Witt & Busch Limited V Dale Power Systems Plc (2007)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C
This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on 30th May, 2000, in which that court reversed the decision of the High Court of Justice of Lagos State delivered by Ade Alabi, J. (as he then was) on 30th October, 1998, setting aside the order of the same High Court of 13th October, 1997 by Phillips J. registering a foreign judgment of the High Court of Justice, Queens Bench Division in England dated 6th June, 1997, in favour of the respondent in the present appeal. The respondent as a judgment creditor, brought its application for the registration of the foreign judgment under the provisions of the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958. The application was heard and granted by Phillips, J, who in his order, gave the appellant in the present appeal which was the, judgment debtor in the application, 14 days from the date of service of the notice of the order on it, to apply to set aside the registration of the foreign judgment. However, appellant/judgment debtor did not file its application to set aside the registration of the foreign judgment until 23rd June 1998. The application was heard on 18th September, 1998 and in a considered ruling delivered by Ade Alabi, J. (as he then was) on 30th October, 1998, the application to set aside the registration of the foreign judgment was granted.
Dissatisfied with the ruling, the judgment creditor now respondent, appealed against it to the Court of Appeal Lagos Division which after hearing the appeal, in its judgment delivered on 30th May, 2000, allowed the appeal, set aside the decision of Ade Alabi, J. (as he then was) of the trial High Court setting aside the registration of the foreign judgment and restored the ruling of Phillips J. of the same High Court which ordered the registration of the foreign judgment in favour of the respondent.
The appellant which is unhappy with the decision of the Court of Appeal, has now appealed to this court. The appellant’s amended notice of appeal dated and filed on 25th March, 2003, contains three grounds of appeal from which the following three issues for determination were distilled in the appellant’s amended appellant’s brief of argument.
“1. Whether the Court of Appeal was right in holding that registration of the respondent’s judgment from the High Court of England was governed by the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 as against the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990 (ground 2). Whether the decision of the Court of Appeal is not liable to be set aside for reason that the English Court Judgment was registered in foreign currency and not Nigerian Naira contrary to the provisions of section 4(3) of the Foreign Judgments (Reciprocal Enforcement) Act, 1990 (ground 1). Whether the Court of Appeal is correct in holding that by participating in the proceedings before the English High Court, the appellant lost its right to challenge the subject matter jurisdiction of the English Court (ground 3).”
However, in the respondent’s brief of argument filed on 1st September, 2006, the two issues identified for determination are-
“i. Whether or not the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 ‘the 1922 Ordinance’ is the applicable law to the registration in Nigeria of foreign judgments obtained from the High Court of Justice of England.
ii. Whether the Court of Appeal was correct in its holding that the English High Court of Justice had jurisdiction to hear the matter.”
The issues as formulated in the appellant’s brief of argument clearly arose from the three grounds of appeal filed by the appellant.
These are therefore the issues falling for determination in this appeal. The first issue is whether the Court of Appeal was right in holding that registration of the respondent’s judgment from the High Court of England was governed by the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 as against the Foreign Judgment (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990. Citing the case of Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt. 498) 124 at 159 – 160 , learned appellant’s counsel concedes that the fact that an enactment is omitted from the Revised Laws of the Federation does not affect its subsistence and validity by virtue of section 3(2) of the Revised Edition (Laws of the Federation of Nigeria) Act No. 21 of 1990, he nevertheless submitted that the 1958 Ordinance has been repealed in part or made of limited application by the express terms of the 1990 Act. Learned counsel took time to analyse the provision of this 1990 Act particularly sections 3 and 9 thereof and argued that although the recent decision of this court in Macaulay v. R.Z.B. Austria (2003) 18 NWLR (Pt. 852) 282, relied upon by the respondent that the Reciprocal Enforcement of Judgment Ordinance of 1958 is the law applicable to the registration and enforcement in Nigeria of a judgment obtained in the United Kingdom and not the Foreign Judgments (Reciprocal Enforcement) Act, 1990, nevertheless learned counsel urged this court to depart from this decision upon the principles stated in Odi v. Osafile (1985) 1 NWLR (Pt. 1) 17 at 34 – 35; 37 – 39; 46 – 48; Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1; Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5 and Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382 at 447.
