England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
Mr Justice Cohen
FD13P02234

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 July 2018

Lord Justice Peter Jackson:

1. On 1 May 2018, Levi Bernard Egeneonu, also known as Bernard Nkem, was sentenced by Cohen J to 18 months imprisonment for contempt of court. He has exercised his right of appeal and this court has today heard his appeal. Mr Egeneonu, who was represented by counsel at the committal hearing, appears today in person by his own choice.

The background

2. The proceedings arise in this way. Mr and Mrs Egeneonu were married in Nigeria in 2001 and came to England, where Mr Egeneonu had already been living, in 2002. They have three sons, all of whom were born here. They are C (16), O (13) and I (11). In 2013, the family went to Nigeria on holiday. The mother was separated against her will from the children and has not seen them since.
3. Both parents then returned to England. On 30 January 2014, Russell J made the children wards of court and ordered Mr Egeneonu to arrange for their return. Instead, a week later he went to Nigeria and disengaged from the proceedings. On 6 March 2015, Newton J found him to be in contempt at a hearing at which he was represented and in which he participated by telephone: [2015] EWHC (Fam) 954. The breaches of court orders were, broadly:

a) Obtaining travel documents to enable him to leave the UK.

b) Leaving the UK and travelling to Nigeria.

c) Breaching a non-molestation undertaking in March 2014 by phoning the mother and saying he would never return the children from Nigeria, and putting pressure on the mother to withdraw her wardship application by making threats to her and her family.

d) Failing to produce the children and to return them to the UK by 14 February 2014.

e) Failing to book tickets to effect the return of the children.

f) Failing to attend three hearings in March 2014.

4. Sentencing was adjourned to allow Mr Egeneonu to arrange for the return of the children. He did not do this and on 8 May 2015 Newton J sentenced him to 12 months imprisonment.
5. Mrs Egeneonu sought to have Mr Egeneonu extradited and for that purpose argued before Sir James Munby P that Newton J's findings amounted to findings of criminal contempt. This was unsuccessful: [2017] EWHC (Fam) 43.
6. However, Mr Egeneonu returned to the UK and on 26 March 2017 he was arrested and imprisoned to serve the sentence imposed by Newton J. On 29 June 2017, he unsuccessfully attempted to purge his contempt. On 8 August 2017, Roberts J made orders requiring him to inform his relative Victor Egeneonu of certain matters designed to ensure the children's return.
7. While Mr Egeneonu's sentence was being served, Mrs Egeneonu applied for his further committal. That application was adjourned at his request on 30 August 2017 by MacDonald J ([2017] EWHC (Fam) 2451) and heard on 11-12 and 19 September 2017 by Mr David Williams QC: [2017] EWHC (Fam) 2336. He committed Mr Egeneonu to prison for a further period of 15 months. The charges proved related to:

a) Harassment of the mother.

b) Failure to attend four hearings.

c) Failing to provide information or providing false information about the children's whereabouts.

8. On 10 November 2017, Cohen J ordered Mr Egeneonu to cause the return of the children to this country by 15 December 2017.
9. On 9 February 2018, Williams J (as he had become) ordered Mr Egeneonu to cause the return of the children to this country by 27 February 2018.

The present committal application

10. On 28 February 2018, Mrs Egeneonu made a further application for committal on six counts. She alleged that Mr Egeneonu was in breach of the orders of Roberts J, Cohen J and Williams J, and that he had in three respects interfered with the administration of justice by providing false evidence.
11. On 21 and 23 March 2018, Williams J heard argument on whether Mrs Egeneonu should have leave to pursue the three counts relating to the interference with justice. He granted that permission and he declined to exclude the evidence of transcripts of telephone calls made by Mr Egeneonu from prison in June-August 2017. He refused Mr Egeneonu's application to purge his contempt. His judgment, delivered on 24 April and published on 6 June 2018, is to be found at [2018] EWHC (Fam) 1392.
12. The matter came before Cohen J on 26-27 April and 1 May 2018. Both parties were represented. The judge heard from them both and from one witness (the translator). A great deal of the evidence centred on transcripts of the telephone calls. Typically, in one call he was recorded as stating 'Let it be known that I do not want these children to come over here and I do not want these people to know their whereabouts.'
13. The judge found the following charges proved:

