Grosvenor Casinos Ltd V. Ghassan Halaloui (2009)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE J.S.C.

The facts surrounding the dispute out of which this appeal arose are simple and straight-forward. The applicable principle of law is however, not entirely free from difficulty.

The respondent had issued a cheque in favour of the appellant. It was drawn on a bank in the United Kingdom. The cheque was in satisfaction of a debt of 199,711.00. Upon presentation on or about 21-04-93, the cheque was dishonoured. Subsequently and perhaps as a result of a demand for payment by the appellant, the respondent reduced his indebtedness by paying 88,000.00.pounds This left outstanding the sum of 111,711.00. The respondent did not pay the balance. The appellant then issued a writ of summons under the undefended list procedure at the High Court of Justice, Queen’s Bench Division in England. The writ of summons, statement of claim and other processes were served by substitution on the respondent in Nigeria. The respondent did not enter appearance to the writ. He did not file a defence either. On 15/06/99, judgment was given against the respondent for 180,530.00pounds and costs assessed at 718.00pounds. In its effort to execute the judgment, the appellant upon an ex-parte application brought before the High Court, Ibadan (hereinafter referred to as “the trial court”) prayed that the judgment obtained in England be registered. Adio J. (as he then was) heard the application and granted it on 22/11/99. In reaction, the respondent brought an application before the trial judge that the order registering the judgment be set aside. On 24/2/2000, Adio J. in a ruling refused the prayer that the registration be set aside. In his ruling, he reasoned thus:

“The only argument advanced by the applicant on jurisdiction is that when the defendant was served outside the jurisdiction of Britain, it is bad. I am not persuaded by that argument, the applicant having admitted service should have gone to the venue to challenge the jurisdiction of that court. He did not. Judgment was given against him and he wanted it set aside. Where jurisdiction is in issue, the burden of establishing that the court has no jurisdiction is upon the party who asserts that the court has no jurisdiction or vice versa. I have no evidence to prove non- jurisdiction.”

The respondent, dissatisfied with the ruling of the trial court brought an appeal against it before the Court of Appeal, Ibadan (hereinafter referred to as “the court below.”). The court below, in its judgment on 11-06-2002 allowed the appeal. It set aside the order registering the judgment of the English court. Akintan J.C.A. (as he then was) who wrote the lead judgment relied on some foreign judicial authorities and then concluded in these words:

“The appellant in the instant case, although he was duly served with the processes of the court, he did not enter any appearance and it has not been shown that he was at anytime resident within the jurisdiction of that court or that he had any property there. In the result, the provisions of the afore-mentioned Section 6 of the Act will be applicable to him. He is therefore entitled to have the registration of the judgment made by the lower court to be set aside. The appeal therefore succeeds and the registration of the judgment made by the lower court is set aside. No order on costs is made.”

The appellant in this appeal (i.e. respondent at the court below) was dissatisfied with the judgment of the court below. He has brought a final appeal before this Court. In the appellant’s brief filed, the issues for determination in the appeal were identified as the following:

“(i) Whether the Court of Appeal could validly depart from its judgment in Hyppolite v. Egharevba (1998) 11 NWLR (Part 575) 598 thus over ruling it by reference to and reliance upon judgments of foreign jurisdictions as it did in this case.

(ii) Whether the regime of statutes establishing a link between Nigerian courts and English courts particularly the various High Court Laws and the Evidence Act do not create a special con which neutralize the English Common Law principles of Private International Law, which were relied upon, in interpreting section 6 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 LFN 1990 by the Court of Appeal in this case.

(iii) Whether faced with the choice between focusing the law pertaining to recognition and Enforcement of Foreign Judgments by Nigerian Courts on “Forum Convenience” or on “Presence and Submission,” the Court of Appeal failed to consider the developments in that field thereby erring in law by reverting to the anachronistic 19th century English Common Law principles of “Presence and Submission” in its interpretation of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, LFN 1990.”

It seems to me, that issue 1 above, under which the appellant’s counsel contends that the court below was in error because it failed to follow the ratio “in a case previously decided by it cannot be taken too seriously. The germane issue should have been whether or not the court below came to the right conclusion on the interpretation of the applicable law. The three issues raised for determination boil down to this single issue. It is convenient in any case to give attention to the reasoning of the Court of Appeal in Hyppolite v. Egharevba (supra). The facts in the Hyppolite case are similar to those in this appeal save that whereas in this case it was the Court of Appeal which set aside the order registering the foreign judgment, whereas it was the High Court that did so in Hyppolite v. Egharevba (supra). Another dissimilarity is the fact that the judgment under consideration in the Hyppolite case was that of the Superior Court of Suffolk County, Department of the Trial Court of the Commonwealth of Massachusetts U.S.A. whilst that in this case is the judgment of the High Court of Justice, Queen’s Bench Division England. Issue 4 in the Hyppolite case was:

“Whether the learned trial Judge was right in holding that the foreign court lacked jurisdiction to entertain the suit of medical malpractice against the respondent on the ground that the respondent was a non resident having no property in the State of Massachusetts at the time of the institution of the action at the court of the country of the original court.”

