Ogelegbanwei & 52 Ors v President of the Federal Republic of Republic of Nigeria & Ors

This is an application by the claimants for registration of a judgment given in their favour on the 5^th December 2013 by the Asaba Judicial Division of the Federal High Court of Nigeria. The application was initially placed before a Master, but was referred by the Master to a Judge of the High Court.

I am grateful for the written skeleton arguments and oral submissions of Mr Onifade, solicitor advocate, on behalf of the claimants. The application for registration was made (and permissibly made: see CPR 74.3(2)) without notice to the defendants, and I have therefore not heard any submissions on their behalves.

The claimants are the chiefs of 53 communities in the Gbaramatu Kingdom of Warri South West Local Government Area of Delta State in the Federal Republic of Nigeria. In 2009 the Nigerian government deployed a military task force against the inhabitants of that Kingdom. In November 2010 the claimants, as Plaintiffs acting on behalf of themselves and the communities which they respectively represent, brought proceedings in the Asaba Division of the Federal High Court of Nigeria. The Defendants to the proceedings were the President of the Federal Republic of Nigeria; the Attorney General of the Federation; and Major-General Bello, the commander of the Joint Task Force, who was sued both in his own right and as representative of the personnel who served in the Task Force. The proceedings were contested by the First and Second Defendants; the Third Defendant did not appear and was not represented. The Hon Justice I. N. Buba, sitting in the Federal High Court, gave judgment on 5^th December 2013 in favour of the Plaintiffs. The Court declared that

“the bombardment of the Plaintiffs’ communities … resulting in the demolition/destruction of houses, household furniture/wares, boats, canoes, domestic animals and displacement of members of the communities is in violation of section 217(2)(c) of the Constitution of the Federal Republic of Nigeria 1999 and is therefore unconstitutional”.

The Court awarded the Plaintiffs special damages exceeding 49 billion Naira, and aggravated and/or punitive damages exceeding 50 billion Naira for

“the unlawful bombardment and sacking of the Plaintiffs’ communities which resulted in wanton demolition/destruction of their houses, household furniture and other wares, their domestic animals, canoes, boats, sacred places, artefacts etc and which resulted in total displacement of members of the communities for a minimum of three months from 15^th May 2009, the effect of which was that many members of the communities were living in the swampy mangrove forests in subhuman conditions while others were in a concentration camp and suffered loss of income, disease and mental torture and the education of their children of school age was disrupted”.

Each of those awards of damages, totalling N99,999,999,999.30 (the sterling equivalent of which is nearly £400 million) was made against the Defendants jointly and severally.

That brief summary of the judgment of the Federal High Court suffices to make plain the scale and seriousness of the loss and damage which the defendants and each of them have been adjudged by that Court to have caused to the claimants and those whom they represent.

None of the defendants has ever sought to appeal against that judgment, and the time limit for any appeal expired in March 2014. The judgment debt, however, remains unpaid. Mr Selekeowei Larry, the advocate who represented the claimants in the Federal High Court, has provided an affidavit, and subsequently a statement, in which he confirms that the judgment remains unpaid and describes the steps he has taken to try to persuade the defendants to comply with the judgment. He had been given assurances by the second defendant that the judgment debt would be paid, but nothing has in fact been paid. In short, it is the claimants’ case that they have been unable to enforce the judgment in Nigeria. In paragraph 18 of his statement, Mr Larry makes the following important point:

“The claimants (judgment creditors) are helpless because the defendants (judgment debtors) control the apparatus of judgment execution and have further failed to comply with the rule of law.”

The claimants believe that all of the defendants have assets in England. In May 2015 they learned that Sir Koloinde Aniso, the chief of another Nigerian community who had similarly obtained judgment against the President of the Federal Republic of Nigeria, the Attorney General and others had successfully registered that judgment in this court.

