Arogundade v Arogundade [2005] EWHC 1766 (Ch)

Case No HC04C00249[2005] EWHC 1766 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London WC2A 2LLDate 6 July 2005
Before
Mr Jonathan Gaunt QC
Between
MUINAT TITILAYO AROGUNDADEClaimantASSAN AROGUNDADEDefendant
Rachel Gillman (instructed by Neilson & Co of 98 Seymour Place, London WIH 1ND) appeared for claimantAdedamola Aderemi (instructed by Vincent Doherty of 1 Park Road, London NWI 6XN) appeared for defendant
JUDGMENT(As Approved by the Court)
I direct that pursuant to C.P.R. Part 39 P.D.6 that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.Jonathan Gaunt QCThe proceedings
[1]With effect from 11 May 1994 the defendant, Mr Assan Arogundade, has been registered at HM Land Registry as the proprietor of a leasehold flat known as No 5, Grove Hall Court, Hall Road, St John’s Wood, under Title No NGL578468. On 3 March 2003, the claimant, Mrs Muinat Arogundade, caused a caution to be registered against that title on the grounds that she had contributed about £120,000 towards the purchase price of the flat, namely £193,000, and accordingly had a substantial equitable interest to protect.[2]In September 2003 the defendant applied to cancel the caution under rule 218 of the Land Registration Rules 1925. The claimant was notified of the application and given an opportunity to object. Objection was duly made by solicitors on her behalf. No progress resulting from further correspondence, on 11 November 2003 the solicitor to HM Land Registry issued a direction that the claimant issue proceedings in the Chancery Division to determine whether the caution should be cancelled or continue to have effect.[3]Accordingly on 28 January 2004 the claimant issued the present proceedings for an order that the caution should not be cancelled but should continue to have effect. The relief sought was supplemented by amendment on the first day of the trial to seek a declaration that the defendant holds the property on trust for the claimant and himself in such shares as the court shall determine; an order that the claimant be appointed trustee jointly with the defendant and the property vested jointly in both of them; an order for sale and distribution of the proceeds and all necessary further directions. The defendant’s counsel consented to that amendment on the footing that he would be at liberty to apply to adduce further evidence if need be on the ancillary questions, in particular, the order for sale, if the main issue were decided in favour of the claimant, I gave the claimant permission to amend on that basis.

The background to the registration of the caution

[4]The catalyst for the claimant’s application to register a caution appears to have been the institution in January 2003 of proceedings in the Customary Court of Oyo State in Nigeria for the dissolution of Mr and Mrs Arogundade’s marriage. The claimant, upon receipt of the summons dated 20 January, gave notice objecting to the jurisdiction of the Customary Court on the ground that her marriage to the defendant had been conducted pursuant to the Marriage Act and could therefore only be dissolved by the State High Court and not in any of the Customary Courts. On 1 April 2003 her solicitors wrote to the President of the Customary Court reasserting this point, furnishing a copy of the marriage certificate and asking that the matter be struck out as an abuse of process.[5]On 2 May 2003 the Customary Court sat to hear the matter in the claimant’s absence. The court had apparently made its own enquiries of the Registrar of Marriages and had received a letter from the current Registrar, a Mr GN Ayeni, to the effect that the signature on the marriage certificate was not his and that he had only become registrar in 1994, whereas the marriage had taken place in 1977. The Customary Court regarded this letter as evidence that the marriage certificate was a fake and accepted the sworn evidence of the defendant that he had married his wife on 23 April 1977 in accordance with native law and custom and not pursuant to the Marriage Act. The Court held accordingly that it had jurisdiction, found that the marriage had irretrievably broken down and decreed the dissolution of the marriage.[6]Mrs Arogundade does not accept the validly of that judgment of the Customary Court. On 30 June 2004 she commenced proceedings in the Oyo State High Court for a declaration that the Customary Court had no jurisdiction, that its judgment was a nullity and that her marriage was still subsisting. She claims to have married the defendant under Islamic law in 1975 and then under the statute in 1977, he having divorced his two previous wives by then, He claims still to be married to his first and second wives but not to the claimant. Mr Arogundade told me that a wife married and divorced under Islamic law is not entitled to continued support from her husband, albeit that he must provide for the children, whereas I was given to understand that ancillary relief is available where a statutory marriage is dissolved by the court. Those facts almost certainly account for the dispute over the parties’ matrimonial status.[7]On 14 June 2004 this case came before Master Moncaster for directions, By that date the initial Witness statements of the parties had been exchanged and it was apparent that the parties were at loggerheads about their marital status, albeit that that issue was irrelevant to the question who paid what towards the purchase price of No 5 Grove Hall Court in 1994. Accordingly, the master ordered, in an attempt to limit the scope of the trial:
“That no expert evidence being necessary, no party has permission to call or rely on expert evidence, the issues as to the Nigerian marriage not to be determined in these proceedings.”
[8]Notwithstanding that direction, attempts were made during the trial by both sides to rely on the other’s alleged dishonesty over the matter of the marriage as going to credit. Indeed documents were included in the trial bundle which purported to show that the defendant had sworn an affidavit to the effect that he had been married under statute when applying for a US visa in 1997. 1 discouraged those attempts and refused to allow further evidence on the matter to be given in view of:(i) the master’s order;(ii) the fact that the issue was strictly irrelevant;(iii) the absence of evidence as to document authenticity and Nigerian matrimonial law which would be necessary for the proper resolution of the marriage issue; and(iv) the fact that the issue ought properly to be determined in the Nigerian proceedings.[9]The nature of this dispute did, however, alert me to the fact that(a) one or possibly both of the parties was prepared to lie unscrupulously in pursuit of his or her interests and(b) there was considerable, unresolved bitterness between the parties following the collapse of their marriage, especially over matters of property.[10]Another fact which may not be unconnected with the genesis of this claim is that in recent years Mrs Arogundade’s business has run into trouble. Some time after her marriage, she started a business importing and distributing children’s products. On 30 August 1985 she incorporated a company called Rahaka Childrens’ Stores Nigeria Limited. She and her four eldest children are the sole shareholders. The company had two shops and had arrangements with Boots plc, Thermos Limited and Cannon Limited for the distribution of their products in Nigeria. She told me that the annual turnover of the company had been of the order of $300,000 per annum. That was borne out by accounts for 2001 which I was shown, but the same accounts showed that turnover collapsed in 2002. This seems to have been because, according to the auditors, 17 Docemo Street, “a strategic sales location and warehouse” had been “sealed” since the last quarter of 2001 as the result of a court case connected with an outstanding loan of over N7 million from the bank. As a result, Mrs Arogundade has had some difficulty putting her solicitors in funds to conduct this litigation.

The issue

[11]The issue in this litigation is very simple and very stark. The claimant says that she found the flat, No 5 Grove Hall Court, after looking at other properties and that she contributed over £120,000 towards its purchase price. The defendant says that he found the flat after looking at other properties without his wife, decided to buy it without consulting her or discussing it with her at all, made all the arrangements for its purchase and funded the purchase himself. The claimant, he said:
“did not contribute £120,000 or any sum at all whether directly or indirectly to the purchase of my interest in the property.”
[12]One or other or possibly both of the parties were not telling the truth. The question is which. It is agreed that if Mrs Arogundade contributed towards the purchase of the flat, then the defendant would hold the flat on a resulting trust for the two of them, their beneficial interests being in proportion to their respective contributions: see Bull v Bull [1955] 1 QB 234 at page 237 per Lord Denning and Lloyds Bank v Rosset [1991] 1 AC 107 at page 133A per Lord Bridge.

Evaluation of the evidence

[13]I remind myself, before turning to the evidence, of three things. The first is that both parties are Nigerian and, although they both speak English well, it is not their first language. Each was at times quite difficult to understand, especially when animated. It is not impossible that their solicitors had the same difficulty when taking instructions and that misunderstandings could have arisen. Secondly, I am not familiar with Nigerian culture, religion, habits, mannerisms or business practices and must be particularly careful not to assess the evidence according to inapplicable notions of demeanour or behaviour. Thirdly, the events in question took place in 1993 and 1994, over 11 years ago. It is only to be expected that memories will be vague and fallible over questions of detail and chronology; it therefore does not follow from that fact that where a witness can be shown to have been mistaken or muddled as to dates or the order of events that he or she was being dishonest.

