Akinnoye-Agbaje v Akinnoye-Agbaje
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Wilson |
| Judgment Date | 15 June 2007 |
| Neutral Citation | [2007] EWCA Civ 681 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2007/0727 |
| Date | 15 June 2007 |
[2007] EWCA Civ 681
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE MUNBY)
(LOWER COURT No. FD05F01009)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Wall and
Lord Justice Wilson
Case No: B4/2007/0727
MR T SCOTT QC (instructed by Messrs Tucker Turner Kingsley Wood & Co) appeared on behalf of the Applicant “husband”.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
For Mr Olusola Akinnoye-Agbaje (“the husband”), Mr Timothy Scott QC renews an application for permission to appeal against an order made by Munby J in proceedings under Part III of the Matrimonial Proceedings and Property Act 1984. Permission to appeal was refused by Thorpe LJ on the papers on 14 May 2007, but he directed that in the event of a subsequent renewal of the application it should be heard by two Lords Justices. The renewed application has plainly been brought into the list promptly, because there is a hearing for ancillary relief under the judge's order due to be heard in July.
I find the essential procedural background to this case somewhat troubling in English terms. It was as long ago as 28 September 2005 that Mrs Sikirat Abeni Akinnoye-Agbaje (“the wife”) made her application for leave to apply to the court for financial relief under Part III of the 1984 Act. In accordance with the procedure laid down under the rules, that application was initially heard by Munby J without notice to the husband on 24 November 2005. We have in our papers the judgment the judge gave on that occasion and indeed the argument addressed to him. He granted leave and the wife duly issued her application claiming ancillary relief on 8 February 2006. Unsurprisingly on 27 April 2006 the husband applied to set aside the judge's order granting leave and that application was not heard by the judge until 17 November 2006 when he reserved judgment, a judgment which he handed down on 18 December.
However, that judgment did not deal with the question of costs, although it refused the husband's application to set aside the grant of leave and of course it is against that refusal which the husband now seeks permission to appeal. The additional delay appears to have been because the judge in December invited counsel to draw up an order reflecting his decision and, as I said a moment ago, did not deal with the question of costs. He gave a separate judgment on costs on 16 March and this is the date which the judge's order bears. The appellant's notice was filed on 11 April but no point arises on that because the judge had extended the time in which the husband was given to file his appellant's notice.
These parties were formerly husband and wife and the essential case advanced by the husband on the application is that the parties' financial affairs post-separation have been the subject of a full and extensive hearing in the High Court of Nigeria, which is the country from which both parties originate and of which they remain citizens, although they are also subjects of the United Kingdom. Mr Scott argues therefore that leave should be set aside because what the wife is essentially trying to do, in the trite but nonetheless accurate phrase, is to have “a second bite of the cherry”. That, says Mr Scott, is not the purpose of Part III of the 1984 Act and the court should not accordingly permit her to do so.
The judge did not agree, nor did Thorpe LJ. It is therefore necessary in the light of Mr Scott's renewed application to re-examine the background but I can do so relatively briefly because Mr Scott in my view properly accepts that the judge analysed the law correctly. Mr Scott's complaint is that it is his application of the law to the particular facts of this case which has led him astray and led him to make an order which Mr Scott submits is plainly wrong or, at the lowest, arguably plainly wrong. Mr Scott thus asserts that an appeal would have a reasonable prospect of success and he further asserts a point, which he has elaborated in argument this morning, that there is a further compelling reason why this court should entertain the appeal: it is because Munby J gave permission for his judgment to be reported and Mr Scott submits that if that is so, the judgment is likely both to become a precedent and to add additional weight to the argument advanced in some quarters (a point Mr Scott makes in his supplementary note) that England and Wales have become in his phrase, “the divorce capital of the world”. That factor, he says, “gives additional urgency to the appeal” and is a further reason why we should permit the appeal to proceed.
Mr Scott has produced a lengthy, and if I may say so, highly scholarly skeleton argument supplemented by a further note which followed Thorpe LJ's refusal of permission. I can I think therefore go to the judgment of the judge although I will be relatively brief, as I say, in my summary of the background. What stands out from the facts in this case is that these parties are not in the first flush of youth. The husband is now 70 and the wife I think 65. The husband was born in 1937, the wife in 1941. In paragraph 4 of his judgment the judge begins his summary of the background by recording that they were married in England, where they had met as students, but returned to Nigeria in 1973 after both having been granted British citizenship. His finding was, however, that they had kept up the connection with this country, owning property in London in which the wife is now living, and returning to England from time to time during the course of the marriage. There are four adult children of the marriage born respectively in 1967, 1969, 1973 and 1980. The separation was in 1999 and so on any view this was a marriage in excess of 30 years' duration. The husband is a professional man. He is a barrister in Nigeria. The wife, who is living in England, describes herself as retired, although taking certain occasional work as a carer at a modest hourly rate. The judge then identified the property which existed both in England and in Nigeria, and of particular relevance to this case are two properties in or near London; one in North London and one in Barnet, where the wife currently resides. Those properties are both in the husband's name and they were subject to an application in the Nigerian proceedings to which I shall come in just a moment.
The position was that after...
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