➥ CASE SUMMARY OF:
Marine & General Assurance Company Plc. v Overseas Union Insurance Ltd. & Ors. (2006) – SC.108/2001
by Branham Chima (SAL).
Supreme Court – SC.108/2001
➥ JUDGEMENT DELIVERED ON:
Friday, the 27th day of January, 2006
➥ THIS CASE IS AUTHORITY FOR:
Registration of foreign judgement;
➥ PRINCIPLES OF LAW
⦿ AN ISSUE IS THE QUESTION FOR RESOLUTION WHICH DETERMINES THE DISPUTE
That is to say the appellant having succeeded in establishing that the respondent’s application to register the foreign judgment was filed out of time, the need to rely on the other issues to arrive at the same result is quite necessary. An issue is the question in dispute between the parties necessary for determination of the suit or appeal. An issue, which is normally raised by way of a question, is usually a proposition of law or fact in dispute between the parties necessary for determination by the court, a determination which will normally affect the result of the suit or appeal. See Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417; Okoromaka v. Chief Odiri (1995) 7 NWLR (Pt.408) 411 and Olafisoye v. Federal Republic of Nigeria (2004) 4 NWLR (Pt.864) 580 at 641-642 … As the determination of the five issues in the appellant’s brief of argument will not affect the result of this appeal, the issues have ceased to be the real issues for determination between the parties in this appeal. This is because courts of law are not established to deal with hypothetical and academic questions. Courts are established to deal with life issues which relate to matters in difference between the parties. See National Insurance Corporation v. Power and Industrial Engineering Co. Ltd. (1986) 1 NWLR (Pt.14) 1 at 22; Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710 at 728; Ekperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at 179; Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 at 534; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 330 and Macaulay v. R.Z.B. of Austria (2003) 18 NWLR (Pt.852) 282 at 300. — M. Mohammed, JSC.
⦿ A COURT OF LAW CANNOT APPLY AN INCHOATE STATUTE NOT YET RIPE
By the decision, the Court of Appeal, with respect, jumped the gun by invoking section 4(1) of the Act, a subsection which is not ripe for application in the light of its inchoate content, vide section 3(1) thereof. This is because the Minister of Justice has not invoked his power to make any order. Courts of law have the jurisdiction to apply existing law which is not subject to an order to make it enforceable. They do not have the jurisdiction to anticipate a law and invoke a law which cannot be enforced, by providing teeth to enforce it. That is the function of the Legislature and courts do not dabble into that legislative terrain. Where a statute confers on a Minister the power to enforce a statute by an order, the statute will not be in force until the Minister has made the order. In view of the fact that by section 3(1) of the Act, the provision of section 4(1) extending the period of six years can only come into operation by an order of the Minister of Justice, the subsection is not available to the respondents as the Minister has not invoked his powers under sections 3(1) and 9(1). — Niki Tobi, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Mahmud Mohammed, JSC.
⦿ FOR THE APPELLANT
Olumide Sofowora, Esq.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
By a petition/application dated 16-5-1994 as amended, the respondents at the trial High Court of Justice, Lagos State sought for the following relief:- “An order that the judgment dated the 25th day of May, 1990 whereby it was adjudged that the respondents do pay the petitioner 427.77 (Four Hundred and Twenty Seven Pounds, Seventy Seven Pence) and US$92,470.80 (Ninety Two Thousand, Four Hundred and Seventy Dollars, and Eighty Cents) or the sterling equivalent at the date of payment with interest to be assessed if not agreed from 30th September, 1987, may be registered as a judgment of the High Court of Lagos State Judiciary Division pursuant to the Foreign Judgments/Reciprocal Enforcement Act, Cap. 152, Laws of the Federation, 1990, and enforced against the respondent.” The appellant, as respondent to the said petition filed a counter affidavit dated 2-9-1994. A reply or response in the form of a further affidavit was filed by the petitioners/applicants on 24-10-1994 before the matter was subsequently argued by the parties on both sides before the trial High Court. In his considered ruling delivered on 27-6-1996, the learned trial Judge, Olugbani J. dismissed the respondents’ petition/application. Aggrieved by this decision of the trial High Court, the respondents decided to appeal against it to the Court of Appeal Lagos Division. The Court of Appeal after hearing the appeal in a unanimous decision delivered on 11-12-2000, allowed the appeal, set aside the decision of the trial Lagos State High Court and granted leave to the respondents to register and enforce the foreign judgment sought to be registered, as a judgment of the High Court of Lagos State. Obviously not satisfied with the judgment of the Court of Appeal, the appellant has now appealed to this court.
