➥ CASE SUMMARY OF:
Adwork Limited v Nigeria Airways Limited (1999) – CA
by Branham Chima (SAL).
➥ COURT:
Supreme Court – CA/L/156/99
➥ JUDGEMENT DELIVERED ON:
28 October 1999
➥ AREA(S) OF LAW
Registering judgement;
Arbitration award;
➥ PRINCIPLES OF LAW
⦿ ARBITRAL AWARD IS BINDING ON PARTIES
It is important to note here that all these facts were before Longe J when the application which led to this appeal was being considered. It is also equally important to say that it was open to either of the parties to apply to the Court in England to set aside, the award if either felt that the arbitrator had misconducted himself or that the award on its face was wrong. The necessary consequence of the award is that if neither of the parties applied to set it aside, it was liable to be enforced as binding on the parties. — Oguntade, JCA.
⦿ ORIGINAL COURT WHICH GAVE JUDGEMENT DOES NOT LOSE JURISDICTION IN RELATION TO THE EXECUTION PROCESS
I am in agreement with the learned counsel for the respondent, that the original court which gave judgment does not lose its jurisdiction in relation to the execution process in the case just because the judgment has been registered in a foreign country. But, once it is recognised that a registering court has the same power with respect to execution as the original court, it becomes important to monitor closely what the registering court is doing in relation to the execution of a particular registered judgment in order to ensure that there is no conflict in the exercise of powers as to execution between the registering court and the court which originally gave the judgment. — Oguntade, JCA.
⦿ THE REGISTERING COURT AND THE ORIGINAL COURT SHOULD KEEP WATCH NOT TO CONFLICT IN EXECUTION
The process of execution of a judgment may take different forms and may necessitate other ancillary proceedings. In the quest to eliminate any conflict of jurisdiction as to execution between the registering court and the original court, it is important for either of the courts to discover what is being done or has been done by either of them at a particular time before either assumes jurisdiction. It seems to me that the matter boils down to the necessity for both courts to prevent an abuse of its execution process rather than in the proclamation of principles. — Oguntade, JCA.
⦿ EXECUTION BY REGISTERING COURT AND ORIGINAL COURT
When a judgment has been pronounced and no appeal is brought by the parties, the execution of the judgment normally follows. All types of application may follow and these usually include stay of execution, instalmental payment, variation etc. It seems to me that applications, other than those directed specifically at obtaining satisfaction of the judgment are properly brought before the court which originally gave the judgment even in cases where the judgment has been registered in a Foreign Court. On the other hand, application arising out of execution of writs taken out in the registering court ought to be heard by the registering court. This is without prejudice to the power of the court which originally gave the judgment to enforce by execution its judgment even when the judgment has been registered in a foreign court. The way it works is that either court must satisfy itself that the execution power is not being exercised simultaneously in this exercise of the concurrent jurisdiction in the original and the registering court. — Oguntade, JCA.
⦿ REGISTRATION OF FOREIGN JUDGEMENT DOES NOT DEPRIVE THE ORIGINAL COURT OF JURISDICTION
I agree that the registration of a judgment in a foreign Court for purposes of execution does not rob the original court of its jurisdiction over the matter and the execution of its judgment. For, the judgment-creditor could be enforcing the judgment in both jurisdictions wherever he can find the debtor’s property. But the matter in issue herein, which in my view had been decided by the registering court in England which had jurisdiction so to do, and the Arbitrator duly appointed by consent of parties in accordance with the “compromise” order of the registering court, ought not be relitigated in the original court in Nigeria. I should think that doing so tantamount to either asking the Nigerian Court to sit on appeal over the decision of another Court which had already exercised coordinate jurisdiction available to either Court, or setting aside the award of the Arbitrator which the Respondent had not challenged in accordance with the known principles governing arbitral proceedings. — Nzeako, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Oguntade, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
It was undisputed that Longe J on 28th May, 1993 gave a judgment in favour of the plaintiff against the defendant and that the judgment was subsequently registered in the United Kingdom for the purpose of execution. It was also undisputed that execution process commenced in the United Kingdom and that the properties of the defendant were attached upon a Writ of Fifa issued at the instance of the plaintiff/appellant. In the course of execution proceedings in the United Kingdom, parties reached a compromise as to the settlement of the judgment debt as set out in the judgment of 28/5/93 by Longe J. As part of the compromise, the parties agreed to refer to the arbitration of an arbitrator nominated by the President of the Law Society for the time being any disagreement between them as to the rate of exchange on any relevant date arising in connection with a series of cheques in sterling resulting from conversion from the Nigerian Naira at the rate prevailing on the date at which each cheque is met. The arbitrator appointed by the President of the Law Society on 2/3/98 published his award; and under the award a sum of N57,703,740.00 was found payable by the defendant/respondent to the plaintiff/appellant.
The defendants did not challenge in the English courts the above award of the arbitrator. Rather, it came back to the trial court and on 9/12/98 filed a motion on notice praying for the following, inter alia, “An order declaring and/or directing that the payment by the defendant to the plaintiff of the total sum of N82,070,585.00, N2,189,145.00 in excess of the judgment sum of N79,881, 4.12.00 in Pounds Sterling pursuant to a full and final satisfaction of the Judgment of this Honourable Court by the defendant.”
