Paul O. Joseph -VS- Federal Republic of Nigeria & ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D. DAMULAK

DATED THIS 26^TH DAY OF JUNE 2019

SUIT NO. NICN/ABJ/328/2018

BETWEEN

PAUL O. JOSEPH ……………………………………………CLAIMANT

AND

FEDERAL REPUBLIC OF NIGERIA
ATTORNEY GENERAL OF NIGERIA…………. ……DEFENDENTS

JUDGMENT

INTRODUCTION

The claimant commenced this action vide a general form of complaint dated 26^th day of November 2018 and filed on the same day. The claimant’s claim is for:-

a)A DECLARATION that the termination of employment of the claimant without hearing and who was incapacitated as a result of injury sustained in the course of his official duties without full emolument was illegal and unlawful.
b)A DECLARATION that the termination of employment of the claimant without hearing and without payment of his transport and housing allowance of 5,000F CFA and 10,000F CFA per month respectively was illegal and unlawful.
c)AN ORDER directing the Defendant to pay the claimant all his emolument to the tune of Twenty two million, three hundred and seventeen Thousand, Naira and One Hundred and Twenty Kobo (N22,317,120.00) being the full emolument of the claimant as a result of the termination of his employment following the incapacity of injury sustained in the course of his employment.
d)AN ORDERdirecting the defendant to pay the claimant the sum of Three Million, Four Hundred and Two Thousand Naira Only (N3,402,000) be of (sic)the transport and housing allowances accruable to the claimant for the period of his incapacity as a result of the injury sustained in the course of his employment.
e)AN ORDER directing the defendant to pay the claimant the sum of Nineteen Million, Five Hundred and Sixty Three Thousand, Six Hundred and Seventeen Kobo (N19,563,617) or (3,105,336F CFA) awarded to the claimant in Libraville Gabon against the defendant as damages to the claimant in the course of that wrongful termination of the claimant’s employment.
f)AN ORDER for award of General damages to the claimant in the sum of One Hundred Million Naira (N100,000.00)

FACTS OF THE CASE

The claimant was employed by theNigeria Embassy in Gabon, a domestic staff as a cleaner and gardener in 1996with monthly salary of 98,400F (CFA) equivalent to N61,992, he was handed a mowing machine to work for the defendant to cut grassand the machineinjured the claimant on his eye. He was send to Kaduna for treatment and on return he was handed a termination letter. He sued the embassy for wrongful termination in Libraville and judgment was in his favour awarding 3,105,336f (CFA) to him which the embassy has not paid.

CASE OF THE CLAIMANT

The claimant testified in line with his statement of facts as follows;

That hewas residing and doing business in Gabon since 1986 before he was employed by the agent of the 1^st defendant in 1996. He was initially employed as a domestic cleaner and gardener with monthly salary of 98,400F (CFA) equivalent to N61,992.He was handed a faulty machine to cut grass in the garden and the machine developed fault and injured him on the eye. He was also given a condition of service. He was treated locally in Gabon for months without improvement after which he was referred to Kaduna for further treatment by the 1^st defendant. After he returned to Gabon, he discovered that the agent of the defendant had terminated his appointmentand he was handed a termination letter.He sued the agent of the 1^st defendant for damages which the Court in Gabon awarded him the sum of 3,105,336f (CFA) which the defendant has not paid.He was not invited by the committee for employment to defend himself before terminating his employment.He said that the injury on the eye has made him a one eye man as he cannot make use of the right eye any more. He said that before his employment by the embassy, he was a commercial driver, but he can no longer drive with only one eye. That the act of giving the claimant that faulty machine to work with and which caused the injury on the right eye of the claimant has caused untold hardship to the claimant and all his family dependents. The claimant tendered 7 documents in evidence and they were admitted in evidence as follows;

Letter of confirmation of appointment dated 9/12/1997 — Exhibit POJ1
Reference letter to Eye Specialist Hospital Kaduna dated 5/12/2000 – Exhibit POJ2
Termination of appointment dated 24/12/2001 — Exhibit POJ3
Judgment of the court of first authority Libraville in French dated 30/3/2006 – Exhibit POJ4A
Non call certificate of the Judgment of the Court of first authority Libraville, English translation dated 26/4/2006 – Exhibit POJ4B
Condition of service for locally recruited staff of the Nigerian embassy Gabon — – Exhibit POJ5
Letter of upgrade to the post of driver dated 13/1/1999– Exhibit POJ6 tendered.
Discharge Summary from Mission for Vision, Cross River State Government – – Exhibit POJ7 tendered.

