Nigeria v Santolina Investment Corp & Ors [2007] EWHC 437 (Ch)

[2007] EWHC 437 (Ch)Case No HC05 C03602
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7 March 2007
Before
THE HONOURABLE MR JUSTICE LEWISON
Between
THE FEDERAL REPUPLIC OF NIGERIAClaimant(1) SANTOLINA INVESTMENT CORPORATIONDefendants(2) SOLOMON & PETERS LIMITEDDefendant(3) DIEPREY SOLOMON PETER ALAMIEYESEIGHADefendant(4) MARGARET ALAMIEYESEIGHADefendant(5) FALCON FLIGHTS INCORPORATEDDefendant(6) EBCO ASSOCIATES LIMITEDDefendant(7) FIDUCIARY INTERNATIONAL LIMITEDDefendant(9) UBS AGDefendant(10) HBOS plcDefendant(11) ROYAL ALBATROSS PROPERTIES 67 (PTY) LIMITEDDefendant
Mr. Rhodri Davies QC (instructed by Kendall Freeman) for Claimant.Mr Fenner Moeran (instructed by Devonshires) for Third Defendant.Hearing Hearing dates: 27 th February 2007
Judgment

Introduction

[1]The Federal Republic of Nigeria is a federation which consists of 36 states. It is governed by a written constitution. Each of the separate states is governed by an elected State Governor on whom the federal constitution places a number of duties. In May 1999 Mr Alamieyeseigha was elected as State Governor of the state of Bayelsa, which is one of the 36 states in the federation. His term of office was four years. He was re-elected to the same office in May 2003 for a further four year term. However, in September 2005 he was arrested in the UK on charges of money laundering. In November 2005 impeachment proceedings were begun against him in Bayelsa state and on 9 December 2005 he was dismissed as State Governor. The Federal Republic allege that during his period in office Mr Alamieyeseigha accumulated assets as a result of the corrupt receipt of bribes and other payments in connection with the award of state government contracts. They say that the extent of those assets exceeds £10 million. Some of the assets consist of immovable properties in London, title to which is vested in a company wholly owned by Mr Alamieyeseigha. Other assets are the balances held in bank accounts in the name of Mr Alamieyeseigha, his wife and other corporate entities, some of which are wholly controlled by Mr Alamieyeseigha.[2]The Federal Republic have applied for summary judgment to recover those assets. The hearing of the application, which was skilfully and cogently presented by Mr Rhodri Davies QC, occupied a single court day.

Summary judgement: the test

[3]Part 24 of the CPR enables the court to give summary judgment against a defendant on the whole of a claim or on a particular issue if it considers that the defendant has no real prospect of successfully defending the claim or issue; and there is no other compelling reason why the claim or issue should not be disposed of at a trial.[4]The courts have now given guidance on the principles to be applied in deciding whether or not to give summary judgment. For present purposes I summarise the relevant ones as follows: i) The court must consider whether the defendant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91; ii) A “realistic” defence is one that carries some degree of conviction. This means a defence that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a defendant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63; vii) Although there is no longer an absolute bar on obtaining summary judgment when fraud is alleged, the fact that a claim is based on fraud is a relevant factor. The risk of a finding of dishonesty may itself provide a compelling reason for allowing a case to proceed to trial, even where the case looks strong on the papers: Wrexham Association Football Club Ltd v Crucialmove Ltd [2006] EWCA Civ 237 at [57].

The evidence

[5]The application is supported by a witness statement made by Mr Colin Joseph. It, with its accompanying exhibits, fills some seven lever arch files. Mr Joseph is a partner in the Federal Republic’s London solicitors. He has no personal knowledge of the events that give rise to the claim. Rather, his witness statement marshals the evidence derived from contemporaneous documents and from statements made by others. These statements include interviews given by Mr Alamieyeseigha and statements made by other people to the Nigerian Economic and Financial Crimes Commission (“EFCC”). It was not possible to read, let alone analyse, all these documents in the course of the hearing, or in the preparation time allotted. Somewhat remarkably, Mr Joseph says of the statements made by “witnesses” on whom the Federal Republic relies:
“I should make it clear that the [Federal Republic] does not necessarily accept the version(s) of events or explanation(s) of their conduct given by the individuals who have provided statements to the EFCC. In key aspects their evidence changes dramatically with time and in one striking case admissions have been made that previous evidence was false. In some instances the precise form of corruption may be unclear.”
[6]This is not a promising start to a claim that there is nothing worthy of investigation at trial.

