Shona-jason Nigeria Limited V. Omega Air Limited (2005)
LawGlobal-Hub Lead Judgment Report
GARBA, J.C.A.
The High Court of Justice, England (Queens Bench Division Commercial Court) entered judgment in favour of the respondent as plaintiff, in suit No. 1977 Folio 2194 on 9th January, 1998 against the appellant and one other.
The respondent then went to the Federal High Court in a motion on notice dated 25th November, 1998 and sought the registration of the said judgment as that of the Federal High Court under the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, 1990.
On the 15th March, 1999, the motion was heard and granted, but the following week, precisely on the 22nd March, 1999, the appellant pursuant to Order 33 rule 5 of Federal High Court – (Civil Procedure) Rules, 1976, the Reciprocal Enforcement of Judgment Act, Cap. 175 LFN 1958 as well as Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, of the Laws of the Federation 1990 and section 33(1) of the 1979 Constitution, in a motion, applied to the Federal High Court to set aside the registration of the judgment. On the 12th April, 1999, the Federal High Court heard the appellant’s motion and on the ground that it could not set aside a judgment of English Court, dismissed the motion. Being very dissatisfied with the decision of that court, the appellant filed this appeal against it vide a notice of appeal on the 20th April, 1999. The notice of appeal, dated the 18th April, 1999 contained the following grounds of appeal.
“Ground 1:
Error in law
The learned trial Judge erred in law when he held that he cannot set aside his order for the registration of a foreign judgment which he had ordered on 15th March, 1999.
Particulars of errors
(i) The laws governing the registration of foreign judgments, the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 152) Laws of the Federation of Nigeria, 1990, and the Reciprocal Enforcement of Judgments Rules (Cap. 175) Laws of the Federation of Nigeria, 1958 allow a Judge to set aside the registration of a foreign judgment even after an order for the registration of same had been made. The powers to set aside are provided for under section 6(1)(a)(iv), (v) and (vi) of the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 152) Laws of the Federation of Nigeria, 1990 and Rule 12 (Cap. 175) Laws of the Federation of Nigeria, 1958.
(ii) That when it came to the notice of the court that the appellant was not served with processes or notified of the proceedings of the foreign court for which its judgment has been registered as a judgment of His Lordship, that it is neat and proper to listen to the cries of the appellant.
Ground 2.
Error in law
The learned trial Judge erred in law when he ruled that the judgment registration on 15th March, 1999 can no longer be set aside by him.
Particulars of errors
(i) The appellant had by a motion on notice drawn the attention of the court below to the fact that the appellant was not served with processes nor notified of proceedings against it leading to the judgment obtained by the respondent in the High Court of Justice, Queen’s Bench Division Commercial Court in suit No. 1997 Folio No. 2198, which non-service rendered the judgment a nullity.
(ii) The lower court was entitled to treat the above error as a fundamental defect which invariably ousted the jurisdiction of the High Court of Justice, Queen’s Bench Division Commercial Court, England. The court ought therefore to have set aside the registration.
Ground 3
Additional ground of appeal shall be filed upon the receipt of the record of appeal.”
After compilation and settlement of the records of appeal and pursuant to the provisions of Order 6, rules 2, 3 and 4 of the Court of Appeal Rules, the parties exchanged briefs of argument in which issues were formulated for determination by this court. The appellant raised three (3) issues in its brief as follows:
“1. Whether from a consideration of the laws governing the registration of foreign judgment in Nigeria, the learned trial Judge was right to have held that he cannot set aside the registration of the judgment of English Court as a judgment of the Federal High Court, Lagos?.
This issue relates to ground 1 of the notice of appeal.
- Whether upon the judgment debtor/appellant application dated 22nd March, 1999, the registration of the judgment of the High Court of Justice, Queen’s Bench Division in suit No. 1997 Folio No. 2198 as a judgment of the Federal High Court, Lagos on 15th March, 1999 is still at that stage capable of being set aside by the Federal High Court?.
This issue relates to ground 2 of the notice of appeal.
- Whether upon consideration of the judgment debtor/appellant motion on notice dated 22nd March, 1999.
The learned trial Judge was right to have refused the prayer for setting aside the order of court dated 15th March, 1999 registering the judgment of the English Court as a judgment of the Federal High Court, Lagos.
This issue relates to ground 2 of the notice of appeal.”
