R (Director of the Assets Recovery Agency) v Olupitan
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Langley,MRS JUSTICE DOBBS DBE |
| Judgment Date | 08 February 2007 |
| Neutral Citation | [2006] EWHC 1906 (Admin),[2007] EWHC 162 (Admin) |
| Docket Number | Case No: TLQ/06/0872,Case No: CO/3153/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 February 2007 |
[2006] EWHC 1906 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mrs Justice Dobbs DBE
Case No: CO/3153/2005
Mr Tom Weisselberg (instructed by Assets Recovery Agency) for the Claimant
Mr Ivan Krolick (instructed by Stephen Fidler & Co) for the Respondents
Mrs Justice Dobbs:
The Respondents apply under CPR 3.4 to strike out the Claimant's Particulars of Claim in her application for a Civil Recovery Order. The grounds are that (a) the Statement of Case discloses no reasonable grounds for bringing the claim; (b) the Statement of Case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; and (c) there has been a failure to comply with a rule, practice direction or court order.
In the alternative, it is argued that the claim should be dismissed pursuant to the provisions of Part 24, on the grounds that the Claimant has no real prospect of succeeding on her claim.
BACKGROUND
Ayodele Olesegun Olupitan came into this country from Nigeria in 1989. A deportation order was made against him in 1994. It was revoked in 1995 because it was thought (wrongly) that he had returned to Nigeria voluntarily. By 1995, he had obtained a degree in Chemistry at the University of the South Bank. It appears that he continued studying until 1998. He was refused entry into the United Kingdom on 16 th August 1999. Subsequently, somehow, he entered the country and has been here since at least 2000. He is therefore an illegal resident. Makinde is Olupitan's partner. They have two children. They both live at 23 Hazelmere Road, Northolt. They are joint owners of the property.
In February 2002 Olupitan was tried and convicted of an offence of conspiracy to defraud. On 29 th May 2002 he was sentenced to 18 months imprisonment. He was released on Home Detention Curfew on 26 th September 2002. On 27 th September 2002, a confiscation order was made against him in the sum of some £88,000. This order was quashed on appeal. He has two old previous convictions.
THE APPLICATION FOR THE CIVIL RECOVERY ORDER
The application is in relation to 3 properties, namely 23 Hazelmere Road, Northolt; 157 Wellington Drive, Dagenham and 30 Welstead Road, London E6 and two accounts. A freezing order in respect of these assets was granted on 24 th May 2005 by Richards J. Variations to this order have been made to allow for the payment of legal fees and other disbursements.
The Properties
157 Wellington Drive was bought at auction by Olupitan in December 1998 without a mortgage for £25,000. It was registered in his name on 8 th January 1999. The present value is about £100,000. The deposit money of £2,250 came from his Abbey National account number 30147981. The balance was funded from his Halifax account opened in March 1998 and closed in March 1999. The source of the funds in the accounts is not known. There are tenants in the property. Rental is paid into the Abbey National account. This income has not been declared by Olupitan to the tax authorities.
23 Hazelmere Road was bought on 26 th October 2000 for £155,000 with the aid of a mortgage in the sum of £124,000. The remaining £31,000 was paid from accounts of both Respondents funded by cash deposits, the sources of which are unknown. The current value is in the region of £280,000. The equity is approximately £156,000. The mortgage application for the first property indicated that Olupitan was employed as an IT Consultant earning £43,000 per annum. This was untrue. He worked on a casual basis for the named company, earning about £50 per day. During the total period of his employment between 1998 and 2000, he was paid £1,200.
The National Insurance number recorded in the mortgage application relates to another man—his brother, according to Olupitan, whose details were wrongly entered into his application form. Olupitan also wrote a letter to the Bristol and West Building Society on 7 th September 2000 stating that he was the joint owner of 30 Wellstead Road, E6. This property is in fact registered in the sole name of Makinde. It was not purchased until 4 th December 2000. It is contended by the Claimant that Mr Olupitan obtained services and/or a money transfer by deception, by giving false particulars and hiding his immigration status.
