Jersey Unreported Judgments

Forfeiture of assets

[2022]JRC230

Royal Court

(Samedi)

19 May 2022

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Austin-Vautier and Averty

 

Crown Advocate S. C. Brown for the Representor.

Advocate J. Harvey-Hills for the Second Respondent.

judgment

the COMMISSIONER:

1.        The Attorney General applies for a Forfeiture Order over certain bank accounts maintained by the First Respondent with the Second Respondent, under the summary procedure established in Articles 10 and 11 of the Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018 ("the 2018 Forfeiture Law").  A Forfeiture Order is defined under Article 1 as an order for the forfeiture of tainted property made under Article 11.

2.         The First Respondent's career in public service in Nigeria spans some 25 years, during which he held several high-ranking positions, including (1) Director of Supply and Transport (1975-1980), (2) Chairman of the Nigerian Railway Corporation (1977-1981), (3) Governor of Bendel State (1983-1985), (4) Minister of Transport and Aviation (1985-1987), (5) Chief of Logistics, Defence Headquarters (1992-1993) and (6) Minister of Federal Capital Territory (1993-1998).  He is said to have been the second most senior officer in the Nigerian army under the rule of General Abacha, who ruled from 1993 until his death in 1998.

3.        There are four accounts totalling the equivalent of some £1.9 million which as at 28^th May 2021 had the following balances on which interest will continue to accrue:

€294,954.38 (EUR)

£447,669.02 (GBP)

$1,684,203.44 (USD)

$62,298.89 (USD)

Since 2003 the police have refused consent for the Second Respondent to operate the accounts in accordance with the First Respondent's instructions.

4.        The Attorney General has reasonable grounds to believe that the property held in the bank accounts is tainted property and with the conditions in Article 10(2) of the 2018 Forfeiture Law being fulfilled, a notice was served by the Attorney General in accordance with Article 10(4) upon the First and Second Respondents.

5.        The matter first came before the Court on 15^th October 2021, when, pursuant to Article 11(2), the First Respondent applied for the matter to be dealt with at a later date, and following adjournments, that date was fixed for 25^th and 26^th April 2022, ("the Forfeiture Hearing") when the Court reserved its decision.  At a directions hearing on the 11^th February 2022 the Court directed, inter alia, that the First Respondent should attend the Forfeiture Hearing in person so as to be available for cross examination on his affidavits.

6.        Further to the 11^th February 2022 directions hearing, the First Respondent has filed three affidavits including an affidavit required by Article 11(3), and as provided by that Article, the burden is upon the First Respondent through his affidavit to satisfy the Court on the balance of probabilities (Article 26) that the property is not tainted property.

7.        Unless the First Respondent satisfies the Court that the property is not tainted property, Article 11(4) provides that the Court shall, on the application of the Attorney General, make a Forfeiture Order in relation to the property specified in the notice or any part of it.

8.        On 3^rd February 2022, the First Respondent issued a summons seeking an order that the Second Respondent release funds in the sterling account to meet the First Respondent's legal expenses, both in Jersey and Nigeria ("the First Funding Summons").  The application was refused by the Court for the reasons set out in its judgment of 30^th March 2022 ("the Funding Judgment") (AG v Useni and Anor [2022] JRC 078).  The day before the Funding Judgment was handed down the First Respondent issued a second summons ("the Second Funding Summons") for the funding of his anticipated appeal against the Funding Judgement.  On the 30^th March 2022 leave to appeal the Funding Judgment was refused by the Commissioner.

9.        The Second Funding Summons sought the following relief:

(i)        The vacation of the Forfeiture Hearing.

(ii)       The convening of the Chief Officer of the States of Jersey Police ("the Chief Officer") to determine the issue of the First Respondent's legal expenses for his appeal against the Funding Judgment.

(iii)      An order that the hearing of the appeal should take place before a differently constituted court.

(iv)      An order that the Chief Officer consents to the Second Respondent releasing funds from the sterling account to Advocate Mistry's law firm, acting for the First Respondent.

10.      Advocate Mistry wrote to the Court on 20^th April 2022, giving notice that it was the intention of the First Respondent to seek leave from the Court of Appeal to appeal the Funding Judgment but given the lack of funds available to him, he had instructed Advocate Mistry not to attend the Forfeiture Hearing should it not be vacated "for no other reason than he believes he will not receive a fair trial as he has not been able to fund his legal representation and defence.  He does not have equality of arms." Advocate Mistry confirmed that to that date he had not been paid for any of the work that he had undertaken for the First Respondent.

