Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE PEEL
Between :
FISAYO OLAOLUWA AWOLOWO | Applicant |
- and - | |
(1) OLUSEGUN SAMUEL AWOLOWO (2) LINKSERVE VENTURES TRANSNATIONAL LIMITED | Respondents |
Jacqueline Perry KC (instructed by Raphael Law Solicitors) for the Applicant
The First Respondent in person
The Second Respondent in person
Hearing dates: 11,12, 15 and 17 December 2025
Approved Judgment
This judgment was handed down remotely at 2pm on 18 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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MR JUSTICE PEEL
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Mr Justice Peel :
This is a preliminary issue hearing in financial remedy proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 (“MFPA 1984”) as to whether a debt of £1.6m is owed by the husband (“H”) to his brother’s company. H and his brother assert there is such a debt. The wife (“W”) disputes the existence of the debt. There are conjoined King’s Bench Division proceedings which fall to be considered by me together with the MFPA 1984 proceedings; I shall continue to refer to them as King’s Bench Division proceedings, as that is where they were issued and proceeded for some time, although they have now been transferred to the Family Division.
H is/was the sole owner of two relevant companies:
De Skyline Hotel Ltd was incorporated in England on 12 August 2010.
A Nigerian company by the same name, De Skyline Hotel Ltd; the date of incorporation is not evidenced, but on any view was before incorporation of the English company.
I shall refer to these companies for convenience as “De Skyline (UK)” and “De Skyline (Nigeria)”.
In March 2021, Linkserve Ventures Transnational Ltd. (“Linkserve”) was joined to the MFPA 1984 proceedings as second respondent. Linkserve is a Nigerian company, incorporated on 23 January 2007. It is wholly owned by H’s brother, Abiodun Olumide Awolowo. It has been variously described as Linkserve Ventures Transnational Ltd, Linkserves Venture Transnational Ltd, and Linkserve Transnational Ltd. I shall refer to it as “Linkserve”.
H and Linkserve contend that a loan of £1.6m was made by Linkserve to H and De Skyline (Nigeria) as joint borrowers pursuant to a formal agreement entered into in Nigeria in August 2009. They further contend that the debt has not been repaid, and remains owing to Linkserve. It is W’s case that there is no such debt, which she says is a concoction between H and his brother designed to defeat her financial remedy claims.
The relevance of the alleged debt is twofold:
Within the MFPA 1984 proceedings, to enable the court to compute the assets, and take into account as may be necessary the existence of any such debt. The only asset in this country is the former matrimonial home (“FMH”) worth about £2 million. If the debt is due, then allowing for legal costs of these proceedings there are no net assets available for distribution. If it is not due, then the equity in the FMH is available for distribution, albeit significantly reduced by the legal costs.
Within the King’s Bench Division proceedings, to consider consequential matters which include a Nigerian court order requiring H and De Skyline (Nigeria) to repay the money, the registration of the said Nigerian order in England under reciprocal enforcement provisions, and the making of a final charging order in England against the FMH, which W occupies with the children. It is W’s case that these orders should be set aside.
In making these preliminary observations, I have in mind that even if the debt is payable, it is nevertheless open to the court, balancing financial remedy considerations with the interests of the alleged creditor (Linkserve), to postpone enforcement of the debt so as to enable W and the children to continue to occupy the FMH for such time as is considered appropriate: Harman v Glencross [1986] Fam 81.
This brief summary of what I have to determine does not begin to do justice to the labyrinthine proceedings in Nigeria and England which have been ongoing for nearly nine years at great financial cost, as well as, I am confident, emotional cost.
The background and chronology
W is 41 years old, and H is 63. They are both Nigerian by birth and background. They met in Nigeria where W worked for H in his hotel business. They married on 24 December 2004. Their four children are aged 19, 16, 14 and 12. In 2009 the family moved from Nigeria to the UK.
In August 2009, a loan agreement was purportedly entered into in Nigeria. The heading of the document says that “THIS LOAN AGREEMENT is made the ……day of August 2009”. An official stamp has been filled in manually with a date, 6 August 2009. The document is signed by H’s brother and H as representatives of Linkserve and De Skyline (Nigeria), but not by H in his personal capacity.
The principal terms were as follows:
It was between Linkserve (described as “the Lender”) and (i) De Skyline (Nigeria) and (2) H, both of whom are described as “the Borrower” (singular).
Linkserve granted a loan facility of £1.6m to De Skyline (Nigeria) and H.
“The Borrowers shall use the funds for the purpose of entrepreneurial pursuit in the United Kingdom”. Although the agreement does not expressly say so, the evidence of H is that he was intending to embark on a hotel business in England.
No interest on the borrowing was provided for. No repayment date was set out.
Security was to be given by “depositing the title documents of the property of De Skyline London” and “From time to time the Lender may demand, and the borrower shall execute, additional loan documents which in the lender’s view are reasonably necessary to perfect the lender’s security interests”. There is no evidence that any security was in fact sought or given.
