WILLBROS WEST AFRICA INC & ORS v. MCDONNEL CONTRACT MINNING LIMITED (2015)

WILLBROS WEST AFRICA INC & ORS v. MCDONNEL CONTRACT MINNING LIMITED

(2015)LCN/7902(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of June, 2015

CA/L/564/2013

RATIO

APPEAL: PRELIMINARY OBJECTION; WHEN IS A PRELIMINARY OBJECTION FILED

In ODUNUKWE v. OFOMATA [2010] 18 NWLR (Pt. 1225) 404 SC; (2010) LPELR-2250 (SC) 12 paras A-F, the Supreme Court, PER RHODES-VIVOUR, JSC, held: “… a preliminary objection is filed only when the respondent is satisfied that there is some fundamental defect in the appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence. See Ndigwe v. Nwude [1999] 11 NWLR (Pt. 626) 314; NEPA v. ANGO [2001] 15 NWLR (Pt. 737) 627. Nowadays, preliminary objections are filed once a respondent notices any error in the appellants processes. This is wrong. Where the respondent complains of the competency of a ground of appeal as in the appeal, and the other grounds are in order, and can sustain the appeal, the respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection. See Muhammed v. Military Administrator Plateau State [2001] 6 NWLR (Pt. 740) 524; NDIC v. ORANU [2001] 18 NWLR (Pt. 744) 183. Finally and for emphasis, a preliminary objection is filed only against the hearing of the appeal and not against one or more grounds of appeal.” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

APPEAL: INSTANCES WHEREBY APPEALS AS OF RIGHT SHALL LIE TO THE COURT OF APPEAL FROM THE DECISION OF THE FEDERAL COURT OR A HIGH COURT AND HOW TO DETERMINE THE NATURE OF A GROUND OF APPEAL

Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (hereafter referred as the Constitution) provides for the instances whereby appeals as of right shall lie to this Court from the decision of the Federal High Court or a High Court. By Section 242(1), where an appeal does not fall within the instances prescribed under Section 241(1), such appeal must be with the leave of either “the Federal High Court or that High Court or the Court of Appeal.” While Section 241(1)(b) provides to the effect that an appeal shall be as of right “where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings”, no provision is made therein in relation to where the ground of appeal involves a question of fact alone or that of mixed fact and law. Thus, where a ground of appeal involves a question of fact alone or that of mixed fact and law, Section 242 applies; hence with leave. In ORAKOSIM v. MENKITI [2001] 9 NWLR (Pt. 71) 529; (2001) 5 SC (Pt. 1) 72; (2001) LPELR-2752 (SC), 14 paras. E-F, Learned Justice of the Supreme Court, OGUNDARE, JSC, in his lead judgment held: “This court has in a number of cases considered the question: what is a ground of law and has laid down guidelines to follow in answering this question. See in particular the lead judgment of Eso, JSC in Ogbechie v. Onochie [1986] 2 NWLR (Pt. 23) 484 where the Learned Justice of the Supreme Court observed: ‘There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the ground of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved and admitted in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.’… In determining the nature of a ground of appeal, the ground and its particulars must be read together. For it is only by reading the ground as a whole that it can be determined what the appellant is complaining about in the judgment. The body of the ground is not to be considered in isolation of its particulars…” See also IWUEKE v. I.B.C. [2005] 17 NWLR (Pt. 955) 447; IKEM v. EZIANYA [2001] 4 NWLR (Pt. 575) 245; FRANCIS SHANU & ORS v. AFRIBANK NIGERIA PLC (2000) 4 NSCQR 3 @ 8. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

1. WILLBROS WEST AFRICA INC.

2. ASCOT OFFSHORE NIGERIA LTD

3. BERKELEY GROUP PLC – Appellant(s)

AND

MCDONNEL CONTRACT MINNING LTD – Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Jose J. of the High Court Lagos State, Lagos Judicial Division delivered on 28th November, 2012 wherein the court dismissed five out of the six grounds of the Defendants’/Appellants preliminary objection.

The Respondent had filed its originating process with documents for judgment while, Defendants filed a conditional appearance. However, the 1st-3rd Defendants/Appellants filed a preliminary objection to the Claimant/Respondent suit challenging the competency of the suit and the jurisdiction of the lower court to hear and determine the suit on the grounds that Section 8 of the foreign judgments (Reciprocal Enforcement) Act, 2004 and Reciprocal Enforcement of Judgment Act (Cap 175) 1958 oust the jurisdiction of the court to entertain the suit as constituted; improper service of the originating process on the 1st Defendant and also that the 2nd-3rd Defendants were not parties to the foreign judgment sought to be enforced against them and that the issues canvassed in the suit constitute res judicata.

The lower court heard the preliminary objection and dismissed the grounds while finding that service of originating process on 1st defendant through the 2nd defendant was improper. Dissatisfied, the Appellants filed an appeal vide a Notice of Appeal dated 7th November, 2012.

1st-3rd Appellants’ brief of argument is dated 7th August, 2014 and filed on 8/8/2014 and settled by Seni M. Adio Esq., Ijeoma Njemanze (Mrs.) and Adebola Adesanya (Mrs.) of Copley Partners and a reply brief but filed on 8/5/2015 dated 24/4/2015; while Respondent brief is dated 28/1/2015 and filed on 2/2/2015 but deemed on 26/2/2015. Same was settled by C.A. Candide-Johnson Esq., SAN, Rahman Oshodi Esq., Izuchukwu A. Onyebuchi Esq., of Strachan Partners.

Appellants formulated – (4) four issues for determination thus:

1. Whether the lower court was right when it overruled the Appellants’ Preliminary Objection to the competence of the suit filed by the Respondent.

