HEYDEN PETROLEUM LIMITED v. TOP LEADER SHIPPING INC
(2018)LCN/12080(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of October, 2018
CA/L/261/2016
RATIO
COURT AND PROCEDURE: THE ISSUE OF LOCUS STANDI
“This question glaringly raises the issue of locus standi, which the Court below regrettably side tracked and rather considered same as amounting to as an appeal or re – litigation of the merit of the case already determined by the foreign Court and holding that such an issue is outside the jurisdiction of the Court below. I think this is where both the Court below and the Counsel for the Respondent, with due deference to both, got it wrong and the Court below fell into grave error when it left the issue it was called upon to determine by the Appellant to determine what was not placed before it by the Appellant.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“Halsburys Laws of England (Fourth Edition) page 141 paragraph 153 states aptly inter alia that the objection that the foreign proceedings were contrary to natural justice (fair hearing. for example) may be taken in the country where the judgment has been registered even though it could have been or was taken before the original Court the judgment was entered citing in support the English case of Jet Holdings Inc. v. Patel [1990] 1 QB 335, (1989) 2 All ER 648, CA. It follows. in my modest opinion. following Halsbury’s Laws of England (supra) that an objection founded upon lack of notice or lack of an opportunity to be heard may be taken against a foreign judgment registered in this country, both on the ground of jurisdiction and substantial justice as lack of notice of the proceedings by non service of process affects the jurisdiction of the Court and goes to the doing of substantial justice vide Okoye and Anor. v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (pt.1110) 335 at 359 – 360.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
IN THE MATTER OF THE RECIPROCAL ENFORCEMENT OF JUDGMENT ORDINANCE CAP 175, LAWS OF THE FEDERATION OF NIGERIA 1958
AND
IN THE MATTER OF THE JUDGMENT OF THE HIGH COURT OF JUSTICE OF ENGLAND QUEENS BENCH DIVISION OBTAINED IN CLAIM MP 2014 FOLIO 482, DATED 29TH APRIL, 2014
HEYDEN PETROLEUM LIMITED Appellant(s)
AND
TOP LEADER SHIPPING INC Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the Federal High Court, Lagos Judicial Division; Coram: Saliu Saidu J., in Suit No: FHC/CP/1789/2014: Top Leader Shipping Inc V. Heyden Petroleum Limited delivered on 27/1/2016, in which the application by the Appellant to set aside the registration of a foreign judgment entered in favor of the Respondent was dismissed for lacking in merit.
The Appellant was dissatisfied with the ruling of the Court below and had promptly appealed to this Court vide a notice of appeal filed on 12/2/2016 on two grounds at pages 68 – 70 of the record of appeal. The record of appeal was duly transmitted to this Court on 8/3/2016. The additional record of appeal was transmitted to this Court on 20/9/2017. The Appellant’s brief was filed on 27/6/2017 but was deemed on 17/9/2018. The Respondent’s brief was filed on 30/10/2017 but was deemed on 17/9/2018. The Appellant’s reply brief was filed on 28/3/2018 but was deemed on 17/9/2018. On 30/12/2017, the Respondent filed a Notice of Preliminary Objection against the competence of the appeal.
At the hearing of the Appeal on 17/9/2018, Toluwani Adebiyi Esq., learned counsel for the Appellant, adopted the Appellant’s brief and Appellant’s reply brief as his arguments and urged the Court to allow the appeal and set aside the ruling of the Court below. On his part, Femi Adenitire Esq., learned counsel for the Respondent adopted the Respondent’s brief as his arguments in support of the preliminary objection and in opposition to the appeal and urged the Court to dismiss the appeal and affirm the ruling of the Court below.
BRIEF STATEMENT OF FACTS
The gist of the case of the Appellant as can be gleaned from the affidavit and documentary evidence in the record of appeal was that a foreign judgment was obtained by the Respondent against the Appellant on a contract of carriage of goods entered into between the Appellant as Charterer and one Atlantic Management SA as Owner MV Emantha (Vessel) as contained in the Charter recap fixture dated 1/4/2013. The Respondent a stranger to the said contract had commenced an arbitration proceeding against the Appellant in London and obtained an award, which was subsequently entered as a judgment of the Queen’s Bench of the High Court of Justice of England. The Respondent never had transaction or dealing with the Appellant in respect of the Charter contract and was also never referred to as Vessel Owner or Principal of any Agent. In the circumstances, the Appellant ignored the proceedings commenced by a stranger that never had any dealings with it, more so when all payments involved in the course of the charter contract were to be paid as between the Appellant and Atlantic Management SA.
In the arbitral proceedings the Respondent concealed the charter party recap fixture showing the proper parties to the Charter agreement and succeeded in misleading the Arbitrator with deceit and misrepresentation that it was owner of the Vessel and that Atlantic Management S.A, was merely the manager of the Vessel and obtained an arbitral award against the Appellant, which was subsequently entered as the judgment of the High Court of England. The Respondent sought and obtained the order of the Court below registering the said foreign judgment for the purposes of enforcing it against the Appellant. Upon service of the Notice of Registration made on the orders of the Court below, the Appellant applied to the Court below to set aside the registration of the said foreign judgment on the ground that it was a judgment obtained by a non party to a contract without the requisite locus standi which rendered the foreign Court incompetent to have entertained the action filed by the Respondent, being one of the grounds provided for by the 1958 Ordinance for setting aside the registration of a foreign judgment. The application was duly heard and dismissed by the Court below contrary, in the Appellant’s contention, to Section 3(2)(b) of the 1958 Ordinance, hence the appeal. See pages 1 – 22 and 25 of the record of appeal.
On the other hand, the gist of the case of the Respondent as can be gleaned from the Petition and supporting affidavit evidence to register the foreign judgment against the Appellant was that by a Petition Ex – parte and other accompanying processes filed on the 24/11/2014, the Respondent, as Judgment Creditor, sought an order of the Court below to register the Final Arbitral Award made in the London Maritime Arbitrators Association Small Claims Procedure on 27/11/2013 by the Sole Arbitrator, one Edward Mocatta in line with the agreement of the parties and which arbitral award was on 29/4/2014 duly entered as the judgment of the Queen’s Bench of the High Court of Justice, England in Claim No. 2014 Folio 482 by the Hon Mr. Justice Field as the judgment of the Federal High Court pursuant to Rule 9 & 10 of the Reciprocal Enforcement of Judgment Rules Cap. 175, Laws of the Federation of Nigeria 1958.
The Petition Ex – parte was heard and granted by the Court below on 24/11/2014 and a Notice of Registration was filed on 17/2/2015 and duly served on the Appellant. In response, the Appellant had applied to set aside the registration of judgment. The Appellant filed a Court affidavit to the application disclosing the proceedings in the arbitration leading to the arbitral award in which the Respondent was referred to as the owner of the charter Vessel. The application was duly heard and rightly, in the contention of the Respondent, dismissed by the Court below for lacking in merit. See pages 3 – 7, 8 – 19, 20 – 21, 22 – 33, 36 – 38, 39 – 54 and 55 – 57 of the record of appeal. See also page 22 of the additional record of appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, a sole issue was distilled as arising for determination from the two grounds of appeal, namely:
Whether this foreign judgment is a proper one to be registered when the action was instituted by an unknown party to the evidence of contract, and going by Section 3(2) (a) and (b) of the 1958 Ordinance.
