#5239 - Mbasogo V. Logo - Conflict of Laws BCL

Mbasogo v. Logo

Facts

In 2005 the African state of Equatorial Guinea had a population of only 521,000, but it was (and is) rich in oil and gas. Its capital, Malabo, is situated on the island of Bioko, which lies off the coast of Cameroon, approximately 160 kilometres from the mainland coast of Equatorial Guinea. The first claimant is the President of the Republic of Equatorial Guinea.

The appeal arises out of an alleged conspiracy by the defendants to overthrow the government by means of a private coup, to seize control of the state and its valuable assets, to kill or injure the first claimant and to install the sixth defendant, who is an Equato-Guinean living in Spain, as the new President. The particulars of claim allege that the conspiracy took place between March 2003 and March 2004 in England and elsewhere. It is alleged that the attack was to comprise an assault force of some 70 experienced former special forces soldiers who had served in South Africa. Further, an advanced group of 20, including experienced former South African special forces soldiers, had gone to Malabo to gain intelligence and to prepare and participate in the attack (see para 8 of the re-amended particulars of claim).

The consequences of the attempted coup are fundamental to the allegations made in the amended particulars of claim. It is alleged that the first claimant was caused great apprehension and fear, particularly for his own and his family's safety. He believed that both he and his family were likely to be injured or killed in the course of the attack. Moreover, it is alleged that the defendants' actions caused what is described as “mayhem” within the republic. It is alleged that the country is dependent on assistance from abroad to help it to develop its natural resources and infrastructure. Reports of the failed coup resulted, so it is contended, in a serious brake being put on such assistance, with a consequential serious impact on the country's infrastructure.

Question

Are the claims justiciable or should the court decline to entertain them because they amount to an exercise of sovereign power by Equatorial Guinea within the jurisdiction of the English courts?

Holding

Emperor of Austria v. Day and Kossuth (1861) 3 De GF & J 217

The defendants had printed banknotes in London. Louis Kossuth intended to introduce the notes into Hungary after he had overthrown the Emperor of Austria by revolution. The Emperor obtained an injunction restraining the defendants from continuing to manufacture the notes. The injunction was upheld on appeal. One of the defences advanced was that the injunction should be refused because the proceedings were brought to protect the Emperor's political power and prerogatives. But the court upheld the injunction on the third ground on which the bill was based. Lord Campbell LC was of the opinion that:

“if the acts meditated by the defendants and forbidden by this injunction were actually done, a pecuniary loss would be sustained by the plaintiff and by all his subjects, holders of the existing currency”

Although the actual decision in the Emperor of Austria case has given rise to criticism and puzzlement, it is an authority which recognises the fundamental distinction between an action which amounts to the exercise of sovereign authority in the territory of another and an action brought to protect property rights, such as might be brought by an individual. It is this distinction which founded the dismissal of the first two grounds of the bill (which related to the protection of Hungary from revolution), but the upholding of the third ground (which the court viewed as merely relating to the protection of property). It is moreover a distinction supported by Dr Mann and it is, in our view, a key distinction on the facts of the instant case.

Other Public Laws – “assertion of sovereignty”/”sovereign character” test

The importance of the speech of Lord Keith in Government of India v Taylor [1955] AC 491 and the judgment of Lord Denning MR in the Ortiz case [1984] AC 1 is that they both sought to explain the rationale for the well established rule that the courts will not enforce the penal and revenue laws of another country. In short, it is that the courts will not enforce or otherwise lend their aid to the assertion of sovereign authority by one state in the territory of another. The assertion of such authority may take different forms. Claims to enforce penal or revenue laws are good examples of acts done by a sovereign by virtue of his sovereign authority (“jure imperii”). In each case, it is necessary to see whether the relevant act is of a sovereign character. Penal and revenue laws are assumed to be of a sovereign character.

The critical question is whether in bringing a claim, a claimant is doing an act which is of a sovereign character or which is done by virtue of sovereign authority; and whether the claim involves the exercise or assertion of a sovereign right. If so, then the court will not determine or enforce the claim. On the other hand, if in bringing the claim the claimant is not doing an act which is of a sovereign character or by virtue of sovereign authority and the claim does not involve the exercise or assertion of a sovereign right and the claim does not seek to vindicate a sovereign act or acts, then the court will both determine and enforce it.

Application to facts

We turn, therefore, to the critical question that we have identified at para 50 above. Mr Shepherd submits that in substance, by bringing these claims, the claimants are exercising sovereign authority, namely (as the Privy Council put it) “the preservation of the security of the state and its ruler”.

Obviously, the mere fact that the claimants are the President and the Republic of Equatorial Guinea is not sufficient to make these claims non-justiciable. If the alleged coup had been successful and damage had been caused to buildings or other property owned by the claimants, a claim in tort to recover damages would have been justiciable in the courts of this country. In bringing such a claim, the claimants would not have been exercising or asserting sovereign authority or seeking relief to vindicate an act which may only be done by a sovereign in the capacity of sovereign. They would have been exercising the right of any person to bring private law proceedings to recover damages for loss suffered as a result of a civil wrong. Such a claim would have arisen solely from the fact that the claimants were owners of property that had been damaged by torts committed by the defendants. The claim would be a “patrimonial claim” (to use the language of Lord Keith in Government of India v Taylor [1955] AC 491, 511).

It is necessary to look at all the circumstances to see whether in substance the losses which are the subject of the claim have been suffered by virtue of an exercise of sovereign authority. If the losses have in truth been suffered as a result of the claimants' ownership of property, then the fact that the claimants are a foreign state and its president would not render their claims non-justiciable.

In our judgment, the claims that are pleaded in the present case are not founded on the claimants' property interests. The alleged losses arose as a result of...