2. Whether the lower court was right when it assumed jurisdiction on the matter despite the inconvertible fact that the 2nd and 3rd Defendants were NOT PARTIES to the foreign judgment the Respondent seeks to enforce in Nigeria against the 1st defendant – a foreign entity – NOR WERE THEY PARTIES TO THE TRANSACTION BETWEEN THE CLAIMANT AND THE 1st DEFENDANT/1st APPELLANT.

3. Whether the lower court was right when it held that it has jurisdiction to entertain the suit which was instituted by way of a Writ of Summons to recover a debt purportedly owed by the 1st defendant pursuant to foreign judgment instead of by registration of the foreign judgment.

4. Whether the lower court was right in holding that the Respondent’s suit was not barred by the settled legal principle of Res Judicata.

While the Respondent adopted the four issues, it nonetheless filed a notice of preliminary objection dated 28/1/2015 and filed on 2/2/2015 which has been incorporated in the Respondent’s brief.

I shall address the Notice of Preliminary Objection first. In its notice of preliminary objection, the Respondent is seeking for an order of this court dismissing and/or striking out Grounds 2 and 4 contained in the Appellants’ Notice of Appeal dated 7th December, 2012 for being incompetent. The grounds for objection are as follows:

“a. The Appeal is an Interlocutory Appeal against the decision of the High Court of Lagos State and Grounds 2 and 4 contained in the Appellants’ Notice of Appeal dated 7th December 2012, are grounds of facts and mixed law and fact.

b. By virtue of Sections 241(1) and 242(1) of 1999 Constitution of the Federal Republic of Nigeria (as amended), the Appellants ought to seek leave of court before appealing against a interlocutory decision on grounds of fact and or mixed law and fact.

c. The Appellants did not obtain the required leave of court before initiating this Appeal.

d. Grounds 2 and 4 are incompetent and this Honourable Court does not have the jurisdiction to entertain them. They should be struck out in limine.”

Arguing the preliminary objection, the Respondent’s counsel formulated a sole issue for determination thus:

“Whether in the light of the clear provisions of Sections 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) this appeal is not incompetent same having been initiated without the leave of court”

Respondent reviewed Section 241(1) and 242(b) of the Constitution to submit that an appellant in an interlocutory appeal must seek leave of court unless the appeal is on grounds of law alone. He submitted that the decision being appealed against is an interlocutory decision and that Grounds 2 and 4 are of mixed law and fact, so that the leave of the court is mandatory and the absence of which it robs the court of the jurisdiction. He relied on UBN PLC v. SOGUNRO [2006] 16 NWLR (Pt. 1006) 504; GARBA & ORS v. UMMUANI (2012) LPELR-9841 (CA); MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 342; IKUEK v. EBEL [2005] 2 SC (Pt. 11) 96; PETROJESSICA ENTERPRISES LTD v. LEVENTIS TECHNICAL CO. LTD [1995] 5 NWLR (Pt. 244) 675; APGA v. SENATOR CHRISTIANA AYANWU & 2 ORS. LER (2014) SC 20/2013. Counsel finally submitted that the failure to obtain leave rendered the suit incompetent. He urged that Grounds 2 and 4 should be struck out.

In response, the Appellants submit that it is not proper for a Respondent to an appeal to file a preliminary objection to an appeal because a ground of appeal is alleged to be incompetent where there are other competent grounds of appeal. Counsel submitted and urged this court to hold that since the Respondent’s complaint are against only Grounds 2 and 4 of the Notice of Appeal, the Respondent should be deemed to have admitted the competency of Grounds 1 and 3. He placed reliance on ODUNUKWE v. OFOMATA [2010] 18 NWLR (Pt. 1225) 404 to submit that the Respondent ought to file a motion on notice to strike out the Respondent’s incompetent ground of appeal and not a preliminary objection. He urged this court to strike out the Respondent’s preliminary objection for being incompetent. Appellant further submitted that Grounds 2 and 4 of the Notice of Appeal are purely grounds of law alone contrary to the submission of the Respondent’s counsel and that even if the incompetent grounds are struck out, the remaining grounds can sustain the appeal. It is also the submission of counsel that the duty of the court is to do justice to litigants before it. He relied on AKPAN v. BOB [2010] 17 NWLR (Pt. 1223) PAGE 421 @ 516-517; OZIGBO v. PDP [2010] 9 NWLR (Pt. 1200) 601 @ 631.

I think the Learned Counsel to the Appellants has quite rightly, raised a valid argument in relation to the competence of the preliminary objection raised by the Respondent. In ODUNUKWE v. OFOMATA [2010] 18 NWLR (Pt. 1225) 404 SC; (2010) LPELR-2250 (SC) 12 paras A-F, the Supreme Court, PER RHODES-VIVOUR, JSC, held:

“… a preliminary objection is filed only when the respondent is satisfied that there is some fundamental defect in the appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence. See Ndigwe v. Nwude [1999] 11 NWLR (Pt. 626) 314; NEPA v. ANGO [2001] 15 NWLR (Pt. 737) 627. Nowadays, preliminary objections are filed once a respondent notices any error in the appellants processes. This is wrong. Where the respondent complains of the competency of a ground of appeal as in the appeal, and the other grounds are in order, and can sustain the appeal, the respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection. See Muhammed v. Military Administrator Plateau State [2001] 6 NWLR (Pt. 740) 524; NDIC v. ORANU [2001] 18 NWLR (Pt. 744) 183. Finally and for emphasis, a preliminary objection is filed only against the hearing of the appeal and not against one or more grounds of appeal.”

In the instance case, the Respondent wrongly filed a “notice of preliminary objection” instead of a “Notice of Motion”. The preliminary objection as filed is incompetent and same is hereby struck out.

