BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre,
33 Bull Street, Birmingham B4 6DS.
Before:
HIS HONOUR JUDGE PURLE, Q.C.
(sitting as a High Court Judge)
Between:
|
MRS. H. KEBBEH |
Claimant |
|
- and - |
|
|
N. FARMER & OTHERS |
Defendants |
Transcribed from the digital recording by Marten Walsh Cherer Ltd.,
1st Floor, Quality House, Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864
MR. DAVID MITCHELL (instructed by Willsons Solicitors) appeared for the Claimant
MS. CLAIRE VAN OVERDIJK (instructed by Saffron Solicitors) appeared for the Defendants other than the Fourth Defendant
MR. CLIVE STYLES (public access barrister) appeared for the Fourth Defendant’s litigation friend
JUDGMENT
JUDGE PURLE:
This is a claim for family provision, brought by the Claimant, Mrs. Haddy Kebbeh. It is brought under the Inheritance (Provision for Family and Dependants Act) 1975 (“the 1975 Act”). She claims financial provision from the estate of Malcolm Geoffrey Mitchell (“the deceased”). He died on 26th of September 2011 in Gambia.
He made a will on 5th of May 2006 in Birmingham. That will named the First Defendant, Mr. Farmer, his accountant and friend, and a daughter, Jayne Mitchell, as his executors and trustees. She is the younger of two daughters by the deceased’s first marriage. The second is Marie Davidson. They are both adults. The will made no provision for the Claimant, the deceased’s second wife. After making various minor pecuniary bequests the residuary estate was to be divided equally between the deceased's three daughters. I have already mentioned Jayne and Marie. The third daughter is Jennifer Isatou Mitchell, a daughter of the second marriage, her mother being the Claimant. She is represented as Fourth Defendant by a litigation friend, Michael Bennett, who has taken a neutral stance in these proceedings. When I refer to “the Defendants” generally in this judgment, that must be taken as a reference to the Defendants other than the Fourth Defendant.
It is said by the Defendants that the deceased, who had an English domicile of origin, died domiciled in Gambia. If that is correct, it is common ground that the Claimant has no claim under the 1975 Act. That follows from the opening words of section 1(1). A claim may only be made under the 1975 Act in the case of a person who “dies domiciled in England and Wales”.
When the matter came on for trial in September of this year very late expert evidence was sought to be adduced by the Defendants concerning the validity of an alleged divorce dissolving the deceased’s marriage to the Claimant said to have occurred in Gambia in 2004. Without going into the detail of that evidence, the upshot was that I allowed the application for further evidence, but it could not be dealt with during the trial that occurred in September. There was, however, a great deal of evidence on the issue of domicile and I directed that I should proceed to try that issue. The parties urged me to resolve as many other factual issues as I could. During the course of the hearing so many tangential factual issues arose that I was not entirely sure precisely what it was I was being asked to decide apart from the domicile issue, though the parties’ respective counsel helped me considerably to identify the relevant issues in written and oral closing submissions.
I have reached the conclusion that the deceased did indeed die domiciled in Gambia. In those circumstances it is not necessary for me to consider extensively other factual issues. It is, however, necessary for me, in order to explain that conclusion, to look at the background facts and deal with them, as questions of domicile require the court to look at the deceased’s life history and take a rounded view on the evidence as a whole.
The deceased moved to Gambia by no later than 1994 when he built himself what, by all accounts, was a rather splendid home. From 1994 onwards, with exceptions, he spent the majority of his time in Gambia. There is a whole raft of evidence from many sources which is to the effect that the deceased fell in love with Gambia to such an extent that he resolved never to return to England to live there again.
His first marriage had by then (1994) dissolved. I heard from his first wife, who remained on good terms with him. I also heard from her second husband, who was also on good terms with the deceased. His first wife confirmed that from that early stage (1994) the deceased had formed, in her judgment, which was based upon his own words and conduct, an intention permanently to reside in Gambia, he having (as she put it) only an apartment locally in Birmingham.
