Adekemi Adewunmi Osawese Otitoju v Benedicta Ngozi Onwordi
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 25 October 2023 |
| Neutral Citation | [2023] EWHC 2665 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2023-000740 |
[2023] EWHC 2665 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: PT-2023-000740
Case No: PT-2023-000860
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN ENGLAND AND WALES
PROPERTY, TRUST AND PROBATE LIST (ChD)
Royal Courts of Justice
Rolls Building, Fetter Lane,
London, EC4A 1NL
Jamie Cockfield (instructed by Moreland & Co) for Ms OTITOJU
Owen Roach (instructed by Church Street Solicitors) for Ms ONWORDI and Ms ADESANYA
Hearing dates: 25 October 2023
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this revised version as handed down may be treated as authentic.
This is my judgment on applications made in two linked claims concerning a very sad dispute about the funeral arrangements to be made for the late Peter Adebayo Otitoju, who was born on 8 January 1955 in Nigeria, but died in Walthamstow, London, on 8 August 2023. The claimant in the first claim, who is also the defendant in the second claim, is one of the five children of the deceased. I understand that she has the support of her siblings, as well as other relatives, including the deceased's mother. The defendant in the first claim is the deceased's former partner, to whom he was not married. The claimant in the second claim is the daughter of the defendant in the first claim. She claims to be one of the two executors nominated by a will dated 15 July 2023 made by the deceased, approximately three weeks before he died. This litigation is a tragedy for everyone concerned.
The claim form in the first claim was issued on 4 September 2023 for an order that the claimant be entitled to possession of the deceased's body and to make arrangements for its disposal, and for a limited grant of letters of administration under section 113 (though I think that is a mistake for section 116) of the Senior Courts Act 1981. On the same day the claimant issued a notice of application for an interim injunction restraining the defendant from taking possession of the deceased's body or making arrangements for disposal. This application was supported by a witness statement made the same day by the claimant herself. In this witness statement the claimant said, amongst other things, that the defendant claimed to be entitled to bury the deceased, that the defendant did not live with the deceased but was merely his girlfriend, and moved into the deceased's house after his death. Importantly, her evidence was that the deceased died intestate. She also said that the defendant had “hurriedly arranged the burial to take place on 8 September 2023”. (In fact, that was one month after the death.)
The application came before Roth J on 6 September 2023, when the claimant was represented by counsel, and the defendant neither appeared nor was represented. I was told by counsel for the claimant, but I have not seen, that the claimant solicitor has a certificate of service to show that the papers for this application were inserted through the defendant's letterbox at 8 PM on 5 September 2023. On any view, that was very late service. On instructions, counsel for the defendant told me that his client was not aware of this service of the documents. Since she reacted very promptly to the service of the order made by Roth J, and issued an application to set it aside, I accept this statement.
The order made by the judge was in the form of an injunction, restraining the defendant from taking possession of the body, ordering (but perhaps declaring would have been better) that the claimant was entitled to remove the body for funeral purposes, and ordering the defendant to pay the costs of the claim, though not of the application itself. However, paragraph 5 of the order gave the defendant liberty to apply to vary or discharge the order. The order also recited that the judge had read the claimant's witness statement of 4 September 2023, a letter from the claimant's solicitors to the defendant dated 1 September 2023, and emails from three of the claimant's siblings supporting her application. I have of course seen the claimant's witness statement, but not the other documents referred to. So far as I can see, they are not on the court file.
The order of the judge was served on the defendant, who by solicitors issued an application on 11 September 2023 under the liberty to apply, for an order setting aside the order of 6 September 2023. In her application notice, the defendant said that she had not been notified of the hearing and had made her application as soon as she was aware of the order. That application notice was endorsed for hearing on 21 September 2023. (As I have already said, I was told that there was a certificate of service showing that documents had been put through the defendant's letterbox on 5 September 2023.)
The defendant's application was supported by a witness statement from the defendant dated 11 September 2023. In this statement the defendant says a number of things, including the following. First, she says that she was informed of the claimant's application only on 7 September 2023 by being served with the order of 6 September 2023. She says that she lived with the deceased for 18 years. She says that the deceased made a will on 15 July 2023, which named her daughter (the claimant in the second claim) and Kalule Joshua Kibindo as executors of his will. She also says that after the deceased's death she tried to contact the deceased's sister and his children on the same day, but was unable to get through. Her daughter however managed to contact one of the claimant's sisters to inform her of the death on the following day. She says that the claimant cannot have been aware of the will of 15 July 2023. Finally she says that the deceased and his children did not have a good relationship. The defendant's witness statement exhibits a copy of a document headed “Will of Peter Adebayo Otitoju”. On the front page of the document at the bottom are the details of a firm of solicitors, called “Catherine Solicitors” in Camden Town, London. This will appoints the defendant's daughter and Mr Kibindo as trustees and executors of the will, and makes gifts to a number of people. These include Mr Kibindo (work tools), the deceased's granddaughters (the proceeds of sale of his motorcar), the claimant (£5000) and the defendant (the house, shares in companies, and the residue, but with a substitutionary gift over to the deceased's grandchildren. The will appears to be signed by way of a fingerprint rather than a signature. Two witnesses have subscribed their names, namely the defendant's daughter and someone called Abisola Bakare, whose occupation is described as “Nursing”.
The defendant's application to set aside the order of 6 September 2023 is supported also by a witness statement from her daughter (the claimant in the second claim) dated 10 September 2023. This statement makes a number of points, repeating that the deceased lived with the defendant for over 18 years, that she had the authority of her co-executor to make this witness statement, and that the burial was not arranged hurriedly, but only after attempts had been made to contact the deceased's children and to discuss funeral arrangements.
As I have said, there are in fact two claims, the second brought by the daughter of the defendant in the first claim against the claimant in the first claim. The claim form was issued on 6 October 2023 for an order preventing the defendant (that is, the claimant in the first claim) from taking possession of the body, and declaring that the executors (of which she claims to be one) were entitled to possession for the purposes of the funeral. On the same day, she issued an application for an interim injunction. In order to avoid confusion, during the rest of this judgment I shall refer to the parties by their names rather than by the roles that they occupy in the litigation.
On 9 October 2023 the matter came before Richards J. His order recites that he heard Mr Roach as counsel for Ms Adesanya, and Azeez Abdullai, a trainee solicitor, for Ms Otitoju. He ordered that neither party should take possession of the body of the deceased until after (i) the determination of Ms Onwordi's application to set aside the order of 6 September 2023, or (ii) further order of the court. Costs were reserved.
After close of business on 24 October 2023 (that is, yesterday), Ms Otitoju filed and served a further witness statement, dated that day. This was of course served well out of time, but after hearing counsel on both sides I gave permission for it to be admitted in evidence. She says a number of things in that statement. She says that she and her siblings had no knowledge of the alleged will, and that it is not registered in the National Will Register. (I should say that will registration is not compulsory, and that a great many wills are not so registered.) They first became aware of this will on 10 September 2023, when attending at the deceased's home. She says that the purported will contains many errors. She also says that the deceased lived with a lady called Carol Bernard on and off for some 35 years, though they separated in 2014. Unfortunately, this lady died in March 2023 after having had two children together with the deceased, Vanesa and Sabrina. The statement also says that the deceased was an educated man, and could write his own name. She exhibits a number of documents which are said to demonstrate this. She disputes not only that the fingerprint on the document said to be a will is actually the deceased's fingerprint, but also whether he knew and approved the will, and whether he...
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