Adejumoke Bosede Adepoju v Oladimeji Kehinde Akinola
| Jurisdiction | England & Wales |
| Judge | Master Matthews |
| Judgment Date | 07 December 2016 |
| Neutral Citation | [2016] EWHC 3160 (Ch) |
| Date | 07 December 2016 |
| Docket Number | Case No: HC-2016-000430 |
| Court | Chancery Division |
[2016] EWHC 3160 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Matthews
Case No: HC-2016-000430
Richard Bowles (instructed by Grayfield Solicitors) for the Claimant
Richard Devereux-Cooke (instructed by OA Solicitors) for the Defendant
Hearing dates: 19–20 September 2016
Introduction
This is my judgment on a claim brought by the Claimant, the daughter of the late Medinat Bola Adepoju ("the deceased"), who died intestate in July 2015, against the Defendant, who claims to be the widower of the deceased. In form this is a probate claim. The Claimant applied for Letters of Administration in October 2015. However the Defendant had entered a caveat against the estate. The Claimant filed and served a warning to the caveat on 20 January 2016. The Defendant entered an appearance to the warning on 26 January 2016. Thereafter the Claimant brought the claim (as a probate claim) in February 2016.
The substance is rather more complex. The deceased (who herself had been widowed) appears to have owned a number of properties and other assets, both in this country and in Nigeria. The parties are essentially disputing their status as beneficiaries in relation to the estate. Accordingly, it is a claim partly about inheritance as such. But each side fears that whoever administers the estate will favour him or herself, and so, in the short term at least, it is rather more of one about who should administer the deceased's estate. There was an application at an early stage for an injunction to restrain the Defendant from interfering with the estate of the deceased, and one for the appointment of an interim administrator, both heard before Asplin J on 3 March 2016. At the hearing the judge ( inter alia) gave directions for the selection and appointment of a person as interim administrator of the deceased's estate.
The Claimant is the daughter of the deceased by her late husband, Samuel Adepoju, whom the deceased married in 1985, and who died in 2001. The Claimant claims declarations (i) that she is the deceased's next of kin, (ii) that the Defendant and the deceased were not married, and (iii) that the Defendant has no interest in the deceased's estate. She also claims a grant of letters of administration to the estate of the deceased.
The Defendant argues however that the deceased and he were validly married and that he therefore is the next of kin under English law, and should be granted Letters of Administration on that basis. The case is complicated by the facts that (i) the Defendant accepts that he was previously married to another lady, Adepeji Balogun Akinola ("Mrs Akinola"), in London in July 1983, (ii) the events argued by the Defendant to amount to a marriage with the deceased took place in Ogun State, Nigeria in accordance with Yoruba customary law, (iii) a son (James) was apparently born to the deceased in 2011, and (iv) the deceased herself died in Nigeria.
If the Defendant's primary argument that he is the deceased's widower fails, he also argues that he should obtain letters of administration (2) because he claims to be the father of James, (3) he was the partner of the deceased, or (4) he claims an equitable interest in properties forming part of the deceased's estate.
The matter was tried before me on 19 and 20 September 2016, when Richard Bowles of counsel appeared for the Claimant, and Richard Devereux-Cooke of counsel appeared for the Defendant. However, the allotted time ran out before closing speeches could be made, and so closing submissions were made in writing, being received on 26 and 27 September 2016. I am sorry for the delay since then in handing down this judgment.
Relief from sanctions
I can deal with a small point about relief from sanctions at the outset. My order of 27 April 2016 by paragraph 5 ordered that witness statements of fact be exchanged by 6 July 2016. The Claimant made three witness statements during the currency of the proceedings, each dealing with a different aspect of the procedure. It appears that, for convenience, these were consolidated into a single witness statement dated 15 September 2016. It contained no new material. Obviously that is after the deadline of 6 July. Nevertheless, the Defendant sensibly consented to its inclusion in the Supplementary Trial bundle. This was all explained in a witness statement dated 19 September 2016 made by the Claimant's solicitor, Henry Onwubiko, in support of an application made on her behalf at the outset of the trial for relief from sanctions. That application was not opposed. The breach was not serious or significant; indeed it was insignificant or trivial. I have no hesitation in granting the application.
