Zoya Ltd v Ahmed (t/a Property Mart)

In this action the Claimant, Zoya Limited (“Zoya”) seeks an account of what is due from the Defendant, Sheikh Nasir Ahmed (“Mr Ahmed”), in respect of rents collected by him on a number of properties at 157 and 159-161 Earlham Grove, Forest Gate, London E7 9AP (“the Properties”) between March 2010 and the date of issue of these proceedings on 16 September 2014. Zoya also seeks payment of the amounts found to be due on the taking of such account.

Zoya was incorporated on 1 July 1982 under the provisions of the Liberian Business Corporation Act. It is the registered owner of the freehold interest in the Properties. Mr Ahmed carries on business as an estate and lettings agent, trading as Property Mart.

The proceedings were issue by Alpha Rocks Solicitors on the instructions of Prince John Adewale Haastrup (“John Haastrup”) who has described himself in witness statements variously as the President of Zoya, the sole director of Zoya and the sole shareholder of Zoya. His status as such has been put in issue by Mr Ahmed, who has sought to put Zoya to strict proof of the validity of John Haastrup’s purported appointment as its sole director and his authority to act or bring proceedings on its behalf.

John Haastrup claims to be the son and eldest child of the late Dr Captain Israel Ademola Haastrup (“Captain Haastrup”), an eminent Nigerian merchant navy officer and businessman who died in 2012, and whom John Haastrup has described as the founder of Zoya. There is evidence that the question of John Haastrup’s paternity is in issue in other proceedings, although I understand that this evidence is itself disputed by John Haastrup.

It is common ground that for a period of time Captain Haastrup was married to Gloria Ngozi Haastrup (“Gloria Llaastrup”), who was not John Haastrup’s mother. The question of whether, and if so when, she was divorced from Captain Haastrup is also contentious as between members of the Haastrup family, as is the question of whether or not she and Captain Haastrup were reconciled at some stage prior to his death. Disputes between John Haastrup and Gloria Haastrup in relation to Captain Haastrup’s estate are at the root of the issues that have arisen in these proceedings.

On 10 August 2015, Master Matthews made an order that “the issues of whether John Adewale Haastrup is legally entitled to the shares in the Claimant and whether he has validly been appointed, as director of the Claimant be tried as preliminary issues”. The only case, which Zoya advances, is that John Haastrup has been the sole shareholder and director of Zoya since the transfer to him of the subscriber shares shortly after incorporation in 1982. This judgment is concerned with the trial of those issues.

There is no documentary evidence dating from the period prior to Captain Haastrup’s death, which indicates that John Haastrup had anything to do with Zoya. All of the documentary evidence demonstrates that, prior to his death, the only member of the Haastrup family who acted as an officer of, or with the authority of, Zoya was Captain Haastrup. John Haastrup says that the reason for this is that such documentation as existed disappeared from 157 Earlham Grove when Gloria Haastrup forcibly took over the premises after Captain Haastrup had started divorce proceedings against her in 2007, an issue to which I will return later in this judgment.

Although Zoya’s only case was that John Haastrup became its sole shareholder and director shortly after incorporation, the complete absence of any contemporaneous documentation in support of that case means that it is important to have regard to what occurred thereafter. In particular it is necessary to look at the relationship between Mr Ahmed and Captain Haastrup, the circumstances in which John Haastrup met Mr Ahmed after Captain Haastrup’s death and the nature of the various assertions that John Haastrup has made as to his interest (and the interest of Zoya) in the Properties.

The parties adduced expert evidence from Liberian lawyers. The order giving them permission to do so provided for the evidence to be “in the field of Liberian law relating to Liberian Nonresident Domestic Corporations to address issues relating to the preliminary issues”. Reports were submitted on behalf of Zoya from Counsellor Frank Musah Dean and on behalf of Mr Ahmed from Dr Laurence Konmla Bropleh.

Although there were a number of respects in which each report lacked precision and focus, neither party contended that the other’s expert lacked the necessary expertise. Mr Biggs, who appeared for Zoya, did however submit that Counsellor Dean was better qualified than Dr Bropleh because his firm appeared on the British Embassy’s list of Liberian lawyers. Neither expert was cross-examined at trial, but they did submit a short joint statement describing the issues on which they were in agreement.

Each of the experts adopted a rather different approach to the issues on which their evidence was sought, and this divergence was one of the reasons why it was of limited value. However, there were two areas on which it enabled me to reach some conclusions. The first related to the nature of certain presumptions under Liberian law and the second related to the question of how it is that Liberian law identifies the shareholders and director of a Liberian company, including in particular such registration requirements as exist. There is also one aspect of Counsellor Dean’s evidence, which is, strictly speaking, evidence of fact not expert opinion, but which is material to the issues I have to decide.

The only witnesses who gave oral evidence at the trial were two witnesses of fact, John Haastrup and Mr Ahmed. Evidence was also adduced in the form of a witness statement from Gloria Haastrup. She was not called to give oral evidence, but her statement was admitted pursuant to a hearsay notice, time for the service of which was extended at the beginning of the trial. In assessing the weight and value of her evidence I have taken into account the fact that it was not tested by cross-examination and Mr Burton, who appeared for Mr Ahmed, accepted that for this reason it was of limited value.

Mr Ahmed accepted in cross-examination that Gloria Haastrup was paying for him to defend this litigation, and had supplied him with documentation, which was inconsistent with Zoya’s case that John Haastrup was its sole director and shareholder. This formed the basis for a submission that Mr Ahmed was being unduly partial to Gloria Haastrup in his evidence. I do not consider that this was the case. The principal relevance of what he had to say was that he never met John Haastrup before Captain Haastrup’s death and that his only dealings in relation to the Properties were with Captain Haastrup and Gloria Haastrup. This was not seriously challenged by Zoya. I am satisfied that Mr Ahmed did his best to assist the court with his understanding of the relationship between Zoya and members of the Haastrup family.

I found John Haastrup to be a much less satisfactory witness. There was more than one occasion on which he sought to embellish his evidence with a description of events that was not foreshadowed in any way in his witness statement. When this occurred the explanations, which he gave for his earlier failure to be full in his evidence lacked credibility. There were also numerous occasions on which, despite Mr Burton’s efforts, his evidence simply did not address the questions he was asked and on which I was left with the impression that he was not doing his best to assist the court.

I was also left with the impression that he was giving his evidence with a barely concealed sense of outrage that Mr Ahmed, whom he regarded as an outsider, had the temerity to challenge his control of Zoya and his entitlement to litigate in its name. As will appear, in the absence of some form of corroboration, I have not been able to accept the accuracy of much of his evidence.

Mr Ahmed was first engaged by Captain Haastrup in 1996 to administer and collect rent in respect of the Properties, at which stage he identified that the Properties were registered in the name of Zoya. The Land Registry entries showed that registration had occurred either in May 1983 (in the case of 159 and 161 Earlham Grove) or January 1993 (in the case of 157 Earlham Grove). At the time of Mr Ahmed’s engagement, he says that Captain Haastrup informed him that he was the sole director of Zoya and that he owned 100% of its shares.

Mr Ahmed and Captain Haastrup then entered into a management agreement dated 30 August 1996 (“the 1996 Agreement”), under which Mr Ahmed acted as managing agent for the Properties. The parties to the 1996 Agreement were Mr Ahmed and Captain Haastrup. Shortly thereafter, in December 1996, Captain Haastrup executed a power of attorney in favour of Mr Ahmed for the purpose of granting assured shorthold tenancies in respect of the Properties and swearing affidavits and proofs of debt. For a period of almost 14 years thereafter (until June 2010), Mr Ahmed acted under the terms of the 1996 Agreement, and, amongst other things, paid the rental monies into an account in the name of Zoya.

The fact that the 1996 Agreement was not in the name of Zoya as registered owner of the Properties is consistent with Mr Ahmed’s oral evidence that Captain Haastrup’s attitude and approach was fairly informal. Indeed, although Mr Ahmed accepted that, in circumstances in which the properties were registered in Zoya’s name and the rental payments were sent to its account, it was an error of judgment by him not to ensure that Zoya was included as a party to the 1996 Agreement, the fact that Captain Haastrup did not ensure that it was so included is also consistent with Captain Haastrup drawing no distinction between himself and Zoya.

Mr Ahmed says that the arrangements continued under the 1996 Agreement for quite a few years. He said that Captain Haastrup had a hands-on approach to his businesses. He said that, although Captain Haastrup travelled a lot, he and Captain Haastrup were in regular contact with each other, and he thought that Captain Haastrup came to his office every time he was in London.

This continued to be the course of events until in or about June 2010, when Mr Ahmed met Captain Haastrup at 157 Earlham Grove. Captain Haastrup instructed him to stop paying the rental income into Zoya’s account, and instead to make payment into the account of Gloria Haastrup. This may in fact have been a little earlier because there is some evidence that rentals started to be paid into the new account in March. The instruction was then confirmed by a letter dated 16 June 2010, signed by Captain Haastrup on Zoya headed paper, giving two addresses: a registered office at the Guernsey offices of Dixcart Trust Corporation Limited (“Dixcart”), a trust company, and a London address at 15 Langthorne Road, Leytonstone, London Ell, which was Captain Haastrup’s English home address.

