Published: Wed, 07 Mar 2018
Mbasogo v Logo Ltd (No. 1)  EWHC 2034
Assault, capability and possibility to immediately carry out threat
The action was launched by the President of the Republic of Equatorial Guinea and related to an alleged coup d’etat against the President and his Government. It was alleged in the case that between March 2003 and March 2004, the Defendants engaged in a conspiracy to carry out such a coup and that part of this activity was carried out in England. Specifically, the coup was to comprise an armed assault by 70 former Special Forces soldiers who had significant combat experience. This was in addition to a force of 20 soldiers which would infiltrate the country and gather intelligence before the main attack commences. At least some of the soldiers involved would be former South African military soldiers. The coup was to be well supplied with military material and had as its aim, in addition to overthrow the government, the seizure of the valuable assets of the state and also to harm or ultimately kill the President (the Claimant), so that he may be replaced by another. The coup was a complete failure, as the assault force was arrested in Zimbabwe, along with their equipment, before the coup could even begin. In addition to the assault force, further arrests were made in Zimbabwe and Equatorial Guinea of persons allegedly involved with assisting and facilitating the coup. Some were convicted under laws relating to procuring weapons, while most of the mercenaries were convicted for immigration offences which did not carry penalties of similar calibre. Others were convicted in South Africa under the Regulation of Foreign Military Assistance Act 1998 [No. 15 of 1998]. The claim alleged that the coup caused “mayhem” in Equatorial Guinea, had a significant negative impact on vital foreign assistance and caused ‘great apprehension and fear’ in the claimant, who had feared that him and his family would be harmed or even killed.
The issues in this case were several and complex, however besides the issue of whether the claims are justiciable, the court considered whether an overt act which caused another to apprehend that immediate and unlawful force would be inflicted upon him (as per Collins v Wilcock  1 WLR 1172, 1177B), must be combined with the Defendant having the capacity to make good on the threat immediately, for a ruling of assault to be made.
It was held, on the point of the claims for assault, that as the advance group which had already made its way to Equatorial Guinea was not armed and there was no indication that they were capable to carry out any attack, an allegation of assault must fail. The allegation must also fail because it requires an overt act, which was not present in this case, since all that was present was an advanced unarmed group and the presence of a group of mercenaries (albeit armed) in another country. Neither could constitute an overt act which could cause the claimant to fear immediate violence. The case is therefore authority both for the fact that the tort of assault requires an overt act which will cause apprehension of immediate violence in the claimant but also that impossibility to carry out the threat is destructive of a claim of assault.
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