Serious Organised Crime Agency v Agidi

JurisdictionEngland & Wales
JudgeMR JUSTICE SWEENEY,Mr Justice Sweeney
Judgment Date07 February 2011
Neutral Citation[2011] EWHC 175 (QB)
Docket NumberCase No: HQ10X00331
CourtQueen's Bench Division
Date07 February 2011

[2011] EWHC 175 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Before : Mr Justice Sweeney

Case No: HQ10X00331

Between
The Serious Organised Crime Agency
Claimant
and
Christopher Orumgbe Agidi
First Respondent
Angela Ilekenri Agidi
Second Respondent

Jonathan Hall (instructed by SOCA) for the Claimant

James Hines (instructed by Hoffman-Bokaei) for the Respondents

Hearing dates: 28 th– 30 th July 2010, 1 st– 2 nd November 2010

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

MR JUSTICE SWEENEY Mr Justice Sweeney

INTRODUCTION

1

The Serious Organised Crime Agency ("SOCA") seeks the recovery, under the provisions of Part 5 of the Proceeds of Crime Act 2002 ("the Act"), of property worth approximately £1,225,707 (all of which is subject to a Property Freezing Order granted by Collins J on 18 February 2009 —as varied by Master Eastman on 26 February 2010), as follows:-

(1) A house at 84, Hurstwood Road, Golders Green, London NW11 0AU (held jointly by the Respondents and valued, as at 27 October 2010, at £548,391).

(2) £587,157.64 held in a Citibank account (being, as at 27 October 2010, the balance of an International Capital Life Bond previously held jointly by the Respondents with HSBC Life (Europe) Limited, plus interest).

(3) A further £90,048.29 held in the same Citibank account (being, as at 27 October 2010, £86,938.66 which was previously part of a larger total cash sum seized by the Metropolitan Police on and after the arrest of the First Respondent on 10 November 2003, plus interest).

2

The First Respondent (hereafter Mr Agidi) is now aged 68. In March 2002, after 35 years' service, latterly in positions of high rank, he retired from the Nigerian Federal Civil Service. During his years as a civil servant Mr Agidi was paid, in total, the equivalent of about £21,600. On retirement he was paid a gratuity worth the equivalent of about £12,700. He has since been paid a pension the equivalent of about £283 per month.

3

The Second Respondent (hereafter Mrs Agidi) is now aged 66. She is Mr Agidi's third wife. They are both now living in Nigeria. Mr Agidi was diagnosed with prostate cancer in about 2005/2006, and remains in poor health.

4

This claim was formally issued in July 2009, against the background, inter alia, that:-

(1) In the period between 2000 and 2003 sums totalling the equivalent of well over £5,000,000 were credited to bank accounts in London under the control of Mr Agidi, with the majority of those sums being withdrawn in cash.

(2) In 2007 Mr Agidi was prosecuted in London for seven offences variously of concealing, disguising, converting or transferring the proceeds of, or benefit from, criminal conduct in the period between June 2002 and June 2003, but the prosecution failed.

(3) In July 2008, cash forfeiture proceedings brought against Mr Agidi by the Metropolitan Police, under s.298(1) of the Act, were settled.

(4) In January 2009 civil proceedings brought against Mr Agidi by the Federal Republic of Nigeria ("the FRN") were also settled – on this occasion without admission of liability or wrongdoing by Mr Agidi.

5

The main thrust of SOCA's case is that each item sought to be recovered derives from the proceeds of corruption in Nigeria. Its principal assertion is that Mr Agidi and others were involved in corrupt relationships with two companies that obtained multi-million US dollar contracts from the FRN – namely Skoda Export Limited ("Skoda" – based in Praha in the now Czech Republic), and Sagem SA ("Sagem" – based in France). It is further asserted that the relevant credits to the bank accounts in London controlled by Mr Agidi were bribes or rewards resulting from those corrupt relationships, and were thereafter either kept by Mr Agidi for the use of himself and Mrs Agidi, or were withdrawn and distributed by him in cash to others involved in the corruption. In the alternative (and, as will become apparent, controversially) it is asserted that if a relevant credit was not the product of the alleged corrupt relationships with Skoda or Sagem, it must, by inference from all the circumstances, and in accordance with the approach in Anwoir and others [2008] 4 All ER 582, have been a bribe or reward which was the product of a corrupt relationship with another or others, and/or the product of money laundering.

6

The principal thrust of Mr Agidi's case, put forward in a statement dated 19 February 2010, is that his dealings with Skoda and Sagem were legitimate, and that the items of property sought are not recoverable. In a statement made in the cash forfeiture proceedings, Mr Agidi asserted that U$ 20,000 of the cash seized after his arrest on 10 November 2003 belonged to Mrs Agidi, and that £7,800 of it belonged to his daughter Anne Ihonor.