The governing law is England: “This agreement, and the security documents shall be governed by, construed and enforced in accordance with the law of England and Wales to the jurisdiction of which the parties hereto submit”.
I have referred to H’s relevant company as De Skyline (Nigeria) rather than De Skyline (UK). The agreement itself does not expressly say which is the relevant borrower, but both H and his brother told me that it was De Skyline (Nigeria) which is consistent with other documentary evidence.
It is the case of H and Linkserve that between 14 March 2009 and 3 December 2009, Linkserve transferred £1.6m in accordance with the agreement.
On 11 December 2009, the FMH at 49 Sherwood Rd., Hendon, was bought in H’s sole name for £1.35m without a mortgage. H says he used the monies from Linkserve which were intended for commercial purposes, and therefore, on his case, wrongly applied for personal use. He says he did not tell his brother that he was using the money to buy a home. It is W’s case that H always said he paid for the house from his own wealth, and made no mention of any loan from his brother until these proceedings started. H’s brother says he was not aware that H used the money to buy a house until several years after the loan agreement.
In July 2010, a property in Harlington, Hayes, was bought in two parts and under two titles: The Dower House, 393 High Street, Harlington, Hayes, and the Orchard, lying to the east of High Street, Harlington. The combined property was bought in H’s sole name for £816,500. The Dower House was subsequently transferred into the name of De Skyline (UK) in October 2016.
On 12 August 2010 (i.e after purchase of the FMH and the properties in Harlington), De Skyline (UK) was incorporated in England. The last accounts for the company are for the period to 31 August 2018. A winding up order was made on 17 September 2019 and the company was dissolved on 23 June 2021. It seems (although there is a dearth of documentation) that the liquidation led to sale of the Harlington properties at a knock down price and no net sums were realised by H.
In February 2015, the parties separated. W and the children continued to live in the FMH in England. H moved back to Nigeria. The children have had no contact with H since 2018.
On 11 November 2015, W entered a Notice at HM Land Registry under the Family Law Act 1996 in respect of home rights at the FMH.
On 16 March 2017, H issued a Nigerian divorce petition, which was subsequently amended on two occasions. The petition records the following from H: “He also seeks for an order of court that [W] vacates the matrimonial home at 49 Sherwood Road, London, NW4 1AE. That he purchased the property in December 2009”. The Statement of Claim echoes that demand. No mention is made of the loan from Linkserve.
On 30 August 2017, W issued an English divorce petition.
On 6 March 2018, Linkserve started enforcement proceedings in Nigeria in respect of the loan against De Skyline (Nigeria) and H.
On 7 September 2018, decree nisi was pronounced in Nigeria. W thereafter withdrew her English petition.
On 2 October 2018, W applied in this jurisdiction for permission to seek financial relief after an overseas divorce under Part III of the MFPA 1984. She was given permission by the court on 17 October 2018 to bring her application. That is the substantive claim before this court.
On 13 February 2019 (a date entered manually on the document), written terms of settlement were agreed in Nigeria between Linkserve and (1) De Skyline (Nigeria) and (2) H. The terms of the agreement were payment by H and De Skyline (Nigeria) to Linkserve in four instalments of £400,000 over one year, ending on 30 June 2020, amounting to a total of £1.6m.
On 27 March 2019, a judgment of the Nigerian High Court was entered in favour of Linkserve against De Skyline (Nigeria) and H pursuant to the terms of agreement. The order for payment was:
£400,000 by 1 June 2019.
£400,000 by 31 October 2019.
£400,000 by 28 June 2020.
£400,000 by 30 June 2020.
As I understand it, the Nigerian court did not consider any of the underlying documents, nor the validity of the debt, nor make any factual or legal adjudication on the matters before it. This was not a contested claim. All the Nigerian court did was to enter the terms of settlement as its order. It is hard to see why the Nigerian court would have done otherwise on the basis of the joint presentation before it in circumstances where the parties consented to the order.
W was not aware of the enforcement application, the terms of settlement, and the making of the Nigerian order. She was not, of course, a party to those proceedings but clearly she had a direct interest because of the potential impact on financial remedy proceedings and, specifically, the FMH against which a possession order had been sought. I am confident that it was a conscious decision by H not to inform W; he did not want her to have any opportunity to take steps to protect her own interests.
On 19 April 2019, Linkserve applied under the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933 to register the Nigerian order in England, although I am not sure if the latter statute was in fact applicable. The nature of the process is that it is made without notice.
On 30 April 2019the Nigerian court order was registered by a Master in the Queen’s Bench Division (as it then was).
H’s Form E for the MFPA 1984 application is dated 7 May 2019. In it:
He referred to the August 2009 agreement as a type of mortgage which he described as an “eternal loan” (presumably “external loan”). On any view, the August 2009 agreement did not create a mortgage.
