Kamal Egbuna v IJ Investments Limited

This is an appeal against an order made by HHJ Murch (the Judge) at Watford County Court on 26 June 2024 after a two-day trial. Permission to appeal was granted by McGowan J on 2 April 2025.

The background facts are that there is a property at 53 Penscroft Gardens, Borehamwood (the Property) in which the Defendant/Appellant children. In the past, for many years, the sole legal registered owner was Mr Chidi Daniels. The Appellant had married Mr Daniels in 2005. I am not clear wholly where that marriage took place, but the inference is it was in Nigeria. She came to the UK on a spousal visa. They had three children, and Mr Daniels bought the property in 2005, so they used it as the matrimonial home. They began splitting up and/or separating in or about 2017. Usually for a couple living in the UK, or for children and a wife in the UK, the English courts would be seized of the divorce and would determine the financial consequences thereof. So the financial matters, sometimes called ancillary relief, would be dealt with by the English courts. The assets would be split between the adults with a view to housing, feeding and educating the children. Oddly, the evidence that came out before the Judge was that none of this had occurred. Instead, Mr Daniels had obtained a divorce in Nigeria and no evidence was put before the Judge about any ancillary relief or financial orders made there. I was told today by the Appellant she did not take part in the divorce proceedings in Nigeria and did not bring any ancillary relief proceedings here.

That is surprising because divorce is not unknown in this country. Ancillary relief is an inherent part of it. It is reported in the newspapers regularly and online. The power of the Court to split up the assets and to determine maintenance and capital shares and allocation in the best interests of the children is clear. The Court will also seek to ensure that the children are cared for and educated with a roof over their heads. All of this is common knowledge. The Appellant could provide no explanation for why she did not bring such proceedings.

Some years after the divorce, Mr Daniels transferred or sold the Property to a company called IJI Limited (the Company). The Judge found a remarkable set of facts relating to the Company. It was set up and owned by two solicitors, who were partners in a firm called Solomon Shepherd, a practice in North London. The Judge found that it was a property development company, but it never developed any other property, only this one and even this one had not been “developed”. The matrimonial home was purchased by the Company on 8 November 2021 at arm's length, because the two solicitors did know Mr Daniels. But, despite being solicitors, before the purchase they did not go through all of the normal, usual, sensible investigatory steps. So, they did not even go inside it and they did not have a survey carried out. I consider these facts to be quite remarkable.

The Appellant used the rather colourful phrase, "it was fishy", and the way I read the judgment of HHJ Murch, it may well be that he thought exactly the same. The Appellant's case before the Judge was that the transaction was fishy. It was a ruse whereby Mr Daniels sold the Property to those he knew, namely the two solicitors, as a way of getting the Appellant and his children out, of their home.

HHJ Murch found quite a lot of evidence to support the fishy transaction assertion, which included a £1,000 payment in Mr Daniels's bank statements made back in 2016 to the solicitors' firm and evidence given by the Appellant about a friend of hers who knew the female partner who was a director of the Company. No doubt HHJ Murch did his best to look at the evidence favourably for the Appellant where he could. That certainly comes across in the judgment.

The Property was sold with vacant possession. That fact is not in dispute. About a month after the sale, the purchasers, through one of the two solicitor directors, turned up at the Property and allegedly was surprised to find that the Appellant was there living in it. You would expect, in the normal course, that such a purchaser, who had just bought at arms’ length with vacant possession, would go back to the seller and say: "You're in breach of the sale contract. You haven't given me vacant possession. Now I have got to enter into protracted litigation with a mother and her children. She may be on legal aid. This may cost me a lot of money. Even if I win, you will have to compensate me." It is another very fishy aspect of this case that they did not do that, quite the opposite. They did not sue Mr Daniels for breach of the contract for failing to give vacant possession, they sought possession against the Appellant and her children. As the Appellant so rightly put it, not only did they do that, but Mr Daniels helped them. He provided a witness statement and his bank statements. The very person who they could have been suing.

The issue before the Judge was whether the Appellant had a beneficial interest in the matrimonial home, which would, by virtue of the relevant statutory provisions, become an "overriding interest", which would have prevented the purchaser from throwing her out and gaining possession. To prove that, the Appellant had to provide evidence that she had made, under a common intention between her and her then husband, various payments from the mortgage to the purchase price, or payment towards the Property’s maintenance or otherwise (working as a mother to care for the children), such that she gained a beneficial property interest through their common intention for her to have that.

