Adepoju v Akinola

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.

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.

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.

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 the end of the judgment on remedies. Accordingly I shall come back to the matter then.

The Claimant gave evidence before me on a number of matters, including what happened on 15 April 2006. I should record my impression of her as a witness. I did not find her satisfactory. Her body language indicated that she was uncomfortable answering the questions put to her. She looked down or away and was generally unwilling to engage with the court. She did not maintain eye contact when she did. Her answers were generally short and low-key. She had a very clear idea of the purpose of each question being put to her in cross-examination, and sought to minimise any negative impact.

She accepted in cross-examination that she had not told the other side in the meeting on 1 December 2015 that she was recording it on her mobile phone. In my judgment an honest and straightforward person would have done so. She also accepted that, after the death of the deceased, and knowing that she was dead, she used the deceased’s online banking details to transfer some £17,000 to her own personal bank account in two tranches, one under the reference “student loan”, and the other under the reference “credit card loan”. She would have had to insert these references specifically, because they did not appear elsewhere on the account. An honest and straightforward person would not have used another’s banking details after that person’s death, at all events without making others with an interest aware that she was doing so. There is no evidence before me that she did this.

As to the references used by the Claimant, she insisted that these were just references, and that in fact she used these monies for the purposes of the deceased’s funeral, rather than for her own benefit. £17,000 is a lot of money to spend on a funeral, but even after more than a year the Claimant has produced no documents, such as invoices or receipts, or even letters or other correspondence, to support this version of events. She has not even, after all this time, produced any account for the benefit of the administration of the estate. The fact that she can make up and insert references in bank payments which she then glibly denies to be correct, because the consequences of their being true would be worse, is just one of the unseemly aspects of the Claimant’s evidence. More importantly, I am not satisfied that it is true, or at any rate entirely true, that she spent all this money on funeral expenses. Overall, and taking into account the meeting recording episode, the banking transactions, and her general behaviour whilst giving evidence before me, I have come to the conclusion that I cannot accept the evidence the Claimant gave me unless it was independently corroborated.

The Defendant also gave evidence before me on similar matters to the Claimant, including the events of 15 April 2006. He was more engaged with the court than the Claimant. He was clear and straightforward in his answers, and, although sometimes he became animated and even indignant, those answers gave the clear impression of being true so far as he knew. In some cases what he told me depended for its accuracy on what others had told him. In some cases it may be that what he had been told was not correct. Nevertheless, I am satisfied at least that he believed what he was telling me. This means that he may have persuaded himself of the truth of things that he was told and in which he wishes to believe. Where his evidence was primary, ie was of events of which he could give direct evidence, and differed from that of the Claimant, I prefer his evidence to hers.

Other, more minor witnesses who gave evidence before me were Abdul Malek and Oluwakemi Akinola (apparently not a relative of the Defendant). Neither of them was present at the events in Nigeria on 15 April 2006. Their evidence concerned events after the Defendant and the deceased had returned to England. The former had impaired English, but was otherwise unremarkable as a witness, and I have no reason to suppose that he told me anything but the truth. The latter was argumentative, theatrical, and sure she was right. As she spoke she tapped the desk and waved her arm about. She asked questions rather than answering them. I do not place much weight on her evidence.

The main question raised by these proceedings is whether the Defendant and the deceased were married in Nigeria in April 2006. Now, there is no doubt that on 15 April 2006 there was a family gathering in Abeokuta, Nigeria, at which not only the deceased and the Defendant were present, but also the Claimant. The critical issue between the parties is whether any ceremony took place on that occasion amounting to a marriage in native and customary law. The evidence of the parties as to what happened is therefore of the first importance. As will be seen, the Claimant and the Defendant give diametrically opposed evidence about what happened on that occasion. But, in order for the court to decide whether any marriage of the Defendant to the deceased that may have taken place on that occasion was valid, it is also necessary for the court to decide whether the earlier marriage in July 1983 between the Defendant and Mrs Akinola was still subsisting at the time of the events in 2006 which are said to amount to marriage with the deceased.

