Esther Olufunmilayo Lambo v Patricia Kelly Lambo

DEPUTY MASTER GLOVER :

1. Mr Olayiwola Akanbi Lambo, whom I shall refer to as “the Deceased” during the course of this judgment, died on 3 November 2017 intestate. There has followed protracted litigation between the claimant and the defendant, in various actions. This judgment is concerned with four discrete applications in this claim.

2. In light of the common surname between the claimant and defendant and given that the claimant and defendant in this action have had a reversed position as defendant and claimant in a related claim, I shall refer to the parties by their first names. This was the course adopted by the parties’ legal representatives during the course of the hearing before me in September 2024. No discourtesy is intended to the claimant and defendant.

3. At the hearing the claimant, Esther, was represented by Mr Richard Alomo of counsel and the defendant, Patricia, was represented by Tiki Emezie, a solicitor advocate.

4. The main application before the court advanced by Patricia’s application notice dated 11 August 2022, seeks: “1. An Order granting permission to Patricia to re-open the claim no. PT-2018-000382 and set aside the Order made in favour of Esther, because Esther obtained it by fraud and with forged documents.

2. An Order consolidating or linking claim no. PT-2018-000382 and claim no. PT-2021-000152 ”. I shall refer to this application as “the 2022 set aside application”.

5. The other applications before me concern charging order applications in respect of both parties’ properties in England. It is necessary to set out in some detail the background to the various applications and in particular the 2022 set aside application. Background

6. On 17 May 2018, Esther brought a claim by a Part 8 claim form asserting that she was the surviving spouse of the Deceased and seeking an order granting her letters of administration limited to the disposal of the body of the Deceased, either under section 116 of the Senior Courts Act 1981 or under the inherent jurisdiction of the court. Esther wanted to bury the Deceased in Lagos, Nigeria. I shall refer to this as: “The 2018 burial claim” during the course of this judgment.

7. The 2018 burial claim was opposed by Patricia, who asserted that she was the spouse of the Deceased, having married him on 17 April 1993 in Lagos, Nigeria. In her Defence to the 2018 burial claim, which was filed on 20 June 2018, Patricia denied that Esther was the spouse of the Deceased and argued that Esther’s marriage was dissolved in accordance with Sharia law in the 1970s. Patricia wanted the Deceased’s body to be buried in England.

8. The 2018 burial claim was listed for an urgent directions hearing on 10 July 2018, which came before Master Shuman, as she then was. At that hearing, the judge was concerned that the most important consideration at that time was for the Deceased’s body to be disposed of with proper respect and decency and without further delay. The parties agreed to the listing of a further urgent hearing to determine the place of burial. I will refer to that disposal hearing as: “the 2018 hearing” during the course of this judgment.

9. The 2018 hearing was promptly listed. By a judgment dated 25 September 2018, reported with neutral citation [2018] EWHC 2960 (Ch) (“the 2018 judgment”), Master Shuman determined that the Deceased’s body should be repatriated to Nigeria for burial and that before his body was returned to Nigeria, there was to be a commemorative service in the United Kingdom (see paragraph 50 of the 2018 judgment).

10. By order dated 1 October 2018 (“the 2018 order”) Master Shuman ordered, amongst other matters, that Patricia was to pay Esther’s costs to be subject to detailed assessment if not agreed, with the sum of £20,000 to be paid on account of those costs. I shall refer to that as “the 2018 costs order”. Master Shuman also refused Patricia’s application for permission to appeal, and Patricia’s later application to the appeal court for permission to appeal was also refused. The 2018 judgment and 2018 order remain undisturbed by any appeal.

11. Further to the 2018 costs order, on 14 August 2019 a default costs certificate was issued against Patricia in the sum of £65,841, which I shall refer to as “the default costs certificate” in my judgment. Patricia promptly issued an application on 29 August 2019 seeking to set aside the default costs certificate. That application was heard almost three years later and was dismissed by Master Brown by his order dated 23 August 2022, which I shall refer to as “the Brown order”. The Brown order records in its recital Patricia’s 2022 set aside application which had been issued shortly before the hearing before Master Brown. The Brown order directed a stay on any enforcement action by Esther to recover the costs provided for in the default costs certificate pending determination of the 2022 set aside application.

12. In between the dates of the default costs certificate (14 August 2019) and the Brown order (23 August 2022), Patricia issued a claim form in February 2021 with a claim no. PT-2021-0000152. I shall refer to this as “the 2021 claim”. In the 2021 claim, Patricia sought the grant of letters of administration and the rectification of the Deceased’s death certificate on the basis that she was the Deceased’s sole surviving spouse. Esther counterclaimed seeking a grant of letters on the basis that she was the Deceased’s sole surviving spouse.

13. The 2021 claim was determined by Mr Charles Morrison sitting as a Deputy Judge of the High Court in his judgment dated 21 October 2022, which is reported at neutral citation [2022] EWHC 2672 (Ch) . I shall refer to that as “the 2022 judgment”. Mr Morrison made an order in favour of Patricia.

14. The Deputy Judge in the 2022 judgment found that Patricia was a surviving spouse of the Deceased (see paragraph 45 of the 2022 judgment). That finding was premised on Esther’s acknowledgement that Patricia had married the Deceased (see paragraph 42) and the lack of any evidence to support a conclusion that Patricia’s marriage was unlawful in Nigeria or any evidence to establish that there had been a divorce in Nigeria (see paragraph 42).

15. It is of note that the Deputy Judge did not find that Esther was or was not also a surviving spouse (see paragraphs 47 and 49 of the 2022 judgment). Rather, the Deputy Judge determined the matter on the basis that even if Esther was a joint surviving spouse, he should make a sole grant in Patricia’s favour for those various reasons set out in paragraph 48 of the 2022 judgment.

16. Following the 2022 judgment, by order dated 21 October 2022 (being two months after the Brown order), the Deputy Judge ordered Esther to pay Patricia’s costs in the 2021 claim in the sum of £34,048. I shall refer to that as “the 2022 costs order”.

17. By a letter dated 8 November 2022, Esther informed Patricia that she had set off the costs awarded to Patricia under the 2022 costs order against the costs awarded to Esther under the default costs certificate in 2019, which it was said stood at £86,819.09 including interest, at that point in time. In that letter Esther claimed that the balance of costs that remained owed to her by Patricia was £52,771.09.

18. Notwithstanding Esther’s set-off, in May 2023, Patricia applied to the County Court Money Claims Centre for a charging order against Esther’s property at 12 Hamsey Gardens, Warlingham CR6 9RQ to secure the sum of £34,048 ordered under the 2022 costs order. A final charging order was made on paper on 29 June 2023, which I shall refer to as: “The County Court FCO”. On 7 February 2024, Esther applied to the County Court Money Claims Centre to set aside the County Court FCO, and I will refer to that as: “The FCO set aside application”. By order dated 14 March 2024, Deputy District Judge Nix transferred the FCO set aside application and County Court claim numbered K25YX284 to this court: “ For listing alongside claim PT-2018-000382 ”.

