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Home > Judgments > 2009 archive

Agbaje v Agbaje [2009] EWCA Civ 1

Appeal by husband against an order for financial relief made under Part III of the Matrimonial and Family Proceedings Act 1984. Appeal allowed.

The couple were from Nigeria but acquired British citizenship in 1972 but from 1974 both parties lived and worked in Nigeria. The wife’s claim for financial relief under Part III of the MFPA 1984 began in 2005 following the decree nisi in the Nigerian court. Munby J granted permission and also subsequently rejected the husband’s application to stay the proceedings principally on the grounds that there was a “very significant discrepancy” in the provision given the length of the marriage and the assets available. An appeal against that decision was refused on paper and eventually Coleridge J made an order in 2008.

In this appeal, the wife argued that Nigerian courts powers to allocate the parties’ assets were not comparable to those available in England, and given the wife’s connection with England, she should receive further relief under Part III. Ward LJ reviews the statutory provisions and the purpose of the Act. He concluded, among other things, that the absence of an equivalent power to transfer property under Nigerian law was not sufficient to demonstrate an exceptional circumstance and that

“If mere disparity - even quite significant disparity - in the awards becomes the principal criterion for the exercise of the section 16 discretion then what was supposed to be the exception will soon become the rule as disaffected wives flee the less generous jurisdiction”

He then went on to find that Coleridge J had erred in law in making the order as, among other things, he had not sufficiently explained the exceptional circumstances for granting relief and he had not taken all the relevant matters into account. Therefore the wife’s order was dismissed.

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Neutral Citation Number: [2009] EWCA Civ 1
Case No: B4/2008/0888
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
THE HON. MR JUSTICE COLERIDGE
FD05F01009
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20th January 2009
Before:

THE RT HON. LORD JUSTICE WARD
THE RT HON. LORD JUSTICE LONGMORE
and
THE RT HON. LORD JUSTICE JACKSON
- - - - - - - - - - - - - - - - - - - - -
Between:

Olusola Akinnoye Agbaje (Appellant)

- and - 

Sikirat Abeni Akinnoye Agbaje  (Respondent)

- - - - - - - - - - - - - - - - - - - - -
Mr Timothy Scott Q.C. and Mr Peter Mitchell (instructed by Tucker Turner Kingsley Wood & Co) for the appellant
Mr Nigel Dyer Q.C. and Miss Eleanor Harris (instructed by Knox & Co) for the respondent

Hearing dates: 8th October 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
 
Lord Justice Ward:
Introduction

1. Although the Court of Appeal has on several occasions had to consider whether to grant leave to apply for financial relief after an overseas divorce pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”), this is, we are told, the first time that this Court has had to review the substantive order made after such leave has been given.  Here the final order was made by Coleridge J on 4th April 2008, the material parts of which provided:

“Upon the applicant agreeing and undertaking to the court to:

A.  relinquish forthwith any interest she may have in plot 2 … Tin Can Island … Lagos, Nigeria and, in particular, her life interest in the said property created by order of Nicol-Clay J in the High Court in Lagos, Nigeria on 2nd June 2005; and
B.  execute all documents necessary when called upon to do so to effect (i) the termination of her life interest and/or (ii) the transfer of any interest she may have in the said property to the respondent;

It is ordered that:-

1.  The respondent shall pay or cause to the be paid to the applicant a lump sum equal to 65% of the gross proceeds of sale of 27 Lytton Road, New Barnet, upon completion of the sale of the said property.
2.  Pursuant to the lump sum order at paragraph 1 above, 27 Lytton Road, New Barnet shall be sold forthwith on the open market …
3.  The applicant’s claims for a periodical payments order and property adjustment order are dismissed.”

Mr Olusola Agbaje, the respondent in the court below, seeks permission to appeal.  Although the parties’ marriage has been dissolved I shall for convenience, and I do hope without causing offence, call Mr Agbaje “the husband” and Mrs Agbaje “the wife”.  Wilson L.J. adjourned that application to be heard on notice with the appeal to follow if the application were granted. 

The factual background
2. The husband is 71 years old.  He was born in Nigeria.  So was the wife.  She is 68 years old.  The husband came to England in 1961 to read for the Bar – he was called in 1965.  The wife also came over here in 1962 to study and work.  The parties met in December 1965.  They married in London on 6th May 1967 and lived together at various addresses in North London.  There were five children of the family, the eldest, born to the wife shortly before she met the husband, and four children of the marriage born in 1967, 1969, 1973 and 1980.  In 1972 the parties acquired British citizenship and they now both have dual British and Nigerian nationality.   

3. In September 1973 the husband returned to Nigeria to qualify there and to set up his legal practice.  The wife and the children joined him in Nigeria in May 1974.  They lived and cohabited together at various addresses in Lagos but latterly at Plot 2, Tin Can Island (“Tin Can Island”).  In 1975 the two elder children were brought back to England to be educated here and the husband bought in his name a property at 27 Lytton Road, New Barnet (“Lytton Road”), to be a base, “a transit home”, at which to stay whilst visiting the children who had been boarded out with a nanny as so often was the case with prosperous Nigerian families.  Apart from a time in 1976/7 when the husband was in London for surgery and for further studies, the parties established their home and their life in Nigeria. 

4. They separated in September 1999, the husband moving out of the matrimonial home on Tin Can Island.  There was a dispute about the wife’s movements thereafter: her case is that she came to England and set up home at Lytton Road;  the husband suggests that she did not settle there until 2003.  Coleridge J. accepted the wife’s version. 

5. In 2002 the husband bought in his name another property at 26 Windmill Drive, London NW2, intending it, so he claims, to pass to the youngest child. 

The divorce proceedings
6. I set this out in summary and will return to the detail later.  It was the husband who first launched divorce proceedings by issuing his petition in the High Court in Lagos in 4th June 2003, claiming to be domiciled in Nigeria.  Four months later on 8th December 2003, the wife petitioned for divorce in the Barnet County Court, asserting that she was habitually resident in England and Wales.  In February 2004 she filed an answer and cross-petition in the Nigerian proceedings in which she not only defended the claim for divorce but cross-petitioned for a judicial separation on the ground of his adultery.  Importantly, so far as this appeal is concerned, she made her claims for ancillary relief seeking a lump sum of ten million naira “as maintenance for [herself] during her lifetime” and she also sought orders that the properties at Tin Can Island and Lytton Road were jointly owned by her and the petitioner and that they be settled on her.  The Nigerian divorce proceeded to trial in July 2004 but it was a long and protracted process lasting almost a year.

7. During the course of that hearing the wife applied in Nigeria to stay the proceedings there but her application was heard and dismissed by Nicol-Clay J on 25th October 2004.  In November 2004, the husband’s application for the dismissal or a stay of the wife’s English petition was heard by Ryder J. together with the wife’s urgent without notice application for an anti-suit injunction to prevent the husband pursuing the Nigerian proceedings due for further hearing the next week.  Ryder J. dismissed the wife’s application for that injunction, holding:

“4. There is no evidence that substantial justice cannot be obtained by the wife in the Courts of Nigeria.  …

9. …  I cannot say that there is cogent evidence that England is the natural forum for the decision-making process in relation to these parties’ divorce …”

She did not seek to appeal, but, as Munby J. was later to say, and I agree, 

“Ryder’s reasoning and conclusions are …unassailable.  His decision was  … virtually inevitable.”