Second Funding Summons

11.      The Second Funding Summons was heard and dismissed by the Commissioner on 22^nd April 2022 with reasons reserved and it is convenient to set out those reasons in this judgment. The Commissioner would summarise the arguments put forward by Advocate Mistry in support of the Second Funding Summons as follows:

(i)        The First Respondent remained without legal funding for the Forfeiture Hearing and was unable to properly put forward a defence for his case.  Further, due to lack of legal expense funding, he would not be represented at the Forfeiture Hearing.  His human rights, in these circumstances, were being disregarded.

(ii)       The First Respondent had a legal right to seek leave from the Court of Appeal to appeal the Funding Judgment (for which no application had been made as at that date), which would be done solely for the purpose of securing funds so that his legal representation can be funded.  He is entitled to a fair trial, and he wished to be able to participate in the Forfeiture Hearing by being advised and represented through Jersey counsel, which he was unable to do.

(iii)      Given the tight timetabling between the hearing of the Second Funding Summons and the Forfeiture Hearing, the First Respondent could not prepare for the Forfeiture Hearing should his application to vacate the Forfeiture Hearing dates not succeed.

(iv)      Advocate Mistry referred to the following authorities on adjournments, namely States Greffier v Les Pas Holdings Limited [1998] JLR Notes 3a and Dick Stock v GB Trustees Limited and Others [2019] (1) JLR Note 6.  Of the factors set out in the latter case, the following were said by him to be relevant:

(a)       These proceedings were important inasmuch as they are very serious with the potential consequences to the First Respondent of being deprived of circa £2 million.

(b)       There was a real risk that the First Respondent would be prejudiced in the conduct of these proceedings if the application to vacate was refused, and the Forfeiture Hearing proceed the next working day when he has not received paid legal advice.  The most likely outcome, given the reverse burden of proof, is that the money in his bank accounts would be forfeited.  All of this would occur whilst the First Respondent would have an extant application for leave to appeal before the Court of Appeal.

(c)       As far as the risk of prejudice to the Attorney General was concerned, there had been a refusal of consent in operation over the bank accounts for nearly nineteen years and it was not until 2021 that the Attorney General decided to issue formal proceedings.  Vacating the Forfeiture Hearing dates would have no material prejudice to the Attorney General and the existence of the refusal of consent meant there was no risk of dissipation.

(d)       An adjournment was in the interests of justice generally.  The case was of general public importance and various local and foreign stakeholders would be watching to see how the case progressed.

(v)       A private law action against the Second Respondent would not address the human rights arguments put forward by the First Respondent and it was permissible therefore for the First Respondent to convene the Chief Officer who can be ordered to provide consent to the release of funds in the bank accounts to pay for the First Respondent's legal expenses of his appeal against the Funding Judgment.  This type of application would not be necessary if the States Assembly had heeded the Court's previous criticisms of the legislation and a recommendation that it be amended to include a time limit on the no consent regime - see, for example, paragraph 74 of the judgment in Chief Officer v Minwalla [2007] JLR 409 and paragraph 38 of the judgment in Gichuru v Chief Officer of the States of Jersey Police [2008] JRC 068.

(vi)      There was a danger that if the same Court sat to hear the Second Funding Summons, it may be prejudiced by its findings in the Funding Judgment, with the danger, therefore, that the First Respondent would not receive a fair hearing.  The applications were different in that this related to the funding of the appeal and orders are sought against the Chief Officer as a public authority, rather than against the Second Respondent.

12.      The Commissioner was not persuaded that there was any merit in any of the relief sought in the Second Funding Summons, essentially for the reasons put forward in the very comprehensive skeleton argument filed by Crown Advocate Brown.  The First Respondent was attempting to run the same arguments that failed in the First Funding Summons.

13.      The First Respondent sought the release of cash from the accounts held by the Second Respondent which remain subject to a refusal of consent.  He sought to do this for the second time, albeit cloaking that application in the guise of funding for an appeal against the Funding Judgment.

14.      In the course of argument in respect to the First Funding Summons, the First Respondent sought an order from the Court compelling the Second Respondent to pay money away to Advocate Mistry in pursuance of the First Respondent's Convention rights.  This was rejected by the Court for the following reasons:

(i)        The First Respondent did not satisfy the Court that he had no other available assets with which to pay his legal fees.

(ii)       There was no scope to raise the relief sought as the First Respondent's Convention rights could not be asserted in the proposed manner. There is no concept of "free standing human rights" relief.

(iii)      There was a line of authority which explained that there were two means by which the First Respondent could access the funds, namely a private law action or judicial review.

15.      The Second Funding Summons invited the Court to order the Chief Officer to be convened to the summary proceedings so that he may be ordered to provide consent to the Second Respondent to release property to pay Advocate Mistry in pursuance of the First Respondent's Convention rights.