He said that the property was in his name but “Solely owned in trust for Skyline Hotel Ltd”. Nowhere else in the papers is there any assertion, or supporting evidence, that H held the FMH on trust for his company (whether the Nigerian or English company is not made clear).
On 20 May 2019, H executed a charge over the FMH in favour of Linkserve to secure the alleged debt.
On 20 May 2019, W was served by H’s English solicitors with the Nigerian order, and the English Master’s registration order.
On 24 May 2019, Linkserve entered a unilateral notice against the FMH at HM Land Registry in respect of the charge executed by H on 20 May 2019.
On 8 July 2019, Linkserve demanded £400,000 from H and De Skyline (UK) which had been due on 30 June 2019 but which he had not paid.
On 11 July 2019, H replied that he was unable to honour the agreement and “I do not foresee my circumstances getting better now or thereafter. Therefore I am happy for you to commence on enforcement on sale of the property in 49 Sherwood Rd., NW4 1AE so that you can recover your money”.
On 16 August 2019, the family court made an interim maintenance order against H in favour of W in the sum of £1,000pm. That was in addition to £400pm ordered in 2018 by way of interim child maintenance. H has paid child maintenance (albeit, according to W, sporadically), but has not paid a penny of the £1,000pm. W has thereby been deprived of nearly £70,000 which is due from H. Because there are no assets in this country to enforce against (other than the FMH), it has not been possible for her to take remedial action.
On 8 October 2019, Linkserve applied for a charging order against the FMH. W was not informed of the hearing (the usual procedure for a charging order application being that an interim charging order is sought without notice).
An interim charging order was made on 9 October 2019 in the sum of £1.6m, with a further on notice hearing date listed on 18 December 2019. I doubt very much whether on 8 October 2019 the court was informed of the various ongoing proceedings, including W’s financial remedies claim, before the charging order was made; certainly the application for the charging order makes no mention of the wider circumstances.
On 11 November 2019, W (unaware of the charging order) applied to set aside the 2009 loan agreement, under what she described as s37 of the Matrimonial Causes Act 1973. The application should in fact have been brought under s23 of the MFPA 1984.
W was served with the interim charging order on 10 December 2019.
On 11 December 2019, W applied to set aside the interim charging order.
On 18 December 2019, Master Eastman adjourned the application for a final charging order and directed that “No further application for the interim charging order to be made final may be made prior to the resolution of the Defendant Wife’s claim under the MFPA 1984, currently listed for 8-10 June 2020”. That June hearing was subsequently adjourned.
Various case management directions were given in the financial remedies application, including joinder of Linkserve in March 2021.
On 27 May 2022, W applied for an order setting aside the registration of the Nigerian judgment.
On 28 November 2022, the interim charging order was made final by Master Eastman. W’s application to set aside registration of the order was adjourned. The Master stated that W should apply for transfer of the financial proceedings to the High Court so that they could be heard together with any application to enforce the legal charge. It is important to note that no oral evidence was given, and no judgment delivered.
In January 2023, the financial remedy proceedings were transferred to the Central Family Court from the Barnet Family Court.
On 24 January 2023, Linkserve entered a notice at HM Land Registry in respect of the final charging order.
By that stage:
Linkserve had obtained a judgment against De Skyline Ltd and H in Nigeria in March 2019.
Linkserve had obtained registration of the Nigerian order in England in April 2019.
H had executed a charge against the FMH in favour of Linkserve in May 2019.
Linkserve had obtained a final charging order against the FMH in November 2022.
W’s various set aside applications (in respect of the loan, the Nigerian order, the registration of a foreign order and the charging order) had not been adjudicated upon, and had been adjourned to be considered at the same time as any application for enforcement of the charging order.
H had not made an application to enforce the charging order.
No progress had been made on the substantive financial remedy claims.
The decision of HHJ Vincent
The matter was heard by HHJ Vincent sitting as a s9 judge on 11 September 2023, over 3 days. She addressed as a preliminary issue the set aside applications made by W in respect of the loan agreement, the registration order and the charging order. By order dated 14 September 2023, she found that H owed Linkserve £1.6m. She dismissed the set aside applications, and gave directions for the future conduct of the financial remedy proceedings.
The appeal
W appealed against that decision. The appeal was allowed by the Court of Appeal on 16 May 2025. The preliminary issue was remitted to me for rehearing. All other matters, including the Kings Bench Division proceedings (in respect of the registration order and the charging order) and the MFPA 1984 application were formally transferred to be heard by me. The Court of Appeal ordered H and Linkserve to pay the costs of the appeal jointly and severally. W sought £127,000, to be subject to detailed assessment. H and Linkserve were ordered to pay W £50,000 on account of costs by 3 July 2025.
The rehearing was defined by the Court of Appeal as being to determine:
Whether a debt is owed.
The impact on the financial applications.
W’s application to set aside the registration of the Nigerian order and the charging order.