Exhibit POJ6 tendered and Exhibit POJ7 tendered were objected to on the ground that it was one Abel Queen in the law firm of claimant’s counsel who deposed about them. Claimants counsel responded that Queen’s deposition is by consent of the claimant.

These documents were pleaded in the reply of the claimant and covered by the depositions of Abel Queen who did not testify. However, since exhibit POJ6 tendered is an original, it is pleaded and is relevant, it will be admitted in the interest of justice. The document is admitted and marked as exhibit POJ6.

As for Exhibit POJ7 tendered, it is a photocopy without foundation. The document is said to be a certificate of surgery, that fact is not apparent on the face of the document, neither is the name and signature of a surgeon on the document. The document is accordingly rejected and is so marked.

Under cross examination, the claimant testified that he was not given any other condition of service. He read the condition of service. When you are sick you are given a sick leave after you present a doctor’s report showing that you are sick. He was never sick. The embassy knew of the condition of his eye and gave him a letter to go to Kaduna for treatment and they even gave him a Visa.He was not given a single CFA as assistance. When the damage occurred, there was no Doctor at the embassy so they send him to a General Hospital in Gabon and he was given a medical report to bring to the embassy.It was not that the machine was not working well but it picked a stone and hit his eye. The case at Gabon was on the same complaint of wrongful termination.

CASE OF THE DEFENDANTS

Testifying for the defendants, DW1, Oloruntogbe Olayinka testified as follows;

That the claimant was a former employee of the Nigerian embassy in Gabon between 1996 to 2001 when his appointment was terminated on grounds of indiscipline. That it is not true that the claimant was given a faulty machine to work with and he never reported any such event to the embassy when it happened in 1997 and that the claimant was upgraded to the position of security guard and driver between 1998 to 2000. The claimant applied to the embassy for medical assistance in 2000 to treat a problem with his eye that he claimed got injured while he was a gardener with the embassy in 1997.The sum of 500,000 CFA was approved for him by the embassy who also gave him a letter of introduction to a Nigerian Hospital in Kaduna. The claimant reported back to work in good health in 2001.That the claimants employment was terminated on disciplinary grounds, dereliction of duty and lateness to work. There is nothing in the condition of service that requires the claimant to be heard before his appointment can be terminated on disciplinary grounds. That the claimant rejected the one month salary in lieu of notice offered to him by the defendant.

Under cross examination, the DW1 testified that she has never worked in the Nigerian embassy, Libraville. She read the facts deposed to in her paragraph 5 from the file which never talked about the machine at all.

DEFENDANTS’ FINAL WRITEN ADDRESS

Counsel formulated two issues and submitted in issue one that the claimant has failed to establish his claims according to law and thus his reliefs sought herein must fail.CBN V. AMAO (2010) 16 NWLR (pt. 1219) 271.SC.

Counsel stated that the claimant in his statement of claim in paragraph 6 claimed that he was handed a faulty machine to work for the defendant butunder cross examination, he admitted that the machine was not faulty but merely picked a stone which allegedly injured his eye thereby giving credence to the Defendant’s averment in their statement of defense that the claimant was not given a faulty machine as claimed.

Further, exhibit POJ6 of the claimant clearly shows that after claiming to have been badly injured, he was upgraded to the position of a driver. Again,how did the claimant work efficiently as a driver if his eye was badly damaged as claimed ADAH Vs NYSC (2001) 1NWLR (Pt. 693).

Counsel also submitted that the claim seeking the order of the court against the Defendants to pay him all his emolumentsto the tune of N22,317,120) has not shown how he came about this sum.

Counsel also submit that in respect of the claimant’s claim for general damages that he has not shown how he is entitled to the damages.That the claimant having admitted that the Defendant’s agent was not responsible for the injury to his eye cannot be entitled to thegeneral damages he is seeking.FIRST BANK OF NIGERIA PLC V SUNDAY Y. OLALEYE (2012) LPELR – 20096 (CA).

UNIPETROL NIG PLC VS ADIREYE WEST AFRICA LTD (2005) 14 NWLR (PT. 946) 563.

On issue No. 2 as to whether the claimant can seek the enforcement of a foreign judgment via this proceedings.

