Otobo v Otobo
| Jurisdiction | England & Wales |
| Judgment Date | 02 July 2002 |
| Neutral Citation | [2002] EWCA Civ 949 |
| Docket Number | B1/2001/1038 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 July 2002 |
[2002] EWCA Civ 949
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 JOHNSON)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Dame Elizabeth Butler-Sloss DBE
President of the Family Division
Lord Justice Thorpe and
Lord Justice Buxton
B1/2001/1038
AUGUSTUS ULLSTEIN QC (instructed by Messrs Clintons of London WC2B 5RZ) appeared for the appellant.
ROBERT SEABROOK QC and NEIL SANDERS (instructed by Messrs Collyer-Bristow of London WC1R 4DF) appeared for the respondent.
THORPE LJ:
In this appeal the appellant wife is her late fifties and the husband in his mid-sixties. They belong to a privileged Nigerian family. The husband is a chief and the wife is the daughter of a chief. They met in 1964 when the husband was completing his training in engineering. They married on 24 July 1965 at the Roman Catholic Cathedral in Benin. Five children followed, the first born in 1966 and the youngest, a daughter, on 9 October 1985. The husband has had a very successful career, mainly in government service. At the date of his retirement in September 1993 he was permanent secretary in the Federal Ministry of Petroleum and Mineral Resources. Thereafter he has established his own engineering practice. He is obviously financially astute and over the years has built up a substantial fortune. The extent of that is in issue but it is not disputed that he owns a number of properties in London worth several million pounds and has cash in various bank accounts outside Nigeria worth just over £1.5M.
The husband's success enabled him to ensure that all his children completed their education in England and that there was always a London home to support that plan. The youngest child commenced her education in England at the age of ten. She is now a boarder at a well-known girl's school and is in the midst of her GCSEs. The current London family home in Hampstead was purchased in 1992 and is said to be worth about £3M.
However this was not the husband's only family. According to his pleaded case he formed relationships 'customary under Nigerian customary law' with Adenike, by whom he had two children in the 1970s and Augustina who has borne him four children between 1988 and 1997. Only the union with Augustina is said to be a valid marriage under Nigerian customary law. However that may be, it seems that the husband's relationship with Adenike terminated over twenty years ago, although he apparently still maintains her. By contrast it seems that Augustina has emerged over the last few years as the husband's principal cohabitant. She shares with him what was the wife's matrimonial home in Lagos. The husband maintains an alternative family home for her in London. The wife asserts that since the final separation in March 1997 the husband has endeavoured to move her out of Winnington Road to make way for Augustina and her children. However the registration of a charge has secured the wife's continuing exclusive occupation of Winnington Road.
Whilst it is common ground that the final separation between the parties occurred in March 1997, their recollections of the circumstances differ markedly. Johnson J was subsequently to find that, although both accounts were honestly advanced, a review of the surrounding circumstances demonstrated that the husband's was the more probable. The husband's version was that in March 1999 he was informed by his household staff in Lagos that the wife had been conducting a sexual relationship with a younger man of a lower social cast. In accordance with Nigerian customary law he avoided any further contact with the wife. It is unnecessary to record her version: enough to say that she vehemently denies the allegation of adultery.
The present appeal challenges the grant of a stay imposed on the wife's petition in this jurisdiction by Johnson J in a reserved judgment of 26 April 2001. The power to impose a stay arises under section 5(6) of the Domicile and Matrimonial Proceedings Act 1973 which provides:
"Schedule 1 to this Act shall have effect as to the cases in which matrimonial proceedings in England and Wales are to be, or may be, stayed by the court where there are concurrent proceedings elsewhere in respect of the same marriage …."
Paragraph 9 of Schedule 1, as amended provides:
"(1) Sub-paragraph (1A) below applies where –
(a) marital proceedings are continuing in the court; or
(b) matrimonial proceedings of any other kind are continuing in the court, if the trial or first trial in the proceedings has not begun.
(1A) The court may make an order staying the proceedings if it appears to the court –
(a) that proceedings in respect of the marriage, or capable of affecting its validity or subsistence, are continuing in another jurisdiction; and
(b) that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings to which the order relates.
(2) In considering the balance of fairness and convenience for the purposes of sub-paragraph (1)(b) above, the court shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed."
In the present case the only issue for the judge's decision was where the balance of fairness as between the parties lay. As is almost always the case when this issue arises, considerable importance attaches to the history and development of the litigation in the competing jurisdictions. I will therefore summarise the significant steps.
On 3 September 1999 the wife filed the Matrimonial Homes Act notice to secure her continuing occupation of Winnington Road. On 28 March 2000 she filed her petition and Form A and on the same day obtained a freezing order from Sumner J, subsequently extended or continued by other judges of the Division. Her petition pleaded in paragraph 1 the marriage in the Catholic Cathedral of Benin. Paragraph 3 pleaded jurisdiction founded on twelve months habitual residence immediately preceding the presentation of the petition. In paragraph 10 she pleaded that the husband had behaved in such a way that she could not reasonably be expected to live with him. Her case was fully particularised in paragraph 11.
By his answer of 3 May the respondent did not challenge the validity of the marriage but denied the wife's habitual residence giving rise to jurisdiction. By way of alternative plea he admitted the breakdown of the marriage and denied paragraphs 10 and 11 of the petition. Although pleading the wife's adultery in his response to paragraph 11 of the petition he did not himself cross-petition but prayed only for the dismissal of the petition.
By her reply dated 17 May the wife denied that adultery and denied the husband's valid marriage to Augustina as well as her acceptance of Augustina as a second customary wife. She pleaded that the parties had deliberately chosen to be married under Nigerian civil law in the Catholic Church within a month of a customary marriage. In consequence the husband was not able to remarry whilst still married to her.
However on the day following the filing of his London answer the husband initiated the competing proceedings by his petition for divorce filed in Lagos. In paragraph 1 he pleaded the lawful civil marriage at the Catholic Cathedral of Benin. He pleaded in paragraph 4 his Nigerian domicile. In view of the unquestionable nature of that plea it is odd to see it particularised by the seemingly unsustainable assertion that he had been continuously resident in Nigeria all his life with the exception of brief periods spent in Canada and the USA when an engineering student. In paragraph 8 he pleaded that there had been no previous proceedings other than the English proceedings commenced by the wife's petition of 4 April. In paragraph 9 he pleaded the wife's adultery and that he found it intolerable to live with her. He further pleaded that she had behaved in such a way that he could not reasonably be expected to live with her. He sought a decree of dissolution in the exercise of the court's discretion. By an affidavit of 4 May he swore to the contents of his petition. On 16 June the wife's lawyer in Lagos applied for a stay of the husband's petition.
The issues joined on the London pleadings were first the subject of directions by consent approved by Holman J on 18 May. He transferred the suit to the High Court, although confirming that the First Appointment listed for 20 June should proceed. He gave directions for the filing of evidence relating to the preliminary issue of jurisdiction. He fixed the preliminary issue for hearing on 11 October with a two day time estimate.
In this jurisdiction the petitioner obtained an order for maintenance pending suit at the rate of £4,500 per month on 20 June. The case came first before Johnson J on 19 July. He recorded the husband's undertaking to issue an application for a stay, gave directions in relation to affidavits in support and response, consolidated the application for stay with the trial of the preliminary issue and adjourned the consolidated challenges to a four day hearing to commence 29 January 2001. Paragraph 3 of the consent order provided:
"There be leave to each party to call one expert witness on Nigerian law, customary law and procedure on the issue of the stay and, if so advised, the suit provided that
(a) an affidavit...
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