Stella Igweh (Petitioner) v Joseph Uchechukwu Igweh
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Bennett,Mr Justice Bennett |
| Judgment Date | 22 March 2004 |
| Neutral Citation | [2004] EWHC 555 (Fam) |
| Court | Family Division |
| Date | 22 March 2004 |
| Docket Number | Case No: 6285 of 1992 |
[2004] EWHC 555 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice Bennett
Case No: 6285 of 1992
Robert Purdie (instructed by Messrs. Edward Pilling) for the Petitioner
Chima Umezuruike (instructed by Messrs. Andrews) for the Respondent
Hearing dates: 12 March 2004
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.
This judgment is being handed down in private on 22 March 2004. It consists of 22 pages and has been signed and dated by the judge. It may be shown to the parties upon its receipt by Counsel. No report may be made of it by anyone without leave of the Judge
Mr Justice Bennett :
Chief Joseph Igweh (whom I shall refer to as "the husband") has four applications before the court, which, in date order, are as follows:-
(i) 26 June 2003, to set aside the order for financial relief in favour of Stella Igweh (whom I shall refer to as "the Wife") made by Ewbank J. as long ago as 13 March 1995.
(ii) 3 November 2003, to set aside the decree absolute dated 25 July 2003
(iii) 16 December 2003, for disclosure of documents
(iv) undated, for the decree nisi of divorce dated 20 May 1994 to be set aside and the wife's petition of divorce dated 8 January 1992 to be dismissed.
On 12 March I heard the submissions of counsel namely Mr Chima Umezuruike for the husband and Mr Robert Purdie for the wife. I then indicated that I would dismiss the applications and give my reasons in writing to be handed down.
I dismiss all the husband's applications for the reasons set out below.
Background
The wife is now aged 53 and the husband 59. Both are Nigerian. In 1971 they entered into what is called a customary marriage, i.e. under Nigerian law, in Nigeria. They later had four children all of whom are adults. In October 1976 a property was purchased in London W1, at 25 Hallam Court, Hallam Street and a property "Springwood" in Henley-on Thames. It would appear that the family lived in England until 1980 when the family returned to Nigeria.
On 19 December 1976 the parties married in a Roman Catholic Church in Nigeria. Three further children were born all of whom are now adults.
In September 1989 the two eldest children started attending the Polytechnic in Oxford and lived in a house bought by the husband.
On 26 February 1990 the wife was granted entry clearance to the United Kingdom as a student by the High Commission in Lagos. On 31 March 1990 the wife and the husband came to England. The stamp on the wife's passport would indicate that she was given leave to enter until 31 July 1992. At a later date that was extended till 31 October 1993. On 2 February 1995 the wife was given indefinite leave to remain in the United Kingdom. She has lived in this country continuously since 31 March 1990.
In July 1991 the wife and husband separated and have not lived together since.
On 8 January 1992 the wife presented a petition for divorce in the Oxford County Court. It pleaded that on 19 December 1976 the parties were married at St Michael's, Urualla, in Nigeria, that they had last lived together in Hallam Court, and importantly that :—
"The petitioner has been habitually resident in England and Wales since 30 March 1990."
Further, it alleged that the husband had behaved in such a way that the wife could not reasonably be expected to live with him, and particulars were given. The prayer sought the dissolution of this marriage, residence and/or contact orders in relation to the children, costs, and full ancillary relief.
On 28 April the husband completed an Acknowledgment of Service.
The husband then went on the offensive. At about the same time the husband stopped any maintenance for the wife and children. On 5 May 1992 the husband petitioned the High Court of Imo State, in Nigeria, for a decree of divorce in relation to the December 1976 marriage. On 22 May he applied for a stay of the wife's English proceedings under the Domicile and Matrimonial Proceedings Act 1973. On 10 June the husband in Nigeria obtained a declaration of nullity, which, as Johnson J. remarked in his judgment on 10 March 1993 was no more than a finding preliminary to the husband's divorce petition being struck out. On 27 July 1992 the husband applied for a writ in the Customary Court of Imo State to dissolve the customary marriage. An affidavit was sworn by his lawyers which put forward a case on the basis of the husband's dishonest instructions that:-
"It will not be possible or easy to serve the Respondent [I interpolate, the wife] personally because she will not make herself available for service but if the writ and due process were fixed to her permanent matrimonial home at Unwarau Village, Obidiju in Ibiata, north local government area, she will get them."