Counsel submit that the claimants cannot seek for any help stating that the claimant exhibited a judgment in a Gabonese High Courtwritten in French (Exhibits POJ4A and POJ4B) which he claimed was a judgment in his favour against the defendants but stated under cross-examination that this instant case is of the same fact of the Gabonese case where he obtained judgment, the claimant is estopped from further re-litigating the same matter before this court. See DAKOLO & ORS V REWANE-DAKOLO & ORS (2011) LPELR-915 (SC)

ODIEVIVEDIE C ECHANOKPE (1987) INWLR PT 52 P 633

In conclusion counsel submitted that the claimant suits is not only statute barred, the claimant has not proved his case against the defendant.

CLAIMANT’S FINAL WRITTEN ADDRESS

Claimant counsel arguedon issue 1 that the claimant was not given fair hearing nor was he heard before terminating his appointment contrary to section 36 (1) 1999 Constitution.

Counsel submit that where the condition of service according to the defendant does not make room for the claimant to be heard before the termination of his appointment, the condition of services shall be null and void and that action on it was null and void.A public servant can only be validly removed from service if the procedure prescribed by the law was duly followed.DERIME V RIVERS STATE CIVIL SERVICE COMMISSION (2005)24 NSCQR 63.

Claimant counsel argued on his issue 2that the claimant was notheard at the time his appointment was terminated. Hence his appointment with the defendant still subsists. It is also in evidence that in 1996 when the claimant was employed his emolument was 98, 400F (CFA) per month, it is also in evidence that the claimant was upgraded to the rank of a driver with a salary of 120,000 F(CFA) per month . It is also in evidence, (exhibit POJ5 which is the condition of service) that the transport allowance and Housing allowance per month which were not paid to the claimant from 2001 till date are 5000F (CFA) and 10,000F (CFA) respectively also Exhibit POJ 4.

That claimant got a judgment against the defendant in Gabon in which issues were not the same in the sum of 3,105,335F (CFA) equivalent to (19,563,617). It is a trite law that facts not denied are admitted OGBIRI V N.A.O.C Ltd (2010) 4NWLR (Pt 1213) 208 at 214

The claimant abandoned the wages of 120,000F (CFA) because owing to the eye problem, he could not continue that work as a driver as earlier stated, the issue here is that he sustained that injury in the course of that employment under the civil service rules 2008 at section 3 subsection 070316(II)

“An officer who is incapacitated as a result of injury sustained in the course of his official duties shall be entitled to draw full emolument until he or she is discharged from sick leave or permanently invalidated”.

The claimant is not asking for monthly but general damages for compensation for the remaining part of his life time of about 50 years

Claimant counsel argued that facts not pleaded goes to no issue as the purpose of pleading is to ensure that parties to the case know the case they will meet at the time of trial to obviate element of surprise .AFRICAN CONTINENTAL BANK LTD V ALHAJI UMAR GWAGWADA (1994) SNWLR (PT342) 25 AT 35

That the defendants did not plead the facts of estoppel per res judicata, neither did they specifically plead same in their statement of defense and as such cannot rely on same at the point of written address.SOWA V AMACHREE (1932-4) IINLR 82 at 84 .

“A pleas of resjudicata will not be allowed when it was not pleaded”

What emerged here is that the claimant can rely on that judgment in defence whether it was registered or not as required by the foreign judgment (Reciprocal enforcement) Act 1999 CAP 132

DEFENDANTS’ REPLY ON POINTS OF LAW

The Defendants reply on points of law in response to the plaintiff’s final written address that failure to hear the plaintiff by the defendants before dismissing him amounts to an infringement on his fundamental right to fair hearing is that the provision of section 36 (I) of the constitution relates to a trial in a court of law which is not the case of the plaintiff herein, he was not arrested nor tried by defendants for any crime in which he was denied the opportunity to make his defence before the court. That his appointment was terminated in accordance with the terms of his employment in section 8 paragraph (v) of the local staff condition of service (POJ5).

Counsel submitted that the argument of the claimant’s counsel that the defendant ought to have tendered particulars of the judgment of the Gabonese court in raising the defence of res judicata goes to issue. The claimant had already adopted the said document in evidence before the court, given the fact that the Defendants have not challenged the judgment in the first place.

Counsel submitted that the defendants rightly relied on the Gabonese court’s judgment.