On 15/2/98, the plaintiff filed a notice of preliminary objection to the defendant’s application. The objection reads, inter alia: “The Parties to this suit, having, pursuant to their agreed terms of settlement dated 26th February, 1996 referred to and submitted to the jurisdiction of an arbitrator nominated by the President of the Law Society for the time being disagreement between them as to the rate of exchange, the arbitrator having delivered and/or published the arbitral award dated 2nd March, 1998, the law is that in the absence of an appeal, or application to set same aside, the publication of the award extinguishes any right of action in respect of the former matters in different but gives right to a new cause of action based on the agreement between the parties to perform the award which is implied in every arbitration agreement.”
The lower court (Coram Longe J) heard argument and on 23/12/98 delivered its ruling. The lower court concluded its ruling in these words: “I therefore found paragraph 20 of the supporting affidavit proved that the defendant has paid the sum of N82.070.585 in settlement of the judgment sum of N79.881 ,432.00 and therefore has nothing more to settle for the plaintiff except that the plaintiff has to make a refund of the excess of N2,189,345.00 to the defendant. The defendant’s application therefore succeeds in its entirety and the directive of court is orders as prayed. The Enrolled Order of court together with the ruling which set out the reasons for the order shall also be registered in London and serve on all necessary parties. That is the order of this court.”
The plaintiff was dissatisfied with the above ruling of the lower court. It has brought this appeal against it.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
⦿ WHAT THE TRIAL JUDGE DID WAS AN ATTEMPT TO REVERSE THE AWARD OF THE ARBITRATOR IN ENGLAND
“The respondent’s counsel in his brief has argued that the purpose of the application before the lower court was to enable the court confirm or clarify the amount of the judgment debt. Counsel relied on Hydro-Quest Nig. Ltd. v. Bank of the North Ltd. and Anor (1994) 1 NWLR. (Pt.318) 41. With respect to counsel, I think that following the proceedings before the arbitrator in England and his award, the need to re-confirm or re-clarify the amount of the judgment debt did not arise. That was a matter which ought to have been determined by the arbitrator in arriving at the amount outstanding on the debt. It was manifest that there had not been any dispute as to the amount of the judgment debt. The dispute had been on the exchange rate to be used in the computation of final amount in the light of the unfavourable and fluctuating exchange rate to be used in the computation of final amount in the light of the unfavourable and fluctuating exchange rate of the naira to the sterling. One therefore only needed to read the judgment of 23/5/93 to know the judgment debt. In any case what Longe J did in its ruling was an attempt to reverse the award of the arbitrator in England. I am not here concerned with the question whether or not the arbitrator had been correct in his award. That is a entirely another matter.”
⦿ THE TRIAL JUDGE OUGHT NOT TO HAVE ACCEPTED TO PRESIDE OVER THE SUIT
“I am satisfied that the defendant adopted a wrong procedure in his attempt to correct or remove a perceived injury to it. It was an abuse of the process of the court for the defendant to have come before Longe J in Nigeria to determine the same question which had been determined or could be determined by the registering court in England. I think that Longe J should have refused to entertain the application by the defendant brought on 9/12/98. If the purpose of the application was to determine that the judgment debt had been paid, it constituted an abuse of process since the same question could be or was being determined in the United Kingdom proceedings. If on the other hand, it was a subterfuge to use the court of Longe J as an appellate court over the decision of the arbitrator in England, which I believe it was, my simple reaction is that Longe J has no such jurisdiction.”
“The appellant in his brief argued that Longe J sitting in Lagos State has no jurisdiction as to the execution levied on properties in England. I do not see that the Orders made by Longe J were directed at controlling the execution over properties in England. Certainly, not directly so even if it looks so in the effect of the orders. I think the better way to view the matter is that the Lagos State High Court always possesses the power to stay, suspend or set aside the execution of its judgment. It just happened in this particular case that the execution of the judgment of the Lagos High Court was taking place in England. The erroneous assumption of the jurisdiction to deal in the execution of his judgment of which the High Court of England was at the time seized of, would appear to convey that a court in Nigeria was meddling with execution over properties in England. I think it suffices to say that Longe J should not have entertained the application.”
.
.
.
✓ DECISION:
“In the final conclusion this appeal succeeds. The ruling made by Longe J on 23/12/98 including the order for costs is set aside. The application filed by the defendant/respondent on 9/12/99 is struck out. The plaintiff/appellant is entitled to costs in the Court below and this cost which I fix at N5,000.00 and N6,600.00 respectively.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
Halsbury’s Laws of England 4th Edition Volume 8 para.760 discusses the effect of a foreign judgment registered in England thus. “For the purpose of execution, a registered judgment has the same force and effect, and proceedings may be taken on it, and the sum carries interest, and the High Court has the same control over execution, as if the judgment has been one originally given by the High Court and entered on the date of registration.”
