AG v Bhojwani

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith
Judgment Date11 February 2010
Neutral Citation[2010] JRC 27
Date11 February 2010

[2010] JRC 27

ROYAL COURT

(Samedi Division)

Before:

J. A. Clyde-Smith., Commissioner, sitting alone.

The Attorney General
and
Raj Arjandas Bhojwani

M. T. Jowitt, Esq., Crown Advocate.

Advocate J. D. Kelleher for the Defendant.

Authorities

Proceeds of Crime (Jersey) Law 1999.

Criminal Justice (International Co-operation) (Jersey) Law 2002.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Oppenheim's International Law 9th Edition.

United Nations Convention against Trans-National Organized Crime .

United Nations Convention against Corruption .

AG v Bhojwani [2009] JRC 210A .

R v CII, AP and TI (2008) EWCA Crim 3062 .

Buttes Gas & Oil Co v Hammer and another (No 3) (1981) QB 223 .

Kindler v Canada (Minister of Justice) (1991) 2 SCR 779 .

R v Hape (2007) 2 SCR 292 .

Cook v Sprigg (1899) AC 572 .

J H Raynor (Mincing Lane) Limited v Department of Trade and Industry (1992) AC 418 .

R v Horseferry Road Magistrate's Court Ex parte Bennett (1994) 1 AC 42 .

Warren v The Attorney General (2008) JCA 135 .

Panday v Virgil Senior Superintendent of Police [2008] 3 W.L.R. 296 .

R v Latif ci. Sup., at pages 112 to 113.

Further application to exclude Nigerian evidence and for a stay judgment.

THE COMMISSIONER:
1

The defendant stands indicted for two counts of converting the proceeds of criminal conduct and one count of removing the proceeds of criminal conduct, contrary to the provisions of Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999.

2

On 22 nd January, 2010, the defence made a further application to exclude the evidence obtained by the prosecution from Nigeria pursuant to letters of request issued under the Criminal Justice (International Co-operation) (Jersey) Law 2002 (“the Co-operation Law”) and/or for a stay of the prosecution and this in the light of developments since my judgment on its earlier application dated 9 th November, 2009 ( AG v Bhojwani [2009] JRC 210A). The defence applied for the application to be heard by way of a preparatory hearing as opposed to pre- trial hearing. I reserved my decision and, following a short hearing on the 26 th January 2010, I rejected the application and now give my reasons.

3

The developments upon which the defence rely are these:-

  • (i) In his letter of 19 th November, 2009, to the Jersey Attorney General, the Nigerian Attorney General made a request for the return of the Nigerian evidence. To put that request in context, I set out the whole letter as follows —

    Jersey Prosecution of Raj Arjandas Bhojwani for Money Laundering

    I refer to your letter of request Ref: No.: WJB/SB CRPR007-025 dated 2nd September, 2008, and my response to same Ref: DPPA/MLAT/007/09, dated 28 th April, 2009, informing you that the request is receiving attention. I further refer to your letter Ref: TJleC/SB CRPR007–25 dated the 13th day of November, 2009.

    2. After a very careful scrutiny of the circumstances surrounding the case, serious controversies bordering on Functions, Powers and Duties of Public Office holders under the Constitution of the Federal Republic of Nigeria, 1999 emanated from the case which led to a Judgment delivered by the Federal High Court of Nigeria.

    3. In the same vein, I hereby convey to you that the Federal Republic of Nigeria is ready to co-operate with you with a view to reviewing the evidence to determine if there are sufficient grounds to enable us to commence prosecution of the accused person (RAJ ARJANDAS BHOJWANI) in Nigeria on the generality of issues and more specifically on ‘ money criminally obtained from the Nigerian public purse” as observed in your letter of request.

    4. We confirm that there is an ENROLMENT OF JUDGMENT ORDERS (sic) issued under the seal of the Court and the hand of the Presiding Judge, Hon. Justice G. O. Kolawole on 15th day of October, 2009, SUIT NO; FHC/ABJ/CS/560/2008, in the FEDERAL HIGH COURT OF NIGERIA, HOLDEN AT ABUJA, between RAJ ARJANDAS BHOJWANI (Plaintiff) AND (I) ATTORNEY-GENERAL OF THE FEDERATION; and (ii) NATIONAL SECURITY COUNCIL (Defendants) at the instance of RAJ ARJANDAS BHOJWANI wherein the Federal High Court declared;

    that all evidence (oral and/or documentary) obtained by Deputy Commissioner of Police Peter Gana in his capacity as the Chairman of the Special Investigation Panel, for use against the Plaintiff in criminal proceeding in the States of Jersey was unlawfully obtained.’

    (The copies of the Enrolment of Judgment Orders and the Judgment are hereby attached and marked as ANNEXURES 1 AND 11).