DEFENDANTS’ PRELIMINARY OBJECTION

In his written address in support of their notice of preliminary objection urging the court to strike out the suit for being incompetent, counsel point out a sole issue for determination.

“whether this suit is not incompetent by virtue of being statue barred”

Counsel’s contended that the suit is incompetent as it is statute barred by virtue of the Public Officer’s Protection Act (POPA). Counsel submitted that the claimant filed his suit on the 26^th November, 2018, going by the letter of termination exhibited in his statement, was in December, 24^th 2001, over 17 years before the suit was instituted. That the public officers protection Act in Section 2 prescribes a period of three months.

IBRAHIM V JUDICIAL SERVICE COMMISSION, KADUNA STATE (1998) 14 NWLR (PT 584) @ 1, P 38.

SULGRAVE HOLDING INC V F.G.V. & 3 ORS (2012) 17 NWLR (pt.1329) @ 319

CLAIMANT’S REPLY TO PRELIMINARY OBJECTION.

In his argument, claimant counsel submitted that the suit of the claimant as presently constituted is not statue barred.

That public officer’s protection Act does not apply in all case of recovery of land, breach of contract or claims for work and labour done see the case of Okeke Vs Baba (2000) 3 NWLR (pt 650) P. 644 see also FGN Vs Zebra Energy Ltd (2002) 18 NWLR (pt 798) also Saloko V LEDB & ANOR (1953) 20 NLR. 160.

Counsel submit that from the foregoing reliefs of the claimant in both the statement of claims and the relief sought by the claimant, the nature of the claimant suit is predicted on a breach of contract or claim for work and labour done which is yet to be paid to the claimant by the defendant.

Claimant counsel submit in his argument on issue 2 that the mandatory rule of this court was not followed and that this notice of preliminary objection is not proper before the court and should be struck out.

Counsel stated that the defendants served the claimed the notice of preliminary, objection on 18/2/2019 on the day the matter came up for mention the defendants served the claimants the notice preliminary objection 27 days beyond the time limitation allowed by the rules of this court after it was filed. By the provision of Order 17 rule 9 of the National Industrial Court Rules 2017, the defendant was to serve the notice of preliminary objection 7 days after it was filed, defendant did not serve the claimant the notice 7 days after it was filed but 27 days after filing. Thus going by rules there is no notice of preliminary objection before the court.

DEFENDNAT’S REPLY ON POINTS OF LAW

Counsel submitted that equity favours the diligent and not the indolent. The supreme court in the case of A.G OF RIVERS STATE V GREGORY OBIUDE (2007) ALL FWLR (PT. 347) 600 @ 614

When he went to sleep for 17 years, the plaintiff cannot reasonable expect that the officers who may have been responsible for terminating his employment will still be in Gabon till this present day, 17 years after the cause of action arose counsel humbly submit that the plaintiffs suit is statute barred and should be struck out accordingly.

Counsel submit in issue two that failure to serve the plaintiff a copy of notice preliminary objection cannot lead to the striking out of the notice of preliminary objection counsel further submit that the judicial pronouncement are replete on the right of a defendant to raise a preliminary objection at any point during the hearing of a matter which is exactly what the Defendants did in this instant suit see AYINDE VS ADIGUN (1993) NWLR (PT. 313) 516.

ISSUES FOR DETERMINATION.

The defendant counsel formulated the following issues for determination;

Whether having considered the facts and evidence of this case, the claimant has proved his case to be entitled to all the reliefs sought herein.
Whether the claimant can seek the enforcement of a foreign judgment via this proceedings.

The claimant counsel formulated the following issues for determination;

Whether from the facts of this case, the claimant was given fair hearing at the time his employment was terminated.
Whether from the facts of this case, the claimant has proved his case to be entitled to the reliefs sought.
Whether from the facts of this case the claimants can seek the enforcement of a foreign judgment in this court.

The Court is of the opinion that all the issues formulated by both counsel can be subsumed in one issue as follows;

Whether from the facts of this case, the claimant is entitled to the reliefs sought.

COURT’S DECISION

The first duty of the Court is to determine the preliminary objection of the defendants. The objection is predicated on section 2 of the Public Officers Protection Act. The termination was in 2001 and this suit was filed in 2018; that is a period of 17 years after the cause of action.

