➥ CASE SUMMARY OF:
Conoil Plc. v. Vitol S.A. (2011) – CA
by Branham Chima (SAL).
Court of Appeal – CA/A/213/2010
➥ JUDGEMENT DELIVERED ON:
Thursday, the 19th day Of May, 2011
➥ AREA(S) OF LAW
Registering foreign judgement;
Abuse of process;
Appellant filing preliminary objection.
➥ PRINCIPLES OF LAW
⦿ RESPONDENT CANNOT COUCH ISSUE OUTSIDE APPELLANT’S GROUNDS OF APPEAL
Be that as it may, it would therefore not be necessary to go into the second issue formulated for determination in this notice of objection. But I will like to comment and emphasize that a Respondent is not permitted to couch any issue outside the perimeters of the Appellant’s grounds of appeal unless such a Respondent has filed a Respondent’s notice or Cross-Appeal. And where an issue for determination is not related to the grounds of appeal it would be incompetent and it ought to be struck out. See:- Falola v. UBN (2005) 7 NWLR Part 924 Page 405 at 424. — J.O. Bada, JCA.
⦿ MEANING OF “OR” IN RELATION GROUNDS UPON WHICH FOREIGN JUDGEMENT MAY NOT BE REGISTERED
Section 3(2)(a-f) of the 1958 Act quoted above specified the grounds upon which foreign Judgment should not be registered. The grounds are alternative grounds and cannot be combined. I agree with the submission of the learned Senior Counsel for the Respondent that the word “or” used in between the grounds is disjunctive and not conjunctive. The word “or” suggests that one cannot rely on the two grounds at the same time. — J.O. Bada, JCA.
⦿ REGISTERING COURT CANNOT SIT AS APPELLATE COURT OVER JUDGEMENT SOUGHT TO BE REGISTERED
The law is that it is not the duty of the registering Court to sit on appeal over the decision of the original Court that delivered the Judgment sought to be registered. My view above is fortified by the decision of the Supreme Court in the case of:- – Witt & Busch Ltd. v. Dale Power Systems Plc (2007) 17 NWLR part 1062 Page 1 at 23 – 24 Paragraphs G – A; where it was held as follows:- “I entirely agree with the statement of the laws as declared in the lead judgment particularly on the point that section 3 (1) of the Reciprocal Enforcement of Judgment Ordinance was applicable to the case. I will also add that it is not the duty of the Court entertaining application for the registration of a foreign judgment to sit as an appellate Court over the foreign judgment. The Respondent to the judgment sought to be registered is expected to have exercised its right of appeal under the laws of the foreign country. All that the Court to which the application is made needs to do is to ensure that the Appellant complies with the requirements of our laws on registration of foreign judgment. I believe that requirement has been met.” — J.O. Bada, JCA.
⦿ AVERMENTS IN AFFIDAVIT NOT CHALLENGED ARE DEEMED ADMITTED
These averments were not challenged or denied by the Appellant. No further affidavit was filed by the Appellant to deny that it ever agreed to submit to the Jurisdiction of the English Court. The Appellant did not challenge the Judgment by way of appeal nor did it deny the averments in the Counter Affidavits. I therefore agree with the submission of learned Senior Counsel for the Respondent that where facts in an affidavit are not challenged, they are deemed admitted. — J.O. Bada, JCA.
⦿ THE CONCEPT OF ABUSE OF JUDICIAL PROCESS IS IMPRECISE
The concept of abuse of Judicial Process has been held to be imprecise. It involves circumstances and situations of infinite varieties and conditions. It’s one common feature is the improper use of the Judicial process by a party in litigation to interfere with the due administration of Justice. It is recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effectual administration of Justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. Thus, the multiplicity of actions on the same parties, even where there exists a right to bring the action, is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se. See the case of:- -Saraki v. Kotoye (1992) 9 NWLR part 264 page 156. — J.O. Bada, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Jimi Olukayode Bada, J.C.A.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The facts of this case as could be gleaned from the record of appeal are that the Appellant is a Nigerian downstream petroleum distribution company while the Respondent is a foreign company that sells automotive gas oil and other related petroleum products to companies and individuals in West Africa and elsewhere. Sometime in 2007 and 2008, the Appellant entered into contract agreement with the Respondent by virtue of which the Respondent was required to supply an agreed quantity of automotive gas oil to the Appellant at a designated place offshore Cotonou. It was alleged that the Respondent performed its own part of the contract but that the Appellant failed to take delivery of the products from the designated place within the agreed period as a result of which the Respondent stated that it suffered losses. It was also alleged that one of the terms of the contract was that all controversies, disputes or claims arising out of or in connection with the contract or the breach thereof shall be subject to the exclusive jurisdiction of the High Court of Justice in England.
