Teleglobe America, Inc. V. 21st Century Technologies Limited (2008)

LawGlobal-Hub Lead Judgment Report

REGINA OBIAGELI NWODO, J.C.A.

This is an appeal against the decision of the Federal High Court, Lagos Judicial Division delivered on the 15th of March, 2006 against the plaintiff Teleglobe America. Inc. hereinafter referred to as the Appellant. 21st Century Technologies Ltd. was the Respondent in the lower court and is still the Respondent on Appeal. The Appellant in the lower court instituted an action by Notice of Originating Motion dated and filled 25th of October, 2005 seeking the following reliefs:

1. “An order registering the judgment of the CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA entered in LAW NO. 218964 on the 2nd day of December, 2004 by the said court (marked exhibit GB10 in the affidavit in support of this Notice), in the sum of USDollar 1,231,489.00 with interest at the rate of 1.5% per month from the 2nd of December, 2004 till it is fully satisfied, so that the said Judgment shall have the same force and effect as a judgment of the Federal High Court of Nigeria or any other superior court of Record in Nigeria.
2. Cost of this action.
3. Further and other orders as this Honourable Court may deem fit to make in the circumstances”.

In support of the originating motion is a 22 paragraph affidavit deposed to by Gbenga Biobaku Male, Legal Practitioner Nigerian Citizen exhibiting Exhibit GB1 to GB10.

The Respondent in response to the affidavit filled a 6 paragraph counter affidavit on 30th November, 2005 deposed to by Kemi Alakija, a Legal Practitioner. Briefly the facts garnered from the record of appeal that lead to this appeal are as follows:

On or about the 2nd day of August, 2000, Teleglobe International Corporation, the predecessor in title of the Appellant entered into a Teleglobe Internet Services Agreement with the Respondent which agreement was subsequently amended for the provision of internet access by Teleglobe International Corporation and its successors to the Respondent. All rights and duties of Teleglobe International Corporation under the agreement were assigned to the Appellant. Sometime in May 2003, the respondent terminated the agreement. As a result of the termination, the Appellant commenced an action against the Respondent in Suit No. 218964 titled Teleglobe America, Inc. v. 21st Century Technologies Ltd. on or about 19 of November 2003 in the Circuit Court of Fairfax County, Virginia claiming the sum of US Dollar 983,046.67 plus interest and cost. The Respondent was served the Originating Processes in accordance with the Rules of Court of the Circuit Court. The circuit court heard the case and entered final Judgment on 2nd December 2004 in favour of the Appellant. The Appellant then proceeded to the Federal High Court Lagos on 25th of October 2005 and filled a Notice of Originating Motion for Registration of the Circuit Court Judgment hereinafter referred to as the foreign Judgment. The Respondent in the lower court filled a Notice of Preliminary Objection to the Registration contending that the Federal High Court is devoid of jurisdiction to entertain the suit on the basis that the Respondent was not served with the Originating Processes of the suit in the Circuit Court in Nigeria in accordance with the applicable Nigerian law, before Judgment was entered against them. The Learned Trial Judge heard both applications together and in a considered Judgment on 15th of March, 2006 the Learned Trial Judge refused the application to register the foreign Judgment and struck out the originating motion.

The Appellant dissatisfied with the Judgment of the lower court then filled a Notice of Appeal on 9th June, 2006 containing six grounds of appeal. For purpose of elucidation I reproduce the grounds as follows:

“GROUND 1

1. The Learned Trial Judge erred in law when he held that Section 78 of the Companies and Allied Matters Act does not apply to service in Nigeria of foreign documents and court processes on the basis that the said section deals only with service of court processes and documents emanating from Nigeria.

GROUND 2

2. The Learned Trial Judge erred in law when he refused to register the judgment of the County Court of Fairfax, Virginia in LAW No. 218964 delivered on the 2nd day of December, 2004 on the basis that the service of the processes of the said court on the respondent was not in accordance with Nigerian municipal law when there is no requirement in the Foreign Judgments Reciprocal Enforcement Act, or in any other applicable law, for a court in Nigeria to decline registration of a judgment on the basis that the originating processes of the foreign court were not served in accordance with the laws of Nigeria.