This because s 11(d) of the Matrimonial Causes Act 1973 provides that where after 31 July 1971 a “polygamous marriage” is entered into outside England and Wales, and either party is at that time domiciled in England and Wales, the polygamous marriage is void. For this purpose a “polygamous marriage” includes one where one party to it is a party to a prior subsisting marriage: see Dicey, Morris and Collins on the Conflict of Laws, [17-180], and MO v RO [2013] EWHC 392 (Fam), [121]; cf Hussain v Hussain [1983] Fam 26, 32, CA.

The usual English law meaning of “domicile” is permanent home, rather than the wider meaning of something like habitual residence found in civil law systems: see egBarlow Clowes International Ltd v Henwood [2008] EWCA Civ 577, [8]. It was not suggested before me that there was any basis for considering that “domicile” in s 11 of the 1973 Act had anything other than the usual English law meaning. So far as I am aware, the evidence does not disclose where the Defendant and the deceased were actually born, or what their fathers’ domiciles were at birth, but I infer that they were Nigerian. Certainly the copy marriage certificate for the deceased and her late husband Samuel Adepoju shows that they were married in Nigeria on 17 September 1985, both giving residential addresses in Nigeria at that time. The deceased became a British citizen during the time she lived here. I do not know if she had or retained any other nationality. The Defendant holds both British and Nigerian citizenship.

The Claimant submitted that on the evidence before the court both the deceased and the Defendant were domiciled in England and Wales at the time of the 2006 ceremony. The Defendant did not, as I understood him, submit to the contrary. Indeed, his own evidence was to the effect (inter alia) that he had lived in England since 1983, married and had children here, and was intending to bring James from Nigeria for his secondary education and to live here thereafter. The deceased had come to England in 1985 and lived here thereafter, becoming naturalised, qualifying as a nurse, running a business and building up a portfolio of properties. She too was intending that James should come to England after he had finished his primary education. According to the Claimant’s composite witness statement, paragraph 3, the deceased “constantly expressed to me the intention to spend the rest of her life here”. She did however visit Nigeria regularly, where she owned property and had family. Unfortunately, she became so ill when in Nigeria in 2015 that she was unable to leave, and she died there on 20 July, from ovarian cancer.

Whilst this evidence is not as full as it might be, and bearing in mind the somewhat adhesive qualities of the domicile of origin in English law, in my judgment it is just sufficient to permit me to infer that both parties had decided that, whatever their domicile of origin, their permanent home for the future was England, so that each had acquired a domicile of choice in England. Since the matter is not contested by either side, I am prepared so to conclude. Accordingly, if the Defendant had not been validly divorced from Mrs Akinola by the time of the ceremony of 2006, that ceremony could not operate as a valid marriage recognised by English law.

I must therefore begin with the divorce between the Defendant and Mrs Akinola, alleged to have taken place in about 2002. The first problem for the Defendant however is that he has not pleaded this divorce. Paragraph 4 of the original Particulars of Claim dated 9 February 2016 alleged that the Defendant was married before 2006 under English law to Mrs Akinola and that that marriage was subsisting at the time of the events of April 2006. (The copy marriage certificate in the bundle shows that the marriage took place on 28 July 1983 at Lambeth Register Office.) In the amended Particulars dated 17 March 2016 the allegation is moved to paragraph 3:

“In or around 1983 the Defendant married [Mrs Akinola]. This marriage was conducted in England under English law and the Defendant is still married to Mrs Akinola.”

The Defence dated 15 May 2016 in paragraph 3 says:

“Save that it is admitted that the Defendant was married to [Mrs Akinola] paragraph 3 is denied and the Claimant is put to strict proof”.

Accordingly, the Defendant had admitted the marriage but denied the subsistence of that marriage at the time of the pleading. But no explanation of the non-subsistence is given. The failure to plead the divorce is not a mere technicality. The English rules of civil procedure require the pleading of allegations of fact so that the issues between the parties can be identified and refined, and appropriate preparation (including disclosure, witness statements and if need be expert reports) for their trial can be made. This avoids not only taking parties by surprise at trial, but also preparation that is over-broad. It helps to keep trials as short as is necessary, thereby avoiding waste of time and resources. It is about both fairness and efficiency.

