NEUTRAL CITATION
No. [2003] EWHC 2653 (Ch)
IN THE HIGH COURT
CHANCERY DIVISION
HIS HONOUR JUDGE KIRKHAM
Monday, 20th October 2003
BETWEEN:
-and-
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A Barton (Hutchinson Beresford Lowe & Co) for the Claimant
The Defendants did not attend and were not represented
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[1] This is an application by the claimant, Mrs Soremekyn, for relief in relation to two properties in London, a house at 27 Aldershot Road and a house at 54 Riffel Road, both in North London. The claimant is Nigerian. She has been living at 27 Aldershot Road for many years now. There are four current defendants; none have appeared at the hearing today. I am satisfied that they have been given notice of these proceedings. The first is Mrs Clara Omotunde, who is beneficiary under a will of the claimant’s husband, and the other defendants are the executors of that will, which is dated 22 February 1983. Mrs Soremekyn’s husband died on 17 July 1984 and by his will Mr Soremekyn made various bequests.
[2] The background to this is that the claimant met her husband in Lagos in the early 1940s. Mr Soremekyn was working for a company at the time, but he subsequently gave that up and joined the claimant to work in the business which she had established. It is clear that Mrs Soremekyn’s business was very successful, and it appears that she conducted the business and her husband took responsibility for and controlled the financial aspects of the business. The claimant and her husband worked in partnership. That much is clear. It appears that the business may subsequently have been conducted through a limited company in this country but that company was struck off the register some years ago for failure to file accounts.
[3] Mr and Mrs Soremekyn worked together for many years until Mr Soremekyn’s death. They began to do business in the UK. To start with when they came over to this country they stayed in hotels. But Mrs Soremekyn had the idea that it would be sensible to buy a property where they could be more comfortable, and they purchased 27 Aldershot Road in London in 1965 or 1966. The price of that property was some £6,000 or £7,000. The house at 54 Riffel Road was purchased in about 1966. There is a fair amount of evidence in this case, and more than one often sees in a case of this sort, which indicates that the funds for the purchase of the properties came from the money which the claimant and her husband had been making in the business. It was the claimant who was able to find a building society in this country where moneys could be deposited and it was from that building society account that the money was subsequently found to pay for the property at 27 Aldershot Road. The payment for that was apparently made from the building society account into an account of Barclays Bank in this country which was in Mr Soremekyn’s sole name. But that appears simply to have been the conduit by which the money which belonged to them jointly was used to pay for the property.
[4] When 54 Riffel Road was purchased it was with a view to letting it and using the investment income from that property to finance some of the expenditure on a property at 27 Aldershot Road. The evidence, as I say, is really remarkably clear in this case that it was the common intention of Mr and Mrs Soremekyn that the money be invested in these two properties in this country.
[5] The relationship between Mr Soremekyn and her husband became strained when it became apparent that her husband had taken up with another woman in this country, who is the first defendant in these proceedings, and had children by her. The first defendant lived for a time at 54 Riffel Road.
[6] At some point it came to the claimant’s attention that the 27 Aldershot Road property had not been registered in the joint names, but only in Mr Soremekyn’s name. The claimant tackled her husband about this and he questioned her about why should it matter whether the property was in his name alone, and that if it was in his name it was in her name also. As he said “We are as one.” At that stage she did not know about her husband’s relationship with the first defendant.
[7] At some point, as Mrs Soremekyn has said in evidence this morning, when she spoke to her husband about the properties they discussed how money should be used to finance repairs and so on. Mr Soremekyn said: “You use your money to repair No 27. This property is yours”, and her evidence was that he said “I’ve taken the other one”, referring to Riffel Road. I do not take that to mean that Mr Soremekyn considered that 27 Aldershot Road was wholly the claimants and No 54 Riffel Road was wholly his; rather, that he was suggesting that as Mrs Soremekyn was living at No 27 she should apply moneys towards the upkeep, and as the first defendant and family were at times living at No 54 Riffel Road then perhaps he should take primary responsibility for that property. But I do not take that evidence to mean anything other than a pragmatic approach to the way that the properties should be looked after and I do not consider that it was in any way an indication that Mr Soremekyn considered that the arrangement was anything other than the one which I have outlined, namely, that the two of them should have an equal interest in both properties.
[8] The correspondence from Mr Soremekyn to the claimant during 1966 indicates that they were working together to furnish and let out the Riffel Road property. Although the tensions arose between Mr and Mrs Soremekyn as I have outlined, I have no doubt that that did not in any way lead to any change in the approach which they had adopted from the beginning. In 1967 in a letter to his wife Mr Soremekyn said this:
We have laboured together and made the money together and by the grace of God we shall spend it together and in happy mood.