GROUND 3

3. The Learned Trial Judge erred in law in refusing to register the foreign judgment aforesaid on the basis that there was no proper service of the originating processes, when that was an issue which had been distinctly raised by the Respondent in the proceedings of the original court and in respect of which an order had been made against the Respondent, who regardless of that decision continued to participate in the proceedings until it was finally determined.

GROUND 4

4. The Learned Trial Judge erred in law when he held that service of foreign processes in Nigeria is governed by Order 13 rule 23 of the Federal High Court (Civil Procedure) Rules 2000, when there is no provision in any enactment of the National Assembly requiring service of foreign processes in Nigeria to be in accordance with the Rules of the Federal High Court and when the said Order 13 Rule 23 does not law down any mandatory requirement for service in Nigeria of foreign processes to comply with it.

GROUND 5

5. The Learned Trial Judge erred in law when he placed the onus of establishing service in accordance with Nigeria law on the Appellant rather than the Respondent who was asserting non service.

GROUND 6

6. The Learned Trial Judge erred in law when he held that as the Appellant had averred that service of the process was in accordance with the laws of Virginia by one Mr. Johnson Okebukola, that it amounted to an admission that the service was not done via official channel but by a private person when as the Trial Judge subsequently held there was no evidence to prove that the said Mr. Okebukola was not an officer of the court, and that no request had been made to the Chief Judge of the Federal High Court and when there was no evidence led in proof of the fact that Virginia Law on service materially differs with Nigerian Law on service”.

Based on the aforesaid grounds, the Appellant seeks an Order setting aside the Judgment of the lower court aforesaid and in its place an Order registering the Judgment of the Circuit Court of Fairfax County, Virginia entered in Law No.218964 the 2nd December 2004, as sought in the Respondent’s Notice of Originating Motion filed at the lower court.

The Appellant filled his Brief of Argument on 19th of January 2007. The Respondent did not file a Respondent’s Brief. Whilst hearing the Appeal on the 10th of April, 2008, Learned Counsel E. Uwa with Ogunshote announced appearance for the Appellant and the Learned Senior Advocate Prof. S. A. Adesanya (SAN) announced appearance for the Respondent. Prof. Adesanya (SAN) informed the court that the Respondent is registered in Nigeria but based in America, that he has not had contact with him nor does he have his contact as he was introduced to the Respondent by a third party, he further explained he has no further instruction to represent the Respondent. He applied for an adjournment because he has not been in contact with the Respondent.

The Learned Counsel to the Appellant opposed the application contending that the learned SAN was served with all the processes including the Appellant Brief, he failed to react nor write to slate he is no longer in the matter. Learned Counsel submitted that if he has not been instructed he cannot apply for adjournment. This court considered the application of the Learned Senior Advocate for adjournment and the response of the Appellant’s Counsel and ruled refusing the application for adjournment. Mr. Uwa then proceeded and adopted and relied on his written brief dated 15th June, 2006. The court then reserved Judgment. Consequently, this court is constrained to consider the merit of this appeal solely on the Appellant’s Brief, the Respondent having failed to file Respondent’s Brief in accordance with Order 17 Rule 4(1) of the Court of Appeal Rules 2007. Order 17 Rule 4(1) stipulates as follows:

“The Respondent shall also when thirty days of the service of the brief for the Appellant on him file the Respondent’s Brief which shall be duly endorsed with an address or addresses for service”.

The Respondent did not comply with the provision in Rule 4(1). This failure will not affect the determination of the appeal. This is because an appellant will succeed on the strength of his case. He can only succeed or fail on his own brief notwithstanding the absence of the Respondent’s Brief. In a catalogue of decided cases, the Appellant courts have held that the failure of a Respondent to file a reply brief is immaterial. See John Holt Ventures Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) 101 C.A., Onyejekwe v. The Nigeria Police Council (1996) 7 NWLR (Pt.463) 704 C.A., Waziri v. Waziri (1998) 1 NWLR (Pt. 533) 322 C.A. and U.B.A. Plc v. Ajileye (1999) l3 NWLR (Pt. 633) 116 C.A.

Confirming the effect of failure of Respondent to file a reply Brief, the Supreme Court in Unity Bank Plc v. Bouari (2008) 7 NWLR (Pt.1086) SC 372 per Ogbuagu J.S.C. held:

“It has been held that the failure of a Respondent to file a reply Brief is immaterial. This is because an Appellant will succeed on the strength of his case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the records. In other words, it is not automatic an Appellant must succeed or fail on his own Brief”.

