the alleged breaches of duty or breaches of trust to particular Core Defaulting Directors.  In summary, he contended that the Third Party Plaintiffs had failed to particularise what cause of action they had against him, how that arose, how a loss to the Third Party Plaintiffs followed and how much their claim was for. 

7.        In his decision in relation to Mr Njonjo's claim to strike out, the Master reflected that in his January judgment he had found at paragraph 44 that the Third Party Plaintiffs relied upon the doctrine of unjust enrichment on the basis that, if dishonest assistance were established, it would be unjust to allow the entirety of any loss found to have arisen necessarily predicated on the breach of fiduciary duty by one or more of the Core Defaulting Directors to be borne by the Third Party Plaintiffs as dishonest assisters, if such were found to be the case.  That ground did not limit the claim for indemnity to those directors who had actually received monies during phase 1 of the scheme.  The Master therefore said in his September judgment that the Third Party Plaintiffs' contentions were not limited to requiring the Core Defaulting Directors to account for the benefits they had received.  The case was put on a much broader basis, namely that the Core Defaulting Directors were responsible for the losses because they had acted in breach of duty and so should be held to account.  The Master accordingly held that although the Third Party Plaintiffs are only sought to be made liable for phase 1 of the scheme and Mr Njonjo was only alleged to have benefitted during phase 2 of the scheme, the distinction was unimportant - the Third Party Plaintiffs had always sought to hold the Third Party Defendants to account because those defendants are said to have acted in breach of duty, not simply because they had received benefits. 

8.        Accordingly the Master's conclusion was that it was possible that a remedy in unjust enrichment might be granted.  He considered that the case in unjust enrichment had advanced significantly however and that it would be appropriate for the Third Party Plaintiffs to amend their pleading so that it reflects the submissions made on their behalf in the January judgment, although there was a timing issue as to when that amendment should occur.  In the Master's view, the likely best time for such an amendment would be after the completion of discovery from all parties. 

The application of Mr Kiereini before the Master

9.        Mr Kiereini also sought to strike out or grant summary judgment in respect of the third party claim brought against him by the Third Party Plaintiffs.  The Master gave judgment dismissing that application on 9^th November, 2017.  The application was based upon the contentions that Mr Kiereini had not been a party to the application to convene him, and he was therefore entitled to challenge that decision without having to appeal to the Royal Court; he did not understand the case against him; he disputed the allegations against him and contended they caused significant damage to his reputation in Kenya and that there were practical difficulties in defending the proceedings in view of his age, the distance from Kenya to Jersey and the expense of litigation in Jersey; and that the doctrine of unjust enrichment could not be used to permit someone who was found to have acted dishonestly to recover a contribution from anyone else because the dishonest assister could not invoke a remedy in equity; the doctrine did not allow for an allocation of responsibility between wrong-doers. 

10.      In his judgment, the Master accepted that Mr Kiereini was entitled to apply to strike out and/or seek summary judgment; he considered that the case against him was sufficiently clear for him to understand why he might be required to make a contribution.  He considered that more detail might emerge on discovery as the extent of Mr Kiereini's role, and that might lead to amendments pleading that detail.  He considered Mr Kiereini's affidavit and said that he did not underestimate the difficulties which Mr Kiereini might face in contesting a complex matter in Jersey for the reasons he set out.  However those matters were not relevant to the question of law which the current application required the Master to determine.  The Master then turned to the scope of the law of unjust enrichment and he rejected the submission of Advocate Pearmain that that doctrine should be restricted to claiming an interest in property and/or that the doctrine cannot be used as the basis for ordering an allocation of responsibility between joint wrong-doers.  He summarised in this way:-

"In conclusion, applying the strike out test and applying for that purpose a finding of dishonesty against the second and third defendants at trial, such a finding does not in my judgment mean that the second and third defendants are prevented at this stage from seeking a contribution from either their co-defendant, Mr Forster, or the other directors convened as third parties (including Mr Kiereini).  Likewise, applying the summary judgment test, the arguments advanced by Advocate Speck for the second and third defendants are not fanciful or improbable so as to deny the second and third defendants a full exploration of those legal arguments and the relevant facts at a trial. Whether they will prevail is of course as noted above an entirely different question."

