➥ CASE SUMMARY OF:
Grosvenor Casinos Ltd. V. Ghassan Halaloui (2009) – SC.373/2002
by Branham Chima (SAL).
➥ COURT:
Supreme Court – SC.373/2002
➥ JUDGEMENT DELIVERED ON:
Friday, the 15th day of May, 2009
➥ AREA(S) OF LAW
Registration of foreign judgement;
No submission to jurisdiction;
Set aside registered judgement.
➥ PRINCIPLES OF LAW
⦿ THE 1958 RECIPROCAL ACT APPLIES SINCE THE MINISTER OF JUSTICE IS YET TO MAKE AN ORDER UNDER THE 1990 ACT
Taking into consideration that Part I of the Foreign Judgments (Reciprocal Enforcement) Act, CAP 152 of the Laws of the Federation, 1990, comprising Sections 3, 4, 5, 6, 7, 8, 9 and 10, is to come into force only at the instance of the Minister of Justice by an order issued by him as specified in Section 3 of the Act, and in the absence of this order directing the application of Part I of the Act to the chosen countries specified in the order, the provisions of the earlier 1958 Reciprocal Enforcement of Judgments Act CAP 175, remains applicable to the registration of foreign Judgments in Nigeria, particularly Judgments of the United Kingdom, one of which is the subject of this appeal. In other words Section 6 of the 1990, Act which was relied upon by the parties at the Courts below and interpreted and applied by the Court of Appeal below in its Judgment, is yet to come into force in the absence of the Order to bring it into force together with the other Sections in Part I of the Act by the Hon. Minister of Justice. This situation makes it necessary to fall back to the 1958 Ordinance to determine whether or not the Foreign Judgment of the Appellant was registrable under that Act. — M. Mohammed, JSC.
⦿ COURT WILL GIVE PLAIN MEANING TO STATUTORY PROVISION
It is a Statutory provision which is clear and unambiguous. In such a situation, the duty of the court, is to give effect to the ordinary plain meaning of the words without resorting to any external aid. See the case of Chief Joseph A. Okotie-Eboh v. Chief James Ehiowo Manager & ors. (2004) 12 SCNJ 139. So, the question of Common Law, or Evidence Act, with respect, is therefore, of no moment. — Ogbuagu, JSC.
⦿ SENTIMENT HAS NO PLACE IN OUR COURTS
If I go by sentiments, having regard to the facts of this case leading to this appeal and as appear in the lead Judgment of my learned brother, Oguntade, J.S.C., I may be inclined to allow this appeal. But it is now firmly settled, that sentiments, have no place in our courts including this court. See the cases of Ezeugo v. Ohanyere (1978) 6-7 S.C. 171 @ 184; Omote & Sons Ltd. v. Adeyemo & 9 ors. (1994) 4 NWLR (Pt.336) 48 C.A. and Orhue v. NEPA (1998) 7 NWLR (Pt.557) 107; (1998) 5 SCNJ 126@ 141. — Ogbuagu, JSC.
⦿ IF THE JUDGEMENT OF A COURT IS CORRECT, IT WILL NOT BE REVERSED BECAUSE A WRONG LAW WAS RELIED UPON
Although the court below relied on the inapplicable 1990 Act or Law in arriving at its said decision, it is now firmly settled that what an appeal has to declare, is whether the decision of the court below, was/is right. If the judgment of a court is correct, it is not liable to reversal merely because it was anchored on a wrong reason or law. In other words, a mistake or error in a judgment, is immaterial provided it has not occasioned a miscarriage of justice. It is not every mistake or error in a judgment, that necessarily, determines an appeal in favour of an appellant. See the cases of Ayeni & 3 Ors. v. Sowemimo (1982) NSCC 104; (1982) 5 S.C. (Reprint) 29; Onajobi v. Olanipekun (1985) 4 S.C. (pt.2) 156 at 163 and Odukwe v. Mrs. Ogunbiyi (1998) 8 NWLR (Pt….) 339 at 351; (1998) 6 SCNJ. 102 at 113 just to mention a few. — Ogbuagu, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
A. Oguntade J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Oluyede, Esq.
⦿ FOR THE RESPONDENT
Dr. Ajibade (SAN).