19. On 30 June 2023, Esther applied for a charging order against Patricia’s interest in the property known as 16 Hillcrest Road, Bromley, in respect of the sums then outstanding under the default costs certificate. By an order dated 27 July 2023, Deputy Master Raeburn granted Esther an interim charging order against Patricia’s property, 16 Hillcrest Road. I shall refer to that as: “The Raeburn ICO”. The sum charged was £90,324.41 which was said to represent the amount owed under the default costs certificate plus interest at that time. Esther now seeks a final charging order.

20. By application notice dated 11 August 2023, Patricia applied to set aside the Raeburn ICO. I shall refer to that as: “the ICO set aside application”. Esther’s counsel accepted at the hearing before me that the sum secured by the Raeburn ICO was: “ The wrong figure because it made no allowance for the set off of the defendant’s costs from the 2021 proceedings ”. The court was advised that the figure should have been £52,771.09.

21. Having set out in some detail the background, the four discrete applications that are before the court are: i) Patricia’s 2022 set aside application, ii) Patricia’s ICO set aside application. iii) Esther’s application for a final charging order iv) Esther’s FCO set aside application.

22. The target of Patricia’s 2022 set aside application is the 2018 costs order, which if set aside will impact all the later applications that are before me. The parties agree that the resolution of the 2002 set aside application will resolve the substantive issues in the three remaining applications. Preliminary Matters

23. It is important to address preliminary matters in the 2022 set aside application.

24. The case was listed for hearing over one day on 27 September 2024. Although the hearing started promptly at 10.30 a.m., the matter had to be adjourned at 5.15 p.m. for judgment. Today is the earliest date that has been found for my extempore judgment to be given, having regard to the court’s and the parties’ dates to be avoided.

25. It was clear to the court at the beginning of the hearing in September 2024 that there were a number of obstacles to an efficient hearing taking place on that day. The hearing bundle was not in good order and it was clear that no real thought or care had been given to its preparation. The most startling shortcoming was that the hearing bundle did not contain a copy of the 2018 judgment, which is the core document in the 2022 set aside application. The court, using its own resources, was able to obtain a copy of the 2018 judgment which, for the avoidance of any doubt, was read with care before the hearing in September 2024.

26. It was also clear that no thought had been given by Patricia or her legal representatives as to the correct procedural route to obtain the relief that is being sought in the 2022 set aside application. Housekeeping - Setting aside an earlier judgment

27. The parties’ joint authorities’ bundle contained three decisions, the first being the Supreme Court decision Takhar v Gracefield Developments Limited [2019] UKSC 13 , which concerned a claim that had been issued on 24 October 2008 by Mrs Takhar in which judgment was delivered by His Honour Judge Purle QC on 28 July 2010, that was adverse to Mrs Takhar. A significant item of evidence at the trial in that case was a written profit share agreement. Lord Kerr in the Supreme Court described the document as: “ Powerful evidence in support of the Krishans’ case and it is unsurprising that it was heavily relied upon by the judge ” (See paragraph 10 of the Supreme Court decision).

28. After the trial before His Honour Judge Purle, Mrs Takhar had the share agreement examined by a handwriting expert. Armed with the expert’s conclusion that there was strong evidence that Mrs Takhar had not signed the agreement, she issued new proceedings to set aside Judge Purle’s judgment. In this case, Patricia simply issued an application notice in the original proceedings. In Takhar , Lord Sumption stated at paragraph 60: “ An action to set aside an earlier judgment for fraud is not a procedural application but a cause of action ”. Lord Sumption continued at paragraph 61: “ The cause of action to set aside a judgment in earlier proceedings for fraud is independent of the cause of action asserted in the earlier proceedings. It relates to the conduct of the earlier proceedings and not to the underlying dispute ”.

29. The final decision in the authorities bundle is Park v CNH Industrial Capital Europe Limited [2021] EWCA Civ 1766 , a case in which CNH had originally brought proceedings by a claim form issued on 22 June 2016, further to which they had obtained a default judgment (see paragraph 32 of the judgment in Park ). A new claim to set aside the default judgment for fraud was commenced on 23 November 2019 (see paragraph 42 of the judgment). So again in the case of Park , as in Takhar , a new claim was issued to seek the relief which Patricia is seeking by way of her 2022 set aside application notice.

30. I was also referred to the Court of Appeal decision in Tinkler v Esken Limited [2023] Ch 451 . In that decision, having set out paragraphs 60 to 61 from Lord Sumption’s decision in Takhar , the Master of the Rolls noted at paragraphs 12-13: “12. In modern times we can perhaps regard the action to set aside a judgment for fraud as akin to an action for deceit. The only significant differences are that the court, rather than the opposing party to the first action, has to be shown to have been deceived. Deliberate dishonesty is required and materiality rather than simple reliance must be shown. If the elements are made out (misrepresentation or misleading conduct made or undertaken fraudulently with reliance for deceit and materiality for an action to set aside the judgment), the contract or the judgment can be rescinded and set aside”.

13. The precise analogy is not important. It is, however, important to understand what the court is doing in trying a freestanding action to set aside a judgment for fraud. It is quite different from an application to adduce fresh evidence after judgment under the principles enunciated in Ladd v Marshall )”. [1954] 1 WLR 1489 (Ladd v Marshall

31. Mr Emezie, counsel for Patricia, was unable to assist the court as to why a new claim seeking to set aside the earlier 2018 judgment had not been issued. Mr Emezie submitted that a claim can be started by an application notice; and he invited the court to treat the 2022 set aside application notice as a new claim. Mr Emezie was unable to direct the court to a provision in the CPR that supported that assertion or which otherwise enabled a court to set aside a sealed order following a final judgment of a different judge on the basis of fraud (outside of an appeal) on the basis of an application notice.

32. There are numerous reasons why a new action is required to set aside an earlier judgment for fraud. A claim form is supported by pleadings. The provision of pleadings in any claim play an important role, not least in a case where fraud is alleged. Pleadings identify for the parties the issues in dispute, and enable the court to understand the case to be determined. Pleadings inform case management directions in a claim, including in relation to the need for expert evidence, and case management directions in turn provide the framework for steps, including disclosure, towards a fair and efficient trial. In the hearing, Patricia wanted to rely on issues that were not canvassed in her 2022 set aside application notice and which were not therefore responded to in Esther’s evidence in reply to that application. Ordinarily, such a step (introducing new issues) in a claim would require an amendment to pleadings.

33. The hearing bundle contained expert reports, a type of evidence for which permission had not been obtained. In the course of a normal claim such evidence would invariably have been sought at a case management hearing, and managed by the court.

