CONOIL PLC. V. VITOL S. A.
(2011)LCN/4554(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of May, 2011
CA/A/213/2010
RATIO
NOTICE OF PRELIMINARY OBJECTION: WHETHER THE COURT OF APPEAL RULES RECOGNIZES A NOTICE OF PRELIMINARY OBJECTION FOR THE PURPOSE OF OBJECTING TO AN ISSUE RAISED IN A RESPONDENT’S BRIEF OF ARGUMENT
There is no provision in the Court of Appeal Rules 2007 which recognizes a Notice of Preliminary Objection for the purpose of objecting to an issue raised in a Respondent’s Brief of Argument. A Court of Law can only entertain applications which are recognized by its rules. In Newswatch v. Ibrahim Attah (supra) the Supreme Court held among others that:- “…An application not recognized by the Rules of Court cannot be described as a proper application.” PER JIMI OLUKAYODE BADA, J.C.A
OR: THE MEANING OF THE WORD ”OR”
I agree with the submission of the learned Senior Counsel for the Respondent that the word “or” used in between the grounds is disjunctive and not conjunctive. The word “or” suggests that one cannot rely on the two grounds at the same time. In Atiku Abubakar v. Alhaji Umaru Musa Yar’adua & Others (Supra) Page 1 at 27 Paragraphs 15 – 25, the Supreme Court held as follows:- “It is to be noted that twelve months period is separated from the next period following by the word “OR”. This word always bears the disjunctive meaning in an enactment that is to say it separates the provision preceding it from the provision coming after it. Its role is to show that the previous in which it is appearing are distinct and separate one from the other. In Black’s Law Dictionary Sixth Edition the word “OR” is defined inter alia – Distinctive participle used to express an alternative or to give a choice of one among other or more thing.” PER JIMI OLUKAYODE BADA, J.C.A
REGISTRATION OF FOREIGN JUDGMENT: CONDITION UNDER WHICH A FOREIGN JUDGMENT CAN BE REGISTERED AGAINST A PERSON
It is clear from the wordings of Section 3 (2) (b) of the 1958 Act that a foreign Judgment can be registered against a person if there is evidence that he agreed to submit to the jurisdiction of the foreign Court which delivered the judgment, this position was supported by the judgment of the Supreme Court in Grosvenor case (supra) at page 337 paragraphs G – H where Oguntade JSC gave the interpretation of Section 3 (2) (b) of the Ordinance as follows:- “Under Section 3 (2)(b) above, a judgment obtained in the High Court in England or Ireland can only be registered in Nigeria for the purpose of enforcement if the judgment debtor voluntarily appears or otherwise agrees to submit to the jurisdiction of that court in England.” PER JIMI OLUKAYODE BADA, J.C.A
REGISTRATION OF FOREIGN JUDGMENT: WHETHER IT IS THE DUTY OF THE REGISTERING COURT TO SIT ON APPEAL OVER THE DECISION OF THE ORIGINAL COURT THAT DELIVERED THE JUDGMENT SOUGHT TO BE REGISTERED
The law is that it is not the duty of the registering Court to sit on appeal over the decision of the original Court that delivered the Judgment sought to be registered. My view above is fortified by the decision of the Supreme Court in the case of:- – Witt & Busch Ltd. v. Dale Power Systems Plc (2007) 17 NWLR part 1062 Page 1 at 23 – 24 Paragraphs G – A; where it was held as follows:- “I entirely agree with the statement of the laws as declared in the lead judgment particularly on the point that section 3 (1) of the Reciprocal Enforcement of Judgment Ordinance was applicable to the case. I will also add that it is not the duty of the Court entertaining application for the registration of a foreign judgment to sit as an appellate Court over the foreign judgment. The Respondent to the judgment sought to be registered is expected to have exercised its right of appeal under the laws of the foreign country. All that the Court to which the application is made needs to do is to ensure that the Appellant complies with the requirements of our laws on registration of foreign judgment. I believe that requirement has been met.” PER JIMI OLUKAYODE BADA, J.C.A
UNCHALLENGED EVIDENCE: THE EFFECT OF UNCHALLENGED FACTS IN AN AFFIDAVIT
…where facts in an affidavit are not challenged, they are deemed admitted. In Badejo V. Fed. Min. of Education (supra) at page 15; it was held by the Supreme Court that:- “where an affidavit is filed deposing to certain facts and the other party does not file a counter affidavit or reply to a counter affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed…they are therefore admitted.” PER JIMI OLUKAYODE BADA, J.C.A
JUSTICES:
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
CONOIL PLC – Appellant(s)
AND
VITOL S. A. – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of the Federal Capital Territory Abuja in Suit No: FCT/HC/PET/155/09 delivered on the 1st day of March 2010.
The facts of this case as could be gleaned from the record of appeal are that the Appellant is a Nigerian downstream petroleum distribution company while the Respondent is a foreign company that sells automotive gas oil and other related petroleum products to companies and individuals in West Africa and elsewhere.
Sometime in 2007 and 2008, the Appellant entered into contract agreement with the Respondent by virtue of which the Respondent was required to supply an agreed quantity of automotive gas oil to the Appellant at a designated place offshore Cotonou.
It was alleged that the Respondent performed its own part of the contract but that the Appellant failed to take delivery of the products from the designated place within the agreed period as a result of which the Respondent stated that it suffered losses.
It was also alleged that one of the terms of the contract was that all controversies, disputes or claims arising out of or in connection with the contract or the breach thereof shall be subject to the exclusive jurisdiction of the High Court of Justice in England.
As a result of the losses suffered by the Respondent arising from the breach, the Respondent terminated the contract with the Appellant and instituted an action in the High Court of England in case No. 2008 Folio 1220 against the Appellant for recovery of damages. It was further alleged that all the processes filed in that action were served on the Appellant but that the Appellant refused to appear before the English Court to defend the action. The Appellant in its own case stated that it never submitted to jurisdiction of High Court of England owing to the pendency of Suit No. FHC/L/CS/5475/2008 before the Federal High Court Lagos. The Appellant also stated that it neither resides in United Kingdom nor carries on business in the U.K.
Judgment in the action before the English Court was entered in favour of the Respondent on 22nd May 2009.
The Respondent by a Petition on notice filed on 18th November 2009 applied to the Court below for the registration of the Judgment delivered by the English Court.
In opposition to the Respondent’s application for the registration of the Judgment, the Appellant filed a notice of preliminary objection and an answer to the Petition on 21st December 2009. The Appellant contended that the Court below lacks the jurisdiction to entertain the application for registration of the Judgment and that the Judgment could not be registered given the Provisions of Section 3(2)(a)(b) & (f) of the Reciprocal Enforcement of Judgment Act Cap. 175 Laws of the Federation of Nigeria and Lagos, 1958.
