Charles J :
Introduction
- This case has been before the courts on a number of occasions and both sides have incurred very substantial costs. As a result of orders made by this court in favour of the Petitioner for maintenance pending suit the Respondent has been funding the costs of both sides. This has occurred against a background in which the Respondent has been disputing the jurisdiction of this court.
- The matter comes before me pursuant to directions made by Bennett J on 15 June 2004. These directions followed an order of the Court of Appeal made on the previous day. Dates in June 2004 had been set for a full hearing. In April 2004 Bennett J. had made an order debarring the Respondent from defending the suit. The Respondent appealed that debarring order and other earlier orders. The overall result of the appeals heard in June was that Bennett J. directed that two preliminary issues should be heard in respect of the Petitioner's first petition dated 19 February 2003. That petition has since been amended on 29 June 2004. The issues were (a) whether the court has jurisdiction to entertain that petition by reason of the Petitioner's habitual residence, and (b) whether a stay of the suit should be granted. These points raise issues under DMPA 1973 and in particular under s. 5 and Schedule 1 thereof.
- The Petitioner has issued a second petition dated 29 June 2004. The same points arise in respect of this petition and it is common ground that I should deal with them. Additionally the Respondent seeks an order that this petition be dismissed as disclosing no reasonable cause of action or because it is vexatious or an abuse of process. At the outset of the hearing there was a dispute as to whether I should deal with this issue but (and in my view correctly) opposition to me doing so was not pressed in later argument, although it was not withdrawn.
- The petitions are brought under the MCA 1973 and by them the Petitioner seeks a decree of divorce or alternatively of nullity. This relief relates to status and is clearly the first step towards the Petitioner being able to claim ancillary relief under the MCA.
- A potential alternative route to claiming financial relief would be under Part III of the MFPA 1984. Leave is required before such a claim can be made. As to this possible alternative the position of the Petitioner altered during the course of the hearing. When opening the case leading counsel for the Petitioner told me that if the present petitions were stayed the Petitioner would not be able to claim financial relief in this country. As I understood that assertion was in part based on a claim that she would not be able to remain here unless the Respondent continued to maintain her.
- Later leading counsel for the Petitioner accepted and averred that the MFPA 1984 was a possible alternative. Later still he argued that if I granted a stay I could continue interim freezing orders and orders for interim periodical payments (including an element for costs). It was accepted by leading counsel for the Respondent that the MFPA was a possible alternative basis for claiming financial relief after decisions relating to the status of the parties had been decided in Nigeria. But it was disputed that I could grant interim freezing orders and orders for periodical payments.
- It was common ground that if a stay was granted the children would (or would be likely to) seek financial relief under the Children Act 1989. No jurisdictional point was advanced before me which, it was said, would prevent this.
- To my mind the potential for claims by the Petitioner under the MFPA and the children under the Children Act form part of the relevant statutory provisions against which the matters before me should be considered, but it is the DMPA 1973 that is directly applicable.
Some general background
- The parties are both Nigerian. In giving their evidence they have both referred regularly to the position in their culture. They have done so in the context of sharp disputes of fact and issues of credibility that exist between them.
- It is common ground that although issues of status are involved and have independent effects the dispute between the parties is primarily, if not exclusively, about money and thus what, if any, financial provision the Respondent should make for the Petitioner and for the benefit of her children. The Petitioner asserts that she and the Respondent married. The Respondent denies this. The Petitioner relies upon a customary and not a statutory marriage. It is common ground that as a wife under a customary marriage she would not have a claim for financial relief in Nigeria (see also Mark v Mark [2004] 1 FLR 1069 at para 39). She relies in the alternative on two ceremonies of customary marriage. Her first petition relies on a ceremony that she alleges took place on on 22 December 1993. This petition could not have relied on the second alleged ceremony of customary marriage relied on by the Petitioner because it took place within a year of the issue of this petition. By amendment on 29 June 2004 the first petition also seeks to rely on a marriage by cohabitation and repute.
- The Petitioner's case is that the first ceremony was a low-key affair. The Respondent denies that this ceremony ever took place. Naturally this raises a stark dispute of fact. The Respondent says he was not present at any such ceremony whereas the Petitioner and, for example, her father say that he was. The Respondent therefore seeks to establish a negative.
- In the alternative the Respondent asserts that if he was present and took part in a ceremony on 22 December 1993 as the Petitioner alleges what occurred is not sufficient to constitute a valid customary marriage. On this alternative the Respondent asserts that what the Petitioner alleges took place lacks essential features of a customary marriage. This raises points of Nigerian law and some issues of fact as to events leading up to, and after, the alleged ceremony. Naturally the Respondent has some difficulty in disputing the detail of what actually occurred on the day given that his primary case is that he was not there. But it is not impossible that a credible witness may be found whose account of what took place is accepted although it does not accord with the cases advanced by either of the parties.
- The second ceremony relied on by the Petitioner took place over 8 years later on 16 March 2002. It is common ground that a ceremony took place on that day. There is a video of it. There is however a dispute as to the nature of the ceremony. The Respondent asserts that it was a ceremony through which he acknowledged that he was the father of the twin girls born to the Petitioner on 20 June 2001. Additionally there are arguments of law and fact as to whether this ceremony constituted, or could constitute, an effective customary marriage ceremony. The disputes of fact are stark and relate to discussions between the parties and between the Respondent and the Petitioner's father. There are also disputes of law as to whether what the Petitioner alleges occurred is sufficient to constitute a valid customary marriage. These include the point whether either or both of the parties had the relevant intention and points as to whether essential features of a customary marriage were present.
- There are also stark disputes as to the alternative of a marriage based on cohabitation and repute. The particulars relied on date from the first alleged ceremony and, as one would expect, in large measure to conduct in Nigeria and how the parties have treated, and held each other out, since 1993. I add that although in both petitions the Petitioner alleges that the parties last lived together as husband and wife at A Avenue, London, as appears later, she accepted in her oral evidence that the parties did not cohabit in England and Wales.
- The parties are Roman Catholics and there are two systems of marriage in Nigeria that are potentially relevant namely statutory marriage under the Nigerian Marriage Act 1914 and customary marriage. Statutory marriage is monogamous. Customary marriage is not. There are a number of similarities between statutory marriage in Nigeria and marriage in England. Unsurprisingly there are formal requirements in respect of a statutory marriage.
- An alternative case of the Respondent is that he entered into a statutory marriage in 1974 with a lady, who I shall refer to as G, and therefore any customary marriage he entered into thereafter would be void. It is accepted by the Petitioner (a) that the Respondent and G went through a ceremony of marriage, and (b) that, if this was a valid statutory marriage, her alleged customary marriage with the Respondent would be ineffective and unlawful.
- As to this alternative case the Petitioner (a) disputes the validity of the alleged statutory marriage between the Respondent and G, and (b) asserts that if there was a statutory marriage between the Respondent and G she was tricked into her customary marriage with the Respondent as a result of an express representation made to her (and as I understood her evidence to me to her father, although this is not mentioned in the amended petition and was not expressly addressed before me) by the Respondent that his marriage to G was a customary marriage. This assertion is an indication that the Petitioner was aware at that time that a valid statutory marriage to G would mean that a customary marriage would be ineffective and unlawful.
- By amendment to the first petition (made on 29 June 2004) the Petitioner seeks a declaration of nullity by reference to point (b). This point (which is not included in the second petition by reference to the second ceremony) also raises stark disputes of fact between the parties and indeed between the Respondent and the Petitioner's father. There is an issue as to what relief could be granted in Nigeria in those circumstances and whether it would trigger a claim under the MFPA 1984 as constituting an annulment of the customary marriage alleged by the Petitioner. Although not argued before me in my view there is, or may be, an issue as to what relief the English court could, or should, give having regard to the disputed position in Nigerian law (see Dicey & Morris Rule 77(2) and MCA 1973 s. 14).
- The main point relied on by the Respondent to found her assertion that the Respondent and G did not enter into a valid statutory marriage is the absence of a Registrar's certificate in Form C. No such form has been produced albeit that the Respondent has produced a marriage certificate in Form E. As I understand it, it is common ground between the experts in Nigerian law instructed by the parties that the absence of a Form C would mean that the Respondent and G did not enter into a valid statutory marriage if (and it is an important if) they both knowingly and wilfully acquiesced in the celebration of the marriage in the absence of a Form C (see s. 33(2) Nigerian Marriage Act). Thus the knowledge and intent of both parties to the ceremony is relevant and there is a Nigerian case which holds that the attitude of mind of both that must be shown is "I know there ought to be a certificate, I know there is not a certificate, nevertheless I shall go through with the ceremony". Absent this knowledge and attitude of both parties the marriage is not rendered invalid or void by the lack of a Form C.
- This point raises an issue of fact as to which the Petitioner is at some disadvantage because she was not privy to the ceremony in 1974, or to the events leading up to it. These disadvantages of the Petitioner raise similar problems to those of the Respondent in respect of his primary case concerning the customary marriage which the Petitioner alleges took place in 1993 (i.e. he was not there) because they give rise to the need to look at surrounding circumstances and the conduct of the parties.
- It follows that issues of fact and law arise in respect of the Respondent's marriage to G in Nigeria.
- To support her case that the Respondent and G did not enter into a valid statutory marriage the Petitioner points to the conduct of the Respondent and in particular her assertion that she and the Respondent had entered into a customary marriage and the point that, as he accepts, the Respondent has entered into ceremonies of marriage with another lady, who I shall refer to as Y. The point made is that the Respondent, as an educated man, would have been aware that if he and G were married on a statutory basis his marriages to Y were to his knowledge bigamous and rendered him liable to prosecution. Additionally, as I understand it, the Petitioner relies on the representations she says he made to her (and as I understood her evidence her father that the Respondent's marriage to G was a customary marriage because she says this indicates that the Respondent was aware that if he had been a party to a statutory marriage he could not marry again.
- The Respondent has made potentially contradictory statements as to when he was aware that if his marriage to G was a valid statutory marriage any subsequent customary marriage (and this includes his marriage to Y) would be void (see for example paragraphs 14 and 29 of his affidavit sworn on 3 June 2003 where he says:
" From the start she knew all about G and the fact that we had been made in a church and therefore under the Nigerian Marriage Act 1914. I recall her telling me that our relationship could go nowhere because of my marriage to G. She showed me the relevant section of her law books. ------"
"In early 1994 I had to travel to the USA for surgery for varicose veins at Morristown Memorial, Hospital, New Jersey. Y accompanied me there and nursed me afterwards for several weeks as I developed high blood pressure. Our relationship blossomed and we did a stupid thing. We travelled to the nearby town of Milburn, New Jersey and went through a marriage ceremony at the register office there. The only witness was the limousine driver. Although I did not appreciate this at that time, I now accept that that marriage is void.
On 27 July 1994 Y and I went through a customary marriage ceremony in Nigeria. -------- At about that time, Y and I moved into H Road [in Nigeria]. I have lived there with Y ever since. "
Although the first quote does not refer to a later customary marriage being void to my mind there is potential conflict between these assertions. The point was not gone into in depth in the evidence before me although I understood the Respondent to say that he became aware of this legal point when the Petitioner told him that his marriage to Y would be void if his marriage to G was a valid statutory marriage. I see force in the Petitioner's argument that as an educated Nigerian the Respondent would have known this but I do not make any finding as to when the Respondent first knew this legal point.
- As appears from the passages quoted above the ceremonies of marriage with Y were a ceremony in New Jersey, USA in January 1994 shortly after the Respondent had had surgery in New Jersey and had been nursed by Y, and a customary marriage in Nigeria on 27 July 1994. The first ceremony in America therefore took place shortly after the first customary marriage alleged by the Petitioner. It was common ground that the relationship between the Respondent and Y had commenced and was continuing at the time of that alleged customary marriage. Indeed it was Y rather than the Petitioner (or G) who accompanied the Respondent to America for his operation and medical treatment.
- G lives in Nigeria. She and the Respondent have three adult children, all girls. They lived, and were educated, in Nigeria to around the age of 16 and then they were educated abroad. At least two of them in England. Two are now in England and one in the USA.
- On 20 June 2001 the Petitioner gave birth to twin girls following IVF treatment. Prior to these proceedings the Respondent had accepted that they were his daughters. However during the proceedings this has been disputed and this dispute has led to DNA testing. This testing took place very shortly before the hearing before me. The result indicates that the Respondent is the father of the twins.
- The Respondent asserts that he is the father of quadruplets born to Y in America on 21 November 2001 after she had had fertility treatment. So these children were born some five months after the birth of the twins. The Petitioner disputes that these children are quadruplets and that they are Y's children, or the children of the Respondent. For convenience I shall refer to them as the quads and this is not to be taken as any indication that they are or are not quadruplets and the children of the Respondent and Y. I pause to comment that the Petitioner has produced their birth certificates (and Y's passport) and in large measure bases her assertion on the birth certificates. Issues exist as to how she has copies of these documents. As to the birth certificates the Petitioner asserted through counsel that she employed a private detective and he had obtained the copies.
- The Respondent also has a child by a lady called R. That child was born on 12 August 2001 in Nigeria and is a boy.
- It follows that in 2001 seven children were born to three ladies and at the time the Respondent was 54 and accepted that they were all his children.
An overall and general assessment of the credibility of the parties
- Both of the parties gave oral evidence before me. This did not cover all the hotly disputed issues of fact because it was directed to the factual issues that are, or were asserted to be, directly relevant to the questions before me. It also threw up some more issues (e.g. who was responsible for the video of the second alleged ceremony; unsurprisingly each said it was the other). The oral evidence and the documents demonstrated that both parties are quite prepared to be highly selective, to exaggerate, to tell lies and to use tactical devices to advance their case or to further their goals.
- It follows that I am sorry to have to record that in my judgment neither party was generally doing their best to give me a truthful account of events to the best of their recollection. This means that in resolving the relevant factual issues for present purposes I have to look at the limited common ground and third party evidence that is not partisan and weigh the competing accounts of the parties with, and against, it.
- In my judgment it is likely that the trial judge here, or in Nigeria, will have to do the same although, of course, he or she may, in the light of further evidence, take a different view on credibility.
- In considering the evidence I have also given myself a Lucas warning and reminded myself that (a) the disputes of fact relevant to the issues before me, and in particular those relating to habitual residence, necessarily focus on the actions and intentions of the Petitioner and raise more issues as to her credibility than they do as to the honesty and credibility of the Respondent, and (b) there are stark and substantial disputes as to the honesty and credibility of the Respondent on the issues that arise in the two sets of proceedings in England (and proceedings in Nigeria) as to which the Petitioner has a number of powerful points.
- Leading counsel for the Petitioner opened the case high when dealing with the factual issues that arise in respect of the two ceremonies relied on by the Petitioner. In doing so he was as I understood him seeking to demonstrate that the Respondent's assertion that he and the Petitioner were not married were "transparently unmeritorious" (to borrow the description used in Otobo v Otobo [2003] 1 FLR at paragraph 59). In so opening his case counsel relied in particular on the points I refer to later and on the conduct of the Respondent during the course of these proceedings relating to his compliance with interim orders made by this court and comments made about this conduct of the Respondent by Thorpe LJ.
- He also relied on this litigation conduct as a factor to be taken into account in the exercise of discretion concerning the grant of a stay. I shall return to this. It is a different point to the issues relating to the stark factual disputes between the parties concerning the issues of status that arise in the proceedings I am asked to stay and whether the Respondent's case is transparently without merit.
- As I remarked during the hearing it seemed to me that the Petitioner was continuing to ride, or seek to ride, the crest of the wave on these issues of honesty and credibility relating to the conduct of the Respondent in respect of the orders of the English courts. By doing so the Petitioner was in effect saying that the factual issues raised by the Respondent as to the existence and nature of the two ceremonies relied on by the Petitioner were incredible and could therefore be easily and shortly dealt with by an English court.
- Thus, for example, it was said that the presence of the Respondent at the first ceremony, and what took place thereat, could be established by calling two elders, or respected members, of the village (one of whom would be the Petitioner's father) and that this accorded with the approach under Nigeria law. However, as one would expect, when it was put to him the expert in Nigerian law called by the Petitioner accepted that if the issues were whether the Respondent was present and thus whether a ceremony took place at all, and there was an issue as to the credibility of one of the proposed witnesses to the ceremony (here the Petitioner's father) the evidence would not be confined to that of two (or more) elders, or respected members, of the village. To my mind an analogous situation would arise in the case of a dispute as to the execution of a will if, for example, it was asserted that it was not executed by the testator because he was not present. This does not mean that all of the considerable number of witnesses the Respondent says would have to be called would all be important and relevant witnesses. But, in my judgment, witnesses as to the behaviour of the parties both before and after the alleged ceremonies would be relevant. Further, there is likely to be an overlap between the witnesses that the Respondent would wish to call on the alternative case advanced by the Petitioner that there was a marriage by custom and repute. Further it is probable that the Petitioner would not want to rely only on her own evidence as to how the parties behaved and held themselves out in Nigeria not least given the assertion that since 1994 the Respondent has lived there in the same house as Y and the Petitioner's counter assertion that between 1994 and 2001 Y lived in the USA.
- To show that the Respondent's case that he and the Petitioner were not married clearly has no merit the Petitioner also relied in particular on three points which I accept have force, namely:
i) The Respondent's passport contains a forged stamp which, if valid, would have demonstrated that he was not in Nigeria at the time of the first ceremony alleged by the Petitioner. Indeed the Respondent produced his passport and this stamp to show this. However the Petitioner had a photocopy of the Respondent's passport, which she says she took when applying to the Irish authorities for a residency permit for the parties, and which demonstrated that the relevant stamp had not been put in the passport in 1993 and that it was therefore a forgery. The Petitioner asserts that it is plain that the Respondent had this forged stamp put in his passport in order to mislead the court and that the Respondent's explanation as to how this forged stamp was put in his passport is incredible.
ii) The Respondent's assertion that his Nigerian divorce petition filed on 4 March 2003 seeking to dissolve the purported customary marriage of 16 March 2002 (i.e. the second alleged ceremony of customary marriage) was issued without his instructions is plainly a lie, and that this petition (albeit that it refers to the second ceremony) indicates that the Respondent accepted that the parties were married.
iii) The Respondent's assertion that the Petitioner agreed to bear his children as a surrogate for his sisters is a plain and extremely unpleasant lie.
- The Respondent's explanation for the forged stamp in his passport is that the Petitioner stole the relevant passport and caused this forgery to be made so that she could seek to make the point that she does in respect of it, namely that the Respondent's reliance on this forgery demonstrates that he is untruthful and strongly supports her assertion that the parties entered into a customary marriage on 22 December 1993. The Respondent says that the Petitioner would have known that when she asserted that a ceremony of customary marriage had taken place on 22 December 1993 he would deny that he was present and would be likely to check his passport to see whether or not he was in Nigeria on that date and, on discovering the stamp, would assert in reliance on it that he was not. Thus he says that the Petitioner laid this trap for him.
- I would agree that at first sight this explanation appears far fetched. However having seen the Petitioner give evidence I am of the view that she is capable of devising and laying this trap. Although I accept that there is force in the Petitioner's point that it was the Respondent who forged his passport in an attempt to mislead the court, I have concluded that the Respondent's explanation cannot be dismissed out of hand and that it raises an issue to be tried.
- Further it seems to me that even if the trial judge concludes that it was the Respondent who forged his passport in an attempt to mislead the court this would not necessarily lead to a finding that he was present at a customary marriage ceremony on 22 December 1993. This is because, on the evidence before me, I have concluded that the Respondent is someone who might well seek to make, or bolster, his case in this dishonest manner and the fact that he has done so is not necessarily a reliable indicator that he was present at a customary marriage ceremony on 22 December 1993.
- In other words it seems to me that the establishment by the Petitioner that the Respondent has acted dishonestly in this manner does not necessarily found a conclusion that the Petitioner is telling the truth about the customary marriage ceremony she alleges took place on 22nd December 1993.
- In this context the Petitioner demonstrated before me that she too is someone who is prepared to seek to bolster her case by telling an outright lie. She did this by giving oral evidence to the effect that as and when the Respondent visited this country they would spend time together as man and wife at the properties she occupied in England and Wales (including A Avenue where she asserts in the petitions she and the Respondent last lived together as husband and wife). She gave this evidence having heard discussion between me and her counsel on the issue of stay as to whether it was necessary to establish a connection of the marriage, or married life, with this country as opposed to establishing that one party to the marriage was habitually resident in this country. In cross-examination (arguably to her credit) the Petitioner fairly quickly acknowledged that this evidence was untrue and that it had been given in the light of the discussion between me and her counsel and that the Respondent did not stay with her when he was in this country, but she visited him at his hotels. She therefore effectively admitted that (a) she had lied in an attempt to seek to bolster her case, and (b) the above mentioned assertion in her petitions and assertions to that effect in her statements are not true (although these point were not specifically addressed before me). Naturally I accept that this does not mean that she lied about other aspects of her case concerning habitual residence and the grant of a stay.
- In my judgment equivalent points can be made in respect of (a) the other two points particularly relied on by the Petitioner, and (b) other points raised by the parties to support their assertions that the other has lied or behaved dishonestly.
- It follows that although I do not for one moment seek to condone, or excuse, the Respondent's conduct that has been criticised by other judges in this country and I do not regard him as a person who has been doing his best to assist the court to the best of his recollection, I have concluded that the stark disputes of fact raise real issues as to which the trial judge will have to hear a number of witnesses and consider a number of documents. As appears above this conclusion is not based solely on the point that findings on issues of fact such as those raised in this case cannot be decided without the parties being given the opportunity to give oral evidence on them. Rather it is based on my estimate of the prospects of success on the factual issues. There are a number of indicators on both sides by reference to the conduct of the parties. I was taken to many of them during the course of the hearing for example cards written by the Respondent, the fact that he has felt free to go through marriage ceremonies with Y and his financial support of the Petitioner over many years and in differing situations support the Petitioner's case. I agree. However in contrast some letters written by the Petitioner, the lack of passport entries recording (or published assertions of) marriage by her before the second ceremony and her description of herself as single in a number of application forms support the Respondent's case. I shall not refer to other matters or analyse those that I have mentioned further.
- On the information before me, I have concluded that the trial judge will have a difficult task and both sides have realistic prospects of success. I return later to this point but I record at this stage that in my judgment the issues of fact and law that arise concerning the disputes and issues relating to the status of the parties are overwhelmingly "Nigerian issues".
My approach
- There was considerable common ground between the parties on the law relating to habitual residence (and thus the jurisdiction of the court) and the grant of a stay. This is demonstrated, for example, by their helpful opening and closing written submissions.
- A logical approach is to deal with the issues chronologically and thus with the two sets of proceedings separately and one after the other. This was in large measure the approach taken by the Respondent in particular in respect of the issue of habitual residence and thus jurisdiction.
- If the second petition is not struck out an alternative approach is to argue that the issue of habitual residence and thus jurisdiction in respect of the first petition becomes irrelevant and that given the time that the Petitioner had spent in England and Wales by the issue of the second petition that (subject to the point relating to the lawfulness of her presence in England and Wales) the real issue is whether the petitions should be stayed. This was a point made by the Petitioner and was probably in part responsible for the fact that the opposition to me dealing with the application to strike out the second petition was not pressed (although it was not withdrawn). Further it was accepted by the Respondent that in respect of the second petition the only point on habitual residence and thus jurisdiction was the point relating to the lawfulness of the Petitioner's presence in this country.