The main players

[7]Santolina Investment Corporation (“Santolina”) is a company incorporated in the Seychelles. It is wholly owned by Mr Alamieyeseigha. It is the account holder of a bank account in London with the Royal Bank of Scotland. There is a credit balance of £1.9 million. Although served with these proceedings, Santolina has not acknowledged service, has not served any evidence and was not represented at the hearing.[8]Solomon & Peters Ltd (“S & P”) is a company incorporated in the British Virgin Islands. It is wholly owned by Mr Alamieyeseigha, whose middle names are Solomon and Peter. It is the registered proprietor of four properties in London. On this application the Federal Republic claims that in the case of three of them the evidence is so strong that they are entitled to summary judgment. The three are: i) Flat 202 Jubilee Heights NW2 ii) 14 Mapesbury Road NW2 iii) 68 & 70 Regents Park Road N3.[9]In relation to a fourth property, 247 The Water Gardens, the Federal Republic accepts that the case will have to go to trial.[10]Although served with these proceedings, S & P has not acknowledged service, has not served any evidence and was not represented at the hearing. Mr Alamieyeseigha claims no interest in 14 Mapesbury Road, but does claim an interest in the remaining two properties.[11]Mr Alamieyeseigha is the holder of a bank account in London with UBS. The credit balance on that account is US$535,000 or more. Mr Alamieyeseigha does not claim any beneficial interest in that account, which he says he holds for his wife and children. Mr Alamieyeseigha has served evidence and was represented at the hearing by Mr Fenner Moeran.[12]Mrs Alamieyeseigha is Mr Alamieyeseigha’s wife. Although served with these proceedings, she has not acknowledged service, has not served any evidence and was not represented at the hearing. She holds bank accounts with National Westminster Bank in London. They are largely inactive accounts, and their cumulative credit balances are of the order of £250,000.[13]Falcon Flights Incorporated (“Falcon”) is a company incorporated in the Bahamas. It is owned by a trust in relation to which Mr Alamieyeseigha was the settlor. He is not, however, a trustee. Although Falcon acknowledged service they did not contest the application. At the start of the hearing I made an order by consent which provided for the payment of the proceeds of a bank account held by Falcon into court (subject to a retention in respect of legal costs).[14]Although not defendants, there are a number of others who play a significant part in the story. The common ground about them is as follows: i) Mr Soberekon is the moving spirit behind a company called Consort Engineering which in 1999 was awarded a contract by Baylesa State Electricity Board for the repair and overhaul of two gas turbines and the supply of spare parts. Mr Alamieyeseigha says that Mr Soberekon is a long-standing friend of his; and I did not understand this to be disputed; ii) Mr Aliyu is the moving spirit behind a company called A Group Property which was awarded a contract by Bayelsa State for the construction of the Governor’s and Deputy Governor’s lodge and associated perimeter fencing. He and Mr Alamieyeseigha came to know each other in 2000; iii) Mr Ayeni is a Nigerian lawyer and banker who acted for Mr Aliyu; iv) Mr Uzamere is the moving spirit behind a number of companies. One of these is Temat Associates. Although it is not entirely clear whether this company was awarded contracts by Bayelsa State, another of Mr Uzamere’s companies, Speed Concepts Nigeria Ltd, was awarded a contract in 2001 for the design and construction of the Bayelsa State television studio and yet another of his companies, Amboy Nigeria Ltd, was awarded a contract for the construction of a government gate house in 2003.