In a Ruling delivered on the 1st day of March 2010, the Court below held that it had the jurisdiction to entertain Respondent’s application. Accordingly, it proceeded to order that the Judgment of the English Court be registered.
The Appellant dissatisfied with the Ruling of the Court below now appealed to this Court.
The learned Counsel for the Appellant formulated four issues for determination. The issues are set out as follows:-
“(1) Whether having regard to the authoritative decision of the Supreme Court in Grosvenor Casinos Ltd vs. Halaoui (2009) 10 NWLR Part 1149 Page 309 Interpreting Section 3(1) & (2) of the Reciprocal Enforcement of Judgments Ordinance Cap. 175 Laws of the Federation of Nigeria, 1958. The learned trial Judge was not in error to have ordered the registration of the Foreign Judgment obtained by the Respondent against the Appellant in this case. (Grounds 5, 7 and 8).
(2) Was the learned trial Judge not in error to have placed reliance on an unsigned document (Exhibit Vitol 4) to hold that parties had agreed to submit to the jurisdiction of the English court in this case. (Ground 6).
(3) Was it proper for the learned trial Judge to have assumed Jurisdiction to register the foreign Judgment obtained by the Respondent against the Appellant having regard to the 1999 constitution and the materials on record in this case. (Ground 1, 2, 3, 4, and 10).
(4) Was the learned trial Judge not in error to have held that the action in England culminating in the foreign Judgment was not an abuse of judicial process. (Ground 9).
The learned senior counsel for the Respondent in his own case also formulated four issues for determination of the appeal. The issues are set out as follows:-
“(1) Whether the court below was in error when it ordered registration of the foreign Judgment obtained by the Respondent against the Appellant.
(2) Whether the High Court of Justice in England rightly assumed jurisdiction over the dispute between the Appellant and the Respondent in the light of the finding by that Court that the parties had agreed to submit to its Jurisdiction.
(3) Whether it was wrong for the Court below to have assumed Jurisdiction to register the foreign Judgment obtained by the Respondent against the Appellant.
(4) Whether the Court below was in error when it held that the action in England was not an abuse of Judicial Process.”
At the hearing, the learned Counsel for the Appellant referred to the Appellant’s brief of argument filed on 11/6/2010 and the Appellant’s reply brief of argument filed on 14/7/2010.
He adopted the two briefs of argument identified and he urged that the appeal be allowed and the decision of the lower Court set aside.
He also referred to the notice of preliminary objection filed on behalf of the Appellant in which Issue No. 2 in the Respondent’s brief of argument was attacked. He stated that the objection was argued on pages 1 – 3 of the Appellant’s reply brief of argument.
The learned Senior Counsel for the Respondent also referred to the Respondent’s brief of argument filed on 9/7/2010 and the Respondent’s reply to the notice of preliminary objection filed on 20/7/2010.
He adopted the said brief as his submission in this appeal.
He argued that there is a difference between submission to jurisdiction and non-attendance at the Court. He pointed out that the Appellant submitted to the Court’s Jurisdiction in England but failed to attend Court when summoned. He urged this Court to uphold the findings of the lower Court and dismiss the appeal.
NOTICE OF PRELIMINARY OBJECTION
The learned Counsel for the Appellant objected to Issue No. 2 formulated by the Respondent which was argued on pages 7 – 12 of the Respondent’s brief of argument filed on 9/7/2010. He submitted that the said issue No. 2 does not arise from any of the 10 grounds of appeal filed by the Appellant in this appeal.
He submitted further that a Respondent’s issue or issues must be based on the grounds of appeal filed by the Appellant where the Respondent has no cross appeal.
He relied on the following cases:-
-Eyo v. Okpa (2010) 6 NWLR Part 1191 Page 611 at 630 – 631;
-Animashaun v. University College Hospital (1996) 10 NWLR Part 476 Page 65;
-Arowolo v. Akapo (2003) 8 NWLR Part 823 Page 451;
-Padawa v. Jatau (2003) 5 NWLR Part 813 Page 247;
-Akinagun v. Oshoboja (2006) 12 NWLR Part 993 Page 60 at 90;
-Iheanacho v. Ejiogu (1995) 4 NWLR Part 389 Page 324;
-UBN Plc vs. Astra Builders W. A. Ltd (2010) 5 NWLR Part 1186 at 1 at Page 21;
-Falola vs. UBN Plc (2005) 7 NWLR Part 924 Page 405 at 424.
In his response the learned Senior Counsel for the Respondent formulated two issues from the preliminary objection. The issues are set out as follows:-
“(1) Whether the notice of preliminary objection filed by the Appellant is competent.
(2) Whether the issue raised by the Respondent in their brief of argument that is “whether the High Court of Justice in England rightly assumed Jurisdiction over the dispute between the Appellant and the Respondent in the light of the finding by that Court that the parties had agreed to submit to its jurisdiction” does not arise from the Grounds of Appeal.”
ISSUE NO. 1
Whether the notice of preliminary objection filed by the Appellant is competent.
At the hearing, learned Counsel for the Appellant relied on Order 10 rule 1 of the Court of Appeal Rules 2007 in filing this notice of preliminary objection. He later conceded that the said Order 10 rule 1 which he relied upon is not available to him as an Appellant. He admitted that it is only available to the Respondent.
Learned Senior Counsel for the Respondent submitted that the only preliminary objection envisaged by Order 10 rule 1 is one in which it is intended by a Respondent to object to the hearing of a pending appeal.
He submitted that the Appellant’s Notice of Preliminary Objection does not come within the Rules of this Court and is therefore incompetent.
He relied on the case of:-
-Newswatch v. Ibrahim Attah (2006) 12 NWLR part 993 at 144 at 179 Paragraphs E – G.
The learned Counsel for the Appellant brought the Notice of preliminary Objection under Order 10 rule 1 of the Court of Appeal Rules 2007.
Order 10 rule 1 of the Court of Appeal Rules 2007 provides as follows:-
“A Respondent intending to rely upon a preliminary objection to the hearing of an appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.”
A careful examination of the above provisions of the Court of Appeal Rules would reveal that the only preliminary objection envisaged by Order 10 rule 1 is one in which it is intended by a Respondent to object to the hearing of a pending appeal.
The learned Senior Counsel for the Respondent was right when he stated that the Appellant’s Notice of Preliminary Objection does not come within that provision.
There is no provision in the Court of Appeal Rules 2007 which recognizes a Notice of Preliminary Objection for the purpose of objecting to an issue raised in a Respondent’s Brief of Argument.
A Court of Law can only entertain applications which are recognized by its rules.
In Newswatch v. Ibrahim Attah (supra) the Supreme Court held among others that:-
“…An application not recognized by the Rules of Court cannot be described as a proper application.”