In the Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether or not the lower Court was right to permit the registration of a foreign arbitral award and judgment made in the Respondent’s favor? (Distilled from Ground one)
2. Whether or not the lower Court was right to decline jurisdiction to review the decision of a foreign arbitral award and judgment? (Distilled from Ground two)
I have taken time to review the entirety of the affidavit and documentary evidence in this appeal as revealed in the record of appeal and additional record of appeal. I have also taken time to consider the submissions of counsel in their respective briefs in the light of the decision of the Court below refusing to set aside the registration of the foreign judgment as sought for by the Appellant and I am of the view that the only issue arising for determination in this appeal is the sole issue as distilled in the Appellant’s brief as will be slightly modified. In my view a consideration of this sole issue would invariably involve a consideration of the two issues as distilled in the Respondent’s brief. I shall therefore, proceed to consider and resolve the sole issue but first there is a Notice of Preliminary Objection filed by the Respondent against the competence of this appeal, which being an issue of competence must be considered and resolved one way or the other first and I proceed to do so anon!
NOTICE OF PRELIMINARY OBJECTION
By a notice of preliminary objection filed on 13/12/2017, the Respondent is challenging the competence of the two grounds of appeal as well as the sole issue for determination in the Appellant’s brief of argument on the grounds that the two grounds of appeal do not arise or flow from the decision of the Court below and are both incompetent. Consequently, the sole issue distilled from the two incompetent grounds of appeal was also incompetent and ought to be struck out.
RESPONDENT’S COUNSEL SUBMISSIONS
Learned Counsel for the Respondent referred to the two grounds of appeal and had submitted that in law an appeal must challenge the ratio of a decision of a Court and not the remarks or comments contained therein and contended that for a ground of appeal or issue for determination to be competent, it must flow from the ruling appealed against and urged the Court to hold that grounds 1 and 2 in the Notice of Appeal filed by the Appellant do not arise or flow from the decision of the Court below since there was nowhere in the said ruling where it was held that a non-party to a contract as evidenced by the Charter party agreement (recap) can enforce it and to strike out the two grounds of appeal. Counsel relied on Chukwu & Ors V. MTN (Nig) Comm. Ltd & Anor (2016) LPELR – 41053 (CA); Omega Bank Plc V. Government of Ekiti State (2007) All FWLR (Pt. 386) 658 @ pp. 687 – 688; Amobi V. Nzegwu & Ors (2013) LPELR 21863 (SC) @ pp. 40 – 41; Ahmad Damzomo V. Musa & Anor. (2013) LPELR – 20761(CA); Kotoye V. Saraki (1992) 11 – 12 SCNJ (Pt. 1) 26.
It was further submitted that it is only from a competent ground of appeal that an issue for determination could be distilled and contended that the sole issue in the Appellant’s brief having been distilled from the two incompetent ground is in law incompetent and urged the Court to strike out both the two grounds of appeal as well as the sole issue for determination and to strike out the appeal for being incompetent. Counsel relied on Olufeagba V. Abdulraheem (2010) All FWLR (Pt. 512) 1034; Tahir & Anor. V. BON Ltd (2006) LPELR – 11654 (CA); Okparanta V. Elechi (2007) All FWLR (Pt. 358) 1185; Dalek (Nig) Ltd V. OMPADEC (2007) 7 NWLR (Pt.1033) 402 @ p. 430; Elemchukwu Ibator & Ors V. Chief Beli Barakuro & Ors (2007) LPELR – 1384(SC); Njemanze V. Njemanze (2013) LPELR – 19885 (SC); Obi – Odu V. Duke (2006) 1 NWLR (Pt. 961) 375.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
Learned Counsel for the Appellant had submitted that the two grounds of appeal are complaints directed at the perverse findings of the Court below, which decision runs contrary to the succinct provisions of Section 3 (2) (a) of the 1958 Ordinance and contended that such grounds of appeal challenging the reasoning and findings in the ruling of the Court below are competent and urged the Court to overrule the misconceived preliminary objection of the Respondent. Counsel referred to Section 3(2)(a) of the Reciprocal Enforcement of Judgment Ordinance, Cap 175, Law of the Federation of Nigeria, 1958.
It was further submitted that the case of the Appellant before the Court below was that the Respondent was a stranger to the Charter contract between the Appellant and Atlantic Management SA and therefore, was not entitled by law to commenced any action in Court in England against the Appellant and contended that the decision of the Court refusing the application clearly amounted to an affirmation that the Respondent, a non-party to the Charter contract, has the locus standi to enforce an agreement to which it was not a party, which forms the basis of the complaint in the grounds of appeal and urged the Court to hold that the grounds of appeal flow directly from the reasons and decisions of the Court below and thus competent and that at any rate a preliminary objection is inappropriate where the objection is only against some of the grounds of appeal and not against the hearing of the appeal itself. Counsel relied on Adejumo V. Olawaiye (2014) 12 NWLR (Pt.1421) 252; General Electric Co. V. Akinde (2010) 18NWLR (pt 1225) 596; Adegbuyi V. APC (2015) 2NWLR (Pt1442) 1; Silencer & Exhaust Pipes Co. V. Farah (1998) 12 NWLR (Pt. 579)1; Babba V. Tafashiya (1999) 5 NWLR (Pt. 603) 468; Audu V. Gideon (2015) 12 NWLR (Pt. 1474) 495
It was also submitted that from the facts of this appeal it is clear that the grounds of appeal show good cause why the appeal should be heard and contended that the Rules of this Court do not require that the grounds of appeal should succeed but rather that the grounds of appeal should show good cause why the appeal should be heard, so long a substantial issue is raised and contended that the issue of jurisdiction raised by the appeal is a fundamental issue for which this appeal should be heard and the preliminary objection overruled. Counsel referred to Section 3(2)(a) of the 1958 Ordinance and relied on Ngere V. Okuruket XIV (2014) 11 NWLR (Pt. 1417) 147; C.G.G (Nig) Ltd V. Aminu (2015) 7 NWLR (Pt. 1459) 577; British Airways V Atoyebi (2006) 1 ALRN (Pt.1) page 23 @ p. 32; Ogboru V. Ibori (2006) 7 NWLR (Pt. 1000) 342; Ogunbi V. Kosoko (1991) 8 NWLR (Pt. 211) 616; Ekanem V. Akpan (1991) 8 NWLR (Pt. 211) 616; Ezegbu V. FATB (1992) 1 NWLR (Pt. 220) 699; Panache Communications Ltd V. Aikhomu (1994) 2 NWLR (Pt. 327) 420.