But will this court shut its eyes in the event of the likelihood of some of the alleged grounds of appeal contained in the alleged Notice of Appeal filed by the Appellant being incompetent, just because the Respondent adopted a wrong procedure in challenging the alleged incompetence, having complained against some of the grounds of appeal instead of the whole appeal? I think not. This is because failure of a Respondent to properly challenge a ground of appeal does not preclude the court from considering any apparent defect that may affect the hearing of the appeal. See: NWANA v. U.B.N. PLC [2013] LPELR-21823 (CA) 19-20; KWAZO v. RAILWAY PROPERTY COMPANY LTD & ORS [2014] LPELR-23737 (CA). See also Order 6 Rule 3 of the Court of Appeal Rules, 2011. To this extent, I shall proceed to examine the objection wrongly brought as preliminary objection, due to the fact that fundamental issues have been raised therein.

In ORAKOSIM v. MENKITI [2001] 9 NWLR (Pt. 71) 529; (2001) 5 SC (Pt. 1) 72; (2001) LPELR-2752 (SC), 14 paras. E-F, Learned Justice of the Supreme Court, OGUNDARE, JSC, in his lead judgment held:

“This court has in a number of cases considered the question: what is a ground of law and has laid down guidelines to follow in answering this question. See in particular the lead judgment of Eso, JSC in Ogbechie v. Onochie [1986] 2 NWLR (Pt. 23) 484 where the Learned Justice of the Supreme Court observed:

‘There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the ground of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved and admitted in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.’… In determining the nature of a ground of appeal, the ground and its particulars must be read together. For it is only by reading the ground as a whole that it can be determined what the appellant is complaining about in the judgment. The body of the ground is not to be considered in isolation of its particulars…”

See also IWUEKE v. I.B.C. [2005] 17 NWLR (Pt. 955) 447; IKEM v. EZIANYA [2001] 4 NWLR (Pt. 575) 245; FRANCIS SHANU & ORS v. AFRIBANK NIGERIA PLC (2000) 4 NSCQR 3 @ 8.

The Notice of Appeal dated 7/12/12 and filed on 10/12/12 at page 628-630 of records has four Grounds of which the Respondent’s complaint is against Grounds 2 and 4 to be grounds of mixed law and fact. Grounds 2 and 4 are reproduced hereunder:

“2. ERROR IN LAW

The learned trial judge erred in law when she held that it was premature to determine whether judgment can be enforced against persons who were not defendants in the suit in which the judgment was given.

PARTICULARS OF ERROR

i. It is trite law that a judgment cannot be enforced against a person who was not made a Defendant in the suit in which the judgment was given.

ii. The Respondent admits that the 2nd-3rd Defendants were not made parties to the suit filed by the Respondent in Ghana.

iii. The Respondent admits that the 1st Defendant has the only defendant to the suit in Ghana which suit produced the judgement now sought to be enforced against the 2nd-3rd Defendants.

iv. The trial court found that the 1st defendant was not served the originating process of the action filed in the trial court and from which this Appeal is taken.

v. It is on record that the 1st defendant is a Panamanian Company and also registered in Ghana to do business.

vi. It is on record that the 1st Defendant is not registered in Nigeria.

vii. The trial court ought to have dismissed the Respondent’s suit on the clear position of the law that the 2nd-3rd Defendants not being parties to the suit/judgment sought to be enforced against them, albeit by way of Writ of Summons, cannot be liable for the judgment obtained in a suit in which they were not parties.

3…

4. ERROR IN LAW

The learned trial judge erred in law when she held that the Respondent’s suit was not Res Judicata.

PARTICULARS OF ERROR

i. The Respondent had earlier instituted suit NO: REJ/02/2010 for the enforcement of the SAME Ghana Judgment, which suit was dismissed by the Hon. Justice A.A. Philips (as she then was) and the judgment was declared unenforceable in Nigeria against non-parties to the Ghana suit.

ii. The Respondent filed a Notice of Appeal against the judgment delivered in suit No: REJ/02/2010.

iii. The parties in this suit, and in suit No: REJ/02/2010 are the same.

iv. The issue in this suit and in suit No: REJ/02/2010 are the same.

v. The trial court after holding that the parties in the two (2) suits are the same, ought to have dismissed/struck out the Respondents suit.”

Apparently, Ground 2 involves a complaint of the decision of the court based on the ground that the 2nd and 3rd Defendant, not being parties to the foreign judgment, the trial court ought to have dismissed the case against them since they cannot be liable for the judgment obtained in a suit in which they were not parties. From a community reading of the Error and the particulars, it is clear that the Appellant’s compliant is against the application of the law by the trial judge to undisputed facts and no more. In U.B.A v. G.M.B.H [1989] 3 NWLR (Pt. 110) 374; (1989) LPELR-3400 (SC) 29-30 paras. G-A, the Supreme Court, PER NNAMANI JSC, emphasized:

“It seems to stand out that where facts are not in dispute i.e. that they have either been proved or are admitted and complaint is as to the application of the law to those facts, then this is a question of law. Where the facts are in dispute and the issue of evaluation by the lower court arises before the application of law, then this is a matter of mixed law and fact…”

Therefore, Ground 2 of the Appellants’ Notice of Appeal is competent.

As to Ground 4, the Appellants’ complaint is in relation to the decision of the trial judge that the Respondent’s suit was not Res Judicata. In the “particulars of error”, Appellants alleged that although the trial court held that parties in the suit are the same, he did not dismiss/strike out the Respondent’s suit. No doubt, this ground raises a ground of mixed law and fact, because unlike in Ground 2, there is an indication that this court will have to examine the facts and evaluate same before deciding whether the law on Res Judicata is applicable or otherwise. Therefore, the Appellants’ ought to have sought and obtained the leave of the court in respect of ground 4 which involves grounds of mixed law and facts. Ground 4 is incompetent and struck out. See N.N.S.C v E.S.V. [1990] 11-12 SC 209; EHINLAWO v. OKE [2008] 16 (Pt. 1113) 357. To this extent, Ground 4 of the Appeal as well as the issue and argument thereon is hereby struck out.