In view of the foregoing, the notice of Preliminary Objection filed on behalf of the Appellant is therefore incompetent and it ought to be struck out.
Be that as it may, it would therefore not be necessary to go into the second issue formulated for determination in this notice of objection. But I will like to comment and emphasize that a Respondent is not permitted to couch any issue outside the perimeters of the Appellant’s grounds of appeal unless such a Respondent has filed a Respondent’s notice or Cross-Appeal. And where an issue for determination is not related to the grounds of appeal it would be incompetent and it ought to be struck out.
See:- Falola v. UBN (Supra)-
In the final analysis, in view of the fact that this notice of preliminary objection was found to be incompetent, it is therefore struck out.
THE MAIN APPEAL
I have carefully examined the issues formulated for determination on behalf of the parties in this appeal and it is my view that the issues as formulated by Counsel for the Appellant, though similar to the Respondent’s issues, would settle the issues in controversy between the parties.
ISSUE NO. 1
Whether having regard to the authoritative decision of the Supreme Court in Grosvenor Casinos Ltd. vs. Halaoui (2009) 10 NWLR Part 1149 Page 309, interpreting Section 3(1) & (2) of the Reciprocal Enforcement of Judgments Ordinance Cap. 175 Laws of the Federation of Nigeria 1958, the learned trial Judge was not in error to have ordered the Registration of the foreign Judgment obtained by the Respondent against the Appellant in this case. (Grounds 5, 7, 8).
The learned Counsel for the Appellant stated that parties were ad idem that the relevant law to this Suit is “The Reciprocal Enforcement of Judgment Act Cap. 175, Law of the Federation of Nigeria and Lagos 1958.”
He argued that the evidence on record showed that the Appellant never participated in the proceedings in England in any form nor was he resident and/or carrying on business in England.
It was contended on behalf of the Appellant that by the clear provisions of this Section, the learned trial Judge was indeed under an obligation to determine whether the English Court had Jurisdiction over the matter before ordering the registration of the foreign Judgment. The exercise of this mandatory statutory power by the learned trial Judge is not by any means an invitation to sit on appeal over the Judgment of the foreign Court. The determination of the Jurisdiction of the foreign Court is for the purpose of registering its Judgment and not identification of errors once it was established that the Appellant did not at anytime or by any means submit to the Jurisdiction of the English Court, the learned trial Judge ought to have declined to order the registration of the foreign Judgment in this case.
The learned Counsel for the Appellant urged this Court to hold that the trial Judge was in error for failing to determine whether the English Court had Jurisdiction before ordering its Judgment to be registered in this case. This Court is further urged to hold that the registration of the Judgment of the English Court ordered by the learned trial Judge when the Appellant did not submit to the Jurisdiction of the English Court is contrary to Section 3(2)(a) of the (1958) Ordinance.
He relied on the interpretation of the above Section in the case of:-
-Grosvenor Casinos Ltd vs. Halaoui (Supra).
He finally urged this Court to resolve this issue in favour of the Appellant.
The learned Senior Counsel for the Respondent submitted that Section 3(2) (a-f) of the 1958 Act specifies grounds upon which a foreign Judgment should not be registered. He went further that the grounds are alternative grounds and cannot be combined.
He relied on the case of:-
-Alhaji Atiku Abubakar & Others v. Alhaji Umaru Musa Yar’adua & Others (2008) 12 S.C. Part II page 1 at page 27 Paragraphs 18 – 25.
He submitted that the Appellant had a choice to challenge the application for registration of the Judgment either on the ground that the English Court acted without Jurisdiction or that even though the English Court had Jurisdiction to determine the matter, the Appellant did not submit to the Jurisdiction of the Court. He submitted further that challenging the application for registration as the Appellant did under Section 3(2) and (5) is by implication contending in one breath that the English Court had no Jurisdiction to determine the action and on the other that although there was Jurisdiction, Appellant did not submit to the Jurisdiction. By so doing he stated that the Appellant was approbating and reprobating.
He relied on the following cases:-
-Nwokoro v. Onuma (1999) 9 S. C. Page 59 at 64;
-Obasi vs. Merchant (2005) 21 NSCQR Page 276 at 286.
Learned Senior Counsel went further in his submission that it is apparent from the wording of Section 3(2)(b) of the 1958 Act that a foreign Judgment can be registered against a person if there is evidence that he agreed to submit to the Jurisdiction of the foreign Court which delivered the Judgment.
He went further that the Appellant agreed to submit to the Jurisdiction of the English Court and that this was sufficient ground for the Judgment to be registered against the Appellant.
He therefore urged this Court to hold that the Court below was not in error when it ordered registration of the Judgment.
In his reply brief of argument, the learned Counsel for the Appellant submitted that the Respondent did not respond to arguments canvassed on the interpretation of Section 3(2)(a) of the 1958 Act and that the failure to respond is tantamount to a concession of the Appellant’s arguments.
In response to the submission of the Respondent that the use of the word “or” in Section 3(2) (a)-(f) of the 1958 Act precludes the Appellant from relying on more than one of the paragraphs. It was submitted that the Appellant can rely on any of the sub-paragraphs.
Concerning the finding that the parties have agreed to submit to the Jurisdiction of English Court, learned Counsel for the Appellant submitted that an agreement cannot be proved by way of finding of Court.
He relied on the case of:-
-Densy Ind. Nig. Ltd v. Uzokwe (1999) 2 NWLR Part 591 Page 392 at 405.
He finally urged that the appeal be allowed.
In this appeal, the contention of the Appellant is that having regard to Section 3(2)(a) and (b) of the 1958 Act and the decision in Grosvenor Casino Ltd vs. Halaoui (Supra) the trial Judge erred in law to have ordered that foreign Judgment be registered.
According to learned Counsel for the Appellant, the basis for that contention is that the Appellant did not appear to defend the suit after it was served with the Court processes. Apart from that, that the Appellant was not resident or carrying on business in England at the time the action was commenced and that by not appearing to defend the suit, the Appellant could not be said to have submitted to the Jurisdiction of the English Court.
Section 3(2) (a) & (b) of the Reciprocal Enforcement of Judgment Ordinance Cap. 175, Laws of the Federation of Nigeria 1958 (hereinafter referred to as the 1958 Act) provides thus:-
“(2) No Judgment shall be ordered to be registered under this Ordinance if:-
(a) The Original Court acted without Jurisdiction or
(b) The Judgment debtor being a person who was neither carrying on business nor ordinarily resident within the Jurisdiction of the Original Court, did not voluntarily appear or otherwise submit or agree to submit to the Jurisdiction of that Court.
