Case No: B4/2007/0727
Neutral Citation Number: [2007] EWCA Civ 681
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION 
(MR JUSTICE MUNBY)
(LOWER COURT No. FD05F01009)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 15 June 2007
Before:

LORD JUSTICE WALL
and
LORD JUSTICE WILSON

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Between:

	OLUSA AKINNOYE-AGBAJE	Applicant	
	
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SIKIRAT ABENI AKINNOYE-AGBAJE	
Respondent	

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(DAR Transcript of 
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Mr T Scott QC (instructed by Messrs Tucker Turner Kingsley Wood & Co) appeared on behalf of the Applicant “husband”.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Wall:
1.	For Mr Olusola Akinnoye‑Agbaje (“the husband”), Mr Timothy Scott QC renews an application for permission to appeal against an order made by Munby J in proceedings under Part III of the Matrimonial Proceedings and Property Act 1984.  Permission to appeal was refused by Thorpe LJ on the papers on 14 May 2007, but he directed that in the event of a subsequent renewal of the application it should be heard by two Lords Justices.  The renewed application has plainly been brought into the list promptly, because there is a hearing for ancillary relief under the judge’s order due to be heard in July.  
2.	I find the essential procedural background to this case somewhat troubling in English terms.  It was as long ago as 28 September 2005 that Mrs Sikirat Abeni Akinnoye‑Agbaje (“the wife”) made her application for leave to apply to the court for financial relief under Part III of the 1984 Act.  In accordance with the procedure laid down under the rules, that application was initially heard by Munby J without notice to the husband on 24 November 2005.  We have in our papers the judgment the judge gave on that occasion and indeed the argument addressed to him.  He granted leave and the wife duly issued her application claiming ancillary relief on 8 February 2006.  Unsurprisingly on 27 April 2006 the husband applied to set aside the judge’s order granting leave and that application was not heard by the judge until 17 November 2006 when he reserved judgment, a judgment which he handed down on 18 December.
3.	However, that judgment did not deal with the question of costs, although it refused the husband’s application to set aside the grant of leave and of course it is against that refusal which the husband now seeks permission to appeal.  The additional delay appears to have been because the judge in December invited counsel to draw up an order reflecting his decision and, as I said a moment ago, did not deal with the question of costs.  He gave a separate judgment on costs on 16 March and this is the date which the judge’s order bears.  The appellant’s notice was filed on 11 April but no point arises on that because the judge had extended the time in which the husband was given to file his appellant’s notice.  
4.	These parties were formerly husband and wife and the essential case advanced by the husband on the application is that the parties’ financial affairs post-separation have been the subject of a full and extensive hearing in the High Court of Nigeria, which is the country from which both parties originate and of which they remain citizens, although they are also subjects of the United Kingdom.  Mr Scott argues therefore that leave should be set aside because what the wife is essentially trying to do, in the trite but nonetheless accurate phrase, is to have “a second bite of the cherry”.  That, says Mr Scott, is not the purpose of Part III of the 1984 Act and the court should not accordingly permit her to do so.
5.	The judge did not agree, nor did Thorpe LJ.  It is therefore necessary in the light of Mr Scott’s renewed application to re‑examine the background but I can do so relatively briefly because Mr Scott in my view properly accepts that the judge analysed the law correctly.  Mr Scott’s complaint is that it is his application of the law to the particular facts of this case which has led him astray and led him to make an order which Mr Scott submits is plainly wrong or, at the lowest, arguably plainly wrong.  Mr Scott thus asserts that an appeal would have a reasonable prospect of success and he further asserts a point, which he has elaborated in argument this morning, that there is a further compelling reason why this court should entertain the appeal: it is because Munby J gave permission for his judgment to be reported and Mr Scott submits that if that is so, the judgment is likely both to become a precedent and to add additional weight to the argument advanced in some quarters (a point Mr Scott makes in his supplementary note) that England and Wales have become in his phrase, “the divorce capital of the world”.  That factor, he says, “gives additional urgency to the appeal” and is a further reason why we should permit the appeal to proceed.
6.	Mr Scott has produced a lengthy, and if I may say so, highly scholarly skeleton argument supplemented by a further note which followed Thorpe LJ’s refusal of permission.  I can I think therefore go to the judgment of the judge although I will be relatively brief, as I say, in my summary of the background.  What stands out from the facts in this case is that these parties are not in the first flush of youth.  The husband is now 70 and the wife I think 65.  The husband was born in 1937, the wife in 1941.  In paragraph 4 of his judgment the judge begins his summary of the background by recording that they were married in England, where they had met as students, but returned to Nigeria in 1973 after both having been granted British citizenship.  His finding was, however, that they had kept up the connection with this country, owning property in London in which the wife is now living, and returning to England from time to time during the course of the marriage.  There are four adult children of the marriage born respectively in 1967, 1969, 1973 and 1980.  The separation was in 1999 and so on any view this was a marriage in excess of 30 years’ duration.  The husband is a professional man.  He is a barrister in Nigeria.  The wife, who is living in England, describes herself as retired, although taking certain occasional work as a carer at a modest hourly rate.  The judge then identified the property which existed both in England and in Nigeria, and of particular relevance to this case are two properties in or near London; one in North London and one in Barnet, where the wife currently resides.  Those properties are both in the husband’s name and they were subject to an application in the Nigerian proceedings to which I shall come in just a moment.