The Appellant in his brief formulated 3 issues for determination which reads as follows:

1. “Whether the originating processes of the Circuit Court of Fiarfax County, Virginia, United States of America were properly and validly served on the Respondent in accordance with the applicable law. This issue is distilled from grounds 1, 4, 5 & 6 of the Grounds of Appeal.
2. Whether having regard to the provisions of the Foreign Judgments (Reciprocal Enforcement) Act, the Federal High Court was right to refuse to register the Judgment of the Circuit Court of Fairfax County and to find that the foreign court had no jurisdiction. This issue is distilled from ground 2 at the Grounds of Appeal.
3. Whether the Federal High Court can revisit and determine the issue of service of the processes of a foreign court when there is a subsisting decision of that foreign court on the issue which has not been appealed against. This particular issue is distilled from ground 3 of the Grounds of Appeal. ”

I will consider the above issues formulated by the Learned Counsel Etigwe Uwa in the reverse Order not serially.

The nature of the relief sought in the court below and the decision therein necessitates a consideration of issue 3 before proceeding to consider the other two issues.

Under Issue 3; Whether the Federal High Court can revisit and determine the issue of service of the processes of a foreign court when there is a subsisting decision of that foreign court on the same issue. It is the contention of the Learned Counsel to the Appellant that the Respondent having raised the issue of the validity of service of Originating Process of Circuit Court of Fairfax County on the Respondent in that foreign court and the issue considered by the court who gave a decision, the decision remains binding on them and constitutes issue estoppels against the Respondent as he is barred from re-opening the issue in another judicial forum other than the relevant appeal court to which appeal lay from the decision of the Circuit Court of Fairfax County, he cited Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156.

He submits that it is the law that where an issue had earlier been adjudicated upon by a court of competent jurisdiction and the same issues comes incidentally in question in any subsequent proceedings between the same parties, neither party can be allowed to fight that issue all over again, he cited Dzwungw. v. Gbishe (1985) 2 NWLR (Pt.8), Ebba v. Ogodo (2000) 10 NWLR (Pt.675) pg.387 and Oshodi v. Eyifunmi (2000) 13 NWLR (Pt.684) 298.

Learned Counsel further submitted that S11 of the foreign Judgments (Reciprocal Enforcement) Act is also to the effect that decisions of a court of a foreign country is conclusive as between the parties to the litigation in respect of all causes of action and issues decided by that foreign court, He submits that the Respondent having raised objection to jurisdiction before the foreign court and a decision taken the Respondent cannot raise the same objection or re.litigate that same issue in a Nigerian Court as the Nigerian court cannot seat on appeal.

It is trite law that where a court of competent Jurisdiction has settled an issue by a final decision, in respect of matters in dispute between the parties neither party may re-litigate on that issue again by raising same in any proceedings except on appeal.

This issue of relitigation falls within the ambit of estoppel. There are two kinds of estoppels; the first is called cause of action estoppel which occurs where the cause of action is merged in the Judgment which can be described as transit in rem judicatam either party is precluded from litigating on the same cause of action. See Fadiora Gbadebo (1978) 3 SC 219, Ebba v. Ogodo (2000) 10 NWLR (Pt.675) 387.

The second kind of estoppel inter parties usually occurs where an issue has earlier on been adjudicated upon by a court of competent Jurisdiction and the same issue comes in question in any subsequent proceedings between the same parties. Idigbe JSC distinguished the two types of estoppel by record of inter parties in Fadiora v. Gbadebo Supra where he held:

“Now, there are two kinds of estoppel by record inter parties or per rem judicatam, as it is generally known. The first is usually referred to as ’cause of action estoppel’ and it occurs where the cause of action is merged in the judgment, that is Transit in rem judicatam – See King v. Hoare (1844) 13 M.& W 495 at 504. Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter they are precluded from re-litigating the same cause of action. There is however, a second kind of estoppel inter parties and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, ‘issue estoppel’ arises. This is based on the principle of law that a party is not allowed to (ie., he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. See Cutram v. Morewood (1803) 3 East 346. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per remjudicatam must apply, that. (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceedings), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies)”.