34. The court noted that amongst other matters there were no directions for witnesses to be cross-examined, and it appeared that no thought had been given to timetabling for cross-examination, if this hearing before the court was to be treated as akin to a trial, as proposed by Mr Emezie. Housekeeping - Parties’ way forward

35. Having addressed the court’s numerous housekeeping and procedural concerns with the parties, at 11.25 a.m. there was a short adjournment to enable counsel for the parties to speak to one another, to try and decide a common way forward to present the main 2022 set aside application to the court. On returning to the court at 11.40 a.m., counsel informed the court that they wanted the court to continue with the matter, as if the hearing was a trial. Notwithstanding the prejudice that might be caused to Esther by Patricia’s approach (of not having issued a claim), Mr Alomo was anxious for the court to determine the 2022 set aside application in any event. In short, Esther was content to forego the benefits of pleadings and normal case management. In a similar vein, Patricia wanted the matter resolved, notwithstanding that, for example, there had not been any disclosure directions against Esther, as would have occurred had a new claim been brought.

36. The parties indicated that they were also content for the court to deal with the matter on the written evidence only, with no live evidence. Esther did not object to permission being granted for Patricia to rely on her experts’ reports.

37. The general impression that the court had was that Esther was willing to bend over backwards to make sure that matters could be resolved by this court, no doubt because of the long history of litigation in this matter and the desire to try to bring finality to the parties’ overarching dispute with one another. Housekeeping – New Evidence & Live Evidence

38. There followed a further round of discussions in court. Mr Alomo suggested that Esther wanted to file and serve a short additional witness statement at court dealing with a new matter that had been raised by Patricia in relation to a Nigerian certificate of incorporation. This was a point that had not been addressed in the 2022 set aside application notice or any pleadings (because there were no pleadings), and had therefore not been responded to by Esther in her filed witness statement. Mr Emezie’s response was that his client would then want an opportunity to reply to any short additional witness statement from Esther. It was abundantly clear to the court that this would then necessitate an adjournment of the hearing, which seemed to be against the parties’ advertised ambition for the matter to proceed on the day.

39. To avoid the need for any adjournment or further delay in the hearing progressing, Mr Alomo withdrew his request to file and serve a short additional witness statement from Esther. That issue having been overcome, Mr Emezie, having initially confirmed that Patricia was content for the matter to proceed on written evidence only, then indicated that he did in fact want an opportunity to call live evidence.

40. On the court turning to CPR 32.2, it became clear that Mr Emezie did not have a hard copy of the White Book or the Civil Procedure Rules with him. I gave Mr Emezie time to consider his position. On returning to court at 12.55, Mr Emezie repeated Patricia’s application to now call live evidence at the hearing, whilst accepting that “ with hindsight ” the matter should have been considered much earlier in the procedural time line of the 2022 set aside application.

41. The court then explored with Mr Emezie the reasons why he wanted to rely on live evidence. Mr Emezie ultimately then reverted back to a position whereby the court would determine the applications on the written evidence before it. At that point in time the court adjourned for lunch at 1.10 p.m., returning at 1.55 p.m.

42. As will be clear, much of the morning if not all of the morning was occupied by housekeeping issues. Many or all of those issues would have been avoided if the relief sought in the 2022 set aside application had been embodied in a Claim Form, that could then have been case managed in the normal way to a disposal hearing or trial.

43. During the course of Mr Emezie’s submissions in the afternoon, he sought to introduce a third issue for consideration. In short, Mr Emezie submitted that the court had been misled in 2018 regarding the Deceased’s status as a member of the Royal Family in Nigeria. This was yet another unfortunate turn of events in the manner in which the 2022 set aside application had been prosecuted and advanced by Patricia. Housekeeping – Hearing Bundle

44. It also became clear during the substantive part of the hearing that the hearing bundle and documents within it were lacking in discrete respects. For example, the experts’ reports did not exhibit their instructions. Mr Alomo was content for Patricia to file and serve a further short bundle containing such documents, but nothing more. Following the hearing a further bundle of documents was provided by Patricia. The supplemental bundle contains, for example, the instructions to the experts and the documents they were considering in the body of their reports.

45. Having seen this supplemental bundle of new documents, Esther confirmed in correspondence with the court that she was content for me to consider the additional documents listed as items 1 to 7 in the supplemental bundle. I have done so. I have confirmed with Patricia’s counsel this morning that he is also content for me to have taken that course.

46. I pause to note that a final hearing on an application, or a trial or disposal hearing, is not a dress rehearsal. Parties should prepare properly and fully for such hearings. The court is required to guard its resources as well as the parties’ resources. It would not have been fair on Esther or the court for it to have been required to engage in further oral or written submissions in relation to the documents contained in the supplemental bundle, but (and I note to Mr Emezie’s credit|) he has not sought to take such an approach. Dismissing the 2022 Application – Procedural Grounds

47. As already indicated above, pleadings have an important function in assisting a court to understand a party’s case. They provide the court with a map and compass to the dispute before it. In addition, the discipline involved in properly pleading a case forces a party to consider how their case would be advanced at trial and the merits of that case before requiring the court to deploy its resources to resolve the matter. As is clear, this matter has not been progressed by way of a new claim form and pleadings, and it is far from clear that Patricia’s case has been subject to the anxious consideration that would ordinarily be expected.

48. The relief sought in the 2022 set aside application is very serious. It is seeking to set aside a final judgment of this court. There are numerous factors which a court must consider before taking that exceptional step, and as such pleadings play an important part. The hearing bundle that was before me does not contain the bundle that was before Master Shuman in 2018, or indeed the written or oral submissions advanced by the parties in 2018. I pause to note that whilst there is a transcript of part of the hearing in 2018, it is not a complete transcript.

49. It is not clear whether or not a deliberate course (such as electing to not dispute evidence) was taken by Patricia in relation to matters which she now seeks to deploy or challenged in her evidence in 2024. This includes, but is not limited to, the issues Patricia now wants to ventilate surrounding the Nigerian certificate of incorporation.

50. In my judgment, notwithstanding the parties’ enthusiasm for the court to deal with matters on the hoof, caution is required. The 2022 set aside has not been prosecuted with care. This has culminated in new particulars of fraud being raised late in the hearing by counsel, and it becoming clear during the course of the hearing that no thought had been given to the jurisdictional basis on which the court should proceed. This includes there being no indication from Patricia as to the Civil Procedural Rule by which this court might make the order she seeks, on a simple application notice, or how the approach directed by the appellant courts requiring a new claim, might be avoided.

51. It was made clear to the parties that notwithstanding the court’s willingness to use the hearing time to hear substantive submissions, it had not determined whether the application should be dismissed as a matter of the court’s general case management discretion; or because it was totally without merit: or because it was simply procedurally defective; or otherwise the wrong way to proceed in relation to the relief sought.

52. I am not satisfied that the court should adopt the parties’ invitation to, in short, deal with the 2022 set aside application as if it were a Claim Form (or otherwise) and to treat the hearing as a trial of a Part 7 claim or a disposal hearing of a Part 8 claim. Having regard to the overriding objective as well as the court’s case management powers in Part 3 of the CPR, I would dismiss the 2022 set aside application both to mark the ill considered and poor manner in which the application has been prepared and prosecuted, and because an application notice is not the correct way in which to set aside an earlier judgment and final order made by a different judge, on the basis of fraud.