However, in the present case the Defendant in his witness statement dated 6 July 2016, paragraph 2, asserted that he had been divorced by his wife in Nigeria. Thereafter, at least, the parties prepared for trial on the basis that the Defendant was alleging that there was a divorce between himself and Mrs Akinola in Nigeria in about 2002. Indeed, the Claimant issued an application notice dated 8 August 2016, and on 7 September 2016 obtained an order, for specific disclosure from Deputy Master Hansen in relation to this allegation. The learned Deputy Master treated the divorce as an issue in the claim. The Claimant does not complain of any prejudice as a result of the failure to plead the matter properly. In these circumstances it would therefore be wrong for me to refuse to consider the issue.

It is clear that the burden of proof of the fact of the divorce must lie on the Defendant. He asserts it, and he who asserts must prove: Robins v National Trust Company Ltd [1927] AC 515, 520, per Viscount Dunedin. The second problem therefore for the Defendant is that the evidence adduced in support of the allegation is very limited. As I have already said, the Defendant gave evidence (in his witness statement dated 6 July 2016, confirmed in court before me) to the effect that he was told by Mrs Akinola in about 2003 that she had obtained a divorce from him in Nigeria. It will be noted that this is not direct evidence of the divorce at all. The Defendant has no such knowledge. He did not apply for it or even receive it. The evidence he gives of it is hearsay from Mrs Akinola. It is therefore not as strong as it might be.

Given that the Defendant and Mrs Akinola married in England, and have lived here continuously since then, the natural place to apply for a divorce would be the English court. But there was no explanation as to why Mrs Akinola should seek a divorce in Nigeria rather than in England. As a result, the Defendant begins on the back foot. Worse, despite the fact that some 13 years have passed since (on his case) the Defendant was told, there is no documentary evidence of the divorce at all. This is so even despite the order of Deputy Master Hansen of 7 September 2016 that the Defendant use all reasonable endeavours to obtain and produce to the Claimant a copy of the decree absolute from Nigeria. In pursuance of this order, inquiries were made, but nothing was however forthcoming. If there really were such a divorce, I am surprised at that.

I was also asked to listen to a recording of a meeting that took place between the parties and their lawyers on 1 December 2015 (ie before the claim was issued), and to consider a transcript of that recording. It appears that the recording was made by the Claimant on her mobile telephone, without the knowledge of the Defendant or his solicitors. She said she told her own solicitor she was doing this, but there was no confirmatory evidence from her solicitor to that effect. A solicitor would be immediately aware of the potential for later difficulty with the use of such a recording, both from the so-called “without prejudice” rule and because of the professional rules that govern the conduct of solicitors in their relations with each other. The failure to call or provide such evidence weakens her own evidence that she told her solicitor. I am not satisfied that she did tell him.

At that meeting, there were discussions between the parties as to various matters, including the assets in the deceased’s estate. But at one point there are questions about the Defendant’s subsisting marriage. During the trial I heard argument on whether the recording and the transcript made from it could be admitted in evidence. I ruled that it could, and have accordingly listened to the recording and read the transcript.

At page 20 of the transcript, the Claimant’s solicitor asks:

“Have you taken instruction from [the D] about him being in a subsisting marriage?”

The Defendant’s solicitor replies “We have.”

There is further discussion about the significance of this, and then on page 22 the Claimant’s solicitor returns to the point:

“So what you have said to us today is that Mr Akinola is in a subsisting marriage?”

A second solicitor for the Defendant replies: “Yes.”

There is then an exchange between the Claimant’s solicitor and the Defendant himself, and then the Defendant’s solicitor:

The Claimant’s solicitor: “He is in it.”

The Defendant: “We were separated”.

The Claimant’s solicitor: “Are you saying that, are you separated?”

The Defendant: “Yes, we have been separated for years.”

The Defendant’s solicitor: “The marriage was a legal marriage that took place before this traditional marriage, correct me if I am wrong, Mr Akinola. Yes? They were, however, separated, but not divorced before, correct me if I have it wrong.”

The Defendant: “That is correct, yes.”

