Fisayo Olaoluwa Awolowo v Olusequn Samuel Awolowo & Anor

An appellate court may interfere with factual findings where there is an identifiable error, including a material misunderstanding of evidence, a critical finding without evidential basis, or a failure to consider relevant evidence. A trial judge must assess the evidence in the round. Where relevant documents would ordinarily exist and are within a party’s control, their absence may support adverse inferences against that party. In a dispute about an alleged debt affecting matrimonial financial relief, the party asserting the debt must prove its existence and provenance if that is the true issue. A foreign consent judgment entered without adjudicating the underlying debt does not establish that the debt is legitimate. Competing creditor and spouse claims require balancing under the authorities cited in the judgment.

The wife appealed from the Central Family Court’s decision of 14 September 2023, given by Her Honour Judge Vincent sitting as a Deputy High Court judge. The judge found that the husband owed Linkserve Ventures Transnational Limited £1.6 million and dismissed the wife’s application, treated as one under section 23 of the Matrimonial and Family Proceedings Act 1984, to set aside transactions allegedly intended to defeat her claim for financial relief.

The alleged debt arose from a Nigerian loan agreement and later Nigerian settlement judgment, followed by registration in England and a charging order over the family home. The central issues were whether the alleged loan existed or was a sham, who bore the burden of proving the debt, and how the debt, charging order and wife’s financial claim should be considered together.

1. Appeal allowed and decision set aside. The judge’s finding that the alleged £1.6 million loan was genuine was unsustainable because her reasoning contained material errors.
2. The judge materially misunderstood the Nigerian proceedings and the English registration. The Nigerian court merely entered the parties’ terms of settlement as its judgment. It did not scrutinise the underlying documents, adjudicate the validity of the debt, or establish that the debt was legitimate. The English court merely registered that judgment and did not determine the legitimacy of the underlying debt.
3. The judge failed to consider the almost complete absence of company and financial documents which would ordinarily be expected to corroborate the alleged loan. That absence was a significant factor against the husband and the Intervenor, who were responsible for producing evidence within their control, rather than against the wife.
4. The judge also failed to consider relevant Access Bank statements and inconsistencies in the evidence as to whether the money was lent to De Skyline in Nigeria or transferred from the Intervenor to the husband’s English account.
5. The evidence reached a level calling for explanation. Relevant matters included the Intervenor’s different names and dates, the London address given for a Nigerian company, the non-commercial loan terms, the husband’s failure to sign, and the lack of documentary disclosure.
6. The real issue could be framed as whether any debt existed, rather than whether the agreement was a sham. If that framing is adopted, the husband and the Intervenor bear the burden of proving the debt and its provenance. This issue must be addressed at the rehearing.
7. The court did not determine the scope of section 23 of the Matrimonial and Family Proceedings Act 1984 or which transactions were reviewable dispositions. The matter was remitted to a High Court judge for rehearing. The financial proceedings and related King’s Bench Division proceedings were to be transferred to the Family Division so that all matters could be dealt with together.
8. The court also observed that Harman v Glencross, Austin-Fell v Austin-Fell and Kremen v Agrest establish that creditor and former-spouse claims do not automatically take precedence over one another. The competing interests must be balanced before, or at least before making final, a charging order.

• Court of Appeal (Civil Division) — [2025] EWCA Civ 641: appeal allowed, the decision set aside, and the matter remitted for rehearing before a High Court judge. Related proceedings were to be transferred so that the issues could be heard together.
• Central Family Court — decision dated 14 September 2023: found that the husband owed Linkserve Ventures Transnational Limited £1.6 million and dismissed the wife’s application under section 23 of the Matrimonial and Family Proceedings Act 1984.