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IN THE HIGH COURT OF JUSTICE
||Royal Courts of Justice
||28th July 2010
B e f o r e :
THE HONOURABLE MR JUSTICE HOLMAN
Transcript from a recording by Ubiqus
Cliffords Inn, Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370
MR RAFAQUE HUSSAIN appeared on behalf of the husband
MR ADEDAMOLA ADEREMI appeared on behalf of the wife
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE HOLMAN:
Background and the issue
- On 19th February 2010 I gave a judgment in which I held that this court had, on the date when the petition was presented, and still has, jurisdiction to entertain it. By my order of 19th February, the present hearing was fixed for 'consideration of the question whether or not the parties are already finally divorced in Nigeria and, if so, whether such divorce is recognised here; and, if not, the hearing of the suit itself.'
- Although my judgment of 19th February 2010 has not to date been transcribed, the present judgment should be treated as being in continuation of it. I will not repeat anything already described or referred to in that judgment. If ever the present judgment is transcribed, so also must be that judgment, for the two stand as a single whole.
- At the outset of the present hearing on 6th July 2010, Mr Rafaquat Hussain, who continues to appear on behalf of the husband, made a well argued application that I should adjourn it on the grounds that the husband did not then currently have a visa permitting him to enter the United Kingdom. I refused that application for the reasons which I described in some detail in my judgment of 6th July 2010 (also not yet transcribed), but essentially that the husband only had himself to blame for not applying for a renewal of his visa in good time for this hearing which, as he knew, had been fixed for a long time.
- On 6th July 2010 I offered and suggested that the husband might give evidence via a video link, but during the next two days Mr Hussain did not apply to take advantage of that offer. I did of course hear very fully from Mr Hussain in argument, and he was also able to cross-examine the wife at some length. I understand today that the husband has now obtained a renewal of his visa and indeed has recently been present in England. However, he has not personally attended here today.
- On 20th June 2005 the Grade A Customary Court Apapa in Lagos State of Nigeria gave a judgment which now appears at bundle NP (Nigerian Proceedings) pages 32 to 33. On the second page of the typed script, that judgment states,
'DISSOLUTION With the totality of the evidence before the court, it is clear that the marriage has broken down irretrievably. The respondent [viz the wife] has moved out of the matrimonial home about four years ago. The court has no other option than to dissolve the marriage. The marriage is hereby dissolved with effect from today 20th of June 2005
At the end of the judgment, there appears the following:
'APPEAL Both parties have the right of appeal within thirty (30) days from today 20th of June 2005, otherwise the judgment becomes final
- The husband and Mr Rafaque Hussain on his behalf contend that no right of appeal was exercised within 30 days, or alternatively that such attempts as the wife made to challenge the judgment have now been exhausted; and accordingly, that either at the expiry of 30 days from 20th June 2005, or at any rate before now, the divorce has become final, and that there is no subsisting marriage between these parties capable of dissolution here in England and Wales.
- The husband has not applied pursuant to sub-paragraph (d) of section 55 (1) of the Family Law Act 1986 (the Act) for a declaration that the validity of the Nigerian divorce is entitled to recognition here, nor has the wife applied pursuant to sub-paragraph (e) of that sub-section for a declaration that the validity of the divorce is not entitled to recognition here. I stress at once that I would be quite unwilling even to contemplate making either such a declaration without far better evidence as to Nigerian law than I currently have. Neither party has advanced any independent, objective and expert evidence as to the relevant Nigerian law, and in particular as to the precise status currently of the judgment and order of 20th June 2005 in the light of the highly convoluted legal manoeuvrings which have taken place before different courts in Nigeria since that date and which appear still not to be finally concluded.
- On the current state of the evidence, I am quite unable to reach any reliable judicial determination as to whether or not the judgment and order of 20th June 2005 is or is not 'effective' under the law of Nigeria within the meaning of, and for the purpose of section 46 (1) (a) of the Act.
- It is not in issue that the Grade A Customary Court Apapa is a properly constituted court under the constitution of Nigeria, with the power to grant valid and effective divorces, nor that the jurisdictional requirements for recognition under section 46 (1) (b) of the Act were and are satisfied in this case. On the relevant date (whether it was in February or May 2005) the husband fell within each of sub-paragraphs (i) to (iii) of paragraph (b).
- However, Mr Adedamola Aderemi, who continues to appear on behalf of the wife, strongly submits that the divorce actually granted on 20th June 2005 is not effective under the law of Nigeria for a range of reasons including consideration of the subsequent procedural history. He submitted that as it is the husband who asserts that the parties are already divorced, the burden of proof is upon the husband to establish that fact, and as the husband has not adduced any expert evidence, he has failed to discharge that burden.
- Mr Hussain, by contrast, submits that as it is the wife who seeks an English divorce, the burden of proof is upon her (as on any petitioner for divorce) to establish, first, that there was a valid marriage (which is not in issue in this case), and second, that that marriage is still subsisting.
- For my part, I do not consider that so serious a matter as the effectiveness of foreign legal proceedings, with consequent recognition or non-recognition of the solemn legal act of a properly constituted court of a sovereign foreign state, should be decided by the mere application of the burden of proof, when neither party has adduced any expert evidence.
- Further, the proceedings with which I am in fact dealing is a suit for divorce under the Matrimonial Causes Act 1973. By section 1 (3) of that Act,
'On a petition for divorce it shall be the duty of the court to enquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.'
- I cannot, on the issue of the very subsistence of the marriage, discharge that (albeit qualified) inquisitorial duty simply by application of the burden of proof and upon which party any burden to adduce expert evidence lies. I accordingly made plain to Mr Aderemi and his client at the end of the second day of the hearing and whilst the wife was still being cross-examined by Mr Hussain as to the complex and tortuous Nigerian proceedings subsequent to 20th June 2005, that at the present hearing he and his client were faced with a stark choice. Either this hearing must be adjourned for appropriate independent expert evidence to be obtained; or else it must proceed on an assumption (I stress only an assumption) that the Nigerian divorce is effective.