Shortly thereafter, the 1996 Agreement was replaced by an agreement dated 22 July 2010 (“the 2010 Agreement”), expressed on its face to be between four persons identified as Landlords (Captain Haastrup, Gloria Haastrup, Zoya and another company called Universal Trading and Shipping Limited (“Universal”)) and, on the other hand, Mr Ahmed as Agent. The only Landlord signatories to the 2010 Agreement were Captain Haastrup and Gloria Haastrup. There is no reference to Zoya or Universal on the signatory page, but Mr Ahmed says that he believed that Captain Haastrup also signed as the sole director of both companies, while Gloria Haastrup signed as their secretary. Thereafter Mr Ahmed regarded Captain Haastrup, Gloria Haastrup, Zoya and Universal as his joint principals.

John Haastrup disputes that the 2010 Agreement is genuine, and contends that, at the time it was purportedly entered into, Captain Haastrup was suffering from dementia (and had been since June 2009). He contends that Zoya did not sign the 2010 Agreement, nor did it authorise anybody to execute the 2010 Agreement on its behalf. Mr Ahmed does not accept that this is the case. He agreed that Captain Haastrup, who was in his mid-70s at the time looked his age, and that he did not seem to be as mentally quick as he had been. He noticed some deterioration “due to age”, but that was it. I was not asked to reach a conclusion on whether or not Captain Haastrup had capacity at the time of the 2010 Agreement, nor did I have the evidence to do so, but the existence of this dispute is material background to the issues that I am required to decide.

On 27 January 2012, Mr Ahmed was telephoned by Captain Haastrup and Gloria Haastrup with an instruction to stop making payments into the account in the name of Gloria Haastrup, and to make all future payments into another account in the joint names of Captain Haastrup and Gloria Haastrup (although some of the papers indicate that it was in fact an account in the sole name of Captain Haastrup). Mr Ahmed complied with that instruction from February 2012. Captain Haastrup died on 8 October 2012. Mr Ahmed continued to pay the rental monies into the same account for a period after Captain Haastrup’s death.

Most of the detail is not relevant to the issues I have to decide, but, since Captain Haastrup’s death, there has been a great deal of litigation between members of the Haastrup family in relation to the ownership and control of his assets, and the administration of his estate. The principal protagonists seem to have been John Haastrup and Gloria Haastrup, but other members of the family have also been involved. Proceedings have taken place in England and Nigeria, and relate both to the control of various companies previously controlled by Captain Haastrup, the validity of his will and a dispute as to the repatriation of his body.

Mr Ahmed says that, during the course of his relationship with Captain Haastrup, he got to know in varying degrees a number of other members of the Haastrup family, including one of Captain Haastrup’s sons (Ademola Adetokumbo Haastrup) and one of his daughters (Elizabeth Adebukola Haastrup), each of whom had been granted a long lease of a flat in the Properties, as well as Gloria Haastrup. However, Mr Ahmed said that he did not meet John Haastrup at any time before Captain Haastrup’s death, and that the first time they met was in July 2013 when John Haastrup came to Mr Ahmed’s office and demanded an account and payment of the rental income from the Properties.

As I understood his evidence, John Haastrup denied that he and Mr Ahmed had not met before July 2013, saying that they had met in the 1990s, but I did not understand him to contend that he had played any role in giving instructions to Mr Ahmed prior to Captain Haastrup’s death. He also accepted that, when they met in July 2013, he did not represent himself to be a director of Zoya or otherwise authorised to act on its behalf. The demands were made in what he asserted to be his capacity as Captain Haastrup’s son and the prospective legal representative of Captain Haastrup’s estate. When he was pressed in cross-examination as to why he did not mention at that stage that the reason he asserted an entitlement to an account from Mr Ahmed was because he was Zoya’s sole director, he simply said that he was juggling a lot of things.

I do not accept this evidence. The explanation and the way that he conveyed it was unconvincing, and in my judgment it is incredible to suggest that, if John Haastrup had really thought that he was a lawfully appointed director of Zoya, he would not have mentioned it to Mr Ahmed at this meeting. He very well knew that Captain Haastrup had been the person with whom Mr Ahmed had been dealing prior to his death, and I am satisfied that it would have been obvious to him that Mr Ahmed would have needed to know the proper basis of John Haastrup’s asserted authority to deal with the income from the Properties once Captain Haastrup had died. Furthermore, it is clear to me, both from the steps taken in Nigeria and the instructions that John Haastrup gave to his solicitors (both of which I describe below), that he thought that obtaining control of Captain Haastrup’s estate would be sufficient to enable him to gain control of the Properties. This was flatly inconsistent with the case, which he now advances, i.e. (a) that he already had control through his directorship of Zoya, and (b) that Captain Haastrup had never been either a director or shareholder of Zoya.

There is an issue as to whether John Haastrup demanded that the rentals be paid to him or whether he simply insisted that an account be rendered to Zoya. I do not think that very much turns on this distinction for present purposes. It is clear from the Alpha Rocks letter of 22 July (referred to below) that the substance of the demand had been that Mr Ahmed should stop paying the rentals into the account to which they were then being paid and should pay them to Alpha Rocks’ client account pending the grant of letters of administration.

Shortly thereafter, Mr Ahmed received a letter dated 22 July 2013 from Alpha Rocks reiterating the demand and seeking an account of Mr Ahmed’s dealings with the Properties. In this letter Alpha Rocks held themselves out as instructed by “the children of Late Captain Israel Ademola Haastrup led by his eldest child, Prince John Adewale Haastrup in relation to the Estate of their Father”. The letter represented that it enclosed written authority from the children by whom Alpha Rocks were instructed, although the authority was not in evidence, and the letter itself does not disclose the names of those other children. The justification for the demand, and the entitlement to an account, was that Alpha Rocks were currently in the process of obtaining letters of administration in Nigeria “on behalf of our clients”. It does not purport to be written on the instructions of Zoya, nor is Zoya mentioned at all.

This initial letter was followed up by further correspondence in August 2013 during the course of which Alpha Rocks continued to assert that their clients were entitled to the rental income from the Properties in their capacity as Captain Haastrup’s children. There was also further debate about Alpha Rocks’ contention that Captain Haastrup and Gloria Haastrup had been divorced for a time prior to Captain Haastrup’s death. Mr Ahmed’s position was that he required documentary evidence of both the grant of letters of administration and the divorce before he took any steps (such as accounting to Alpha Rocks) that were different from those, which he had for some time been taking under the terms of the 2010 Agreement.

During this period there was English High Court litigation in relation to the repatriation of Captain Haastrup’s body, and John Haastrup also instigated the commencement of further proceedings in the County Court at Bow in the name of another Haastrup company seeking repossession of premises in Grays, Essex. However the focus of much of the activity seems to have shifted to Nigeria where proceedings were commenced in the High Court of Justice for the Federal Capital Territory in Abuja for the administration of Captain Haastrup’s estate.

The Nigerian proceedings led to the grant of letters of administration to John Haastrup on 20 January 2014. On 20 June 2014, the letters of administration granted by the Nigerian court were resealed in the Leeds District Probate Registry, and Alpha Rocks started the process of seeking to collect in the English assets belonging to Captain Haastrup’s estate.

However, before the Nigerian letters of administration had been resealed in the Leeds District Probate Registry, E A Haastrup and Gloria Haastrup commenced further proceedings in Nigeria challenging the grant that had been made to John Haastrup. On 3 July 2014, Justice O O Goodluck sitting in the High Court of the Federal Capital Territory, Abuja Judicial Division, made an order restraining John Haastrup from “parading himself in any manner as the Administrator or holder of the Letters of Administration of the Estate of the late Captain Israel Ademola Haastrup within or outside Nigeria.” On 10 July 2014, this order was continued over trial of the Nigerian administration proceedings, which are still extant. I understand that an appeal against the Nigerian court’s subsequent refusal to set aside that order is pending.

In the light of the developments in Nigeria, the Leeds District Registry has now cancelled the resealing of the English grant. As I understand it, this occurred in February 2015, after a period between July 2014 and February 2015 when the resealed grant had been recalled pending investigation. The effect of all of these proceedings is that John Haastrup is no longer able to act as a legal personal representative of Captain Haastrup’s estate (whether in England or in Nigeria), nor is he able in that capacity to gain control of its assets.

On 21 July 2014, which was some 10 days after the Nigerian injunction was continued over trial, Alpha Rocks wrote to Mr Ahmed, again demanding an account of all monies received during the time that he had acted as agent for the Properties, and payment. This time, however, they stated that they acted on behalf of Zoya rather than Captain Haastrup’s children. John Haastrup had signed the letter of authority they enclosed on behalf of Zoya. In the light of what Mr Ahmed said in his letter of 25 July (referred to below), it looks as if Alpha Rocks also enclosed a copy of a document entitled Certificate of Election and Incumbency of Directors and Officers (“the Certificate”).