Moylan LJ said at paragraph 66 of the judgment:
“I accept that it is necessarily part of the wife’s case that the Loan Agreement is not genuine but it would seem to me that the real issue is whether the husband was lent any money by his brother’s company. If the judge rehearing this case were to take the same view, the onus would be on the husband and the company to prove that such a debt existed.”
The rehearing
On 30 July 2025, I held a case management hearing. All parties were represented. The main parts of my order were:
A 3 day final hearing was listed on 11, 12 and 15 December to decide the preliminary issue matters identified by the Court of Appeal.
A Pre Trial Review to take place before me on 21 October 2025.
Any applications for further evidence by H or Linkserve to be made by no later than 14 days before the next hearing i.e by 7 October 2025.
I recorded that W intended to apply for a Hadkinson order to prevent H and Linkserve from adducing any further evidence as they were both in breach of the costs order made against them by the Court of Appeal. I ordered that any Hadkinson application must be made by no later than 14 days before the next hearing i.e by 7 October 2025.
W and H to file updated Forms E by 10 September 2025.
In W’s updated Form E she stated that she has a housing need of £1 million. She has no assets and considerable debts, mainly costs. Her income is minimal.
In H’s Form E, he says he has no capital or income. He does not set out his capital needs in Box 4.3 but attaches property particulars in London in the range of £550,000-£750,000 which he describes as “Proposed Suitable Accommodation for the Applicant and the Respondent”.
W on 6 October 2025 made an open offer in the following terms:
The FMH to be sold.
The following to be deducted from the gross sale price:
Costs of sale.
£400,000 to W for her legal fees.
£20,000 for a school fees debt.
The balance (perhaps about £1.5m) be divided 75% to W, 25% H.
Child maintenance of £300pm per child.
Clean break.
H has not made an open counter offer.
At the PTR on 21 October 2025, both H and his brother (on behalf of Linkserve) attended the hearing remotely. They had dispensed with their lawyers and appeared in person. They had been legally represented throughout until that point and I am confident they could have continued with representation had they so wished.
No application to adduce further evidence had been made by either of them by 7 October 2025 in accordance with my order. They both stated that they wished to put in further evidence, although they did not give details. The reason why I had provided for them to make a formal application was precisely to ensure that W, and the court, could see what was being proposed, and I would then be able to adjudicate on admissibility, taking account of relevance, lateness of application and overall fairness to both parties.
In contrast, W had made a Hadkinson application by 7 October 2025 as I had provided for in my order of 30 July 2025. I gave an ex tempore judgment in which I decided to allow the Hadkinson application. At paragraph 1 of my order of 21 October 2025 I provided as follows:
“The application for a Hadkinson Order is granted whereby the Respondents will not be permitted to adduce further evidence and will be restricted to the evidence adduced before HH Judge Vincent sitting as a Judge of the Family Division on the 11th and 12th of September 2023”.
Looking again at that order, I intended to provide: “.. the Respondents will not be permitted to apply to adduce further evidence”. It was an error on my part not to correct the order at the time. The point was that even if H and his brother remedied the contempt by paying the costs, they would not be automatically entitled to rely on further evidence. They would have had to apply to the court and satisfy me that such evidence should be admitted, taking into account its relevance, provenance, lateness and any other relevant matters.
In the event, they have not paid the costs and the Hadkinson order remains in place. That did not stop H applying on and after 3 November 2025 to adduce a further witness statement with additional documentary evidence. I indicated by email that I would hear the application at the outset of the hearing. In the end, I decided to grant relief from sanctions and permit H to admit all the extra evidence. It seemed to me, despite H’s contempt for the Court of Appeal ruling on costs, that I needed to have the best evidence available.
The points of claim
I turn to the points of claim and defence filed by all parties for the first trial.
W’s case
According to W, H told her that the monies for the FMH came from wealth accrued from his hotel business. He made no mention of a loan from Linkserve or his brother. The first she knew of it was H’s Form E in 2019; nor did she see the loan agreement until that year. She denies that any debt is owed by H to Linkserve.
H’s case
H says that he borrowed money from Linkserve to start a business in the UK. He says he tried to get a mortgage in the UK to buy a property, but had difficulty so he used the money from the loan to buy a property. He says W was aware of the loan and the source of funds for the house from the outset.
Linkserve’s case
Linkserve relies upon the agreement and the subsequent Nigerian order. Linkserve asserts that the agreement was a legitimate commercial arrangement.
The parties as witnesses
I provided for the sequence of witnesses to be: H, H’s brother and W. That seemed to me to be a logical order given that the burden of proof to establish the loan lies on H and/or Linkserve.
H was an unsatisfactory witness. He talked across counsel. He was at times combative, at times dismissive. He accused not just W, but also her legal team, of fabricating a case against him. He frequently did not answer the question. He tried to hide behind the corporate entity of his own companies to explain why company documents were not produced for this hearing, despite him being the sole owner.