On its part, the respondent formulated only one issue as calling for resolution in this appeal. It is thus:-
“1. Whether the learned trial Judge was right in dismissing the application of the appellant to set aside the order of the Honourable Court registering the judgment of the High Court of Justice, England as the judgment of the Federal High Court, Nigeria.”
Looking at the grounds from which these issues were formulated, it would appear to me that issues 1 and 3 formulated by the appellant would adequately resolve the real complaint against the decision of the lower court by the appellant. Issue No.3 raised by appellant has the same substance as the only issue formulated by the respondent and since this court is at liberty and has the power to adopt or even formulate issues that would determine the real grievance in an appeal. See Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt. 435) 146 and Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) 582. I would consider the issues 1 and 3 as formulated by the appellant in this appeal.
In the appellant’s brief, issues 1 and 2 were argued together, as if to support the adoption of issues 1 and 3 by the court. After reference to the motions of the parties before the lower court, the appellant posed the question as to what was the applicable law(s) for registration of judgment of English Court as in this case.
Learned counsel for the appellant then copiously set out provisions of sections 4, 6 and 9 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 and sections 3 and 6 of Cap 175 as well as the rules of court made thereunder. He also cited the case of Board of Customs and Excise v. Barau (1982) 10 SC 48 and Macaulay v. R. Z. B. of Austria (1999) 4 NWLR (Pt.600) 599 at 609-10 and submitted that the applicable law was Cap. 175 of 1958 along side Cap.152 of 1990.
I would like to say that I do not understand why the appellant raised the question as to the applicable laws for registration of foreign judgments. The issue of applicable law was never raised or joined by the parties in the lower court. That court did not make any finding or decision on the issue or question of applicable law as far as the records of appeal show. That must be why the appellant did not file any ground of appeal against or raise a decision of the lower court on the applicable law. Since the question was not raised nor was it pronounced upon by the lower court, I consider it purely academic and not relevant to the determination of the issues raised in this appeal. The consistent attitude of the courts over the years is that it is not their function to entertain and decide such issues. See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 26 and NICON v. Power and Industrial Engineering (1986) 1 NWLR (Pt. 14) 1 at 22. The issue of applicable law was never in doubt before the lower court and indeed in this court. Now on the issue whether the lower court can, under the applicable law, set aside the registration of the foreign judgment. Counsel for appellant said the effect of provisions of Reciprocal Enforcement of Judgments Act, Cap. 175 of 1958 and Rules made there under, is to enable the court which registers a foreign judgment to set the registration aside if section 12 of the Act was satisfied. Section 12 of the Reciprocal Enforcement of Judgment Act, 1958, Cap. 175 provides thus:-
“12. The judgment debtor may at any time within the time limited by the order giving leave to register after service on him of the notice of the registration of the judgment apply by petition to a Judge to set aside the registration or to suspend execution on the judgment and the Judge on such application if satisfied that the case comes within one of the cases in which under section 3(2) of the Ordinance no judgment can be ordered to be registered or that it is not just or convenient that the judgment be enforced in Nigeria or for other sufficient reason may order that the registration be set aside or execution on the judgment suspended either unconditionally on such terms as he thinks fit and either altogether or until such time as he shall direct; provided that the Judge may allow the application to be made at any time after the expiration of the time mentioned.”
Section 6(1) of the Foreign Judgment (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation Nigeria, 1990 puts the position more clearly as follows:-
“6(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment –
(a) shall be set aside if the registering court is satisfied
(i) that the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the foregoing provisions of this Act; or
(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
(iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or that the judgment was obtained by fraud; or
(iv) that the enforcement of the judgment would be contrary to public policy in Nigeria; or
(v) that the rights under the judgment are not vested in the person by whom the application for registration was made;
(b) may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.”
I have observed that the respondent did not reply on this issue whether the lower court had the power to set aside the registration of the judgment in question. Throughout the brief of the respondent, I can find no answer to this issue raised by the appellant and so I take it that the respondent has conceded to the power of the lower court, in circumstances provided by the above provisions of the law, to set aside the registration of the judgment. See Okongwu v. NNPC (1989) 4 NWLR (Pt.115) 296 where Nnaemeka-Agu (JSC) said inter alia… “every material point canvassed in an appellant’s brief which is not countered in the respondent’s is deemed to have been conceded to the appellant.”
