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Barros Mattos V. Mac Daniels Notes

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BARROS MATTOS V. MACDANIELS FACTS The litigation arises out of a large fraud perpetrated on a Brazilian bank, Banco Noroeste SA (the bank) in the mid-1990s. The perpetrators of the fraud were a group of individuals based largely in Nigeria. One of, or the leading light in that dishonest activity was a Chief Anajemba. He has since been murdered. The total loss inflicted on the bank was $US242[?]5m, of which some $US190[?]3m was transferred from the bank to third parties by means of electronic SWIFT transfers. There are four defendants to this application. One is Chief Ezugo Dan Nwandu. The other three are companies of which he is the moving spirit. Those companies are an English company called MacDaniels Ltd (MacDaniels England), General Securities and Finance Co Ltd (General) and another company called MacDaniels Ltd which is incorporated in Nigeria (MacDaniels Nigeria). As Chief Nwandu explains in evidence he has filed, MacDaniels England was incorporated for the purpose of acting as an English 'adjunct' or nominee for General. Mr Michael Briggs QC who, with Miss Kathryn Purkis, appears for the claimants argues that, in substance, MacDaniels England is little more than a post box for General. There is no dispute that that money is to be treated as stolen from the bank. The money was transferred to these defendants with a view to it being changed into Nigerian currency (naira). In fact the money was received by MacDaniels England and was then transferred as to $US4,228,680[?]90 to General and as to
$US1,720,032 to MacDaniels Nigeria and then distributed to Chief Anajemba's instructions. The claim against the defendant companies is based on the allegation that they retained the proceeds of the fraud perpetrated on the Brazilian bank. The defendant companies argue that they are entitled to a change of position defence because they paid over the money to the Chief. The problem with this defence is however that the payment over to the chief was in contravention of Nigerian law. HOLDING The second basis upon which the victim may lose his right to force the recipient to return the value of the stolen money is where, in the light of his belief that the money was not tainted, the recipient changes his position to his detriment. That such a defence to a restitutionary claim exists was confirmed in the Lipkin Gorman case (see [1992] 4 All ER 512 at 532, [1991] 2 AC 548 at 578 per

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