53. However, in that I do have jurisdiction, absent a new claim to substantively determine the matters addressed in the 2002 set aside application and to grant the relief sought, I will in any event dismiss the 2022 set aside application for the reasons that follow. Dismissing the 2022 Application - Merits

54. I first turn to the parties’ positions in the 2022 application.

55. Patricia in her skeleton argument seeks to rely on various witness statements and the expert evidence of (i) Abimbola Badejo dated 17 June 2024, and (ii) Steve Cosslett dated 9 July 2024”.

56. Patricia’s skeleton argument seeks, at paragraph 1, an order setting aside: “ The costs order dated 1 October 2018 on the grounds that it was obtained by fraud ”. The skeleton argument continues at paragraph 2: “ At a subsequent hearing to determine the issues of who was the surviving spouse, this court ruled that the defendant was the surviving spouse and that there was no factual or legal basis for the assertion by the claimant that she was the surviving spouse ”.

57. During the course of submissions, it became clear that the reference above to: “ subsequent hearing ” was to the trial before the Deputy Judge referred to earlier in this judgment. The brief description of the ruling attributed to the Deputy Judge in regard to Esther’s status as a spouse is not accurate, but save for causing some confusion as to whether there had been some other hearing and judgment, that inaccuracy is not important.

58. Patricia’s core position is set out in paragraph 4 of her skeleton argument. Patricia contends that Master Shuman relied on a certificate of incorporation relating to a Nigerian company when finding that the Deceased had continuing ties to Nigeria and that: “ The document has now been examined by an expert and found to be a forgery ”.

59. The company concerned was called “Joas Best Multitrade Limited”, which I shall refer to as “The Nigerian company”, and the issue as: “The company issue”.

60. Patricia also notes in her skeleton argument that: “ The claimant also produced a divorce certificate in support of her contention that the defendant was divorced from her late husband prior to his death and this divorce certificate has also been examined by an expert on Nigerian law and found to be a forgery ”. I shall refer to this issue as: “The divorce certificate issue”.

61. Patricia complains that Esther caused Master Shuman to: “ Doubt as to whether the defendant was the surviving spouse in circumstances where there should never have been a doubt but for the claimant’s untruthful representations to this court in her claim to be the surviving spouse” . I shall refer to this issue as: “The joint spouse issue”.

62. As noted already, during the hearing Patricia also complained that Esther had overstated or misrepresented the Deceased’s status as a prince in Nigeria.

63. Patricia’s concluding submission in her skeleton argument is that: “ A grave injustice was done to the defendant who was deprived of her lawful right as a surviving spouse to choose where her late husband should be buried ”.

64. Esther’s position was set out in her clear and succinct skeleton argument which reflects the style and delivery of Mr Alomo’s oral submissions. In her skeleton argument, Esther firstly denies creating or producing a forged marriage certificate before Master Shuman and she does not accept that in any event any finding of forgery would have been material to the 2018 hearing. Esther’s skeleton argument further complains that Patricia is seeking to rely on witness and expert evidence relating to the company issue without any leave whilst also noting that the “ fresh evidence ” would not in any event have materially affected the outcome of the 2018 hearing. As already indicated earlier in my judgment, Esther came to adopt a position at the hearing that permission should be granted for the late expert evidence. The relevant law

65. Having set out the parties’ respective positions in their written and oral submissions, I now turn to address briefly the law that is relevant to the relief sought in the 2022 set aside application. The parties tend to agree on the legal principles to be applied, which can be found in Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328 , where Lord Justice Aikens says at paragraph 106: “The principles are briefly, first there has to be a ‘conscious and deliberate dishonesty’ in relation to the relevant evidence given or action taken, statement made or matter concealed which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be material. ‘Material’ means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court’s decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus, the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim was to be retried on honest evidence”.

66. Following the Supreme Court judgment in Takhar , the new action in Takhar came before Mr Stephen Gasztowizc QC and his judgment can be found at neutral citation [2020] EWHC 2791 (Ch) . The High Court Judge in Takhar reminded himself at paragraph 30 of his judgment: “ I bear in mind that my task is not to re-decide the original action, it is in this separate action solely to decide whether the judgment given in the original action should be set aside ”.

67. Notwithstanding that Mr Gasztowizc QC benefited from the earlier Court of Appeal and Supreme Court decisions in Takhar , a legal issue remained to be determined in relation to the appropriate test for materiality. The Deputy Judge at paragraph 36, stated: “Is the correct test for materiality as a condition for setting aside a judgment on the grounds of fraud: a) that the fraud was an operative cause of the court’s decision to give judgment in the way that it did and that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision (as set out by Aikens LJ in Royal Bank of Scotland v Highland Financial Partners LP [2013] EWCA Civ 328 at paragraph 106 and contended for by the defendants in the present case) or b) that there is a real danger and that the fraud affected the outcome of the trial (as suggested by Sir Terence Etherton MR in Salekipor v Parmar [2017] EWCA Civ 214 at paragraph 93, referring to the approach of the Court of Appeal in Hamilton v Al Fayed (No 2) [2001] EMLR 394 at paragraph 34, as contended for by the claimant in the present case) or c) something else and if so, what”.

68. The Deputy Judge in Takhar determined that the operative cause test was the correct test. However, for the reasons set out below, whether the hurdle is an “operative cause” or “a real danger”, I do not find it has been overcome by Patricia in this case.

69. In Park v CNH , the Court of Appeal considered the circumstances in which a deliberate decision not to investigate or rely upon a known fraud could bar a claimant later seeking to set aside an earlier judgment that was polluted by that fraud. The Court of Appeal having considered the Supreme Court decision in Takhar , stated as follows from paragraph 57: “57. Lord Kerr left open the question whether the court should have a discretion to refuse to entertain an application to set aside the judgment in two situations, namely (i), where the fraud was an issue in the earlier proceedings and the party challenging the judgment seeks to rely on evidence of its existence if it was not adduced in those proceedings, which was a situation that arose in Elu v Floorweald and (ii) where a deliberate decision was taken not to investigate the possibility of fraud in advance of the first trial.

58. Lord Sumption went further. After a clear exposition of the underlying principles he stated at [63] that proceedings of this kind, (i.e. a fresh action to set aside the judgment for fraud) are only abusive where the point at issue and the evidence deployed in support of it not only could have been raised in the earlier proceedings but should have been raised. It follows the fact that the fraud argument could have been raised in the first action is not enough to make the second action an abuse of process. Lord Sumption then defined the circumstances in which it can be said that the point “should have been” raised in earlier proceedings. He said: ‘…the basis on which the law unmakes transactions including judgments which have been procured by fraud is that a reasonable person is entitled to assume honesty in those with whom he deals. He is not expected to conduct himself or his affairs on the footing that other persons are dishonest unless he knows they are. That is why it is not a defence to an action in deceit to say that the victim of the deceit was foolish or negligent to allow himself to be taken in… It follows that unless on the earlier occasion the claimant deliberately decided not to investigate a suspected fraud or rely on a known one, it cannot be said that he “should” have raised it’”.

