Jersey Unreported Judgments

Hearing (Civil) - application for a property restraint order relating to recoverable property of Mohamed Sani Abacha.

[2016]JRC060A

Royal Court

(Samedi)

11 March 2016

Before     :		J. A. Clyde-Smith, Esq., Commissioner, sitting alone
Between	Doraville Properties Corporation		Applicant
And	Her Majesty's Attorney General		Respondent

IN THE MATTER OF DORAVILLE PROPERTIES CORPORATION AND IN THE MATTER OF AN APPLICATION FOR A PROPERTY RESTRAINT ORDER IN RESPECT OF THE RECOVERABLE PROPERTY OF MOHAMED SANI ABACHA

AND IN THE MATTER OF THE CIVIL ASSET RECOVERY (INTERNATIONAL CO-OPERATION)(JERSEY) LAW 2007

Advocate P. G. Nicholls for the Applicant.

Advocate M. T. Jowitt for the Respondent.

Advocate J. M. Dann for the Federal Republic of Nigeria.

judgment

the commissioner:

1.        I am sitting today to give directions on the admissibility of expert evidence on the part of the applicant and to review the case generally for the final hearing which is due to start on 16^th May this year for three days ending on the 18^th May.  The case concerns an application by the Attorney General under the Civil Asset Recovery (International Cooperation)(Jersey) Law 2007 ("the 2007 Law") for the recovery of assets held by Doraville Properties Corporation, ("the applicant"), in support of ongoing asset forfeiture proceedings being pursued by the USA Department of Justice and, in particular, following a default judgment over the assets of the applicant given by the District Court of Colombia on 6^th August, 2014. 

2.        As became clear in discussion this morning, US law is relevant to this case and therefore both parties are entitled to call expert evidence.  Neither party seeks to call more than one expert but for the avoidance of doubt I limit the number of experts each is entitled to call to one pursuant to Rule 6/20(2)(d) of the Royal Court Rules 2004. 

3.        Following AG-v-Bhojwani [2009] JRC 207A at paragraph 21 and the formulation of the test in R-v-Bonython (1984) 38 SASR 45 I find that:-

(i)        the subject of the evidence, namely US law in relation to the default judgment, falls within the classes of subject upon which expert testimony is permissible;

(ii)       there seems little doubt from the CV produced that the applicant's proposed expert Jeffrey Alberts is suitably qualified to render an opinion of value to the Court.  I do not yet have the details of the expert that the Attorney General may call but assume that he or she will also be suitably qualified. 

4.        Advocate Nicholls for the applicant has, as directed, prepared a summary of his expert's report and Advocate Jowitt for the Attorney General contends that some of the questions put to that expert as summarised, and the answers he has given, extend impermissibly beyond his expertise to issues which are for this Court to determine.  Those questions are at paragraphs 2(d) and (e) and 3(b) and (c) of the summary with the answers being set out at paragraphs 49-62 of the summary. 

5.        The principles governing the admissibility of evidence of foreign law are dealt with in the 18^th edition (2014) of Phipson on Evidence as follows:-

"The function of expert witnesses in foreign law may be summarised as follows:-

(1)   to inform the court of the relevant contents of the foreign law identifying statutes or other legislation and explaining when necessary the foreign courts approach to their construction;

(2)   to identify judgments or other authorities explaining what status they have as sources of the foreign law; and

(3)   where there is no authority directly in point to assist the English judge in making a finding as to what the foreign court's ruling would be if the issue was to arise for decision there."

This is a direct quotation from the judgment of the Court of Appeal of England in Macmillan Inc -v-Bishopsgate Investments Trust Plc No (4) [1999] CLC 418 at paragraph 23.  Phipson goes on:-

"Expert evidence is admissible as to the content and general application of the foreign law.  However, it is not the function of such evidence to opine on the application of such law to the specific facts of the case as that would intrude into the judicial function as to the ultimate issue: Noza Holdings Pty Ltd-v-Commissioner of Taxation [2010] FCA 990."  (My emphasis).

As explained at paragraph 13 of the judgment in the Noza case:-

"an expert's ability to give an opinion on foreign law is circumscribed.  A distinction is drawn between the content of the foreign law and evidence about the application of the foreign law to the facts of the particular case: Neilson at [119] and Allstate Life Insurance Co-v-Australian and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 82.  The content of the foreign law is a question of fact about which expert evidence is receivable: Allstate at 82-83.  However, once the "content" is ascertained, the application of that foreign law is a matter upon which evidence is not receivable: Neilson at [119].  The reference to "content" is a reference to identifying and expounding, in general terms, the scope, meaning and effect of relevant statutory and non-statutory foreign law: Allstate at 82-83."

6.        It is clear therefore that the question as to whether the facts of the case fall within a domestic statute and the proper interpretation of domestic statutory provisions are questions of domestic law for the domestic Court. 

7.        The overall issue the Royal Court has to decide in this case is whether the United States default judgment falls within the following provisions of Article 1(1) of the 2007 law:-

""external civil asset recovery order" means an order or other judicial authority, that -

...

(b)       specifies that property specified in the order is tainted property..."

...

"tainted property" means property that has been found by an external decision-making body to have been -

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

(b)      obtained in the course of, from proceeds of, or in connection with, unlawful conduct;

"unlawful conduct" means the commission of an offence against a law of a country or territory, including Jersey."