- In view of this, and the fact that I heard the argument in respect of it, it seems to me that I should consider whether the second petition should be struck out. If it should not be, then I see force in this alternative approach which has regard to the points that although the first petition cannot be amended to include reliance on the second ceremony (because it took place within a year of its issue) the second petition could be amended to rely on the first ceremony (and to cover all the issues raised in that petition).
- However, in my view to properly determine where the balance of fairness lies and on that basis whether both petitions, or just the second petition (if there is no jurisdiction to hear the first) should be stayed it is necessary and appropriate to look at the history relating to both petitions and thus to consider the points raised on habitual residence, jurisdiction and stay on the first petition in isolation and together with the equivalent points made in respect of the second petition.
- I shall therefore turn to giving a chronology (with some findings and comments) before returning to the various issues that arise for decision. My findings and comments are in brackets. The other assertions are based on what seems to be common ground but I accept that one or both of the parties may not accept all or parts of them. So far as that is the case I am not making findings in the chronology. I am using it as a structure against which I have considered the issues in this case.
A chronology with some findings and comments
- 1947 to 1999
Date Event
1947 Respondent born.
1968 Petitioner born.
1974 Respondent alleges he married G.
1987 Respondent made managing director of P Oil Nigeria Ltd.
1992 The Petitioner qualified as a solicitor and barrister in Nigeria.
June 1992 The parties meet in Nigeria. The Respondent was 24 and the Petitioner was 44.
January1993 The Respondent took a tenancy of a flat in Nigeria for three years. The Petitioner lived at this flat and the Respondent paid the rent.
(There is some dispute about the level of support given to the Petitioner in Nigeria by the Respondent).
1993 The Petitioner asserts that she had fertility treatment in England that was funded by the Respondent.
...There is some dispute as to this, possibly as to the nature of the treatment the Respondent knew the Petitioner was going to have but possibly wider, which I have not attempted to resolve. I have proceeded on the basis that the Petitioner did have fertility treatment on this visit to England that was funded by the Respondent and at least he did not object that she had used funds provided by him for this purpose.)
22 Dec 1993 The first alleged ceremony of customary marriage between the parties.
January 1994 The Respondent had surgery in the USA and is nursed by Y.
The Respondent and Y go through a marriage ceremony in the USA.
27 July 1994 The Respondent and Y go through a customary marriage ceremony in Nigeria.
16 March 1995 The Respondent's father is buried and the Petitioner attended the ceremony.
(There are disputes as to this and its significance. I have not attempted to resolve them. They go to the question whether there was a customary marriage and whether the Petitioner was being treated and held out as a wife of the Respondent.)
1995 The relationship between the parties broke down.
1997 The Petitioner says that the parties reconciled.
(There is a dispute as to how and when their relationship recommenced and its nature once it had).
1998 The Petitioner had an operation at Bourn Hall Clinic, Cambridgeshire.
(There are disputes as to who chose the clinic and the extent of the Respondent's involvement, he asserts he visited twice in April 2000 for semen assessment and again in May 2000.)
1999 The Petitioner stopped practising as a barrister in Nigeria.
November 1999 The Petitioner completed an application for admission to the University of Buckingham on an LLM course. She stated her surname to be "O" (her maiden name), her date of birth to be 28 February 1960 and that she was single.
2000 to 20 June 2001
January 2000 The Petitioner obtained a visa to enter England and Wales as a student at the British High Commission in Lagos. In doing so she represented that she was born in 1960. On her own account she accepts that she knew that by giving this false date of birth she increased the chances of obtaining a visa because the relevant authorities think that the older the Petitioner the more likely it is that he or she will return to his or her home country.
14 January 2000 The Petitioner arrived at Gatwick airport and was given leave to enter England and Wales until 31 July 2001.
(She falsely represented to the immigration officer that she would be sponsored for the LLM course at Buckingham University by her father who she falsely stated was a director of an oil company.)
May 2000 The parties visited Bourn Hall for IVF treatment.
Autumn 2000 The Petitioner attended Bourn Hall for IVF treatment.
Autumn 2000 The Petitioner completed her course at Buckingham University and obtained an LLM.
She attended at the course through 2000 calling herself N O. Her date of birth was recorded by the University as 28 February 1967. The University used her Nigerian address for correspondence.
Her dissertation is entitled "the Nigerian Customary Marriage Laws and the Bias against Women". The Petitioner says that originally she had entitled her dissertation "Anglocentric Nigerian Laws and the Bias against Customary Law Marriage" but changed this title on the advice of her supervisor.
(Her qualifications in Nigeria and this dissertation (although I have only received the odd pages of it) are strong indicators that the Petitioner has at all relevant times been aware of the effect of a valid statutory marriage and of the position of a wife when a customary marriage ends – see for example pages 5 and 39 of the dissertation.)
March 2001 The Petitioner moved to rented accommodation at A Avenue.
May/June 2001 The Petitioner completed an application form for extension of her stay in England and Wales as a student.
In this form she again stated that her family name is "O", that her title was "Miss" and that her date of birth is 28 February 1960. She also stated that she commenced studies in England and Wales in January 2000 and that she intended to stay in England and Wales for 3 1/2 years. Further she stated that she did not have a spouse living with her in England and Wales and that she did not have a relative or friend who regularly gave her money.
(This application therefore repeats the misrepresentation as to her age and on her present case again misrepresented that she was single. It also misrepresented the position as to the funds being regularly provided to her by the Respondent.)
She attached evidence of her attendance during her LLM course.
(This is an indication that at least by this date she knew that this was a factor to be taken into account in deciding whether permission for her to stay in England and Wales would be extended.)
She also signed a declaration that she would inform the Home Office of any material change of circumstance before the application was decided and confirmed that she was aware that it is an offence to seek or obtain leave to remain in England and Wales by deception.
May/June 2001 The Petitioner, who was then very pregnant (and on her case had made arrangements for, and planned to have, the birth of her expected twins in London) travelled to Nock in Ireland. Her passport was not stamped when she entered Ireland or when she returned from this trip.
20 June 2001 The Petitioner gave birth to twin girls in Ireland.
20 June 2001 to 2 October 2002
19 July 2001 The Petitioner's then solicitors applied on her behalf to the Home Office to extend her leave to remain in England and Wales. That letter contains the following:
" Our client was granted leave to enter England and Wales to complete a Masters degree course in International Commercial Law at the University of Buckingham. Our client graduated from the course --------------- . This is an application to extend our client's leave to remain in England and Wales until March 2005 to enable her to complete her course after that date she would be returning to her country Nigeria."
27 July 2001 The Home Office granted the Petitioner leave to remain in England and Wales until 31 October 2002 (and thus for a much shorter time than she had sought).
1 August 2001 The Petitioner's solicitors replied to the Home Office seeking a confirmation of their willingness to grant the Petitioner a full three-year extension and asking for a quick response.
No response was received.
(It follows that from the end of July 2001 the Petitioner knew that she would have to apply to extend her leave to remain in England and Wales in the autumn of 2002 and thus at the end of the first-year of the three-year course offered by the University of Luton.)
September 2001 The Petitioner enrolled at the University of Luton.
(There is a dispute as to the amount of work, if any, she did on this course during 2001/2002. I return to this.)
The Petitioner however accepts that she did not do much work on this course and asserts that she deferred for a year. She did not inform the Home Office that she had done so. She asserts that the reason she deferred was that she was very busy with the twins.
21 November 2001 The quads are born in the USA.
Late 2001 The Petitioner asserts in her evidence (statement signed 12 November 2003 paragraph 6.6 page 981 of the bundle) that it was at this stage that she formed the intention to reside permanently in England and Wales. She says:
"It has been my intention to make England and Wales my home with the two children since late 2001. Initially - when I came to England and Wales I thought I would stay and study and return to Nigeria once I had qualified."
31 January 2002 The Petitioner arrived in Nigeria.
16 March 2002 The second ceremony took place.
25 March 2002 The Petitioner's passport was endorsed in Nigeria with an observation that she is now married and wishes to be known as Mrs N M M-T.
29 March 2002 The Vanguard newspaper in Nigeria published a notice that the Petitioner now wished to be known by that name.
29 March 2002 The Petitioner left Nigeria.
22 April 2002 An application for a residency permit in Ireland was made by the parties (I return to the circumstances in which this was made).
29 June 2002 The Petitioner returned to Nigeria.
19 July 2002 The Petitioner left Nigeria.
21 August 2002 The Petitioner arrived in Ireland (a date for her departure has not been provided and is not shown in her passport).
5 September 2002 The Petitioner arrived in Ireland (a date for her departure has not been provided and is not shown in her passport).
16 September 2002 The Petitioner re-enrolled at Luton University.
26 September 2002 The Petitioner travelled to Nigeria. She asserts that the reason for this journey was to enable her to renew her passport, or obtain a further booklet to be inserted into that passport.
The Petitioner had not applied in England and Wales to extend her leave to remain in England and Wales and she did not apply for such leave to the British High Commission when she was in Nigeria. Rather she sought and obtained leave at the airport on her return to England and Wales.
2 October 2002 The Petitioner returned to England and Wales arriving at Heathrow airport. She told the immigration officer that she sought leave to enter England and Wales in order to do a three-year course at Luton University and she was given leave to enter England and Wales until 31October 2005.
(If as the Petitioner now asserts she had decided by this stage to live permanently in England and Wales this assertion was on any view not wholly correct.)
(Further she repeated the misrepresentation as to her age saying that she was born in 1960.)
(It appears that she showed the Immigration Officer her enrolment form at Luton University for 2002 as confirmation that she had been accepted as a student there and bank statements showing that she had at least £20,000 in her bank accounts. She also represented that her husband would be financially responsible for her study and stay in England and Wales.)
(The Respondent asserts that the Petitioner obtained this leave to enter and remain in England and Wales by deception.)
(This is the last and most important grant of permission for the Petitioner to be in England and Wales.)
2 October 2002 to March 2003
17 October 2002 The Petitioner returned to Nigeria.
28 October 2002 The Petitioner asserts that the last voluntary payment to support the Petitioner and the twins was made by the Respondent to the Petitioner in England and Wales in the sum of £15,000. (The Respondent says that he sent her cheques in December and January for sums equalling £2,844 and £888 and the Petitioner asserts that the last payment in Nigeria was made in November 2002 for £3,254 and that a later payment was for goods).
29 October 2002 The Petitioner returned to England and Wales.
8 November 2002 The Petitioner returned to Nigeria (and remained there until 19 January 2003).
15 November 2002 The Petitioner made a complaint on oath to a magistrate in Lagos alleging that the Respondent and Y had made threats to her life and that there were stolen children in the Respondent's house.
The children at that house were the quads.
21 November 2002 Bench warrants are issued for the arrest of the Respondent and Y and the search of their house. This is as a result of the complaint made by the Petitioner.
22 November 2002 In execution of the bench warrants the Respondent's house is searched by a number of policemen and he and Y are arrested and taken with the quads to the police station.
(I return to this incident and to a meeting which took place after it which was attended by the Petitioner's Nigerian solicitor).
19 January 2003 The Petitioner returned to England and Wales from Nigeria.
12 February 2003 The Petitioner returned to Nigeria (and remained there until 16 March 2003).
(This return was against the background of the allegations made by the Petitioner that the Respondent had threatened her life and safety.)
19 February 2003 The first petition was filed.
March 2003 An article was published in a Nigerian magazine asserting that the Petitioner was not the Respondent's wife and the twins were not his children.
March 2003 As appears below the Petitioner issued proceedings in Nigeria.
7 March 2003 The Respondent's lawyers in Nigeria wrote to the Petitioner asserting that the Petitioner had threatened the Respondent and threatening to have her arrested and prosecuted and civil proceedings because of this.
10 March 2003 The Respondent's lawyers wrote to the Petitioner's Nigerian solicitors in similar terms.
March 2003 The Petitioner's Nigerian solicitors reply stating that the matter was before the courts and refusing to respond to the threats made by the Respondent's lawyers in any other way.
16 March 2003 The petitioner returns to England and Wales
(The Petitioner is shown as having filed a motion for an injunction to restrain the Respondent from threatening her life and as having sworn an affidavit in Nigeria on 17 March 2003 in support thereof. But I accept that her passport indicates that she returned to this country on 16 March 2003 and that that is what she did. It follows that I accept the explanation given by her Nigerian solicitor that the Petitioner signed this affidavit before she left Nigeria and it was not correctly sworn.)
- Before turning to a chronology of the proceedings in this country I pause to list the proceedings in Nigeria.
Proceedings in Nigeria issued by the Petitioner
i) On 5 March 2003 the Petitioner filed an action in the High Court of Lagos State (542/03) against Media Techniques (MT) and Y alleging that MT had falsely published that the Petitioner was not married to the Respondent and that the twins were not fathered by the Respondent. This action was filed by O & O, her Nigerian solicitors. The Petitioner discontinued this action by a notice of discontinuance dated 24 March 2003. Issues as to costs may remain outstanding between the Petitioner and the defendants but it seems from a list provided by O & O that costs were awarded in favour of the defendants on 5 November 2003 although this award could relate to the proceedings referred to in (vi) below.
ii) On 6 March 2003 the Petitioner (together with the twins) filed an action in the High Court of Lagos State (554/03) in which she asserted that she was the wife of the Respondent and that Y was his mistress. Her solicitors were O & O. In this action she sought declarations as to the paternity of the twins and the quads (to the effect that the twins were the children of the Respondent and that the quads were not). She also sought DNA tests. It was in this action that she swore an affidavit that appears to be sworn on 17 March 2003. It was in support of an application for interim relief to prevent the Defendants (the Respondent, Y and the quads) from threatening, harassing or arresting her. The Petitioner discontinued this action on 24 March 2003. On 10 June 2003 the Respondent filed a counterclaim in this action seeking a declaration that he was never married to the Petitioner. The Petitioner successfully applied to strike out this counterclaim, the Respondent applied to reinstate it but later on 27 July 2004 he applied to discontinue it. On 30 July 2004 the Petitioner applied for her costs and this application is still pending.
iii) On 25 March 2003 the Petitioner (together with the twins) commenced another action in the High Court of Lagos State (695/03) against the Respondent, Y and the quads making equivalent allegations to those made in the action referred to in subparagraph (ii) (542/03) and seeking equivalent relief. The defendants were the Respondent Y and the quads. O & O refer to the issue of these proceedings as a re-filing of the proceedings referred to in (ii) (542/03). This action was struck out for want of diligent prosecution and the absence of the parties and their lawyers at a hearing. After this order was made the Petitioner filed a notice of discontinuance on 10 June 2003. In these proceedings the Petitioner also issued a motion dated 3 June 2003 seeking an interlocutory injunction to restrain the defendants from threatening her. This was supported by an affidavit sworn by a litigation executive in her Nigerian solicitors sworn on 3 June 2003 which contains similar allegations to those put before the English court on 15 April 2003 in support of a without notice application for an anti suit injunction. (I deal with this application later).
iv) On 1 April 2003 the Petitioner commenced another action against the Respondent and Y (762/03) making equivalent assertions to those made in the action referred to in subparagraph (i) (542/03) and seeking equivalent relief. The defendants entered an appearance and as far as I'm aware this action is still pending (but see the comments as to costs in (i).
v) On 17 April 2003 the Petitioner filed an application at the Delta State High Court against the Respondent and the Uvwie Customary Court for permission to apply for judicial review of that court's order in relation to the petition filed therein by the Respondent (see (vi) below) and for a stay of proceedings in that Customary Court. Permission was given for the Petitioner to apply for public law orders and her application for a stay of the proceedings in the Customary Court was adjourned. I understand that the Petitioner has not pursued these public law proceedings but they remain in being.
Proceedings in Nigeria issued by the Respondent
vi) On 4 March 2003 the Respondent filed a petition in the Uvwie Customary Court in the Delta State (UACC/89/03) for a dissolution of a marriage between himself and the Petitioner, who was the Defendant. The Respondent asserts that this was done in error by his lawyers, the Petitioner disputes this and points, amongst other things, to the authority of his lawyers as asserted in relevant documents. The Respondent's Nigerian lawyers obtained an order for substituted service of these proceedings but on 3 April 2003 they filed a motion for the dismissal of this petition. Later the Respondent withdrew the petition the opening paragraph of which is as follows:
" The Petitioner [i.e. the Respondent in these proceedings] petitions this Honourable Court for the dissolution of the customary law marriage contracted between the Petitioner and Respondent on the 16th March 2002 at Utagba-Uno whereby they became husband and wife and the Respondent [i.e. the Petitioner in these proceedings] was duly escorted to the Petitioner's home at Okpare-Olomu"
The Petitioner contested this petition on the grounds that the court chosen by the Respondent had no jurisdiction to entertain it and as mentioned above issued proceedings for judicial review in respect of these proceedings. The Petitioner points out that one of the Respondent's lawyers swore an affidavit for the purposes of interlocutory hearings in which she deposed to the fact that she had the authority and consent of the Respondent to swear the affidavit.
vii) Pursuant to the order of Bennett J. made on 15 June 2004 the Respondent filed an action in the High Court of Lagos State for declarations concerning his 1974 marriage to G. At present the Petitioner is the only defendant. The Respondent seeks a declaration in these proceedings that his marriage to G is a statutory monogamous marriage within the Nigerian Marriage Act and that he has never been married to the Petitioner. These proceedings are still pending.
viii) On 2 August 2004 the Respondent filed a no-fault petition in the High Court of Delta State for the dissolution of his 1974 statutory marriage with G. She is the only defendant and has entered an appearance but not as yet filed an answer. The petition is based on separation. At a late stage of the hearing before me, through his counsel the Respondent gave an undertaking to this court not to take any further steps in these proceedings. Following the hearing before me there has been some skirmishing in correspondence in connection with these proceedings, the undertaking and a hearing in Nigeria. This is typical of the history of this case and in my judgment it is not relevant to the issue before me.
Proceedings in Nigeria issued by G
ix) G has issued proceedings against the Respondent and the Petitioner in the High Court of Lagos State for a declaration that the 1974 marriage between her and the Respondent is a statutory marriage within the meaning of the Marriage Act and a declaration that the Respondent has never been married to the Petitioner. The Respondent objected to these proceedings and asked that they be consolidated with the action in Saki (referred to in subparagraph (x) below). As I understand it this has not occurred. The reasons for the objections of the Respondent was not given to me. This action is substantially a mirror image of that referred to in subparagraph (vii) above.
Proceedings in Nigeria issued by G's adult children and the quads
x) On 21 April 2004 these three adult children and the quads by their next friend issued proceedings at the Saki High Court in Oyo State (HSCC/19/2004) for amongst other things a declaration that the Petitioner has never been married to the Respondent. The defendants are the Respondent and the Petitioner and they are both defending these proceedings. Injunctive relief has been granted in these proceedings preventing the Respondent making payments to the Petitioner and restraining the Respondent from continuing with the English proceedings. This was one of the matters he has relied on to defend, or excuse, his failure to make payments to the Petitioner pursuant to orders of this court. These proceedings were strongly criticised by Thorpe LJ during the hearing before the Court of Appeal on 23 September 2004.
- I now return to consider the history of the proceedings in this country. As I have mentioned the Petitioner relied heavily on what she asserts to be the dishonesty and misconduct of the Respondent in respect of these proceedings (and the proceedings in Nigeria) and in the second paragraph of their opening submissions counsel for the Petitioner cited from the judgment of Thorpe LJ given on 23 September 2004 as a convenient way of summarising this criticism which has been pursued before me. The citation is as follows:
" Mr Scott ---- has filed a skeleton argument with the court this morning. It asserts in its introduction that the extraordinary complexity and expense of the litigation, not only in this jurisdiction, but in Nigeria, has been brought about entirely by the husband's determination to see that the wife and children, now three years of age, receive no financial support from him. Mr Scott adds that, in order to achieve this goal, the husband has demonstrated a willingness to use every imaginable tactical device both in this jurisdiction and in Nigeria.
That is a perfectly responsible and moderate introduction, given the whole sorry history of this case from its inception to its present state -------- "
- The Court of Appeal also strongly criticised the Saki proceedings and spoke of the Respondent playing childish games. As I understand it the Court of Appeal regarded these proceedings as a transparent and shabby device orchestrated by the Respondent to avoid payment under the orders of the English court.
- I can fully understand why the Court of Appeal took this view particularly having regard to the crest of the wave that the Petitioner was then riding, the timing of the Saki proceedings and the point that the quads are plaintiffs albeit that the three adult children are also plaintiffs and there is evidence from G that the Respondent has stopped making payments to them and asserted that this was because of the orders obtained by the Petitioner.
- Before me the Respondent by his counsel accepted that valid and severe criticism can justly be made of some of the Respondent's conduct, particularly as to the failures to disclose assets and failures to comply with orders of this court. Indeed his conduct bears many of the hallmarks of a Respondent who has taken, and is likely to continue to take, inappropriate steps to avoid, or delay, making payments of financial relief to the Petitioner albeit that I accept the point made on his behalf that part of the problem has been that the issues of jurisdiction and stay have not been dealt with and the Court of Appeal recognised that this was an error.
- In the light of this general acceptance of fault the Respondent did not pursue with any diligence points and evidence in an attempt to show that he did not effectively control the plaintiffs in the Saki proceedings and like the Court of Appeal I proceed on the basis that directly, or indirectly, he does and that the injunctive relief in those proceedings was a device. In any event, on the evidence before me I have concluded that the Respondent could ensure that the plaintiffs in the Saki proceedings lifted the injunctive relief not least by making payments to the adult children. Thus like the Court of Appeal I do not accept that the Respondent is faced with the difficult situation of being restrained by contradictory injunctions obtained by hostile opponents in different jurisdictions and it is fair and correct to describe the injunctions in those proceedings as a device.
- I have already made some findings on credibility. Further at this stage I comment that it seems to me that it should be remembered that having made these criticisms the Court of Appeal made orders that allowed the Respondent to appeal orders of this court which he had been heavily criticised for not obeying and to challenge jurisdiction. Additionally the Court of Appeal did not have the advantage of hearing the parties give oral evidence.
- As appears later in this judgment, in my view issues of litigation conduct in this case are a "two-way street". Additionally it seems to me that from the Respondent's perspective his case could be opened reasonably and moderately by asserting that the litigation here and in Nigeria has been brought about by the determination of the Petitioner to obtain orders for financial relief (1) when she knows that she and the Respondent were not married, and (2) even if, as she alleges, they were married against a background of (a) her knowledge that she would not be entitled to such relief in Nigeria as a wife under a customary marriage, but might get it in England and Wales if she could establish that she was habitually resident here, and had entered into a customary marriage with the Respondent in Nigeria, (b) her having told lies to the immigration authorities, particularly in October 2002 when the relationship between the parties was, as is common ground, in difficulties to obtain leave to enter and remain in England and Wales and thus be in a position to assert that she was habitually resident here, (c) her having caused the arrest of the Respondent, Y (and the quads) in Nigeria, and having issued a number of proceedings in Nigeria, thereby demonstrating a willingness and ability to use the authorities in her home country, Nigeria, when it suited her and (d) in an attempt to bolster her case on habitual residence her having procured a letter dated 19 August 2004 from Luton University by providing its author with false information.
- The English proceedings. It was pointed out by the Petitioner that different aspects of these proceedings have been heard by District Judges, Circuit Judges, High Court Judges and the Court of Appeal on 23 occasions. Eight Judges of the Division (I am not sure whether this includes me) and four deputies have been involved, some on more than one occasion. Some of the applications have been made on a without notice basis by the Petitioner, others have been short. What follows identifies the more important orders and events.