    5. Consequent of the above, I am unable to oblige your request for any Nigerian witnesses to testify at the trial in Jersey as the crux of the matter is centred on the national interest and I have a Constitutional duty to protect the judicial integrity of the Federal Republic of Nigeria given that the judgment has become of public knowledge.

    6. This is a constitutional matter and the Federal Government of Nigeria intends to vigorously pursue this matter to the Supreme Court of Nigeria for a final decision.

    7. II take this opportunity to inform you that the Federal Republic of Nigeria intends to lodge a request for mutual assistance to Jersey to assist in gathering evidence and transmitting same to Nigeria. Therefore, all evidence gathered in Nigeria and transmitted to you by the said Special Investigation Panel should be returned to me.

    8. In the meantime, in line with the said judgment I intend to instruct the appropriate constitutionally recognised investigative authorities to investigate the activities of RAJ ARJANDAS BHOJWANI.

    9. I hereby confirm that based on the evidence that would be gathered in Nigeria by the constitutionally recognised investigative authority and any other evidence available to you that would be thus transmitted by Jersey, I would review the entire evidence obtained in view of assessing whether there is a case to answer against such persons including RAJ ARJANDAS BHOJWANI, and deciding whether it is in the Nigerian Public Interest that such a case be brought.

    10. Please accept, my highest consideration and esteemed regards.

    CHIEF MICHAEL KAASE AONDOAKAA, SAN

    Honourable Attorney-General of the Federation and Minister of Justice.” (his emphasis)

  • (ii) On 9 th December, 2009, the Jersey Attorney General wrote to the defence giving notice that subject to any representations it may wish to make he had provisionally decided to accede to this request and to arrange for certified true copies of the evidence to be forwarded to the Nigerian authorities.

  • (iii) In a lengthy letter of 23 rd December, 2009, to the Jersey Attorney General, the defence contended that he had misconstrued the Nigerian Attorney General's letter and that he must, before proceeding, seek verification of the Nigerian Attorney General's position. In particular the defence contended that by necessary implication the Nigerian Attorney General's position was that the Nigerian evidence should not be used in the Jersey proceedings.

  • (iv) On 29 th December, 2009, Amb. Chike Alex Anigbo Ph.D, mni, the Permanent Secretary (Political Affairs) at the Office of the Secretary to the Government of the Federation of Nigeria wrote to the British High Commissioner in Abuja following a complaint it had received from one of the defendant's Nigerian companies. The letter details the importance of the commercial activities of the defendant's companies to Nigeria which apparently employs some 300 people and the detrimental effect upon those businesses caused by the Jersey proceedings:-

    “The business activities of Eko transport Services Limited and others have been suffering since Mr Bhojwani's incarceration in Jersey for almost 3 years and if his prosecution is allowed to succeed in this vindictive and unlawful manner then the Nigerian business entities will surely collapse and the livelihood and welfare of so many Nigerians would be destroyed. This is a major concern to the Nigerian government.” (his emphasis)

    The letter goes on to state that it was the position of the Nigerian authorities including the Attorney General that the evidence provided to Jersey in clear breach of Nigerian law cannot be introduced or otherwise relied upon by the Courts in Jersey:-

    “I am therefore writing to you to request that you take the necessary steps to bring to the attention of the prosecuting authorities of Jersey and the courts of Jersey the concerns of the Federal Republic of Nigeria, and to assist in ensuring that the courts of Jersey avoid taking any actions that might give rise to a violation of the United Kingdom's international obligations. In the first instance, I would invite you to make representations to the courts of Jersey, in accordance with the required formalities, to refrain from authorizing the illegal evidence referred to above from being introduced into these proceedings or allowing any reliance to be placed on such evidence, pending the resolution of this matter.” (his emphasis)

  • (v) On 4 th January, 2010, the defence wrote to the Foreign Secretary, the Right Honourable David Milliband MP, drawing his attention to the letter from the office of the Nigerian President and making the following request:-

    “We are, accordingly, writing to you to request that you take appropriate steps to bring to the attention of Jersey's Attorney General the significance of the issues raised by the Federal Republic of Nigeria and your concern to ensure that nothing is done which might give rise to a violation of the United Kingdom's international obligations. In the first instance, we would invite you to make representation to Jersey's Attorney General, in accordance with the required formalities, seeking his confirmation that the relevant evidence will not be relied upon by him for the purpose of the Jersey proceedings, pending resolution of the underlying issues.”

  • (vi) On 5 th January,...

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1 cases
  • Bhojwani v AG
    • Jersey
    • Court of Appeal
    • 10 February 2011
    ...Police Procedures and Criminal Evidence (Jersey) Law 2003. Criminal Justice (International Co-operation) (Jersey) Law 1999. AG v Bhojwani [2010] JRC 027 . R v Bennett [1994] 1 AC 42 . R v Chalkley [1998] 2 Cr. App. R. 79 . Warren v. AG [2008] JCA 135 . Mbsango and Anor v. Logo Limited ......

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