➥ CASE FACT/HISTORY
The respondent had issued a cheque in favour of the appellant. It was drawn on a bank in the United Kingdom. The cheque was in satisfaction of a debt of 199,711.00. Upon presentation on or about 21-04-93, the cheque was dishonoured. Subsequently and perhaps as a result of a demand for payment by the appellant, the respondent reduced his indebtedness by paying 88,000.00.pounds This left outstanding the sum of 111,711.00. The respondent did not pay the balance. The appellant then issued a writ of summons under the undefended list procedure at the High Court of Justice, Queen’s Bench Division in England. The writ of summons, statement of claim and other processes were served by substitution on the respondent in Nigeria. The respondent did not enter appearance to the writ. He did not file a defence either. On 15/06/99, judgment was given against the respondent for 180,530.00pounds and costs assessed at 718.00pounds. In its effort to execute the judgment, the appellant upon an ex-parte application brought before the High Court, Ibadan (hereinafter referred to as “the trial court”) prayed that the judgment obtained in England be registered. Adio J. (as he then was) heard the application and granted it on 22/11/99. In reaction, the respondent brought an application before the trial judge that the order registering the judgment be set aside. On 24/2/2000, Adio J. in a ruling refused the prayer that the registration be set aside.
The respondent, dissatisfied with the ruling of the trial court brought an appeal against it before the Court of Appeal, Ibadan (hereinafter referred to as “the court below.”). The court below, in its judgment on 11-06-2002 allowed the appeal. It set aside the order registering the judgment of the English court.
The appellant in this appeal (i.e. respondent at the court below) was dissatisfied with the judgment of the court below. He has brought a final appeal before this Court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether or not the court below came to the right conclusion on the interpretation of the applicable law?
RULING: IN RESPONDENT’S FAVOUR.
A. THE DEFENDANT/RESPONDENT DID NOT SUBMIT TO THE JURISDICTION OF THE COURT
[Dealing with the crux of the matter, the Court of Appeal said at page 125 of the Record: “It is clear from the afore-mentioned decisions that the interpretation given to similar provisions as those in section 6 of the Nigerian Act is that a registration of any foreign judgment made under section 4 of the Act will be set aside if the registering court is satisfied that the courts of the country of the original court had no jurisdiction and those courts will be deemed not to have such jurisdiction, if, inter alia, the judgment debtor did not submit to the jurisdiction of the court by appearing in the proceedings: See also Cheshire & North, Private International Law, lath ed. P. 629 et seq. The appellant in the instant case, although he was duly served with the processes of the court, he did not enter any appearance and it has not been shown that he was at any time resident within the jurisdiction of that court or that he had any property there. In the result the provisions of the afore-mentioned section 6 of the Act, will be applicable to him. He is therefore entitled to have the registration of the judgment made by the lower court to be set aside. The appeal therefore succeeds and the registration of the judgment made by the lower court is set aside.”
“Under section 3(2)(b) above, a judgment obtained in the High Court in England or Ireland can only be registered in Nigeria for the purpose of enforcement if the judgment debtor voluntarily appears or otherwise agrees to submit to the jurisdiction of that court in England. The undisputed evidence before the trial court is that the respondent, although served out of jurisdiction with the processes leading to the judgment later registered, never appeared before the English court. He was not represented by counsel. In a blunt language, he just ignored the proceedings against him in the court in England. Appellant’s counsel has in his brief argued that there was the need to preserve the special link between the Nigerian and English courts as evident in various High Court Laws and the Evidence Act which said special link imposes the necessity to ignore the English Common Law principles of Private International Law which were relied upon by the court below. Counsel relied on Re Dulles v. Vidler (Duties Settlement No.2) [1951] 1 Ch. 842. He further counseled on the desirability of following the modern trends in various countries where the approach followed is not based on the principle of “presence and submission” but “comity” and its offspring “jurisdictional reciprocity”. He called in aid the case of Brussels [1968] and Lugano [1988] Conventions on jurisdiction and enforcement of judgments in civil and commercial matters. I have no doubt that it is inimical to the interest of trade and commerce if judgments in foreign countries cannot be readily enforced in Nigeria. It is particularly alarming that when in a case like this, a person ordinarily resident in Nigeria obtains a credit in England and in satisfaction issues a cheque which is later dishonoured, the judgment obtained against him cannot be enforced in Nigeria. Under Section 3(2)(b) above, the judgment of a court in England cannot be enforced in Nigeria on the ground that a defendant has not submitted to the jurisdiction of the English court. There is an urgent need to reform our law on the matter. It is an open invitation to fraud and improper conduct.”]