- I appreciate that that posed a hard dilemma and choice for the wife, who has now been seeking an English divorce for over five years and who claims to have long ago exhausted her funds for legal fees. However, after considering the matter with his client overnight, Mr Aderemi informed me that I should now consider this matter upon the basis, which will be recited in the preamble to my order, that,
'For the purpose of the present hearing only, and the decision at this hearing as to whether or not the divorce or the dissolution of the marriage pronounced by the Grade A Customary Court Apapa on 20th June 2005 in suit number: APCC/HD/03C/05 is an effective divorce under the law of Nigeria within the meaning of section 46 (1) (a) of the Family Law Act 1986, the petitioner/wife agrees and accepts that the said divorce shall be assumed by this court to be so effective.'
- I will accordingly now consider this matter on that basis. The sole but very difficult question and issue is, accordingly, whether I should exercise the discretion under section 51 (3) of the 1986 Act to refuse recognition. So far as is material, that sub-section provides as follows:-
recognition by virtue of section 45 of this Act of the validity of an overseas divorce,
may be refused if
(a) in the case of a divorce,
obtained by means of proceedings, it was obtained
(i) without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or
(ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given; or
(c) in either case, recognition of the divorce,
would be manifestly contrary to public policy.'
The date of issue and integrity of the Nigerian proceedings. Public policy
- The wife is personally convinced, and Mr Aderemi strongly submits, that certain documents in the Nigerian proceedings have been falsified or tampered with and that the whole of those proceedings are tainted or infected by fraud such that, Mr Aderemi submits, recognition would be manifestly contrary to public policy for the purposes of section 51 (3) (c) of the Act. They lay that fraud squarely at the direction, if not actual direct acts, of the husband. Mr Aderemi has very clearly pleaded and particularised the allegation in a pleading now at CB (core bundle) pages A23 to 31, to which the husband has replied in a document at CB pages A39 to 44.
- If documents, including extracts from the court record, were indeed falsified or tampered with, including misuse of the rubber stamp of the court registrar of the Apapa Grade A Customary Court, then it seems unlikely that the husband personally falsified the documents and applied forged signatures and the rubber stamp. One or more others must have been involved.
- The foundation of the allegation is the patently different versions (all available to this court only in photocopy) which have been produced of the last page of the husband's Nigerian petition. The version left at the wife's home in Lagos on 15th June 2005 and actually received by her on 18th June 2005 is now at bundle NP page 11. The typed words, 'DATED [blank] February 2005' do not have any inserted actual date.
- The version now at bundle NP page 21 was purportedly obtained from the file of the court itself on 21st June 2005 (the day after the judgment and dissolution) by Mrs Bisi Akinlade, head of the Office of the Public Defender Lagos State Ministry of Justice (see the letter at bundle NP page 12) and appears to be an exact copy of page NP 11 although photocopied on a slightly smaller scale of magnification. However, different versions of the same page were later obtained from, or supplied by, the court itself during July 2005.
- The version now at bundle NP page 66 has an inserted actual date of 22nd between the typed words DATED and February. The signature purporting to be that of the husband's lawyer, Robert Ohuoba, is aligned quite differently above the typed words Robert Ohuoba. The alignment and angle on the page of the rubber stamp of the court registrar is different. The position within the stamp of the purported signature of the court registrar is different (on page 21, the e at the end of the signature is aligned with the Y of Customary; on page 66, it is aligned with the O of COURT), and on page 66, unlike page 21, the date, 23-02-05 appears under the rubber stamp.
- Close comparison of page 86 with pages 21 and 66 again shows numerous points of difference, including the fact that on page 86, the inserted date of 22nd is missing and there is no date under the rubber stamp. The alignment of the signatures of the lawyer, Robert Ohuoba, and the court registrar differs from each of the other versions. On the version at page 86, appear the handwritten words, 'Summons approved to be served 24/02/05 to appear in court on
' The date which follows on page 86 appears to have been heavily overwritten and I am personally unclear whether the final date is 06/05/05 or 06/06/05.
- I emphatically stress that I have no expert handwriting evidence and I say absolutely nothing as to whether the persons who signed the signature purporting to be that of Robert Ohuoba and the signature purporting to be that of the court registrar on each of the three versions was respectively the same person, but it is very clear that those respective signatures were written or affixed three separate times.
- Mr Aderemi submits that there are other anomalies. One of the documents supplied by the court on 11th July 2005 (but not apparently seen by Mrs Bisi Akinlade on 21st June 2005) and now at bundle NP page 73 is an 'Acknowledgement of receipt' upon which the words 'Respondent Refuse to sign 27th May, 2005' have been handwritten.
- Mr Hussain relies heavily on this document to support the contention that the petition was actually served upon the wife personally (she being the respondent) on 27th May 2005, albeit that she refused to sign for it. Mr Aderemi points out, however, that the reference within the body of the document is to a civil summons dated 30-03-2005. This cannot be a reference to the petition itself, since on no one's case was that issue on or dated 30th March 2005 or on any other date in March. Mr Aderemi says that no other summons or document dated on, or even approximate to, 30th March 2005 has ever been produced or identified from the file. Further, examination of the court's post book, now at bundle NP page 76, indicates summonses unconnected with this case on 18th March and 20th April 2005 with none in between, and the first reference to this case is the name of the wife and date 27/05/2005. So Mr Aderemi accordingly submits that the whole of page 73 is a suspect document.
