England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(His Honour Judge Corrie)

		Royal Courts of Justice Strand London WC2 Thursday 20th December, 2001

1. LORD JUSTICE WARD: This is an application for permission to appeal against the grant of a decree nisi of divorce by His Honour Judge Corrie in the Oxford County Court on 25th September 2001 and against the order of costs he ordered the respondent to pay.
2. The application is made by the husband, Dr Anya. He is Nigerian. His wife is Romanian. They married on 9th April 1983 and have two children: C, who is a boy now 17, and I, their second son, who will be 14 next month.
3. The wife filed a petition last year, but that did not proceed. The parties have had their difficulties and have reconciled. But the petition which leads to this hearing is one which was issued by the wife on 5th March 2001. She alleges that the marriage has broken down irretrievably because the respondent has behaved in such a way that she cannot reasonably be expected to live with him. She complains that the marriage has been characterised by threats and violence by the respondent to her, beginning very early on in the marriage when they were in Glasgow. She complains that the husband is a bully, who bullies her and the children. She complains specifically that there were some unfortunate instances of trouble between father and the elder boy. She complains generally of his controlling her, showing no affection or communication or trust.
4. The husband filed an answer, but filed no cross-petition. In essence the judge accepted the wife's evidence and rejected his, not without criticism of the wife, but essentially finding that the matters were proved.
5. Dr Anya seeks permission to appeal alleging that the judge was biased. This is a ground not in his written grounds of appeal. The bias arises from such matters as his asking the husband why the matter to be defended, since nobody defended divorces anymore. As I pointed out, I would be surprised if there was a judge in the country who did not make that comment. For whether one likes it not, whether it is a sign of good moral standing in the country or not, the fact is that defended divorces are a rarity.
6. The judge asked why there was no answer. I pointed out that that might have been because he was anxious to do justice to the husband's case. He found, for example, that she was as volatile as he was, that at times she gave as much as she took. It may be that the judge would have been inclined to grant him a decree nisi on the grounds of her unreasonable behaviour had he the cross-petition before him to do so. He complains that the judge generally took against him.
7. Allied with this is a complaint in the written grounds that the judge failed to observe the proper burden of proof which lay at all times on the petitioner; in that, for example, he rejected the husband's allegations by saying that all he could put before him was a bare denial. I see no justification in that for finding either bias or for finding a hint of bias. I do not see that the judge, reading his judgment as a whole, as I have done carefully, comes anywhere close to not discharging the correct burden of proof. He itemised the incidents. He took one account and the other, and he made up his mind which account he preferred.
8. There is a complaint about unsatisfactory work done by the husband's legal team. That is not a satisfactory ground of appeal. Unless something extremely dramatic has gone wrong, failures to cross-examine him well or re-examine him well, for example on his affection for his wife, is miles short of what needs to be established.
9. There is a complaint about witnesses not being called. That was a matter for counsel to put before the judge. I can see no ground for thinking there has been any miscarriage of justice arising out of that.
10. There is a complaint that the police reports did not fully justify the support that the wife was seeking to put upon them. That was a matter for the judge. In essence, that is the difficulty in this appeal.
11. The judge heard the evidence and made up his mind, as it was his duty to do. The harsh reality is - and it is uncomfortable to say this to Dr Anya, who is a respectable man - that in this instance the judge believed the wife and did not believe him. Given that unhappy state of affairs, the judge was bound to grant the decree. I need not give examples of that. Perhaps paragraph 17 is as good an indication as any. The judge said:

"The father, the husband, in my judgment is a controlling and intemperate man with a short fuse, inflexible, who always expects to get his own way. At times he resorts to violence. The mother, volatile as he is, has been on some occasions, although not an instigator of violence, a reactor to it and as she frankly admitted, and that admission did her credit so far as the court was concerned, on the occasions when she has struck her husband about a quarter, she said, had been by way of retaliation, that is to say, going over the border from self-defence, and the rest self-defence."

12. There the judge seems to me to be thoroughly even-handed in judging this unhappy couple.
13. In the result, he had no hesitation in accepting the wife's evidence and rejecting that of the husband with regard to the first incidents where violence was alleged in Glasgow in 1987. The incident in January 1992 is another where the judge found that the husband had flown into a furious rage and beat the wife about the head and face with his clenched fist. His denial was found to be "wholly unconvincing". There was an unhappy incident with C. The judge found that:

"... I have no hesitation in concluding that the father provoked this incident by virtue of the characteristics I have found him to possess."

14. At paragraph 44:

"So I have therefore concluded that the wife's version of events in her particulars of behaviour are true and that the respondent's explanations for these various events is not satisfactory and does not persuade me."

15. That is an example said to contain the misapplication of the burden of proof. On the contrary, it is a conclusion that he believes one and cannot believe the other.
16. So the unhappy fact that Dr Anya has to face is that the judge made findings of fact against him. In this court it is impossible to appeal against those findings where the judge has seen the witnesses, judged their demeanour and had an advantage which the Court of Appeal can never have in deciding which one of them was telling the truth. I am afraid the appeal is utterly hopeless and I refuse permission to appeal the decree nisi.
17. When the judge came to deal with costs, this was a matter well within his discretion. He would have been entitled to treat a defended divorce as a class of litigation where costs would ordinarily follow the event. The rule in family cases that costs do not follow that rule is usually confined to aspects relating to the children, not to the divorce, nor necessarily to money. However, the judge went beyond that. He looked at CPR 44. He took the factors into account. He exercised his discretion and there is nothing there to suggest he was plainly wrong. On the contrary, it was plainly right that he should order the costs of this defended divorce to be paid by the husband.
18. Consequently, I dismiss his applications.
ORDER: Applications for permission to appeal and an extension of time refused. (Order not part of approved judgment) ____________________