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Cite as: [2013] EWHC 2061 (Fam)

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This judgment is being handed down in private. The judge hereby gives leave for it to be reported. The judgment is being distributed on the strict understanding that so far as is practicable in any report the identities of the children referred to in it are not disclosed.

Neutral Citation Number: [2013] EWHC 2061 (Fam)
Case No: FD03D02234 & FD04DO5733 & FD09P02802

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
15 October 2013

B e f o r e :

MR JUSTICE CHARLES
____________________

Between:
M-T
Petitioner
- and -

T
Respondent

____________________

Timothy Scott QC (instructed by Divorce and Family Law Practice LPP) for the Petitioner
Adedamola Aderemi (instructed by K & S @ Law) for the Respondent
Hearing dates: 19 to 21 November 2012

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Charles J :

    Introduction

  1. This long-running litigation has involved divorce and ancillary relief proceedings (the Divorce Proceedings) and proceedings under Schedule 1 of the Children Act (the Children's Proceedings). This judgment relates to the Divorce Proceedings. I indicated that I would not deliver it until issues relating to security for payments for the children in the Children's Proceedings had been concluded or appropriately advanced. They have now been concluded.
  2. The Divorce Proceedings came back before me at the end of 2012 to address a number of issues. In broad terms the Petitioner commenced proceedings in this jurisdiction by a petition dated 19 February 2003 (the 2003 Petition) against the Respondent asserting that she and the Respondent were married at a ceremony of marriage that took place in Nigeria on 22 December 1993 pursuant to native law and custom (the Disputed 1993 Marriage). The Respondent disputed the jurisdiction of this court and denied the existence of the Disputed 1993 Marriage. His position was that the ceremony of marriage asserted by the Petitioner simply did not take place. He also asserted that in 1974 he had entered into a statutory marriage in Nigeria with another woman (GT) and that as that marriage had not been dissolved he did not have the capacity to enter into subsequent polygamous marriages.
  3. So, at the heart of the disputes between the parties arising on the 2003 Petition was the assertion by the Petitioner that the parties had entered into a ceremony of marriage according to native law and custom on 22 December 1993 and the Respondent's assertion that no ceremony had taken place on that day. As between them this was a "black and white" issue of fact. Both of them could not be right and it is very difficult to see how the difference between them could be explained by some misunderstanding. Indeed, no such explanation has been advanced and the reality has always been that one of the parties was knowingly advancing a false assertion about the existence of the Disputed 1993 Marriage.
  4. During the proceedings there have been a number of allegations and findings of dishonesty and culpable behaviour but, regularly and without demur prior to its resolution, the stark difference of fact relating to the Disputed 1993 Marriage (namely was there or was there not a ceremony on that day) has been referred to by both parties and the court as the "big lie" because of its fundamental importance and its obvious impact on the other issues relating to the conduct of the parties and their rival contentions.
  5. On 29th of June 2004, the Petitioner amended the 1993 Petition (the Amended 2003 Petition). As a result of the amendment she added in the alternative that by the same ceremony on 22 December 1993 the parties purported to celebrate a marriage or underwent a ceremony of marriage by virtue of native law and custom. She also added a claim that the parties were married by cohabitation and repute and an alternative claim for a decree of nullity if the Respondent should prove that he entered into a statutory marriage with GT which was still subsisting in 1993.
  6. Also on 29 June 2004, the Petitioner issued a further petition (the 2004 Petition) based on an assertion that on 16 March 2002 she and the Respondent were lawfully married in Nigeria by virtue of native law and custom (the Disputed 2002 Marriage). In addition, she sought an order dissolving that marriage but did not seek in the alternative a decree of nullity. As the Disputed 2002 Marriage was within a year of the 2003 Petition it was not open to her to add an alternative based on it to the 2003 Petition.
  7. In all three petitions the Petitioner sought orders relating to the twin daughters of the parties and ancillary relief.
  8. In March 2003, the Petitioner sought and obtained a freezing order against the Respondent. She also sought and obtained a mirror order in Jersey. Later, some variations were made to those orders.
  9. On 28 May 2003, District Judge Black made an order for maintenance pending suit in the 1993 Petition. That order provided that from 28 April 2003 the Respondent was to pay to the Petitioner 25,000 per month split as to 10,000 payable to the Petitioner and 15,000 payable to her solicitors in respect of costs.
  10. On 1 December 2003, Singer J heard the Respondent's application to discharge the maintenance pending suit order. He refused that application and increased the sums to be paid from the original date (24 April 2003) to 39,000 per month split as to 14,000 payable to the Petitioner and 25,000 payable to her solicitors for costs.
  11. Prior to 1 December 2003, further applications and orders to those mentioned above had been made both in this country and in Jersey. A number of applications and orders followed during 2004 and the early part of 2005 and many of these related to the enforcement of the order for maintenance pending suit.
  12. Severe criticisms of the Respondent's conduct in the Divorce Proceedings have been made by me and other judges and have resulted in a number of orders for costs being made against him.
  13. In 2005, I heard over a number of days a number of preliminary issues relating to jurisdiction and other matters in the Divorce Proceedings. My judgment (my 2005 judgment) is a lengthy one and in it I set out relevant history and make a number of findings of fact. I had heard evidence from both the parties and my findings include adverse findings relating to the credibility of both of them. On 9 March 2005, I made an order:
  14. i) declaring that this court had jurisdiction to hear the amended 2003 Petition and the 2004 Petition,

    ii) staying both sets of proceedings pending disposal of the proceedings in Nigeria referred to in Schedule 1 to the order; provided that the said stay was subject to the terms and undertakings set out in Schedule 2 to the order,

    iii) discharging the order for maintenance pending suit made on 28 May 2003 as subsequently varied on 4 December 2003, and

    iv) adjourning generally with liberty to restore all applications in relation to the costs of these proceedings (save in so far as orders had already been made).

  15. Schedule 1 to that order identified two sets of proceedings in Nigeria and contained the following proviso:
  16. " Provided that this order is intended (so far as possible) to encourage the expeditious determination in Nigeria of all issues relating to the personal status and/or the dissolution or annulment of any marriage or purported marriage between [GT] and [ the Respondent ] herein; and between the Petitioner herein and the Respondent herein on the other hand. Accordingly nothing in this order is intended to inhibit the Petitioner or the Respondent herein or [GT] from making such applications to amend any pleading or seek any relief within the said two sets of proceedings or from commencing fresh proceedings in the Lagos High Court (i.e. a new petition for divorce or annulment as the case may be) as may tend to lead to that end. "
  17. As that proviso indicates, and as explained in my 2005 judgment, the purpose of the stay was to enable:
  18. i) the parties to put before the Nigerian courts all issues relating to whether, and if so when, they were married and the effect of any marriage, or marriage ceremony, based on custom and practice having regard to the existence of a statutory marriage between GT and the Respondent, and so to enable

    ii) the Nigerian courts to (a) decide whether the parties were married, the effect of any marriage and their status during any such marriage, and (b) to make appropriate orders or declarations terminating any marriage.

    The purpose and result of this was therefore that this court directed that the Nigerian courts were to decide the disputed issue of fact relating to the existence of the Disputed 1993 and 2002 Marriages and the marital status of the parties on the basis of those findings

  19. In March 2005, I continued the freezing orders.
  20. The Nigerian proceedings took some time and whilst they continued the Petitioner made some applications to set aside the stay, which I refused.
  21. In 2005, the Petitioner launched the Children's Proceedings under Schedule 1 of the Children Act 1989 for financial provision to be made for the children. In those proceedings the Respondent was ordered to make payments for the children and in respect of the costs of the proceedings. Those proceedings were hard fought both before and after the making of interim and later secured orders for the benefit of the children. The judgments given in those proceedings contain a number of findings that are very critical of the manner in which the Respondent and his advisers conducted the litigation and complied with orders of the court. A number of orders for costs were made against the Respondent.
  22. In April 2008, Justice Oyefeso delivered a judgment in respect of proceedings in the High Court of Lagos in which the Respondent was the Claimant and the defendants were the Petitioner and GT (the Nigerian High Court Judgment).
  23. On 13 May 2008, I gave permission to the Petitioner to apply for financial relief under the Matrimonial and Family Proceedings Act 1984 (the 1984 Act) and a limited order for maintenance pending suit to cover the costs of a directions hearing fixed by that order. In June 2008, I made a freezing order against the Respondent in the proceedings under the 1984 Act.
  24. A number of applications relating to both the Divorce Proceedings in England including those under the 1984 Act followed, the overall effect of them was that the rival applications were adjourned pending the results of the appeal against the Nigerian High Court Judgment in Nigeria.
  25. On 19 January 2012, the Court of Appeal in Nigeria delivered its judgment in the Nigerian proceedings (the Nigerian Court of Appeal in Nigeria Judgment).
  26. On 26 June 2012, the Petitioner amended the 2004 Petition. By that amendment she asserted that:
  27. i) On 16 March 2002, the Petitioner went through a ceremony of marriage to the Respondent in Nigeria and the said marriage was valid and effective in all respects save that the Respondent was incapable of entering into a valid marriage in that he was already married to GT, and

    ii) the Petitioner did not know that the Respondent was incapable of entering into a valid customary marriage.