8.        It is, as Advocate Jowitt submits, for the Royal Court to decide this issue on the United States court documents placed before it.  In order to decide it the Royal Court will have to decide:-

(i)        the meaning, as a matter of Jersey law, of the terms of art "used in, or intended to be used in, unlawful conduct" and "obtained in the course of, from the proceeds of, or in connection with, unlawful conduct" (in respect of which there is some existing Jersey and United Kingdom jurisprudence);

(ii)       how, as a matter of Jersey law, those terms of art are to be applied in the peculiar context of a statute that applies, at least prima facie, to judgments from every legal system in the world, many of which will have different substantive laws; and thirdly,

(iii)      whether what is shown on the face of the United States court documents falls within those terms of art as so applied. 

9.        Advocate Jowitt submits that the questions in paragraphs 2(d) and (e) and in 3(b) and (c) and the answers given in paragraphs 49 to 62 purport to ask and answer these questions.  In fact it is arguable, he says, that paragraphs 49 to 62 go further. 

10.      Advocate Nicholls accepts that in framing these questions he has lifted the wording from the 2007 Law but he says that they are ordinary English terms which the US expert is not construing as a matter of Jersey law as used within the 2007 Law.  I give one example of the questions and that is question 2(d) which is framed in this way:-

"(d)      In entering default judgment against the Doraville Account, did the District Court in the U.S. Action make a finding that all funds in the Doraville Account were obtained in the course of, from the proceeds of, or in connection with unlawful conduct?" 

And that question is subsequently answered compositely at paragraph 62 in this way:-

"62      For these reasons, the Default Judgement the U.S. District Court does not find that all funds in the Doraville Account were used, or intended to be used, in unlawful conduct.  Neither did the U.S. District Court identify any specific amount of funds in the Doraville Account that were used in unlawful conduct."

11.      Advocate Nicholls accepts that this creates a situation in which the boundary between what is and what is not within the remit of his US expert uncertain and potentially porous.  It would however be inappropriate he says for the court to try and confine the evidence of his expert at this stage and to embark upon an editing exercise on a full report the court has not yet seen. 

12.      He referred me to the cases of Dixon and Jefferson Seal Ltd [1998] JLR N11a in which the Court of Appeal held that editing of irrelevant confidential material in an expert's report was to be discouraged; Barings Plc & Anor-v-Coopers & Lybrand (A Firm) & Ors [2001] PNLR 22, a claim in negligence in which it was held that there was no good reason in that case to exclude expert evidence even if it did express opinions on the ultimate issue, and Re M and R (minors) (sexual abuse: expert evidence) [1996] 4 All ER 239, a family law case in which Butler-Sloss LJ said this:-

"Per curiam.  The practice of family law judges to receive expert opinion evidence as to the accuracy of truthfulness of child complainants is consistent with s.3c of the Civil Evidence Act 1972, which makes it clear that such evidence cannot be held to be inadmissible solely on the ground that it goes to the ultimate question to be determined by the court.  The passing of the Act should not operate to force the court to listen to superfluous and cumbersome testimony, provided the judge never loses sight of the central truths, namely that the ultimate decision is for him, as are all questions of weight and relevance.  If the expert's opinion is clearly irrelevant the judge will say so; if this opinion is arguably relevant, but in the judge's view ultimately unhelpful, he can generally prevent its reception by indicating that the expert's answer would carry little weight with him.  The modern view is to regulate such matters by way of weight, rather than admissibility."

13.      The submissions made to me by Advocate Jowitt and as fully set out in his skeleton argument, are in my opinion, persuasive and he seeks a ruling now that these questions and those answers should be ruled inadmissible.  That, he says, will save the court time and having to hear inadmissible evidence and then for the presiding Judge to direct the Jurats that it is inadmissible and should be ignored. 

14.      If I felt that the relevance of these questions was arguable, then I would let them in on the basis that the court would regulate it by way of weight rather than admissibility.  Where, however, I am clear that they are inadmissible, then in my view I have a duty to say so now, as the trial should not be burdened by evidence that is clearly inadmissible.  I have in mind that the presiding Judge will be sitting with two jurats, who will have the task of considering this expert evidence and making findings on it and it is unhelpful for the presiding Judge to burden them with expert evidence which, in his view, is clearly inadmissible.  In some of the English cases, in contrast, cited to me the Judges would I believe be sitting alone. 

15.      The issues in this case are narrowly prescribed and, notwithstanding the authorities that Advocate Nicholls has referred me to, it is my view clear that these questions and their answers are inadmissible and I so rule.  It will be for the applicant to edit its expert's opinion appropriately. 

16.      As to the directions, I am very grateful to counsel for agreeing those directions they have handed up and those directions will be given today.  I should also record that Advocate Dann has attended the hearing today, having been instructed by the Republic of Nigeria yesterday, and there was no objection to him sitting in on the hearing with his client representatives and this pursuant to Article 14 of the 2007 law.  He has not yet taken detailed instructions from his clients, understandably, but he informed me that those instructions might extend to the Republic of Nigeria making a proprietorial claim against the monies which are currently subject to the property restraint order.  We will have to await what steps may be taken in this respect and their effect, if any, on this process but until then this case must proceed to trial. 

17.      Costs shall be in the cause. 

Authorities

Civil Asset Recovery (International Cooperation)(Jersey) Law 2007.

Royal Court Rules 2004.

R-v-Bonython (1984) 38 SASR 45.

AG-v-Bhojwani [2009] JRC 207A.

Phipson on Evidence 18^th Edition.

Dixon and Jefferson Seal Ltd [1998] JLR N11a.

Barings Plc & Anor-v-Coopers & Lybrand (A Firm) & Ors [2001] PNLR 22.

Re M and R (minors) (sexual abuse: expert evidence) [1996] 4 All ER 239.