16.      The submissions made on behalf of the First Respondent in the Second Funding Summons were, using the words of Crown Advocate Brown, pure paralogism: the First Respondent sought to appeal the Funding Judgment and in the course of appealing seeks from the Court an order that the police give consent to the Second Respondent to pay legal expenses in order to fund the appeal and this, where the relief claimed against the Chief Officer is on the exactly same basis that was rejected in the Funding Judgment.  The doctrine of chose jugée clearly applied to estop the First Respondent from taking this same point again though configured against the Chief Officer.

17.      Looking at the Second Funding Summons in another way, what was sought was a hearing to apply for funding for an appeal on the same grounds that have been rejected, albeit interposing a different party in a new action, so that the Chief Officer could be ordered to give consent to the Second Respondent to pay out funds.  Thus, the Chief Officer would be ordered to give consent despite there being a reasonable suspicion as informed by a SAR, that the accounts with the Second Respondent contained tainted property and this, without any evidential assessment into the underlying reasons for the refusal of consent or the maintenance of it.

18.      This was simply another means whereby the First Respondent sought to sidestep the procedural and evidential obstacles that he faced were he to bring the only viable claim left to him, that is judicial review against the police decision to refuse consent.  The First Respondent had a full opportunity in the past to take this argument against the Chief Officer and/or convene him as a party to a judicial review but has chosen not to do so.

19.      This was simply an attempt to impugn those parts of the Funding Judgment, in advance of the determination of the appeal, by arguing the same point against a different party to obtain funding on the same basis, all the while declining to pursue remedies available to him through settled and persuasive decisions in the case law.  The claim against the Chief Officer for funding whether or not it relates to the appeal can only be by way of judicial review.  This is the effect of not only the earlier authorities but also the Funding Judgment.

20.      It follows that the motive for taking the course pleaded in the Second Funding Summons was to circumvent the scope and effect of the Funding Judgment whilst seeking to argue the same point against a different party.  Cloaking the application in the guise of leave to appeal fails to hide that motivation.  The Court determined that this application could not proceed as it would run contrary to the public interest in ensuring the finality of litigation.

21.      Despite the protestations of Advocate Mistry, the Commissioner agreed with Crown Advocate Brown that the application for a different Court to hear the Second Funding Summons was a recusal application and applying the well-recognised test for recusal set out in AB v AG (Capacity) [2020] JCA 094 there was no basis for suggesting that the Commissioner and Jurats who sat on the First Funding Summons ought to recuse themselves.  The fact that the Court found against the First Respondent in the Funding Judgment does not mean that the tribunal of fact and law is not impartial.  The Court reached a reasoned conclusion which had been explained, drawing appropriate inferences from the material it had before it and the material the First Respondent had chosen to put before it in the full knowledge of the applicable principles.  Merely because the finding was adverse to the First Respondent it did not follow that the Court ought to recuse itself.

22.      Crown Advocate Brown described it as particularly egregious that the First Respondent was making an argument for recusal further to Convention rights when an adverse judgment in BNP Paribas Jersey Trust Corporation Limited v C. de Bourbon des Deux Siciles [2021] JRC 253 on a seemingly identical point has already been given.

23.      As to an adjournment, Crown Advocate Brown pointed out that the 2018 Forfeiture Law only came into force on 20^th August 2018 and under Article 10(2)(d) notification of a refusal by the police must be given at least twelve months before the date on which the notice is to be served.  There had been no delay under the 2018 Forfeiture Law.  Prior to that, the imposition of a saisie judiciaire would have been dependent upon a criminal investigation or criminal proceedings and there was no information before the Court to support an allegation of delay on the part of the Attorney General.  Furthermore, the First Respondent had not at any stage over this extended period had recourse to the two remedies available to him.

24.      Crown Advocate Brown pointed out that this case was important to Nigeria, whose position was that the funds within the bank accounts belonged to Nigeria, and should be returned to the people of Nigeria (paragraph 12 of the affidavit of Ms Awal Selimat Adeseun, Assistant Chief State Counsel for the Federal Ministry of Justice)

25.      The First Respondent had been on notice from 31^st October 2021 of the application and must know the source of the funds within the bank accounts.  These are evidential matters, not involving points of Jersey law, entirely within his power and there is nothing preventing him disclosing the source in clear terms, which, as stated below, he failed to do.  Rather than addressing this central point, he was engaging in meritless interlocutory games, designed to avoid the effect of the Funding Judgment.

26.      We turn now to the history of the bank accounts.

History of the bank accounts

27.      In March 1986, a numbered bank account was opened with the Second Respondent (known at the time as ANZ Grindlay's Bank, Jersey) for 'Mr Tim Shani'.  Mr Shani had been introduced to the Second Respondent by an existing customer, namely Mr Selcan Miner, who undertook the initial account opening.  It was possible, at that time, to open a numbered account which replaces the identity of the account holder with a multi-digit number allowing for greater client confidentiality.  The numbered account (as well as several sub-accounts) was opened.  As was subsequently discovered, Mr Shani does not exist and the true holder of the accounts is the First Respondent.

