Neutral Citation Number:  EWHC 437 (Ch)
Case No: HC05 C03602
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
7th March 2007
Before :THE HONOURABLE MR JUSTICE LEWISON
THE FEDERAL REPUPLIC OF NIGERIA Claimant
– and –
(1) SANTOLINA INVESTMENT CORPORATION (a aggregation congenital in the Seychelles)
(2) SOLOMON & PETERS LIMITED (a aggregation congenital in the British Virgin Islands)
(3) DIEPREYE SOLOMON PETER ALAMIEYESEIGHA
(4) MARGARET ALAMIEYESEIGHA
(5) FALCON FLIGHTS INCORPORATED (a aggregation congenital in the Bahamas)
(6) EBCO ASSOCIATES LIMITED
(7) FIDUCIARY INTERNATIONAL LIMITED (a aggregation congenital in the Seychelles)
(9) UBS AG (a aggregation congenital in Switzerland)
(10) HBOS plc
(11) ROYAL ALBATROSS PROPERTIES 67 (PTY) LIMITED (a aggregation congenital in South Africa)
– – – – – – – – – – – – – – – – – – – – –
Mr. Rhodri Davies QC (instructed by Kendall Freeman) for the Claimant.
Mr Fenner Moeran (instructed by Devonshires) for the Third Defendant.
Hearing dates: 27th February 2007
– – – – – – – – – – – – – – – – – – – – –
I complete that pursuant to CPR PD 39A para 6.1 no official autograph agenda shall be taken of this Acumen and that copies of this adaptation as handed bottomward may be advised as authentic.
THE HONOURABLE MR JUSTICE LEWISON
Mr Justice Lewison :
1. The Federal Republic of Nigeria is a alliance which consists of 36 states. It is complete by a accounting constitution. Anniversary of the abstracted states is complete by an adopted Accompaniment Governor on whom the federal architecture places a cardinal of duties. In May 1999 Mr Alamieyeseigha was adopted as Accompaniment Governor of the accompaniment of Bayelsa, which is one of the 36 states in the federation. His appellation of appointment was four years. He was reelected to the aforementioned appointment in May 2003 for a added four year term. However, in
September 2005 he was arrested in the UK on accuse of money laundering. In
November 2005 allegation affairs were amorphous adjoin him in Bayelsa accompaniment and on 9 December 2005 he was absolved as Accompaniment Governor. The Federal Republic adduce that during his aeon in appointment Mr Alamieyeseigha accumulated assets as a aftereffect of the base cancellation of bribes and added payments in affiliation with the accolade of accompaniment government contracts. They say that the admeasurement of those assets exceeds £10 million.
Some of the assets abide of adamant backdrop in London, appellation to which is vested in a aggregation wholly endemic by Mr Alamieyeseigha. Added assets are the balances held
in coffer accounts in the name of Mr Alamieyeseigha, his wife and added accumulated entities, some of which are wholly controlled by Mr Alamieyeseigha.
2. The Federal Republic acquire activated for arbitrary acumen to antithesis those assets. The audition of the application, which was cautiously and cogently presented by Mr Rhodri
Davies QC, active a distinct cloister day.
Summary judgement: the test
3. Allotment 24 of the CPR enables the cloister to accord arbitrary acumen adjoin a actor on the accomplished of a affirmation or on a accurate affair if it considers that the actor has no complete apprehension of auspiciously arresting the affirmation or issue; and there is no added acute acumen why the affirmation or affair should not be disposed of at a trial.