Having regard to the foregoing, the competent grounds thereon include Ground 1, 2 and 3. All issues and arguments canvassed in relation thereto will be considered forthwith.

On the main appeal, while proffering arguments on issue one, Appellants counsel submitted that the two laws dealing with the enforcement of Foreign Judgment in Nigeria are the Foreign Judgments Act, 2004 and the Reciprocal Enforcement of Judgments Act (CAP 175) 1958. He referred to Section 8 of the Foreign Judgments, 2004 and Section 3 of the Reciprocal Enforcement of Judgments Act, 1958 and the case of MARINE & GENERAL ASSURANCE CO. PLC v. OVERSEAS UMAR INSURANCE LTD & ORS [2006] 4 NWLR (Pt. 971) 622 @ 627 and the preamble to the implementation rules of court with respect to the fact that the 1958 Ordinance extends the applicability of the Reciprocal Enforcement of Judgments Act 1958 to the courts of the Chief Commissioners of Ashanti and of the Northern Territories of the Gold Coast under which Ghana falls. Appellants further submitted that the only way a foreign judgment delivered in Ghana can be enforced in Nigeria is by way of registration of that Ghana judgment in Superior Court in Nigeria i.e. High Court of a State or of the Federal Capital Territory, Abuja or Federal High Court.

Counsel referred to the provision of Section 3 of the 1958 Act and on the interpretation of the word ‘may’ as used in the section, he cited the case of MKPA v. MKPA [2010] 14 NWLR (Pt. 1214) 612 @ 621 to submit that the word was used in its mandatory sense. He also referred to VIBELKO (NIG) LTD v. NDIC [2006] 12 NWLR (Pt. 994) 280 @ 284 on principles guiding interpretation of statutes. He submitted that the intention of the legislature in the interpretation of Section 3 of the Act with respect to enforcement of Foreign Judgment in Nigeria is that foreign judgments must be registered before they can be enforced and that failure to interpret the word ‘may’ used in Section 3 of the Reciprocal Enforcement of Judgments Act as a mandatory term would lead to absurdity and inconsistency with the provision and intent of the statute as a whole.

The Respondent on this issue submitted that the whole essence of the Respondents suit at the lower court is to recover a liquidated debt from the Appellants and that in proving the debt; the Respondent is relying on the summary judgment of High Court of Ghana delivered on 19/5/09 as one of the documentary evidence. Counsel argued strenuously that the suit is not one for the enforcement of a foreign judgment. He referred to a portion of the judgment of the trial court contained in page 623 of the record to buttress his submission.

Respondent Counsel was of the view that the Appellants’ have wrongly submitted that the trial court lacked jurisdiction to entertain the suit because of the mode of commencement and that any proceeding for recovery of a sum payable under a foreign judgment can only be commenced by way of foreign judgment. He submitted that the submission of the Appellants’ counsel does not represent the correct position of the law because by virtue of Section 3(1) of the 2004 Act, the provision of Section 8 of the 2004 Act is dormant and cannot be applied. Counsel submitted that even the case of MARINE GENERAL ASSURANCE COMPANY PLC v. OVERSEAS UNION INSURANCE LTD & ORS does not support their submission. He cited MACAULAY v. R.X.B., AUSTRIA [2003] 18 NWLR (Pt. 852) 282 at 296-297; WITT & BUSCH LTD v. DALE POWER SYSTEM PLC [2007] 17 NWLR (Pt. 1062) to submit that the entire Part 1 of the 1990 Act in which Section 8 falls under is inoperative because the Minister of Justice has not promulgated an order to bring the part to life and the implication is that the provision of the law which the Appellants are relying on is inchoate and cannot be applied by this court. While responding to the Appellants’ contention that Section 3 of the 1958 Act also makes it mandatory for the Respondent to enforce its judgment by way of registration, Respondent Counsel submitted that the 1958 Act is not relevant to the determination of this suit because the Plaintiff’s cause of action is not for the enforcement of a foreign judgment but for recovery of debt and that to determine a cause of action, the only process to be considered by the court is the Statement of Claim. On this position, he cited SEVEN UP BOTTLING COMPANY v. ABIOLA & SONS [2001] 13 NWLR (Pt. 730) 469. Counsel contended that the mere fact that the Respondent attached the judgment of the High Court of Ghana in proof of the debt does not automatically mean that the Respondent is seeking to register a foreign judgment and that the judgment is a mere documentary evidence of the 1st Appellant’s indebtedness which the 2nd and 3rd Appellants are now liable to liquidate by virtue of Share Purchase Agreement.

It is also the submission of counsel that, assuming but not conceding that the 1958 Act will apply, the use of the ‘may’ in Section 3 of the Act is merely persuasive and facultative and that the section does not make it mandatory for a foreign judgment creditor to enforce the judgment by means of registration alone. Counsel submitted that in the interpretation of statute, the cardinal principle is to discover through the words used in the Statute, the intention of the draftsman. He cited RIMI v. INEC [2005] 6 NWLR (Pt. 920) 56 to submit that certain rules apply in order to determine the intendment of the draftsman when he uses the word ‘may’. Counsel argued that where the words of a statute are clear and unambiguous, they should be construed so as to give effect to their natural and literal meaning. He referred to ILORIN v. ADENIRAN [2007] ALL FWLR (Pt. 382) 1871. Furthermore, counsel referred to the decision of the Supreme Court in ANOSIKE v. REGISTRAR GENERAL & CAC [2010] 13 NWLR (PT 1211) 337 on the interpretation of the use of the word ‘may’ in Section 32 of the Companies and Allied Matters Act, Cap C20, Laws of the Federation of Nigeria, 2004 to submit that the con in which the word is used under the 1958 Act is not mandatory. He urged us to so hold.

