Nneka Mercy Ogbedo v Moses Oghenerume-Taiga

Where a party seeks to relitigate issues already addressed in earlier proceedings, the court may strike out the claim as an abuse of process. The court must consider whether relitigation is abusive and, if so, whether a sufficiently compelling reason justifies allowing it to continue. “Special reason” is shorthand for that evaluative exercise, not a statutory or procedural formula.

The importance of the issue does not itself justify relitigation. The court may consider the fairness of reopening issues, the parties’ opportunities to present their cases, related foreign proceedings and consistency with earlier orders.

The applicant sought nullity orders concerning alleged customary marriages with the respondent, following prolonged proceedings in England and Nigeria. Earlier English proceedings had dismissed petitions relating to alleged ceremonies in 1993 and 2002 after Nigerian proceedings failed to establish a subsisting marriage.

The respondent applied under FPR 4.4 to strike out the further nullity application as an abuse of process. The central issue was whether the application sought to relitigate the same issues and, if so, whether any special reason justified allowing it to proceed.

1. Application granted. The nullity application concerned the same issues considered in the earlier English proceedings and was abusive.
2. The court applied the approach summarised in HMRC v Kishore [2021] EWCA Civ 1565: first, determine whether relitigation is abusive; second, consider whether a special reason justifies allowing the action to continue. “Special reason” is shorthand for a broad evaluative exercise, not a statutory or procedural formula.
3. No special reason existed. The applicant had had a full, fair and appropriate opportunity to establish the alleged customary marriage in Nigeria and England. The Nigerian Supreme Court appeal had been withdrawn and dismissed, and contested notes of that hearing could not establish any further finding about the alleged 2002 ceremony.
4. The court rejected the submission that the law had materially changed since 2013. Tousi v Gaydukova [2024] EWCA Civ 203 did not advance the case. The importance of the applicant’s marital status, the children’s position and possible future claims did not justify reopening the matter.
5. The application was struck out under FPR 4.4.

Not stated in the judgment. This was a first-instance determination of the respondent’s application under FPR 4.4.