For the respondent however, it was submitted that on a proper construction and interpretation of the relevant provisions of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990, which both parties have been referred to as “the 1990 Act”, the irresistible conclusion that will be drawn is that the applicable law to the registration of judgments obtained from the High Court of Justice in England is the Reciprocal Enforcement of Judgments Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958, otherwise referred to as ‘the 1922 Ordinance.’ In support of this argument, learned counsel to the respondent relied on Andrew Mark Macaulay v. Raiffeisen Zentral Bank Osterreich Akiengesell Schaft (RZB) of Austria (2003) 18 NWLR (Pt. 852) 282 and Marine & General Ass. Company Plc. v. O. U. Insurance Ltd. (2006) 4 NWLR (Pt. 971) 622.In resolving the first issue arising for determination in this appeal on the law applicable to the application for registration and enforcement of foreign judgment in Nigeria, particularly foreign judgments obtained from the High Court of Justice, Queens Bench Division in England, I entirely agree with the learned counsel to the respondent that the dispute in the applicable law has long been put to rest by the decision of this court in Macaulay v. R.Z.B. of Austria (2003) 18 NWLR (Pt. 852) 282 at 296 where Kalgo, JSC answered the question as follows –
“In my respectful view two Federal laws are relevant here.
(1) Reciprocal Enforcement of Judgments Act, Cap. 175 of Laws of the Federation of Nigeria, 1958 and
(2) Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990. Learned counsel for the parties are also ad idem on this.
The Reciprocal Enforcement of Judgments Act (Cap. 175 of 1958) hereinafter referred to as the 1958 Ordinance, deals inter alia, with the issue of the registration of judgments obtained in Nigeria and United Kingdom and other parts of Her Majesty’s dominions and territories. It is pertinent to observe that the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 152 of 1990) hereinafter referred as the 1990 Act did no specifically repeal the 1958 Ordinance. This means that it still applies to the United Kingdom and to parts of Her Majesty’s dominions to which it was extended by proclamation under section 5 of the Ordinance before the coming into force of the 1990 Act.”
Therefore applying the provisions of the 1958 Ordinance to the foreign judgment of the United Kingdom sought to be registered in that case at the trial High Court, the court came to the conclusion that the judgment in question was registrable within 12 months after the date of judgment or any longer period allowed by the registering High Court in Nigeria. However, the judgment in Macaulay v. R.Z.B. of Austria (supra) did not stop on the application of the 1958 Ordinance alone. The judgment also went ahead to consider the relevant provisions of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990, particularly section 3(1) and 10(a) thereof and came to the conclusion that the 1990 Act is also applicable to the registration of foreign judgments obtained from the United Kingdom in Nigeria, pending the coming into force of Part 1 of the Act upon the extension of its application to the United Kingdom by an Order of the Minister of Justice in exercise of his powers to do so under section 3 of the Act. Since the judgment in dispute between the paties in the present case was obtained from the United Kingdom, in addition to being registrable under the 1958 Ordinance which is still applicable in Nigeria, it is also registrable under the 1990 Act where section 10(a) provides for interim registration of such judgment pending the coming into force of the Order by the Minister of Justice directing the application of Part 1 of the Act to the United Kingdom and other countries to be specified in the Order.The decision in Macaulay v. R.Z.B. of Austria (supra) was applied in the recent decision of this court in Marine & General Assurance Company Plc v. Oversea Union Insurance Ltd. & Ors. (2006) 4 NWLR (Pt. 971) 622. Applying these decisions to the present case, the court below was indeed right in holding that the 1958 Ordinance was applicable to the registration of the judgment obtained by the respondent against the appellant from the High Court of Justice, Queens Bench Division of England. On the question of the appellant’s plea for this court to depart from those judgments, although the appellant had cited authorities in support of the fact that this Court can departed from its previous decisions based on grounds of inconsistency with the Constitution, erroneous in law, per) or may occasion miscarriage of justice or perpetuate injustice, strangely enough no attempt was made by the appellant to specifically tie the decisions in those cases to the identified grounds for departing from them in the present case. I say no more. In any case since both the 1958 Ordinance in section 3(1) and the 1990 Act in section 10(a) have made or contain identical provision for the registration of the foreign judgment in the present case within twelve months after the date of the delivery thereof and taking into consideration that the judgment in question was registered within the prescribed period as prescribed under both applicable statutes, the complaint of the appellant of which of the two statutes is applicable is neither here nor there. It may be observed here that even the appellant in its appellant’s reply brief seemed to have agreed that the respondent’s foreign judgment which is of the United Kingdom origin is registrable under section 10(a) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, 1990.
