Collins Chikezie Chikeluba v Valerie Nwanodu Chikeluba
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 06 April 2023 |
| Neutral Citation | [2023] EWHC 1096 (Fam) |
| Docket Number | Case No: ZC20F04122 |
| Court | Family Division |
[2023] EWHC 1096 (Fam)
THE HONOURABLE Mrs Justice Roberts
Case No: ZC20F04122
FA-2023-000045
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
On appeal from Recorder Nice sitting at the Central Family Court in London on 3 February 2023
Royal Courts of Justice
Strand, London, WC2A 2LL
The appellant appeared as a litigant in person
Stephen Trowell KC instructed by A Williams & Co (Solicitors) appeared for the respondent
Hearing date: 4 April 2023
Introduction
This is an application brought by Mr Collins Chikeluba (“the appellant”) whereby he seeks permission to appeal an order made by Recorder Nice sitting at the Central Family Court on 3 February 2023. That order made financial provision for the respondent and the younger child of the family within the context of a Part III application brought pursuant to the Matrimonial and Family Proceedings Act 1984 following divorce proceedings in Nigeria.
The parties are both Nigerian nationals who married in 1994 and were divorced in Nigeria in December 2019. Since October 2020, Mrs Chikeluba (“the respondent”) has lived in central London in a property owned by the appellant (“the Paddington flat”). He has remained throughout at his home in Lagos, Nigeria from where he participated in this hearing via a CVP link. The respondent attended court in person with Mr Trowell KC, her barrister, and Mr Williams, her solicitor.
There are two children of the family, J (now 27) and Z (15). The appellant is currently in breach of a raft of orders made by Recorder Allen KC on 10 January 2022. Those interim orders were designed to provide the respondent and the younger child of the family with a secure roof over their heads at the Paddington flat and the means to run their domestic economy, pay the school fees and fund the ongoing litigation. Since the orders were made, the appellant has paid nothing in the last 12 months. The last payment to the client was on 11 March 2022. Not only has this hampered the respondent in the efficient running of her claims, it has resulted in significantly increased liabilities and, of immediate concern, the recent notice given by Z's boarding school which is likely to prevent her from returning to school for the new term at the end of the current Easter holiday. The appellant claims that pressures on his own financial situation have prevented him from complying with Recorder Allen KC's orders. Notwithstanding that he was then represented by a senior and experienced legal team (Mr Michael Glaser QC – as he then was – instructed by Harbottle & Lewis LLP), those orders have never been the subject of an appeal 1 or an application to vary their terms.
The appellant maintained then, as he does now in the context of the present appeal, that he has been the victim of misconceived Part III proceedings which were launched, wrongly, by the respondent in this jurisdiction after she became dissatisfied with the relief she secured in the Nigerian divorce proceedings. He has instigated parallel proceedings in at least two local Nigerian courts during the currency of the English proceedings whereby he has secured declarations and injunctions against the respondent. Those injunctions, the latest of which was secured on 16 January 2023, purport to prevent her from seeking any form of relief from the English court despite the fact that she has been granted permission to proceed with her claims in this jurisdiction.
The respondent's entitlement to engage the jurisdiction of the English court has been confirmed on four separate occasions prior to the substantive award made in her favour by Recorder Nice on 3 February 2023. She was originally given permission to bring her Part III claims by Deputy District Judge Hodson on 23 December 2020. Six days later, that decision was confirmed by Holman J sitting as the most senior puisne judge in the Family Division of the High Court. The appellant sought to challenge those decisions on the basis that, in the light of the jurisdictional amendments made to the 1984 Act as a result of the United Kingdom leaving the European Union, her application was out of time. That issue was resolved definitively in the respondent's favour in August 2021. The appellant then sought to appeal that determination. His appeal was dismissed by Peel J the following month. Thus, whilst maintaining the utmost respect for the judiciary sitting in the Nigerian courts, there is no doubt for the purposes of the present appeal that the jurisdiction of the English court to deal with the respondent's Part III application was lawfully engaged by the time the substantive application was heard by Recorder Nice on 3 February this year. The respondent is no longer resident in Nigeria and, as I understand the position, she has not returned to that country during the currency of these proceedings. Whilst the existence of the Nigerian injunctions and her engagement with the English Part III proceedings may provide a disincentive in relation to any future attempt on her part to revisit the terms of the original Nigerian settlement terms (a course which the appellant urges on this court as her primary source of redress), those injunctions currently lack extraterritorial reach in terms of erecting enforceable barriers to the pursuit of her Part III claims in this jurisdiction.