In his affidavits, Mr Olupitan avers that the deposit funds were proceeds of a business venture. It is the Claimant's case that the documentation provided shows no link between Mr Olupitan and the business concerned. They are dated June 2001, after the purchase of all three residential properties. Makinde asserts that the funds used from her account towards the deposit were christening gifts and money received from a pyramid system called "Righteous Pause". No details have been provided of the donors and no documentation has been provided in relation to the pyramid scheme.
30 Wellstead Road was bought in the name of Makinde on 4 th December 2000 for £23,240 without a mortgage. The source of the funds for the purchase is unknown. It is now worth approximately £100,000. It was bought under the council's "Right to buy" scheme. There is documentation to show that Olupitan was recorded as being the client and that the two Respondents wished to hold the property as beneficial joint tenants. The London Borough of Newham pay housing benefit in respect of that property. This is paid into Olupitan's Abbey National account. No income in respect of the property has been declared to the authorities by either Makinde or Olupitan.
The accounts
Abbey National account number 30147981 09–01–26 in the name of Olupitan was opened in August 1996. This account receives rental income from the two let properties. The total amount of cash credited to the account between 1996 and January 2005 is £147,000. There is no legitimate source of income identified for those cash deposits. It is contended that the use of the accounts in receiving money from unlawful conduct, in itself amounts to money laundering and thus the funds therein represent recoverable property.
A second account has been identified—Abbey National Bank account no X14285406 held in the name of Olupitan. This account, it is contended, in breach of the freezing order of 24 th May 2005, was concealed from the Court and the Claimant. As there is no legitimate source of income identified, and in the light of the concealment, the inference sought, is that the funds in the account are the proceeds of unlawful conduct and thus represent recoverable property.
Financial Information
Inland Revenue records show that Makinde declared a total income of £37,000 for the period 1992 to 2004. She has been in receipt of working tax credits and child tax credits and is shown to be a single Claimant. As at 14 th June 2004 she was receiving £27.55 every four weeks in child benefit. The Respondents' joint legitimate income from 1992 to 2004 as identified, was approximately £43,200 or £3,600 per annum, insufficient to support them. From August 1996 to January 2005, Olupitan and Makinde received a total of £195,805 in cash into their accounts and unexplained credits in the sum of £24,100. It is noted that the volume of cash deposited decreased substantially when Olupitan was in prison.
The Claimant submits that the property is recoverable, because it directly or indirectly represents the proceeds of unlawful conduct or it represents items purchased with the proceeds of unlawful conduct over a period when the Respondents had no lawful income or their lawful income was insufficient to fund the purchase of the properties. Olupitan had no declared income and Makinde had limited income over the previous 12 years. Despite this, they have been able to acquire 3 residential properties, paying over £80,000 towards them.
The Respondents' position simply put, is that the money was acquired either from business dealings or from relatives in Nigeria. The Claimant points out that no documentary evidence has been provided to support their assertions. No proper explanation has been given by either Olupitan or Makinde as to the circumstances in which they came to receive the money.
Criminal activity relied on
The dishonest conduct asserted is money laundering, mortgage fraud and conspiracy to defraud. As a result of the unlawful conduct, three properties have been obtained. A number of bank accounts contain proceeds of the unlawful conduct. The Claimant contends that the Second Respondent holds recoverable or associated property pursuant to Sections 245 and 304 of the Proceeds of Crime Act 2002.
Conspiracy to defraud – the conviction of February 2002
The period of the conspiracy for which Mr Olupitan was convicted is 1 st July 2000 to 8 th December 2000. Sellingpoint and Milcom, two computer and mobile phone companies based in Europe, were the object of the fraud, a fraud which involved a large quantity of phones and computer components. In October and November of 2000, some £240,000 worth of mobile phones and computer equipment had been obtained from the two companies as a result of the conspiracy. The third consignment with which Mr Olupitan was linked was a dummy consignment, so no loss accrued from it. The Judge directed the jury that the prosecution case was that Mr Olupitan joined the conspiracy on 7 th December 2000, the day of his arrest. At the time of...
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