England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		21st March 2006

1. MR JUSTICE NEWMAN: Mr Justice Stanley Burnton will give the first judgment.
2. MR JUSTICE STANLEY BURNTON: This is an application by Her Majesty's Attorney-General for a civil proceedings order against Zainab Duke Abiola ("the defendant") under section 42 of the Supreme Court Act 1981.
3. The application is supported by a witness statement of Mr Richard Dingwall, setting out the relevant litigation history on which the Attorney-General relies, and documents annexed to it. There is no issue as to the formalities required for an application of this kind, namely the authorisation on behalf of the Attorney-General and the due service of the defendant.
4. The defendant, a member of the Bar, has represented herself before us. We have the benefit of Mr Dingwall's witness statement, which deals with the relevant litigation in some detail, together with a skeleton argument of Mr Kellar, who has appeared on behalf of the Attorney-General, which also summarises the litigation in question.
5. There can in fact be little dispute as to the steps taken by way of commencement of litigation and applications and other procedural steps taken by the defendant in the litigation, since they appear from the documents which have been exhibited to Mr Dingwall's witness statement. Indeed, some of them are repeated in the files of documents on which the defendant relies.
6. The litigation on the basis of which the Attorney-General seeks this order has related broadly to three matters, referred to as "the probate litigation", "the possession proceedings" and "the mortgage company claim". It is necessary to detail some at least of the steps that have been taken in each of those categories of litigation.
7. The probate litigation concerned and concerns the estate of the defendant's deceased husband, the late Chief Bashorun Moshood Olawale Abiola. He died on 7th July 1998. The defendant has been involved in disputes before the courts as to the validity or otherwise of wills purportedly duly executed by him. The first will, which was the subject of dispute, was a will dated 25th October 1989. The defendant challenged the validity of that will, alleging that it was a forgery. On 4th August 2000 District Judge Conn rejected her claim. She appealed to Hughes J. There was a contested hearing before Hughes J, which resulted on 19th January 2001 in the dismissal of her appeal from the decision of District Judge Conn. The defendant sought permission to appeal from the order of Hughes J, and on 27th July 2001 the Court of Appeal refused permission to appeal.
8. Giving judgment, Thorpe LJ referred to the allegation that the judge had adopted an incomplete or hybrid procedure involving only one live witness, a Mr Timpson, the solicitor who had taken instructions from the deceased and prepared the will for execution. Thorpe LJ said:

"It is plain that the judge took that course out of his determination to avoid injustice and to give to Princess Abiola every opportunity to test Mr Timpson's evidence and to ensure that she left the court with a feeling that there had been a proper investigation and a profound investigation before the dismissive order of the district judge was upheld. It is very plain from the transcript of the evidence that Princess Abiola was in an extremely disturbed state before the judge and the judge dealt with her on that day with obvious sensitivity as well as fairness. His judgment runs to some 20 pages and explains with inexorable judicial logic why the princess's challenge to the will of her deceased husband was absolutely doomed to failure, despite the fact that she had obtained evidence in which she had invested a good deal of belief. There was evidence from someone who asserted that the deceased had not been in England on the day that the will was executed. There was a handwriting expert's statement which sought to doubt the validity of the decease's signature. All this material the judge considered very carefully and equally carefully explained why he could not possibly stand against the very plain evidence of execution and attestation."

Permission to appeal was refused therefore, and the order that the defendant pay the costs involved in those proceedings stood.