Date Event
19 February 2003 The first petition was filed.
(At this date the Petitioner was in Nigeria and in my view she gave instructions as to this petition during her stay in England and Wales between 19 January and 12 February 2003)
26 March 2003 The Petitioner swore affidavit evidence in support of applications under the Bankers Books Evidence Act and for a freezing order, and in support of an application for maintenance pending suit (MPS).
27 March 2003 Johnson J (I was told on an application for an order under the Bankers' Books Evidence Act) made a wide reaching freezing order. Leading counsel for the Petitioner before me was not present on this application but he told me that he understood that the freezing order was effectively made at the suggestion of the judge.
The order included an order that the Respondent should file an affidavit of means.
28 March 2003 Johnson J made an order under the Bankers' Books Evidence Act.
2 April 2003 The freezing order was extended, as was the order under the Bankers' Books Evidence Act.
4 April 2003 Mirror orders were obtained in Jersey.
10 April 2003 The Petitioner's solicitor swore an affidavit in support of an application for substituted service and to amend the freezing order and to expedite the application for MPS, and this application was dealt with by Hogg J.
15 April 2003 The Petitioner made a without notice application for an anti suit injunction which was heard by Miss A Pauffley QC (as she then was) sitting as a Deputy High Court Judge.
(I deal with this application, and the evidence put in to support it, in more detail later and conclude that there was litigation misconduct by the Petitioner in respect of it)
27 May 2003 The Respondent filed an affidavit of means confirming disclosure given earlier by letter by his then solicitors (Withers). This indicated that the bulk of his assets are held by a Jersey trust (the S Trust).
28 May 2003 The Petitioner's application for MPS was heard by District Judge Black who ordered MPS in the total sum of £25,000 per month payable as to £10,000 per month to the Petitioner for her support and £15,000 per month to her solicitors in respect of their legal costs.
Clearly this is an order which provides that the Respondent is to make substantial payments.
3 June 2003 The Respondent amplified the information as to his means by affidavit, which was also sworn in support of his applications to set aside earlier orders.
4 June 2003 The Respondent applied for a stay of the first (and then only) petition.
13 June 2003 Richard Anelay QC heard the Respondent's application to discharge the freezing order and made some small alterations to it. He also gave directions as to a number of other matters including the application for MPS.
He did not continue the anti suit injunction because it was directed against the proceedings in Nigeria in the Uvwie Customary Court (UACC/89/03) which the Respondent had then very recently withdrawn.
The Respondent sought to persuade the judge to give directions for the disposal of his applications based on lack of jurisdiction and for a stay at a preliminary and separate hearing. However the judge declined to do so and instead gave directions for the disposal of the divorce suit as a whole with a 10-day estimate and included a direction that such jurisdictional and stay issues should be dealt with at the trial of the divorce suit.
(Although I can readily see why the judge took this course by reference to the evidence then before him and the findings he made which indicate that he was of the view that it was highly probable that the parties had entered into a customary marriage, it seems to me that with the benefit of hindsight and having regard to the MPS orders this was an error).
(However as I understand it this refusal to give directions for a separate and preliminary hearing of the jurisdictional and stay issues now before me was not the subject of a discrete appeal.)
31 July 2003 Hogg J extended the freezing order to include assets held with Merrill Lynch, which had not been disclosed.
6 November 2003 On the first appointment Hughes J refused the Respondent's application to vacate the MPS review hearing set for 1 December 2003 and replace it with a hearing of the issue as to whether there was a statutory marriage between the Respondent and G.
(It is to be noted that at this stage the Respondent was seeking to have this issue decided in England.)
14 November 2003 The Respondent's solicitors wrote to the Petitioner's solicitors to advise that the Respondent denied paternity of the twins.
28 November 2003 Merrill Lynch bank statements arrived by courier to the Petitioner's solicitors and established the existence of US $7 million previously undisclosed by the Respondent.
4 December 2003 Singer J increased the MPS from £10,000 per month to £14,000 per month to the Petitioner and £15,000 a month to £25,000 per month to the Petitioner's solicitors for costs.
He also extended the freezing order in respect of the Merrill Lynch funds.
4 December 2003 Singer J also made an anti suit injunction
...The representatives of the Respondent had taken a full part in the hearing leading to the MPS orders made by Singer J on that day.)
10 December 2003 Thorpe LJ refused permission to appeal against the order of Hughes J.
27 January 2004 The Petitioner applied for orders debarring the Respondent from pursuing a variety of applications and particularly debarring him from defending the divorce suit as he was in breach of a number of orders including significant arrears under the MPS order.
1 February 2004 The Respondent applied to vary the anti suit injunction made on 4 December 2003 by Singer J.
3 February 2004 The Respondent made a without notice application in respect of his application to vary the anti suit order; no order was made on this application.
3 March 2004 The Respondent made an application to discharge or vary the orders of Hughes J. and Singer J. dated respectively 6 November 2003 and 4 December 2003 and to vary or discharge the freezing order.
The Respondent also applied to stay the Petitioner's ancillary relief application.
5 March 2004 There was a hearing before Singer J. who made an order requiring the Respondent to pay £75,000 on or before 17 March 2004 and £350,000 on or before 23 March 2004.
22 March 2004 The Petitioner issued another summons to debar the Respondent from defending the divorce suit and for an inspection appointment against HSBC. The Respondent had not paid the £75,000.
6 April 2004 Bennett J. made an order debarring the Respondent from defending the divorce suit and for an inspection appointment.
The Respondent had not paid either the £75,000 or £350,000.
19 April 2004 The Respondent appealed the order of Bennett J.
21 April 2004 In the Saki proceedings in Nigeria a without notice injunction was granted restraining the Petitioner from taking further steps in the English divorce suit and restraining the Respondent from making any payments under the English MPS orders.
I comment that the timing of these orders and the fact that the Saki proceedings were commenced the day before was no doubt one of the reasons that the Court of Appeal was highly critical of the Respondent and regarded the Saki proceedings as a device.
22 April 2004 Wilson J. directed that the 10-day listing be reduced to two days if the Court of Appeal notified refusal of permission to appeal.
He also ordered that (as I understand it) in any event the Petitioner was to be entitled to rely on specified written evidence of four witnesses at the hearing of the suit.
No such notification was ever given and therefore the 10-day estimate remained.
13 May 2004 Kirkwood J. transferred the Respondent's application to appeal out of time the MPS order made by DJ Black to the Court of Appeal.
4 June 2004 The Respondent applied to the Court of Appeal for permission to amend his grounds of appeal and for a stay.
14 June 2004 The Court of Appeal allowed the Respondent's application for permission to appeal the orders of 28 May 2003 (the order of DJ Black for MPS), 4 December 2003 (paragraph 4 only that is the order of Singer J varying the MPS), 5 March 2004 (the order for payments of £75,000 and £350,000 by Singer J) and 6 April 2004 (the debarring order made by Bennett J).
The Court of Appeal gave such permission on condition that the Respondent paid £53,500 to the Petitioner solicitors in respect of orders for costs that had been made and a further £90,000 into a solicitors' joint account (being the amount intended to cover the Petitioner's costs for the forthcoming Family Division hearing).
The Respondent's MPS liability was stayed only in respect of the balance in excess of £25,000 per month and that £14,000 per month thereafter be paid to the Petitioner for her aliment and £11,000 be paid to her solicitors on account of costs.
It was also directed that the Clerk of the Rules be briefed to ensure that the fixture for trial of the fundamental issue (which I understand to be the jurisdictional and stay issues directed to be heard by Bennett J on the next day) be given priority status.
15 June 2004 Bennett J. made the directions that have resulted in the hearings before me. He also permitted the Respondent to issue, but take no further steps in, new proceedings in Nigeria and gave directions for DNA testing of the twins.
29 June 2004 The Petitioner filed the first petition as amended and filed the second petition relying on the ceremony on 16 March 2002.
1 July 2004 The Petitioner's solicitor swore an affidavit in support of her applications for a charging order and third party debt order.
In their opening written submissions counsel for the Petitioner say that by 14 June 2004 the Respondent was already in substantial arrears under the MPS order even allowing for the partial stay granted on that day by the Court of Appeal and applications were therefore made for a charging order and a third party debt order in respect of a property in London and the rents receivable for it on the basis that it was believed that such property was owned by a company that the Respondent owned outright rather than by the S trust.
2 July 2004 Munby J on a without notice application made an interim charging order and an interim third party debt order in respect of land in London.
The trustee of the S trust intervened to assert that the trust owned the property and that no such orders could be made since the Respondent is only one of the discretionary objects of the trust. The Petitioner's counsel submitted that in other words the Respondent, who had previously accepted that the S trust should be treated as his was now distancing himself from it.
I have not investigated the issue as to why the Petitioner and her advisers were of the view that the relevant property was either not owned by the S trust or why for purposes of enforcement orders (as opposed to MPS and ancillary relief orders) it was, or could be treated as the property of the Respondent. To my mind there is a distinction.
Having regard to the intervention of the trustee of the S trust the Petitioner caused the matter to be placed back before the Court of Appeal asserting that the reaction of the Respondent to the application for the charging order was part of a pattern of behaviour by the Respondent to starve the Petitioner out of the litigation.
Following the order of the Court of Appeal made on 23 September 2004 the Petitioner has agreed that her application for a charging order and third party debt should be dismissed by consent and that she should pay the costs. I made such an order.
23 September 2004 The matter was heard again by the Court of Appeal who, as I have said, were very critical of the conduct of the Respondent.
The Court of Appeal ordered that the sum of £90,000 held in the joint solicitors' account be released to the Petitioner's solicitors forthwith (with any accrued interest being paid to the Respondent's solicitors).
The Court of Appeal also directed that the Respondent's notices of appeal (for which they had given permission) would be struck out unless (i) the arrears of MPS totally £89,374 were paid, (ii) costs in the assessed sum of £8,277 paid and (iii) the Respondent paid instalments of MPS due on 28 September and October (as to which the partial stay was lifted so that the level of MPS reverted to £39,000 per month in total).
The Court of Appeal also directed that the appeal was to be listed for further directions immediately following the pending fixture in the Family Division (i.e. the hearing before me).
...Once the payment of these sums were made a condition of the appeals they were paid. The Petitioner asserts that this is another example of the Respondent's cynical use of court processes. I add that it also supports the view I have reached, in line with that of the Court of Appeal that the conflict between the injunctions in Nigeria and these conditions have not put the Respondent in the position where he felt compelled not to meet the conditions).
15 November 2004 Hearing before me commenced (adjourned part heard on 19 November 2004).
14 December 2004 Adjourned hearing before me. I reserved on 16 December giving permission to the parties to file further written submissions on the points raised late in the day on the continuation of interim relief if a stay was granted and the imposition of conditions on granting a stay.
Jurisdiction
- Section 5 (2)(a) DMPA 1973 provides that the court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if):
(a) the court has jurisdiction under the Council Regulation (i.e. Brussels II which came into force on 1 March 2001).
The Petitioner relies on the fifth indent of Article 2 of that Regulation which provides as follows:
" In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:
(a) in whose territory –
- the Petitioner is habitually resident if he or she resided there for at least a year immediately before the application was made."
- It was common ground that the Petitioner therefore has to show in respect of each of the petitions:
i) that she was habitually resident at the date she filed it, and
ii) that she had resided in England and Wales for at least a year immediately prior to that date.
- It was also common ground that I should apply the English authorities in determining whether or not the Petitioner was habitually resident in England and Wales on those dates.
- The argument before me focused on the issue whether on the relevant dates the Petitioner was habitually resident and not on the question whether she had resided in England and Wales for at least a year immediately prior to those dates. I was not referred to any authority as to what was necessary to establish "residence" over the relevant year.
- In closing submissions counsel for the Petitioner submitted that "residence" is a lower hurdle than "habitual residence" because the latter requires a settled purpose and that the issue whether the Petitioner "resided" in England and Wales over the relevant year should be approached and determined by asking whether she was living in England and Wales. This echoed point (iii) set out in the next paragraph. Although it was correctly common ground that the burden of establishing jurisdiction is on the Petitioner in my view it is not necessary for me to determine this point because it was not argued on behalf of the Respondent that if the Petitioner was habitually resident in England and Wales on the relevant dates she had not resided here for at least a year immediately prior to either of those dates.
- Unsurprisingly there was effective common ground as to the identity of the most important English cases on habitual residence and the approach to be taken having regard to them. Indeed the Respondent did not challenge any of the following propositions of law advanced by the Petitioner, namely:
i) Habitual residence is in each case a question of fact. Any temptation to turn it into an abstract proposition equivalent to domicile should be resisted.
ii) However, habitual residence is not equivalent to physical presence. There can be habitual residence without continuous presence, while physical presence is not necessarily equivalent to residence.
iii) Residence means living somewhere. The significance of "habitually" is that it connotes residence adopted voluntarily and for settled purposes.
iv) Although habitual residence in one country can be lost immediately, acquisition of a new habitual residence requires " an appreciable period of time".
v) The length of the "appreciable period of time" is not fixed since it depends on the nature and quality of the connection with the new jurisdiction. However, it may only be a few weeks: perhaps in some circumstances even days.
vi) In order to establish habitual residence over a period of time, a person must spend more than a token part of that period in the country in question.
vii) There is no fixed rule as the proportion of the overall period which must have been spent in the country in question. It is not simply a matter of counting days, since the nature and quality of time spent will also be relevant
viii) Habitual residence is not broken by "temporary or occasional absences of law or short duration".
ix) It is possible to be habitually resident in more than one country at the same time.
- I accept that these propositions relating to habitual residence can be derived from the authorities relied on namely: Akbarili v Brent LBC [1983] 2 AC 309 (often referred to as ex parte Shah), Nessa v Chief Adjuducation Officer [1999] 2 FLR 1116, Ikimi v Ikimi [2001] 2 FLR 1288 and Oundjian v Oundjian [1980] FLR 198. I also accept that the passage from Oundjian set out by counsel for the Petitioner is a helpful identification of the underlying purpose of the statutory provisions as to jurisdiction, namely:
"The underlying purpose of the statutory provision is to ensure a proper and sufficient connection between a propositus and this country to warrant the courts of this country assuming matrimonial jurisdiction "
- Further in my view it is appropriate and helpful to highlight the following citation from Nessa at [1999] 2 FLR at 1120 from the speech of Lord Slynn (part of which was set out by counsel for the Respondent in their submissions), namely:
"In Ex parte Shah [1983] 2 AC 309, 343G-H. Lord Scarman said:
" -------- [habitual residence] -- refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration ."
He further said at 344F:
"The ordinary and natural meaning of the words supplies [a simple test]. For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose."
- I also agree with the submission made by counsel for the Respondent in reliance on Ikimi v Ikimi [2001] 2 FLR 1288 paragraphs 34 to 36 and Armstrong v Armstrong [2003] 2 FLR 375 at paragraphs 12 to 24 and 29 to 31 that the important ingredient of physical presence must be given proper weight in the assessment to whether the propositus is in fact habitually resident at the required time. Ikimi was considering the law before the amendment to take account of Brussels II and thus habitual residence over a period of time but Armstrong was concerned with Brussels II. The citations by the President in Armstrong at paragraphs 12 to 24 are in my view a helpful guide generally and as to the point that a person can have two habitual residences, and I have adopted it. I have also had regard to Al Habtoor v Fotheringham [2001] 1 FLR 951 in particular at paragraph 37 and Re R(Abduction: Habitual Residence) [2004] 1 FLR 216 at paragraphs 34 to 43, on the establishment of a "settled purpose" and thus the length and quality of residence in a country and the point that to acquire habitual residence in country B it is not necessary to establish a settled intention not to return to country A. In Al Habtoor the following submission of leading counsel (who also appeared for the Respondent before me) was accepted namely that:
" ---- the test is not whether the family were settled in Dubai but whether their residence was for a settled purpose, which might be either a purpose of short duration or conditional upon future events."
- In my judgment both Ikimi and Armstrong also demonstrate a link between the issue of jurisdiction and the underlying purpose of the provisions relating to jurisdiction and stay (see for example Ikimi at 1298 where Thorpe LJ says:
" If the requirement [as to bodily presence] is set too high a consequence may be that a spouse having divided the relevant period equally between the two jurisdictions will not be able to invoke a habitual residence jurisdiction in either. Setting the standard too low enables the spouse to invoke the jurisdiction in both. As a matter of policy I, like Coleridge J., would favour a liberal rather than a restrictive outcome. Of course the consequence of liberality may be forum-shopping. But that feature, particularly undesirable in matrimonial proceedings, can be controlled by the power to stay or, in the case of our European partners, by the introduction of an absolute rule: see Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters."
and Armstrong at paragraphs 33 and 34, where the President obiter concluded that on the facts of that case if the husband had been habitually resident in England and Wales applying the guidance in Otobo v Otobo [2003] 1 FLR 192 (which is one of the cases I was referred to) it would be artificial for the wife to come to England and Wales for her financial arrangements to be settled in an English court when the case was clearly a South African case.
- The passages I have referred in the above authorities also show that the issues of habitual residence and of stay are fact specific.
- It was also in my judgment correctly common ground that if a person's presence in England and Wales is unlawful having regard to the law relating to immigration this may prevent that person from successfully asserting that the court has jurisdiction to hear and determine an application by him, or her, on the basis that he, or she, is habitually resident in England and Wales. As to this there is a margin of discretion. This follows from the decision of the Court of Appeal in Mark v Mark [2004] 1 FLR 1069 which also shows the link between the issue of jurisdiction and that of stay (see in particular the following passages – with my emphases):
" So the essential question, ---- becomes: does the rule of public policy stated by Lord Scarman some 20 years ago require recasting following the advent of the Human Rights Act 1998?
The following facts and circumstances of this case, in my judgment, provide the answer:
(i) The wife was not originally an illegal immigrant. She became an overstayer. Her illegality is the product partly of the husband's conduct or design and partly as a result of her almost childish irresponsibility.
(ii) Following what may be the husband's desertion in late 1998 or early 1999, London has been her only home. Apart from holidays she has lived nowhere else since at least 1993. The children are all here, as is the bulk of the husband's fortune.
(iii) Although she has access to the customary courts in Nigeria, her future financial independence can only be established by the courts of this jurisdiction. As Hughes J. held in his judgment of 14 March 2002:
"For these reasons it is quite clear to me that England is the appropriate forum and indeed the only realistic forum for any financial proceedings."
The customary court in Nigeria has no jurisdiction to make ancillary relief orders.
(iv) The court's primary jurisdiction to determine financial rights and responsibilities arises on or after the pronouncement of the divorce. A right to apply under Part III of the Matrimonial and Family Proceedings Act 1984 is not comparable because it is subject to a permission filter. Furthermore, the court's jurisdiction would also be open to challenge.
In all those circumstances I conclude that the wife's Art 6 rights are engaged. The right of access to the courts is not expressly guaranteed by Art 6(1) of the European Convention but, unsurprisingly decisions of the Strasbourg court have made it plain that denial of access to the national courts may amount to a breach of Art 6 Mr Howard, and indeed Mr Nicholls, emphasise the right of the State to impose conditions and limitations on the right of access. But here we consider not a statutory restriction of obvious legitimacy but a rule of public policy which, absolutely applied, would deny access to the divorce court with which she has the closest connection, and after the rejection of a stay application, in the course of which considerations of fairness and convenience were fully canvassed. This case has many unusual features which make it most unsuitable for the formulation of any general principle or rule. But in circumstances where:
(a) the husband invited the wife to petition in London;
(b) the husband in his pleadings prior to March 2002 admitted the court's jurisdiction;
(c) there have been extensive proceedings under Part IV of the Family Law Act 1996 in which the husband has established his right to the continuing use of the former matrimonial home;
(d) the ancillary relief proceedings are well under way with evidence not only from the parties but also from the trustees of the relevant foreign trusts;
a rule of public policy that terminated proceedings so far advanced would not only be perverse but incompatible with the wife's rights under Art 6 (1)." [Thorpe LJ paragraphs 38 to 40]
"Absolute rules have little place in family law. This appeal permits the restoration of the Rayden formulation, which in the context of the court's jurisdiction to entertain a petition for divorce or judicial separation, allows the court a margin of discretion in determining whether or not an element of illegality tainting the entry or stay within the jurisdiction of either the petitioner or the respondent precludes the acquisition of a domicile of choice" [Thorpe LJ paragraph 45]
" ----- it is a matter of some anxiety if the family court had as an absolute rule that there is no jurisdiction in any case where reliance was being placed on a period of illegal residence. Where the person has chosen to be in this country, was married here, had all their assets here, and had what in normal parlance could be described as their home with a family here, it would seem at least to be important. Where, as in many cases, the culpability of their residence being illegal was minimal, the more so." [Waller LJ paragraph 56].
"It seems to me that the application of a blanket rule that reliance on one's own illegal residence cannot be allowed in order to establish habitual residence would be at risk of infringing Art 6. Certainly if as in the instant case where, for the reasons given by Thorpe LJ, the only realistic court so far as the claimant is concerned is the English court, there must be that risk.
I should stress that I am not saying that the illegal conduct of a petitioner will be totally irrelevant in the consideration of whether habitual residence has been established. It is not just residence but habitual residence that has to be shown. The question of habitual residence is a factual one. The illegality of a person's residence may be relevant to considering that factual question. Thus someone who has not got a permanent home, is evading immigration authorities, or someone who is under an order for deportation, will be unlikely to be able to establish habitual residence. But at the other end of the spectrum where someone has a permanent home, married here and has simply overlooked obtaining an extension of their leave to be here, the answer will be that they will be able to establish habitual residence.
My view is in agreement with Thorpe LJ that particularly in the context of Art 6, there should not be an absolute rule by reference to public policy that a person cannot establish habitual residence if what is relied on is a period of their own illegal residence. The illegality and the state of mind that person in relation to that illegality, should be part of the factual investigation as to whether habitual residence has been established." [Waller LJ paragraphs 71 to 73]
- To my mind this approach accords with a liberal approach to the issue of habitual residence on the basis that any unfairness or undesirable consequence arising therefrom can be addressed by the power to stay the proceedings which a petitioner is given the right to pursue by establishing habitual residence (see Ikimi). So in my judgment, although in exercising this margin of discretion the court will bear in mind the consequence that it either gives or deprives a person of a right to begin proceedings, it seems to me that the point that the right to begin proceedings was given by the exercise of discretion is a factor that can be taken into account when considering whether the proceedings should be stayed.
Lawfulness
- On the issue of the lawfulness of the Petitioner's presence in this country the Respondent has made assertions relating to her applications for permission to enter and remain in this country. A recent decision of the ECJ, namely Zhu and Chen v SSHD (the Times 21/10/04 and transcript) is relevant and important. There were competing experts' reports. In the event, in my view correctly neither side called their respective expert but adopted their reports as part of their submissions.
- The decision in Chen affects the position of the right of the Petitioner to reside in England and Wales since the birth of the twins. The Petitioner argues that it means that since that time either her presence in England and Wales was lawful, or should for present purposes be treated as lawful if (contrary to her arguments) it was not otherwise lawful. The Respondent argued that the decision in Chen did not mean that a period in the past when a person was here unlawfully becomes lawful retrospectively. From that proposition it was argued that for the purposes of deciding whether the Petitioner was habitually resident at the dates she issued the two petitions her presence in England and Wales was, and should be, treated as unlawful by reason of the material false representations it was alleged she had made in obtaining permission to enter and remain in England and Wales.