The legal basis of the claim

[15]The entitlement of the Federal Republic to recover the assets that it claims is a matter of the law of Nigeria. The Federal Republic relies on the report of Dr Ogowewo, a senior lecturer in law at King’s College London and a barrister and solicitor of the Supreme Court of Nigeria, which was served on the defendants in April 2006. At that time no permission had been given for the service of an expert’s report; but I gave permission at the hearing without objection from Mr Moeran. Dr Ogowewo says that a State Governor has two relationships: one with the Federal Republic and the other with the State of which he is a governor. Although he discusses the question whether, as a matter of Nigerian law, a principal has a proprietary claim to a bribe taken by one who stands in a fiduciary relationship to him, that question does not appear to be relevant. This is because Dr Ogowewo says that there does not appear to be a claim based on a fiduciary relationship between a State Governor and the Federal Republic. Rather, he says, the claim of the Federal Republic is a claim based on its constitutional duty to enforce the anti-corruption provisions of the Constitution. The way that he puts it is that:
“Nigerian courts will therefore not allow technical considerations of whether title to sue is vested in the Federal Government to defeat an action instituted by the Federal Government to recover property that has been acquired corruptly flowing from a violation of a federal law which gives effect to a constitutional aspiration – the abolition of corrupt practices. The courts will derive a right of action with civil law consequences when interpreting the relevant federal law.”
[16]Although Dr Ogowewo recognises that Bayelsa State would have its own cause of action based on breach by Mr Alamieyeseigha of his fiduciary duties to the State, he concludes that both the State and the Federal Republic are entitled to bring proceedings, relying on different grounds, and that only the rule against double recovery will prevent both actions from succeeding.[17]There was no expert evidence to challenge Dr Ogowewo’s report. Mr Moeran said that it was possible that Dr Ogowewo was wrong about the existence of a proprietary claim to assets representing a bribe. However, Mr Alamieyeseigha’s Nigerian lawyer, Mr Oluyede, made two witness statements in December 2006 and February 2007 respectively. Although he might not have qualified as an independent expert himself, he could at least have raised the question whether Dr Ogowewo was right, if there were a serious point to be made. He did not. Nor, as Mr Davies QC pointed out, did Mr Alamieyeseigha’s team ask any questions of Dr Ogowewo even though they had had his report for some nine months before the hearing. Moreover, it seems to me that the question is not a relevant one anyway. The Federal Government does not claim to be subrogated to whatever claim Bayelsa State may have. It claims to have its own independent cause of action arising out of its constitutional duty to stamp out corruption.[18]Mr Moeran also submitted that Dr Ogowewo’s statement was a very broad statement of principle unsupported by any direct authority on the particular question that he was considering. That kind of conclusion on Nigerian law would be best decided by the courts of Nigeria. This sounded as though Mr Moeran was sidling up to an application for a stay of these proceedings on the ground that there was a more convenient forum elsewhere. But he drew back. An English court deciding a question of foreign law decides a question of fact. It has no power to bind a foreign court developing its own jurisprudence. Whatever conclusion I come to is a conclusion not based on legal argument in the traditional sense, but on the opinion expressed by an expert witness. My conclusion is no precedent; and will not preclude another court coming to a different conclusion on different evidence.[19]On this application, the only real question in my judgment is whether Mr Alamieyeseigha should be given the opportunity to find an expert of his own, or whether I should proceed on the basis of Dr Ogowewo’s uncontradicted evidence.[20]I have come to the conclusion that I can proceed on the basis of Dr Ogowewo’s report because: i) Mr Moeran was unable to identify any part of Dr Ogowewo’s report that would be challenged, although he did indicate one area in which it might be challenged; ii) Mr Oluyede did not challenge any of Dr Ogowewo’s report in either of his two witness statements; nor did he indicate that any part of it might be challenged; iii) Dr Ogowewo’s report has been available for many months, and despite difficulties in obtaining instructions, Mr Alamieyeseigha and his team have had ample opportunity to consider their position and, if need be, to ask for clarification of Dr Ogowewe’s report.[21]Accordingly, I approach the evidence on the basis that the Federal Republic has an independent cause of action to recover property acquired in breach of the anti-corruption provisions of the Constitution. I emphasise that this is a finding of fact on the evidence before me.[22]The relevant anti-corruption provisions of the Constitution can be summarised for present purposes as follows: i) A person elected as Governor must make a declaration of his assets and liabilities before a High Court judge. The declaration must be repeated on leaving office and on starting a new term; ii) A public officer must not put himself in a position where his personal interests conflict with his duties and responsibilities; iii) A Governor may not maintain or operate a bank account in any country outside Nigeria; iv) A public officer may not ask for or accept property or benefits of any kind for himself or any other person on account of anything done or omitted to be done by him in the discharge of his duties; v) The receipt by a public officer of any gifts or benefits from commercial firms, business enterprises of persons which have contracts with the government are presumed to have contravened the preceding prohibition unless the contrary is proved; vi) A public officer may accept personal gifts or benefits from relatives or personal friends to such extent and on such occasion as are recognised by custom; vii) A Governor may not accept a loan except from the government or its agencies, a bank or other specified financial institutions; viii) A Governor may not accept any benefit of any kind from any company, contractor, or businessman or the nominee or agent from such a person.

The position of the unrepresented defendants

[23]Mr Davies QC submits that since the unrepresented defendants have not chosen to participate in these proceedings, I should ignore Mr Alamieyeseigha’s evidence to the extent that it purports to advance defences on their behalf. The unrepresented corporate defendants have their own independent boards of directors and it is for those directors to decide whether to contest the Federal Republic’s claims. Mrs Alamieyeseigha is an adult of full capacity; and again, it is for her to decide whether to contest the claim against her. Indeed it would have been possible for the Federal Republic to have applied for judgment in default of acknowledgment of service or default of defence; and in that event the court would give judgment for such relief as the Federal Republic was entitled to on its particulars of claim: CPR 12.11 (1). The Federal Republic should not be worse off against those defendants because it has chosen to apply for summary judgment under Part 24.