(c) The Judgment debtor, being the Defendant in the proceedings was not duly served with the process of the Original Court, and did not appear notwithstanding that he was ordinarily resident or was carrying on business within the Jurisdiction of that Court or agreed to submit to the Jurisdiction of that Court or;
(d) The Judgment was obtained by fraud; or
(e) The Judgment debtor satisfies the registering Court either that an appeal is pending or that he is entitled and intends to appeal against the Judgment; or
(f) The Judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering Court.”
Section 3(2)(a-f) of the 1958 Act quoted above specified the grounds upon which foreign Judgment should not be registered. The grounds are alternative grounds and cannot be combined.
I agree with the submission of the learned Senior Counsel for the Respondent that the word “or” used in between the grounds is disjunctive and not conjunctive. The word “or” suggests that one cannot rely on the two grounds at the same time.
In Atiku Abubakar v. Alhaji Umaru Musa Yar’adua & Others (Supra) Page 1 at 27 Paragraphs 15 – 25, the Supreme Court held as follows:-
“It is to be noted that twelve months period is separated from the next period following by the word “OR”. This word always bears the disjunctive meaning in an enactment that is to say it separates the provision preceding it from the provision coming after it. Its role is to show that the previous in which it is appearing are distinct and separate one from the other. In Black’s Law Dictionary Sixth Edition the word “OR” is defined inter alia – Distinctive participle used to express an alternative or to give a choice of one among other or more thing.”
Therefore in my humble view section 3 (2) (a) of the 1958 Act was intended to avail a judgment debtor who can establish that the foreign Court acted without jurisdiction while section 3 (2) (b) was intended to avail a judgment debtor who can establish that although the foreign Court had jurisdiction to entertain the action but that the judgment debtor is still not bound by the judgment for the reason that it did not submit to the jurisdiction among other reasons.
It is clear from the wordings of Section 3 (2) (b) of the 1958 Act that a foreign Judgment can be registered against a person if there is evidence that he agreed to submit to the jurisdiction of the foreign Court which delivered the judgment, this position was supported by the judgment of the Supreme Court in Grosvenor case (supra) at page 337 paragraphs G – H where Oguntade JSC gave the interpretation of Section 3 (2) (b) of the Ordinance as follows:-
“Under Section 3 (2)(b) above, a judgment obtained in the High Court in England or Ireland can only be registered in Nigeria for the purpose of enforcement if the judgment debtor voluntarily appears or otherwise agrees to submit to the jurisdiction of that court in England.”
In this appeal, a careful reading of page 18 of the Record of Appeal would reveal that the English Court found as follows on the issue of the submission by Appellant to its Jurisdiction:-
“The contract terms agreed provided for this court to have exclusive Jurisdiction and there in no reason why the Defendant should not be held to that agreement.”
In order to be availed by Section 3(2)(b) of the 1958 Act set out earlier in this Judgment, the Appellant must prove that it did not at anytime agree to submit to Jurisdiction of the English Court. But the Appellant could not do this in the face of its agreement to submit to the Jurisdiction of the English Court.
As could be seen from the excerpts of the Judgment of the English Court, the Court found that the Appellant agreed to submit to Jurisdiction. This was a sufficient ground for the Judgment to be registered against the Appellant.
In view of the foregoing, the Court below was right when it ordered registration of the foreign Judgment obtained by the Respondent against the Appellant.
This issue No. 1 is resolved in favour of the Respondent and against the Appellant.
ISSUE NO. 2
Was the learned trial Judge in error to have placed reliance on unsigned document (Exhibit Vitol 4) to hold that parties had agreed to submit to the Jurisdiction of the English Court in this case (Ground 6).
The learned Counsel for the Appellant stated that the trial Judge placed reliance on Exhibit Vitol 4 to hold that parties had agreed to submit to the Jurisdiction of the English Court. He referred to pages 252 – 253 of the record of appeal.
He also referred to Exhibit Vitol 4 on pages 217 – 218 and 231 – 232 of the Record of Appeal.
He submitted that it is perverse for the learned trial Judge to have held that Exhibit Vitol 4 was not disputed by the Appellant. He referred to paragraph 10 of the affidavit of the Appellant in support of its answer to the Petition on page 37 of the record.
The submission of learned Counsel for the Appellant before the lower Court is on page 236 lines 7 – 9 of the Record, it was stated that the Exhibit is worthless and it is unsigned. He submitted that the said document is void in law. He relied on the following cases:-
– A.G. Abia State v. Agharanya (1999) 6 NWLR part 607 Page 362 at 371 Paragraph E;
– Omega Bank Plc v. O.B.C. Ltd. (2005) 8 NWLR Part 928 Page 547 at 576.
– Seidu v. Attorney General of Lagos State (1986) 2 NWLR Part 21 at Page 165;
He finally submitted that Exhibit Vitol 4 relied upon by the learned trial Judge to hold that parties had agreed to the Jurisdiction of the English Court is void and worthless.
The learned Senior Counsel for the Respondent stated that the Court below relied solely on the Judgment of the High Court of England when it held that parties had agreed to submit to the Jurisdiction of the English Court. He referred to page 252 of the Record of Appeal which showed that the Court below found the Judgment of the English Court (Exhibit Vitol 3) as the only authentic material to rely upon in determining whether or not parties agreed to submit to the Jurisdiction of the English Court. It was also stated that Exhibit Vitol 4 was mentioned because it supports the Judgment (Exhibit Vitol 3) in material respect and both Exhibits were never challenged by any further affidavit of the Appellant. He referred to page 252 of the record.
The learned Senior Counsel for the Respondent submitted that the said document is what the English Court made a finding upon. And the English Court having found that that the Appellant agreed to submit to the Jurisdiction of the English Court, the Court below was not in error to have ordered that the Judgment be registered as its Judgment.
It was also pointed out by the learned Senior Counsel that various attempts have been made by the Appellant to challenge what it described as the lower Court’s analysis of the evidence. But that in doing so the Appellant failed to realize that where the Court of first instance has not adjudicated on the evidence, its decision cannot be challenged on the ground that the Court has reached a wrong conclusion on the evidence before it. He relied on the case of:-
– Thwaite vs. Thwaite (1981) 2 All F.R. Page 789 at 794.
Reference was also made to the Notice of Preliminary Objection filed by the Appellant which was struck out earlier in this Judgment.
It was stated that in opposition to Appellant’s Notice of Preliminary Objection and the Appellant’s answer to the Respondent’s Petition, that the Respondent filed two counter affidavits on 4th February, 2010 in which it was averred that parties agreed to submit to the Jurisdiction of the English Court (Paragraphs 9, 10, 11 (d) 12 and 13 of the two counter affidavits may be found on pages 203 -208 and 219 – 222 of the Record of Appeal),
He contended that the averments in the counter affidavits were not challenged or denied by the Appellant. No further affidavit was filed by the Appellant to deny that it ever agreed to submit to the jurisdiction of the English Court. He went further that the Appellant did not challenge the Judgment by way of appeal nor did it deny the averments in the affidavit in opposition. He submitted that where facts in an affidavit are not challenged, they are deemed admitted. He relied on the case of:-
-Badejo v. Federal Ministry of Education (1996) 8 NWLR part 464 page 15.