7

Mrs Agidi, in a statement dated 19 January 2010, asserts that she knows nothing about the facts, nor of the allegations made by SOCA. Beyond that, she advances no independent case.

8

The hearings in this case took place over a number of days in July and November 2010, during which, amongst other things, I heard evidence on two occasions from Chris Spencer, a Financial Investigator employed by SOCA, and also from Dr. Tunde Ogowewo, an expert in Nigerian Law.

9

During the hearings the following issues arose for resolution, namely whether:-

(1) Funds could be released from the Property Freezing Order (as varied) to meet Mr and Mrs Agidi's legal costs – as to which I have already ruled against Mr and Mrs Agidi, and set out my reasons below.

(2) The proceedings amounted to an abuse of process – as to which I have already ruled in favour of SOCA, and set out my reasons below.

(3) The evidence of Dr. Ogowewo was admissible – as to which I ruled in July, for the reasons set out below, that consideration of the issue should be adjourned (after which it was resolved by agreement).

(4) The property claimed is recoverable within the meaning of s.304(1) of the Act.

10

I propose first to set out my findings of fact, and then to deal with each of the above-mentioned issues in turn.

THE FACTS

11

I found both Chris Spencer and Dr. Ogowewo to be honest and reliable witnesses. Against that background, I make the following findings of fact, some of which have already been referred to above, on the basis of the evidence and on the balance of probabilities (s.241(3) of the Act), but with the considerable gravity of the allegations firmly in mind – adopting the approach in Re H (Minors)(Sexual Abuse : Standard of Proof) [1996] AC 563, 586/7.

12

Mr Agidi was born in October 1942. He became a civil servant in Nigeria on 15 March 1967. Having, whilst so employed, obtained various academic qualifications, he was posted to the High Commission in London in 1974, rising to become the Minister – Counsellor (Economics). After his return to Nigeria in about 1979/1980, he held various posts including Principal Secretary in the Executive Office of the President. In 1987 he began working in the Federal Ministry of Education – initially as the Principal Secretary (Policy) [1987–1990], rising to the Deputy Director (Policy), Deputy Director (Special Duties) and Director (Policy). He was also (at one stage) the Special Assistant to the Federal Minister of Education. In June 1998 he was posted to the Ministry of Internal Affairs as the Director of the National Civic Registration Directorate, overseeing the implementation of the National Identity Card Project. The military dictatorship in Nigeria ended in 1999. In October/November 2001 Mr Agidi was posted to the Executive Office of the President as Director of Public Affairs. He retired on 15 March 2002.

13

Mr Agidi's total earnings whilst in employment as a civil servant, gratuity on retirement, and pension, were or are in the equivalent of the Sterling sums set out in paragraph 2 above. Until 2002 the most that Mr Agidi ever earned in a year was the equivalent of about £754. In 2002, until his retirement in March, he was paid the monthly equivalent of a salary of £4,470 per annum.

14

From 1989 onwards Mr Agidi was both a public officer in the service of the Federation of Nigeria, and a member of the Civil Service of the Federation. As such, he was under a duty to conform with the Constitutional Code of Conduct provided, at first, under the 1979 Constitution, and then (from 29 May 1999) under the 1999 Constitution. In each case the duty was enforced by legislation. He was thus subject, inter alia, to the following prohibitions or requirements:-

(1) Not to put himself in a position where his personal interests conflicted with his duties and responsibilities.

(2) Not to engage or participate in the management or running of any private business, profession or trade, except farming.

(3) Not to ask for or accept any 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.

(4) Until 29 May 1999, not to maintain or to operate a bank account in any country outside Nigeria.

(5) After 29 May 1999, to complete an Asset Declaration Form for Public Officers, including giving details of credits in any bank accounts held outside Nigeria.

15

In addition, from at least February 1999 onwards, there were wide-ranging criminal offences under the laws of both Lagos State and the Federal Capital Territory (where Mr Agidi was based) prohibiting both bribery and corruption. The offences, overall, were essentially the same as those applicable in England and Wales. In particular, and whether as a principal, secondary party or conspirator:-

(1) Individuals, including companies, were prohibited from giving, conferring or procuring any property to, on...

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1 books & journal articles
  • Mapping the contours and limits of “irresistible inference”
    • United Kingdom
    • Journal of Money Laundering Control No. 23-4, March 2021
    • 30 Mayo 2020
    ...of criminal provenance by “irresistible inference”is acceptable in both money launderingand civil recovery proceedings: SOCA v Agidi [2011] EWHC 175 (QB) at [155], ARA v Olupitan[2008] EWCA Civ 104. Note that the civil standard of proof applies in civil recovery proceedings,while the crimin......

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