I have no doubt that the facts in the Hyppolite case and the current appeal are similar. But the decision of the Court of Appeal in Hyppolite case turned on whether or not a foreign judgment which has been registered could be set aside by the same court if the need arises. The central issue in this appeal is whether or not the respondent submitted to the jurisdiction of the High Court in England.

Before I proceed further, it is apposite to mention that the court below and the parties’ counsel who appeared before it all assumed that the applicable provision of the Law which called for consideration was section 6 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 LFN 1990. This was a mistake. In Macaulay v. R.Z.B., Austria [2003] 18 NWLR (Pt.852) 282 at pp.296-297 this Court per Kalgo J.S.C. examined the applicability of Cap. 152 thus:

“In my respectful view two Federal laws are relevant here.

(1) Reciprocal Enforcement of Judgments Act, Cap. 175 of Laws of the Federation 1958 and

(2) Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation 1990. Learned counsel for the parties are also ad idem on this.

The Reciprocal Enforcement of Judgments Act (Cap. 175 of 1958) hereinafter referred to as the 1958 Ordinance, deals inter alia, with the issue of the registration of judgments obtained in Nigeria and United Kingdom and other parts of Her Majesty’s dominions and territories. It is pertinent to observe that the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 152 of 1990) hereinafter referred as the 1990 act did not specifically repeal the 1958 ordinance. This means that it still applies to the United Kingdom and to parts of Her Majesty’s dominions to which it was extended by proclamation under s.5 of the ordinance before the coming into force of the 1990 act.

Section 3 of the 1990 act empowers the Minister of Justice of the Federation of Nigeria to extend the application of part 1 of that act with regard to registration and enforcement of foreign judgments of superior courts, to any foreign country, including United Kingdom if he is satisfied that the judgments of our superior courts will be accorded similar or substantial reciprocity in those foreign countries. And once an order is made under section 3 of the 1990 act in respect of any part of Her Majesty’s dominions to which the 1958 ordinance earlier applied, the latter ceases to apply as from the date of the order. The learned counsel for the parties have both agreed that the Minister of Justice has not exercised that power in respect of any foreign country under the said act. I also agree with them on this and I so find.

Section 9(1) of the 1990 Act provides:

‘This part of this act shall apply to any part of the Commonwealth other than Nigeria and to judgments obtained in the courts thereof as it applies to foreign countries and to judgments obtained in the courts of foreign countries, and the Reciprocal Enforcement of Judgments Ordinance shall cease to have effect except in relation to those parts of Her Majesty’s dominions other than Nigeria to which it extended at the date of the commencement of this Act.’

By this provision, Part I of the 1990 Act applies to all Commonwealth countries as it applies to foreign countries and the 1958 Ordinance ceases to apply to them except those to which it was extended before the 1990 Act came into operation. The 1990 Act came into operation on the 1st of February, 1961. This section is not automatically extending Part I of the said Act to Commonwealth countries other than Nigeria: all it was saying was that the provisions of Part I of the Act shall apply to the Commonwealth as it applies to foreign countries and where the 1958 Ordinance had been extended to any country before the commencement of the said Act, the Ordinance ceases to have effect. If the intention of the law makers was to be otherwise, section 3 would have been superfluous and unnecessary.

The 1958 Ordinance was promulgated as No. 8 of 1922 ‘to facilitate the reciprocal enforcement of judgments obtained in Nigeria and in the United Kingdom and other parts of Her Majesty’s Dominions and Territories under Her Majesty’s protection.’ It came into operation on the 19th of January, 1922. There is no doubt therefore that it applies to all judgments of the superior courts obtained in the United Kingdom and its application can be extended to any other territory administered by the United Kingdom or any other foreign country. This can be done by proclamations pursuant to section 5 of that Ordinance. Therefore the 1958 Ordinance not having been repealed by the 1990 Act, still applies to the United Kingdom.

There is no doubt that the judgment in question was given by a High Court in the United Kingdom. Therefore the provisions of the 1958 Ordinance fully apply to it. Section 3 of the Ordinance provides:-

‘3(1) Where a judgment has been obtained in the High Court in England or Ireland, or in the court session in Scotland, the judgment creditor may apply to a High Court at any time within twelve months after the date of the judgment or such longer period as may be allowed by the lower court, to have the judgment registered in the court, and on any such application the court may, if in all the circumstances of the case it thinks it just and convenient that the judgment should be enforced in Nigeria and subject to the provisions to be registered accordingly.’”