28.      A letter exists from Mr Miner dated 17^th March 1986 in which he states: "We spoke, kindly arrange numbered a/c for my friend'.  Mr Miner admitted to opening the account for the First Respondent in a letter written in January 2008.

29.      Further misleading information was also contained on the account opening form, which stated that:

(i)        Mr Shani was of Cameroonian nationality.

(ii)       His occupation was 'business' (the First Respondent was the Minister of Transport and Aviation at the time).

(iii)      His permanent address was 118 Oakwood Court, Abbotsbury Road, London (which was in fact Mr Miner's residential address in London).

30.      It was then permissible for an existing customer (in this case, Mr Miner) to provide a reference for a new one, which meant that no further CDD (Customer Due Diligence) was required.  An applicant was therefore not required to provide any identification documents, supporting evidence or source of wealth information on behalf of the persons they were introducing to the Second Respondent.  As a result, the identity of an account holder was easily disguised and in the view of the Attorney General was, for those that wished to abuse that facility, an ideal vehicle for hiding the proceeds of crime.  That is precisely what the Attorney General suspects has happened in this case.

31.      Due to the time that had elapsed, it is no longer possible to retrieve all the bank statements.  The oldest record of a transfer between accounts is a letter of 30^th September 1997 signed by Mr Shani transferring $260,000 from the US dollar account to the sterling account.  The available bank statements show substantial payments in and out of the accounts.  We set out below some examples of payments into the accounts:

(i)        From Dantata and Sawoe DM999,977.27 in March 1995;

(ii)       From Société Alan $199,984.62 on 20^th December 1995;

(iii)      From Lordmart Nig US$399,982.67 on 7^th February 1996;

(iv)      From C & C Constructions US$128,500 on 20^th April 1996;

(v)       From Plazatour SA US$399,983.78 on 18^th April 1997.

According to the research of DS Jeremy Phillips, of the Economic Crime and Confiscation Unit in the States of Jersey Police, these appear for the most part to be active construction companies.  The First Respondent has never provided any information despite opportunities to do so about his possible ownership or control of any engineering or construction companies at the relevant time.  The First Respondent has never explained the source of any of the transfers into the accounts.  The activity on each account significantly decreased in the late 1990s indicating that the First Respondent did not use these accounts as his main source of liquidity.

32.      The majority of contacts the First Respondent had with the bank prior to 2001 was in the form of handwritten transfer requests signed by Mr Shani.  The last known handwritten transfer request was dated 11^th July 2001 and after this it appears that the Second Respondent received no further communication from Mr Shani until 7^th January 2002.

33.      On 2^nd July 2001, the Second Respondent wrote to the First Respondent (believing him to be Mr Shani) to inform him that changes to anti money laundering legislation in Jersey had resulted in stricter regulation.  A new banking application form was necessary as well as a certified copy of his passport.  There is no record of any response.  A note attached to this letter dated 11^th July 2001 explains that Ms Lorraine Dimond, the Senior Relationship Manager of the Second Respondent, spoke to Mr Miner 'asking him to request Mr Shani to contact us ... as funds could be frozen".

34.      On 20^th August 2001, the Second Respondent again wrote to say that the numbered account facility which they operated was no longer suited to the modern financial climate and that it would be restyled to operate in the 'normal way'  using the individual's name.

35.      In response, on 7^th January 2002, Mr Shani requested that the entire balance in his existing accounts be transferred to a Commerze Bank account held in the name of Lion Bank of Nigeria PLC, in which it transpires the First Respondent was a shareholder.  This request was refused in a letter sent on 8^th February 2002 on the grounds that the necessary documentation previously requested had not been provided.

36.      On 27^th February 2003, the Second Respondent was refused consent to operate the accounts by the Joint Financial Crimes Unit ("the JFCU").

37.      The Second Respondent made periodic attempts to contact Mr Shani from 2003 but it does not appear that any responses were obtained.  A file note dated 6^th June 2006 states that:

"Attempts to contact the client have failed for the past four years, have no update of information since the mandate of 1986.  Waiting for client to contact us."

Attempts to regularize account

38.      Mr Tunde Akinrimisi, the First Respondent's Nigerian solicitor, made contact with the Second Respondent on 28^th November 2007 to organize a meeting in Jersey.  A file note explains that on 4^th December 2007, the First Respondent and Mr Akinrimisi had a meeting with employees of the Second Respondent.  The file note states that they 'discussed KYC requirements."  In subsequent correspondence from the First Respondent, it would appear that at this meeting, he identified himself as the true owner of the Shani accounts and, as a result, completed a new banking application form in his real name.