Ryder J. did, however, adjourn the husband’s application for a stay apparently at his request.  So the Nigerian proceedings went ahead in Lagos. 
8. Both parties gave evidence in Lagos and were cross-examined.  Eventually on 2nd June 2005 Nicol-Clay J granted the husband a decree nisi of divorce, dismissed the wife’s cross-petition for judicial separation, ordered that Tin Can Island worth then about £83,000 be settled on the wife for life and subsequently her children and awarded her the payment of a lump sum of five million naira (worth about £21,000) “as maintenance for life”.  Her other claims for ancillary relief were dismissed.  The decree of divorce was made absolute on 2nd September 2005.  The wife applied for leave to issue these proceedings under Part III but a few weeks later on 28th September 2005. 

These proceedings
9. Again I shall summarise what has happened.  As was required by the Act and under the rules, the wife applied without notice for leave to issue her application for financial relief after the overseas divorce. Permission was granted by Munby J. on 24th November 2005.  He gave a short judgment – very properly, for that was all that was required on the ex parte application – concluding:

“6.  It seems to me that the only matter which at the end of the day brings this case potentially within the ambit of the 1984 Act is what on the face of it is the very considerable discrepancy indeed between the aggregate value of what this Court would consider to be the relevant matrimonial assets and the actual economic value to the wife of the provision which was made for her following, I emphasise, a marriage of thirty-two years.

7.  I am persuaded by Miss Harris that that very significant discrepancy, and the very modest amount of provision made for this wife following a marriage of that length in relation to a case where there appear to be significant assets, is such that, having regard, as I do, to each of the facts and matters set out in section 16(2) of the Act, there are established, as I am satisfied there are established, substantial grounds for making this application within the meaning of section 13(1).”

10. On 8th February 2006 the wife brought her application.  The husband’s response to it was, in my opinion, misguided and unfortunate for reasons I shall explain later.  He sought to set aside the leave that had been given and voluminous evidence was filed on each side to deal with that application.  It was heard by Munby J. and he handed down judgment on 18th December 2006.  This time he delivered what Coleridge J. described as “a long and careful judgment” in which “in his usual considered and thorough manner” he “set out the whole scene and background” and “with his customary clarity set out the law”.  In essence he confirmed the conclusions he had reached on the ex parte hearing adding that he was satisfied that there were “exceptional circumstances” in the case and that the wife would suffer “hardship – real hardship – if I do not give her leave.”

11. Unfortunately the husband was not as impressed with this judgment as was Coleridge J.  He sought permission to appeal which was refused on paper by Thorpe L.J.  He renewed it and sought an oral hearing.  That lasted nearly an hour. The application was dismissed by Wall and Wilson L.JJ. 

12. So the case proceeded - but fortunately confined in its scope because of sensible directions Munby J. gave on 16th March 2007 limiting the wife’s application to a periodical payments order, a property adjustment order in relation to Lytton Road and a lump sum order.  He directed that the findings of fact made by Nicol-Clay J were to stand with the parties being limited to giving updating evidence of their respective current incomes and needs.  Neither party was permitted to adduce valuation evidence of property in Nigeria and the parties were to agree if possible the values of Lytton Road and Windmill Drive.  The application was heard by Coleridge J. on 3rd and 4th April 2008 and after an extempore judgment he made the order which I have recited in paragraph 1 above.  Now we are dealing with the application for permission to appeal as directed by Wilson L.J..

Part III of the Matrimonial and Family Proceedings Act 1984
13. It is time to set out how the Act works before considering the judgment under appeal.  So far as is material, the Act provides:

“12  Applications for financial relief after overseas divorce etc
(1)  Where—

(a) a marriage has been dissolved … in an overseas country, and
(b) the divorce … is entitled to be recognized as valid in England and Wales,
either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under this Part of this Act.

13 Leave of the court required for applications for financial relief
(1)  No application for an order for financial relief shall be made under this Part of this Act unless the leave of the court has been obtained in accordance with rules of court; and the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order.
(2)  The court may grant leave under this section notwithstanding that an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property to the applicant or a child of the family.
(3)  Leave under this section may be granted subject to such conditions as the court thinks fit.

15  Jurisdiction of the court
(1)  Subject to subsection (2) below, the court shall have jurisdiction to entertain an application for an order for financial relief if any of the following jurisdictional requirements are satisfied, that is to say—

(a) either of the parties to the marriage was domiciled in England and Wales on the date of the application for leave under section 13 above or was so domiciled on the date on which the divorce … obtained in the overseas country took effect in that country; or
(b) either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year ending with the date of the application for leave or was so resident throughout the period of one year ending with the date on which the divorce … obtained in the overseas country took effect in that country; or
(c) either or both of the parties to the marriage had at the date of the application for leave a beneficial interest in possession in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties to the marriage.

16  Duty of the court to consider whether England and Wales is appropriate venue for application
(1)  Before making an order for financial relief the court shall consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court in England and Wales, and if the court is not satisfied that it would be appropriate, the court shall dismiss the application.
(2)  The court shall in particular have regard to the following matters—

(a) the connection which the parties to the marriage have with England and Wales;
(b) the connection which those parties have with the country in which the marriage was dissolved …;
(c) the connection which those parties have with any other country outside England and Wales;
(d) any financial benefit which the applicant … has received, or is likely to receive, in consequence of the divorce … by virtue of any agreement or the operation of the law of a country outside England and Wales;
(e) in a case where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant … the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;
(f) any right which the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales and if the applicant has omitted to exercise that right the reason for that omission;
(g) the availability in England and Wales of any property in respect of which an order under this Part of this Act in favour of the applicant could be made;
(h) the extent to which any order made under this Part of this Act is likely to be enforceable;
(i) the length of time which has elapsed since the date of the divorce …

17  Orders for financial provision and property adjustment
(1)  Subject to section 20 below, on an application by a party to a marriage for an order for financial relief under this section, the court may—

(a) make any one or more of the orders which it could make under Part II of the [Matrimonial Causes] 1973 Act if a decree of divorce … had been granted in England and Wales, that is to say—

(i) any order mentioned in section 23(1) of the 1973 Act (financial provision orders); and
(ii) any order mentioned in section 24(1) of that Act (property adjustment orders); …

18  Matters to which the court is to have regard in exercising its powers under section 17
(1)  In deciding whether to exercise its powers under section 17 above and, if so, in what manner the court shall act in accordance with this section.
(2)  The court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
(3)  As regards the exercise of those powers in relation to a party to the marriage, the court shall in particular have regard to the matters mentioned in section 25(2)(a) to (h) of the 1973 Act …
(6)  Where an order has been made by a court outside England and Wales for the making of payments or the transfer of property by a party to the marriage, the court in considering in accordance with this section the financial resources of the other party to the marriage or a child of the family shall have regard to the extent to which that order has been complied with or is likely to be complied with.”

The judgment under appeal
14. Coleridge J. began by explaining why he was giving judgment there and then saying:

“However, time is now short and whilst I will set out my main reasons for deciding as I do in this judgment, I may supplement it with further reasons and with references to the law should it be required and necessary for any purpose.”