Encouraged by that information, the claimants on 19^th May 2015 issued in this court an application notice seeking registration pursuant to section 2 of the Foreign Judgments (Reciprocal Enforcement) Act 1933 of the Nigerian judgment in their favour. They provided the formal evidence which is required by CPR 74.4. However, when the application came before me for hearing, I questioned whether the provisions of the 1933 Act extended to Nigeria. Mr Onifade wished to be given time to consider whether the claimants should instead apply under section 9 of the Administration of Justice Act 1920. In order to allow him that time, I reserved my judgment and set a timetable for the claimants to submit an amended application notice if they wished to do so.

The claimants’ advisers concluded upon reflection that the court did not have jurisdiction to proceed under the 1933 Act, because no Order in Council has ever been made applying the provisions of that Act to Nigeria. On 22^nd October 2015 they issued an amended application notice seeking registration of the Nigerian judgment pursuant to the 1920 Act.

Section 9 of the Administration of Justice Act 1920 provides as follows:

“(1)

Where a judgment has been obtained in a superior court in any part of His Majesty's dominions outside the United Kingdom to which this Part of this Act extends, the judgment creditor may apply to the High Court in England or [Northern Ireland ] or to the Court of Session in Scotland, at any time within twelve months after the date of the judgment, or such longer period as may be allowed by the court, to have the judgment registered in the court, and on any such application the court may, if in all the circumstances of the case they think it just and convenient that the judgment should be enforced in the United Kingdom, and subject to the provisions of this section, order the judgment to be registered accordingly.

(2)

No judgment shall be ordered to be registered under this section if—

(a)

the original court acted without jurisdiction; or

(b)

the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; or

(c)

the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or

(d)

the judgment was obtained by fraud; or

(e)

the judgment debtor satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment; or

(f)

the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court.

I am satisfied by the evidence which has been put before the court that none of the statutory exclusions mentioned in section 9 applies to this case. I am also satisfied that, in contrast to the 1933 Act, the provisions of the 1920 Act do apply to Nigeria. The claimants are therefore entitled, in principle, to make their amended application. The application was however issued after the expiration of the 12-month time limit imposed by section 9(1). The claimants ask the court to allow a longer period. Mr Larry’s statement sets out the reasons why a longer period should be allowed: in summary, that the first and second defendants gave a number of assurances of payment, which the claimants accepted in good faith and therefore refrained for a considerable time from taking any steps to enforce the judgment.

I bear in mind the relative positions of the claimants and the defendants. I also bear in mind, of course, that this application has been made without notice to the defendants, and I therefore have not heard any submissions on their behalves. I accept, for present purposes, the evidence before the court which shows that the defendants – who are in a much stronger position than the claimants - have given assurances of payment which have caused the claimants to defer seeking alternative methods of enforcement. In those circumstances I accept the submission that no unfair prejudice would be caused to the defendants if the court were to permit the claimants to proceed with their amended application.

I am satisfied that it is appropriate in all the circumstances of this case to permit the claimants to amend their application so as to proceed under the 1920 Act rather than the 1933 Act, and to allow the claimants a period of more than 12 months in which to make their application to register. The effect of the court’s permitting the claimants to amend their original application notice is that they are deemed to have made their application under the 1920 Act on 19^th May 2015. It is in my judgment fair to allow the claimants until 20^th May 2015 to make their application to register. In the result, the application for registration under the 1920 Act has been submitted within the longer period allowed by this court.

Turning to the merits of the application to register, I consider first the position of the third defendant. Mr Onifade submits, and I accept, that no question of state immunity arises in his case. He has been found by the Federal High Court in Nigeria to be both jointly and severally liable in damages to the claimants. He has played no part in the proceedings in Nigeria, and on the evidence before me, he has made no effort to satisfy the judgment debt or to pay any sum to the claimants. He is believed to have assets in England. In my judgment this is a clear case in which it is just and convenient that the judgment against him should be enforced in this case. I order that the judgment against him be registered accordingly.

The application against the first and second defendants is more difficult. As Mr Onifade readily accepts, an issue of state immunity arises in relation to both those defendants. It is necessary to set out the provisions of sections 1 and 5 of the State Immunity Act 1978:

“1.— General immunity from jurisdiction.