- Finally, Mr Aderemi places weight on the Treasury Receipt and Civil Summons apparently copied by Mrs Akinlade on 21st June 2005 and now at bundle NP pages 22 and 23. Further versions of these were produced by the court itself on 11th July 2005. Again, close comparison of the alignment of words and lettering on the two versions of the receipt (pages 22 and 69) clearly shows that they are not photocopies from a single original source. (Compare the alignment of the purported signature of the collector above the printed words 'Signature of collector'; the alignment of the squiggled initial under the printed letter K; the alignment of the written date 26/05/005 above the printed words 'Received from').
- Close comparison of the versions of the Civil Summons at pages 23 and 70 reveals similar differences. On page 70, the printed figure 19 in line three has been struck out but not on page 23; the H of Chief in line four appears different in the two versions; the alignment of the words Chief Biye Olafisoye differs relative to the line above; the line of the B of the address 37, Burma Road differs relative to the line above; the alignment of the word 'official' and the date 26/05/05 differs relative to each other and to the printed words 'Particulars of Claim'; the alignment of the words 'Receipt No.' differs relative to the printed word 'Date'; the added words 'Dated: 26/05/05' on page 70 do not appear on page 23; the position within the rubber stamp of the purported signature of the President or Member differs on page 23 the end of the signature does not obliterate the stamped word 'Court' but on page 70 it does. Further, the alignment of the p of the signature is clearly further to the right of the word 'Court' on page 70 than on page 23. Again, I emphatically stress that I have absolutely no view as to whether the writing or signatures were actually done by the same person, but clearly two versions exist of this document.
- However, what both versions of each document (viz pages 22 and 69 of the Treasury Receipt and pages 23 and 70 of the Civil Summons) all seem clearly to show is the date 26th May 2005 which Mr Aderemi submits is consistent with the first relevant entry in the post book on bundle NP page 76 and is, he submits, the true date of filing or issue of the petition and the true date of commencement of the proceedings in Nigeria viz about nine days after the wife filed her petition in England and a few days after the husband learned of the English petition. Therefore, Mr Aderemi submits that there has been an attempt in or after May 2005 to falsify documents and the record so as to create the impression that the husband's Nigerian petition was actually issued some three months earlier on or about 22 or 23 February 2005.
- The judgment of the Customary Court Apapa itself, now at bundle NP page 32, clearly states that 'Chief Adebiyi Olafisoye applied to the court on the 23rd of February, 2005, seeking the dissolution of his marriage
' Mr Aderemi does not in any way suggest that any of the judges of that court were in any way dishonest or dissembling in making that statement or finding, but he suggests that they themselves were misled by documents which were shown to them or things which were said to them. In short, he submits that both the Nigerian court and this court have been told untruthfully that the husband commenced his proceedings on or about 22nd or 23rd February 2005 rather than, in truth, 25th May 2005.
- I have to say that I am suspicious that the true date was indeed in truth the 25th May rather than 22nd or 23rd February. However, apart from the enquiry of Mrs Akinlade in June 2005, I am unaware of what enquiries or investigation may have taken place. There may be explanations of which I am unaware. No allegation has been squarely made to any official of the Nigerian court or the husband's Nigerian lawyer, Robert Ohuoba, nor have their comments been obtained upon any of these matters. I have been disabled by his non-attendance from hearing any oral evidence from the husband himself on this issue. In my judgment, I cannot judicially and reliably make any determination as to the true date of commencement of the Nigerian proceedings, particularly in the face of the recorded express finding of the Nigerian court in their judgment at bundle NP page 32 to which I have referred.
- For the purpose of this judgment, I propose to make the assumption (although not any finding of my own) that the Nigerian petition was indeed presented on 22nd or 23rd February 2005 as the husband himself claims and that court states. Being unable to make a finding of fraud, falsification or tampering, I reject Mr Aderemi's argument (which presupposes such a finding) that recognition should be refused under sub-section 51 (3) (c) on the ground that recognition would be manifestly contrary to public policy.
Steps for giving notice to the wife: section 51 (3) (a) (i)
- I turn, accordingly, to what I consider to be the heart of this matter, namely whether the divorce 'was obtained without such steps having been taken for giving notice of the proceedings to [the wife] as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken'; and if so, whether I should exercise a discretion to refuse recognition.
- I observe and stress at the outset the following matters. First, in this case, and probably in all such cases, the issue is very fact specific and requires an intense focus on the steps which were taken and all the circumstances of the particular case. Second, the focus under sub-paragraph (i) is not upon whether or not, or when, the respondent party actually had notice, but upon the steps which were or were not taken by or on behalf of the applicant party to give notice. In this regard, I agree with, and adopt, propositions (1) to (6) in paragraph 44 of the judgment of Mr Jeremy Richardson QC sitting as a Deputy High Court Judge in Duhur-Johnson v Duhur-Johnson (Attorney General Intervening)  2 FLR 1042 at pages 1052 to 1053, noting as I do that he had been assisted by the 'helpful, erudite and succinct' submissions of counsel on behalf of the Attorney General (see paragraph ).