Appellant in reply, submitted that the lower court erred in overruling the Appellants’ preliminary objection to the competence of the suit filed by the Respondent and emphasised that the Foreign Judgments (Reciprocal Enforcement) Act, 2004 and the Reciprocal Enforcement of Judgments Act, 1958 are the laws dealing with the enforcement of foreign judgments in Nigeria. He submitted that Section 3(1), Rules 4, 7, 9 and 10 of Reciprocal Enforcement of Judgments Act, 1958 and Section 8 of Foreign Judgments (Reciprocal Enforcement) Act 2004 stipulates that the institution of proceedings for the recovery of a sum payable under a foreign judgment shall be by way of registration of the foreign judgment. He submitted that the Respondent’s commencement of its suit against the Appellants by way of a Writ of Summons, instead of by registration of the foreign judgment obtained in Ghana, contravened the above-referenced laws and that the trial court ought to have upheld the Appellants’ objection on this ground and dismissed the suit. It is also the submission of counsel that the Respondent’s contention that Part 1 of Foreign Judgments (Reciprocal Enforcement) Act 2004 is ‘dormant or inactive until life is breathed into them (sic) by an order promulgated by the Minister’, does not ipso facto permit the Respondent to file the instant suit seeking to recover a foreign judgment sum. He referred to MARINE’s case (supra) at page 627 to submit that the law applicable to registration of foreign judgment in Nigeria is the 1958 Act and the 2004 Act. Counsel urged this court to hold that the lower court erred in overruling the Appellants’ preliminary objection to the competence of the suit filed by the Respondent and to resolve the issue in the negative against the Respondent.

Apparently, both parties are ad idem on the fact that the applicable laws in relation to registration of foreign judgment in Nigeria are the Reciprocal Enforcement of Judgment Act Cap. 175 of Laws of the Federation 1958 and the Foreign Judgments (Reciprocal Enforcement) Act, 2004. The point of divergence in the arguments of counsel seem to be that while the Appellants’ counsel is contending that the combined provisions of the 1958 Act and the 2004 Act makes it mandatory for any foreign judgment creditor who intends to enforce a foreign judgment in Nigeria must register same before he can validly enforce it, the Respondents argued that there is nowhere in the law where it is mandatory for the Respondent to register the foreign judgment before it can enforce same and that in the instant case, the Respondent is not seeking to enforce a foreign judgment but is merely relying on the foreign judgment as a documentary evidence in its suit against the Appellants at the trial court.

Section 3(1) of the 2004 Act also provides:

“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 judgment 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 are as specific in the order shall be deemed superior courts of that country for the purposes of this Part of this Act.”

While Section 8 of Foreign Judgments (Reciprocal Enforcement) Act 2004 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 MACAULAY v. R.Z.B., AUSTRIA [2003] 18 NWLR (Pt. 852) 282; (2003) LPELR-1802 (SC) 5-7, paras. E-C, the Supreme Court, PER KALGO JSC, held:

“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 not 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.

Section 3 of the 1990 Act empowers the Minister of Justice of the Federation of Nigeria to extend the application of Part 1 of that Act with regard to registration and enforcement of foreign judgments of superior courts, to any foreign country, including United Kingdom if he is satisfied that the judgments of our superior courts will be accorded similar or substantial reciprocity in those foreign countries and once an order is made section 3 of the 1990 Act in respect of any part of Her Majesty’s dominions to which the 1958 Ordinance earlier applied, the latter case ceases to apply from the date of that order…”

See also GROSVENOR CASINOS LTD v. GHASSAN HALAOUI [2009] 10 NWLR (Pt. 1149) 309; MARINE & GENERAL ASSURANCE CO. PLC v. OVERSEAS UNION INSURANCE LTD & ORS [2006] 4 NWLR (Pt. 971) 622; WITT & BUSCH LTD v. DALE POWER SYSTEM PLC [2007] 17 NWLR (Pt. 1062) 1.

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.

Having expunged the applicability of the 2004 Act, the question that arises is: does the 1958 Act make it mandatory for a foreign judgment to be registered? Section 3(1) of the Reciprocal Enforcement of Judgments Act, 1958 provides:

“Where a judgment has been obtained in High Court in England or Ireland, or in the court session in Scotland, the judgment creditor may apply to a High Court at any time within twelve months after the date of the judgment or such longer period as may be allowed by the lower court, to have the judgment registered in the court, and on any such application the court may, if in all the circumstances of the case it thinks it just and convenient that the judgment should be enforced in Nigeria and subject to the provisions to be registered accordingly”

From the underlined portion of the above provision, it is clear that the operative word is the word “may”. Appellants’ counsel has argued strenuously that the word imports a mandatory duty upon the judgment creditor to register the foreign judgment pursuant to the provision of the section. However, I am inclined to agree to the contrary. Even the authorities referred to by the Learned Counsel to the Appellants in support of their arguments – MKPA v. MKPA (supra) and VIBELKO (Nig.) LTD v. NDIC (supra) – seem to be in line with the arguments of the Learned Respondent’s counsel whose submission is accepted by this court, as the correct interpretation of the provision of the law.

In MKPA at page 621, the court held:

“Whether the word “may” when used in a statute should be construed as being mandatory or discretionary depends on the con in which the word is used. There are circumstances where the word “may” used in a statute should be construed as being mandatory and the word “shall” may not be construed as being mandatory but as discretionary. Where a statute imposes a duty on a public officer to be carried out in a particular form for the benefit of a private citizen, the word “may” used in the section must be construed as mandatory and/or meaning ‘shall’ or must'”

Evidently, the provision of Section 3(1) of the 1958 Act does not impose any duty on any public officer for the benefit of a private citizen, so as to warrant the interpretation of the word “may” as used therein to be mandatory. Stretching it further, in the instant case, the Respondent is not a public officer.