39.      In the December 2007 banking application form the First Respondent stated the following:

(i)        his full name was Jeremiah Timbut Useni;

(ii)       his address was 16 Rima Street, Abuja, Nigeria;

(iii)      he was of Nigerian nationality;

(iv)      his occupation before retirement was as a Lieutenant General; and

(v)       the main source of his wealth was derived from the profits of his multiple businesses which included transportation, hotel hospitality, petrol stations, personal accumulated savings and property investment rental.

(vi)      The reason for opening a Jersey based account was for 'security' as it was 'necessary to hold proportion of wealth outside of Nigeria.'

40.      The Second Respondent requested that before the account could be placed into the name of 'Useni', identification documentation would be required.  On 5^th December 2007, the JFCU continued its refusal of consent to operate the bank accounts.

41.      Mr Akinrimisi wrote to the bank on 24^th December 2007 attaching documents that attested to the First Respondent's identity, including a letter from his bank in Nigeria, an identity form, an affidavit of identity and a letter of introduction.  None of these documents addressed the provenance of the funds or the First Respondent's source of wealth.  The documents only sought to clarify that he was the owner of the Shani accounts, and now wanted access to the funds therein.

42.      On 21^st May 2008 the Second Respondent requested in correspondence that the First Respondent provide:

"with regards to inwards credits ... a full explanation of the source of these monies and the rationale for the transfers to his account."

43.      Importantly, the letter asked for "supporting documentation to back up the provenance of the funds."  In a further email on 3^rd June 2008, it also sought "a full explanation as to why the account was originally opened under a different name."

44.      At no stage did the First Respondent or Mr Akinrimisi address the issue of the source of funds; it was instead asserted that the funds were the First Respondent's and as such he should be allowed access to them.  In a letter dated 26^th May 2008, Mr Akinrimisi stated that:

"Where the bank no longer feels comfortable with our Client's funds ... the justice of the case simply dictates that the said funds should be returned to our Client."

45.      On 31^st May 2008, the First Respondent provided details of his source of funds as if opening a new account.  He stated that he dealt in "property development where I sell some and put some on rent."  He also owned a shopping centre, two petrol stations and a domestic gas station, a farm and a rice mill.  In addition, he had various investments.  Annexed to this document was a management report from Image Maker Property and Developers Ltd listing properties, tenants and rental income; a management report from Tropical Cost Global Resources which similarly listed properties, tenants and rental income and a management report from Bode Adediji Partnership concerning a shopping mall in Abuja. 

46.      These documents provided no information about the First Respondent's income in the 1980s and 1990s.  There was no evidence offered to explain how he had generated the funds that were present in his accounts two decades earlier, including the six-figure transfers.  It is also unclear how or when he came to own the portfolio of properties and businesses listed.

47.      The First Respondent stated that he had not set up the account in a false name, rather, that he used a 'coded password name" as advised by Mr Selcan Miner.  The First Respondent also said that he had 'registered companies in Nigeria with similar coined names".  The First Respondent did not explain whether those business interests were the source of the large cash assets he had accumulated in the 1990s.

48.      The account opening form of 1986 clearly requests the individual's forename and surname, which the First Respondent falsely stated was "Tim Shani", which does not indicate a coded password.  There is no explanation as to why the First Respondent went further and gave a false nationality and occupation for Mr Shani if it was indeed simply a 'coded password name'.  The obvious inference, in the view of the Attorney General, is that he did so in order to further distance himself from the ownership of assets that had a likely criminal origin.

49.      Ms Addeseun has caused a search to be undertaken on the official records of the Federal Government of Nigeria with respect to declarations made by public officers according to the Code of Conduct Bureau and Tribunal Act 1989 and there is no record of the First Respondent declaring his bank accounts.  In an interview with the First Respondent published by the website "pointblanknews.com" on the 7^th June 2011 the First Respondent expressly denied having any foreign bank account.

50.      Further documentary evidence was placed before the Court on behalf of the Attorney General relating to the role played by Mr Miner (who received £90,000 out of the bank accounts on 8^th October 1993 for which no rationale has been provided) and a Jersey company called Longon Investments Limited, to which substantial payments were made out of the bank accounts between May 1991 and July 1996, but there is no need to lengthen this judgment any further by setting out that documentation or by summarizing Crown Advocate Brown's detailed analysis of certain aspects of the documentation which he said were indicative of corruption.  Suffice it to say the high value payments into the bank accounts all date from a period of the First Respondent's tenure as Minister of Federal Territory under the rule of General Abacha. 

