Mike Momah V. Vab Petroleum Inc. (2000)
LAWGLOBAL HUB Lead Judgment Report
UWAIS, C.J.N.
This is an interlocutory appeal from the decision of the Court of Appeal, Lagos Division. The appellant herein is judgment debtor to a judgment delivered by the High Court of Justice, Queen’s Bench Division, (Commercial Court) London, United Kingdom, while the respondent herein is the judgment creditor to the said foreign judgment which was obtained in 1991.
In 1993, the judgment creditor brought a motion on notice in the High Court of Lagos State, holden at Lagos, seeking an order of that Court to register the foreign judgment in question, question pursuant to the provisions of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, J 990. The motion was contested by the judgment debtor but it was granted by Adeniji J. in a considered ruling.
Being dissatisfied with the ruling, the judgment debtor appealed to the Court of Appeal. He also filed a motion on notice in that Court in which he inter alia prayed for
“1.An order staying execution of the order made in this suit on the 14th of December, 1993 by the Honourable Justice A. B. Adeniji of the High Court of Lagos sitting in Lagos wherein he ordered the registration of the foreign judgment of the High Court of Justice of the Queen’s Bench Division of England pending the determination of the appeal filed in this Honourable Court.”
After filing series of affidavits, counter-affidavits and replies to counter affidavits, the motion was heard by the Court of Appeal and a considered ruling was delivered on the 25th day of June, 1995 by Pats-Acholanu, LC.A. (with whom Kalgo, J.C.A., as he then was, and Ibrahim Tanko Muhammad, J .C.A. concurred).
He dismissed the application in a some what lengthy ruling dealing in some respects with the substance and merit of the appeal which the Court of Appeal was yet to hear and determine. In my opinion, this is, with utmost respect, prejudicial, irregular and undesirable.
Fortunately, it is a different panel of the Court below that will now hear the pending appeal. Be that as it may, the ruling was concluded thus:-
“In the circumstances the application fails. However, as the respondent (i.e. VAB Petroleum Incorporated – the judgment creditor) has no asset in this country, the sum of money shall be deposited with the Deputy Chief Registrar of this Court who will open account with USA and which will yield high interest rate until the determination of the appeal”,
The judgment debtor felt aggrieved by the ruling and the consequential order and therefore, appealed to this court filing seven grounds of appeal.
Appellant’s and respondent’s briefs of argument were filed and exchanged by parties. The issues formulated by the Appellant for our determination are as follows:-
“2.1Whether the Court of Appeal was right in refusing to grant a stay of execution
2.2Whether their Lordships of the Court of Appeal did or did not exercise their discretion judiciously and judicially on the materials before them in refusing the Appellant’s Application for Stay of Execution of the ruling of the High Court
2.3 Whether their Lordships of the Court of Appeal could in dismissing the appellant’s Application for stay of the High Court’s ruling, also by the same ruling, make an order for payment of the judgment debt to the Deputy Chief Registrar of the Court below
2.3 In view of the provisions of Section 4(3) of the Foreign Judgments (Reciprocal Enforcement) Act Cap. 152 requiring foreign currency to be converted to Naira before being registered by the High Court, was the court below right in ordering the Appellant to pay the judgment debt of USD316,363.75to the Deputy Chief Registrar of the court below”
The respondent’s brief of argument contains three issues for our determination and they are
“(A)Whether a litigant who abandons his right of appeal against a judgment of a court or competent jurisdiction outside Nigeria, can seek to nullify the said judgment here in Nigeria without first doing so in the appropriate appellate court where the judgment was given;
(B) Whether in an application for a stay of execution, the Court of Appeal, faced with very clear evidence of mutual fears by both parties to the dispute for the safety of the judgment sum, can make appropriate order(s) pursuant to its inherent powers and also under section 16 of the Court of Appeal Decree 1976, directing that the said judgment sum be paid into the Registry of the Court pending the determination of the appeal after and quite independent of its ruling on the application before it;
(C) Whether in the circumstances of this appeal, the court below in dealing with proceedings for a stay of execution of judgment should not take into account, the conduct of parties to the dispute as reflected in evidence before the court in considering whether to grant or dismiss the application for a stay”.
In my opinion, issue (A) is not based on any of the seven grounds of appeal filed by the Appellant. I will have to therefore, discountenance it. On the other hand issues (B) and (C) correspond with appellant’s issues Nos. 2.1, 2.2 and 2.3. The later issues can conveniently accommodate the respondent’s issues in determining the questions in this appeal. Consequently I intend to rely on the issues formulated by the appellant in determining the appeal.
Issue Nos. 2.1
The appellant’s argument is that the grounds of appeal raised substantial and arguable points of law. It is submitted that the Court of Appeal conceded this point when it held (per Pats-Acholonu, J.C.A.) – “Merely having substantial grounds of appeal is not enough to sustain an application for a stay of execution or stay of proceedings, as the case may be”. It is further argued that the balance of convenience in the case is in favour of the court below granting to the judgment debtor a stay of execution pending determination of the appeal. It was emphasized that this is so since the judgment creditor had no assets in Nigeria and the judgment debtor had deposed that he had real property in Nigeria. The cases of Fawehinmi v. Akilu, (1990) 1 NWLR (Pt. 127) 450 at p. 470 and Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 at p. 136;were cited in support.
On the conflicting facts deposed to in the numerous affidavits filed by the parties, which the Court of Appeal alluded to in its ruling, the judgment debtor contends that the conflict was not resolved by calling oral evidence and the Court of Appeal was wrong in resolving the contradictions in the affidavits in favour of the respondent. The case of Onagoruwa v. Adeniji (1993) 5 NWLR (Pt. 293) 317 was cited in support of the argument.
Respondent replied that the application for stay of execution should have been brought by the appellant in London, where the judgment in default of appearance was obtained, and not in Nigeria. The fact that the appellant had failed in 1991 to pay the judgment debt in full made the courts below refuse his application for stay of execution. Relying on the case of Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257, it is argued that there were no special or exceptional circumstances to make the courts below deprive the respondent of the fruits of his success in obtaining judgment against the appellant.