The action was issued in July 2022 by the Company, to obtain possession against the Appellant. Amended Particulars of Claim were required, because initially it was issued as an interim possession action and the relevant criteria for interim possession did not exist, so that collapsed and it morphed into a possession action. In the Amended Particulars of Claim dated 27 July 2022 the Company sought possession of the freehold (with registered number HD328821) which they had purchased from Mr Daniels on 8 November 2021 for £357,500 with vacant possession. It set out various facts about notice given to the Appellant in September 2021 about the impending purchase.

Stopping there, as I shall come back to in a minute, there is a trail of contradictory behaviour by the Appellant in relation to seeking to show that she has a beneficial interest in the Property. The letter dated September 2021, which was in evidence before HHJ Murch, was part of that trail. Her response to reading the contents which informed that the Property was being sold, was to call the solicitors rather than to issue court proceedings or to register her interest in the Property. In any event, that letter was pleaded out in the Amended Particulars of Claim. The Company alleged that the Defendant/Appellant was a trespasser, pleaded in anticipation to various potential defences and suggested that the Claimant was surprised when the Company found the Defendant was living there a month or so after they had bought the Property.

In her Amended Defence, the Defendant/Appellant pleaded that the Claim Form should be struck out because it was unsealed. The Claimant had failed to file a proper N5 or N130 or to serve it. That did not become an issue before the Judge in the end. The Defendant denied the claim for possession and denied she was a trespasser. She asserted she had occupied the Property since 2005 with her three children. She accepted that Mr Daniels was the legal owner and the mortgage was in his name, but she asserted that she had made frequent contributions to the maintenance and repairs of the Property when she was called upon to do so. When Mr Daniels was out of work, she asserted that she had paid the mortgage completely herself, but when Mr Daniels left in 2015 and the marriage was dissolved in 2019, she was not a trespasser. She asserted she did not know that Mr Daniels had sold the Property until a director of the purchasing company visited her. Stopping there for a minute, let us go back to the pleaded case, which is she was sent a letter in September 2021 in the name of her husband, which arrived at her Property and she made phone calls as a result of that. That is a contradiction of the pleading. The Defendant asserted she is a clinical psychologist. That is a professional qualification. It would be a fraud to assert she is a clinical psychologist if she is not. She asserted she had an equitable interest in the Property. She contributed to the purchase price. Let me just underline that, because HHJ Murch found that, in the witness box, the Defendant denied contributing to the purchase price. That is another contradiction. She asserted she was a tenant in common of her husband and she asserted she had an overriding interest.

HHJ Murch heard live evidence from Ms Oke, who I believe is in court and Mr Agyeman. They are the solicitors and directors of IJI, the purchasing company. Mr Daniels had provided a witness statement for them to rely on. As I mentioned before, that is curious because they should have been suing him for failing to give vacant possession but instead they were walking hand in hand in the litigation. Mr Daniels failed to attend and did not give evidence. The Claimant intended to call Julia Corker, the solicitor acting for Mr Daniels in the sale, but she was not available and was in Court elsewhere. The Judge noted he did not hear from these two important witnesses. The Judge also heard evidence from the Defendant and her two children, aged 17 and 18. The Judge noted it was not really in dispute that the Defendant and the children occupied the Property all the time. The issue was whether the Defendant had a beneficial interest. The Judge went through the evidence, and as I read his summary of the evidence of Mr Agyeman, it is redolent with an element of concern, verging on disbelief, that Mr Agyeman and Ms Oke set up a company to develop property and only bought this one Property, without ever properly inspecting or surveying it.

The Judge accepted to an extent that the solicitors’ firm and hence the Company, had a prior relationship with Mr Daniels proven by the £1,000 payment in 2017, and called it "remarkable" that the solicitors asserted that they had no knowledge of that payment. The Judge set out, at length, matters upon which Mr Agyeman was cross-examined, relating to his alleged past dealings with Mr Daniels, including relating to a passport and change of name. The Judge was clearly suspicious about Mr Agyeman's assertion that he had never met Mr Daniels before the purchase.