See also Ladega v. Durosimi (1978) 3 S.C. 91, 102-103where Eso, J.S.C. said:

“The doctrine of res judicata, which finds expression in the maxim ‘nemo debet his vexari pro una et eadem causa, lays emphasis on the ‘causa. It is the cause of action that would have been determined and nay suit, brought to relitigate such action, which has been determined, would be dismissed. Where, however, what is raised in an issue estoppel, then, it is only in regard to that issue, that has been raised that the parties to an action, shall be bound, and the proper course to take would be one of striking out all the paragraphs in the pleadings raising that issue”.

Though the whole concept of ‘estoppel’ is viewed as a substantive rule of law (see Haustead v. Commissioner of Taxation (1926) A.C. 155 at pp. 165.166 and also Canada and Dominion Sugar Coy. Ltd. v. Canadian National (West Indies) Steamships Ltd. (1947) A.C. 46 at p.56, it is essentially a rule of evidence.

The question raised as to whether the issue of valid service of originating processes in the foreign court can be re-opened at the lower court is very critical. This is because of the fundamental nature of valid service of processes in any proceeding. Service was effected in the foreign court on a claim based on damages, the foreign court found there was valid service and gave a decision. The cause of action in the lower court is for registration of the judgment of the foreign court. Notwithstanding, the two causes of action are different as long as during litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a competent court neither party can in subsequent litigation between one another upon any cause of action which depends on a final decision of a cause of action arising from the issue earlier determined raise the same issue. The parties are bound on that issue determined. They cannot subsequently in another suit advance argument to show that the issue was wrongly determined. This is settled law. There only remedy is by way of appeal. The pronouncement of the County Court is explicit and was final on issue of valid service on the Appellants.

It is trite law that for issue estoppel to apply the following ingredients must be present:

1. The parties must be the same in the previous and present actions;
2. The same question that was decided in the previous action must arise in the present action in respect of the same subject matter; and
3. That question must be a final decision of a competent court.

See Ebba v. Ogodo (2000) 10 NWLR (Pt. 675) S.C. 387.

In the instance case from the record of appeal there is no doubt nor are the facts disputed by the parties that the parties in the foreign court are the same parties in the lower court and that the issue of validity of service of the originating process on the Respondent was raised in the foreign court and a decision on that taken by the circuit court before the Learned Trial Judge in that court proceeded to enter a final Judgment. The circumstance addressed under issue 3 falls within the ambit of issue estoppel.

The Respondent cannot and should not have advanced argument directed at showing that the issue of service was wrongly determined. Their only remedy is by way of appeal from the Judgment of the foreign Court to the Appellant Court in that country. The Federal High Court does not have appellate Jurisdiction over the decisions of the Circuit Court of Fairfax County. The Learned Trial Judge was wrong in considering the issue of valid service when same issue had been canvassed and determined in the foreign court. The issue was final. The lower court is devoid of Jurisdiction to consider the merits of the foreign Judgment when the Learned Trial Judge held:

“Before registering a Judgment of a foreign court, this court is in my view entitled to look into the merits of that Judgment otherwise it would not have been provided in Section 6 of the Reciprocal Act that such a Judgment must or may be set aside if for example the registering court is satisfied that the court of the country of the original court had no Jurisdiction in the circumstances of the case or that the Judgment was obtained by fraud or that the enforcement of the Judgment would be contrary to public policy in Nigeria”.

The lower court lacks competence to look into the merits of the Foreign Judgment. I resolve issue 3 in favour of the Appellants.

The Learned Counsel for the Respondent under issue 1 raised two questions; first is whether the provisions of Order 13 Rule 23 of the Federal High Court (Civil Procedure) Rules 2000 are mandatory for all occasions of service of processes of a foreign court in Nigeria as to be applicable in this case. Second question is whether the appropriate law or rules of procedure to be applied in respect of service of foreign processes in Nigeria is Nigerian law or rules of procedure of the country of the foreign court.

This issue has been determined in the foreign court as evidenced in exhibit GB5:- The default Judgment Order is reflected in page 19 of the Record of Appeal wherein the Learned Trial Judge in the foreign court held:

“It is appearing to the court that 21st Century was duly served with a Motion for Judgment with sworn affidavit incorporated therein, in accordance with Virginia Code S8. 01-28, through the Secretary of the Commonwealth on December 15 2003 and personally on Ms. Shade Shoage, Customer Relations Officer who was in charge of 21st Century’s office on December 30, 2003”.