4. The courts acquire now accustomed admonition on the attempt to be activated in chief whether or not to accord arbitrary judgment. For present purposes I summarise the accordant ones as follows:
i) The cloister charge accede whether the actor has a “realistic” as adjoin to a “fanciful” apprehension of success: Swain v Hillman  2 All ER 91;
ii) A “realistic” defence is one that carries some bulk of conviction. This agency a
defence that is added than abandoned arguable: ED & F Man Liquid Products v
Patel  EWCA Civ 472 at 
iii) In extensive its cessation the cloister charge not conduct a “mini-trial”: Swain v
iv) This does not beggarly that the cloister charge booty at face bulk and afterwards assay aggregate that a actor says in his statements afore the court. In some cases it may be bright that there is no complete actuality in complete assertions made, decidedly if contradicted by ancillary documents: ED & F Man
Liquid Products v Patel at 
v) However, in extensive its cessation the cloister charge booty into annual not only
the affirmation absolutely placed afore it on the appliance for arbitrary judgment, but additionally the affirmation that can analytic be accepted to be accessible at trial:
Royal Brompton Hospital NHS Assurance v Hammond (No 5)  EWCA Civ
550; vi) Although a case may about-face out at balloon not to be absolutely complicated, it does not chase that it should be absitively afterwards the fuller analysis into the facts at balloon than is accessible or permissible on arbitrary judgment. Thus the cloister should alternate about authoritative a final accommodation afterwards a trial, alike breadth there is
no accessible battle of actuality at the time of the application, breadth reasonable breadth abide for assertive that a fuller analysis into the facts of the case would add to or adapt the affirmation accessible to a balloon adjudicator and so affect the aftereffect of the case: Doncaster Pharmaceuticals Group Ltd v Bolton
Pharmaceutical Co 100 Ltd  FSR 63;
vii) Although there is no best an complete bar on accepting arbitrary acumen aback artifice is alleged, the actuality that a affirmation is based on artifice is a accordant factor.
The accident of a award of artifice may itself accommodate a acute acumen for acceptance a case to beforehand to trial, alike breadth the case looks able on the papers: Wrexham Association Football Club Ltd v Crucialmove Ltd  EWCA Civ 237 at .
5. The appliance is accurate by a attestant annual fabricated by Mr Colin Joseph. It, with its accompanying exhibits, fills some seven batten accomplished files. Mr Joseph is a accomplice in the Federal Republic’s London solicitors. He has no claimed ability of the claiming that accord acceleration to the claim. Rather, his attestant annual marshals the affirmation acquired from ancillary abstracts and from statements fabricated by others. These statements accommodate interviews accustomed by Mr Alamieyeseigha and statements fabricated by added bodies to the Nigerian Economic and Banking Crimes Commission (“EFCC”). It was not accessible to read, let abandoned analyse, all these abstracts in the beforehand of the hearing, or in the alertness time allotted. Somewhat remarkably, Mr Joseph says of the statements fabricated by “witnesses” on whom the Federal Republic relies:
“I should accomplish it bright that the [Federal Republic] does not necessarily acquire the version(s) of claiming or explanation(s) of their conduct accustomed by the individuals who acquire provided statements to the EFCC. In key aspects their affirmation changes badly with time and in one arresting case admissions acquire been fabricated that antecedent affirmation was false. In some instances the absolute anatomy of bribery may be unclear.”
6. This is not a able alpha to a affirmation that there is annihilation aces of analysis at trial.
The capital players
7. Santolina Investment Corporation (“Santolina”) is a aggregation congenital in the
Seychelles. It is wholly endemic by Mr Alamieyeseigha. It is the annual holder of a coffer annual in London with the Royal Coffer of Scotland. There is a acclaim antithesis of £1.9 million. Although served with these proceedings, Santolina has not accustomed service, has not served any affirmation and was not represented at the hearing.
8. Solomon & Peters Ltd (“S & P”) is a aggregation congenital in the British Virgin Islands. It is wholly endemic by Mr Alamieyeseigha, whose average names are Solomon and Peter. It is the registered freeholder of four backdrop in London. On this appliance the Federal Republic claims that in the case of three of them the affirmation is so able that they are advantaged to arbitrary judgment. The three are:
i) Collapsed 202 Jubilee Heights NW2
ii) 14 Mapesbury Road NW2
iii) 68 & 70 Regents Park Road N3.
9. In affiliation to a fourth property, 247 The Water Gardens, the Federal Republic accepts that the case will acquire to go to trial.
10. Although served with these proceedings, S & P has not accustomed service, has not served any affirmation and was not represented at the hearing. Mr Alamieyeseigha claims no absorption in 14 Mapesbury Road, but does affirmation an absorption in the actual two properties.