    And, by that amendment, she sought a decree of nullity and abandoned her claim for a dissolution of the said marriage.

  28. The amendments to the 2004 Petition flow from the Petitioner's assertions concerning the effect of the Nigerian High Court Judgment.
  29. It is clear and accepted that the Nigerian High Court found that the Petitioner had failed to establish the Disputed 1993 Marriage and the Court of Appeal in Nigeria upheld that finding.
  30. The arguments between the parties on the effect of the Nigerian judgments relate to the Disputed 2002 Marriage. Unlike the position in respect of the Disputed 1993 Marriage, it was common ground that an event took place on 16 March 2002 and the dispute or potential disputes were as to whether that event was:
  31. i) a customary marriage,

    ii) a celebration of the Disputed 1993 Marriage and if so whether that could constitute a customary marriage if for some reason the Disputed 1993 Marriage was ineffective, or

    iii) an acknowledgment of the paternity of the parties' twin daughters.

    The issues now before the court

  32. These are:
  33. i) The Respondent's application to dismiss and/or strike out the 2003 Amended Petition.

    ii) The Respondent's application to set aside my order granting permission for the Petitioner to bring proceedings under the 1984 Act and/or for an order dismissing or striking out those proceedings.

    iii) The Petitioner's application for orders, directions and interim payments in her application under the 1984 Act.

    iv) The Respondent's application to dismiss and/or strike out the 2004 Amended Petition.

    v) The Petitioner's application for orders, directions and interim payments in her application made by the 2004 Amended Petition.

    vi) The Respondent's application for repayment of the sums he has paid by way of maintenance pending suit in the 2003 Petition and in the proceedings under the 1984 Act.

    The Nigerian Proceedings

  34. As I have said there is no doubt that the Petitioner has failed to establish the existence of the Disputed 1993 Marriage on the balance of probabilities.
  35. The declaration made by the High Court of Lagos in respect of the Disputed 1993 Marriage was that:
  36. "No ceremony took place between the [ Respondent] and the [ Petitioner ] at Utagba Uno in Kwale Town in Ndowka West Local Government Area of Delta State on 22 December 1993"
  37. Naturally, this reflected the finding of fact made to the effect that, as the Respondent has consistently asserted, the ceremony relied on by the Petitioner did not take place. The finding of fact is expressed in terms that the Petitioner had failed to discharge the onus of proof on her to show that there was a customary law marriage that was celebrated between her and the Respondent on the 22 December 1993. Applying the binary approach to findings in civil litigation, such a finding means that the court proceeds on the basis that there was no such marriage. So, although the burden of proof means that the finding of the High Court of Lagos is not a certainty, for the purposes of these proceedings this court has to proceed on the basis that the 1993 Petition as originally drafted, and as amended, was based on a false assertion that the parties entered into a customary marriage in 1993 and that, as the Respondent has throughout asserted, there was no such ceremony and no such marriage.
  38. It follows that on the issue of fact involving what was described as the "big lie" the Respondent has won and the Petitioner has lost.
  39. It is also clear and now common ground that the Respondent did enter into a statutory marriage with GT which subsisted in 1993 and 2002 and that this had the result (reflected in the declaration made by the High Court of Lagos in respect of the Disputed 2002 Marriage and confirmed and explained by the Court of Appeal in Nigeria) that:
  40. i) if the parties had entered into a customary marriage in 1993 or 2002 those customary marriages would amount to no marriage as between the parties, and

    ii) this is the case whether or not the Petitioner knew of the existence of the statutory marriage.

  41. The result of the proceedings in Nigeria is therefore that as a matter of Nigerian law the parties were never husband and wife.
  42. But the Petitioner argues that that is not the end of the matter because in the Nigerian High Court Judgment it was found that the event that took place in December 2002 was a customary marriage and on the basis of that finding the High Court made declarations that:
  43. " A celebration of customary marriage took place between the [ Respondent] and the [ Petitioner ] in Utagba Uno on 16 March 2002
    That celebration marriage of 16 March 2002 is null void and of no effect whatsoever; that in the eyes of the law there has never been a marriage between the [ Respondent ] and [ Petitioner ] in view of the fact that the [ Respondent ] was already married to [GT] under the Marriage Act and he was therefore incapable of contracting another marriage under native laws and custom during the subsistence of that statutory marriage "
  44. The High Court in Lagos also, in light of the second declaration cited above, granted to the Respondent:
  45. " An order of perpetual injunction restraining the [ Petitioner ] from referring to herself as being married to the [ Respondent ] or holding out herself in any forum form or manner to be the [ Respondent's ] wife "
  46. The High Court in Lagos refused to admit the evidence filed in the English proceedings. The Petitioner did not give evidence in the Nigerian proceedings but relied on the evidence given by her father in respect of her assertions concerning the ceremonies that she said took place in December 1993 and March 2002. The judge refused to draw any adverse inferences from her failure to testify albeit that she was urged to do so by the Respondent's Counsel, but in respect of the 1993 ceremony the judge found the evidence of the Petitioner's father to be unconvincing.
  47. Turning to the Disputed 2002 Marriage, in addition to the evidence of her father the Petitioner relied on a video of the ceremony. As I have mentioned, it was common ground that an event/ceremony had taken place and what was in dispute was its nature and purpose. The Respondent asserted that its nature and purpose was to acknowledge him as the father of the Petitioner's twin daughters. This was rejected by the High Court Judge effectively as a result of her viewing and analysis of the video recording of the ceremony. In reaching that finding, on that basis, the judge records but does not include an assessment of the impact of the evidence given by the Petitioner's father to the effect that the ceremony in 2002 was, and was intended to be a celebration of the earlier marriage that had taken place in 1993 and, for example, the following exchange during his cross-examination:
  48. " Question: So if anyone suggested that on 16 March 2002 [ the Petitioner ] and [ the Respondent ] got married you will say that person is incorrect would you?
    Answer: It is not correct because they were married since 1993."
  49. Unlike the findings in respect of the disputed 1993 ceremony no express finding on the unreliability of this part of the evidence of the Petitioner's father is contained in the judgment and it has to be inferred.
  50. Also in its findings of fact underlying that second declaration the High Court in Lagos found that the Respondent intended to enter into a customary marriage on 16 March 2002, but did not make any comments on the Respondent's evidence about this.
  51. In her pleading the Petitioner asserted as follows:
  52. " Because there had been difficulties in the marriage which the [ Respondent ] ostensibly wished to smooth over, he revised his promise made in 1993 and started making mention of a larger and grander celebration to proclaim the marriage between him and the [ Petitioner ] to the world at large. He again approached the [ Petitioner's ] parents
    After a period of procrastination on the part of the [ Respondent ] 16 March 2002 was finally fixed for the event at the [ Petitioner's ] parents' home in Utagba Uno. The [ Respondent ] lived up to his words and it was a truly grand celebration at which singers, musicians, dancers and other performers all paid for by the [ Respondent ] entertained a very large crowd of guests that attended the event.
    The [Respondent] arrived with a very large delegation of his family members and friends, and they were all formally welcomed to their in-laws home, prayers were said and following a procession of fake brides, all of whom were rejected by the [ Respondent] and his family, the [ Petitioner] was finally presented and handed to the [ Respondent's] family Money and gifts were presented by the [Respondent's ] family to the [ Petitioner's] family and the couple shared drinks ------------- "
  53. In the judgment of the High Court in Lagos the judge described the Petitioner's factual case relating to the Disputed 2002 Marriage in various ways. For example, she says:
  54. " What about the 2002 alleged celebration of marriage? There is no dispute between the parties that a ceremony took place between the parties on 16 March 2002. Whilst the [ Petitioner ] maintains that it was the grander celebration of her customary law marriage to the [ Respondent ], the Respondent's position is that it was a ceremony to acknowledge paternity of the twin girls born to the [Respondent] and the [Petitioner] on 20 June 2001 "

    The judge then goes on to refer to the pleadings cited above and to the fact that a video recording of the event was tendered in evidence. Later, having referred to other evidence, she said:

    " The question first is this what ceremony actually took place at Uktaba Uno on 16 March 2002? Was it a traditional marriage as canvassed by the [ Petitioner ]? Or was it merely a ceremony acknowledging the children of the [ Respondent ] and the [ Petitioner ] as canvassed by the [ Respondent ]? Or is it still a naming ceremony as stated by the witnesses that gave evidence for the [Respondent]? Which was it? "
  55. As I have already mentioned, the judge found that it was a traditional marriage ceremony. She then went on to reject in strong terms the arguments and evidence advanced by, and on behalf of, the Respondent that it did not comply with native law and custom.
  56. Further, no finding was made on whether the Petitioner knew that the Respondent had entered into a subsisting statutory marriage with GT.
  57. The Respondent appealed and the Petitioner cross appealed.
  58. On the Cross Appeal the Court of Appeal in Nigeria rejected:
  59. i) the Petitioner's challenge to the finding that she had failed to establish the Disputed 1993 Marriage, and

    ii) her challenge to the failure of the judge to find that the parties cohabited as husband and wife and/or to presume a marriage by repute and cohabitation between the parties.

