In addition to possible criminal charges against James Ibori, the former governor of Delta State, within the Nigerian jurisdiction, whenever he comes out of UK jail, here are alternative best ways to recover all the traceable property (money and assets) that he stole from his fiduciary office.
This must be done through the joint or several civil liability claims for breach of fiduciary/trustee position; knowing receipt of trust property; and dishonest assistance in the breach of trust and breach of trustee/fiduciary position. The most likely outcome will be the imposition of a constructive trusteeship on Ibori and his associates in Nigeria and abroad (UK).
A constructive trustee is in some ways the opposite of an express trust because while an express trust gives effect to owner/settlor’s intentions to transfer beneficial interest in his property to another, a constructive trust arises by operation of the law, where the facts and circumstances of the matter are such that it would be unconscionable for a legal owner of property/money (in this case, Ibori) to deny the equitable rights of the people/beneficiaries whom the legal owner had defrauded or is attempting to defraud (the Federal Government of Nigeria (FGN) and Delta State). In the eyes of the UK civil law, in Ibori’s case, Ibori is still the legal owner of all his stolen property while the FGN is the equitable owner. UK property registration system is the starting place for identifying all that Ibori and his associates must have dumped there.
The FGN, through the Attorney-General of the Federation (AGF), must commence a tracing process involving identifications of all the stolen property, their approximate financial worth, and all those individuals and institutions whose actions, participation or involvement can be described as directly or indirectly, actually or potentially, assisting in this monumental loot. At this stage, all that is needed is a meticulous investigation of all those involved and through them identifying all the property stolen and their traceable proceeds both at home and abroad.
Here, the AGF will rely on the decided case of Attorney General of Hong Kong v Reid (1994), in which Mr. Reid, who was a British government appointed senior public prosecutor in the then British-controlled Hong Kong, had received large sums of money as bribes in return for not prosecuting known criminals. With those bribes, he purchased houses and shares in New Zealand. After he left office and his corrupt practices were discovered, the Hong Kong government, through its AG office, prosecuted and recovered all those traceable assets as substitute of their money. In fact, the government recovered more than his bribes’ worth because by the time of judgment, the worth of the property had increased.
The next step is for the AGF to seek a claim for dishonest assistance against anybody or institution who had dishonestly assisted Ibori in the movement or transfer of the stolen public funds. The AGF should argue that these defendant(s) – most likely Nigerian banks and individuals – had dishonestly assisted the breach of Ibori’s fiduciary office by acting as a conduit for the misappropriation of public funds. It is irrelevant whether or not any of the defendants physically possessed or controlled the misappropriated funds, so long as they actually participated in the process of the breach of trust by assisting in the removal of the public fund, usually electronically.
Following the more recent decision in Barlow Clowes v Eurotrust (2006), such defendants have lost the defences previously afforded them by the subjective limb of Lord Hutton’s tests in Twinsectra v Yardley (2002), which would have allowed them to argue that they did not appreciate that such a man would not be transferring his own personal money but that of the public in breach of trust and fiduciary duty. The objective test of Barlow Clowes v Eurotrust was purportedly followed in the subsequent fraudulent case of Abou-Rahmah v Abacha (2007).
The next line of attack for the AGF is a civil claim known as knowing receipt. This allows the AGF to pursue claims against anybody or institution who received Ibori’s loot with express, implied, actual or constructive knowledge that it was property from a breach of trust. A person/institution will be liable in equity if he receives trust property for his own benefit, with express, implied, actual or constructive knowledge that someone else is entitled to that property under a trust. In Agip (Africa) v Jackson (1990), Millett J. stated that a recipient of trust property would not be liable as a constructive trustee for knowing receipt if they lacked any of the above kinds of knowledge. This was recently confirmed in Papamicheal v National Westminster Bank Plc (2003) and also in Criterion Properties Plc v Stratford UK Properties LLC (2003).
It follows that the AGF must not allow political considerations to ruin his claims by going after those who received Ibori’s loots without the knowledge that it was property from a breach of trust, although it will be difficult for any Nigerian (whether living at home or abroad) to prove that he doesn’t know such a property/money is from a breach of trust. But non-Nigerians or foreign institutions/banks may successfully enjoy the above defence, a fortiori, if they are a bona fide purchaser for value without any of the above kinds of knowledge/notice.
As the law on breach of trust stands today in UK jurisprudence, this case will surely be won by the AGF and set an example for how to recover from other looters. Since registration of property is a compulsory practice in UK, the AGF should, after judgment has been given in its favour, attach an equitable lien on all these property to prevent the legal owners (the looters) from selling them.