Therefore provided the appellant itself is satisfied that the judgment was registered within the time prescribed under the 1990 Act, it is baffling to see the basis of the complaint of the appellant in this issue in insisting that the judgment ought not to have been registered under the 1958 Ordinance which is indeed the applicable law as the registration of the foreign judgments made under section 10(a) of the 1990 Act are only interim provisions.
The second issue for determination is whether the decision of the Court of Appeal is not liable to be set aside for reason that the English Court Judgment was registered in foreign currency and not in Nigerian Naira contrary to the provisions of section 4(3) of the 1990 Act. Learned appellant’s counsel referred to the Order of Phillips, J. of 13th October 1997 registering the Foreign Judgment in foreign currency, namely, the Pounds Sterling which is also reflected in the Notice of Registration of the judgment dated 29th October, 1997. By registering the judgment in foreign currency as contended by the learned counsel, the respondent and the registering court had committed fatal mistake fundamentally affecting the registration which is contrary to the requirements of section 4(3) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990 which required the judgment to be registered in Naira. Citing and relying on the cases of Bamaiyi v. A.-G., Fed. (2001) 12 NWLR (Pt. 727) 468 at 497 and Union Bank of Nigeria Plc v. Eskol Paints Nigeria Limited (1997) 8 NWLR (Pt. 515) 157 and Prospects ile Mills v. I.C.I. Plc England (1996) 6 NWLR (Pt. 457) 668, learned counsel while conceding that Nigerian Courts have powers to enter judgments in foreign currency, the same courts by the provisions of section 4(3) of the 1990 Act, have no power to register any foreign judgment in Nigeria in foreign currency.
Learned counsel therefore urged this court to declare null and void and of no effect, the said registration of the foreign judgment in the present case in favour of the respondent.
In responding to the arguments of the appellant on this issue, learned respondent’s counsel pointed out that the provisions of section 4(3) of the 1990 Act relied upon by the appellant as not authorizing the registration of the foreign judgment in foreign currency, are not applicable because those provision have not come into force in the absence of the Order by the Minister of Justice to bring the provision of Part 1 of the 1990 Act into force. This is in line with the dictum of this court in Marine & General Assurance Company PIc. v. Overseas Union Insurance Limited (supra). It is quite clear from the provision of section 3 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, 1990 that the provisions of Part of the Act shall come into force by Order of the Minister of Justice which is yet to be promulgated. The relevant parts of this section of the
Act are outlined below –
PART I – REGISTRATION OF FOREIGN JUDGMENTS
3(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 by 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 specified in the Order shall be deemed superior courts of that country for the purpose of this Part of this Act.
(4) The Minister of Justice may by a subsequent Order vary or revoke any order previously made under this section.
……………………………………..
The provisions of this section of the Act are quite clear on how Part 1 of the Act which includes section 4 of the Act being relied upon by the appellant shall come into force regarding its application to the foreign judgment in the present case sought to be registered for enforcement in Nigeria. Section 4(3) of the Act makes provision for registration of foreign judgments to which Part of the Act applies. The relevant part of this section 4(1) reads-
“4(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…………. to have the judgment registered in such court.”
The respondent being fully aware that the provisions of Part 1 of the Act have not been brought into operation by an order of the Minister of Justice, did not bring its application for the registration of the foreign Judgment in its favour under section 4 of the Act. The appellant therefore cannot hide under the section to attack the registration of the respondent’s foreign judgment registered in foreign currency. In other words, until the provisions of section 4 of the 1990 Act comes into force in accordance with section 3 of the same Act, there is no restriction for any superior court in Nigeria to register a foreign judgment in foreign currency. For this reason, the respondent’s foreign judgment of the High Court of Justice, Queens Bench Division of England registered by the trial Lagos State High Court in Pounds Sterling, was correctly registered in accordance with the law.