The known facts

[14]Before reviewing the written and oral evidence of the witnesses it is important to establish what facts concerning the purchase of the flat(a) are common ground and(b) can be established firmly from the documents, Those facts will then serve as a framework against which to assess the evidence of the witnesses.[15]At the time of the events in question Mr Arogundade was the managing director of TIB International Bank plc, Nigeria. He had held that post since 1989. His basic salary was equivalent to about US$1,000 a month but there were a number of “perks” – a cheap housing loan, the payment of his household expenses, allowances for travel and a performance bonus, the level of which I was not told. He also had various business interests on the side, of which more later.[16]Mrs Arogundade was the proprietor of Rahaka Childrens’ Stores, as I have said. It appears to have been a thriving business. The company had a bank account with the Lagos branch of Trade Bank plc. Copies of its bank statements from January 1993 to April 1996 were disclosed. These showed, as one would expect with this kind of business, daily deposits and less frequent withdrawals and cheque payments. The account was almost always substantially in credit. By April 1993 the credit balance had risen to over N2 million and it remained at this level at the beginning of June. It was then depleted from time to time by the withdrawals said by the claimant to have been contributions towards the purchase of the London flat but by the end of August 1994 had recovered to the N2 million level. (N2 million at the conversion rate available in the unofficial market in 93/94 of N54 to the pound was worth about £37,000.)[17]The physical movements of the parties can be deduced from the stamps in their passports. (I base the following account upon two very useful tables produced by counsel for the defendant, which were accepted by the claimant’s counsel as being accurate.) In 1993 the claimant visited the UK for one day on 11 February and for five days on 5 July. She also visited briefly on 19 August and 16 September, probably en route elsewhere. She did not enter the UK again during 1993. On 31 January 1994, however, she entered the UK via Heathrow and did not return to Nigeria until 6 February. This visit is significant since it fell shortly before an offer was made and contracts were exchanged for the purchase of the flat. She visited the UK again on 2 March and 12 March, when she appears to have stayed until 27 March. On 3 June she landed at Heathrow, appears to have visited Switzerland for one day on 7 June, returned to England on 8 June and flew back to Nigeria, arriving on 15 June.[18]As for the defendant, he left Nigeria on 18 June 1993 and passed through Gatwick on his way to the USA, where he arrived on 23 June. He returned to Heathrow on 28 June and to Nigeria on 30 June. These movements may be relevant to the claimant’s evidence that she made cash withdrawals from her company account in order to make payments to her husband towards the purchase of the London property during this period. In September 1993 the defendant landed at Gatwick on 24 September and in the USA on 26 September. In October he entered the UK at Heathrow on 5 October. In November he landed at Gatwick on 12 November and went on to Switzerland on 14 November. On 19 November he landed at Heathrow and went on to the USA on 21 November and returned to Heathrow on 25 November.[19]More significant were his movements in January 1994. He entered the UK at Heathrow on 9 January. It is during this visit that he says he was shown the fiat at 5 Grove Hall Court by Mr Conteh and decided to buy it. He returned again on 23 January, arriving back in Nigeria on 27 January. (One notes that on 30 January his wife got on a plane to London for a five-day visit.)[20]The defendant next visited England on 2 March, probably staying until 18 March. (His wife arrived at the same airport on the same date and stayed for periods which overlapped his stay; it seems likely that they travelled and stayed together.) This mutual visit fell in the period between exchange of contracts and completion of the purchase of the flat.[21]In 1994 the defendant entered the UK on 13 April and arrived back in Nigeria on 17 April. It was during this visit that funds for the purchase were finally assembled for transmission to solicitors for completion on 19 April. The defendant visited England again on 28 May, 3 June (as did his wife), probably staying until 12 June, 25–30 August, 3–5 September and 2–4 October.[22]The undisputed facts about the purchase are as follows. The vendor was a Mr Serlui and the selling agents were Hollingdale Kane. On 7 February 1994 they wrote to Mr L Boreland of Hamways, Solicitors, saying that they understood that firm had been instructed by Mr Arogundade and enclosing a Memorandum of Sale setting out the terms of the transaction that had been agreed. The memorandum showed the price agreed as £193,000 (which was the asking price) and that the sale included carpets and kitchen appliances. Hamways had been introduced to Mr Arogundade by Mr Conteh, who in turn had been introduced to Mr Arogundade by Mr Sodiende.[23]It is appropriate at this point to say something about Mr Sodiende. He and Mr Arogundade had known each other since 1991 or 1992. Mr Sodiende had a flat in Clive Court which Mr Arogundade had admired during a visit in 1993, on which occasion he expressed a wish to have a flat in London too. Mr Sodiende had offered to help. He was in the shipping business – he had a company called West Coast Shipping Lines Ltd – and he did business in Nigeria, for which he needed local currency. He agreed that, if he was paid Naira in Nigeria, he would make sterling of an equivalent value available in London for the purchase of the flat. It is common ground that he was paid substantial sums in Naira in Nigeria, how much exactly is unclear but certainly over US$100,000 worth. What is in issue is whether all the money came from the defendant, as he claims, or the lion’s share from the claimant, as she claims.[24]On 16 February Hamways wrote to the vendor’s solicitors confirming their instructions from Mr Arogundade. (It is common ground that Mrs Arogundade had no dealings with Hamways.) It appears from the letter that it was known that there were other interested purchasers and there was a contract race. Hamways confirmed that they were holding a banker’s draft for £10,000 for the 5% deposit. There was no evidence at the trial as to where these funds came from, but it is likely that the draft was provided by Mr Sodiende against the monies he had received in Nigeria.[25]On 17 February Mr Sodiende wrote a letter to Hamways confirming his authority to act as Mr Arogundade’s agent and his instructions to arrange for an immediate exchange of contracts, notwithstanding that Mr Arogundade had not yet obtained an offer of a mortgage. It is likely that this letter was drafted by Hamways to record the advice that they had given about the dangers of this course and to cover their backs. The letter authorised Hamways to exchange on 18th provided their perusal of the lease and replies to enquiries did not reveal anything catastrophic. It is clear that matters proceeded very fast between offer and contract.[26]On 18 February 1994 contracts were exchanged. The contract named Mr Arogundade as the purchaser and specified a completion date of 15 April. A curious feature of this case is that, although in the event it turned out that Mr Arogundade had sufficient funds available to buy the property without a mortgage, at the outset he did apply to the Woolwich Building Society for a loan of £96,000. His evidence was that he was encouraged to apply for a mortgage by Mr Conteh. Mr Conteh told me that at that time he was selling life insurance and that he sold Mr Arogundade a life policy in connection with the proposed mortgage but that Mr Arogundade stopped the policy when he decided not to take up the mortgage offer. This is confirmed by an entry dated 28 January 1994 in Mr Arogundade’s statement of his current account No 60122157 at Barclays Bank, which shows a direct debit to Laurentian Life for £289.64. Laurentian Life was the company for which Mr Conteh was working. It is likely that the application for the mortgage was made at about that time during Mr Arogundade’s second visit to England in January 1994.[27]On 2 March 1994 the Woolwich Building Society sent Mr Arogundade an offer of a loan. They sent it to 61A Wilton Road, Muswell Hill, London N10 which appears to have been the address given on the application form as Mr Arogundade’s present address. It was not his address; he had never lived or stayed there and told me that he knew nothing about it; it had been inserted on the application form by Mr Conteh. It was suggested to Mr Arogundade in cross-examination that the use of this London address on the mortgage application form was fraudulent.[28]It seems that the Muswell Hill address was used as a correspondence address. Hamways wrote to him at that address on 10, 16 and 24 March and it appears from a letter of 30 March 1994 from Mr Arogundade to Mr Conteh that the last of those letters was forwarded to Mr Arogundade in Lagos by Mr Conteh, In his letter of 30 March to Mr Conteh Mr Arogundade said that he had previously raised objections to the use of the Muswell Hill address and asked that all correspondence should be addressed to 507 Clive Court, the address of Mr Sodiende. In the same letter he told Mr Conteh that he did not intend to take up the mortgage offer. In a letter of 5 April to Hamways Mr Conteh said that Mr Arogundade “has moved from 61A Wilton Road, Muswell Road”. What was going on is obscure but I am not prepared to find on this evidence that Mr Arogundade was knowingly attempting to mislead the building society.[29]The other curious thing about this mortgage application is that at all material times Mr Arogundade had substantial funds available in London. This became apparent when his London bank statements were disclosed shortly before and during the trial. He had four bank accounts at the Golders Green branch of Barclays Bank. The first was a current account. He usually kept a balance of between £2,000 and £8,000 in this account and would transfer money into it and out of it from or to his other accounts as occasion required. The second account was a Capital Advantage account. At the end of 1993 there was a credit balance in this account of £17,900. There was no activity on this account during 1994, save the crediting of interest. The third account was a higher rate deposit account, This account was used almost exclusively to pay off his credit cards with American Express, Mastercard, Barclaycard and Diners Club. There was a balance of £8,400 in the account in January 1994 and monies were transferred in from his current account and dollar account as and when required. The fourth account is the interesting one. It was a US dollar account. On 28 May 1993 the balance stood at $40,724. Between that date and 30 March 1994 payments were made into the account totalling just over $400,000 and the balance at the end of March 1994 stood at over $270,000. Since the end of the previous May money had been flowing into the account at the rate of $40,000 a month. Mr Arogundade told me that his wife did not know of the existence of this account.[30]Nothing in the witness statements cast any light on the source of these funds but Mr Arogundade in his oral evidence in chief explained that in 1993/94 foreign exchange was very hard to come by in Nigeria and that businesses requiring foreign exchange were prepared to pay substantial introduction fees to persons able to put them in touch with a bank or other source who could provide them with foreign currency. In particular, it was in the interest of his bank to be able to provide this service to its customers. The payments into his US dollar account in London were by and large the commissions earned for these introductions. It seemed to me that the commission earned by Mr Arogundade when acting as an employee of his bank ought to have been accounted for to the Bank but he assured me that the payment of such commissions to the individuals concerned was standard practice in Nigeria at the time and known about and approved by his superiors. However that may be, that was the source of the funds flowing into the London dollar account.[31]I return to the account of the purchase transaction. On 7 April 1994 Hamways wrote to Mr Arogundade by fax noting that he would not be taking up the mortgage offer and asking for the urgent return of the counterpart of the landlord’s licence. On 15 April Hamways wrote to him at the Clive Court address enclosing a completion statement showing that he needed to provide the sum of £186,563.33 to complete. Probably the next day Mr Arogundade, Mr Conteh and Mr Sodiende met in Mr Sodiende’s flat at Clive Court to assemble the necessary funds. Mr Conteh signed a receipt addressed to Mr Sodiende which said this:
“Dear Mr Sodiende, Re: 5 Grove Court, St. John’s Wood, NW3 Received from Mr Sodiende the sum of £182,563.33.

