Moses-Taiga v Taiga
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE DYSON |
| Judgment Date | 05 July 2005 |
| Neutral Citation | [2005] EWCA Civ 1013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2004/0628 |
| Date | 05 July 2005 |
[2005] EWCA Civ 1013
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
(MR JUSTICE SINGER AND MR JUSTICE BENNETT)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Dyson
B4/2004/0628
B4/2004/0871
MR A ADEREMI (instructed by Messrs Osibanjo Ete & Co) appeared on behalf of the Appellant
MR TIM SCOTT QC (instructed by Divorce & Family Law Practice) appeared on behalf of the Respondent
( Approved by the Court)
On 19 February 2003 Nneka Mercy Moses-Taiga filed a petition here and in London for the dissolution of her marriage to Moses Taiga. She pleaded a customary marriage in Nigeria on 22 December 1993 and she pleaded jurisdiction on the grounds of habitual residence. She founded her petition on the ground that the irretrievable breakdown was demonstrated by conduct on the part of the husband with which she could not reasonably be expected to live. She prayed for all forms of relief, including residence order in respect of the twin children of the marriage and, as one would expect, all forms of ancillary relief, including a property adjustment order in relation to a string of properties in Greater London.
The answer settled by leading and junior counsel instructed by Withers put everything in issue. The marriage was denied; the court's jurisdiction was denied; the conduct asserted in the petition was denied. That answer was filed on 6 May and Mr Timothy Scott QC, who appears for the respondent, today informs us that he filed and settled a reply so that the pleadings were closed prior to the first listing on notice, which seems to have been a listing before Mr Anelay QC sitting as a Deputy High Court Judge on 13 June 2003.
There had been prior to that a hearing of an application without notice for a freezing order in relation to the husband's extensive assets both in this jurisdiction and worldwide. Of even greater importance there had been a hearing before District Judge Black in the Principal Registry on 20 May 2003. On the basis of an undertaking from the wife the district judge ordered interim maintenance pending suit at the rate of £300,000 per annum from the date of the wife's application, namely 28 April 2003. The monthly payments of £25,000 were to be divided as to £10,000 to the wife for her living expenses and £15,000 per month to her solicitors to cover their running costs of the proceedings in this jurisdiction. The district judge finally provided that her interim order was to be reconsidered by a judge of the division on a date to be fixed.
The undertaking that preceded the order is in curious language:
"… upon the Petitioner undertaking to the court to abide by any order that the court may make in respect of that part of the Order for maintenance pending suit provided by paragraph 1(b) of the Order below."
As my Lord has observed during the course of argument, that undertaking is almost incomprehensible. If the court has jurisdiction to make a later order in respect of paragraph 1 of the order below, an undertaking by the petitioner to abide by it seems completely pointless. And if the court lacks the power to make a subsequent order, then it is hard to see what value the undertaking would have to the husband. Mr Scott, who did not appear at that stage, has advanced two theories as to what the drafters of that undertaking were seeking to achieve, but neither of those theories is in itself particularly plausible or convincing. So to my mind I can see not a lot of point or purpose of the inclusion of the undertaking in the order, and certainly it seems to me of scant value to the husband whose interests it was presumably intended to safeguard.
Before Mr Anelay the husband sought to vary or discharge the freezing order that had been made without notice, and the wife sought directions in the suit which, as I have already observed, was at the stage of completed proceedings. The order made by Mr Anelay was to have a very significant influence on subsequent events. Mr Scott (who did appear at that hearing) argued that all the issues before the court, (namely whether there was a valid marriage; whether or not the court had jurisdiction; if it did whether it should defer to Nigeria; if it did not whether the wife had made out her conduct case) should be decided at one single trial.