The respondent further contends that the discretion whether to grant or refuse stay of execution was exercised by the High Court and not the Court of Appeal. That the appellant’s case in the latter court was an appeal against the refusal of the High Court to grant him stay. The Court of Appeal did not exercise any discretion to refuse the appellant stay but simply upheld the decision of the High Court since it was concerned with whether the High Court acted correctly in refusing the application for stay of execution. In conclusion, relying on the dictum of Karibi Whyte, J.S.C in Ajamale v. Yadu’at (No.2)(1991) 5 NWLR(Pt. 191) 266 at p. 294 E-G, the respondent submitted that had the Court of Appeal granted stay to the appellant it would have acted erroneously since the res would have been in possession of the appellant who had been shown to be reckless in spending.
Now, let me first of all correct the misconception by the respondent that what was before the Court of Appeal was not an application for stay of execution but an appeal against the refusal by the High Court to grant stay. Nothing can be farther from the truth. The motion on notice for stay in the High Court was dated the 14th day of December, 1993, while that which he brought before the Court of Appeal was dated the 5th day of May, 1994. In paragraph 7 of the affidavit in support of the latter application it was deposed –
“7 That on the same 4th day of May, 1994 the High Court of Justice of Lagos (sic) refused and dismissed the application for stay of execution of its order pending the determination of appeal.”
The next paragraph in the appellant’s affidavit stated that a certified copy of the ruling was applied for but was not made available by the High Court. In its counter-affidavit, the respondent failed to allude to the depositions in paragraphs 7 and 8 of the appellant’s affidavit.
The appeal pending before the Court of Appeal is against the ruling on the application by the respondent to the High Court for an order granting leave to have the foreign judgment registered. It was yet to be determined by the Court below by the time the appellant’s application for stay of execution was heard by the High Court.
I now return to the issue under consideration. The basic principle for grant of stay of execution has been laid down by this Court in a long line of authorities including the cases of Vaswani Trading Company v. Savalakh, (1972) 12 S.C. 77. Okafor & Ors v. Nnaife, (1987) 4 NWLR (Pt. 64) 129 and U.B.N. Ltd v. Odusote Bookstore Ltd. (1994) 3 NWLR (Pt. 331) 129. It is inter alia required that special or strong circumstances must exist before a stay could be granted. The essence of such stay is to maintain the status quo ante in order to ensure that the res which is the subject matter of the appeal, is not destroyed to render the proceedings nugatory. In the present case, the Court below examined the grounds of appeal filed by the appellant against the ruling of the learned trial judge granting the application for leave to register the foreign judgment, and came to the conclusion that “… it would seem the grounds of appeal appear ex facie to raise important issues of law.” Next in considering the appellant’s application, the Court below stated as follows –
“Merely having substantial grounds of appeal is not enough to sustain an application for a stay of execution or stay of proceedings, as the case may be. In all cases the court would have to look at the depositions in the affidavit to determine or discern the conduct of the applicant. The court would naturally examine whether there exist special circumstances which would enable the court to make the order sought before exercising the discretionary remedy.
It must equally be admitted that the discretion of the Court to grant a stay will be based on the balance of convenience depending on the facts before the court”.
The court then examined the affidavits and further affidavits filed by the appellant in support of his application and came to the conclusion that there were inherent contradictions in the facts deposed in them and went on to hold:-
“He has not been telling the truth in his affidavit and where inconsistencies in the affidavit evidence are not resolved by the dependent it is not for this court to resolve them but the dependent, if he can wriggle out of the net engulfing him.
In the application, the applicant has not been honest in disclosure of certain facts … In an application of this nature what the court needs are hard unadulterated facts substantial and credible enough to sustain the prayer sought… Where the facts consist of wool to cover the eye of the court, (sic) the applicant would have failed woefully …In the circumstances, the application fails”.
It will be observed from the foregoing that the court below was concerned with the intrinsic contradictions in the affidavits filed by the appellant in support of his application and not the contradictions apparent between the appellant’s affidavits on one hand and the respondent’s affidavit on the other. While in the former case the contradictions do not call for the hearing of oral evidence in order to resolve them; in the latter case the contradictions must be resolved by oral evidence before the court below could rely on any of the contradicting depositions to reach a decision. It is the former position that the court below relied upon to reject the appellant’s application. The argument of the appellant which has been based on the latter position, is a misconception. It is, therefore, irrelevant and unhelpful to his case.
On the whole, it cannot be said that the Court of Appeal did not exercise its discretion judicially and judiciously in coming to the conclusion not to grant stay.
It is the balance of convenience that tilts the scale always in determining whether to grant a stay. The court below was not satisfied with the facts deposed to in the affidavits in support of the appellant’s application. It could not, therefore, in good conscience, grant him stay. In other words the balance of convenience in the case was not in favour of the appellant. For my part, I do not see any error in the decision of the Court of Appeal in this respect and cannot hold that it acted wrongly in refusing the stay.
Issue No. 2.2
This issue, which raises the question whether the Court of Appeal exercised its discretion judicially and judiciously, has been argued by the appellant summarily. It is submitted that the facts before the Court of Appeal and the circumstances of the case when considered vis-a-vis the authorities cited above, the appellant had put forward a good case for unconditional stay of execution to be granted.
Learned Counsel for the respondent did not meet this argument in the respondent’s brief nor in his oral address before us because, as pointed out earlier, he had misconceived the issue that was before the Court of Appeal as not being an application for Stay of execution but an appeal from the decision of the High Court refusing stay.
As already pointed out, while considering appellant’s first issue for determination, the Court of Appeal refused to grant the stay because it found that the affidavit and further affidavits filed in support of the appellant’s application before it were contradictory and unreliable. The finding is sound and has not successfully been faulted by the appellant. It is, therefore, not right for the appellant to contend that the decision by the Court of Appeal to refuse stay was not reached judicially and judiciously.
Issue No. 2.3
The question raised here is whether the Court of Appeal was right in consequential order after refusing to grant the application for stay of execution. The order again reads:-
“However, as the respondent has no asset in this country, the sum of money shall be deposited with the Deputy Chief Registrar of this court who will open account with UBA and which will yield high interest rate until the determination of the appeal”.