The Nigerian settlement award
In the context of their divorce proceedings in Nigeria, the parties entered into a separation agreement which was subsequently converted into an order of the court. Under its terms, the appellant was to purchase for the respondent a three bedroomed apartment in a specified suburb of Lagos. Whilst a property was identified and purchased, he was to meet the cost of renting a suitable property for her. Spousal maintenance of N300,000 per month was to be paid on a joint lives basis until her remarriage or cohabitation in addition to his meeting the costs of a nanny and driver. Child support for their two children, together with school and university costs, was down to the appellant's account in whatever sum he considered to be reasonable. Whilst I do not need to descend into the detail of the extent to which this agreement, and the subsequent order, was complied with, it is accepted that its terms were not met in full by the appellant. For example, the respondent was not provided with a home in Nigeria although she did receive a lesser sum of money than she was expecting from the appellant who told her she should use it to choose her own property. Both parties have their own accounts as to why the purchase of the original property as envisaged in the separation agreement fell through. It matters not for the purposes of this permission application although I note in passing that Recorder Nice accepted in her judgment that the appellant believed that he was purchasing the property for his former wife in compliance with his obligations under their agreement and that he provided her with the sale proceeds thereafter in actual compliance, albeit that a dispute remained in relation to whether the property was suitable in terms of meeting the specification of a “luxury” property (paragraphs 33 and 34).
In the course of her judgment, Recorder Nice made a number of findings about the circumstances in which the respondent ‘signed up’ to the terms of the Nigerian settlement (para 40):-
(i) she was under extreme financial pressure at the time of the deed of separation and the subsequent divorce;
(ii) she was unable to meet her outgoings and had accumulated rent arrears. Her utilities had been disconnected because she had been unable to pay the bills and both she and their daughter were at risk of eviction;
(iii) whilst she was in receipt of legal advice at the time of the agreement, she remained without interim provision from the appellant and was in the process of trying to negotiate appropriate long term provision without the basic security of a home with water and power where she was under threat of eviction;
(iv) she did not have full and frank disclosure of the appellant's financial resources at the time;
(v) the quantum of spousal maintenance bore no relation to the standard of living enjoyed by the parties during the marriage. Similarly, the value of the property which the appellant purchased ‘off plan’ as a suitable property for his former wife and daughter was a far cry from the detached property in an exclusive part of Ikoyi which had been their matrimonial home;
(vi) the appellant could, and should, have provided financially for the respondent and their daughter following their separation. He had the funds to do so but chose not to make that provision. There was no evidence that his lifestyle was adversely affected by the separation and his stipulation that he should be free to adjust child support in accordance with “economic realities” supported the respondent's submission that he was the dominant force in the negotiations which led to the settlement agreement.
In these circumstances the learned Recorder found that there were “good and substantial grounds” for concluding that an injustice would be done were the respondent to be held to the terms of the Nigerian agreement.
The Part III order: the provision made for the respondent and their younger child by Recorder Nice
By her order which flowed from the hearing on 2 February 2023, Recorder Nice provided that the appellant should transfer to his former wife on a mortgage free basis all his legal and beneficial interest in the Paddington flat which was then held in his sole name. Prior to her occupation of the property when she came to London following the Nigerian divorce, this had been an investment vehicle which had generated an income yield for the appellant. It was never a family home. He was to pay a lump sum...
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