- I shall return to these arguments when dealing with habitual residence. It was not argued that there was a distinction between Mrs Chen's child and the twins or for any other reason that the twins were not Irish nationals.
- Mrs Chen took up residence in the island of Ireland in order to enable the child she was expecting to acquire Irish nationality and, consequently, to enable her to acquire the right to reside, should the occasion arise, with the child in England and Wales. At the relevant time any person born in the island of Ireland was allowed to acquire Irish nationality. The United Kingdom Government argued that because Mrs Chen's move to Northern Ireland was with the aim of having her child acquire the nationality of another Member State it constituted an attempt improperly to exploit the provisions of Community law and this meant that she did not have a right to reside in England and Wales as a parent for the child who is a national of a Member State. This argument was rejected by the ECJ. The ECJ held that:
i) Article 18 EC and Directive 90/364 confer on a young minor who is a national of a Member State, who is covered by appropriate sickness insurance and who is in the care of a parent who is a third country national having sufficient resources for the minor not to become a burden on the public finances of the host Member State, the right to reside for an indefinite period in that State, and
ii) in such circumstances, the same provisions allow a parent who is that minor's primary carer to reside with the child in the host Member State.
- The consequence of the decision in Chen is therefore that as the twins were born in Ireland they are nationals of a Member State and contrary to the arguments (and as I understand it previous practice of the immigration authorities in England and Wales) if, as she has, the Petitioner as their primary carer has chosen to bring them to, and to live with them in, England and Wales she has a right to remain in England and Wales with them, subject to satisfying the conditions relating to sickness insurance and resources.
- To my mind correctly, no point was argued before me that the Petitioner and the twins have not had, and do not have a right to lawfully reside in England and Wales because they did not, could or would not satisfy those conditions.
- In my judgment, as with decisions of the English courts on the effect of legislation, the decision in Chen declares what the rights to reside in England and Wales of the twins and the Petitioner have been since the birth of the twins albeit that if, prior to the decision in Chen, the Petitioner had sought to assert such rights they would have been denied by the immigration authorities in England and Wales (although it may well have been that they would have been allowed to remain in England and Wales pending the decision in Chen).
- Thus at the time of issue of the two petitions, and throughout the year preceding those dates, because the twins are nationals of a Member State by virtue of their birth the Petitioner as their primary carer had a right to reside in England and Wales.
Stay
- Again unsurprisingly there was effective common ground as to the authorities that are relevant and the approach to be taken by this court having regard to them on the question whether a stay should be granted.
- Section 5 (6) DMPA 1973 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, and as to the other matters dealt with in that Schedule; but nothing in the Schedule –
(a) ----------------------------
(b) prejudices any power to stay proceedings which is exercisable by the court apart from the Schedule."
- Paragraph 8 of Schedule 1 deals with obligatory stays which concern proceedings in a related jurisdiction as defined in paragraph 3 and does not apply. Paragraph 9 relates to discretionary stays and provides as follows:
"9 Discretionary stays
(1) Where before the beginning of the trial or first trial in any matrimonial proceedings, other than proceedings governed by the Council Regulation, which are continuing in the court it appears to the court -
(a) that any proceedings in respect of the marriage in question, 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 the proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings in the court or in those proceedings so far as they consist of a particular kind of matrimonial proceedings,
the court may then, if it thinks fit, order that the proceedings in the court be stayed or, as the case may be, that those proceedings be stayed so far as they consist of proceedings of that kind.
(2) In considering the balance of fairness and convenience for the purposes of subparagraph (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."
- As appears therefrom paragraph 9 of Schedule 1 applies to "matrimonial proceedings" which are defined in paragraph 2 of Schedule 1 as follows:
"matrimonial proceedings" means any proceedings so far as they are one or more of the five following kinds, namely, proceedings for
divorce,
judicial separation,
nullity of marriage,
a declaration as to the validity of the marriage of the petitioner, and
a declaration as to the subsistence of such a marriage".
- Paragraph 10 of Schedule 1 provides as follows:
"10 (1) Where an order staying any proceedings is in force in pursuance of paragraph 8 or 9 above, the court may, if it thinks fit, on the application of a party to the proceedings, discharge the order if it appears to the court that the other proceedings by reference to which the order was made are stayed or concluded, or that a party to those proceedings has delayed unreasonably in prosecuting them."
- Paragraph 11 of Schedule I provides as follows:
11 (1) The provisions of subparagraph is (2) and (3) below shall apply (subject to subparagraph (4)) where proceedings for divorce, judicial separation nullity of marriage are stayed by reference to proceedings in a related jurisdiction for divorce, judicial separation or nullity of marriage; (my emphasis) and in this paragraph -
"lump sum order" means ---- [and a definition by reference to UK legislation is given]
"the other proceedings" in relation to any stayed proceedings, means the proceedings in another jurisdiction by reference to which the stay was imposed
" relevant order" means
(a) an order under section 22 of the Matrimonial Causes Act 1973 (maintenance for spouse pending suit)
(b) ------
"stayed" means stayed in pursuance of this Schedule.
(2) Where any proceedings are stayed, then, without prejudice to the effect of the stay apart from this paragraph
(a) the court shall not have power to make a relevant order or a lump sum order in connection with the stayed proceedings except in pursuance of paragraph (c) below; and
(b) subject to paragraph (c) below, any relevant order made in connection with the stayed proceedings shall, unless the stay is previously removed or the order previously discharged, cease to have effect on the expiration of the period of three months beginning with the date on which the stay was imposed; but
(c) if the court considers that, for the purpose of dealing with circumstances needing to be dealt with urgently, it is necessary during or after that period to make a relevant order or a lump sum order in connection with the stayed proceedings or to extend or further extend the duration of a relevant order made in connection with the stayed proceedings, the court may do so and the order shall not cease to have effect by virtue of paragraph (b) above.
(5) Nothing in this paragraph affects any power of the court
(a) to vary or discharge a relevant order so far as the order is for the time being in force; or
(b) to enforce a relevant order in respect of any period when it is or was in force; or
(c) to make a relevant order or a lump sum order in connection with proceedings which were but are no longer stayed. "
- The approach to the statutory test. I was referred to de Dampierre v de Dampierre [1987] 2 FLR 300, a decision of the House of Lords, Butler v Butler (Nos 1 and 2) [1997] 2 FLR 311, and Otobo v Otobo [2003] 1 FLR 192 (both decisions of the Court of Appeal), R v R [1994] 2 FLR 1036 and S v S (Divorce: Staying Proceedings) [1997] 2 FLR 100. I was also referred to the decision of the House of Lords in Spiliada Maritime Corporation v Cansulex [1987] 1 AC 460.
- As Wilson J points out in S v S (at [1997] 2 FLR 110/111) in de Dampierre the House of Lords decided that the inquiry into the balance of fairness required by the statutory test should be conducted by reference to the principles and approach now deployed in the exercise of the inherent jurisdiction to stay non-matrimonial proceedings where the English forum is non conveniens (see for example, the speech of Lord Goff in de Dampierre at [1987] 2 FLR 311 to 312).
- To my mind that passage from the speech of Lord Goff (part of which is set out below) shows that this approach is an example of a process applied in a number of other areas by which the courts in exercising a discretion conferred by statute or the inherent jurisdiction to achieve the same or similar purposes seek consistency of approach, and assistance, by applying the approach developed in one area to the other.
- In the words of Lord Goff in Spiliada at [1987] AC 460, 477E to 478D the principles and approach to be applied in deciding which is the appropriate forum for the trial (see [1987] AC 476C), or the "balance of fairness" are:
" -------- the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum that is clearly or distinctly more appropriate than the English forum. In this way, proper regard is paid to the fact that jurisdiction has been founded in England as of right --------- "
" Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described in --------- as indicating that justice can be done in the other forum at "substantially less inconvenience or expense." Having regard to the anxiety expressed in your Lordships' House in --------- concerning the use of the word "convenience" in this context, I respectfully consider that it may be more desirable, now that the English and Scottish principles are regarded as being the same, to adopt the expression used by my noble and learned friend, Lord Keith of Kinkel, in The Abidin Daver ------------ when he referred to the "natural forum" as being "that with which the action has the most real and substantial connection." So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses) but also other factors such as the law governing the relevant transaction ----- and the places where the parties respectively reside or carry on business"
"If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay ----- It is difficult to imagine circumstances where, in such a case, a stay may be granted"
"If however the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not been granted. In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors in other jurisdictions ----- on this inquiry, the burden of proof shifts to the plaintiff ."
- In de Dampierre ([1987] 2 FLR at 310) Lord Goff summarised the approach in the following terms:
" Under the principle of forum non conveniens, applicable in England as well as in Scotland, the court may exercise its discretion and its inherent jurisdiction to grant a stay where "it is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of the parties and the ends of justice" -------- . The effect is that the court in this country first looks to see what factors there are which connect the case with another forum. If, on the basis of that inquiry, the court concludes that there is another available forum which, prime facie, is clearly more appropriate for the trial of the action, it will ordinarily grant a stay, unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted ------- "
- In argument I was referred to comments of Hobhouse LJ in Butler (at [1997] 2 FLR 330) that in his view:
i) the "balance of fairness" effectively reflects the same consideration as "appropriate" forum as used by Lords Templeman and Goff in Spiliada, and
ii) in Butler the judge had erred by substituting for an assessment of the balance of fairness, a test requiring the applicant for a stay to show that the other jurisdiction is "clearly or distinctly more appropriate" and that all the applicant has to show under the statutory test is that the balance of fairness supports the grant of a stay.
In my view, when read in context and in the light of earlier authority, those passages do not amount to an assertion by Hobhouse LJ (which would in any event in my view conflict with the decision in de Dampierre) that the two stage approach set out in the passages quoted above from the speeches Lord Goff in Spiliada and de Dampierre should not be applied in ascertaining where the "balance of fairness" lies when applying the statutory test, or in determining what is the "appropriate" forum. Indeed the passage cited by Hobhouse LJ in which Lord Goff refers to the appropriate forum is the passage in which Lord Goff states that the basic principle is that a stay will only be granted if the court is satisfied that there is a more appropriate forum; Lord Goff then goes on to set out the approach that should be applied in making that decision (see the passages cited above).
- To my mind this conclusion (a) does not detract from the point made by Hobhouse LJ that in matrimonial proceedings the court is applying a statutory test (see also Otobo at [2003] 1 FLR paragraph 63) and the statutory test is the balance of fairness, but (b) is a reminder that the House of Lords, although anxious not to fetter the broad statutory discretion, has decided and directed the courts when exercising that statutory discretion to apply the approach referred to above.
- As appears from the passages set out above, in setting out the approach to be applied Lord Goff uses the word "appropriate" in two places (1) in setting out the basic principle, and (2) then in stating that the defendant has to establish that there is another available forum which is clearly or distinctly more appropriate, and he goes on to say that in deciding that the court looks at the factors which connect the case with another forum.
- I also agree with Wilson J in S v S (at [1997] 2 FLR 112) that the requirement of the "clearly or distinctly more appropriate foreign forum" is the way in which, in the overall survey of fairness, the point that the rights of a spouse who is habitually resident in this country to litigate here should not lightly be lost by a stay being granted, is accommodated (see for example the end of the first passage quoted above from the speech of Lord Goff in Spiliada and the whole of subparagraph (c) from which it is taken).
- I add that in my view it should be remembered that the approach set out in the the speech of Lord Goff in Spiliada is not in absolute terms, contains words of degree and at the end of the first stage refers to a prima facie position. Also it provides a two stage approach and reasoning process that is fact and issue sensitive. Thus, for example, in my view:
i) the force of points establishing that a foreign forum is clearly or distinctly more appropriate (or the connecting factors that make it the natural forum), and
ii) the basis upon which the litigant acquired the right to issue proceedings in England and Wales and the relevant foreign jurisdiction
may have to be revisited and reassessed at the second stage in deciding where overall fairness lies. I have already referred to point (ii) in the last paragraph under the heading "Jurisdiction" (paragraph 75). Further as to this in de Dampierre [1987] 2 FLR at 311 (part of the passage referred to but not cited earlier) Lord Goff says:
" It is, I consider, in this connection desirable to consider the meaning of the expression "balance of fairness" in para. 9(1). No doubt there are circumstances when it can plainly be perceived that it is more fair that proceedings should proceed in a foreign jurisdiction than this country. But experience shows that there are difficulties. First, there are factors which cannot evenly be weighed, the one class of factors may be simply relevant as connecting the dispute with a particular forum; whereas another class of factors (which may embrace the former) may point to injustice arising if the dispute is remitted to that forum. It is necessary, therefore, so to structure the enquiry as to differentiate between these two classes of factors, and decide how each should be approached in relation to the other. Second, a factor may be such that its advantage to one party may be counterbalanced by the disadvantage to the other; and a decision has to be made as to how such factors should be taken into account in considering "the balance of fairness" between the parties. The principle of forum non conveniens has now been developed in such a way that such matters can be approached both consistently in the cases and always in accordance with the underlying principle of justice. Such an approach is as desirable in cases arising under the statue as it is in cases arising under the inherent jurisdiction.
For these reasons, anxious though I am not to fetter in any way the broad discretion conferred by the statue, it appears to me to be inherently desirable that judges of first instance should approach their task in cases under the statute in the same way as they now do in cases of forum non conveniens where there is a lis alibi pendens."
- The two man court in Butler (No 1) differed as to what connecting factors could be taken into account at the first stage and thus in deciding whether the foreign forum was clearly and distinctly more appropriate, or the natural forum. I agree with the submission of counsel for the Petitioner that this difference of view was not expressly addressed by the three man court. It is not necessary for me to address this point because in my view at the first stage the answer is the same on both approaches.
- However in my judgment the reference to "where the parties respectively reside or carry on business" in the passage quoted above from the speech of Lord Goff concerning the "connecting factors" supports the wider approach taken by Thorpe LJ and by Ward LJ (as a member of the three man court) at [1997] 2 FLR 333/4. Ward LJ records that there was no point in justice or fairness which meant that the husband should not be shut out from England and Wales jurisdiction and therefore that the issue was "with which jurisdiction are these proceedings more closely connected?". He answered that by considering with which country the marriage had its closest connection.
- In any event it is clear that at the second stage all the relevant history falls to be taken into account including the questions with which country does the relationship between the parties have its closest connection and litigation conduct (see Otobo [2003] 1 FLR at paragraph 64). There the litigation misconduct alleged was that the application for a stay had been manipulated and contrived after the delivery of the experts' agreed report.
- Here the Petitioner argues (1) that Nigeria is not clearly and distinctly the more appropriate forum, and (2) if that is wrong (and in any event) there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. High amongst those circumstances is the point that if the proceedings in England are stayed the Petitioner will be deprived of the advantage of claiming ancillary relief in those proceedings. This engages the points raised late in the day in respect of the ability of the Petitioner to claim under Part III of the MFPA 1984, the ability of the children to claim financial relief under the Children Act 1989, the imposition of conditions in granting a stay and the continuation of interim relief. However as opened this point was made more starkly and was that if the English proceedings were stayed the Petitioner would not be able to obtain financial relief.
- I was not referred to another case in which either (1) the law of the country of which the parties were nationals, and in which they were married, did not give a spouse rights to ancillary relief, as is the position in Nigeria in respect of a customary marriage, or (2) the impact of Part III MFPA, the impositions of conditions on the stay and the continuation of interim relief have been considered in the application of the statutory test under the DMPA 1973.
- In Otobo the issues related to a statutory marriage and the Court of Appeal accepted the submission that the husband's challenge to its validity was "transparently unmeritorious". I have rejected this aspect of the Petitioner's case and note that in Otobo the Court of Appeal accepted that if an issue had had to be tried as to whether an inference of adultery could be drawn against the wife from the evidence of the servants as to association and opportunity the exercise would clearly be better conducted in Nigeria (see paragraph 56).
- I pause to record that in my judgment correctly neither side sought to rely on an argument that in this case a consideration of where proceedings were first issued carried any weight, notwithstanding Otobo at paragraph 63.
- In Otobo at paragraph 57, Thorpe LJ addresses the point of the approach to be taken when the foreign jurisdiction gives different relief on divorce. He said:
"------- That introduces what to me is potentially the most difficult consequence of continuing proceedings in this jurisdiction to conclusion. In carrying out the exercise under s. 25 , to what extent should the judge reflect the fact that this is primarily a Nigerian family with only secondary attachment in this jurisdiction and culture? It is my opinion that if the ancillary relief order is to be determined by a London judge (and any order would be manifestly enforceable against London assets) he should give due weight to what I might loosely described as Nigerian factors and not ignore the differential between what the wife might anticipate from a determination in London as opposed to a determination in Lagos. The dispute to date, like most of these disputes as to jurisdiction, has undoubtedly been driven by the husband's conviction that a Lagos award would be to his advantage and the wife's contrary conviction that a London award be more generous. These contests are particularly arid and in my view should be discouraged by permitting a reflection of the differential within the review under s. 25(1) of the Matrimonial Causes Act 1973 of "all the circumstances of the case". I accept the consequence that the ancillary relief trial in London would be more complex and more expensive than it would be in a conventional case between British subjects. "
- I respectfully agree that the position in Nigeria, and Nigerian factors, would be a relevant factor to bring into account under s. 25 MCA 1973 and indeed s. 22 thereof. In Otobo Thorpe LJ was not dealing with the point that if the Petitioner established the marriage she was alleging she would not be entitled to any ancillary relief under Nigerian law because the marriage was a customary marriage.
- I accept that (a) there is room for argument as to the effect the point that under Nigerian law a wife under a customary marriage has no entitlement to ancillary relief should have generally, or in this case, on an award of ancillary relief by the English court, and (b) that it is likely that its effect would be case specific. Also I acknowledge and record that it was not argued on behalf of the Respondent that the Petitioner would, or should, or would be likely to, receive nothing by way of ancillary relief if she is permitted to pursue the petitions. Indeed the battle lines have been drawn in this case against the background that the Petitioner either would obtain, or would have a realistic chance of obtaining, a substantial award if her petitions are not stayed.
- I proceed on that basis. Nonetheless in my judgment the position of the Petitioner on her case that she entered into a customary marriage with the Respondent, namely that she would not be entitled to ancillary relief in Nigeria, and her knowledge of this, are factors to be taken into account in deciding the balance of fairness.
- Issues that the wife would, or might, receive a lower award in the foreign court lie behind many of the cases on stay and in particular they are specifically raised and discussed in de Dampierre v de Dampierre [1987] 2 FLR 300, R v R [1994] 2 FLR 1036 (in respect of a marriage contract) and S v S (Divorce: Staying Proceedings) [1997] 2 FLR 100 (in respect of a pre nuptial settlement). de Dampierre is the leading authority. In it a stay was granted and following the guidance therein in R v R a stay was refused and in S v S a stay was granted. These cases show (if it be necessary) that fairness depends on the facts of each case however in my view the following passages from the speech of Lord Templeman in de Dampierre, which are directed to the second stage of the approach, are of particular relevance:
"The wife opposes a stay of her divorce proceedings in England and the courts below refused to grant a stay for one reason and one reason only. In divorce proceedings in this country the wife is likely to obtain substantial financial relief by way of maintenance and a lump sum payment, notwithstanding any responsibility she may have for the break-up of the marriage. Under French law a wife is entitled on divorce to similar financial relief if the breakdown of the marriage is due to the conduct of the husband or if responsibility for the breakdown of the marriage is shared (as it usually is shared) by both parties. But a wife who is found to be exclusively blameworthy for the breakdown of the marriage may be denied financial ancillary relief, save for maintenance payments which will enable her to provide a home for an infant child of the marriage in the style and manner appropriate to the expectations of the child and suitable for the comfort and welfare of the child. By prosecuting the English divorce proceedings the wife insures against the risk of the consequences which might ensue if she were found by the French court to be exclusively responsible for the breakdown of the marriage.
The President and the Court of Appeal thought that if the wife might be financially worse off under French law than under English law she was entitled to pursue her proceedings in England.
Lord Diplock was assuming a case where it is not unjust for the plaintiff to seek to exploit the advantage which he finds in England. In my opinion, the tests adumbrated by Lord Diplock are not satisfied merely by proving that the plaintiff has an advantage in England in that he may recover in England that which he might not recover abroad. The court must consider whether in all the circumstances it is just that the plaintiff should be allowed to exploit and enforce his English advantage and should only refuse a stay if it would be unjust to confine the plaintiff to his remedies elsewhere.
My noble and learned friend Lord Goff of Chieveley, in his definitive speech in Spiliada -------- confirmed that the mere fact that the plaintiff had a legitimate personal or juridical advantage in proceedings in England cannot be decisive.
----------- In my opinion, a plaintiff cannot rely on an advantage of the kind mentioned by Lord Diplock if it would be unjust to the defendant to allow the plaintiff to do so. Put the other way, the plaintiff may be allowed to pursue an action which the English court has jurisdiction to entertain if it would be unjust to the plaintiff to confine him to remedies elsewhere.
----------- The court must identify and evaluate the advantage claimed by the wife. There are many circumstances in which it would be unfair to the wife to deny her the advantage of claiming maintenance from an English court. For example, if the husband's assets were wholly or mainly in England, or if the wife remained in England, or if the English proceedings would render the French proceedings wholly unnecessary, it might well be unfair to tell the wife to litigate in France and unfair to stay the wife's English proceedings. The extent of the possible disadvantages to a wife if she is confined to the remedies in a foreign forum is another relevant circumstance. For example, if French law provided that on divorce a guilty wife shall be punished and an innocent wife returned to her parents without maintenance or compensation, the wife, at any rate if resident in England, could fairly claim from an English court maintenance from the husband's assets in England; the husband would behave unfairly if he refused to support his wife and sought a stay of the English proceedings. Fairness depends on the facts of each case and there is no shortcut.
[Lord Templeman then deals with the facts of the case]
If it is not unfair to confine the wife to her rights under French law with regard to maintenance, then a stay of the English proceedings must be ordered.
The proceedings are only designed to improve the wife's right to maintenance and bring pressure to bear on the husband. It would be unfair to allow the wife to effect any such improvement and the action must therefore be stayed "
- So the point that the Petitioner either would obtain, or would have a realistic chance of obtaining, a substantial financial award if her petitions are not stayed is a factor against the grant of a stay that has weight and has to be considered in all the circumstances of this case in deciding where the balance of fairness lies.
- In my judgment such circumstances include a consideration of the financial provisions that might be made in favour of the Petitioner and further or alternatively the children if the proceedings are stayed and as I have mentioned above this engages the points raised late in the hearing in respect of the ability of the Petitioner to claim under Part III of the MFPA 1984, the ability of the children to claim financial relief under the Children Act 1989, the imposition of conditions in granting a stay and the continuation of interim relief.
- Fairness of the foreign court. In The Abidin Daver [1984] AC 398 at 411C, Lord Diplock said:
" ---- a plaintiff in an English action, if he wishes to resist a stay upon the ground that even-handed justice may not be done in that particular foreign jurisdiction, must assert this candidly and support his allegations with positive and cogent evidence".