59. Lord Sumption left open the position in a case in which fraud has been raised unsuccessfully in the earlier proceedings but he expressed the provisional view that the position should be the same for essentially the same reasons. He concluded at [66]: “If decisive new evidence is deployed to establish the fraud an action to set aside the judgment will lie irrespective of whether it could reasonably have been deployed on the earlier occasion unless a deliberate decision was then taken not to investigate or rely on the material”.

60. The question whether evidence ‘Could reasonably have been deployed’ is self-evidently different from the question of whether it ‘could reasonably have been discovered’. A person cannot take a deliberate decision not to rely on evidence of fraud unless he is not only aware of that evidence but knows that he can rely on it to plead fraud in answer to the case brought by his opponent”.

70. As noted earlier in my judgment, due to the way in which the relief has been sought and advanced by way of an application notice, without pleadings and proper case management, it is not entirely clear how matters of fraud were advanced in 2018 and in respect of what issues. The main guide that the court has is the 2018 judgment. It is clear that there were a number of allegations of dishonesty and fraud, but as already indicated, the parameters of those allegations are unclear.

71. It is therefore impossible for this court to decide whether an issue that is alleged today in relation to fraud, including by way of fabricating documents, could and should have been raised in 2018, save for in relation to the divorce certificate issue, to which I will turn in a moment. This inability to ascertain and understand what occurred in 2018 is particularly relevant in relation to the company issue and the certificate of incorporation issue. Findings

72. Having set out matters of law I now turn to my findings and reasons in relation to the relief sought in the 2002 set aside) application, which I have reached following full argument by the parties in relation to the points advanced in their skeleton arguments.

73. At the directions hearing on 10 July 2018, Esther was represented by Mr Alomo, who has appeared before me. He has been instructed by Topstone solicitors throughout. Patricia was represented on 10 July 2018 by Mr Corben who was instructed by Margaret Olusegun, solicitors. The scope of the 2018 hearing

74. In relation to the 2018 directions hearing, which was before Master Shuman, the order notes as follows in its recital: “And upon the parties agreeing that the court can use its inherent jurisdiction to determine the dispute, and in order to determine the form and the place of the funeral interment, the parties agree that for these purposes only the claimant and the defendant are equally entitled to a limited grant to dispose of the body without prejudice to a determination of who is the spouse at any future hearing . And upon the parties agreeing that the evidence and submissions shall be limited to the factors set out in Hartshorne v Gardner [2008] EWHC 3675 Chancery, with the most important consideration being the body be disposed of with all proper respect and decency without further delay, and:

1. The Deceased’s wishes.

2. The place with which the Deceased had his closest connection.

3. The reasonable wishes and requirements of family and friends of the Deceased”.

75. It is clear from the above recital to the July 2018 directions order that the spousal status of both Patricia and Esther was, by agreement, not an issue for determination at the 2018 hearing. Moreover, the parties further agreed and elected that the determination as to how the body would be disposed of was to be limited to the three particular factors set out in the directions order, none of which concerned either party’s spousal status.

76. I have been taken to a transcript of the final 2018 hearing before Master Shuman. At the start of the hearing the court confirmed with the parties that its focus was on the three factors detailed above, as set out in the earlier directions hearing. There was no suggestion from the parties’ legal representatives that there should be any change to that way forward.

77. It is clear from the 2018 judgment, that allegations of fraud and forgery were raised by Patricia from the beginning, including in her acknowledgement of service in the 2018 claim (see paragraph 4 of the 2018 judgment). Master Shuman was plainly alert to the wider issues in the dispute. At paragraph 9 of the 2018 judgment, the Master noted: “The Deceased dying intestate means that the determination of who is the spouse is of vital importance in the distribution of his estate. That will not be a straightforward issue to determine given the cross-allegations in this case about the authenticity of documents produced from Nigeria and also given the complicated intertwined and long family history”. I pause to note the reference to there being questions about the authenticity of documents (in plural). As already indicated, I do not know if this extended to the document appertaining to the certificate of incorporation of the Nigerian company, but plainly a number of documents were being contested.

78. Master Shuman recognised that the determination of the spousal issue would be of vital importance (“ Of vital importance in the distribution of the Deceased’s estate ”) at some point in the future, but not in the matter before her. The spousal issue came to fall within the purview of the later 2022 judgment of the Deputy High Court Judge.

79. Master Shuman in 2018 went on to note at paragraph 18 of her 2018 judgment: “ There is much dispute between the parties. This has become an increasingly bitter dispute with allegation and cross-allegation ”. In setting out some of the background to the wider dispute, Master Shuman noted as follows in relation to Patricia’s purported divorce from the Deceased in paragraph 22 of her judgment: “ The claimant says in 2000 she reconciled with the Deceased and they lived together in Catford. Whilst she questions whether there was ever a valid marriage between the defendant and the Deceased, the claimant says if there was a marriage, it was dissolved in March 2000. The defendant says that the documents that the claimant relies upon in support of this are forgeries ”. It is therefore clear that at least one of the forged documents before Master Shuman concerned the allegation that the divorce certificate was a forgery.

80. However, although the 2018 judgment sets out by way of background this particular feature of the dispute between the parties, in light of the concessions made by both parties at the directions hearing in 2018 and at the start of the substantive hearing in 2018 (as recorded in the 2018 judgment), Master Shuman did not, and did not need to, resolve issues around the allegation of forgery and the spousal status of Patricia. The divorce certificate issue

81. Turning, therefore, to the divorce certificate issue. In my judgment the divorce certificate issue does not provide a basis for setting aside the 2018 judgment, even if the matter had been advanced properly by way of a new claim with pleadings in support thereof.

82. Patricia’s oral and written submissions did not focus on connecting a finding that the divorce certificate was fabricated, to the relevant legal principles to be applied by this court, as set out in the case law. There are no pleadings to assist the court in fathoming what Patricia’s position might be in that regard. It was difficult to discern how Patricia sought to overcome the hurdles of (i) “ conscious and deliberate dishonesty ”; (ii) “ entirely change the way in which the court approached and came to its decisio n”, and (iii), “ impact on the evidence supporting the original decision ”.

83. Patricia’s spousal status or lack thereof was not an operative cause of the court’s decision to give judgment in the way it did in 2018. The 2018 judgment did not proceed on the basis that Patricia was divorced from the Deceased. No weight was placed on the allegation that Patricia was divorced from the defendant as advanced by Esther, or that there was a divorce certificate to support that allegation. The 2018 judgment was promulgated on the basis that Patricia was the Deceased’s spouse.

84. The parties had agreed the issues to be determined by Master Shuman in 2018. The 2018 judgment at paragraph 29 turns to the issues that were before the judge and between paragraphs 29 and 49 of Master Shuman’s judgment, she addresses the parties’ submissions and details her findings and reasons on those issues. The divorce certificate issue was not material to the resolution of the matters that were before Master Shuman, as agreed by the parties.