(1)

A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.

(2)

A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.

5.

Personal injuries and damage to property.

A State is not immune as respects proceedings in respect of—

(a)

death or personal injury; or

(b)

damage to or loss of tangible property,

caused by an act or omission in the United Kingdom.”

On the face of it, the clear effect of those provisions is that the first and second defendants are immune from the jurisdiction of this court. Mr Onifade nonetheless argues that in circumstances such as these, those provisions are incompatible with the Human Rights Act 1998. He invites the court to declare them incompatible and to set them aside. In support of his submissions he refers to Benkharbouche and Janah v Embassy of the Republic of Sudan [2015] EWCA Civ 33. He also relies on the unreported decision of Master Kay to order registration of a Nigerian judgment against these two defendants, and others, in the proceedings brought by Sir Koloindi Aniso and others.

Mr Onifade’s submissions can be summarised as follows. He points out that as long ago as 1983, Nigeria ratified the African (Banjul) Charter on Human and Peoples’ Rights. He submits that the actions of the first and second defendants against the communities represented by the claimants, clearly amounted to grave breaches of a number of the rights guaranteed by that Charter, including article 4 (right to life and the integrity of the person) and article 5 (prohibition of cruel, inhuman or degrading treatment). These human rights, he submits, are effectively the same as those guaranteed in this county by the Human Rights Act 1998 and by articles 1, 2, 3, 4, 6 and 7 the EU Charter.

Mr Onifade next submits that to deny the claimants access to this court would be a breach of the court’s duty under the Human Rights Act to give effect to legislation in a way which is compatible with the Convention rights, and would breach the claimants’ article 6 right to a fair hearing. It would also, he submits, be a breach of article 47 of the EU Charter, which provides in part –

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.”

Mr Onifade invites the court’s attention to Benkharbouche, in which the Court of Appeal set aside certain provisions of the State Immunity Act 1978.

Mr Onifade properly drew to the court’s attention two cases in which registration of foreign judgments against governments had been refused, but he submits that those cases can and should be distinguished on the basis that they did not involve any human rights issue. He relies by way of analogy on passages in the speech of Lord Phillips in NML Capital Ltd v Republic of Argentina [2011] UKSC 31 (a case turning on the provisions of the State Immunity Act 1978 relating to commercial transactions), and submits that the court in this case should look not merely to the present application to registration but also to the stark breaches of human rights found to have been proved in the underlying proceedings before the Federal High Court.

In summary, Mr Onifade submits that section 5 of the State Immunity Act is incompatible with article 6 of the ECHR because it excludes a state’s immunity only in respect of personal injuries etc caused by acts or omissions within the UK: it should, he argues, be read so as to exclude a state’s immunity in respect of personal injuries etc caused by any acts which constitute a breach of human rights. If the section cannot be “read down” to that effect, he submits, the court is required by section 2 of the European Communities Act 1972 to disapply section 5 in the circumstances of this case.

I have reflected on these submissions. My conclusions are as follows.

It is necessary first to consider whether article 6 is in fact engaged. In Benkharbouche the Court of Appeal reflected (at paragraph 16) on an unresolved conflict between domestic and Strasbourg authorities. Although the Court did not find it necessary to resolve that conflict, it indicated that it found the UK case law compelling:

“It is difficult to see how article 6 can be engaged if international law denies to the Contracting State jurisdiction over a dispute. There can be no denial of justice for which the State is responsible if there is, as a matter of international law, no court capable of exercising jurisdiction. Moreover, article 6 cannot have been intended to confer on contracting states a jurisdiction which they would not otherwise possess, nor could it have conferred a jurisdiction denied by general international law in such a way as to be binding on non-Contracting States.”

The Court went on to explain that the reason why it was unnecessary to resolve the conflict of authority was that the Strasbourg jurisprudence would in practical terms lead to the same result:

“The approach of the Strasbourg court would not result in a Contracting State being held to be in breach of article 6 simply because it gave effect to a rule of international law requiring the grant of immunity. In any such case the grant of immunity would be held to be a proportionate means of achieving a legitimate aim.”