In any case, the authority, power or jurisdiction to set aside the registration of a foreign judgment as seen above is provided by statute and the courts have recognized that position in a number of decisions.
See Hyppolite v. Egharevba (1998) 11 NWLR (Pt. 575) 598 at 614 and 617, Berliet (Nig.) v. Kachalla (1995) 9 NWLR (Pt.420) 478, Dale Power System v. Witt and Busch (2001) 8 NWLR (Pt.716) 699 at 708 and Halaoui v. Grosvenor Ltd. (2002) 17 NWLR (Pt.795) 28 at 42-3.
In the premises of the above authorities, the decision of the lower court, on page 50 of the record that:
“The defendant has made no case as he is asking me to set aside a judgment of an English Court. That I cannot and will not do … inter alia, cannot be right with due respect. In the 1st place the appellant did not by his motion dated 22nd March, 1999 ask the lower court to set aside judgment of an English court. All that the appellant applied for, as was shown on the face of the motion paper, was for an order from the lower court setting aside the registration of the judgment in question. It needs be pointed out that under the relevant laws; Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of Federation of Nigeria, 1990 and the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws of Federation of Nigeria, 1958, the effect of registering a foreign judgment in a Nigerian court is for all intents and purposes, to make the registered judgment a judgment of the Nigerian court. See section 4(2)(a) of the Foreign Judgments (Reciprocal Enforcement) Act, 1990 and ruling of lower court on p. 39 of the record. Consequently, the registration by the lower court of the judgment in question made it a judgment of that court and it was no longer “a judgment of an English court.” In fact, that was the ruling of the lower court, on p. 39 of the record. The appellant’s prayer in his motion was for the de registration (so to say) of that judgment back to a judgment of an English court. In my view, the de-registration would not have the effect of setting aside the judgment of an English court because it would remain a valid judgment of an English court even after such de-registration by the Nigerian court. In fact, it was because the judgment was a valid judgment of an English court that it was registered in the 1st place by the lower court. So the de-registration would leave it as it was before the registration; i.e. a valid judgment of an English court. Be that as it may, even if it was still a judgment of an English court, my respectful opinion is that having registered same under the relevant Nigerian statutes, the lower court has the power and jurisdiction under section 6(1) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990, to set it aside. For these reasons, I answer and resolve the issues No.1 and 2 in favour of the appellant.
The next issue is whether upon a consideration of the appellant’s motion dated 22nd March, 1999 the lower court was right to have refused the prayer for setting aside the registration of the judgment in question.
In its brief, the appellant made reference to section 3(2)(g)-(i) of the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws of Federation of Nigeria, 1958 and section 6(1)(c) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of Laws of Federation of Nigeria, 1990 which set out situations in which the registration of a foreign judgment by the Nigerian court can be or shall be set aside. For ease of reference, section 6(1)(c) of Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of Federation of Nigeria, 1990 provides thus:-
“6(1). On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment –
(a) shall be set aside if the registering court is satisfied
(i) that the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the foregoing provisions of this Act; or
(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
(iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or
(iv) that the judgment was obtained by fraud; or
(v) that the enforcement of the judgment would be contrary to public policy in Nigeria; or
(vi) that the rights under the judgment are not vested in the person by whom the application for registration was made;
(b) may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.”
Sections 3(2) and 6(1) of the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws of Federation of Nigeria, 1958:
“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 was 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.”
“6(1) The Chief Justice of a High Court may make rules of court for regulating the practice and procedure (including scales of fees and evidence) in respect of proceedings of any kind under this Ordinance.
(2) such rules shall, among other things, provide:
(a) for service on the judgment debtor a notice of registration of a judgment under this Ordinance; and for enabling the registering court on an application by the judgment debtor to set aside the registration of a judgment under this Ordinance on such terms as the court thinks fit; and for suspending the execution of a judgment registered under this Ordinance until the expiration of the period during which the judgment debtor may apply to have the registration set aside.”
It was submitted that the appellant had deposed to facts in the affidavit in support of the motion dated 22nd March, 1999 for setting aside the judgment and that the respondent did not file a counter affidavit to challenge them. Among the facts are:
(1) That the judgment debtor at all times material to this suit has its place of business in Nigeria and had no office in the United Kingdom – paragraph 4.
(2) The judgment debtor/applicant was never served with any court process or notified of any court proceedings by the judgment creditor – paragraph 5.