It is contended by the appellant that the Court of Appeal could not dismiss the application for stay and at the same time make the consequential order when it agreed with the appellant that the respondent had no assets in Nigeria. It is further contended that the court below had become functus officio on dismissing the application and that the only consequential order it could rightly have made was as to costs in the application. The order was, therefore, made without jurisdiction and as a result it is a nullity. The following cases we’re cited to support the contention -Alao v. C.O. P. (1987)4 NWLR(Pt. 64) 199 and Saeckler v. Tanimola (1995) 4 NWLR (Pt. 389) 370 at p. 378.
In reply, the respondent pointed out that there was mutual fear by the parties about the safety of the res in the case. The counter-affidavit to the application for stay made in the Court of Appeal, which was sworn to by learned counsel for the respondent, was referred to. Paragraphs 12 to 14 thereof state thus:
“(12) That the above financial status notwithstanding, I am concerned with the spending habit of the said Mr. Momah, which naturally constitutes a danger to res, in that:
(a) Since the inception of the proceedings in this suit, Mr. Momah has purchased more than four (4) luxury cars including a Merceds Benz 600 registered as LA 6926 RA and a Honda Legend Saloon
(b) That three months ago in October, 1993, while this case was in progress, Mr. Momah displayed an unnecessary trait of imprudence by spending about N500,000.00 to sponsor a Lawn Tennis Tournament at Port Authority Sports Grounds, Surulere, Lagos, whereat participants collected cash prizes ranging from N70,000.00 for the winner, to lesser figures for runner-ups (sic). I attach a copy of the invitation for the closing ceremony invitation marked herein as Exhibit “R”
(13) That by this style of spending, I believe it would be in the interests of parties to this suit, in order to preserve the judgment debt, if the said debt is paid into this Honourable Court for a prudent deposit into an interest earning escrow account With a bank nominated by this Court.
(14) That by this measure, both parties to this suit will rest assured that the res is preserved to await collection at the end of the appeal which the 2nd applicant, Mr. Momah, intends to canvass”.
The cases of Nwabueze v. Nwosu (1988) 4 NWLR (PI.88) 257; First Bank v. Doyin Investment (1989) I NWLR (Pt. 99) 634 were cited in support. It is also argued on the authority of Union Bank of Nigeria v. Odusote Bookshop (supra) at p. 152, per Olatawura, J.S.C, that it is dangerous and risky to leave the judgment debt in the hands of the judgment debtor, even if he is rich and furthermore, to do so is to deny the respondent the fruits of his success. Reliance is also placed on section 16 of the Court of Appeal Act, Cap, 75 of the Laws of the Federation of Nigeria, 1990 which stales in part –
‘The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal” It is argued that despite the dismissal of the application for stay, the question of preserving the judgment sum remained pending as a real issue to be determined by the Court of Appeal. Consequently the order made for the payment of the judgment debt into court was within the inherent jurisdiction of the Court which has been emphasised by section 16 of the Court of Appeal Act, Cap, 75, There is no doubt that the question whether the Court of Appeal acted properly in making the consequential order raises the issue of jurisdiction. For if the Court had jurisdiction the order would be valid and proper, and if it had no jurisdiction the order would be a nullity and therefore void. In Anisminic v. Foreign Compensation Commission (1969) 2 WLR 163, Lord Pearce observed on p, 192 thereof as follows:-
“Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction.”
This dictum received the approval of this Court in Okupe v. F. B. I. R. (1974) N.S.C.C. 200 at pp.209 – 210.
In Obayagbona & Anor. v. Obazee (1972) 5 S.C. 247, the learned trial judge (Irikefe, J. as he then was) in the High Court of Mid-Western State of Nigeria entered judgment for the plaintiffs and made a number of consequential orders one of which reads –
“I am of the view that the conduct of the plaintiffs was unconscionable and was an in direct attempt to prejudice the rights of the defendants. Both exhibits ‘A’ and ‘Y’ show that the plaintiffs have not succeeded in respect of all the land said to be in dispute and the effect thereof is that the defendants have succeeded to the extent that the plaintiffs have failed. For the above reasons I order that each party should bear its own costs.”
The plaintiffs appealed to the Federal Supreme Court against the consequential order seeking the relief that judgment for the entire land in dispute be entered in their favour and that the defendants be condemned in costs for the proceedings in the High Court. It was held, per Sowemimo, J.S.C., (as he then was) in the judgment of the Court, that the trial judge having entered judgment for the plaintiffs as claimed was wrong to have whittled down the effect of the plaintiffs victory by depriving them of costs, even though the award of costs was discretionary. It was also held that the learned trial Judge was wrong to make consequential orders which had the effect of varying his judgment in favour of the plaintiffs and which in any case were not specifically asked for. It was further held that the learned trial judge was functus officio immediately after he gave his judgment. so that both the consequential orders which he made as well as his misconception of the judgment when considering the issue of costs were made without jurisdiction.
In the case of The Registered Trustees of The Apostolic Church v. Olowoleni. (1990) 6 NWLR (Pt. 158) 514, the plaintiffs sued the defendant for trespass over their church’s land by entering and dumping laterite thereupon and asked for perpetual injunction against the defendant. While the action was pending for hearing before the trial court, the plaintiffs built wall around the land in dispute. At the end of the trial learned Judge entered judgment for the defendant and made a consequential order for the wall to be pulled down by the plaintiffs. On appeal to the Court below the plaintiffs lost and the consequential order was upheld. On further appeal to this Court, the decision in Obayagbona & Anor. v. Obazee, (supra) was distinguished (per Olatawura, JSC at pp.530-531) on the ground that the evidence adduced in the case supported the consequential order made. It went on to observe –
“It is a misconception to submit that consequential order made by a court must of necessity be based on the reliefs claimed. The basis of an order made by the court must be looked for from the evidence before the court. It is trite law that the court cannot award more than is claimed. It is equally misconceived that an order cannot be made in favour of a defendant simply because he has not filed a counterclaim. An order made in favour of a defendant even where he had not made a counter-claim must flow from the evidence and more so if the justice of the case demands.”
