Olusola Akinnoye Agbaje v Sikirat Abeni Akinnoye Agbaje

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Ward,Lord Justice Longmore,Lord Justice Jackson
Judgment Date20 January 2009
Neutral Citation[2009] EWCA Civ 1
Date20 January 2009
Docket NumberCase No: B4/2008/0888

[2009] EWCA Civ 1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE (FAMILY DIVISION)

THE HON. MR JUSTICE COLERIDGE

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Rt Hon. Lord Justice Ward

The Rt Hon. Lord Justice Longmore and

The Rt Hon. Lord Justice Jackson

Case No: B4/2008/0888

FD05F01009

Between:
Olusola Akinnoye Agbaje
Appellant
and
Sikirat Abeni Akinnoye Agbaje
Respondent

Mr Timothy Scott Q.C. and Mr Peter Mitchell (instructed by Tucker Turner Kingsley Wood & Co) for the appellant

Mr Nigel Dyer Q.C. and Miss Eleanor Harris (instructed by Knox & Co) for the respondent

Hearing dates: 8th October 2008

Lord Justice Ward

Introduction

1

Although the Court of Appeal has on several occasions had to consider whether to grant leave to apply for financial relief after an overseas divorce pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”), this is, we are told, the first time that this Court has had to review the substantive order made after such leave has been given. Here the final order was made by Coleridge J on 4th April 2008, the material parts of which provided:

“Upon the applicant agreeing and undertaking to the court to:

A. relinquish forthwith any interest she may have in plot 2 … Tin Can Island … Lagos, Nigeria and, in particular, her life interest in the said property created by order of Nicol-Clay J in the High Court in Lagos, Nigeria on 2nd June 2005; and

B. execute all documents necessary when called upon to do so to effect (i) the termination of her life interest and/or (ii) the transfer of any interest she may have in the said property to the respondent;

It is ordered that:-

1. The respondent shall pay or cause to the be paid to the applicant a lump sum equal to 65% of the gross proceeds of sale of 27 Lytton Road, New Barnet, upon completion of the sale of the said property.

2. Pursuant to the lump sum order at paragraph 1 above, 27 Lytton Road, New Barnet shall be sold forthwith on the open market …

3. The applicant's claims for a periodical payments order and property adjustment order are dismissed.”

Mr Olusola Agbaje, the respondent in the court below, seeks permission to appeal. Although the parties' marriage has been dissolved I shall for convenience, and I do hope without causing offence, call Mr Agbaje “the husband” and Mrs Agbaje “the wife”. Wilson L.J. adjourned that application to be heard on notice with the appeal to follow if the application were granted.

The factual background

2

The husband is 71 years old. He was born in Nigeria. So was the wife. She is 68 years old. The husband came to England in 1961 to read for the Bar – he was called in 1965. The wife also came over here in 1962 to study and work. The parties met in December 1965. They married in London on 6th May 1967 and lived together at various addresses in North London. There were five children of the family, the eldest, born to the wife shortly before she met the husband, and four children of the marriage born in 1967, 1969, 1973 and 1980. In 1972 the parties acquired British citizenship and they now both have dual British and Nigerian nationality.

3

In September 1973 the husband returned to Nigeria to qualify there and to set up his legal practice. The wife and the children joined him in Nigeria in May 1974. They lived and cohabited together at various addresses in Lagos but latterly at Plot 2, Tin Can Island (“Tin Can Island”). In 1975 the two elder children were brought back to England to be educated here and the husband bought in his name a property at 27 Lytton Road, New Barnet (“Lytton Road”), to be a base, “a transit home”, at which to stay whilst visiting the children who had been boarded out with a nanny as so often was the case with prosperous Nigerian families. Apart from a time in 1976/7 when the husband was in London for surgery and for further studies, the parties established their home and their life in Nigeria.

4

They separated in September 1999, the husband moving out of the matrimonial home on Tin Can Island. There was a dispute about the wife's movements thereafter: her case is that she came to England and set up home at Lytton Road; the husband suggests that she did not settle there until 2003. Coleridge J. accepted the wife's version.

5

In 2002 the husband bought in his name another property at 26 Windmill Drive, London NW2, intending it, so he claims, to pass to the youngest child.