Mr Singleton QC who had settled the answer made a conventional submission that the husband was entitled to the trial of a preliminary issue, certainly on the challenge to jurisdiction. Mr Scott's submission succeeded and the resultant direction made by Mr Anelay was:
"The trial of the divorce suit, including any jurisdictional and other issues ancillary thereto, and also including the Respondent's application for a stay of the suit, be set down for hearing forthwith on the first open date after 1st January 2004, subject to counsels' availability. Time estimate 10 days. Such date to be fixed by counsels' clerks in consultation with the Clerk of the Rules."
The foreseeable consequence of that direction was that the order of the district judge for maintenance pending suit would subsist for more than a year, given that the application to the Clerk of the Rules was for a ten-day fixture subject to counsel's availability.
The fixture which was in fact obtained was a fixture to commence before Bennet J on 14 June 2004. It is not uncommon nowadays for parties to have to wait for up to a year to obtain a ten-day fixture in the Family Division and the risk of that is much compounded if the fixture is subject to counsels' availability.
The direction made by the district judge for a review of her interim order by a judge of the Division led to a hearing before Singer J on 4 December 2003.
Before I come to that hearing I record the fact that the husband changed his legal team to Messrs Osibanjo (taking over from Withers) in October 2003 and instructed fresh counsel, who raised a fresh and further objection to the wife's progress to relief in London. He took a point as to the status of marriage that was founded upon provisions of Nigerian law. So he made a further application to the Family Division for a review of Mr Anelay's order. That came before Hughes J who understandably, given he was sitting in November 2003, determined that the arrangements directed by Mr Anelay should stand.
Thus when the issue came before Singer J his review was important because whatever he decided was likely to endure for at least a further six months. He dismissed the husband's application to discharge the maintenance pending suit order, alternatively to reduce it to a minimal amount, and he granted the petitioner's application for upward variation. The increase was substantial—from £25,000 per month to £39,000 per month. That was divided as to £14,000 to the wife for her living expenses and £25,000 to her solicitors to cover their mounting litigation costs. Singer J founded these increases on two considerations. The first is that the interim disclosure applications sought by the wife had uncovered funds held under sophisticated arrangements and apparently worth about £7 million or US $7 million. The judge was also impressed by the mounting scale of the litigation and thus the mounting need of the wife's solicitors were they to be properly funded, and by that I mean able to present the wife's case without having to give her credit.
The case returned to Singer J on 5 March 2004 essentially on an application by the wife for him to consider arrears that had developed since his prior adjudication. In the interim the husband had continued to meet the order of the district judge but not the uplift ordered by Singer J. Accordingly there were by 5 March substantial arrears, and Singer J ordered them to be paid within 14 days and further ordered the husband to pay a sum of £350,000 to cover future payments, that money to be put into court within a certain time and if not, outstanding applications from the husband to stand dismissed.
That brought several notices of appeal challenging the money orders and also a later order made by Bennett J debarring the husband unless he met specific provisions. I must briefly refer to the grounds of appeal of Osibanjo & Co, dated 19 March 2004. Paragraph 1 of the grounds states that the order of 4 December 2003 was wrong in law and made in breach of Article 1 of the First Protocol to the European Convention on Human Rights, in that: (i) where the appellant's case is that he is not married to the respondent, the court lacks jurisdiction to entertain the respondent's permission: (ii) he is not the father of the children in respect of whom the quantum of the maintenance pending suit was affected: (iii) that England is not the appropriate forum for dealing with the issues: any payment of maintenance pending suit will not be recoverable if the appellant's case succeeds: and (iv) the court made the orders without ensuring that the respondent's undertaking to return the maintenance pending suit, in the event that it became recoverable, was fortified.
Paragraph 3 of the grounds states:
"In principle, the amount ordered for the Respondent's legal costs are manifestly excessive when at the moment the issue before the courts are as follows:
i. The validity of the marriage
ii. Jurisdiction of the court
iii.Stay of proceedings
iv. Paternity of the children."
When the case came before this court on 14 June, the very date that it should have been before Bennett J to...
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