There was also evidence from more than one source, but most impressively from Jayne and the deceased's sisters, Christine and Shirley, to the effect that the deceased harboured a desire to be buried in Gambia. This was not because Gambia was some distant outpost to which he had a romantic attachment, but because that was where he lived and intended to remain until he died. The way in which the issue arose in his discussions with Jayne, who was particularly close to him, was that a friend of his who died in Gambia had been repatriated for an English funeral and he implored Jayne not under any circumstances to allow that to happen to him.
As it happens, Jayne, who wished to give effect to her father's wishes, was not allowed to put them into effect when he died. Upon the insistence of other family members, his body was brought to England, for reasons which, from their perspective, was understandable. However, nothing that happened after his death can affect the question of where he was domiciled at his death.
It is said in many of the cases that one has to be careful in approaching, and not place any, or any significant, reliance upon, the declarations of intention of an individual as to his domicile. If one is talking of domicile as a technical concept that is readily understandable because most lay people would not understand the arcane common law concept of domicile. However, the authorities appear to go further than that and are to the effect that one must be at least wary, if not ultra-cautious, about placing reliance upon statements as to a person’s intentions of where he or she will live in the future. Those statements must be backed up by conduct.
In the present case I fully take on board the caution that I must exercise when considering the deceased's own words, but his conduct from 1994 onwards is consistent with a settled intention to remain and live indefinitely in Gambia, and that intention became stronger over the years, subject to the relatively short period following his marriage to the Claimant, to which I now come.
The deceased met the Claimant in or around 1999 in Gambia. She was a local girl and (then) a Gambian citizen. They were married in 2000. There was a considerable age difference, over thirty years, and, as often happens, the marriage was not universally harmonious. There appear to have been difficulties from a relatively early stage.
One of the difficulties which the Claimant herself has given evidence about is that she wished to live in England and the deceased did not. By the time they were married the deceased had been in Gambia for many years.
They were in fact married in Gambia in a Muslim ceremony on 30th of January 2000, the deceased having converted to become a Muslim. The Claimant already had a male child and Jennifer was subsequently born on 25th of October 2001. That is the third daughter to whom I have referred.
She was born in England and the deceased appears, for a short while, to have moved back to England with the Claimant for the purpose of his daughter’s birth and early childcare. It might be said that that shows an enduring connection with England, but he still had his main home in Gambia. He also then had a property at 40 Odell Place in England and, initially, that is where the Claimant and the deceased lived through much of 2001.
On 16th of August 2001 the Claimant obtained indefinite leave to remain in the United Kingdom. It is clear that the Claimant wished to live indefinitely in England, though whether or not she became an English domiciliary is not something I strictly need to decide.
The law on domicile is well-established and did not form the subject matter of any serious dispute before me. It is not, however, always easy to apply. I was taken to a number of passages from the current edition of Dicey and Morris, but I do not need to refer to those passages as the relevant passages (albeit from an earlier edition) are adequately summarised in the Barlow Clowes decision to which I shall come. I was also referred to the important decision of Agulian v. Cyganik [2006] 1 F.L.R. 406. That concerned, as it happens, a family provision claim. The deceased was a Cypriot who had been in England for all of his working life and who died here. Nevertheless, it was held that he had not changed his domicile of origin from Cyprus to England.. The court emphasised the adhesive nature of the domicile of origin.
Mummery LJ criticised the decision of the deputy judge in that case, from whom the appeal was brought, upon the following grounds at paragraph 49:
"The deputy judge underestimated the enduring strength of Andreas's Cypriot domicile of origin. This led him to focus too much attention on how specific Andreas's plans were after 1995 to return to live permanently in Cyprus and too little attention on whether Andreas intended to live permanently or indefinitely in England. The emphasis of the judgement is, with respect, wrong."
