NABB Brothers Ltd v Lloyds Bank International (Guernsey) Ltd, Court of Appeal - Chancery Division, March 18, 2005, [2005] EWHC 405 (Ch)

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NABB Brothers Ltd v Lloyds Bank International (Guernsey) Ltd, Court of Appeal - Chancery Division, March 18, 2005, [2005] EWHC 405 (Ch)

Neutral Citation No: [2005] EWHC 405 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Case No:HC 04 C 0226

Royal Courts of Justice

Strand

London WC2A 2LL

Friday, March 18, 2005

Before

MR JUSTICE LAWRENCE COLLINS

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Between

NABB BROTHERS LIMITED

Claimant

and

LLOYDS BANK INTERNATIONAL (GUERNSEY) LIMITED

Defendant

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Mr Louis Flannery (of Howes Percival) for the Defendant/Applicant

Miss Rosana Bailey (instructed by Cedars & Co) for the Claimant/Respondent

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Judgment

Mr Justice Lawrence Collins:

I Parties and background

1. This is an application to set aside an order for service out of the jurisdiction in proceedings commenced by NABB Brothers Ltd (“the claimant”), which was incorporated in Ghana in 1969, and carries on business as an importer and exporter of rice, foodstuffs, biscuits, coffee and agricultural products, and is also involved in estate development.

2. In about 1959 Mr Kwabena Ntem, Mr Daniel Kwabena Brifo, Mr Wilson Kofi Brifo, and Mr Joseph Ernest Kwabena Ansah (“Mr Ansah”) formed a partnership known as NABB Brothers. The partnership was based in Kumasi in Ghana. In 1969 the partners took the view that the partnership should become an incorporated limited company, and NABB Brothers Ltd was incorporated in September 1969. Mr Ansah became the Managing Director, and remained so until his death in 2000.

3. Mr Kwabena Ntem, Mr Daniel Kwabena Brifo and Mr Wilson Kofi Brifo are brothers. Mr. Ansah was a cousin of the brothers. Mr Ansah died in London on July 6, 2000.

4. The defendant is a professional trustee. On May 16, 1997 it changed its name to Lloyds Private Banking (Guernsey) Ltd and on September 24, 1999 there was a further change of name to Lloyds TSB Offshore Private Banking (Guernsey) Ltd. Pursuant to the Migration of Companies Ordinance 1997 and Companies (Jersey) Law 1991, the defendant became a company under the Companies (Jersey) Law 1991, and ceased to be a company under Guernsey law with effect from January 1, 2004. Trusts administered by the defendant have been transferred to Hill Samuel Offshore Trust Company Ltd (“Hill Samuel”) under Jersey law. On March 5, 2004 the winding-up of the defendant commenced, when a special resolution of the defendant was passed pursuant to Article 146 of the Companies (Jersey) Law 1991. But it will not be dissolved pending the outcome of this claim, and it has been agreed that nothing turns in this action on the transfer. Some of the correspondence in this matter has been conducted by Hill Samuel, but for convenience I shall refer to it as correspondence by the defendant.

5. On April 20, 1994 Mr Ansah established a settlement called the Tubuoh Trust (“the Trust”), with the defendant as trustee. By clause 2 the settlement was established under Guernsey law, which was to be “the forum for the administration thereof”. The Trust was a discretionary trust, and the beneficiaries ...

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