    It is therefore clear that the Petitioner has failed to establish that she and the Respondent were married on either of those bases.

  60. On the Respondent's appeal the Court of Appeal in Nigeria dealt with the issues by reference to the issues identified by the brief of argument of the Respondent (the Appellant before them) and stated that the formulation of the issues as identified by the Petitioner was substantially identical and so the issues they raised became "conterminous".
  61. On the first issue as formulated by the Respondent, the Court of Appeal in Nigeria rejected the Respondent's argument that the judge should have made a finding and declaration that the Petitioner knew of the statutory marriage to GT. I reject the Respondent's arguments that read as whole the Court of Appeal in Nigeria did acknowledge or find that she did know of that subsisting statutory marriage. In my judgment, unfortunately this issue has not been decided by the Nigerian courts although it was expressly raised before them.
  62. The Respondent however succeeded on the second issue, namely on his argument that the judge should not have made the findings of fact that she did in respect of the Disputed 2002 Marriage, namely that on that day the parties took part in a customary marriage ceremony and that the Respondent intended to do this. At the heart of this part of the appeal, and the reasoning of the Court of Appeal in Nigeria on it, is the point that the Petitioner did not plead the existence of such a marriage and intention and therefore these issues were not properly before the court. It follows that the Court of Appeal in Nigeria was of the view that the judge had been wrong to state as she did in the second citation in paragraph 41 above that before the High Court in Lagos the Petitioner canvassed that the ceremony on 16 March 2002 was a traditional marriage or to treat that as an issue before the court that she could properly and fairly decide on the evidence.
  63. The Court of Appeal in Nigeria describes the issue as a pleading point but it must be remembered that not only was there no pleaded assertion there was also no oral evidence advanced by the Petitioner that the March 2002 ceremony was a ceremony of customary marriage and/or that the Respondent intended to contract a marriage in 2002.
  64. The Court of Appeal in Nigeria in its reasoning states:
  65. " --- can the trial judge be permitted to make a declaration outside the pleadings of the parties? This court will repeat for clarity the pleading of the [ Petitioner ] in her Statement of Defence and Counter Claim that they were married in December 1993 and celebrated the marriage by having a party on 16 March 2002. No doubt the finding of fact by the learned trial judge and the subsequent declaration by the court that a celebration of marriage under the Ukwuani Custom took place between the parties on 16 March 2002 and that the [ Respondent ] intended to enter into the marriage is outside the pleading of the [ Petitioner ]. The finding of the trial court is also outside the Statement of Claim of the [ Respondent ] who averred that no marriage ceremony took place between the parties on 16 March 2002.
    This court finds that the fact and subsequent declaration by the trial court of marriage ceremony by the parties on 16 March 2002, clearly outside the pleadings of the parties. The essence of pleadings is defined by the Supreme Court in the case of [authority is cited]. The apex court stated:
    " It is firmly established that the essence of pleadings is to compel the parties to define accurately and precisely, the issue upon which the cases to be contested. This is in order to avoid any element of surprise by either party. It is not to adduce evidence which goes outside the facts pleaded ----------
    Having established that the trial court's findings of facts and declaration subsequently made outside the pleadings of the parties this court is permitted by law to disturb such findings by the trial court.
    The law is settled on the instance where appellate court will disturb concurrent findings of fact by the lower court, only where such findings are improper or perverse having regard to the evidence [ authorities are then cited ].
    The finding of the trial court which held and declared that a celebration of marriage under Ukwuani Custom took place between the parties on 16th of March 2002 and that the [ Respondent ] intended to enter into the marriage was improper."
  66. To my mind, this reasoning does not identify or rely on a technical or arid point of pleading, rather it is focusing upon the fairness of a finding being made by reference to the viewing by the judge of the video in the absence of any pleaded assertion or any written or oral evidence being advanced by or on behalf of the Petitioner that the ceremony was, and was intended to be, a marriage rather than, as she pleaded and her father asserted in evidence, a celebration of an earlier marriage that had taken place in December 1993.
  67. As I recall it, the distinction between a celebration of an earlier marriage and an actual marriage in 2002 was discussed during the hearing before me in 2005, in the context of the question:
  68. Whether a ceremony that was, and/or was intended by one or both of the parties to it, to be a celebration (or proclamation) of an earlier wedding could itself be a marriage pursuant to native law and custom in Nigeria if there had not been an earlier marriage ceremony (as the Respondent asserted), or for some reason (e.g. the existence of a subsisting statutory marriage) the earlier marriage ceremony was ineffective?
  69. It was felt that this was a matter for Nigerian law and so an issue for the Nigerian courts. However the point was not raised in the Nigerian proceedings by the parties or the courts. To my mind, this is a clear indication that an argument that such a celebration (or proclamation) could constitute a ceremony of marriage according to native law and custom in Nigeria was a bad one. In any event, this was a point for the Petitioner, rather than the Respondent, to take because it did not arise if, as the Respondent asserted, the ceremony was, and was intended to be, an acknowledgment of his paternity of the twin girls.
  70. I now return to the approach of the Court of Appeal in Nigeria to the declaration made by the High Court in Lagos in respect of the customary marriage ceremony it had found had taken place on 16 March 2002.
  71. The approach of the Court of Appeal in Nigeria was to indicate that the pleadings and admissible evidence showed that the parties agreed that at the material time the Respondent's statutory marriage to GT, which was entered into in 1972, subsisted and therefore that the Respondent could not possibly contract a valid customary marriage to the Petitioner. So as the Court of Appeal in Nigeria stated:
  72. "If any ceremony of marriage which the parties intended to create a marriage took place, that ceremony would amount to no marriage between the parties."

    The Court of Appeal in Nigeria went on to state that if a fact is admitted by both parties it is trite law that no further proof of its existence will be required for its determination.

  73. Having so reasoned, the Court of Appeal in Nigeria stated:
  74. "The next leg of issue three is whether the trial court can make a declaration on the legal status of that ceremony mutually agreed to be non-existing."
  75. In my judgment, nowhere in its judgment does the Court of Appeal in Nigeria record or reason on the basis that it was agreed between the parties that no ceremony of marriage took place in 2002, or that the Petitioner knew that the Respondent had entered into a statutory marriage in 1972. So, I reject the arguments put on behalf of the Respondent to this effect.
  76. Rather, in my judgment, the Court of Appeal in Nigeria was proceeding on the bases that (a) it was common ground that in 2002 (and indeed in 1993) a statutory marriage between the Respondent and GT was subsisting, and (b) this had the effect that any customary marriage between the Petitioner and Respondent was "no marriage between the parties" or "non-existing".
  77. Equally, the Court Appeal was also not proceeding on the basis that a ceremony of customary marriage had not taken place in March 2002. Indeed, in my view, on its approach without permitting an amendment of the pleadings and hearing evidence on this disputed issue it could not have done so. It follows that it could not approach the legality or appropriateness of the declaration made the High Court in Lagos in respect of the Disputed 2002 Marriage by reference to, or in the same way as it dealt with, the Disputed 1993 Marriage because in respect of that disputed marriage it had been found that no customary marriage ceremony took place.
  78. Rather, the Court of Appeal in Nigeria was addressing the question whether the declaration made in respect of the Disputed 2002 Marriage could properly be made on the basis that if there had been a customary marriage ceremony between the parties in March 2002 (or at any time when the Respondent's statutory marriage subsisted) it could not have created a customary marriage between the parties because of the continued existence of that statutory marriage.
  79. And, on that basis it found that the High Court in Lagos would be entitled to make the declaration that any such marriage ceremony would be void and of no effect.
  80. At the end of its judgment, the Court of Appeal in Nigeria state that its order is:
  81. i) the declaration made by the trial court with respect to issue two of the Appellant's [i.e. the Respondent] brief of argument is hereby set aside by this Court,

    ii) the declaration made with respect to issues one and three of the brief of argument of the Appellant by the trial court, are affirmed by this Court

    I have not been shown a formal order and was not told whether any such order was drawn. In England, the problems caused by this wording could have led to it being resolved when the formal order was drawn.