The judgment was indeed referred back to him and when he approved it he added this note:

“I have in the end only slightly tidied up this judgment because the lack of a full recorded transcript and to make it read better.  I have however slightly fleshed out the reasoning as to the final calculations …”

15. He commented on the fact that the parties had been “locked in litigation for in excess of five years; a period that is far longer than anyone should have to endure”.  But he added at various stages of the judgment:

“However, there is one advantage and that is that I can take as my starting point the long and careful judgment of Munby J.  In it he has, in his usual considered and thorough manner, set out the whole scene and background for this hearing and it makes it unnecessary for me to give a long judgment today.
  … 
It is important to note that the Court of Appeal upheld this order …

In respect of the relevant law, I am indebted to Munby J, who with his customary clarity set out the law and in particular the leading case of Holmes v Holmes from which judgment he cited large chunks.  I do not therefore need to labour this judgment with a further recitation of relevant extracts.”

It is quite apparent that he derived considerable support from that judgment stamped, as he saw it, with the approval of this Court.  What I shall have to consider is whether he placed too much reliance upon it. 

16. He did, however, correctly address himself to his task:

“There are two issues: -

(i) first, whether this is a case in which it is appropriate (in the sense of that word in section 16) for there to be any further revision.  And, if so:
(ii)  what further provision should be.”

17. He summarised the submissions in his own inimitable fashion (which I always enjoy):

“The husband says that this is no more or less than a second bite of the cherry, that the application must fail, because there have been proceedings already in Nigeria.  The wife accepts that in a sense it is a second bite of the cherry but that she is entitled to succeed because in the Nigerian proceedings she was afforded only the merest of nibbles and cannot live here on what she has.”

18. As the case was argued before the judge, and much the same arguments were presented to us, the husband was submitting as to section 16 that the parties’ connection with this country has only really subsisted since separation and that the wife was engaged in “blatant” forum shopping with the result that the court should not “start meddling in matters already litigated in Nigeria”. 

“The other side of the coin, advanced by the wife, mainly relies on the way on Munby J expressed the position; namely that there would be a very significant risk of real hardship if the court refused to make any provision and that it would be draconian to shut the wife out.”

19. The judge held:

“The parties have a long-standing and real connection with the UK, its culture and way of life.  They are British citizens.  All the children are British and were born here.  The wife is unquestionably resident here and has strong connections here … I accept that the wife has spent the vast majority of her time here in the period from 1999-2005.  …  Apart from that, the parties bought two properties here, one in 1975 and one in 2002.  The children were all educated here …

In my judgment the wife has established that it is appropriate for the English court to intervene where she has been resident here since 1999 and where I am satisfied that she will continue to make her main home here where she has her doctor and English state benefits.  I am satisfied that she is not misleading the court with a false case and that this is an appropriate case for an order despite the Nigerian proceedings.”

20. The judge then went on to consider what order he should make and he summarised their financial position:

“The Lytton Road property is worth £425,000, whilst Windmill Drive (in respect of which there has been a finding that it was bought for the youngest child) is worth approximately £195,000.  The properties in Nigeria are worth £86,000 each and the wife has her land at Ejigbo worth £8,639 – and maybe more.  Looking at the assets overall there is approximately £700,000 [making allowance for the mortgage on Windmill Drive] ...  The wife’s income was opaque; she has her state pension and pension credit and her Nigerian pension which comes to £600 or thereabouts.  She has outgoings of approximately £1,000 per calendar month. 

The husband is a barrister; he is 71 and cannot continue to work much longer.  His income in Nigeria, whilst he works, is significant at £3,600 a month.  He may carry on for a year or two to cover his debts.”

21. The judge concluded that the wife’s primary need was for a home and he considered she should have £225,000 for housing.  Then he continued:

“Is that all?  I think she needs a small further capital sum to supplement her income and provide for her when she cannot work.  In that context I look at her Lagos property.  Both parties have said to the court with the utmost courtesy that it is a matter for the court.  Both urge Tin Can Island on the other as neither wants it.”  [Earlier in the judgment he had said this: “In the course of proceedings I suggested that it would be more practical if this property could revert back to the husband, given that he is most certainly resident in Lagos.  This suggestion is taken up and accepted swiftly by the wife; it fits in with her plans.  Overnight the husband came up with an alternative suggestion; rather than he get the property and have the ability to sell it that he would cause the property to be transferred absolutely to the wife.  She would then be in a position to do with it what she chooses and either sell it or let it.  He is happy for her to have the entirety of this property by way of a supplement to the provision made for her in Lagos.”]  “It could be sold, in which case it could, in theory, generate £86,000 or maybe more than that.  It makes sense, given the husband’s residence and so it is more appropriate for the husband to have this property as his own.  The wife should execute whatever documents necessary to give up her life interest and the order should record (or if necessary there is to be a declaration) that she no longer has any interest, or right to visit it.  What figure should I order the transfer at?  I have decided £50,000.  The wife should therefore exit these proceedings with a total of £275,000 sterling payable out of the proceedings of 27 Lytton Road and this should be expressed as being 65% of the gross sale value of the property.  …  It is possible that if this application had been an English ancillary relief application, heard here from first to last, the wife would have done better.”

Discussion and analysis
22. Let me begin with a résumé of what happened in Nigeria.  I have already set out how the wife submitted to the jurisdiction of that court and made her prayer for judicial separation and her claims for a beneficial interest in and a settlement of a property order in respect of Tin Can Island, and the London properties.  She gave evidence-in-chief on 26th January 2005.  She gave her address as Lytton Road.  According to the notes of that evidence made by the judge and certified to be a correct copy, she claimed that she used some of her leave money towards the deposit for Lytton Road.  She said, “With regards to settlement of property I would like my ancillary relief to be in England as I have a divorce petition in England”.  In written submissions on her behalf, her lawyers argued that:

“Reasonable maintenance for the respondent is that that would ensure to her a queen treatment.  It should be one that would afford her the opportunity of a trip to England twice a year for holidays.  …  The least the court should do therefore is award to the respondent her prayer for the sum of # 10M.  It is a lump sum, which the respondent has to spend for the rest of her life.  And it is not supposed to be bare existence.  It must be one that will ensure the queen treatment her husband got her used to.”

As for her case that the properties were jointly owned, the argument was that:

“The arrangement between her and the petitioner was that the petitioner would be using his own money to develop the properties while the respondent would spend her own money to provide basic needs of the family.”

23. Nicol-Clay J held:

“The respondent is seeking an order that the properties listed in the answer and cross-petition are jointly owned by her and the petitioner and that they be settled on her. 

The court under section 72 of the Matrimonial Causes Act has wide powers to order settlement of property and the nature of the order to be made, the exercise of the court’s discretion is unfettered and should be exercised judiciously and the court may make such order as it thinks just and equitable with respect to the application for the benefit of all or any of the parties. 

The respondent/cross-petitioner gave evidence to the fact that she wants the court in London to determine her ancillary relief.  She gave evidence to the fact that all the properties were owned jointly by them and she contributed towards their acquisition by indirect contributions.  She stated further that there is a mortgage and the petitioner maintains the property.

The position of the law is that where issues are joined, evidence must be given, the respondent has given evidence, and she cannot at this stage turn around to say her auxiliary (sic) relief should be determined by the English court, the court has a duty to determine all the issues in controversy between the parties. 