In RIMI v. INEC (2004) LPELR-7402 (CA) 31-33, paras D-C, this Court, PER MUHAMMAD, JCA (as he then was) held:

“The word “may”, when used in a statute poses some difficulty in interpretation. Authorities are not unanimous on any particular interpretation of the word. It may imply that it is only directory or permissive or can be imperative as the case may be, depending on the con within which it has been used. In ADESOLA v. ABIDOYE [1999] 14 NWLR (Pt. 637) 28 at page 56 paragraph C-E, Karibi-Whyte, JSC had this to say:

“The construction of the word “may” in provisions of statutes has always raised difficulties. This is not because of the imprecision of the word because it is not, but essentially because the word “may” assumes a technical meaning depending upon the intendment of the statutory provision in which it is used. Although the etymological meaning of “may” is permissive and facultative, and seldom can be “must” and imperative, when there is anything in the provision that makes it the duty on the person whom it is given to exercise it, then it is imperative.”

In order to get the clear intendment of the draftsman where he selects to use the word “may”, the following rules apply –

1. In the interpretation of a statute the cardinal principle is to discover through the words used in the Statute, Law, Decree, Act or Edict, the intention of the draftsman. When the matter calls for interpretation is a word like “may”, the whole section is to be read together without taking the word out of con in trying to discover the intention of the draftsman.

2. Whenever a statute creates a duty, the first and primary question for judicial decision is what is the sanction that has been provided for its breach. No statute creates an obligation without anticipating a breach. If there is, then it is mandatory. It is absolute. Where the court cannot interfere to compel its performance or indeed punish the breach of duty, the act is directory. See Ifezue v. Mbadugha (1984) 1 SCNLR 427; Ijebu Ode Local Government v. Adedeji Balogun & Co Ltd [1991] 1 NWLR (Pt. 166) 136.

3. To interpret the word “may” where it appears in a statute, the con in which the word appears must be looked into as this is the controlling fact whether it is mandatory or directory. See further: Obioha v. Dafe [1994] 2 NWLR (Pt 325) 157 at pp. 180 to 181; N.E.W. Ltd v. DENAP Ltd [1997] 10 NWLR (Pt. 525) 481 at page 514 paragraphs C-G; Oko v. Igweshi [1997] 4 NWLR (Pt. 497) 48; Ohanaka v. Achugwo & Anr [1998] 9 NWLR (Pt. 564) 37.”

I adopt the view as mine. To this extent, I am of the view that the provision of Section 3 of the 1958 Act has not made it mandatory that every foreign judgment must be registered. This is a clear and unambiguous interpretation of the section. Perhaps, the plausible conclusion is that unlike the mandatory provision of Section 8 of the 2004 Act which is presently dormant, having regard to my earlier analysis thereon, the provision of Section 3 of the 1958 Act is apparently permissive and/or discretionary. The learned trial judge was correct when she held to this effect.

In the light of the above, this issue is resolved in favour of the Respondent.

On issue two, Appellants’ counsel submitted that the interest which accrues to a purchaser of shares in a Share Purchase Agreement is that of a Shareholder only. He further submitted that a Limited Liability Company (the 1st Appellant) is a separate and distinct legal entity under law from its shareholders and directors (the 2nd and 3rd Appellants) and thus they cannot be held liable for the company’s liabilities. Counsel contended that the 2nd Appellant, through a Share Purchase Agreement is only a shareholder in the 1st Appellant and cannot be held to bear the liabilities of the 1st Appellant. He referred to VIBELKO (NIG.) LTD v. NDIC [2006] 12 NWLR (Pt. 994) 280, 293-294.

It is also the submission of counsel that the subject matter of this suit is the fact that a contract was made in Ghana between the 1st Defendant/Appellant and the Claimant/Respondent for services rendered in Ghana which resulted in a Foreign Judgment of Ghana is not within the jurisdiction of the lower court. He referred to OBIUWEUBI v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 474; NJIKONYE v. MTN NIG. COMM. LTD [2008] 9 NWLR (Pt. 1092) 339 at 345 to submit that one of the factor for determining which court possess jurisdiction is the subject matter of the suit and urged this court to so hold. Counsel further submitted that it was not premature to determine whether judgment can be enforced against the 2nd and 3rd Appellants who were not defendants in the suit in which the judgment was given and not parties to the underlying agreement. Relying on UNIBEN v. K.T. ORG. LTD [2007] 14 NWLR (Pt. 1055] 441 at 445, counsel submitted that the Respondent’s application pursuant to Order 11 of the High Court of Lagos State Civil Procedure Rules, 2004 clearly shows that the Respondent is attempting to obtain through the back door what it could not obtain through the front door in its prior action in Suit No. REJ/02/2010. Counsel referred to OLUWANIYI v. ADEWUNMI [2008] 13 NWLR (Pt. 1104) 387 at 392. He urged this court to hold that the joinder of the 2nd and 3rd Appellants in this suit is unjustifiable as they are separate and distinct personality from the 1st Appellant.

Responding on issue 2, Respondent’s counsel submitted that, on the issue of the liabilities of the 2nd and 3rd Appellants under the judgment of the High Court of Ghana, it had already submitted that this suit is not for the enforcement of that judgment. On the issue of liability of the 2nd and 3rd Appellants over the debts of the 1st Appellant, he submitted that it will be premature to decide that issue at this stage of the proceeding. Counsel referred to the decision of the trial judge on this issue at page 623 of the record. Citing MORTUNE v. GAMBO (1979) 3-4 SC (REPRINT) 36; MBONU v. NIGERIAN MINING CORP. [2006] 13 NWLR (Pt. 998) 659, Counsel submitted on the position of law that the court should not delve into the merit of a case while considering interlocutory applications. Counsel then submitted that since this case is clearly not for the enforcement of the judgment of the High Court of Ghana, there is no right way for the trial court to come to a determination of the liability of the 2nd and 3rd Appellants at the interlocutory stage, for to so do will prejudice the substantive suit. Submitting on the merit of the argument, Respondent’s counsel contended that by virtue of the Share Purchase Agreement, the 2nd and 3rd Appellants will be liable for the liabilities of the 1st Appellants and in the instance case; they will therefore be bound to liquidate the indebtedness of the 1st Appellant. Counsel finally submitted that as a matter of fact, the question before the court is not whether the 2nd and 3rd Appellants were Defendants in the action but the question is whether they are liable to liquidate the sums endorsed on the Writ of Summons and urged this court to so hold.