However, the concurring judgments of Obaseki and Nnaemeka-Agu JJ.S.C. in the case indicate that the consequential order was made as a punishment against the plaintiffs for their contempt of the trial court. Obaseki, J.S.C. observed on p. 532 thereof –
“The dispute in this matter having been handed to the Court for determination, the appellants cannot be allowed to take the law into their own hands. The Rule of Law and the Rule of Force are mutually exclusive – Law rules by reason and morality. Force rules by violence and immorality”.
While Nnaemeka-Agu, JSC stated on p.537 thereof –
“Thus it is clear that the learned trial judge made the (consequential) order not as an award to the respondents (sic) as such but in order to punish the appellants for what he considered an act of abuse and intentional disrespect in the proceedings before him. Therefore the question as to whether he thereby played ‘Father Christmas’ to the respondent by awarding to her what she did not claim does not arise.
The appellant further complained that the court could not have made the order suo motu, as there was no counter-claim before the court in which the relief was claimed. The truth is that the complaint of it was made to the learned trial judge”.
It is to be noted that the principles laid down by Obayagbona & Anor. v. Obazee, (supra) were followed by this court in Akinbobola v. Plisson Fisko, (1991) 1 NWLR. (Pt. 167) 270 at pp. 278A-B, 279A-286. The decisions in Alao’s case (supra) and Saeckler’s case (supra). relied upon by the appellant, are decisions by the Court of Appeal.
It is usual for an appellate court to order, as a condition, where an application for stay of execution is granted, the judgment debtor to deposit in court the judgment debt pending determination of appeal. However, it is not usual for an appellate court to refuse an application for stay and yet impose a condition against the applicant. It is true that in the present case, the respondent did not apply in the court below for the judgment debt to be deposited in the court pending determination of the appeal before it. Could it then be said that the order made by the Court below is consequential or “conditional” to the refusal of the application for stay As held in Obayagbona’s case (supra) any consequential order must be such that gives effect to the judgment given. It was held further in the case at page 254 thereof
” In its ordinary dictionary meaning the word ‘consequential’ means ‘following as a result, or inference; following or resulting indirectly.’ See the Concise Oxford Dictionary 5th Edition, Page o 258. The word has never been regarded as a term of art. .. A consequential order therefore made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction because at that stage, having determined the rights of the parties by giving judgment for (the) plaintiffs as claimed the judge has become functus officio except for any act permitted by law or rules of court.”
There can be no doubt that the consequence of the refusal to order stay of execution in the present case is, by inference, that the respondent, as judgment creditor, is entitled to enforce the judgment in his favour. In my opinion, therefore, the order that the appellant should deposit the judgment debt in court to be kept in a bank account does not detract from the dismissal of the application for stay of execution. It appears to me that the consequential order is, in effect or by implication, the same as an order for stay of execution with a condition that the judgment debt should be paid into court instead of the appellant’s title deeds being deposited in court as prayed. For if the consequential order is complied with, the respondent will not be in a position to execute the foreign judgment before determination of the appeal in the court below. Furthermore, the Court of Appeal has the jurisdiction under section 16 of the Court of Appeal Act, Cap. 75 to have made the consequential order. As a result I see no merit in this issue.
Issue No. 2.4
The last question for determination is whether the court below was right to order that the judgment debt should be paid in United States dollars contrary to the provisions of section 4 subsection (3) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152.
Relying on the provisions, the appellant argues that the learned trial judge in the High Court, who ruled that the foreign judgment should be registered, should have determined the Naira equivalent of the judgment debt of US$316,363.75. It is submitted that since this was not done the Court of Appeal could not have rightly made the order for the judgment debt to be deposited in the United States dollars.
Instead, it is contended, that the court below should have taken the easiest and fairest way out by ordering the appellant to deposit his title deeds with the court below as a condition for granting a stay pending appeal.
In reply, the respondent argues that section 4 subsection (3) does not prohibit the mentioning, in an application for registration of judgment, of any currency other than the Naira. He explains that at the time the High Court granted the application to register the foreign judgment, the judgment had not been registered, and that the ruling of the High Court did not direct that the judgment sum in the foreign judgment should be registered in United States dollars as the appellant contends. It is submitted that on the authority of Olaogun Enterprises Ltd. v. S.J.M; (1992) 4 NWLR (Pt. 235)361 and Schorsch Meier GmbH v. Hennin (1975) 1 All ER. 152, a party to a suit is entitled to make his claim in court in Nigeria in either the local currency or in foreign currency if the basis of the transaction between the parties sought to be enforced is in foreign currency.
Now section 4 subsection (3) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 provides-
“(3) Where the sum payable under a judgment which is to be registered is expressed in a currency other than the currency of Nigeria, the judgment shall be registered as if it were a judgment for such sum in the currency of Nigeria as, on the basis of the rate of exchange prevailing at the date of the judgment of the original court, is equivalent to the sum so payable.
It is to be noted that these provisions are concerned with the registration of a foreign judgment, while the issue before us and indeed before the Court of Appeal in this respect, is of the execution of the foreign judgment. It does not matter that the consequential order made by the Court of Appeal has been in foreign currency since there is no inhibition that a substantive claim could be brought in foreign currency – See Metronex (Nig.) Ltd v. Griffin & George Ltd. (1991) 1 NWLR (Pt 169) 651 at p. 659; Olaogun Enterprises Ltd. case (supra) at p. 385e and Prospect ile Mills (Nig.) Ltd. v. I.C.I. Plc England (1996) 6 NWLR (Pt. 457) 668 at p. 682. It follows that there is no substance in this issue.
It is significant to point out that the exchange rate, as at the date the Court of Appeal made the order for the judgment debt to be deposited, can be easily ascertained from the Central Bank of Nigeria by either party, in the event of any doubt, if it becomes necessary for the judgment debt to be deposited in Naira. It is significant that the consequential order
This is an interlocutory appeal from the decision of the Court of Appeal, Lagos Division. The appellant herein is judgment debtor to a judgment delivered by the High Court of Justice, Queen’s Bench Division, (Commercial Court) London, United Kingdom, while the respondent herein is the judgment creditor to the said foreign judgment which was obtained in 1991.