- Third, it is very important to keep in mind that under the sub-paragraph there are two stages in the approach of the court. First, it must make an assessment or judgment whether such steps were not taken as 'should reasonably have been taken'; but even if the court adjudges that they were not, that merely opens the door or gateway to the second stage and an overall exercise of discretion whether or not to recognise the overseas divorce. [I propose to deal discretely with the case of Golubovich v Golubovich  EWCA Civ. 810 as a separate heading near the end of this judgment. At this point, I merely mention that I do not agree with, and indeed emphatically reject, the submission of Mr Aderemi in paragraphs 2 and 4 of his 'Supplementary submissions re: recognition hearing' dated 26th July 2010 which he elaborated orally this morning, that the passage at paragraphs 67 to 69 of Golubovich is authority for the proposition that 'regardless of which limb of section 51 (3) is engaged, there is not an absolute discretion in this area or indeed a two staged test'. In my view, the observations of Thorpe LJ at paragraphs 68 and 69 of Golubovich are expressly and very specifically confined to refusal of recognition under section 51 (3) (c). Thorpe LJ expressly refers at paragraph 68 to 'the rare cases where the applicant's reliance is on sub-section 51 (3) (c)'. The point made at paragraph 69 is that the force of the word 'manifestly' in that sub-paragraph is such that once the court has formed a proportionate judgment that recognition would be 'manifestly contrary to public policy' the exercise of any residual discretion could only be one way 'refusal of recognition must follow'. Quite different considerations apply to the policy and structure of cases falling within section 51 (3) (a) and (b); and indeed if, in every case, whether falling under (a) or (b) or (c), there was no second stage discretion, the word 'may' where it appears in the opening words of section 51 (3) would properly read 'shall'.]
- In exercising the second stage of discretion, if the gateway is open and it arises, the court should, in my view, still be very slow to refuse recognition of the decision and order of the foreign court, at any rate when, as here, it is clearly that of an independent, properly constituted court operating a procedure and applying substantive law (as is clear from the documents in this case) which substantially accords with our own. It is not simply a matter of 'comity' or respect for the foreign court. Orderly legal relationships in the international world require that, so far as possible, judicial outcomes in one country can be relied upon in all others provided there was (as here) a proper connection with the first country.
- The effect of non-recognition here of a divorce which is valid or effective in the country where it was made is to create a so called 'limping marriage' i.e. that the parties are treated as still being married here, when they are not so treated elsewhere. That is so obviously undesirable that the court leans, so far as possible and consistent with the legislation and justice, against exercising a discretion so as to produce a limping marriage.
- Fourth, insofar as I have to make findings of fact, the standard of proof is the ordinary civil standard of the balance of probability.
- In my judgment in February 2010 I said that I considered that at the earlier hearing the wife gave careful, straightforward answers and that, despite skilled cross-examination by Mr Hussain, she was not demonstrated to have been untruthful. By contrast, the husband became increasingly evasive under cross-examination and I considered at that hearing that he adjusted his evidence to suit his case. Where their accounts differed, I preferred the evidence of the wife and considered it to be the more reliable.
- Regrettably, I have not had the advantage of hearing oral evidence from the husband at the present hearing and accordingly I cannot make any comparative assessment as between himself and the wife, but I again consider that the oral evidence of the wife, standing alone, was careful and straightforward. She gave oral evidence for a whole day. Mr Hussain tested it by sustained and skilled cross-examination and it was not demonstrated to be untruthful, although inevitably she has some uncertainty about some precise details as long ago now as five years. I consider the wife to be a witness of truth upon whose essential evidence I can and should rely.
- As already explained, I am assuming that the husband's petition was filed for issue on 22nd or 23rd February 2005 as he claims. The husband's first affidavit in these proceedings is now at bundle CB pages 66 to 73. It is hard to decipher the actual date of swearing from page 73 but it must have preceded 12th July 2005 (see paragraph 1 at page 66). At paragraph 8, now at bundle CB page 69, he said, 'I am informed and believe that the petition was delivered to [the address of the wife's rented home in Victoria Garden City in Lagos] by the court clerk or bailiff on 28th February 2005'. The wife was indeed staying at her home in Victoria Garden City in February 2005 until her return to England on 13th March. She denies any knowledge whatsoever of the petition at that time or indeed any time before 7th June 2005, and there is not a shred of evidence in any other document, including any version of any document produced by or from the Nigerian court, that the petition was delivered to Victoria Garden City on or even around 28th February 2005. The statement in the husband's first affidavit is, in any event, hearsay and I reject (on the balance of probability) that any attempt at service was made at all on or around 28th February 2005.
- The first reference in any of the court documents to any service or attempted service at all upon the wife are references to an attempt at service on Friday 27th May 2005 when she allegedly personally refused to sign. These references are (i) the endorsement 'Respondent Refuse to sign 27th May, 2005' on the acknowledgement of receipt at bundle NP page 73 to which I have already referred; and (ii) the entry in the post book now at bundle NP page 76 to which I have also referred. The post book has an entry dated 27/05/2005 giving her name and the Victoria Garden City address, the number of the proceedings or suit and the endorsement 'R. T. S. [viz refused to sign] 27/05/05'.
- As I have already indicated, the document at bundle NP page 73 is a curious document since it refers to a summons dated 30/03/2005 which bears no relationship with any other document in the case. The endorsement is to the effect that the respondent herself refused to sign. I note, however, that in the record of the hearing of 6th June 2005, now at bundle NP page 34, there is no reference to her having been served or having refused to sign on 27th May 2005, or indeed at all prior to 6th June 2005. She was neither present nor represented on 6th June itself (the husband was represented but not personally present) and the court merely adjourned the matter to 15th June and ordered that, 'Hearing notices ordered to be served on
the respondent through the court clerk'.
- The wife was in fact resident at Victoria Garden City on and around 27th May 2005, being in Nigeria between 19th May and 5th June. She is adamant that nothing was served upon her or attempted to be served upon her or left at her address or with the security officer in that period, and I accept her evidence. Notwithstanding the endorsement on bundle NP page 73 and the entry in the post book at page 76, I am satisfied on a balance of probability that there was no service or even attempt at service upon, or at the address of, the wife on or around 27th May 2005.
- The next hearing in Nigeria took place on 15th June 2005. The husband was personally present together with his lawyer, Mr Robert Ohuoba, and indeed, on this date, gave full oral evidence in support of his divorce. The wife was neither present nor represented. On this occasion, there is express reference to service in the record of the court. See the document now at bundle NP pages 35 to 36, which ends as follows: -
'All court papers have been served on the respondent. The court clerk said that the court summons was served but not signed for by the security officer at her residence and when the Hearing Notices [sic] was taken there he [viz the security officer] refused to collect it from him [see below]. He ordered to serve her another Hearing Notice. And if the security officer refuses, he should drop it in front of her house. Suit adjourned for judgment on the 20th June, 2005.'