RESOLUTION OF PRELIMINARY OBJECTION
My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer hold sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled. See Madukolu V. Nkemdilim (1962) 1 All NLR 587. See also P. E. Ltd. V. Leventis Trading Co. Ltd. (1992) 6 SC. (Pt. 1)1 @ pp. 27 – 28; Dangana & Anor. V. Usman & Ors. (2012)2 SC (Pt. 1)3.
A preliminary objection that an appeal should not be heard and determined on the merit is a serious issue and if founded on grounds alleging incompetence of the appeal it should be taken seriously and considered and resolved one way or the other since without competence there is really no basis for adjudication and decision on the merit by a Court. Thus an issue bordering on the competence or incompetence of the entire grounds of appeal in an appeal is one which can validly be raised by means of a notice of preliminary objection and not by way of motion of notice. In the instant appeal, there are only two grounds of appeal both of which are being challenged as to their competence by the Respondent and therefore, the contention by the Appellant’s Counsel that the challenge ought to have been by way of a motion on notice and not by means of a notice of preliminary objection is not well founded and consequently hereby discountenanced. See Odunukwe V. Ofomata (2010) 18 NWLR (P. 1225) 404. See also Lafia Local Government V. Nasarawa State Government (2012) 17 NWLR (Pt. 1328) 124.
In Inspector Isa Sarki V. John Lamela (2016) LPELR 40338 (CA), I had reiterated the above position of the law inter alia thus:
”It is the law that where the purpose of an objection is merely to challenge some of the grounds of appeal and not the competence of the entire appeal, the best procedure is by way of a motion on notice since its success would not in an way terminate the entire appeal in limine. On the other hand, where the purpose of an objection is to terminate in limine the entirety of the appeal, the best procedure is by way of a notice of preliminary objection challenging the competence of the entire appeal.”
In considering the preliminary objection of the Respondent challenging the competence of the entire two grounds of appeal in this appeal, I have taken a calm look at both grounds of appeal in the light of the decision of the Court below being appealed against together with the grounds for the preliminary objection, and I thought I should observe from the onset that while the principal purpose of a ground of appeal is to give notice to the other party and the Court of the nature of the grouse or complaint which the Appellant has against the decision of the lower Court and as long as it flows from or is related to and or connected to the issues in the decision complained against, then it would be said to be competent, notwithstanding how inelegant, perhaps, it may have been couched, after all a litigant does not couch grounds of appeal, his counsel does and he should not unnecessarily be penalized for inelegant drafting or couching by his counsel. See Adegbuyi V. A.P.C (2015) 2NWLR (Pt. 1442) 1. See also Silencer & Exhaust Pipes Co V. Farah (1998) 12 NWLR (Pt. 579); Babba V. Tafashiya (1999) 5 NWLR (Pt. 603) 468; Audu V. Gideon (2015) 12 NWLR (Pt. 1474) 495.
Thus, in law the foundational objectives of grounds of Appeal is to notify the other party of the nature of the case he would meet in the appeal and once what the Appellant is appealing against is discernible, the Court would be reluctant to accede to a request to summarily terminate the appeal at the behest of the Respondent since to do so may and in most cases would amount to a denial of both the right of appeal and fair hearing of the Appellant as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This would then relate back to the issue earlier addressed in this judgment, the need to allow mere technical justice ride roughshod over and above substantial justice. See British Airways V. Atoyebi (2006) 1 ALRN (Pt.1) 23 @ p. 32 per Saulawa, JCA. See also Ogboru V. Ibori (2006) 7 NWLR (Pt. 1000 342; Ogunbi V. Kosoko (1991) 8 NWLR (Pt. 211) 616; Ekanem V. Akpan (1991) 8NWLR (Pt. 211) 616; Ezegbu V. FATB (1992) 1NWLR (Pt. 220) 699; Panache Communications Ltd V. Aikhomu (1994) 2NWLR (Pt. 327) 420.
Having observed as above, I am aware, and it is the law, that a ground of appeal must challenge the ratio of a decision of a Court appealed against in order to be valid and competent. It cannot be mere attack on side remarks or side comments commonly referred to as ‘obiter’ since if it does, it would be rendered incompetent. Thus, for a ground of appeal to be valid and competent, it must flow from the decision appealed against and there is no middle course on this settled position of the law. See Chukwu & Ors V. MTN (Nig) Comm Ltd & Anor (2016) LPELR – 41053 (CA). See also Omega Bank Plc V. Government of Ekiti State (2007) All FWLR (Pt. 386) 658 @ pp. 687 – 688; Amobi V. Nzegwu & Ors (2013) LPELR 21863 (SC) @ pp. 40 – 41; Ahmad Damzomo V. Musa & Anor. (2013) LPELR – 20761(CA); Kotoye V. Saraki (1992) 11 – 12 SCNJ (Pt. 1) 26.
It is also the law, when it comes to formulation of issues for determination in an appeal, that it is only from a competent ground or grounds of appeal that a valid issue for determination could be distilled. Thus, an issue for determination distilled from an incompetent ground of appeal as well as an issue not arising from any valid ground of appeal is incompetent and liable to be struck out or simply discountenanced by the Court. See Olufeagba V. Abdulraheem (2010) All FWLR (Pt. 512) 1034; Tahir & Anor. V. BON Ltd (2006) LPELR – 11654 (CA); Okparanta V. Elechi (2007) All FWLR (Pt. 358) 1185; Dalek (Nig) ltd V. OMPADEC (2007) 7 NWLR (Pt.1033) 402 @ p. 430; Elemchukwu Ibator & Ors V. Chief Beli Barakuro & Ors (2007) LPELR – 1384(SC); Njemanze V. Njemanze (2013) LPELR – 19885 (SC); Obi – Odu V. Duke (2006) 1 NWLR (Pt. 961) 375.
I have taken a second look at the two grounds of appeal, the grounds for the application and supporting affidavit and processes filed by the Appellant before the Court below and the decision of the Court below refusing the application by the Appellant to set aside the registration of the foreign judgment and it does appear to me that the two grounds of appeal squarely challenged the decision of the Court below refusing to accede to the ground of the application which raised the issue of the locus standi of the Respondent to have commenced the action in England against the Appellant over a charter contract the Appellant alleged the Respondent was a stranger to and the resultant challenge on the jurisdiction of the foreign Court to have heard and determined the action against the Appellant.
In my finding, without delving into the merit or otherwise, these two grounds which challenged the findings to the contrary by the Court below flow directly from the decisions appealed and consequently very valid and competent in law contrary to the vehement but certainly lacking in substance contentions of the Respondent in the preliminary objection. In law, once the grounds of appeal are competent, and the issue for determination flows from them, such issues would be held to be valid and competent to be heard and resolved on the merit. In the instant appeal, the sole issue as distilled in the Appellant’s brief flows directly from the two grounds of appeal, which I have already found are competent, and is thus valid and competent in law. In the circumstances therefore, I find no merit in the preliminary objection and same is hereby dismissed.
