Mary Grace Ibuna Bernardina Arroyo Tantoco v Ms Alicia Arroyo Dignity Funerals Ltd (T/a Jh Kenyon)
| Jurisdiction | England & Wales |
| Judge | Peter Smith J,THE HONOURABLE MR JUSTICE PETER SMITH |
| Judgment Date | 02 March 2012 |
| Neutral Citation | [2012] EWHC 428 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC12C00514 |
| Date | 02 March 2012 |
[2012] EWHC 428 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Peter Smith
Case No: HC12C00514
Philippa Daniels (instructed by TWM Solicitors) for the Claimants
Tristan Jones (instructed by DLA Piper) for the Second Defendant
Hearing dates: 20 th February 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This judgment arises out of a 1 day action I heard on 20 th February 2012. The action concerns the competing claims as to the right to take possession of the body of Ignacio Arroyo ("Congressman Arroyo") to enable it to be buried. Congressman Arroyo was a congressman of the Negros Occidental Province of the Philippines.
He was resident in both the Philippines and California. He was domiciled in the Philippines.
He had been seriously ill and in October 2011 (accompanied by his partner the First Claimant Grace Ibuna ("Ms Ibuna")) attended the UK for treatment for liver problems. He had apparently been attending the UK for treatment since 2006. However his condition deteriorated drastically in January 2012 and he died at the London Clinic 20 Devonshire Place London W1G 6BW on 26 th January 2012.
After 2 interim applications before me on 3 rd and 10 th February respectively I directed the action be listed for 20 th February 2012 with directions to accommodate that and continued an injunction which I first granted on 3 rd February 2012 against the Defendants (as set out below).
At the conclusion of the hearing I indicated that I would accede to the Claimants' application and grant them limited Letters of Administration to take possession of the body of Congressman Arroyo to enable it to be transported to the Philippines and be buried in accordance with the wishes expressed by him as set out in the evidence. I indicated that I would give reasons subsequently and I set out those reasons in this judgment. Due to the urgency of the matter I did not feel it appropriate to delay the result pending delivery of this judgment.
THE PARTIES
Ms Ibuna the First Claimant was the partner of the deceased. They were not married but on her evidence she first met Congressman Arroyo in 2002, started a relationship in 2006 and lived together thereafter until his death.
The Second Claimant is one of the daughters of Congressman Arroyo's first wife Marlene Jacinto. His other daughter (Bianca Marie Arroyo ("Bianca")) gave evidence before me in addition to Ms Ibuna. The Second Claimant Bernardina Arroyo Tantoco ("Bernardina") gave evidence via video link.
Congressman Arroyo's first marriage was apparently annulled although there might be a dispute about that under Philippine law. I will say nothing about that because it is not for consideration by me.
Believing his first marriage was annulled he married the First Defendant Alicia Rita Morales Arroyo. Bernardina lives in the Philippines Bianca lives in the United States. Congressman Arroyo married Mrs Arroyo (the First Defendant) sometime in the early 1990's I believe.
He separated from her in 2005 and has not lived with her since. He commenced annulment proceedings in the Philippines in 2006 but by the time of his death they had not been determined.
The expert who gave evidence before me as to Philippine law Ed Vincent Albano stated that according to Philippine law the annulment proceedings abated with the death of Congressman Arroyo. Therefore it follows that Mrs Arroyo (assuming the doubts over the annulment of the first marriage are decided in her favour) is the widow of Congressman Arroyo.
ORIGINS OF DISPUTE
After Congressman Arroyo died Ms Ibuna registered his death and obtained a copy of his death certificate. She was able to do this because Congressman Arroyo had nominated her as his next of kin at the London Clinic describing her as his partner.
After she had registered his death the body was sent to the Second Defendants at their premises 49 Marloes Road Kensington London W8 6LA. They are funeral undertakers. They were provided with the death certificate, original passport and diplomatic passport of Congressman Arroyo. They were put in funds by Ms Ibuna for the purposes of embalming. They subsequently applied for a certificate of repatriation at the Philippine Embassy in London. Ms Ibuna provided them with a name of a consignee (Arlington Funeral Homes) in the Philippines.
Subsequent to that however the Philippine Embassy contacted Ms Ibuna and insisted that the consignee was instead to be the Loyola Funeral Homes. The Embassy refused to tell Ms Ibuna why it was changed.