(d) £30,000”

The £182,563.33 was, of course, precisely the sum Hamways had said they needed. The denominations of notes recorded under the first heading total £22,000, leaving a deficit of £101 odd. Re: 5 Grove Court, St.

(d) £30,000”

[32]On 17 April 1994 Mr Conteh signed another receipt recording that he had received from Mr Sodiende the sum of $6,000 “as equivalent to £4,000 to make up the balance required for the purchase of No 5 Grove Court”. On 18 April Mr Sodiende gave Mr Borland of Hamways a written memorandum headed “Ref Mr A0. Memo of 11/4/194 to Mr A Conteh” authorising the transfer of £9,000 held for Mr Sodiende in the firm’s client account to the client account of Mr Arogundade. The memo of 11.4.94 is not extant but the initials “AO” are those of Mr Arogundade.[33]Completion took place on 19 April. On 10 May Hamways wrote enclosing the final version of the completion statement together with a receipt for the funds they had received. The receipt acknowledged receipt of the total sum of £186,662.87 made up as follows:
“18.4.94 Transfer from Mr Sodiende £9,000 18.4.94 Bankers draft £33,795.20 18.4.94 Bankers draft £30,000 18.4.94 Woolwich Building Society cheque £25,000 18.4.95 Bankers cheque £66,666.67 18.4.94 Cash £17,101 18.4.94 Cheque £1,000 19.4.94 Cash £4,000 19.4.94 Cheque from Mr Tony Conteh £100”
[34]Where did these funds come from?(1) The transfer from Mr Sodiende was that authorised by his memorandum of 18 April. The claimant’s evidence is that she reimbursed Mr Sodiende for making this payment (inter alia) by drawing a cheque in favour of West Coast Shipping Lines Limited on 26 April 1994 for N1,470,000 (representing 30,000 US dollars at a rate of exchange of N49 to the dollar).(2) The Bankers draft for £33,795.20 was a draft dated 14 April and provided by the Golders Green branch of Barclays Bank and was purchased by the defendant with $50,000 withdrawn from his US dollar account on the same date. The withdrawal is evidenced by his bank statement.(3) The draft for £30,000 was dated 15 April and was also provided by the defendant’s bank and had been purchased with £30,000 withdrawn from his current account on the same date. There would, however, not have been sufficient sums in that account were it not for a credit of £30,000 on the same day. There was no evidence of the source of that credit.(4) The Woolwich Building Society cheque for £25,000 was dated 16 April and was procured by Mr Conteh out of the £30,000 deposited in his Building Society account. The defendant’s evidence was that these were funds brought by him in cash in sterling from Nigeria in January and that the sterling had been bought at black market rates in Bureaux de Change.(5) The bankers cheque for £66,666.67 was a cheque in favour of Hamways drawn on behalf of London Trust Bank plc, with whom Mr Sodiende had an account. The cheque was procured by Mr Sodiende and was equivalent to 100,000 US dollars at $1.5 to the pound. He told me that it represented most but not all of the monies he had received in Nigeria.(6) The cash in two sums totalling £21,101 was delivered to Hamways by Mr Conteh. It represents all bar £1,000 of the sum paid to Conteh in cash at the meeting in Mr Sodiende’s flat. The defendant’s case is that he brought this money in cash (sterling) from Nigeria, again having purchased sterling in the local Bureaux de Change.(7) The cheque for £1,000 is a mystery. Mr Conteh says that it did not come from him. That seems likely since he did provide a cheque for £100 to make up the sum necessary to complete on 19 April.[35]On the day of completion Mr Conteh sent Mr Arogundade a letter asking for the balance of his fees. His fee was £10,650 of which the letter showed £6,000 as having been paid. I infer that as to £5,000 this was the difference between the £30,000 he acknowledged having received and held in his Building Society account and the £25,000 paid out of that account to Hamways and as to £1,000 was the difference between the cash he acknowledged receiving in Mr Sodiende’s flat and the cash he paid to Hamways. It is obscure to me how the £4,000 worth of dollars paid to Mr Conteh by Mr Sodiende on 17 April came into it.[36]Of the monies required for completion, therefore, only £33,795.20 can be conclusively shown to have come from Mr Arogundade’s own funds. It is probable that a further £30,000 also did but the source of the credit in his current account on 15 April is unknown. His evidence was that he had brought the Woolwich Building Society funds and the £22,000 cash in sterling from Nigeria and that the monies provided by Mr Sodiende had been paid to him in Naira in Nigeria in cash. It is the claimant’s case that she paid substantial sums to Mr Sodiende in Nigeria and that prior to that she had also paid substantial sums to her husband in cash towards the purchase of the London fiat.