SOLE ISSUE
Having regard to the state of the affidavit evidence of the parties, whether the Court below was right when it dismissed the Appellant’s application to set aside the registration of the foreign judgment by the Court below?
APPELLANT’S COUNSEL SUBMISSIONS
On the sole issue learned Counsel for the Appellant had submitted that by its decision refusing to set aside the registration of the foreign judgment, the Court below held that the Respondent as indicated in the Arbitral award as the Vessel Owner has the right to apply for the registration of the foreign judgment in Nigeria and contended that such a decision was not only in error but readily negates the charter party recap fixture as entered into between Atlantic Management S.A as the owners and the Appellant as the Charterer and urged the Court to hold that in law the sole authority to demand and ask for registration of the Foreign Judgment in Nigeria Court is the Owner of the Vessel as indicated in the Charter party contract, which is Atlantic Management SA and not the Respondent, a stranger to the said contract, which had sought and obtained the registration of the said foreign judgment entered without jurisdiction. Counsel referred to Section 3(2)(a) of the 1958 Ordinance and relied on Ajaguba & Co. V. Gum Nig. Ltd (2005) All FWLR (Pt. 265) 1219; Madukolu V. Nkemdilim (1962) All NLR 587; SLB Consortium Ltd V. NNPC (2011) NWLR (Pt. 1252) 317 @ p. 335.
It was further submitted that an application to set aside a foreign judgment granted by a Court without jurisdiction does not amount to re-litigation as erroneously held by the Court below and contended that issues of jurisdiction can in interest of justice even be raised suo motu and urged the Court to hold that the Respondent, a stranger to a contract, instituting an arbitration proceeding against the Appellant render such a proceeding improper as well as fraudulent and thus depriving the Respondent of any authority to enforce a contract to which it was not a party and also lacks the right to request for the registration of such a foreign judgment. Counsel relied Thomas V. Olufosoye (1986) 1 NWLR (Pt. 18) 680 @ pp. 682- 683.
It was also submitted that on the terms of the charter contract as to the parties, the Appellant has no obligation towards the Respondent, a non party thereto, and contended that the issue of the competence of the Respondent to institute an action to enforce a contract to which it was not a party is a jurisdictional issue which goes to the root of the matter and thereby affecting the jurisdiction of the Court since in law under privity of contract a party not known to a contractual agreement cannot sue or be sued on it even where it was made for the benefit of such a non party. Counsel relied on Makwe V. Nwukor (2001) 14 NWLR (Pt. 733) 356 @ p. 372; Ezeafulukwe V. John Holt Ltd (1996) 2 NWLR (Pt. 432) 511 @ p. 522.
It was also further submitted that on the face of the parties to the charter party recap fixture. The Respondent, a non party thereto, lacked the locus standi to institute and maintain any action against the Appellant and therefore, any proceedings and or judgment at the instance of the action of the Respondent against the Appellant over the said charter party contract being one reached without jurisdiction is a nullity and cannot therefore, in law be registered in Nigeria as a foreign judgment and urged the Court to allow the appeal, set aside the decision of the Court below refusing to set aside the registration of the said foreign judgment and to proceed to set aside the registration of the said foreign judgment delivered by a foreign Court without jurisdiction. Counsel referred to Section 3 (2) (a) of the 1958 Ordinance and relied on Thomas V. Olufosoye (1986) 1 NWLR (Pt. 8) 669 @ pp. 682 – 683; SLB Consortium Ltd V. NNPC (2011) NWLR (Pt. 1252) 317 @ p. 335.
RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, whether or not the Court below was right to permit the registration of a foreign arbitral award and judgment made in the Respondent’s favor, learned Counsel for the Respondent had submitted that in the law applicable to the application for registration and enforcement of foreign judgments in Nigeria, particularly foreign judgments obtained from the High Court of Justice, Queens Bench Division in England is the Reciprocal Enforcement of Judgments Ordinance, Cap 175, Laws of the Federation of Nigeria, 1958 and contended that an application to set aside the registration of a foreign judgment in Nigeria must be based on the grounds as set out in the said Act and urged the Court to hold that these grounds, which are alternative, cannot be combined since in law the word ‘or’ used in between the grounds is disjunctive and not conjunctive as erroneously sought to be done by the Appellant. Counsel referred to Section 3(2)(a) – (f) of the 1958 Act and relied on Conoil Plc. V. Vitol S. A (2012) 2 NWLR (Pt. 1 283) 59; Witt & Busch Ltd V. Dale Power Systems Plc (2007) 17 NWLR (Pt. 1062) 1; Atiku Abubakar V. Aihaji Umaru Musa Yar’ Adua & Others (2008) 19 NWLR (Pt. 1120) 1 @ p. 83.
It was further submitted that the Nigerian Court will hold that a foreign Court does not have jurisdiction where the commencement of the proceedings in the original Court was contrary to an agreement by the parties under which the dispute in question was to be settled and that any other Court except that as agreed by the parties will not have jurisdiction and contended that in the instant appeal in Clause 41 of the Charter party agreement, also referred in the Final Award, any disputes arising from the Charter party agreement shall be decided by the English Courts and urged the Court to hold that the Appellant having agreed to submit to the laws of England and the jurisdiction of the English Court cannot now be heard to contend that the foreign Court had no jurisdiction and that under Section 3(2) (a) of the 1958 Act, the Court below ought not to have registered the foreign final arbitral award and order of the Queen?s Bench Division of the High Court of Justice, Commercial Division, England dated 29/4/14 and to affirm the correct refusal of the Court below to set aside the registration of the foreign judgment. Counsel relied on Conoil Plc V. Vitol S. A (2012) 2 NWLR (Pt. 1 283) 59; Grosvenor Casino Ltd V. Halaoui (2009) 10 NWLR (Pt. 309) 337; Witt & Busch Ltd V. Dale Power Systems Plc (2007) 17 NWLR (Pt. 1062) 1.
On his issue two, whether or not the Court below was right to decline jurisdiction to review the decision of a foreign arbitral award and judgment, it was submitted that in law the question of the jurisdiction of the Court touches on the competence of the Court to hear and determine a cause or matter before it and thus fundamental to the adjudication and determination of the cause before the Court and contended that the Court below lacks the jurisdiction to review the foreign judgment as was sought for by the Appellant and rightly declined the invitation to do so without any jurisdiction and urged the Court to hold that the Court below was right when it held that the Federal High Court does not have appellate jurisdiction over the decisions of foreign Courts and cannot validly consider the merits of the decisions of the foreign Court’s decision since in law in an application for registration of foreign judgment it is not the duty of the Court to sit as an appellate Court over the foreign judgment and the Respondent to the judgment sought to be registered is expected to exercise its right of appeal under the laws of the foreign Court. Counsel relied on SLB Consortium Limited V. NNPC (2011) 9 NWLR (Pt. 1252) @ pp. 329 – 330; See Godwin V. Okwey (2010) 5 – 7 (Pt. 111) MJSC 206; Multi Choice Nigeria Limited V. Hon. Jerry Akpan (2014) LPELR – 22681(CA); Witt & Busch Ltd V. Dale Power Systems Plc (2007) 17 NWLR (Pt. 1062) 1; Conoil Plc V. Vitol S. A (2012) 2 NWLR (Pt. 1 283) 59.