  82. Issue two in that brief of argument related to the Respondent's challenge to the declaration that a celebration of customary marriage took place between the Respondent and the Petitioner in Utagba Uno on 16 March 2002. So, the order, reasoning and conclusion of the Court of Appeal in Nigeria as to that declaration is clear and is that:
  83. i) that declaration should not have been made, and

    ii) it is set aside.

  84. To my mind, the upshot of that is clear and it is that there is no extant finding or declaration in Nigeria that there was any such celebration of customary marriage in 2002.
  85. Issue one in the brief of argument concerned the failure of the High Court in Lagos to make a finding and declaration that the Petitioner knew that the Respondent had entered into a subsisting statutory marriage. So, its order is confusing because there was no such declaration to be affirmed. But, to my mind, this order must mean that in not making such a declaration the High Court in Lagos did not err.
  86. Issue three in the brief of argument concerned the declaration that "the celebration of marriage of 16 March 2002 is null void and of no effect whatsoever; ----". Affirmation of that declaration is clearly inconsistent with the conclusion that the High Court in Lagos was wrong to conclude and declare that such a celebration of customary marriage took place.
  87. By reference to the reasoning in the judgment of the Court of Appeal in Nigeria, I have concluded that this part of the order, as set out in the judgment of the Court of Appeal in Nigeria, cannot be construed or relied as a declaration that either:
  88. i) there was such a celebration of customary marriage on 16 March 2002, or

    ii) that that customary marriage is null and void.

  89. So I reject the arguments advanced by the Petitioner that it can. Such an interpretation would fly in the face of the reasoning and conclusions which in my judgment make it clear that the Court of Appeal in Nigeria was not addressing the issue on the basis that there was a celebration of customary marriage on 16 March 2002 but was doing so on the basis that if there had been one, and so if the conclusion of the High Court in Lagos that there was one could stand, it could have made the declaration it did that it was void etc.
  90. This conclusion is confirmed when the formulation of this issue by both parties is taken into account. The Respondent formulated it as follows:
  91. " Whether assuming that the parties entered into a customary marriage on 16th March 2002 and that the Appellant so intended (both of which are denied) what is the legal status of that ceremony. "

    And the Petitioner's formulation was:

    "(i) Whether the learned trial judge was right to have held and declared that a celebration of marriage under the Ukwuani Custom took place between the parties on 16th of March 2002 and that the Appellant intended to enter into marriage
    (ii) If the answer to issue (i) above is in the affirmative, then what is the legal status of that ceremony and was the lower court competent to have made a declaration proclaiming or affirming that status?"

    So the Respondent invited the Court of Appeal in Nigeria to deal with this issue on an assumption and the Petitioner invited them to do so on a hypothesis that both accord with my reading of the reasoning and conclusion of the Court of Appeal in Nigeria on this issue (which it regarded as being effectively the same whichever of the parties' formulations was adopted). In fact the Court of Appeal in Nigeria dealt with the issue by reference to the Respondent's formulation and thus, as I have found from their reasoning, on an assumption.

    The upshot of the Nigerian proceedings

  92. In my judgment, the Nigerian proceedings have produced the following results:
  93. i) A finding of fact that the parties did not enter into a customary marriage in 1993.

    ii) No valid finding of fact has been made on the disputed issue whether the parties entered into a customary marriage on 16 March 2002 or at any other time.

    iii) Apart from the declaration made by the first instance court in respect of the Disputed 1993 Marriage, no subsisting and effective declaration or order bringing an end to or annulling a customary marriage between the parties in March 2002 (or at any other time) or declaring it null and void has been made by the Nigerian courts.

    iv) There is now common ground that in 1993 and 2002 the Respondent was a party to a subsisting statutory marriage with GT.

    v) Confirmation that the impact in law in Nigeria of that subsisting statutory marriage is that the Respondent was not capable of contracting a customary marriage and so both marriages asserted by the Petitioner were null and void and of no effect in law.

    vi) No finding of fact has been made as to whether the Petitioner knew of the Respondent's statutory marriage in 1993 or 2002.

    Miscellaneous

  94. The Respondent invited me to make a finding that the Petitioner knew of his statutory marriage to GT if, as is the case, I concluded that no such finding had been made in Nigeria. In this context I was referred to the following:
  95. i) In his answer to the 1993 Petitioner dated 6 May 2003 the Respondent asserted that by virtue of his marriage to GT the Respondent had no capacity to contract subsequent polygamous marriages. (I was not referred to any earlier reference to this in the Divorce Proceedings).

    ii) In her statement of claim dated 4 March 2003 in proceedings that the Petitioner issued in Nigeria against the publishers of a newspaper and YT, a lady who also alleged that she was married to the Respondent and who had borne him children, the Petitioner pleaded that:

    "She was married to the Respondent, referred to in the publications as "Delta Billionaire" in December 1993, while YT alleged she was married to the Respondent in 1994. The purported marriage of YT was contracted under the Act when there was and is still a subsisting marriage under the Act by the Respondent."
  96. From that it was argued that it is plain that prior to the Respondent raising the existence of his statutory marriage in the English proceedings it was relied on by the Petitioner in proceedings in Nigeria, and this is a clear indication that she was aware of it and that she has not been telling the truth when she has said that the Respondent told her it that his marriage to GT was a customary marriage and that is what she thought in 1993 and 2002.
  97. I agree that this Nigerian pleading is an indicator that the Respondent is right on this dispute. Also, in my judgment, the Petitioner failed to point to passages in the papers that when read alone, or with other relevant passages, make it clear that her position, when she launched her proceedings in England and Wales in February 2003, was that she did not know that the Respondent had entered into a subsisting statutory marriage with GT at the time of the customary marriage she was asserting. It is however clear that, if she had known, this she would also have known that the customary marriage she was asserting was null and void and of no effect whatsoever (as declared by the Nigerian courts).
  98. But absent the issue relating to the Petitioner's knowledge of the statutory marriage to GT being specifically raised and covered in oral evidence before me I am not prepared to make any finding on it. In support of this conclusion I return to my 2005 judgment and the findings therein on the credibility of both parties. Those findings form the basis for the view, which I hold, that it is certainly possible that, to achieve her ends against YT and publishers in Nigeria, the Petitioner would present what she believed to be a false description of the nature of the Respondent's marriage to GT in those Nigerian proceedings.
  99. During argument on the assertions made by the Petitioner in Nigeria about the Disputed 2002 Marriage and more generally as to her credibility I was taken to what she has said about it in the English proceedings, which the High Court in Lagos decided was inadmissible in Nigeria.
  100. In a statement sworn on 26 March 2003, in support of an application for without notice relief the Petitioner stated:
  101. " Summary of background
    I married [ the Respondent ] on 22 December 1993 in Nigeria. We were born in Nigeria and met at a time whilst I was studying there.
    Our marriage was by virtue of native law and custom (see sworn statements filed by lawyers in Nigeria and exhibited to my English lawyers Affidavit sworn on 28 February 2003).
    Born to our marriage are two children -----------
    Following the birth of the children the Respondent wanted us to undergo a civil ceremony by virtue of native law and custom in Nigeria and this took place on 16th March 2002.
    Later in the same statement
    3 January 2002. The Respondent telephoned me. --------------------- The Respondent went on to say that if he did not formally escort me to his house our children will be called "bastards" and he didn't want that. After a lengthy discussion I agreed to undergo another marriage ceremony. The Respondent followed up this conversation by fixing a wedding date.
    March 2002. We married and wedding photographs are on page 14 "
  102. It is difficult to understand why the Petitioner, who wrote a thesis or paper (or part of one) on Nigerian marriage law, thought it appropriate in March 2003 to refer to the Disputed March 2002 as a civil ceremony unless she wished to convey that it was somehow different to the customary 1993 marriage that she was asserting and relying on. To my mind, these references to the ceremony in March 2002 do not make it clear whether the Petitioner is saying that it is another marriage or a civil recognition of an existing marriage or what its alleged effect is. In any event, it is apparent that in this statement the Petitioner is relying on the 1993 Disputed Marriage.
  103. Further this statement was made about three weeks after the Nigerian pleading in which the Petitioner asserted in respect of an alleged marriage of the Respondent to YT in 1994, that he still had a subsisting marriage under the Act. If that was her belief she plainly had a duty to disclose it to the English court when making her without notice application and did not do so.
  104. In a statement signed on 12 November 2003, the Petitioner stated:
  105. " In 1993 [ the Respondent ] wanted a very small wedding. He promised me and my family a large party later in life. ----
    When negotiations recommenced about the date for the celebration of our marriage [ the Respondent ] presented me with a list of items he wanted me to obtain and/or organise for the celebration ----.
    On 10 February [ the Respondent ] called to say he had bronchitis and asthma and he would not be able to come to Nigeria on 16th of February but that he had arranged with his family for the celebration to take place without his being present. I was furious and refused to go.
    The ceremony did not take place but [ the Respondent ] did return to Nigeria on 16th February and went to my family home. He begged my father to give him another date. The ceremony was of far more importance to [ the Respondent ] because it involved his community and family. {He suggests naming ceremony - deal with Note: this seems to be a note of the draftsman which got left in by mistake }. My father refused to give another date because 16th February had been given and had not happened. [ The Respondent ] and his family persisted with their requests - eventually my father felt he did not have a choice 16th March was the date offered. At this time I heard from some of my friends in Nigeria that [ the Respondent ] was denying our marriage and the birth of our two children. ----
    The 16th March 2002 did result in a ceremony and the event is recorded on video and captured in photographs that appear in section 7 of the exhibits.----
    I was assisted in my wedding preparations by my sisters and some close friends. I was aware of [ the Respondent's ] arriving because he came into the room and one of the guests joked about him seeing me before my ceremony.
    Once I was fully dressed and the celebration was ready for my entrance I was escorted by other women singing and dancing into the main room of our family home where key members of my family and distinguished chiefs were sitting. I had taken my place after a procession of fake brides had been taken into the room. Present in the room was [ the Respondent ]. Also present were kola nuts, drinks and money and traditional items for [ the Respondent ] to present to my family.
    On arrival in the room [ the Respondent ] identified me as his wife.
    A bride price was paid in my presence and [ the Respondent ] and I were invited to share a drink which we did.
    We then left the room together and went outside to greet guests - at first we sat in an area designated for our presence. We were given money. We then danced. We also cut our wedding cake which had been made and brought to us from Lagos. The wedding cake had palm wine Kalabash - a cup, traditional garden eggs, native Kolanuta, beta Kola.
    Wedding gifts were given out ----
    After the dancing was over I was escorted to [ the Respondent's ] house by members of my community. [ The Respondent ] had driven on ahead. On arrival I had my feet washed by some of the older members of [ the Respondent's ] community before I could enter his house. On entering the house we congregated in a very large living room [ the Respondent's ] family and representatives on one side and mine on another. -----------
    There is no doubt at all in my mind that the delay in providing the party was, in part, due to the birth of the twins. [ The Respondent ] wanted me to provide children for him and I think if I hadn't produced the children the celebration of our marriage in the presence of his community would not have taken place."
  106. This statement is internally inconsistent and confusing on the issue whether the Petitioner was asserting that the ceremony/event on 16 March 2002 was the celebration of an earlier customary marriage or a marriage ceremony. In my judgment, it cannot be relied on to show that in England, unlike Nigeria, the Petitioner has asserted that that ceremony/event was a customary marriage rather than a celebration of an earlier customary marriage.
  107. I did not hear any oral evidence on this dispute of fact and I am unable to decide it on the papers.
  108. My 2005 judgment

  109. In my 2005 judgment, I record that in my view both parties demonstrated that they were 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 (see paragraph 30). I also record that the factual issues that then arose for determination focused on the conduct and honesty of the Petitioner rather than the Respondent and that I accepted and found that the Respondent is a man who would, or who 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 (see paragraphs 239 to 243).
  110. However, that judgment also contains a number of findings against the Petitioner which are relevant to the issues before me (see in particular paragraphs 138 to 236). For example, at paragraphs 184 to186 and 218, I state:
  111. " 184. 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.
    185. 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 they had entered into a customary marriage but would not be able to do so in Nigeria.
    186. 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) ------
    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.
    218 In my judgment, on the evidence before me in seeking this injunction [ the application for an anti-suit injunction on 15 April 2003 ] the Petitioner failed to make full disclosure and knowingly presented a misleading and false picture to the court"
  112. My findings also establish that the Petitioner was well aware of her position relating to a claim for ancillary relief in Nigeria (namely that she had no claim as a customary wife) and in England, including the jurisdictional bases on which such a claim could be brought, and the point that the length of the marriage would be a relevant factor. Further, in my view my findings demonstrate that to further her prospects of maximising her claim for ancillary relief, on an interim basis and by way of final orders, pursuant to what in my judgment can fairly be described as a campaign, the Petitioner lied about a number of relevant matters.
  113. A centrally important assertion in her proceedings for ancillary relief in England and Wales, and thus her campaign, was that she was married to the Respondent in 1993 and this is why the stark difference of fact relating to the Disputed 1993 Marriage was referred to as the "big lie". And a major reason for the stay was to enable this issue of fact that related to events in Nigeria and Nigerian witnesses to be decided in Nigeria.
  114. The Respondent's application to dismiss and/or strike out the 2003 Amended Petition

  115. The result of the Nigerian proceedings means that this application must succeed because the Petitioner has failed to establish the existence of the Disputed 1993 Marriage and the Nigerian courts have declared that a marriage by repute cannot be presumed between them. Indeed, correctly this head of relief was not resisted on behalf of the Petitioner.
  116. The effect of the findings in Nigeria in respect of the Disputed 1993 Marriage and the assertion of a marriage by repute are that:
  117. i) there was no such marriage ceremony or marriage, and so

    ii) they could not found a divorce or decree of nullity, and so financial relief under the MCA 1983 (see for example Dukali v Lamrani [2012] EWHC 1748 Fam and the cases listed at paragraph 25 of the judgment therein).

  118. It follows that the 2003 Amended Petition was based on a false premise, and so, in my view, the correct order is that this petition should be struck out.
  119. The Respondent's application to set aside my order granting permission for the Petitioner to bring proceedings under the 1984 Act and/or for an order dismissing or striking out those proceedings and the Petitioner's application for orders, directions and interim payments in her application under the 1984 Act

  120. It follows from my conclusions on the result of the Nigerian proceedings that the Petitioner cannot and does not rely on the Disputed 1993 Marriage to found these proceedings. This is because the finding is that the relevant ceremony did not take place.
  121. She has always relied on the Disputed 2002 Marriage to found her 1984 Act proceedings and her primary case is that the declaration made by the first instance court in Nigeria in respect of this marriage, founded on its conclusion that it took place, founds her 1984 Act claim as it is in English terms a decree of nullity (see Kassim (Orse Widmann v Kassim (Orse Widmann) [1962] P 224 at 234).
  122. This stance relies on the argument that the declaration by the first instance court in Nigeria is, or should be treated as being, valid and subsisting on the bases that (a) the judge had seen the video and made her finding, (b) the Respondent had suffered no prejudice by her supposed failure to plead, and (c) the Court of Appeal in Nigeria did not set aside the declaration made in respect of it. In short, the Petitioner argues that I should ignore the decision of the Court of Appeal in Nigeria that the finding made about the Disputed 2002 Marriage was not one the judge should have made on the pleadings. I do not see how I can do that and, as I have explained, contrary to the Petitioner's submissions, the Court of Appeal in Nigeria considered and decided that the lack of a pleaded case by the Petitioner did prejudice the Respondent. In my judgment, it would fly in the face of the reasoning for imposing the stay and comity for me to ignore the conclusion of the Court of Appeal in Nigeria as the Petitioner invites me to.
  123. To my mind, my conclusion on the results of the Nigerian proceedings set out earlier mean that there is no existing foundation for the 1984 Act proceedings because the Petitioner has not:
  124. i) established that she entered into the customary marriage on which these proceedings are based, and

    ii) obtained an effective and subsisting declaration from a Nigerian court that can be relied on to establish that that marriage has been dissolved or annulled by the Nigerian courts.

