Onyeador v Miss World Ltd & Anor [2005] EWCA Civ 416

Case No A3/2004/1505[2005] EWCA Civ 416
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
His Honour Judge Robert Reid QC
HC02C03679
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 20 th April 2005
Before
LORD JUSTICE PETER GIBSONLORD JUSTICE WALLERSIR MARTIN NOURSE
Between
OnyeadorAppellantMiss World Ltd & anorRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Rupert D'Cruz (instructed by Fladgate Fielder) for AppellantMr Edmund Cullen (instructed by Lovells) for Respondent
JudgmentSir Martin Nourse :Introduction
[1]Reduced to its essentials, this is a dispute about sponsorship monies of US$1m paid to the first defendant, Miss World Ltd (“MWL”), by the Government of Rivers State of Nigeria (“RVSG”) at the end of October 2002. Shortly stated, the claim of the claimant, Angela Ngozi Onyeador, is that she had a proprietary interest in the whole or part of that sum, her claim being derived, by assignment or otherwise, from the second defendant, Allianz Nigeria Ltd (“Allianz”). In a judgment reserved after a six-day trial and delivered on 30th June 2004, His Honour Judge Robert Reid QC, sitting as a judge of the Chancery Division, dismissed the action as against MWL but entered judgment for Miss Onyeador against Allianz in the sum of £238,317.75 and for an account. The judge having said that it appeared likely that Allianz was insolvent, Miss Onyeador’s hopes of recovery are pinned on the success of this appeal against MWL.

Background

[2]Though they may, for the purposes of the appeal, be stated more briefly, the facts can be taken mainly from the judge’s judgment, many of them in his own words.[3]MWL is the operating company of the Miss World Organisation, which is principally known for organising the annual Miss World Beauty Pageant. Its managing director is Julia Morley, whose late husband, Eric, devised the idea in 1951. Their son, Stephen Douglas Morley, is a consultant with MWL. He was the other person on the MWL side principally concerned with the events involved in this case.[4]Miss Onyeador is a businesswoman based in Lagos, Nigeria. At the time of the events relevant to this judgment, she also had a house in London. She described herself to the judge as a public relations consultant and said that her passion was for African art. She has a business called “African Foundation for the Arts” and is also the principal organiser of “Save a Life Today” (“SALT”), which the judge said was intended to be registered as a charity in Nigeria. However, at all material times SALT was not a separate legal entity, which means that actions undertaken by Miss Onyeador in the name of SALT were in law undertaken by her personally.[5]At all material times Allianz was under the management of Fidelis Anosike. He described it to the judge as “carrying on business inter alia in the field of marketing”. It appears to have been incorporated in Nigeria in 1999.[6]The annual Miss World Pageant is made up of various events over the course of about a month and culminates in the selection of Miss World at the Miss World Final. This is the part of the pageant which attracts by far the most publicity and very substantial television coverage. The contestants are the holders of various national beauty titles awarded by organisations which have contractual arrangements with MWL to allow their title holders to compete in the Miss World contest. Although in earlier years Miss World pageants were all held in the United Kingdom, since about 1991 pageants have been held in various other countries as well.[7]The special events which now usually make up the pageants are(1) a World Charity Dinner (which takes place on arrival in the host country),(2) the Miss World Talent Show (held as a live event to test performing talent),(3) the World Family Party (a private party for the contestants and their families),(4) the Dress Rehearsal,(5) the Miss World Final and(6) the Coronation Ball, which follows the Final. In his witness statement Stephen Morley said that the Miss World Final is televised round the world, attracting a viewing figure estimated at approximately two billion people and enormous international media attention.[8]In 2001 the Miss World title was won by Miss Nigeria, Agbani Darego, the first black African winner of the contest. Following this, approaches were made to Mrs Morley and it was suggested that the 2002 pageant should take place in Nigeria. Silverbird Productions Ltd (“Silverbird”), which had run the Miss Nigeria pageant for a number of years and with which MWL had a longstanding relationship, then took up the matter. On 6th February 2002 Mrs Morley wrote to Mr Guy Murray Bruce of Silverbird, inviting that company to bid for the right to hold the 2002 Miss World pageant in Nigeria. Mr Murray Bruce responded with an offer of £2m for the right to hold the pageant. He envisaged that sponsorship would be available in substantial sums from the federal government, from RVSG and also from the state government of Cross Rivers State.

