➥ CASE SUMMARY OF:
Shona-Jason Nigeria Limited v. Omega Air Limited (2005) – CA
by Branham Chima (SAL).
➥ COURT:
Court of Appeal – CA/L/418/2000
➥ JUDGEMENT DELIVERED ON:
Monday, the 7th day of February, 2005
➥ AREA(S) OF LAW
Registration of foreign judgement.
➥ PRINCIPLES OF LAW
⦿ COURTS OF LAW DO NOT ENTERTAIN ACADEMIC ISSUES
The issue of applicable law was never raised or joined by the parties in the lower court. That court did not make any finding or decision on the issue or question of applicable law as far as the records of appeal show. That must be why the appellant did not file any ground of appeal against or raise a decision of the lower court on the applicable law. Since the question was not raised nor was it pronounced upon by the lower court, I consider it purely academic and not relevant to the determination of the issues raised in this appeal. The consistent attitude of the courts over the years is that it is not their function to entertain and decide such issues. See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 26 and NICON v. Power and Industrial Engineering (1986) 1 NWLR (Pt. 14) 1 at 22. The issue of applicable law was never in doubt before the lower court and indeed in this court. — Garba, JCA.
⦿ COURT CAN SET ASIDE THE REGISTRATION OF A FOREIGN JUDGEMENT
In any case, the authority, power or jurisdiction to set aside the registration of a foreign judgment as seen above is provided by statute and the courts have recognised that position in a number of decisions. See Hyppolite v. Egharevba (1998) 11 NWLR (Pt. 575) 598 at 614 and 617, Berliet (Nig.) v. Kachalla (1995) 9 NWLR (Pt.420) 478, Dale Power System v. Witt and Busch (2001) 8 NWLR (Pt.716) 699 at 708 and Halaoui v. Grosvenor Ltd. (2002) 17 NWLR (Pt.795) 28 at 42-3. — Garba, JCA.
⦿ UNCHALLENGED AVERMENTS IN AFFIDAVIT ARE DEEMED ADMITTED
Let me say that I agree with both counsels on their respective submissions that unchallenged averments in an affidavit are deemed to be established and admitted by the party whose duty it is to controvert same. Our judicial landscape is replete with authorities on the position that it is now elementary. In addition to the case cited by counsel, see the famous cases of Ajomale v. Yaduat (No.2) (1991) 5 SCNJ 172 at 178; (1991) 5 NWLR (Pt.191) 266 and U.B.N. v. Odusote (1994) 3 SCNJ 1; (1994) 3 NWLR (Pt.331) 129 in the case of Olori Motors v. U.B.N. (1998) 6 NWLR (Pt.554) 493 this court, at page 506-7, held the view that the court must accept unchallenged averments of an affidavit without hesitation. — Garba, JCA.
⦿ EFFECT OF ANNOUNCING APPEARANCE IN COURT
I would like to quickly say here that when a counsel announces appearance or appears before, or in a court, he is not only presumed to be seized of the case, as submitted by the appellants’ counsel, but also presumed to have the authority of the party for whom he appears or on behalf of whom he announced appearance. See Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39 and Gazu v. Nyam (1998) 2 NWLR (Pt.538) 477. — Garba, JCA.
⦿ IT IS UNETHICAL FOR COUNSEL TO MAKE APPEARANCE TO ASK FOR ADJOURNMENT TO ENABLE SENIOR COUNSEL CONDUCT PROCEEDINGS
Furthermore, it is unethical, undesirable and intolerable that a counsel should attend or appear in court in a matter or case merely to ask for an adjournment to enable a more senior colleague to conduct the matter. See the case of Madu v. Okeke (1998) 5 NWLR (Pt.548) 159. — Garba, JCA.