- That is signed H. A. B. Thompson, being one of the five members of the court itself. I assume that the pronoun 'him' in the phrase 'refused to collect it from him' refers to the court clerk himself, since the earlier order of 6th June had ordered service 'through the court clerk'. I unhesitatingly accept that the quoted passage, being signed by The Honourable H. A. B. Thompson, accurately records or summarises what the court clerk 'said' or informed the court at the hearing on 15th June 2005. There are, however, a number of discrepancies in the associated documentation.
- The relevant acknowledgement of service is dated 7th June 2005 and is now at bundle NP page 74. The endorsement upon it says, 'Respondent: R. T. S. 07-06-05'. On the face of it, that records that the respondent herself refused to sign. It makes no reference at all to the security officer refusing to sign. It is impossible that the respondent/wife personally refused to sign on 7th June 2005, for on that very date she was personally present in court before District Judge Harper in the Principal Registry of the Family Division here in London. Further, the relevant entry in the post book, now at bundle NP page 77 records, 'R. T. S. 09/06/05 Refuse to sign'; not, it should be noted, 07/06/05 as on the document at page 74. The wife said in her oral evidence that when she later returned to Nigeria on 18th June 2005 and received the documents which were left at her address on 15th June (see below), she asked the security officer whether anyone had tried to serve earlier documents and he said no.
- In view of this discrepant and conflicting material, and in the absence of any formal affidavit of service actually deposing to attempted service upon the security officer and his refusal to sign, I am not satisfied on a balance of probability that there was any actual attempt at service on or around 7th June 2005, although I repeat that I unhesitatingly accept that the court was informed on 15th June as recorded by The Honourable H. A. B. Thompson.
- On 6th June 2005, the court had said that if the security officer refused to sign, the clerk should drop the Hearing Notice in front of the wife's house. On the document at bundle NP page 75, there is a further endorsement, 'Respondent: R. T. S. 15/06/05'. Again, this cannot be accurate, for on 15th June the wife personally was still in England.
- I accept, however, that on or about 15th June 2005 the documents now at bundle NP pages 1 to 11 were left with the security officer, or at or in the vicinity of the wife's home in Victoria Garden City, for they came into the hands of her cousin who also lives there and who gave them to the wife personally when she returned to Nigeria and the house on Saturday 18th June 2005. The documents comprise a hearing notice dated 15th June 2005 referring to the adjourned hearing on 20th June 2005, and a version of the petition itself.
- In the upshot, I conclude and hold that the first and only occasion upon which the petition or any other documents were served upon, or delivered to the address of, the wife was 15th June 2005. The only address for service given in the petition (see bundle NP page 11) was the address at Victoria Garden City and that was the only address at which any kind of service was attempted or effected.
- It should be noted and emphasised that the service on 15th June was after the hearing on that day at which, as the record on bundle NP pages 35 to 36 shows, the evidence of the husband was given and the court concluded its record with the words, 'adjourned for judgment on the 20th June, 2005'. That is not to say, of course, that by that stage the process was unstoppable, but in their later judgment of 20th June 2005, now at bundle NP page 33, the court was to say:
After hearing the petitioner, the court order [ed] a final hearing notice to be served on the respondent and that judgment will be delivered whether she is present or not.' [my emphasis].
- It thus follows that the only step that was actually taken for giving formal notice of the proceedings to the wife was the service or leaving of the documents at her address in Lagos on 15th June 2005 after all the evidence had been given and the court was poised to give judgment.
- The nature of the proceedings was a divorce with ancillary issues as to custody of the then 14-year-old daughter and a prohibition on the wife continuing to use the husband's surname. Such proceedings are serious and significant ones, and I am in no doubt at all that from first to last the husband was well aware (or at any rate believed, just as she believes) that the wife would be likely to receive far higher financial provision under the law of England and Wales than under that of Nigeria.
- All the circumstances of the case include the knowledge during the relevant period by the husband, as petitioner, of the actual whereabouts of the respondent wife; the other communications between them; and steps taken by the husband to conceal from her the state of progress of his proceedings, and to these I now turn.
- The wife left the former matrimonial home at 11 Lower Merton Rise in London for the last time in about spring 2001. I am satisfied that the husband has always known perfectly well since then that, when she is London, the wife resides with her sister at 12 Page Court, Page Street, Mill Hill in North London.
- By 2005, Omotade, then aged 13/14, was at school in Nigeria and both parents were in regular contact with her. Although the wife travelled several times between England and Nigeria in the period February to June 2005 (and she was in America between 4th to 10th May) I have no doubt that, in general, the husband knew where she was at any given time and certainly knew how he could find out where she was, namely by asking Omotade.
- The husband claims, and I am assuming, that he commenced his proceedings in Nigeria on about 22nd or 23rd February 2005. The wife was staying in Nigeria at that time until 13th March. He made no attempt to serve her there in that period. She was again in Nigeria between 26th March and 27th April, staying at Victoria Gardens. He made no attempt to serve her there in that period. During the first half of May, he clearly knew that she was in England and staying at Page Court, for he was ringing her from time to time and pressing her to remove the caution on 11 Lower Merton Rise. On 12th May 2005, he rang her twice on her English mobile phone number and she also had a meeting, at the husband's direction, with the husband's accountant and man of affairs here, Mr Adrian Baulf. The husband made no attempt to serve her at any time during May 2005, whether in England nor, as I have found, in Nigeria. Further, he did not in any of his telephone conversations to her say anything at all to alert her to the existence of the Nigerian proceedings or any hearing date in any of the period from 23rd February to 7th June, some three and a half months.