9. Notwithstanding the rejection of her challenge to the 25th October 1989 will, the defendant obtained grant of letters of administration on the basis that Chief Abiola had died intestate. That grant was declared null and void in the Principal Registry of the Family Division on 13th November 2001. Evidently the grant of letters of administration was inconsistent with the decision of Hughes J, which had been so emphatically affirmed by the Court of Appeal.
10. On 28th November 2001 a Mr Onwuka Kalu applied to the Oxford District Probate Registry for a grant of probate of a second apparent will of Chief Abiola, this one dated 7th June 1994. One of the beneficiaries named in the will was the defendant.
11. The administrators of the 1989 will sought a pronouncement in the High Court as to the validity of the 1989 will as against the 1994 will. Those proceedings were contested by the defendant, who counterclaimed. In her counterclaim she again sought to have the 1989 will declared void.
12. On 25th June 2003 Lawrence Collins J heard an application by the administrators of the 1989 will for permission to make payments and distribute money from the estate. The application was again contested by the defendant, who suggested that proceeds of sales of shares in a company referred to as DHCL could not be disposed of because they had been transferred to her during Chief Abiola's lifetime. The judge granted the permission sought by the administrators.
13. Subsequently, on 9th July 2003, the defendant issued a claim in the Chancery Division seeking a declaration that she was entitled to a share in the proceeds of sale of those shares. That claim was dismissed on an application for summary judgment by the administrators on 3rd September 2003.
14. On 19th February 2004 Mr Charles Aldous QC, sitting as a deputy High Court judge, gave judgment on the administrators' claim for a declaration. He found that the 1994 will was a forgery and that the 1989 will was genuine. He refused the defendant's application for permission to appeal against the dismissal of her claim for a declaration in respect of the DHCL shares. The defendant sought to have Mr Aldous' judgment set aside on the basis that she had not received adequate notice of the hearing. The judge acceded to that application in part, and set aside the determination on the invalidity of the 1994 will and the refusal to grant permission to appeal. However, he refused to set aside his declaration in relation to the validity of the 1989 will.
15. On 27th May 2004 Mr Aldous QC refused an application to adjourn the hearing on the validity of the 1994 will. Following that hearing, faxes were sent containing threatening or abusive language. Those faxes were sent to the administrators' solicitors. There is no direct evidence as to the authorship of those faxes, and before us Mr Kellar has made it clear that for the purposes of this application they are not relied on by the Attorney-General.
16. On 7th April 2004 Mr Aldous QC dismissed a further application by the defendant for an interim payment from the administrators of the 1989 will to meet the maintenance costs of her children.
17. On 21st July 2004, following a further hearing, Mr Aldous QC again found that the 1994 will was invalid. He held that it was a forgery. He dismissed the defendant's appeal against the dismissal of her claim for a declaration on the issue as to the ownership of the DHCL shares.
18. The defendant filed four separate notices of appeal with the Court of Appeal in relation to those orders. In addition she issued fresh claims against the administrators of the 1989 will in which she sought, among other things, a declaration that the 1989 will was void. The applications for permission to appeal were dismissed for failure to comply with the Civil Procedure Rules on 10th November 2004. On 10th January 2054 separate applications to reinstate were made to the Court of Appeal.
19. Those were various steps taken in what has been referred to as "the probate proceedings". I turn to consider what has been referred to as "the possession proceedings".
20. Mr Ka Chong Chong claimed to be the owner of property at 43 Rowsley Avenue. On 26th September 2002 he obtained an order for possession of that property. During the course of October 2002 the defendant filed various documents with Barnet County Court seeking to challenge the possession order. She contended that she was the owner of the property, having paid the deposit of £39,000 for the purchase, the balance having been paid by way of loan or mortgage. A formal notice of appeal was filed on 10th October 2002. Permission to appeal was refused by Mr Recorder Wulwik on 18th October 2002, and permission to appeal Mr Recorder Wulwik's order was refused by Blackburne J on 4th June 2003. An application to set aside Blackburne J's refusal was dismissed by Park J on 27th February 2004.
21. Meanwhile, on 2nd June 2003 the defendant issued a claim against Mr Chong and others for monies paid in relation to the purchase price of the property. A further claim of a similar nature was issued on 4th July 2003. Summary judgment in favour of the defendant in those claims was given on 13th October 2003. On 27th February 2004 Park J refused permission to appeal. An application to set aside his order was made by the defendant, but was later removed from the court list. Thus the appeal process in relation to Mr Chong's claim for possession and the claims against him relating to the alleged purchase of the property and the payment of the purchase money had been exhausted.