⦿ CRITERIA AND PROCESSES FOR REGISTRATION OF A FOREIGN JUDGEMENT
In the instant case, the relevant legislative provisions, and these have been reproduced supra, are made up of words which are clear and unambiguous in their meanings. Their ordinary literal meaning must accordingly be ascribed to them. Resultantly the combined effect of these provisions are:- (1) Foreign judgments are, on application and a court order thereon, registrable in this country. (2) Application for an order for leave to register such judgments can be made either ex parte or on notice. (3) An application on notice for the registration of a foreign judgment can be made, by the necessary implication deducible from S. 3(4), more than once.
Judgments that must not be registered pursuant to applications in that behalf and if registered their registrations are liable to being set aside, on application by the judgment debtor include:- (a) Judgment given by a court without jurisdiction. (b) Judgment against a judgment/debtor who did not carryon business or resided within the jurisdiction of or voluntarily appeared or submitted or agreed to submit to the jurisdiction of the court that gave the judgment. (c) Judgment against a defendant who although ordinarily resident or was carrying on business or agreed to submit to the jurisdiction of the court that gave the judgment was not duly served with the processes of the court and did not attend trial. (d) Judgment that was fraudulently obtained. (e) An appeal subsist against the judgment or that being entitled to, the judgment/ debtor intends to appeal. (f) If the cause of action on the basis of which the judgment was given could not have been heard by the registering court for reasons of public policy or such other related reasons. (g) it is neither just nor convenient that the judgment be enforced in Nigeria and; (h) for any other sufficient reasons. The discretion of the Judge are frighteningly wide indeed. – M.D. Muhammad, J.C.A.
⦿ WAYS BY WHICH FACTS ARE PROVED IN COURT
Now, a court in the determination of a matter before it enquires into and relies on the relevant facts led by parties before it, draws inferences from such facts and the arguments canvassed by the parties or their counsel. Judicial evidence is the means by which the facts relied upon in taking decisions are proved. Facts are proved by oral testimony of the persons who perceived them, by the production of documents and inspections of things or places. Facts can also be proved by admissions, confessions, judicial notice, presumptions and estoppel. A Judge is free to take Judicial notice of all such facts he is either called upon to or from his general knowledge of such facts or from enquiries made by him on such facts from sources to which it is proper for him to refer. – M.D. Muhammad, J.C.A.
⦿ DISCRETIONARY POWERS JUDICIALLY EXERCISED
Discretionary powers judicially and judiciously exercised cannot be interfered with. One must let the decision of the lower court be. – M.D. Muhammad, J.C.A.
➥ LEAD JUDGEMENT DELIVERED BY:
Garba, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
Otunba Yomi Oshikoya, Esq.
➥ CASE FACT/HISTORY
The High Court of Justice, England (Queens Bench Division Commercial Court) entered judgment in favour of the respondent as plaintiff, in suit No. 1977 Folio 2194 on 9th January, 1998 against the appellant and one other. The respondent then went to the Federal High Court in a motion on notice dated 25th November, 1998 and sought the registration of the said judgment as that of the Federal High Court under the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, 1990.
On the 15th March, 1999, the motion was heard and granted, but the following week, precisely on the 22nd March, 1999, the appellant pursuant to Order 33 rule 5 of Federal High Court – (Civil Procedure) Rules, 1976, the Reciprocal Enforcement of Judgment Act, Cap. 175 LFN 1958 as well as Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, of the Laws of the Federation 1990 and section 33(1) of the 1979 Constitution, in a motion, applied to the Federal High Court to set aside the registration of the judgment.
On the 12th April, 1999, the Federal High Court heard the appellant’s motion and on the ground that it could not set aside a judgment of English Court, dismissed the motion. Being very dissatisfied with the decision of that court, the appellant filed this appeal against it vide a notice of appeal on the 20th April, 1999. The notice of appeal, dated the 18th April, 1999 contained the following grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the lower court can, under the applicable law, set aside the registration of the foreign judgment?
RULING: IN APPELLANT’S FAVOUR.