 The appeals

11.      It is clear from the pleadings that there are assertions of fact which might give rise to allegations of criminality involving one or more parties in Kenya during the period between 2000 and 2009 while I was Attorney General.  Such allegations could have given rise to requests for mutual legal assistance.  I informed the parties that I had no knowledge of any anti-money laundering investigations being carried out either then or subsequently, nor if this case was related to the investigation of another Kenyan matter which I mentioned to the parties.  As a result of this communication, Advocate Pearmain and Advocate Steenson applied for an adjournment in order that they might take instructions from their clients.  Advocate Speck opposed it.  He said that the scheme had been in force till 2011 and it came to light, on the Plaintiff's case, in that year when the first defendant ceased employment.  His replacement found details of the scheme in the safe thereafter. It would therefore, he said, be highly unlikely that any request to the Attorney General had been made before 2011.  Advocate Speck added that he had been involved since 2011 and he was not aware of any involvement with the Attorney General here and that we should in the circumstances press ahead. 

12.      I accepted we should do so.  I had and have no knowledge of this case other than what has been shown to me in these proceedings, and that has prompted no recollection of anything being mentioned to me while Attorney General which would be relevant to it.  I had mentioned my former official position out of an abundance of caution, but that position is public knowledge.  Advocates Pearmain and Steens on could, if they so wished, have taken instructions from their clients on the matter in advance.  No objection was taken to my sitting - and in the circumstances I considered that the adjournment to identify whether an objection might be taken was not justified. 

13.      The two appeals were conjoined because both Advocate Pearmain and Advocate Steenson submitted that unjust enrichment was not available as a hook to a dishonest assister in the circumstances advanced in this case.  This was said to be a matter of pure law, regardless of the facts, and was a basis for allowing the appeal.  Advocate Steenson also submitted that the Master was wrong to conclude that the proceedings should continue albeit that some amendment would be needed at a later stage after discovery.  I now consider those various arguments. 

14.      This was an interlocutory decision of the Master and is an interlocutory appeal.  No facts have been found by the Court, but both in the Master's decision and on this appeal, the Court must take the facts alleged against a particular party at their highest and see if those justify a remedy in law.  The Master was therefore right to make the assumption at paragraph 38 of his November judgment that there had been a finding of dishonesty against the Third Party Plaintiffs at trial; but in fairness one should also note that dishonesty on the part of the Third Party Plaintiffs is specifically denied in their pleading, and this therefore will be a matter for trial. 

15.      In their order of justice, the plaintiffs claim against the second and third defendants / Third party Plaintiffs that they are liable in dishonestly assisting the directors of the plaintiffs who diverted funds in breach of fiduciary duty and in breach of trust during the period 1977 to 2011.  One of those directors was the first defendant Mr Martin Forster, but it is clear from the order of justice that allegations against other of the plaintiffs' directors were made - it was asserted that other directors were privy to the scheme into which the secret commissions were paid as a result of the various breaches of fiduciary duty and breaches of trust by those directors.  The claim against the Third Party Plaintiffs is not limited therefore to the secret commissions paid into the scheme by the first defendant.  The plaintiffs assert that Mr Kiereini was a director of the first plaintiff between at least 1985 and March 2011 and a director of the second plaintiff between 1997 and 2010.  He is said to have been a signatory to letters of wishes addressed to the third defendant/second Third Party Plaintiff and also that he received significant sums of money from the scheme whilst in office as a director of the plaintiffs.  Mr Njonjo is said to have been a director of the first plaintiff between 1985 and 1987.  The order of justice describes him as having been a director between 1990 and 2011 of a company called CMCG, which received a number of allegedly secret commissions.  It is alleged that Mr Njonjo too received significant sums of money from the scheme whilst in office as a director of the plaintiffs.  Mr Njonjo and Mr Kiereini are described as two of the five "Core Defaulting Directors".  The order of justice makes it plain that the claims against the second and third defendants/Third Party Plaintiffs are only in respect of phase 1 because it is not asserted that any services were provided by them during phase 2, which commenced in or around 1996.  The plaintiffs' position is therefore that Mr Kiereini and Mr Njonjo were only involved in phase 2, and not only were they not named as defendants to the plaintiffs' order of justice, there are no allegations in that order of justice made against them in respect of phase 1.  Indeed, although numbers of people are named as having received benefit from the scheme during phase 1, no such allegations are made against Mr Kiereini and Mr Njonjo in respect of that period. 