The Judge found as a fact that IJI did not inspect the Property before the purchase, other than by Ms Oke driving by twice but not even going inside. Ms Oke gave evidence. She denied a previous relationship with Mr Daniels. By that I do not mean anything more than either a social or business relationship. She could not explain the £1,000 payment to her firm in 2017. She denied acting for Mr Daniels in relation to a Camden business transaction, but she accepted that she knew her ex-sister-in-law. She asserted that she was unaware that her ex-sister-in-law was Mr Daniels' friend. She said Mr Osage, who was interested in buying the matrimonial home, could not afford to buy it and that is how she became aware of the matrimonial home being for sale. She was aware that it was subject to potential possession proceedings for failing to pay the mortgage.

As for the Defendant's evidence, the Judge summarised that she told him she was a psychologist, earning £1800 per month, rising to £2,500 per month. She had four to five bank accounts. He commented, poignantly, that she had provided no documentary evidence in support of her qualifications, employment, self-employment or earnings. No bank statements, no records of earnings, no records of employment and no records of any payments to her husband, as alleged in the pleading. That was the heart of her case at trial. She had been advised by solicitors and a barrister. I should say, all of the legal submissions of the barrister were accepted by the Judge and were not in dispute. It seems to me likely that HHJ Murch was well aware that the Defendant would have been advised to produce documentary evidence of her financial contributions to the Property in support of her claim that she had made them, but she did not. It is not for this Appellant court to enquire into the reasons why she did not. She did not, and that made the job of HHJ Murch much more difficult if he was trying to lean towards a mother and children being thrown out of a matrimonial home in property proceedings. You can hand a Judge a gun to fire at the target, but if you do not give the Judge the bullets the Judge has nothing to fire.

In her evidence to the Judge, the Defendant denied she had contributed to the purchase price, despite having enfranchised her lawyers to plead that she had contributed to the purchase price. HHJ Murch noted this defect in her case. The Defendant accepted that she had received, at her home, a letter from Corker Solicitors, in September 2021 -- addressed to her husband. She had opened it. As a result she knew that the Property was being sold. She called the solicitors. She also received letters from the mortgage company about possession proceedings in 2021.

I realise that 2021 was a very difficult time for the whole country and indeed most of the world due to Covid in relation to work, jobs and income, but I was told in the appeal today that the Appellant has not worked since 2019 and lives on benefits. I do not know how that evidence fits with her assertion to the Judge that she is a trained clinical psychologist who earned between £1800 and £2,500 per month. Many experts worked online during Covid, particularly those in a field of expertise which is in demand in a huge range of work: personal injury, criminal, family and medical treatment. What was she doing with her qualifications and her track record of earning £1800 to £2,500 per calendar month, when the children were at school? Why did the Defendant not produce any evidence to HHJ Murch? Why did she not repair the Property with that income? Why was she on benefits in 2019 and why is she still on benefits now?

In the event, the Property was sold. Her evidence continued, as summarised by HHJ Murch thus: when it was put to her that Mr Daniels paid the mortgage and she did not, she said, "No comment." HHJ Murch did not find that very persuasive. She was taken to the bank statements, and it was clear that the Defendant had to accept that her husband of the time had been paying the mortgage for the periods shown in the bank statements. HHJ Murch clearly found that troubling for credibility purposes.

As for the 2021 texts, HHJ Murch set them out in extenso, understood them and came to the conclusion that he could not infer from those texts dated 2021 from Mr Daniels to the Defendant, that there was a shared common intention for her to gain a beneficial interest. They were given in the context, as the Judge understood them, of the financial negotiations consequent upon divorce. As I shall come to at the end of this judgment when I come to decide whether that decision was wrong, I consider that was probably at the root of the case put forward by the Defendant, although it was not the only part of it.

The law was set out in the judgment. It is not in dispute. I will not summarise it. The findings were that there was a relatively high bar for proof of a common intention and the text messages did not evidence a past common intention. He expressly used those words "the Defendant is an innocent victim", he said. He would have found in favour of the Defendant on all the other parts of the test: the lack of a reasonably careful inspection of the Property and the like. The only real issue in the case was whether the Defendant made a financial or other contributions sufficient to give rise to an inference of shared common intention for a beneficial share of the Property. Overall, the Judge could not infer a common intention. He did not make that finding with any enthusiasm.

As for collusion between Mr Daniels, the solicitors firm and the Company set up just to buy this Property, he said there was poor evidence from Mr Agyeman. There had been previous dealings between Mr Daniels and the firm, but he could not find fraud because there was not enough evidence to make that finding. As the Appellant put it, beautifully, in her carefully prepared submissions, it was fishy and the Judge found it was fishy, but there was not enough evidence to take it further. The real problem is that there was not enough evidence of financial contributions.