The children’s school fees

[37]There was some dispute in the evidence as to who supported the children and paid their school fees. First, I should identify the children. The claimant and the defendant had five children as follows: Ramatallai (daughter) born 30.10.76 Abdul Hafiz (son) born 7.3.78 Karimotallai (daughter) born 4.4.80 Fareed (son) born 4.10.83 Faruk (son) born 4.2.89[38]In 1993/94 Hafiz was 15 and was at school at The Lees in Cambridge. He appears to have gone on to King’s College London to read for a degree in computer systems and electronics. Documents in the trial bundle show that his tuition fees at KCL for the academic year 1997/98 were £9,350 a year. Other documents in the bundle show that between September 1996 and December 1998 the defendant wrote cheques either in favour of KCL or in favour of Hafiz totalling something over £33,000. Other documents evidence further substantial payments to Hafiz by his father in the years 2002 and 2003. I accept the defendant’s evidence that he was paying his son’s fees and for his maintenance.[39]Other documents in the trial bundle relate to the period from December 2001 to February 2002. During this period Ramatallai and Fareed were both at Howard University in the USA. The former was reading for a medical degree and was expected to graduate in May 2002 and the latter was expected to graduate in May 2003. Their sister, Karimotallai, was also in the United States at that time also, I think studying at Howard University. The following table shows payments made by the claimant and the defendant to the university and to their three children during this period. The payments in the table made by the defendant were for the fees of Ramatallai and Fareed at Howard University. The payments made by the claimant were to Ramatallai and Karimotallai. Date Paid by claimant Paid by defendant 1.12.01. 15,000 21.1.01 3,000 22.3.01 2,600 1,200 7.5.01 5,000 22.5.01 6,272 23.5.01 10,457 24.6.01 2,000 26.7.01 1,300 6.8.01 1,300 30.8.01 2,500 11.9.01 18,775 7.12.01 21,303 5.2.01 2,500 13.2.02 _____ 18,264 16,400 95,071 This is probably not a complete picture but it certainly demonstrates that it was the defendant who was paying the university fees of Ramatallai and Fareed. On the other hand, the claimant’s contributions towards the maintenance of the two daughters were substantial and it is accepted by the defendant that from 2002 (for reasons that were not revealed to me) she has also paid the fees of Karimotallai. It is also right to record at this point that on 9 July 1997 the claimant and the defendant both contributed to the purchase of a flat at Dalebrooke Drive, Bowie. The purchase price is recorded as having been $209,000. The defendant contributed $50,000. The claimant contributed $25,000. The flat was bought in the name of Ramatallai and a mortgage taken out in her name, which her father funded. The application for a caution[40]When she applied to register a caution, the claimant signed a statutory declaration. I will quote from it:
“3. Both my husband and I are Nigerian by birth and we have both spent our working lives in Nigeria. My husband was a bank official in Nigeria and retired about 3 years ago. I have my own business, which is conducted in Nigeria through several companies owned by me, including six wholesale stores, importation of children’s products and distribution of goods through my company, Rahaka Childrens’ Stores Nig Limited. These business interests have generated an income over the last 15 years or more than US$300,000 per annum, and from this income I have supported my husband and provided for the children of the family. 4. I found the property in 1994 and dealt with the selling agent, Mr A Conteh, and the solicitor who acted for myself and my husband, Mr L Borland of Messrs Hamways. The purchase of the property was completed, and the property was vested in the sole name of my husband, the reason for this being that it is customary, according to the social code in Nigeria, that a wife would take a back seat and the husband would have a dominant role in the marriage. 5. However, I contributed in excess of £120,000 to the purchase of the property and its furnishings, including the payment by Banker’s Draft on 15 April 1994 of the sum £66,666.67, which was drawn in favour of Messrs Hamways at my request. I can produce a copy of the draft, if required. 6. In the circumstances, I am advised, and verily believe, that I have a substantial interest in the property, which I wish to have protected by the registration of a Caution in my favour. 7. My reason for wishing to take this step is that I have commenced divorce proceedings against my husband in Nigeria, on the grounds of his adultery.”
[41]That statutory declaration was inaccurate and misleading in the following respects:(1) According to the evidence that was subsequently given, the claimant conducted her business through a single company and not several companies and had two stores, not six;(2) US$300,000 was the annual turnover of the company, not the claimant’s income. While the claimant had contributed to the support of her children, the statement that she had supported her husband and provided for the children was an exaggeration;(3) Mr Conteh was not the selling agent but a flatfinder introduced by Mr Sodiende; whether the claimant found the property and had any dealings with Mr Conteh is a matter that I will come to;(4) The claimant had no dealings with Mr Borland of Hamways, who was instructed by the defendant and did not regard himself as having been instructed on behalf of the claimant and defendant jointly;(5) The Banker’s Draft for £66,666.67 was not drawn in favour of Hamways at the claimant’s request; the claimant was not in the UK at the relevant time; the defendant was and was responsible for making all the financial arrangements in London; the draft was procured by Mr Sodiende at his request.(6) The claimant had not commenced divorce proceedings against her husband in Nigeria; he had commenced divorce proceedings against her.[42]It is difficult to see how these errors came to be made, I had wondered whether they resulted from instructions given over the telephone from Nigeria being misheard or misunderstood but it appeared from a witness statement which I requested to be made by Mr Stephen Hyett of the claimant’s solicitors in connection with another aspect of the case that the claimant had attended at Neilsons’ offices on 21 February 2003 with Mr Sodiende and given instructions in person to Mr Hyett’s partner, Mr Pinnell. It may well be that Mr Pinnell misunderstood his instructions in several respects but that does not explain why the claimant felt able to sign and declare to be true a statement containing such obvious and gross errors. The same errors were repeated in the claim form which commenced these proceedings.