As a result of the losses suffered by the Respondent arising from the breach, the Respondent terminated the contract with the Appellant and instituted an action in the High Court of England in case No. 2008 Folio 1220 against the Appellant for recovery of damages. It was further alleged that all the processes filed in that action were served on the Appellant but that the Appellant refused to appear before the English Court to defend the action. The Appellant in its own case stated that it never submitted to jurisdiction of High Court of England owing to the pendency of Suit No. FHC/L/CS/5475/2008 before the Federal High Court Lagos. The Appellant also stated that it neither resides in United Kingdom nor carries on business in the U.K. Judgment in the action before the English Court was entered in favour of the Respondent on 22nd May 2009. The Respondent by a Petition on notice filed on 18th November 2009 applied to the Court below for the registration of the Judgment delivered by the English Court.
In opposition to the Respondent’s application for the registration of the Judgment, the Appellant filed a notice of preliminary objection and an answer to the Petition on 21st December 2009. The Appellant contended that the Court below lacks the jurisdiction to entertain the application for registration of the Judgment and that the Judgment could not be registered given the Provisions of Section 3(2)(a)(b) & (f) of the Reciprocal Enforcement of Judgment Act Cap. 175 Laws of the Federation of Nigeria and Lagos, 1958. In a Ruling delivered on the 1st day of March 2010, the Court below held that it had the jurisdiction to entertain Respondent’s application. Accordingly, it proceeded to order that the Judgment of the English Court be registered. The Appellant dissatisfied with the Ruling of the Court below now appealed to this Court.
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION BY APPELLANT: DISMISSED]
I. Whether the notice of preliminary objection filed by the Appellant is competent?
RULING: IN RESPONDENT’S FAVOUR.
A. APPELLANT CANNOT FILE NOTICE OF PRELIMINARY OBJECTION UNDER THE COURT OF APPEAL RULES
“Order 10 rule 1 of the Court of Appeal Rules 2007 provides as follows:- “A Respondent intending to rely upon a preliminary objection to the hearing of an appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.” A careful examination of the above provisions of the Court of Appeal Rules would reveal that the only preliminary objection envisaged by Order 10 rule 1 is one in which it is intended by a Respondent to object to the hearing of a pending appeal. The learned Senior Counsel for the Respondent was right when he stated that the Appellant’s Notice of Preliminary Objection does not come within that provision. There is no provision in the Court of Appeal Rules 2007 which recognizes a Notice of Preliminary Objection for the purpose of objecting to an issue raised in a Respondent’s Brief of Argument.”
I. Whether having regard to the authoritative decision of the Supreme Court in Grosvenor Casinos Ltd. vs. Halaoui (2009) 10 NWLR Part 1149 Page 309, interpreting Section 3(1) & (2) of the Reciprocal Enforcement of Judgments Ordinance Cap. 175 Laws of the Federation of Nigeria 1958, the learned trial Judge was not in error to have ordered the Registration of the foreign Judgment obtained by the Respondent against the Appellant in this case?
RULING: IN RESPONDENT’S FAVOUR.
A. THE APPELLANT SUBMITTED TO THE JURISDICTION OF THE COURT VIA THE CONTRACT
“In this appeal, a careful reading of page 18 of the Record of Appeal would reveal that the English Court found as follows on the issue of the submission by Appellant to its Jurisdiction:- ‘The contract terms agreed provided for this court to have exclusive Jurisdiction and there in no reason why the Defendant should not be held to that agreement.’”
“In order to be availed by Section 3(2)(b) of the 1958 Act set out earlier in this Judgment, the Appellant must prove that it did not at anytime agree to submit to Jurisdiction of the English Court. But the Appellant could not do this in the face of its agreement to submit to the Jurisdiction of the English Court. As could be seen from the excerpts of the Judgment of the English Court, the Court found that the Appellant agreed to submit to Jurisdiction. This was a sufficient ground for the Judgment to be registered against the Appellant.”
II. Was the learned trial Judge in error to have placed reliance on unsigned document (Exhibit Vitol 4) to hold that parties had agreed to submit to the Jurisdiction of the English Court in this case?
RULING: IN RESPONDENT’S FAVOUR.