I was also referred to Barlow Clowes International Ltd. & Others v. Peter Steven William Henwood [2008] EWCA (Civ) 577 for a useful summary of the relevant principles of the law of domicile. The relevant passages, taken from the judgment of Arden LJ, are as follows:
“ Relevant principles of the law of domicile
General principles
The following principles of law, which are derived from Dicey, Morris and Collins on The Conflict of Laws (2006) are not in issue:
A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to126).
(No person can be without a domicile (Dicey, page 126).
No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to128).
An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129).
Every person receives at birth a domicile of origin (Dicey, pages 130 to 133).
Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise (Dicey, pages 133 to138).
Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice (Dicey, pages 138 to143).
In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to151).
A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to153).
When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153).
I need to amplify two of these principles at this point.
The intention required for a domicile of choice ((vi) above)
The intention of residence must be fixed and must be for the indefinite future. It is not enough for instance that at any given point in time its length has not been determined.
In the leading case of Udny v Udny (1869) LR 1 Sc & D 441, the issue was as to the domicile of the respondent's father at the time of his (the respondent’s) birth. His father had been born in Scotland but had left Scotland and taken a lease of a house in London. He had a castle in Scotland but that was not habitable. He visited Scotland frequently but had no residence there. In 1844, he sold the lease and his personal possessions and left London for France to avoid his creditors. But he did not intend to reside permanently in France. His first wife died in 1846, and he formed a liaison with the respondent's mother who, in 1853, gave birth to the respondent in London. He married her and went back to Scotland thinking that he would thereby legitimise the respondent, avoid his creditors and bar the entail on his estates. He intended to stay in Scotland because he thought he would be safe from his creditors.
The House of Lords held that the respondent's father had lost his domicile of choice in England and that his domicile of origin had revived. One of the issues was whether revival of his domicile of origin was precluded by the fact that he had a possible intention to leave Scotland again if his creditors pursued him there. At 449, Lord Hatherley L.C. held that this possible intention did not mean that he could not have a domicile in Scotland if he had decided that Scotland would be ‘his chosen and settled abode’. Lord Hatherley held that the acquisition of a domicile of choice was best described as ‘settling’ in a place:
‘A change of [a person's domicile of choice] can only be effected animo et facto - that is to say, by the choice of another domicile, evidenced by residence within the territorial limits to which the jurisdiction of the new domicile extends. He, in making this change, does an act, which is more nearly designated by the word ‘settling’ than by any one word in our language. Thus we speak of a colonist settling in Canada or Australia, or of a Scotsman settling in England, and the word is frequently used as expressive of the act of change of domicile in the various judgments pronounced by our Courts.’
At 458, Lord Westbury made the following observations about the acquisition of a domicile of choice which also emphasise the fixed nature of the requisite intention:
‘Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that the residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established.’ (emphasis added).
Given that a person can only have one domicile at any one time for the same purpose, he must in my judgment have a singular and distinctive relationship with the country of supposed domicile of choice. That means it must be his ultimate home or, as it has been put, the place where he would wish to spend his last days. Thus, in Bell v Kennedy (1868) LR 1 Sc and Div 307, 311, Lord Cairns, having held that it was unnecessary for him to examine the various definitions that have been given of the term ‘domicile’, held that the question to be considered was in substance whether the appellant:
‘had determined to make, and had made, Scotland his home, with the intention of establishing himself and his family there, and ending his days in that country?’ (emphasis added)
In my judgment this test by its reference to ending one's days usefully emphasises the need for the subject to have a fixed purpose that he will live in the country of his domicile of choice.
All the facts which throw light on the subject's intention must be considered ( (vii) above)
A finding as to domicile requires a careful evaluation of all the facts. This point is illustrated by a memorable passage from the judgment of Mummery LJ in Agulian v Cyganik [2006] EWCA Civ 129 at [46(1)]:
‘Positioned at the date of death in February 2003 the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard's aphorism that ‘Life must be lived forwards, but can only be understood backwards’ resonates in the biographical data of domicile disputes.’