(3) The applicant never had the opportunity to defend the case at the English court in respect of which a judgment was made in favour of the judgment creditor and registered by lower court – paragraph 15.
Learned counsel for appellant said it has been settled that facts deposed to in affidavit would be deemed to be true and admitted by the opposite party who failed to counter them. He cited the cases of Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773 and Rakol Clinic and Maternity Hospital v. S. F. I. Co. Ltd. (1999) 7 NWLR (Pt.612) 613 at 619 and submitted that since the averments were not controverted, the lower court should have treated them as admitted and true. According to learned counsel, the averments adequately satisfy the requirements for setting aside the registration of the judgment in issue as set out in the law. It was his further submission that non service of the processes of the English court on the appellant was a fundamental breach which goes to the jurisdiction of that court to entertain the matter and which rendered the proceedings a nullity. He relied on the cases of U.B.A. v. Ajileye (1999) 13 NWLR (Pt. 633) 116 at 125 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341. Counsel also referred to section 33(1) of the 1979 Constitution and the case of Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 335-6 and argued that the lower court on the unchallenged averment that appellant never had opportunity to defend the case, ought to have treated same as a fundamental defect in the proceedings of the English court and consequently set aside the registration of its judgment. He therefore urged this court to set aside the registration of the judgment in question by the lower court.
On his part, the learned counsel for respondent, after making reference to the requirements for registration of a foreign judgment in section 3(1) and (2) of Reciprocal Enforcement of Judgments Act, Act, Cap. 175, Laws of Federation of Nigeria, 1958 and setting on the affidavit in the motion dated 25th November, 1998 by respondent before the lower court for registration of the judgment in issue, submitted that the appellant did not file a counter-affidavit to controvert the facts deposed in support of the application for registration. Counsel said the appellant was served with the notice of the application for registration on 15thJanuary, 1999, two months before the 15th March, 1999 when it was heard, as weighty as the averments of the affidavit in support were. Learned counsel said the appellant was therefore in law, deemed to have admitted all the averments as true, but particularly paragraphs 7 and 9 which aver thus:
“7. That to the best of my information and belief, the said judgment is now enforceable in the United Kingdom and if the said judgment is registered in this Honourable Court it is not liable to be set aside under section 3(2) of the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws
of the Federation and Lagos, 1958 and/or under section 6 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation, 1990.”
“9. That to the best of my knowledge and belief, the said judgment does not fall within any of the cases in which under section 3(2) of the Reciprocal Enforcement of Judgments Act, (Cap. 175) of 1958 a judgment cannot properly be ordered to be registered.”
Counsel cited the case of Long-John v. Blakk (1998) 6 NWLR (Pt.555) 524 and 532 and Fawehinmi v. Abacha (1996) 5 NWLR B (Pt. 447) 198 at 20l.
In addition, respondent’s counsel referred to the proceedings of the 15th March, 1999 when the motion for registration was taken on page 39 of the record of appeal and argued that appellant’s counsel who appeared for the motion did not oppose it and so the lower court granted it and registered the judgment.
He then set out rule 12 of Reciprocal Enforcement of Judgments Act, Cap. 175, 1958 on conditions for setting aside a registered judgment and contended that the appellant has failed to meet any of them since it did not challenge the affidavit of the respondent in support of the motion for registration. The case of Falomo v. Banigbe (1998) 7 NWLR (Pt.559) 679 at 687 on the authority of counsel who announced appearance in court was cited by counsel and it was submitted that the appellant’s counsel participated in the proceedings for registration and did not ask for an adjournment. Appellant can’t therefore be heard now to deny what in law, he was deemed to have admitted, said counsel.
Learned counsel also submitted that under the contract appellant had with respondent, the appellant irrevocably agreed and submitted to the jurisdiction of the English court by agreeing to be served with processes of court through its agent in England. For this, we are urged to dismiss the appeal and uphold the registration and refusal of the lower court to set aside same.
In its reply brief, the appellant said the statement by counsel on the 15th March, 1999 did not amount to an admission of the facts deposed to in the respondent’s affidavit for registration of the judgment to preclude the appellant from applying to set aside the registration. It was submitted for the appellant that Mr. Agomuo who appeared before the lower court on 15th March, 1999 for appellant did not have the authority to conduct the defence of the motion though he was presumed to be seized of the matter.