It was further submitted that Nigerian Courts will not be seised of matters that occurs outside their territorial or geographical jurisdiction and contended that the application by the Appellant, rather than go to England and appeal over the said foreign judgment if it so desire, merely sought the Court below to inquire into the merits of the foreign final arbitral award and the Order made in English Court, which the Court below lacks the jurisdiction to sit as an appellate Court over the said foreign final arbitral award and foreign judgment to determine the merits since it does do not have the territorial jurisdiction over judicial proceedings in the United Kingdom and urged the Court to affirm the decision of the Court below. Counsel relied on Witt & Busch Ltd v. Dale Power Systems Plc (Supra); Conoil Plc V. Vitol S. A (supra); Ibori V. FRN (2009) 3 NWLR (Pt. 1128) 247; Idemudia V. Igbinedion University Okada & Ors (2015) LPELR – 24514(CA); Sundersons Ltd & Anor V. Cruiser Shipping Pte Ltd & Anor (2014) LPELR – 22561 (CA); The Minister of Works and Housing V. Alhaja Kuburat Shittu & Ors (2007) LPELR – 8751 (CA)
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned Counsel for the Appellant reiterated his earlier submissions on the locus standi of the Respondent to institute the proceedings over the Charter party contract over which it was a stranger and submitted that the Court below erred when it closed its eyes to the clear provisions of Section 3(2)(a) of the 1958 Act by which it ought to have set aside the registration of the arbitral award and the foreign judgment and contended that in law a decision of a trial Court is perverse when it ignores or closes its eyes to the obvious, thus resulting in a miscarriage of justice to the affected party and urged the Court to interfere with the said perverse findings and set aside the judgment of the Court below. Counsel relied on Momoh V. Umoru (2011) 15 NWLR (Pt. 1270) 217; Onu V. Idu (2006) 12 NWLR (Pt. 995) 657; Obi V State (2013) 5 NWLR (Pt. 1346) 68; Chukwu V State ((2007) 13 NWLR (Pt. 1052) 430; Queen V. Ogodo (1961) 2 SCNLR 366; Mogaji V. Odofin (1978) 4SC 91; Chevron Nig Ltd V. Omoregha (2015) 16 NWLR (Pt. 1485) 336; Udengwu V Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Atolagbe V. Shorun (1985) 1 NWLR (Pt. 20) 360; Adimora V. Ajufo (1988) 3 NWLR (Pt. 80)1; Overseas Const. Co (Nig) Ltd V. Creek Ent. (Nig) Ltd (1985) 3 NWLR (Pt. 143) 407; Moghalu V. Wobo (2004) 17 NWLR (Pt. 903) 465.
RESOLUTION OF SOLE ISSUE
My lords, the resolution of the sole issue for determination would fall squarely on the interpretation of the provisions of Section 3(2)(b) of the Reciprocal Enforcement of Judgments Ordinance, Cap 175, Laws of the Federation of Nigeria, 1958 relied upon by the Appellant in its application before the Court below to set aside the registration of the foreign arbitral award and judgment of the English Court, which provides that a registered judgment must be set aside if the registering Court is satisfied inter alia that: ”(b). the Courts of the Country of the original Court had no jurisdiction in the circumstances of the case.”
The Appellant had upon being served with the Notice of Registration of foreign judgment, approached the Court below by means of an application supported by affidavit seeking an order of Court setting aside the registration of the foreign judgment principally on the ground that the Respondent, who had obtained the order of registration of the foreign judgment lacked the locus standi to have instituted the arbitration leading to the award and judgment in that it was not a party to the charter party agreement it sought to enforce against the Appellant in England and thereby robbing the English Court of any jurisdiction. The grounds of the application were thus that: 1. The Court of the Country of the original Court had no Jurisdiction in the circumstances of the case, 2. The rights under the judgment as evidenced by the charter – party Agreement are not vested in the person by whom the Application for registration was made. See page 12 of record of appeal.
The application was supported by an affidavit of 10 paragraphs deposed to by Toluwani Adebiyi, of Counsel for the Appellant stating inter alia: That there was a contract of carriage of goods predicated upon the Charter – Party Agreement dated 01/4/2013 as in HFJ; That the said agreement and transfer of funds were between one Atlantic Management SA (Atlantic), as Owners and the Appellant, Heyden Petroleum Ltd, as the Charterers as in Exhibits HFJ2; and therefore, that the Respondent, Top Leader Shipping Inc, was a stranger to the Charter – Party Agreement and thus the Appellant has no obligation whatsoever to the stranger, Respondent, which in turn has no rights or authority to demand for anything from the Appellant under the terms of the said Charter Party Agreement; and that by reason of these facts the foreign Court had no jurisdiction to have entertained an action instituted to enforce a contract by a person who is a complete stranger to the contract. See pages 14 – 16 of the record of appeal.
In opposition, the Respondent filed a counter affidavit of 4 paragraphs deposed to by one Oloruntoba Sogunro, a litigation officer in Respondent’s counsel law firm, wherein he denied paragraphs 4, 5, 6, 7, 8 and 9 of the Affidavit in Support and stated inter alia that: in the Arbitral Award registered by the Court below the Respondent, being the Judgment Creditor was identified as the ‘Owners’; that in the Arbitral Award, Exhibit OS1, registered by the Court below Court one Atlantic Management SA was indentified merely as the technical and commercial manager of the Vessel and not as the Owners and that at any rate the Appellant, the Judgment Debtor, has not appealed against the Arbitral Award. See pages 39 – 40 of the record of appeal.
My lords, it was on the strength of the above pieces of affidavit and documentary evidence of the parties that the Court below on 27/1/2016 had, in its ruling dismissing the Appellant’s application to set aside the registration of the foreign judgment, held inter alia thus:
”I have raised a sole issue for determination, which is: ‘Whether the Judgment Debtor/Applicant is entitled to the relief sought.’ The Judgment Debtor/Applicant has questioned the jurisdiction of this Court to have granted the registration of the foreign judgment of the High Court of England dated 29/4/14? Now to the other ground application, that the rights under the judgment as evidenced by the Charter-Party Agreement are not vested in the person by whom the application registration was made. It is crystal clear from the Arbitration final award that the parties therein is Top Leader Shipping Inc. of Marshall Islands as Claimant and Heyden Petroleum Ltd of Nigeria as Respondents. Top Leader Shipping Inc. of Marshall Islands was described as the owners of MV Emantha (Vessel), while the Atlantic management SA was the technical and commercial manager of the vessel. Also by the Order of the High Court of Justice, Queen Bench Division, commercial Court dated 29/4/14, the Claimant is described as Top Leader Shipping Inc while Heyden Petroleum Ltd is described as Defendant, If the judgment Debtor/Applicant has any issue as to the proper parties before the decision in England, it ought to have objected or gone on appeal against the order of the Court in England. The Federal High Court does not have appellate jurisdiction over decisions of foreign Courts and cannot validly consider the merits of the Foreign Court’s judgment. I hereby refuse to set aside the registered Arbitral Award dated 27/11/13 and the Order of the High Court of Justice, Queens Bench Division, Commercial Division, England dated 29/4/14.” See pages 61 – 67 of the record of appeal.
