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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Otobo v Otobo [2001] EWCA Civ 1200 (18 July 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1200.html
Cite as: [2001] EWCA Civ 1200
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Justice Johnson)
Strand London WC2 Wednesday, 18th July 2001 |
||
B e f o r e :
____________________
| FRANCISCA NWANNEKA OTOBO | ||
| Applicant | ||
| - v - | ||
| GUY EBOE OTOBO | ||
| Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
appeared on behalf of the Respondent.
____________________
Crown Copyright ©
- LORD JUSTICE THORPE: This is an application by Francisca Otobo for permission to appeal a stay imposed by Johnson J on 29th March 2001 on proceedings brought in this jurisdiction for dissolution and financial relief. I directed on paper that the application should be the subject of an oral hearing with the appeal to follow if permission were granted. That order was varied on the application of Mr Seabrook. This morning I consider only the question of whether Mrs Otobo has demonstrated a valid application for permission.
- It is not an easy decision to reach, in part because since the case was last before me Mrs Otobo has lost representation, for the very good reason that she can no longer fund her lawyers. She has this morning made a plea in supplement to a professional skeleton argument that was lodged on 16th May by Mr Ullsteinn QC and Miss Hussey prior to their withdrawal. For Chief Otobo, Miss Parker and Mr Sanders have filed a full skeleton argument dated 16th July.
- There is much to be said in resisting this application, and it has all been comprehensively rehearsed in that skeleton. Obviously this was a discretionary decision by an experienced judge, obviously this is a family that is Nigerian of origin and plainly there are nuances within the issues brought before the court that would be better understood, or differently understood, by a judge in Nigeria. Against that, there is the fact that the wife's proceedings were plainly well-established before the husband set up his competitive challenge, and there is the fact that it is only in this year that he has chosen to deploy issues within the litigation that might be likened to the deployment of battalions of infantry sent over the line in an endeavour to crush or exterminate the other side.
- I have a fundamental misgiving that there is within this history a calculated strategy which is designed to defeat Mrs Otobo's reasonable expectation of a civilised judicial determination either by exhaustion or by inequality of arms. She has this morning in her oral submissions pleaded the fundamental unfairness of bringing to a conclusion proceedings properly brought in this jurisdiction (in which she has invested and exhausted all her funds) and requiring her to litigate anew in a jurisdiction which, albeit the jurisdiction of her origin, is a jurisdiction in which she has no home, no funds and no comparable power or influence to Chief Otobo. That factor is certainly not weighed by the judge as clearly and as specifically as it might have been, and I have reached the narrow conclusion that Mrs Otobo has shown enough this morning to justify the consideration of the full court having the opportunity to consider all the relevant documentation. Obviously, for the purposes of this hearing I have not had the opportunity or the time to consider all of the material which has been very helpfully assembled by Mr Rutter in his bundle, which now runs to some 276 pages.
- The first thing that I do is to grant permission. I have already directed that the appeal will be heard, if possible, in the week commencing 30th July, but that provisional direction will have to be reviewed in the light of the time estimates that will shortly be sought. I will require Mrs Otobo to file, within the next seven days, a supplemental skeleton argument in which she sets out in her own words the submissions that she has made to me this morning. I also require her in that supplemental skeleton to set out the factual information as to the extent to which she has funded her lawyers in Lagos to date. I will invite the office lawyer to communicate with her former solicitors, asking them to make a brief report to this court as to her current costs position vis a vis them, and I will ask them to be kind enough to break down their bill as between costs in the suit, costs in the ancillary relief and costs in the issues as to jurisdiction and stay. I will invite Miss Parker to submit a similar breakdown on her side in due course.
- As far as I am concerned, Miss Parker's skeleton in relation to the application for permission may stand as her skeleton in relation to the appeal, unless she chooses to extend or amend it.
- MISS PARKER: It will not be me: Mr Seabrook will be presenting the opposition to this.
- LORD JUSTICE THORPE: Lastly, I will invite the office lawyer to write a letter to Mrs Otobo asking for her written confirmation that she will submit to the Court of Appeal ADR scheme; and I will request a similar letter to go to Chief Otobo's solicitor in London, Mr Rutter, asking him for swift response to an invitation himself to submit to the Court of Appeal's ADR scheme. If Mrs Otobo confirms her acceptance, as it is clear that she will, and if Chief Otobo accepts the invitation that goes to him, then the appeal will be stood out until the mediation process has been completed.
- In that regard, I would like to urge Chief Otobo and Mrs Otobo to give profound consideration to the wisdom of at least endeavouring mediation before continuing these extremely elaborate and extremely expensive proceedings. In the end we must in the family justice system always strive for reality and for pragmatism. This is a husband and wife who married many years ago, and Mrs Otobo was Chief Otobo's first chosen wife. She has borne him four children, all of whom seem to be a great credit to both parents. The youngest of those children is at a very vulnerable adolescent stage of life in an English boarding school. I would hope that the parents would consider the obvious risk of damage to that youngest child if these contested proceedings between the parents continue to rage. I would also ask both parents to recognise that in the end there is a fundamental obligation, both moral and legal, on Chief Otobo to make reasonable financial provision for his first chosen wife.
- Ultimately, when all the legal manoeuvring is done, the single issue in the case is what financial provision should be made for Mrs Otobo. It borders on the absurd for this couple at this stage of their lives to spend hundreds of thousands of pounds of pounds on lawyers, ventilating arcane issues as to whether the original marriage was statutory or customary and whether a London decree would be afforded legal recognition in Nigeria. All the money poured into the litigation of those esoteric issues would be infinitely better spent on providing for Mrs Otobo's future now that her marriage has sadly broken down. That is so obvious a reality that it can surely escape nobody.
- I will ask the shorthand writer whether she would be kind enough to prepare a transcript of this short judgment expeditiously. I will correct it expeditiously, and that will enable Mr Rutter to convey it to Chief Otobo so that he can give proper consideration to the invitation that comes from this court to consider the obvious good sense of mediation before this war of attrition is progressed further.
Wednesday, 18th July 2001