The Certificate is an important part of the case advanced by Zoya, and a copy of it is the only document, which supports John Haastrup’s case on the trial of these issues. Although Mr Ahmed indicated in his oral evidence that he thought that the Certificate might be a forgery, I accept Mr Biggs’ submission that there is insufficient evidence to substantiate such an allegation. It is however surprising that all of the copies adduced in evidence are of poor quality and only just legible. It appears to have been executed under the seal of The LISCR Trust Company (“LISCR”) on 2 October 2013 as the duly appointed registered agent of Zoya, and records that John Haastrup is “the duly elected qualified and acting directors of the Corporation as of the 20^th day of September 2013” and that John Haastrup (as President) and Patrick Obeng (as Secretary) are “the duly elected qualified and acting Officers of the Corporation as of the 20^th day of September 2013”. I shall revert to it in more detail later in this judgment.

Mr Ahmed was aware of the dispute in relation to Captain Haastrup’s estate. In those circumstances, and because Mr Ahmed had never had any dealings with John Haastrup in relation to the Properties, and because Alpha Rocks had previously written seeking an account and payment on behalf of the children rather than Zoya, it is not at all surprising that he was suspicious as to how John Haastrup had become an officer of Zoya authorised to act on its behalf. On 25 July, Mr Ahmed wrote back to Alpha Rocks asking for certified copies of appropriate documentation, including in particular Zoya’s memorandum and Articles of Association and minutes of any meetings at which John Haastrup was elected as the President of Zoya and Patrick Obeng was elected Secretary on 20 September 2013. This seems to have been a reference to information referred to on the face of the Certificate. He also asked for evidence of John Haastrup’s address and the grant of letters of administration of Captain Haastrup’s estate.

In response to this request, and by their letter of 25 July 2014, Alpha Rocks refused to provide any evidence about John Haastrup’s address or the letters of administration or grant of probate, on the grounds that the requests were irrelevant. They did, however, enclose certified copies of Zoya’s Certificate of Incorporation and Articles of Incorporation, which copies had been issued on 17 September 2013, and which disclosed that the original articles were made and filed by the original subscriber on 30 June 1982, and that Zoya was duly incorporated on 1 July 1982.

Alpha Rocks did not send Mr Ahmed copies of any minutes of meetings at which John Haastrup or Patrick Obeng were elected, but from the face of their letter it looks as if they enclosed another copy of the Certificate. They did not mention that the reason that no further documentation existed was that their client believed that it had been removed from Zoya’ premises by Gloria Haastrup back in 2007. It is plain from the correspondence that the only material which they were instructed to send Mr Ahmed in order to satisfy his request for evidence substantiating John Haastrup’s claim to be authorised to act on behalf of Zoya, was a copy of the Certificate (the Certificate of Incorporation and Articles of Incorporation made no reference to John Haastrup).

On 9 September 2014, proceedings against Mr Ahmed were commenced in the name of Zoya in the Bow County Court. The Particulars of Claim sought the taking of an account and payment. They pleaded that “The sole director of the Claimant company is and has at all material times being [sic] John Adewale Haastrup”, The statement of truth was signed on behalf of Zoya by John Haastrup describing himself as President / Director. In a witness statement made in support of an application for an interim injunction, John Haastrup described Captain Haastrup as his father and the founder of Zoya, but that “from the inception of ’ Zoya he was appointed as director although his father continued to run the business. John Haastrup also said in that witness statement that he was currently dealing with his father’s estate (this despite the restraining orders that had by then been made in the Nigerian proceedings), and that “I now effectively run the company”.

Mr Ahmed was never served with the application for the grant of an interim injunction by the Bow County Court and that application was dismissed on 16 September 2014. On the same day, these proceedings were issued in the Chancery Division. The Particulars of Claim sought the same relief as was sought in the Bow County Court, and for the most part they are identical in form. The only material difference is that the Particulars of Claim in these proceedings do not include the allegation made in the Bow County Court proceedings that “The sole director of the Claimant company is and has at all material times being [sic] John Adewale Haastrup”.

Shortly after the issue of these proceedings, but before the service by Mr Ahmed of a Defence, Mr Ahmed received a letter from Irwin Mitchell, solicitors acting for Gloria Haastrup. From this letter it appeared that there were significant disputes continuing in relation to Captain Haastrup’s estate, including in particular the appointment of personal representatives in Nigeria and the grant of probate in England and Wales based on the original Nigerian grant (which had by now been recalled). It was also clear from this letter that Gloria Haastrup disputed that John Haastrup was a shareholder or director of Zoya prior to Captain Haastrup’s death and disputed that he had any authority to embark on litigation on behalf of Zoya. She contended that the shares in Zoya formed part of Captain Haastrup’s estate and should be dealt with accordingly.

Mr Ahmed was concerned that he was now faced with conflicting claims as to where the rental income from the Properties ought to be paid, and that he was at risk of not obtaining a good discharge of his obligations under the July 2010 Agreement. In my judgment this concern was justified. Accordingly, his response, sent on 6 October, was to confirm that, in the light of the disputes between John Haastrup and Gloria Haastrup in relation to Captain Haastrup’s estate, he proposed to hold onto funds collected on behalf of Zoya pending the outcome of the dispute by consent or court order. The rental income collected by Mr Ahmed in respect of the periods since September 2014 has been paid into court in accordance with an order made by Deputy Master Mark on 7 January 2015.

I have seen correspondence which indicates that John Haastrap then instructed Alpha Rocks and a new agent (Focus Properties (“Focus”)) to terminate Mr Ahmed’s services under the July management agreement and to attempt to procure at least some of the existing tenants of the Properties to pay their rent to Focus rather than Mr Ahmed. I do not know the extent to which those attempt have been successful, but there are some indications that they failed and, as I have already mentioned, the monies which have been collected by Mr Ahmed since the commencement of these proceedings have now been paid by him into court.

In these circumstances, Mr Ahmed’s Defence, which was settled on 13 October 2014, sought to put Zoya to proof on the validity of John Haastrup’s appointment and his authority to act or bring proceedings on behalf of Zoya, both of which were said to be facts that were open to considerable doubt. He also pleaded a positive case that he had considerable concerns as to the validity of John Haastrup’s appointment as sole director of Zoya and authority to act on its behalf, and gave detailed particulars of that plea. Other defences are pleaded to the effect that Mr Ahmed has joint principals under the July 2010 Agreement, that he is not obliged to account to a sole principal without the consent of all of them, and that he has already accounted for all monies received in accordance with the instructions given by his principals.

As I have already mentioned, John Haastrup challenges the validity of the July 2010 Agreement. Although there is no pleaded case that properly articulates the basis of the challenge (whether in a Reply or otherwise), I understood it to be John Haastrup’s case that the challenge is made on the basis of Captain Haastrup’s incapacity. I understand that Mr Ahmed does not accept that this was the case. I am not in a position to resolve that question on this hearing, but I shall proceed on the basis that there is a live issue as to the validity of the July 2010 Agreement.

Mr Ahmed then attempted to obtain further information from Zoya under CPR Part 18 on the question of whether or not John Haastrup had authority to bring proceedings in its name. Initially this led to a series of wholly uninformative responses, mostly to the effect that this issue was not relevant to the proceedings and was a matter relating to Zoya’s internal affairs which Mr Ahmed had no right to interrogate.

Mr Ahmed then tried another tack; he sought further information from the Liberian Deputy Registrar of Corporations. This too led nowhere, although it did elicit a statement from the Registrar (in a letter dated 23 November 2014) that “Due to conflicting information provided by various parties regarding the issue of management and control of [Zoya], the Registrar will not accept any instructions or documents until a court order is properly submitted to the Registrar clearly stating rightful control of the entity.”

Mr Ahmed then resubmitted his Part 18 Request and sought specific orders requiring more informative responses. Deputy Master Mark ordered that they be supplied, and in a Response signed by John Haastrup on 16 June 2015, it was asserted that Zoya “was acquired on 1^st July 1982” and that “I, John Adewale Haastrup has been the Director since then.”He also asserted that minutes of meetings in which he was appointed as sole director and president of Zoya were kept at 157 Earlham Grove but that this property was broken into and forcibly taken over by Gloria Haastrup and her two children following her divorce from Captain Haastrup in 2007. The Response also made clear that it is John Haastrup’s case that Captain Haastrup was never a director of Zoya and never held any of its shares.

John Haastrup’s case was further explained in an affidavit sworn on 20 July 2015 in accordance with a further order made by Deputy Master Mark. There is an inconsistency between this affidavit and a Response document that was served at the same time. In the affidavit John Haastrup confirmed that he was the president and shareholder of Zoya, that the single subscriber share in Zoya was transferred to him a few months after incorporation in 1982, that Captain Haastrup was never a shareholder of Zoya (although he was actively involved in running Zoya) and that he believed that Gloria Haastrup had removed all of the relevant documents when she suddenly left 157 Earlham Grove in 2010. The Response to the Defendant’s Part 18 Request said that Zoya was acquired “around middle of1999” and that John Haastrup has been the Director since then.

John Haastrup explained this discrepancy as to the date on which he was appointed as a typographical error. He said in his oral evidence that the reference to 1999 in the Response document should have been a reference to 1982. I think that this is probably correct, although it is an extraordinary error for which no satisfactory explanation was given. In the light of the fact that this date was a critical piece of information contained in a document that was verified by a statement of truth, John Haastrup’s evidence demonstrated that he was prepared to adopt what on any view was a careless approach to the preparation and presentation to the court of important documentation. It demonstrates a particularly casual approach, given the fact that this was a response to the third request by which Mr Ahmed had sought essentially the same information, the last two of which were bolstered by court orders.