Let me say that I agree with both counsels on their respective submissions that unchallenged averments in an affidavit are deemed to be established and admitted by the party whose duty it is to controvert same. Our judicial landscape is replete with authorities on the position that it is now elementary. In addition to the case cited by counsel, see the famous cases of Ajomale v. Yaduat (No.2) (1991) 5 SCNJ 172 at 178; (1991) 5 NWLR (Pt.191) 266 and U.B.N. v. Odusote (1994) 3 SCNJ 1; (1994) 3 NWLR (Pt.331) 129 in the case of Olori Motors v. U.B.N. (1998) 6 NWLR (Pt.554) 493 this court, at page 506-7, held the view that the court must accept unchallenged averments of an affidavit without hesitation.
Learned counsel then made reference to the definition of an “admission” and cited a number of cases on effect of admission and circumstances in which it was made. He also submitted that the lower court failed to appreciate the position of the law that courts do not generally punish parties for blunders or mistakes of counsel. The case of Bowaje v. Adediwura (1976) 6 SC 143 at 147 was cited and we are once again urged to allow the appeal.
I would like to quickly say here that when a counsel announces appearance or appears before, or in a court, he is not only presumed to be seized of the case, as submitted by the appellants’ counsel, but also presumed to have the authority of the party for whom he appears or on behalf of whom he announced appearance. See Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39 and Gazu v. Nyam (1998) 2 NWLR (Pt.538) 477.
Furthermore, it is unethical, undesirable and intolerable that a counsel should attend or appear in court in a matter or case merely to ask for an adjournment to enable a more senior colleague to conduct the matter. See the case of Madu v. Okeke (1998) 5 NWLR (Pt.548) 159. The situation was even worse in the lower court because, Mr. Agomuo who appeared for appellant only told the court that “my principal is out of the country and he just asked me to hold his brief’. Counsel did not even ask for an adjournment to enable the principal be in court, but had nothing to say. I do not think it can seriously be contended that the counsel gave any impression that he had no authority to conduct the defence or that the lower court was wrong in preceding in the way it did in the circumstances.
I now go back to the main issue No.3 as set out earlier. The respondent had submitted that since the appellant did not file a counter-affidavit to challenge the application for registration of the judgment he could not afterwards be heard to do so. Counsel therefore said the lower court was right in refusing the application to set aside the registration on the ground inter-alia – “the defendant could but did not raise the issue of validity of the judgment during the hearing of application for registration.”
This submission cannot and is not tenable in view of the provisions of section 6(1), (2)(e) of the Reciprocal Enforcement of Judgments Act, Cap. 175 of 1958 and section 6(1)(c) and (d) of the Foreign Judgments (Reciprocal Enforcement) Act, Laws of the Federation of Nigeria, 1990, the combined effect of which was to allow or permit a party against whom a foreign judgment was registered by a Nigerian court, to apply after the registration, to have such registration set aside by the registering Nigerian court.
The important point to be noted here is that these provisions permit a party to apply to the Nigerian court that registered a foreign judgment to set aside such registration. These provisions do not say that where such a party did not oppose the registration, he/it cannot afterwards, apply to set same aside in appropriate situations provided for in the laws. I agree that the two Acts, have provisions in section 3(2)(g) and (i) of the Reciprocal Enforcement of Judgments Act, Cap. 175 of 1958 and proviso to section 4 of the Foreign Judgments (Reciprocal Enforcement) Act, Laws of the Federation of Nigeria, 1990 in respect of situations when a foreign judgment shall not be registered. Ordinarily, a party against whom a foreign judgment was to be registered should be diligent to raise any objection it might have against the registration, but that no objection or opposition was made to the application for registration would not in my view, on the face of the above provisions bar such a party from applying to set aside the registration. In the case before the lower court, the motion for registration was supported by an affidavit and on notice to the appellant when on 15th March, 1999 the motion was taken by the court, the appellant did not file a counter affidavit to challenge the depositions in the respondent’s affidavit and so was deemed in law to have admitted them as true and correct. Though the lower court did not give any reason in its ruling for the grant of the motion as can be seen on p. 39 of the record of appeal, it must have been due to the absence of a counter-affidavit or any opposition on points of law by appellant’s counsel. The issue of registration therefore ended with the order of lower court registering the judgment. What the appellant’s motion dated 22nd March, 1999 did was to commence the post registration procedure in accordance with provisions of section 6( 1), (2)(c) of the Reciprocal Enforcement of Judgments Act, Cap. 175, 1958 and section 6(1)(c) and (d) of the Foreign Judgments (Reciprocal Enforcement) Act, 1990 as shown earlier. This I find, the appellant is entitled to do. The issue or effect of the admission of the averments in the affidavit of the motion by respondent for registration of the judgment ended with the grant of that motion and registration of the judgment by the lower court on 15th March, 1999.