The written evidence

[43]The witness statements in this case were presented to the court in a manner which could hardly have been more confusing. They were not in chronological order and their exhibits had been detached and distributed throughout the trial bundle in a manner which made it extremely difficult and in some cases impossible to relate the witness statements to the documents being referred to. I append to this Judgment a chronological list of the witness statements with their bundle page numbers from which it will be apparent how chaotic the presentation of this evidence was. This was particularly unfortunate because the assessment of the evidence turned to some extent on knowing what materials were available to the witnesses at the time each witness statement was made. I will review the oral evidence chronologically. In view of the nature of the issues in the case, I did not prevent the witnesses giving further evidence-in-chief, it being my experience that what witnesses volunteer in-chief is often just as revealing as what is extracted from them under cross-examination.[44]Curiously, the first witness statement to be served was that of the defendant. At that stage, of course, he was simply replying to the statement of the claimant’s case contained in the claim form. He denied that the claimant contributed £120,000 or any sum at all whether directly or indirectly towards the purchase of the flat. He said that he had purchased it outright using his own money. Neither in this witness statement, nor in any of the three further witness statements which he signed, did the defendant disclose the source of the funds used to finance the purchase or refer to or produce any documents (other than one page of his London dollar Account) which showed that the money came from him.[45]He said that he had first approached his friend, Mr Sodiende, to assist him in finding a property in about January 1994 and that they then contacted Mr Anthony Conteh who showed him three properties, as a result of which he decided on 5 Grove Hall Court. Mr Conteh introduced him to Hamways and he gave authority to Mr Sodiende to deal with both Mr Conteh and the solicitors on his behalf. He gave Mr Conteh cash “on a couple of occasions after deciding to buy the property”. He said that most of the purchase money was paid by Banker’s Draft either from money that he had given to Mr Sodiende in Nigeria or directly from his Barclays account in the UK; that the money paid to Mr Sodiende’s account in Nigeria was used to purchase a banker’s draft from London Trust Bank and that the rest of the purchase money was cash that he had given to Mr Sodiende at the outset and which was handed over by both of them to Mr Conteh. The claimant, he said, knew nothing of these transactions. In the course of his evidence he asserted that he had assisted Mr Sodiende in opening his account at London Trust Bank. Mr Sodiende denied this and said that he had had such an account for some years. I accept Mr Sodiende’s evidence but I do not regard the point as significant.[46]Much of the rest of the witness statement dealt with the marital proceedings and the various inaccuracies in the claim form which I have already identified. Perhaps surprisingly, however, the defendant insisted:
“The claimant did not know anything about the purchase of ‘the Property’. She never met Mr Conteh ...”
He exhibited a letter from Mr Conteh confirming that fact. He also took exception to the suggestion that the claimant had been responsible for supporting him or providing for their children. He said he had always supported himself and the claimant and also provided for all his children.[47]When the claimant came to make her first witness statement, she had already read that of her husband. She gave evidence about her company stating that it had two sales outlets (not six) and that during the last 15 years the “gross profit” of the company had been in excess of $300,000 per annum. This again was not correct, as she subsequently accepted. That figure represented the company’s turnover. She referred to her eldest son having attended school in Cambridge and undertaken a degree course at King’s College London and said that one of the two girls was educated in the United States to become a medical doctor and the younger daughter was now a medical student at Howard University, like her sister. She then said: “I have paid the school fees” and exhibited a selection of cheque counterfoils. I am satisfied that that was a highly misleading statement. She may sometimes have paid some school fees (her husband says he paid her back) but it is quite clear from the documents to which I have already referred that the tuition fees of the children were paid principally by her husband.[48]The claimant asserted, contrary to the defendant’s evidence, that, far from knowing nothing of the purchase of the flat, she had been an active participant in it. She said that when visiting London before 1994, the family used to stay in an apartment in Carlton Court in Maida Vale; that this became uncomfortable and there was a lack of privacy and that she had suggested the acquisition of another place in London for the family’s use. In about May 1993 she had looked at two other properties. This date cannot, in my judgment, be right because the claimant did not visit the UK between February and July (see paragraph 17 above) but it is possible that she looked at London properties during her five-day visit in July. She said that one of the flats she saw was in Aberdeen Court, Little Venice, but in her oral evidence she said that she had seen Aberdeen Court during her visit at the end of January, rather than in mid-1993. She said she had inspected Aberdeen Court with Mr Conteh at a time when her husband was not in London. She recalled that it was on the seventh and top floor, close to the fire escape and much too cold in winter months.[49]She then said that it was “soon after this in December 1993” that we found the property. In oral evidence, she accepted that this must have been during her visit at the end of January. She said:
“I found the flat and I liked it for two reasons; as it was purpose built in a block of flats and the security arrangements were excellent, and it is located in central London and very accessible to most places I usually visit, when in London.”
[50]Mrs Arogundade next insisted that her husband did not have the means to buy the property in 1994. She said that a business venture with a company he had formed had just failed and she had had to lend him N1 million to bale him out. Documents were produced at trial which showed that she had indeed paid his company, Assaro Nigeria Limited, N1 million on 14 June 1993. She sought to derive further support for this view of her husband’s means by referring to his having approached Mr Sodiende about the possibility of a mortgage. She had probably learnt of this recently from Mr Sodiende. She did not know in 1993/94 or when she made this witness statement about the funds going into the London dollar Account.[51]Then she got to the crux of the case. She said that from June 1993 she started giving money for the purchase of a London flat to her husband; that this was originally in relation to a flat which she had inspected in Tottenham. Her evidence was that they agreed that he need not repay the N1 million loan but that this money should be used towards buying the property in England. In addition she made him the following payments: 28 June 1993 N540,000 30 June 1993 N540,000 18 October 1993 N1,591,250 She said that these contributions, when converted into sterling at N54 to the pound, totalled £63,518 odd. Since she says that the asking price for the property in Tottenham was about one-third of the price of 5 Grove Hall Court, this sum would have been almost enough to buy the property without any contribution from her husband.[52]Next Mrs Arogundade said that when they finally agreed to buy 5 Grove Hall Court she contributed further monies by making payments to Mr Sodiende. She claims to have made eight payments of varying amounts in cash to Mr Sodiende between 6 December 1993 and 11 April 1994 with a equivalent sterling value of £67,366. She also claimed that a cheque issued by her in favour of Mr Sodiende’s company, West Coast Shipping Lines Limited on 26 April 1994 for the Naira equivalent of US$30,000 was to reimburse Mr Sodiende for paying £9,000 towards the purchase of the flat “which he paid on my behalf” and that he paid her the balance in sterling, out of which she began the furnishing of the flat with the assistance of Mrs Sodiende. She supported her claims to have made these payments first to her husband and then to Mr Sodiende by producing cheque counterfoils in respect of most of the payments.[53]She accepted that she had never spoken to Mr Borland of Hamways but said that she had met Mr Tony Conteh on two or three occasions but not after the property had been found. Finally, she insisted that she had been supporting the family all along and was still continuing to do so and had been supporting the defendant in the upkeep of the children, including payment of school fees and other sundry maintenance and expenses in the UK, United States and Nigeria. In particular she had been responsible for maintaining Karimotallai at medical school at Howard University – this was accepted by the defendant. I am, however, satisfied that the claimant was seeking to give a misleading impression to the effect that she had principally been responsible for the payment of their children’s educational fees, when that was not in fact the case. Indeed it is clear that the picture that the claimant was trying to paint in her witness statement was that she was the chief breadwinner and provider for the family and had continued to be so thereafter, presumably to give colour to the claim that she had provided over two-thirds of the purchase money for the London flat. That was a misleading picture, as she must have known.[54]The defendant answered the claimant’s evidence in a witness statement dated 4 June 2004. He reiterated that she did not make any contribution towards the purchase of the flat and that the purchase was not at her suggestion or instigation. He said that he was unaware that she had looked at any other properties. He absolutely denied that his company had received any loan from the claimant and challenged her to provide proof that N1 million was paid to Assaro Nigeria Limited. His response to the cheque counterfoils exhibited to the claimant’s Witness statement was to say that she had not supported them with any bank statements which would confirm that the monies actually came out of her account. He claimed to have demonstrated in his first witness statement that all the monies for the purchase of the Property came from his own purse and accounts and he made a passing reference to having had several business opportunities of a financial nature including acting as financial consultant to several individuals and companies. He said nothing about earning introduction fees on foreign exchange deals. He accepted that it was possible that the claimant had given money to Mr Sodiende but insisted that it was not for the purchase of the flat. He said that he had paid for the furnishing of the fiat and that most of the purchases were made on his credit card.[55]I find two things curious about this witness statement. The first is its defensive tone. The defendant “challenges” the claimant to produce proof of various matters and takes points which in some cases are rather petty. Secondly, the witness statement wholly fails to give any account of the source of the very considerable funds which the defendant says he made available for the purchase of the property. We know that he made available to Mr Conteh £30,000 in sterling, which Mr Conteh kept in his building society account and £22,000 in cash paid over on or about 16th April. That is a total of £52,000. We also know that Mr Sodiende made available in the United Kingdom a draft for nearly £67,000, the deposit of £10,000, £9,000 from his Hamways client account and £4,000 paid to Mr Conteh, a total of nearly £90,000. According to the defendant Mr Sodiende had been put in funds to this extent by payments of Naira in Nigeria which came wholly from the defendant’s purse. Although challenging the claimant to produce documentary evidence for her assertions (in addition to the documents she had already produced), the defendant produced absolutely no documentary evidence either at this stage or subsequently. Not only was no documentary evidence produced but he did not even give an account of the business activities which enabled him to produce sums of this magnitude in a space of perhaps three months or any explanation as to why the assembly of such funds should have left not a documentary trace behind.[56]One assertion constantly made in his Witness statement can conclusively be shown to be wrong, namely that he never received the N1 million loan. This payment had been evidenced by a cheque counterfoil dated 14 June 1993 on which the payee was recorded as Assaro (Nig) Limited and the amount as N1 million and upon which there had been written in red ink, presumably on a later occasion, the signature of the claimant and the words “loaned to Assaro Nig Limited”. A copy of this cheque was obtained from the claimant’s bank and it showed that the payee of the cheque was indeed the defendant’s company, Assaro Nigeria Limited, and that the amount was N1 million. Moreover the defendant’s bank statement showed that the cheque was encashed on 16 June 1993 before the defendant left Nigeria en route to the USA. Nevertheless, although he made two further witness statements, the defendant never accepted that he had received this money until he went into the witness box and was asked by me whether there was anything he wished to correct in his witness statements. At that point he accepted that the N1 million had been paid by his wife to his company as she had said but said that he could not recall why and that the payment might have been a repayment of money lent to her previously, a suggestion that had not been put to the claimant in cross-examination. He had no recollection as to what had subsequently happened about this loan. In these circumstances, his denial that there was any agreement between him and his wife that the money should be devoted to the purchase of a London flat cannot be worth much.[57]The fact that the defendant’s company needed a loan of N1 million (very roughly £20,000) in June 1993 has a further double significance. First, it shows that the wife was both in a position to and did assist her husband financially, a fact which is further demonstrated by her having contributed $25,000 to the purchase of their daughter’s flat in 1997. Secondly, it makes it all the more necessary to have an explanation as to how the defendant was in a position a mere nine months later to assemble over £200,000 from his own resources for the purchase of the London flat, £140,000 worth of which he apparently raised in Nigeria.[58]I wish now to turn to the evidence of Mr Conteh. At some time prior to 28 September 2004 he produced an undated witness statement which said that he was introduced to the defendant by Mr Sodiende in 1993 and the defendant instructed him to help him to find a suitable property and to get a loan to purchase it; he found 5 Grove Hall Court, which was one of three properties he showed to the defendant; on the defendant’s instructions an offer was made and he introduced the defendant to Hamways. He said that he did not know the claimant and had never met her or received any instructions from her and was never told that she was an interested party.[59]The claimant responded to that witness statement in a short witness statement dated 28 September 2004 in which she said that it was quite untrue that Mr Conteh had never met her. She had met him on more than one occasion prior to the purchase of 5 Grove Hall Court in 1994; he had accompanied her with Mr Sodiende to inspect a flat on the sixth floor of Aberdeen Court, Maida Vale and later taken her to inspect 5 Grove Hall Court; it was she, rather than the defendant, who decided to proceed with the purchase after inspecting it with Mr Conteh. Very shortly before the trial Mr Conteh produced another Witness statement which reiterated that he had never met the claimant. He had never accompanied her to inspect Aberdeen Court and the decision to purchase 5 Grove Hall Court was the defendant’s and he received his instructions from the defendant.[60]Mr Conteh gave evidence before me. It came as something of a surprise when in the middle of his evidence-in-chief, on being asked whether he had met the claimant, he said:
“I may have shown her round. Mr Arogundade asked me to show her round the flat after completion. I do recollect having shown her round after completion.”
He was unable to identify the claimant, who was sitting in court, as the person he had shown round but he had been told that the person he showed round was the defendant’s wife. His reason for saying that he had not taken the claimant to see the flat was interesting. He said:
“The reason I would not have taken her to see the flat is we had to complete very quickly.”
In answer to questions from me, he said:
“I could not have shown Mrs Arogundade round because we had to complete quickly and I have no memory of it. I had a key when I took her round. It must have been after completion.”
His recollection was plainly defective because he also recalled that there were tenants in the flat, whereas all the other witnesses agreed that there were not.[61]It is plain from the answers quoted above that Mr Conteh was going in for some ex post facto reconstruction. He remembered having shown a lady, introduced as Mrs Arogundade, round and he remembered that there was a great hurry about something. There was no hurry about completion. Indeed the contract provided for two months between contract and completion. The only hurry was between offer and contract. But Mrs Arogundade was not in London after the date of the offer and before the contract but was in London the previous week. That is almost certainly when Mr Conteh showed her round.[62]I can take the remaining evidence of the parties briefly. On 2 February 2005 the defendant made a third witness statement, the chief purpose of which was to exhibit copies of his wife’s cheques obtained from Trade Bank plc. On 25 February 2005 the claimant made a third witness statement in which she claimed to have given part of the money for the children’s support and education to the defendant in Naira in Nigeria, which he paid into his bank account and then transferred to the children’s schools. She said that the majority of the funds transferred to the schools came from the Rahaka Childrens’ Stores account. She appended to the witness statement a summary of the payments she claimed to have made towards the flat with expanded explanations relating to two particular cheques, that of 26 April 1994 and that of 18 October 1993. I will return to these in due course. On 9 March 2005 she made a further statement which added very little on the central issues in the case.[63]On 23 March the defendant made a fourth witness statement responding to the last witness statements of the claimant. It contains an explanation as to why he decided not to accept the offer of a mortgage: he calculated that it was not worthwhile and had sufficient funds anyway. He did not explain why, this being so, he had applied for a mortgage in the first place. He had sufficient funds in his English accounts to pay for the property but had decided that he would rather pay a substantial part of the money from “cash income received from some of my business associates”. He then said:
“I paid some of these monies into Mr Sodiende ‘s bank account with TIB Bank plc, Ikeja Branch through my driver, Sunday Adeleye. Some of the other sums I paid to Mr Conteh directly in Sodiende ‘s presence when we met in London.”
[64]One of the things that struck me as odd about this case was why, if the claimant wished to transfer funds to her husband or to Mr Sodiende from her company’s bank account, she did not simply write them a cheque. Her answer was that Nigeria is a cash economy where even banks are not trusted. I did not find this particularly convincing but it was not an answer that was challenged, albeit that Mr Arogundade was a banker and was in a position to know whether this was right. Moreover, I note that he himself, wishing to pay Mr Sodiende money which was to go into Mr Sodiende’s bank account, nevertheless sent it round in cash. This, therefore, would appear to be an example of a situation in which one must not judge Nigerian business behaviour by English expectations.[65]There were two other witnesses who were not required to be called and whose evidence was accepted. Mr Sunday Adeleye was employed as a driver by the defendant’s bank between 1989 and 1998. He confirmed that between December 1993 and March 1994 he was instructed by the defendant to take “large amounts of cash in Naira from Ibadan to Mr Odewole Sodiende in Lagos”. One does not know what he meant by “large amounts”. He said that the monies were passed directly to Mr Sodiende who instructed his driver in Mr Adeleye’s presence to pay the money into his account at TIB Bank, Akeja Branch. Secondly, there was a witness statement from Mr Borland who stated that he was a legal executive employed by Hamways in 1994; that he was instructed by the defendant to act on his behalf in the purchase of 5 Grove Hall Court; that the defendant was introduced by Mr Conteh; that the defendant introduced Mr Sodiende to the firm; that as far as he was aware all the funds used for the purchase of the property were provided by the defendant, albeit that some of these funds were paid to the firm by Mr Conteh or Mr Sodiende; he was never told that the funds were being paid other than on behalf of the defendant; nobody else was involved; he had not met the claimant or received any instructions from her and was not aware that there was any other interested party to the transaction.