H’s brother was also, I thought, unsatisfactory. He was not able to explain, for example, why he took no steps to protect his alleged loan, or even find out information about it.
As for W’s evidence, she had accused H of domestic abuse and therefore H was not entitled to ask questions of her directly (although, of course, had he instructed lawyers, as he could have done, they would have been able to conduct cross examination on his behalf). In order to avoid the delay of obtaining a QLR (even were that to be possible) and the risk of adjourning the final hearing of the preliminary issue, I made an order at the PTR for H to send in questions for me to ask of W. That took place without any obvious difficulty and, in addition, H’s brother asked W a number of questions directly. W gave her evidence clearly and, I thought, honestly. She readily accepted that she did not have direct evidence of certain matters, and was measured in her responses.
Analysis
I take the view that the fundamental issue, from which everything else flows (including the Nigerian order, the registration of that order in this country and the making of a charging order against the FMH) is whether H owes Linkserve £1.6m. These are financial remedy proceedings. The identified issue goes to the heart of the computation of assets so that I can in due course make the appropriate distribution order. I do not consider that I need to determine whether the loan agreement was a sham, as originally pleaded by W.
I remind myself that the burden lies on H and/or Linkserve to prove that a debt of £1.6m is owed by H to Linkserve. The standard of proof is the balance of probabilities.
In my judgment there is no such debt. It follows that the sequence of events which I have outlined above is based on a false premise; (i) no monies are or were due, (ii) no judgment should have been entered in Nigeria, (iii) the Nigerian order should not have been registered here and (iv) no charging order should have been made.
I accept W’s evidence that H did not tell her about the alleged loan, or that loan monies were used to buy the FMH. I accept that she was told by H that the monies came from his business wealth. I reject H’s evidence on this. I am satisfied that the first time W was aware of the alleged loan was when H served his Form E, many years later. In this regard, H’s divorce petition to the Nigerian court (originally filed on 16 March 2017 but subsequently amended), says that he purchased the FMH in December 2009, but makes no mention of the loan from Linkserve. In my judgment, H did not tell W about the debt being used to buy the FMH because there was no such debt. It was a contrived explanation by H to fit a case which, on my overarching analysis, was designed throughout to deprive W of a meaningful claim in respect of the FMH, the only asset in this country and therefore the only asset against which W can make any realistic claim.
I find that the monies used to buy the FMH came from H’s own resources, and not from Linkserve. I base this finding on the following:
In the bundle is an undated document headed “Statement of Property Onwed [sic] by Mr Segun Awolowo”. The document is unsigned but is on H’s notepaper and has his address in the corner. It gives a total value for five Nigerian properties (by the looks of it, three being guesthouses/hotels, including one at Lagos Airport, and two being let out to commercial tenants) of Naira 1.255 billion. This would have translated to about £6 million in 2007-2009. W told me, and I accept, that H prepared this document in 2007, gave her a copy, and they both took it the British High Commission when they were seeking visas to come to the UK. The document undoubtedly identifies the correct properties. H told me that he had an interest in these properties which he described as leased rather than owned, although he has produced no documentation to confirm this which would have been the logical thing to do given the obvious significance of the document. W told me, and I accept, that H told her he owned the properties. I reject H’s suggestion that this document was fabricated by W.
W gave convincing evidence about their lifestyle in Nigeria in the period leading up to their move to England. They lived in a luxury apartment at the airport hotel. They also had a rented property opposite the hotel which they used. They were members of a country club. They had four cars. They travelled to London and Dubai for holidays and shopping. She had jewellery, designer bags and high end shoes. Their first child was at a private school. This all seems to me to be consistent with an overall picture of affluence at the time rather than, as H would have it, impecuniosity. Her evidence on this was in direct response to H’s questions (through me) suggesting that the lifestyle was modest.
W was in charge of looking after two guest houses. She was employed by H. She knew the workings of the guest houses, and understood the finances including the takings. She said that each week about 10m Naira (about £40,000 on the then exchange rate) was deposited in cash with the banks. H told her the other properties (one of which was rented to G4) also brought in substantial income. Although H asserted that W had little knowledge of his business affairs, she was employed by him, she seemed well informed about the guest houses, and she was able to identify half a dozen banks used by H’s business.
W told me that when they moved to England in 2009, H said he could easily access over £1m in cash. I accept that evidence.
In the bundle before me is a “Loan Agreement” between De Skyline (Nigeria) and H dated 3 February 2010. It did not involve Linkserve at all. De Skyline (Nigeria) agreed to lend H £800,000. The style and format of this agreement is suspiciously almost identical to the August 2009 agreement between Linkserve and De Skyline (Nigeria), yet the latter was said to have been drawn up by Linkserve’s lawyers. However, the fact that De Skyline (Nigeria), H’s company, was able to advance to him £800,000 in 2010 (apparently so as to buy the properties in Harlington) contradicts H’s case that in August 2009 he was impecunious and had to borrow from Linkserve. To my mind, this document supports W’s case that H was a man of substantial wealth derived from his business activities.