Mr Devereux-Cooke submits that the recording from which the transcript is made is not always clear. I accept that. But whether the words used by the Defendant in the recording are exactly as set out in the transcript (and, so far as concerns the extract above, my audition of the recording tells me that in substance they are), what is absolutely clear is that the question of the Defendant’s earlier marriage was fairly and squarely raised at the meeting, and that the Defendant at no time says that he has been divorced. Here was an obvious opportunity for the Defendant to put the Claimant’s lawyers right about his marital status, and the Defendant did not take it.

Finally, it was submitted that the failure of the Defendant to call Mrs Akinola to give evidence about the divorce was something from which I could draw an inference adverse to him, which would have the effect of weakening his own (indirect) evidence of the divorce. No explanation was given as to why Mrs Akinola could not or would not have given evidence, and I am unwilling to assume any. She and the Defendant have had children together, so it is reasonable to suppose that there can still be communication between them if they wish. In my judgment, on these rather unusual facts, it is right that I should draw an inference adverse to the Defendant, weakening further the already weak effect of the evidence he has given about the divorce.

Overall, on the material before me I am not satisfied that there ever was a divorce between the Defendant and Mrs Akinola. Accordingly, by virtue of s 11 (d) of the Matrimonial Causes Act 1973, there could not have been a valid marriage between the Defendant and the deceased in Nigeria in 2006. No other allegation of marriage between them is put forward. On one view, therefore, it is not necessary for me to consider the evidence as to what happened on 15 April 2006 in Nigeria. But the Claimant asks for certain declarations, and the Defendant asks for a grant on other bases than widowhood, and, in order to decide whether I should give any of the declarations or grant administration on other bases, I consider that I need to go further on the facts. Moreover, there is also the possibility that I am wrong in my primary finding, or in its significance. I therefore turn to consider the evidence surrounding the events of April 2006.

The evidence available to me of what happened consists mainly of the witness statements of the parties, their oral evidence before me confirming those statements, the cross-examinations of both of them, the photographs admitted in evidence, and the expert evidence of the single joint expert in the relevant Nigerian customary law, Prince Lateef Fagbemi, a Nigerian Senior Advocate (the equivalent to Queen’s Counsel in England). There are also some documents made or signed by the parties after the event, and some evidence from England-based witnesses of how the Defendant and the deceased saw or described themselves after the event. Rather remarkably, although there were literally dozens of persons at the events on 15 April 2006, the Claimant and the Defendant are the only persons called (by either side) to give evidence about them. I consider the significance of this omission further below.

I begin with the expert evidence. The expert witness, Prince Lateef Fagbemi SAN, has been engaged in legal practice for more than 31 years, of which 20 have been at senior advocate level. He is now principal partner of the law firm Lateef Fagbemi & Co, with offices in several cities of Nigeria. He was asked to give expert evidence of foreign law, on marriage under Yoruba Native Law & Custom as applicable in Abeokuta, Ogun State of Nigeria. He was jointly instructed by both sides. As one would expect, therefore, his evidence was unchallenged.

It was given in the form of a written report dated 15 September 2016, and was to the effect that the Yoruba customary law of marriage is not different in Abeokuta to that in other Yoruba speaking parts of Nigeria. He initially said that there were three elements to a valid marriage, namely (i) obtaining the consent of the bride and her family (“Itoro”), (ii) the engagement ceremony (“Idana”), and (iii) the giving of the bride to the groom and his family. He explained that marriage was a transaction between two families, and that parental consent was needed even where the bride was an adult (although this has been modified by statute law to enable the court to give consent where the parents refuse). Subsequently he stated that payment of a bride price (or dowry) whether in advance of or following the marriage, but paid on account of it and not for any other reason, was also an essential ingredient of a valid customary law marriage.

The consent (stage (i)) may be given on a different occasion from the engagement or Idana (stage (ii)), though in modern times they may be done on the same day to save costs. It is at the latter stage that the bride is handed over to the groom and his family, even though not taken away on that day. The expert also says that the preponderance of opinion is that the marriage is complete once the Indana has taken place and the bride price has been paid. The third stage, namely, taking the bride to the groom’s family, appears to be only a symbol of the already existing valid marriage. Thus he gives as his opinion

“that a valid Yoruba/Abeokuta Customary marriage only comes into existence upon the Idana/Introduction/marriage ceremony and the payment of dowry to the bride’s family”.