The evidence of Mr Sodiende

[66]It is now necessary for me to go back to the evidence of Mr Sodiende. He said that he had been asked to look for a London property by the defendant, who had visited him at Clive Court and admired his flat there. He said of the defendant:
“He mentioned that his wife had looked for a property in north London, Tottenham, but he was not too happy with it.”
He said that it was not correct that the defendant had helped him open a London Trust Bank account; he had been with London Trust Bank for a long time before he met Mr Arogundade; but he thought he had met him in London Trust Bank where the manager introduced them. He met his wife a year or two later in 1992 or 1993.[67]He introduced Mr Arogundade to Mr Conteh to help them look for a property. He remembered going to Aberdeen Court with Mrs Arogundade and Mr Conteh and perhaps his wife, but not Mr Arogundade. He had not, however, gone to Grove Hall Court when Mr Conteh showed it, but went later and did not like it because it was at the back of the building. He remembered that Mrs Arogundade had said of the Aberdeen Court flat that it was too close to the attic and would be too cold in winter. He was quite clear that he had seen 5 Grove Hall Court with Mr Arogundade and Mr Conteh but definitely not with Mrs Arogundade. He remembered that he had been told either by Mr Arogundade or by Mr Conteh, when he said he did not like it, that Mrs Arogundade was happy with it.[68]As to the arrangements for changing money, he said that he had changed Naira for Mr Arogundade in the past. He operated a shipping company and got paid in dollars. He had changed Naira to dollars or sterling for the defendant. He had never previously had any money transactions with the claimant. In connection with the purchase of the flat, however, she had given him money three, four or five times in Nigeria. The defendant had also sent him money via his driver. He thought there was one occasion when they had both come to his house, when Mrs Arogundade had handed him the money.[69]With regard to the cheque dated 24 April 1994 he said he thought that it was towards the time of completion (in fact it was after completion) and that Mrs Arogundade had said that she was going to buy furniture and she needed cash. He said that he paid part of the proceeds of the cheque to Mr Borland and gave the balance to Mrs Arogundade in cash in London in his fiat. As to the draft for £66,666, he explained that this was the equivalent of US$100,000. He had received Naira in Nigeria in excess of that sum. He said that the bulk of the purchase money of £193,000 came from the defendant but he remembered receiving one or two cheques and cash from the claimant; maybe, he said, £30,000 worth excluding the April cheque to West Coast Shipping. He “sourced” the £9,000 which he had directed Hamways to take from his client account from that cheque, which was also the source of the cash he gave the claimant to buy furniture.[70]In cross-examination he was asked about the £9,000 and said that he had already received the funds by cheque from Mrs Arogundade. (The cheque is of course dated five days later which is inconsistent with this statement.) He was asked about the £22,101 referred to in the receipt signed by Mr Conteh and it was put to him that this was cash brought by the defendant and given to Mr Conteh in his presence. Initially he thought he had collected this money from his own bank but, on reflection over the lunch adjournment, he thought that the sum was a very odd one for him to have drawn and accepted that it was quite possible that it had been given by the defendant to Mr Conteh as suggested. Perhaps curiously he said that he must have visited the property before the claimant started giving him money; they would not have given him money for the property before he had seen it; he did not think he was given money before he was told that Mrs Arogundade was happy with the property. Since Mrs Arogundade did not see the flat on any view until the first week in February 1994, this evidence is inconsistent with her evidence that she made several payments to Mr Sodiende in January.[71]He accepted that the proportion of the money contributed by Mr Arogundade was far more than that contributed by Mrs Arogundade, maybe 70 per cent of the total purchase price; Mr Arogundade sent money more frequently. They had started leaving money with him when they decided they wanted to buy a property; they then started to give him money and applied for a mortgage; they had decided to buy a London flat towards the end of 1993; they came to his house and were talking about it. As to whose money it was, he said:
“I used to think it all belonged to Mr Arogundade. I made no distinction between monies received from him or from her.”
It was put to him that he had received no money from Mrs Arogundade and he said categorically that that was not true.[72]It was then put to him that he and the defendant were no longer friends because they had fallen out over a loan that he had made to the defendant to buy a ship. The defendant had been paying him back the loan slowly and had nearly repaid all of it. He said that he did not see Mrs Arogundade regularly; when she was in London she had asked him to introduce her to a solicitor and he had introduced her to Neilsons; he was not very happy when he heard about the caution on the property because he did not like to come between husband and wife. When it was put to him that he was helping the claimant against the defendant because the defendant still owed him money, he said that that was an insulting suggestion.[73]In my judgment, Mr Sodiende was an honest witness doing his best to assist the court over a matter concerning which his recollection was understandably hazy. It was not suggested to him that he had any improper motive for wishing to help the claimant, financial or otherwise, and his denial that he harboured some animosity towards the defendant as a result of the business venture involving the ship seemed to me to have the ring of truth. Moreover, it was notable that he did not claim to have known to whom the money he was given in Nigeria belonged. All he said was that he had definitely been given cash and cheques on a number of occasions in 1994 by the claimant. He did not claim to have visited 5 Grove Hall Court with the claimant but appeared to have a clear memory of having visited Aberdeen Court with her. In many respects his account corroborated that of the defendant, namely that he had introduced the defendant to Mr Conteh and that it was the defendant who had instigated the search for and had first found the flat. His evidence did not seem to have been coordinated with that of the claimant. His evidence did, however, corroborate the claimant’s in three important respects:(1) His having been told of her having inspected a flat in Tottenham;(2) His having been told that she was happy with 5 Grove Hall Court, which implied that she had seen it; and(3) Crucially, the fact that the defendant paid him cash and cheques in Nigeria.