In 1993, the judgment creditor brought a motion on notice in the High Court of Lagos State, holden at Lagos, seeking an order of that Court to register the foreign judgment in question, question pursuant to the provisions of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, J 990. The motion was contested by the judgment debtor but it was granted by Adeniji J. in a considered ruling.
Being dissatisfied with the ruling, the judgment debtor appealed to the Court of Appeal. He also filed a motion on notice in that Court in which he inter alia prayed for
“1.An order staying execution of the order made in this suit on the 14th of December, 1993 by the Honourable Justice A. B. Adeniji of the High Court of Lagos sitting in Lagos wherein he ordered the registration of the foreign judgment of the High Court of Justice of the Queen’s Bench Division of England pending the determination of the appeal filed in this Honourable Court.”
After filing series of affidavits, counter-affidavits and replies to counter affidavits, the motion was heard by the Court of Appeal and a considered ruling was delivered on the 25th day of June, 1995 by Pats-Acholanu, LC.A. (with whom Kalgo, J.C.A., as he then was, and Ibrahim Tanko Muhammad, J .C.A. concurred).
He dismissed the application in a some what lengthy ruling dealing in some respects with the substance and merit of the appeal which the Court of Appeal was yet to hear and determine. In my opinion, this is, with utmost respect, prejudicial, irregular and undesirable.
Fortunately, it is a different panel of the Court below that will now hear the pending appeal. Be that as it may, the ruling was concluded thus:-
“In the circumstances the application fails. However, as the respondent (i.e. VAB Petroleum Incorporated – the judgment creditor) has no asset in this country, the sum of money shall be deposited with the Deputy Chief Registrar of this Court who will open account with USA and which will yield high interest rate until the determination of the appeal”,
The judgment debtor felt aggrieved by the ruling and the consequential order and therefore, appealed to this court filing seven grounds of appeal.
Appellant’s and respondent’s briefs of argument were filed and exchanged by parties. The issues formulated by the Appellant for our determination are as follows:-
“2.1Whether the Court of Appeal was right in refusing to grant a stay of execution
2.2Whether their Lordships of the Court of Appeal did or did not exercise their discretion judiciously and judicially on the materials before them in refusing the Appellant’s Application for Stay of Execution of the ruling of the High Court
2.3 Whether their Lordships of the Court of Appeal could in dismissing the appellant’s Application for stay of the High Court’s ruling, also by the same ruling, make an order for payment of the judgment debt to the Deputy Chief Registrar of the Court below
2.3 In view of the provisions of Section 4(3) of the Foreign Judgments (Reciprocal Enforcement) Act Cap. 152 requiring foreign currency to be converted to Naira before being registered by the High Court, was the court below right in ordering the Appellant to pay the judgment debt of USD316,363.75to the Deputy Chief Registrar of the court below”
The respondent’s brief of argument contains three issues for our determination and they are
“(A)Whether a litigant who abandons his right of appeal against a judgment of a court or competent jurisdiction outside Nigeria, can seek to nullify the said judgment here in Nigeria without first doing so in the appropriate appellate court where the judgment was given;
(B) Whether in an application for a stay of execution, the Court of Appeal, faced with very clear evidence of mutual fears by both parties to the dispute for the safety of the judgment sum, can make appropriate order(s) pursuant to its inherent powers and also under section 16 of the Court of Appeal Decree 1976, directing that the said judgment sum be paid into the Registry of the Court pending the determination of the appeal after and quite independent of its ruling on the application before it;
(C) Whether in the circumstances of this appeal, the court below in dealing with proceedings for a stay of execution of judgment should not take into account, the conduct of parties to the dispute as reflected in evidence before the court in considering whether to grant or dismiss the application for a stay”.
In my opinion, issue (A) is not based on any of the seven grounds of appeal filed by the Appellant. I will have to therefore, discountenance it. On the other hand issues (B) and (C) correspond with appellant’s issues Nos. 2.1, 2.2 and 2.3. The later issues can conveniently accommodate the respondent’s issues in determining the questions in this appeal. Consequently I intend to rely on the issues formulated by the appellant in determining the appeal.
Issue Nos. 2.1
The appellant’s argument is that the grounds of appeal raised substantial and arguable points of law. It is submitted that the Court of Appeal conceded this point when it held (per Pats-Acholonu, J.C.A.) – “Merely having substantial grounds of appeal is not enough to sustain an application for a stay of execution or stay of proceedings, as the case may be”. It is further argued that the balance of convenience in the case is in favour of the court below granting to the judgment debtor a stay of execution pending determination of the appeal. It was emphasized that this is so since the judgment creditor had no assets in Nigeria and the judgment debtor had deposed that he had real property in Nigeria. The cases of Fawehinmi v. Akilu, (1990) 1 NWLR (Pt. 127) 450 at p. 470 and Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 at p. 136;were cited in support.
On the conflicting facts deposed to in the numerous affidavits filed by the parties, which the Court of Appeal alluded to in its ruling, the judgment debtor contends that the conflict was not resolved by calling oral evidence and the Court of Appeal was wrong in resolving the contradictions in the affidavits in favour of the respondent. The case of Onagoruwa v. Adeniji (1993) 5 NWLR (Pt. 293) 317 was cited in support of the argument.
Respondent replied that the application for stay of execution should have been brought by the appellant in London, where the judgment in default of appearance was obtained, and not in Nigeria. The fact that the appellant had failed in 1991 to pay the judgment debt in full made the courts below refuse his application for stay of execution. Relying on the case of Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257, it is argued that there were no special or exceptional circumstances to make the courts below deprive the respondent of the fruits of his success in obtaining judgment against the appellant.