Overview

[24]I begin by setting out some of the facts which I believe are either common ground or are incontrovertibly established by contemporaneous documents.[25]As I have said, Mr Alamieyeseigha was elected as State Governor of Bayelsa in May 1999. Under the constitution he was required to make a declaration of his assets. He disclosed assets of approximately £286,000 in value and income of £6,000.[26]In early September 1999 Mr Alamieyeseigha opened a US dollar account with UBS in London (No. 323940.01) with an initial deposit of $35,000.[27]In late 1999 S & P bought a lease of Flat 202 Jubilee Heights for £241,000. The funds for the purchase were provided by Mr Soberekon. S & P still holds legal title to that flat.[28]In April and May 2001 Mr Aliyu made two payments into Mr Alamieyeseigha’s UBS account of $1 million and $500,000 respectively. These funds were almost immediately used to buy bonds.[29]In July 2001 S & P acquired legal title to 14 Mapesbury Road. The purchase price was £1.4 million. The funds for the purchase were provided by Mr Aliyu.[30]In July 2002 S & P acquired the property at 68 and 70 Regents Park Road for £1.4 million. The purchase was in part funded by a mortgage of £693,500 from the Lancashire Mortgage Corporation.[31]In April 2003, in anticipation of the coming to an end of his term of office Mr Alamieyeseigha made a second declaration of assets. He was re-elected as Governor in May 2003; and made a third declaration of assets in December 2003. Neither of these declarations mentioned the bank account at UBS or the three London properties.[32]In September 2003 Mr Alamieyeseigha acquired Santolina. Santolina opened a number of bank accounts including one with the Royal Bank of Scotland. During 2004 a number of substantial deposits were made into this account. It opened a second account in August 2005.[33]I have already mentioned Mr Alamieyeseigha’s arrest and impeachment. The individual assets Flat 202 Jubilee Heights

The individual assets

[34]Flat 202 Jubilee Heights is a two bedroomed flat. The acquisition of Flat 202 was handled by EBCO Associates Ltd. It was that company that received the payment of $409,761.24 (about £250,000) from Mr Soberekon. EBCO was run by Mr Otrofanowei, who also incorporated S & P on Mr Alamieyeseigha’s behalf. The payment was received on 30 September 1999, as is shown by a written advice from EBCO’s London bankers. S& P holds legal title.[35]In his statement under caution made to the EFCC on 27 September 2005 Mr Soberekon said that:
“I’m not clear in my head having any financial deal with EBCO Associates Ltd UK until I confirm my records.”
On the following day, in another statement made under caution to the EFCC he said:
“About the EBCO Associates fund transfer, to the best of my knowledge, I can recollect about £250,000 transfer to EBCO Associates Ltd but I do not have knowledge of where it went from there. The transfer was made from my account at NatWest Bank, London while I was in London. The governor of Bayelsa State asked me to pay this company for an undisclosed reason. The EBCO Associates account in London Trust Bank plc was given to me by [Mr Alamieyeseigha] and I made the transfer of £250,000 … on 30/9/99. This is from profit made from the gas turbine overhaul…. The funds transferred to EBCO on behalf of the governor was an appreciation of the contract awarded to my company by Bayelsa State Government.”
[36]Mr Alamieyeseigha says that the flat was bought on his behalf by Mr Otrofanowei. He says that in order to pay for the flat he borrowed $409,751 from Mr Soberekon, who is a long-standing friend, and that he has since repaid the loan by instalments. He says that since the payment by Mr Soberekon was made in September 1999, only four months after Mr Alamieyeseigha had been elected State Governor, it could not have been as a result of any contract that he had awarded to Mr Soberekon or his company. Mr Alamieyeseigha gave the same explanation to the EFCC. I have taken Mr Alamieyeseigha to be making a claim to beneficial ownership of this flat. Mr Alamieyeseigha’s claim that the money that came from Mr Soberekon was a loan that has been repaid was not put to Mr Soberekon in the course of his interview by the EFCC. Nor has it been put to him since.[37]On the face of it there is an issue of fact. However, Mr Davies says that Mr Alamieyeseigha’s account is “unsupported, implausible and incredible.” The two main points that he makes are: i) There is no written evidence to corroborate Mr Alamieyeseigha’s bare assertion that the money was a loan that has since been repaid; ii) In the sworn asset declaration that Mr Alamieyeseigha made on his election as Governor, he declared assets of an equivalent value of £286,000, so that it would not have been possible for him to have repaid £250,000 to Mr Soberekon without a wholesale liquidation of his assets.