INTERVENTION BY MRS ARROYO
Mrs Arroyo arrived in the United Kingdom on 1 st February 2012 to claim the remains of Congressman Arroyo and to bring them back to the Philippines herself. Prior to her arrival she had issued various statements to the press in the Philippines that it was her intention to take custody of Congressman Arroyo's remains and accompany them on a flight to the Philippines.
Thus a dispute ensued. On 2 nd February 2012 Mrs Arroyo's Filipino Solicitors wrote to the Second Defendants setting out her position. That letter asserted that under Philippine law as the legal wife and next of kin she had the duty and right to make funeral arrangements. The letter continued that Ms Ibuna was not Congressman Arroyo's legal wife (which is correct), that she was not authorised to give instructions nor to make any repatriation arrangements and that under Philippine law her acts constituted falsification, false representation and abuse of civil status. It was also stated that her giving of instructions to cut the life support of Congressman Arroyo (this was not debated before me) constituted a criminal offence. The letter went on to assert that the Second Defendants would become parties to Ms Ibuna's alleged criminal and civil wrongs and would thus be liable as well.
The Second Defendants were thus innocently caught up in a dispute between Ms Ibuna and Mrs Arroyo as to the right to possession of the body of Congressman Arroyo.
PREVIOUS APPLICATIONS
In view of the threatened actions of Mrs Arroyo Ms Ibuna applied ex parte before me in the Interims Court on 3 rd February 2012. On that day I granted an ex parte injunction restraining the Second Defendant from disposing of Congressman Arroyo's body and from delivering the same up to any person. I granted permission to serve Mrs Arroyo with a copy of the order via her solicitors in the Philippines who had written to the Second Defendants.
The return date for that injunction was 10 th February 2012 when I gave directions for a trial.
Mrs Arroyo was aware of the proceedings from the start but deliberately chose not to participate in them. Instead she issued her own proceedings in the Philippines Regional Trial Court in Quezon City on 13 th February 2012. Several hearings have taken place in those proceedings. By the proceedings she seeks against the various Respondents (including Ms Ibuna) mandatory relief requiring them to hand over the remains of Congressman Arroyo to Mrs Arroyo. Although evidence has been taken that Court has not yet delivered any judgment.
REASON FOR THE DISPUTE
I refer to Ms Ibuna's witness statement dated 17 th February 2012 where she sets out what she proposes to do with the remains of Congressman Arroyo. As a Congressman it is a tradition and accepted practice in the Philippines that his body would lie in state in Congress so everybody who wanted to would pay their last respects. Thereafter his body would be driven in a funeral cortege through the capital of Negros Occidental and would lie in state at Binal Bagan Negros Occidental and would be taken to 14 Badjao Street, La Vista Sub Division, Quezon for the wake followed by a funeral service at the Santa Maria Della Strada which is in walking distance. The significance of the address 14 Badjao Street is that it is the Congressman's family home. He told his daughter on several occasions that he wished to be buried in the family mausoleum in the North Cemetery in Manila where his mother is buried. He also stated his wish to have his wake in the ancestral family home at 14 Badjao Street where his grandparents' wakes were held. He told her on a number of occasions that he wished Ms Ibuna to make the funeral arrangements but that there was no change to his wishes as set out above.
By contrast Mrs Arroyo (who has been estranged from Congressman Arroyo since 2006) has had no contact with him at all. It is apparently Mrs Arroyo's desire to hold the wake at her home 17 Badjao Street where she lived with Congressman Arroyo. This is somewhat surprising because she had obtained orders excluding him from that property. According to the evidence of Bernardina she believes that Mrs Arroyo will not allow Ms Ibuna to attend the wake whereas Ms Ibuna is quite willing to allow Mrs Arroyo to attend the wake.
This essentially is the difference between the two camps but of course it is a significant difference.
TESTAMENTARY DISPOSITIONS
Congressman Arroyo made a will in California on 27 th March 2009. I understand from the Claimants' evidence that the will is valid according to Californian law. By that will he first directed his executor to pay his just debts, last illness and burial expenses. He declared that he was a single person and that he had 3 children living namely, Bernardina, Bianca and Alicia Lourdes Arroyo the daughter of the First Defendant. He gave the...
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