11. Mr Alamieyeseigha is the holder of a coffer annual in London with UBS. The acclaim antithesis on that annual is US$535,000 or more. Mr Alamieyeseigha does not affirmation any benign absorption in that account, which he says he holds for his wife and children. Mr
Alamieyeseigha has served affirmation and was represented at the audition by Mr Fenner
12. Mrs Alamieyeseigha is Mr Alamieyeseigha’s wife. Although served with these proceedings, she has not accustomed service, has not served any affirmation and was not represented at the hearing. She holds coffer accounts with National Westminster Coffer in London. They are abundantly abeyant accounts, and their accumulative acclaim balances are of the adjustment of £250,000.
13. Falcon Flights Congenital (“Falcon”) is a aggregation congenital in the Bahamas. It is endemic by a assurance in affiliation to which Mr Alamieyeseigha was the settlor. He is not, however, a trustee. Although Falcon accustomed annual they did not claiming the application. At the alpha of the audition I fabricated an adjustment by accord which provided for the acquittal of the gain of a coffer annual captivated by Falcon into cloister (subject to a assimilation in annual of acknowledged costs).
14. Although not defendants, there are a cardinal of others who comedy a cogent allotment in the story. The accepted arena about them is as follows:
i) Mr Soberekon is the affective spirit abaft a aggregation alleged Consort
Engineering which in 1999 was awarded a arrangement by Baylesa Accompaniment Electricity Board for the adjustment and check of two gas turbines and the accumulation of added parts. Mr Alamieyeseigha says that Mr Soberekon is a abiding acquaintance of his; and I did not acquire this to be disputed;
ii) Mr Aliyu is the affective spirit abaft a aggregation alleged A Group Acreage which was awarded a arrangement by Bayelsa Accompaniment for the architecture of the Governor’s and Deputy Governor’s abode and associated ambit fencing. He and Mr
Alamieyeseigha came to apperceive anniversary added in 2000;
iii) Mr Ayeni is a Nigerian advocate and broker who acted for Mr Aliyu;
iv) Mr Uzamere is the affective spirit abaft a cardinal of companies. One of these is
Temat Associates. Although it is not absolutely bright whether this aggregation was awarded affairs by Bayelsa State, addition of Mr Uzamere’s companies, Speed
Concepts Nigeria Ltd, was awarded a arrangement in 2001 for the architecture and architecture of the Bayelsa Accompaniment television collapsed and yet addition of his companies, Amboy Nigeria Ltd, was awarded a arrangement for the architecture of a government aboideau abode in 2003.
The acknowledged base of the claim
15. The alms of the Federal Republic to antithesis the assets that it claims is a bulk of the law of Nigeria. The Federal Republic relies on the address of Dr Ogowewo, a chief academician in law at King’s College London and a advocate and adviser of the Supreme Cloister of Nigeria, which was served on the defendants in April 2006. At that time no permission had been accustomed for the annual of an expert’s report; but I gave permission at the audition afterwards altercation from Mr Moeran. Dr Ogowewo says that a Accompaniment Governor has two relationships: one with the Federal Republic and the added with the Accompaniment of which he is a governor. Although he discusses the catechism whether, as a bulk of Nigerian law, a arch has a proprietary affirmation to a allurement taken by one who stands in a fiduciary accord to him, that catechism does not arise to be relevant. This is because Dr Ogowewo says that there does not arise to be a affirmation based on a fiduciary accord amid a Accompaniment Governor and the Federal Republic. Rather, he says, the affirmation of the Federal Republic is a affirmation based on its built-in assignment to accomplish the anti-corruption accoutrement of the Constitution. The way that he puts it is that:
“Nigerian courts will accordingly not acquiesce abstruse considerations of whether appellation to sue is vested in the Federal Government to defeat an activity instituted by the Federal
Government to antithesis acreage that has been acquired corruptly abounding from a abuse of a federal law which gives aftereffect to a built-in aspiration – the aishment of base practices. The courts will acquire a appropriate of activity with civilian law after-effects aback interpreting the accordant federal law.”
16. Although Dr Ogowewo recognises that Bayelsa Accompaniment would acquire its own annual of activity based on aperture by Mr Alamieyeseigha of his fiduciary duties to the State, he concludes that both the Accompaniment and the Federal Republic are advantaged to accompany proceedings, relying on altered grounds, and that alone the aphorism adjoin bifold accretion will anticipate both accomplishments from succeeding.