The expert goes on to deal with how the existence of the marriage may be proved under Nigerian law. However, matters of evidence and procedure are for the forum (here English law), and so I am not concerned with what he says on this topic. He also goes through the written evidence available to him, and reaches a conclusion on the facts. Since under the English rules of procedure I am the finder of fact, as well as the judge of law, I am not much concerned with what he says here either, although I do refer to his findings in relation to one point below.

Next I turn to the photographs of the events of 15 April 2006. They clearly show some sort of formal occasion. Everyone photographed is wearing clothes suitable for a formal event, not casual at all. The deceased, the Defendant and the Claimant are wearing matching outfits. At one point the deceased and the Defendant are shown sitting on big padded armchairs (the only ones seen in the photographs) in what appear to be places of honour. They look happy. There are paid entertainers shown in other photographs. Yet further photographs show a bowl being held by a man who appears to be carrying out some kind of function. There are photographs of people sitting at tables, both inside the house and outside, eating and drinking. It is accepted that the persons in the photographs comprise both relatives of the deceased and relatives of the Defendant. There is a photograph of the Defendant standing between his brother, cousin and a friend (like supporters) and then another showing the Defendant prostrate on the floor between the three other men, apparently before the deceased’s father. Then there is a photograph of the Defendant sitting down and the deceased kneeling before him, her hands in his lap, as though she is being presented or given to him.

The Claimant explained these photographs and events as a house warming party for the new house of the Claimant’s uncle, Alege Lasisi. She further explained that this house was in the town where the Defendant’s family lived, and that it was a nice opportunity for the Defendant to meet her family. In her composite statement of 15 September 2016, para 8, she described the event as an “introductory ceremony”. She said that the man holding the bowl was a Muslim prayer man, saying a prayer to the bowl, which contained money collected from those attending. She said that the matching outfits were explained by the fact that the deceased and the Defendant were friends, and that they tended to purchase traditional cloth in Nigeria and have it made into outfits there (because cheaper than in England). The photograph of the Defendant prostrating himself on the floor was simply the Defendant greeting the deceased’s father. She said the photographs were taken by a professional photographer, who distributed the photographs to the family of the persons shown in them. She complained that the photographs adduced in evidence were not representative of the whole event. But she did not disclose or seek to adduce in evidence any photographs from the same event but (on her case) from her family’s point of view. In the absence of any explanation as to difficulty, I consider that it would have been easy for her to do so. I infer that there are none which assist her, which weakens her evidence on this point.

According to the Claimant, the Defendant had been told by the deceased’s family (her father and her brothers) prior to this ceremony that they realised he was already married, and that therefore there could be no marriage between the deceased and the Defendant.

It is apparent to me that the persons attending on 15 April must have known why they were invited and why they were there. Whether it was a marriage or merely a housewarming party, or something between (eg the Itoro), they would have known. Unfortunately, the Claimant and the Defendant have given me diametrically opposed views of what was happening. Neither has called any other witness of that occasion, although (as is obvious) there are lots of them.

The Claimant argued that an inference adverse to the Defendant could be drawn from the fact that he did not call any other witnesses to support his view of what happened, though there were other persons present whom must have seen what happened. I accept that there is no obvious reason why such other persons present could not have been called, and no explanation has been given. But what is sauce for the goose is sauce for the gander. The same is true of the failure by the Claimant to call witnesses to support her view of what happened. Even if the potential witnesses lived in Nigeria, hearsay notices under the Civil Evidence Act 1995 could have been served by each side. None was, so far as I know. I am therefore in the position of being able to draw an adverse inference against each side weakening the evidence of each side, and/or strengthening the other. But in such a situation, where each side has both the benefit and the burden of such a possible inference, I hold that no useful purpose would be served by drawing any such inference. In a case like this, the evidence given should lie as it falls.