Now, in the consideration of this appeal I must apply the relevant provisions of Section 3(2) & (3). Cap 175 of the 1958 Laws of the Federation. The Section provides:

“(2) No judgment shall be ordered to be registered under this Ordinance if-

(a) the original court acted without jurisdiction; or

(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; or

(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court, and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or

(d) the judgment was obtained by fraud; or

(e) the judgment debtor satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal against the judgment; or

(f) the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court.

(3) Where a judgment is registered under this Ordinance-

(a) the judgment shall, as from the date of registration, be of the same force and effect, and proceedings may be taken thereon, as if it had been a judgment originally obtained or entered up on the date of registration in the registering court;

(b) the registering court shall have the same control and jurisdiction over the judgment as it has over similar judgments given by itself, but in so far only as relates to execution under this Ordinance;

(c) The reasonable costs of an incidental to the Registration of the judgment (including the costs of obtaining a certified copy thereof from the original court and of the application for registration) shall be recoverable in like manner as if they were sums payable under the judgment.”

Under section 3(2)(b) above, a judgment obtained in the High Court in England or Ireland can only be registered in Nigeria for the purpose of enforcement if the judgment debtor voluntarily appears or otherwise agrees to submit to the jurisdiction of that court in England.

The undisputed evidence before the trial court is that the respondent, although served out of jurisdiction with the processes leading to the judgment later registered, never appeared before the English court. He was not represented by counsel. In a blunt language, he just ignored the proceedings against him in the court in England.

Appellant’s counsel has in his brief argued that there was the need to preserve the special link between the Nigerian and English courts as evident in various High Court Laws and the Evidence Act which said special link imposes the necessity to ignore the English Common Law principles of Private International Law which were relied upon by the court below. Counsel relied on Re Dulles v. Vidler (Duties Settlement No.2) [1951] 1 Ch. 842. He further counseled on the desirability of following the modern trends in various countries where the approach followed is not based on the principle of “presence and submission” but “comity” and its offspring “jurisdictional reciprocity”. He called in aid the case of Brussels [1968] and Lugano [1988] Conventions on jurisdiction and enforcement of judgments in civil and commercial matters.

I have no doubt that it is inimical to the interest of trade and commerce if judgments in foreign countries cannot be readily enforced in Nigeria. It is particularly alarming that when in a case like this, a person ordinarily resident in Nigeria obtains a credit in England and in satisfaction issues a cheque which is later dishonoured, the judgment obtained against him cannot be enforced in Nigeria. Under Section 3(2)(b) above, the judgment of a court in England cannot be enforced in Nigeria on the ground that a defendant has not submitted to the jurisdiction of the English court. There is an urgent need to reform our law on the matter. It is an open invitation to fraud and improper conduct.

The learned author of Cheshire and North Private International Law 10th edition at P.98 discusses the position of the Common Law in England in these words:-

“English law stands aloof from this doctrine. It remains staunch by the principle that ‘a court has no power to exercise jurisdiction over anyone beyond its limits’ and insists that no action in personam will be against a defendant unless he has been served with a writ while present in England or unless by virtue of some statutory power, notice of the writ has been served on him abroad.” Cited in support of the position in the case Re Busfield (1886) 32 Ch. D. 123 at p.131.”

There is as yet no amendment of the law in Nigeria to reflect the various developments in the world which recognize the principle of “comity” and jurisdictional reciprocity

Appellant’s counsel further referred us to the case of Dale Power Systems Plc v. Witt & Busch Ltd. (2001) 8 N. W.L.R. (Pt. 716) 699. Incidentally, I wrote the lead judgment in that case. The issues involved in that appeal are not the same as in this one. The court below before finally concluding had discussed the decisions given to similar provisions of the Law thus:

“It is clear from the above mentioned decisions that the interpretation given to similar provisions as those in section 6 of the Nigerian Act is that a registration of any foreign judgment made under Section 4 of the Act will be set aside if the registering court is satisfied that the courts of the country of the original court had no jurisdiction and those courts will be deemed not to have such jurisdiction, if, inter alia, the judgment debtor did not submit to the jurisdiction of the court by appearing in the proceedings: See also Cheshire & North, Private International Law 10th ed. P.629 et seq.”

Let me add that if I had to consider this appeal on the supposition that section 6(2)(a)(i) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap.152 LFN 1990 applied, I would still have affirmed the decision of the court below.

I am satisfied that the court below was right in its decision even if I find the decision harsh in its effect. I affirm it and would accordingly dismiss this appeal. I make no order as to costs.

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SC.373/2002