As regards the properties in England the justice of this matter deserves that the property should remain in the name of the petitioner, the respondent testified that there is a mortgage and the petitioner is still maintaining the property at Lytton Road.  The petitioner testified he had bought one for his daughter and the other a transit home for his children, it was never a matrimonial  home, and the documents are in his name, the respondent failed to prove by evidence her contributions towards their acquisitions, the claims in respect of these two properties are refused and dismissed.

…  Section 70(1) of the Matrimonial Causes Act provides for maintenance of a party to a proceedings and the court must have regard to the means, earning capacity, conduct of the parties and other relevant factors, the burden is therefore on the respondent to discharge, she must prove the earnings and means of the petitioner, the respondent in this case stated the petitioner can afford the sum, that she wants to be compensated, that she has spent her whole life for the family.  …

From the facts before me it is my view that the interest of justice will be best served in this case by granting the award of the sum of five million Naira as adequate compensation for the sustenance of the respondent in view of the various responsibilities of the petitioner as against his income.”

24. Given that the wife gave evidence under cross-examination that “New Barnet is my home”, it is a curiosity of the case that the argument was advanced that her maintenance should include an allowance to enable her to visit England twice a year for a holiday.  The fact remains, however, that she did claim a lump sum as maintenance for her life and was awarded such a lump sum, albeit a half of what she wanted.  Although no evidence of Nigerian law has been admitted, the judge clearly proceeded upon a basis that the court had a power to order a settlement of property if it was just and equitable to do so, the discretion being unfettered.  It is, however, agreed that there is apparently no power to order a transfer of property as we know it.

The gist of the submissions made to this court
25. In those circumstances Mr Nigel Dyer Q.C. who now appears for the wife, submits powerfully that since the wife has established a demonstrable connection with England and since the foreign court’s powers to divide and allocate the parties’ assets and resources are not comparable to ours, the order of the foreign court produces an unjust result which must be corrected by further relief being awarded to her under Part III. 

26. The discrepancy between the financial position of husband and wife is well demonstrated in a schedule of their assets placed before us.  In round figures the husband’s position is that he has Lytton Road, worth about £413,000, Windmill Drive, worth about £115,000, his home in Lagos worth £86,000 and something under £2000 in the bank, a total of about £616,000.  Contrast that with the wife’s position where she has her own land in Nigeria worth a sum of £8,600, a modest amount in her bank accounts here but a larger loan.  So she is worth not quite £7,000.  In addition there is her life interest in Tin Can Island, the land being worth about £86,000.  There is also an obvious disparity in their earning capacities at the present time. 

27. Mr Timothy Scott Q.C. responds by pointing out that the parties’ closest connection is with Nigeria and seen through the prism of the Nigerian judgment, and the way the wife presented her case there, the result is not unjust. 

The proper approach to this problem 
28. In their most helpful submissions, oral and written, both Mr Scott and Mr Dyer have taken us to the Law Commission Working Paper, Financial Relief after Foreign Divorce 1980 (No. 117) and to the authorities, most of which dealt with the first stage, the application for leave, and two authorities, albeit only at first instance, which dealt with the substantive application.  It is, in my view, useful to analyse that material to answer what seem to  me to be the pertinent questions for this appeal:

(1)  What is the proper scope and role of the application for leave and what is the essential difference between that application and the hearing of the substantive application? 
(2)  If, as I find to be necessary, one must give section 16 a purposive construction, what is the purpose to be served by this Act? 
(3)  What account should be taken, if any, of considerations of comity and the rules of forum conveniens? 
(4)  What guidance is there to assist in the determination of when it is “appropriate” to order financial relief? 

The first question: the permission stage and the difference with the substantive application
29. The Law Commission made plain that the application for leave was to act as a filter.  The object was to give the potential respondent adequate protection against having to present a strong defence at substantial cost particularly if (as would often be the case) he was resident abroad.  The intention was also to provide some measure of protection against the possibility of applications being used to exert improper pressure to settle in order to avoid the expense of contesting an application: see paragraph 2.2 of the Report. 

30. The rules were to prescribe and do prescribe how this application should be made and a deliberate feature of the rules, as envisaged by the Law Commission, was that the application be made ex parte.  That casts the burden on the applicant to give full and frank disclosure of all relevant matters.  The task of the judge is then to consider whether there is “substantial ground” for making the order (section 13(1)) which is undoubtedly a higher threshold than one operating in this Court where we grant permission to appeal if there is a real, that is to say, a realistic as opposed to a fanciful, prospect of success.  Although the hurdle is set somewhat higher, the judicial task remains essentially a quick impressionistic assessment of the merits bearing in mind the object of the exercise is to weed out the weak case.  I recall Lord Templeman in Spiliada Maritime Corp. v Cansulex Ltd [1987] A.C. 460 saying at 465:

“I hope … that submissions will be measured in hours not days.  An appeal will be rare and the appellate court slow to interfere.”

I would prefer to measure submissions in minutes not hours but otherwise endorse my Lord’s expectations – and admonitions. 

31. What I have found to be unsatisfactory is the apparent readiness of respondents to challenge the grant of leave instead of getting on with the substantive hearing.  Of course the ex parte order can be upset if there is a serious failure to give full and frank disclosure, but the practice of arguing the merits at this stage is almost invariably a complete waste of time and money.  Thorpe L.J. made the same point in Jordan v Jordan [1999] 2 FLR 1069, 1083:

“As my Lord, Simon Brown L.J. has pointed out, in the field of judicial review once leave is granted on an ex parte application, an attempt to discharge inter partes is much discouraged: see the Rules of the Supreme Court, Ord 53, R. 14(4) at p. 899 of the Supreme Court Practice.  It must be questioned whether the present practice in the Family Division does not lead to waste of costs. Rule 3.17 of the Family Proceedings Rules 1991 provides for the ex parte application where leave is sought under Part III.  A subsequent application to set aside is not specifically provided for under the rules but, in my experience, such applications have been commonplace.  There may be good arguments for moving at once to the inter partes hearing, which would test at once whether or not leave in principle is contested and assist the court to determine its substance.”

32. I would commend the Family Division to follow the practice of either the Administrative Court or this Court.  CPR 54.13 precludes a defendant applying to set aside an order giving permission to proceed to judicial review and any attempt to invoke the court’s inherent jurisdiction is discouraged and available only in a very plain case: see R. v Secretary of State for the Home Department ex p. Chinoy (1992) 4 Admin L. Rep. 457.  In this Court Jolly v Jay [2002] EWCA Civ 277 lays down these rules:

“44.  Accordingly, a respondent should only file submissions at this early stage [the application for permission to appeal] if they are addressed to the point that the appeal would not meet the relevant threshold test or tests, or if there is some material inaccuracy in the papers placed before the court.  By this phrase we mean an inaccuracy which might reasonably be expected to lead the court to grant permission when it would not have done so if it had received correct information on the point.

45.  If, on the other hand, the respondent wishes to advance submissions on the merits of the appeal (as opposed to the question whether it will pass the relatively low threshold tests for permission) the appropriate time for him to do so is at the appeal itself, if the matter gets that far.  In general it is not desirable that respondents should make submissions on the merits at the permission stage, because this may well lead to delay in dealing with the permission application and take up the resources of the appeal court unnecessarily.

46.  Respondents will not be prejudiced at the appeal itself by having refrained from filing or making submissions at the permission stage, since this is essentially a ‘without notice’ procedure.”

I place particular emphasis on that last sentence. 