16.      Confusingly, although phase 1 has been described as the period between 1977 and 1996, paragraph 124 of the order of justice asserts that between 1977 and 1999, the first defendant and Mr Benzimra procured the payment of commissions totalling £5,211,505 to various entities as part of the scheme; and, although no claim in relation to phase 2 is made against the Third Party Plaintiffs, paragraph 124(2) of the order of justice also indicates that between 1977 and 2011 (ie phases 1 and 2) the Third Party Plaintiffs, in accounting for, receiving, holding, investing and paying out the proceeds of the commissions received by a number of entities enabled the Core Defaulting Directors to generate secret profits.  At paragraph 124(4) of the order of justice, the claim is made that the Core Defaulting Directors, between 1977 and 2011, were on notice that various receipts of monies were irregular, that they failed to make proper enquiry as to the provenance of the funds, and they kept the sums paid to them; and furthermore at paragraph 124(5) that they failed to take steps to protect the Plaintiffs' interests in relation to the scheme by returning any sums received by them and/or by satisfying themselves that the Plaintiffs were fully aware of the circumstances of the payments.  It is said that the Core Defaulting Directors were between 1977 and 2010 in breach of duty and breach of trust by deliberately withholding information from the Plaintiffs about the scheme and payments made thereunder.

17.      At paragraph 135 of the order of justice, the plaintiffs assert that Mr Kiereini with others including Mr Njonjo was responsible for procuring the payment of secret commissions between 1996 and 2007. 

18.      Thus it is that the plaintiffs claim against the first defendant the sums paid in secret commissions into the scheme during phase 1, and a sum of £3,266,686 in respect of phase 2, albeit that no precise particulars of loss will be capable of being provided until an account has been provided.  The prayer against the second and third defendants/Third Party Plaintiffs perhaps surprisingly seeks a declaration that one or more of the Core Defaulting Directors breached their fiduciary duties to the plaintiffs or otherwise committed a breach of trust by their participation in, control of and/or profit from the scheme. This does not seem to be confined to phase 1 and is surprising because although the plaintiffs were the Core Defaulting Directors, they bring claims only against one, the first defendant.  The prayer also seeks a declaration that the Third Party Plaintiffs are jointly and severally liable to account as constructive trustees for the sum of £5,211,505 on the ground of their dishonest assistance in the Core Defaulting Directors' breaches of fiduciary duty/breaches of trust. 

19.      The pleading of the Third Party Plaintiffs, which denied liability, asserts that if there were to be such liability, the Core Defaulting Directors are the persons primarily liable for the breaches of duty; that they are the persons liable to account for any sums actually received by them pursuant to the alleged scheme; and that therefore the Third Party Plaintiffs can jointly and severally claim an indemnity from each of the Core Defaulting Directors, or alternatively a contribution to be assessed by the Court.  

20.      In fairness to Mr Kiereini, it is right also to record that he has sworn an affidavit in which he indicates that he realises the outcome of his application to strike out and seek summary judgment will turn purely on points of law and that his evidence is not necessary at this stage - but nonetheless he indicates that although there was a scheme, it was in no sense a secret scheme and was certainly not a mechanism for receiving bribes.  He says the scheme was established by the holding company, CMC, as a way of paying its senior staff their lawful remuneration. He asserts that CMC was aware of the scheme and all the payments that he and his fellow directors received in accordance with the scheme were part of his and their legitimate remuneration for services rendered.  All that of course will be a matter for trial.  For the purposes of the present application, I have to assume not only that the scheme existed, but also that it was secret and that the facts asserted by the plaintiffs are true and accurate, and that the Third Party Plaintiffs have been found liable in knowing assistance or other breach of duty.  The question, assuming all those things, is whether at law a claim lies against Mr Kiereini and Mr Njonjo for a contribution or indemnity. 