[9] The couple had used their moneys together to build a number of properties in Nigeria. I am told that some of these are particularly valuable properties. The position so far as those properties are concerned is not of course in issue in these proceedings, but it is, in my judgment, supportive evidence of the joint approach which these two people had with respect to these two properties in London. But curiously by his will Mr Soremekyn sought to leave to the claimant a property in Lagos. Curiously, I say, because it appears that that was a property which was in the claimant’s family where she was born and brought up in any event. By his will Mr Soremekyn left sufficient for an annuity to be paid to Mrs Soremekyn, but I accept Mrs Soremekyn’s evidence that none of that annuity has been paid to her.
[10] On 29 December 1981 Mr Soremekyn transferred the 54 Riffel Road property into the joint names of himself, Mr Festus Iagbi, who is the second defendant, and Miss Clara Omotunde, the first defendant. There was no consideration given for that transfer. The first and second defendants filed a defence in this matter and there has been fairly recent correspondence from Mr Sicode, a lawyer based in Nigeria, on behalf of Mr Iagbi. It is clear from the court orders and the correspondence which I have seen that the claimant’s solicitors have complied with the orders of the court that notice of the various steps in these proceedings, including the hearing today, has been given to the defendants. However, they have not filed any evidence in support of their own contentions. The court therefore has no evidence that there was any consideration given by either the first or the second defendant for the transfer of the property of 54 Riffel Road in December 1981.
[11] It is clear that the second defendant, Mr Festus Iagbi, who is an executor of the will, was very closely associated with the claimant’s family for many years. Well before 1981 he came to live with Mrs Soremekyn when he was about 10 or 11 years old and she assisted with his education and with his qualification, which I believe to be that of a chartered accountant. He lived with the claimant in London initially at 27 Aldershot Road when he first came to this country; and clearly he has been looked after by the claimant and her family for many years.
[12] The first defendant, who is one of the registered proprietors of 54 Riffel Road, is the woman with whom Mr Soremekyn had what appears to have been a long relationship and by whom he had a number of children. The second defendant, Mr Iagbi, was very much aware of the detail of the arrangements which Mr and Mrs Soremekyn had made with respect to both of the London properties because he acted as a messenger between London and Nigeria from time to time, and was aware apparently of the arrangements between Mr and Mrs Soremekyn. So he must have been aware that the proceeds of the letting of 54 Riffel Road were to be used in part for the upkeep of Aldershot Road. I accept from the evidence available to me that Mr Iagbi must have been aware that the 54 Riffel Road property was financed by moneys from the business run by the claimant and her husband.
[13] I accept Mr Barton’s submission that in assenting to the transfer of Riffel Road into the names of himself, and Miss Omotunde and Mr Soremekyn, Mr Iagbi was not acting bona fide. I accept Mrs Soremekyn’s evidence that the annuity which was stipulated by the will has not been paid to her. It is possible that there is some legitimate explanation for that, but none has been given by the executors and indeed none of them have made any contact with the claimant since her husband’s death, and it appears from Mrs Soremekyn’s evidence that the executors may have taken over and used the properties in Nigeria which it appears were built using the funds which emanated from the business of the claimant and her husband together. It appears, therefore, that the executors, and Mr Iagbi in particular, may not have acted bona fide in relation to the claimant in relation to the disbursable of the funds from Mr Soremekyn’s estate.
[14] I have looked carefully at the matters which have been raised in the defence which, as I say, is filed on behalf of the first and second defendants only. It is denied that the claimant ever worked in partnership with her late husband or played any part in his business affairs. That appears to have no foundation of fact at all and I am not persuaded by that in any way. It is suggested that the purchase money for the two properties was the sole and absolute property of Mr Soremekyn. As I have made clear from the evidence I have seen and heard from Mrs Soremekyn this morning I do not accept that that is the case.
[15] I accept that Mrs Soremekyn worked throughout on the basis that her husband controlled the financial side of matters. Indeed she said that when their relationship began in the 1940s she gave him the money that she had, notwithstanding that she was earning in her own right and she received no salary or other remuneration from the business and no formal share of the profits. In all the circumstances I accept that Mrs Soremekyn has always acted to her detriment in relation to these matters.
[16] The claimant seeks a declaration that the two properties are held on resulting trust for the benefit of the claimant as to 50% or such other proportion as the court might determine, and declaration that those properties are held on constructive trust for her benefit as to 50% or such other proportion as the court may determine. It is clear to me from the evidence I have seen and heard that the claimant is entitled to those declarations, and it seems to me that the 50% proportion is the appropriate figure to be applied here.