➥ CASE SUMMARY OF:
Andrew Mark Macaulay V. Raiffeisen Zentral Bank Osterreich Akiengesell Schaft (RZB) of Austria (2003) – SC
by Branham Chima (SAL).
Supreme Court – SC.109/2002
➥ JUDGEMENT DELIVERED ON:
Friday, the 12th day of December, 2003
➥ AREA(S) OF LAW
Registering foreign judgement.
➥ PRINCIPLES OF LAW
⦿ MINISTER OF JUSTICE HAS POWER TO EXTEND THE APPLICATION OF PART 1 OF THE 1990 ACT
Section 3 of the 1990 Act empowers the Minister of Justice of the Federation of Nigeria to extend the application of Part 1 of that Act with regard to registration and enforcement of foreign judgments of superior courts, to any foreign country, including United Kingdom if he is satisfied that the judgments of our superior courts will be accorded similar or substantial reciprocity in those foreign countries. And once an order is made under section 3 of the 1990 Act in respect of any part of Her Majesty’s dominions to which the 1958 Ordinance earlier applied, the latter ceases to apply as from the date of the order. The learned counsel for the parties have both agreed that the Minister of Justice has not exercised that power in respect of any foreign country under the said Act. I also agree with them on this and I so find. — A. Kalgo, JSC.
⦿ THE 1958 ORDINANCE STILL APPLIES TO REGISTRATION OF FOREIGN JUDGEMENTS
The 1958 Ordinance was promulgated as No.8 of 1922 “to facilitate the reciprocal enforcement of judgments obtained in Nigeria and in the United Kingdom and other parts of Her Majesty’s Dominions and Territories under Her Majesty’s protection”. It came into operation on the 19th of January, 1922. There is no doubt therefore that it applies to all judgments of the superior courts obtained in the United Kingdom and its application can be extended to any other territory administered by the United Kingdom or any other foreign country. This can be done by proclamations pursuant to section 5 of that Ordinance. Therefore the 1958 Ordinance not having been repealed by the 1990 Act, still applies to the United Kingdom. — A. Kalgo, JSC.
⦿ SIX YEARS FOR REGISTRATION OF JUDGEMENT CAN ONLY APPLY WHERE MINISTER HAS EXERCISED HIS POWER
In 1961, the Foreign Judgments (Reciprocal Enforcements) Act (Cap. 152) Laws of the Federation of Nigeria was enacted. Under section 4(1), the period within which a foreign judgment may be registered in Nigeria was extended to six years from the date of such judgment. But section 3(1) of the Act makes the applicability of the six years’ period subject to an order by the Minister of Justice directing that Part I of the Act [which includes section 4(1)] shall extend to a relevant foreign country … Section 9 of the Act preserves the effect of the Reciprocal Enforcement of Judgments Ordinance until an order envisaged under section 3(1) is made by the Minister. This relates to all foreign judgments including those given in the United Kingdom which should be registered within 12 months or such longer period the court may allow them. — S.O. Uwaifo, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
A. Kalgo, J.S.C.
⦿ FOR THE APPELLANT
Phillip Umeadi, Jnr
⦿ FOR THE RESPONDENT
Mr. I.O. Iluyomade.
➥ CASE FACT/HISTORY
The appellant is a foreigner who has been residing in Nigeria since 1986. He together with 2 other persons who resided outside Nigeria guaranteed a loan from the respondent to a company called Constante Trading Limited based in Channel Island. The loan was to be repaid by the company in accordance with the terms and conditions set out in the deed of guarantee and the company defaulted. The respondent sued the appellant and the other 2 guarantors jointly and severally in High Court, Queen’s Bench Division Commercial Court in England and obtained judgment on the 19th of December, 1995 against them jointly and severally for the sum of Five Million, Five Hundred Thousand U.S. Dollars (US $5,500,000.00) with interest in accordance with the deed of guarantee. On the 28th of August, 1997, the respondent by an ex-parte petition applied to the Lagos High Court for leave to register the said judgment and by an order made on 8th of September, 1997, Alabi J. granted leave and the judgment was accordingly registered as a foreign judgment. By a petition on notice filed on 22nd of October, 1997 the appellant applied to set aside the said registration on the grounds that it was not in accordance with the relevant law and was contrary to public policy in Nigeria. The petition was heard by the learned trial Judge who on 6th of February,. 1998 dismissed it and held that the judgment was validly registered. The appellant appealed to the Court of Appeal against that order, but his appeal was dismissed and he appealed further to this court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Court of Appeal was right in holding that the registration of the judgment of the High Court of England in Nigeria after twelve months from the date of judgment was within time and competent.