The third and last issue for determination is whether the Court of Appeal is Correct in holding that by participating in the proceedings before the English High Court, the appellant lost its right to challenge the subject matter of jurisdiction of the English Court. The submission of the learned counsel to the appellant on this issue is that the statement of the court below that by participating in the proceedings before the English High Court, the appellant had lost its right to challenge the jurisdiction of that foreign court was quite wrong because the court below did not give full and proper consideration to the meaning of the expression “voluntarily appearing in the proceedings”, used in section 6(2)(a)(i) of the 1990 Act.
Learned counsel asserted that the unchallenged affidavit evidence of the appellant before the trial court that it gave its counsel handling the matter in the English High Court instruction to challenge the jurisdiction of that court but that the counsel failed to heed to the instruction, was quite enough to afford the appellant the opportunity to raise the issue before the trial court especially when the law governing the contract between the parties was Nigerian law and not English law which the High Court of England applied.
The respondent however contended that the court below was right in holding that the English High Court had jurisdiction to hear the case between the parties, the appellant having submitted to the jurisdiction and participated in the proceedings thereof. Learned counsel maintained that in the absence of any evidence before the trial court that the appellant’s solicitor was ever instructed to challenge the jurisdiction of the English Court, the complaint of the appellant in the present issue is without any basis whatsoever, more especially when the agreement between the parties had clearly stipulated that the English Courts were to have jurisdiction in the matter.
From the record of this appeal containing the proceedings of the High Court of Justice of England and the two separate proceedings of the High Court of Justice of Lagos State presided by Phillips J. which granted the respondent’s application registering its foreign judgment against the appellant and the other presided by Ade Alabi, J. (as he then was) which set aside the registration of the same foreign judgment, there is enough evidence showing that the appellant on its own volition through its learned counsel unsuccessfully defended the respondent’s action against it in the English High Court up to the end of the proceedings culminating in the final judgment against it. Further more, the appellant through its learned counsel in England also appealed against the foreign judgment, without any complaint of the jurisdiction of the English High Court, prosecuted its appeal again which ended woefully against it. Notwithstanding the feeble attempt made by the appellant in an affidavit evidence at the trial court to heap up the blame of the failure to raise the issue of jurisdiction of the English High Court before that court on his learned counsel who had no slightest opportunity to refute the allegation on a counter affidavit, the appellant has clearly failed to substantiate its claim that the High Court of Justice of England had no jurisdiction to hear and determine the respondent’s claim leading to the judgment ordered to be registered in Nigeria by the court below in allowing the respondent’s appeal. In any case, the present issue which is a mere complaint against a statement in the lead judgment of the court below that by participating in the proceedings before the English High Court, the appellant had lost its right to challenge the jurisdiction of that court without showing how that statement affected the final decision of the court below, can hardly be regarded as a real issue for determination in this appeal.
In raising this issue, the appellant had indeed completely disregarded the finding of the court below after making the statement complained of in this issue that the undisputed facts in the present case cannot permit the appellant to bring itself within any of the provisions outlined under section 6(2)(a)(i) to(v) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, 1990, under which the appellant sought to attack the jurisdiction of the English High Court. By this final decision therefore, the appellant had been clearly allowed by the court below to raise the issue of the jurisdiction of the English High Court before it although the final decision on the issue was against the appellant.
In the end, all frantic efforts made by the appellant to challenge the registration of the judgment of the High Court of Justice, Queens Bench Division of England delivered on 6th June, 1997 against it in the High Court of Justice of Lagos State in the three issues raised for determination in this appeal have failed, this appeal must also fail. Accordingly, the appeal is hereby dismissed. The judgment of the court below delivered on 30th May, 2000, is hereby affirmed.
There shall be N10, 000.00 costs to the respondent against the appellant.
SC.240/2000
