Doraville Properties Corporation v HM Attorney General

JurisdictionJersey
CourtCourt of Appeal
JudgeCalvert-smith JA
Judgment Date22 February 2017
Neutral Citation[2017] JCA 29
Date22 February 2017

[2017] JCA 029

COURT OF APPEAL

Before:

James McNeill, Q.C., President;

John Martin, Q.C., and

Sir David Calvert-Smith.

Between
Doraville Properties Corporation
Appellant
and
Her Majesty's Attorney General
Respondent

Advocate P. G. Nicholls for the Appellant.

M. T. Jowitt, Esq., Crown Advocate for the Respondent.

Authorities

Doraville Properties v AG [2016] JRC 128.

Court of Appeal (Jersey) Law 1961.

Civil Asset Recovery (International Co-operation)(Jersey) Law 2007.

Crociani and Ors v Crociani and Ors [2014] JCA 089.

18 U.S.C.A. (United States Code Annotated) section 981(a)(1).

European Convention on Human Rights.

Bennion on Statutory Interpretation (6th edition).

Methuen-Campbell v Walters [1979] QB 525 at 542.

Black's Law Dictionary.

Milne v the Queen [2014] HCA.

Director of Public Prosecutions v King (2000) 49 NSWLR.

Studman v Commonwealth Director of Public Prosecutions [2007] NSWCA 285.

Re Commissioner of the Australian Federal Police [2012] NSWSC 1533.

Commissioner of the Australian Federal Police v Mulder [2013] NSWSC 993.

Federal Republic of Nigeria -v- Doraville Properties Corporation [2017] JRC 019.

Appeal against decision of the Royal Court 22 July 2016, dismissing the Appellant's application for a property restraint order to be discharged.

Calvert-smith JA
1

This appeal came before us following a decision of the Royal Court (Commissioner Clyde-Smith and Jurats Fisher and Grime — judgment 22nd July 2016 ( Doraville Properties v AG [2016] JRC 128) following a three day hearing in May 2016) to dismiss an application by Doraville Properties Corporation (“Doraville”) for a Property Restraint Order (“PRO”) to be discharged. The chain of events which led to the grant of the order are more fully set out in the judgment of the Royal Court.

2

In short, the litigation in this jurisdiction arises because Doraville has assets held in its name in Jersey in respect of which the United States of America (the “US”) wishes there to be a PRO in order to support asset forfeiture proceedings in the US. Those proceedings have resulted in judgment in rem against, among others, those Jersey assets.

Preliminary Issue
3

The first matter for our decision concerned a preliminary question as to whether the would-be appellant, Doraville, had been required to apply for leave to appeal within 28 days of the decision below, or, if to be permitted to do so later, whether there had to be a proper explanation for the delay in so applying.

4

Crown Advocate Jowitt submitted that the judgment the subject of the proposed appeal was an interlocutory judgment within the terms of Article 13 of the Court of Appeal (Jersey) Law 1961 which states:

“13 Limitation on appeals

  • (1) No appeal shall lie under this Part –

    ……

    • (e) without the leave of the court whose decision is sought to be appealed from, or of the Court of Appeal, from any interlocutory order or interlocutory judgment, except –

      • i) where the liberty of the subject or the custody of minors is concerned,

      • (ii) in the case of a decree in a matrimonial cause or a judgment or order in an admiralty action determining liability,

      • (iii) in such other cases of the nature of final decisions as may be prescribed .

    • (2) An application to the Court of Appeal for leave pursuant to paragraph (1)(e) shall be made to a single judge of that Court .

    • (3) Subject to paragraph (4), the single judge's decision on the application shall be final .

    • (4) The single judge may at any stage refer the application to the full Court of Appeal for decision.”

5

He did so for the following reasons:

  • (i) An application for a PRO is simply a necessary preliminary step to an application to register an External Civil Asset Recovery Order (“ECARO”).

  • (ii) It is at that second stage that a final decision is made which may be appealed without leave, there being no question in this case of the application of the three exceptions set out in Article 13(1)(e).