I note that there are also five pages of bank statements from a bank account with Access Private Bank in England in the name of “Deskyline Hotel Ltd, 49 Sherwood Road” covering various periods between July 2014 and August 2015 and showing considerable sums. H told me that the monies were a loan to the company by Access and to be fair (i) the receipt of £1.7m into the account on 6 July 2015 is described on the statement as “MM Borrowing Liquidation”, and (ii) on 5 January 2015, £1.7m was debited and described as “MM Borrowing Initiation”. Even if the monies were borrowed, H told me that they were unsecured, and he was the guarantor. It seems unlikely to me that the bank would have advanced these monies without at least some confidence that the company and/or H would be able to repay them which in turn indicates that the bank had some knowledge of the financial health of the company.
H has not produced any documents from either De Skyline (UK) or De Skyline (Nigeria) to give some sense of their financial status in 2009 or thereafter. I appreciate some time has passed and the UK company is in liquidation but it is striking that not a single document has been provided. When asked about this, H said “You have not asked for it” which was not satisfactory.
The other side of the coin is whether Linkserve was in any position to loan H/De Skyline (Nigeria) £1.6m in 2009. Logically, given that Linkserve did not make any attempt to recover the alleged sum due until 2018, it must have been a company with a considerable asset base, well able to absorb the payment of £1.6m on non commercial terms. Yet neither H nor, more particularly, Linkserve, has produced to me any evidence of the financial position of Linkserve in 2009 or thereafter, which must be readily available through company accounts and its internal books. I therefore see no reason to assume that Linkserve was a successful, asset rich company in 2009 with the financial wherewithal to make a loan with no commercial purpose. There is in the bundle a photograph of the property at the address given on the loan agreement for Linkserve; it looks like a small scruffy, rundown house rather than, as one might expect, the smart offices of a successful business.
Taking all these matters into account in the round, I am satisfied that H had the means to buy the FMH without recourse to his brother, and did so.
I turn to whether there is evidence before the court to discharge the burden on H and Linkserve of establishing that Linkserve provided H with £1.6m. In short, there is no such evidence:
As indicated above, there is nothing to suggest that Linkserve had the financial wherewithal to make such a payment.
H has produced a handwritten document (drawn up for these proceedings) on two pages:
The first purports to schedule receipts into his personal Barclays Bank account to a total of £1,332,550, comprising twenty one bank transfers from Nigeria between 3 April 2009 and 3 December 2009.
The second lists three payments which are said also to have been made by Linkserve and total £267,450:
£80,000 on 14 March 2009
£67,450 on 15 March 2009
£120,000 on 20 March 2009.
Dealing with the second set first (the £267,450), there are no bank statements proving either that these monies left a Linkserve account or that they entered an account of H or De Skyline (Nigeria). They do not appear in the disclosed personal bank account statements of H. There was no primary evidence at all about these receipts. When asked, H could not say where he had got the figures from, beyond saying that he “recalled them” which seemed a thin explanation after so many years. Neither H nor Linkserve produce any other documentation to show either (i) receipt by H (or De Skyline (Nigeria) or (ii) the source of the funds being Linkserve. It is a wholly unsubstantiated claim, yet curiously precise, which begs the question of what evidence, if any, it is based on or whether it is a convenient number, when taken with the £1,332,550, to reach £1.6m.
Turning to the first set (the £1,332,550), H produces statements from his personal English Barclays bank account in 2009. He schedules all the credits which he says amount to £1,332,550 (which they do) and says that this is evidence of receipt of monies from Linkserve (which it is not). There is nothing to suggest any connection with Linkserve. He told me that the monies all came from Nigeria via foreign exchange bureaux and W accepted that was the case; although the names on the entries are not recognisable as bureaux de change it appeared to be common ground that that is how the system operated. This does not, however, prove anything about provenance. There is no evidence to connect the receipts by H with payment by Linkserve.
A witness statement produced by Linkserve’s accounting officer in the Nigerian proceedings in 2018 says that “”sometime in the month of July 2009 [H] approached [Linkserve] with the request that a facility of £1.6m…be granted” and H’s brother in a witness statement in the proceedings in this jurisdiction dated 20 November 2022 also said that Linkserve was approached by H in July 2009. Yet the handwritten schedule produced by H shows ten entries into his bank account between April and June 2009 totalling £699,182, i.e all of which predated the monies even being sought. In my judgment, this glaring inconsistency is most likely explained by H drawing on his own funds rather than borrowing from Linkserve.
It is also, in my judgment, notable that in the proceedings before HHJ Vincent, H’s brother said in oral evidence that “the money loaned was made to De Skyline in Nigeria”. That is clearly inconsistent with a case that the monies were in fact transferred to H personally in the United Kingdom, being credited to his private bank account.
