➥ CASE SUMMARY OF:
Kabo Air Limited v. The O’ Corporation Limited (2014) – CA
by Branham Chima (SAL).
➥ COURT:
Court of Appeal – CA/K/501/2013
➥ JUDGEMENT DELIVERED ON:
Friday, the 20th Day of June, 2014
➥ AREA(S) OF LAW
Set aside a foreign judgement;
➥ PRINCIPLES OF LAW
➥ LEAD JUDGEMENT DELIVERED BY:
Joseph Shagbaor Ikyegh, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
This is an appeal from a ruling/decision of the Federal High Court sitting in Kano (the court below) dismissing an application to set aside registration of foreign judgment of USD 4,670,861 plus interest of 25% per annum entered in favour of the respondent against the appellant by the High Court of Justice of The Gambia on 3.07.2000. The pith of the dispute was that the respondent successfully moved the court below on an ex parte application for registration of the judgment of the High Court of The Gambia out of time. The appellant was served with the order of the registered judgment after its registration. Some six months after service of the order of registration of the foreign judgment on the appellant, the respondent commenced garnishee proceedings at the Federal High Court Lagos to enforce the judgment debt of USD 4, 670, 861 with interest of 25% per annum against the appellant. It was at that point in time that the appellant reacted by filing an application at the court below for the registered foreign judgment to be set aside principally on grounds of lack of jurisdiction and breach of the right to fair hearing. The court below found no substance in the application which it dismissed.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the learned trial judge was not wrong when he failed to apply the provisions of Section 4(1)(b) of the Foreign Judgment (Reciprocal Enforcement) Act 2004 and Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria to set aside the registration of the Foreign Judgment of The Gambia in suit No. 169/2000 on the 23rd March, 2011?
RULING: IN RESPONDENT’S FAVOUR.
A. THE FEDERAL HIGH COURT HAD THE JURISDICTION TO REGISTER THE FOREIGN JUDGEMENT
[I think the issues highlighted by the appellant are apt for discussion. The said issues also cover the issues formulated by respondent. I would abide by the appellant’s issues for the discussion. The Federal High Court is listed as a superior court of record in Section 6 (1) (3) (5) (c), of the 1999 Constitution, as altered. In fact Section 6 (3) and (5) (c) of the 1999 Constitution as altered, specifically calls the Federal High Court a “Superior court of record”. Section 2 of the Act defines “superior court in Nigeria” to mean “the High Court of a State or of the Federal High Court.” While Section 4 of the Act authorises a superior court in Nigeria within the context of Section 2 thereof to register foreign judgments. 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 which is within the exclusive jurisdiction of the court below (The Federal High Court) by 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 Airway v. Abdullahi (supra) cited by respondent’s learned counsel in 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 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., Anambra 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 Nigeria. Again, I agree with the respondent that the foreign judgment is registrable in Nigeria.]
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II. Whether the registration of the foreign judgment of the High Court of The Gambia vide the Respondent’s petition ex parte dated 3rd December, 2010 was not done in breach of the Appellant’s constitutional right to be heard and whether the trial court was not wrong to have refused to set aside the registration of his foreign judgment in the peculiar circumstances of this matters?
RULING: IN RESPONDENT’S FAVOUR.
A. THE PROPER PROCEDURE TO SET ASIDE A FOREIGN JUDGEMENT REGISTERED IS VIA A PETITION
[The prescribed procedure for setting aside a registered foreign judgment is by petition not by motion on notice. The gulf between a petition and a motion on notice was comprehensively dealt with by the lead judgment in the case of I. F. C. v. D. S. N. L. Offshore Ltd (supra) in page 1290 of the law report which I gratefully copy below- “I will now recapitulate the main points in this issue. The learned trial Judge found that the respondents brought their application to set aside the registered judgment by way of motion on notice, whereas applicable law, that is, rule 12 of the rules of court made pursuant to Section 6 (1) of the Reciprocal Enforcement of Judgment Act, 1922 Cap. 175 for the 1922 Act provide that it shall be brought by way of a petition. There is a world of difference between a petition and a motion on notice. A petition is an originating process whereas a motion on notice is an interlocutory application. Once a claim in a petition is resolved, the resolution is final and the claim can only be subject to an appeal whereas a motion on notice is normally interlocutory; except in the cases of judicial review or fundamental rights, the resolution of a claim in a motion on notice normally assumes that a further step is still to be taken. In any event, the learned trial Judge found that the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 under which the respondents brought their application did not provide for use of a motion on notice. It is desirous then that the respondents’ application was a case of an application under a non-applicable law and under a non-applicable procedural rule. It is in view of the above reasoning I must hold that the learned trial Judge erred in law in entertaining the respondents’ application to set aside the registration of the English Judgment in claim No. 2005 folio 68, when it was obvious that due process had not been complied with in bringing the application, and once this is the case, other arguments are non-issues. I accordingly, resolve the first issue in favour of the appellant.”]
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.
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✓ DECISION:
“Although the court below dismissed the application on the merit, having regard to its discovery that the appellant was bound to bring the application by way of petition, not by motion on notice, vide rule 12 of the rules of court made pursuant to Section 6 (1) of the Reciprocal Enforcement of Judgment Act, 1922 Cap. 175 (now pursuant to Section 5 (1) of the Foreign Judgments Reciprocal Enforcement) Act Cap. 152 LFN 1990), which was applied by the Court (Port Harcourt Division) in the case of I. F. C. v. D. S. N. L. Offshore Ltd (supra) to which the court below referred and which is binding on the court below, the appropriate order the court below should have made was to strike out the application, not to dismiss it. I would dismiss the appeal but vary the final order of the court below from dismissal of the application to striking out of the application which, for clarity, is hereby struck out for offending due process in the incurably defective commencement of the matter at the court below.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ CIRCUMSTANCES A COURT OF LAW WILL DECIDE AN ISSUE SUO MOTO
In addition, a court can take an issue and decide on it suo motu in the circumstances stated in the case of Blessing Toyin Omokuwajo V. Federal Republic of Nigeria (FRN) (2013) 9 NWLR (pt. 1359) 300 at 332 per the illuminating judgment prepared by Rhodes – Vivour, J.S.C., thus- “The need to give parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the court’s own jurisdiction. (b) both parties are/were aware or ignored a statute which may have a bearing on the case. That is to say where by virtue of statutory provision the Judge is expected to take judicial notice. See Section 73 of the Evidence Act. (c) when on the face of the record serious questions of the fairness of the proceedings is evidence.”
➥ REFERENCED (OTHERS)