.
.
.
✓ DECISION:
“I am satisfied that the court below was right in its decision even if I find the decision harsh in its effect. I affirm it and would accordingly dismiss this appeal. I make no order as to costs.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 3(2) & (3). Cap 175 of the 1958 Laws of the Federation. The Section provides: “(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 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. (3) Where a judgment is registered under this Ordinance- (a) the judgment shall, as from the date of registration, be of the same force and effect, and proceedings may be taken thereon, as if it had been a judgment originally obtained or entered up on the date of registration in the registering court; (b) the registering court shall have the same control and jurisdiction over the judgment as it has over similar judgments given by itself, but in so far only as relates to execution under this Ordinance; (c) The reasonable costs of an incidental to the Registration of the judgment (including the costs of obtaining a certified copy thereof from the original court and of the application for registration) shall be recoverable in like manner as if they were sums payable under the judgment.”
➥ REFERENCED (CASE)
⦿ NON-SUBMISSION TO THE JURISDICTION OF FOREIGN COURT
✓ In the New Zealand case of Sharps Commercials Ltd. v. Gas Turbines Ltd. (1956) NZLR 819, the Supreme Court of that country, held that a judgment given by the High Court of Justice in England in an action in personam (as in the instant case leading to this appeal), could not be registered in that Supreme Court because, the judgment debtor – a Company registered in New Zealand, which at no time, had any office or place of business in England, but or although it was served with the Writ, it did not take any part in the proceedings in the said High Court or submit to its jurisdiction or agree in respect of the subject-matter of the proceedings to submit to the judgment of that court, because none of the conditions set out in Section 6(3) of the Reciprocal Enforcement of Judgments Act, 1934 of New Zealand (which is substantially the same with the 1958 Act).
✓ In the case of Schibsby v. Westenholz & Ors. (1861 – 73) All E.R. 988, it was held that a judgment obtained in a foreign court in default of appearance, against the defendants who were not subjects of the Foreign State and who also, were not resident there at the time the proceedings were instituted and who also did not own any property in that foreign State, but although the defendants had notice of the said proceedings sufficient for them to have appeared and defend the action, they had no duty, to obey the judgment so, an action to have the judgment enforced, failed. I note however, that this case, was before the 1933 Act.
✓ In the case of Societe Cooperative Sidmetal v. Titan Internatioonal Ltd. (1966) 1 Q.B. 828. it was held or decided by the Queen’s Bench Division of the High Court of Justice, London, England, that a judgment of a Belgian Court given against a defendant resident in England, could not be registered in England under the 1933 Act because, although the defendant, was served with the processes in England, he did not surrender to the jurisdiction of the Belgian Court by voluntarily appearing and participating in the proceedings.
➥ REFERENCED (OTHERS)
⦿ COURT CANNOT EXERCISE JURISDICTION OVER A PERSON BEYOND ITS LIMIT
The learned author of Cheshire and North Private International Law 10th edition at P.98 discusses the position of the Common Law in England in these words:- “English law stands aloof from this doctrine. It remains staunch by the principle that ‘a court has no power to exercise jurisdiction over anyone beyond its limits’ and insists that no action in personam will be against a defendant unless he has been served with a writ while present in England or unless by virtue of some statutory power, notice of the writ has been served on him abroad.”