The Defendant gave evidence that the ceremony on 15 April 2006 was a marriage, that the bride price (which had been collected from members of his family and was in part in the bowl seen in the photograph) had been paid and that the deceased’s father had given her to him. He also said that the Itoro, the first stage had already taken place. This occasion was not the first time the families had met. This instead was the Idana. He had prostrated himself before the deceased’s father, hands clasped together, to ask for the deceased’s hand in marriage. He said that he and the deceased were wearing the same outfits because they were special, to distinguish them on that occasion of their wedding. The Claimant wore the same outfit because as the deceased’s daughter from a previous marriage she was joining the new family unit on that day too. If indeed this was the Indana, the Itoro would already have taken place. But he provided no further details of the Itoro.

In accordance with my view already stated of the Claimant and the Defendant as witnesses, I am inclined to prefer the evidence of the Defendant to that of the Claimant, ie that this was a marriage, and that the deceased’s family had not just told him he could not marry the deceased. The Defendant is giving direct evidence of what he himself experienced, and there is no independently corroborative evidence before me of what the Claimant says. This inclination is then further supported by the following photographic evidence:

I accept that it would be possible to have a mere house-warming party at which some of these things might happen. But in my judgment it is highly improbable that all of them would. The matching outfits, the places of honour, the prostration of the Defendant before the deceased’s father and the presentation of the deceased to the Defendant strike me as particularly significant in this respect. And I do not accept that the Defendant or the deceased would look as happy if they had just been told they could not marry.

There is a further point. The expert evidence was clear that there had to be a ceremony of marriage at which the bride price would be paid and then symbolically the wife would be given to the husband. Although fact-finding is for me and not for the expert, it is telling that the same photographs were shown to the expert, who considered that they showed a marriage. (That does not mean it was legally valid, of course.) Since I do not have the cultural background of the parties, but the expert does, this reinforces my view that the Defendant is telling the truth about what happened on 15 April 2006.

In my judgment, on this material, it is more likely than not to have been a marriage ceremony. Since the Claimant must have known what was happening, I regret to say that it therefore follows that she is deliberately lying about the events of that day. This is a case which can properly be said to involve what may be termed as “the big lie”: see the curiously reminiscent case of M-T v T [2013] EWHC 2061 (Fam), [2]-[4]. I also accept that, if this was the Indana, the Itoro had already happened. The Defendant said that this was not the first meeting between the families, and I accept it. Moreover, I find it impossible to believe that the deceased’s family would have taken part in an Indana without an Itoro having already occurred.

There was other evidence, dating from after 2006, in which the deceased was described, or described herself, either as being married to the Defendant, or at least as having the surname “Akinola”, and thus by implication being the wife of the Defendant. This included the evidence of Abdul Malek, a neighbour of the deceased and the Defendant after they returned to London, and Oluwakemi Akinola, a tenant of one of the deceased’s houses in Stratford (and not related to the Defendant). Each of them gave evidence of knowing the deceased and the Defendant as a married couple.

There are also a number of documents in which the deceased is called Medinat Bola Akinola. These include an affidavit sworn by the deceased on 7 November 2007 to change her name, an agreement dated 18 September 2009 to buy a piece of land in Nigeria, a document entitled Certificate of Occupancy, and a survey plan relating to two more pieces of land. On its own this further evidence cannot be conclusive of anything. Even if (contrary to my finding) the deceased did not believe that there had been a marriage ceremony in April 2006, the deceased may still have had other reasons for wishing to be treated as the Defendant’s wife. But nevertheless it is certainly consistent with a marriage ceremony’s having taken place.

Having established that a marriage ceremony took place on 15 April 2006 in Nigeria, I consider briefly whether, had the Defendant been free to marry on that day, it would have amounted to a marriage under Yoruba law and custom. Having considered the expert evidence, it seems to me that all the necessary elements were present. In particular, I find that the bride price was paid, and that the deceased’s father presented the deceased to the Defendant. I also find that the Itoro had already taken place. Plainly, if the marriage ceremony took place, the deceased’s family received the bride price and the deceased’s father presented her to the Defendant, the deceased’s family must have consented to the marriage. Of course, at that time, no-one knew that nine years later she (the younger partner) would die of ovarian cancer and the (rather older) Defendant would claim a share of her estate.