  125. This analysis, and the understandable absence of any suggestion that it would now be open to the Petitioner to seek to argue again in new proceedings in Nigeria that the ceremony in March 2002 was or purported to be a customary marriage, render academic the argument whether a decree, which the Petitioner might be able to obtain in Nigeria in respect of the Disputed 2002 Marriage would satisfy s. 12(1) of the 1984 Act. That section provides that the relevant marriage "has been dissolved or annulled by means of judicial proceedings in an overseas country". A declaration that the customary marriage was null and void would not do this as a matter of language. The counter argument is that financial relief can be claimed under the MCA 1973 in a petition for nullity and that, if what is obtained abroad, equated to a decree of nullity to achieve symmetry between the two Acts it should be treated as an order that annulled the marriage (see, for example Dukali v Lamrani [2012] EWHC 1748 Fam at paragraph 46). If that is right, the issue would arise whether the impact of a continuing statutory marriage at the date of a customary marriage renders the customary marriage a non-marriage or a marriage or marriage ceremony in respect of which a decree of nullity could be granted.
  126. So, I set aside the permission I granted to the Petitioner to bring her proceedings under the 1984 Act, and if it be necessary formally refuse her permission to bring such proceedings based on the Disputed 2002 Marriage because she has not established that it took place, or that it has been dissolved or annulled in Nigeria.
  127. The Respondent's application to dismiss and/or strike out the 2004 Amended Petition. The Petitioner's application for orders, directions and interim payments in her application made by the 2004 Amended Petition.

  128. On the basis that her proceedings under the 1984 Act did not continue the Petitioner sought to pursue the 2004 Amended Petition either by inviting me to adopt the conclusion of the first instance judge in Nigeria and so find that the parties celebrated a customary marriage in March 2002, or by permitting the Petitioner to seek to prove that they celebrated such a ceremony in these proceedings.
  129. First, in my judgment it is not possible or appropriate for me to adopt the finding of the first instance judge in Nigeria, essentially on the basis of her interpretation of a video of the event and, on that basis, grant a decree of nullity and entertain an application for financial relief. This is not a finding that is binding between the parties in Nigeria, let alone here, and understandably the Respondent asserts that it is wrong.
  130. Further, in my judgment I should not permit the Petitioner to pursue these proceedings further because:
  131. i) this would fly in the face of the stay and the reasons for it, and comity and further and, in any event,

    ii) I should dismiss these proceedings pursuant to the court's inherent power to control its own procedure so as to prevent it being used to achieve injustice (see Taylor v Lawrence [2003] QB 52 at paragraphs 52 to 54).

  132. In my judgment, the Petitioner was given a full, fair and appropriate opportunity to establish in the Nigerian courts that she and the Respondent entered into a customary marriage. This she has failed to do and to lift the stay now to allow her to pursue the 2004 Amended Petition in England (with or without orders for maintenance pending suit) would be unfair to the Respondent. As I have already mentioned there was no suggestion that the Petitioner could or would now seek to establish the existence of the Disputed 2002 Marriage in the Nigerian courts.
  133. In short, she has had her full, fair and appropriate chance to establish the existence of this customary marriage and has failed to do so and she should not be given another chance to do so in England.
  134. However, in my judgment I should go further and dismiss this petition under the inherent power referred to in paragraph 97(ii) above. To my mind, on the assumption in favour of the Petitioner that the Disputed 2002 Marriage could found a decree of nullity or a claim under the 1984 Act, the factors listed below alone or together with the points made in the last two paragraphs mean that a continuation of this petition would be an abuse of the court's process. The factors are:
  135. i) The Petitioner embarked on and pursued her campaign to obtain ancillary relief in England knowing that she had no claim as a customary law wife in Nigeria (see paragraph 84 above).

    ii) In doing so, she lied about a number of relevant matters (see paragraph 83 above).

    iii) In doing so, she focused on the Disputed 1993 Marriage and it has been found in Nigeria that no such marriage ceremony took place. This was a finding to the civil standard and, although it was in part expressed by reference to the burden of proof, the Nigerian court had to weigh the competing evidence on this stark issue of fact between the parties. Further, on the binary approach to such findings this court has to proceed on the basis that no such marriage ceremony took place and so by asserting that it did the Petitioner was advancing a false case and so it was Petitioner who was advancing "the big lie" (see paragraphs 4 and 85 above).

    iv) The evidence in the English proceedings provides strong support for the conclusion reached by the first instance judge in Nigeria that she could not find that the parties cohabited, which is effectively a finding that they did not. So, if the Petitioner had to rely on the Disputed 2002 Marriage (rather than the Disputed 1993 Marriage) she would be basing her claim on a short marriage which, in any event as she knew, gave her no entitlement to financial relief in Nigeria.

    v) The Petitioner both in her English proceedings and in Nigeria has failed to set out a clear case in support of the Disputed 2002 Marriage as a free standing ceremony of marriage and has asserted here and in Nigeria that it was a celebration of the customary marriage she asserted took place in 1993. (And in that context she did not raise the point in Nigeria whether such a celebration and intention could constitute an effective customary marriage). In my view she took this approach to the event in 2002 as part of her campaign to obtain ancillary relief in England based on a 10 year marriage.

    vi) Although there are two children of the relationship, in my view the combination of points (i) to (v) above mean that an award to the Petitioner based on the Disputed 2002 Marriage would not be fair applying the discretion conferred by the MCA 1983.

    vii) Even if, as the Petitioner asserts, the substantial sums paid to her as maintenance pending suit in the 2003 Amended Petition are irrecoverable, save by a new action, in my view this would not prevent them being taken into account in the exercise of the MCA 1973 discretion (or indeed the 1984 Act discretion) in respect of a claim based on the Disputed 2002 Marriage and set off against any award made in the 2004 Amended Petition. To my mind, there is no prospect of the Petitioner being awarded a sum that exceeds such maintenance pending suit in the 2004 Amended Petition. So, this is an additional reason for dismissing the 2004 Amended Petition.

  136. This alternative approach of the Petitioner depends upon her establishing that (1) there was a ceremony of customary marriage and having done so (2) that the English court can and should grant a decree of nullity in respect of that marriage and thus the platform for an award of financial relief. As I have concluded that the Petitioner has not and should not now be permitted to seek to establish that the relevant ceremony took place, the second stage of this argument falls away and so there is no need for me to consider, in this context, the point mentioned at the end of paragraph 93 above and the other cases I was referred to on this issue (e.g. Corbett v Corbett [1971] P 83 in particular at 109A to 110B).
  137. The Respondent's application for repayment of the sums he has paid by way of maintenance pending suit in the 2003 Petition and in the proceedings under the 1984 Act

  138. In the 1993 Petition these total 322,000 (general maintenance at 14,000 per month) and 575,000 (in respect of costs at 25,000 per month) under the back-dated order made by Singer J. A total 897,000.
  139. In the 1984 Act proceedings 30,812 has been paid in respect of costs.
  140. In reliance on comments of the Court of Appeal in one of the rounds of this litigation Moses-Taiga v Taiga [2005] EWCA Civ 1013, as explained by the Court of Appeal in Moore v Moore [2009] EWCA Civ 1427, the Petitioner asserts that these sums are irrecoverable, other than by a new action based on an allegation that they were obtained by fraud, which is a possibility that was not addressed in Moore.
  141. In Moore all three judges give fulsome praise to the judgment of Bodey J but a copy of it has not been found and shown to me. But, as appears from the citation of parts of his judgment at paragraph 18 of the judgment of Thorpe LJ, the Court of Appeal confirm that Bodey J was right to conclude that the court has no power to order that maintenance pending suit be refunded, or if that is to put it too high the court will not exercise any such power as it has absent special circumstances, that did not exist in that case. (The end of the citation is to the same effect)
  142. To my mind, this "fall-back" conclusion does not identify the source or extent of the power (if any) that the court has and so could exercise in special circumstances. At its highest it does not rule out the possibility that one may exist and says that, if it does, it would only be exercised in special circumstances. So, in my judgment, Moore supports the Petitioner's argument that there is no such power and the payments are irrecoverable, and the Respondent cannot rely, as he sought to do, on this "fall-back" conclusion as an identification of such a power.
  143. However, I add that:
  144. i) It is generally, and in my view correctly, accepted, and indeed some maintenance pending suit orders expressly provide, that maintenance pending suit can be taken into account by the court when it makes its order for financial relief. As Bodey J pointed out, it will often be the case that general maintenance will be ignored because it relates to expenditure incurred on day to day living during the period of the proceedings. But, payments to enable a party to meet the ongoing costs obligations to his or her advisers in respect of the financial relief proceedings are different in kind, although within the classification of maintenance to meet outgoings.

    ii) In effect, the payments for costs are payments on account that can be and often are factored in by the court when it makes its award and/or its order for costs. This was and is the case before and after the introduction by FPR 2010 Rule 28.3(5) in April 2006 that each side should bear his or her costs. When a lump sum is awarded (and the Petitioner would have been seeking such an order) the liability for costs that has been met pro tem by the Respondent should generally be taken into account to achieve a net award, and so to my mind

    iii) it is misleading to say simply and without qualification, as it was in Moore, that maintenance pending suit payments are irrecoverable in law because they can be, and in the case of the costs element often are, taken into account, and in that way recovered, when an award is made under the MCA1973.