The next point to be decided is whether on the averments supporting the provisions of the Acts (set out earlier) for setting aside the registration of the judgment were met or satisfied. I would consider the requirements of the relevant section one after the other along with the affidavit in support of the motion.
Under section 6(1)(a) of the Foreign Judgments (Reciprocal Enforcement) Act, 1990, the following are the requirements for setting aside the registration of a registered judgment:
(1). that the judgment is not a judgment to which this part of this Act applies or was registered in contravention of the foregoing provisions of the Act.
One of the conditions for registration of a foreign judgment as seen in the provisions of the Act (set out earlier) is the judgment debtor, being the defendant in its proceedings was not duly served with the process of the original court and did not appear in the proceedings. Appellant had in paragraph 5 of the affidavit in support of the motion dated 22nd March, 1999 averred as follows:
“5. That the judgment debtor/applicant was never served with any court process or notified of my court proceedings by the judgment creditor/respondent.” See page 44 of the record of appeal.
Though the motion was on notice and came up for hearing on 12th April, 1999, when respondent was represented by George-Ikoli and E. O. Madufor, I can find no record of a counter-affidavit for the respondent to challenge the averments of the appellant in the motion. The averment in paragraph 5 and all the other averments in support of the motion by the appellant were not challenged by the respondent. Consequently, like the appellant in the motion for registration of the judgment taken on 15th March, 1999, the respondent in law was deemed to have admitted all the averments in support of the motion. This is beyond dispute and the lower court; as was seen earlier in the case Olori Motors v. U.B.N. (supra) was under a duty to accept them without “hesitation. Surprisingly however, without a consideration of the affidavit evidence before it on the record, the lower court ruled on page 50 of the record of appeal thus:
“The defendant has made no case as he is asking me to set aside a judgment of an English court. That I cannot and will not do.”
I am constrained to say that the above conclusion by the lower court, cannot be right on the face of the unchallenged affidavit; evidence before it in conflict of which it is.
I have observed that the respondent’s counsel had attempted to say at paragraph 7.9 of his brief that respondent had deposed to the fact that appellant was served with processes of the High Court of England by implication at paragraph 9 of the affidavit in support of the motion for registration. Without much ado, the said paragraph did not challenge, let alone controvert the positive and clear assertion of the appellant in paragraph 5 above, that no process was served on it. If the respondent had seriously intended to challenge the very weighty assertions of the appellant in support of the motion dated 22nd March, 1999, it was under a legal obligation to have done so under oath, in an affidavit, like the appellant did. For failure to diligently discharge that duty the respondent cannot by any manner of maradonic submissions or arguments escape or avoid the legal risks and consequences of such failure.
The appellant specifically averred in paragraph 15 of his affidavit that it never had opportunity to defend the case at the English court in respect of which a judgment was entered for the respondent and registered as that of the lower court on 12th March, 1999.
In paragraph 4 of the same affidavit, the appellant deposed that the judgment debtor (appellant) at all times material to this suit has its place of business in Nigeria and had no office in the United Kingdom. All these averments were not challenged by the respondent and they disclose facts which establish the situations set out in the 1958 and 1990 Act when the registration of foreign judgment by a Nigerian court is liable to be set aside.
These unchallenged averments in my view satisfy the requirements for setting aside the registration of the foreign judgment in question by the lower court. I accordingly find that upon a consideration of the unchallenged averments of the appellant, the lower court was wrong to have refused the prayer setting aside the said judgment. The issue is resolved in favour of the appellant.
In the final result, I find merits in this appeal and allow same. The decision of the lower court refusing to set aside the registration of the judgment of High Court of England (Queen’s Bench Division) in suit No. Folio No. 2198 of 1997, is hereby set aside. The registration of the said judgment by the lower court is accordingly set aside. I assess the costs of this appeal at N5,000.00 in favour of the appellant.
Appeal succeeds. Allowed.
Other Citations: (2005)LCN/1687(CA)