Mr Alamieyeseigha’s UBS account

[38]As I have said, this account was opened in September 1999 with a deposit of $35,000. The latest valuation shows a balance as at December 2005 of $535,812. The bank statements for this account show a large number of payments into the account, some of which are substantial. Some are simply described as “Foreign Money Deposit”: others give the name of the originator. Mr Davies focussed on two deposits in particular: $1 million paid in by Mr Aliyu on 25 April 2001 and $500,000 paid in by Mr Aliyu on 4 May 2001. A few days later these payments were used to buy bonds, which were added to Mr Alamieyeseigha’s portfolio. In January 2002 these bonds were transferred to the portfolio held by Falcon.[39]Mr Alamieyeseigha says that he did not regard this account as his account, as it was set up for the benefit of his wife and children. This is why it did not feature in his declarations of assets. He gave a similar explanation of the purpose of this account to the EFCC. He says that all the contributors to this account were his personal friends and associates; and that no money was transferred from Nigeria to this account. I take Mr Alamieyeseigha in his capacity as legal holder of the account to be advancing a defence that this account does not represent the fruits of corruption.[40]Mr Alamieyeseigha told the EFCC that he got to know Mr Aliyu in 2000 through a friend. This would have been after he had been elected as State Governor. He said that Mr Aliyu has assisted him in his private capacity in the procurement, renovation and sale of properties. It is common ground that Mr Aliyu’s company was awarded a contract by Bayelsa State for the construction of the Governor’s and Deputy Governor’s lodge and associated perimeter fencing. Precisely when this contract was awarded is not clear. On the one hand Mr Aliyu says that it was not until 2002. On the other there are documents that suggest that additional payments amounting to the equivalent of £3 million were paid to Mr Aliyu’s company in August 2001 under a contract which had already been awarded. The Federal Republic relies on the documents in preference to the statement of Mr Aliyu, upon whom, in other respects, they rely. The contract itself is not in evidence.[41]Mr Aliyu was also interviewed by the EFCC. However, he was not asked about the particular payments into the UBS account. There are other named originators of payments. They do not appear to have been interviewed and there is no material which indicates the motives for their payments.[42]Mr Davies says that since Mr Alamieyeseigha has not explained the source of the funds passing into this account except in the very vaguest terms, and since the amount of the payments in far exceed Mr Alamieyeseigha’s declared assets, it can only be concluded that these are illegitimate funds and represent the fruits of corruption. 14 Mapesbury Road[43]S & P bought the freehold of 14 Mapesbury Road in July 2001. The purchase price was £1.4 million. On 14 May 2001 Mr Patel of HSBC Bank wrote to the solicitor dealing with the purchase. He said:
“I understand that Chief SP Alamieyeseigha wishes to purchase a property through yourselves at an agreed price of £1.4 million. Whilst Chief Alamieyeseigha is not a client of HSBC Bank plc, I am aware of the above transaction via my customer Mr Alhaji Aliyu of this purchase. Mr Aliyu has informed me that he is willing to pay for this transaction on behalf of the Chief. … It is Mr Aliyu’s intention to transfer funds to Chief Alamieyeseigha later this week, and I am awaiting full instructions in writing from him.”
[44]The money was in fact sent by Mr Aliyu’s bank direct to the solicitors in May and July 2001. Instructions to the solicitors appear to have been given, not by Mr Alamieyeseigha himself, but by Mr Ayeni. Mr Ayeni is a Nigerian lawyer who acted for Mr Aliyu.[45]When Mr Aliyu was interviewed by the EFCC he was not asked about this transaction. The transaction took place some months before Mr Aliyu’s company was awarded a State Government contract.[46]Mr Alamieyeseigha says that Mr Aliyu is a close personal friend who visited him at Flat 202 Jubilee Heights in May 2001. Mr Aliyu thought that Mr Alamieyeseigha’s accommodation was too small, and “then proceeded to purchase this property in the name of Solomon & Peters Ltd. The idea was that I would use the property until I was able to own something bigger than the flat.” Mr Alamieyeseigha says that he thought that 14 Mapesbury Road was too big and “advised that it be put back on the market and the proceeds of sale returned to Alhaji Aliyu.” He gave the same explanation to the EFCC. This allegation has not been put to Mr Aliyu.[47]Mr Ayeni might be expected to shed some light on the transaction. He has also been interviewed by the EFCC. However he has made serious allegations about his treatment. In a letter to the President of the Nigerian Bar Association dated 17 October 2006 he said:
“On the 18th day of November 2005, I was arrested and held up in a detention camp for 33 days by the operatives of the [EFCC] during which period I was seldomly hand cuffed, chained, stripped naked and humiliated even in the presence of the opposite sex all aimed at forcing me to give confessional statements on issues that I knew nothing about.”
[48]In the same letter he refers to a property at 14 Melbery Road (which may be a mistake for 14 Mapesbury Road). The general tenor of his letter is that he acted on behalf of Mr Aliyu and that his role was to ensure that his client got what he paid for. He does not say that 14 Mapesbury Road was intended to be a gift from Mr Aliyu to Mr Alamieyeseigha. 68 & 70 Regent’s Park Road[49]S & P acquired 68 & 70 Regents Park Road on 15 July 2002. The solicitors acting on the purchase, Nedd & Co, recorded their client as Mr Ayeni. Ms Nedd, who gave a statement to the Metropolitan Police, said that the source of funds to purchase the property were Mr Ayeni and a mortgage from the Lancashire Mortgage Corporation. However, manuscript notes on the completion statement suggest that £474,724.08 came from Mr Aliyu.[50]Mr Aliyu has given a number of accounts of this transaction to the EFCC. There are serious inconsistencies in what he has said. In his first statement he said that he could not remember the transaction, but would check his records. In his second statement he said that he remembered that he bought a property at Regents Park Road, from Nedd & Co for which he paid £475,000-odd. He said that the property was bought for him by his friend and agent, Tony Kunte. Some time in 2004 Mr Kunte inquired whether he could sell the property, and Mr Aliyu authorised him to sell it on his behalf. It was sold on 18 December 2004 for £550,000. Mr Ayeni introduced him to Mr Kunte. In his third statement, made some weeks later, he said that the payment of £475,000-odd was made on the instructions of Mr Alamieyeseigha. He said:
“The Governor asked me to lend him the money but he did not tell me what he wanted to use the money for.”
[51]In his fourth statement he said that the payments that apparently came from Mr Ayeni were made on his instructions, at Mr Alamieyeseigha’s request, and that he had paid Mr Ayeni the sums in local currency. Again, he said that he did not know what Mr Ayeni had done with the money. In both his third and fourth statements he said that he had not been repaid, and had not asked for repayment “since I am doing business in Bayelsa State.” However, in his fifth statement he said that his fourth statement was dealing with a flat at Regent Plaza, and not with Regents Park Road at all.[52]Mr Aliyu has therefore given three different accounts, which cannot be reconciled one with another. The Federal Republic rely on the third account, which supports their case, and reject the remaining accounts.[53]Mr Ayeni was also interviewed by the EFCC. I have already quoted his allegations of ill treatment. He said that some time in 2002 Mr Alamieyeseigha gave him a cheque for £170,000 to be forwarded to Nedd & Co. Mr Ayeni said that he paid this cheque into his own account, and then issued a cheque to “Eke”. Who “Eke” is is wholly unclear.In his second statement he said that the monies transferred to Nedd & Co were Mr Aliyu’s money. In a third statement he said that the cheque for £170,000 was the first cheque that Mr Alamieyeseigha had given him and that it was for furnishing his house. He subsequently discovered that it was for the purchase of property at 68 & 70 Regents Park Road. Apart from the cheque for £170,000 all the monies paid to Nedd & Co came from Mr Aliyu.[54]The mortgage granted to the Lancashire Mortgage Corporation (which secured a loan of some £707,000, although figures vary) was redeemed in September 2003. According to Mr Joseph, the source of the funds needed to redeem the mortgage is unknown.[55]Mr Alamieyeseigha says that 68 & 70 Regents Park Road was bought as an investment. He says that he contributed £170,000 from his HSBC account; Mr Aliyu contributed £475,000-odd and the rest was borrowed on mortgage. He says that he paid the £170,000 to Mr Ayeni who in turn paid it on to “the agents”. There is some congruence between Mr Alamieyeseigha’s account of the £170,000 and what Mr Ayeni told the EFCC. In a statement to the EFCC Mr Alamieyeseigha gave an explanation of the cheque for £170,000. However, the record of his explanation is illegible.[56]Mr Davies’ riposte is to attack the source of the £170,000 taken out of the HSBC account. This account was opened in December 2001. The first deposit was a deposit of £420,000 of which the originator was Mr Aliyu. In one of his statements to the EFCC Mr Aliyu said that this was money that he gave to Mr Alamieyeseigha at the latter’s request. He added that:
“he has not repaid me and I did not ask him [for] the money because of my business with Bayelsa State Government”
. Mr Alamieyeseigha says that Mr Aliyu and Mr Ayeni helped him open this account when he complained about the difficulty in paying bills in cash when travelling abroad. He gave a similar explanation to the EFCC.

