| HUSBAND AND WIFE — Financial provision — Leave to apply — Foreign decree — Duty upon court to consider whether England and Wales appropriate venue for application — Whether leave to apply to be granted — Matrimonial and Family Proceedings Act 1984, s 16
Akinnoye Agbaje v Akinnoye Agbaje [2009] EWCA Civ 1; [2009] WLR (D) 11
CA: Ward, Longmore, Jackson LJJ: 20 January 2009
{A careful approach was required where a court was determining whether to exercise its jurisdiction under Pt III of the Matrimonial and Family Proceedings Act 1984 to grant an applicant leave to apply for financial relief in this jurisdiction following a divorce in an overseas country.
The Court of Appeal so stated, inter alia, when granting permission and allowing the appeal of the defendant husband, Olusola Akinnoye Agbaje, from a decision of Coleridge J sitting in the Family Division on 4 April 2008, granting the claimant wife, Sikirat Abeni Akinnoye Agbaje, leave and certain relief consequent upon her without notice application, referring to Pt III of the Matrimonial and Family Proceedings Act 1984, for leave to seek relief after divorce in Nigeria. The judge held that the parties had a long-standing and real connection with the United Kingdom and it was appropriate for the English court to intervene. The grounds of appeal were, inter alia, that the parties’ closest connection was with Nigeria and that the result was not unjust when seen through the eyes of the Nigerian judgment and the way the claimant presented her case there.
WARD LJ said that under s 16 of the 1984 Act the court, before making an order for financial relief, was under a duty to consider whether in all the circumstances it would be “appropriate” for such an order to be made by a court in England and Wales; and s 16 was to be given a purposive construction. The court was not given an unfettered discretion; and the purpose of the 1984 Act was to remit hardship in the exceptional case where serious injustice would otherwise be done. Moreover, comity between courts of competing jurisdiction had a significant influence on the way the decision had to be taken under Pt III of the 1984 Act although one could not press the importance of comity and the forum conveniens rules too far. In a case like the present it appeared 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; and it would 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” could 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 which had been concluded by the court overseas in a perfectly regular way. The ends of justice were not likely to have changed. Turning to the question when it was “appropriate” to order financial relief, where the question was whether the foreign order provided an unjust result, the crucial question was through whose eyes one was to conduct the search for the ends of justice. It would be wrong to focus on 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. 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 had treated the wife unjustly. In that way there was symmetry between the rules relating to stays and anti-suit injunctions on the one hand and the exercise of jurisdiction under s 16 on the other. It was through that prism that s 16 had to be viewed in a case like the present: s 16(2)(a), (b) and (c) directed one’s attention to the countries with which the parties had their connection, and (d), (e) and (f) to the orders made overseas. Thus if the appropriate court made an appropriate order that might well ordinarily satisfy the Court of Appeal that it was not appropriate to make a further order under Pt III. On the facts, the judge had not referred to the parties’ connection with Nigeria when dealing with s 16, and it was not clear whether he had had regard to those matters as a relevant factor under s 16. The purpose of s 16(2)(a),(b) and (c) was to try to identify which court had the closest and most appropriate connection to the parties; and that was an essential balance to strike. Nor did the judge address the need for respect and deference to be paid to the Nigerian court, and without addressing that aspect one could not know why he considered the wife’s connection with England and Wales to be crucial, or why he decided as he did.
LONGMORE LJ gave a judgment concurring in the result and JACKSON LJ agreed with both judgments. |