Some commonly occurring facts call for special mention. The fact that residence is precarious or illegal is a circumstance that is relevant to the question of intention (but the fact that presence is illegal does not prevent residence): Mark v Mark [2006] 1 AC 98.
A person can acquire a domicile of choice without naturalisation. (Dicey, page 136.). On the other hand, citizenship is not decisive: Wahl v Wahl [1932] 147 LT 382. An intention to be buried in a particular place has in some circumstances been treated as an important factor, but in other cases discounted (Dicey, page 140). If a person leaves a country to evade his creditors, he may lose his domicile there, unless he plans to return as soon as he had got rid of his debts.
Frequently the subject of a dispute as to domicile (often called ‘the propositus’) will make statements or declarations as to what he intends. But the court should not rely on these statements unless corroborated by action consistent with the declaration. Thus Dicey states:
‘The person whose domicile is in question may himself testify as to his intention, but the court will view the evidence of the interested party with suspicion. Declarations of intention made out of court may be given in evidence by way of exception to the hearsay rule. The weight of such evidence will vary from case to case. To say that declarations as to domicile are ‘the lowest species of evidence’ is probably an exaggeration. The present law has been stated as follows: ‘Declarations as to intention are rightly regarded in determining the question of a change of domicile, but they must be examined by considering the persons to whom, the purpose for which, and the circumstances in which they are made and they must however be fortified and carried into effect by conduct and action consistent with the declared expressions.’. Thus in some cases the courts have relied to some extent on declarations of intention in deciding issues as to domicile; indeed, in one case, the declaration was decisive. But in other cases the courts have refused to give effect to the declarations on the ground that they were inconsistent with the conduct of the propositus: a domicile cannot be acquired or retained by mere declaration. The courts are, in particular, reluctant to give effect to declarations which refer in terms to ‘domicile’ since the declarant is unlikely to have understood the meaning of the word. Declarations which are equivocal have little effect: thus a declaration of intention to reside permanently in the United Kingdom is no evidence of acquisition of a domicile of choice in any of the countries which are included in the United Kingdom; although it may be evidence of the abandonment of a domicile elsewhere.’ (pages 142 to 143)”
In my evaluation of the evidence, I have focussed, though not exclusively, upon the deceased's intentions in relation to Gambia and whether, which is the key issue, he intended to live there permanently or at any rate indefinitely.
It is said that he never acquired Gambian citizenship, but instead he applied annually for a resident's permit. That however is not decisive, as the citations from Barlow Clowes confirm. It can equally be said that the deceased’s presence in Gambia was in no sense precarious. The annual renewal of his residency permit became something of a formality.
It is a truism, as the citations from Arden LJ in Barlow Clowes make clear, that citizenship is not decisive of domicile. What one has to do when considering questions of domicile is look at all the facts of (in this case) the deceased's life and determine whether or not a clear case has been made out, as required by Agulian, that the original English domicile changed. The onus is very much on the Defendants, given the importance of the domicile of origin, but on the totality of the evidence they have, as indicated, made that case out.
Apart from the time during which the deceased lived in Gambia starting in 1994, I need to concentrate a little more on the history of the marriage. As I have said, the marriage was celebrated in 2000. In that year a considerable time (a total of 187 days) was spent in England. The deceased was, no doubt, responding to his wife's wish to come to England, but not necessarily to live there indefinitely. In 2001, 287 days were spent in England, during which time Jennifer was born. The deceased and the Claimant were here between 12th of January and 6th of November 2001. Thereafter, they remained in Gambia until February 2002. They came to England again for 80 days in March 2002, returning on 31st of May. They came to England again on 27th of August 2002 and returned to Gambia after 48 days on 4th of November.
Matters came to a head in 2003. The marriage was starting to show strains. There are a number of reasons for this. One of the reasons - in my judgment, an important reason – was the conflict between the Claimant's wish to live in England and the deceased's wish to live in Gambia.