This issue having been decided in the foreign court becomes irrelevant at this stage. The foreign court’s decision is not on appeal in this court. Therefore, issue I is most inappropriate and an attempt by the Learned Counsel to the Appellant to canvass the issue of service already determined in the foreign court which ironically is the same point of issue estoppel he vehemently opposed. It will amount to a mere hypothetical issue or academic exercise if this court proceeds to consider this issue. The determination of service has no probative value because this court is devoid of jurisdiction to seat on appeal over the Judgment of County Court, Fairfax Country.

Under issue 2, Mr. Etigwe Uwa raised the question of whether having regard to the provisions of the foreign judgments (Reciprocal Enforcement) Act, the lower court was right to refuse to register the Judgment of the Circuit Court of Fairfax County and to find that the foreign court had no jurisdiction. It is his contention that the appellant met the requirements stipulated in 54 of the foreign Judgments (Reciprocal Enforcement) Act and that there is no finding by the lower court that any of the requirements was not met. He submits that the lower court was wrong to have refused to register the judgment for some other reasons not included in the express provision of the foreign judgments (Reciprocal Enforcement) Act, he referred to 56(2) of the foreign Judgments (Reciprocal Enforcement) Act and subsection 6(3) and submits that the Learned Trial Judge erred when he went outside the confines of the provisions of the Judgment (Reciprocal Enforcement) Act to arrive at his decision that the Circuit Court of Fairfax County had no Jurisdiction.

The Learned Counsel to the Appellant submits that the requirements a Judgment creditor in respect of a Foreign Judgment must satisfy to have that Judgment registered in Nigeria are listed under 54 of the Foreign Judgments Act. He listed four requirements and contends that the Appellant has met these requirements and that the lower court did not find that the requirements were not met. Learned Counsel further submitted that the issue of jurisdiction raised in the lower court as it concerns registration of Judgments of a foreign court in Nigeria is provided for in 56(2) of the Foreign Judgment (Reciprocal Enforcement) Act. He referred to 56(3) of the Act submitting it contains circumstances under which the court in Nigeria will hold that a foreign court lacks Jurisdiction. He contends in the present case the subject matter of the proceedings is not the case involving immovable property outside the country of original court or that going to the country of original court was contrary to an agreement under which the dispute in question was to be settled otherwise then by proceedings in the court of the country of that court or a case that Respondent under the rules of international law was entitled to immunity from the jurisdiction of the court.

What then are the relevant statutory provisions governing the registration of foreign Judgments for the purpose of enforcement in Nigeria.

The two main statutes are the Reciprocal Enforcement of Judgment Act 1922 Cap 175 Laws of the Federation and Lagos 1958 and the Foreign Judgment (Reciprocal Enforcement) Cap 152 Laws of the Federation 1990 Act Cap F35 of the Revised Laws of the Federation 2004. The 1958 ordinance was promulgated to facilitate the reciprocal enforcement of Judgments obtained in Nigeria and in the United Kingdom and other territories under her majesty’s protection not having been repealed by the 1990 Act, the Act still applies to the United Kingdom and other part of her majesty’s dominion. See Macaulay v. R.Z.B Austria (2003) 18 NWLR (Pt. 852) SC 282. Critical perusal of the record of proceedings in the lower court and the Appellants Brief show clearly that the parties relied exclusively on the provisions of the Foreign Judgment (Reciprocal Enforcement) Act, in pursuing their matter at the lower court and on appeal in this court, the Appellant referred and relied on S4 and S3 of the Act contending both has to be read together for purpose of emphasis, I reproduce both:

S4: “Registration and application of judgments for enforcement in foreign countries:

(1) A person being a judgment creditor under a judgment to which this Part of this Act applies, may apply to a superior court in Nigeria at any time within six years after the date of the judgment, or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in such court, and on any such application the court shall, subject to proof of the prescribed matters and to other provisions of this Act, order the judgment to be registered:

Provided that a judgment shall not be registered if at the date of the application –

(a) It has been wholly satisfied; or

(b) It could not be enforced by execution in the country of the original court”.