The contractual arrangements between MWL, Silverbird and Allianz

[9]On 17th June 2002 MWL and Silverbird entered into a written agreement (“the MWL/Silverbird agreement”) for the staging of the Miss World 2002 Finals in Nigeria. It provided, amongst other things, that all sponsorship and promotional deals should be approved in writing by MWL; that Silverbird would pay all costs relating to 28 different items (including all costs of the special events); and that MWL should be responsible for the organisation and costs of 13 different items, including television production and associated matters and the organisation and planning of the special events. It provided for a payment of £5m by Silverbird to MWL, of which $2m was to be paid on its signature and the remainder on 1st September 2002. Earlier, on 9th May 2002, the Governor of Rivers State had written to Mr Guy Murray Bruce of Silverbird, saying:
“Following the understanding reached between your organisation and Rivers State Government to host Miss World Pageant 2002, I wish to confirm my government’s commitment to contribute the equivalent of the sum $1,000, 000.00 (One Million USD) towards the hosting….. Meanwhile, as hosts, we promise you our full support to ensure the successful and memorable Pageant.”
Both that letter and the MWL/Silverbird agreement were concerned only with events in Nigeria. Neither of them made any reference to an event in London.[10]After the MWL/Silverbird agreement had been entered into Mr Anosike apparently managed to get Allianz appointed by Silverbird as “exclusive marketing company” to assist with the promotion of the pageant. The judge said that Mr Anosike was persistent in worming his way into the public perception that he was connected with the Miss World Organisation. He added that Mrs Morley disapproved of Mr Anosike and his appointment, but took the view that that was a matter for Silverbird which she could do nothing about. She was not aware of the details of the arrangement between Silverbird and Allianz.[11]In his witness statement Stephen Morley said that, in years when the pageant was held abroad, MWL also liked to put on a charity event in London before everyone flew out to the host country. That allowed MWL to use the event to raise money for the Variety Club, a charity which MWL held in very high regard. He said:
“[The charity event in London] forms a part of the pageant but only a small part and in terms of the exposure for the hosts it is dwarfed by the Miss World final and web-site. Since Miss World has been on the road it has often been in the same form as the World Charity Dinner with a further similar event taking place on arrival in the host country. An added benefit is that it generally allows all the contestants to be brought together in London and then fly out to the host country together, which can be preferable for logistical and safety reasons.”
[12]In June 2002 Silverbird was in negotiation with a Nigerian company for the main sponsorship of a gala dinner in London. By about the end of that month the negotiations had fallen through and the arrangements for the function were cancelled. However, in July Mrs Morley was introduced to Mr Anosike while she was in Lagos. Shortly afterwards, Mr Anosike came to London and visited Mrs Morley at her office. He told her that it had been agreed between himself and Silverbird that Allianz would organise a Miss World Charity Gala Dinner in London, and that he believed they would be able to raise a considerable amount of money. Mrs Morley was doubtful about this because of the short time scale involved, but was persuaded to allow Allianz to organise the London event because of the connection between Allianz and Silverbird and because Mr Anosike was confident he could market the event successfully in Nigeria.