85. It is clear that the authenticity of the divorce certificate could (and no doubt would) have been determined by Master Shuman had the parties deemed that that was a necessary step to take. However, the parties elected not to contest that issue in 2018. It is not now open to Patricia to seek to set aside the 2018 judgment in reliance on the divorce certificate issue.

86. In light of the above it is not necessary for me to form any conclusions in relation to whether the divorce certificate was a forgery and who might have been responsible for such a document. I note that the court did not consider it necessary to resolve those questions even in the 2021 claim, which was directly engaged with Esther’s and Patricia’s spousal status (see paragraphs 42 and 43 of the 2022 judgment). In short, the divorce certificate issue was not even material to the 2021 claim.

87. However, I have considered the parties’ evidence relating to the divorce certificate issue. I have read the report of Mr Abimbola Badejo dated 17 June 2024. Mr Badejo is a practising barrister and non-practising solicitor in England and Wales. He is also a barrister and solicitor of the Supreme Court of Nigeria, having been called to the Nigerian Bar in November 2014. Mr Badejo was called to the Bar in England and Wales earlier and is head of chambers at 5 Pump Court. His practice includes family law in both this jurisdiction and Nigeria.

88. Mr Badejo’s report is tendered as expert evidence of foreign law. Although discrete issues relating to such evidence (evidence of foreign law) were not addressed by Mr Emezie, I have had regard to the case law in the correct approach to expert evidence when seeking to prove foreign law. Mr Badejo’s report concludes that the divorce certificate: “ Does not appear to be an authentic document ”. The essential reasons for that opinion are twofold. Firstly Mr Badejo knows that as a matter of Nigerian Law, a decree absolute can only be ordered either: “ Three months from the date of the decree nisi or 28 days after the court’s determination on arrangements for the welfare of the child, whichever is later ”. Mr Badejo notes that: “ The time period between the decree nisi and the decree absolute is just two weeks and two days ”.

89. The second ground of his conclusion is his reliance on: “ A letter from the Assistant Chief Registrar dated 13 April 2018 ”, which I will refer to as: “the Registrar’s letter”. The report quotes the Registrar’s letter in the following terms: “ A thorough search of our records shows that the certificate of decree absolute dated 8 March 2000, purportedly issued in respect of dissolution of the marriage between the above-mentioned parties, did not agree with our records and there is nothing here [spelt “hear]— to indicate that the said suit was instituted and determined at the High Court of Lagos State, Nigeria. We therefore disclaim as the document(sic) as saying did not emanate from this Honourable Court”.

90. It is clear from Mr Badejo’s report that he was not involved in procuring the Registrar’s letter. Rather this is a document which has been disclosed to him by Patricia’s legal representatives. The source of the Registrar’s letter appears to be a Mr Moshood Adebanji Busari who is described in Mr Badejo’s report as being: “ A legal practitioner instructed in February 2018 to conduct an investigation to verify the authenticity of the certificate of decree absolute dated 8 March 2000 in suit no. HD/227/99 ”.

91. There is no challenge to the matters of foreign law to which Mr Badejo’s report is directed and I am willing to find as a proven fact that as a matter of Nigerian law, a decree absolute can only be properly finalised three months from the date of the decree nisi or 28 days after the court’s determination of arrangements for the welfare of a child, whichever is later. I also find as a fact of Nigerian law that the certificate of decree absolute considered by Mr Badejo could not have been lawfully (in the sense of properly) made by the High Court in Nigeria (paragraph 21 of his report).

92. However, the fact an order has been made without a lawful basis is a common ground of appeal in many civil jurisdictions, including England and Wales. The fact that an order should not have been made does not mean that the order is a forgery.

93. As regards the Registrar’s letter, that has not been challenged by Esther. However, I do not have direct evidence from the author of the letter or the party who obtained the letter from the Registrar. Notwithstanding that, given that the contents of the Registrar’s letter have not been challenged by Esther and given that Esther has decided to adopt a particular course in relation to the application, which did not include any desire to further explore and investigate the provenance of the Registrar’s letter, I am willing to accept what it says. This, therefore, tends to support Patricia’s submission that the divorce certificate was a false document. However, I do not need to determine conclusively whether that was the case, for the reasons I have given above.

94. Esther’s position in relation to the divorce certificate is contained in her witness statement dated 22 February 2024 between paragraphs 26 and 27, where she states: “26. In any event I have no involvement in the divorce proceedings that produced the alleged forged divorce certificate and I only became aware of the existence of the document when my husband produced the document to convince me that he had ended his bigamous relationship with the defendant. I would never have agreed to sponsor my husband’s application for residence in the United Kingdom if I knew or suspected that he was still married to the defendant.

27. The defendant was and remains the only beneficiary of the alleged forgery in that my husband later sponsored her entry into the United Kingdom after he was granted indefinite leave to remain based on our marriage. He did this without my knowledge, which leads me to conclude that my husband planned this grand deceit with the defendant from Nigeria”.

95. As is clear from the above quote, Esther denied any responsibility in the production or acquisition of the divorce certificate, whether forged or otherwise. As already set earlier in my judgment, Esther was not cross-examined on her witness statement and I was asked by the parties to simply proceed on the basis of the written evidence.

96. There must have been an opportunity in the 2021 claim and the trial thereof before the Deputy High Court Judge to cross-examine Esther. There must also have been an opportunity to cross-examine her in 2018 befor Master Shuman in relation to the divorce certificate, if Patricia had elected to do so.

97. So it would seem that in at least three proceedings, including under this set aside application notice, there was the potential for cross-examination of Esther, but there is no evidence before me to suggest that she was ever cross-examined in relation to this certificate. She was certainly not cross-examined in the hearing before me for the reasons I have already addressed.

98. I have no reason to doubt the statement that is made by Esther in her witness statement. Accordingly, Patricia has not demonstrated at this hearing that Esther was a party to the creation of a forged divorce certificate and a “conscious and deliberate dishonesty” to mislead Master Shuman.

99. Further, as I have already indicated and for the reasons I have already given, Patricia has not satisfied me that she could overcome the other hurdles in relation to the divorce certificate issue, as set out in particular in Highland Financial Partners . Nigerian Company Issue

100. Turning to the company issue and the incorporation certificate issue.

101. The 2018 judgment was concerned with the determination of: “ The place with which the Deceased had his closest connection ”. This might be referred to as “the close connection issue”. The resolution of the close connection issue by Master Shuman was a multifactorial evaluative exercise. The 2018 judgment focuses on the close connection issue between paragraphs 44 and 48 of the judgment, which state as follows.

44. “Undoubtedly, the Deceased had a close connection with the United Kingdom. He had settled here from 1999 and acquired British citizenship. He bought a house here and certainly for a long period of time up until his admission to hospital, he lived with the defendant as man and wife. During this period he only returned to Nigeria twice.