The Response document also referred to the Certificate as being a reconfirmation of the fact that Captain Haastrup was never a sole director and president of Zoya, and that, although Captain Haastrup had done most of the administrative work in relation to Zoya from the beginning John Haastrup had “been the director and President at all the material time.” In the affidavit, John Haastrup said that the Certificate had been promptly issued to him on request in 2013 “upon recognising my name as the president and confirmation of my Identity”.

There were then two further developments. The first was that Mr Ahmed’s solicitors sought and obtained (on 6 August 2015) an order against HSBC for the disclosure and inspection of documentation relating to Zoya’s bank account. This demonstrated that Captain Haastrup was initially recorded by HSBC as the relevant contact and that he had been represented to be a director of Zoya. There was also material which indicates that the bank had been informed that Captain Haastrup had provided the initial capital of Zoya and that other members of the Haastrup family (Ademola Haastrup and Daniel Haastrup) had represented themselves to HSBC to be directors or officers of Zoya (representations which John Haastrup contends to be false). The second was that, on 10 August 2015, Master Matthews made the order for the trial of the preliminary issues with which this judgment is concerned.

Thereafter, and during the course of preparing for the trial of the preliminary issues, Mr Ahmed’s then solicitors continued to take further steps to try and obtain further evidence which either supported or contradicted John Haastrup’s case that he had been the sole director and shareholder of Zoya at all times since incorporation. This included a request to Alpha Rocks that both parties should make a joint approach to LISCR to obtain all documents showing who were and are the directors of Zoya, all documents filed in relation to any change of appointment, and all correspondence and documents filed on behalf of John Haastrup.

Alpha Rocks responded to the effect that their client was not willing to make such a joint approach. This is a position that John Haastrup has continued to maintain. There has been no explanation for this refusal to cooperate in seeking plainly relevant evidence, apart from what appears to be an assertion that the information is either irrelevant or not something to which Mr Ahmed is entitled. This is a particularly surprising approach for him to adopt, in the light of what he alleges to have been Gloria Haastrup’s conduct in removing relevant material from 157 Earlham Grove. As evidence was no longer available from that source (because he says that it had been removed by Gloria Haastrup), it is difficult to understand why he refused to cooperate in seeking full disclosure of all relevant material from another available source, i.e. LISCR. In my judgment, the most probable explanation is that John Haastrup appreciated that a joint approach to and disclosure by LISCR was likely to damage his case, and this was the reason that he instructed Alpha Rocks to respond to this request in the way that he did.

Against this background it is clear that the issues of fact which Master Matthews ordered to be tried as preliminary points have significance in two different, albeit linked, contexts. The first is that they are determinative of the question of whether John Haastrup was authorised by Zoya to give instructions to Alpha Rocks to issue and conduct these proceedings on its behalf. This is because it is not in doubt that, if John Haastrup were to be the sole director or shareholder of Zoya, he would have (or qua sole shareholder be able immediately to acquire) the necessary authority, and the only basis on which it has been suggested that John Haastrup has such authority is that he is Zoya’s sole director and shareholder. Indeed, Mr Biggs specifically confirmed at the outset of the trial (on the express instructions of John Haastrup) that the only case that Zoya advanced was that John Haastrup has been the sole shareholder of Zoya since immediately after its incorporation at which stage he also became its sole director.

The second context in which the preliminary issues have significance is on the question of the mechanics by which Mr Ahmed was under an obligation to account for the rental monies which he received in respect of the Properties. If John Haastrup were to be the sole director and shareholder of Zoya, the means by which Mr Ahmed was able to obtain a discharge of his obligations under the 2010 Agreement (or otherwise to account to Zoya for the rents payable to it in respect of the occupation of the Properties) may in due course be held to be different from the means by which he would be able to obtain any such discharge if that were not to be the case.

The parties disagreed on the correct approach to the burden of proof on the preliminary issues, and devoted a significant amount of time to this in their written submissions. This would become a highly significant issue, if I were to be unable to say that one parties’ case or the other does not satisfy the balance of probabilities, but it is an unsatisfactory basis on which to reach a decision. As will appear, I am able to answer the preliminary issues without having recourse to how the persuasive burden of proof lies, but in the light of the submissions that have made on this point, I think that it is appropriate for me to say something about them.

Zoya contends that the issues of fact are being tried in the context of a claim by Mr Ahmed that John Haastrup is not (as he claims to be) Zoya’s sole director and that he has no authority to act on its behalf. This is a question that is properly to be resolved on an application to strike out the proceedings as an abuse of process on which the burden lies on Mr Ahmed. Mr Biggs submits that there are good policy reasons why this is so, and relies on the principle that the court is entitled to assume the authority of a solicitor to conduct litigation on behalf of its asserted client until that authority has been disputed and shown not to exist (per Warrington J in Richmond v Branson & Son [1914] 1 Ch 968, 974).

Mr Ahmed disagrees. He contends that the burden of proof lies on Zoya, because it is Zoya who invokes the aid of the law by issuing proceedings and it is Zoya who substantially asserts the affirmative of the issue, i.e. that John Haastrup is the sole shareholder and director of Zoya authorised to give instructions for the commencement and conduct of proceedings on its behalf. As I understand his case, Mr Ahmed asserts that this has become an issue because there is an implicit allegation to that effect in the Claim Form and the Particulars of Claim, which has been challenged by him. In support of this case, Mr Burton submits that the burden is always on a claimant to establish that it is properly before the court in the sense that a validly authorised person has given valid instructions for proceedings to be issued in its name, and he relies on Daimler Company Limited v. Continental Tyre and Rubber Company (Great Britain) Limited [1916] 2 AC 307.

A company, whether English or Liberian, can of course only act through its agents. The agents who will normally be authorised to give instructions for the conduct of litigation on its behalf will be its directors, and the agents who will be authorised to implement those instructions will be its solicitors. In this case John Haastrup claims to be the only director authorised to give instructions on behalf of Zoya, and Alpha Rocks represent that they are solicitors authorised to conduct this litigation on its behalf.

In my view, it is well established that, in this kind of case, it is not normally open to a defendant to raise want of authority as a defence to the action (per Lord Atkinson in the Russian Commercial and Industrial Bank case at p. 148 and Chadwick LJ in Sutton at paragraph 48). Thus the mere fact that somebody has gone off on a frolic of their own, using without authority the name of a company to sue to recover a debt said to be owed to that company, may mean that the proceedings turn out to be an abuse, but does not of itself mean that the money is not owed to the company in whose name the proceedings have been brought. It follows that the issue is not normally whether a claimant has proved that money is payable (whether or not after the taking of an account), but rather is whether or not the court’s process has been properly invoked to establish that this is the case.

The consequence of this is that, where an issue arises as to an agents’ authority to act on behalf of a corporate claimant, the proper course is to have that issue determined at an early stage of the proceedings. In Russian Commercial and Industrial Bank v. Comptoir d’Escompte de Mulhouse [1925] AC 112, 130 Viscount Cave (with whom Lord Atkinson, Lord Sumner and Lord Wrenbury all agreed) expressed the point in the following terms:

“I do not think that it is open to the defendants to raise this question by way of defence to the action. If the defendants desired to dispute the authority of Mr.Jones to commence these proceedings in the name of the plaintiff company, their proper course was to move at an early stage of the action to have the name of the company struck out as plaintiff and so to bring the proceedings to an end. The decision of Warrington J. to that effect in Richmond v Branson & Son [1914] 1 Ch 968 is not affected by the decision of your Lordships' House in Daimler Co. v Continental Tyre and Rubber Co. [1916] 2 AC 307, where the alleged plaintiff was incapable of giving any retainer at all. ”

This does not mean that the court will necessarily refuse to decide the question of whether a solicitor has commenced or continued to conduct proceedings without proper authority unless an application to strike out is actually issued. As the Court of Appeal explained in John Shaw & Sons (Salford) Ltd v. Peter Shaw and John Shaw [1935] 2 KB 113, the court always retains jurisdiction to decide at any stage that the action was unauthorised and should be dismissed as an abuse (per Greer LJ at p. 131, per Slesser LJ at p. 145/6 and per Roche LJ at p. 147). It has been reiterated on many subsequent occasions that this continues to be the correct approach: see e.g. Airways Ltd v. Bowen [1985] BCLC 355, 358f-359a (per Kerr LJ) and Sutton v G E Capital Commercial Finance Limited [2004] EWCA Civ 315 (per Chadwick LJ at paragraphs 48 and 49).

It also does not mean that, in dealing with a contention that the proceedings amount to an abuse of process on these grounds, the court approaches the evidential issues in the same way that it would approach a standard application to strike out a claim or a statement of case without a full trial under CPR 3.4(2). Where the issue is whether the proceedings are an abuse for want of authority, the court must determine all relevant issues on the balance of probabilities, even though the questions are being determined before the trial (cf Airways Ltd v. Bowen [1985] BCLC 355, 360c-i).

In the present case, the issue of authority was raised by Mr Ahmed in his Defence, but not as a reason of itself why the money may not be due and owing. Indeed, although no application to strike out or dismiss the proceedings as an abuse of process has been issued, it was clear from Mr Burton’s skeleton argument that dismissal or strike out on this ground was relief that he would seek in the event that the court determines the preliminary issues in his favour. I think that Master Matthews must have had this in mind when he directed the trial of the preliminary issues.