[13]Subsequently, it was agreed that the Gala Dinner would be held in the Great Ballroom of the Le Meridien Grosvenor House Hotel on 10th November 2002, before everyone set off for Nigeria on 11th November. Negotiations between Stephen Morley (with Mrs Morley’s guidance and approval) and Mr Anosike resulted in a document (described as a “draft agreement”), which was signed by Mr Anosike on behalf of Allianz on 18th July 2002. It was not signed on behalf of MWL. Moreover, it was expressed to be subject to MWL’s final agreement and board approval. On 17th September 2002 it was effectively replaced by an agreement (“the MWL/Allianz agreement”), which was signed on behalf of both MWL and Allianz and was no longer expressed to be subject to MWL’s final agreement or board approval. The MWL/Allianz agreement was in much the same form as the draft agreement; see further below.[14]The purpose of the draft agreement was to grant to Allianz the right to stage the Gala Dinner. It provided that all the costs were to be borne by Allianz, which was also required to make an advance payment to MWL on 15th August 2002 of a £100,000 donation to the Outward Bound Trust plus the costs of accommodation of the contestants amounting to £31,919 and a further advance payment on 10th October 2002 in respect of the hire of the venue and other staging costs amounting to £56,400. (These payments amounted in the aggregate to £188,319). Any additional costs were to be the responsibility of Allianz. MWL was to be responsible, first, for organising the appearance of the contestants and, secondly, for requesting the appearance at the event of a Royal Patron (although it was expressly provided that neither Mrs Morley nor MWL would be held responsible for the non-appearance of a Royal Patron). By clause 9 Allianz was required to make a £30,000 donation (after recovery of costs) to the Variety Club International Childrens Charity, such donation to be paid in the name of MWL. Clause 10 was in the following terms:
“All other profits relating to the event will then be paid to Allianz Nigeria Ltd for distribution to charity including The Childcare Trust. This will be after all costs are met. This includes all revenue from ticket sales.”
[15]Neither the £100,000 donation to the Outward Bound Trust nor any part of the costs of £31,919 were paid by 15th August. Stephen Morley then gave Mr Anosike two weeks to put up that money. Mr Anosike’s response was to suggest a bank guarantee, to which MWL had no objection provided that it was with a United Kingdom bank. Early in September MWL received a letter from Mr Andrew Cole of HSBC in Paddington, saying that Miss Onyeador had asked HSBC to issue a bank guarantee for an amount not exceeding £200,000 “to enable a Charity Gala Dinner to be arranged at Grosvenor House on 10th November 2002”. That was the first time that the Morleys had heard of Miss Onyeador. The letter indicated that HSBC was considering the request and hoped that the guarantee could be issued by 10th September. In fact it was completed and sent to MWL on that date. The judge said that MWL treated the agreement with Allianz for the holding of the dinner as being firm from the receipt of the guarantee on 11th September.[16]On 16th September MWL invoiced Allianz for £199,319, of which £131,919 was due immediately under the payment schedule in the draft agreement, with the balance being due on 10th October. A copy was sent to HSBC, which on 17th September informed Miss Onyeador that failure to pay the invoice would result in the guarantee being called on. On the same day Mrs Morley on behalf of MWL and Mr Anosike on behalf of Allianz signed the MWL/Allianz agreement. By that time the advance payments of £188,319 had been increased to the invoiced amount of £199,319 by a sum of £11,000 in respect of printing and design. The other principal difference between the MWL/Allianz agreement and the draft agreement of 18th July 2002 was that clause 9 was amended to provide that the donation of £30,000 to the Variety Club Childrens Charity should only be made “if a sufficient profit is made to cover the initial outlay of Allianz (i.e. £200,000 + £30,000)”. Clause 10 was amended by the deletion of the words “to charity”. That meant that Allianz was not bound to distribute profits relating to the event to charity. The significance of that amendment has not been explored in argument.