In their opening submissions counsel for the Petitioner submitted that although the Petitioner has always believed that the Respondent would be able to use his power and wealth to influence the Nigerian courts this was not a matter raised before me and that this omission was deliberate because her advisers had this passage in mind. They however then sought to rely on evidence volunteered by Mr O (the Petitioner's Nigerian solicitor) to assert that the Petitioner would not be treated fairly in the Nigerian courts and that his evidence (standing alone) satisfied the criteria set out by Lord Diplock. In their final submissions counsel for the Petitioner abandoned this argument.
- In my judgment having regard to the quality of the evidence of Mr O (and the lack of other evidence on the point) they were quite right to do so.
The continuation of interim relief and/or the imposition of conditions if a stay is granted
- It was common ground that under the inherent jurisdiction the court can and does impose conditions to a stay (see for example Krenge v Krenge [1999] 1 FLR 969 and D v P [1998] 2 FLR 25), in both the condition related to costs. In the former, where the wife had legal aid in this country, the condition provided that the husband was to pay the wife's reasonable travel costs to, and legal fees in, Germany, and in the latter it provided that costs of the proceedings in this country were to be paid. In my judgment the court clearly has such a power in the exercise of its discretionary jurisdiction under the inherent jurisdiction.
Continuation of interim relief – the freezing orders and the MPS order
- The argument revolved around whether as a condition of granting a stay I had the discretionary power to continue the freezing orders and the order for MPS (subject to variation as to the level of costs to recognise that the litigation would be in Nigeria), and not as to whether one or both would continue unless expressly stayed. To my mind this reflects a natural instinct that a stay would cause them to cease to have effect unless the contrary was ordered.
- The first argument of the Petitioner was that the reference in paragraph 9(1)(b) of Schedule 1 DMPA 1973 to "a particular kind of matrimonial proceedings" means that I could stay the suit as a whole save for the freezing orders and the MPS order. I do not agree because, in my judgment:
i) the reference to a particular kind of matrimonial proceedings refers back to the kinds of proceedings in the definition in paragraph 2, and
ii) the freezing orders and the MPS order are interlocutory orders that are parasitic and dependent on the first three kinds of proceedings listed in the definition.
- In my judgment this conclusion is supported by what Ward LJ says in Butler (No 2) at 331, namely that what falls to be considered is the divorce suit as a whole, and the following comments of Thorpe LJ in this case when it was before the Court of Appeal on 23 September 2004, namely:
"I come finally to paragraph (iii) of Mr Scott's order, which seeks that the appeal be struck out unless the husband pays in full both elements of the maintenance pending suit order as they fall due. I would add to that "in the months of September and October 2004". All we are imposing under paragraph (iii) of the proposed order is that there be a strike out unless the husband pays the two instalments of future maintenance pending suit that will fall due between today and the fixture in the Family Division. Mr Scott has told us that each month the due date is the 28th and therefore the obligation -- let everybody be clear about this -- is to pay the £39,000 for the month of September on 28 September, and the £39,000 due for the month of October on 28 October Thereafter the position will be entirely dependent on the outcome of the trial on 15 November. Obviously if the husband were to succeed on any of the grounds that he advances for challenging jurisdiction, or were he to succeed on his forum non conveniens application, then this ceases to be London business and the order falls away. Those are the orders which I would propose."
This passage is a clear indication that Thorpe LJ expected the MPS order to fall away if a stay was granted. I respectfully agree that absent a statutory provision that continued an MPS order (which provides for payments on a regular basis during and ending with the determination of a suit - see s. 22 MCA 1973) the natural consequence of a stay of the suit is that the MPS order ceases to have effect over the course of the stay.
- Paragraph 11 of Schedule 1 makes provision for the continuation of an MPS order when there is an obligatory stay by reference to the first three types of matrimonial proceedings (as defined) in a related jurisdiction (i.e. Scotland, Northern Ireland, Jersey, Guernsey and the Isle of Man). Clearly this is not directed to discretionary stays and to my mind does not provide any real guidance as to the effect of a discretionary stay on an MPS order. But, if anything, in my judgment it is an indication that the natural consequence of a stay of matrimonial proceedings (which has the result that until the stay is lifted (i) no order for divorce, judicial separation or nullity could be made, and thus (ii) no order for ancillary relief could be made) is that an order for MPS made in the stayed proceedings should cease to have effect on the grant of the stay.
- Also it seems to me that the continuation of an order for MPS for three months (subject to an order under sub-paragraph 11 (2)(c)) on a compulsory stay is a recognition that the stay is compulsory and of the close connection of the related jurisdictions, rather than an indication that on a discretionary stay an MPS order would, or should, continue absent an order staying it. Further, and in any event, in my view it is not an indication that the court should not as a matter of course when making an order staying matrimonial proceedings under the MCA 1973 also an make an order that an MPS order made therein is to cease to have effect.
- However a stay in pursuance of the statutory power is not a dismissal (although whilst it continues the court is in effect declining to exercise its jurisdiction – see CPR 9A-165) and it could be lifted pursuant to paragraph 10 of Schedule 1. Thus a possibility remains that a stay could be lifted and an order for divorce, judicial separation or nullity could be granted in the stayed proceedings which would trigger the power in s. 23 MCA 1973 to make an order for ancillary relief in those proceedings. In my judgment this possibility has different consequences in respect of a freezing order and an order for MPS.
- I add that in my judgment on the true construction of Schedule 1 the circumstances referred to in paragraph 10 thereof are not the only ones in which a stay can be lifted or will come to an end. To my mind given the discretionary nature of the jurisdiction and the nature of the order for a stay if there was a significant change in circumstances that had not been foreseen when the stay was granted the court could lift the stay. Also in my judgment, as appears below the court can impose conditions on a stay and thus provide that it is to last for a defined time or whilst a condition subsists (in both cases subject to further order in the meantime) or simply until further order (with liberty to apply in defined circumstances or generally). Further paragraph 9(1)(b) shows that the balance of fairness is considered by reference to the question whether the foreign proceedings should be determined before further steps are taken in the English proceedings and thus first. In my judgment this indicates that the stay can be, and perhaps in many cases should be, in terms that it comes to an end on disposal of the foreign proceedings, or could be lifted when this occurs.
- In my judgment, the point that a stay is not a dismissal and the possibility that it may be lifted before the foreign proceedings are determined, or will then come to an end (or may then be lifted) leaves in place matrimonial proceedings under the MCA in England (and a right to relief) in respect of which an interlocutory order (and thus a freezing order) could be granted or continued under s. 37 Supreme Court Act 1981. As such interim orders are granted until further order it seems to me that any existing freezing order should be reconsidered if a stay of the proceedings in which it was granted is ordered.
- The same point on reconsideration applies to an order for MPS. This means that an argument whether either a freezing order, or an order for MPS, continues automatically if nothing is said about it when a stay is granted is of only academic interest for present purposes, because I will reconsider both interim orders.
- However in my judgment there is a significant difference between the continuation, or re-granting, of a freezing order and an order for MPS. It arises because the effect of a freezing order is to preserve assets so that if a final order is made in favour of a party, funds will be available to meet it. In contrast an order for MPS provides for regular payments during, and ending with, the determination of the suit (or earlier order). To my mind this means that a prerequisite, or condition precedent, to the exercise of the discretion under s. 22 to make an order for MPS is the existence of an active petition for divorce, judicial separation or nullity under the MCA 1973 and thus the trigger for the grant of an MPS order. In my view the point that a stay might be lifted or that it will or may come to an end does not satisfy that requirement.
- Thus in my view, absent statutory provision to the contrary (i.e. paragraph 11 of Schedule 1 DMPA 1973) an implied or inherent term of an order for MPS under s. 22 MCA 1973 is that it ceases to have effect, or falls away, if the proceedings under the MCA 1973 in which it was made are stayed because the stay brings to an end the existence of the trigger to the power to make an MPS order. But to avoid doubt it would in my view be good practice for a court granting a stay of matrimonial proceedings to expressly stay any existing order for MPS as a matter of course.
- The upshot of this reasoning is that in my judgment:
i) if I order a stay, I do not have a discretion to continue or make an order for MPS under s. 22 of the MCA 1973 and as a matter of course it falls away,
ii) if there is power to impose conditions on the grant of a stay an equivalent provision might be imposed as such a condition (I consider later whether a power to impose conditions exists),
iii) the court would have jurisdiction to continue or grant a freezing order to preserve assets to cover the eventuality that the stay was lifted pursuant to paragraph 10 of Schedule 1 or for other reasons and the eventuality of it ending when the foreign proceedings are disposed of (see s. 37 Supreme Court Act 1981). In my view such an injunction would be in support of an existing cause of action in the stayed proceedings,
iv) if there is power to impose conditions on the grant of a stay, as an alternative to (iii) the court could refuse to grant the stay save on condition that the Respondent undertook to freeze identified assets, and in my view the court could do this even if it could not make an injunction under (iii), and
v) these points are factors to be considered when deciding whether or not a stay should be granted.
- I have not, as yet, been asked to make freezing orders in respect of other proceedings in this jurisdiction (e.g. proceedings by the twins under the Children Act 1989) or mirror orders by reference to foreign proceedings and injunctions. It seems to me that this gives rise to separate considerations which might impact the discretion to continue or vary a freezing order in stayed proceedings or lead to its discharge.
Conditions
- In my judgment in exercising the statutory power to grant a stay the court has the power to impose conditions. Paragraph 9(1) of Schedule 1 gives the court a discretion if it appears to it that sub-paragraphs 9(1) (a) and (b) are satisfied. Thus it could refuse to grant a stay in those circumstances. In my judgment on its true construction paragraph 9(1) does not provide that the court has to consider the balance of fairness on the basis that no conditions are to be, or can be, imposed and that if as a result of that exercise, either:
i) it is not satisfied that the balance of fairness makes it appropriate for the foreign proceedings to be disposed of first it cannot grant a stay on conditions which would mean that the balance of fairness favoured a stay (so that the foreign proceedings were disposed of before further steps were taken in the English proceedings), or
ii) it is satisfied that the balance of fairness makes that appropriate it cannot impose conditions on the grant of a stay.
In my view both lines of argument are far too pedantic and the court can ask itself the simpler overall question whether the balance of fairness makes it appropriate to grant a stay.
- Naturally and inevitably as part of that exercise the court will have to pose itself the statutory question set out in paragraph 9(1)(b) and answer it. But in my judgment the test of "balance of fairness" contained therein when read (i) with the discretion given by the words "may then, if it thinks fit" that follow, or (ii) in isolation, mean that in doing so the court should consider all the relevant circumstances and these would include a consideration of the possible terms and conditions of a stay.
- In my judgment these conclusions are supported by the points that:
i) the natural approach to paragraph 9 is to have regard to all the circumstances,
ii) the House of Lords has decided that the approach taken under the inherent jurisdiction is to be taken in the application of the statutory test, and the inherent jurisdiction to grant a stay is one that gives the court flexibility as to the terms of a stay, and
iii) possibly, as the Petitioner submitted s. 5(6)(b) DMPA provides that nothing in Schedule 1 prejudices any power to stay proceedings which is exercisable apart from the Schedule. However, to my mind there are some problems as to how this provision operates because it is clear that Schedule 1 is to be exercised rather than the inherent jurisdiction when the basis for a stay of matrimonial proceedings is the existence of foreign proceedings and thus as to whether it can be regarded as a "back stop" or alternative in such circumstances. In my judgment it may be that this provision is designed to cover other bases for a stay not involving foreign proceedings (as to such other bases for a stay see CPR 9A- 161 et seq, which also shows the flexibility of an order for a stay granted on such bases, and under the inherent jurisdiction, for example as to its length).
- Further in my judgment these conclusions and the general flexibility that the court has when granting a stay mean that when doing so under the statutory power the court is not bound to grant the stay until, and on the basis that it will automatically end when, the proceedings in the foreign jurisdiction are disposed of (even if this could be clearly defined in the order). Rather in my view they found the conclusion that when satisfied on the statutory question posed by paragraph 9(1)(b) the court can grant a stay until that event or further order, or until further order with liberty to apply to discharge or vary the stay when the foreign proceedings have been disposed of or under paragraph 10 or on other defined terms or generally.
The application to strike out the second petition
- The Respondent seeks an order dismissing the second petition on the basis that it discloses no reasonable cause of action or that it is vexatious or an abuse of process. He founds all three heads on the points that a couple cannot contract two marriages, that the Petitioner (and her parents) say that the Petitioner did not intend to marry at the second ceremony and that they and the Petitioner's expert in Nigerian law assert that this ceremony was not a valid marriage but a celebration of the earlier marriage the Petitioner asserts and relies on.
- These arguments are thus founded on the Petitioner's assertion as to the first ceremony rather than those of the Respondent who, it should be remembered, advances a number of arguments in the alternative as to both ceremonies. Also it should be remembered that the Petitioner only seeks to rely on the second ceremony if for some reason she fails on her case in respect of the first ceremony.
- In those circumstances, given the number of alternatives in play and notwithstanding that there are:
i) some inconsistencies between the Petitioner's alternative cases (as there are with the Respondent's alternatives that the first ceremony did not take place but if it did it did not constitute a valid customary marriage), and
ii) some difficulties as to intention in respect of the Petitioner's reliance on the second ceremony even if the first one did not take place, or was ineffective,
in my judgment it cannot be said that her alternative case in reliance on the second ceremony in the second petition (and which could not be included in the first petition) discloses no reasonable cause of action or is vexatious or an abuse because that alternative case will obviously and inevitably fail, or for any other reason.
- I therefore refuse to strike out the second petition.
Some findings of fact
(1) Overriding impression and finding
- In line with my finding on credibility my overriding impression and finding having regard to the written and oral evidence is that the position throughout the relationship of the parties was generally that they both had their own separate agendas and they were not open and honest with each other.
(2) The Petitioner's knowledge of the position in Nigerian law as to (i) the effect of a statutory marriage on a subsequent customary marriage and (ii) the position of a wife under a customary marriage who is divorced.
- In my judgment from her legal training and her general knowledge in 1993 and thereafter the Petitioner knew, and has known, that:
i) a prior statutory marriage renders a customary marriage ineffective. Indeed part of her case is that the Respondent misrepresented to her that his marriage to G was a customary marriage, and
ii) a wife who is married by virtue of a customary marriage has no claim for financial support from her husband on divorce, although the children of the marriage can make such a claim (and I add that if I am wrong about this she knew that any such claim by a wife would be very limited – see paragraph 27 of her affidavit sworn on 14 April 2003 in support of an anti suit injunction which I comment on under the heading "the application for an anti suit injunction on 15 April 2003, and consider to be disingenuous").
If the Petitioner did not know any of these points before she wrote her dissertation for her course at Buckingham University it seems to me that her ignorance would not have survived the work she did on, and for, that dissertation.
(3) The Petitioner's knowledge of her insecurity and vulnerability
- In 1993, when she asserts she married the Respondent, the Petitioner, on her own case knew that he was already married to G and had a relationship with Y (and later she knew that he had entered into ceremonies of marriage with Y). On her case she therefore knew that she was a party to a polygamous marriage and I have found that she knew that she would have no claim for ancillary relief against the Respondent in Nigeria.
- Further on her own case she was aware that she was dependent on the Respondent funding her living and other expenses in England, although she carried out some business activities.
- Also it seems to me on her own case, but in any event I find, that she knew that the Respondent wanted children (particularly boys) and that if as a result of the IVF treatment she bore him children this would be likely to delight them both and as the mother of the children her security in her relationship with the Respondent would be likely to increase. In saying this I am not suggesting that the Petitioner agreed and tried to have children for this reason, rather I am pointing out that she was aware that if, as she and the Respondent wanted, she bore him children this would be one of the consequences.
(4) The Petitioner's knowledge that she would or might be able to claim ancillary relief in this country
- In my judgment by reason of her training and general knowledge and the work she did on, and for, her dissertation at Buckingham University by Autumn 2000 at the latest (when she completed her course at Buckingham University) the Petitioner was aware that if she established that the parties had entered into a customary marriage she would, or might, be able to claim ancillary relief from the Respondent if she was habitually resident in England and Wales.
- It follows that in my judgment part of the background to the events from late 2000 is that she had this knowledge.
(5) The IVF treatment at Bourn Hall
- It is clear that the Respondent agreed to and took part in some of such treatment and to my mind the dispute as to who identified the clinic and his participation in 1998 is not relevant for present purposes. Further it became common ground that the Respondent did not sign a form in late 2001 relating to the treatment which it seems resulted in the Petitioner's pregnancy however I accept her evidence that when she signed the form using his name she reasonably believed that the Respondent would not object. Further, and in any event, it is clear that following the birth of the twins the Respondent was delighted and raised no objections to the Petitioner having the treatment that led to her pregnancy. Indeed, so far as I am aware he raised no such objection during her pregnancy. To my mind, this demonstrates that he was supportive of, and content with, the Petitioner having the treatment that led to the pregnancy.
- The attacks made on the Petitioner in respect of her signing a form in the name of the Respondent, in the context of the Respondent's allegation that he was not aware that she was going to have the treatment, and indeed his denial in these proceedings that the twins were his, are examples of the hostility between the parties and the point that they are both quite prepared to pursue any allegation which they think might harm, or hurt, the other.
(6) The birth of the twins in Ireland
- The Petitioner asserts that she did not go to Ireland to give birth to the twins. Rather she says that she planned to give birth to them in London and that she went to Ireland with a friend on a pilgrimage. It follows that her case is that she did not discuss with the Respondent the advantages from an immigration perspective which might flow from the birth of the twins in Ireland.
- In my judgment having regard to her background and training, and what she would have been likely to have read in the newspapers, the Petitioner was aware that if the twins were born in Ireland they could or would acquire Irish citizenship. In my judgment the Respondent for equivalent reasons also had that knowledge. Indeed in his affidavits he asserts that he discouraged the Petitioner from going to Ireland because neither of them had visas and he told her that he was not prepared to be part of anything illegal and was not prepared to embarrass himself (see paragraphs 62 and 92 of his affidavit sworn on 27th August 2004). This is an implicit assertion that he and the Petitioner discussed her giving birth to the twins in Ireland and not simply to a discussion that they would be going there without visas (if needed) for other purposes. He also asserts that it was a friend of the Petitioner who told her that if the twins were born in Ireland they would automatically have Irish citizenship and that she insisted on trying to obtain Irish citizenship for herself and the twins (see paragraphs 52 and 54 of his affidavit sworn on 3rd June 2003).
- It is however clear that neither party was, or could have been, aware of what the European Court of Justice would decide in the Chen case.
- The Respondent points to the fact that the entry of the Petitioner into Ireland on this occasion is not recorded in her passport and that this points to the conclusion that she did not travel to Ireland through the airport, and in the manner, she asserts and thus that she went there to have the twins. I accept that that is a possibility but it also seems to me that she may have been able to pass through immigration control at the airport without having her passport stamped. Immigration cases in this jurisdiction indicate that this is a possibility in England.
- However in my view given the late stage of her pregnancy the Petitioner's explanation for her visit to Ireland is unconvincing.
- I have concluded that the Petitioner did travel to Ireland with a view to giving birth to the twins in that country and thus with a view to obtaining all immigration advantages that would flow therefrom and that as appears from his affidavit evidence the Respondent discussed this with the Petitioner. Also, I do not accept that the Respondent was as opposed to this as he seeks to make out albeit that I accept that he would not have been willing to travel to Ireland with the Petitioner so as to be present at the time of the birth. In my judgment the Respondent would have been, and was, content for the Petitioner to take the risks involved in her travelling to Ireland at a late stage of her pregnancy with a view to her giving birth to the twins in Ireland and thus obtain such immigration advantages that would be available in the short, medium and long-term to the children and to the Petitioner and the Respondent. To my mind the Respondent's written and oral evidence point clearly in the direction that he would not forego such potential personal advantages.
- Further, and in any event I find that the Respondent supported and took a willing part in Irish passports being obtained for the twins.
- These findings support the conclusion, which I reach, that by mid 2001 (and thus before she asserts that she formed the intention to reside permanently in England) the Petitioner was taking steps with a view to providing her and the twin with "European credentials".
(7) The application for a residency permit in Ireland
- An application dated 22 April 2002 signed by both parties was made for a residency permit in Ireland. That application contains a lie when it asserts:
" We have been living in the Republic of Ireland since a few weeks before they [the twins] were born. We have been living on the funds we have in London using cards from bank accounts in London and we do intend to invest some of our money in your country."
It was accepted before me that this, and indeed other aspects of the application, were not true.
- As I understood the evidence it became common ground, and in any event I find, that it was the Petitioner who drafted this letter and that the Respondent signed it in a hurry and without studying it with any care. It is therefore a clear demonstration that she is quite prepared to lie to immigration authorities.
- In her written evidence the Petitioner has given conflicting reasons as to why she asserts that the Respondent wanted this application to the made (an intention to enter politics and financial instability in Nigeria). I do not accept either of those explanations and in my judgment it was the Petitioner who took the lead in making this application.
- The application also asserts that the parties as parents of the twins wish to apply for the permit to enable them to live, work and do their business is Ireland in order to enable them to raise their children. In my judgment that was not their intention. It follows that in my judgment this application cannot be relied on (and indeed it was not relied on) to support an argument that at that time the parties were intending to live together as man and wife in England or Ireland and bring up the twins.
- However, in my judgment the Respondent has sought to exaggerate his lack of knowledge and support for the application. In my judgment he was aware that what he was be asked to sign related to this application and he was content to let the Petitioner deal with the application and take such benefits as might flow from it. At this stage the considerable problems that arose later in 2002 had not begun and in my judgment this is another example of the Respondent being content to keep all possible options open. In my judgment if he had read the application he, like the Petitioner, would have had no qualms in making the untrue assertions contained therein.
(8) The Petitioner's university courses
- It is clear, and common ground, that the Petitioner took a full part in, and completed, a nine-month course at Buckingham University. This ended in the autumn of 2000. The Petitioner did not seek to enrol on another course until the summer of 2001. As appears from the chronology in May/June 2001 (shortly before the birth of the twins) the Petitioner completed an application form for extension of her stay in England and Wales as a student and in July 2001 solicitors applied on her behalf to extend such leave. Such an extension was given to October 2002 and although the solicitors wrote on behalf of the Petitioner seeking an extension to cover a three-year course no such extension was given.
- There is a paucity of records at Luton University relating to the Petitioner and as a result of the issue of witness summonses I heard some oral evidence from employees at that University.
- In my judgment the Petitioner did little or no work on her course at Luton University in 2001 notwithstanding the financial assistance she was receiving from the Respondent which enabled her to employ nannies, and it is common ground that with the consent of the University she deferred her course for a year.
- In 2001 when the Petitioner made her application to extend her leave to remain in England and Wales she knew that she was very shortly to give birth, and as I have found decided to do so in Ireland with a view to achieving such immigration advantages as this might give.
- As appears in the chronology the Petitioner asserts that it has been her intention to make England and Wales her home with the two children since late 2001. In paragraph 6.6 of her affidavit sworn on 12 November 2003, she says:
" It has been my intention to make England and Wales my home with the two children since late 2001. Initially - when I came to England and Wales I thought I would stay and study and return to Nigeria once I had qualified"
- She did not inform the Home Office of this change of intention.
- The Petitioner re-enrolled at Luton University. She produced a letter dated 19 August 2004 from the senior international student adviser at Luton University, Judy Seymour, who gave evidence before me. This letter was therefore written after orders had been made for the production of information from Luton University. Understandably it was heavily relied on by the expert on immigration law instructed by the Petitioner as independent evidence relating to her attendance at Luton University.