Discussion

21.      The main argument before me whether unjust enrichment was available as a hook to a dishonest assister, although passing reference was made by Advocate Pearmain to the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960, ("the 1960 Law"), that legislation providing a basis for a joint tortfeasor obtaining an indemnity or a contribution from another joint tortfeasor.  His submission in that context was that if it were to be the case that his client was primarily liable in breach of duty, it would nonetheless be true that he was not a dishonest assister, and it followed that as the 1960 Law requires that there should be joint liability to a third party, there is no possibility of using that legislation for indemnities or contributions as between parties which might both have had a liability, albeit on a separate basis.  Whether the 1960 Law does or does not apply is a question of law, and therefore does not need to be pleaded expressly, although it is open to the Court at the instance of a party or of its own motion to require a party to file more detail as to the nature of its case.  Nearer the trial, one would expect the Court to give directions for the filing of skeleton arguments, and of course one would expect the analysis of the applicability, if any, of that legislation to be tackled in such a document.  For present purposes, it seems to me that it is not obvious that the 1960 Law does not apply.  I see the argument, but to adjudicate upon it will, so it seems to me, require that the Court has knowledge of the basis upon which the liability of Mr Keireni might have been established.  There is also at least an argument capable of being run that what is essential is that the damage sustained by the plaintiffs be the same, whether the liability of the joint tortfeasors be established on the same basis or not - see for example the expression in parentheses in Article 5(1)(b) "(whether as joint tortfeasors or otherwise)" repeated in the material provisions of sub-paragraph (1)(c) of the same Article. 

22.      Although this question is lightly touched upon in the skeleton arguments and was only briefly mentioned by Advocate Pearmain in his submissions, I consider that it would be wrong to strike out the third party claim on this basis alone.  It is matter for argument at trial, if it arises, when the facts which establish the liability, if they do, are known.  At present, the order of justice and the answer and third party claim contain a number of pleaded facts, but the outcome under the 1960 Law might depend on which of those are established by the evidence. 

23.      The summons before the Master issued by Mr Njonjo was to strike out the third party proceedings against him on the basis that the third party proceedings contained no reasonable cause of action.  It is said specifically that there is no adequate particularisation of the elements of the claim, merely a repetition of paragraphs 1 - 85 of the Third Party Plaintiffs' answer, followed by paragraphs 89 - 93 which indicate that if, which is denied, there is any liability to the plaintiffs, the Core Defaulting Directors are the persons primarily liable for the relevant breaches of duty. Advocate Steenson, for Mr Njonjo said his principal submission was that his client should not have to defend a claim not brought against him by the plaintiffs, a claim which is not in any event sufficiently particularised.  He also submitted that if it is correct, which was denied, that his client did something wrong in breach of duty for which he is personally responsible, then others were in exactly the same position and should have been but have not been joined as third parties.  The submission was that an arbitrary selection of his client as a third party meant that the third party claim should be struck out.  I do not find that convincing, any more than such a ground might have been available to the first or second defendants in asserting the claim against them should be struck out because it could also have been brought against other defendants.  If a person is liable to another in respect of particular damage, it does not follow that he is solely liable, hence the 1960 Law. 

24.      Advocate Steenson went on to submit that the nature of the third party claim is unclear.  On the basis of paragraphs 1 - 85 of the answer, which contain an amalgam of admissions, non-admissions, denials and overalls, the Third Party Plaintiffs claim a contribution and/or indemnity from Mr Njonjo and he asserts he does not know what the nature of the case is. 

25.      I have reviewed the order of justice and the answer and third party claim carefully to assess the extent to which there is merit in this submission.  I recognise, as did the Master, that there is likely to be an application for leave to amend both the order of justice and the answer and third party claim, including the further and better particulars, at a later stage in these proceedings, once discovery has been complete.  For the time being, in my judgment the order of justice and answer and third party claim are sufficiently clear that both Mr Njonjo and Mr Kiereini know the nature of the case they have to meet.  Advocate Speck submitted in response that his clients cannot be expected to know the internal workings of the plaintiffs and so particularisation at this stage would be difficult if not impossible.  He pointed out that the very parties who now say they do not know what is alleged are the people who do know the internal workings of the plaintiffs at the relevant time, and they are those complaining that there is no particularisation.  I accept that analysis, and I therefore find against Advocate Steenson on the submission he makes that the Court should not adopt an expedient approach but apply the strict rules of pleading.  In my judgment it is clear enough, for the purposes of pleading and for the purposes of obtaining discovery, what the relevant claims are, and I reject this ground of appeal. 