Miss Onyeador’s involvement

[17]Those having been the contractual arrangements between MWL, Silverbird and Allianz, it is necessary to go back in time in order to see how Miss Onyeador became involved in the project. Although it is not germane to her appeal against MWL, it is only fair to Miss Onyeador that the history of her involvement should be recounted.[18]Early in August 2002 Mr Anosike, to whom Miss Onyeador had been introduced some time earlier, approached her in Nigeria in regard to the Gala Dinner. Mr Anosike described Allianz to Miss Onyeador as MWL’s exclusive marketing agent and also told her that Allianz had “the sole rights to host and organise a Charity Gala Dinner which was to take place in London at the Grosvenor House Hotel on 10th November 2002”. He told her that his reason for contacting her was to ask her to organise an exhibition of African art at the dinner, which would be part of the promotional events for the Miss World pageant. Miss Onyeador considered this to be a good opportunity to exhibit African art in a western setting and so wanted to find out more. As a result, two or three days later Mr Anosike, accompanied by his solicitor, came to see her at her home. No documents were produced at the first meeting, but there were about half a dozen further meetings between the three of them during the next fortnight. After one or two meetings Miss Onyeador was, as the judge put it, “hooked”. She commissioned art works at a total cost of about £28,000 to be shown at the exhibition.[19]During one of these meetings, which the judge thought likely to have been in the week commencing 19th August 2002, after Miss Onyeador had commissioned the art works, Mr Anosike raised with her the question of the bank guarantee. He explained that for the Gala Dinner to take place “Miss World needed a reputable company or individual capable of providing a 30-day guarantee for the event of up to £200,000 on a UK bank”. He told her that neither he nor Allianz could do it because neither had any contact with a UK bank. He explained that if no guarantee was forthcoming the event would be called off. Miss Onyeador was extremely anxious that the event (and her chance to show African art in London) should not be called off. She telephoned a number of friends and contacts, but none of them would help.[20]At her next meeting with Mr Anosike, after what the judge called “various blandishments” about how the guarantee would never be called on and how Mr Anosike had sponsors on the line for the Gala Dinner, he asked her if she would be the guarantor. To this she agreed. The judge said that the upshot of Miss Onyeador’s evidence appeared to be that, on her agreeing to give the guarantee, the whole basis of her involvement changed. Beforehand, her involvement was simply that of mounting an art exhibition from which the profits would go to the African Foundation for the Arts as her personal profit; afterwards, she was going to receive a share of the profits of the Gala Dinner which she would pay over to SALT. She said in her witness statement that at subsequent meetings, after negotiation, it was agreed that SALT would receive 60% of the profits but that it would give half of its share of the profits back to Allianz. According to her evidence, Miss Onyeador did not regard the arrangement to repay part of the profit to Allianz as being a bribe or secret commission or in any other way improper.

The contractual arrangements between Allianz and Miss Onyeador

[21]On 5th September 2002 Mr Anosike on behalf of Allianz and Miss Onyeador on behalf of SALT entered into a memorandum of understanding (“the first Allianz/Onyeador agreement”). This took effect as an agreement between Allianz and Miss Onyeador personally; see para 4 above. Allianz was described as the exclusive marketing company of the Miss World 2002. There was a recital that Allianz (on behalf of the Miss World organisation) had decided to enter into a hosting relationship with SALT in relation to the hosting of the Gala Dinner. The first operative clause contained an appointment “hereby and on behalf of the Miss World Organisation” of SALT as the official charity company in consideration of the posting of a 30 day bank guarantee of the sum of £200,000. There were then provisions giving SALT the right to host and stage an African art exhibition at the Gala Dinner, with ancillary provisions relating to that exhibition. The sixth operative clause was in these terms:
“In consideration for providing the bank Guarantee SALT shall receive 60% of net profit accruable from the show 40% will be distributed to other Charities at the sole discretion of Allianz and Miss World Organisation. All payments will be domiciled via the bank nominated by SALT and approved by Allianz i.e. HSBC Bank….”
[22]Also on 5th September 2002, Mr Anosike on behalf of Allianz and Miss Onyeador on behalf of SALT entered into a further memorandum of understanding (“the side agreement”), which recited the appointment by the first Allianz/Onyeador agreement of SALT as the official charity company and the proposal to stage the African art exhibition. The operative provisions of the side agreement provided that SALT should pay Allianz 30% of the 60% it received as net profit accruable from the exhibition; that SALT should pay Allianz 50% of all the net proceeds accruable from the exhibition; and that the side agreement was a confidential document between SALT and Allianz only.[23]After 5th September there were discussions as to the bank account into which the receipts of the Gala Dinner should be paid. Mr Cole was unwilling to open an account in the name of either Mr Anosike or his wife, neither of whom had any credit record in the United Kingdom. Eventually it was decided that the bank account should be in Miss Onyeador’s name. However, Mr Cole wanted a clear link between her and the Gala Dinner. He suggested that the first Allianz/Onyeador agreement did not make matters clear because the references in it were to SALT and not Miss Onyeador. Draft amendments were prepared, submitted to Mr Cole for approval and then sent to Miss Onyeador’s solicitor in Nigeria. She had returned there on 14th September and did not come back to London until 25th October.[24]There were two versions of the new agreement, both of which the judge said were in much the same terms as the first Allianz/Onyeador agreement. It is unnecessary to go into the differences, except to say that in the sixth operative clause the name “Angela Onyeador” replaced the name of SALT in the two places in which it had appeared. For present purposes it is unnecessary to differentiate between the two versions of the new agreement and they can together be called, as the judge called them, “the second Allianz/Onyeador agreement”. Having seen the first version, Mr Cole was satisfied that he could properly open up another account in Miss Onyeador’s name, into which the receipts of the Gala Dinner could be paid. The account (“the designated account”) was opened on 6th October.[25]It was suggested in argument before the judge that the second Allianz/Onyeador agreement had somehow caused the side agreement to lapse. The judge rejected that submission and it has not been revived in this court.