    I return to this when considering costs (see paragraph 120). What follows under this heading is subject to such power as the court has pursuant to the general provisions relating to the payment of costs to order that the costs element of the maintenance pending suit paid by the Respondent to the Petitioner is recoverable by the Respondent under an order for costs.

  145. Here, the situation is different to that in Moore in that the disputes included whether the Disputed Marriages ever took place. But, this is addressed by Dyson LJ in Moses-Taiga v Taiga at paragraph 35 where he concludes, on the language of s. 22 MCA 1973, that the power to make orders for maintenance pending suit is exercisable where there is no marriage because it can be exercised on a petition of nullity and so, by referring to a party to a marriage, the section covers a party to a relationship which the court ultimately decides was not a valid marriage at all.
  146. However, to my mind, there are differences between the positions when:
  147. i) there was no marriage ceremony, which is the effective finding here in respect of the Disputed 1993 Marriage, and when

    ii) there was a ceremony of marriage but it was ineffective, and arguably that would have been the position here if the Petitioner had established that she and the Respondent had entered into a ceremony of customary marriage that was rendered ineffective by the Respondent's existing statutory marriage, (see again Dukali v Lamrani).

    But, this distinction was not advanced before (or taken up by) the Court of Appeal in Moses-Taiga v Taiga when it held that in this case there was jurisdiction to make the orders for maintenance pending suit in the 2003 Petition. So, in this case that jurisdictional argument could have been but was not raised and so it is no longer available.

  148. To my mind correctly, as mentioned above it was accepted on behalf of the Petitioner that sums paid pursuant to an order for maintenance pending suit could be recovered by an action alleging and establishing that the order was obtained by fraud (see for example Halsbury's Laws 5th Edition Volume 12 paragraph 1143, and see paragraph 18 of the judgment of Lord Sumption in Prest v Petrodel Resources Ltd [2013] UKSC 34). So, the generality of the view expressed in Moore that such sums are irrecoverable should be so qualified. But no such action has been brought.
  149. The Respondent did not identify a source other than the "fall-back" conclusion in Moore for the existence of the power he asserted I could and should exercise now to order repayment of the maintenance pending suit, but alleged that the Petitioner's dishonesty in asserting that the parties had celebrated a customary marriage in 1993 was a special circumstance in the context of Bodey J's fall-back conclusion.
  150. As mentioned in Moore, there are statutory powers to vary or discharge orders for maintenance pending suit having regard to all the circumstances of the case and an order of discharge can be back dated (see s. 31(1),(2),(7) and (14)) and arrears over 12 months old cannot be enforced without the leave of the court. But these powers effectively relieve a payor and are generally directed to a situation in which he or she has not paid the sums ordered or all of them. They are silent about the repayment of any payments made under an order whose discharge is back-dated. No application was made under s. 31 on the basis that the orders for maintenance pending suit in the 1993 Petition were obtained by fraud or misrepresentation or should otherwise be discharged.
  151. A possibility might be to rely on the inherent power of the High Court (see again Taylor v Lawrence above, which is also cited in the last sentence of the paragraph in Halsbury's Laws referred to above), but that line of authority does not expressly cover the setting aside or discharge of orders and the repayment of moneys paid under them. Also, this possibility was not advanced by the Respondent and so its existence, extent and the factors that should be taken into account in exercising it were not argued before me. In my judgment, it is at least arguable that the point that the non costs element of the maintenance pending suit equated to the orders later made under Schedule 1 for the benefit of the children and was directed to meeting the outgoings of the Petitioner which included those relating to her care of the children, would be a factor to be taken into account in the exercise of this discretion.
  152. The Respondent asserted that a failure to order a refund would be a breach of his rights under Article 1 of the First Protocol and cited R v Waya [2012] UKSC 51. But he did not explain how this applied by analogy to the orders for maintenance pending suit made in this case or how it gave me a power to order repayment on the present application.
  153. I agree that the effect of the finding in Nigeria that the parties did not celebrate a customary marriage in 1993 would be a special circumstance within Bodey J's "fall back" conclusion because it means that the 1993 Petition was based on a false assertion which, assessed on the civil standard and the binary approach taken by the court, the Petitioner must have known was untrue. But, in the absence of (i) an action to set aside the orders and for an order for repayment, and (ii) the identification by the Respondent of a power to order repayment, I am not prepared to make such an order under this head of the Respondent's application.
  154. The Respondent's application to discharge the continuing freezing orders.

  155. These were made in the divorce / ancillary relief and in the proceedings under the 1984 Act and so they fall or end with those proceedings. For the avoidance of doubt I shall make an order discharging them.
  156. The applications for costs.

  157. There were cross applications. A number of orders for costs have been made and neither party sought a change to or a reversal or effective reversal of these orders.
  158. Section 51 of the Senior Courts Act 1981provides that subject to that and other enactments and rules of court:
  159. "the costs of and incidental to all proceedings in the High Court shall be in the discretion of the court "
  160. This is a widely expressed discretion that relates to all of the costs of all the parties. It is reflected in Rule 28(1) of FPR 2010 which provides that:
  161. "the court may at any time makes such order as to costs as it thinks just".

  162. In my view, the language of the section and the Rules at least arguably extends to the costs element of an order for maintenance pending suit and so costs paid for by one side but incurred by the other. If that argument is correct it would provide the basis for an order that the Petitioner do pay to the Respondent the costs she incurred but which the Respondent funded. But as this argument was not advanced by the Respondent and the Petitioner was not thereby given the opportunity to respond to it, I shall not base any order on the existence of such a power. It follows that when dealing with costs I, like the parties in argument, am dealing with the Respondent's own costs and I am not including his funding of costs incurred by and for the Petitioner.
  163. Rule 28(1) of the FPR came into effect in April 2006 and Rule 28(3) applies to the costs in and relating to the petitions and the proceedings under the 1984 Act. In my view correctly it was not argued that any of the costs issues should be governed by the provisions of Rule 28.3, or that there was any relevant distinction in respect of the position before and after the changes in the Rules from April 2006. But, in any event, I record that, in my judgment, in line with the arguments advanced the conduct of the parties is a magnetic factor on costs, it disapplies the starting point set out in Rule 28.3 (5) and although, there has not to my knowledge been any formal notice given under paragraph 4.5 of PD 28A it has been clear that both parties would be seeking an order for costs.
  164. The court starts with a clean sheet in the exercise of its discretion (see Judge v Judge [2008] EWCA 1458 at paragraph 52), CPR Rule 44.3 (4) to (7) apply and set out a wide range of orders that the court can make. CPR Rule 44.3(4) provides that in deciding what (if any) order for costs should be made the court must have regard to all the circumstances including the conduct of all the parties, the degree of success of each party, and any admissible offers of settlement. CPR Rule 44.3(5) amplifies how conduct can be taken into account.
  165. Shortly before this hearing, and so very late in the day, the Respondent offered to settle on an open basis. His offer was that he would discontinue or withdraw his application for repayment of the maintenance pending suit and costs, would not enforce orders for costs made against the Petitioner in the Children Act proceedings and would endeavour to persuade the trustees of the Senoma Trust not to enforce costs orders they had obtained against the Petitioner, if she agreed that all her divorce/ nullity petitions and her 1984 Act claim should be dismissed. This was rejected by the Petitioner, when she was acting in person, and this rejection was confirmed before me and her open offer was that the Respondent should pay some of her costs of the divorce/ancillary relief proceedings and of the application for re-payment of the maintenance pending suit, the freezing order should remain in place until compliance by the Respondent with orders in the Children's Proceedings relating to the secured fund therein and that she should be able to continue with her claim under the 1984 Act or be given a decree of nullity in respect of the Disputed 2002 Marriage.
  166. This reflects the determination of the Petitioner to obtain financial provision for herself. But, in light of their timing, the impact of these open offers on costs relates only to this hearing. But in my view the Petitioner's refusal of the Respondent's offer together with her failure to achieve any of the relief she sought in the petitions and the proceedings under the 1984 Act mean that she should pay the Respondent's costs of and occasioned by this hearing from the date of her refusal of his offer.
  167. In my view, the liability for costs should be considered separately in respect of:
  168. i) the Respondent's costs of 2003 and 2004 Petitions and the applications made in and directly connected to them (the Respondent's Costs of the Petitions) including the costs of and occasioned by (a) the divorce suits, (b) the Hemain / Anti Suit proceedings (c) the contact and paternity testing issues, (d) the proceedings against Merrill Lynch, (e) the issues relating to the beneficial ownership of assets, (f) enforcement, (g) freezing and mirror orders and (h) the applications for maintenance pending suit, and

    ii) the proceedings under the 1984 Act.