7.	The position was that after the breakdown of the marriage the husband took proceedings in Nigeria for divorce.  The wife countered with proceedings in England.  The Nigeria proceedings took priority and continued and the husband in due course obtained a decree of divorce in Nigeria.  In the course of the Nigerian proceedings the judge, as is apparently customary, dealt with not only the divorce but ancillary relief and she conducted a review of all the parties’ respective assets.  There was no expert evidence before the judge and we have no expert evidence in relation to Nigerian law, but it is in my judgment significant that in relation to the two English properties, which the wife was anxious to have dealt with by an English rather than Nigerian court, the judge found in terms that the justice of the matter required that they should remain in the name of the husband.  The wife had testified that there was a mortgage on one property; the petitioner -- that is the husband -- was still maintaining one of the properties and the husband had told the judge that he had bought one for his daughter and the other as a transit home for his children.  It had never been a matrimonial home.  The documents were in his name and as the Nigerian judge put it:
“The Respondent [that is the wife] failed to prove by evidence her contributions towards their acquisition, the claims in respect of those two properties are refused and dismissed.”
8.	The outcome of the Nigerian proceedings was accordingly that the wife received the settlement of one Nigerian property on her, an (in English terms) modest lump sum by way of capitalisation of periodical payments; and the judge refused her any interest in or control over the English properties.  Mr Scott makes the point which in my view he is entitled to make, that as far as the lump sum is concerned the wife was only asking for a relatively modest increase in the sum that was in fact awarded to her.  He submits that the Nigerian proceedings were accordingly a full and complete rehearsal of the parties’ financial affairs; that the wife has had her hearing; she has had her award; that the result is one by which she is effectively bound.  
9.	What strikes the matter from an English eye, applying section 13 of the Act, is the fact as I put to Mr Scott in the course of argument: that what we have in this case is a wife who after 30 years of marriage is effectively living in a property which is owned by her husband and in relation to which she has had to retain her occupation by means of application to the English court for an occupation order.  Mr Scott frankly accepts that the husband’s case in these proceedings, if they continue, is that she should at the conclusion of the proceedings, when the occupation order comes to an end, vacate the property in which she is currently living and return to live in Nigeria in the property which has been settled on her.
10.	I have to say that to an English eye, the fact that the Nigerian court did not deal with the English properties, or rather dealt with them in the way that it did and left the wife therefore in England living in a property over which she has no interest or control after 30-odd years of marriage to a professional man, is striking.  But the only question for us and indeed the only question for the judge was whether or not in the circumstances of the case section 13(1) applied.  That subsection reads:
“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 I emphasise the following words] 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.”
11.	I stress and emphasise that that is the only question which is to be considered.  Munby J examined the three Court of Appeal authorities which applied to Part III of the Act and, as Mr Scott accepts, extracted the law from those cases appropriately.  The essence of his judgment, it seems to me, is contained in paragraph 59 and 60 of the judgment itself:
“At the end of the day the real issue seems to me to be the same as it was when this case was first before me.  To paraphrase what I said in my earlier judgment: Is this in truth simply a case where a wife is seeking to have a second bite at the cherry following proceedings in a foreign country which, although not satisfactory from her point of view, and although not as generous from her point of view as comparable proceedings would be in this country, were nevertheless appropriately conducted and which led to a financial order in her favour which can be and has been implemented?  Or is it, on the other hand, a case where the circumstances are sufficiently exceptional (using the word in the sense in which it was used by Russell LJ) that, notwithstanding the making of a significant order in her favour by the foreign court, it is nonetheless proper to enable her to pursue a second application in this country?
“In my judgement, this case falls into the latter category.  What is, in my judgment, the very considerable discrepancy indeed between the aggregate value of what this court would consider to be the relevant matrimonial assets (some of the most valuable being located in this country) and the very modest amount of the provision made for this wife following a marriage of, I emphasise, 32 years, justifies the conclusion that there is, within the meaning of section 13(1) of the Act, substantial ground for her making this application,  If I deny her relief she will suffer hardship -- in my judgment very serious hardship indeed -- being faced, in all probability, with the unenviable choice of either remaining, homeless, in this country, where she is now based and where she wants to stay, or returning to Nigeria.”