51.      The sworn statement of Ms Igoche Hadassah, counsel in the law firm of Vinyuch Law Office in Abucha, Nigeria, procured on behalf of the Attorney General, shows that in 2000, the First Respondent was charged by the Federal Government of Nigeria before the Code of Conduct Tribunal (established as an administrative court exercising jurisdiction over public officers) with allegations of failure to declare assets on assumption of office in 1993, allegations of running private businesses while in office and abuse of office by allegedly allocating plots of land to himself and to companies in which he had an interest.  Those charges were struck out by the Tribunal on the grounds of lack of diligent prosecution and have therefore not been heard on their merits.

52.      In the view of the Court there are ample grounds upon which the Attorney General could reach the belief that the property held in the bank accounts is "tainted property".  Tainted property is defined under Article 2(1) of the 2018 Forfeiture Law as follows:

"2       Meaning of 'tainted property'

(1)       For the purposes of this Law, 'tainted property' means property (as further defined by paragraphs (2) to (7) which is or, by the Attorney General or any officer on whom powers are conferred by this Law, is reasonably suspected to be or have been -

(a)   Used in, or intended to be used in, unlawful conduct; or

(b)   Obtained in the course of, from the proceeds of, or in connection with, unlawful conduct."

53.      "Unlawful conduct" is defined under Article 1(1) as meaning conduct:

"(a) constituting an offence against a law of Jersey: or

(c)   which, if it occurs or has occurred outside Jersey, would have constituted such an offence if occurring in Jersey."

54.      As explained in AG v Ellis [2019] JRC 141 at paragraph 7, the definition of 'tainted property' has two parts.  Under the first part it means property 'found' to have been 'used in, or intended to be used in, unlawful conduct'.  In broad terms, this first part is concerned with property which is not necessarily the proceeds of crime, but the instrumentalities of crime.  The second part is concerned with property 'found' to have been 'obtained in the course of, from the proceeds of, or in connection with unlawful conduct'.   This second part is concerned with the proceeds of crime.

55.      The Attorney General believes that the Shani accounts were created to hold, hide and conceal bribes or other proceeds of corruption received by the First Respondent during the period he held public office.  The payments into the Shani accounts were more likely than not for the purposes or on account of exercising political influence over the award of lucrative contracts to foreign and Nigerian companies for the supply of industrial or commercial services in Nigeria.  If this conduct had occurred in Jersey, it would have constituted the customary law offence of misconduct in a public office: Bhojwani [2008] JCA 188.  Two things follow.  First, the Shani accounts were used in, or intended to be used in, that unlawful conduct.  Second, the assets in the Shani accounts were obtained in the course of and in connection with that unlawful conduct.

56.      There are also reasonable grounds for the Attorney General to believe that the money in the Shani accounts was the proceeds of crime in the hands of Mr Selcan Miner, who operated the accounts from his London address on the instruction of the First Respondent.  That property is criminal property within the definition in the Proceeds of Crime (Jersey) Law 1999, such that the possession or use by him of the property would have constituted the Jersey offence of money laundering and would therefore also fulfil the 2018 Forfeiture Law definition of tainted property as property obtained in the course of and in connection with unlawful conduct.

57.      We turn, therefore, to the affidavit evidence placed before the Court by the First Respondent which must satisfy the Court that the property held in the bank accounts is not tainted property.

Evidence of the First Respondent

58.      The relevant part of the First Respondent's evidence is contained in paragraphs 8 - 17 of his first affidavit which we set out in full:

"8        I was at all material times an official in different military governments in Nigeria, a sovereign state, which sits outside the jurisdiction of the court in Jersey,

9.        The Military governments under which I served governed via Decrees as the Constitution of Nigeria at that time was suspended.  This remained the case throughout the incumbency of the said Nigerian governments.  It should be said that between 1966 to 1999, Nigeria was for the most part ruled by the Military, and the General Abacha regime that the AG is fixated on, reigned from November 1993 to 1999, it being noted that General Abacha died in 1998.

10.      In accordance with a culture of gift-giving in Nigeria which is still accepted practice in Nigeria, government officials from time to time receive cash gifts from friends and well-wishers during festive seasons, such as Christmas, New Year, Easter, Eid el-Malud, Id el-Fitri and other Muslim festivals and other ceremonial occasion.  These acts are similar to gifts being provided by Members of Parliament in England or corporate gifts being provided to director/employees.

11.      The culture needs to be looked at in the context of when I was a government official, and at that material time, save there being a culture of gift-giving, there was no official code of conduct governing the issue.  This could also be said to be true for the western governments, from what I know, so Nigeria should not be chastised or criticised for this.

12.      Furthermore, the imposition of western ideas on a sovereign state should also be avoided, as the AG is trying to make assumptions on a culture and a government that he does not know, especially, during the material time that I was in office, where the world both in Africa and the west, was a different place.