Findings as to buying the flat

[74]At this point I can make certain findings of fact about the events leading up to the purchase of 5 Grove Hall Court (leaving aside for the moment the question of the sources of the purchase monies). The claimant’s account that she began looking for a London flat in 1993 is important because, unless I accept that, her rationale for making contributions to her husband in 1993 collapses. Her account is corroborated by Mr Sodiende’s evidence that he recalled having been told by the defendant that his wife had looked at a property in north London but that he was not too happy with it. I have considered whether Mr Sodiende’s memory may have been corrupted by later conversations with Mrs Arogundade but this was not suggested to him explicitly and, anyway, he seemed to me to be scrupulous about distinguishing between what he really could and could not remember. I therefore find as a fact that the claimant did inspect the property in Tottenham in 1993. I think it is probable that this was in July 1993 when the claimant was in the United Kingdom for five days. Her only previous visit in 1993 had been for one day in February. I was not told that an offer was made for the Tottenham flat and I find that it was not. I do not think that a flat in Tottenham would have been regarded by either Mr or Mrs Arogundade as a suitable substitute for the serviced apartment in Carlton Court in which they had previously stayed.[75]I find next that the defendant found 5 Grove Hall Court in January 1993 with the assistance of Mr Conteh, having been introduced to him by Mr Sodiende, probably on one of his visits in the last quarter of 1993. Mr Conteh showed him three flats including 5 Grove Hall Court on his first visit to London (for a medical check up) beginning on 9th January. His subsequent visit from 23 – 26 January was probably connected with the purchase and that is probably when he brought the £30,000 which Mr Conteh paid into his account at the Woolwich Building Society, arranged the insurance policy which resulted in the debit on 28 January and signed the application for a mortgage.[76]I also find that the defendant then returned to Nigeria on 27 January and probably discussed the purchase with his wife, if he had not already done so. On 30 January she got on a plane to London. She was then shown Aberdeen Court and Grove Hall Court by Mr Conteh, the former in the company of Mr Sodiende. She preferred Grove Hall Court and Mr Conteh then offered the asking price to Hollingdale Kane, probably having been authorised to do so previously by Mr Arogundade if his wife liked the flat. The temporal coincidence of the parties’ visits to London and the making of the offer on the flat points strongly to the above conclusions.[77]After the offer had been made and contracts exchanged, the claimant and defendant visited London in March. It was probably on this visit that Mr Sodiende visited the flat with Mr Arogundade and Mr Conteh, expressed his reservations and was told that Mrs Arogundade was happy with it.[78]It follows from the above findings that I do not accept the defendant’s evidence that he did not discuss the purchase of a flat or the flat with the claimant at all. It does not necessarily follow that he was lying. He might have simply forgotten. He might want to forget. I suspect that consciously or subconsciously he felt that admitting to his wife having played any part in the purchase of the flat would give colour to her story that she had contributed to funding it. In any event the above findings cast into doubt the reliability of his evidence. I have already said enough about the claimant’s evidence to justify treating her account also with great caution. She demonstrated a cavalier attitude to accuracy and a readiness to exaggerate, at the least.