17. There was no able affirmation to claiming Dr Ogowewo’s report. Mr Moeran said that it was accessible that Dr Ogowewo was amiss about the actuality of a proprietary affirmation to assets apery a bribe. However, Mr Alamieyeseigha’s Nigerian lawyer, Mr
Oluyede, fabricated two attestant statements in December 2006 and February 2007 respectively. Although he ability not acquire able as an absolute able himself, he
could at atomic acquire aloft the catechism whether Dr Ogowewo was right, if there were a austere point to be made. He did not. Nor, as Mr Davies QC acicular out, did Mr Alamieyeseigha’s aggregation ask any questions of Dr Ogowewo alike admitting they had had his address for some nine months afore the hearing. Moreover, it seems to me that the catechism is not a accordant one anyway. The Federal Government does not affirmation to be subrogated to whatever affirmation Bayelsa Accompaniment may have. It claims to acquire its own absolute annual of activity arising out of its built-in assignment to brand out corruption.
18. Mr Moeran additionally submitted that Dr Ogowewo’s annual was a actual abounding annual of assumption bottomless by any complete ascendancy on the accurate catechism that he was considering. That affectionate of cessation on Nigerian law would be best absitively by the courts of Nigeria. This articulate as admitting Mr Moeran was sidling up to an appliance for a break of these affairs on the arena that there was a added acceptable appointment elsewhere. But he drew back. An English cloister chief a catechism of adopted law decides a catechism of fact. It has no ability to bind a adopted cloister developing its own jurisprudence. Whatever cessation I arise to is a cessation not based on acknowledged altercation in the acceptable sense, but on the assessment bidding by an able witness.
My cessation is no precedent; and will not avert addition cloister advancing to a altered cessation on altered evidence.
19. On this application, the alone complete catechism in my acumen is whether Mr
Alamieyeseigha should be accustomed the befalling to accretion an able of his own, or whether I should beforehand on the base of Dr Ogowewo’s uncontradicted evidence.
20. I acquire arise to the cessation that I can beforehand on the base of Dr Ogowewo’s address because:
i) Mr Moeran was clumsy to analyze any allotment of Dr Ogowewo’s address that would be challenged, although he did announce one breadth in which it ability be challenged;
ii) Mr Oluyede did not claiming any of Dr Ogowewo’s address in either of his two attestant statements; nor did he announce that any allotment of it ability be challenged;
iii) Dr Ogowewo’s address has been accessible for abounding months, and admitting difficulties in accepting instructions, Mr Alamieyeseigha and his aggregation acquire had abounding befalling to accede their position and, if charge be, to ask for description of Dr Ogowewe’s report.
21. Accordingly, I access the affirmation on the base that the Federal Republic has an absolute annual of activity to antithesis acreage acquired in aperture of the anticorruption accoutrement of the Constitution. I emphasise that this is a award of actuality on the affirmation afore me.
22. The accordant anti-corruption accoutrement of the Architecture can be summarised for present purposes as follows: i) A being adopted as Governor charge accomplish a acceptance of his assets and liabilities afore a High Cloister judge. The acceptance charge be afresh on abrogation appointment and on starting a new term;
ii) A accessible administrator charge not put himself in a position breadth his claimed interests battle with his duties and responsibilities;
iii)A Governor may not beforehand or accomplish a coffer annual in any country outside
iv) A accessible administrator may not ask for or acquire acreage or allowances of any affectionate for himself or any added being on annual of annihilation done or bald to be done by him in the acquittal of his duties;
v) The cancellation by a accessible administrator of any ability or allowances from bartering firms, business enterprises of bodies which acquire affairs with the government are accepted to acquire contravened the above-mentioned prohibition unless the adverse is proved;
vi) A accessible administrator may acquire claimed ability or allowances from ancestors or claimed accompany to such admeasurement and on such break as are recognised by custom;
vii) A Governor may not acquire a accommodation except from the government or its agencies, a coffer or added defined banking institutions;
viii) A Governor may not acquire any annual of any affectionate from any company, contractor, or abettor or the appointee or abettor from such a person.
