Outer House sists international divorce case pending outcome of Nigerian appeal proceedings

About this case:

• Citation:
  [2026] CSOH 23
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Tait

Tamkara Irimagha (or Adun) raised an action in Scotland for divorce against her husband David Adun, whom she married in Nigeria in July 2005, with the defender shortly afterwards filing for divorce in the High Court of Delta State, Nigeria. The defender sought a discretionary sist of the action in terms of the Domicile and Matrimonial Proceedings Act 1973 on the basis that the Nigerian proceedings ought to be resolved first, there being no connection between the marriage and Scotland.

The case was heard in the Outer House of the Court of Session by Lady Tait, with Aitken, advocate, appearing for the pursuer and Bradbury, advocate, for the defender.

Attempting to forum shop

The pursuer was born in Nigeria but renounced her citizenship to claim Dutch citizenship in 2019, while the defender maintained his Nigerian domicile. The parties had two children, both over the age of 16 and both born in Nigeria. From 1 April 2024 to December 2025, the defender was based in Aberdeen for his employment on a temporary basis, but he returned to Nigeria in January 2026. The matrimonial property was held in Nigeria, the Netherlands, and the Middle East, and neither party purchased property in Scotland nor invested in other UK assets.

It was admitted by the defender that the Scottish courts had jurisdiction based on his habitual residence in Scotland for 1 year immediately preceding the raising of the action, however he maintained that the balance of fairness meant the Nigerian proceedings should be allowed to progress before further steps were taken in Scotland. The pursuer challenged the jurisdiction of the Nigerian court in respect that there had been an abuse of process through multiplicity of suits, and on 13 January 2026 the Nigerian court struck out the defender’s case due to his failure to disclose the Scottish action. An appeal was submitted in respect of that decision, which had yet to be determined at the time the motion to sist was heard.

Counsel for the defender submitted that the pursuer’s argument against jurisdiction in Nigeria was weak. The initial non-disclosure of the Scottish proceedings had been cured by the filing of a supplementary affidavit. The pursuer had no connection to Scotland as she remained living and working in The Hague and had no greater right of residency than a visitor visa. It was more like that the pursuer was attempting to “forum shop” and had failed to explain why she chose Scotland over the Netherlands. She had engaged Nigerian counsel, could afford to litigate in Nigeria, and could not establish why she would be denied substantial justice.

For the pursuer it was submitted that, until recently, neither party had lived in Nigeria since 2013. The defender’s decision to return to Nigeria with their son post-dated the raising of the present action and was done deliberately to frustrate the jurisdiction of the Scottish courts. In any event, whichever court dealt with matters would have to contend with valuation and division of international assets.

An arguable case

In her decision, Lady Tait began by observing: “Ultimately, the pursuer’s counsel opposes the motion to sist on two principal grounds: (i) the uncertainty around jurisdiction being founded in Nigeria; and (ii) the pursuer’s ability to participate in proceedings in Nigeria. Notwithstanding the terms of the pursuer’s affidavit claiming deficiencies in a patriarchal Nigerian legal system, her counsel does not suggest that the regime for divorce and financial provision in Nigeria would result 26 in demonstrable substantial injustice. In line with comity, due deference must be given to the Nigerian system.”

She added: “The defender’s divorce action in Nigeria has been struck out on the pursuer’s challenge. The challenge was not on the basis that Nigeria lacks fundamental jurisdiction anent the defender’s domicile. It was on the basis of a failure by the defender to declare the present Scottish proceedings and multiplicity of suits. There is an ancillary challenge in relation to service. The defender has appealed the decision to strike out and appeal proceedings are outstanding. The experts’ opinions indicate that there is an arguable case.”

Considering whether waiting for the outcome of the appeal would interfere with substantial justice, Lady Tait said: “While there will inevitably be international cross-border evidence wherever the divorce proceeds, certain of the assets and witnesses will be in Nigeria and certain orders will fall to be enforced in Nigeria. The available evidence is that the pursuer has a Nigerian residency permit and can return to Nigeria. If she chooses not to, the expert evidence speaks of a developed procedure to allow for remote participation and access to justice. Similarly, both experts speak to a system which applies a principle of equitable fairness in financial provision, exercising discretion in determining what is fair and just in the circumstances of each case.”

She concluded: “The pursuer’s objections to the Nigerian system are unfounded in evidence. I am not satisfied that she faces a real risk of substantial injustice. I am not satisfied that there are circumstances by reason of which justice requires that Nigeria should not be the forum. Accordingly, the balance of fairness (including convenience) is such that it is appropriate for the Nigerian proceedings to be disposed of before further steps are taken in this action.”

The court therefore granted the defender’s motion for a discretionary sist.