33. As for the difference between the application for leave and the substantive application, this was admirably expressed in the Law Commission report at paragraph 2.5:

“The issue before the court on the hearing of an application for leave will be whether the applicant has established a substantial ground for the making of an application.  Essentially this will involve the court in estimating, on the basis of the applicant’s uncontroverted statements, his prospects of success in satisfying the court that it would be appropriate for an order for financial relief to be made.  The essential difference between the application for leave and the hearing of the substantive application will be two-fold.  First, on the application the court will normally only have one side of the story before it, and will have to proceed on the basis of the applicant’s evidence alone; on the hearing of the substantive application the court will hear both sides (unless the respondent decides not to attend).  Secondly, the burden on the applicant will inevitably be somewhat lower at the stage of the application for leave than will be the case on the hearing of the substantive application.  At the first stage the applicant will merely have to satisfy the court that there is ‘substantial ground’ for making the application; at the final stage he will have to satisfy the court that it is in all the circumstances appropriate that an order be made.”

34. There is, it seems to me, another potential danger in so fully arguing the merits in the attempt to set aside the grant of permission.  It may have been demonstrated in this case.  Bearing in mind that a necessary finding when considering the giving of leave is whether or not there are substantial grounds for concluding that it would be appropriate to order relief, then there is a risk that the trial judge will pay undue deference to the judgment which its status as no more than the grant of leave does not deserve.  Here Munby J. gave an admirably short and concise judgment after an apparently short but perfectly adequate hearing held without notice to the respondent.  Then came the attempt to set it aside.  This resulted in a long examination of the facts and law and a very full and thorough judgment.  Permission to appeal was refused on paper by Thorpe L.J.  The application was renewed and an oral hearing was held for over an hour culminating in judgments from each of Wall and Wilson L.JJ.  What should have been an ex parte order can (though wrongly) be seen as growing in stature as approval (or least no disapproval) is heaped upon it.  The danger is that the trial judge may think Q.E.D.

The second question: what is the purpose of this legislation?
35. The Law Commission report informs us of the mischief to be cured and the manner chosen to effect the cure.  The paradigm case in paragraph 1.2 of the report is one where no financial order is made in Ruritania.  The reform had to balance two different kinds of risk: first, conferring a power on the court without sufficient guidance as to the principles to be applied; secondly, the fact that:

Serious injustice might be caused to persons who reasonably assumed that the financial consequences of divorce had been conclusively regulated according the law of a foreign country if the other party was able to re-open the matter here – all the more so if the parties had very little or real connection with this country,” [paragraph 1.3 of the report, with emphasis added by me].

Hence it was decided to reject giving the court virtually unfettered discretion in favour of adopting “a more cautious approach”: paragraph 1.6.

36. In the Working Paper the Law Commission said this:

“48.  … the proposal should be concerned primarily to give a remedy in those exceptional cases where a spouse, usually the wife, has been deprived of financial relief in circumstances where an English court might be driven to hold that it would be unjust to recognise the foreign decree.  It follows that we consider the mischief at which the legislation should be aimed to be a narrow one.  We do not think, in the absence of any international consensus on the principles which should govern financial provision, that the English courts should be unnecessarily exposed the problems to which we have referred above."

A footnote then refers one back to paragraphs 22 – 26 which dealt with the risks of forum shopping [22], the problems arising when the wife was able to make her claim for financial relief in Ruritania and in fact did so – but either failed to obtain any order, or, as in the case before us, obtained an order which she thought was inadequate [24], the problems arising where conduct may preclude an order in favour of a ‘guilty’ party [25] and problems where there is no power to order capital provision[26].   Paragraph 48 continues:

In particular we do not think that it would be appropriate to encourage applications to the courts of this country inviting them to act, in effect, as a court of appeal from courts of another country.

“51.  ...  In the general formulation of the proposed discretion [to allow the application only when it is appropriate], we think that it should be made clear by express statutory provision that the object of the discretion is to provide for the “occasional hard case”.  We consider, therefore, that the court should be given the power to entertain an application … if in the light of all the circumstances of the case … the case would otherwise be one where serious injustice might arise.” 

The emphasis is added by me.

37. Thus we find that in the first case which came to the Court of Appeal, Holmes v Holmes [1989] 2 FLR 364, Purchas L.J. said at p. 373:

“… the purpose of this Act is generally apparent, namely, that it is there to remit hardships which have been experienced in the past in the presence of a failure in a foreign jurisdiction to afford appropriate financial relief.  The obvious cases are those jurisdictions where there simply are not any provisions to grant financial relief to wives or children or, maybe, husbands and children.  In such cases, although the dissolution of the marriage has taken place in a foreign jurisdiction according to foreign laws, then the courts in this country are empowered by Parliament to step in and fill the gap.  For my part I do not believe that the intention of Parliament in passing this Act was in any way to vest in the English courts any powers of review or even correction of orders made in a foreign forum by a competent court in which the whole matter has been examined in a way exactly equivalent to the examination which would have taken place if the application had been made in the first instance in the courts here.  That is not the object of this legislation at all.”

Dillon L.J. said at p. 374,

“I cannot think that it was intended that the English courts should be swift to assume jurisdiction wherever English legislation in respect of the making of financial provision for wives is in English eyes better than foreign legislation, or wherever better relief is available for wives here than abroad.” 

38. A decade later in Jordan v Jordan [1999] 2 FLR 1069, 1080, Thorpe L.J. said:

“Of course, the paradigm case creating the need for the legislation was the case where the decree of the foreign court was entitled to recognition in this jurisdiction but where that court did not offer any rights to financial provisions, either at all or, alternatively, on any basis comparable to the rights arising under the Matrimonial Causes Act 1973 in this jurisdiction.  The opening sentences of the Law Commission Report, Financial Relief after Foreign Divorce (Law Commissioners. No. 117) so states.  However, after Parliament had provided the remedies for the paradigm case, attempts were repeatedly made to extend the statutory provisions to obtain for the applicant some specific outcome or target which she had failed to achieve in the jurisdiction where the marriage had been dissolved.  Hence, Holmes v. Holmes and the subsequent cases are in the main restrictive and negative in conclusion, defining and policing the boundary between relieving hardship in the paradigm case and disqualifying the forum shopper for the applicant seeking a second bite of the cherry.”

39. I think one can say, therefore, that the purpose of the Act is to remit hardship in the exceptional case where serious injustice would otherwise be done.

The third question: what part do the considerations of comity and the rules of forum conveniens play?
40. I am in no doubt that comity between courts of competing jurisdiction has a significant influence on the way the decision has to be taken under Part III.  As Purchas L.J. held in Holmes v Holmes at p. 370:

“… that section [16] reflects the fundamental rule of comity as between competent courts dealing with matters of this kind.”

At p. 375, Dillon L.J. said:

“The law of New York as to financial relief for wives in matrimonial proceedings may not be the same as the law in this country.  But, to adapt the wording of Lord Goff of Chieveley in de Dampierre v de Dampierre at p. 13B, there is no basis for saying that justice would not be done if she is compelled to pursue her remedies for financial provision in the courts of New York according to the law of the State of New York.  The New York court is the natural forum for the resolution of disputes arising from the breakdown of this marriage.”