22. Nonetheless, the defendant issued fresh claims for the same monies on 2nd April 2004 and 10th June 2004. The first claim was brought under Part 8 of the Civil Procedure Rules. Her claim for judgment in default was rejected in a letter from the court of 23rd April 2003. The second claim was dismissed by Master Bragge on 6th December 2004. The basis of Master Bragge's decision was that the defendant was seeking to re-litigate claims which had previously been conclusively determined against her.
23. On 14th December 2004 the defendant filed an appeal to the Court of Appeal against Master Bragge's judgment. On 23rd May 2005 the defendant was required to show cause why the appeal should not be dismissed. Whether or not it was in fact dismissed does not appear from the documents which are before us.
24. In addition to the steps to which I have referred, the defendant filed an appellant's notice in the High Court in which she claimed contempt of court against Mr Chong. There were numerous unpaid costs orders in favour of Mr Chong which resulted in his serving a statutory demand on the defendant. She made an application to set aside the demand. That was dismissed by Mr Registrar Nicholls on 7th June 2004. He specifically commented that the defendant had again sought to raise issues which had already been dealt with in the substantive proceedings.
25. I turn to consider the mortgage company claim, which relates to a property known as 23B The Drive, London, NW11. On 4th September 2003 an order for possession was made against the defendant in favour of Kensington Mortgage Company, together with an order that she pay over £200,000 in mortgage arrears. Her appeal against that order was struck out on 8th January 2004. Her application to suspend the warrant of possession was refused on 19th January 2004, and a direction was given that no further application to suspend the warrant should be entertained without the permission of the Circuit Judge.
26. Further applications to the Circuit Judge were made on 29th January 2004 and 5th February 2004, and the defendant was ordered to produce documentation in support of her contention that a remortgage was available if she wished to proceed.
27. On 9th March 2004 and 1st April 2004 the defendant submitted further documents to the court, and sought to resist the claim for possession on the basis that the property belonged to her late husband and was "still the subject of litigation".
28. On 6th April 2004 Her Honour Judge Mayer ordered that unless all outstanding arrears were paid by 6th May 2004, eviction would proceed.
29. The defendant lodged further statements with the court in which she sought to have the possession order set aside on the basis of allegedly unfair and oppressive conduct on the part of the mortgage company. On 12th May 2004 Her Honour Judge Mayer ordered suspension of the warrant of possession conditional upon the defendant paying a sum of £6,809.47 to the claimant. On 27th May 2004 and 9th June 2004 the defendant, or someone, sent documentation to the county court purporting to show payment of that sum.
30. In the skeleton argument we were invited to consider the documentation purportedly provided by Barclays Bank which had been sent to the county court. Again, there is no specific evidence that the author of the document and the person who sent it to the court was the defendant. Accordingly, the Attorney-General does not rely on that documentation for the purposes of his application, and we set it aside for that purpose.
31. There is reference in the skeleton argument of Mr Kellar to some recent developments, including a suggestion that a consultant surgeon's report relied on for the purposes of an adjournment of bankruptcy proceedings was a forgery. Again, the Attorney-General does not seek to rely on that contention for the purposes of this application. Again, it is a suggestion which we ignore for the purposes of considering whether or not it is right to accede to the Attorney-General's application against the defendant.
32. The requirements of an order under section 42 are well known. The court must be satisfied that the person against whom the order is sought has habitually and persistently and without reasonable ground instituted vexatious civil proceedings, or made vexatious applications or instituted vexatious prosecutions. We are not concerned with vexatious prosecutions. The question before us is whether the precondition of the making of an order under section 42 has been satisfied, in that it is alleged there have been vexatious civil proceedings and vexatious applications in civil proceedings instituted and made by the defendant.
33. What the meaning is of "vexatious" in the present context has been elucidated in a number of judgments. We refer in particular to paragraphs 19 and 22 of the judgment of Lord Bingham CJ in Attorney-General v Barker [2000] 1 FLR 759:

"19. I am satisfied on the facts adduced in evidence before us that Mr Barker has instituted vexatious civil proceedings. 'Vexatious' is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process. Those conditions are in my view met in this case. Many of the proceedings show no justiciable complaint and, as has been pointed out, several writs have been issued against individual officers in the same department when one writ would have served against them all.

...

22. From extensive experience of dealing with applications under s 42 the court has become familiar with the hallmark of persistent and habitual litigious activity. The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give any effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop."

I we refer also to the judgment of Auld LJ in Attorney-General v Pepin [2004] EWCA 1246 (Admin).

34. It appears from the wording of the statute itself, but also from the authority of the Court of Appeal judgment in Attorney-General v Matthews [2001] EWCA Civ 254, that an order may be made under section 42 in a case where the litigation or applications instituted and made by the person in question relate not to a single person or group of persons but to diverse persons, provided the litigation and applications are vexatious in the meaning of the statute. If those preconditions are satisfied, the court has a discretion whether or not to grant the order. I turn therefore to consider whether or not it has been established that the defendant has instituted and made vexatious proceedings and applications.
35. In my judgment it is clear that the defendant has done so. There has been repeated re-litigation of issues and claims which have been conclusively determined against her. I refer to the will, the litigation relating to the estate generally, to the possession proceedings, and indeed to the mortgage proceedings. There has been a very large volume of claims, applications and appeals. Much of it is duplicatory. Much of it is without any comprehensible merit at all. Litigation of that kind adds to the burden of the parties who are on the receiving end, and of course the burden on the courts.
36. I have carefully considered all that has been said by the defendant in relation to these matters. As I said at the beginning of this judgment, the steps that have been taken and their results appear to be matters which cannot really be the subject of dispute, since they appear from the transcripts of the judgments before us and the orders made by the court. They disclose, as I have said, serial re-litigation of matters which have conclusively already been decided.
37. I have to say that I had some difficulty in following all of the defendant's submissions as to why no order should be made. There is, I regret to say, a degree of illogicality in her submissions which reflect the multiplicity of applications one sees in the litigation to which we have referred.
38. There is of course a factual basis in the defendant's position: her marriage to the Chief; her relationship with him; her belief that she is entitled to a share in the estate. It may be the case that there is a family dispute as to his estate. But we are concerned with the steps being taken by way of litigation and application, and, so far as that is concerned, in my judgment the position is clear.
39. The defendant referred to the fact that there is litigation in other jurisdictions concerning, as I understood it, the estate and submitted that an order here will be futile because, presumably, it would not affect litigation elsewhere. This order, however, is only concerned with litigation in this jurisdiction. Once it has been shown that that litigation is of a vexatious nature, the court must be concerned as to whether it should be controlled or restricted by means of an order under section 42.
40. The suggestion was made that the Attorney-General is acting in bad faith, and that he is in league with the solicitors acting for the administrators of the late Chief's estate, Kendall Freeman. It seems to me that there is absolutely no justification for that suggestion. Indeed, to my mind the suggestion itself fortifies the conclusion to which I have come that it is appropriate to make an order under section 42.
41. Having regard to all those matters, so far as I am concerned, I would make the order sought by the Attorney-General.
42. MS ABIOLA: Excuse me.
43. MR JUSTICE NEWMAN: I agree, save this. If and in so far as the Attorney-General was relying upon the abusive and obscene language in the faxes to which my Lord has referred, in my judgment they add nothing to what, he has said, founds the order which is applied for in this case.
44. I would only say that I, like my Lord, have considered carefully the document which the defendant respondent has put in against this application which is headed "Defence and Counter Claim". She set out there in clear terms what it is that she says should be taken into account when considering her behaviour. She is driven, as my Lord has said, by the conviction that this is nothing more than the Attorney-General acting for the claimants she is in dispute with in relation to these various matters and in particular the family assets. She has also made repeated suggestions about the bad conduct of the solicitors.