13.      I can for the avoidance of doubt say, that during the material time of me being in office, I understood that a bribe was when payments were made to get faster or better service, to gain advantage in public procurement etc.  I confirm that non-of the gifts that I received were for these purposes, and if the AG is alleging that this was the case, I then ask that he specifically sets out his case so that I can answer to it, rather than just making a series of assumptions as he has done.

14.      The Court should also be made aware that Nigeria has moved with the times, like western democracies, and there is now a Code of Conduct for Public Officers in Nigeria, and upon review of this, I still maintain that I am not in breach of any of the provisions which now appear.

15.      In terms of the specific of my case, and how I accumulated the funds in the Bank Accounts, I wish to say as follows:

           i)          Between 1983 and 1985 I served as the Military Governor of Bendel State of Nigeria.  During this time, I received cash gifts from friends and well-wishers on festive seasons and other ceremonial occasions.

           ii)          Between 1985 - 1987, I served as the Minister of Transport and Aviation and during that time I continued to receive cash gifts from various friends and relatives, which gifts I did not have any immediate need to spend and thus decided to add the same to my earlier savings.

           iii)         I had decided to save all such monies received whilst I was in active service as I was living well on my emoluments from the State.

           iv)         During the material time, it is accepted that a friend of mine, Selcan Miner, advised me to open accounts with the Second Respondent.  The rationale was to keep savings for my retirement.

           v)          I accepted this advice and asked Selcan Miner to open accounts on my behalf, which was perfectly acceptable and legal at the material time, and did ask him to use an alternative name, Tim Shani.  The primary reason for this was nothing sinister, but for my own protection.  As you will understand from reviewing Nigeria's history, it has had a number of coups, and we are now on our fifth republic.  The governmental regimes are unstable, and if rules came into office who were not friendly to my political persuasion, my wealth and safety could be on the line.

           This is not some made up or fanciful explanation, it is the reality of living in Nigeria, and if I have used the laws at the material time to protect myself and my family, by using a different name when opening a bank account, it is not the same as doing so for some criminal cover up.

           vi)         Between 1993 and 1998, I served as Minister of the Federal Capital Territory and during my tenure, I continued to receive cash and other gifts from friends, relatives and well-wishers; which said cash I converted to foreign currency and sent to be deposited in my accounts with the Second Respondent.

16.      It was not until my retirement from the military and the government that I decided to access the Bank Accounts and realized that the information on the accounts did not contain my name and other relevant details.  It was at this stage that I tried to engage by making the necessary corrections, however, by that stage it was too late and the Bank Accounts were effectively frozen.

17.      It is a well-known fact in Nigeria that there is a prevailing custom for friends, relatives and well-wishers to exchange gifts during festive seasons and ceremonial occasions and when visiting public officials without any intention to bribe or secure favours from such public officials.  This is how I have accumulated the funds in the Bank Accounts, and this is how I have been able to buy businesses etc.  It is not corruption and if this were the case, the Nigerian government and authorities have all the necessary legislation and law enforcement agents to make a criminal case against me in Nigeria."

59.      Essentially, the First Respondent's case is that the source of the substantial sums paid into the bank accounts is cash gifts from friends, relatives and well-wishers on festive and other ceremonial occasions in accordance with Nigerian custom, but in the view of the Court it is simply not credible that friends, relatives and well-wishers would make gifts to the First Respondent, as a public official, of such magnitude to allow him not only to accumulate millions in these bank accounts, but to acquire the very substantial assets he said he owned in Nigeria.  It is an explanation that verges on the absurd.  A number of points arise:

(i)        The First Respondent says he converted these gifts into foreign currency and sent them to be deposited in the bank accounts.  There is nothing in the bank statements to show such substantial deposits from the First Respondent and nowhere does the First Respondent explain why these large deposits into the bank accounts came from construction companies.

(ii)       The First Respondent states that he was living well on his emoluments from the State of Nigeria and does not assert that he could have sourced the bank accounts or the acquisition of the substantial assets he has acquired in Nigeria from his earnings.  That is supported by Ms Adeseun who states in her affidavit that as of 2021, the monthly income of a Lieutenant General in the Nigerian army is the equivalent of US$2,430.78, whilst that of a Minister in Nigeria is the equivalent of US$4,943.77.  She points out that the First Respondent would be earning far less when he was in service and when the funds were transferred into the bank accounts.  The funds transferred to the bank accounts could not, therefore, have accumulated as legally earned income or explain the very considerable wealth claimed by the First Respondent and his Nigerian lawyer in 2007 and 2008.