    The Respondent's Costs of the Petitions

  169. The conduct of the Respondent relating to these proceedings is of course a factor to be taken into account in the exercise of the discretion relating to the payment of costs. That conduct has been the subject of repeated and strong criticism, and this supports arguments that he should pay some of the Petitioner's costs and, in any event, not be awarded any costs. Included amongst those arguments is the point that but for his misconduct the costs incurred by him directly (and indirectly by funding the Petitioner's costs) in respect of, for example, the enforcement proceedings, the freezing injunctions, the disclosure applications, the Hemain / anti suit injunction and the applications relating to the ownership of assets would have been much lower. This is correct. It is also correct that the cost would have been much lower if the Petitioner had not resisted the stay applications.
  170. But, in my judgment, it should not be forgotten that in these petitions and applications the Respondent was faced with:
  171. i) claims for maintenance pending suit and final financial orders which he has always maintained are based on a false and dishonest premise,

    ii) orders of this court that have had the effect that he should fund the Petitioner's campaign in pursuing those false claims against him, and

    iii) her determined resistance at his expense to his successful applications for stays of the two petitions and with them the termination of the situation in which he was paying for both sides of this hostile and hard fought litigation in which both sides were alleging that the other was dishonest.

    I acknowledge that his conduct in the Children's Proceedings, where the claim was soundly based, is a strong indicator that if the Petitions (and the proceedings under the 1984 Act) had been soundly based his conduct in them would have been hostile and reprehensible. But, to my mind, his annoyance at being faced with false claims, such maintenance orders and such resistance to the determination of issues of fact and status relating to events in Nigeria where they took place is very understandable and must have had an impact on his behaviour in respect of all aspects of his conduct towards the Petitioner and the children.

  172. As I have already mentioned the conduct of the Petitioner in and in respect of the Petitions (and the proceedings under the 1984 Act) and thus her campaign to obtain an order for financial relief applying English law, rather than Nigerian law, has also been the subject of severe criticism. In that respect, I acknowledge that if the court had found that a marriage ceremony between the parties had taken place in 1993, the Respondent's denial of this would have been an ameliorating factor in respect of her criticised conduct.
  173. This approach to the amelioration of the criticisms made of the parties by the court reflects the approach taken by both sides as the proceedings continued to the "big lie" issue in that they both understandably pointed to this stark and central factual dispute to criticise the other and exonerate themselves. To adopt a media description they both relied heavily on their case on this stark issue to found the assertion that the other was the "cheat" in these proceedings.
  174. Although she still maintains that she entered into a customary marriage with the Respondent in 1993 (and 2002) the Petitioner has failed to establish their existence and in respect of the Disputed 1993 Marriage (and so the "big lie" issue) there is a finding by the Nigerian court that it did not take place.
  175. Accordingly on the central issue relating to whether a customary marriage ceremony took place in 1993 the Respondent has established to the civil standard, and so to the standard relevant to these proceedings and the binary approach taken by this court, that it is the Petitioner who has been untruthful and so the "cheat" as she has advanced a false claim that the Respondent has obligations to her as his wife as a result of such a ceremony having taken place.
  176. In line with the approach of the parties and the court to this central issue relating to whether a customary marriage ceremony took place in 1933, before it was decided in Nigeria, and thus its shorthand description as "the big lie issue", I have concluded that the Petitioner's failure and the Respondent's success on this issue must be reflected in an order for costs against the Petitioner and the remaining question is whether her conduct in advancing this false claim should found an order that she do pay all of the Respondent's costs (excluding the costs element of the maintenance pending suit), or whether the increase in those costs caused by the Respondent's misconduct should reduce the amount she should be ordered to pay.
  177. Orders for costs based on his misconduct have already been made against the Respondent and as a result he has paid or funded costs incurred by the Petitioner pursuant to such orders, or through the costs element of the maintenance pending suit payments which were claimed and awarded on a false premise.
  178. In my view, there is no formulaic or accurate weighing mechanism for determining how the respective misconduct of the parties should be reflected in the orders for costs. Having lived through this litigation I have concluded that this is fairly reflected by an order that the Petitioner do pay 80% of the Respondent's Costs of the Petitions to be assessed on a standard basis if not agreed.
  179. As is apparent from what I have included in the description of "the Respondent's Costs of the Petitions" in reaching that percentage I have included all the applications mentioned in paragraph 125(i) above and so the applications therein relating to paternity and contact, as to which notwithstanding the allegation that the Petitioner forged the Respondent's consent to the IVF treatment there is a much stronger argument that there should be no order for costs. I have also had regard to the Respondent's argument that the Petitioner's dishonesty means that she should pay his costs on an indemnity basis.
  180. The 2004 Petition was based on the Disputed 2002 Marriage. But it was a "fall back" petition that added little if anything to the costs of the two Petitions. Also, on the Petitioner's case this petition was at least in part based on her false assertion relating to the Disputed 1993 Marriage because she was saying that the 2002 ceremony was a celebration of that marriage. Further she failed to establish the premise for the 2004 Petition. In my view, for those reasons such separate costs of and occasioned by the 2004 Petition and applications in and relating to it, as there may be, should not be dissociated from and treated differently from the costs of and occasioned by the 2003 Petition before and after its amendment and applications in and relating to it.
  181. The proceedings under the 1984 Act

  182. These were triggered by the finding and declaration of the High Court in Nigeria relating to the 2002 Disputed Marriage. Both sides appealed in Nigeria and if the Petitioner had succeeded on her appeal she would no doubt have relied on the 1993 Customary Marriage in these proceedings. Also I repeat that, on the Petitioner's case this claim was at least in part based on her false assertion relating to the Disputed 1993 Marriage because she was saying that the 2002 ceremony was a celebration of that marriage.
  183. As with the 2004 Petition, the Petitioner has been given a full and fair opportunity to establish the premise for these proceedings and she has failed to do so with the result that her campaign to establish both her primary and alternative case for a financial remedy from the Respondent in England on the basis that she was his wife by virtue of native law and custom in Nigeria, has failed.
  184. I acknowledge that the "big lie" issue is not as central to this claim but in my view the linkage to it referred to in the last two paragraphs and the failure of the Petitioner to establish its premise mean that she should also pay a percentage of the Respondent's costs of this claim.
  185. In respect of these proceedings the misconduct of the Respondent has not increased the costs in the manner and to the extent it did in respect of the applications made in the Petitions and in all the circumstances (including the percentage ordered in respect of the Petitions) I have concluded that the Petitioner should also pay 80% of the Respondent's costs of and occasioned by the proceedings under the 1984 Act and the applications made in and in respect of them. Again those costs are to be assessed on a standard basis if not agreed.
  186. As mentioned earlier these orders are made on the basis that existing orders for costs stand.
  187. MEMORANDUM
    This memorandum is being handed down in private without attendance with the M-T v T 2013 Judgment.

    Charles J

    1. I have agreed to hand down judgment without attendance. As appears from paragraph 1 of the judgment its delivery was delayed pending resolution of issues concerning the Schedule 1 proceedings. I had written most of it by the end of 2012.

    2. Issues have arisen in respect of Recitals D and E of the agreed order.

    3. The background to these are that the Petitioner's solicitor has stated that she filed and served a second skeleton argument for a hearing on 31 January 2013 that set out that the Petitioner had lodged a notice of appeal out of time with the Supreme Court of Nigeria. She has provided a copy of that short skeleton and accepts that she did not make any representations about it at the hearing on 31 January 2013. As to that I record, in case it may become relevant later, that:

    a. I accept what the Petitioner's solicitor says.
    b. I have not checked whether that skeleton is on the court file or whether there is a record that it was received.
    c. I have looked through my papers and have not found a copy of that skeleton, but that certainly does not mean that I did not have one on 31 January 2013 or that it is not somewhere in the voluminous papers.
    d. However, I have no recollection of seeing that document, or of becoming aware of the fact that the Petitioner had made this application to the Supreme Court of Nigeria, until after I had circulated my judgment in draft.


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