KABO AIR LTD v. THE O’CORPORATION LTD (2022)

KABO AIR LTD v. THE O’CORPORATION LTD

(2022)LCN/16970CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, August 30, 2022

CA/K/392/2018

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

KABO AIR LIMITED APPELANT(S)

And

THE O’CORPORATION LIMITED RESPONDENT(S)

RATIO

THE POSITION OF LAW ON WHERE A PARTY CAN MAKE HIS CASE

A party can only make his case in his originating process, be it a statement of claim or petition; he/she cannot expand the scope of his/her case in a Reply to his opponent’s response to his case: See Olubodun v. Lawal (2008) ALL FWLR (PT 434) 1468 (SC). PER UGO, J.C.A.

WHETHER OR NOT THE PROCEDURE FOR REGISTRATION OF FOREIGN JUDGMENT IS SUI GENERIS

I am in complete agreement with the Respondent’s answer to this argument of appellant as contained at paragraphs 4.23 to 4.26 of its brief of Argument, to the effect that the procedure for registration of foreign judgments is sui generis; that the relevant legislation governing it is the Reciprocal Enforcement of Foreign Judgments Act, 1958 (the Ordinance) and the Foreign Judgment Reciprocal Enforcement Act Cap 152, Laws of the Federation of Nigeria 2004 (the Act) and not the Federal High Court Civil Procedure) Rules 2009. The rule of interpretation is that where a specific provision is made in a statute or instrument for a specific thing general provisions of that same statute or instrument or even any other instrument/statute on that same subject will not apply; the specific provision will exclusively govern that specific subject. The Latin for that is generalia non derogant specialibus – general things do not derogate from special things, or specialibus derogant generalia – special things derogate from general things. This rule of interpretation has been applied by the Supreme Court in many, many cases the most prominent and perhaps earliest being Schroeder & Co. v. Major & Co Ltd (1989) 2 NWLR (PT 101) I (S.C); (1989) 2 SCNJ 210 (also reported as Martin Schroeder & Co. v. Major & Co Ltd in (2002) F.W.LR. (Pt. 128) 1304 at 1316). There, Wali, J.S.C., with all his learned brothers concurring, stated the position thus:
“Where a thing is mentioned in both general and specific provisions, the provisions of the special provision shall apply to it. This is the rule of interpretation applicable and the Latin maxim is – generalia specialibus non derogant’ meaning, general things do not derogate from special. The other rule of interpretation meaning the same thing is specialia generalibus derogant – special things derogate from the general one.”
See also Madumere v. Okwara (2014) ALL FWLR (PT 920) 1247 AT 1255 (S.C); Matari v. Dangaladima (1993) 2 SCNJ 141; A.G. of Ogun State v. A.G. of Oyo State (2005) FWLR (PT 143) 206 (S.C), and Ardo v. Nyako (2014) ALL FWLR (PT 744) 130 AT 159 (S.C). Appellant having also conceded that a specific statute – the Reciprocal Enforcement of Foreign Judgments Act 1958 (the Ordinance) and the Foreign Judgment Reciprocal Enforcement Act Cap. 152 Laws of the Federation of Nigeria 2004 (the Act) – govern the issue of registration of foreign judgments and further that those statutes provide for registration of judgments by ex parte application; that ends the matter. PER UGO, J.C.A.

WHETHER OR NOT THE COURT IS BOUND BY ITS PREVIOUS DECISIONS UNDER THE DOCTRINE OF JUDICIAL PRECEDENTS

Under the doctrine of judicial precedents this Court is bound by its previous decisions (Usman v. Umaru (1992) 2 LPELR-3432 S.C.), and that includes decisions of its other divisions: see I.T.P.P. Ltd v. UBN Plc (2006) 12 NWLR (PT. 995) 483 AT 504 (SC), Jatau v. Ahmed (2003) 4 NWLR (PT. 811) 998 (SC). This issue is therefore also resolved against the appellant. PER UGO, J.C.A

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Kano Division, of 20/6/2016 refusing appellant’s petition to set aside its 23rd March 2011 Order registering at the instance of respondent the judgment of the High Court of Gambia in Suit No 169/2000 obtained by respondent against appellant.

It is necessary to mention that the said petition is the second time the appellant approached the Federal High Court for the same purpose. Appellant had earlier moved that Court unsuccessfully by way of a motion on notice to set aside the same order of the lower Court registering the Gambia High Court judgment. Appellant appealed that decision, again unsuccessfully, to this Court the (Kaduna Division), with this Court only substituting the Federal High Court’s order dismissing the application with one simply striking it out. That judgment of this Court is reported as Kabo Air Ltd v. The O’ Corporation Ltd (2014) LPELR-23616 (CA) and also contained at pages 33-52 of the records of this appeal. I shall later refer to relevant parts of that judgment here as some of the issues canvassed in this appeal by appellant were also raised by it there and resolved by this Court.