- However Ms Seymour told me that she based the letter on what the Petitioner told her at the time it was written and although the letter says that during the period between September 2002 and April 2003 the Petitioner came in two or three times to talk over problems with her personally Ms Seymour now only recalled meeting the Petitioner on one occasion, she thought in April 2003 when she told her she was gong to withdraw. With hindsight Ms Seymour told me that she thought she should have stated in the letter that it was based on what the Petitioner told her. Ms Seymour understandably said that at the time she had no reason to doubt the Petitioner.
- The letter also says that although marital problems of the Petitioner meant that her studies were irregular she did attend a number of classes between September 2002 and April 2003 although registers of attendance are not kept by the faculty. There are no such records and this assertion by Ms Seymour is based on what the Petitioner told her. It is also to be contrasted with the Petitioner's withdrawal form which states that her last date of attendance was September 2002. The Petitioner asserts that she was told to put this in he form by an employee at the finance department to assist her in the recovery of fees. I do not accept that this was the case.
- As I have mentioned the expert on immigration law instructed by the Petitioner understandably relied on this letter and when she obtained it the Petitioner knew that information was being sought from Luton University in connection with the issue of her habitual residence and that her intention to study and her attendance at Luton University were relevant to that issue. At the hearing the Petitioner naturally relied on the Chen case but also maintained the position in reliance on her expert's report based on this untrue and misleading letter that absent the Chen case she was lawfully in England and Wales at the times that she issued the petitions.
- I do not accept that the Petitioner attended any classes at Luton University in the year beginning September 2002. As the chronology shows for much of the time she was in Nigeria and she was plainly very involved in the issues relating to the disputes and litigation with the Respondent. Also she has not given any information as to the classes she says she attended
- It follows that in my judgment the Petitioner (a) lied to, and misled, Ms Seymour in getting her to write the letter of 19 August 2004, and (b) by persisting with that version of events set out therein she lied to the court. Further in my judgment the Petitioner told these lies in an attempt to bolster her case on habitual residence.
(9) The Petitioner's intention to study
- It was effectively common ground that in early 2000 she came to England and Wales with the intention of taking a course at Buckingham University. She completed this course and I accept and find that the Respondent encouraged her to do so.
- Her permission to remain to study did not end with her course at Buckingham and she remained here without seeking to enrol on a further course in the autumn of 2000.
- She became pregnant in the autumn of 2000. In my judgment shortly after she knew that the IVF treatment had been successful the intention and desire of the Petitioner to study further took second place to her wish and intention to promote her role as the mother of the Respondent's children and to continue and promote her relationship with him, and thus on her case her customary marriage and her role as the Respondent's wife.
- I do not accept that when she applied to extend her leave to remain in England and Wales in the summer of 2001 she had an intention to start a three-year course at Luton University in the autumn of 2001 and even if that is wrong this was not high on her list of priorities and she was well aware that she might not do so. Rather in my judgment her primary intention and purpose for enrolling on the three year course at Luton was to enable her to seek permission to remain in England and Wales with the children for a further three years. However, at that stage I accept that the Petitioner had not decided that she would never do the course and thought that it was possible that she might do so. Once she received an extension of her leave to remain for only one year and enrolled at the University in my judgment her intention was to defer for a year, which she did.
- As appears elsewhere during the summer of 2002 problems arose in the relationship between the parties and the Petitioner was unhappy with the way in which the Respondent was treating her and the twins on the one hand and Y and the quads on the other.
- Against that background, in my judgment, as is demonstrated by (a) the facts that the Petitioner returned to Nigeria on 17 October 2002 and was there for considerable periods over the ensuing months, and (b) the effective common ground that by this stage she was embroiled in an increasingly bitter and hostile dispute with the Respondent and Y, the Petitioner had no intention of embarking upon the course at Luton University in the autumn of 2002 when in September 2002 she re-enrolled. Further I have found that she did not attend any classes.
- After she had obtained leave to remain here for three years from October 2002 in the circumstances described later in my judgment she did not change her intention and therefore she had no intention of embarking on the course when she returned to England and Wales on 16 March 2003.
- In my judgment if at the end of 2002 or early 2003 she had been challenged as to her intention to study in England and Wales she would have responded as she asserted in her withdrawal from Luton University that her intention was to take an alternative specialist course in London. I am not clear whether she has done this but by the time of the hearing I was told that she expected to receive permission to work very shortly. A letter received during the hearing made it clear that any such permission was not imminent.
(10) The Petitioner's applications for leave to enter and remain
- As appears from the chronology in her applications made in January 2000 and the summer of 2001 the Petitioner made misrepresentations. Further, as I have said, she did not inform the Home Office of her intention, which she asserts was, formed in late 2001 to remain in England and Wales permanently with the children.
- The Petitioner has asserted in her written evidence that the purpose of her trip to Nigeria in September 2002 was to put her paperwork in order. She has also asserted, and her oral evidence was, that she travelled to Nigeria in September 2002 either to obtain a further booklet for insertion into her passport or for a new passport. I accept that when she went to Nigeria on this occasion the Petitioner obtained a new passport however I reject her assertion that this was the reason for this trip, not least because at that stage there was plenty of room in her existing passport for visas and stamps.
- In my judgment the reason for this trip was to enable the Petitioner to make on her return to England and Wales an application for leave to enter and remain in England and Wales to do a three-year course at Luton University. In my judgment she did this because she was aware that if she was to apply in this country (or to the Consulate in Nigeria) the absence of evidence of her attendance at Luton University from September 2001 would be taken into account and might well lead to a refusal of an extension of leave to remain in England and Wales. Further, in my judgment she was of the opinion (which proved to be correct) that if she sought leave to enter and remain on arrival in this country from Nigeria at Heathrow airport armed with her enrolment for Luton University she had a good prospect, and certainly a much higher prospect than she would have had if she had applied in England and Wales or Nigeria, of being given leave to enter and remain for the purposes of that course.
- She did not tell the immigration officer that she had deferred for the year from September 2001 and importantly she did not tell the immigration officer that she had no intention of commencing a course at Luton University in the autumn of 2002 and it was her intention to reside permanently in England and Wales with her children. Additionally she misrepresented her age.
- It follows that in my judgment the Petitioner lied to the immigration officer for the purposes of obtaining permission to enter and remain in England and Wales.
- As appears elsewhere in this judgment she did so against the background of (a) growing problems in her relationship with the Respondent, (b) her wish to live in England and Wales with the twins, (c) my findings as to her intention to study, and (d) in the knowledge that if her relationship with the Respondent broke down she might be able to obtain ancillary relief from him in England and Wales if she was habitually resident here and established that they had entered into a customary marriage but would not be able to do so in Nigeria.
- In my judgment, having regard to my previous findings:
i) the primary motive and purpose of the Petitioner in seeking and obtaining permission to enter and remain in England and Wales in October 2002 was to promote her wish to live in England and Wales with the twins,
ii) at that time she still had hopes of continuing her relationship with the Respondent and it is a moot and academic point, which was not gone into, whether she would have returned to live in Nigeria to do so,
iii) a secondary, but important, purpose and motive of the Petitioner in seeking and obtaining permission to enter and remain in England and Wales in October 2002 was to preserve her chance of seeking ancillary relief in this country if her relationship with, and support from, the Respondent came to an end,
iv) the purpose of her trips to Nigeria in late 2002 and early 2003 was to further her cause in the arguments and issues surrounding the worsening of the relationship between the parties with the intention, if she could achieve it, of her remaining with the twins in England and Wales,
v) on 16 March 2003 when she re-entered England and Wales she does not assert that she gave any updating or new information to the immigration authorities, her relationship with the Respondent had broken down, she had issued the first petition in reliance upon an assertion that she was habitually resident in England and Wales, she had no intention of embarking on a course at Luton University and she had not attended any classes there (and she did not do so after this return), and
vi) on her return in March 2003, as all realistic hopes of continuing her relationship with the Respondent had ended, the Petitioner's primary purpose was to seek to promote her wish to remain in England with the twins by pursuing her English proceedings and seeking ancillary relief and interim relief therein.
(11) The knowledge and position of the Respondent of, and in respect of, the Petitioner's intention to study in England and Wales and her applications for permission to enter and remain in England and Wales for the purposes of study
- This was not investigated before me in any detail.
- The Respondent made a sustained attack on the dishonesty of the Petitioner in these respects without explaining the basis upon which he thought she was remaining in England and Wales and he was providing funds for her, and after their birth, the twins to do this.
- At the start he encouraged, or at least supported, the Petitioner in her wish to come to England and Wales to study at Buckingham University and I accept the Petitioner's evidence that he encouraged her during the course.
- In my judgment it is clear that after the end of that course the Respondent was aware that the Petitioner did not embark on another course during her pregnancy. Further in my judgment he was aware that she was not pursuing a course of study after that.
- He has made assertions that he was not encouraging the Petitioner to stay in England and Wales, as she asserts, but was asking her to return to Nigeria with the twins, as he would have it so that they could be brought up by his sisters. I am not in a position to make findings as to the detail of these assertions but in my judgment if the Respondent had been keen for the Petitioner to return to Nigeria he would have stopped providing the high level of financial support for her and the twins in England and Wales and, as he did not do this until October 2002, in my view up to that time he was generally content for the Petitioner and the twins to remain here at his expense and was not demanding their return. I do not accept that he was holding his hand because of the medical problems and treatment of the twins or one of them. I accept that this conclusion, and indeed the fact that he provided support for the Petitioner and the twins in England and Wales, are strong factors in favour of the conclusion that his assertion that the twins were to be looked after by his sisters is an unpleasant and hurtful lie.
- As appears from my comments concerning the birth of the twins in Ireland, and applications related thereto, it is my view that the Respondent was unconcerned that the basis of the permission for the Petitioner to enter and remain in England and Wales was not being fulfilled.
- It was not part of the Petitioner's case that to enable her and the twins to live in England and Wales (or Europe) the Respondent agreed to the twins being born in Ireland or to her misleading the immigration authorities (which she asserted contrary to my finding she did not do). Also she did not argue before me that he knew that her permission to remain expired in October 2002.
- So she did not assert that he knew that to extend her permission to remain after October 2002 she travelled to Nigeria and misrepresented her intentions on her return to England. Further it was not her case that the Respondent knew that she had to renew her permission to remain in October 2002 and accepted that at that time (as she asserted to me and the immigration officer) she had an intention to study at Luton University.
- Thus it is not part of her case that in October 2002 the Respondent supported her in obtaining permission to enter and remain in England and Wales on the basis that she intended to attend Luton University because he agreed that he wanted her to live in England and Wales with the twins.
- At this stage I am of the view that given the background of the dispute between them it is highly unlikely that the Respondent would have supported the Petitioner in obtaining a further permission to enter and remain in England and Wales. It is possible that he might have done so to separate the Petitioner and Y or to continue a situation in which they lived in different countries but I do not accept that this is the case not least because it was Y who assisted him and others in furnishing the apartment bought by the S trust in London.
- Having regard to these points in my judgment the Petitioner decided without discussion with the Respondent to seek and was successful in obtaining her permission to enter and remain in England and Wales for three years in October 2002.
(12) The arrest of the Respondent, Y and the quads in Nigeria
- It is common ground, and demonstrated by the documents that in November 2002 the Petitioner made a complaint to a magistrate alleging that the Respondent and Y had made threats to her life and that there were stolen children in the Respondent's house (i.e. the quads) and that this led to the issue of a bench warrant.
- As I understood her oral evidence the Petitioner (a) did not accept that the Respondent and Y were arrested but accepted that they were either taken to, or went to the police station and (b) did not accept that the quads were taken to the police station.
- Although in my view the Respondent has to some extent dramatised and exaggerated his account of these events and there is some conflict between his account and that of Y (who says that she was out when police were executing the warrant – see paragraph 52 of her affidavit sworn on 25 August 2004) I generally prefer the Respondent's account of these events to that of the Petitioner. Thus I accept that on 22 November 2002 the Respondent was compelled to go to the police station with the quads and that Y also attended at the police station. I accept that if they were not formally arrested they were in effect arrested, detained for some hours and questioned in worrying and unpleasant circumstances.
- It is common ground that the Respondent's present Nigerian solicitor (Mr O) attended a meeting the police station a few days after the date of this incident (22 November 2002). Mr O gave oral evidence before me. I am sorry to have to record that in my view he was a partisan and unimpressive witness. He was not very forthcoming about this meeting. This may be explained by the difficulty he was in having regard to his written evidence and correspondence to which I will return when dealing with the application made by the Petitioner for an anti-suit injunction on 15 April 2003.
- In my judgment, albeit that I accept that the Respondent is a man of some standing and influence in Nigeria, he did not because of this, and his power, bring about the result that the police did not further investigate the allegations made by the Petitioner which led to the issue of the bench warrant, or take further steps against the Respondent in respect of them. Rather, in my judgment the reason for this was, as the Respondent asserts, the police were made aware of the arguments, allegations and counter allegations (which included allegations of threatening behaviour by both sides to the other) and took the view that these were domestic issues in which they were unwilling or unable to intervene, or deal with it as a criminal matter. Further in my judgment both the Petitioner and Mr O were well aware of this.
- Indeed in her affidavit sworn on 26 March 2003 (paragraph 7.11) the Petitioner asserts that the police were treating the situation as a domestic matter although she seeks to put this down to the Respondent exerting his influence.
- In his oral evidence Mr O did not dispute that the police were treating the situation as a domestic matter and failed to give any evidence of how he (or the Petitioner) thought that the police were no longer investigating the Petitioner's complaints because of the Respondent's power and influence.
- Also Mr O did not give oral evidence that was in line with or provided any convincing support of the correspondence I will refer to later in the context of the application for the anti-suit injunction which asserts improper influence by the Respondent over the police in connection with the arrest of the Petitioner.
- It follows that in my judgment in November 2002 the Petitioner was quite prepared to make serious allegations to the police in Nigeria against the Respondent and Y which led to their detention (with the quads) for some hours at the police station. Certainly the power and influence she now asserts the Respondent has in Nigeria did not inhibit her from doing so.
(13) The disputes and exchanges between (1) the Petitioner and (2) the Respondent and Y during 2002 and into 2003
- During his submissions leading counsel for the Petitioner asserted that the Petitioner and Y had a poisonous relationship. This was in my judgment a proper recognition of the hostility the Petitioner has towards Y. I am not in a position to assess the extent of their mutual hostility. However the papers show that mutual hostility exists and it has resulted in a number of allegations of a serious nature, for example there are cross allegations of threats of violence and to life.
- Shortly after the second ceremony of 16 March 2002 a newspaper in Nigeria published a notice that the Petitioner was now to be known as "Mrs N M M-T", and shortly after that she returned to England and Wales with the twins. In my judgment the Petitioner caused that article to be published or was content that it should be.
- It is common ground that over the period leading up to and following her return to Nigeria at the end of June 2002 problems arose in the relationship between the parties. Thus, for example, the Petitioner:
i) in her affidavit sworn on 26 March 2003 (paragraph 36) says that on her return to Nigeria on 29 June 2002 she was not met by the Respondent at the airport and that when she met him on the next day she alleged that he had abandoned her and the twins as he had not seen them since April 2002. She goes on to say that she pointed out that her rent on the London property was late and the landlord threatening to evict her and the children and that the Respondent said that she and the children had no rights, and
ii) in her affidavit sworn on 14 April 2003 (paragraph 8) says that the Respondent's attitude changed during the summer of 2002.
The Respondent describes the situation differently but accepts that there were problems.
- Unsurprisingly there is considerable dispute as to the exchanges that took place between the Petitioner and her family on the one side and the Respondent and Y on the other during her stay in Nigeria from 29 June to 19 July 2002 and on her later visits. I am not in a position to resolve such disputes and it is not necessary for me to do so. It is however common ground that the parentage of the quads was an issue within the exchanges that took place. This appears from the written evidence.
- The Respondent and Y assert that the Petitioner was aggressive and made threats and at a later stage (early 2003) there are transcripts of telephone calls from the Petitioner which would support these allegations, namely that the Petitioner was using threatening and colourful language. The Petitioner gives a different account of events and one in which she asserts the Respondent was making promises to her, which he did not keep, and also that he was making threats.
- After the second ceremony in March 2002 the parties did not live together in Nigeria with the twins or alone, and there is a dispute as to the time they spent together and how much they saw of each other. As appears from the incident in November 2002, the Respondent was at least for some of the time living in Nigeria with Y and the quads and continued to do so on the visits of the Petitioner to Nigeria. Indeed in her affidavit in support of the anti suit injunction the Petitioner asserts that he lives with Y. The Petitioner accepts and asserts that she was making complaints as to the support and attention given to her and the twins by the Respondent. She asserts that on her return to England and Wales on 19 July 2002 all contact with the Respondent was stopped, that he would not return her telephone calls and that the Respondent's secretary told her that he had said that the Petitioner had no rights to be calling.
- Thus on both versions of events by the end of July there were considerable and severe problems and in my judgment it is clear that the Petitioner was unhappy and annoyed about the way in which the respondent was treating her and the twins particularly having regard to his treatment of Y and the quads. It is also clear the Petitioner was asserting that she and the Respondent were married and was keen to establish and protect her position and continued support both as an individual and as the mother of the twins.
- As the incident on 22 November 2002 shows the problems continued (and perhaps escalated) and were followed by a termination of payments by the Respondent to the Petitioner, by the end of January 2003 (the Petitioner says earlier, see chronology).
- In January 2003 she returned to Nigeria and whilst she was there the first petition was issued in England and Wales and she issued proceedings in Nigeria which demonstrate that she was asserting the quads were not the children of the Respondent and that he was not married to Y and that she was suing in respect of what she maintained was a false publication that the twins were not fathered by the Respondent and that she was not his wife. This provides a clear indication of aspects of the disputes and arguments between the parties at that time.
- This part of the history demonstrates that in the latter part of 2002 and in early 2003 the Petitioner took steps in Nigeria both in and outside the Nigerian courts to advance her interests and the interests of the twins (as she saw them) and was not deterred from doing so by the threats she was asserting the Respondent had made and the influence she was asserting he had over the courts and police in Nigeria.
- In short at and around the time that the first petition was filed the Petitioner with the help of her Nigerian solicitors (O & O) the Petitioner was fighting hard on a number of fronts in Nigeria in connection with the problems that led to the breakdown of her relationship with the Respondent. In my judgment so was the Respondent.
(14) The application for an anti suit injunction on 15 April 2003
- In my judgment, on the evidence before me in seeking this injunction on a without notice basis the Petitioner failed to make full disclosure and knowingly presented a misleading and false picture to the court.
- Although this is always a serious matter in the absence of the sustained and enthusiastic attack on the litigation conduct of the Respondent by the Petitioner and her representatives I acknowledge that its main relevance would have been that it was one of the factors that was relevant on credibility because the injunction was time limited, the Respondent withdrew the Nigerian proceedings in the Customary Court to which it was directed with the result that Mr Anelay QC (sitting as a High Court judge) did not have to address the continuation of the injunction and later in the proceedings a further anti suit injunction was granted.
- The main affidavit in support of the application for this injunction was an affidavit sworn by the Petitioner on 14 April 2003. Her brothers swore supporting affidavits. The overwhelming thrust of that evidence was that the Petitioner would not be safe in Nigeria because of the threats and power of the Respondent and thus that she would be at great risk there from the Respondent and the authorities. A consequence of these allegations, if true, would be that she would not be able to obtain even handed justice in Nigeria. Indeed in her affidavit the Petitioner refers to the Respondent's proceedings in the Customary Court in Nigeria and asserts that even if it were safe and practicable for her to go to Nigeria she would not receive a fair trial in those proceedings and that her lawyers in Nigeria would be attending the next hearing thereof to pursue her motion to dismiss or strike out the petition (albeit, as I understand it, not in those grounds).
- I pause to comment that in my judgment the opening written submissions of counsel for the Petitioner indicates that on advice she had decided that this evidence could not support an argument before me on stay that the Petitioner would not obtain even handed justice in Nigeria.
- The Petitioner's affidavit also refers to her affidavits sworn on 26 March 2003 in support of her application for an order under the Bankers' Books Evidence Act and her application for MPS, the last paragraph of which states that she has issued three sets of proceedings in Nigeria on 6 March and that she has exhibited documents relating to them (although I have not found these documents in the index of the exhibits or the exhibits themselves, I assume that they were put before the court in April 2003). All these affidavits are referred to in the schedule to the anti suit injunction that was made.
- The affidavits do not update the position concerning the proceedings issued by the Petitioner in Nigeria and thus inform the court that the proceedings issued in early March were discontinued and replaced by proceedings issued later. Further the affidavit evidence does not disclose the intention of the Petitioner to issue proceedings for judicial review in respect of the Respondent's proceedings in the Customary Court, which she did on 17 April 2003.
- In her affidavit the Petitioner refers to her legal qualifications but asserts that she did not have any detailed knowledge of Nigerian family law, this may be true as a general proposition, but she does not mention her dissertation. Further as appears earlier in this judgment in my view at the time she swore this affidavit she knew that as a customary wife she had no claim to ancillary relief in any Nigerian court and her assertions later in paragraph 27 of this affidavit that the Customary Court does not have "powers and procedures to deal with complex financial issues" and that she is trying to establish from her Nigerian lawyers what powers the Customary Court has to grant financial relief but understands that they are very limited, are disingenuous. In reaching this conclusion I have not forgotten the evidence before me to the effect that a customary marriage has to be dissolved in the Customary Court, (and thus that it is the court that would grant ancillary relief) but that the Customary Court has no power to grant ancillary relief (see also Mark at para 39). I have reached this conclusion because of (a) my findings as to her knowledge of the position under Nigerian law, (b) her active communication with her Nigerian lawyers before and at the time she swore that affidavit, and (c) the common ground before me that the customary law marriage system (rather than a particular court) has no provision for the making of orders of ancillary relief to the wife (whether complex financial matters were involved) although there is a power under it to make financial provision for the children of such a marriage.
- In her affidavit the Petitioner says:
"My safety in Nigeria
I am a Nigerian citizen and I have spent most of my life in Nigeria. As I have set out above I come from a good family and I am a qualified Nigerian lawyer. I accept that on the face of things I should be able to protect my interests in Nigeria. Indeed I have been able to travel safely to Nigeria until recently; I paid a visit in February 2003.
However, the Respondent has now (my emphasis) used his influence and connections to ensure that it is not presently safe for me to return to Nigeria. If I was to return my Nigerian lawyers have advised that I will most "definitely" be arrested and could be detained for a very long period of time. This is because the Respondent has made complaints to the police that I have threatened him. The reverse is true. The Respondent has threatened me and I reported the threats to the police in November 2002. A complaint was filed by my Nigerian lawyers. After the police had contacted the Respondent they dropped the investigation. I believe this was through him using his influence. I refer to paragraph 7.11 of my affidavit sworn on 26 March 2003 to support of my application under the Bankers' Books Evidence Act. Correspondence from my Nigerian lawyers appears in the bundle of exhibits.
I am not prepared to consider travelling to Nigeria until I'm sure that I will not be liable to arrest. Naturally this makes it very difficult for me to play a proper part in the customary court proceedings. I have instructed lawyers to act on my behalf, but the Respondent has arranged matters so that I cannot go to Nigeria and therefore cannot participate properly in any legal proceedings there."
- This passage clearly indicates that the Petitioner (and her advisers) realised the importance of the point that on the face of it, it would seem that she could litigate in Nigeria. Indeed as she mentions by cross reference to her earlier evidence she had commenced proceedings in Nigeria in early March 2003.