The almighty POPA, so much loved by lawyers in the official Bar, has never applied without exceptions, there are exceptions. The law does not apply in the following cases;

A claim for recovery of land.
A claim based on breach of a contract of employment.
A claim for work and labour done.
Where the public officer acted outside the colour and tenor of his duties.
Where the wrong complained of is a continuing wrong.
Where an employer’s duty to the employee is in issue.

See 1.CAPT. OGHIDE &0RS V SHONA JASON NIG. LTD (2009)16 N.L.L.R (PART 43) P 73

2 FANIYI V AGF (2009) 14 N.L.L.R PART 39 P.387 AT 398

IBRAHIM V. JSC (1998) 14 NWLR (PT. 584) 1
NWANKWERE V. ADEWUNMI (1967) NMLR 45 AT 49;
ATIYAYE V. PERMANENT SECRETARY, MINISTRY OF LOCAL GOVERNMENT, BORNO STATE (1990) 1 NWLR (PT. 129) 728;

4. AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS v. ANIEKAN WILSON AKPAN (2013) LPELR-22105(CA)

The second exception above has been recently laid to rest by the Supreme Court in the case of N.R.M.AF.C V JOHNSON (2019)2 NWLR (PART.1656) P.247 AT 270 where Ariwoola J.S.C held as follows;

There is no doubt, a careful reading of the respondent’s claim will show clearly that it is on contract of service. It is now settled law that section 2 of public officers protection law does not apply to cases of contract.

Ina consenting judgment, Aka’as J.S.C also held;

Since the action instituted by the respondents is a contract of employment, the public officers protection law cannot be involved to bar the action undertaken by the plaintiffs/respondents.

The argument of learned counsel for the defendant that the claim is based on contract of employment and it is a claim for work and labour done and therefore the Act does not apply to this case is indeed the correct position of the law as far as Public Officers Protection Act is concerned.

I find that the Public Officers protection Act does not apply to the claimant’s case.

Furthermore, this suit is in the main predicated on a judgment of a foreign Court, it seeks for an order of this Court to compel the defendants to pay a sum earlier awarded by a Court in Libravile, Gabon. The Public Officers protection Act, in my opinion, does not apply to enforcement of judgments. The preliminary objection is accordingly dismissed.

Whether this case is res judicata.

The defendant’s counsel raised another objection in his final written address thatthe claimant is estopped from further re-litigating before this Court the same matter which has already been litigated in the Gabonese High Court.

The response of the claimant’s counsel is that the defendants did not plead the facts of estoppel per res judicata, neither did they specifically plead same in their statement of defense and as such cannot rely on same at the point of written address.

It is true that the defendants did not plead res judicata in their statement of defence, however, by the authorities, they can still seek and obtain leave to do so at the Court of appeal. See

AARON AWUZIE & ORS. V. OFURUM AWUJUO & ORS. (2001) LPELR-6948(CA) where the court of appeal held,

“If a party is relying on the defence of res judicata he must specifically plead it in the statement of defence. I have examined the appellants’ copious amended statement of defence contained in pages 70-82 of the record of appeal and I am unable to see anywhere where the defence of res judicata was raised. The appellants cannot raise that issue before this court without leave and no leave has been sought and obtained to raise such an issue. See Araka v. Ejeagwu (2000) 15 NWLR (Pt 692) 684”.

If without raising the issue of estoppel before this Court does not permanently estopped the defendants from raising same on appeal, then to bar the defendants from raising same at address stage before this Court basing same on the judgment pleaded and tendered in evidence by the claimant does not appear to be good jurisprudence and I am not persuaded by the submission of learned counsel for the claimant in this regards.

Since res judicata is a challenge to the jurisdiction of Court, the Court cannot close its eyes to such a challenge on its jurisdiction just because it was not raised in the statement of defence but at address stage based on the evidence before the Court. See

COMRADE OYINLOLA ADESOJI & ORS v. FEDERAL UNIVERSITY OF TECHNOLOGY & ORS (2016) LPELR-41366(CA)where the court held;

“As I said earlier the issue of jurisdiction is very fundamental. It can be raised at any stage of the proceedings in the High Court, Court of Appeal or even the Supreme Court.
It has been held in ELABANJO VS. DAWODU (SUPRA) that it is a misconception to hold that objection to jurisdiction should be taken after filing of a statement of defence. When the objection can be taken depends entirely on what materials are availablebefore the Court. It could be taken on the basis of the Statement of Claim, evidence received or even by a Motion on Notice supported by an affidavit giving the fact upon which reliance is placed. In fact, it could be taken even on the face of the writ of summons before filing statement of Claim”.