12.	It is clear to me from those two paragraphs that the judge was appropriately applying the law and was entitled as a matter of law to come to the conclusion that this case fell into the latter category; that is, a category which was “… sufficiently exceptional (using the word in the sense it was used by Russell LJ) that, notwithstanding the making of a significant order in her favour by the foreign court, it was nonetheless proper to enable her to pursue a second application in this country”.  In my judgment, as an application of the law to the facts of that case, that is a proposition which cannot seriously be challenged -- certainly could not in this court, in my view, to be said to be plainly wrong.  It is on the face of it, as I indicated a moment ago, an unattractive proposition for a professional man to be saying that his wife should effectively be homeless in this country and be required to live in Nigeria, but I am making this as clear as I possibly can and as I made clear to Mr Scott in argument we are not deciding the merits of this case.  
13.	The judge, having heard full argument limited the wife’s claim to the question of the English properties, the question of a lump sum and periodical payments, took the view the matter could be dealt with within one day and he deliberately limited the nature of the evidence which was to be called and in particular refused to countenance any further investigation in or valuation of Nigerian properties.  It is plain, therefore, to me that the judge has indicated a relatively narrow band of investigation and I do not accept the submission that he has given the wife carte blanche to re‑open the entire Nigerian proceedings.  He plainly has not.  As I indicated a moment ago, and I repeat: what the result of the case will be in July I simply do not know.  All the arguments open to Mr Scott and deployed in his skeleton argument will be available to him in the hearing before the judge in July.  The simple question for this court is whether the judge can reasonably be said as a matter of law to have made an error; whether an appeal against that order would have any reasonable prospect of success; and therefore whether we should allow this case to go forward.
14.	In my judgment the judge cannot be so criticised.  The judge was entitled in my view to come to the conclusion which he did, that there were substantial grounds for the making of an application on the facts of this particular case.  I do not see this case as in any way opening the flood gates; I simply see it as a simple case in which a judge has applied the law to the particular facts.  I fully understand the husband’s complaints about the cost and about the delay but there are I think a number of answers to that, not least of which there is still time before July for the parties to enter into sensible discussions to resolve this issue if they feel able to do so.  Were we to give permission to appeal the July hearing would undoubtedly be lost, and there would be additional cost and additional delay were the husband ultimately to lose the appeal.  
15.	So as I have already indicated, without saying anything at all about what is or is not likely to happen in July, in my judgment Munby J’s application of the law to the facts of this particular case is not such as to give rise to a reasonable prospect of success in any appeal, and speaking for myself I would therefore refuse this application for permission.
Lord Justice Wilson: 
16.	I entirely agree.  There has been enough skirmishing as to preliminaries.  Between November 2005 and March 2007 Munby J was directing himself to whether the case put before him on behalf of the wife survived  the filter of leave.  Now, in June 2007, we are invited to extend the span in order to encompass a hearing on the filter in this court later this year.  As my Lord has stressed, so also would I: all Mr Scott’s merit arguments, so carefully and adroitly marshalled in written and oral form by him for us, including his allegedly crucial point referable to the disposal of the wife’s financial claims in Nigeria (being a point that he casts under section 16(2)(e) of the 1984 Act), will be available to be put, and, knowing Mr Scott as I do, will be put very firmly, before the judge at the substantive hearing.  
17.	In my view it is unarguable that the judge was not entitled to consider that the wife had “substantial ground” for claiming financial relief.  Prima facie the central claim which she puts forward is for a transfer of Lytton Road, where she has apparently been living for at least eight years.  Mr Scott argues - would be arguing and will be arguing - that what is crucial is that that claim was considered and rejected in Nigeria.  However the analysis of Munby J in relation to the way in which that claim was rejected in Nigeria may well prove to be relevant.  It is strongly arguable that the claim was not despatched by redistributive principles at all, whatever their precise nature, but rather by reference to principles of equitable ownership to which we in this jurisdiction were confined prior to the reforms introduced in 1971.  Mr Scott submits that such a conclusion cannot be made, even on a provisional basis, without expert evidence as to the principles of Nigerian law which must have lain behind the Nigerian judge’s rejection of the claim.  With respect, I reject that submission.  In my view Munby J’s recital of the way in which counsel’s arguments in Nigeria were cast, and of the way in which the judge in Nigeria articulated her rejection of the wife’s claim, enables one provisionally to reach that conclusion.  If such a conclusion is valid or arguably valid then the comments made by Thorpe LJ in Jordan v Jordan [2000] 1 WLR 210 at 219F which the judge cited are in point.  It may be that the failure of the wife to achieve transfer of that property in the Nigerian court was the result of application of principles in no way comparable to those by reference to which we would despatch such a claim.  
18.	I should note that Mr Scott also objects to the way in which, in paragraph 60 of his judgment, the judge suggested in ostensibly categorical terms that, if leave were not granted, the wife would suffer very substantial hardship indeed in being either homeless in England or forced to return to Nigeria.  I am sure that it would have been wiser for the judge not to have cast any of the remarks in his judgment in terms which could be misconstrued as being in any way preclusive of the result.  Throughout he was looking at this case through the lens of whether there were “substantial grounds” for reaching conclusions; and no‑one at the forthcoming hearing should, with respect to Munby J, read more into that ostensibly categorical statement than was appropriate for him then to have articulated.  
19.	For those additional reasons, as well as for those articulated by him, I join with my Lord in refusing the application.
Order: Application refused.