It seems to me that section 1 of the State Immunity Act 1978 grants immunity in accordance with the principle of international law that one state does not have jurisdiction over another. Section 5 makes an exception to that immunity in cases where the wrongful acts or omissions of another State, resulting in personal injuries etc, have the clear connection to this State that they take place within this jurisdiction. The exception does not extend to acts, such as those in the present case, which have no connection at all with this jurisdiction. Section 1 clearly pursues a legitimate aim. On the basis of the evidence and submissions put before me – necessarily limited by the fact that only one party has made submissions – I am not persuaded that the restriction imposed by section 5 is not proportionate to that legitimate aim.

I would add that my conclusion is in my view consistent with the approach taken (albeit in a somewhat different context) in one of the cases to which Mr Onifade properly invited my attention, AIC Ltd v Federal Government of Nigeria [2003] EWHC 1357 (QB).

I have paused before reaching my conclusion because of what I have been told about the decision of Master Kay in Sir Koloindi Aniso’s case. I have great respect for the views of Master Kay, and the fact that he was prepared to order registration of the Nigerian judgment in that case has given me pause for thought. However, the only information I have about that case is a copy of the order made (in standard form): I do not know what evidence or arguments were put before the court, and I do not know what factors influenced the Master’s decision.

In any event, it seems to me that the claimants have misunderstood a point which is of considerable practical importance. It is in my view quite impossible to read down the words of section 5 of the 1978 Act in the way for which the claimants contend. The wording of that section is entirely plain, and it is not possible to interpret it as meaning anything other than what it says. It is moreover part of the overall balance struck by Parliament in enacting the 1978 Act, and to interpret this section in the way for which the claimants contend would disturb that balance. If I were persuaded that the section was incompatible with article 6, this court would be able to make a declaration of incompatibility pursuant to section 4(2) of the Human Rights Act 1998. That, however, would not assist the claimants to achieve their aim of recovering the judgment debt, because by section 4(6)

“A declaration under this section (“a declaration of incompatibility”) –

(a)

does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

(b)

is not binding on the parties to the proceedings in which it is made”.

In Benkharbouche the court not only made a declaration of incompatibility but also declared that certain provisions of the 1978 Act (not material to this case) “in their application to those parts of the claims which fall within the scope of EU law, infringe Article 47 EU Charter”, and on that ground disapplied the provisions. But the requirement to disapply those provisions only arose in relation to those parts of the claims in that case which fell within the scope of EU law, not to those parts of the claim which were based on national law. In the present case, it does not seem to me that the provisions of a 1920 statute can be said to fall within the scope of EU law. That is an important distinction between Benkharbouche and this case.

Thus in the present case I conclude that the claimants could not in practice achieve their aim even if I had been persuaded that their argument as to incompatibility was correct in law. A section 4 declaration of incompatibility would not affect the validity of sections 1 and 5 of the 1978 Act; and in the circumstances of this case, those provisions cannot be disapplied on grounds of EU law.

There is a further important practical consideration. CPR 19.4A provides in part –

“(1)

The court may not make a declaration of incompatibility in accordance with section 4 of the Human Rights Act 1998 unless 21 days’ notice, or such other period of notice as the court directs, has been given to the Crown.

(2)

Where notice has been given to the Crown a Minister, or other person permitted by that Act, shall be joined as a party on giving notice to the court.”

In the present case, it does not appear that any such notice had been given. If it had been, it would in my view also have been necessary for this application to have been made on notice to the defendants.

For those reasons I am not prepared to make a declaration of incompatibility or to disapply the relevant provisions of the 1978 Act. It follows that I am not prepared to order registration of the Nigerian judgment as against the first and second defendants.

I will make the following order:

I record that the claimants’ solicitors, having been provided with a copy of this judgment in draft, have duly prepared a draft order in relation to the registration of the judgment against the third defendant. I make the order in those terms.