It is surprising that neither H nor Linkserve have been able to produce a single document to demonstrate that the provenance of these transfers was Linkserve. Where are the bank statements of Linkserve to show the corresponding debits? H and his brother told me that the relevant banks have since been liquidated, without any evidence of that fact, but it would be odd for Linkserve not to have kept statements. Where are Linkserve’s bookkeeping records to show transfers of substantial sums of money? Where are the company accounts of Linkserve to show its debtors which would surely have included H and/or De Skyline (Nigeria) if the case of H and Linkserve is correct? H’s brother told me that Linkserve does not keep company records after six years which I thought unlikely and in any event recent accounts would surely confirm the presence of a debt owed, particularly as it has been the subject of legal proceedings. Where are emails or other messages to confirm the source of the monies? Why is there no evidence from, say Linkserve’s company accountant or bookkeeper to confirm what took place? Why would Linkserve not have retained a record of payment of monies by way of loan, so that they would be able to prove the debt and enforce in a court of law?
All of this is particularly odd given that both H and his brother are, and were at the relevant time, experienced businessmen. H’s brother told me that Linkserve is a financial consultancy which regularly makes loans and the monies purportedly loaned to H were not a one off. I find it improbable that a company which had the capacity to make a loan of £1.6m, and was well used to making loans to other persons and entities as part of its core business activities, does not have scrupulous records to confirm not just the existence of a loan agreement, but payment of the money.
Further, some of the documents in this case presented by H and Linkserve are inconsistent and contradictory. This is not of itself fatal to a claim that monies are due but casts wider doubt on the overall reliability of H and his brother’s evidence, and provides context to the requirement for them to satisfy the court of their assertions.
In particular, the 2009 agreement (of which W is deeply suspicious) is in many respects peculiar:
It gives the address for De Skyline (Nigeria) and H as 143 Pembury Avenue, Worcester Park, Surrey whereas H was not living there and had no connection with it, and De Skyline (Nigeria) was a Nigerian company entering into a Nigerian loan agreement. De Skyline (UK) was not incorporated until August 2010 and Pembury Avenue only became the registered address of the UK company on 23 October 2017.
It is signed on behalf of Linkserve by H’s brother and on behalf of De Skyline (Nigeria) by H. It is not signed by or on behalf of H in his personal capacity.
Linkserve Ventures Transnational Ltd. appears on the loan agreement as the lender, but H’s brother produced a document headed “Corporate Affairs Commission” and entitled “Certificate of Incorporation” which states that a company called Linkserves Dynamic Solutions Limited was incorporated on 23 January 2007 and changed its name to Linkserves Ventures Transnational Limited by Special Resolution on 18 August 2009. Accordingly, the name of the company on the loan agreement is in respect of a company which did not hold that name until 18 August 2009, after the agreement.
On 6 March 2018, Linkserve started enforcement proceedings in respect of the loan in Nigeria. In the writ, the date of the loan was given as 6 June 2009. In the statement of claim it refers to a loan dated 16 August 2009. Neither of these dates correspond with the date on the agreement, 6 August 2009.
It is notable, for what was said to be a commercial arrangement, that no interest was payable and that there was no repayment schedule. No security was ever sought. On the face of it, the agreement provided no benefit to Linkserve at all.
The loan agreement provides that the agreement shall be “construed and enforced” in accordance with English law. Yet instead, Linkserve brought uncontested proceedings in Nigeria against H and De Skyline (Nigeria) in March 2018.
Knowing that the agreement is disputed by W as being genuine (her originally pleaded case expressly referred to it as a “sham”), it is, in my judgment, curious that neither H nor Linkserve have produced anything to corroborate the agreement; for example, documents passing between H and his brother, or between the companies, or lawyers’ correspondence.
H and Linkserve submit that the Nigerian order of 27 March 2019 is determinative of the issue. Judgment was entered, and subsequently recognised in England. I reject that submission. It was clearly not opposed; there was agreement between Linkserve and H/De Skyline (Nigeria). There is nothing to suggest that this was a comprehensive hearing at which the circumstances of the 2009 agreement and alleged loan were inquired into. W was not notified of the case, and had no opportunity to intervene and make representations. H/De Skyline (Nigeria) and Linkserve were represented by counsel in the Nigerian court and requested the court to “enter Judgment as agreed by them”. It is unsurprising that the Nigerian court simply acceded to what looked like a straightforward consent order. I, by contrast, have had the opportunity to examine these matters in depth and I have concluded that H and Linkserve have failed to prove (i) that Linkserve loaned H £1.6m and (ii) that H owes Linkserve £1.6m.