1. Failure to inform Victor Egeneonu of the matters required by the order of Roberts J.

2. Failure to secure the return of the children as required by Cohen J.

3. Failure to secure the return of the children as required by Williams J.

4. Causing the child C in August 2017 to write a letter to the court with the intention of misleading the court about the children's wishes and feelings.

5. Sending a false statement of a witness to the court in August 2017.

6. Making false written statements about the whereabouts of the children, his ability to secure their return and his relationship with Victor Egeneonu.

14. The judge reviewed the copious transcripts of the father's conversations. He rejected Mr Egeneonu's claims that the transcripts were inadequate, and described as absurd and fantastical his evidence that the calls were in some cases not made by him and in others did not refer to these children. He found that Mr Egeneonu was controlling the situation from prison and that he had the power to bring the children back, but in fact did not want them to return. He sentenced Mr Egeneonu to 18 months imprisonment on each count, to be served concurrently.

This appeal

15. On 22 May 2018, Mr Egeneonu filed an appellant's notice. On 22 June, King LJ ordered that he be produced from custody for this hearing. On 26 June, this court granted legal aid to Mr Egeneonu so that he could continue to be represented by his former lawyers, but on about 10 July, Mr Egeneonu chose to represent himself. Mrs Egeneonu is represented today by Mr Jubb.
16. Mr Egeneonu's arguments are contained in a number of documents: his appellant's notice, a brief skeleton argument (6 pages), a skeleton argument (19 pages), a statement (20 pages) and a further submission provided today (8 pages). From these, I would extract the following grounds of appeal:

1. The children had not been unlawfully retained in Nigeria in 2013.

2. All counts but one (no. 4) were repetitions of matters for which sentence had already been passed in September 2017, creating double jeopardy.

3. The recordings of the conversations were improperly obtained and had at one point been said to be inadmissible by Williams J.

4. The translation was incompetent and lacked independence.

5. Williams J and Cohen J, both generally and in ignoring a Nigerian court order, showed racist bias. Cohen J should have recused himself.

6. As to count 1, he had obeyed the order to tell Victor Egeneonu that he wanted the children returned.

7. As to counts 2 and 3, he had no power to bring the children to England, given the attitude of the Nigerian authorities and family members.

8. As to count 4, the recording regarding this was misunderstood.

9. As to count 5, the statement had been signed by the person concerned.

10. The order was wrong and unjust. The case is based on fraud, violation of international justice and slavery. Mrs Egeneonu fraudulently claimed the children had been abducted in order to get UK benefits. The English court has no jurisdiction over Nigerian children. His imprisonment amounts to slavery.

Decision

17. Having considered the documentation provided by Mr Egeneonu and listened to his submissions, I have concluded that his appeal is without merit and I would dismiss it. The judge had the clearest evidence that Mr Egeneonu was in flagrant contempt of the court's continuing efforts to secure the return of the children and/or their reunification with their mother.
18. A number of the grounds of appeal can be shortly disposed of:

It is not open to Mr Egeneonu to argue on this appeal that the children were not unlawfully retained in Nigeria in 2013, when the High Court has repeatedly ordered their return on that very basis.

Contrary to Mr Egeneonu's submission, the recordings were admitted by the interlocutory decision of Williams J, a decision that was not subject to appeal, and from which no appeal would have been likely to succeed.

Cohen J carefully considered the reliability of the recordings, to the perhaps unprecedented extent of hearing from the translator himself, and he was fully entitled to conclude that they were overall dependable.