A. THE LOWER COURT CAN SET ASIDE THE REGISTRATION OF A FOREIGN JUDGEMENT
[In the premises of the above authorities, the decision of the lower court, on page 50 of the record that: “The defendant has made no case as he is asking me to set aside a judgment of an English Court. That I cannot and will not do …” inter alia, cannot be right with due respect. In the 1st place the appellant did not by his motion dated 22nd March, 1999 ask the lower court to set aside judgment of an English court. All that the appellant applied for, as was shown on the face of the motion paper, was for an order from the lower court setting aside the registration of the judgment in question. It needs be pointed out that under the relevant laws; Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of Federation of Nigeria, 1990 and the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws of Federation of Nigeria, 1958, the effect of registering a foreign judgment in a Nigerian court is for all intents and purposes, to make the registered judgment a judgment of the Nigerian court. See section 4(2)(a) of the Foreign Judgments (Reciprocal Enforcement) Act, 1990 and ruling of lower court on p. 39 of the record. Consequently, the registration by the lower court of the judgment in question made it a judgment of that court and it was no longer “a judgment of an English court.” In fact, that was the ruling of the lower court, on p. 39 of the record. The appellant’s prayer in his motion was for the de registration (so to say) of that judgment back to a judgment of an English court. In my view, the de-registration would not have the effect of setting aside the judgment of an English court because it would remain a valid judgment of an English court even after such de-registration by the Nigerian court. In fact, it was because the judgment was a valid judgment of an English court that it was registered in the 1st place by the lower court. So the de-registration would leave it as it was before the registration; i.e. a valid judgment of an English court. Be that as it may, even if it was still a judgment of an English court, my respectful opinion is that having registered same under the relevant Nigerian statutes, the lower court has the power and jurisdiction under section 6(1) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990, to set it aside. For these reasons, I answer and resolve the issues No.1 and 2 in favour of the appellant.]
.
.
II. Whether upon consideration of the judgment debtor/appellant motion on notice dated 22nd March, 1999, the learned trial Judge was right to have refused the prayer for setting aside the order of court dated 15th March, 1999 registering the judgment of the English Court as a judgment of the Federal High Court, Lagos?
RULING: IN APPELLANT’S FAVOUR.
A. BECAUSE THE VALIDITY OF JUDGEMENT WAS NOT RAISED DURING MAIN HEARING DOES NOT BAR THE COURT FROM DE-REGISTERING THE JUDGEMENT
[Counsel therefore said the lower court was right in refusing the application to set aside the registration on the ground inter-alia – “the defendant could but did not raise the issue of validity of the judgment during the hearing of application for registration.” This submission cannot and is not tenable in view of the provisions of section 6(1), (2)(e) of the Reciprocal Enforcement of Judgments Act, Cap. 175 of 1958 and section 6(1)(c) and (d) of the Foreign Judgments (Reciprocal Enforcement) Act, Laws of the Federation of Nigeria, 1990, the combined effect of which was to allow or permit a party against whom a foreign judgment was registered by a Nigerian court, to apply after the registration, to have such registration set aside by the registering Nigerian court. The important point to be noted here is that these provisions permit a party to apply to the Nigerian court that registered a foreign judgment to set aside such registration. These provisions do not say that where such a party did not oppose the registration, he/it cannot afterwards, apply to set same aside in appropriate situations provided for in the laws. I agree that the two Acts, have provisions in section 3(2)(g) and (i) of the Reciprocal Enforcement of Judgments Act, Cap. 175 of 1958 and proviso to section 4 of the Foreign Judgments (Reciprocal Enforcement) Act, Laws of the Federation of Nigeria, 1990 in respect of situations when a foreign judgment shall not be registered. Ordinarily, a party against whom a foreign judgment was to be registered should be diligent to raise any objection it might have against the registration, but that no objection or opposition was made to the application for registration would not in my view, on the face of the above provisions bar such a party from applying to set aside the registration … The issue or effect of the admission of the averments in the affidavit of the motion by respondent for registration of the judgment ended with the grant of that motion and registration of the judgment by the lower court on 15th March, 1999.]