The inaction of H’s brother after the loan monies were purportedly transferred is curious. On the evidence, he went to visit H in his home in 2011, yet appears not to have asked whether the property was purchased, and if so how. There is no evidence that he kept track of the loan, what it was being used for, how the hotel business in the UK was progressing, and what security he required. He took no steps to ensure that the loan had been used for its intended purpose of purchasing a hotel, and took no action when no repayments were made between 2009 and 2018. He did not take any steps until H and W were embroiled in divorce proceedings. In my judgment this context is supportive of W’s case, that no monies were loaned by Linkserve, rather than the case of H and Linkserve. It is, in my judgment, improbable that (i) H’s brother did not know that the monies were used to buy a house rather than for business purposes and (ii) H’s brother did not maintain oversight as to the use of the monies. I am confident that when he did eventually seek repayment, it was to assist H in his attempts to defeat W’s claims.
Of course, the various steps taken in Nigeria, and then in England, by H and Linkserve were at the time of divorce proceedings issued in 2017 in Nigeria and England. I do not consider this to have been a coincidence. I am satisfied that H and his brother colluded in the Nigerian proceedings, and thereafter have continued the collusion in the English proceedings, to defeat W’s claim.
Conclusions
My conclusions, in summary are:
H told W that the monies used to buy the FMH were his own. He did not tell her that they had been loaned.
There is no material evidence that Linkserve loaned H £1.6m in 2009. The lack of any documents from Linkserve or H (including bookkeeping records, company accounts, email exchanges etc.) is telling and I remind myself that the burden is on them to show that such a loan was made. The bank statements show that about £1.3m was transferred to H, but at best they appear to show that the monies came from Nigeria. They do not show the source of the monies and there is no link with Linkserve.
On balance, I prefer the evidence of W, and do not believe the evidence of H or his brother who I find have colluded throughout in order to defeat W’s legitimate financial remedy claims. H’s aim throughout, with the collaboration of his brother, has been to thwart W at every step so as to prevent her from securing a fair financial remedies outcome. He, and they, have attempted to denude the FMH of as much equity as possible and force a sale.
I am not persuaded that the judgment of the Nigerian High Court is determinative. It was presented as a consent order with (understandably) no inquiry by the court. H deliberately did not inform W of the loan proceedings in Nigeria despite the obvious impact on the financial remedy proceedings and the potential repossession of the FMH.
W’s case that H was a man of means who was able to fund the purchase of the house from his own resources is, I find, both plausible and correct, for the reasons set out in this judgment. By contrast, there is no evidence that Linkserve was in a position to pay the monies.
I do not find that the original loan agreement was a sham in its true legal sense. That was not really pressed upon me. It is not necessary for me to so find. If there is no debt owing, that is all that is needed for financial remedy proceedings.
Overall, looking at all the evidence in the round, H and Linkserve have not satisfied me that the alleged debt is truly owing. On the contrary, I am satisfied that it is not.
My order
I therefore declare that there is no debt of £1.6m (or any part thereof) due from H to Linkserve.
I will set aside the order for registration made by the Master on 30 April 2019 on the grounds that it was made contrary to public policy (s9(2)(f) of the Administration of Justice Act 1920). Under s9(4)(b) it is the judgment debtor who may apply to set aside. W is not the judgment debtor. She is, however, a party to the civil proceedings and in my judgment is entitled to apply to set the order aside under CPR 2010 rule 3.1(7). It seems to me that in circumstances where I have concluded there is no debt owing, to allow the Nigerian judgment (which was based on a false presentation by H and Linkserve that a debt was due) to be registered and enforced would be manifestly contrary to public policy.
The charge document made by H in favour of Linkserve on 20 May 2019 shall be set aside under s23(2)(b) of the MFPA 1984 as a reviewable disposition. In accordance with s23 of the MFPA 1984, I am satisfied that H executed the charge with the intention of defeating the wife’s claim for financial relief, and based on a non-existent debt. Indeed, the entire course of events since the first divorce petition in Nigeria has been manipulated by H, with his brother’s complicity, to attempt to deprive W of any financial award. I am satisfied that the requirements of s23 are made out, and the charge document should be set aside.
The charging order made by the Master on 28 November 2022 shall be set aside.
Any notices/restrictions/charges at HM Land Registry shall be discharged save for (i) the Family Law Act 1996 notice of home rights entered by W on 11 November 2015 and (ii) the notice in favour of the English private school which has an unpaid debt of about £30,000 after H stopped paying school fees.
H shall be injuncted from selling, charging or otherwise disposing of his interest in the FMH until conclusion of the financial remedy proceedings.
I will list the financial remedies application for final hearing. I will direct:
Linkserve to be discharged from the proceedings.
5 page narrative statements from each of W and H no later than 28 days before the final hearing, to address their updated financial circumstances, their needs and any other relevant matters.
Open offers from each party by 30 January 2026.
Anonymisation
I will not anonymise any part of this judgment (although as set out in the rubric the identity of the parties’ children must be preserved), because:
The details of the case are already in the public domain as a result of the proceedings before the Court of Appeal, and its subsequent detailed judgment.
Much of the case before me concerned applications to set aside the registration order and the charging order, which took place in the King’s Bench Division. It would be illogical now to anonymise that which was previously publicly available.