There is no basis upon which we could depart from the judge's assessment of the evidence, and in particular his conclusion about Mr Egeneonu's ability to perform the orders. The recordings provided clear proof of the matters arising in the individual counts, for the reasons expressed in detail by the judge. The judge was entitled to conclude that any doubt about Mr Egeneonu's capacity to act was removed by his deliberate efforts to ensure that the orders were not obeyed.

The issue of a Nigerian court order is one that Mr Egeneonu has raised before. For example, in a letter from a Nigerian lawyer in January 2018, there is a reference to proceedings in Nigeria in 2016, and an order "in favour of Mr Egeneonu and the children". None of the many judges who have heard Mr Egeneonu has been persuaded that such an order could provide a genuine excuse for his disobedience of the orders of the High Court, and Cohen J was fully entitled to take the same approach.

The allegations of bias made against Williams J and Cohen J are groundless. Such allegations are another example of the bluster habitually employed by Mr Egeneonu. There was no basis upon which Cohen J could properly have recused himself.

19. I deal in a little more detail with Mr Egeneonu's claim that he is being repeatedly punished for the same contempt. That relies upon the argument that the abduction (which is anyhow denied by him) happened once, and can only be punished once. That argument is unsound, as was made clear by McFarlane LJ in Re W (Abduction: Committal) [2011] EWCA Civ 1196:

"37. … As in the case of prohibitive injunctions, it must in my view be permissible as a matter of law for the court to make successive mandatory injunctions requiring positive action, such as the disclosure of information, notwithstanding a past failure to comply with an identical request. A failure to comply with any fresh order would properly expose the defaulter to fresh contempt proceedings and the possibility of a further term of imprisonment.

38. While such a course is legally permissible, the question of whether it is justified in a particular case will turn on the facts that are then in play. It will be for the court on each occasion to determine whether a further term of imprisonment is both necessary and proportionate."

20. These children are wards of court and the High Court is empowered to make whatever orders it responsibly considers to be in their interests. The fact that its orders have not been obeyed cannot deprive it of the power to make further orders, and if those orders are also disobeyed, it has its normal powers of enforcement. Once the punitive element of a sentence has been achieved, it will be a matter for the court to gauge whether making continued orders is likely to have a coercive effect: see Re W (above) per Hughes LJ at [51]. But where an order designed to secure the return of children has been properly made, the jeopardy in which a respondent to a further committal application finds himself is no more than the direct result of his deliberate decision to disobey the court's orders.
21. I also note the challenge made by Mr Egeneonu to the jurisdiction of the English court in relation to Nigerian children (in fact they have dual nationality). It can easily be seen that his original case since 2013 that the English court should never have been involved is without foundation. The English court clearly possessed jurisdiction from the outset. There will doubtless be cases (see e.g. Re W [2014] EWCA Civ 1101) where jurisdiction may be lost after lengthy, and even wrongful, absence. However, that was rightly not an issue before Cohen J. It is well-established (see Johnson v Walton [1990] 1 FLR 350 at 352D) that orders are to be obeyed and that arguments about whether they should or should not have been granted are no excuse for disobedience.
22. Lastly, Mr Egeneonu has not made any separate submission about the imposition of a custodial sentence and about length of his sentence, but since he is unrepresented, it is right for this court to review those matters. Having done so, I would approve the course taken by the judge. A custodial sentence is always a last resort, and (the maximum being two years on any one sentencing occasion) a term of this length must be reserved for the most serious cases. This is such a case. It involves the calculated separation of three children from their mother and a contemptuous disregard for court orders. Those who abduct children in this way must expect lengthy sentences if they are found to be in contempt of court. As it is, these children are currently without either of their parents. That is a tragedy, but it is one brought about by Mr Egeneonu and the solution to it lies, as it has always done, in his hands.
23. I would dismiss this appeal.

Lord Justice Henderson:

24. I agree.

Lady Justice Sharp

25. I also agree.
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