RULING: IN APPELLANT’S FAVOUR.
A. SINCE THE 1990 ACT HAS NOT BEEN EXTENDED BY THE MINISTER OF JUSTICE, THE PROVISIONS IN THE 1990 ACT ARE INAPPLICABLE; 1958 ACT APPLIES WHICH LIMITS TO 12 MONTHS FOR REGISTRATION
[There is no doubt that the judgment in question was given by a High Court in the United Kingdom. Therefore the provisions of the 1958 Ordinance fully apply to it. Section 3 of the Ordinance provides:- “3(1) Where a judgment has been obtained in the High Court in England or Ireland, or in the court session in Scotland, the judgment creditor may apply to a High Court at any time within twelve months after the date of the judgment or such longer period as may be allowed by the lower court, to have the judgment registered in the court, and on any such application the court may, if in all the circumstances of the case it thinks it just and convenient that the judgment should be enforced in Nigeria and subject to the provisions to be registered accordingly.” Applying the 1958 Ordinance, the judgment in question must be registered within 12 months after the date of the judgment or any longer period allowed by the registering High Court. At the same time since the Minister of Justice has not yet exercised his power under section 3 of the 1990 Act extending the application of Part I of that Act to the United Kingdom where the judgment in question was given, then section 10(a) of the said Act can also apply. That section reads:- “Notwithstanding any other provision of this Act- (a) a judgment given before the commencement of an order under section 3 of this Act applying Part I of this Act to the foreign country where the judgment was given may be registered within twelve months from the date of the judgment or such longer period as may be allowed by a superior court in Nigeria.” (italics mine) By this provision, irrespective, regardless or in spite of any other provision in the 1990 Act, any judgment of a foreign country including United Kingdom to which Part I of that Act was not extended, can only be registered within 12 months from the date of the judgment or any longer period allowed by the court registering the judgment since the provisions of Part I of the said Act had not been extended to it. Section 4 of the 1990 Act which speaks of registering a judgment within 6 years after the date of judgment only applies to the countries where Part I of the said Act was extended, that is to say, when the Minister made an order under the 1990 Act; and in this case it was not.
I have carefully read the briefs of counsel in this appeal and the decided cases and treaties referred to therein and having regard to what I have stated above, I am of the firm view and find accordingly that the provisions of section 3 of the 1958 Ordinance and section 10(a) of the 1990 Act apply to the question of the registration of the judgment in the instant case. Each of these sections provides that the judgment to be registered under it must be registered within twelve months from the date of the judgment or any longer period allowed by the registering court. In the instant case, the judgment was delivered on the 19th of December, 1995, and the application for registration of the judgment was filed in the trial High Court on the 18th of August, 1997. This is one year eight months from the date of the judgment. This is clearly in contravention of the provisions of both sections mentioned earlier. I therefore agree with the learned counsel for the appellant that the registration of the judgment in question made by the trial High Court and confirmed by the Court of Appeal was incompetent and not in accordance with the relevant laws. I therefore answer issue I in the negative.]
“For the reasons stated above, I find that there is merit in this appeal and I allow it. The registration of the judgment in question made by the trial High Court and confirmed by the Court of Appeal is incompetent and is hereby struck out. I award N10,000.00 costs in favour of the appellant against the respondent.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)