45. In my judgment, like my Lord, I have considered all those matters. They do not touch the essence of this application, which in my judgment is made out. For that reason, too, there must be an order.
46. So there will be an order under section 42. Do you ask for any other attendant relief other than an order in the terms of section 42?
47. MR KELLAR: May I have a moment, my Lord?
48. MR JUSTICE NEWMAN: (To the Defendant) Just a moment.
49. MR KELLAR: My Lord, you will be aware that under section 42 your jurisdiction is to make an order for indefinite duration, you may make an order for limited duration if you wish. Just so that it is clear, the Attorney-General's application is for an order of unlimited duration. There is no ancillary application for costs or anything like that.
50. MR JUSTICE NEWMAN: No. That is the point I wanted to have clarified.
51. (To the Defendant) You see the choices are a limited order or an unlimited order. Do you want to say anything about that?
52. MS ABIOLA: Yes, please. First, I would like it put in your judgment that my Lords did not consider my skeleton argument at all. I'd like that in the transcript please.
53. Plus the fact that the Bhamjee order, section 42, EWCA Civ 1113, A3/2003 Civil 596. With the greatest respect, your inclusion of the mortgage litigation and the Chong Ka Chong ought not to be the case because there are --
54. MR JUSTICE NEWMAN: I am sorry, I must interrupt Ms Abiola. We have given judgments. It is not now appropriate for you to take up time telling the court why you think the judgments are wrong. The judgments have been given and they stand as they are.
55. MS ABIOLA: I think this comes on the internet. (Inaudible) that your honourable Lordship referred to 23B The Drive as my late husband's property. That is a material inaccuracy, because he died in '98, I bought the property in 2002. So this is another clear indication that you have been misinformed. And all my files were here. Nobody looked at those files.
56. MR JUSTICE NEWMAN: Thank you.
57. MS ABIOLA: I have just two more points. Number one --
58. MR JUSTICE NEWMAN: I was asking you really about whether you wanted to resist what he asked for, namely an unlimited order?
59. MS ABIOLA: I appreciate that. I am seriously resisting that, because number one I am a barrister in England and Wales and I was called to the Bar. So in any event I have to be --
60. MR JUSTICE NEWMAN: Sorry, "I have to be"....
61. MS ABIOLA: In any event litigation is my profession.
62. MR JUSTICE NEWMAN: Are you in practice, as it happens?
63. MS ABIOLA: I am in practice.
64. MR JUSTICE NEWMAN: Are you in practice in chambers anywhere?
65. MS ABIOLA: I am practice in all the common law jurisdictions, and I have also been asked by 1 Essex Court to start. So it is draconian for my profession to be debarred from --
66. MR JUSTICE NEWMAN: I see.
67. MS ABIOLA: So that should come into it. I looked at the Bhamjee case which I gave as an example under section 42. Of course their Lordships have discretion if they want to make an order, a restraining order. It can be for three months, it can be for six months, it can be for one year, or whatever, or it can be for that particular case, "If this litigant wants to issue further proceedings she should not without leave of court." Then it is clear that is for that case. But I have cases in the High Court where women have been beaten up, abused, raped, and I am counsel for them. So if a general order is made restraining me --
68. MR JUSTICE NEWMAN: The order does not affect any professional discharge of your functions as a member of the Bar. But that is a different topic. This is a personal order against you in relation to your own litigation.
69. MS ABIOLA: Concerning the estate.
70. MR JUSTICE NEWMAN: Concerning any matter which is your personal litigation.
71. MS ABIOLA: Concerning any matter which is my personal --
72. MR JUSTICE NEWMAN: Anyway, I have heard what you have said. So we will have to make a decision.
73. MS ABIOLA: (Inaudible) sir. He used a very strong word, "illogicality" of my argument.
74. MR JUSTICE NEWMAN: Yes.
75. MS ABIOLA: That I think he should eschew that from his judgment, because --
76. MR JUSTICE NEWMAN: I said it is not appropriate for you to address the court. I know you do not intend to be discourteous --
77. MS ABIOLA: No, I don't.
78. MR JUSTICE NEWMAN: -- but you are being discourteous in adopting the position you are now adopting, and I am sure you do not want to be discourteous. I have told you the position. You should not be addressing this court on the details of its judgment. It is not a matter for this court now.
79. MS ABIOLA: I am just helping him, because he read out 23B The Drive. It is just a factual --
80. MR JUSTICE NEWMAN: As I say, I will be firm with you. I have been I hope patient and listening to you, but I am not going to listen to you any further. You have told me that you object to an unlimited order. We now need to make a decision on that.
81. MS ABIOLA: Okay, sir.
82. MR JUSTICE NEWMAN: Thank you very much.
83. MS ABIOLA: Thank you very much. Thank you, my Lord. And please, how about the cases in the High Court? What happens to them?
84. MR JUSTICE NEWMAN: Thank you very much.
85. MS ABIOLA: There are cases in the High Court.