B. THERE WERE VALID GROUNDS FOR DEREGISTERING THE JUDGEMENT, AND THE LOWER COURT OUGHT TO HAVE DONE SO
[The issue or effect of the admission of the averments in the affidavit of the motion by respondent for registration of the judgment ended with the grant of that motion and registration of the judgment by the lower court on 15th March, 1999 … Though the motion was on notice and came up for hearing on 12th April, 1999, when respondent was represented by George-Ikoli and E. O. Madufor, I can find no record of a counter-affidavit for the respondent to challenge the averments of the appellant in the motion. The averment in paragraph 5 and all the other averments in support of the motion by the appellant were not challenged by the respondent. Consequently, like the appellant in the motion for registration of the judgment taken on 15th March, 1999, the respondent in law was deemed to have admitted all the averments in support of the motion … Surprisingly however, without a consideration of the affidavit evidence before it on the record, the lower court ruled on page 50 of the record of appeal thus: “The defendant has made no case as he is asking me to set aside a judgment of an English court. That I cannot and will not do.” … The appellant specifically averred in paragraph 15 of his affidavit that it never had opportunity to defend the case at the English court in respect of which a judgment was entered for the respondent and registered as that of the lower court on 12th March, 1999. In paragraph 4 of the same affidavit, the appellant deposed that the judgment debtor (appellant) at all times material to this suit has its place of business in Nigeria and had no office in the United Kingdom. All these averments were not challenged by the respondent and they disclose facts which establish the situations set out in the 1958 and 1990 Act when the registration of foreign judgment by a Nigerian court is liable to be set aside.]
.
.
.
✓ DECISION:
“In the final result, I find merits in this appeal and allow same. The decision of the lower court refusing to set aside the registration of the judgment of High Court of England (Queen’s Bench Division) in suit No. Folio No. 2198 of 1997, is hereby set aside. The registration of the said judgment by the lower court is accordingly set aside. I assess the costs of this appeal at N5,000.00 in favour of the appellant. Appeal succeeds. Allowed.”
➥ MISCELLANEOUS POINTS
***DISSENTING
**M.D. MUHAMMAD, J.C.A:
⦿ APPELLANT DID NOT OPPOSE THE REGISTRATION OF THE JUDGEMENT AND CANNOT OPPOSE THAT NOW
[The court, after appellant had moved its application was not saying that it never had the power to set aside the registration of the foreign judgment obtained against the appellant. If appellant counsel had seen the ruling in this light it must have been for the simple reason that a sustained effort had not been applied at reading and understanding the court’s ruling wholly and in its entirety. The unmistakable import of the ruling in my firm and considered view is that because appellant had not made out a case for the reliefs he prayed the court, the de-registration of the judgment of an English court and suspension of execution of the said judgment, the Judge “cannot and will not” oblige the reliffs sought by the appellant. So much weather had been put on the impression that the Judge’s ruling was misconceived as there never was a prayer before him to set aside the registered judgment. The relief sought was, instead, for de-registration which the Judge, asserted appellant’s counsel, ignored. This argument to say the least is cheap, opportunistic and uncharitable. Considered as a whole, the court’s ruling does not admit this view. By the materials before the court and given the appellant’s deliberate failure to oppose the application, nay its tacit admission of the fact that respondent had met all the conditions required in making a case for the registration of “the judgment of an English court, the court’s position is that it “cannot and will” not oblige appellant the relief of setting aside the registration of the judgment of an English court it ordered on application by the respondent that had not been opposed.