The respondent further contends that the discretion whether to grant or refuse stay of execution was exercised by the High Court and not the Court of Appeal. That the appellant’s case in the latter court was an appeal against the refusal of the High Court to grant him stay. The Court of Appeal did not exercise any discretion to refuse the appellant stay but simply upheld the decision of the High Court since it was concerned with whether the High Court acted correctly in refusing the application for stay of execution. In conclusion, relying on the dictum of Karibi Whyte, J.S.C in Ajamale v. Yadu’at (No.2)(1991) 5 NWLR(Pt. 191) 266 at p. 294 E-G, the respondent submitted that had the Court of Appeal granted stay to the appellant it would have acted erroneously since the res would have been in possession of the appellant who had been shown to be reckless in spending.
Now, let me first of all correct the misconception by the respondent that what was before the Court of Appeal was not an application for stay of execution but an appeal against the refusal by the High Court to grant stay. Nothing can be farther from the truth. The motion on notice for stay in the High Court was dated the 14th day of December, 1993, while that which he brought before the Court of Appeal was dated the 5th day of May, 1994. In paragraph 7 of the affidavit in support of the latter application it was deposed –
“7 That on the same 4th day of May, 1994 the High Court of Justice of Lagos (sic) refused and dismissed the application for stay of execution of its order pending the determination of appeal.”
The next paragraph in the appellant’s affidavit stated that a certified copy of the ruling was applied for but was not made available by the High Court. In its counter-affidavit, the respondent failed to allude to the depositions in paragraphs 7 and 8 of the appellant’s affidavit.
The appeal pending before the Court of Appeal is against the ruling on the application by the respondent to the High Court for an order granting leave to have the foreign judgment registered. It was yet to be determined by the Court below by the time the appellant’s application for stay of execution was heard by the High Court.
I now return to the issue under consideration. The basic principle for grant of stay of execution has been laid down by this Court in a long line of authorities including the cases of Vaswani Trading Company v. Savalakh, (1972) 12 S.C. 77. Okafor & Ors v. Nnaife, (1987) 4 NWLR (Pt. 64) 129 and U.B.N. Ltd v. Odusote Bookstore Ltd. (1994) 3 NWLR (Pt. 331) 129. It is inter alia required that special or strong circumstances must exist before a stay could be granted. The essence of such stay is to maintain the status quo ante in order to ensure that the res which is the subject matter of the appeal, is not destroyed to render the proceedings nugatory. In the present case, the Court below examined the grounds of appeal filed by the appellant against the ruling of the learned trial judge granting the application for leave to register the foreign judgment, and came to the conclusion that “… it would seem the grounds of appeal appear ex facie to raise important issues of law.” Next in considering the appellant’s application, the Court below stated as follows –
“Merely having substantial grounds of appeal is not enough to sustain an application for a stay of execution or stay of proceedings, as the case may be. In all cases the court would have to look at the depositions in the affidavit to determine or discern the conduct of the applicant. The court would naturally examine whether there exist special circumstances which would enable the court to make the order sought before exercising the discretionary remedy.
It must equally be admitted that the discretion of the Court to grant a stay will be based on the balance of convenience depending on the facts before the court”.
The court then examined the affidavits and further affidavits filed by the appellant in support of his application and came to the conclusion that there were inherent contradictions in the facts deposed in them and went on to hold:-
“He has not been telling the truth in his affidavit and where inconsistencies in the affidavit evidence are not resolved by the dependent it is not for this court to resolve them but the dependent, if he can wriggle out of the net engulfing him.
In the application, the applicant has not been honest in disclosure of certain facts … In an application of this nature what the court needs are hard unadulterated facts substantial and credible enough to sustain the prayer sought… Where the facts consist of wool to cover the eye of the court, (sic) the applicant would have failed woefully …In the circumstances, the application fails”.
It will be observed from the foregoing that the court below was concerned with the intrinsic contradictions in the affidavits filed by the appellant in support of his application and not the contradictions apparent between the appellant’s affidavits on one hand and the respondent’s affidavit on the other. While in the former case the contradictions do not call for the hearing of oral evidence in order to resolve them; in the latter case the contradictions must be resolved by oral evidence before the court below could rely on any of the contradicting depositions to reach a decision. It is the former position that the court below relied upon to reject the appellant’s application. The argument of the appellant which has been based on the latter position, is a misconception. It is, therefore, irrelevant and unhelpful to his case.
On the whole, it cannot be said that the Court of Appeal did not exercise its discretion judicially and judiciously in coming to the conclusion not to grant stay.
It is the balance of convenience that tilts the scale always in determining whether to grant a stay. The court below was not satisfied with the facts deposed to in the affidavits in support of the appellant’s application. It could not, therefore, in good conscience, grant him stay. In other words the balance of convenience in the case was not in favour of the appellant. For my part, I do not see any error in the decision of the Court of Appeal in this respect and cannot hold that it acted wrongly in refusing the stay.
Issue No. 2.2
This issue, which raises the question whether the Court of Appeal exercised its discretion judicially and judiciously, has been argued by the appellant summarily. It is submitted that the facts before the Court of Appeal and the circumstances of the case when considered vis-a-vis the authorities cited above, the appellant had put forward a good case for unconditional stay of execution to be granted.
Learned Counsel for the respondent did not meet this argument in the respondent’s brief nor in his oral address before us because, as pointed out earlier, he had misconceived the issue that was before the Court of Appeal as not being an application for Stay of execution but an appeal from the decision of the High Court refusing stay.
As already pointed out, while considering appellant’s first issue for determination, the Court of Appeal refused to grant the stay because it found that the affidavit and further affidavits filed in support of the appellant’s application before it were contradictory and unreliable. The finding is sound and has not successfully been faulted by the appellant. It is, therefore, not right for the appellant to contend that the decision by the Court of Appeal to refuse stay was not reached judicially and judiciously.
Issue No. 2.3
The question raised here is whether the Court of Appeal was right in consequential order after refusing to grant the application for stay of execution. The order again reads:-
“However, as the respondent has no asset in this country, the sum of money shall be deposited with the Deputy Chief Registrar of this court who will open account with UBA and which will yield high interest rate until the determination of the appeal”.