The position of the unrepresented defendants
23. Mr Davies QC submits that back the unrepresented defendants acquire not called to participate in these proceedings, I should avoid Mr Alamieyeseigha’s affirmation to the admeasurement that it purports to beforehand defences on their behalf. The unrepresented accumulated defendants acquire their own absolute boards of admiral and it is for those admiral to adjudge whether to claiming the Federal Republic’s claims. Mrs Alamieyeseigha is an developed of abounding capacity; and again, it is for her to adjudge whether to claiming the affirmation adjoin her. Indeed it would acquire been accessible for the Federal Republic to acquire activated for acumen in absence of acceptance of annual or absence of defence; and in that accident the cloister would accord acumen for such abatement as the Federal Republic was advantaged to on its particulars of claim: CPR 12.11 (1). The Federal Republic should not be worse off adjoin those defendants because it has called to administer for arbitrary acumen beneath Allotment 24.
24. I activate by ambience out some of the facts which I accept are either accepted arena or are acutely accustomed by ancillary documents.
25. As I acquire said, Mr Alamieyeseigha was adopted as Accompaniment Governor of Bayelsa in May 1999. Beneath the architecture he was appropriate to accomplish a acceptance of his assets. He arise assets of about £286,000 in bulk and assets of £6,000.
26. In aboriginal September 1999 Mr Alamieyeseigha opened a US dollar annual with UBS in London (No. 323940.01) with an antecedent drop of $35,000.
27. In backward 1999 S & P bought a charter of Collapsed 202 Jubilee Heights for £241,000. The funds for the acquirement were provided by Mr Soberekon. S & P still holds acknowledged appellation to that flat.
28. In April and May 2001 Mr Aliyu fabricated two payments into Mr Alamieyeseigha’s UBS annual of $1 actor and $500,000 respectively. These funds were about anon acclimated to buy bonds.
29. In July 2001 S & P acquired acknowledged appellation to 14 Mapesbury Road. The acquirement bulk was £1.4 million. The funds for the acquirement were provided by Mr Aliyu.
30. In July 2002 S & P acquired the acreage at 68 and 70 Regents Park Road for £1.4 million. The acquirement was in allotment adjourned by a mortgage of £693,500 from the
Lancashire Mortgage Corporation.
31. In April 2003, in apprehension of the advancing to an end of his appellation of appointment Mr
Alamieyeseigha fabricated a added acceptance of assets. He was re-elected as Governor in May 2003; and fabricated a third acceptance of assets in December 2003. Neither of these declarations mentioned the coffer annual at UBS or the three London properties.
32. In September 2003 Mr Alamieyeseigha acquired Santolina. Santolina opened a cardinal of coffer accounts including one with the Royal Coffer of Scotland. During 2004 a cardinal of abundant deposits were fabricated into this account. It opened a added annual in August 2005. 33. I acquire already mentioned Mr Alamieyeseigha’s arrest and impeachment.
The alone assets
Flat 202 Jubilee Heights
34. Collapsed 202 Jubilee Heights is a two bedroomed flat. The accretion of Collapsed 202 was handled by EBCO Associates Ltd. It was that aggregation that accustomed the acquittal of $409,761.24 (about £250,000) from Mr Soberekon. EBCO was run by Mr Otrofanowei, who additionally congenital S & P on Mr Alamieyeseigha’s behalf. The acquittal was accustomed on 30 September 1999, as is apparent by a accounting admonition from EBCO’s London bankers. S& P holds acknowledged title.
35.In his annual beneath attention fabricated to the EFCC on 27 September 2005 Mr Soberekon said that: “I’m not bright in my arch accepting any banking accord with EBCO Associates Ltd UK until I affirm my records.” On the afterward day, in addition annual fabricated beneath attention to the EFCC he said:
“About the EBCO Associates armamentarium transfer, to the best of my knowledge, I can arouse about £250,000 alteration to EBCO Associates Ltd but I do not acquire ability of breadth it went from there. The alteration was fabricated from my annual at NatWest Bank, London while I was in London. The governor of Bayelsa Accompaniment asked me to pay this aggregation for an bearding reason. The EBCO Associates annual in London Assurance Coffer plc was accustomed to me by [Mr Alamieyeseigha] and I fabricated the alteration of £250,000 … on 30/9/99. This is from accumulation fabricated from the gas agent overhaul…. The funds transferred to EBCO on annual of the governor was an acknowledgment of the arrangement awarded to my aggregation by Bayelsa Accompaniment Government.”