The proceedings leading to this appeal were initially commenced by the Respondent vide a Petition Ex – Parte filed before the Court below seeking to register the arbitral award made on 27/11/2013 in favor of the Respondent in the London Maritime Arbitrators Association Small Claims Procedure (LMAA SCP) against the Appellant in the sum of USD$35,116.75 together with interest compounded at three Monthly breaks, at the rate of 5% from 1st June 2013 until payment; as well as GBP 3,250 together with interest at the rate of 5% per annum, compounded at three monthly breaks running from 1st October 2013 until payment, which arbitral award was on 29/4/2014 entered as the judgment of the Queen’s Bench Division of the High Court of Justice of England and that the said judgment debt had remained unsatisfied by the Appellant, judgment debtor.
The Petition was supported by an affidavit of 12 paragraphs deposed to by one Biola Ogundare of counsel in Respondent’s Counsel law firm, stating inter alia that the foreign judgment should be registered by the Court below for the following reasons: the Judgment Debtor voluntarily agreed to submit to the jurisdiction of the High Court of England; the Judgment sought to be registered was not obtained by fraud on the part of the Judgment Creditor; that the Judgment Debtor was duly served with the processes of the original Court; there is no reasons of public policy that would require the said Award & Order not to be registered and that the rights sought to be enforced by registration are vested in the Petitioner on whose behalf the claims were brought. The Petition ex – parte was heard and granted and the foreign judgment registered by the Court below. See pages 3 – 5 and 12 of additional record of appeal.
In Nigeria, registration of foreign judgment, including arbitral award is governed by the provisions of Reciprocal Enforcement of Judgments Ordinance, Cap 175, Laws of the Federation of Nigeria, 1958. Generally, the powers of the Courts are limited by their territorial boundaries or jurisdiction. Thus a judgment pronounced by the Court of one jurisdiction may have no force or effect beyond its own territory except in situations where other jurisdictions have agreed to allow such judgment enforceability within their own territories presumably through reciprocal agreements to that effect based principally on principles of reciprocity and obligation. See Schibsby V. Westenholz (1870) LR 6 QB 155 @ p. 159. See also Adams V. Cape Industries Plc (1990) Ch. 433.
However, there are two principal statutes regulating the enforcement of foreign judgments in Nigeria, namely; Reciprocal Enforcement of Foreign Judgments Ordinance, Cap 175, Laws of the Federation of Nigeria and Lagos, 1958 (the 1958 Ordinance) and Foreign Judgments (Reciprocal Enforcement) Act, Cap 152, Laws of the Federation of Nigeria, 1990. See Dale Power Systems Plc V. Witt & Busch Ltd. (2001) 8 NWLR (Pt. 716) 699. See also Halaoui V. Grosvernor Casinos Limited. (2002) 17 NWLR (Pt. 795) 28; Macaulay V. R.Z.B. Austria (2003) 18 NWLR (Pt.852) 282.
By virtue of these legislations in order for a foreign judgment to be enforceable in Nigeria, it must have been pronounced by a superior Court of the country of the original Court. Thus to qualify for registration, the foreign judgment must be a money judgment and must be for a sum certain which can be by ascertained by simple mathematical process. Furthermore, the judgment must be final and conclusive as between the parties thereto. See Section 2(1) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap 152, Laws of the Federation of Nigeria, 1990. See also Section 3(2)(b) of the 1990 Act; Beatty V. Beatty (1924) 1 KB 807 CA; Nouvion V. Freeman (1889) 15 AC 1 @ p. 14.
Thus, in law a judgment which is capable of being varied or rescinded by the Court that gave it is not registrable. A judgment shall also not be registered if at the date of the application for registration the judgment has been wholly satisfied (paid) by the judgment debtor or if the judgment could not be enforced by execution in the original Court. To be registrable, the sum payable under the judgment must be expressed in Naira and if the judgment sum is expressed in a currency other than the Naira, the law requires the sum to be converted into the Naira at the rate of exchange prevailing at the date of judgment. Thus, if at the date of the application for registration, the judgment of the original Court has been partly satisfied, the judgment will be registered in respect of the balance due only and not the whole sum. Upon registration, a registered judgment has the same force and effect as the original judgment and proceedings may be taken on it but the registering Court has the same control over execution, as if the registered judgment had been one originally given by the registering Court and entered on the date of registration. See the proviso to Section 4 of the 1990 Act; See also Section 4(3); 4(4) and 7(4) of the 1990 Act; Dicey and Morris, the Conflict of Laws 3rd Edition Vol. 1 @ p. 191; Ferdinand Wagner V. Laubscher Brothers & Co (1970) 2 All ER 174 @ p. 175; Adwork Ltd. V. Nigeria Airways Ltd. (2000) 2 NWLR (Pt. 645) 415 @ pp. 429 – 430.
It is of great importance to observe that to be registrable, the sum payable under the judgment must be expressed in Naira. If the judgment sum is expressed in a currency other than the Naira, the law requires the sum to be converted into the Naira at the rate of exchange prevailing at the date of judgment. However, if at the date of the application for registration, the judgment of the original Court has been partly satisfied, the judgment will be registered in respect of the balance due only and not the whole sum. Submission to Jurisdiction. The issue of enforcement in Nigeria can only arise if the judgment debtor submitted to the jurisdiction of the foreign Court and a Defendant would be taken to have submitted to the jurisdiction of the foreign Court if he files an unconditional appearance or if he moved that Court to set aside a default judgment and at the same time applied for an order that the Claimant deliver a statement of claim and when he applied for an order for security for cost. See Halaoui V. Grosvernor Casinos Limited. (2002) 17 NWLR (Pt. 795) 28.
Now, while the Court below has the plenitude of powers to register a foreign judgment in Nigeria pursuant to the relevant provisions of the applicable legislations, it also reserves the powers under the said laws to set aside registration under Section 3(2)(b) of the 1958 Ordinance if, on an application to set aside the registration of a foreign judgment it is shown amongst others grounds that the original Court in the foreign Country had no jurisdiction in the circumstances of the case. However, where registration of a foreign judgment is set aside solely on the ground that the judgment was not at the date of the application for registration enforceable by execution in the country of the original Court, such as declaratory judgments or where an appeal is pending in the country of the original Court, the setting aside of the registration shall not be a bar to the bringing of a further application to register the judgment when the appeal has been disposed of or if and when the judgment becomes enforceable in that country as the case may be. See Section 7(1) of the 1990 Act.