Santolina’s bank account

[57]Santolina opened an account with the Royal Bank of Scotland (Account No 10182819) in January 2004. Between then and March 2005 some 26 deposits were made into the account at various times. The total amounted to some £2.7 million. The bank statement record a number of different names as the originators of these deposits; but the Federal Government’s case is that £1.6 million was paid, through intermediaries, by Temat Associates, one of Mr Uzamere’s companies. The only significant payment out of this account was a sum paid for the purchase of a flat in Cape Town.[58]In part this conclusion is said to be derived from documents, and in part it depends on a statement made by Ms Kidi Badmus, an official with Bond Bank. Mr Ayeni is also a director of Bond Bank. Broadly, what is alleged is that cash withdrawals in local currency were made from Temat’s bank account; and those withdrawals were then used to buy foreign currency which was then paid into Santolina’s bank account. In proceedings in South Africa relating to the Cape Town flat the National Director of Public Prosecutions alleged that both Ms Badmus and Mr Ayeni were involved in a conspiracy to forge documents designed to conceal the involvement of Temat, and to conceal Mr Alamieyeseigha’s involvement. He said, and the court appears to have accepted, that there were “reasonable grounds to believe” that Mr Alamieyeseigha had been involved in wide scale money laundering.[59]In his letter to the President of the Nigerian Bar Association Mr Ayeni denies any involvement in the falsification of documents.[60]Mr Uzamere was interviewed a number of times by the EFCC. In his first statement of 8 August 2005 he said that his relationship with Santolina was “as a result of property I bought and the owner Chief DSP Alamieyeseigha, his lawyer instructed me to remit its proceeds to Santolina abroad. The name of the lawyer is Barrister Yusuf and it cost me about [£1,600,000] and the money was remitted in piece meal through Bond Bank. The company used was Temat Associated Limited… I instructed Bond Bank to remit the said amount in piece meal to Santolina Investment abroad.” On the following day he said that he would bring documents relating to the property purchase. There is no other statement from Mr Uzamere that I have seen. Two letters exist, bearing dates of 16 and 20 January 2004, one of which is signed by Mr Yusuf and the other by Mr Alamieyeseigha, which appear to corroborate this account.[61]However, in the proceedings in South Africa Mr Joubert, who swore an affidavit on behalf of the National Director of Public Prosecutions said that a Mr Bello, a Nigerian investigator, had approached Mr Uzamere to establish the reasons for the payments by Temat to Santolina. Mr Uzamere told Mr Bello, who in turn told Mr Joubert, that Mr Uzamere admitted to having made false statements and agreed to co-operate in the investigation. Mr Uzamere is said by Mr Joubert to have told Mr Bello that he was requested by Mr Alamieyeseigha to accept responsibility for the Temat bank account and to sign documents at the bank to conceal Mr Alamieyeseigha’s involvement with Temat. Mr Uzamere is said by Mr Joubert to have told Mr Bello that he was told by Mr Ayeni to fabricate a contract for the construction of fencing at the Governor’s Lodge in order to explain payments by the Bayelsa State Government to Temat. He is said to have told Mr Bello that Mr Ayeni and Mr Yusuf prepared a letter instructing Mr Uzamere to transfer what they claimed to be the purchase price of property to Santolina. Mr Uzamere is said to have denied (contrary to his statements to the EFCC) having bought any property from Mr Alamieyeseigha. This statement is second (or third) hand hearsay. Moreover, Mr Joseph comments:
“I have reservations over the full extent of this last statement by Mr Uzamere.”
[62]His reservation is that some of the documents that Mr Uzamere claimed to have been fabrications looked genuine. But he says that the two letters are fabrications.[63]It is common ground that one of Mr Uzamere’s companies had a contract with Bayelsa State for the provision of concrete fencing with a contract value of the equivalent of £5.3 million of which £3.4 million was paid in March, May and June 2004.[64]Mr Oluyede, Mr Alamieyeseigha’s Nigerian lawyer, approached Mr Uzamere and spoke to him in January 2006. According to Mr Oluyede’s witness statement, Mr Uzamere refused to make a statement because he had just been elected to the Senate and the making of a statement would leave him vulnerable to the “inevitable backlash from the EFCC”. He said that he had had to agree to an arrangement to enable him to pursue his business and political career and any mention of his name “in favour of” Mr Alamieyeseigha would result in his immediate arrest and detention by the EFCC and the loss of his ticket to the Senate. Mr Oluyede says that Mr Uzamere was apologetic about the conflicting statements had had made to the EFCC and said that if he were called as a witness after elections in April he would “straighten things out”.[65]Mr Alamieyeseigha says that “the bulk of the funds in this account is the balance of my 2003 re-election campaign fund” raised at a fund-raising event in November 2002. He says that after campaign expenses, the remaining balance was some £5.6 million which he deposited with Bond Bank. Part of that balance was transferred to Santolina on his instructions. He says that Bond Bank had absolute discretion in how they transferred the funds, and that if they used Temat, he had nothing to do with it. Mr Alamieyeseigha gave a similar explanation to the EFCC; but in an earlier interview with the Metropolitan Police he claimed that the funds in the Santolina bank account were the result of property dealing. He says that Mr Ayeni was the Chairman of the fund-raising committee, as well as a director of Bond Bank, and that he would be able to explain what happened. He also says that Mr John Darlington, another director of the bank, will have relevant evidence. Mr Oluyede, Mr Alamieyeseigha’s Nigerian lawyer, has approached both Mr Ayeni and Mr Darlington, but neither was willing to make a statement. Mr Oluyede hints at fear on their part. There is documentary corroboration of Mr Alamieyeseigha’s account of a fund raising event, and some evidence that some £5.6 million was raised. There is no documentary evidence about how it was spent. If Mr Alamieyeseigha is correct in saying that Mr Ayeni was the Chairman of the fund raising committee, the latter may be able to explain.

Mrs Alamieyeseigha’s bank account

[66]The evidence about Mrs Alamieyeseigha’s bank account contained in Mr Joseph’s witness statement is as follows. He says that Mrs Alamieyeseigha has three accounts in her own name, and he gives the numbers. He produces some bank statements and says that the cumulative balance is some £265,000-odd. He concludes:
“I have no further information about the source of funds in this account, or the period over which they were operated.”
[67]In the summary at the end of his statement Mr Joseph says that as regards Mrs Alamieyeseigha’s accounts:
“… there is no evidence that she has her own income, and … it is a reasonable inference that the funds on the account derived from the corrupt activities of her husband. The pattern on the accounts is of large payments is, without the activity characteristic of a business account.”
[68]Mrs Alamieyeseigha has not given evidence. Mr Alamieyeseigha simply says that the accounts belong to his wife. However he told the Metropolitan Police in an earlier interview that his wife had been a trader, trading in merchandise and boats, and that she had a big shop; and that she was successful. At one point during the interview he said that his wife had no money, but when confronted with the bank balance he said that she should have more because she was a successful businesswoman. He denied having given his wife any money.