Once the nature of the issue is understood, in my judgment it points to the burden of proof on the question of authority being one that falls on Mr Ahmed. The solicitors who issue process in the name of a company warrant that they are authorised to do so, and the court proceeds on that basis unless the contrary is shown to be the case.

However Mr Burton submitted that the decision of the House of Lords in Daimler Company Limited v. Continental Tyre and Rubber Company (Great Britain) Limited [1916] 2 AC 307 supports Mr Ahmed’s position on the burden of proof and he points in particular to a passage in the speech of Lord Atkinson at p.327:

“The burden ofproving that the secretary had power and authority to institute the present action some months after the outbreak of the war rested on the respondent company. I am clearly of opinion that they have not discharged that burden. ”

At first blush this is a powerful submission, but it is important to appreciate the context in which Lord Atkinson said what he did. The issue in Daimler was whether an English company (Continental), whose shareholders were nearly all enemy aliens, could sue for the recovery of a trade debt. This gave rise to two questions. One was the circumstances in which trading with an English company could amount to trading with an enemy alien. The other was whether the English company secretary had authority to give instructions to solicitors to commence English proceedings where the directors were themselves enemy aliens.

On this second question, it is apparent from Lord Parker’s speech in Daimler (at p.337) that the plaintiff was incapable of giving any retainer at all, which is why Lord Parmoor said (at p.355) that the question of authority could be entertained at the trial as a defence to the action. It was on this basis that Viscount Cave distinguished Daimler in the passage from the Russian Commercial Bank case I have cited above (see also Chadwick LJ in Sutton at paragraph 49). The fact that the plaintiff was incapable of giving any retainer at all, and that this was the issue before the court, explains why it was that Lord Atkinson (in the passage at p.327 relied on by Mr Burton), expressed himself in the way that he did.

This is a critical distinction from the present case, because it is no part of Mr Ahmed’s case (nor could it be) that Zoya is incapable of giving instructions to sue - the issue is whether the agents purporting to act on its behalf are properly authorised to do so. In my judgment, the present case is one in which the court is entitled to assume that proceedings in the name of Zoya are properly authorised unless Mr Ahmed establishes that they are not, and to that extent the burden of proof is on him. How easy it is for Mr Ahmed to discharge that burden will depend on all the circumstances of the case.

As I have already explained, there were two areas on which the expert evidence adduced from Counsellor Dean and Dr Bropleh enabled me to reach certain conclusions. The first related to the issue of presumptions under Liberian law, and more specifically the presumptions, if any, applicable to the Certificate.

The point taken by Zoya in its written opening is that the Certificate is what it described as “presumptively correct in terms of the information it contains. This submission was based on Dr Bropleh’s report (i.e. evidence adduced by Mr Ahmed) in which, having explained that any such certificate is supposed to be correct in consonance with the By- Laws and corporate minutes of the filing companies, he said that “Certificates issued by LISCR are presumptively correct, not conclusively correct, for LISCR only stores documents given to it from the source of the information. They are not legally binding of (sic) conclusive under Liberian law.”

It is important to read Dr Bropleh’s report as a whole, because he also explained that the words at the bottom of the Certificate “Recorded with the Registered Agent only. This document is not part of the jurisdictional public record” confirm that LISCR only records what it receives from the non-resident Liberian company, but does not verify or validate it. Dr Bropleh also said that, standing alone, the Certificate has no legal force or status as a matter of Liberian law and that it must be supported by board resolutions or minutes (i.e. internal records).

The way in which Zoya’s case was formulated in its written opening adopted Mr Ahmed’s evidence, because its own expert, Counsellor Dean, made no mention of any Liberian law evidential or other presumption in his initial report. Indeed, all that Counsellor Dean said on this point in his initial report was that John Haastrup’s position “A further supported by” the Certificate. This was no more than a statement to the effect that the document was capable of providing supporting evidence for John Haastrup’s case; it fell well short of evidence that this particular document of itself is presumed to prove the accuracy of its own contents.

However, shortly before the commencement of the trial, and after skeleton arguments had been exchanged, there was a further flurry of expert evidence. Zoya adduced a supplementary report from Counsellor Dean (developing what had already been said by Dr Bropleh), in which he said “There is a presumption in law that the Certificate is accurate and the officers are proper officers of the company.” This was then followed by a further report from Dr Bropleh in which he said that:

“In fact there is no presumption as a matter of Liberian law or practice that the certificate is accurate. The burden ofproof is rather on he who seeks to confirm veracity of the document. A Certificate from the LISCR can only prove its authenticity when backed by corporate minutes that show that officers have been duly elected based on the By-laws and corporate documents of the company. ”

In these circumstances, I am faced with what appears to be a conflict of evidence on the question of whether, as a matter of Liberian law, there is a substantive presumption that the Certificate is accurate, and if so the nature of that presumption. If it is necessary to resolve that divergence of view, my task is not made any easier by the fact that neither party objected to the admission of this late expert evidence, and the experts were not cross-examined on their reports.

A proper characterisation of the nature of any presumption is important. If the presumption were to be part of a substantive rule of Liberian law, which goes to the true identity of a director or shareholder of a Liberian company, an English court may be required to apply the presumption as a rule relating to the governance and internal affairs of a Liberian company. If, however, it is simply a rule of evidence that a Liberian court will presume the accuracy of such a certificate in the absence of proof to the contrary (for the purposes of identifying a company’s directors), this may amount to an evidential presumption, which is procedural in form.

If it is no more than an evidential presumption, there is no substantive issue to be determined by Liberian law, and the English court is required to apply English law as the lex fori in accordance with Dicey Rule 19: see Dicey, Morris & Collins on the Conflict of Laws (15^th edn) at 7R-001 and 7-136 to 7-037. As there is no suggestion that any rule of English law means that the Certificate is presumed to be correct as to the information it contains, English law will simply treat it as having such evidential weight as, in all the circumstances, it can properly bear.

In my view, the most that could be said of the evidence prior to the submission of the supplementary reports was that there was some form of evidential presumption in Liberia that the contents of the Certificate were accurate. The precise nature of the presumption was not very well articulated, but the form that is most consistent with the other contents of the experts’ reports is that it was no more than a simple presumption that, in the absence of evidence to the contrary, the Certificate is capable of evidencing the accuracy of its contents. It left open the question of whether the Certificate was sufficient to achieve that purpose without the corroboration of the internal documents, which underpinned that which was certified.

In his supplemental report, Dr Bropleh no longer expressed himself in the language of presumption, and made clear that, in his view, the Certificate “can only prove its authenticity” when backed by relevant corporate documents. It is not quite clear what he means by this, but he appears to be saying that there is not even an evidential presumption, and that the Certificate requires to be corroborated by other relevant internal corporate documentation in order for it to have any evidential weight.

Counsellor Dean’s supplementary report adopts the language of presumption, which he had not used first time around, but in my judgment cannot properly be read as contending for a substantive Liberian presumption of law, sufficient to be applied in these proceedings in accordance with the principles from Dicey which I have identified in paragraph 79 above. He uses the phrase “presumption in law” but, taken at face value, this goes no further than a statement to the effect that a party to Liberian proceedings has a legal entitlement to have the accuracy of the contents of the Certificate proved by adducing it in evidence, such being sufficient for that purpose in the absence of evidence to the contrary. It seems to me that it is most improbable that the Certificate could have any more substantive effect than this without some form of statutory support, or rule of law evidenced by Liberian authority. There is no evidence that this is the case.

Furthermore, to give the presumption any force as a substantive presumption of law would in my view be inconsistent with the evidence given in the joint statement of issues to the effect that LISCR “cannot attest to the trueness of documents presented to it for keeping” and that “verification of John Haastrup’s appointment by law as a Director of Zoya can only be authenticated by the internal corporate records of the company and not LISCR”. In his supplementary report Counsellor Dean did not explain that the effect of what he was now saying was to resile in any way from that evidence.

It follows that, in my judgment, while there appears to be a difference between the experts as to the presumptive weight to be attributed to the Certificate, their evidence only establishes (at most) the existence of a procedural evidential presumption. Whatever the position might have been in Liberian proceedings, no such presumption is applied in English law. It therefore further follows that the approach that I am required to take is simply to give the copy of the Certificate such weight as is appropriate in all the circumstances of the case.

Turning to the expert evidence on Liberian corporate law registration requirements, both experts agreed that LISCR LLC administers the Liberian Corporate Registry. It provides, through the LISCR Trust Company, an exclusive registered agent services for all nonresident Liberian entities such as Zoya. In their joint statement the experts agreed that it is “only a holding agent and cannot attest to the trueness of documents”.

It is also clear that there is no requirement under Liberian law for particulars of the directors or shareholders of a non-resident Liberian corporation to be registered. The Liberian Business Corporation Act does not require information about shareholders directors or officers to be filed in the public registry, although voluntary registration is permitted. The identity of the persons who are its directors and shareholders is a matter for the internal records of the corporation itself.

