Elizabeth Gyempeh v Lawrence Gyempeh
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE LEGGATT |
| Judgment Date | 11 November 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J1111-4 |
| Docket Number | No. 93/6062/F |
| Date | 11 November 1993 |
| Court | Court of Appeal (Civil Division) |
[1993] EWCA Civ J1111-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: BRENTFORD COUNTY COURT
From: His Honour Judge M. Edwards
Before: Lord Justice Russell and Lord Justice Leggatt
No. 93/6062/F
MRS. J. HORNE-ROBERTS (instructed by McHale & Co., 42 Bow Lane, Cheapside, London EC4) appeared on behalf of the Applicant.
MRS. C. WILBOURNE (instructed by Lambert Hale-Proctor, 56 Uxbridge Road, Shepherds Bush, London W12) appeared on behalf of the Respondent.
[ ]
I will ask Lord Justice Leggatt to give the first judgment.
Before the court is an application by the Applicant, who has hitherto appeared in person but who now has the benefit of representation by Mrs. Caroline Wilbourne, for leave to appeal against an order of Judge Marcus Edwards made at the Brentford County Court on 1st April 1992 when the judge dismissed the Defendant's appeal against the order of Deputy District Judge Bax in ancillary relief proceedings made on 16th December 1991. She had ordered in particular that the house which had been the matrimonial home should be transferred into the sole name of the petitioner, the wife.
The matrimonial home was at 13 Weavers Terrace, Micklethwaite Road, Fulham. It was bought in 1992 by means of a co-ownership scheme with the local authority. On 8th November 1988, having left the matrimonial home in February 1988, the husband applied within the divorce proceedings for a lump sum order and a property adjustment order in respect of the matrimonial home. It has always been his case that the matrimonial home should be sold and the net proceeds of sale divided between the parties. When the matter came before Deputy District Judge Bax she found that the wife had made substantial contributions to the family income in excess of those made by her husband and had borne the expenses of running a house as well as looking after the family for the past four years. She took account of the wife's continuing obligation to look after the two children of the family and provide them with a home. In the light of her findings, she decided that the appropriate order was the one I have already indicated, although, by way of compensation for the loss of capital which he would incur, she remitted the outstanding arrears of maintenance owed by the husband and ordered him to pay maintenance for each of the two children at a materially lower rate than she otherwise would have done.
The husband appealed against that order and the matter came in due course before Judge Edwards on 1st April 1992.
This court has the benefit of a careful and comprehensive note of the judge's judgment, compiled by the wife's counsel, Mrs. Horne-Roberts, who appears for her in this court. That note shows that the judge recited the grounds of appeal as including the submission that the deputy district judge did not take sufficient account, if any, of the contribution to the petitioner's cohabitee from March 1988 to March 1991. It would seem that that was an error in the grounds of appeal for attribution by the petitioner's cohabitee. The grounds included also the submission that the deputy district judge did not take sufficient account of the Respondent's own housing situation and the fact that the matrimonial home was the only capital asset of the parties.
It was also said by the grounds of appeal that the deputy district judge did not give sufficient account to the loan raised by the Respondent towards the payment of bills before he left the property on 15th February 1981.
Judge Edwards also referred to the two other points taken by the Respondent, namely that the delay was excessive and that he should be allowed to call the two children as witnesses of the fact that their mother had been cohabiting with another man between 1988 and 1991. The judge then said, according to Mrs. Horne-Roberts' note (which was approved by the judge]:
"Those matters and the new matters referred to in the Notice of Appeal and otherwise were dealt with, or could have been dealt with, by District Judge Bax on making her decision."
The judge then said these important words:
"Jurisdiction on this appeal is akin to that of an appeal from a circuit judge to the Court of Appeal. That being the case the Respondent must show that
(a) the district judge made an order no reasonable judge could have made
and/or
(b) fresh evidence has come to light which was not available at the trial or could not reasonably have be made available at the trial before District Judge Bax.
The judge, having taken Mr. Gyempeh carefully through the points in his...
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