The RVSG sponsorship monies and the Silverbird/RVSG agreement

[26]On 11th September Mrs Morley and Stephen Morley had meetings in Nigeria with Governor Odili of the Rivers State and the Attorney General, Mrs Cookey Gam. The object of the meetings was to conclude the arrangements for the contribution of the $1m which the Governor had promised to Silverbird in May 2002; see para 9 above. As between Silverbird and MWL the intention was that these monies were to be used to discharge part of what was owed by Silverbird to MWL under the MWL/Silverbird agreement. The judge said that at the meetings it became obvious that Mr Anosike had been trying to negotiate on behalf of Silverbird and had promised various benefits to RVSG in respect of the Gala Dinner. He added that that led to misunderstandings and recriminations between Mrs Morley and Mr Anosike.[27]Mrs Morley and Stephen Morley having returned to London on 13th September, further discussions took place by telephone. They resulted in an agreement made on 17th October 2002 and governed by the law of Nigeria between Silverbird and RVSG (“the Silverbird/RVSG agreement”). The judge said that the result of Mr Anosike’s intervention was that Silverbird and MWL were compelled to concede to RVSG the benefits in relation to the Gala Dinner which, without authority, Mr Anosike had promised them.[28]The Silverbird/RVSG agreement recited, amongst other things, that Silverbird was the accredited agent of MWL and that it executed the agreement for itself and on behalf of MWL (which would be bound by the terms of the agreement) and, further, that RVSG wished to maximise the attendant media exposure guaranteed by the pageant and to utilise the investment opportunities “to showcase the State’s potentials for tourism and investment to a world-wide audience of an estimated 2 (two) billion viewers”. By article 1 Silverbird granted to RVSG the status and rights of an exclusive sponsor of the Miss World 2002 Beauty Pageant “Ethnic Fashion Show”. By article 3 it was provided that, in consideration of the grant by Silverbird to RVSG of sponsorship, RVSG should pay $1m subject to three conditions precedent, of which the first was that RVSG should be the lead sponsor of the Gala Dinner in London. Article 4 headed “Benefits to RVSG” provided that in consideration of the sum of $1m RVSG should be entitled to 15 separate benefits, of which seven related to the Gala Dinner and eight to various aspects of the pageant in Nigeria. By article 5 headed “RVSG’s obligation” it was provided that RVSG should, throughout the period of their stay in River State, provide the contestants and their contingent with local transportation and tours, accommodation, health facilities and adequate security arrangements; they would also provide the venue for the Fashion Show and the stage for the event. By article 6 headed “Silverbird’s Obligation” it was provided that Silverbird should discharge nine separate obligations to RVSG. (It will be necessary to return to articles 4, 5 and 6 in due course.) By article 8.3 Silverbird, on behalf of MWL, guaranteed that MWL would ensure that Rivers State would fully participate in the Gala Dinner in London and also all the benefits as stipulated in article 4, failing which MWL and Silverbird would be liable to refund to RVSG $250,000 for the breach of any of those terms. By article 8.4 it was provided that Silverbird should be similarly liable to refund to RVSG the sum of $250,000 in the event of MWL and Silverbird failing to bring the Miss World 2002 contestants and their contingent to Rivers State.[29]The $1m (less bank charges) was paid by RVSG to MWL via Silverbird, thereby discharging a substantial part of Silverbird’s liability to MWL under the MWL/Silverbird agreement. The money reached MWL’s account at the Royal Bank of Scotland in London on 31st October 2002.