It appears from Counsellor Dean’s report that voluntary filings can be made with the Registry. As to voluntary filings in the present case, he gave the following evidence of fact:

“Upon enquiry at the Registry, we are informed that the Registry has no records of the identity of the Directors and/or shareholders of ZOYA LIMITED as the information was not filed with the Registry and that it is not a requirement under the Liberian Law to file the records of the Directors and/or Shareholders with the Registry”.

Counsellor Dean says that on 1 March 2016 he also requested confirmation from the LISCR about the Certificate, and was told that:

“a recordation with the Registered Agent and subsequently the Certificate issued by the Registered Agent are confidential, only available to the corporation through the billing address of the corporation. The Registered Agent cannot provide copies of a declaration recorded with the Registered Agent or the certificate issued as a result of the recordation, only the corporation can choose to provide the certificate received from the Registered Agent to any third party.”

Counsellor Dean explained that, on the basis of his enquiries, he had concluded that Captain Haastrup was never listed or registered as an incorporator, director or shareholder of Zoya. This conclusion is not contradicted by Dr Bropleh, but does not take matters very far, because it is clear that there is no requirement under Liberian law for the appointment of directors or the holding of shares to be registered.

Of greater significance for present purposes, having said that "the Registry has no records of the identity of the Directors and/or shareholders of [Zoya]’’ Counsellor Dean does not refer to any other internal LISCR documentation, apart from the Certificate and what he describes as “the declaration of John Adewale Haastrup that he was appointed director” as supporting John Haastrup’s position that he is in fact a director and officer of Zoya. The conclusion I reach, both from the way that Counsellor Dean expresses himself in his report and from LISCR’s response to his 1 March 2016 request, is that it is probable that the Certificate itself was based on a declaration made by John Haastrup, and nothing else. The reason for this is that, if there were to have been anything else, it is most unlikely that the Registry would have said that it had no records of the identity of Zoya’s directors or shareholders.

This is consistent with Dr Bropleh’s evidence that a simple letter of request is all that is required in order to obtain such a Certificate from LISCR. There is no evidence that LISCR requires duly certified resolutions of shareholders or directors, or minutes at which such resolutions were passed. I shall consider a little later the evidence as to how it was that the request was made in the present case.

Dr Bropleh explained in his evidence (which I accept) that, on the death of a director of a Liberian company, the board of directors elects a replacement to serve until the next annual shareholder meeting. There is no evidence that any such election took place in the present case, and indeed the case of neither party would have permitted or required that to happen: Zoya, because its case is that John Haastrup was already the sole director and Mr Ahmed because his case is that the deceased director (Captain Haastrup) was the only director.

It was also Dr Bropleh’s evidence, which I accept, that the right to elect a replacement director was then exercisable by the shareholders in general meeting, and a director’s appointment could either be from meeting to meeting, or such other period as the shareholders resolve. The right to vote shares held by a deceased shareholder becomes exercisable by the grantees of letter of administration. In the present case, a grant was made, but (as I have explained above) is no longer capable of being operated as a result of the Nigerian injunction. It follows that the power to exercise any shareholder rights which may have been vested in Captain Haastrup at the date of his death are not at present capable of being exercised.

I now turn to events at and about the time of the incorporation of Zoya. As I have already explained it is Zoya’s case that this was when John Haastrup became its sole director and shareholder. It is no part of Zoya’s case that John Haastrup became a director or shareholder at any stage thereafter.

Zoya was incorporated on 1 July 1982. It had an authorised share capital of what was described in its Articles of Incorporation as 500 “registered and/or bearer shares without par value”. At this stage John Haastrup was at university in Nigeria, and was part way through a course in fashion design, which had started in 1980 and from which he was to graduate in 1984. He told me that he was 18 years old and was living with Captain Haastrup in a family house.

Dealing first with the shareholding, John Haastrup said in his oral evidence that it was Captain Haastrup’s idea that he would give shares in different companies to all his sons in order to motivate them to succeed. He said that Captain Haastrup made all the important family decisions, and it is clear that he fulfilled a dominant patriarchal role in relation to the family’s affairs.

He told me that his father’s intention was that he would have the shares in Zoya, which was to be a property owning company, and that other brothers would have shares in companies conducting other businesses. In his oral evidence he said that that this was to be achieved through the transfer of shares by Haastrup W.A. Ltd (a Nigerian holding company) to him and his siblings. He then told me that there was a meeting in Port Harcourt at which documentation was signed, including powers of attorney and that this all happened around about July 1982, which was of course immediately after Zoya had been incorporated.

This evidence was surprising for a number of reasons. In particular there had been no hint from John Haastrup in his witness statements that any meeting had taken place and he had not previously described a transfer from another company, a process which was in any event inconsistent with his case that he was the sole shareholder from the outset (by which it was obvious that he meant that he held the shares by transfer from Zoya’s original incorporator). He said that it was “an oversight” that he had not mentioned this meeting in his witness statements. As he gave his evidence, further details emerged, none of which had been foreshadowed before he went into the witness box.

Thus, when he was pressed by Mr Burton as to who was at the meeting, John Haastrup explained that Captain Haastrup was present, as was his stepmother who died in 1995 and Mr Goweh (the incorporation agent), whom I understood was an employee of LISCR. He was insistent that the effect of the documents signed at the meeting was that he was appointed president and sole director of Zoya and that he became its only shareholder, but he was unable to identify or describe any of the documents that he was asked to sign. He could not say what they were, nor could he identify the form that they took. His evidence was simply that he signed all of the documents required to ensure that he became Zoya’s sole shareholder.

Although John Haastrup also told me that they (by which he meant the Haastrup family) had lots of lawyers working for them, he was unable to produce any other contemporaneous document which corroborated this recently developed part of his case. It is fair to say that this all occurred a long time ago, and it is also fair to say that John Haastrup contends that a number of relevant documents have gone missing (a point to which I will return), but it is very surprising that he has managed to adduce nothing which even hints at the occurrence of the meeting or of the material that is said to have been considered and signed at it. As I shall describe later, his evidence is also wholly inconsistent with many aspects of the way in which Zoya’s affairs were conducted between 1982 and the time of Captain Haastrup’s death.

Mr Burton also submitted that it is unlikely that Zoya’s incorporator, Mr Goweh, would have travelled all the way from Liberia to Port Harcourt for this purpose. I agree that this is surprising, and he may well be correct. Mr Goweh’s presence would also have been inconsistent with John Haastrup’s evidence that Zoya was given to him by transfer from Haastrup Line W. A. Limited. The contradiction in his answers as to the mechanism by which he actually received a transfer of the shares in Zoya, is of itself reason to treat his account of the Port Harcourt meeting (and what occurred at it) with very considerable caution.

John Haastrup’s evidence was also inconsistent and contradictory on the issue of the number of shares that he contended were transferred to him in 1982. Initially he said in his witness statements, in quite explicit and unambiguous terms, that the transfer was a single share from Mr Goweh. On being asked about the Dixcart correspondence I have described below, he said that he actually took a transfer of all 500 of Zoya’s issued shares.

Taking into account what happened subsequently (as described elsewhere in this judgment), I am satisfied that John Haastrup had no genuine memory of documentation that transferred all of Zoya’s issued shares to him. In my judgment, the inconsistencies in his evidence and the manner in which it was expressed demonstrates that he was embellishing what he had to say when he needed to do so in an attempt to make it consistent with conflicting documentary material. This is an example of an instance in which I am satisfied that John Haastrup simply expanded on his evidence to suit documentation that was put to him without any real explanation as to the reason why his original evidence had been both incomplete and wrong. In my judgment it demonstrates that John Haastrup was prepared to assert that he had a more precise memory in relation to Zoya and its affairs than was in fact the case.

I am also unable to accept that a meeting such as the one that he described in his oral evidence could have been omitted by John Haastrup from his witness statements through “oversight”. If any such meeting were to have happened, it would have been obvious to John Haastrup that it was of critical relevance to the issues, which the court ordered to be tried as long ago as August 2015. I have no doubt that, if the meeting had really taken place in the way in which he said it did, John Haastrup would have remembered it long before the time he went into the witness box. I do not rule out the possibility that there may have been a meeting in or about 1982, attended by John Haastrup, Captain Haastrup and his step mother at which matters relating to English property were discussed. It may even be the case that John Haastrup was told by Captain Haastrup at some stage that he intended to give him in due course an interest in English property investments. But I have reached the clear conclusion that John Haastrup is wrong to say that any meeting took place at which the shares in Zoya were transferred to him, or that he was appointed to be its director.

In any event, on a proper analysis, there was no evidence that John Haastrup became a director at the time of what he asserted was the transfer to him of Zoya’s issued shares. Indeed it is clear that he did not, because the only evidence he gave was to the effect that he understood that he became a director and the president by reason of his status as Zoya’s sole shareholder. He did not contend that a resolution was passed, and seems to have thought that directorship was something that happened without any overt act. The evidence from both Counsellor Dean and Dr Bropleh confirms that a director of a Liberian company must be appointed by election at a meeting of the shareholders and may need to be re-elected annually thereafter (depending on the term for which he was originally elected). Doubtless this can be done with relative informality, but there is no evidence that the appointment procedures can be done away with altogether. It follows that, even on his own case, John Haastrup was never appointed to be a director of Zoya.