26.      I now turn to the main question of unjust enrichment, which both Advocates Pearmain and Steenson have criticised as incapable of application in this case.  In this context I note that the application brought by Mr Kiereini before the Master was not just an application for striking out but included an application for summary judgment on the third party claim.  The essence of the submissions made is that unjust enrichment ought not to be available in principle because the Court should not come to the aid of a dishonest assister.  In his submission, this was not a case where the Third Party Plaintiffs had 'slightly dirty hands' - they are professional trustees, and if they are established to have acted dishonestly, there is an important policy issue to be raised as to whether the Court should come to their assistance. 

27.      It appears to me that there are various claims by the plaintiffs for breach of duty, and other claims, not articulated as a matter of law although the facts might support the claim in law, that there was an unlawful means conspiracy by a number of parties including Mr Njonjo and Mr Kiereini.  Whether such a conspiracy could be established on the facts will of course depend upon the evidence at trial; and similarly that will raise questions as to whether a contribution might be obtained from Mr Kiereini and Mr Njonjo under the 1960 Law.  Advocate Speck rightly said that he would need to review the position on discovery to see whether such a claim might specifically be put in an amended pleading.  I note that I asked Advocate Permain, assuming this was so, whether the matter should not therefore be put back for resolution at trial when all the facts were known.  The response was that such a position was 'arguable', but he did not advance any reasons why it should not be dealt with in that way.  In my judgment, the response that it was 'arguable' is a conclusive reason why the present appeal should not succeed.  If it depends upon the facts, and is arguable, then it is a matter for trial. 

28.      In deference to the arguments which have been advanced before me and below about the law on unjust enrichment, I think it would be right to say this.  The remedy which the doctrine of unjust enrichment provides is very firmly a remedy in equity.  The clue lies in the word 'unjust'.  One can well see that there may be scope for argument as to whether a party who seeks an equitable remedy should be denied it upon the basis that that party has itself acted dishonestly, or using the equitable expression, has come to court without clean hands.  As the Master recognised however, the rationale which Pothier identified for permitting a debtor who has paid the entire debt to recover a contribution from his co-debtors, was based upon the injustice of allowing a co-debtor to profit at the expense of the judgment debtor who has discharged the debt.  The nature of being a judgment debtor presupposes some form of wrongdoing - either contractual or delictual.  In the latter case, the Court will no doubt be measuring the extent of wrongdoing by the different parties, having heard all the facts.  If the point is a narrow one that it is impossible for a party who has been found to be liable for dishonest assistance then to seek a contribution from others who would also be liable, then in my judgment that should be rejected.  There are shades of wrongdoing in many cases, and I see no reason in principle why the Court should not find in this particular case that some defendants or third party defendants might have different degrees of responsibility for the wrongdoing which has taken place. 

29.      Furthermore, if the facts are as alleged by the plaintiffs, a number of individuals or entities have been unjustly enriched at the expense of the plaintiffs or have otherwise caused actionable damage to them.  The fact that the second and third defendants/Third Party Plaintiffs may have liability for such damage does not mean they should in equity carry that liability alone and I do not rule out the possibility of the Court ultimately reaching a conclusion, depending on the facts which are established, that to leave them solely liable would be to cause Mr Keireni and Mr Njonjo, possibly among others, to be unjustly enriched at the expense of those defendants/third party plaintiffs.  This is not fanciful but a reflection of where, depending on the facts, the equity might lie. 

30.      For these reasons, I consider that the assessment of unjust enrichment is a matter for trial, once the Court has heard the evidence, and made determinations of fact which will enable it to measure where the equity lies. 

31.      Accordingly, the appeals of Mr Njonjo and Mr Kiereini are dismissed. 

Authorities

CMC Holdings v Forster and Others [2017] JRC 190. 

CMC Holdings Ltd v Forster and Others [2017] JRC 014A. 

CMC & Ors v Forster and Anor [2017] JRC 141. 

Law Reform (Miscellaneous Provisions) (Jersey) Law 1960. 

Pothier Traite des Obligations (1821 Edition)