Events in London prior to 10th November 2002

[30]Before Miss Onyeador returned to Nigeria on 14th September she gave Mr Anosike money to set up a London sales office to market the Gala Dinner. She said that she gave him £28,000 for that purpose. The judge found that, whether she handed over that or some lesser amount, it was certainly a substantial amount. Mr Anosike set up a sales office to deal with tickets sales, but it appears that he was not very successful in selling tickets. What is clear is that no money was being paid into the designated account. That was causing Miss Onyeader great concern. The judge found that MWL’s involvement during this period was limited more or less to what was required by its obligations under the MWL/Allianz agreement. Allianz having defaulted on payment of the sums due under that agreement, on 10th October MWL called on HSBC to pay under the guarantee; on 16th October payment was duly made.[31]By mid October Miss Onyeador was becoming very anxious. There was little, if any, sign of any money coming into the designated account. On 26th October she arrived back in England, her relationship with Mr Anosike being by then very strained. On 1st November Mr Anosike, having become aware that the RVSG sponsorship monies of $1m had been paid to MWL, instructed solicitors in Nigeria to write to the Rivers State Commissioner for Tourism demanding $250,000 in order to allow RSVG to enjoy the benefits at the Gala Dinner for which it had already contracted under the Silverbird/RVSG agreement.[32]At about the same time there was a meeting between Mrs Morley, Stephen Morley and Mr Anosike. The latter suggested that a substantial part of the RSVG sponsorship moneys should be used for the Gala Dinner. Mrs Morley refused. Mr Anosike asserted that MWL had no choice. He said that he had various pay-offs to make to prominent Nigerians: he showed Stephen Morley a list containing five names. He said he needed $250,000 for the pay-offs and another $250,000 to help sponsor the Gala Dinner. As the judge put it, the Morleys “would have no truck with” Mr Anosike’s suggestions.[33]After that there were various comings and goings between MWL, Allianz and Miss Onyeador, into which it is unnecessary to go. On 4th November Miss Onyeador threatened to apply for an injunction to stop the Gala Dinner taking place, but that threat was not pursued.

The Silverbird/Allianz Agreement

[34]It appears that Mr Anosike, having failed in his attempt to obtain part of the RVSG sponsorship monies from MWL, entered into negotiations with Silverbird. The result was that on 8th November 2002 Silverbird and Allianz entered into an agreement governed by the law of Nigeria (“the Silverbird/Allianz agreement”), which was expressed to be made in consideration of the RVSG sponsorship monies and the bank guarantee of Miss Onyeador in the sum of £200,000. Silverbird and Allianz respectively acknowledged(1) that Allianz should have primary responsibility and control over the distribution, exhibition, advertising and other exploitation of the Gala Dinner in all media throughout Nigeria subject to the terms and conditions under the MWL/Silverbird agreement and(2) that Silverbird should have the like primary responsibility and control over the exploitation of the Miss World Coronation Ball in Nigeria in all media throughout Nigeria subject to the like terms and conditions. By clause 3.1 Silverbird agreed to indemnify Allianz, from the net proceeds of the Miss World Coronation Ball, against any costs incurred by Allianz as a direct result of any claim arising from Miss Onyeador’s £200,000 bank guarantee.[35]It is evident that the Silverbird/Allianz agreement was beneficial to Allianz, both for its acknowledgement that Allianz would have primary responsibility and control over the exploitation of the Gala Dinner in all media throughout Nigeria and for the indemnity contained in clause 3.1. Having referred to its terms,

the judge observed:

“Plainly, as a result of the Allianz/Silverbird Agreement, Allianz was content to accept that it had no entitlement to the Rivers State Money.”