He finally urged that this issue be resolved in favour of the Respondent.
The issue for consideration here is whether the learned trial Judge was not in error to have placed reliance as an unsigned document (Exhibit Vitol 4) to hold that parties had agreed to submit to the Jurisdiction of the English Court.
The contention of the Appellant is that the learned trial Judge placed reliance on Exhibit Vitol 4 to hold that parties had agreed to submit to the Jurisdiction of the English Court. ,m
He stated that the said Exhibit Vitol 4 is an unsigned document and submitted that it is worthless and void in law.
Contrary to the above view the Court below relied solely on the Judgment of the High Court of England when it held that parties had agreed to submit to the jurisdiction of the English Court. The record of appeal particularly page 252 showed that the Court below found the judgment of the English Court (Exhibit Vitol 3) as the only authentic material whether or not the parties agreed to submit to the Jurisdiction of the English Court.
Exhibit Vitol 4 was subsequently retained because it supported the Judgment in material respect and both Exhibits were never challenged by any further affidavit from the Appellant.
It was submitted on behalf of the Respondent that agreement to submit to jurisdiction may be likened to arrangements that are agreed upon between the parties for the purpose of being made subject of a consent order by the Court.
He submitted further that once the consent order is made, the legal effect is derived not from the agreement of the parties but from the Court order.”
He relied on the case of De Lasala vs. De Lasala (1979) 2 All E.B. Page 1146 at 1155 where it was held that:-
“financial arrangements that are agreed on between the parties for the purpose of receiving approval and being made the subject of a consent order by the Court, once they have been made the subject of the Court order no longer depend on the agreement of the parities as the source from which their legal effect is derived. Their legal effect is derived from the Court Order.”
See also the case of:-
-Livesey v. Jenkin (1985) 1 All E.R. Page 106 at 112.
It was submitted by the learned Counsel for the Appellant in the reply brief of argument that the cases relied upon by the Respondent are irrelevant and inapplicable.
According to the record of appeal, the parties in this case had elected the Court to which they would submit their disputes for adjudication. Their dispute had been so submitted. The Court had exercised its Jurisdiction and made a determination.
There is the fact that Exhibits Vitol “3” and “4” relied upon by the Court below were never challenged by any further affidavit from the Appellant.
Apart from the fact that the Court below was bound by the finding of the English Court that the parties agreed to submit to the jurisdiction of the English Court since the Court below was not sitting on appeal over the decision of the English Court. In view of this, it is my view that to upturn a finding already made by the English Court would be tantamount to sitting on appeal over the decision of the English Court.
The law is that it is not the duty of the registering Court to sit on appeal over the decision of the original Court that delivered the Judgment sought to be registered.
My view above is fortified by the decision of the Supreme Court in the case of:-
– Witt & Busch Ltd. v. Dale Power Systems Plc (2007) 17 NWLR part 1062 Page 1 at 23 – 24 Paragraphs G – A; where it was held as follows:-
“I entirely agree with the statement of the laws as declared in the lead judgment particularly on the point that section 3 (1) of the Reciprocal Enforcement of Judgment Ordinance was applicable to the case. I will also add that it is not the duty of the Court entertaining application for the registration of a foreign judgment to sit as an appellate Court over the foreign judgment. The Respondent to the judgment sought to be registered is expected to have exercised its right of appeal under the laws of the foreign country. All that the Court to which the application is made needs to do is to ensure that the Appellant complies with the requirements of our laws on registration of foreign judgment. I believe that requirement has been met.”
As I stated earlier in this Judgment, Exhibit Vitol 3 was not disputed by the Appellant and likewise Exhibit Vitol 4 whether signed or unsigned was not disputed. In fact Exhibit Vitol 3 in particular contains the finding of the English Court that –
“The contract terms agreed provided for this Court to have exclusive Jurisdiction and there is no reason why the Defendant should not be held to that agreement.” (See page 18 of the Record of Appeal).
Looking at this situation from another angle, the Respondent in opposition to Appellant’s Notice of Preliminary Objection which was struck out earlier in this Judgment and Appellant’s answers to the Respondent’s petition, filed two counter affidavits on 4/2/2010 in which it was also averred as found by the English Court that the parties agreed to submit to the Jurisdiction of the English Court. (See paragraphs 9, 10, 11(d), 12 and 13 of the said Counter Affidavit which are on pages 203 – 208 and 219 – 222 of the Record of Appeal). These averments were not challenged or denied by the Appellant. No further affidavit was filed by the Appellant to deny that it ever agreed to submit to the Jurisdiction of the English Court. The Appellant did not challenge the Judgment by way of appeal nor did it deny the averments in the Counter Affidavits. I therefore agree with the submission of learned Senior Counsel for the Respondent that where facts in an affidavit are not challenged, they are deemed admitted.
In Badejo V. Fed. Min. of Education (supra) at page 15; it was held by the Supreme Court that:-
“where an affidavit is filed deposing to certain facts and the other party does not file a counter affidavit or reply to a counter affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed…they are therefore admitted.”
Consequent upon the foregoing, it is my view that the trial Court was not in error to have placed reliance on Exhibits Vitol “3” and “4” to hold that parties had agreed to submit to the Jurisdiction of English Court in this case.
This issue No. 2 is also resolved in favour of the Respondent against the Appellant.
ISSUE NO. 3
Was it proper for the learned trial Judge to have assumed Jurisdiction to register the foreign Judgment obtained by the Respondent against the Appellant having regard to the 1999 Constitution and the materials on record in this case. (Grounds 1, 2, 3, 4, & 10).
The learned Counsel for the Appellant stated that the registered office of the Appellant is in Lagos. He submitted that it is incorrect to state that a petition to register any foreign Judgment for enforcement could be filed in any High Court without regard to the place of abode of the parties.
He relied on the following cases:-
-Edet vs. Chagoon (2008) 2 NMLR Part 1070 Page 85 at 107;
-Santory Co. Ltd v. B.O.N. Ltd. (2005) 8 NWLR part 925 Page 594 at 612;
-Kraus Thompson Organisation Ltd. v. University of Calabar (2004) 9 NWLR Part 879 Page 631 at 661.
He went further in his submission that the decision of the learned trial Judge to register the foreign Judgment in the Federal Capital Territory despite the unresolved conflict in the affidavit evidence before the Court as to the ownership of the filling stations identified in the Petition had occasioned a miscarriage of Justice. This according to him is because the learned trial Judge had unwittingly believed the affidavit evidence of the Respondent and disbelieved that of the Appellant.