It is contended by the appellant that the Court of Appeal could not dismiss the application for stay and at the same time make the consequential order when it agreed with the appellant that the respondent had no assets in Nigeria. It is further contended that the court below had become functus officio on dismissing the application and that the only consequential order it could rightly have made was as to costs in the application. The order was, therefore, made without jurisdiction and as a result it is a nullity. The following cases we’re cited to support the contention -Alao v. C.O. P. (1987)4 NWLR(Pt. 64) 199 and Saeckler v. Tanimola (1995) 4 NWLR (Pt. 389) 370 at p. 378.
In reply, the respondent pointed out that there was mutual fear by the parties about the safety of the res in the case. The counter-affidavit to the application for stay made in the Court of Appeal, which was sworn to by learned counsel for the respondent, was referred to. Paragraphs 12 to 14 thereof state thus:
“(12) That the above financial status notwithstanding, I am concerned with the spending habit of the said Mr. Momah, which naturally constitutes a danger to res, in that:
(a) Since the inception of the proceedings in this suit, Mr. Momah has purchased more than four (4) luxury cars including a Merceds Benz 600 registered as LA 6926 RA and a Honda Legend Saloon
(b) That three months ago in October, 1993, while this case was in progress, Mr. Momah displayed an unnecessary trait of imprudence by spending about N500,000.00 to sponsor a Lawn Tennis Tournament at Port Authority Sports Grounds, Surulere, Lagos, whereat participants collected cash prizes ranging from N70,000.00 for the winner, to lesser figures for runner-ups (sic). I attach a copy of the invitation for the closing ceremony invitation marked herein as Exhibit “R”
(13) That by this style of spending, I believe it would be in the interests of parties to this suit, in order to preserve the judgment debt, if the said debt is paid into this Honourable Court for a prudent deposit into an interest earning escrow account With a bank nominated by this Court.
(14) That by this measure, both parties to this suit will rest assured that the res is preserved to await collection at the end of the appeal which the 2nd applicant, Mr. Momah, intends to canvass”.
The cases of Nwabueze v. Nwosu (1988) 4 NWLR (PI.88) 257; First Bank v. Doyin Investment (1989) I NWLR (Pt. 99) 634 were cited in support. It is also argued on the authority of Union Bank of Nigeria v. Odusote Bookshop (supra) at p. 152, per Olatawura, J.S.C, that it is dangerous and risky to leave the judgment debt in the hands of the judgment debtor, even if he is rich and furthermore, to do so is to deny the respondent the fruits of his success. Reliance is also placed on section 16 of the Court of Appeal Act, Cap, 75 of the Laws of the Federation of Nigeria, 1990 which stales in part –
‘The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal” It is argued that despite the dismissal of the application for stay, the question of preserving the judgment sum remained pending as a real issue to be determined by the Court of Appeal. Consequently the order made for the payment of the judgment debt into court was within the inherent jurisdiction of the Court which has been emphasised by section 16 of the Court of Appeal Act, Cap, 75, There is no doubt that the question whether the Court of Appeal acted properly in making the consequential order raises the issue of jurisdiction. For if the Court had jurisdiction the order would be valid and proper, and if it had no jurisdiction the order would be a nullity and therefore void. In Anisminic v. Foreign Compensation Commission (1969) 2 WLR 163, Lord Pearce observed on p, 192 thereof as follows:-
“Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction.”
This dictum received the approval of this Court in Okupe v. F. B. I. R. (1974) N.S.C.C. 200 at pp.209 – 210.
In Obayagbona & Anor. v. Obazee (1972) 5 S.C. 247, the learned trial judge (Irikefe, J. as he then was) in the High Court of Mid-Western State of Nigeria entered judgment for the plaintiffs and made a number of consequential orders one of which reads –
“I am of the view that the conduct of the plaintiffs was unconscionable and was an in direct attempt to prejudice the rights of the defendants. Both exhibits ‘A’ and ‘Y’ show that the plaintiffs have not succeeded in respect of all the land said to be in dispute and the effect thereof is that the defendants have succeeded to the extent that the plaintiffs have failed. For the above reasons I order that each party should bear its own costs.”
The plaintiffs appealed to the Federal Supreme Court against the consequential order seeking the relief that judgment for the entire land in dispute be entered in their favour and that the defendants be condemned in costs for the proceedings in the High Court. It was held, per Sowemimo, J.S.C., (as he then was) in the judgment of the Court, that the trial judge having entered judgment for the plaintiffs as claimed was wrong to have whittled down the effect of the plaintiffs victory by depriving them of costs, even though the award of costs was discretionary. It was also held that the learned trial Judge was wrong to make consequential orders which had the effect of varying his judgment in favour of the plaintiffs and which in any case were not specifically asked for. It was further held that the learned trial judge was functus officio immediately after he gave his judgment. so that both the consequential orders which he made as well as his misconception of the judgment when considering the issue of costs were made without jurisdiction.
In the case of The Registered Trustees of The Apostolic Church v. Olowoleni. (1990) 6 NWLR (Pt. 158) 514, the plaintiffs sued the defendant for trespass over their church’s land by entering and dumping laterite thereupon and asked for perpetual injunction against the defendant. While the action was pending for hearing before the trial court, the plaintiffs built wall around the land in dispute. At the end of the trial learned Judge entered judgment for the defendant and made a consequential order for the wall to be pulled down by the plaintiffs. On appeal to the Court below the plaintiffs lost and the consequential order was upheld. On further appeal to this Court, the decision in Obayagbona & Anor. v. Obazee, (supra) was distinguished (per Olatawura, JSC at pp.530-531) on the ground that the evidence adduced in the case supported the consequential order made. It went on to observe –
“It is a misconception to submit that consequential order made by a court must of necessity be based on the reliefs claimed. The basis of an order made by the court must be looked for from the evidence before the court. It is trite law that the court cannot award more than is claimed. It is equally misconceived that an order cannot be made in favour of a defendant simply because he has not filed a counterclaim. An order made in favour of a defendant even where he had not made a counter-claim must flow from the evidence and more so if the justice of the case demands.”