Findings as to the funding of the purchase

[79]Against the background of the known facts, the above evidence, my assessment of Mr Sodiende as a truthful witness and the above findings, I now need to examine the evidence about each individual payment said to have been made by the claimant to her husband and Mr Sodiende.[80]The first payment alleged to have been a contribution to buying a London flat was evidenced by the cheque dated 14 June 1993 drawn on the account of Rahaka Childrens’ Stores in favour of Assaro (Nig) Limited for N1 million. That this payment was made was amply proved by production of the cheque counterfoil, a copy of the cheque itself and the company’s bank statement and it was ultimately admitted by the defendant, after earlier categoric denials. The defendant, however, could give no explanation for the payment apart from the belated suggested that it might have been the repayment of a loan, and said he could not remember anything about it “without his records”. He had had ample notice to obtain whatever records he thought might help and, in the circumstances, I feel obliged to accept the claimant’s evidence that at some later time husband and wife agreed that, instead of repaying the loan, the husband should put this money towards the purchase of a or the London flat.[81]The first actual payment said to have been made by the wife to the husband towards purchase of a flat was said to be evidenced by two cheques both for N540,000 dated respectively 28 and 30 June 1993. I was shown the original counterfoils, copies of both cheques and bank statement entries showing that the money was withdrawn from the company account in two tranches on 29 and 30 June. There is therefore no doubt that these sums of money left the account on those dates.[82]The cheques were made payable to cash: MT Arogundade. As for the counterfoils, each bears the date, the amount, and the word “exchange”. I should say that there are several examples of counterfoils completed in that way in the same cheque book, “exchange” indicating that the claimant was drawing cash to purchase foreign exchange. Sometimes the counterfoil also records the rate of exchange and the amount purchased. On the counterfoils often the payee is not shown; sometimes there is an annotation as to what the payment was for. It is not possible to tell whether these annotations were made at the same time as the entry of the date and the amount, but occasionally they are in a different coloured ink. One notable example is the counterfoil of the cheque of 14 June 1993, to Assaro (Nig) Limited on which the date, payee and amount is written in blue and the words “loan to Assaro (Nig) Limited” and the claimant’s name in red.[83]The counterfoils of the cheques of 28 and 30 June are further annotated. The former says “£10,000 LONDON PROPERTY MT Arogundade ALHAJI ASSAN AROGUNDADE”. The second says “ALHAJI ASSAN LONDON PROPERTY exchange £10,000”. Careful examination of these counterfoils, however, shows that on both the words “LONDON PROPERTY” and the husband’s name are written in a different coloured, more purple, ink as well as being the only words in block capitals. The obvious inference is that they were added on a later occasion.[84]I am not satisfied that these withdrawals did represent cash given to the defendant for the purchase of a London flat for the following reasons. First, the claimant’s evidence in her first witness statement was that when she first started giving money for the purchase to her husband “this was originally in relation to the flat in Tottenham”. If, as I have found, the claimant probably only saw the flat in Tottenham in July, then these payments were too early. Secondly, the claimant’s evidence was that she had drawn the money out of the bank at her husband’s request so that he could change it for sterling for the purchase; it is unlikely that these withdrawals followed such a request, since her husband was not in Nigeria in the previous two weeks. Thirdly, her evidence was that she could identify what payments went towards the flat only from the cheque stubs – but these cheque stubs had been “revisited”. Fourthly, I do not understand why the parties should have been withdrawing money, converting it into sterling and keeping it in the house at a time when they had not yet found the flat. In my judgment, this pair of withdrawals was probably for the purchase of foreign exchange in connection with the claimant’s business.[85]Next, in her first witness statement, the claimant claimed to have given her husband N1,591,250 worth £25,000 on 18 October 1993. She exhibited to her statement a cheque counterfoil on which was written the date, then her husband’s name, then the amount, then “Contribution for Property London £24,000 N54”. The date, the amount and the amount in sterling appear to have been written in the same hand at the same time. The husband’s name and “Contribution etc” are in more spidery, less confident writing and possibly written with a different pen. N54 appears to be different again. The odd thing about this is that N1,591,250 does not convert to £25,000 at N54 but rather at N63.65. The bank statement did not show the payee but merely said “Withdrawal”.[86]Subsequently a copy of this cheque was obtained from Trade Bank. The payee turned out to be Trade Bank plc, not the defendant as the counterfoil apparently recorded, and the endorsement showed that the cheque had purchased a banker’s draft in favour of Commercial Trust Bank Nig Limited. In the Schedule annexed to her third witness statement, the claimant said that she had instructed her bank to issue a bank cheque in favour of the other bank “for foreign exchange of £25,000 sterling”, (which was not what the endorsement said). Then she said “I collected £25,000 cash from Commercial Bank and handed the money over to the defendant for the express purpose of the purchase of the flat”. She was asked about the difference in the writing on the cheque stub and said that her husband’s name and “Contribution etc” were added later but on the same day. She had no explanation for the discrepancy between the stated and the effective conversion rates.[87]Again I am not satisfied that these monies were paid to the defendant towards the London flat. The cheque counterfoil had admittedly been “revisited” and by somebody who already had in mind that the applicable conversion rate was N54, a notion which would have been entertained by the person who had recently been considering the cheques of 28 and 30 June. The claimant’s account of this payment “evolved” and she was less than convincing in the witness box when asked why she accepted £25,000 in sterling for N1,591,250 when, at N54 to the pound, she should have been getting £29,467 odd.[88]I turn next to the first payment which the claimant claims to have paid to Mr Sodiende. This was the sum of N1,048,000 on 6 December 1993, worth £17,466.60 at N60 to the pound. A withdrawal of that amount is shown in the company’s bank statement. A copy of the cheque No A157268 was produced during the hearing and the payee was found to be Trade Bank but there was no copy of the endorsement. No counterfoil was disclosed or exhibited to the claimant’s witness statement but the original counterfoil was in the cheque book produced as exhibit C3 at trial. It was folded in half and had apparently been missed by the claimant and her solicitors. It is interesting because it bears only the date and the amount; no indication of the payee and no other annotations. In cross-examination the claimant accepted that this was not money given to Mr Sodiende. When asked by me why she had said that this cheque represented money paid to Mr Sodiende, she said because of the calculations set out in her witness statement. What I think was going on was that she had been looking for payments that would make up in total something close to the £66,666 for which she knew Mr Sodiende had provided a draft. That suggests that she may have annotated the other cheque counterfoils when she did this exercise but missed this one. At the least, this payment is a clear example of her not having been averse to exaggerating her claim.[89]That brings me to the seven cash payments which the claimant claims to have made to Mr Sodiende on the following dates and in the following amounts: 10.01.94 N340,000 @ N60 } 20.01.94 N400,000 @ N60 } 24.01.94 N520,000 @ N60 } 24.01.94 N414,000 @ N60 } £27,900 11.02.94 N560,000 @ N60 } 14.02.94 N40,000 @ N60 } £10,000 11.04.94 N860,400 @ N71.7 } £12,000 £49,900[90]The bank statements for January were missing but copies of all the cheques (except the first and last) were available and showed that they were made out to the claimant for cash.[91]So one turns to the counterfoils. On that dated 10 January the name of Mr Sodiende appears to have been written in purple biro over the word “cash” in pencil. At the bottom there appears “foreign exchange London flat”, but “London flat” is written in a different manner as if with a biro that was defective and several of the letters have been retraced. There are signs of that in the writing of Mr Sodiende’s name too. In my judgment it is very likely that the name and “London flat” are later additions.[92]In the case of the counterfoil of 20 January 19494 it is quite clear that the words “Mr Sodiende London property” had been added to a counterfoil which initially simply gave the date and read “cash N400,000 exchange”. The same is true of the counterfoils of 24 January for N520,000 and N414,000. The counterfoil of 11 February 1994, however, gives the date and the amount; the name of Mr Sodiende and “London flat” also appear and seem to be less tidily written, and “foreign exchange” appears in a quite different ink. That is followed by the counterfoil of 14 February 1994 which looks as though it originally gave the date, “cash” and the amount and said “exchange” but to which has been added “+ N560,000 Mr W Sodiende part payment for £10,000”. Mr Sodiende’s name is clearly in a different colour. Finally, there is the counterfoil of 11 April which reads “12,000 71.7 N860,400 ... exchange”. Above “exchange”, “flat London” appears and below it “Mr Sodiende”, both written in the different purple ink.[93]Mr Sodiende’s evidence was that the claimant gave him money “three, four or fives times” and that the defendant also gave him money via his driver. He estimated that he had received maybe £30,000 from the claimant in addition to the later cheque to West Coast Shipping (to which I will return). He also estimated that the amounts contributed by the defendant towards the totality of the purchase monies were “far more” than that contributed by the claimant. He estimated 30 to 70 per cent. It was not initially clear whether he was speaking of the sum given to him or the sum necessary to complete but, on being asked, he said that he meant the latter. That would make the claimant’s contribution in the region of £55,000 (excluding any money paid to her husband which Mr Sodiende knew nothing about). He said, however, that the defendant sent him money more frequently than the claimant. He also said “When they decided that they wanted to buy the property, they started leaving money with me”. We know that the defendant was flat-hunting during his visit to London which started on 9 January 1994, so it would not be surprising if he had started to assemble the funds in foreign currency at about that time.[94]Mr Sodiende made available in London for the purchase of the flat a little under £90,000. My strong impression from his evidence is that the claimant contributed less than half of that sum. He estimated £30,000 in cash. I have already formed the view that the claimant was prone to exaggerate her claim and that the cheque counterfoils are not reliable evidence, having been revisited at an indeterminate time, but I have also accepted that Mr Sodiende was a truthful witness trying to do his best to assist the court. In my judgment, the claimant did make payments to Mr Sodiende towards the purchase of the London flat, as did the defendant, but she did not make as many (Mr Sodiende’s maximum figure was five) or pay as much as she claimed.[95]I am particularly sceptical about the alleged payment on 10 January 1994. Her husband had only arrived in the UK the day before and had almost certainly not yet found the flat. I am also sceptical about the payments totalling N600,000 on 11 and 14 February because(a) Mr Sodiende did not support the claimant’s account that he had asked for the extra N40,000 to make up the amount to the equivalent of £10,000;(b) Mr Sodiende seems to have worked in dollars and(c) it is likely that Mr Sodiende was in the UK, not Nigeria then, since he certainly was on 17 February when he wrote to Hamways and probably before since they had been provided with a banker’s draft for the deposit by 16 February.[96]In all the circumstances I do not think that I will be doing either party any injustice if I hold that the claimant paid the equivalent of £34,500 in cash (that being the rough sterling equivalent of the other five payments) towards the purchase of 5 Grove Hall Court to Mr Sodiende.[97]That leaves only the question of the cheque dated 26 April 1994 for N1,470,000 drawn on the claimant’s company account in favour of West Coast Shipping Lines, Mr Sodiende’s company. That was drawn after completion. The claimant says it reimbursed Mr Sodiende for the £9,000 he had provided at the last moment and that Mr Sodiende paid her the balance in sterling in London to enable her to buy furniture. This is not implausible and was corroborated by Mr Sodiende. The counterfoil gave the date, the name of the payee as West Coast Shipping Lines and the amount and then said “Bank draft $30,000”. “London flat” had been added in a different ink and writing. The copy of the cheque showed the payee was Trade Bank. The endorsement showed the cheque was buying a draft in favour of West Coast Shipping Lines. The debit appeared in the company bank statement.[98]The evidence of both Mr Sodiende and the claimant was that they had no commercial dealings save in respect of the purchase of the flat. I therefore find that this cheque was connected with the purchase and was intended to reimburse Mr Sodiende for the £9,000 he had made available at the last minute.

Conclusion

[99]I therefore conclude that the claimant made the following contributions towards the purchase price of the flat: The Assaro loan $1m @N54 = £18,500 Cash paid to Mr Sodiende £34,500 Ex cheque to West Coast Shipping £9,000 £62,000 The total cost of acquiring the flat, including Mr Conteh’s fee and legal fees etc, was £207,000. I therefore declare that the claimant is entitled to a 30 per cent share in the beneficial interest in the property. I will hear counsel on the form of order and consequential directions.[100]Stepping back from the detail, that is a conclusion which fits the general picture I have of the parties’ financial arrangements. I have found that the defendant paid the children’s tuition fees for the most part but that the claimant made substantial contributions to their maintenance and paid some of the fees. It was common ground that three years later, when the family wanted to buy a flat for the eldest daughter at university in the USA, the claimant contributed a third and the defendant two-thirds of the down payment. The claimant had her own business and plainly could and did make substantial contributions to the family’s expenditure and investments. It is not improbable that she also did so in the case of the London flat.[101]Finally, I should record that, while the claimant’s case benefited from being corroborated to some extent by the evidence of Mr Sodiende, the defendant’s case suffered from the complete absence of any documentary evidence or even a particularised account of the source of the funds used for the purchase. It would not be right for me to speculate as to why the defendant wanted to bypass his own bank and deal in cash in the way he did when making a foreign investment; suffice it to say that there are drawbacks to carrying on entirely undocumented financial transactions. 103. Chronological list of Witness Statements Page 1. 1st WS of Defendant 25.03.04 41 2. 1st WS of Claimant 07.05.04 17 3. 2nd WS of Defendant 04.06.04 48 4. WS of Sodiende 30.07.04 27 5. 1st WS of Conteh Undated* 59/S.l.3 6. 2nd WS of Claimant 28.09.04 30 7. 3rd WS of Defendant 02.02.05 S.1.5 8. 3rd WS of Claimant 25.02.05 32 9. 4th WS of Claimant 9.03.05 40A 10. 4th WS of Defendant 23.03.05 [61A]/S.1.6 11. WS of Adeleye 28.03.05 [61K]/S.1.1 12. WS of Boreland 01.04.05 S.1.2 13. 2nd WS of Conteh 01.04.05 S.1.4 * This WS appears dated 4.4.05 at S.1.3 but was clearly served before 28.9.04 because the claimant answers it in her WS of that date.