In reply, Appellants’ counsel submitted that the lower court was wrong in assuming jurisdiction on the matter despite the incontrovertible fact that the 2nd and 3rd Defendants/Appellants were not parties to the Foreign Judgment the Respondent seeks to enforce in Nigeria against the 1st Defendant/Appellant – a foreign entity – nor were they parties to the transaction between the Claimant/Respondent and the 1st Defendant/Appellant. He urged this court to resolve this issue in the negative against the Respondent.

In determining this issue, I think it is necessary to reproduce the findings and conclusion of the trial court on this issue. At page 623 of the record, the learned trial judge:

“The next issue is whether a judgment can be enforced against a person who was not made a defendant to the suit in which judgment was given… The Court must say that it is well settled that a judgment cannot be enforced against a person who was not a party to the suit… In this however, the claimant is not seeking to enforce the judgment of the Ghanaian High Court. It has sued for a sum which was the judgment sum against the 1st Defendant in the suit in Ghana and it is basing the suit on the alleged acquisition of the 1st Defendant by the 2nd and 3rd Defendants by which they would have allegedly taken over its assets and liabilities. In such a situation, it is my view that this suit cannot be regarded as having been filed to enforce the judgment because the Claimant would have to prove its claims of the judgment and the alleged acquisition. It would be therefore premature at this stage to decide whether or not the 2nd and 3rd Defendants can be sued in respect of the judgment to which they were not parties. This issue is therefore resolved against the Defendants.”

While the conclusion of the learned trial judge is unassailable, I am however of the firm view that in addition to the reasons given by the trial judge, a consideration of this issue will involve the trial judge delving into the merit of the matter before the trial court at the interlocutory stage of the proceedings, hence prejudicing the trial of the substantive issues. It is trite law that at the stage of interlocutory proceedings, it is incumbent on the court to avoid going into the merit of the matter in controversy between parties. This is to avoid the temptation on the part of the court delving into and determining the substantive issues at that stage. See OJUKWU v. YAR’ADUA [2009] 12 NWLR (Pt. 1154) 50 SC; DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD v. BENEKS PHARMACEUTICAL & COSMETIC LTD & 2 ORS (2008) 1-2 SC 68; AINA v. SONUGA (2012) LPELR-19720 (CA). In the instant case, before the trial court will be able to determine the issue as to whether the 2nd and 3rd Appellants were not parties to the foreign judgment, it will invariably have to determine the extent (if any) of the liability of the 2nd and 3rd Appellants in relation to the claim of the Claimant/Respondent.

To this extent, I am of the firm view that the learned trial judge was right in holding that it was premature to determine whether the 2nd or 3rd Defendants can be sued in respect of the foreign judgment to which they were not parties.

I resolve this issue against the Appellants.

Proceeding to Issue three, Appellants counsel submitted that a judgment creditor of a foreign judgment can only claim its debt in Nigeria by registering the foreign judgment in a Superior Court in Nigeria. Citing Section 3 of the 1958 Act and Section 8 of the 2004 Act, counsel submitted that registration is the only means of enforcing a foreign judgment in Nigeria and that the Respondent commenced this suit for recovery of a purported sum payable under a foreign judgment delivered in Ghana by way of Writ of Summons in contravention of the above-referenced Federal Statutes.

He also submitted that a claim to enforce a foreign judgment is not covered under Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 2004 (hereinafter referred to as the Lagos Rules). He submitted that for the claimant to achieve its objective in this suit, it has comply with the provision of Section 3 of the 1958 Act, which it earlier did and its claim duly considered and dismissed by a court of coordinate jurisdiction.

On its own, Respondent’s counsel submitted that assuming but not conceding that there is no valid and operative law that mandates the Respondent to commence the enforcement proceedings by way of registration, the trial court has jurisdiction to entertain this suit. He submitted further that the suit, which is for recovery of a liquidated sum, was commenced by way of Writ of Summons and that by virtue of Order 3(1) of the Lagos Rules, a claim for “any relief or remedy for any civil wrong”, is required to be commenced by a writ of summons. To this extent, learned counsel submitted that a claim to recover a liquidated sum falls under the corpus of “any relief or remedy for civil wrong”. He submitted further once the conditions stated in MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 595, are satisfied and there is no other factor affecting the jurisdiction of the court, the court will exercise jurisdiction.

Responding to the argument of the Learned Counsel to the Appellants that a claim to enforce a foreign judgment is not covered under Order 11 of the Lagos Rules, Respondent Counsel submitted that the issue in this appeal is not the merit of the Respondent’s application for summary judgment, which is still live at the trial court and that the Appellants are attempting to hoodwink this Court to decide the merit of an application which the trial court has not had an opportunity to decide. While referring to the decision of the trial court at page 624 of the record, Order 2 Rule 3 of the Lagos Rules and NJIKONYE v. MTN COMM. LTD (supra), Counsel submitted that, contrary to the submission of the Appellants’ counsel, the determinant of the jurisdiction in a suit for breach of contract is residence of the defendant as well as the place of performance of the contract and that in this case, the 2nd and 3rd Defendants reside and carry on business within the jurisdiction of the trial court.

In reply, Appellants’ counsel merely reiterated the argument contained in the Appellants brief. I need not restate them again.