In law a person, who has obtained judgment in a foreign country, being a country which accords judgments given by the High Courts of Nigeria reciprocity, is estopped from suing on the original cause of action that was the subject matter of litigation in the foreign Court as this principle is based on a public policy consideration that it is for the common good that there must be an end to litigation. See generally Halsbury’s Laws of England 4th Edition (Re – issue) Vol. 8 @ pp. 156 – 157. See also Nigeria: Legal Regime for the Enforcement of Foreign Judgments in Nigeria: An Overview by Godwin Omoaka.
My lords, having sufficiently averted my mind as above to the guiding principles of the law on registration of foreign judgments in Nigeria, it is clear that while the law permits the application to register a foreign judgment to be by ex – parte petition, it reserves the power in the Court below to set aside its registration on grounds as set aside in Section 3(2) of the 1958 Act on grounds including lack of jurisdiction in the original Court that entered the judgment.
A dispassionate review of the reasoning and findings in the ruling of the Court below appealed against readily reveals that the Court below clearly misconceived both the ground of the application of the Appellant, which it wrongly thought and treated as a challenge to its jurisdiction rather than the jurisdiction of the original Court in the absence of any locus standi in the Respondent as Claimant, and also its duty as a Court called upon to exercise its power whether or not to set aside the registration of the foreign judgment, which it also erroneously thought and treated as an appeal against the judgment of the foreign Court.
In law, therefore, neither the production of the foreign judgment nor the fact of its ex – parte registration present a fait accompli that such a foreign judgment cannot under any circumstances be set aside as could be seen rearing its ugly head, as can be so easily deduced, in the ruling of the Court below and which is not the position of the law. An inquiry into whether the conditions precedent to registration of foreign judgment has been fulfilled or not does not amount to an appeal or a re – litigation as erroneously thought by the Court below. Indeed, such an inquiry is authorized by virtue of Section 3(2)(b) of the 1958 Ordinance and cannot therefore, be merely wished away by the Respondent as well as the Court below.
In the instant appeal, the challenge raised by the Appellant against the registration of the foreign judgment and thereby seeking its setting aside was not one answerable by the mere production of the foreign judgment or the mere fact of its registration but rather by the Respondent meeting the question raised by the Appellant as to whether the Respondent had the locus standi to have initiated the action and which it obtained arbitral award and judgment order over a Charter – Party Contract agreement to which it was not a party?
This question glaringly raises the issue of locus standi, which the Court below regrettably side tracked and rather considered same as amounting to as an appeal or re – litigation of the merit of the case already determined by the foreign Court and holding that such an issue is outside the jurisdiction of the Court below. I think this is where both the Court below and the Counsel for the Respondent, with due deference to both, got it wrong and the Court below fell into grave error when it left the issue it was called upon to determine by the Appellant to determine what was not placed before it by the Appellant.
There was none of the grounds relied upon by the Appellant that could even remotely give rise to a consideration of the case already determined by the foreign Court on the merit or would amount to calling on the Court below to sit on appeal over the decision of the foreign Court, both of which fears were unfounded. The simple issue placed before the Court below was whether or not the Respondent was, on the terms of the Charter – Party Contract Agreement, a party to the Charter – Party Contract? If the answer is yes, and which can only be determined by reference to the terms of the Charter – Party Agreement itself, and not to contents of the arbitral award or the foreign judgment which are not the contract of the parties sought to be enforced in the action in England by the Respondent against the Appellant, that would be the end of the matter as the registration would then not be set aside. However, if the Respondent was not a party to the Charter – Party Contract, of which onus to prove lies on the Respondent who claims to be a party thereto, then in law the Respondent being not a party to the contract cannot enforce it in a Court of law even if it was made solely for its own benefit by virtue of the operation of the doctrine of privity of contract. The law is so both in England and Nigeria. See Makwe V. Nwukor (2001) 14 NWLR (Pt. 733) 356 @ p. 372; Eafulukwe V. John Holt Ltd (1996) 2 NWLR (Pt. 432) 511 @ p. 522.
In Law a person, such as the Respondent in the instant appeal, would have no locus to enforce a contract to which he is not a party and thus lacking any privity of contract with the Appellant. See Prince Alabi V. Shittu Ogunlowo & Ors. (1997) 6 NWLR (Pt. 509) 1, where Onu, JSC., had emphatically pronounced thus:
”In law, there is privity of contract, it is always between the contracting parties who must stand or fall, benefit or lose from the provisions of their contract. Their contract cannot bind third parties nor can third parties take or accept liabilities under it, nor benefit there – under.”‘
The above was the simple task placed before the Court below by the Appellant, which it abandoned to consider issues not arising from the application of the Appellant before it and arriving at very perverse findings on its lack of jurisdiction to sit on appeal over the foreign judgment and re – litigation of the merit of the case already determined by the foreign Court, both of which are issues having no bearing with the application filed by the Appellant to set aside, not the foreign judgment, but the registration of the foreign judgment by the Court below, which relief is within the plenitude of the powers and jurisdiction of the Court below under and by virtue of Section 3(2)(b) of the 1958 Ordinance.
My lords, the issue of locus standi is a threshold question of jurisdiction and to answer this challenge, the onus was on the Respondent to produce the Charter – Party agreement in which it was a party rather than doing this very simple thing it rather produced the arbitral award and the foreign judgment where it was described as owner. The locus standi of the Respondent cannot be looked for nor to be found in the arbitral award or the foreign judgment but in the Charter – Party Contract itself that was enforced against the Appellant by the Respondent in the foreign Court produced before the Court below for it to satisfy itself that the Respondent indeed had the locus standi and by implication the foreign Court had the jurisdiction to have entertained and determined the case as it did and thereby justifying the registration of the foreign judgment by the Court below. See Thomas V. Olufosoye (1986) 1 NWLR (Pt. 18) 680 @ pp. 682- 683.
Upon a careful consideration and calm review of the totality of the evidence led through the affidavit and counter affidavit of the respective parties as in the records of appeal, I find that the Respondent failed woefully to show its locus standi in the Charter – Party Agreement entered into between the Appellant as ‘Charterer’ and one ‘Atlantic Management SA’ as the owner of the Vessel, which formed the basis of the arbitral award and the foreign judgment. The issue was also certainly not about submission to the jurisdiction of the foreign Court as was erroneously thought by the Court below. The issue of locus standi transcends submission to jurisdiction.
In other words, the fact that a Defendant had submitted to the jurisdiction of a Court does not confer locus standi on the Claimant or obviate the fundamental issue of locus standi of the Claimant, which must be shown to exist if questioned for the claim to be competent and by implication for the Court to have the requisite jurisdiction over such a claim. The law does neither encourage nor close all avenues to challenge the registration of foreign jurisdiction once registered but rather set out some conditions upon which registration of a foreign judgment could be refused or a registration could be set aside by the Court on the application by the alleged judgment debtor.
