21 March 2017Print This Post

High Court overturns security for costs order against chief’s son

Nigeria: evidence did not show claimant had moved back

The High Court has allowed an appeal by a son of a Nigerian chief against a security for costs order made against him.

Mr Justice Newey overturned a recorder’s ruling that Clifford Chuku, one of the 37 children of Chief Friday Chuku, did not live in this jurisdiction and could be treated as a “nominal claimant”.

Under CPR 25.13, the court can make orders for security for costs where it is satisfied that it is just to do so and a claimant is resident out of the jurisdiction or acting as a nominal claimant.

Newey J said Clifford Chuku was born in London, educated in Nigeria where he practised law as a solicitor and barrister, and from 2013 lived in Sunderland, returning to London two years later.

“Clifford stressed that he is a British citizen,” Newey J said. “He also explained without contradiction that he had told the recorder at the hearing that he had voted that morning in the Greater London Authority elections and that gas and electricity were supplied on a pay-as-you-go basis, making it impossible for him to provide documentation evidencing payments for them.

“He noted, too, that he had attended all the court hearings, which, of course, were in this country.”

Newey J said that while there can “certainly be said to have been unanswered questions about Clifford’s work and means, they do not strike me as having led inexorably to the conclusion that he had moved back to Nigeria”.

The court heard in Chuku v Chuku [2017] EWHC 541 (Ch) that Chief Friday died in 2000, designating Clifford and six of his other children, each of whom had a different mother, as heads of the family.

In December 2013, the executors executed a power of attorney appointing Clifford as their attorney and agent over a property in Balham, south London. The following year Clifford was registered as proprietor, as his father’s administrator.

However, when he issued a claim for possession, Owen Chuku, one of his brothers, served a defence and counterclaim, denying that Clifford had “any interest” in the property.

Mr Recorder Kent QC, sitting at Central London County Court, ruled that Clifford was both resident out of the jurisdiction and a “nominal claimant”, and ordered him to provide £90,000 in security for costs or his claim would be struck out.

Newey J said that a person “with a significant interest in the outcome of a claim” would “rarely, if ever” be regarded as a nominal claimant with CPR 25.13(2)(f).

The judge said that a personal interest was not essential, and the executor of an estate would not ordinarily be a nominal claimant, regardless of whether he was a beneficiary.

In this case, he said Clifford had a “real role and interest in the present proceedings” as executor’s agent and administrator of his father’s estate.

Newey J said that even if he had not held that Clifford was resident in the jurisdiction and not a nominal claimant, he would have overturned the costs order on the grounds of Owen Chuku’s counterclaim.

The judge said the claim and counterclaim raised “very much the same issues” and that if Clifford’s claim was struck out, the counterclaim would still “fall to be fought out”.

By Nick Hilborne


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