41. Thorpe J., as he then was, expressed the point eloquently in M v M (Financial Provision after Foreign Divorce) [1994] 1 FLR 399, 407:

“However these cases must not be decided on the basis of compassion for a seemingly disadvantaged mother. …

Wisely or unwisely she has pursued her financial rights in [the court at Versailles] to a very full extent.  The court at Versailles is a court of competent jurisdiction in one of our nearest neighbouring friendly states and the principles of comity require that I should recognise and respect its orders.  It is not for me to detect chauvinistically the benefits, advantages or superiorities in our system for determining financial claims over the system which has evolved in that neighbouring jurisdiction.  It offends common sense as well as principles of comity that any litigant should be free to start again from scratch in this jurisdiction, having taken financial claims to realistic conclusions within the French system.”

42. In Lamagni v Lamagni [1995] 2 FLR 452 Butler-Sloss L.J. held at p. 454:

“However, the major cases which have come before these courts since the implementation of the 1984 Act have been in relation to wives who have obtained orders in foreign courts which they have then felt to be inadequate and have come to the English courts for more generous orders.  Those applications have been, if I may respectfully say so, very properly dismissed in these courts, particularly on the ground that there should be no two bites at one cherry and a litigant has no right to go forum shopping and, having obtained one order in one jurisdiction, to try and obtain an order in another.”

43. Finally, in Jordan v Jordan Thorpe L.J. said at p. 1080:

“Again, as in every other application for leave under Part III, forum conveniens considerations come into play.  de Dampierre v de Dampierre establishes the importance of fixing the primary jurisdiction before competitive litigation in more than one jurisdiction has unnecessarily depleted available assets.  It is equally important to outlaw unnecessary competitive litigation after the primary jurisdiction, identified by common consent, has performed its essential function to divide assets and income.”

44. Reference has rightly been made to de Dampierre v de Dampierre [1988] 1 A.C. 92.  That case concerned French nationals who married in France but were living in London where the husband was involved in marketing the cognac produced on the family estate in France.  Later the wife opened a business in New York and began to reside there.  The husband commenced divorce proceedings in France and the wife filed a petition in London.  The appeal related to the husband’s application for a stay of the wife’s petition under section 5(6) and paragraph 9(1) of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973.  Lord Goff of Chieveley delivered the principal speech.  He concluded that although the language of paragraph 9(1) did not precisely echo the words used to describe the principle of forum non conveniens, nonetheless, since the latter principle is concerned to establish where the case can appropriately be tried “for the interests of the parties and for the ends of justice”, it was very difficult to conclude that the underlying purposes of that principle and of the statutory provision were materially different.  He said at p.110:

“The weight to be given to what has been called a ‘legitimate personal or juridical advantage’ was considered by your Lordships’ House in the Spiliada case [1987] A.C. 460, 482-484.  The conclusion there reached was that, having regard to the underlying principle, the court should not, as a general rule, be deterred from granting a stay of proceedings simply because the plaintiff in this country will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the appropriate forum overseas.  …  French matrimonial law contains provisions for ‘compensation’, which, unlike our own, place emphasis upon the question whether the breakdown of the marriage was due to the exclusive fault of one of the parties, providing (subject to an important exception) that a party so at fault is deprived of the right to an award of compensation.  Such an approach is no longer acceptable in this country, though it bears a close resemblance to the principles applicable here not so very long ago.  But it is evidently still acceptable in a highly civilised country with which this country has very close ties of friendship, not least nowadays through our common membership of the European Community; and I find it impossible to conclude that, objectively speaking, justice would not be done if the wife was compelled to pursue her remedy for financial provision under such a regime in the courts of a country which provide, most plainly, the natural forum for the resolution of this matrimonial dispute.”

45. In the Spiliada case Lord Goff said at p.482:

“ Now, as a general rule, I do not think that the court should be deterred from granting a stay of proceedings … simply because the plaintiff will be deprived of such an advantage [of damages awarded on a higher scale], provided that the court is satisfied that substantial justice will be done in the available appropriate forum.”

46. As I have set out at [7] above, the wife was refused an injunction to restrain the husband pursuing his Nigerian divorce by order of Ryder J. and although the husband did not pursue his claim for a stay of the English divorce proceedings, it would have been a surprise if Ryder J. had not acceded to it.  Given the length of time the parties had resided in Nigeria and had their last matrimonial home in that country, it is not likely that Ryder J. could have come to any other conclusion but that Nigeria was the natural and more appropriate forum for the trial of the divorce.  The real issue would be whether or not, objectively speaking, substantial justice could not be done to the wife in that court and as to that his finding was: 

“There is no evidence that substantial justice cannot be obtained by the wife in the Courts of Nigeria.”

47. I fully recognise that one cannot press the importance of comity and the forum conveniens rules too far.  The Law Commission at paragraph 27 of the Working Paper did not feel that one could achieve the aim of ascertaining “in a world of pure legal analysis” the “single system of law with  which the marriage was more closely connected than any other” so that that system could be regarded as the “proper law” of the marriage.  Nevertheless in a case like the one before us, it seems to me to be necessary for the sake of consistency to pay close regard to the interests of justice as they would have affected a stay and such interests of justice as would require the correction of the order then made by the foreign court.  It would surely need some compelling reason to conclude one day that the husband would be entitled to a stay of the English proceedings on the basis that “substantial justice” can be done in the “appropriate” forum (or that the wife would not be entitled to an anti-suit injunction), only to decide very soon afterwards that a “serious injustice” had been inflicted on the wife in the proceedings had been concluded by the court overseas in a perfectly regular way.   The ends of justice are not likely to have changed. 

The fourth question: when is it “appropriate” to order relief? 
48. I have already set out various catch-words and phrases.  From the Working Paper I note that the proposal should be concerned primarily to give a remedy “in those exceptional cases”, the “occasional hard case”, the one “where serious injustice might arise”.  In Holmes v Holmes Russell L.J. held at p. 375:

“Prima facie the order of the foreign court should prevail save in exceptional circumstances …  So far as it is possible, duplicity of proceedings should be avoided in this as in all other fields in the interests of the parties and their children as well as in the interests of justice and the comity of nations.”

49. In Hewitson v Hewitson [1995] Fam 100 (CA) at p. 244 Butler-Sloss L.J. agreed with that as she and the other members of the court did in Lamagni v Lamagni at p. 454, adding that “the test is a stringent one”. 

50. Mr Dyer submits that the essential exercise is to establish whether the foreign court has applied a division of capital and income which is “not comparable” to the way we would proceed under the Matrimonial Causes Act so that the order provides an unjust result.  I have difficulty with that submission.  In the first place I am of the view that he reads more into Thorpe L.J.’s observation in Jordan v Jordan at p. 1080, cited at [38] above where his paradigm case extended in the alternative to one where the foreign court did not offer a solution that was “on any basis comparable to the rights arising under the Matrimonial Causes Act 1973 in this jurisdiction”, with the emphasis as it was added by Longmore L.J. in the course of argument.  His reference to “on any basis” indicates that he intended a very wide comparative exercise to be undertaken.  As he said in M v M (Financial Provision) at p. 408:

“There can be no doubt that these are orders made in foreign forum by a competent court in which the whole matter has been examined in a way broadly equivalent to the examination which would have taken place if the application had been made in the first instance in a court here,” with emphasis now added by me.