The whole aim of res judicata is to avoid re-litigation and therefore a submission that a case amounts to re-litigation based on the facts and evidence adduced by the claimant before the Court cannot amount to taking the claimant by surprise. See

CHIEF SALAMI ADESINA & ANOR V. THE COMMISSIONER IFON-ILOBU BOUNDARY COMMISSION, OSOGBO & ANOR (1996) LPELR-148(SC) where the Supreme Court held;

“What the principle of res judicata means is that where a competent court has determined an issue and entered judgment thereon, neither of the parties to the proceedings may re-litigate that issue by formulating a fresh claim, since the matter is res-judicata”.

In the instant case, the objection has been raised on the basis of evidence received. The objection shall accordingly be considered.

It appears from evidence and the condition of service that the claimant was a locally sourced staff. Regulation 8(iii) also provides that “the appointment of a confirmed employee may be terminated by either party giving one months notice or pay in lieu of notice”.It appears therefore that the Libraville Court was a competent and the appropriate Court to adjudicate on the matter. Exhibits POJ4A and POJ4B.

Relief (e) specifically claims for payment of a judgment sum awarded by a Court in Libraville Gabon in 2006. The judgment in French and a certificate thereof in English were tendered and marked as exhibits POJ4A and POJ4B. Claims (b) and (d) for transport and housing allowance are not covered by any iota of evidence, they appear generally hinged on the fact of the alleged wrongful termination and no more.

Similarly, relief ( c) for (N22,317,120) being the full emolument of the claimant as a result of the termination of his employment following the incapacity of injury sustained in the course of his employmentis vague and there is no evidence establishing the said amount for whatever period, it is simply hinged upon the said wrongful termination.

Under cross examination, the claimant admitted that the judgment of the Libraville Court was on the same complaint of wrongful termination before this Court. The claimant’s reliefs (a) to (e) in general, the statement of facts and evidence of claimant gives credence to this fact.There is therefore no gainsaying the fact that this suit seeks to enforce the judgment of the Libraville Court delivered in 2006.

That being the case, the issue of res judicata does not arise in a matter for enforcement of judgment. The issue in the case at hand, in my view, is whether the claimant can enforce the judgment of the Libravile Court in Nigeria and by what procedure. I hold that the question of res judicata does not arise in this suit.

Merit of the case.

Whether from the facts of this case, the claimant is entitled to the reliefs sought.

Apart from the claim forthe sum of Nineteen Million, Five Hundred and Sixty Three Thousand, Six Hundred and Seventeen Kobo (N19,563,617) or (3,105,336F CFA) awarded to the claimant in Libraville Gabon against the defendant as damages to the claimant in the course of that wrongful termination of the claimant’s employment, which claim is covered by the statement on oath of the claimant and exhibits POJ4A and POJ4B, there is no any evidence covering the claim for the sum of 5,000F CFA and 10,000F CFA for transport and housing allowance and (N22, 317,120.00) being the full emolument of the claimant as a result of the termination of his employment following the incapacity of injury sustained in the course of his employment as claimed in relieves B, C and D. There appears to be no justification for these claims separately in addition to the claim for the sum awarded by the Libravile Court. However, since there is no evidence supporting them, they are deemed abandoned. The Court shall now consider the claim for the amount awarded by the Libravile Court.

Whether the Judgment of the Libraville Court can be enforced in Nigeria either by way of registration or a complaint.

The claimant prays in his prayer (e ) as follows;

(e) AN ORDER directing the defendant to pay the claimant the sum of Nineteen Million, Five Hundred and Sixty Three Thousand, Six Hundred and Seventeen Naira (N19,563,617) or (3,105,336F CFA) awarded to the claimant in Libraville Gabon against the defendant as damages to the claimant in the course of that wrongful termination of the claimant’s employment.

It is the submission of claimant’s counsel that the claimant can rely on that judgment in defence whether it was registered or not as required by the foreign judgment (Reciprocal enforcement) Act.

Whether the claimant can enforce the judgment of the Libravile Court in Nigeria and by what proceduredepends on a proper interpretation and application ofSections 3(1), 8,10 and 12 ofthe Foreign Judgments (Reciprocal Enforcement) Act 2004. Sections 3(1) and 8 provide as follows;

Registration of foreign judgments

3. Power to extend Part I 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 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 specific in the order shall be deemed superior courts of that country for the purposes of this Part of this Act.