6

Advocate Nicholls on behalf of Doraville submitted that the decision to grant a PRO was a free-standing, and therefore final, decision which should be amenable to an appeal without leave. If we were to reject that submission he argued that we should grant leave since if there had been a failure to do so in time that failure was not due to negligence but to a misunderstanding of the law, this being the first time that the court has had to construe the Civil Asset Recovery (International Co-operation)(Jersey) Law 2007 (the “2007 Law”), which introduced the concept of a PRO. In addition he submitted that the grounds passed the test most recently considered by this court in Crociani and Ors v Crociani and Ors [2014] JCA 089, paragraphs 50–53, 151 and 156 namely that an Applicant must show that:

  • (i) The appeal has a real prospect of success;

  • (ii) A question of general principle falls to be decided for the first time; or

  • (iii) There is an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage.

7

We have no doubt that the submission for the Crown is correct. The obtaining of a PRO is indeed a preliminary step taken to secure assets which might otherwise be dissipated in advance of a decision to register an ECARO. At this latter stage, when the Royal Court has to consider the interests of justice, a final decision is taken which would attract an automatic right of appeal. We accepted however that since this is the first time that certain provisions of the 2007 Law have fallen to be construed, since the failure to apply for permission was not due to culpable neglect, and since the applicant's grounds were on their face arguable, we should grant leave.

The Appeal
8

The factual background leading to the application for a PRO is carefully set out in the Royal Court judgment. In summary,

  • (i) From 1993 to 1998 General Mohammed Abacha was President of Nigeria. During that period it is alleged — and there has been no suggestion in these proceedings that the allegation is false — that he stole millions of dollars of Nigerian public money. The monies were transferred to the US and, in this instance, to an account held with Deutsche Bank International in Jersey in name of Doraville (the “Bank Account”). General Abacha was assisted in the thefts by his second son, Mohammed Sani Abacha, and their associate Abubakar Atiku Bagudu.

  • (ii) In 2003 Bagudu was arrested in the US on warrants issued in Jersey. He subsequently agreed to return more than US$163 million of Doraville's assets to the Nigerian government; an amount which he claimed represented his half share of Doraville's assets, the remaining money being that of Mohammed Sani Abacha. In return Jersey withdrew an extradition request and Bagudu was not returned to Nigeria for possible prosecution in that country. Since then the balance in the Bank Account has increased to approximately $287 million.

  • (iii) In 2012 Nigeria requested mutual assistance from the US in recovering further stolen assets, including the Bank Account.

  • (iv) Pursuant to that request, on 18th November 2013 a Verified Complaint for Forfeiture in rem was submitted by the US Department of Justice in the District Court for the District of Columbia. The US application was brought under 18 U.S.C.A. (United States Code Annotated) section 981(a)(1) which provides that “Any property, real or personal, involved in a transaction or attempted transaction in violation of section 1956, 1957 or 1960 of this title, or any property traceable to such property” is subject to forfeiture to the United States.

  • (v) On 6th December 2013 the Columbia District Court granted an arrest warrant in rem against the Bank Account.

  • (vi) On 2nd February 2014 the Royal Court granted the PRO with which we are concerned upon the application of the Attorney General.

  • (vii) On 6th August 2014 a Default Judgment (the “Default Judgment”) was granted by District Judge Bates in the District Court of Columbia.

  • (viii) The Default Judgment formed the basis for the application under the 2007 Law. This appeal is concerned with the application of the 2007 Law to the Default Judgment.

The 2007 Law
9

The 2007 Law, which apparently has no direct equivalent in any other jurisdiction, is described under its heading as a law “to enable Jersey to co-operate with other countries in external civil asset recovery proceedings and investigations and for related purposes.”

10

The concept of an External Civil Asset Recovery Order is defined in Article 1 of the Law:

“external civil asset recovery order” means an order or other judicial authority, that –

  • (a) is made, other than in the course of criminal proceedings, by an external decision-making body in a country or territory outside Jersey; and

  • (b) specifies that property specified in the order is tainted property, or specifies an amount of money to be money to be forfeited or recovered in lieu of tainted property.”

11

In that Interpretation Article, “tainted property” is defined in this way:–

“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 the proceeds of, or in connection with, unlawful conduct.”

12

The Interpretation Article defines “unlawful conduct” as “the commission of an offence against a law of a country or territory, including Jersey.”

13

Under Article 6(3) and (5), the Court may make a property restraint order on the application of the Attorney General in respect of any recoverable property specified in the application, where (for the purposes of this case) the following requirements are met:–

  • “(a) external civil asset recovery proceedings that relate to property in Jersey have been instituted in a country or territory outside...

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