It seems to me that a bulk of first ambit of this issue has been resolved under Issue one above. I need not engage in fruitless repetition but for the purpose of emphasis, the provision of Part 1 of the 2004 Act under which Section 8 falls under is dormant and inoperative until the Minister acts pursuant to Section 3 thereunder; while as I have adumbrated earlier, and also in line with the decision of the learned trial judge at page 621 of the record, I hold the firm view that the registration of a foreign judgment is not mandatory under the 1958 Act.

Therefore, on the question as to whether the Respondent can commence a suit for recovery of a purported sum payable under a foreign judgment delivered in Ghana by way of Writ of Summons?; the answer will be in the affirmative. Since registration of a foreign judgment is not mandatory under the laws, I am inclined to hold in this regard. Addressing this issue as it relates English Law, David McClean in Morris: The Conflict of Laws 5th Ed. (2000) London: Sweet & Maxwell at Page 138 had this to say:

“A judgment creditor seeking to enforce a foreign judgment in England at common law cannot do so by direct execution of the judgment, but must first bring an action on the foreign judgment. A creditor can apply for summary judgment under Part 24 of the Civil Procedure Rules on the ground that the defendant has no real prospect of successfully defending the claim…”

Recognizing that there are two modes of enforcing foreign judgment in Nigeria, that is, under the statutes and under common law, a learned author, I.O. Omoruyi, in his , “An Introduction to Private International Law: Nigerian Perspectives” (2005), stated at page 286 thus:

“At common law, the foreign judgment can be (enforced) by instituting fresh proceedings. In Nigeria, this implies that such a judgment cannot be enforced automatically …”

While referring to Section 3 of the 2004 Act, at page 292, he continued:

“Enforcement under the Act is by registration. This fact constitutes a major difference between enforcement under statute and that under common law. Thus, while judgments of foreign countries to which the Act applies can be enforced by registering such in Nigerian court, the judgments of the courts of other countries can only be enforced by suing on them in Nigeria.”

Clearly, since the 2004 Act is inoperative for reasons earlier given, a judgment creditor who does not desire to register a foreign judgment or who is caught up with the provision as to time for registering such foreign judgment, may choose to bring an action on the foreign judgment, with the judgment serving as documentary evidence of the fact that the judgment debtor is indebted to him on the sum covered by the judgment. See TOEPHER OF NEW YORK v. EDOKPOLOR (1965) ALL NLR 301; NML CAPITAL LIMITED v. REPUBLIC OF ARGENTINA (2011) LPELR-17805 (UKSC).

There is no doubt that a judgment creditor who intends to bring an action upon a foreign judgment, as in the instant case, is invariably seeking to recover a liquidated sum which, as Learned SAN for the Respondent rightly submitted, falls under the corpus of “any relief or remedy for any civil wrong” under Order 3(1) of the Lagos Rules. Ipso facto, Order 3 Rule 1 provides:

Subject to the provisions of these rules or any applicable requiring any proceedings to be begun otherwise than by writ, a writ of summons, shall be the form of commencing all proceedings:

a. Where a claimant claims:

(i) any relief for any civil wrong or

(ii) damages for breach of duty, whether contractual, statutory or otherwise, or

(iii) damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or in respect of damage or injury to any property.

b. where the claim is based on or, includes an allegation of fraud, or

c. where an interested person claims declaration.”

In the instant case, the Respondent claim against the Appellants thus:

(a) the sum of US $1,216,188.45 as at 31st May 2009 cost of Ghc100,000 being the judgment sum against the 1st Defendant by the High Court of Justice, Accra

(b) 21% per annum on the judgment sum from 1st June 2009 till Judgment is delivered

(d) US $10,000 being legal practitioner’s fees for instituting this suit.

(e) Costs

From the above, it is clear that the Respondent’s claim is for a liquidated sum and the only form of commencing proceedings of such nature is by way of Writ of Summons, as the Respondent has rightly done. Therefore, I am unable to accept the contention of the Learned Counsel to the Appellants that Respondent approached the lower court through “a very wrong procedure” and in contravention of the relevant laws.

On the question relating to Order 11 of the Lagos Rules as raised by the Respondent, it is trite that this court will not allow a party on appeal to raise a question not raised in the court of trial without leave. See SKENCONSULT (NIG.) LTD & ANOR v. UKEY (1981) 1 SC (REPRINT) 4; EZE v. A-G RIVERS STATE & ANOR [2001] 12 SC (Pt. II) 21; OJIOGU v. OJIOGU [2010] 9 NWLR (Pt. 1198) 1 SC. I have carefully perused the judgment of the trial court and nowhere in the judgment did the learned trial judge allude to any argument of counsel on that point nor did the court consider the issue bothering on the point. It is even clear from the Notice of Appeal filed by the Appellants that no ground of appeal bothering on Order 11 of the Lagos Rules was raised therein and no leave was sought by and granted to the Appellants by this court in that regard. Therefore, the argument of counsel under this point is discountenanced.

This issue is resolved against the Appellant.

Having regards to the foregoing, this appeal lacks merit and is hereby dismissed. The judgment of Jose J. of the Lagos State High Court delivered on 28/11/2012 is hereby affirmed. Cost of (Thirty Thousand Naira Only) N30,000.00 is awarded in favour of the Respondent.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother HON. JUSTICE Abimbola Osarugue Obaseki-Adejumo, J.C.A.

I agree with the reasoning and conclusion reached therein and have nothing extra to add.

I too join my learned brother in holding that the instant appeal lacks merit and it is also hereby dismissed by me. The judgment of Jose J. of the Lagos State High Court delivered on 28/11/2012 is hereby affirmed. Cost of 30,000.00 is awarded in favour of the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I was privileged to read in print the comprehensive judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A., in which I concur with nothing to add.

Appearances

Seni Adio, Esq., with Ijeoma Najemej (Mrs.)For Appellant

AND

I.A. Oyebuchi with F. OlufemiFor Respondent