- However she does not mention that notwithstanding the threats she said were made in November 2002 she remained in Nigeria until 19 January 2003 and that her visit in February was from 12 February until 16 March during which she had set up the application for interim relief in Nigeria based on (a) the threats she says the Respondent and Y were then making, and (b) the correspondence from his lawyers in Nigeria asserting that they would have no alternative but to cause her to be arrested unless she desisted from threatening the Respondent and Y, to which her Nigerian solicitors responded by saying that the matter was before the courts thereby indicating that it could in their view be dealt with by the courts in Nigeria. This gives a very different picture as at 16 March 2003 when the Petitioner left Nigeria.
- I do not know what was said to the judge about the Nigerian proceedings referred to in the other affidavits put before her, or as to this timetable but in my judgment to justify the assertions as to her safety the Petitioner would have had to have pointed to some significant development and thus make good the "now" I have emphasised in citing from her affidavit.
- I accept that there was an article (or possibly articles) published in Nigeria which the Petitioner asserts are untrue and threatening (or potentially threatening). Also I accept that the Respondent was threatening to have her arrested (see the letters from his lawyers in early March 2003). Also I accept and find that there were continuing allegations and counter allegations of threats which included an allegation by the Respondent that the Petitioner had threatened to kill him and Y.
- The Petitioner's two brothers who swore supporting affidavit evidence refer to events on 28 March 2003, and thus after the Petitioner's return to England and Wales. One brother says a letter was delivered by police asking the Petitioner to report to the police station in connection with a criminal investigation relating to a gun threat made by Mr B O (the Respondent's lawyer who had written the letters in early March). The other brother says he was told by the police that the Petitioner would be placed under arrest for threatening to kill the Respondent and Y. To my mind this evidence does not provide grounds for a dramatic or serious change even if (and for present purposes I shall assume that) the allegation of the threat to kill had been made recently and thus after the earlier letters in March 2003 from the Respondent's lawyers. Further to my mind this evidence does not provide a proper basis for the views expressed by the Petitioner's Nigerian solicitor in the letter that was exhibited.
- The correspondence she refers to from her Nigerian solicitors is a two page letter dated 28 March 2003 signed by Bunmi Odeniyi. However in one of the bundles the final and undated page of a letter signed by Mr O is included as its second page; the first page of that letter from Mr O has not been disclosed. It therefore appears that an error was made when copying the correspondence, but no objection has been raised to me reading the part of the letter signed by Mr O. He said:
" We still have to keep that option open, but I am sure your pursuit of freezing order in England and Wales will give him more pressure than one here and since he has high offshore assets held in England and Wales. His Nigerian assets can be easily ascertained and attached on judgment.
We have served him with the papers and the bailiffs are producing proof this afternoon, which we will fax to you as soon as possible".
It appears from its contents that this letter was written at or about the same time as the letter signed by Bunmi Odeniyi dated 28 March 2003, this is because the freezing order was made at the end of March. To my mind this extract from the letter signed by Mr O confirms my conclusion that at this stage the Petitioner was "fighting on both fronts" and considering taking further steps in Nigeria (namely the option that was being kept open which it seems was an application for a freezing order in Nigeria, although I am unclear what claim it would have related to). Also this extract indicates that Mr O was confident of being able to enforce an English order against the Respondent's Nigerian assets, which does not sit well with the allegations made concerning the influence and power of the Respondent and that the Petitioner will not receive a fair hearing in Nigeria.
- The letter signed by Bunmi Odeniyi contains the following passages:
" We confirm the continuous physical and psychological threats and harassment on our client, [the Petitioner], and her family. We have reported the threats and attacks to the police several times and it seems little or nothing is being done by the police to protect our client. More recently, on the 28/3/03 policemen acting at the behest of Chief B O, the solicitor to [the Respondent], visited her family house ------ questioned her family members about her whereabouts, threatening to arrest them (I comment that the affidavit evidence of the Petitioner's brothers does not include an assertion that the police threatened to arrest them.). Though she lives in England, every time she visited Nigeria, there were series of such harassment and threats (I comment that this relates to her earlier visits and indicates a continuation of threats of the type relied on over the periods of her visits and thus since the end of 2002).
[He then refers to the November 2002 incident]
Our client is of the firm opinion that her husband's mistress [Y] sponsored these anonymous threats. In addition to using the police and thugs, she also sponsored despicable publications in notorious tabloids in Nigeria against the person of our client. Clearly, the reason why these attacks had grown so brazen is not unconnected with the action our client commenced against her husband in England and Wales. (I comment that Y is referred to as a mistress when it is accepted that she entered into a customary marriage with the Respondent, which is what the Petitioner alleges she did).
We believe that [Y] and their solicitor want to use the police to arrest and detain our client and incarcerate her for a long time and if possible torture and intimidate her into discontinuing the action. (I comment that this is plainly a very serious allegation). Following the several visits and harassment on our client's family members in Nigeria, we visited the Ikoyi police stations and confirmed the petitions and attempts to arrest our client. We informed the police that there is a suit between our client and [the Respondent] in the court in England and Wales and that they should not visits or harass her again, but we note that these visits and harassment have continued. (I comment that this indicates that the alleged visit to the police station was before 28 March, and no details of the petitions and attempts referred to arrest the Petitioner are given, or have been given later).
We believe that with the notorious character of the Nigerian police and the increasing violence in the country, it is important that our client's personal security be improved, especially as [Y and the Respondent] have considerable influence in political circles in Nigeria, as well as financial means to extend and execute threats against our client.
It will also be important to have an improved security and protection for her in the course of processing the suit in Court. We strongly advise that our client should not visit Nigeria now or in the near future because she will definitely be arrested by the police and prosecuted for those spurious allegations her husband and his mistress had instigated with the police against her. We believe the police will detain her indefinitely, and in practice, this can run into several months while investigation and preparation to prosecute under the "holding charge" system, goes on. (I comment that this too is plainly a very serious allegation.) This is because we understand she will be arrested on a high felony charge and there is little or no guarantee that she will get a fair trial with the overbearing influence of an influential husband on the entire process. It can be responsibly stated that Nigeria is not safe for our client right now "
- This letter makes serious allegations, which in my judgment were not then (and have not since been) properly supported by evidence of developments after the Petitioner left Nigeria on 16 March 2003 or otherwise. Thus, for example, the evidence does not indicate why if the position in Nigeria was as alleged the Petitioner had returned to Nigeria in February 2003 and why she not been arrested on this visit which lasted until 16 March 2003 (and during which she commenced proceedings in Nigeria and England) or on earlier visits. To my mind the service of the first petition if this took place after 16 March 2003 is not a sufficient ground for making the allegations relied on in support of the application for the anti suit injunction.
- As I have already mentioned later in the proceedings shortly before the hearing before me Mr O gave written evidence, which he sought to support orally, to the effect that the Petitioner would not receive even handed treatment in Nigeria and she sought to rely on this to oppose a stay. In this context the letter dated 28 March 2003 from an employee at his firm was put to Mr O and he was invited to justify the assertions made therein by reference to events concerning the Petitioner or other events. Although he gave an example of a case in which he had been involved in which he said people had been wrongly arrested with a view to exerting pressure on them in connection with civil proceedings, and made general allegations against the police and the courts in Nigeria in my view he wholly failed to provide an evidential basis for the risks to the Petitioner asserted in the letter dated 28 March 2003 from his firm. Particularly having regard to the history and the extract from his letter I have set out earlier.
- On the evidence before me I have concluded that those risks did not, and do not, exist and that with the assistance of her Nigerian solicitors the Petitioner knowingly put a grossly exaggerated and therefore misleading and false position to the court when she sought the anti suit injunction.
- This conclusion accords with the decisions, on advice, of the Petitioner on the issue of stay initially not to advance any argument that she would not be able to obtain even handed treatment in Nigeria and then to abandon the argument to this effect based on the evidence of Mr O after he had given his evidence.
(15) The evidence as to the fairness of the foreign court
- As the Petitioner abandoned her argument that she would not receive even handed justice in Nigeria I will not deal with the detail of the evidence of Mr O which it was said he volunteered and on which she sought to rely. Notwithstanding this abandonment in closing submissions a point was made on behalf of the Petitioner that the witness called by the Respondent on this issue, Justice Ayoola, was not reliable and wholly independent because an answer he had given demonstrated that he knew that the next friend of the quads in the Saki proceedings was their uncle, and I was invited to find that he did have some personal connection with the Respondent or his family and that his independence was thereby compromised.
- I accept that a response Justice Ayoola gave to a question, or account of events introducing a question, put by leading counsel for the Respondent (in which counsel said that the next friend of the quads was their uncle) indicated that Justice Ayoola already knew, or might know, that this was the case; indeed I picked up on the point myself. However when asked about this expressly Justice Ayoola stated that he did not know this. I accept that evidence and reject the invitation to find that he has some personal connection with the Respondent or his family.
(16) The Respondent's conduct in connection with these proceedings
- Earlier in this judgment I have recorded that the factual issues that arise on jurisdiction and stay focus on the conduct and honesty of the Petitioner rather than the Respondent.
- I therefore pause to repeat and record that I have not forgotten that counsel for the Respondent accepted that valid criticisms can be made of his conduct and honesty in connection with these proceedings. I agree.
- I have not found him to be a credible witness and I accept and find that he has been dishonest in respect of the disclosure of his assets, and that the comments made by the Court of Appeal in respect of the Saki proceedings and the injunctions granted therein were justified.
- Further I accept and find that he is a man who would, or would be likely to seek to use his power, influence and money to achieve his ends without paying proper regard to the truth to the best of his recollection and perception. In this context I accept the point made on behalf of the Petitioner that the Respondent's attempt to explain, excuse or avoid payment under the MPS order by asserting in support of his application to have the freezing order varied that he needed funds to pay for the cancer treatment of one of G's children was untrue because of the existence of the funds at Merrill Lynch and is worthy of severe criticism given their existence.
- As I have said in paragraph 30 hereof, the oral evidence and the documents demonstrated that both parties are quite prepared to be highly selective, to exaggerate, to tell lies and to use tactical devices to advance their case or to further their goals.
(17) The Respondent's connection with England and Wales
- The Respondent trained and worked in England and Wales as a young man. He has a number of business connections here including a longstanding relationship with his bank. In my judgment he also has a substantial number of business associates here and he conducts meetings here in connection with the investment of assets derived from his business and other activities, for example the funds held by the S trust. Further the S trust has a number of investments in property in England and Wales and has very recently bought a valuable apartment in M Street which I accept is available for the Respondent's use.
- I accept that the Respondent is a businessman who has a number of international connections and who has provided that the majority of his assets are held outside Nigeria and in trusts.
- However the source of the Respondent's wealth and his day-to-day business activities is, and at all relevant times has been, Nigeria. In my judgment he is properly described as a Nigerian businessman and his home is, and at all relevant times has been, Nigeria.
- In my judgment it was never the intention of the Respondent to make England and Wales his home by living in England and Wales with the Petitioner, and the twins, or indeed alone or with anyone else.
(18) The Petitioner's connection with England and Wales
- This begins with her coming to England and Wales at the expense of the Respondent and it continues on that basis. It is therefore bound up with the connection of their relationship with England and Wales.
- I accept as she alleges that by (in my view at the latest) the end of 2001 she wanted to live in England and Wales permanently with the twins and it was her intention to do so, if she could, on the basis that she and the twins would continue to be supported by the Respondent.
(19) The connection of the relationship between the parties and England and Wales
- As I have pointed out the parties did not live together in England and Wales.
- Further, and although as appears earlier I accept (a) that the Respondent was generally content for the Petitioner and the twins to remain in England at his expense and at times was supportive of this in discussion with the Petitioner, and thus (b) that he was not seeking or demanding their return to Nigeria, I do not accept that he entered into a commitment with the Petitioner either that they and the twins, or that she and the twins would or should make their permanent home in England and Wales.
- In my view such a commitment would be out of character for the Respondent who in my judgment is a man who likes to keep control and his options open in his personal relationships. Further in my judgment the Petitioner was fully aware that this was an aspect of his character and that promises or statements he may have made from time to time as to where he, she and the twins would live and their accommodation (as to which there is considerable dispute on the papers) did not amount to commitments upon which she could rely.
- In my judgment an overview of the position is that:
i) the Petitioner wanted to make England and Wales her permanent home with the twins but in the knowledge of her insecurity and vulnerability did not seek to force the issue with the Respondent because, as she knew for his own reasons, he was content for them to live here for the time being at his expense, and
ii) the Respondent was aware that this is what the Petitioner wanted and did nothing to discourage, and at times may have encouraged, her hopes because he was content for them to be in England and Wales at his expense for the time being.
- This reflects the different agendas of the parties and their lack of openness with each other.
- In my view the main connection of the relationship to England and Wales is the twins who were conceived as a result of IVF treatment in this country and who have lived here with their mother, the Petitioner, and the Respondent has funded this way of life for them. Further, in particular one of the twins has had medical problems and has been treated in this country. Apart from that, in my judgment the connection of the relationship with this country is that the Petitioner has been here since the year 2000 (initially as a student) at the expense of the Respondent (as either one of his wives or a mistress) and when the Respondent has come to this country they have met up at his hotel.
Habitual residence – jurisdiction
Lawfulness
- The Petitioner adopted the report of the expert she instructed on immigration matters (Mr Magrath). As I understand that report my findings as to the letter of 19 August 2004, the intention of the Petitioner when she entered England and Wales on 2 October 2003 and 16 March 2004 and her non-attendance at Luton University lead to the conclusion that if she had to rely on the permission given on October 2003 she could not establish that her presence in England and Wales was lawful at the dates that the petitions were issued. This is because Mr Magrath's report, and thus the submissions of the Petitioner, are founded upon (a) her not having formed an intention by 16 March 2004 to give up, or not to start, her studies at Luton University, and (b) her attendance there until April 2004. My findings render that factual basis incorrect.
- I have not gone into the issue of the lawfulness or otherwise of her earlier presence in England and Wales because in my view it is unnecessary for me to do so.
- I have already dealt with the effect of the decision in Chen (see paragraphs 76 to 83 hereof).
- It was argued on behalf of the Respondent that the facts of Chen showed that if the Petitioner had made an application for permission to enter or remain in England and Wales at the dates she issued the petitions it would have been refused (and I was also referred to regulations 5 and 12 of the EEA Regulations). I accept that this may well have been the case but in my view it seems at least possible that a decision on her application (particularly in 2004) might have been delayed to await the judgment in Chen.
- The Respondent's argument proceeded that:
i) if the Petitioner was to apply now in reliance on Chen permission would be refused on the basis of the public policy ground in regulation 21. I do not agree given the rejection of the public policy argument in Chen, and
ii) even if permission was granted now it would not be retrospective and her presence her would only become lawful from that grant.
- On point (ii) I was referred to Mark [2002] EWHC 1715 (Fam) at first instance paragraphs 37 and 38 and to R v SSHD ex parte Margueritte [1983] QB 180. However I was not taken through the relevant provisions of the primary legislation or the regulations. I have not researched the point because in my judgment:
i) the Chen decision is declaratory of the law,
ii) even if as a matter of law and procedure a person has to apply and obtain permission on the Chen basis before his or her presence in England and Wales is lawful on that basis the position is that subject to a valid ground for refusal (i.e. in reliance on the conditions relating to sickness insurance and resources, or on grounds of public policy) the basis for a lawful presence has existed throughout the stay,
iii) the margin of discretion in Mark has the effect that for the purposes of the habitual residence of the Petitioner the detail of immigration law on retrospectivity is irrelevant if the application would be, or should have been, granted on the Chen basis, and
iv) I have rejected the argument that on public policy grounds the Petitioner would not be granted (and thus that she should not have been granted) permission on Chen grounds and, as already mentioned, it was not argued that she would be (or should have been) refused permission in reliance on the conditions relating to sickness insurance and resources..
- In my judgment it follows that for the purposes of deciding whether the Petitioner was habitually resident in England and Wales I should regard her presence here as lawful on Chen grounds, or put another way I should reject the arguments of the Respondent that her presence here was unlawful, or should be treated as unlawful, and for that reason she was not habitually resident on the relevant dates.
Insufficient quantity and/or quality of presence
- My findings are that from at the latest late 2001 the Petitioner had formed the intention that she wanted to live with the twins in England and Wales. Prior to that it is effectively common ground that the Petitioner was here initially for the settled purpose of studying at Buckingham University and thereafter during her pregnancy and the birth of the twins which both parties were pleased about.
- Absent any point on the lawfulness of her presence here in my judgment it is clear that her residence was for a settled purpose which by at the latest late 2001 was for the settled purpose of trying to make her home here with the twins. The fulfilment of that hope and wish was naturally capable of being affected by the continuation of support from the Respondent, or immigration matters. At the time both petitions were filed the relationship between the parties had broken down but in my judgment it is plain on the findings I have made that the intention and settled purpose of the Petitioner was that she and the twins would make England and Wales their home if they could and (as appears from paragraph 186 above) it was in that context that (a) she sought and obtained permission to enter and remain in England and Wales in October 2002, (b) she returned to England and Wales in March 2003, and (c) she pursued her petitions and applications for MPS and ancillary relief. In my judgment it follows that applying the approach set out earlier under the heading "jurisdiction" she had an abode here which she had adopted for a settled purpose albeit that circumstances might alter in the future (for example by reference to immigration matters or financial support) which made it unlawful or impractical for her and the twins to remain her or she decided to go to another country.
- The Respondent argued that the time spent by the Petitioner in England and Wales in the year leading up to the dates on which the petitions were filed was insufficient to establish habitual residence. To borrow from Ikimi (at paragraph 36) it was said that the Petitioner had not spent an appreciable part of the relevant year within this jurisdiction. I do not agree.
- As the hearing progressed the focus of this argument was in respect of the months leading up to the filing of the first petition. However there was argument based on (a) the background concerning the passports held by the Petitioner since September 2002 which ran concurrently, and (b) allegations that she had no reason to be in England and Wales (particularly in the year February 2002 to February 2003 when she was not attending Luton University) and had travelled widely before and after September 2002 without getting the travel documents she has produced stamped and thus that she had in effect just kept an address in England
- I do not feel it necessary to go into the detail of these arguments as to the extent of the Petitioner's travel because notwithstanding that her trips outside England and Wales, other than those to Nigeria, have not been fully particularised, I accept the evidence of the Petitioner that:
i) during the year to 19 February 2003 she was in Nigeria for about 106 days and that for the majority of the remaining days she was in England and Wales, and
ii) during the year to 29 June 2004 she was in England and Wales for the majority of the year.
- It was pointed out, and I accept, that over the period of 146 days from 26 September 2002 to 19 February 2003 the Petitioner was in Nigeria for about 101 days and thus only in England and Wales for a maximum of 45 days. Although I accept that physical presence is an important facet of habitual residence in my judgment:
i) my findings on (a) the intention of the Petitioner, and (b) the history of her presence in England and Wales since she came here in 2000, together with
ii) my findings that the purpose of her trips to Nigeria in late 2002 and early 2003 was to further her cause in the arguments and issues surrounding the worsening of the relationship between the parties with the intention, if she could achieve it, of her remaining with the twins in England and Wales,
have the consequence that her physical presence in England and Wales is sufficient to found the conclusion that she was habitually resident here on 19 February 2003.
- For these reasons I find that the Petitioner was habitually resident in England and Wales on the dates that the petitions were filed. I repeat that it was not argued that she was not resident here for the years preceding those dates.
- Thus I finds that this court has jurisdiction to hear both petitions.
Stay
- Naturally in considering this I have applied the approach set out under the headings "stay" and "the continuation of interim relief and/or the imposition of conditions if a stay is granted". I therefore apply the statutory test in two stages.
Stage 1 - The appropriate forum
- In my judgment, on the basis of my conclusion that the trial judge will have a difficult task and both sides have a realistic prospect of success, whether (a) all that is taken into account is the appropriateness of the forum for the trial of the issues concerning the status of the parties that are raised in the proceedings, or (b) a wider approach is taken, it is plain that Nigeria is clearly or distinctly a more appropriate forum for the resolution of those issues.
- I have identified the issues in broad terms in paragraphs 10 to 22 hereof. As appears therefrom the issues are overwhelmingly issues that involve Nigerian law and events that took place in Nigeria in connection with the two ceremonies relied on by the Petitioner, the marriage ceremony between the Respondent and G and the way of life of the parties in Nigeria. For the reasons I have given the trial judge will have to consider the evidence of a number of witnesses who live in Nigeria. Indeed it seems that the only important witness who lives in England is the Petitioner. Naturally I accept that the Respondent does travel here, and that he could do so for a trial, but he does not live here. As mentioned earlier (paragraph 46) in my view it is clear that the issues of fact and law that arise in respect of the status of the parties are overwhelmingly "Nigerian issues".
- I have commented earlier that at one stage the Respondent sought to have the issue of the validity of his marriage to G tried in England. Also it is the case that G has expressed a willingness to have this tried in England. But in my view again this dispute raises and depends on issues of Nigerian law and events that took place in Nigeria.
- Albeit that I accept that the Respondent could litigate here without significant inconvenience, in my judgment my findings as to the connection of the parties individually, their relationship and the relationship of the twins to England do not lead to a different conclusion, indeed in my judgment they support the conclusion that a Nigerian court is clearly or distinctly the appropriate forum for determining the issues between the parties relating to status and thus the trigger to ancillary relief and in particular whether this Nigerian man and this Nigerian woman are married in accordance with Nigerian law.
- In my judgment, considerations of expense also point to Nigeria being the more appropriate forum because the evidence is that the costs in Nigeria will be much lower and it is clear that both sides have Nigerian lawyers who are already familiar with the case and the issues.
- As appears above this stage of the application of the statutory test recognises, and pays proper regard to, the point that jurisdiction has been founded as of right in England. I record that in reaching this conclusion I have not had regard to the point that in this case my conclusion that this is the case is based on the decision in the Chen case and thus on a decision declaring a right to reside lawfully in this country that was not known to the Petitioner when she filed her two petitions.
Stage 2 – overall fairness
- The conclusion at stage 1 means that the court will ordinarily grant a stay unless there are circumstances by reason of which justice and fairness (and thus the balance of fairness) require that a stay should nevertheless not be granted (see the quotes from Spiliada and de Dampierre in paragraphs 93 and 94 above).
- The main (and dare I say it after so many paragraphs) central and short point is whether the disadvantages to the Petitioner of (a) not being able to pursue her claims for ancillary relief (or all of them in the alternative) under her present petitions and thus under the MCA 1973, and (b) on my conclusions set out above concerning the continuation of interim relief, her losing the benefit of the existing MPS order and possibly the freezing orders during a stay, found the conclusion that the balance of fairness does not make it appropriate for the Nigerian proceedings to be decided first and a stay to be granted (with or without conditions).
- The question therefore arises whether in all the circumstances it is just that the Petitioner should be allowed to exploit and enforce her English advantage (see the quote from de Dampierre in paragraph 111, where this question is posed and then rephrased in alternative ways). As that quote, and indeed the nature of the question demonstrate, this is a fact sensitive exercise.
- Before returning to this central point I shall deal with other factors raised and arising in respect of the question where the balance of fairness lies.