In the course of his judgment on 22 March 1994 Ewbank J, in relation to the paragraph 11 above, said:-
"This was clearly fraudulent. The wife's home in Oxford was known then to her husband. She had not been back to Nigeria and the idea he could stick a writ on the side of her door in Nigeria was ridiculous. This reinforces the wife's submission that her husband is a rich and determined Nigerian husband."
The wife therefore knew nothing of the proceedings in the Customary Court. On 3 August that court dissolved the customary marriage.
On 2 November 1992 the husband began proceedings in the High Court of Anambra State in Nigeria for a decree of nullity in relation to the December 1976 marriage. According to the judgment of Johnson J, despite the order of Cazalet J. on 18 January 1993 barring the husband from prosecuting those proceedings, at the time that Johnson J. was hearing the husband's application for a stay the husband was prosecuting that suit in Nigeria.
On 10 March 1993 Johnson J. dismissed the husband's application for a stay and gave leave to the husband to file an Answer. Mr Scott, then counsel for the husband, had drafted an Answer—see page 237. Of critical importance, so far as the applications before me are concerned, is that the wife's assertion of habitual residence in her Petition was admitted, the dissolution of the customary marriage was averred, and the husband cross-petitioned, inter alia, for a declaration that that dissolution was entitled to be recognised in England. The Answer that was in fact filed is at page 940. Habitual residence of the wife in England for the requisite period prior to the presentation of her petition was admitted and the dissolution of the customary marriage on 3 August 1992 was pleaded. However, there was no cross-prayer. In my judgment Mr Purdie must be correct when he submitted that any prayer on behalf of the husband that the English court should recognise the Customary Court order of 3 August 1992 would have failed as he had fraudulently failed to procure the Court's Service of those proceedings on the wife in England. That must explain why he did not actually cross-pray as per Mr Scott's draft.
On 21 April 1993 the High Court in Nigeria granted a declaration of nullity in relation to the December 1976 marriage. On 29 June 1993 the husband filed a Supplemental Answer in the English proceedings, in which the decree of 21 April 1993 was pleaded, and thus asserted that the December 1976 marriage was not capable of being dissolved by the English court.
On 21 July 1993 a Supplemental Reply was filed. The wife attacked the validity of the 21 April order and pleaded that it should not be recognised by the English court pursuant to the provisions of sections 46 and 51 of the Family Law Act, 1986.
Lists of documents were exchanged and discovery took place.
On 22 March 1994 the matter came on for hearing before Ewbank J. The wife and husband were represented by counsel and solicitors. Ewbank J. struck out the Supplemental Answer and made a declaration that the declaration of the High Court in Nigeria of 21 April 1993 should not be recognised pursuant to section 51(3) of the Family Law Act, 1986. He further directed that all other issues in the Petition, Answer and Reply should be heard by him at a later date.
Sense then prevailed. Solicitors corresponded and an agreement was struck, whereby the husband withdrew the Answer and allowed the wife's petition to go through undefended. On 20 May 1994 Ewbank J. pronounced a decree nisi of divorce on the wife's petition. He made a raft of orders designed to bring on the wife's application for ancillary relief. Inter alia, he ordered further affidavits to be filed by both parties, discovery by questionnaires, and the final hearing to be heard by him on the first open date after 1 November 1994.
On 27 June 1994 the husband wrote a letter in the following terms:-
"I am the Respondent in the above suit pending at the Royal Courts of Justice Strand London before the Hon. Mr. Justice Sir Anthony Ewbank.
The Hon Judge requested me to make a declaration of my assets in the whole world notwithstanding the fact that he has no jurisdiction over my assets situate outside England. As a Nigerian citizen, I do not accept such orders.
Besides, the Hon Judge refused to recognise a Decree of nullity pronounced in one of the High Courts in Nigeria in respect of a marriage in which I and my wife are Nigerians. Our status had been determined by our own court which considered the Laws of Nigerian under which we were supposed to have married in the first place.
I see bias and prejudice in the proceedings going by the rulings and orders so far made that I am constrained to believe that I will not get fair hearing...
To continue reading
Request your trial