As I have already held that the Defendant has not proved that he had been divorced from Mrs Akinola at the time of the events of April 2006, the intended marriage between the deceased and the Defendant was void so far as English law was concerned. This means that the Defendant is not the deceased’s widower, entitled to either Letters of Administration (under the Non-Contentious Probate Rules 1987, r 22, as amended), or to any share in her estate on intestacy (under the Administration of Estates Act 1925, s 46, as amended). So I cannot make a grant to him on that basis.

On the evidence, the Defendant is a person who lived with the deceased as her partner, but that gives no right under either provision as presently cast. If it were shown that the Defendant were the father, and the deceased the mother, of James, then that would at least change the argument (not necessarily successfully). But both elements are challenged by the Claimant, no evidence has been called in relation to it, and the question has not been argued before me, so I say nothing more about it. The Defendant claims that he has an interest in assets of the estate, for example by way of a constructive trust, but that too is challenged, and it has not been pleaded out or argued before me in this action. So certainly at this stage I can make no grant under that head either.

This leaves the claim of the Claimant (i) to declarations that (a) the deceased and the Defendant were not married; (b) the Claimant is the deceased’s next of kin; and (c) the Defendant has no interest in the deceased’s estate; and (ii) to be granted Letters of Administration to the estate. As to the claim in (i)(a), the form of the declaration claimed is problematic, because s 58(5) of the Family Law Act 1986 provides that

“No declaration may be made by any court, whether under this Part or otherwise—

(a)

that a marriage was at its inception void…”

although by s 58(6) this provision does not

“affect the powers of any court to grant a decree of nullity of marriage.”

What this appears to mean is that I cannot grant the declaration sought in this form, and that any claim for analogous relief (eg a decree of nullity) will probably have to be transferred out or brought elsewhere than in this Division: cf the Senior Courts Act 1981, s 61, Sch 1, para 3.

As to the claim in (i)(b), whilst it is clear that the Claimant is accepted to be the daughter of the deceased, I doubt it would be right to make a declaration in this form before the position of James has been fully considered.

As to the claim in (i)(c), I agree that, not being married to the deceased, the Defendant has no right to share in her estate on the footing of her intestacy, but there are claims to share assets on the basis of constructive trust which have not yet been pleaded and considered, so similarly it cannot be right to grant a declaration in these terms now.

I therefore turn finally to the claim of the Claimant to Letters of Administration to the estate. I start from the position that the administration needs to be carried out by someone. The deceased died over a year ago, it is a complex estate, with a value which must be well into seven figures, and there have been disputes over administration between the parties ever since. In ordinary circumstances where an admitted daughter and a challenged widower compete, and the widower turns out not to have been married to the deceased at all, the usual course would be to grant Letters of Administration to the daughter, as the person with the highest entitlement under r 22 of the Non-Contentious Probate Rules 1987.

However, the position here is not normal. The parties to this claim accuse each other of interfering with the assets of the estate and of each trying to exclude the other. There is mistrust and suspicion between them. Moreover, I have found that the evidence of the Claimant is not to be accepted where not independently corroborated. Indeed, I have been compelled, by the binary nature of the case put forward and the events which happened, to find that the Claimant has deliberately lied to the court. I bear in mind also the public interest and the interests of creditors, who may be affected by the identity of the personal representative. In these circumstances I do not think it would be at all right to grant Letters of Administration to the Claimant.

Under s 116(1) of the Senior Courts Act 1981 the court has jurisdiction to appoint a person other than the one who would otherwise be appointed. What is required under that section is that “by reason of any special circumstance it appears to the High Court to be necessary or expedient to appoint as administrator” some other person. In my judgment the allegations and counter-allegations between the parties, coupled with the fact that the person who would be entitled to the grant has been found to be a person whose evidence is not to be trusted and indeed has lied, constitute the “special circumstance” needed under this section.

I am minded therefore, subject to further argument about the identity of the person to be appointed, to make an appointment of an administrator under s 116. When this judgment is handed down I will give directions for the selection and appointment of an appropriate person, assuming that the parties do not agree on who it should be.