Appellant did not contest that decision. It accepted the decision and simply returned to the Federal High Court to commence its petition the subject of this appeal.

In dismissing appellant’s instant petition in its decision now appealed against, the Federal High Court also held a reply address to the counter affidavit of the respondent filed by the appellant incompetent and discountenanced it. Appellant in this appeal also contests the correctness of that ruling.

From the four grounds of its present appeal, appellant purported to formulate the following issues for determination:
1. Whether the learned trial Judge was right in refusing to consider its reply address dated 15th March 2016 in response to the counter affidavit of the respondent dated 5th December 2014 on the premise that the Rules of the Federal High Court has no express provision for such procedure.
2. Whether the ex parte order dated 23rd March 2011 securing the registration of the foreign judgment of the High Court of Gambia obtained against the appellant sometime in December 2007 and based on non-disclosure and misrepresentation of facts without putting the appellant on notice did not amount to denial of fair hearing.
3. Whether the Federal High Court has jurisdiction to determine issue of simple contract that emanate from enforcing contract of sale of Aircraft between the appellant and the respondent.
4. Whether by virtue of the provisions of Section 4(1)(a) and 4(1)(b) of the Foreign Judgment (Reciprocal Enforcement) Act CAP. F35, Laws of the Federation of Federation of Nigeria 2004, the Foreign Judgment of the High Court of Justice of The Gambia dated 10th December 2007 is a judgment capable of being registered and enforced as the judgment of the trial Court.

It did not tie its fourth issue – supposedly culled from its omnibus 4th and final ground of appeal – to any ground of appeal.

Respondent on its part first responded with a preliminary objection which it argued at pages 6-10 of its Brief of argument. It argued in that objection that appellant’s fourth issue is neither covered by nor arises from any of its four grounds of appeal so it should be discountenanced, especially as it is settled that issues for determination can only arise from grounds of appeal. In support of that, it cited a number of decisions including Scheep v. The MV S.Araz (2000) LPELR-1866 (SC) where it was said that issues for determination can only arise from the grounds of appeal. It also argued that the said issue 4 cannot also arise from appellant’s fourth ground of appeal as that ground is an omnibus ground which cannot support a complaint on error of law as it is in issue four.

Respondent also urged us to discountenance appellant’s arguments on non-certification of the judgment of the High Court of Gambia contained at paragraph 5.6 of its brief of argument as the said issue, being not raised at the lower Court by appellant, is a new issue which can only be raised with the leave of this Court first obtained.

Determination of the Preliminary objection: The foundation of every appeal is the grounds of appeal, for it is there the appellant enumerates his grouse or grouses against the decision he is appealing. Neither issue 4 of appellant nor its contentions about the alleged non-certification of the Gambia High Court Judgment (Note: the said Gambia Court Judgment is actually certified – see pages 8-29 of the records of appeal) forms its Grounds of appeal. In the event, the Preliminary Objection is upheld and issue four of appellant, as well as Paragraph 5.6 of appellant’s Brief of Argument where it raised the issue of non-certification of the Gambia High Court judgment, are struck out.

In respect of the remainder of the appeal, respondent formulated the following three issues:
1. Whether the learned trial Judge was right in refusing to consider the appellant’s Reply to Respondent’s counter affidavit” dated 15th March 2016 but filed on the 23rd of March 2016.
2. Whether the registration of the foreign judgment of the Banjul Division of High Court of Gambia delivered by the Hon. Justice A.M. Dordzie on 10th December 2007 by the Federal High Court vide the ruling delivered by the Honourable Justice Shehu Yahaya on the 23rd March 2013 constitutes a breach of the appellant’s right to fair hearing.
3. Whether the Federal High Court had jurisdiction to register the foreign judgment from the High Court of Gambia.

Issue 1 of appellant: In respect of its issue 1, appellant contended that the lower Court was wrong in holding incompetent and discountenancing its Reply Address to the counter affidavit of respondent. It submitted that reasoning of the lower Court that the appropriate process it should have filed is a Further Affidavit to Respondent’s counter affidavit and not a Reply address was incorrect in so far as the Rules of the Federal High Court only provide for service of counter affidavit and not where a respondent feels compelled to respond to a counter affidavit on grounds of law alone.

Respondent on its part submitted that the said reply address of appellant had no place in the Rules of the Federal High Court and not even in its Order 56 Rule 8 cited by appellant.