The Falcon Flights account

[69]As I have said, the bonds bought with part of the funds in Mr Alamieyeseigha’s UBS account were transferred to the Falcon account in January 2002. However, as I have also said, the payments into the UBS account were not matters on which Mr Aliyu was questioned, and they antedate the authorisation of additional payments to his company.[70]Mr Alamieyeseigha says that the funds in this account are “contributions from friends and political associates towards the education of my children.” In the past he has give different and inconsistent explanations of the origins of the funds. On the face of it, this is a conflict of fact.

Conclusion

[71]After consideration, I have come to the conclusion that I should refuse the application. My reasons are: i) An allegation of personal corruption in public office is probably the most serious allegation that can be made against an elected officer of government. Only in exceptional circumstances would it be right to enter judgment against him without giving him the opportunity to confront his accusers and to have his side of the story heard. ii) The case against Mr Alamieyeseigha is not based simply on documents, but also on the testimony of individuals who have been interviewed by the EFCC. In many of the cases, the interviewees have changed their stories, often dramatically. The Federal Government relies on the accounts that support its own case, but Mr Alamieyeseigha is entitled to test the evidence now relied on against previous inconsistent statements. Mr Joseph himself says that the Federal Republic does not accept all the evidence of the witnesses relied on in support of its case. iii) Mr Ayeni has made serious allegations to his professional body about his mistreatment at the hands of the EFCC. If evidence is impugned in this way, it is not safe to rely on it without further investigation. Mr Ayeni may be able to cast light on a number of aspects of the case, namely: the purchase of 14 Mapesbury Road, the purchase of 68 & 80 Regents Park Road and the fate of Mr Alamieyeseigha’s campaign funds. iv) As regards part of the case, notably the payments into Mr Alamieyeseigha’s UBS account, the initiator of the payment (Mr Aliyu) has not been asked to explain the payment, so that the Federal Republic’s case rests on inference. Although an inference that the court is invited to draw after a trial may be a proper inference, it seems to me that the court should be very wary of drawing an inference when it is still possible that direct evidence may be given, thus making inferences unnecessary. The Federal Republic’s case against Falcon rests on the same inference that can be drawn from the initial payments by Mr Aliyu into Mr Alamieyeseigha’s UBS account. v) Similarly, Mr Alamieyeseigha’s assertion that he borrowed from and repaid Mr Soberekon has not been put to him, so that the court does not have his comments on the allegation. vi) One important plank in the Federal Republic’s case is the admission made by Mr Uzamere about the Temat payments. But that admission is second or third hand hearsay, which contradicts the direct statements that he has made; and Mr Uzamere has expressed a willingness to give evidence in due course. Moreover, a summary finding based on Mr Uzamere’s admission necessarily means that two Nigerian lawyers (Mr Yusuf and Mr Ayeni) have been involved the fabrication of documents. vii) In the case of Ms Badmus the Federal Republic itself alleges that she is a dishonest forger, and yet wishes to rely on her statement without exposing her to cross-examination. viii) The case against Mrs Alamieyeseigha is based entirely on inference, the strength of which will depend on an evaluation of the evidence taken as a whole. ix) Even where the Federal Republic’s case is based on documents, it would need a closer and more prolonged examination and analysis of those documents than is possible within the permissible confines of an application for summary judgment. x) Part of the case, in relation to The Water Gardens, will have to go to trial against S & P in any event, and it might unbalance the trial if findings of corruption have already been made against Mr Alamieyeseigha. It would be better for the trial judge to consider all the evidence in the round.[72]Since part of the case will have to go to trial, including part of the case against S & P, and since the substratum of the evidence is the same against all the defendants, even those who are not represented, I have come to the conclusion that it would not be right to enter judgment even against them. I regard this as a compelling reason for the case against them to go to trial.[73]I acknowledge that this is a strong case on the papers, or at least on those parts of the papers on which the Federal Republic has chosen to rely. Mr Alamieyeseigha undoubtedly has a lot of explaining to do. But as Judge LJ pointed out in Wrexham Association Football Club Ltd v Crucialmove Ltd, even where there is a confident expectation, based on the papers, that the defendant lacks any real prospect of success, experience teaches that apparently overwhelming cases of fraud and dishonesty sometimes inexplicably disintegrate. This is a case, in my judgment, where, in the words of Mummery LJ in Doncaster Pharmaceutical Group Ltd v The Bolton Pharmaceutical Co 100 Ltd, there are reasonable grounds for believing that a fuller investigation into the facts would add to or alter the evidence available to a trial judge and so affect the outcome of the case.[74]For these reasons I refuse the application.

Cited in 30 later judgments

and 21 more of the most senior