(The Bench conferred)

86. MR JUSTICE NEWMAN: Yes, we are satisfied, Mr Kellar, that this must be an unlimited order. Would you draw up the appropriate form of the order?
87. MR KELLAR: Yes.
88. MR JUSTICE NEWMAN: I am sure.
89. Now the next question: are there any applications following upon that, Mr Kellar?
90. MR KELLAR: My Lord, there is nothing else.
91. MR JUSTICE NEWMAN: There are no other applications. Right, thank you very much.
92. MS ABIOLA: May I ask, sir, if I can appeal against this, because if it's unlimited how about the case we have under the Family Inheritance Act?
93. MR JUSTICE NEWMAN: I see. So you are making an application to us for permission to appeal?
94. MS ABIOLA: Yes.
95. MR JUSTICE NEWMAN: Then, no, you will have to go elsewhere if you want to appeal.
96. MS ABIOLA: Where can I go?
97. MR JUSTICE NEWMAN: You will have to go to the Court of Appeal to make an application for permission. We refuse permission.
98. MS ABIOLA: I should go to the Court of Appeal?
99. MR JUSTICE NEWMAN: I do not tell you to go to the Court of Appeal, but if you want to appeal you will have to go to the Court of Appeal because we refuse permission.
100. MS ABIOLA: But (inaudible) must be considered. This case is also before the European Court of Justice.
101. MR JUSTICE NEWMAN: We are not concerned with that.
102. MS ABIOLA: How will that affect you?
103. MR JUSTICE NEWMAN: I cannot advise you. We are not concerned with that. This relates to litigation in the courts in this country. If you are asking me does it extend to you bringing proceedings in the European Court of Justice or in the European Court of Human Rights, those are not matters which --
104. MS ABIOLA: The proceeding is already there --
105. MR JUSTICE NEWMAN: Oh, right.
106. MS ABIOLA: -- of this particular litigation.
107. MR JUSTICE NEWMAN: Mr Kellar?
108. MR KELLAR: My Lord, I think the indication you have given, that this order is only limited to this jurisdiction and the Courts of England and Wales, that would be my understanding.
109. MR JUSTICE NEWMAN: Thank you very much. Thank you.
110. The only thing I would say -- and it does concern me, as I know it concerns my Lord, Mr Kellar -- is that obviously the Attorney-General will have to take a position and consider, as I am sure he will, the serious allegations which have been made before this court.
111. MR KELLAR: Yes.
112. MR JUSTICE NEWMAN: In the usual way, as you know, this court, when it hears of matters which give cause for concern, sometimes refers the matter to the Attorney-General. Happily in this case that is obviously not necessary, since he is a party to the litigation and he can obviously make up his mind, wearing another hat as it were, in relation to what should happen to the further investigation of these matters you have raised. But I am bound to say, too, that in the Attorney-General's other capacity as the Head of the Bar, it does seem to me that some thought ought to be given in that direction.
113. MR KELLAR: I am grateful for that indication, my Lord, and the matters --
114. MS ABIOLA: Is that the Kendall Freeman point, sir?
115. MR JUSTICE NEWMAN: Sorry?
116. MS ABIOLA: These are allegations against Kendall Freeman's bribery and corruption?
117. MR JUSTICE NEWMAN: Yes. I do not know about bribery and corruption, but he talked about forgery.
118. MS ABIOLA: That is what the Attorney-General should investigate.
119. MR JUSTICE NEWMAN: I see. I am sure he will investigate everything he thinks is proper, and that I hope he will do.
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