Resolution of issue
Having taken a calm look at both the petition of appellant and its Reply Address in issue contained at pages 93 to 95 of the records, I cannot but agree with the lower Court’s decision discountenancing that reply. It appears clear to me that what appellant tried to do with the said Reply Address was to expand the scope of its petition – which was founded on only two grounds of respondent’s failure to put it on notice of the application for registration of the judgment and appellant’s assertion that the judgment was incapable of being registered – to include a third ground complaining that respondent’s application also failed to state the time it was expected to apply for its setting aside so it was also incompetent for that reason. Such procedure is not permitted. A party can only make his case in his originating process, be it a statement of claim or petition; he/she cannot expand the scope of his/her case in a Reply to his opponent’s response to his case: See Olubodun v. Lawal (2008) ALL FWLR (PT 434) 1468 (SC). On this ground alone the lower Court’s decision declaring appellant’s reply address incompetent cannot be faulted. That is just as a Reply Address cannot be utilized to meet allegations in a counter affidavit. In the event, issue 1 is resolved against appellant.

Issue 2:
On its issue 2, appellant, while conceding that by the Reciprocal Enforcement of Foreign Judgments Act, 1958 a judgment creditor can apply ex parte for leave to register a foreign judgment within 12 months of the judgment, argued, nevertheless, that since respondent was out of time in applying to register that judgment and had to apply for extension of time, fair hearing demanded that it be put on notice and the lower Court should have so directed. That directive was imperative, it argued, since respondent’s application for extension of time involved the Court’s exercise of its discretion. It also argued that proceedings before the Federal High Court are regulated by the Federal High Court Rules; that there is nowhere in the Rules of the Federal High Court that provides for registration of foreign judgments by ex parte petition as appellant did.

Resolution of issue
I am in complete agreement with the Respondent’s answer to this argument of appellant as contained at paragraphs 4.23 to 4.26 of its brief of Argument, to the effect that the procedure for registration of foreign judgments is sui generis; that the relevant legislation governing it is the Reciprocal Enforcement of Foreign Judgments Act, 1958 (the Ordinance) and the Foreign Judgment Reciprocal Enforcement Act Cap 152, Laws of the Federation of Nigeria 2004 (the Act) and not the Federal High Court Civil Procedure) Rules 2009. The rule of interpretation is that where a specific provision is made in a statute or instrument for a specific thing general provisions of that same statute or instrument or even any other instrument/statute on that same subject will not apply; the specific provision will exclusively govern that specific subject. The Latin for that is generalia non derogant specialibus – general things do not derogate from special things, or specialibus derogant generalia – special things derogate from general things. This rule of interpretation has been applied by the Supreme Court in many, many cases the most prominent and perhaps earliest being Schroeder & Co. v. Major & Co Ltd (1989) 2 NWLR (PT 101) I (S.C); (1989) 2 SCNJ 210 (also reported as Martin Schroeder & Co. v. Major & Co Ltd in (2002) F.W.LR. (Pt. 128) 1304 at 1316). There, Wali, J.S.C., with all his learned brothers concurring, stated the position thus:
“Where a thing is mentioned in both general and specific provisions, the provisions of the special provision shall apply to it. This is the rule of interpretation applicable and the Latin maxim is – generalia specialibus non derogant’ meaning, general things do not derogate from special. The other rule of interpretation meaning the same thing is specialia generalibus derogant – special things derogate from the general one.”
See also Madumere v. Okwara (2014) ALL FWLR (PT 920) 1247 AT 1255 (S.C); Matari v. Dangaladima (1993) 2 SCNJ 141; A.G. of Ogun State v. A.G. of Oyo State (2005) FWLR (PT 143) 206 (S.C), and Ardo v. Nyako (2014) ALL FWLR (PT 744) 130 AT 159 (S.C). Appellant having also conceded that a specific statute – the Reciprocal Enforcement of Foreign Judgments Act 1958 (the Ordinance) and the Foreign Judgment Reciprocal Enforcement Act Cap. 152 Laws of the Federation of Nigeria 2004 (the Act) – govern the issue of registration of foreign judgments and further that those statutes provide for registration of judgments by ex parte application; that ends the matter.

As for its complaint about respondent’s application for extension of time, I note that the grant of that application was not made an issue by the appellant in its notice of appeal. That being the case, it cannot properly raise it here, and even more so as by appellant’s own showing in its Notice of Appeal contained at page 130, it is only against the lower Court’s decision/ruling of 20th June 2016 refusing appellant’s petition to set aside its order registering the foreign judgment that it is appealing against. In summary, this issue is also resolved against appellant.