S3: “Power to extend Part 1 of Act to foreign countries giving reciprocal treatment:

(1) The Minister of Justice if he is satisfied that, in the event of the benefits conferred by this Part of this Act being extended to judgments given in the superior courts of any foreign country, substantial reciprocity of treatment will be assured as respects the enforcement in that foreign country of judgments given in the superior courts in Nigeria, may be order direct –

(a) that this Part of this Act shall extend to that foreign country; and

(b) that such courts of that foreign country as are specific in the order shall be deemed superior courts of that country for the purposes of this Part of this Act”.

Under S4 of the Foreign Judgment (Reciprocal Enforcement) Act, the period within which a foreign Judgment may be registered in Nigeria was extended to six years from the date of the Judgment. However, S3(1) of the Act subjected the coming into force of the provisions of part 1 of the Act which part 1 contains S4(1) of the said Act which provides for the period of registration to be six years if an order is made by the Minister of Justice directing the extension of part 1 of the Act to the relevant foreign countries. In effect, until the Minister of Justice in this country makes the Order under S3(1) of the Act, S4 of the Foreign Judgment Act cannot be available to any applicant to support an application to register a foreign Judgment within a period of 6 years from the date of the Judgment. See Marine & Gen. Ass. Co. Plc. v. O. U. Ins. Ltd. (2006) 4 NWLR (Pt.971) SC 622.

The Learned Trial Judge in his ruling found that there is nothing before the court to show that the Minister of Justice has exercised his powers under S3 of the Foreign Judgment Act in favour of the United States of America and proceeded to rely on S10(a) of the Foreign Judgment (Reciprocal Enforcement) Act. The Learned Trial Judge interpreting the provision and relying on the case of Andrew Mark Macaulay v. R. Z. B. Austria (2003) 18 NWLR (Pt. 18) 282 at 298 rightly made the following pronouncement:

“There is nothing placed by this court to show that there is an Order by the Minister of Justice extending the provision of part 1 of the Reciprocal Act to Judgments given in United States. The applicant therefore has twelve months from the date of the Judgment within which to register it in Nigeria”.

The lower court rightly found that S10 of the Foreign Judgment Act was relevant in the determination of when an application can be made once the Minister has not made an Order. S10 stipulates as follows:

10(a): “a judgment given before the commencement of an order under section 3 of this Act applying Part I of this Act to the foreign country where the judgment was given may be registered within twelve months from the date of the judgment or such longer period as may be allowed by a superior court in Nigeria”.

It is indisputable that the application for registration was filled within twelve months which period is covered under S10(1) of the Foreign Judgment Act in the absence of a Minister’s Order. The Learned Trial Judge on his judgment as reflected on page 103 of the record of appeal held:

“It has been shown that final judgment was entered in favour of the Applicant by the CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA on 2nd December 2004. This ORIGINATING MOTION was filed in this court on 25th October, 2005. The originating motion was therefore filed within twelve months from the date of the Judgment. The question is whether the judgment of the said CIRCUIT COURT should be registered by this court. Under Section 4 of the Reciprocal Act, such a judgment is registerable subject to proof of the prescribed matters and to other provisions of the Act provided at the date of the application the judgment has not been wholly satisfied or it could not be enforced by execution in the country of the original court. It is averred in the Supporting Affidavit that the Judgment has not been satisfied in whole or in part. This fact has not been controverted. The position of the Respondent however is that it was not served with the originating processes of the aforesaid CIRCUIT COURT OF FAIR FAX COUNTY, VIRGINIA in accordance with the applicable Nigerian Law. The issue therefore turns on whether service of the originating processes of the aforesaid CIRCUIT court on the Respondent which is a company incorporated under the Laws of the Federal Republic of Nigeria carrying on business within the jurisdiction of this court, was to be effected in accordance with the Law of Virginia or in accordance with Nigerian Law”.

From the Learned Trial Judge’s findings above, one would have expected the court below to proceed and register the foreign Judgment since the prerequisites for registration were present. Unfortunately the Learned Trial Judge did not fail to realize that the issue of service of process having been considered and determined by the foreign court cannot be relitigated again except by way of appeal. Clearly the issue of service was responsible for the lower court derailing from the right track and delving into the merits of the Judgment.