51. In my judgment Mr Dyer hits the right note in asking whether the foreign order provides an unjust result.  The problem is, of course, that whether the result is unjust may depend upon which end of the telescope one is using to find the answer.  Injustice seen here for one side may be reflected by injustice as seen there for the other side.  Thus on viewing the matter solely through English eyes the award to this wife may be incomparably lower than it would have been had she been able to litigate her claims in this jurisdiction and to that extent it may be said that injustice is done to her.  On the other hand, “serious injustice”, which the Law Commission wished to avoid [paragraph 1.3 of the report, [34] above], might well be caused to the husband who was entitled reasonably to assume that the financial consequences of the divorce had been conclusively regulated according to the law of the proper forum for resolving the dispute.  The crucial question is, therefore, through whose eyes are we to conduct the search for the ends of justice?

52. In my judgment it would be wrong to focus simply upon a comparison between what the wife was awarded in Nigeria and what she would have been awarded had she been able to proceed with her ancillary relief claims in this jurisdiction. London is popularly perceived to be the divorce capital of the world because wives generally do much better here than elsewhere.  If mere disparity - even quite significant disparity - in the awards becomes the principal criterion for the exercise of the section 16 discretion then what was supposed to be the exception will soon become the rule as disaffected wives flee the less generous jurisdiction, and set up home here in order to embrace our notions of fair distribution of resources on divorce.  As I pointed out at [36] above, the Law Commission was reluctant to expose our courts to the problems arising from the applicant failing to get a larger award than she wanted or expected.  Whilst, therefore, disparity is an obvious factor to which to have regard, it should not be permitted to dominate. 

53. In my judgment the focus should rather be on whether, objectively speaking, substantial justice or injustice was done overseas, a fortiori when the foreign court was the appropriate forum for granting the divorce and regulating the financial consequences of the dissolution.  The gaze should primarily be directed to the foreign court to see whether it has treated the wife unjustly.  In that way there is symmetry between the rules relating to stays and anti-suit injunctions on the one hand and the exercise of jurisdiction under section 16 on the other.  It is through that prism that section 16 must be viewed in a case like the one before us.  Section 16(2) (a), (b) and (c) direct our attention to the countries with which the parties have their connection and (d), (e) and (f) to the orders made overseas.  Thus it seems to me that if the appropriate court makes an appropriate order that may well ordinarily satisfy this court that it is not appropriate to make a further order under Part III. 

Did Coleridge J. err?
54. The strictures of Lord Hoffmann in Piglowska v Piglowski [1999] 1 W.L.R. 1360, 1372 are emblazoned upon my heart:

“The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed.  This is particularly true of an unreserved judgment …  These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account.  This is particularly true when the matters in question are so well known as those specified in section 25(2).  An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

So I begin with the easy acknowledgement of the high regard in which Coleridge J. is universally held and of his vast experience in this field.  Paraphrasing Lord Hoffmann, one does not have to teach this old and ugly grandmother how to suck eggs. 

55. That caution is all the more necessary given the time constraint under which he delivered judgment in this case, although one has also to note that he was given the opportunity to explain his judgment further and did not feel it was necessary to do so.  He correctly identified the two issues: first, whether this is a case in which it is appropriate (in the sense of that word in section 16) for there to be any further provision; and, secondly, if so, what further provision there should be.  He summarised the respective cases as to section 16 but his whole judgment is encapsulated in one paragraph the gist of which is set out at paragraph [19] above.  He found that the parties have “a long-standing and real connection with the UK” for the historical reasons he gave and he noted the wife’s residence and “strong connections here”.  But that was all he referred to.  He then moved immediately to the conclusion that the wife had established that it was appropriate for the English court to intervene where she has been resident here since 1999 and where she would continue to make her main home.  It should however be borne in mind that, apart from his continuing to own property here, the husband’s connection was largely historical.  Moreover, the wife only re-established her connection after the separation and there was some ambivalence about the way she presented her case in Nigeria. 

56. The remarkable aspect of the judgment is that although early in his recitation of the facts the judge did observe that:

“Both parties are Nigerian, although they took British citizenship in 1972.  They were married for 32 years and spent most of their married life in Nigeria. They lived part of their lives, though less time, in the UK”,

he did not refer to their connection with Nigeria when dealing with section 16.  Mr. Dyer rightly points to the fact that the judge had this in mind as part of the history but I cannot be certain, even after re-reading Lord Hoffmann’s warning, that the judge did have regard to those matters as a relevant factor under section 16.  The whole purpose of sub-section (2) (a), (b) and (c) of section 16 is to try to identify which court has the closest and most appropriate connection to the parties.  This as an essential balance to strike.  The connection with the divorce court is, therefore, a factor which merits particular mention.  It is a more weighty factor than the connection the parties have with England and Wales.  I say that because although some tenable connection with England and Wales must be shown to prevent blatant forum shopping, the connection with Nigeria is important for its establishing that country as the natural and appropriate forum to deal with the divorce. 

57. Nowhere in his judgment does Coleridge J. address the need for respect and deference to be paid to the Nigerian court, that “fundamental rule of comity as between competent courts dealing with matters of this kind”, per Purchas L.J. in Holmes cited at [40] above.  Comity between this jurisdiction and a Commonwealth jurisdiction which has largely embraced our traditions is an important factor in this case.  I have already addressed the oddity that would arise through the English proceedings being liable to be stayed but the wife then immediately circumventing the practical consequence of the stay by being allowed to claim financial relief under Part III.  Unfortunately this is an aspect of the case which Coleridge J. did not address.  Without addressing it we cannot know why he considered the wife’s connection with England and Wales to be crucial or why he decided as he did.  We need to understand his reasoning because, to repeat Thorpe J. in  M v M, as set out at [41] above:

“It offends common sense as well as principles of comity that any litigant should be free to start again from scratch in this jurisdiction, having taken financial claims to realistic conclusions within the French system.”

58. Nor did he expressly address sub-section (2) (d), (e) and (f), the financial relief she obtained by participating in the proceedings in Nigeria where she was awarded a lump sum on the basis of the case she presented, namely an award of maintenance “for her life” as if it would be lived in Nigeria but with “trips to England”.  That may well have been at odds with other aspects of her case but it is impossible to say that her case was so badly misunderstood by her counsel, or by the judge, that the proceedings there were tainted with injustice.  She claimed an interest in property on grounds which, had they been presented here, would have failed as they did in Nigeria.  Having directed herself that she had an unfettered discretion to make such orders as were “just and equitable”, Nicol-Clay J. decided that justice demanded that the Lagos property be settled on her but that the husband should retain his London properties.  So she was awarded a place to live for her life and a capital sum for her life.  She got essentially much of what she asked for.  Can it be said, objectively speaking, that a serious injustice was done to her in Nigeria?  I think not.

59. It is not enough, in my judgment, to find (if indeed Coleridge J. did so find) that a serious injustice was done to the wife in Nigeria simply because there is no power to make a transfer of property order there.   As Thorpe J. observed in M v M (see [41] above), “these cases must not be decided on the basis of compassion for a seemingly disadvantaged” wife and “it is not for me to detect chauvinistically benefits, advantages, or superiorities in our system for determining financial claims over the system which has evolved in that neighbouring jurisdiction”.

60. Nor is it in accord with the purpose of this section for this court to sit on appeal from the judgment of the foreign court, see paragraph 48 of the Working Paper set out at [36] above.  Yet that is effectively what Coleridge J. has done.  For wholly understandable pragmatic reasons he tore up part of the Nigerian order, effectively unscrambled the omelette and set out about making a wholly different provision in respect of Tin Can Island.  With respect to him, he erred in principle in doing so. 