However, the concurring judgments of Obaseki and Nnaemeka-Agu JJ.S.C. in the case indicate that the consequential order was made as a punishment against the plaintiffs for their contempt of the trial court. Obaseki, J.S.C. observed on p. 532 thereof –
“The dispute in this matter having been handed to the Court for determination, the appellants cannot be allowed to take the law into their own hands. The Rule of Law and the Rule of Force are mutually exclusive – Law rules by reason and morality. Force rules by violence and immorality”.
While Nnaemeka-Agu, JSC stated on p.537 thereof –
“Thus it is clear that the learned trial judge made the (consequential) order not as an award to the respondents (sic) as such but in order to punish the appellants for what he considered an act of abuse and intentional disrespect in the proceedings before him. Therefore the question as to whether he thereby played ‘Father Christmas’ to the respondent by awarding to her what she did not claim does not arise.
The appellant further complained that the court could not have made the order suo motu, as there was no counter-claim before the court in which the relief was claimed. The truth is that the complaint of it was made to the learned trial judge”.
It is to be noted that the principles laid down by Obayagbona & Anor. v. Obazee, (supra) were followed by this court in Akinbobola v. Plisson Fisko, (1991) 1 NWLR. (Pt. 167) 270 at pp. 278A-B, 279A-286. The decisions in Alao’s case (supra) and Saeckler’s case (supra). relied upon by the appellant, are decisions by the Court of Appeal.
It is usual for an appellate court to order, as a condition, where an application for stay of execution is granted, the judgment debtor to deposit in court the judgment debt pending determination of appeal. However, it is not usual for an appellate court to refuse an application for stay and yet impose a condition against the applicant. It is true that in the present case, the respondent did not apply in the court below for the judgment debt to be deposited in the court pending determination of the appeal before it. Could it then be said that the order made by the Court below is consequential or “conditional” to the refusal of the application for stay As held in Obayagbona’s case (supra) any consequential order must be such that gives effect to the judgment given. It was held further in the case at page 254 thereof
” In its ordinary dictionary meaning the word ‘consequential’ means ‘following as a result, or inference; following or resulting indirectly.’ See the Concise Oxford Dictionary 5th Edition, Page o 258. The word has never been regarded as a term of art. .. A consequential order therefore made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction because at that stage, having determined the rights of the parties by giving judgment for (the) plaintiffs as claimed the judge has become functus officio except for any act permitted by law or rules of court.”
There can be no doubt that the consequence of the refusal to order stay of execution in the present case is, by inference, that the respondent, as judgment creditor, is entitled to enforce the judgment in his favour. In my opinion, therefore, the order that the appellant should deposit the judgment debt in court to be kept in a bank account does not detract from the dismissal of the application for stay of execution. It appears to me that the consequential order is, in effect or by implication, the same as an order for stay of execution with a condition that the judgment debt should be paid into court instead of the appellant’s title deeds being deposited in court as prayed. For if the consequential order is complied with, the respondent will not be in a position to execute the foreign judgment before determination of the appeal in the court below. Furthermore, the Court of Appeal has the jurisdiction under section 16 of the Court of Appeal Act, Cap. 75 to have made the consequential order. As a result I see no merit in this issue.
Issue No. 2.4
The last question for determination is whether the court below was right to order that the judgment debt should be paid in United States dollars contrary to the provisions of section 4 subsection (3) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152.
Relying on the provisions, the appellant argues that the learned trial judge in the High Court, who ruled that the foreign judgment should be registered, should have determined the Naira equivalent of the judgment debt of US$316,363.75. It is submitted that since this was not done the Court of Appeal could not have rightly made the order for the judgment debt to be deposited in the United States dollars.
Instead, it is contended, that the court below should have taken the easiest and fairest way out by ordering the appellant to deposit his title deeds with the court below as a condition for granting a stay pending appeal.
In reply, the respondent argues that section 4 subsection (3) does not prohibit the mentioning, in an application for registration of judgment, of any currency other than the Naira. He explains that at the time the High Court granted the application to register the foreign judgment, the judgment had not been registered, and that the ruling of the High Court did not direct that the judgment sum in the foreign judgment should be registered in United States dollars as the appellant contends. It is submitted that on the authority of Olaogun Enterprises Ltd. v. S.J.M; (1992) 4 NWLR (Pt. 235)361 and Schorsch Meier GmbH v. Hennin (1975) 1 All ER. 152, a party to a suit is entitled to make his claim in court in Nigeria in either the local currency or in foreign currency if the basis of the transaction between the parties sought to be enforced is in foreign currency.
Now section 4 subsection (3) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 provides-
“(3) Where the sum payable under a judgment which is to be registered is expressed in a currency other than the currency of Nigeria, the judgment shall be registered as if it were a judgment for such sum in the currency of Nigeria as, on the basis of the rate of exchange prevailing at the date of the judgment of the original court, is equivalent to the sum so payable.
It is to be noted that these provisions are concerned with the registration of a foreign judgment, while the issue before us and indeed before the Court of Appeal in this respect, is of the execution of the foreign judgment. It does not matter that the consequential order made by the Court of Appeal has been in foreign currency since there is no inhibition that a substantive claim could be brought in foreign currency – See Metronex (Nig.) Ltd v. Griffin & George Ltd. (1991) 1 NWLR (Pt 169) 651 at p. 659; Olaogun Enterprises Ltd. case (supra) at p. 385e and Prospect ile Mills (Nig.) Ltd. v. I.C.I. Plc England (1996) 6 NWLR (Pt. 457) 668 at p. 682. It follows that there is no substance in this issue.
It is significant to point out that the exchange rate, as at the date the Court of Appeal made the order for the judgment debt to be deposited, can be easily ascertained from the Central Bank of Nigeria by either party, in the event of any doubt, if it becomes necessary for the judgment debt to be deposited in Naira. It is significant that the consequential order merely refers to “sum of money” and is not specific about the sum being in either dollars or naira. On the whole this appeal lacks merit and it is hereby dismissed in its entire with N10,000.00 costs to the respondent against the appellant.
refers to “sum of money” and is not specific about the sum being in either dollars or naira. On the whole this appeal lacks merit and it is hereby dismissed in its entire with N10,000.00 costs to the respondent against the appellant.
SC.183/1995
