The Federal Republic of Nigeria v Santolina Investment Corporation and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewison,THE HONOURABLE MR JUSTICE LEWISON |
| Judgment Date | 07 March 2007 |
| Neutral Citation | [2007] EWHC 437 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC05 C03602 |
| Date | 07 March 2007 |
[2007] EWHC 437 (Ch)
The Honourable Mr Justice Lewison
Case No: HC05 C03602
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hearing dates: 27 th February 2007
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 Lewison
Introduction
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.
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
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.
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
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.”
This is not a promising start to a claim that there is nothing worthy of investigation at trial.
The main players
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.
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.
In relation to a fourth property, 247 The Water Gardens, the Federal Republic accepts that the case will have to go to trial.
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.
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.
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.
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).
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...
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