In the summer of that year, 2003 (the precise date does not matter), there was an altercation between the Claimant and the deceased which led to the deceased being charged with assaulting his wife. This resulted in him spending time in a police cell. That was the last straw to him and he resolved, in his own mind, to divorce the Claimant.
He was however particularly concerned at this time (and afterwards) in securing for himself a future with his daughter, Jennifer, and was terrified that if he acted too precipitously the Claimant would bring proceedings against him which would or might have the effect of depriving him of access to Jennifer.
From this time onwards he spent the majority of his time in Gambia. Detailed schedules have been provided on both sides as to the time spent in or out of Gambia. There were some occasions when, though out of Gambia, he was not in England either, but they can for present purposes be ignored.
The pattern developed of the deceased remaining in Gambia, where he lived, save for relatively short breaks consistent with a holiday (sometimes an extended holiday). He lived in Gambia with Jennifer from around late 2003 onwards. The Claimant lived in somewhat reduced circumstances in England where, largely, she worked to maintain herself, staying with friends or acquaintances. She has recently moved to the West Country, but that has no bearing on the issue I am now deciding.
The Claimant did not live during this period in the property (40 Odell Place) in England because that was let to a tenant who eventually bought it in 2006. One of the matters that prompted the altercations in 2003 was when the Claimant, sought to live in that property and that caused serious problems at the time with the tenant.
Accordingly, the picture that emerges from, at the latest 2004 onwards, was of the deceased making his life in Gambia, as his permanent home, backed up, as I have said, by numerous statements made to friends and family, emphasising his wish not simply to be there on some sort of extended holiday, but to live there indefinitely or permanently.
I have said he did not obtain Gambian citizenship, but that is not decisive. It may of course be a relevant factor, but it is readily understandable that he did not do so. Gambia is in Africa and is not, as with so many other places in Africa, of guaranteed stability, though his presence never was in fact precarious. He was very happy there, making statements, as he did, to his sister Christine: "Why on earth would I want to live anywhere else?" and showing her the plot in which he hoped to be buried there.
As Mr. Mitchell pointed out for the Claimant, he never actually acquired that plot. I do not think that matters because what came across on the evidence with, in my judgment, real clarity, was his desire to spend the rest of his life in Gambia and see his days out there.
It is said that he had business interests in England which meant that his ties were never wholly severed. The fact that someone's ties are not wholly severed does not preclude the formation of an intention to live permanently or indefinitely elsewhere.
It is also said that it is strange that the will should be dated 2006 and be made in England, in English form, with English executors and beneficiaries, if there was an intention then to live permanently or indefinitely in Gambia. That was something of an oddity, especially as the deceased gave as his address the English property which he was in the course of selling to his sitting tenant at the time.
I do not think that the circumstances of his will are something that I should regard as conclusive, or even of much importance. The people he appointed as executors were a trusted friend and professional in one case, and a daughter to whom he was particularly close in the other case. The identity and location of the beneficiaries cannot control his domicile at the time, and one of them (Jennifer) lived in Gambia with him. He did also have substantial English assets. That suggests an enduring connection but again is only one of many factors.
There was also some suggestion in or around 2004 that the daughter who was appointed as executor, Jayne, should herself relocate to Gambia, though in the events which happened that did not come about. What did happen is that the deceased purchased land in Gambia for what was hoped to be a hotel development. Things being as they are in that part of the world, the development never progressed to full fruition, though it remained an ongoing project at the deceased’s death. There is no doubt also that the deceased over the years devoted all his business energies and much of his available monies into that project.
So far as his English business was concerned, he had years before taken on people he described as "partners", but who, effectively, took over the business. He or his company retained ownership of the business premises but otherwise had no active business of his or its own. He became the director of the limited company which owned the property in question, but ceased to have anything to do with the actual running of the business by, at the latest, 2000. His first wife's impression was that for practical purposes he retired from the business in 1994.