Issue 3:
The third and final issue of appellant is that the Federal High Court lacked jurisdiction to register the foreign judgment from the High Court of Gambia because the dispute between it and respondent related to enforcement of a simple contract – a matter outside the jurisdiction of the Federal High Court as per Section 251 of the 1999 Constitution of this country.

Resolution of issue
This argument of appellant can be dismissed offhand given that this Court had earlier given its opinion on it in the previous appeal between parties in Kabo Air Ltd v. The O’ Corporation Ltd (2014) LPELR-23616 (CA) – also contained at pages 33-52 of the records of this appeal. There, this Court in its leading judgment by Ikyegh, JCA, opined thus:
“In my respectful opinion, by dint of Section 6 (1)(3)(5)(c) of the 1999 Constitution, as altered, and Sections 2 and 4 of the Act the Court below (Federal High Court Kano) had the jurisdiction to register the foreign judgment of the High Court of Justice of the Gambia. Also, the transaction that led to the foreign judgments in the litigation at the High Court of Justice of The Gambia involved an aircraft within the exclusive jurisdiction of the Court below (The Federal High Court) in virtue of Section 251 (1)(k) of the 1999 Constitution, as altered read with the cases of Cameroon Airlines v. Otutuizu (supra) Mecca – Medina Travels Agency Ltd. v. Cameroon Airlines (supra), Kabo Air Ltd. v. Oladipo (supra), Egypt Air v. Abdullahi (supra), and Sudan Airways v. Abdullahi (supra) cited by respondent’s learned counsel. In the light of the above, I agree with the respondent’s learned counsel that the Court below (Federal High Court) has the jurisdiction to register foreign judgments in Nigeria. The foreign judgment was money judgment and is registrable under Section 3 (2) of the Act as an executor (sic) judgment or a judgment capable of enforcement by writ of execution as it had settled the respective rights of the parties by awarding specific amount of damages to the respondent vide the cases of Akunnia v. A.G., State (supra) and Ayangade v. O.A.U.T.H.C.M.B. (supra) cited by the respondent. The argument by the appellant that the foreign judgment was incapable of enforcement in The Gambia on account of the absence of assets of the judgment debtor there would not, with deference to the appellant, deprive the judgment creditor of the right to register and enforce the foreign judgment in Nigeria under Sections 3 and 4 of the Act, so long as the judgment debtor has assets in which is Nigeria. Again, I agree with the respondent that the foreign judgment is registrable in Nigeria. That the ordinance is extant and complements the Act on the registration/recognition and enforcement of foreign judgments has been firmly settled by the Supreme Court in the case of Marine and General Assurance Co. Plc. v. Overseas Union Insurance Ltd and Ors (2006) 4 NWLR (Pt. 971) 622 at 641-642 thus: “The law applicable to the proceedings for the registration of foreign judgment in Nigeria therefore is the Reciprocal Enforcement of Judgments Act, 1922, Cap. 175, Laws of the Federation of Nigeria and Lagos, 1958 and the Foreign Judgment Reciprocal Enforcement) Act, 1961, Cap. 152, Laws of the Federation of Nigeria 1990.” See also the Supreme Court cases of Witt and Bush Ltd. v. Dale Power Systems Plc. (supra) and Macaulay v. R.Z.B. (supra) cited by the respondent. I would conclude on these issues that the Court below (Federal High Court) had the jurisdiction to register the foreign judgment from The Gambia which is a registrable judgment and can be so registered under the Ordinance and the Act taken together.”

Under the doctrine of judicial precedents this Court is bound by its previous decisions (Usman v. Umaru (1992) 2 LPELR-3432 S.C.), and that includes decisions of its other divisions: see I.T.P.P. Ltd v. UBN Plc (2006) 12 NWLR (PT. 995) 483 AT 504 (SC), Jatau v. Ahmed (2003) 4 NWLR (PT. 811) 998 (SC). This issue is therefore also resolved against the appellant.

All three issues having been resolved against the appellant, this appeal fails in its entirety and is accordingly dismissed while the decision of the High Court of Kano State is upheld.
Cost is assessed at ₦100,000.00 in favour of respondent.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the leading judgment, just delivered by my Lord, Ugo, JCA, and I agree with his reasoning and conclusion, that the appeal has no merit and should be dismissed. I too dismiss it and abide by the consequential orders in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have read in draft, the judgment delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA in this appeal. I entirely agree with the judgment and the way the issues were treated by My Lord. I adopt the reasoning and conclusion reached as mine and find that the appeal is unmeritorious. The appeal is equally dismissed by me.
I abide by the consequential orders made therein.