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Home > Judgments > 2005 archive

Danjuma v Danjuma [2005] EWCA Civ 1134

Application to appeal i) an order freezing the applicant's assets and ii) a maintenance pending suit order. Application dismissed.

B4/2005/1040

Neutral Citation Number: [2005] EWCA Civ 1134

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice

Strand

London, WC2

Thursday, 15 September 2005

B E F O R E:

LORD JUSTICE WARD

LORD JUSTICE MOORE-BICK

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DANJUMA

Applicant

-v-

DANJUMA

Respondent

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(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

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MR J WARSHAW (instructed by Tayo Arowojohn) appeared on behalf of the Applicant

THE RESPONDENT DID NOT ATTEND AND WAS NOT REPRESENTED

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J U D G M E N T

(As Approved by the Court)

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Crown copyright©

1. LORD JUSTICE WARD: This is a renewed application for permission to appeal against part of the orders made by Bodey J on 23 April of this year. In particular, the grant of the freezing order made by the judge, with liberty to the respondent to apply. By that freezing order, the applicant, who is the husband or perhaps former husband of the petitioner in the English court's proceedings, was restrained from removing from this jurisdiction assets up to the value of £20 million or to dispose of any of these assets, whether in or outside England and Wales, up to the same value. The prohibition included particular named assets, two of them being properties in London and the others being properties in Nigeria. In the standard way, that freezing order also contained a direction that the husband, as I shall call the applicant for convenience, was required to serve an affidavit, setting out full details of all his assets worldwide.

2. The second part of the order under attack was a maintenance pending suit order that the husband pay the wife £5,000 a month, payable monthly in advance from the 1 May until 1 September, again with liberty to apply to discharge that order. It is a noteworthy fact that this applicant has neither paid the maintenance pending suit nor the affidavit of means as ordered.

3. The case came before the judge in unusual circumstances. The wife resides in this jurisdiction with the two children of the family, but much of married life appears to have been lived in Nigeria, the husband being a Nigerian citizen, the wife being a Zambian citizen. It appears that the husband took divorce proceedings in Nigeria where he was granted a decree nisi divorce on 31 January this year, and that decree was made absolute on 31 March. Very shortly before the decree absolute, the wife says she first learnt of the divorce proceedings, contending they had never been served upon her and she therefore began her proceedings for divorce in this jurisdiction the day before the marriage was dissolved in Nigeria. We have not seen a petition, but understand that in common form it would have contained prayers for all forms of ancillary relief. That constituted a proper application for maintenance pending suit.

4. This is a wife who, according to her affidavit of means has been left without much means of support by a husband said to be a man of some considerable wealth. She contended that he had cut off funds from her, leaving her unable properly to instruct solicitors and that may perhaps explain some of the inadequacies in the preparation of her case. She applied in person for certain relief before HHJ Compston. That was adjourned as she went to the principal registry and again it was adjourned. She served documents very late on the husband. She applied for the relief which was granted by the judge as I have indicated. It was a without notice application of which notice was given as a matter of courtesy and both parties attended by leading and junior counsel before Bodey J.

5. The real issue was whether or not a Nigerian divorce should be recognised or whether the lack of service would enable this court to refuse to recognise it. That question could not be answered there and then, but the judge gave directions for an urgent hearing, which came before the court in July, but had to be adjourned and is now fixed for hearing on 4 October, a matter of a few weeks away. So the judge had to consider whether or not to grant the various forms of relief which the wife was seeking. He dealt with the question of maintenance pending suit in paragraph 21 of his judgment, saying:

"Mr Pointer realistically concedes there is jurisdiction to make an order for maintenance pending suit, notwithstanding the pendency of proceedings which might thereafter mean that the wife had not been entitled to maintenance pending suit in the jurisdiction. Therefore although conceding jurisdiction, invites this court to act with caution. She may not succeed on her argument that Nigerian divorce should not be recognised. If she did not, there would be a possible injustice to husband."

6. That seems to me to be a very realistic concession by Mr Pointer, and the judge was mindful of the caution urged upon him because he recorded in paragraph 23 that:

"Obviously I would normally want to look at the husband's means, and give him a further and better opportunity to be heard on maintenance pending suit."

7. But he had sufficient evidence, not least from the proceedings in Nigeria, that he was a businessman and legal practitioner of considerable means. There was some, albeit tenuous, hearsay evidence in the wife's supporting affidavit that he was a man worth in excess of £50 million. He was a man who had offered to pay his wife £20,000 by way of a lump sum in full and final settlement of all their claims. The judge took that sum as a sum which was clearly available to him and ordered him to pay it in several instalments, as I have already cited.

8. For my part, I can see no possible room for contending that a pragnatic, holding order of short duration,as this was made in excess of jurisdiction, indeed jurisdiction was conceded. It is therefore a question of discretion. The judge had ample evidence that this wife was in need and he had ample evidence that the husband could afford to pay the sums which he ordered and that it was reasonable so to order. I can see absolutely nothing wrong with the exercise of that discretion and an application to appeal against it is, in my judgment, utterly hopeless.

9. That brings me to the freezing injunction. The criticism of the judge's exercise of discretion in this regard is that there was a paucity of evidence to justify it. That is true. The judge recognised that, as Mr Pointer had rightly said, the evidence in support of freezing application, is "limited". That is, however, not to say that there was no evidence to support that application. The judge refers to a letter in which the husband is reported to have been saying that the wife could not get her hands on his money. There was, moreover, in the body of her actual affidavit evidence from the wife, evidence such as it is, that this husband had attempted to use the matrimonial home as security for borrowing and an assertion that he would default on the repayments in order to make her homeless. There was an allegation, albeit hearsay and so deficient in that the identity of the person is not disclosed but nonetheless some evidence that as soon as the husband's solicitors had been served, the husband travelled to Switzerland and started transferring monies from the Swiss bank accounts, hence her fear that he would remove assets from the jurisdiction. Thus I am satisfied that although the evidence is limited indeed, there was a basis upon which discretion could be exercised and the argument that the paucity was such that discretion should not be exercised is an argument about the weight of the evidence which the judge deemed to be enough, weight was a matter for the Judge to assess to justify the making of those orders. He was entitled so to find as he did.

10. It is a matter of complaint that in standard form the husband had been required to make an affidavit disclosing his assets that is standard form. I see nothing wrong with it. The great difficulty in the applicant's way is that all these orders were made with liberty to apply. The proper approach for this husband if truly aggrieved by any part of the orders now under challenge was to exercise liberty to apply and move the court for a review on consideration fully of the evidence that was then before the court. The matter is made more like Alice in Wonderland, as Mr Warshaw has alluded, because, as I have indicated, on 4 October the Family Division will be able to deal fully with all of these matters. That is where it should be. It should not be in the Court of Appeal. Thorpe LJ shortly, cogently refused permission admirably, stating in his refusal that the orders complained of were merely orders of transient duration in circumstances with which the judge was confronted on 25 April. Such orders were clearly comfortably within the broad discretion that he exercised. I entirely agree. I regret only that I have wasted so much more time expanding upon that succinct reasoning. I would dismiss this application.

11. LORD JUSTICE MOORE-BICK: I agree.