I do not think either date matters because, certainly by 2004, and in all probability much earlier, he was not involved in any day-to-day business activities. His business, such as it was, became nothing more than holding the factory premises, which were rented out. Moreover, at the time of his death he had distributed to himself by way of dividend all the accumulated profits of that business so that he became the principal creditor of that business. That was done, I infer, hopefully to fund his lifestyle in Gambia (though he also had an English pension) and the development of his hotel project there.
It is also said that he owned two English investment properties which he acquired in or around 2010 or 2011. However, on the evidence, especially that of Jayne (whom, I should say, I found an excellent witness overall) he saw those, when he acquired them, as investment properties for his two daughters by the first marriage. They were, however, in his name and in his will he did not leave these properties to his daughters, he left the residuary estate of which they formed part to his three daughters. However, it would have been open to the three daughters to divide the estate up in such way as they between them thought fit, subject to the problem (which was not foreseen at the time, as the deceased’s death was unexpected and sudden) was that Jennifer was a minor at the date of his death. Be that as it may, the properties were investment properties, and did not require the deceased’s presence in England. Their existence is of little if any materiality in considering questions of domicile.
I have said earlier that Jennifer lived with the deceased in Gambia from around late 2003. Jayne took her there. Jennifer was schooled in the Gambia. The Claimant says that the intention was that she should be schooled in England, but she never was. Nor do I accept her evidence that there was a serious intention on the deceased’s part that she should be schooled in England when she moved to senior school.
Jayne's evidence, which I accept, was that her father was very happy with the educational system in Gambia and wanted Jennifer not just to be educated there but to be brought up there because he thought the culture was better for Jennifer than the English culture.
That evidence has support from other witnesses The deceased may well in his discussions with the Claimant have gone along with the idea that Jennifer might be educated in England rather than fall out with her because, as I have said. his greatest concern - for a long time I find - was that the Claimant, whom he saw as a volatile individual, might overreact if he upset her too much and bring proceedings relating to Jennifer adversely affecting the future of his relationship with Jennifer.
I should say that as far as Jayne and Marie are concerned, it is clear that they both genuinely love their half-sister, Jennifer, and that they are concerned to ensure that she has the best future that may be available to her.
Jennifer appeared before me by a litigation friend, a Mr. Michael Bennett. He gave evidence which rather blackened the character of the deceased and supported the Claimant's case that he was, effectively, a serial womaniser. This was one of the reasons, she said, she wanted to get away from Gambia, because European men tend to be drawn towards young Gambian women and vice versa and that is so even when the men are married.
I consider the degree to which the deceased may or may not have lived the life of a single man when married to the Claimant be largely irrelevant, though it is probably exaggerated by the Claimant and Mr. Bennett. However, the fact that he did have girlfriends after 2003 and 2004 does indicate that he saw himself as free from the ties of marriage.
Was that because he was a dissolute man or because the marriage was, effectively, over? In my judgment it was the latter. The family’s evidence (apart from the Claimant’s) was that the deceased did have girlfriends during this period, including one settled relationship, but they rejected the picture of the serial womaniser as portrayed by the Claimant and Mr. Bennett.
There is an issue, which, as I have said, I cannot decide finally, because of unresolved questions of the law of Gambia, as to whether or not the marriage was brought to an end by divorce. Documents were produced, of not the highest quality, suggesting that the deceased wrote to the Claimant in 2004 divorcing her (this is apparently sufficient in Gambia) copying it to a number of people, including her uncle, who says, probably correctly, that he never received it. It was however received by the deceased’s local lawyer and he was able to confirm that the divorce was registered. I am satisfied therefore that there was what purported to be a divorce.
The Claimant also says she was never told about this divorce during the deceased's lifetime. I accept that evidence and so find. As I have said, the deceased was concerned not to provoke the Claimant into taking precipitous action concerning Jennifer and this is probably why he did not tell the Claimant about the divorce. He did open up with the First Defendant, Mr. Farmer, on the point, whom he obviously trusted, not just as a friend but as a professional man, and admitted to him that he never served the divorce papers upon the Claimant, because of the Jennifer factor.