In law therefore, a registration of a foreign judgment contrary to the stipulated conditions would render such registration liable to be set aside without much ado. In all the gamut of the Respondent’s counter affidavit no attempt was made to furnish the Charter – Party agreement to show its capacity therein as all it did was to rely on the very foreign judgment whose registration is sought to be set aside and thus leaving the fundamental question of its locus as raised by the Appellant, as the ground for the setting aside of the foreign judgment, unanswered, unchallenged and un-rebutted.
Now, while the Appellant showed through some exchanged emails the terms and parties to the Charter – Party which excludes the Respondent, the Respondent furnished no iota of evidence to show that it was party to the Charter Party agreement which it had enforced against the Appellant and which arbitral award and foreign judgment were registered by the Court below on its application. See Section 3(2)(b) of the 1958 Ordinance which clearly stipules one of the grounds for which the registration of a foreign judgment could be set aside and in my view, had the Court below averted its mind correctly to the facts and applicable law it would not had erred so gravely as it did in refusing to set aside the registration of the foreign judgment obtained by a non-party to the contract it seeks to enforce as justifiably sought for by the Appellant.
It must be noted and very pertinently too that a refusal of registration or setting aside of the registration of a foreign judgment does not amount to overturning or setting aside the foreign judgment as in law the same still remains valid and the refusal does not operate as a bar to further or subsequent application for its registration if the conditions for registration of foreign judgment are subsequently met by the Judgment Creditor. Thus, registration of foreign judgment is not automatic nor is it a fait accompli and therefore, once it is shown that there was a failure or want of competence such a judgment should not be registered and if inadvertently registered, being that the procedure for registration is ex – parte, such wrongful registration should be set aside.
In matters of this nature it is the terms of the contract agreement between the parties that is the determining factor as to who are the parties to the contract and not the contents of the foreign judgment whose registration is sought to be set aside. Indeed and in truth and quite simple, the contract of Charter – Party itself produced before the Court below as an Exhibit by the Respondent is and would be the best evidence. I therefore, hold that the ground of locus standi, that is the capacity of the Respondent in the Charter – Party agreement cannot be supplied by the contents of the arbitral award as erroneously thought and decided upon by the Court below.
In the absence therefore, of any evidence from the Respondent of who are the Parties to the Charter – Party agreement, the subject matter of the foreign judgment, it is safe to conclude on the unchallenged evidence furnished by the Appellant, and I hereby so find, that the Respondent was not a party to the Charter – Party agreement between the Appellant and Atlantic Management SA and therefore, in law the Respondent lacked the locus standi, that is the capacity, as rightly contended by the Appellant, to have instituted and maintained any arbitration proceedings and or action against the Appellant over the said Charter – Party agreement to which it was not and is not a party. Thus a crucial condition precedent to the valid commencement of the claim by the Respondent against the Appellant was not met by the Respondent and thus the foreign Court was robbed of its jurisdiction as rightly contended by the Appellant. See Madukolu V. Nkemdilim (1962) All NLR 587; SLB Consortium Ltd V. NNPC (2011) NWLR (Pt. 1252) 317 @ p. 335.
In the light of the findings above, therefore, the sole issue for determination is hereby resolved in the negative against the Respondent in favor of the Appellant and I hold firmly that the Court below was wrong when it held that the application by the Appellant to set aside the registration of the foreign judgment lacked merit and thereby dismissing same in error. In the circumstances, therefore the appeal has merit and ought to be allowed. Consequently, it is hereby so allowed.
In the result, the Ruling of the Federal High Court, Lagos Judicial Division; Coram: Saliu Saidu J., in Charge No: FHC/CP/1789/2014: Top Leader Shipping Inc V. Heyden Petroleum Limited delivered on 27/1/2016, in which the application by the Appellant to set aside the registration of the foreign judgment entered in favor of the Respondent was dismissed for lacking in merit is hereby set aside.
In its place the Appellant’s application seeking to set aside the registration of the said foreign judgment is hereby granted and consequently, the order of registration of the said judgment made by the Court below on 27/1/2016 is hereby set aside.
There shall be no order as to cost
JOSEPH SHAGBAOR IKYEGH, J.C.A.: Registration of a foreign judgment may be set aside under Section 6(1) of the Foreign Judgments (Reprocal Enforcement) Act. 1960, so held the Supreme Court in the case of Obasi v. Mikson Establishment Industries Ltd. (2016) 16 NWLR (pt. 1539) 335 at 364 and 366. Section 6(1) of the Foreign Judgments (Reciprocal Enforcement Act. 1960 reads:
“6(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment-
(a) shall be set aside if the registering Court is satisfied-
(i) that the judgment is not a judgment to which this Part of this Ordinance applies or was registered in contravention of the foregoing provisions of this Ordinance; or
(ii) that the Courts of the country of the original Court had no jurisdiction in the circumstances of the case; or (iii) that the judgment debtor, being the defendant in the proceedings in the original Court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original Court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear: or
(iv) that the judgment was obtained by fraud; or
(v) that the enforcement of the judgment would be contrary to public policy in Nigeria; or
(vi) that the rights under the judgment are not vested in the person by whom the application for registration was made;
(b) may be set aside if the registering Court is satisfied that the matter in dispute in the proceedings in the original Court had previously to the date of the judgment in the original Court been the subject of a final and conclusive judgment by a Court having jurisdiction in the matter.”
Halsburys Laws of England (Fourth Edition) page 141 paragraph 153 states aptly inter alia that the objection that the foreign proceedings were contrary to natural justice (fair hearing. for example) may be taken in the country where the judgment has been registered even though it could have been or was taken before the original Court the judgment was entered citing in support the English case of Jet Holdings Inc. v. Patel [1990] 1 QB 335, (1989) 2 All ER 648, CA.
It follows. in my modest opinion. following Halsbury’s Laws of England (supra) that an objection founded upon lack of notice or lack of an opportunity to be heard may be taken against a foreign judgment registered in this country, both on the ground of jurisdiction and substantial justice as lack of notice of the proceedings by non service of process affects the jurisdiction of the Court and goes to the doing of substantial justice vide Okoye and Anor. v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (pt.1110) 335 at 359 – 360.
For the reasons (supra) and the fuller reasons stated in the painstaking judgment prepared by my learned brother. Biobele Abraham Georgewill, J.C.A., I too find merit in the appeal and hereby allow it and abide by the consequential order(s) contained in the lead judgment.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree with the lead judgment delivered by my learned brother, BIOBELE ABRAHAM GEORGEWILL. I abide with the consequential orders made. The appeal is meritorious and must be allowed.
Appearances:
Toluwani Adebiyi, Esq.For Appellant(s)
Femi Adenitire, Esq.For Respondent(s)
