Ikimi v Ikimi

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date13 June 2001
Neutral Citation[2001] EWCA Civ 873
Date13 June 2001
Docket NumberB1/2000/3351 FAFMI

[2001] EWCA Civ 873

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE - FAMILY DIVISION

(MR JUSTICE COLERIDGE)

Royal Courts of Justice

Strand, London WC2A 2LL

Before:

Lord Justice Thorpe

Lord Justice Clarke and

Mr Justice Holland

B1/2000/3351 FAFMI

Tom Omoghegbe Ikimi
Appellant
and
Teresa Omawumi Ikimi
Respondent

TIMOTHY SCOTT QC and Ms A HUDD (instructed by Messrs Le Brasseur J Tickle of London WC2B 5HA) appeared on behalf of the appellant.

R CAMDEN PRATT QC and MISS J O'MALLEY (instructed by Messrs Lee & Pembertons of London SW1X OBX) appeared on behalf of the respondent.

THORPE LJ :

The Facts

1

The appellant husband, Chief Tom Ikimi, is a 56 year old Nigerian. The respondent wife, Teresa Ikimi, is also Nigerian. She is 50. The husband is an architect and politician whilst the wife is a lawyer. They are Roman Catholics and married in November 1977. In July 1978 they set up a second home in London. Initially they rented in desirable residential areas until purchasing a four bedroomed house in Hampstead Garden City in 1982. This is a substantial detached property with a value of about £850,000. It is fully furnished and cared for by a resident housekeeper. There are cars in the garage. All this is available for the use and enjoyment of the family or any of its members when in London. This facility is perhaps of even greater benefit to the children of the marriage. There are four children: Thomas born in 1979, Christopher born in December 1980, Judita born in October 1982 and Benjamin born in October 1986. All the children were born in London and certainly the three elder children have dual nationality. Although the parents decided on primary education in Nigeria the pattern for the boys has been Lambrook followed by the Oratory or Bradfield and St George's Ascot for Judita. Benjamin's years at Lambrook were preceded by two years in a Swiss boarding school. The three older children have all moved on to London University.

2

The pattern of family life has been affected by the turbulence of Nigerian politics. In 1994 the husband was appointed to high political office but between November 1995 and July 1998 the imposition of EU sanctions prevented both the husband and wife from entering this jurisdiction. During that period the children continued their education in this jurisdiction having the use of the family home and the services of the resident housekeeper. It was during this period that the youngest child attended the Swiss school. Also during this period the wife suffered a nervous breakdown for which she received medical treatment in the United States for sometime. Shortly after her return to Nigeria the parties separated and the wife ceased her legal practice.

3

The fall of the military regime in June 1998 led directly to the relaxation of sanctions. The wife immediately obtained a visa from the British High Commission and returned to this jurisdiction on 5 August 1998. This summary of the facts I take from the judgment of Coleridge J which is the subject of the present appeal. In her evidence to the judge the wife described her arrival in August 1998 as settling here. To quote the words of the judge:

"She explained to me, she meant making England the more important of her two homes, explaining, as she did, that she has always regarded herself as having two matrimonial homes: one in this country, and one in Nigeria."

4

On 15 September, after the start of the school term, the wife returned to Nigeria. However she was in London for nearly four weeks covering the school half-term and for the same period covering the Christmas holidays. Between these visits the husband filed a petition for divorce in Nigeria asserting his Nigerian domicile.

5

In the first half of 1999 the wife made only two brief visits to London, neither coinciding with school holidays. Apparently the father stayed with the children at the London home throughout the Easter holiday. During this period an answer and cross petition was filed on the wife's behalf in the Nigerian proceedings. On her behalf it was pleaded:

"The respondent's permanent address and matrimonial home is 27 Festival Road, Victoria island, Lagos and she is also a Lagos based legal practitioner. The respondent is domiciled in Nigeria."