The Gala Dinner and after

[36]On 10th November the Gala Dinner took place, as planned. The First Lady of Nigeria was present, but no member of the British royal family attended. The judge said that the event was reasonably successful in terms of the numbers attending: some 70% of the available seats were occupied. However, Miss Onyeador’s problems continued. Mr Cole wrote to her notifying her that, if she did not reimburse HSBC for what it had paid out under its guarantee, the security put up by her would be realised. Some of it was indeed subsequently realised.[37]The only funds in the hands of MWL in respect of which Miss Onyeador is now able to make a claim against MWL are the RVSG sponsorship monies. Her appeal has been restricted to those monies. That means that it is unnecessary to go into any of the other claims arising from the Gala Dinner, in particular Miss Onyeador’s various claims against Allianz. On 3rd December 2002 Miss Onyeador’s solicitors sent Mrs Morley a letter before action, in which it was claimed that MWL was liable to account to Miss Onyeador for all monies received by MWL in relation to the Gala Dinner. The action was commenced on 9th December 2002.

Miss Onyeador’s principal claims against MWL

[38]Shortly stated, Miss Onyeador’s principal claims against MWL were the following:(1) a claim that Allianz entered into the first and second Allianz/Onyeador agreements as the duly authorised agent of MWL, and that MWL was accordingly liable to her as principal under the second of those agreements;(2) in the alternative, a claim as assignee of 60% of the “net profit accruable from the show” under the sixth operative clause of the second Allianz/Onyeador agreement (see paras 21 and 24 above);(3) in the further alternative, a claim to 60% of the net profit by way of subrogation, either contractual or by operation of law; and(4) in the second further alternative, a claim to 60% of the net profit by way of constructive trust.

The proceedings below

[39]The trial before Judge Reid took place between 7th and 14th May 2004. Both Miss Onyeador and MWL were represented by counsel and solicitors. Allianz was not represented. Miss Onyeador, her London financial adviser and Mr Cole gave evidence, and there was a witness statement from Miss Onyeador’s Nigerian lawyer. On the other side, Mrs Morley and Stephen Morley gave evidence and there were witness statements from Mr Michael Macario FCA (the other director of MWL), Mr Guy Murray Bruce of Silverbird and a security consultant. Mr Anosike did not give evidence, although an affidavit sworn by him at an early stage of the proceedings was in the trial bundles.[40]The judge rejected all four of Miss Onyeador’s principal claims. He also rejected two subsidiary claims to which reference is unnecessary. He ordered Miss Onyeador to pay MWL’s costs.

Miss Onyeador’s case in this court

[41]In this court Miss Onyeador has not pursued her claim based on agency nor either of her subsidiary claims. Her claims based on assignment, subrogation (in both its limbs) and constructive trust have been maintained. Mr Cullen, for MWL, has submitted that there is in reality no difference between any of those three claims; if Miss Onyeador cannot succeed on assignment, she cannot succeed either on subrogation or constructive trust.[42]Before those claims are considered it is necessary to ask a preliminary question: Were the RVSG sponsorship monies “profits relating to the event” within clause 10 of the MWL/Allianz agreement and “net profit accruable from the show” within the sixth operative clause of the second Allianz/Onyeador agreement? If they were not, there was nothing in respect of which Miss Onyeador’s claims based on assignment, subrogation or constructive trust could take effect and her appeal would necessarily fail.