61. He did recognise that “a second bite of the cherry is permissible only in exceptional cases” but he did not give reasons why this was such an exceptional case.  If the inadequacy of the provision was the reason for treating this case as sufficiently out of the ordinary, then the reasoning is sub silentio and we have to guess it.  In any event, disparity of award does not of itself make this an “occasional hard case” for the reasons I explained at [50] and [52] above. 

62. The fact that the judge dealt so cursorily with section 16 satisfies me that he failed to have regard to other relevant and important matters and he has, therefore, erred in law.  The inescapable conclusion is that he fell into the trap laid for him in the way the proceedings had been conducted inter partes before Munby J. leading to his lengthy judgment and the (proper) refusal to permit an appeal against it.  Munby J., Thorpe, Wall and Wilson L.JJ. constitute by any standards a formidable quartet of unrivalled experience and expertise.  Scorn can be heaped on those who march out of step with them.  Coleridge J. duly paid his tribute to Munby J.’s judgment, relied upon it for the facts set out and the law, and, what worries me, added, “It is important to note that the Court of Appeal upheld this order and its conclusion that there was a very significant risk of real hardship if the court refused to make any provision for this wife and that it would be draconian to shut her out.” As I have observed, this virtually amounts to quod erat demonstrandum.

63.  I do not blame him for taking the result virtually for granted, but, alas, and with great respect for  a good judge, I fear Homer has nodded. His error is that he did not explain why the case hinged on the parties’ connection with England, why the connection with Nigeria was not the more important factor, why the Nigerian proceedings did not command full deference for reasons of comity and why no substantial injustice was done to the wife in Nigeria and why it would be done to the husband if, within months of the conclusion of those proceedings he were to be forced to litigate the matters afresh in this jurisdiction notwithstanding our earlier acceptance of Nigeria as the appropriate forum for the resolution of these parties’ divorce and ancillary relief claims.  I would, therefore, grant permission to appeal and allow the appeal.

64. Enough time and money has been spent on this litigation not to send the matter back: we are fully apprised of the facts and can exercise our own discretion. For reasons that must by now be plain, I find the parties have more significant connection with Nigeria than with England; that Nigeria, not England, is the natural and appropriate forum for the resolution of the wife’s claims; that no substantial injustice was done to her in Nigeria notwithstanding the absence of a power to transfer the Tin Can Island property to her; that although it is plain that she will suffer real hardship in this jurisdiction having exhausted the lump sum designed to provide for her sustenance in Nigeria (as she asked for it there), comity commands respect for the overseas orders and it would, therefore, not be appropriate to grant her even another nibble at the cherry.  I know the result is harsh: I do feel very sorry for her in the parlous plight in which she finds herself.  Sadly compassion is not the test.  Her claim for relief under Part III must be dismissed.     

Lord Justice Longmore:
65. In Jordan v Jordan [2000] 1 WLR 210, 219F Thorpe LJ laid down the test for granting leave for an application to be made under the 1984 Act as being that the foreign court “did not offer any rights to financial provisions, either at all or, alternatively, on any basis comparable to the rights arising under the Matrimonial Causes Act 1973”.  (This quotation appears more accurately in the Official Report than in the Family Law Reports to which we were referred).  One therefore has to ask whether the Matrimonial Causes Act 1990 of Nigeria offered the wife rights which were on any basis comparable to section 24 of the English Act 1973.  My Lord has set out the provisions and I do not need to repeat them.  I agree with him that the provisions are broadly comparable.  It is true that there is in Nigeria no provision enabling an outright transfer to be made as per s. 24(1)(a) of our 1973 Act but, in section 72 of the Nigerian Act, only a provision enabling the court to order “a settlement” of property belonging to one spouse or the other.  A life interest can therefore be conferred as per s. 24(1)(b) of our 1973 Act.  The provisions are in my view, broadly comparable and not “on any basis” incomparable to those of the 1973 Act.  I do not, therefore, think it can be said that there is no comparable equivalent of our Act and I agree that this appeal must be allowed.

Procedure
66. I must, however, like Ward LJ, express my disenchantment with the procedure adopted in this case.  The wife applied for leave to apply for relief on 28th September 2005 without notice to the husband.  Munby J granted that application in a fairly short judgment on 24th November 2005.  The husband then applied (as he was apparently entitled to do) to discharge the leave so granted.  That application could not be heard until 17th November 2006 (nearly a year later) but fortunately it could be heard by Munby J who was required by an earlier order of Charles J to devote a full day to the hearing after which it was necessary for him to reserve judgment until 18th December.  He then produced a masterly 64 paragraph consideration of the case concluding, in form merely that the wife’s case (that it was an appropriate application to make to the English court) was arguable, but in reality disclosing his view that the disparity between what the wife had been awarded in Nigeria and what she would have been awarded by the English court was so great that it was appropriate for her to apply to an English judge and that her application might well succeed.  The husband then treated himself to an application for permission to appeal not only on the papers but then on renewal to two members of this court who both delivered careful judgments on 15th June 2007.

67. That was all only preliminary because the actual decision was still to come.  Not surprisingly Coleridge J treated the critical question of whether it was appropriate for the English court to make an order extremely briefly.  He naturally thought that the parties would scarcely thank him for revisiting at greater length the issues Munby J had taken 64 paragraphs to resolve in 2006 and the Court of Appeal 6 closely typed pages in 2007.  But this enabled Mr Scott for the husband to submit that the judge who actually had to decide the matter had dealt with the matter so cursorily that he had not carefully considered the matters which the Act required the judge to consider in section 16; it is indeed true that it is difficult to find in the judgment any detailed consideration of factors (b) and (f) which are of considerable importance to the outcome of this case.

68. One can only say that this is extremely luxurious litigation and alarmingly so if (as in the wife’s case) it is all done at public expense.  It is also strikingly different to the procedure adopted on judicial review applications to the Administrative Court or applications for permission to appeal to this Court.  In both these spheres, applications to discharge permission to move for judicial review or permission to appeal (granted, as they will have been, on without notice applications) are strongly discouraged and are usually only granted if it can be shown that the court has acted in ignorance of some statute or binding judicial decision, see R v Home Secretary ex parte Chinoy (1992) 4 Admin L Rep 457 for the practice before CPR 54.13 came into effect and the cases collected in para. 52.9.2 on page 1410 of the 2008 White Book.  That, in my view, should also be the practice of the Family Division in operating the requirement for leave to apply to the court to make an application under the 1984 Act.  I would suggest that the Clerk of the Rules should not list any application to discharge permission given (without notice) to make an application to the kind here in issue for any more than 20 minutes and that any application for a longer time listing should be supported by a written explanation from counsel and be put before a Judge of that Division before any longer listing is given.  The concerns of Thorpe LJ in Jordan at page 222 C-E seem to have been ignored and it is time that some action be taken.

69. It was suggested by Mr Scott and Mr Dyer that the procedure adopted in this case was the result of the provisions of the Act and the rules made pursuant to the Act and this could not be changed by judicial decision.  I would not accept that.  The practices of the Administrative Court and this Court have developed by judicial decision; the practice in the Family Division can and should be developed likewise.

Lord Justice Jackson:
70. I agree with both judgments.