- I accept the evidence of the wife that it was only on 7th June 2005, at a hearing before District Judge Harper at the Principal Registry of the Family Division on that day, that any attempt was made to inform her of the existence of the Nigerian proceedings or that she learned in very general terms of them. At that hearing, the husband was represented by a solicitor, Nicole Hackett, who was a partner in the firm of Family Law in Partnership, instructed on behalf of the husband. She handed to Mr Aderemi, who was present on behalf of the wife, a draft of the affidavit which she actually swore on 8th June 2005, now at bundle CB page B64 to 65. That makes very general reference at paragraph 3 (ii) to 'divorce proceedings were commenced in Nigeria in February 2005
- No fuller or more precise information was given, either in the draft affidavit or by Miss Hackett orally at court. District Judge Harper accordingly made an order dated 7th June 2005, now at bundle CB page C1A, which made provision for the husband to file a statement by 21st June 2005 '
to include exhibiting copies of any documents relating to any divorce proceedings commenced in Nigeria'. Nothing at all was said by Miss Hackett about a scheduled hearing in Nigeria on 15th June, still less that a divorce might actually be granted on 20th June.
- Patently, District Judge Harper would not have made the order in the terms she did, with a time limit of 21st June, if there had been the least indication that active steps were being, or were about to be, taken in Nigeria. Indeed, if Mr Aderemi, who is a knowledgeable lawyer and a skilled tactician, had known the true state of the Nigerian proceedings on 2nd June 2005, I am in no doubt that he would have applied for, and the court (whether District Judge Harper or a High Court Judge on urgent application to one) would probably have granted, an interim or temporary injunction on a Hemain basis so as to freeze the position and prevent either party from gaining an unfair or surprise advantage over the other, whilst open, fair and fully informed consideration could be given, whether here and/or in Nigeria, to where the divorce should actually take place.
- On 15th June 2005, the very day when the husband was actually giving evidence in the Nigerian court in support of his divorce, Family Law in Partnership signed the acknowledgement of service in these English proceedings, now at bundle CB pages A8 to 9. Paragraph 1A of the acknowledgement of service expressly relates to proceedings in any country outside England and Wales, and in answer to the printed questions Family Law in Partnership, on behalf of the husband, stated that there were divorce proceedings before the Apapa court begun on 22nd February 2005.
- In answer to the question: 'the date or expected date of any trial in the proceedings' they stated, 'None listed as yet'. I say at once that I do not for one moment suggest that Miss Hackett or anyone else at Family Law in Partnership deliberately gave an untrue or misleading answer. They must either have been informed, or at any rate been led to believe, that no date had been listed yet. But they were the representatives of the husband, acting on his authority and instructions, and this was a grossly misleading and in fact untrue answer, likely (even if not calculated) to mislead both the wife and her advisers and the English court.
- As I have already described, documents were first actually served at Victoria Gardens in Lagos on 15th June 2005 and first seen by the wife personally on 18th June, which was a Saturday. She did see and instruct a lawyer the next day, Sunday 19th June, but he clearly had no time to prepare properly, and his attempts to seek an adjournment on Monday 20th June were opposed and were ineffective.
- It is clear from the statement dated 21st June 2005 of the lawyer who actually appeared on behalf of the wife at the hearing on 20th June 2005, that she did tell her Nigerian lawyers on Sunday 19th June of the existence of the English proceedings: see paragraph 6 of the statement of Shola Ogunyemi, now at bundle NP page 111. However, perhaps because of the pressure of time, the Nigerian lawyers made no reference to the English proceedings in their letter dated 20th June 2005, now at bundle NP page 115, which they placed before the court that day. It merely seeks an adjournment, 'in order to give us enough time to study the case and take the necessary steps in defence of [the wife]'.
- The narrative of Shola Ogunyemi at paragraphs 11 to 12 of his statement, now at bundle NP page 112, does not suggest that he made any reference in court to the existence of any English proceedings. The court's own record of the hearing on 20th June 2005 is now at bundle NP pages 37 and 38. Although it describes in some detail the arguments advanced for and against an adjournment, there is no hint there, nor in the formal judgment, now at bundle NP pages 32 to 33, of the Nigerian court being informed or alerted in any way at all to the existence of any parallel proceedings in England. So far as I am aware, the Nigerian court was totally unaware of them, so that court was not asked to give, and did not give (knowing nothing about them) consideration to any question of priority as between the Nigerian and the English proceedings or as to where a divorce should actually take place.
- I am not critical of the wife's Nigerian lawyers on 20th June. They had only just been instructed. They knew very little about the case and the essence of their application for an adjournment was that they requested a short period of time in which to find out more. But the predictable consequence of the very late service was that the wife's lawyers and the Nigerian court itself were not fully and properly informed.
Conclusion as to section 51 (3) (a) (i) and notice
- On these facts I have reached the clear conclusion that the husband failed to take, or cause to be taken, such steps for giving notice of the Nigerian proceedings to the wife as should reasonably have been taken having regard to the nature of the proceedings and all the circumstances. In the whole period from February to June 2005 he knew where she was or where he could track her down. He knew that for much of the time she was not at Victoria Gardens. He took no steps at all to serve her, or cause her to be served, before 15th June, the day itself when he had already given evidence.
- Through the unwitting instrument of his solicitors, Family Law in Partnership, he positively misled her and the English court at the hearing on 7th June and by the terms of the acknowledgement of service. He thereby lulled her and her advisers into a false sense that no decisive event was about to take place in the Nigerian proceedings. In a matter so important as divorce, and with his knowledge or belief that little financial provision would be made for the wife under Nigerian law, that simply was not good enough and was not reasonable.