S4 of the Act is also relevant in relation to circumstances when the court will refuse to register the judgment as it prescribed the pre-requisites for the registration of the Foreign Judgment as follows:

1. There must be a Judgment creditor in respect of a foreign Judgment
2. Application for registration must be made to a Superior Court of record in this country
3. The application must be made within one year or six years from the date of the Judgment as applicable
4. The Judgment shall not have been wholly satisfied.

It is equally imperative to consider the provisions of S6(2) & (3) of the Foreign Judgment (Enforcement Reciprocal) Act on the prerequisites to registration of Judgment. S6 stipulates:

S6: “Cases in which registered judgments must or may be set aside:-…”

A glossary look at the subtitle of S6 of the Act gives the impression, it is limited to cases in which registered judgment must or may be set aside. A reading of S6(2), the introductory paragraph limits the application of the provision in that sub section to purposes for which S6 of the Act was prescribed. S6(2) stipulates:

S6(2): “For the purposes of this section the courts of the country of the original court shall, subject to the provisions of subsection (3) of this section, be deemed to have had jurisdiction:-

(iii) if the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject mailer of the proceedings, to submit to the jurisdiction of that court or of the courts of the country of the court; or…”

The purpose from the subtitle is for cases in which registered Judgments must or may be set aside. There is no doubt that the application in the lower court is not for an Order to set aside but to register a Foreign Judgment. Notwithstanding, the requirements under S6(2) and S6(3) are germane to all Foreign Judgment applications. This is because prescribed conditions therein will serve as a guard for the court to avoid circumstances wherein a registered Judgment will be subsequently set aside on the basis of the provision stated in S6 of the Act. The provision therein is not mandatory but necessary when considering whether a Foreign Judgment will be registered or not.

S6(3) of the Foreign Judgment Act ought to be read together with 86(1)(a)(2) of the Act where the issue of jurisdiction is made a condition to set aside of a Foreign Judgment.

S6(3) of the Foreign Judgment Act stipulates:

“(3) Notwithstanding anything in subsection (2) of this section, the courts of the country of the original court shall not be deemed to have had jurisdiction –

(a) if the subject matter of the proceedings was immovable property outside the country of the original court; or

(b) except in the case mentioned in sub-paragraphs (i), (ii) and (iii) of paragraph (a) and in paragraph (c) of subsection (2) of this section, if the bringing of the proceedings in the original court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of the country of that court; or

(c) if the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court”.

Therefore once Applicant seeking registration has presented facts to support the prerequisites under S4 for registration, the lower court must presume the foreign court had jurisdiction.

The court will refuse to register a foreign Judgment when these aforesaid conditions have not been fulfilled inclusive of where the Judgment could not be enforced by execution in the country of the original court. The conditions set out under S4 of the foreign Judgment (Reciprocal Enforcement) Act should be considered by the Learned Trial Judge before registering the Judgment or refusing to register. The Learned Trial Judge in the lower court considered the basic requirements and found that the Appellant was the Judgment creditor in respect of the foreign Judgment, that the application for registration was made within one year and that the Judgment was not satisfied either in whole or in part. All his findings fall within circumstances where the foreign Judgment should be registered. Issue of service of originating process is not a condition to consider on when to grant or refuse to register a foreign Judgment. Equally, S6 is not a mandatory provision to consider in registering a foreign Judgment. It may be necessary in circumstance where there is documentary evidence challenging at that stage the existence of the Judgment otherwise it is mandatory when an application is for setting aside then provision S6 will be considered as conditions. Looking at the record of appeal there is no evidence from the document and proceedings therein that the foreign Judgment cannot be executed in the United States of America. The requirement that Judgment must be enforceable in the country of original court must relate to Judgments that are not enforceable in that the Jurisdiction in the instance case, the Circuit Court of Fairfax County. The determination of the issue of service of process by the Learned Trial Judge exceeded the statutory powers conferred on the court under the foreign Judgments (Reciprocal Enforcement) Act. See O. U. Ins. Ltd. v. Marine & General Ass. Co. (2001) 9 NWLR (Pt.717) CA92. The lower court veered into the terrain preserved for the Appellant court in the foreign Jurisdiction. The record of proceedings is clear it shows that the parties agree that any dispute arising from the Agreement will be resolved in the American Court.