Fairness in the foreign jurisdiction
- As I have said the Petitioner, in my judgment correctly, abandoned her arguments based on this. In my view her points that there might be greater delay in Nigeria fall with this abandonment. In any event paragraph 10 of Schedule 1 provides an avenue for lifting the stay if such delay occurs.
Convenience
- I have already dealt with this. I add that in my view the assertion that the case is well advanced in this country and is ready for trial carries little weight. That preparation can be transported to Nigeria (where both parties have instructed lawyers who have a knowledge of this case) and a trial date with an appropriate estimate (which in my view would be a minimum of 20 days) will not be found quickly in England.
The residence of the twins
- In the context of her suffering a litigation disadvantage and unfairness the Petitioner has also raised the point that in Nigeria she would be at much greater risk of an order being made that placed the children in the care of the Respondent and points out that he has stated that he would seek such an order in Nigeria. The Petitioner asks that she be granted a residence / contact order in the first petition.
- The twins have lived with the Petitioner (and nannies) in England and Wales and have medical treatment in England and Wales. It has not been asserted that this court would not have jurisdiction to make orders in respect of the twins under s. 8 of the Children Act. It seems to me that if s. 3 of the Family Law Act 1986 had to be relied on (rather than s. 2(1) thereof) the financial support given by the Respondent to support the Petitioner and the twins in this country, even if he has been asserting that all three of them, or the twins, should be in Nigeria, is a strong indication that this court has jurisdiction to make such orders. I proceed on the basis that it does.
- In my view it would be burdensome for the Petitioner to have to litigate issues of residence in Nigeria at the same time as litigating the questions on status as between the parties.
- It follows in my judgment that the Respondent's assertion that he would seek orders in Nigeria as to the residence of the twins is a point against a stay. However in my view it can be adequately covered and dealt with by making it a condition of any stay:
i) that the Respondent does not seek any order in Nigeria as to the residence of the twins, or their return to Nigeria, and
ii) that he discontinues any existing proceedings or process in Nigeria to those ends.
This could be done by injunction, if an undertaking is not offered.
- If it is sought I would also consider granting an interim residence order in favour of the Petitioner. Whether such an order should be sought and made in the existing proceedings or in separate proceedings under the Children Act, if the petitions are stayed, is something that may need to be considered.
Safety
- I have dealt at some length with the assertions made by the Petitioner that she would not be safe if she returned to Nigeria and have rejected them. Nonetheless in my judgment it would (for example, by analogy to the approach taken in Hague Convention cases) be fair and appropriate to make it a condition of a stay that the Respondent and Y:
i) do use their best endeavours to end any police investigation in Nigeria based on allegations made by them as to the past conduct of the Petitioner, and
ii) do not seek to base any criminal or civil proceedings or investigation on those allegations in Nigeria without the prior leave of this court.
This could be done by injunction or undertaking.
The basis of my finding that the Petitioner is habitually resident here and thus that this court has jurisdiction.
- I have based my conclusion on the Chen case and have not gone on to consider whether absent that decision the Petitioner would have been able to establish habitual residence, because for the reasons that follow in my view this is unnecessary for present purposes. If this becomes a live issue on the appeals against the orders for MPS and the freezing orders I hope that I have made the necessary findings of fact to enable decisions to be made on the lawfulness of the Petitioner's presence in England and Wales if the Chen basis for her living here did not exist, or on an application of the margin of discretion (see the Mark case).
- My findings indicate that but for the Chen case, it is arguable (a) that at least since October 2002 the Petitioner's presence in England would have been unlawful, and (b) that the court would have held that she was not habitually resident at the dates she issued the petitions, and thus that it did not have jurisdiction to hear the petitions or grant the orders for MPS and the freezing orders.
- Indeed on her own case that she intended to give birth to the twins in England it could be said that the assistance the Petitioner derives from the Chen case is even more fortunate than it is on my finding that she intended to give birth to them in Ireland to gain such immigration advantages as might follow.
- In my judgment, in determining for the purpose of the application for a stay, where the balance of fairness lies the arguments and doubts as to the lawfulness or the Petitioner's presence here at the dates she issued the petitions based on the arguments and doubts as to her habitual residence and thus the jurisdiction of the court is relevant to:
i) the linkage between the first and second stages of the approach to be taken in applying the statutory test (particularly as the first stage has proper regard to the point that a spouse who is habitually resident in England and Wales has a right to litigate here – see above in particular paragraphs 74/75 and 98/99), and
ii) litigation misconduct.
- In my view, in the context of considering whether there should be a stay the question whether the court has, or had jurisdiction to order MPS and other interim relief should be looked at now and with hindsight.
- It follows that, notwithstanding the point that if the issue of jurisdiction had been heard earlier, and before the decision in Chen, there would have been more doubt as to jurisdiction (and indeed the court may have found that it did not have jurisdiction on the basis that the Petitioner's presence here was unlawful), the competing factors on stay should be considered on the basis that the court had, and has, jurisdiction to make orders for MPS and freezing orders, because I have found that at the dates the Petitioner filed the petitions she had the right to live in England and Wales on the Chen basis.
- Further it seems to me that the Petitioner may well be able to pray in aid the Chen case (and its declaratory effect) in the context of any jurisdictional point taken on the appeals against the orders for interim relief that were made before the decision in the Chen case was known.
Linkage between first and second stages of the test
- As mentioned above I have considered the first stage without regard to the basis on which I have found that the Petitioner was, or should be treated as being, lawfully present in England and Wales when the petitions were filed.
- However it seems to me that as the first stage recognises, and pays proper regard to, the point that jurisdiction has been founded as of right in England if I had thought that the issue of what was clearly or distinctly the more appropriate forum was more finely balanced the basis upon which that right to litigate here was founded would have been a relevant factor at that stage and further or alternatively in assessing the weight to be given to that right in assessing overall fairness.
Litigation conduct
- As I have pointed out, in my judgment both parties have been guilty of litigation misconduct.
- It seems to me that there is an argument that as:
i) part of the litigation misconduct of the Petitioner relates to the argument and uncertainty on jurisdiction referred to above (e.g. her false allegation in the petitions that the parties last lived together at 25 A Avenue and her later procurement of the letter from Luton University dated 19 August 2004),
ii) much of the litigation misconduct of the Respondent relates to his failures to obey interim orders which he has maintained the court had no jurisdiction to make,
iii) my conclusion on jurisdiction is based on the Chen case which post dates the making of the interim orders, and
iv) some of my findings in connection with the jurisdiction issues are as sought by the Respondent,
that the balance of litigation misconduct favours the grant of a stay.
- But, in my judgment, my overall findings and in particular those as to the credibility of the parties, and their lack of openness with each other, found the conclusion that their respective misconduct cancel each other out. I have therefore treated litigation misconduct as a neutral factor.
The knowledge, motive and intentions of the parties, and their connections with England at the dates the petitions were filed
- The Chen case was reported in the Times of 21/10/04 and it therefore appears that the parties did not know of it when the petitions were filed and there has been no evidence that it was being relied on in anticipation. It goes to habitual residence and jurisdiction which has to be established before the question of granting a stay arises.
- In my judgment, at the stay stage:
i) the knowledge, motives and intentions of the parties and their connections with England at the dates of filing of the petitions form part of the relevant circumstances to be considered in determining where the balance of fairness lies, and
ii) a consideration of such matters is different to, and distinct from, a reconsideration of the issue of habitual residence and jurisdiction even if they (or some of them) were relevant thereto.
If habitual residence was dependent on the exercise of the margin of discretion in Mark such issues may be considered at both stages if they relate to the lawfulness of the presence of a party in this country (see again in particular paragraphs 74/75 and 98/99 above) and in my view it is clear that in Mark the Court of Appeal had in mind that issues of intention and knowledge connected with an unlawful presence in England could found a conclusion that a stay should be granted albeit that they did not preclude a finding that the party was not habitually resident in England.
- Looked at more generally and absent any immigration issue (e.g. lawful presence as a student at all relevant times) in my judgment all the relevant circumstances as to where the balance of fairness lies between a Petitioner who (a) has established jurisdiction based on habitual residence, and (b) asserts a litigation advantage in England, and a Respondent who seeks a stay include the knowledge, motives and intentions of the parties and their connections with England. Thus in my judgment the findings I have made on such matters are relevant to the question of stay.
Ancillary relief
- As I have already mentioned in my judgment the comparison as to the ancillary relief that the Petitioner can claim here and in Nigeria should be carried out:
i) on the basis that the English court under the MCA would have regard to the Nigerian connection, but that the Petitioner either would obtain, or would have a realistic chance of obtaining, (a) a substantial financial award by way of final orders under the MCA 1973, and (b) a continuation of orders for MPS and freezing orders, if her petitions are not stayed,
ii) having regard to her potential claims for financial relief under Part III of the MFPA 1984, and
iii) having regard to the potential claims of the children under Schedule 1 of the Children Act, which counsel for the Petitioner indicated would be brought if a stay was granted and as to which no jurisdictional point was raised. In such proceedings the power of the court would not be excluded by the Child Support Act 1991 because the Respondent is not habitually resident here (see s. 44 CSA).
The ability of the Petitioner to remain in England if a stay is granted
- In my judgment the point in paragraph 305(iii), namely the potential for claims for financial relief for the twins, is a background consideration that goes to:
i) points initially raised, but not pursued strongly, that the Petitioner could not afford to live in England unless she continued to receive MPS, and
ii) to the continuation of the Chen basis for the Petitioner's presence in England and Wales,
because (a) the claim would be for the benefit of the twins and not for the maintenance of the Petitioner, but naturally (b) an order would reduce her financial responsibility for the twins, would assist in continued compliance with the "Chen conditions", and would thus assist the Petitioner and the twins to remain in England and Wales. I add that in my view the Nigerian connection would also be a relevant factor in such proceedings.
- In opening it was asserted that the Petitioner was expecting a work permit to arrive very shortly. During the hearing it became apparent that this was not going to happen. But the Petitioner has a right to be here on the Chen basis and her evidence is that she has an offer of employment in which she would utilise her legal qualifications and which she intends to take up shortly. This is a clear indication that the Petitioner could support herself in England and Wales if she did not receive MPS or a final award under the MCA (or Part III MFPA 1984), particularly if an order for the benefit of the twins is made under Schedule 1 to the Children Act. I therefore find that if a stay is granted the Petitioner will be able to remain in England and Wales and therefore she was right not to pursue with any vigour an argument that in practice she would not be able to pursue a claim under Part III MFPA if a stay was granted because in that event she would be unable to remain in England and Wales.
The approach in England to ancillary relief and interim relief if a stay is not granted
- I accept that if there is no stay the Nigerian connection, and all relevant factors relating thereto, will be taken into account by the court (a) under s. 25 MCA, and (b) if the existing interim relief, by way of freezing orders and MPS, is revisited (which it can be). Further, in my judgment points that the amount of assets frozen is too high, or that the MPS are too high and contain (or potentially contain) an unfair or oppressive element in respect of costs having regard for example to the points that:
i) the Respondent asserts that the parties were never married (and only in the alternative that any marriage was of no legal effect because of his earlier marriage to G – and on this alternative there is a dispute as to whether a decree of nullity could be made), and therefore
ii) unlike the position in most cases when an MPS order is made that it is inevitable, or highly likely, that a final award of ancillary relief will be made against which credit could be given for MPS, the result of an MPS order in this case could be that the Respondent has had to pay substantial sums and finance litigation which establishes that he and the Petitioner were never married, and
iii) he will be unable to recover, or receive credit, for any of those sums,
are matters that can be dealt with fairly without a stay in the exercise of discretion under the MCA.
- As will have been apparent from remarks I made during the hearing my preliminary view having regard to the Nigerian connection in particular, and some of my findings of fact, is that the indications given on behalf of the Petitioner as to the size of her claim show that her claim is excessive. As appears from the preceding paragraph in my view it is open to the Respondent (if so advised) to argue in the English proceedings that because of the Nigerian connection she should not be awarded anything by way of ancillary relief under the MCA. Further, and as appears earlier in this judgment I accept that the Petitioner would argue against this and the battle lines have been drawn in this case against the background that the Petitioner either would obtain, or would have a realistic chance of obtaining, a substantial award if her petitions are not stayed. Indeed this is the English litigation advantage she advances and seeks to preserve.
- I accept that in doing do she can pray in aid the point that the English court will have regard to the Nigerian connection and make what it considers to be a fair award in all the circumstances including the point that the Petitioner does not have a claim for ancillary relief if Nigeria.
- Also I repeat that in my view I should look at the balance of fairness now and not take into account that the interim orders were made prior to the decision in the Chen case.
- I therefore accept that this English approach to the grant of ancillary relief (and interim relief) gives the Petitioner an English litigation advantage.
- However I pause to comment that it seems to me that if a similar situation arises in the future the court should consider carefully:
i) whether a party should be ordered to pay MPS at all, or MPS including a substantial element of costs, (and if so for how long) if the primary case on the merits of the paying party would, if successful, have the result that he would not be ordered to pay anything by way of ancillary relief, and further or alternatively the paying party disputes the jurisdiction of the court and/or seeks a stay, and
ii) whether a preliminary hearing on issues of jurisdiction and stay should be refused if an order for MPS is, or has been, made.
I say this because it seems to me that there is a considerable potential for unfairness to the paying party if MPS (including a large element for costs) is ordered or ordered until trial in such circumstances.
Part III MFPA
- Part III MFPA is part of the overall statutory scheme in England. Clearly it relates to foreign divorces and annulments (and so in many cases to foreign marriages). It has a permission filter (s. 13) and therefore unlike the MCA it does not give a jurisdictional right (subject to a stay) and if and when a claim by the Petitioner could be made in reliance upon it jurisdiction might again be challenged.
- In my view these distinctions provide a factor against a stay being granted on the basis that a claim could be made later under the MFPA. Indeed this was a point made by Thorpe LJ in Mark at para 39(iv) which deals with jurisdiction rather than stay but (unlike Otobo) was dealing with a customary marriage.
- However as appears from, for example the passages I have cited from de Dampierre, each case is fact specific and in my judgment the possibility that such a claim could be made is a factor that ameliorates, or may ameliorate, the loss of a jurisdictional right to claim under the MCA.
- Having regard to my conclusion as to the ability of the Petitioner to remain in England if a stay is granted in my judgment the point that she could seek permission to pursue a claim for financial relief in England is therefore a factor that can be relied on in favour of a stay.
- In my judgment, the powers of the court under the MFPA to make interim orders for maintenance (s. 14) and to avoid transactions (s. 23) do not arise until permission to bring a claim has been given. Further in my judgment the conditions in s. 24 (which relates to the grant of orders to prevent transactions intended to defeat prospective applications for financial relief) would not be satisfied on the grant of a stay. But that power is without prejudice to the court's powers under s. 37 Supreme Court Act 1981, and as appears above (see paragraph 128) in my judgment the court has power to grant or continue a freezing order on granting a stay, or to grant a stay, on condition that assets are frozen.
Given the possibility of her being able to make a claim under the MFPA is it unjust for the Petitioner to seek to exploit the litigation advantage she has in England – or put another way would it be unjust to the Petitioner if the issues as to status and thus the trigger to the grant of financial relief are tried in Nigeria
- It will be clear that I have posed these questions by reference to the passages cited from the speech of Lord Templeman in de Dampierre (see paragraph 111 above).
- In my judgment this is the magnetic and central issue in this case.
- Notwithstanding the uncertainties regarding such a claim in my judgment the answer to it means that the balance of fairness is in favour of granting a stay. My main reasons for this are:
i) The issues of status and thus the trigger to financial relief are overwhelmingly Nigerian issues.
ii) The main or one of the main issues as to which both sides have a realistic chance of success is whether they entered into a ceremony of marriage.
iii) My findings under headings (1) to (4), (6) to (11) and (17) to (19) under the main heading "some findings of fact", and in particular (a) my findings in paragraph 186 under heading (10), (b) the possibility of the Petitioner being able to claim under the MFPA, (c) the background of her knowledge that as a customary law wife she had no claim for ancillary relief, (d) the point that she initially came to England to study and with the intention to return to Nigeria, (e) the lack of discussion and consensus in respect of her later wish and intentions to remain her permanently, and (f) the limited connection of the relationship to England.
iv) The ability of the Petitioner to litigate and to take steps in Nigeria to further her interests when she wanted to.
v) The point that I will continue the freezing orders (subject to an application to vary them as to the limit of £6,875,000 or otherwise).
vi) The conditions I will impose as to the residence of the twins, safety, res judicata and issue estoppel, the payment of financial orders for the benefit of the twins and the payment of a sum to the Petitioner to assist her in travelling to and litigating in Nigeria (see below).
- I have not forgotten that points that the S trust has substantial assets in England and my findings relating to the Respondent's support, encouragement and acceptance of the Petitioner living in England, or indeed the other points advanced by the Petitioner.
- In my view the English proceedings (a) were instituted in an attempt to improve the Petitioner's position and to claim support from the Respondent that would not have been available in Nigeria, and (b) have been pursued against the background of the underlying dispute between the parties as to whether they ever entered into a marriage ceremony in Nigeria and according to Nigerian customary law. In those circumstances, for the reasons and having regard to the findings referred to in paragraph 321 and the other findings I have made (e.g. as to litigation conduct) I have concluded that in all the circumstances of this case the balance of fairness favours the issues of status being decided in Nigeria and thus the grant of a stay.
- The point was raised on behalf of the Petitioner that if she succeeded in establishing that she and the Respondent entered into a ceremony of customary marriage and the issue of status turned on the Respondent's alternative argument that his marriage to G was a statutory marriage the customary marriage would, or might, not be "annulled" by the Nigerian court, and this would prevent her seeking to make a claim under the MFPA, whereas in the same circumstances the English court would grant a decree of nullity. As to that, I was not clear what the Petitioner submits was added by the allegations of misrepresentation and deception but as I have set out they are part of the Petitioner's case and it may be that they are directed to Rampal v Rampal (No 2) [2001] 2 FLR 1179.
- On my understanding of the views of the experts on Nigerian law there is a reasonable prospect that in those circumstances the customary marriage would be annulled. Further and in any event in my view there would be a reasonable prospect of establishing that the effect of the Nigerian order satisfied the trigger of a marriage being annulled in the MFPA on the basis that it should be construed by considering whether what has been found and done in the foreign court would in English eyes be, or warrant, an annulment.
- Further it seems to me that if the point made by the Petitioner is correct she could then after the determination of the Nigerian proceedings seek to have the stay lifted (if it had not terminated on its terms) and seek a decree of nullity.
- If that was to happen questions of res judicata and issue estoppel could arise by reference to findings in the Nigerian proceedings. This point was not raised and argued before me and I have not researched it. In my view the relitigation of issues of fact and Nigerian law decided in Nigeria should be avoided if the stay is lifted. In an attempt to avoid argument on the application or extent of res judicata and issue estoppel based on the Nigerian proceedings which I have concluded should be tried and determined first I propose:
i) to make it a condition of the stay that the Respondent agrees and accepts that if and when the stay is lifted issues of res judicata and issue estoppel will be dealt with in the English proceedings as if the Nigerian proceedings had take place in England, and
ii) the stay is to be until further order of the court, so that if the Petitioner seeks to have it lifted the court can make it a condition of the lifting of the stay that issues of fact or law that have been decided in Nigeria between the parties could not be relitigated.
As this point was not raised and argued before me, if the parties have other suggestions as to the manner in which this "relitigation problem" should be addressed, or agree that it does not arise because the principles would apply, I will consider these points when finalising the order.
- I add that if I am wrong and the Petitioner would lose the ability to claim financial relief under either the MFPA or the MCA if the issues of status turn on the effect of the Respondent's marriage to G this would not cause me to refuse a stay, albeit that it would make the balance a finer one.
Continuation / grant of interim relief and conditions
- The MPS orders. For the avoidance of doubt I discharge the orders for MPS.
- Anti suit injunctions / limitations on steps that can be taken in Nigeria. I will also discharge the existing anti suit injunction(s), I have in mind the order of Singer J made on 4 December 2003, and all limitations as to the proceedings that can be pursued in Nigeria, I have in mind the order of Bennett J and the undertaking given during the hearing before me. However, in considering the detail of the order, I will hear submissions on whether there should be definition of the Nigerian proceedings that should continue or be pursued (and for example who should be the parties) and whether there should be a condition to the stay that only those proceedings should be pursued in Nigeria.
- Freezing orders. I will continue the present freezing orders in their present terms. As I have indicated in my judgment I have the power to do so. In my view the conduct of the Respondent amply justifies the concern of the Petitioner that if such orders are not in place she will have difficulty in enforcing any order for financial relief that she may obtain under the MFPA or the MCA. If, but only if, time is available I will hear submissions on variation of the freezing orders when judgment is handed down.
- Conditions. I will impose the conditions I have referred to in respect of the residence of the twins and the safety of the Petitioner, and subject to further submissions those I have referred to in respect of issue estoppel and res judicata.
- Having regard to (a) the point that financial orders under the Children Act for the benefit of the twins would assist in enabling the Petitioner to remain in England and thus be in a position to seek relief under the MFPA, or the MCA if the stay is lifted, and (b) the indication from the Respondent's past conduct that there is a risk that he will not honour orders for the benefit of the children, I will make it a condition of the stay that if he fails to make a payment under orders made for the benefit of the twins the Petitioner can apply to lift the stay.
- Again if, but only if, there is time I will hear submissions on an application for financial relief under the Children Act for the benefit of the twins when judgment is handed down.
- In my judgment conditions equivalent to the MPS orders should not be imposed as a condition of the stay because in my view the MPS orders fall away with the stay and would not have been granted if, as my conclusion on stay indicates should have happened, the issues of status and the trigger to financial relief had been tried in Nigeria before the petitions were issued, or applications for relief were made in them. To re-introduce them by way of condition would be a back door route and in any event in my view the points that:
i) there is a triable issue as to whether the parties ever entered into a valid ceremony of marriage,
ii) if the Respondent succeeds on that issue he would not be liable to make financial payments to the Petitioner in any jurisdiction and would therefore be unable to claim any credit for payments (made already or made in the future) towards costs or maintenance against any such award, or to otherwise recover them, and
iii) the ability of the Petitioner to support herself and to make a claim for the benefit of the children
found the conclusion that it would not be fair to order the Respondent to continue to make regular payments of maintenance (with or without an element of costs) to the Petitioner.
- However as:
i) the arguability of the point as to whether the parties entered into a valid ceremony of marriage goes both ways and thus the Petitioner may succeed thereon, and
ii) the disparity in the respective wealth of the parties is very considerable
I have concluded that by analogy with the approach taken in Krenge and D v P, under the inherent jurisdiction that overall fairness would be promoted and achieved, by it being a condition of the stay that the Respondent do pay to the Petitioner a sum which has the result that the total of sums paid, or to be paid, under the existing orders for MPS for and after the month of December 2004 (and thus after the hearing before me – and see the comments of Thorpe LJ as to the continuation of the payments of MPS cited in paragraph 119 above) total £120,000. Such a payment is a round figure assessed against the expenses the Petitioner will have to incur in arguing her case in Nigeria on travel and other costs and will therefore ameliorate her problems in doing this and thus in advancing her arguments in Nigeria or, if she so decides, on other expenses whilst she is making the changes having regard to the ending of the orders for MPS. Further in my view such a payment would have promoted and achieved overall fairness if the application for a stay had been heard before any order for MPS had been made.
Overall conclusion
- I will stay the petitions until further order of the court, and will deal with the terms of the order and the conditions of the stay when handing down judgment.