6

However the mother returned to London for the summer school holidays and was here continuously from 2 June until after 14 September 1999. On that last date she filed a petition for dissolution in this jurisdiction pleading that she was 'habitually resident at 25 Vivien Way for 13 1/2 months'. The husband subsequently challenged that jurisdictional basis and by consent an order was made for the trial of a preliminary issue as to jurisdiction. That was the issue tried by Coleridge J on 11/12 October 2000, his reserved judgment being delivered on 16 October.

7

The preliminary issue had been drafted thus:

"The issue to be determined is whether the petitioner was habitually resident in England and Wales throughout the period of one year ending with the date when the proceedings were begun, namely 14 September 1999."

8

At the trial the wife gave oral evidence and the husband did not. No doubt that reflected the happy and unusual fact that, as the judge said, 'there is very little dispute as to the precise facts'. Thus the judge's task, and it was by no means and easy one, was to apply the law to those facts. The statutory provision is clear enough. Section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 provides:

"The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage -

(a) is domiciled in England and Wales on the date

when the proceedings are begun; or

(b) was habitually resident in England and Wales

throughout the period of one year ending with that

date."

9

Furthermore the judge had the assistance of skilful submissions from Mr Scott QC for the husband and Mr Camden Pratt QC for the wife. However the difficulty of the judicial task stems from the unusual facts of the case and a wealth of authority on similar or identical statutory language in other fields of litigation including bankruptcy, tax, immigration and state benefits. The judge reviewed the principal authorities in these fields with care and particularly considered whether an individual might be habitually resident in two jurisdictions at the same time. On that issue he concluded:

". in relation to this particular statute, if an individual has two habitual residences, he occupies them concurrently providing he spends at least sometime in each, but otherwise regardless of the precise time he spends in each during the relevant period."

10

Having recorded the rival submissions he answered the preliminary question in the affirmative explaining himself as follows:

"I have already dealt with the matter of law relating to dual residences: as I have indicated, in my judgment, habitual residence is a state of affairs which exists regardless of the precise time spent in the particular country. In my judgment, reviewing all the facts of this case and the history of this family, the quality of the wife's presence here amounts unquestionably to residence. Furthermore, the family's life, and in particular the wife's life, in relation to her visits to this country and her occupation of 25 Vivien Way, is such that it can be properly described as 'habitual'. Taking all the matters together, therefore, I have no hesitation in saying that I find the wife was, as a matter of fact, habitually resident here throughout the relevant year. It is not necessary for me to find that she was also resident in Nigeria at the same time. However, if it was necessary for me to do so, I would have made a finding that, according to the English legal tests, the wife was, probably, resident in Nigeria as well.

Accordingly, I find the wife was habitually resident throughout the period of one year immediately preceding the presentation of this petition, and the court therefore has jurisdiction to hear it. Whether it is appropriate for this case ultimately to proceed in this jurisdiction is, of course, another matter. But that is for another day."

11

Coleridge J refused Mr Scott's application for permission to appeal which I subsequently granted on the papers. Mr Scott advanced three grounds in support of his appeal as follows:

i) The periods of time spent by the wife in England during the relevant year (agreed to amount to 161 days or 44%) cannot be characterised as residence, let alone habitual residence.

ii) As a matter of construction of section 5(2) is not possible for a person to be habitually resident in two places simultaneously, although in rare cases it is possible for a person to be habitually resident in two homes on an alternating basis.

iii) Section 5(2) with its requirement of habitual residence throughout the relevant year demands a continuity of residence subject only to temporary absences. This demand will not be satisfied by someone who has also been habitually resident outside the jurisdiction during the relevant year whether on an alternating or (if this is possible) a simultaneous basis.

12

Mr Camden Pratt argues forcefully that simultaneous habitual residence in more than one jurisdiction is possible on the authorities. He submits that the essential issue for the judge was one of objective fact. On that issue he reached a clear conclusion without any misdirection and it was accordingly not open to this court to interfere.

The Law

13

Before attempting any evaluation of Mr Scott's submissions I think it is necessary to briefly outline the development of...

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