A. THE LOWER COURT COULD NOT UPTURN THE DECISION OF A COURT OF ENGLAND – IT US JUST A REGISTERING COURT
“According to the record of appeal, the parties in this case had elected the Court to which they would submit their disputes for adjudication. Their dispute had been so submitted. The Court had exercised its Jurisdiction and made a determination. There is the fact that Exhibits Vitol “3” and “4” relied upon by the Court below were never challenged by any further affidavit from the Appellant. Apart from the fact that the Court below was bound by the finding of the English Court that the parties agreed to submit to the jurisdiction of the English Court since the Court below was not sitting on appeal over the decision of the English Court. In view of this, it is my view that to upturn a finding already made by the English Court would be tantamount to sitting on appeal over the decision of the English Court. The law is that it is not the duty of the registering Court to sit on appeal over the decision of the original Court that delivered the Judgment sought to be registered.”
III. Was it proper for the learned trial Judge to have assumed Jurisdiction to register the foreign Judgment obtained by the Respondent against the Appellant having regard to the 1999 Constitution and the materials on record in this case?
RULING: IN RESPONDENT’S FAVOUR.
A. THE APPELLANT CARRIES ON BUSINESS IN ABUJA AND THUS CAN BE SERVED AT ABUJA
“The learned Counsel for the Appellant referred to paragraphs 4, 5 and 15 of the affidavit in support of the Petition filed at the Court below but it denied the paragraphs by paragraph 27 of the affidavit of Akin Olatunji where the Appellant stated as follows:- “27 That the respondent has no property in Abuja and the filling stations referred to by the Petitioner are owned by the Respondent’s dealer.” It is my view that it could be inferred from above paragraph that even though the Appellant denied owning properties and filling stations in Abuja but it carries on business transaction in the filling stations through its dealers in Abuja. Order 9 Rule 3 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, Abuja provides thus:- ‘All suits for specific performance, or breach of contract, shall, where the contract ought to have been performed, where the Defendant resides or carries on business in the Federal Capital Territory, be commenced and determined in the High Court of the Federal Capital Territory Abuja.’ A careful examination of the above provision would show that once the subject matter of an action is a contract and there is evidence that the Defendant is carrying on business in the Federal Capital Territory, the court below can entertain the action under order 9 rule 3 of the High Court of Federal Capital Territory civil Procedure Rules.”
B. THE CASE IS NOT AN ADMIRALTY MATTER
“It could be inferred from the above decision of the English Court that the transaction was a contract for the sale or supply of gasoil in which the Respondent was to be the seller and the Appellant the buyer. The question therefore is whether the fact that delivery or conveyance of the gasoil was expected to be or was by ship automatically gives the transaction the character of an admiralty action? In the case of:- -Chevron Nigeria Ltd vs. LD Nig. Ltd (2007) 16 NWLR Part 1059 Page 168 at Page 185 Paragraph C, the Supreme Court while considering a similar case held among others as follows:- “Appellant’s issue no. 2 raises the contention that the Plaintiffs Claim was an action in admiralty and that therefore, a State High Court has no Jurisdiction to entertain same. The declaration would rather have the case heard by the Federal High Court. I reproduce above a substantial part of the averments in the Plaintiff’s Statement of Claim. These show that in its true essence, the claim was for breach of contract. Further on page 187 paragraphs G – H the Supreme Court held further that:- “The second issue for determination is on the Jurisdiction of the trial Court to entertain and determine the claims of the Plaintiff. The fact that the transaction between the parties giving rise to the Plaintiff’s Claim involves the conveyance of the rig purchased from India to Nigeria by sea does not give that transaction the character of an admiralty action.”
“Consequent upon the foregoing, it is my view that the condition as found by the English Court that:- “Delivery was to be ex-ship in four lots at various dates between 15th August and, 14th September off Cotonou via a ship to ship (STS) operation from a mother vessel to a daughter vessel nominated by the buyer” did not give the transaction between the Appellant and the Respondent the character of an admiralty action. In the circumstance the Court below rightly assumed Jurisdiction in this case when it ordered the registration of the foreign Judgment.”
IV. Whether the learned trial Judge was in error to have held that the action in England culminating in the foreign Judgment was not an abuse of Judicial Process?
RULING: IN RESPONDENT’S FAVOUR.
A. THERE IS NO ABUSE OF COURT PROCESS AS THE SUBJECT MATTERS ARE DIFFERENT
“In the appeal under consideration, the case of the Appellant in suit No. FHC/L/CS/5475/2008 was for a claim of US$3,200,000 the same being money which the Appellant said was paid to the Respondent in anticipation of entering into some contracts. On the other hand the case of the Respondent before the English Court was for damages for breach of contract. It is therefore my view that the subject matters in the two cases are not the same because while the case in England was based on contract as the subject matter, the case before the federal High Court in Lagos was not based on contract. The issue there was whether the Appellant was entitled to a refund of US$3,200,000 security deposit and the issue before the English Court was whether the Respondent was entitled to damages for breach of contract.”