…
When the respondent before us applied for the registration of the judgment obtained against the appellant, he relied on his supporting affidavit. The crucial averments in this affidavit have already been reproduced in this judgment. By the averments, respondent asserted that all the conditions under S. 3(2) of Cap. 175 of 1958 had been fulfilled. Notably, it was asserted that the original court had the necessary jurisdiction and that appellant had submitted to the jurisdiction of the court. Appellant did not contradict these averments. He must be deemed to have admitted them and it was on the basis of these admissions that the court proceeded to order registration. Subsequently, appellant, as allowed by the law, in particular rule 12 of the rules of court in that regard, applied for the setting aside of the registration of the very judgment he had, in an application on notice, admitted had satisfied all the necessary conditions stipulated by the law to enable registration. Appellant is estopped from resiling from those facts he had earlier admitted. Appellant could only have asked for the de-registration of the judgment on the basis of fresh facts other than those which respondent had averred in support of his application for registration and which facts appellant had admitted to be correct and true. It does not lie in his mouth to say otherwise in a subsequent proceeding. See Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 SC; Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) 561 SC and Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647 SC.]
⦿ THE LOWER COURT EXERCISED HIS POWERS JUDICIOUSLY AND JUDICIALLY AND SUCH SHOULD NOT BE INTERFERED WITH
[It is clear from the affidavit in support of his application for the setting aside of the judgment that appellant’s main grouse is that he was neither resident nor carried out business within the jurisdiction of the original court. He also asserted that he was not served the court’s processes or appeared before or submitted or agreed to submit to the court’s jurisdiction. These are all matters he is deemed to have admitted and estopped from asserting contrary to those admitted facts. His counsel submitted that since respondent did not contradict the averments in the affidavit in support of appellant’s application for de-registration, the court had nothing to the contrary to rely upon. We have seen the fallacy of that submission from the foregoing. It is evident that with appellant having been estopped from making the averments in the first place, there was nothing for the respondent to contradict. The trial court was accordingly right to hold that from the materials before it, appellant did not make out a case for the setting aside of the registration of the judgment of an English court and that he could not and would not so order. This position is in harmony with the legislations the Judge had to apply and the facts available to him. Discretionary powers judicially and judiciously exercised cannot be interfered with. One must let the decision of the lower court be.]
⦿ APPEAL DISMISSED
[In conclusion, I find no merit in this appeal and for the forgoing reasons, the very reasons that made me to disagree with the judgment of my learned brother Garba, JCA, I dismiss the appeal and affirm the decision of the lower court. I order a cost of ten thousand naira (N10,000.00) against the appellant.]
➥ REFERENCED (LEGISLATION)
Section 12 of the Reciprocal Enforcement of Judgment Act, 1958, Cap. 175 provides thus:- “12. The judgment debtor may at any time within the time limited by the order giving leave to register after service on him of the notice of the registration of the judgment apply by petition to a Judge to set aside the registration or to suspend execution on the judgment and the Judge on such application if satisfied that the case comes within one of the cases in which under section 3(2) of the Ordinance no judgment can be ordered to be registered or that it is not just or convenient that the judgment be enforced in Nigeria or for other sufficient reason may order that the registration be set aside or execution on the judgment suspended either unconditionally on such terms as he thinks fit and either altogether or until such time as he shall direct; provided that the Judge may allow the application to be made at any time after the expiration of the time mentioned.”
Section 6(1) of the Foreign Judgment (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation Nigeria, 1990 puts the position more clearly as follows: “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 Act applies or was registered in contravention of the foregoing provisions of this Act; 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 that the judgment was obtained by fraud; or (iv) that the enforcement of the judgment would be contrary to public policy in Nigeria; or (v) 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.”
Sections 3(2) and 6(1) of the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws of Federation of Nigeria, 1958: “3(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; or (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 was 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.”
“6(1) The Chief Justice of a High Court may make rules of court for regulating the practice and procedure (including scales of fees and evidence) in respect of proceedings of any kind under this Ordinance. (2) such rules shall, among other things, provide: (a) for service on the judgment debtor a notice of registration of a judgment under this Ordinance; and for enabling the registering court on an application by the judgment debtor to set aside the registration of a judgment under this Ordinance on such terms as the court thinks fit; and for suspending the execution of a judgment registered under this Ordinance until the expiration of the period during which the judgment debtor may apply to have the registration set aside.”
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