Discussion

[43]The preliminary question must be considered by stages. Three points appear to be clear. First, purely as a matter of language, “profits relating to or accruable from an event” are capable of including monies paid by way of sponsorship of the event. Secondly, the MWL/Allianz agreement, by conferring on Allianz the right to stage the Gala Dinner and take the balance of the profits under clause 10, granted it a contractual right as against MWL to retain the profits or to recover the amount of any of them that came into the hands of MWL. Thirdly, the second Allianz/Onyeador agreement, by providing that Miss Onyeador should receive 60% of the net profit under the sixth operative clause, granted her, irrespective of any proprietary interest she may have acquired, a contractual right to recover the amount of those profits from Allianz.[44]The next stage is the crucial one. On the facts, can the RVSG sponsorship monies fairly be treated as having been “profits relating to or accruable from” the Gala Dinner? There can be no doubt that in May 2002, when they were first promised by RVSG to Silverbird, that question would have been answered in the negative; see para 9 above. So Miss Onyeador must establish that the effect of the Silverbird/RVSG agreement was to transform the moneys, or part of them, into profits relating to or accruable from the Gala Dinner within the comprehension of the MWL/Allianz agreement and the second Allianz/Onyeador agreement. In order to establish that they were so comprehended Miss Onyeador must establish that the parties to the Silverbird/RVSG agreement (Silverbird for itself and as agent of MWL and RVSG – not Allianz) intended that they should be. Admittedly, the matter is unlikely to have been of any concern to RVSG. But it would have been of the greatest concern to Silverbird and MWL, whose intention was that the sponsorship monies should be used to discharge part of what was owed by Silverbird to MWL under the MWL/Silverbird agreement. Accordingly, it is against all reason to suppose that Silverbird and MWL can have intended that any part of the sponsorship monies should be treated as profits relating to or accruable from the Gala Dinner for the purposes of the MWL/Allianz agreement and the second Allianz/Onyeador agreement. It was one thing for MWL to be compelled to concede to RVSG the benefits in relation to the Gala Dinner which, without authority, Mr Anosike had promised them. It would be quite another thing for them to have intended that Allianz should benefit from Mr Anosike’s intervention.[45]Moreover, when all the provisions of the Silverbird/RVSG agreement (see para 28 above) are considered, it has not been satisfactorily shown that any part of the sponsorship monies can fairly be treated as having been attributable to the benefits derived by RVSG from the Gala Dinner. Mr Cullen submitted, correctly, that the eight benefits in article 4 which related to various aspects of the pageant in Nigeria were of much greater significance and value to RVSG than the seven which related to the Gala Dinner. He also relied on articles 5 and 6, which imposed substantial obligations on RVSG, almost entirely in relation to the pageant in Nigeria. Mr D’ Cruz, for Miss Onyeador, argued that the probability of her being able to obtain only a small share of the sponsorship monies was no justification for giving her no share at all. If such a probability had been shown, that would have been a good point. However, it is doubtful whether, if an account, necessarily elaborate and expensive, were to be taken, Miss Onyeador would be able to demonstrate that any share of the sponsorship monies ought to be treated as profits relating to or accruable from the Gala Dinner. Since it is unnecessary to express a concluded view on this aspect of the matter, it is preferable not to do so.[46]The reality of the position, as Mr Cullen submitted, was that between 31st October and 8th November 2002 Allianz had a negotiating position in regard to the sponsorship monies. Mr Anosike sought, unsuccessfully, to exploit it by negotiating with MWL. He then sought, with partial success, to exploit it by negotiating with Silverbird. The Silverbird/Allianz agreement entailed a recognition by Allianz that it had no claim to any part of the sponsorship monies as against MWL. That was the view of the judge (see para 35 above). He also said:
“As a result of Mr Anosike’s inept or disingenuous conduct of negotiations, Silverbird and MWL found themselves committed to giving Rivers State a number of benefits in connection with the Gala Dinner in order to secure the sponsorship money which was then used to pay a substantial part of the fee due from Silverbird to MWL. As between Silverbird and MWL on the one hand and Allianz on the other, this left Silverbird and MWL more or less at the mercy of Allianz as to the price which Allianz could exact to permit those benefits to be delivered. There is no basis for asserting that Allianz had any right to any ascertained or unascertained part of the sponsorship money. In the event Allianz sold out its position by entering into the agreement of 8th November with Silverbird.”
[47]If Allianz had no right to any ascertained or unascertained part of the sponsorship monies, neither did Miss Onyeador. She could only have had a claim against MWL if Allianz had a prior claim against MWL. Mr Anosike’s conduct in relation to the sponsorship monies may well have given her an additional claim against Allianz. But she has no claim against MWL, however badly (as appears to have been the case) she was treated by Mr Anosike.

Conclusion

[48]The RVSG sponsorship monies cannot, on the facts, be treated as having been profits relating to or accruable from the Gala Dinner. That means that the preliminary question must be determined in favour of MWL and Miss Onyeador’s appeal dismissed. It thus becomes unnecessary to consider the points raised in a respondent’s notice put in by MWL.

Lord Justice Waller:

[49]I agree.

Lord Justice Peter Gibson:

[50]I also agree.