These conclusions are strongly corroborated by the way in which John Haastrup accepts that Zoya’s affairs were conducted thereafter, and also by his conduct subsequent to Captain Haastrup’s death, which I have already described. As will appear, it is also my view that, on a proper analysis, they are unaffected by the existence or terms of the Certificate.

Dealing first with how it was that Zoya’s affairs were subsequently conducted, John Haastrup accepted that Captain Haastrup took all the decisions in relation to Zoya and that, in practice, he managed Zoya in all respects as he thought fit. Although it seems quite likely that John Haastrup was involved in the renovation work that was carried out in relation to the Properties during the late 1980s, there is no contemporaneous documentary evidence that he was involved in any way as a director (or controlling shareholder) of Zoya. Captain Haastrup carried out those functions and John Haastrup did not contend that he contributed in any way towards them. Indeed, it was his own case that Captain Haastrup wanted to keep John Haastrup’s involvement in Zoya secret and anonymous.

When he was pressed in cross-examination as to why this was the case if he was in fact Zoya’s sole director and shareholder, the most that he was able to say was that you don’t argue with your father and that, because of this, he toed the line. What is striking about this evidence is that, if this was the nature of his relationship with Captain Haastrup (and in my view it has the ring of truth about it), it is surprising that the somewhat invisible status of director and shareholder was conferred on him in the first place. It seems to me most unlikely that Captain Haastrup would have put in place a legal structure under which the work which he (Captain Haastrup) was doing for Zoya was subject to the ultimate legal control of a son who was only then 18 years of age.

John Haastrup’s explanation for this was that Zoya was formed for him and for his own future, and this is why he was appointed a director and given the shares in Zoya. However, he was unable to give me any credible explanation for why his formal appointment as sole director was something which Captain Haastrup might have thought was an appropriate step to take, while still himself retaining full control of all aspects of Zoya’s business and affairs.

There are a number of other instances where contemporaneous documentation corroborates a conclusion that John Haastrup was not the sole shareholder and director of Zoya. Thus, in March 1983 (i.e. some 8 months after Zoya’s incorporation) there was correspondence between Captain Haastrup, his solicitor, Mr J Tesler of Michael D Kaye & Co and Mr D R Williams of Dixcart which clearly demonstrates that Zoya’s 500 authorised shares were issued as registered shares, and by that stage were held in the name of Strand Services Inc, which itself held those shares as nominee on trust for Captain Haastrup. The correspondence included a request by Mr Williams to Mr Tesler for instructions from Captain Haastrup as to whether he wanted the shares to be issued directly in his name. Captain Haastrup responded by confirming:

“Regarding the Share Certificate, Mr Tesler has given me the originals of both the Certificates and the Declaration of Trust and has also explained to me the advantages of having the Share Certificate through a nominee company, this is acceptable to me. ”

Neither the share certificate nor the declaration of trust is itself in evidence, but each is sufficiently referred to in correspondence the genuineness of which was not challenged (although as I shall explain Zoya contends in general terms that it is incomplete). This correspondence was taking place shortly before Zoya became the registered freeholder of 159-161 Earlham Grove. I am satisfied that, at this stage the share certificate and the declaration of trust were in the possession of Captain Haastrup.

There is also contemporaneous correspondence which demonstrates that, from shortly after Zoya’s incorporation, and then throughout the 1980s and beyond, secretarial services for Zoya were being provided by Mr Williams from Dixcart’s offices in St Peter Port, Guernsey. He was communicating with Captain Haastrup as a company secretary would communicate with its sole and controlling director. Further correspondence with Dixcart made clear that it was Captain Haastrup, not anyone else, who would be making decisions as to whether Zoya would be preparing accounts, and if so what form those accounts would take. This state of affairs continued throughout the 1980s. An example is that Mr Williams gave detailed advice to Captain Haastrup in early 1990 on the Capital Gains Tax consequences of the development and potential sale of the Properties.

John Haastrup’s explanation for why it was that Dixcart clearly knew nothing about his role as a shareholder and director of Zoya, and dealt only with Captain Haastrup, was not very easy to follow. At one stage he said that Captain Haastrup, as a responsible father, wanted him to focus on his studies, which was the reason why he was invisible to Dixcart. On another occasion he said that there were complex family dynamics. But none of this explains why the entity providing corporate secretarial services for Zoya appears to have known nothing about the role that John Haastrup alleges that he had.

Furthermore, throughout the 1980s, Captain Haastrup was holding himself out to other third parties as a (and to all intents and purposes the sole) director of Zoya. Thus, it is apparent from the HSBC disclosure that I have referred to above that a mandate to Midland Bank Pic dated 7 October 1986 was signed by Captain Haastrup holding himself out as chairman of the board of Zoya, and Mr Williams signed as its secretary. There is, however, no evidence that John Haastrup was known to the bank as one of Zoya’s directors. I do not consider that it is credible that Zoya’s bankers would have had no record of John Haastrup being Zoya’s sole director and shareholder if that had been the case. It is also most improbable that John Haastrup, who must have known that Zoya had bankers, would not have ensured that he was on the mandate or at least known to Zoya’s bankers if, as he asserts, he was Zoya’s sole director and controlling shareholder.

It continued to be the case that Captain Haastrup was in all respects the only person who held himself out to third parties as a director of Zoya. By the same token there is not a single reference in any of the documents that have been adduced in evidence to even the possibility that John Haastrup might have been a director. Thus, Mr Williams continued to correspond with Captain Haastrup in relation to the tax consequences of redeveloping Earlham Court, and, as I have already explained, it was Captain Haastrup with whom Mr Ahmed had contact in relation to the property management services that he had agreed to provide in relation to the Properties.

Yet another example of events, which were wholly inconsistent with John Haastrup’s case, occurred in 2006, when Zoya granted 125-year leases of flats in the Properties to Ademola Haastrup and Elizabeth Haastrup. Captain Haastrup was one of the executing signatories who witnessed the affixing of Zoya’s seal to the relevant deeds, but John Haastrup was not. Apart from the obvious point that Captain Haastrup was thereby executing a document and holding himself out as a director of Zoya, it is most surprising that the transfer of value effected by the grant of long leases to other members of his family was not something in which John Haastrup appears to have participated if Zoya was a company of which he was the sole director and controlling shareholder. John Haastrup’s evidence was that the reason he did not join in their execution was that there was no need for him to sign, that things were being done in an informal way and that it was mere expediency that they were executed in the way that they were. I found this evidence unconvincing and improbable.

As late as 2010 there continued to be clear evidence that the address of record for Zoya held by LISCR was Captain Haastrup at 157 Earlham Grove (one of the Properties). This appears both from a Legal Notice of Impending Revocation and Dissolution of Zoya sent to him by LISCR in July 2010, and the subsequent correspondence between Dixcart and LISCR relating to Zoya’s good standing. The only explanation that John Haastrup was able to give as to why these contact details might have been used was that they were writing to the head of the family, that Captain Haastrup’s address at 157 Earlham Grove was “the place that they got their money” and that it was better for them to have a single point of contacts.

I did not find this explanation to be credible. While this documentation is not inconsistent with John Haastrup being a director or a shareholder of Zoya, it is wholly inconsistent with him being its sole director and its sole shareholder. Even if Zoya and John Haastrup were content for Captain Haastrup to be held out as authorised to act for Zoya in its relationship with trading counterparties, LISCR and Dixcart were concerned with Zoya’s internal corporate affairs. The kind of issues with which they were dealing were matters of corporate formality. It is most unlikely that they would have been dealing with anyone whom they did not consider to be either a director of Zoya or its controlling shareholder, without there being some form of record that this was the case.

There was also put in evidence a copy of a will purporting to have been executed by Captain Haastrup on 18 July 2007, in which he identified a 100% shareholder interest in Zoya as one of his assets outside Nigeria and in which he referred to Zoya as “my company”. As I understand it, there are proceedings both in England and in Nigeria in which the validity of documents purporting to be Captain Haastrup’s wills has been put in issue. I am not in a position to form a view on whether the challenge to this particular document is or is not well-founded, nor did either party suggest that I am. It follows that I must proceed on the basis that references to Zoya in this purported will does not assist one way or the other on the issues that I am required to try.

Similar issues arise in relation to a power of attorney purportedly signed by Captain Haastrup on 15 June 2010 and which also refers to Zoya as one of “my companies” to be managed by his third son Gabriel Kwezi Haastrup and Gloria Haastrup, and in respect of which the maker of the instrument stated that “1 shall remain CHAIRMAN OF THE BOARD of each of the said companies for life.” It seems from a copy of a report produced by a graphologist that the genuineness of this document may well be in issue in the same proceedings as those in which the validity of the 18 July 2007 will is challenged. I am not in a position to form a view on the validity of this document either, nor did either party suggest that I am. It follows that, as with the purported will, I shall proceed on the basis that this power of attorney does not assist one way or the other on the issues that I am required to try.

In my judgment such contemporaneous documentary evidence as exists is all wholly inconsistent with John Haastrup’s case that he became the sole shareholder and director of Zoya shortly after its incorporation in 1982. In many respects the inconsistencies have no credible explanation. This material, combined with the way that John Haastrup gave his evidence in the witness box and the way in which his case developed after he first made demand of Mr Ahmed in July 2013, makes a compelling case for concluding that John Haastrup did not become a shareholder or director of Zoya when he says that he did, and therefore was not a shareholder or director of Zoya either at the time of Captain Haastrup’s death or at any time thereafter.