Every such appeal is a review of the decision of the Judge below under Civil Procedure Rules, r.52.2.1. To overturn a decision I would have to decide that the Judge's decision was wrong or unjust due to a serious procedural or other irregularity. As to findings of fact or credibility, I take into account the decisions in Henderson v Foxworth [2014] UKSC 41, per Lord Reed at [67] and Grizzley Business v Stena Drilling [2017] EWCA Civ. 94, per Longmore LJ at [39] to [40] and Deutsche Bank AG v Sebastian Holdings [2023] EWCA Civ. 191, by Males LJ at [48] to [55], all to the effect that any challenges to findings of fact in the court below have to pass a high threshold test. The Appellant needs to show that the Judge was wrong in the sense that there was no sufficient evidence upon which the decision could have been reached, or that no reasonable Judge could have reached that decision, or that the Judge took into account an irrelevant matter or failed to take into account a matter which was material and relevant.

There are deferential principles to be applied in these appeals. Where the trial Judge has heard and seen evidence being given live over the course of a trial, he is better placed to assess the evidence and the credibility than this appellate court is, having only the transcript and the documents. Secondly, there is a generous ambit for disagreement allowed on such findings. The threshold for appeals against findings of fact was summarised by Lewison LJ in Volpi v Volpi [2022] EWCA Civ 464 at [2] to [4], [52] and [54]:

It is alleged in a single ground of appeal that the Judge was wrong to find that the Defendant did not have a beneficial interest in the Property. The conclusion was wrong as a result of, firstly, the Defendant's evidence; secondly, the text messages with Mr Daniels; thirdly, Mr Daniels was not called, therefore no weight should have been given to his evidence and fourthly, that the court should have inferred the intention of Mr Daniels to grant a beneficial interest to the Defendant.

The odd thing about this is the fishiness of IJI only buying one Property and not developing it. IJI carried out no survey. IJI carried out no inspection. IJI effectively ignored the occupants of the Property and entered a contract whereby they bought something with vacant possession without checking. IJI allege they were surprised to find occupants. Then IJI did not sue Mr Daniels but instead IJI brought potentially expensive (they might not recover the costs) possession proceedings against the Defendant, and IJI walked hand in hand with and relied on documents provided by the very seller they could have been suing, Mr Daniels.

That conduct looks like a stitch-up of the Appellant by her ex-husband. However, the Defendant still needed to prove a beneficial ownership in the Property, because these were not ancillary relief proceedings, where she would not have needed to prove such. The Judge found that the evidence was insufficient, and I do not consider that the Judge took into account something he should not have, or failed to take into account something that he should have, or made a decision that is irrational or that no reasonable Judge could have made.

At the root of this is the fact that, for a reason wholly unknown to the Judge, or to me, the Appellant did not bring divorce ancillary relief proceedings here or in Nigeria. Instead she now seeks to rely on good factors that would have been taken into account in divorce finance, and transpose them into property law. The latter does not take notice of those factors because there are different factors in play. The main different factor is the need to prove a shared common intention. Nothing was in writing, so it had to be evidenced by actions, and the best the Defendant had to offer was a text after the divorce, containing negotiations about the share of assets, which did not really go to property law. That is why the defence failed.

Like the Judge, I am sorry that the Defendant’s case failed. Like the Judge, I do not want to see a mother and children thrown out on the street, but the power I have on appeal is firmly structured, and I have to follow it. I should say that, I do not find there has been any injustice in the procedure below, so the second ground for such appeals is not made out.

So, I regret to say that I am going to dismiss this appeal.

I am asked to award costs to the Respondent, who has successfully defended this appeal. Usually, I would do so. However, firstly, the Respondent’s solicitors do not seek their costs; secondly, they did not put in a summary costs schedule, which is required on appeals and hearings that last less than a day. I will not go into the Civil Procedure Rules that set that out. It is required to be served 24 hours before. That is accepted by counsel.

I should say that Mr Deeljur's skeleton and submissions and the way he has structured his submissions was professional, impressive and of course persuasive, but that is not the test for the awards of costs. I do not think it is appropriate for a litigant in person, who is as I understand it on benefits, to not have a costs schedule sent to them. I will not allow any costs order to be made against the Appellant in this appeal, knowing that the Respondent's counsel will be paid by the Respondent's solicitors, because that is the requirement.