He referred to the case of:-
-University Press Ltd. v. Martin (Nig) Ltd. (2000) 4 NWLR Part 654 Page 584 at 597.
He also argued that a careful examination of the Judgment of the trial Court and the enrolled order on page 19 of the record would show that the matter is purely within the admiralty jurisdiction of the Federal High Court.
He relied on the case of:-
-NNPC & another v. Odidere Enterprises Nigeria Limited in CA/A/190/2008 delivered on 24th day of April 2009 (Unreported).
He finally urged that this issue be resolved in favour of the Appellant.
In his response, the learned Senior Counsel for the Respondent referred to Section 3(1) of the Reciprocal Enforcement of Judgments Ordinance, Cap 175 Laws of the Federation of Nigeria and Lagos 1958.
He argued that by the law referred to above, a High Court in Nigeria can upon an application made to it order a Judgment obtained in England to be registered as its own Judgment provided the application was made within 12 months. It was also argued that the registration of Judgment does not attract the fulfillment of condition to file a suit in a contractual dispute between parties wherein the place of contract, the residence of parties as at the time of contract and where the contract was supposed to be executed are determining factors to where to institute a suit.
He also referred to:-
-Order 4 rule 4(1) of the High Court of the Federal Capital Territory (Civil Procedure) Rules i.e. the old rules of Court
AND
the case of:-
-Kraus Thompson Organisation Ltd vs. Unical (Supra).
He stated that the Supreme Court in the case referred to above placed reliance on the rules of Court to determine the venue of the case involving a breach of contract.
He therefore submitted that it is sufficient to register the Judgment within the Jurisdiction where the Judgment debtor has assets and carries on business. On this he referred to paragraph 27 of the counter-affidavit of Akin Olatunji where the Appellant stated thus:-
“(27) That the Respondent has no property in Abuja and the filling stations referred to by the Petitioner are owned by the Respondent’s dealer.”
It was contended on behalf of the Respondent that the place of business of the agents of the Appellants is the place of business of the Appellant.
He therefore urged this Court to tow the line of the Supreme Court in the case of:-
-Kraus Thompson Organisation Ltd. v. Unical (supra) and hold that in determining whether a particular Court is the proper venue for the commencement of an action, one of the things to look at is the Rules of that Court.
It was contended on behalf of the Appellant that the subject matter of the action in England is an Admiralty matter within the provisions of Section 251(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria.
Contrary to the above contention, the learned Senior Counsel for the Respondent argued that the transaction which led to the Judgment obtained in England was a contract for the sale or supply of gas oil in which the Respondent was to be the seller and the Appellant the buyer. The question therefore is whether the fact of delivery or conveyance of the gas oil by ship automatically gives the transaction the character of an Admiralty action.
The learned Senior Counsel for the Respondent submitted that the transaction between the Appellant and the Respondent did not have the character of admiralty action. He relied on the case of:-
-Chevron Nigeria Ltd v. LD Nigeria Ltd (2007) 16 NWLR Part 1059 Page 168 at 179 – 184.
He finally urged this Court to resolve this issue in favour of the Respondent.
In his reply brief of argument, the learned Counsel for the Appellant submitted that it is not the rules of Court that vests Jurisdiction in the Court but rather the statute creating the Court. He relied on the following cases:-
-Onuorah vs. K.R.P.C Ltd (2005) 6 NWLR Part 921 Page 393 at 404 Paragraphs F-G;
-Dairo vs. U.B.N. (2007) 16 NWLR Part 1059 Page 99 at 144.
In this appeal it is not in dispute that the law regulating the registration of Judgments obtained in England is the Reciprocal Enforcement of Judgments Ordinance, Cap. 175, Laws of the Federation of Nigeria and Lagos 1958. See the following cases:-
-Marine & General Assurance PLC v. Overseas Union Insurance Ltd (2006) 4 NWLR Part 971 Page 624 at 643 Paragraphs C – G;
-Witt & Busch Ltd vs. Dale Power Systems Plc (2007) 5 – 6 S. C. Page 121 at 130 and 131;
-Grosvenor Casino Ltd vs. Ghassan Halaqui (Supra);
-Macaulay vs. V. R. Z. B. of Australia (2003) 12 S. C. Part II Page 22.
Section 3(1) of the Reciprocal Enforcement of Judgment Ordinance, Cap 175 Laws of the Federation of Nigeria and Lagos 1958 provides thus:-
“Where a Judgment has been obtained in the High Court in England or Ireland, or in the Court of 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 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 thinks it is just and convenient that the Judgment should be enforced in Nigeria, and subject to the provisions of this ordinance, order the Judgment to be registered accordingly.”
It has been contended on behalf of the Appellant that the Court below was not the proper venue for the registration of the Judgment of the English Court. For that proposition the Appellant relied on the case of:-
-Santory Co. Ltd v. B. O. N. Ltd (2005) 8 NWLR Part 925 Page 594 at 612.
But in the case of:-
-Kraus Thompson Organisation Ltd. v. University of Calabar (Supra), which was also relied upon by the Respondent, the Supreme Court considered the issue whether the High Court of Lagos State had Jurisdiction to determine a case involving a contract made in Calabar which ought to be performed in Calabar and in which Calabar was the place where the University of Calabar resides.
It was held among others at page 655 paragraphs D – E as follows:-
“Now by virtue of Order 1A Rule 3 of the High Court Rules of Lagos State 1972 or as amended by Virtue of Order 2 rule 3 of the 1984 Rules, an action upon a breach of contract may be commenced and determined in any one of the following three places; namely: –
(a) where the contract was made; or
(b) were the contract ought to have been performed; or
(c) where the Defendant resides.
Thus, a plaintiff suing for breach of contract is entitled to take advantage of any of the alternatives and rely on it to choose the venue convenient for him. In the instant case, the plaintiff purportedly chose where according to him the Defendant resides i.e. the Liason Office in Lagos. See Okafor v. Ezenwa (2002) 13 NWLR Part 784 Page 319”
The learned Counsel for the Appellant referred to paragraphs 4, 5 and 15 of the affidavit in support of the Petition filed at the Court below but it denied the paragraphs by paragraph 27 of the affidavit of Akin Olatunji where the Appellant stated as follows:-
“27 That the respondent has no property in Abuja and the filling stations referred to by the Petitioner are owned by the Respondent’s dealer.”
It is my view that it could be inferred from above paragraph that even though the Appellant denied owning properties and filling stations in Abuja but it carries on business transaction in the filling stations through its dealers in Abuja.
Order 9 Rule 3 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, Abuja provides thus:-
“All suits for specific performance, or breach of contract, shall, where the contract ought to have been performed, where the Defendant resides or carries on business in the Federal Capital Territory, be commenced and determined in the High Court of the Federal Capital Territory Abuja.”