The divorce proceedings

6

I set this out in summary and will return to the detail later. It was the husband who first launched divorce proceedings by issuing his petition in the High Court in Lagos in 4th June 2003, claiming to be domiciled in Nigeria. Four months later on 8th December 2003, the wife petitioned for divorce in the Barnet County Court, asserting that she was habitually resident in England and Wales. In February 2004 she filed an answer and cross-petition in the Nigerian proceedings in which she not only defended the claim for divorce but cross-petitioned for a judicial separation on the ground of his adultery. Importantly, so far as this appeal is concerned, she made her claims for ancillary relief seeking a lump sum of ten million naira “as maintenance for [herself] during her lifetime” and she also sought orders that the properties at Tin Can Island and Lytton Road were jointly owned by her and the petitioner and that they be settled on her. The Nigerian divorce proceeded to trial in July 2004 but it was a long and protracted process lasting almost a year.

7

During the course of that hearing the wife applied in Nigeria to stay the proceedings there but her application was heard and dismissed by Nicol-Clay J on 25th October 2004. In November 2004, the husband's application for the dismissal or a stay of the wife's English petition was heard by Ryder J. together with the wife's urgent without notice application for an anti-suit injunction to prevent the husband pursuing the Nigerian proceedings due for further hearing the next week. Ryder J. dismissed the wife's application for that injunction, holding:

“4. There is no evidence that substantial justice cannot be obtained by the wife in the Courts of Nigeria.

9

… I cannot say that there is cogent evidence that England is the natural forum for the decision-making process in relation to these parties' divorce …”

She did not seek to appeal, but, as Munby J. was later to say, and I agree,

“Ryder's reasoning and conclusions are …unassailable. His decision was … virtually inevitable.”

Ryder J. did, however, adjourn the husband's application for a stay apparently at his request. So the Nigerian proceedings went ahead in Lagos.

8

Both parties gave evidence in Lagos and were cross-examined. Eventually on 2nd June 2005 Nicol-Clay J granted the husband a decree nisi of divorce, dismissed the wife's cross-petition for judicial separation, ordered that Tin Can Island worth then about £83,000 be settled on the wife for life and subsequently her children and awarded her the payment of a lump sum of five million naira (worth about £21,000) “as maintenance for life”. Her other claims for ancillary relief were dismissed. The decree of divorce was made absolute on 2nd September 2005. The wife applied for leave to issue these proceedings under Part III but a few weeks later on 28th September 2005.

These proceedings

9

Again I shall summarise what has happened. As was required by the Act and under the rules, the wife applied without notice for leave to issue her application for financial relief after the overseas divorce. Permission was granted by Munby J. on 24th November 2005. He gave a short judgment – very properly, for that was all that was required on the ex parte application – concluding:

“6. It seems to me that the only matter which at the end of the day brings this case potentially within the ambit of the 1984 Act is what on the face of it is the very considerable discrepancy indeed between the aggregate value of what this Court would consider to be the relevant matrimonial assets and the actual economic value to the wife of the provision which was made for her following, I emphasise, a marriage of thirty-two years.

7. I am persuaded by Miss Harris that that very significant discrepancy, and the very modest amount of provision made for this wife following a marriage of that length in relation to a case where there appear to be significant assets, is such that, having regard, as I do, to each of the facts and matters set out in section 16(2) of the Act, there are established, as I am satisfied there are established, substantial grounds for making this application within the meaning of section 13(1).”

10

On 8th February 2006 the wife brought her application. The husband's response to it was, in my opinion, misguided and unfortunate for reasons I shall explain later. He sought to set aside the leave that had been given and voluminous evidence was filed on each side to deal with that application. It was heard by Munby J. and he handed down judgment on 18th December 2006. This time he delivered what Coleridge J. described as “a long and careful judgment” in which “in his usual considered and thorough manner” he “set out the whole scene and background” and “with his customary clarity set out the law”. In essence he confirmed the conclusions he had reached on the ex parte hearing adding that he was satisfied that there were “exceptional circumstances” in the case and that the wife would suffer “hardship – real hardship – if I do not give her leave.”

11

Unfortunately the husband was not as impressed with this judgment as was Coleridge J. He sought...

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