There are, however, two submission made by Mr Biggs for Zoya which he says supports its case. The first is that the Certificate is clear evidence to substantiate John Haastrup’s status as a director of Zoya. The second is that there is a credible reason why the documentation which might be expected to exist, and which supports its case that John Haastrup became a shareholder and director of Zoya is not available to be adduced at this trial.

In my judgment the Certificate has very limited evidential value for the purpose of determining whether or not John Haastrup is a director or officer of Zoya. Furthermore, it is inconsistent on its face with Zoya’s case that John Haastrup was appointed to be a director of Zoya in or shortly after July 1982. This is for two reasons:

As to its construction I agree with the submission made by Mr Burton that it is apparent from its title that the Certificate is designed to certify both the election of a director or officer, and his continued incumbency in that role. This is fortified by the fact that a certification (itself dated 2 October 2013) that John Haastrup was appointed “as of’ 20 September 2013 is more naturally to be read as certifying that this was the date on which he was appointed, such that he held office from that date.

In my view, in normal parlance the phrase “as of means the same as the phrase “as from”. It is different in meaning to the phrase “as at” a particular date which is capable of reflecting an appointment at an earlier point in time, but which is still extant as at the date in issue. This is relevant because it means that, on its true construction, the Certificate does not support the case advanced on behalf of Zoya that John Haastrup was appointed back in 1982, which is the only case advanced on its behalf at trial. It simply certifies that LISCR’s records disclosed that with effect from 20 September 2013 John Haastrup was the duly elected, qualified and acting director of Zoya and its duly appointed, qualified and acting president.

It follows from this conclusion that, far from supporting Zoya’s case, the Certificate is in fact inconsistent with it. There is no evidence or explanation (nor is it even his case) as to how John Haastrup could have been duly elected on 20 September 2013, not least because this was between the date of Captain Haastrup’s death and the date on which he obtained the grant of letters of administration from the Nigerian court (which, as I have explained, he is now restrained by Nigerian injunction from exercising). It is also inconsistent with the case he has advanced throughout the trial that he was appointed back in 1982, with no suggestion that his appointment was made or reconfirmed at any later date.

As to the circumstances in which the Certificate came into existence, all that John Haastrup said in his first witness statement was that he requested from the Liberian authorities certified copies of documents in their records including the Certificate and that “this was promptly issued to me upon recognising my name as the president and confirmation of my Identity”. He then gave a little more detail in a supplemental witness statement served just before the commencement of the trial in which he said:

“On the 28^th of August, 2013 I contacted the LISCR UK offices by telephone explaining what happened and who I am. After checking their record, they asked me to attend their UK office with my identification documents. On production and verification of my passport, the Certificate of Incumbency and a new certified copy of the Articles of Association was processed and sent to me. ”

In his oral evidence John Haastrup expanded on this description of what occurred, and said that a meeting was held at LISCR’s offices in Fenchurch Street. He confirmed that Alpha Rocks did not assist him in obtaining the Certificate. He said that the only specific document that LISCR said that he was required to provide was his passport. He initially appeared to be implying that there was other material as well, although when it came to it he was unable to give a coherent explanation of what else LISCR might have required from him.

Another somewhat mysterious aspect of the Certificate is that it also certified that Patrick Obeng was the duly appointed, qualified and acting secretary of Zoya as of 20 September 2013. When pressed in cross-examination as to how this came to happen and as to why there was no evidence from Mr Obeng, John Haastrup explained that he appointed Mr Obeng to be the Secretary some time ago; he wasn’t sure when, but thought it was in 2010. The oddity of this evidence is that in his most recent witness statement, which was signed only a few days before he went into the witness box, John Haastrup had explained that, in the course of his search for relevant documents, he contacted Dixcart “the Secretariat that was providing secretarial services for [Zoya]”. In response to this contact, he says that he was told by Mr Nelson of Dixcart (on 13 August 2013, i.e. shortly before the date as of which the Certificate was given) that Dixcart was no longer providing secretarial services to Zoya “and that I should make other arrangements”. There is no mention in this witness statement that he had in fact already appointed another Secretary in the form of Mr Obeng.

The conclusion that I have reached is that the Certificate cannot be treated as corroborative of John Haastrup’s own statements as to his status as a director and officer of Zoya. The reason for this is that there is no evidence that the Certificate is itself based on any material other than that which John Haastrup himself asserted to LISCR to be the case (bolstered in so far as relevant by his passport), and I think it unlikely that any such further material exists. The probability that there was no other material available to LISCR is itself corroborated by two factors:

As will have been apparent from the findings that I have already made, one of the most striking aspects of this case is that, apart from the Certificate, there is no documentation at all, which connects John Haastrup to Zoya. This is despite the fact that it is his case that he was the sole director of Zoya and its sole shareholder for the period of 30 years between the date of its incorporation in 1982 and the date of Captain Haastrup’s death in 2012. It is obvious that the complete absence of such documentation cries out for an explanation.

The explanation given by John Haastrup is that he believes that Gloria Haastrup removed documents relating to Zoya when she broke into one of the Properties (157 Earlham Grove) and has refused to return them. In his most recent witness statement (made two days before the trial) the documents, which he says are missing, include the “Company Register File within which is a Register of Director, Register of shareholding”. He also says that the originals of a certificate of Recordation are missing, as are copies of the Articles of Association, Company seal, letterhead papers, company receipts and invoices. He says that they were removed as part of an attempt by Gloria Haastrup to persuade Dixcart to get her registered as a director of Zoya.

The list of missing documents, which John Haastrup gave in his most recent witness statement, did not include minutes of meetings at which he says that he was appointed a director, although such minutes had been said to be amongst the documents removed by Gloria Haastrup in his Response to a Part 18 Request dated 16 June 2015. There was no explanation for this discrepancy, but it is illustrative of the need for caution in reaching any conclusion that John Haastrup is able to confirm that a particular category of document was in fact removed from 157 Earlham Grove, or whether his evidence can be taken to be no more than a speculative assumption that it was. Particular caution is required in the light of the fact (as I have already explained above) that John Haastrup seems to have assumed that he simply became a director by reason of his status as Zoya’s owner. Although I am satisfied that he was wrong to make that assumption, the evidence as to his belief is inconsistent with the answer that he gave in the 16 June 2015 Response.

Although John Haastrup says that he made a report to the police at the time of the removal, no confirmatory evidence (from the police or otherwise) was adduced that this was in fact the case. It may be that there would be no police record available because he says that the police said that it should be treated as a civil matter, but there is also an unexplained inconsistency as to when it is that he says that the documents went missing. In his affidavit dated 20 July 2015 he said that he believed that they were taken away when Gloria Haastrup suddenly left the premises in July 2010, while in his witness statement dated 6 April 2016 he says that the documents went missing in 2007, which was the time at which he says that he made a report to the police. On any view, they have been missing for many years.

Gloria Haastrup denies that she forcefully broke into 157 Earlham Grove or that she removed documents demonstrating that John Haastrup was the validly appointed director and shareholder of Zoya. She says that the only documents relating to Zoya that she has in her possession are those that she has disclosed (and which were in evidence), none of which refer to or are even consistent with John Haastrup being the sole director and shareholder of Zoya from the time of its incorporation. It is important to stress, however, that Zoya was not able to test this evidence, because Gloria Haastrup did not make herself available for cross-examination on the witness statement in which she gave evidence to this effect.

Of greater significance than Gloria Haastrup’s untested denial is the fact that the evidence given by John Haastrup does not identify how it is that the documents that are said to be missing would have established that he had always been a shareholder or director of Zoya. Put in simple terms, even if it were to be the case that Gloria Haastrup took documentation from 157 Earlham Grove when John Haastrup said that she did, the evidence that any of it might establish John Haastrup’s case is insufficiently precise to be of any real value. Furthermore, it is quite remarkable that John Haastrup did not himself retain a single contemporaneous document evidencing the status, which he says that he has as Zoya’s sole shareholder and director. Indeed, with the exception of the Certificate (which is not a contemporaneous document and which has the deficiencies that I have already identified), he has been unable to produce a single document from a third party that is consistent with his case.

In my judgment, the evidence in support of Zoya’s case that the shares were transferred to John Haastrup at the meeting he now relies on is vague, insubstantial and wholly inconsistent with a large number of other matters, events and documents described in this judgment. I am satisfied that Zoya, accepted by John Haastrup to be a company of which Captain Haastrup was the founder, continued to be managed and controlled by Captain Haastrup from the time of its incorporation until his death. I am also satisfied that he did so in his capacity as the holder of its shares, and its director.

In reaching this conclusion, I have formed the view that John Haastrup’s evidence is unreliable in a number of respects. Most critically, I am satisfied that he embellished his story in order to strengthen his claim to legal ownership and control of Zoya (and therefore indirectly the Properties) when the most to which he was ever entitled, whether justified or not, was an expectation that one day Zoya might be his.

It follows that in my judgment, John Haastrup is not legally entitled to the shares in Zoya and has not been validly appointed as director of Zoya. I will hear further submissions on the orders I should make in the light of those determinations.