- Mr Aderemi put his case separately, or alternatively, under sub-paragraph (ii) of section 51 (3) (a), namely that the wife was not given such opportunity to take part in the proceedings as should reasonably have been given. That sub-paragraph applies, however, 'for any reason other than lack of notice'. Since the vice in this case flowed from a lack of reasonable notice, it seems to me that no separate or distinct gateway for the exercise of discretion arises under sub-paragraph (ii).
- Although a gateway is open, I have found the separate question whether I should actually exercise a discretion to refuse recognition one of the utmost difficulty and very finely balanced. I have already explained at paragraphs 35 and 36 above that even if the discretion arises, the court should be very slow to refuse recognition, for reasons which I have already there given.
- Other factors which point against refusal of recognition include (i) both parties and not merely the husband have very strong connections with Nigeria. There is, in principle, no reason at all why the wife should not be divorced in Nigeria. She has dual Nigerian and British nationality. She married in Nigeria. She has continued at all material times to maintain a (rented) home there. She frequently visits Nigeria. She is clearly a prominent person in Nigerian society.
- (ii) Both parties assert that their marriage broke down long ago in 2001. The Nigerian court correctly stated in their judgment of 20th June 2005 that '
it is clear that the marriage has broken down irretrievably. The respondent has moved out of the matrimonial home about four years ago.' Realistically, the wife had, and has, no defence as such to a divorce in Nigeria, so why should this court refuse recognition when both parties want a divorce and the Nigerian court has already (as I am assuming) granted an effective one on grounds which she cannot dispute, and indeed asserts?
- I reject Mr Aderemi's submission at paragraph 5 of his 'Supplementary submissions re: recognition hearing' dated 26th July 2010 that 'It is immaterial that the marriage has broken down irretrievably and that a decree would be pronounced in any event.' That seems to me to be a very material, but not decisive, consideration.
- (iii) If and insofar as the real issue between these parties is one of finance, it would be open to the wife to apply for leave to apply for an order under Part III of the Matrimonial and Family Proceedings Act 1984.
- In my view, however, all these factors are, in the end, outweighed by the fact that the husband effectively cheated the wife in his pursuit of the Nigerian divorce. He deliberately kept the proceedings concealed from her for several months between February and June 2005. When he did alert her to them at the hearing in England on 7th June 2005, he, or his lawyers on his behalf, did so in vague terms which had the effect of misleading both her and the English court as to the timetable of the Nigerian proceedings. He only gave her actual notice of the proceedings, or served any of the documents, on 15th June after he had already given his evidence in support of the divorce earlier that day. The terms of the English acknowledgement of service, also on 15th June 2005, were untrue and grossly misleading. In my view, the husband so misled the wife and this court as to deny her the opportunity to apply here for a Hemain type injunction which would probably have been granted.
- Further, although she had no defence as such to the Nigerian proceedings (the marriage having admittedly irretrievably broken down), I assume that if she had had proper and timely notice and her Nigerian lawyers had been able properly to inform and prepare themselves, they could have made a targeted and well-grounded application on her behalf at an earlier stage to the Nigerian court to stay the proceedings there.
- In the absence of any expert evidence, I express no view whatsoever as to whether such an application would or might have succeeded, but what she was deprived of was a fair, timely and proper opportunity of making one. I make no criticism of the Nigerian judges at all. They (like District Judge Harper on 7th June 2005 in this court) were denied the knowledge and an effective opportunity to have a fair and fully informed overall understanding of the issues and overall procedural position in this case.
- My overall conclusion is that the Nigerian divorce was obtained after deliberate concealment and misleading and untrue statements made by or on behalf of the husband, and justice to the wife requires that I refuse recognition of it. I accordingly hold, pursuant to section 51 (3) of the Family Law Act 1986, that recognition of the validity of the divorce granted by the Grade A Customary Court Apapa Lagos State of Nigeria on 20th June 2005 in suit number APCC/HD/03C/05 is refused. It follows that I further hold that at the date hereof, the valid marriage propounded and fully described in paragraph 1 of the petition issued in this court on 17th May 2005 is (in the eyes of English law) still subsisting.
The impact of Golubovich
- The argument in this case concluded on Thursday 8th July 2010. I substantially prepared the whole of the above judgment in verbatim draft on that evening and during Friday 9th July 2010, and finalised it during the following week. I was unable to deliver it before today due to the relentless demands of other cases.
- On Tuesday 13th July 2010, unbeknown to me, the Court of Appeal handed down their judgment in the case of Golubovich v Golubovich  EWCA Civ. 810. I learned of that judgment by chance later that week, after I had completely finalised this judgment, and it first became available on the Bailii database on or about 20th July 2010. I have given very careful consideration to the judgment in Golubovich and to whether it should lead me to revise any part of the present judgment, and in particular my discretionary decision as to outcome. I have given Mr Aderemi and Mr Hussain the opportunity today to make further submissions based on, or arising out of, Golubovich and they have each shortly done so.
- Clearly, both cases occupy very similar territory and indeed Thorpe LJ began his judgment in Golubovich with the words,
'The issue raised by this appeal is the recognition of a decree of divorce pronounced by a competent foreign jurisdiction. The refusal to recognise such a decree is controlled by statutory provisions contained in section 53 of the Family Law Act 1986.'
I could begin this judgment with identical words. In that case, the Court of Appeal held, reversing Singer J, that recognition should not be refused on public policy grounds under section 53 (1) (c) of the Act of a Moscow divorce even although it was granted at a time when the husband was bound by the terms of a Hemain type injunction granted here by Bennett J on 9th November 2009, which required the husband to 'take active steps to dissuade the [Russian] court from' pronouncing a decree of divorce.