A careful examination of the above provision would show that once the subject matter of an action is a contract and there is evidence that the Defendant is carrying on business in the Federal Capital Territory, the court below can entertain the action under order 9 rule 3 of the High Court of Federal Capital Territory civil Procedure Rules.
The learned counsel for the Appellant also contended that the Judgment of the English court as well as the enrolled order showed that this matter is an admiralty matter within the provisions of section 251(1) (g) of the 1999 constitution of the Federal Republic of Nigeria. He contended further that the Registration of the foreign Judgment was a matter within the exclusive Jurisdiction of the Federal High Court.
The learned Senior Counsel for the Respondent in his own case contended that the contract sought to be enforced in England was a contract for the supply of goods, and not a contract for the carriage by the Respondent of the Appellant’s goods by sea. He argued that it had nothing to do with admiralty Jurisdiction.
At this juncture it would be necessary to look at Section 251(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria which provides as follows:-
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other Jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise Jurisdiction to the exclusion of any other Court in Civil Causes and matters:-
(g) Any admiralty Jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway cut may be designated by any enactment to be an international waterway, all Federal Ports (including the Constitution and powers of the port authorities for Federal Ports) and carriage by sea.”
The contention of learned counsel for the Appellant was that after carefully examining the Judgment of the English Court as well as the enrolled order, it showed that this is an admiralty matter having to do with carriage of good by sea.
The Judgment of the English Court (Exhibit Vitol 1) in paragraph 7 on page 12 lines 5 – 10 of the record of appeal is reproduced as follows:-
“The contract stated the number of the contract No. 846000. It named the Defendant as buyer and the Claimant as seller. The quantity of gasoil to be sold was 60,000 metric tons, plus or minus 10 percent at seller’s option. Delivery was to be ex-ship in four lots at various dates between 15th August and 14th September off Cotonou via a ship to shop (STS) operation from a mother vessel to a daughter vessel nominated by the buyer.”
It could be inferred from the above decision of the English Court that the transaction was a contract for the sale or supply of gasoil in which the Respondent was to be the seller and the Appellant the buyer. The question therefore is whether the fact that delivery or conveyance of the gasoil was expected to be or was by ship automatically gives the transaction the character of an admiralty action?
In the case of:-
-Chevron Nigeria Ltd vs. LD Nig. Ltd (2007) 16 NWLR Part 1059 Page 168 at Page 185 Paragraph C, the Supreme Court while considering a similar case held among others as follows:-
“Appellant’s issue no. 2 raises the contention that the Plaintiffs Claim was an action in admiralty and that therefore, a State High Court has no Jurisdiction to entertain same. The declaration would rather have the case heard by the Federal High Court. I reproduce above a substantial part of the averments in the Plaintiff’s Statement of Claim. These show that in its true essence, the claim was for breach of contract.
Further on page 187 paragraphs G – H the Supreme Court held further that:-
“The second issue for determination is on the Jurisdiction of the trial Court to entertain and determine the claims of the Plaintiff. The fact that the transaction between the parties giving rise to the Plaintiff’s Claim involves the conveyance of the rig purchased from India to Nigeria by sea does not give that transaction the character of an admiralty action.
Consequent upon the foregoing, it is my view that the condition as found by the English Court that:-
“Delivery was to be ex-ship in four lots at various dates between 15th August and, 14th September off Cotonou via a ship to ship (STS) operation from a mother vessel to a daughter vessel nominated by the buyer” did not give the transaction between the Appellant and the Respondent the character of an admiralty action.
In the circumstance the Court below rightly assumed Jurisdiction in this case when it ordered the registration of the foreign Judgment.
This issue No. 3 is resolved in favour of the Respondent against the Appellant.
ISSUE NO 4
Was the learned trial Judge not in error to have held that the action in England culminating in the foreign Judgment was not an abuse of Judicial process (Ground 9).
The learned Counsel for the Appellant submitted that the mandatory requirement which the Court must observe before registering a foreign Judgment is that the Registering Court must ensure that the cause of action in which the Judgment was obtained is one that can be entertained by it. If the cause of action cannot be entertained by the registering Court for reasons of public policy or for other reasons, the Judgment should not be registered. He relied on:-
Section 3(2) (f) of the 1958 Ordinance.
He stated that Suit No:- FHC/L/CS/5475/2008 was already pending before the Federal High Court, Lagos when case No. 2008 folio 1220 with the same parties, issues and subject matter was filed in England.
The Court below in its Ruling concluded that the English suit did not constitute an abuse of judicial process.
The learned Counsel for the Appellant submitted that the fact that the claims in the English suit are of a wider character does not preclude it from constituting an abuse of judicial process. He relied on the following cases:-
– Thamse Launches Ltd v. Corporation of the Trinity House of Deptford Strond (1961) 1 All E.R. page 26 at 32;
– Royal Bank of Scotland Ltd. v. Citrusolal Investment Ltd. (1971) 3 All E. R. Page 558;
– Nnama v. Nwanebe (1991) 2 NWLR part 172 page 181 at 189 – 190;
– Aduba v. Reg. 339 at 476 at 484 – 485.
NWLR Part 339 at 476 at 484 – 485.
He went further in his submission that the foreign Judgment in respect of a matter which constitutes an abuse of judicial process ought not to have been registered under Section 3(2) (f) of the 1958 Ordinance.
He relied on the case of:-
-African Re: Corp v. JDP Const. Nig. Ltd (2003) 13 NWLR Part 838 page 609 at 635.
He finally urged this Court to resolve this issue in favour of the Appellant.
The learned Senior Counsel for the Respondent contended that the case of the Respondent before the English Court was that there was breach of contract on the part of the Appellant as a result of which the Respondent suffered losses. In other words the Respondent’s Claim was damages for breach of contract. Whereas the Appellant’s Claim in Suit No. FHC/L/CS/5475/2008 at the Court below was not based on a contract.
He submitted that the subject matters in the cases of the parties are not the same. He therefore urged this Court to hold that the action determined by the English Court was not an abuse of the process of the Court.
He also referred to Section 3(2) (f) of the 1958 Act and submitted that abuse of Court process is not a ground under the Section referred to above.
In the reply brief of argument the Appellant submitted that where the wordings of an enactment such as Section 3(2)(f) are clear and unambiguous the Courts are to give them their literal interpretation. He relied on the case of:-
– Att. Gen. of Lagos State v. Att. Gen. Federation (2004) 18 NWLR part 904 page 1 at 132 paragraphs D-F.
The learned Counsel for the Appellant finally urged this Court to discountenance the submissions of the Respondent and allow the Appeal.