B. THE CASE RAISES NO ISSUE OF PUBLIC POLICY
“Under Section 3(2) (f) of the 1958 Act, a Court ought not to register a foreign Judgment “if the Judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering Court.” A careful examination of the above quoted Section of the law would reveal that the words “for some other similar reason” used after the words “public policy” are general words. The word “Public Policy” has been held in the case of:- Total Nigeria Plc (2004) 3 NWLR Part 860 Page 270 at 293 – 294 to mean:- “…that policy of the law of not sanctioning an act which is against the public interest in the sense that it is injurious to the public welfare or public good.” At the Court below, the registration of the foreign Judgment was not opposed on the ground of public policy or on the ground that it would be injurious to public welfare. Therefore can the Appellant rely on the general words to raise the ground of abuse of Court process? I do not think so because in the case of:- -Fawehinmi v. IGP (2002) 7 NWLR Part 767 Page 606 at 683, the Supreme Court held among others as follows:- “Ejusdem generis rule helps to confine the construction of general words which they follow in a statutory provision or in a document.” At page 689 the Court held further:- “One or two examples will suffice to illustrate the rule as closely as possible to the situation in Section 308(1)(b). In Ashbury Railway Carriage & Iron Co. V. Richie (1975) L. R. H. L. 653 the statement in a Memorandum of Association was that one of the objects of the company was to carry on the business of Mechanical Engineers and general contractors. The House of Lords, per Lord, Cairns L. C., said that the expression “general contractors” was limited by the previous words “Mechanical Engineers” and that it ought to be confined to the making of contracts connected with that business.” In view of the foregoing, it is my view that the general words “some other similar reason” used in Section 3(2) (f) of the 1958 Act are limited by the previous words “Public Policy” and ought to be confined to matters that are against public interest in the sense that they are injurious to public welfare or public good. There is no evidence at the Court below that Suit No. FHC/L/CS/5475/08 was instituted in the interest of the public or that a registration of the Judgment would adversely affect that interest. The evidence on record showed that the suit was instituted for recovery of Appellant’s personal money and interest which is a private interest. In the circumstance, the action in England was not injurious to public welfare.”
“In the final analysis, with the resolution of all the four issues for determination in favour of the Respondent and against the Appellant, this appeal therefore lacks merit and it is hereby dismissed. The Ruling of the Court below delivered on the 1st day of March 2010 is hereby affirmed. There shall be costs of N50, 000.00 (Fifty Thousand Naira) in favour of the Respondent and against the Appellant.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 3(2) (a) & (b) of the Reciprocal Enforcement of Judgment Ordinance Cap. 175, Laws of the Federation of Nigeria 1958 (hereinafter referred to as the 1958 Act) provides thus:- “(2) No Judgment shall be ordered to be registered under this Ordinance if:- (a) The Original Court acted without Jurisdiction or (b) The Judgment debtor being a person who was neither carrying on business nor ordinarily resident within the Jurisdiction of the Original Court, did not voluntarily appear or otherwise submit or agree to submit to the Jurisdiction of that Court. (c) The Judgment debtor, being the Defendant in the proceedings was not duly served with the process of the Original Court, and did not appear notwithstanding that he was ordinarily resident or was carrying on business within the Jurisdiction of that Court or agreed to submit to the Jurisdiction of that Court or; (d) The Judgment was obtained by fraud; or (e) The Judgment debtor satisfies the registering Court either that an appeal is pending or that he is entitled and intends to appeal against the Judgment; or (f) The Judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering Court.”
➥ REFERENCED (CASE)
⦿ APPLICATION NOT RECOGNISED BY RULES OF COURT IS NOT A PROPER APPLICATION
In Newswatch v. Ibrahim Attah (2006) 12 NWLR part 993 at 144 at 179 Paragraphs E – G the Supreme Court held among others that:- “…An application not recognized by the Rules of Court cannot be described as a proper application.”
⦿ AFFIDAVIT NOT CHALLENGED IS DEEMED ADMITTED
In Badejo V. Fed. Min. of Education (supra) at page 15; it was held by the Supreme Court that:- “where an affidavit is filed deposing to certain facts and the other party does not file a counter affidavit or reply to a counter affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed…they are therefore admitted.”
⦿ DISTINCT MOTION IS NOT ABUSE OF COURT PROCESS
In Mobil Production Nigeria Unlimited v. Monokpo (2003) 18 NWLR Part 852 at Page 346 at 430 – 431, it was held among others that:- “Filing of two motions which do not necessarily seek the same or similar reliefs, though in the same case between the same parties would not amount to an abuse of the process of the Court.”
➥ REFERENCED (OTHERS)