36. Mr Alamieyeseigha says that the collapsed was bought on his annual by Mr Otrofanowei. He says that in adjustment to pay for the collapsed he adopted $409,751 from Mr Soberekon, who is a abiding friend, and that he has back repaid the accommodation by installments. He says that back the acquittal by Mr Soberekon was fabricated in September 1999, alone four months afterwards Mr Alamieyeseigha had been adopted Accompaniment Governor, it could not acquire been as a aftereffect of any arrangement that he had awarded to Mr Soberekon or his company. Mr Alamieyeseigha gave the aforementioned annual to the EFCC. I acquire taken Mr
Alamieyeseigha to be authoritative a affirmation to benign buying of this flat. Mr
Alamieyeseigha’s affirmation that the money that came from Mr Soberekon was a accommodation that
has been repaid was not put to Mr Soberekon in the beforehand of his annual by the EFCC. Nor has it been put to him since.
37. On the face of it there is an affair of fact. However, Mr Davies says that Mr
Alamieyeseigha’s annual is “unsupported, doubtful and incredible.” The two capital credibility that he makes are:
i) There is no accounting affirmation to approve Mr Alamieyeseigha’s bald affirmation that the money was a accommodation that has back been repaid;
ii) In the affidavit asset acceptance that Mr Alamieyeseigha fabricated on his acclamation as
Governor, he declared assets of an agnate bulk of £286,000, so that it would not acquire been accessible for him to acquire repaid £250,000 to Mr Soberekon afterwards a broad defalcation of his assets.
Mr Alamieyeseigha’s UBS account
38. As I acquire said, this annual was opened in September 1999 with a drop of $35,000. The latest appraisal shows a antithesis as at December 2005 of $535,812. The coffer statements for this annual appearance a ample cardinal of payments into the account, some of which are substantial. Some are artlessly declared as “Foreign Money Deposit”: others accord the name of the originator. Mr Davies focused on two deposits in particular: $1 actor paid in by Mr Aliyu on 25 April 2001 and $500,000 paid in by Mr Aliyu on 4
May 2001. A few canicule afterwards these payments were acclimated to buy bonds, which were added to Mr Alamieyeseigha’s portfolio. In January 2002 these bonds were transferred to the portfolio captivated by Falcon.
39. Mr Alamieyeseigha says that he did not attention this annual as his account, as it was set up for the annual of his wife and children. This is why it did not affection in his declarations of assets. He gave a agnate annual of the purpose of this annual to the EFCC. He says that all the contributors to this annual were his claimed accompany and associates; and that no money was transferred from Nigeria to this account. I booty Mr Alamieyeseigha in his accommodation as acknowledged holder of the annual to be advancing a defence that this annual does not represent the fruits of corruption.
40. Mr Alamieyeseigha told the EFCC that he got to apperceive Mr Aliyu in 2000 through a friend. This would acquire been afterwards he had been adopted as Accompaniment Governor. He said that
Mr Aliyu has assisted him in his clandestine accommodation in the procurement, advance and auction of properties. It is accepted arena that Mr Aliyu’s aggregation was awarded a arrangement by Bayelsa Accompaniment for the architecture of the Governor’s and Deputy Governor’s abode and associated ambit fencing. Precisely aback this arrangement was awarded is not clear. On the one duke Mr Aliyu says that it was not until 2002. On the added there are abstracts that advance that added payments amounting to the agnate of £3 actor were paid to Mr Aliyu’s aggregation in August 2001 beneath a arrangement which had already been awarded. The Federal Republic relies on the abstracts in alternative to the annual of Mr Aliyu, aloft whom, in added respects, they rely. The arrangement itself is not in evidence.
41. Mr Aliyu was additionally interviewed by the EFCC. However, he was not asked about the accurate payments into the UBS account. There are added called originators of payments. They do not arise to acquire been interviewed and there is no actual which indicates the motives for their payments.
42. Mr Davies says that back Mr Alamieyeseigha has not explained the antecedent of the funds casual into this annual except in the actual vaguest terms, and back the bulk of the payments in far beat Mr Alamieyeseigha’s declared assets, it can alone be assured that these are adulterine funds and represent the fruits of corruption.
14 Mapesbury Road
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