(iii)      The First Respondent states that there is now a Code of Conduct for Public Officers in Nigeria, an undated and short copy of which he exhibited implying that there was no such code when the bank accounts were funded, but Ms Hadassah exhibits to her affidavit the Code of Conduct Bureau and Tribunal Act 1989, described as an Act to provide for the establishment of the Code of Conduct Bureau and Tribunal to deal with complaints of corruption by public servants for the breaches of its provisions.  This Act would have been in force well before the substantial credits into the bank accounts referred to above. Section 10 of the second schedule provides as follows:

"10      Gifts or benefits in kind

(1)       A public officer shall not 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.

(2)       For the purposes of subsection (1) of this section, the receipt by a public officer of any gifts or benefits from commercial firms, business enterprises or persons who have contracts with the Government, shall be presumed to have been received in contravention of subsection (1) to this section, unless the contrary is proved.

(3)       A public officer shall only accept personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognised by custom.

Provided that any gift or benefit to a public officer on any public or ceremonial occasion shall be treated as gifts or benefits to the appropriate institution represented by the public officer, and accordingly, the mere acceptance or receipt of any such gift or benefit shall not be treated as a contravention of this provision."

(iv)      Whilst there is reference to public officers accepting personal gifts or benefits from relatives or personal friends as recognised by custom, it provides that any such gifts or benefit should be treated as gifts or benefits to the appropriate institution represented by the public officer, and in any event, it is simply not credible that the First Respondent's friends, relatives or well-wishers would have gifted such enormous sums to him.  Section 7 also prohibits any public officer specified in the second schedule (which we believe would extend to the offices held by the First Respondent) from maintaining or operating a bank account in any country outside Nigeria.

60.      In conclusion, the affidavits of the First Respondent have not satisfied the Court that the property held in the bank accounts is not tainted property and on the application of the Attorney General, we will make a Forfeiture Order in relation to that property.  Article 11(5) of the 2018 Forfeiture Law provides that property which is forfeited shall be paid into the Criminal Offences Confiscations Fund established under Article 24 of the Proceeds of Crime (Jersey) Law 1999 ("the Fund").

Costs

61.      Advocate Harvey-Hills applied for the Second Respondent's costs (estimated at circa £45,000) of and incidental to these proceedings to be paid out of the forfeited funds.  In most cases arising out of the summary procedure under the 2018 Forfeiture Law, the bank concerned will have no need to take an active part in the proceedings, but we accept that in this case, in addition to being made a respondent to the Attorney General's representation, the Second Respondent was made a party to the two summonses issued by the First Respondent and had an active role to play in the First Funding Summons in which an order was sought against it.

62.      The application for costs was not opposed by Crown Advocate Brown, although he reminded the Court of the interest of Nigeria in the amounts forfeited under the sharing agreement that exists between Jersey and Nigeria.  The Minister for Treasury and Resources also has an interest in the amounts coming into the Fund for the other purposes to which the Fund can be put under the provisions of Article 24(4).

63.      Until these funds are forfeited, they remain tainted property, but under Article 3(2) of the 2018 Forfeiture Law, property once forfeited shall cease to be tainted property, and there is nothing in this Law to oust the jurisdiction of the Court to make costs orders under the Civil Proceedings (Jersey) Law 1956 over funds which are no longer tainted.

64.      The procedure by which such costs can be paid in these circumstances is not straightforward and we have not heard argument on the issue, but we think it just in these circumstances that the Second Respondent should have its costs on the indemnity basis, because of the unreasonable conduct of the First Respondent.  The amount involved represents a small proportion of the funds to be forfeited.

65.      We therefore intend to order as follows:

(i)        We will make a Forfeiture Order in respect of all of the funds within the bank accounts.

(ii)       We will order the Second Respondent to pay over the totality of the funds in the bank accounts to the Viscount.

(iii)      We will order the Viscount to pay all of those funds, less £45,000, into the Fund.

(iv)      We will order that the Second Respondent shall have its costs of and incidental to these proceedings on the indemnity basis to be agreed with the Attorney General, or failing agreement, to be taxed, such costs to be paid by the Viscount out of the retained sum of £45,000 with any surplus being paid into the Fund.

Authorities

Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018. 

AG v Useni and Anor [2022] JRC 078. 

States Greffier v Les Pas Holdings Limited [1998] JLR Notes 3a. 

Dick Stock v GB Trustees Limited and Others [2019] (1) JLR Note 6. 

Chief Officer v Minwalla [2007] JLR 409. 

Gichuru v Chief Officer of the States of Jersey Police [2008] JRC 068. 

AB v AG (Capacity) [2020] JCA 094. 

BNP Paribas Jersey Trust Corporation Limited v C. de Bourbon des Deux Siciles [2021] JRC 253. 

AG v Ellis [2019] JRC 141. 

AG v Bhojwani [2008] JCA 188. 

Proceeds of Crime (Jersey) Law 1999. 

Civil Proceedings (Jersey) Law 1956.