I have held earlier in this Judgment that the High Court of Justice in England rightly assumed jurisdiction over the dispute between the Appellant and the Respondent because according to the record before this Court, the parties had elected the Court to which they would submit their disputes for adjudication, and their dispute had been submitted to the Court.
In Exhibit Vitol 3 part of the finding of the English Court was that:-
“The contract terms agreed provided for this Court to have exclusive Jurisdiction and there is no reason why the Defendant should not be held to that agreement.”
(See Page 18 of the Record of Appeal)
The issue here is whether the learned trial Judge was in error to have held that the action in England culminating in the foreign Judgment was not an abuse of Judicial Process.
The concept of abuse of Judicial Process has been held to be imprecise. It involves circumstances and situations of infinite varieties and conditions. It’s one common feature is the improper use of the Judicial process by a party in litigation to interfere with the due administration of Justice. It is recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effectual administration of Justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. Thus, the multiplicity of actions on the same parties, even where there exists a right to bring the action, is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se.
See the case of:-
-Saraki v. Kotoye (1992) 9 NWLR part 264 page 156.
In the appeal under consideration, the case of the Appellant in suit No. FHC/L/CS/5475/2008 was for a claim of US$3,200,000 the same being money which the Appellant said was paid to the Respondent in anticipation of entering into some contracts.
On the other hand the case of the Respondent before the English Court was for damages for breach of contract.
It is therefore my view that the subject matters in the two cases are not the same because while the case in England was based on contract as the subject matter, the case before the federal High Court in Lagos was not based on contract. The issue there was whether the Appellant was entitled to a refund of US$3,200,000 security deposit and the issue before the English Court was whether the Respondent was entitled to damages for breach of contract.
In Mobil Production Nigeria Unlimited v. Monokpo (2003) 18 NWLR Part 852 at Page 346 at 430 – 431, it was held among others that:-
“Filing of two motions which do not necessarily seek the same or similar reliefs, though in the same case between the same parties would not amount to an abuse of the process of the Court.”
In view of the foregoing coupled with the fact that the contract terms agreed to by the parties provided that the English Court should have exclusive Jurisdiction in event of a dispute between the parties, it is the action commenced by the Appellant in the Federal High Court Lagos that constituted an abuse of Judicial process.
Another question to which an answer is required is whether the abuse of Court process raised by the Appellant was a ground upon which the Court below should have refused to register the Judgment under Section 3(2) (f) of the 1958 Act.
Under Section 3(2) (f) of the 1958 Act, a Court ought not to register a foreign Judgment “if the Judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering Court.”
A careful examination of the above quoted Section of the law would reveal that the words “for some other similar reason” used after the words “public policy” are general words.
The word “Public Policy” has been held in the case of:-
Total Nigeria Plc (2004) 3 NWLR Part 860 Page 270 at 293 – 294 to mean:-
“…that policy of the law of not sanctioning an act which is against the public interest in the sense that it is injurious to the public welfare or public good.”
At the Court below, the registration of the foreign Judgment was not opposed on the ground of public policy or on the ground that it would be injurious to public welfare. Therefore can the Appellant rely on the general words to raise the ground of abuse of Court process?
I do not think so because in the case of:-
-Fawehinmi v. IGP (2002) 7 NWLR Part 767 Page 606 at 683, the Supreme Court held among others as follows:-
“Ejusdem generis rule helps to confine the construction of general words which they follow in a statutory provision or in a document.”
At page 689 the Court held further:-
“One or two examples will suffice to illustrate the rule as closely as possible to the situation in Section 308(1)(b). In Ashbury Railway Carriage & Iron Co. V. Richie (1975) L. R. H. L. 653 the statement in a Memorandum of Association was that one of the objects of the company was to carry on the business of Mechanical Engineers and general contractors.
The House of Lords, per Lord, Cairns L. C., said that the expression “general contractors” was limited by the previous words “Mechanical Engineers” and that it ought to be confined to the making of contracts connected with that business.”
In view of the foregoing, it is my view that the general words “some other similar reason” used in Section 3(2) (f) of the 1958 Act are limited by the previous words “Public Policy” and ought to be confined to matters that are against public interest in the sense that they are injurious to public welfare or public good.
There is no evidence at the Court below that Suit No. FHC/L/CS/5475/08 was instituted in the interest of the public or that a registration of the Judgment would adversely affect that interest. The evidence on record showed that the suit was instituted for recovery of Appellant’s personal money and interest which is a private interest. In the circumstance, the action in England was not injurious to public welfare.
Consequent upon the foregoing, it is my view that the ground of abuse of Court process raised by the Appellant is not a public policy under Section 3(2) (f) of the 1958 Act which should neither hinder the registration of the Judgment, nor is it a ground that can be accommodated under the general words in subsection 2(f). Therefore the Court below was not in error when it ordered that the Judgment of the English Court be registered.
This issue No. 4 is also resolved in favour of the Respondent and against the Appellant.
In the final analysis, with the resolution of all the four issues for determination in favour of the Respondent and against the Appellant, this appeal therefore lacks merit and it is hereby dismissed. The Ruling of the Court below delivered on the 1st day of March 2010 is hereby affirmed.
There shall be costs of N50, 000.00 (Fifty Thousand Naira) in favour of the Respondent and against the Appellant.
PAUL ADAMU GALINJE, J.C.A: I have read before now the judgment just delivered by my learned brother, Bada, JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
Section 3 (2) (a) – (f) of the Reciprocal Enforcement of Judgment Ordinance Cap 175 Laws of the Federation of Nigeria 1958, clearly provide for grounds upon which foreign judgment should not be registered. None of such grounds exist in the present case. Parties had agreed to submit any dispute arising from the contract which they executed to exclusive jurisdiction of the High Court of Justice in England for adjudication. This is the finding of the High Court of England in its judgment that was registered at the lower court. This finding has not been set aside by an Appellate Court in England. The Appellant therefore had no basis to ask the lower court to embark on a fresh trial by taking a look at the agreement.
With these few words and the more detailed reasons in the lead judgment, I too dismiss the appeal and endorse all the consequential orders made therein including order on cost.
REGINA OBIAGELI NWODO, J.C.A: I had the privilege to read in advance the judgment of my learned brother BADA JCA, just delivered. His lordship has lucidly dealt with all the issues raised and I agree with the reasoning contained therein, which I adopt and the conclusion arrived thereat. I hold the appeal is devoid of merit and is hereby dismissed. I abide by the order as to cost.
Appearances
OLUWOLE ALADEDOYE with him are A. BELGORE, T. OLUPITAN and IHEANYI UWA For Appellant
AND
CHIEF KANU AGABI SAN with him are EBENEZER OBEYA, AYO AKAM, RITA ODION, OKWA M. ENEBILI and CHUKS UDO-KALU For Respondent