Procedure
The CF was issued on 9 February 2016, with particulars of claim attached. On 3 March 2016 Asplin J ordered that the Claimant should apply for permission to amend both. The Claimant did so, and on 27 April 2016 I gave permission for the amendments sought. I also extended time for service of the Defence, and gave directions to trial, including a direction for a single joint expert in the field of Yoruba native law and custom as applied in Ogun State, Nigeria, to give evidence in writing on the issue whether the Defendant was validly married to the deceased under that law and custom. The amended particulars are dated 17 March 2016.
The Defence is in fact dated 16 May 2016. This accepts that the Claimant is a daughter of the deceased, but avers that the Defendant was validly married to the deceased under Yoruba native law and custom in Nigeria on 15 April 2006, and that the marriage is valid under Nigerian law. It also alleges that the Defendant is the father of the deceased's son James. If the marriage to the deceased was valid and recognised by English law, and lasted until the deceased's death on 16 July 2015, then the Defendant would be entitled under English law to a grant of letters of administration in priority to the Claimant, even though the Claimant, as the daughter of the deceased, would be entitled to a share in the deceased's estate under English law. (A claim was also issued in Nigeria on 22 April 2016 by relatives of the Claimant, raising some similar issues, but as I understood it has not yet reached a conclusion. In addition, the Statement of Claim in that action, dated 20 April 2016 at para 41 asserts that James is the child of neither the Defendant nor the deceased.) One issue that is not properly dealt with in the Defence is the marriage of the Defendant with Mrs Akinola. In particular, although the Defendant seeks to argue now that this marriage ended through divorce in Nigeria, there is no allegation in the Defence to that effect. I come back to this below.
How the court decides
There are three general points about the way that English civil courts reach their decisions which I should make at this early stage. The lawyers in the case undoubtedly know them, but their clients may not. They are subject to a qualification which I shall mention after making them. The first is that, in our system, it is for the parties to seek out and place before the court the material which they consider will assist the court and promote their case. It is not for the court to investigate of its own motion. Other relevant material may possibly exist somewhere else, but it is not the duty of the court to look for it. In general terms, the court makes a decision only on the material put before it by the parties.
The second point is that, in English civil procedure law, one party or the other bears the burden of proving any particular matter in issue between them. If the person bearing that burden satisfies the finder of fact (judge or jury), after considering the material before the court, that on the balance of probabilities a thing happened, then, for the purposes of deciding the case, it did happen. If that person does not so satisfy the fact finder, then that thing did not happen. The system is binary, and the judge decides on the basis of the burden of proof. There is thus no room for maybe: see Re B (Children) [2009] 1 AC 11, [2], per Lord Hoffmann.
The third point is that, where a party could give or call relevant evidence on an important point without apparent difficulty, a failure to do so may in some circumstances entitle the Court to draw an inference adverse to that party, sufficient to strengthen evidence adduced by the other party or weaken evidence given by the party so failing: see Wisniewski v Central Manchester Health Authority [1998] PIQR 324, CA; Jaffray v Society of Lloyds [2002] EWCA Civ 1101, [406]–[407]; Thames Valley Housing Association v Elegant Homes (Guernsey) Ltd [2011] EWHC 1288 (Ch), [19].
Added together, these points mean that the decision of the court is not necessarily the objective truth of the matters in issue. Instead it is the most likely view of what happened, based on the material that the parties have chosen to put before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to. The conclusions to which I have come below must be seen in that light.
The qualification which I mentioned above is this. Probate claims, of which this is one, at least in part, are not merely claims as between one party and another, without impact on third parties. On the contrary, probate claims are to some extent claims in rem, that also have an impact on others. The court therefore approaches the finding of fact in the ways that I have set out above, but keeps an eye on the need to avoid prejudice to third parties by deciding only between two competing versions of what happened. This feeds into the discussion at...
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...v Akinola [2016] EWHC 3160 (Ch)) How does a court arrive at a decision that is not necessarily the objective The claimant (Adejumoke Adepoju) was described by the judge as 'argumentative, theatrical and sure she was right' and that she 'asked questions rather than answering them.' She had a......