Delaware Business Litigation Report

Court of Chancery Permits Third Complaint Amendment In Nigerian Judgment-Enforcement Action

Harry A. Akande v. Transamerica Airlines, Inc., et al., C.A. No. 1039-N, 2006 WL 587846 (Del. Ch. Feb. 28, 2006). This is a motion to amend the Complaint under Court of Chancery Rules 15(a) and 15(aaa) for the third time before the Court of Chancery, involving a foreign judgment enforcement action. Plaintiff sought to withdraw his petition for receivership and add factual predicates to various claims he made. In an earlier hearing, the Court of Chancery permitted plaintiff's motion for discovery and converted the defendants' motion for dismissal upon plaintiff's motion to one of summary judgment. This is a motion before the Court of Chancery to amend plaintiff's Complaint for the third time. This action originally involved the enforcement of a 1978 Nigerian judgment relating to a Complaint wrongly instituted before a Nigerian State High Court in 1976. The Plaintiff prevailed in 1999 after a later appeal before the Nigerian Supreme Court which reversed the State High Court's ruling as jurisdictionally infirm and remanded the case to the Federal High Court of Nigeria for a trial de novo. In this 2005 filing, plaintiff-Akande sought to withdraw his Petition seeking receivership, add factual predicates for his fraudulent conveyance, conspiracy and "piercing the corporate veil" counts. Plaintiff further sought to add claims for fiduciary breaches and imposition of a constructive trust. The Court observed that while a receivership operated as an intermediate step to preserve assets for interested parties, a constructive trust sought to hold wrongly received benefits for its rightful owners. Thus, because a constructive trust was part of the final remedy, it would be available to the plaintiff only if he prevailed on the merits. The Court ruled that the plaintiff's amended Complaint for imposing a constructive trust had stated a claim for relief. The Court dismissed the civil conspiracy claim, but permitted amendment to the fraud-based "piercing the corporate veil" and "constructive trust" claims. The Court however, barred the "fraudulent conveyance" claim as untimely. The court also extensively discussed dissolution provisions under 8 Del. C. §§280-282, as it applied to defendants' motion to dismiss and the fiduciary duties breach claims. Authored by: Raj Srivatsan 302-888 6831 rsrivatsan@morrisjames.com Share