45. Whilst I have heard conflicting evidence about the Deceased’s relationship with Nigeria, it is clear that he retained a connection there. He owned land known as the Lambo Foundation. I am told that the layout of the Foundation is that it comprises seven buildings, one of which has long collapsed. There was a restaurant on the land being run as a restaurant until the tenants moved out. There are still some tenants on the land in occupation of the buildings. There is a church and there is a school that is still run from the land.

46. Although there was some evidence that he sought to sell his land, it was still retained by him at the time of his death. Indeed, he had sent the claimant to Nigeria to make plans to renovate buildings on the land which had partially collapsed. The defendant blames the claimant indirectly, or perhaps even directly, for the Deceased’s stroke. She said that the Deceased seeing photographs of some of the collapsed buildings on his land, caused him distress and anguish and contributed to his stroke. If he had no interest in Nigeria and no interest in the property in Nigeria, I question why he had such an extreme reaction to the photographs of the Lambo Foundation. That does not sit comfortably with the picture presented by the defendant. I also consider it relevant that the Deceased never gave up his Nigerian citizenship.

47. The defendant’s evidence and that of her witnesses was that the Deceased had in effect turned his back on Nigeria. However, that was plainly not the case. He was an entrepreneur throughout his life as well as an engineer. He had a number of business ventures that did not prosper, but that did not seem to daunt him. There was evidence before me that in August 2013 a company had been incorporated in Nigeria. He was the majority shareholder of that company . It was incorporated with a view to him obtaining a licence to distribute a medicine designed to help with cataracts.

48. I accept the submission of the claimant’s counsel that this is inconsistent with the defendant’s case that the Deceased wanted to put as much distance between himself and Nigeria as possible. I also accept the claimant’s evidence that he kept in touch with his family in Lagos; in particular he enjoyed a very close relationship with his sister, who sadly passed away in 2014. I consider that the Deceased retained a close connection with Nigeria and also a close connection with the United Kingdom”.

102. I accept that the fact that the Deceased had a majority shareholding in the company which had been incorporated in Nigeria, as found in the 2018 judgment, was a fact that weighed in the 2018 judgment when determining whether the Deceased retained a close connection with Nigeria. However, it was only one such factor. The other factors included the Deceased: i) retaining Nigerian citizenship (see paragraph 46 of the 2018 judgment); ii) retaining ownership of land and buildings in Nigeria (paragraph 46); iii) having an intention to renovate buildings on his land in Nigeria (see paragraph 46); iv) having tenants in Nigeria (see paragraph 45); v) owning a building that had operated as a restaurant business in Nigeria (see paragraph 45 of the 2018 judgment); vi) having an adverse reaction to seeing photographs of the dilapidated and collapsed state of one of his buildings in Nigeria which Patricia claimed contributed to his stroke; vii) having enjoyed various business ventures in Nigeria over the years, and; viii) having a very close relationship with his sister in Nigeria and his continued contact with his family in Lagos.

103. Again, Patricia’s oral and written submissions did not focus on connecting a positive finding on the certificate of incorporation issue to the relevant legal principles to be applied by this court. It was again difficult to discern how Patricia sought to overcome the hurdles set out in Highland Financial Partners .

104. There is no evidence before me that the company does not in fact exist in Nigeria in the sense that it is not a registered company in that jurisdiction. There is no evidence before me that the Deceased did not have a shareholding in that company. The evidence that is before me is focused upon the assertion that the Deceased and his purported co-director did not sign a certificate of incorporation.

105. Patricia relied on the evidence of a handwriting expert, Mr Stephen Cosslett, contained in his report dated 9 July 2024. Mr Cosslett’s unchallenged evidence, which I accept, is that there is: “Strong evidence” to show that the Deceased did not sign the certificate of incorporation for the company dated 17 August 2013. Esther does not advance a case that the Deceased did sign the company incorporation documentation and in reliance on Mr Cosslett’s expert evidence, I am satisfied that on the balance of probabilities the Deceased did not sign the certificate of incorporation.

106. However, that finding does not mean that the Deceased was not aware of or did not cause the incorporation of the company. It does not mean that he did not have a shareholding in the company. It does not mean that the company was not in fact registered as a company in Nigeria.

107. The hearing bundle contains the witness statement of Francisca Osomiha dated 15 July 2024. Ms Osomiha is a barrister practising from Olufemi Ajiboso Chambers in Lagos. Ms Osomiha states in her witness statement: “ I have been shown a copy of the certificate of incorporation of a company by the name of Joas Best Multitrade Limited. It is recorded that Joas Best Multitrade Limited was incorporated by the Corporate Affairs Commission in Nigeria in the year 2013 by John Iyafokia Esquire of Throne Room Attorneys, Suite 51, First Floor, Trinity House, Majushi Abuja and witnessed by the practitioner. The certificate is state to have two (2) directors and in the space for the second (2 nd ) director is the name Francisca Ewerechukwu Osomiha - my name. I wish to state that I have never at any point in time given my consent to anybody to be part of this corporation, Joas Best Multitrade Limited. I never signed any incorporation document and as of 2013 when this information was done, I was not living at the address as stated in the incorporation document ”.

108. Ms Osomiha does not address in her witness statement whether she knew the Deceased, nor does she provide any insight into why her name might have been used in the certificate of incorporation. Ms Osomiha does not provide any evidence appertaining to whether the company is registered in Nigeria, and if so with whom as its shareholders.

109. Esther did not seek to challenge Mr Osomiha’s evidence, which I therefore accept as far as it goes.

110. I have considered Patricia’s witness statement dated 14 July 2024. In that statement Patricia notes that the certificate of incorporation was “fake”, in the sense that Ms Osomiha did not sign the document. Patricia does not give evidence that the company does not exist in Nigeria or that the Deceased was not a registered shareholder of the company. Patricia’s witness statement continues by her recounting some of the Deceased’s failed business ventures in Nigeria, including a business he hoped to operate in Nigeria from the United Kingdom (including with his sons) in 2011/2012.

111. Patricia notes the following in paragraph 12 of her statement: “ On his return to the UK in 2010, he decided to re-invent himself and enrolled at CNM College of Naturopathic Medicine in 2013, where he obtained a diploma in herbal medicine in 2014. He went on further to establish a business called Joas Multitrade Limited in September 2014 ”.

112. It is clear from Patricia’s witness statement that the Deceased was in the habit of undertaking business activities in Nigeria, as indeed was found in the 2018 judgment, whether whilst residing in Nigeria or from England in the years relatively close to 2013. It is also clear from Patricia’s evidence that in 2014 the Deceased incorporated a UK company with a name that is very close to the Nigerian company name.

113. Patricia’s written and oral submissions failed to assist the court in addressing the three principles set out in Highland Financial Partners . There are no pleadings upon which the court may fall back.

114. It is clear from the 2018 judgment that a number of allegations were circulating concerning forged or sham documents. As I have already set out in my judgment it is unclear what, if any, point was taken in relation to the certificate of incorporation of the Nigerian company. I cannot therefore make any finding that the company issue could and should have been raised in 2018.