Furthermore, S8 of the Foreign Judgment (Reciprocal Enforcement) Act limits the power of the Trial Court to only registration of the judgment. S8 of the Foreign Judgment provides:

“No proceedings for the recovery of a sum payable under a foreign Judgment, being a judgment to which this Part of this Act applies, other than proceedings by way of registration of the judgment, shall be entertained by any court in Nigeria”.

The above provision is explicit and unambiguous. The rationale of 58 obviously is to preserve all foreign Judgment and avert incidences of our courts going into the merits of a foreign Judgment. Therefore once a foreign Judgment is for registration, the Learned Trial Judge must limit himself to the requirements stipulated under S4 of the foreign Judgment (Reciprocal Enforcement) Act.

S11 of the Foreign Judgments (Reciprocal Enforcement) Act is equally very relevant, for purposes of emphasis I reproduce S11(1):

“(1) Subject to the provisions of this section, a Judgment to which Part 1 of this Act applies or would have applied if a sum of money have been payable thereunder, whether it can be registered or not, and whether, if it can be registered, it is registered or not, shall be recognized in any court in Nigeria as conclusive between the parties thereto in all proceedings founded on the same cause of action and may be relied on by way of defence or counterclaim in any such proceedings”.

S11(1) of the Act enjoins the lower court to recognize foreign Judgment as conclusive between the parties as long as it is on the same cause of action. Having regards to the above provisions, the Learned Trial Judge with due respect misconceived the prerequisites to the registration he predicted his decision on issue of validity of service of the originating process from the foreign court in Nigeria. His decision on service was irrelevant to the issue before him which was for the registration of a foreign Judgment only. The Learned Trial Judge is to presume the Foreign Judgment is the Judgment of a competent court and consider the prerequisites for Registration of the Judgment. I hereby set aside the decision of the lower court refusing to grant the Appellant’s application on grounds of non service of the foreign process in accordance with Order 13 Rule 23 of the Federal High Court (Civil Procedure Rules) 2000 and hold there is merit in this appeal.

Having carefully considered all the relevant provisions of the applicable laws in this case and the findings of the lower court, this case falls under the circumstance where S15 of the Court of Appeal Act 2004 should be invoked.

S15 of the Court of Appeal Act stipulates:

“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such order directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in title case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be reheard by a court of competent jurisdiction”.

Interpreting S16 of the Court of Appeal Act Cap 75 Laws of the Federation 1990 which is in per-material with S.15 of the Court of Appeal Rules, the Supreme Court in Eboho Local Govt. v. Boundary Settlement Comm, (1988) 1 NWLR (Pt.69) SC 189 held:

“The terms of section 16 of the Court of Appeal Act 1976 are so wide as to entitle the Court of Appeal to proceed to examine the application for certiorari. The section in effect invests the court with power in relation to an appeal before it, such as the present appeal, to make any order which the lower court could have made, indeed it could treat the matter before it as if the suit was filed in the first instance before it”.

In the instance case, the Learned Trial Judge rightly made the following findings; that the Appellant is the judgment creditor, that the Foreign Judgment was not satisfied wholly or partly, and that the application was filled within a period of twelve months in accordance with S10 of the said Act. The foreign Judgment is presumed conclusive by virtue of S11 of the Act unless there is contrary evidence on its authencity.

Equally S8 of the same Act stipulates that no other proceedings can be initiated in respect of a Foreign Judgment other than for registration of same. Therefore, the Appellant have satisfied the prerequisites to the registration of the Judgment of the Circuit Court of Fairfax in this country.

Consequently, I order the registration of the Judgment of the Circuit Court of Fairfax County, Virginia entered in Law No.218964 on the 2nd day of December, 2004 by the said court (marked exhibit GB10 in the affidavit in support of this Notice), in the sum of US Dollar 1,231,489.00 with interest at the rate of 1.5% per month from the 2nd of December 2004 until it is fully satisfied, so that the said Judgment shall have the same force and effect as a Judgment of the Federal High Court of Nigeria or any other superior court of Record in Nigeria.

Cost is awarded in the sum of N20,0000 in favour of the Appellant against the Respondent.

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Other Citations: (2008)LCN/2851(CA)