Standard Chartered Bank LTD v Zungeru Power LTD (2014)
A bank's application to set aside the registration of a freezing order and an ancillary disclosure order of a Nigerian court under the Administration of Justice Act 1920 s.9 was granted as those orders could not be registered as they were not "judgments" as defined under s.12 of the Act.
The applicant bank (S) applied to set aside a deputy master's order that a Nigerian court's injunction should be registered as an English judgment.
The respondent (Z) had made a claim in the High Court in Nigeria in a dispute arising from a hydro-electric power project which was partly financed by the Nigerian and Chinese governments. Z was employed as a local company to play a part in making the bid for the project, setting it up and carrying out work in relation to it. Z's involvement ceased or diminished and other parties took over. Z contended that it had not been paid for its work on the project and that large sums remained outstanding from various defendants. Z applied to the Nigerian High Court for a Mareva-type injunction and an ancillary disclosure order. The injunction was intended to freeze all world-wide assets of a number of defendants up to £272 million said to be owed to Z. The order was made directly to any person on whom the Nigerian order was served including S and required disclosure of assets belonging to some of the defendants. S as a third party was required immediately to freeze any accounts which fell within the ambit of the injunction. Z's ex parte application to register the freezing order as a judgment in the United Kingdom under the Administration of Justice Act 1920 s.9 succeeded. S applied to have the registration set aside and as an alternative sought a declaration that it was not bound by the terms of the Nigerian order. S contended that it had no office or establishment in Nigeria therefore it was not a legal person within the Nigerian jurisdiction and did not carry on business there. S maintained that all the necessary attempts had been made to notify Z of the instant application.
S submitted that the registration of the Nigerian order had not been properly made and was null and void. S argued that s.9 did not apply as s.12, the interpretation section, made it clear that a foreign court's order for which registration was sought had to be a "judgment".
(1) Under s.12 the expression "judgment" meant any judgment or order given or made by a court in any civil proceedings, whereby any sum of money was made payable. It was absolutely plain that the Act concerned judgments for sums of money. There was nothing that gave rise to a different meaning of judgment in s.12. The Act also used the terminology of judgment creditor and judgment debtor. The nature of the Nigerian order could not possibly be described as a judgment whereby any sum of money was made payable. Z was seeking a large amount of money but might lose its claim so that the sum claimed would not be payable. At most, the money was frozen and not payable. The deputy master made his order when he did not have powers under the Act to do so. As the application was made ex parte the master's attention was not pointed to the Act and its definition section. (2) On a proper interpretation of the ancillary disclosure order it appeared to be directed to any person on whom the Nigerian order was served including S. The order could not be registered pursuant to s.9(2)(b) as the court accepted S's evidence that it was neither carrying on business nor ordinarily resident in Nigeria and had not agreed to submit to the Nigerian court's jurisdiction. S was unaware of the order in Nigeria, was not given notice and had not agreed to submit to the Nigerian court's jurisdiction. So far as the ancillary order was concerned the deputy master did not have jurisdiction. The proper order was to set aside the deputy master's order and as it had no effect, it was not necessary to make the declaration that S sought.
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14 Nov 2014
Queen's Bench Division
David Mumford QC