The Claimant claims to have found the divorce papers hidden under a mattress following the deceased's death, when Mr. Bennett was there. Mr. Bennett supported this version of events. The story sounded improbable, but no-one has come up with any evidence firmly establishing that the Claimant ever was told about the divorce.
The divorce seems to have been common knowledge amongst the family and friends of the deceased, but, following the events of 2003, which I have briefly alluded to, and their being told in 2004 of the divorce, they (family and friends) did not see the Claimant very often, and in many cases not at all, until the deceased’s funeral.
Those who visited the deceased at his house in Gambia when the Claimant was also in the country rarely saw her there after the “divorce”. Likewise, those who attended a flat in England, to which the deceased had access when he came to England, did not in the main see her there either. When she was seen there, she was not thought by most people to be staying there. One individual, David Humphreys, who gave each side a witness statement, and who remains on friendly terms with the Claimant, did see her at the flat and thought she was staying overnight with the deceased and Jennifer. However, even he did not regard the relationship, after 2004, as a genuine husband and wife relationship.
Likewise, in Gambia she was thought by the deceased’s family and friends after the “divorce” to be living with her own family. The Claimant's uncle however thought she was living still with the deceased, but he never actually went to the deceased's house and did not see her there. As mentioned, though, the uncle says that he did not receive the “divorce” letter which was supposedly sent to him as well as to others. I accept his evidence on this point. A divorce is a very shameful event in the Muslim community in Gambia and would have caused immense ructions within the Claimant’s family. I therefore do not think her uncle would have forgotten this event had he known of it, and did not form the view that he was lying to me.
I consider that the reason that the deceased gave to Mr. Farmer for not telling the Claimant about the divorce or serving the divorce papers upon her (the concerns over Jennifer) was true and that those concerns remained in his mind until his death.
There are others who appear to have been told by the deceased that he took some steps to serve the Claimant with divorce papers. On one version of events, this occurred while she was under a hairdryer, at a hairdressers. I think that is more likely to be an example, assuming there was simply no misunderstanding here, of the deceased fobbing off friends who were badgering him on the point. He was less likely to fob off a respected professional, such as Mr. Farmer, and what he told him is, in my judgment, more likely to be true. He said something similar to at least one other witness, Mr. Humphreys, though, as I have said, he did not regard the relationship as a genuine husband and wife relationship.
I do not consider that the links that the deceased had down to his death with England were sufficient to override the very strong evidence that his permanent home was in Gambia.
I have referred to the flat to which he had access in England. This was in fact part of the factory premises in which his business had previously been carried out and which had, effectively, been taken over by others. It was a most unsavoury place, from everything I have heard, in which to live and could not by any stretch of the imagination be regarded as a family home, or any sort of home. This much was effectively accepted by the Claimant, who said she did not like being there. I have no doubt she visited the place from time to time to see Jennifer. The deceased would bring Jennifer over to England for regular visits, though living in the main in Gambia, where Jennifer was schooled, down to his death.
He did not like wasting money on hotels so he used part of the factory premises which initially had been developed (if that is the right word and not too overblown a description) for workmen at the factory, and was still used as an office when the deceased was not there. The workmen were joined, and probably outnumbered, by vermin and the factory flat, known colloquially and ironically as "the penthouse", was also entirely without central heating and bitterly cold in winter. No-one could possibly regard that as anything other than a temporary place of lodging and not as an available residence.
The Claimant also says that she was maintained by the deceased, though under cross-examination much of the maintenance was related to what the deceased did - he being, by all accounts, a generous man - to help her family in Gambia. There seem to have been very limited payments to her or for her benefit. In any event, as Jayne said in her evidence, she would expect her father to help the Claimant from time to time because she, the Claimant, was his daughter's mother and he would wish relationships to be smooth between them.