- The judgment of Thorpe LJ, read as a whole, clearly emphasises (as I have myself already stressed) the gravity and undesirability of refusal to recognise a divorce granted by a foreign court of competent jurisdiction, particularly (on the facts of that case) if the foreign state is a member of the Council of Europe (even if not of the EU) and in the situation where (as in that case and in this case) the other party has a Part III remedy here.
- In the section of his judgment headed 'Overview' at paragraphs 83 to 98, Thorpe LJ stressed the importance in cases such as this of a prompt decision to establish which set of proceedings should take priority and which should be stayed. At paragraph 95 he asked,
'What then is the judicial responsibility to curtail wasteful and competitive proceedings on foot simultaneously in two jurisdictions? Why should the judge not of his own motion order the trial of a preliminary issue to establish priority? In all cases in which competitive concurrent divorce proceedings continue in two jurisdictions, it is essential to establish which court has priority or
the right of way. The parties cannot be permitted to indulge in a competitive race.'
- At paragraph 96, Thorpe LJ said 'It is clearly essential that the two courts seised should have the fullest information as to issues tried, or to be tried, together with the likely timetable for future progress.' These observations point up, and underline, what seems to me to be the essential and fundamental distinction between Golubovich and the present case. In that case, there were 'competitive proceedings on foot simultaneously' in both jurisdictions. Apart from an earlier gross deception by the husband who had 'invented a hearing of the 21st July in the Moscow court and forged a purported decree of divorce' (see Thorpe LJ at paragraph 17) each party was, as I understand it, fully aware for many months of the course of the proceedings in both jurisdictions and each fully participated both here and in Moscow over many months.
- The present case is, on its facts, quite different. The wife knew nothing at all about the Nigerian proceedings until 7th June, and was only properly engaged by service on 15th June (coming to her personal knowledge on 18th June) which was too late. There was no 'competitive race' in the present case at all, for the wife was deliberately kept blissfully unaware that the husband was racing or competing at all in Nigeria.
- No question could arise in the present case of 'the judge of his own motion ordering the trial of a preliminary issue to establish priority'. No English judge could do so because the first time the English court knew anything at all about proceedings in Nigeria was 7th June 2005 when, as I have explained, District Judge Harper and the wife's lawyers were clearly misled as to the stage that the Nigerian proceedings had reached and the imminence of any hearing there. No Nigerian judge could do so because, as I have also explained, it does not appear that the Nigerian court knew anything at all about the existence of any proceedings here in England until after that court had pronounced the divorce on 20th June 2005.
- By contrast, in Golubovich, when the Moscow court finally pronounced a divorce on 25th December 2009, it was well aware of the existence of the English proceedings and of the terms of the order of Bennett J, since the husband's own lawyers had referred to, or emphasised, it at each of the hearings on 7th December, 17th December and 25th December (see paragraphs 27, 31 and 32 of the judgment of Thorpe LJ). The Court of Appeal said, perhaps crucially, at paragraph 71 of the judgment of Thorpe LJ,
'There were no procedural deficiencies within the Moscow proceedings. The court was fully appraised of the injunctions issued in London and of the risks the husband ran in breaching them.'
However, as Thorpe LJ had earlier said at paragraph 59, 'The order of Bennett J engaged the parties, but the order could not be elevated to the inter-state level.'
- Singer J had refused recognition in Golubovich on the grounds that recognition would be manifestly contrary to public policy under section 53 (1) (c) of the Act. The Court of Appeal stressed that refusal of recognition on that ground is rare (paragraph 68) and must be regarded as 'truly exceptional' in relation to another jurisdiction within the Council of Europe (paragraph 78), reflecting a judgment of the Court of Justice of the European Communities concerning public policy objections as between member states of the EU, to which the community of the Council of Europe affords the greatest respect (paragraphs 79 and 80).
- Despite many similarities between the two cases, I have come to the conclusion that the points of distinction are real and are crucial. I have very expressly not refused recognition on public policy grounds. I have refused recognition because of the 'procedural deficiencies' within the Nigerian proceedings as to service, stressing that the Nigerian court itself may very well have been misled. The result was that, in each jurisdiction, the court was completely unaware (or in England, after 7th June only dimly aware) of the other proceedings.
- As its own orders clearly show, the Nigerian court itself requires proper service. That did not happen until too late, and there was in this case, unlike in Golubovich, a 'breach of natural justice' which the Court of Appeal itself mentions at paragraph 78.
- I have already written at paragraph 70 above that I found the question of discretion in the present case one of the utmost difficulty and very finely balanced, but after due and very careful consideration of Golubovich, it seems to me that the two cases are different and that the decision and the reasoning of the Court of Appeal in that case should not, and does not, lead me to revise the decision and outcome that I had already reached in this case.
Outcome and stay
- Because of the procedural history, this court has never been asked to consider, and has never of its own motion considered, the questions of balance of fairness and convenience and whether a stay of the English proceedings should be ordered pursuant to paragraph 9 of Schedule I to the Domicile and Matrimonial Proceedings Act 1973.
- On 1st July 2005, the husband issued his summons seeking trial of the 'preliminary issues' as to jurisdiction (which I dealt with in February) and as to recognition (now before me). Until those issues are both resolved, there is no scope for discretionary stay and indeed, on the husband's contention that the parties were already finally divorced in Nigeria on 20th June 2005, sub-paragraph 1A of paragraph 9 of the schedule to the 1973 Act is not engaged at all, since proceedings are no longer 'continuing' in the other jurisdiction.
- As I have made the assumption that there is already an effective divorce in Nigeria, there is still no scope for a discretionary stay under the 1973 Act; and as the husband chose, now unsuccessfully, to nail his colours firmly to the twin masts of (i) jurisdiction and (ii) the fact of a prior divorce in Nigeria, I will not now, five years later, pause to give any consideration to discretionary stay. I will proceed without more ado to hear the wife's evidence in support of her petition for divorce.
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