8. Foreign judgments which can be registered not to be enforceable otherwise

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.

In WILLBROS WEST AFRICA INC & ORS v. MCDONNEL CONTRACT MINNING LIMITED (2015) LPELR-24808(CA), the Court of appeal per Obaseki-Adejumo, J.C.A. held as follows;

While it is apparent from Section 8 of the 2004 Act that no proceedings for the recovery of a sum payable under a foreign judgment, will be entertained by any court, other than proceedings by way of registration of the judgment, it is also beyond dispute that the provision of Section 8 remains dormant unless and until the Minister pursuant to Section 3 of the Act, makes an order bringing the provisions of Part 1 of the Act, to which Section 8 falls under, to life. To this extent, I am in agreement with Learned Counsel to the Respondent that parties cannot rely on the provisions of Part 1 of the Act until Section 3 is activated by the Minister.

Similarly, the order under section 12(1) allowing for the enforcement of the judgment of a court of Gabon, Libravile has not been made by the minister either. Section 12(1) provides as follows;

12. Power to make foreign judgments unenforceable in Nigeria if no reciprocity

(1) If it appears to the Minister of Justice that the treatment in respect of recognition and enforcement accorded by the courts of any foreign country to judgments given in the superior courts of Nigeria is substantially less favourable than that accorded by the courts of Nigeria to judgments of the superior courts of that country, the Minister of Justice may by order apply this section to that country.

Accordingly, the prohibition in section 12(2) applies. Section 12(2) provides;

(2) Except in so far as the Minister of Justice may by order under this section otherwise direct, no proceedings shall be entertained in any court in Nigeria for the recovery of any sum alleged to be payable under a judgment given in a court of a country to which this section applies.

It appears that it is not every judgment of any foreign Country that can be enforced in a Nigerian Court. It is the opinion of this Court that when a Nigerian gets judgment against a Nigerian citizen or Government in any foreign Court, his right to register and enforce same in a Nigerian Court should not depend on an order allowing for registration by the Minister for Justice and Attorney General, nor should the exercise of the powers of the Judiciary under section 6 of the Constitution in such situation depend on an order made by the Attorney General who apparently has not made any such order as required.

The conditions in section 4 of the Foreign Judgments (Reciprocal Enforcement) Act 2004 as spelt out by the Court of appeal per DONGBAN-MENSEM, JP+, J.C.A. in DIAMOND BANK LIMITED v. GENERAL SECURITIES AND FINANCE COMPANY LTD(2008) LPELR-4035(CA), in my opinion, should have been all that is required.

However, the constitutionality of the power of the Minister is not an issue before me in this case and this Court is bound by judicial precedence.

While this Court is bound by judicial precedence, it is of some importance to note here that in approving the power of the minister to make an order for the registration of the judgmentof any particular foreign country before the Courts in Nigeria can enforcement same,this power of the minister against the Judicial powers of the Courts as provided for in Section 6 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, was not before the Court of appeal in the case ofWILLBROS WEST AFRICA INC & ORS v. MCDONNEL CONTRACT MINNING LIMITED supra, and so it was not considered.

Section 10 (a) appears to provide a limited window for the claimant thus;

10. Provisions respecting certain existing judgments

Notwithstanding any other provision of this Act—

(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;

However, in this case, the judgment was not registered within 12 months nor was there any application for extension of time to do so. Indeed, there was no attempt at registration but an originating process was filed to enforce the said judgment, therefore section 12 (2) still applies.

Section 4(1) (b) of the Act Provides that a judgment shall not be registered if at the date of the application; it could not be enforced by execution in the country of the original court. There is no evidence before this Court to show that the 2006 Judgment of the Libravile Court could be enforced by execution in Libravile by 2018.

This Court is prohibited from entertaining any proceedings for the recovery of any sum alleged to be payable under a judgment given in a Libravile Courtwhere the said judgment cannot be and has not been first registered.

On the whole, the case of the claimant fails and is accordingly dismissed.

I make no order as to cost.

This is the judgment of the Court and it is entered accordingly.

……………………………….

HONOURABLE JUSTICE K.D.DAMULAK

JUDGE, NICN, ABUJA