As I have said, there had been an altercation in 2003 which, in his eyes, was the last straw, but there was a reconciliation of sorts later that year. The Claimant portrays that as a reconciliation under which they then lived just as any other normal man and wife would. That, it seems to me, is untenable. This was not a normal husband and wife relationship by any stretch of the imagination. He had girlfriends openly, though not as many as the Claimant would have me believe, and he lived in Gambia while she lived in England. Both visited the other country from time to time, but their respective settled lives were in Gambia (the deceased) and England (the Claimant).
They would of course need to discuss Jennifer's needs and meet up from time to time in order to give Jennifer the smoothest upbringing that circumstances allowed. However, to regard them as a husband and wife in any meaningful sense from 2003 onwards strikes me as ludicrous and the Claimant's attempts to portray the position otherwise are wishful thinking at best.
Mr. Mitchell, who has argued the case for the Claimant with great skill, pointed out that the deceased quite late in the day paid for the Claimant’s UK citizenship application (by reimbursing her). That fits the picture of the deceased portrayed to me by Jayne as someone who would be perfectly willing to help his daughter's mother as such, when it was really needed. It was also something which the Claimant very much wanted. It says little or nothing about the deceased’s domicile. It is equally if not more consistent with the deceased, who was living in Gambia, cementing the distance between them.
Mr. Mitchell also relies upon the regular visits the deceased paid to England. Well, so he did, but they were visits which were referable to the needs of Jennifer to meet her mother and other family members and can be regarded as no more than temporary visits, as the penthouse was not suitable for anything else.
It was pointed out that there are two English executors. That is not entirely surprising as he did have, amongst other things, an extensive English estate, albeit that it did not require any presence here on his part to deal with what were largely - latterly - property investments, including through his company. None of this, though a factor to be considered, is a strong indication of domicile.
Mr. Mitchell relied upon the fact that the Will provided for the majority of his estate to pass to persons living in England. That, it seems to me, as already mentioned, is a factor of very little significance.
It is also said that it is inherently unlikely that a person would wish to abandon domicile in one of the richest countries in the world in favour of domicile in one of the poorest countries in the world. I acknowledge that that is a factor, but there is an overwhelming body of evidence to suggest that that is exactly what he did. Of course the deceased never did formulate his life plan in terms of domicile, but what he did was entirely consistent with what he said to many people on many occasions. He took up permanent, or indefinite, residence in Gambia. This was not because he had a short-term job there, or even a long-term job, nor was it because he was on a short-term or even a long-term holiday, but because that is where he saw his future indefinitely. He loved the place and wanted to live there, and nowhere else.
I do of course have to treat statements from the family, who have an interest in the outcome, with some caution when relaying the words of someone who is deceased. I am not however dependent just on family statements. There are other friends, including Mr. Humphreys who, as mentioned, gave a statement to both sides, who support the Defendants' case.
As to whether the deceased did divorce the Claimant, I have already found as a fact that during his lifetime the deceased did not serve the divorce letter and other papers on her, though he did register the “divorce”. It may therefore be said that, as someone who was married to a Gambian wife who had gone to all the trouble of obtaining UK citizenship before his death, that shows that he remained domiciled here. Had the marriage been anything remotely approaching a conventional marriage that might be a powerful point, but I have already said that this was not a marriage, except possibly in name, that one would recognise as such.
It may be, and I am not deciding this point, that the steps taken to effect a divorce in Gambia, were effective under the law of Gambia to bring about a divorce. I simply do not know that that is the case because that would have arisen on round two of the case. It does not, however, ultimately assist me on the issue of domicile and I am prepared, without deciding, for present purposes to assume that the marriage remained a marriage in law until the date of death. Even so, that does not take anything away from what, in my judgment, were the deceased's clear intentions as demonstrated by the totality of the evidence. In those circumstances these proceedings have to be dismissed.
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