115. On the evidence that is before the court today, Patricia has not demonstrated that the Deceased was not a shareholder in a company incorporated in Nigeria. It was Deceased’s shareholding that was the relevant finding made by Master Shuman. I am satisfied that the Deceased did not sign the incorporation document but there is no evidence before me that the company did not exist at that material time, nor that the Deceased was not registered as a shareholder.

116. Furthermore, even if the company is entirely fictitious in the sense that it has never existed as a properly registered company in Nigeria, Patricia has not satisfied me that Esther was a party to a conscious and deliberate dishonesty in relation to the presenting of a sham certificate of incorporation to the court in 2018. However, I again pause to note that it is not entirely clear what documents were before the court in 2018 or how those documents were relied upon, deployed and treated by the parties. However, that shortcoming falls at Patricia’s feet in the 2022 set-aside application.

117. Further, even assuming that that the existence of the company or the Deceased’s interest in that company had not been relied upon in 2018, I do not accept that this would have entirely changed the way in which Master Shuman approached and came to her decision. The Deceased’s shareholding in the company was merely one factor in the court’s determination. A shareholding in a company is a relatively weak factor to demonstrate a close connection to a country. The court did not find, for example, that the Deceased was conducting the day-to-day business of the company in Nigeria or that the nature of the company’s business required a close and regular interaction with Nigeria from England. The court merely found that the Deceased had a majority shareholding.

118. The stronger factors relied upon in the 2018 judgment included, in my judgment, the continued ownership of the immoveable land and buildings in Nigeria and the Deceased’s continuing relationship with that land, those buildings and the tenant occupiers thereof.

119. It is also important to note that the close connection issue before Master Shuman was not determined in favour of Nigeria. The 2018 judgment determined that on balance the Deceased had an equal connection with both England and Nigeria. The close connection issue was in turn only one of three main issues that Master Shuman had to consider together in the exercise of her overall discretion as to the proper place of burial.

120. In my judgment, excising the company issue would not have entirely changed the way in which the first court approached and came to its decision in 2018. The 2018 judgment notes at paragraph 50: “I consider that the weight of the evidence is overwhelmingly in favour of the Deceased’s body being repatriated to Nigeria for burial on his land”.

121. Mr Emezie’s written and oral submissions did not engage with the limited scope of the fresh evidence he sought to rely upon and the lack of evidence to demonstrate, for example, that the company does not exist with the Deceased as a registered shareholder. However, putting that point to one side and assuming that the company was a complete fabrication, Mr Emezie’s submissions failed to address how the “overwhelming” weight of evidence would have shifted in his client’s favour in 2018 if the certificate of incorporation or the company issue had not featured in the burial claim and 2018 judgment. The Royal Issue

122. Turning to the issue that was raised during the hearing, which I will refer to as “the royal issue”.

123. Mr Emezie raised a suggestion in his oral submissions that “ another point ” of relevance was Esther’s evidence that the Deceased was “ a royal ”. Mr Emezie made interesting submissions regarding the structure of the Royal Family in Nigeria that were not, however, at all times easy to follow. Ultimately, Mr Emezie was unable to point to any reference in the 2018 judgment that indicated that the Deceased’s royal status was relevant to the court’s determination of the burial issue in 2018. This royal issue was then not advanced with any further vigour by Mr Emezie. For the avoidance of doubt I would not have accepted that the issue overcame the hurdles in Highland Financial Partners . Further, I would not have considered it fair on Esther to permit Patricia to rely on this new issue which was raised late in the afternoon at the hearing, in any event. Patricia’s catch all submission

124. Mr Emezie’s final submission relied upon the court “ going back in a time machine ”. Mr Emezie’s position is that as Patricia has now obtained a full grant of probate following the 2022 judgment, that had that decision been made before the 2018 hearing, Patricia would have been the successful party, he says, in relation to the burial issue.

125. Mr Emezie was unable to explain how the fact that there had been success in 2022 fed in to the test in Highland Partners . It is not uncommon for a party to be successful at trial and yet to have been subject to adverse interim decisions and costs orders during the course of the claim. Ultimate success at trial which vindicates a party’s earlier position in interim hearings is not, without more, a ground on which to undo a historic judgment in relation to costs orders; the target of the 2022 set-aside application in this case.

126. It may have been that the court in 2018 could have reserved the issue of costs until after determination of the spousal issue. It did not take that course and there has been no successful appeal against the costs order.

127. It is also not clear that, even if the court had proceeded in 2018 on the basis that Patricia was the sole surviving spouse, that the burial would have been in England. Mr Emezie’s submissions did not engage with the Senior Courts Act, s.116 or the court’s general jurisdiction which enabled the court to make an order in relation to burial even against the wishes of a person otherwise entitled.

128. As set out in Williams, Mortimer and Sunnocks - “Executors, Administrators and Probate”, 22 nd Edition at paragraph 38.02: “Although it has been said that there is no property in a dead body, it is clear that various people may be entitled to possession of the property pending its proper disposal. These are the people on whom the common law imposes a duty to arrange for proper disposal of the body. In general, where there are known personal representatives, it is they who have the primary duty in this respect and therefore they who have the best claim to possession of the body. This will include executors named in the deceased’s will (even before the grant of probate) or if there is no executor, the administrators or those entitled to a grant of administration. It would seem, however, that this is subject to the discretion of the court under section 116 of the Senior Courts Act 1981 , to refuse to make a grant to the person otherwise entitled to it”.

129. As is made clear by that quote, notwithstanding that a person may be a sole surviving spouse and entitled to a grant, the court still retains a power under s.116 in its general discretion to provide for burial against the wishes of that person. I do accept that the wishes of a sole surviving spouse may be determinative in such a matter, but that is not necessarily so. This is not an appeal and the court does not have a time machine enabling it to go back and feed into the 2018 hearing the decision in the 2022 judgment. The approach that the court is required to take in relation to the 2022 set aside application is constrained by the authorities I have referred to earlier in this judgment, and the principles that I must apply.

130. Finally and most importantly, it remains that the parties agreed that the court should proceed in 2018 on an agreed factual basis in relation to the parties’ spousal statuses. The fact that in 2022 Patricia has obtained the full grant, does not impact that agreement reached in 2018.

131. The cost risks to both parties in 2018 flowed from their agreement as to how the court was to progress the matter in 2018. That risk came to be visited on Patricia, having been the unsuccessful party in 2018 following Master Shuman’s judgment based on the ground rules agreed upon by the parties at that time. The fact that a court has later in 2022 determined that Patricia should have the grant of probate, does not form a basis on which to undo the judgment or costs order that was made in 2018.

132. Those are the reasons for which I would have dismissed the 2022 set aside application if it were to be determined substantively and on its merits.

133. I will now turn to the parties to ascertain how they want me to deal with the subsidiary or parasitic applications following my judgment in relation to the 2022 set aside application. - - - - - - - - - - - - - - Digital Transcription by Marten Walsh Cherer Ltd 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: [email protected] Web: www.martenwalshcherer.com