Otobo v Otobo

Under paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973, a stay of matrimonial proceedings depends on the balance of fairness, including convenience, between the parties. The court must consider the statutory factors, including witness convenience, delay and expense. The inquiry is not a general comparison of which jurisdiction is superior.

Where the proceedings were issued first in England, that fact should receive substantial weight. Litigation conduct, strategic changes in the case, resource imbalance and delay are relevant to fairness. A stay should not be supported by a plainly unmeritorious issue concerning validity or recognition.

The wife appealed against an order of Johnson J staying her English divorce and ancillary-relief proceedings under section 5(6) of the Domicile and Matrimonial Proceedings Act 1973. The husband had commenced competing divorce proceedings in Lagos and later advanced a challenge to the validity of the parties’ 1965 marriage.

The judge rejected the husband’s jurisdictional challenge but stayed the English proceedings, principally because issues concerning recognition of an English decree and the family’s Nigerian connections were thought better resolved in Nigeria. The central issue was whether the statutory balance of fairness justified staying the proceedings.

1. Appeal allowed. The stay was set aside and the application for a stay dismissed. The freezing order continued until further order, and the husband was ordered to pay the wife’s costs of the preliminary issues and stay application.

2. Thorpe LJ held that the discretion under paragraph 9 of Schedule 1 had to be exercised by reference to fairness between the parties, including the statutory considerations of witness convenience, delay and expense. The court should not treat the exercise as a contest between legal systems or assume that one jurisdiction is generally superior. The approach in De Dampierre v De Dampierre [1988] AC 92 and the explanation in Butler v Butler [1998] 1 WLR 1208 were applied.

3. The attack on the validity of the marriage was transparently unmeritorious, particularly because it was advanced only after the parties’ experts had agreed that the marriage was valid. It should therefore have played no part in the stay decision.

4. The principal concern about recognition of an English decree was also misplaced. The wife’s case rested on section 81(5) of the Nigerian statute, and the length and quality of her connection with England made refusal of recognition difficult to envisage.

5. The family’s predominantly Nigerian character was relevant but not decisive. Its substantial secondary attachment to England, the location of assets, the wife’s need to remain with her daughter, the first issue of proceedings in England, subsequent delay in Lagos and the husband’s tactical changes had to be weighed. The Court of Appeal exercised the discretion afresh because the original exercise had been flawed.

• Court of Appeal (Civil Division): [2002] EWCA Civ 949 — appeal allowed; stay application dismissed.
• High Court of Justice, Family Division, Johnson J: order dated 26 April 2001 — husband’s jurisdictional challenge dismissed, but English matrimonial proceedings stayed under section 5(6) of the Domicile and Matrimonial Proceedings Act 1973.