Part of this ruling which is relevant in this appeal, particularly with regard to the determination of the real issue for determination in this appeal reads:- “In the present situation, if the judgment exhibit ‘QUILI’ is registrable it has to be registered within twelve months of the date of the judgment or if the court extends time to do so on the application of the party seeking to enforce the judgment. The judgment exhibit ‘QUILI’ was given on the 25th day of May, 1990. The application was filed in the High Court Registry on the 18th day of May, 1994 and came before this court in September 1994. The period for registration had expired in accordance with section 3(1) of the Foreign Judgment (Reciprocal & Enforcement) Act for more than four years before the application for registration was filed in this court.” From this ruling of the trial court, the fact that that court had dismissed the respondents’ application to register the foreign judgment because the application was filed out of time is quite obvious.
The main reason given by the court below for allowing the appeal is contained at pages 177-178 of the record of this appeal where that court said- “It would appear that learned trial Judge applied section 3(1) of the Foreign Judgment (Reciprocal Enforcement) Act to the judgment emanating from the High Court of Justice, Queens Bench Division, Commercial Court, England. He however omitted to consider section 4 of the Act, which by virtue of section 9 of the Act is applicable to judgment from any part of the Common wealth other than Nigeria. However, close reading of section 3(1) of the Act will indicate that the Minister of Justice is empowered to extend the application of Part 1 of the Act to the judgment given in superior courts of foreign country in which substantial reciprocity of treatment will be assured regarding the enforcement in that foreign country of judgments given in superior courts in Nigeria. In any case section 10 of the Act expressly states that ‘a judgment given before the commencement of an order under section 3 of this Act applying Part 1 of this Act to the foreign country, where the judgment was given may be registered within twelve months from the date of judgment or such longer period as may be allowed by a superior court in Nigeria. It is in the light of this that I find that the lower court was wrong in dismissing the petitioners’ application to register the judgment of the High Court of Justice, Queens Bench Division, Commercial Court, England made on the 25/5/1990 by applying section 3(1) of the Act.”
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the court below was right having regard to the provisions of sections 3(1) and 10 of the Foreign Judgment (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation, 1990?
RULING: IN APPELLANT’S FAVOUR.
A. THE 1958 ACT APPLIES TO REGISTRATION OF FOREIGN JUDGEMENT
[‘It is necessary first to answer the question regarding the current relevant law applicable to Nigeria governing the registration of foreign judgments for the purpose of enforcement in the country. While the parties in this appeal appeared to have relied exclusively on the provisions of the Foreign Judgment (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation, 1990, in pursuing their matters at the trial High Court and the Court of Appeal, it is only on coming to this court of appeal that it dawned on the learned counsel to the appellant that the dispute between the parties is also governed by the provisions of the Reciprocal Enforcement of Judgments Act, 1922, Cap. 175 Laws of the Federation and Lagos, 1958. The present state of the law as determined by this court on the proceedings for the registration of foreign judgments in this country was stated in the recent decision of this court in the case of Macaulay v. R.Z.B. of Austria (2003) 18 NWLR (Pt.852) 282 at 297-298 where Kalgo JSC stated the law – “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 promulgations 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. 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.”’
‘The lower court whose judgment now on appeal had found that a judgment of the High Court of Justice England in the United Kingdom delivered four years before filing an application for its registration in Nigeria could be registered under section 4 of the Foreign Judgments (Reciprocal Enforcement) Act 1961 Cap 152 Laws of the Federation of Nigeria 1990. Learned counsel for the respondents had strongly argued that the respondents’ application for registration of the foreign judgment having been filed within 6 years after the date of judgment, had satisfied the main requirement under section 4 of the Act and therefore rightly ordered to be registered by the court below. However, what the lower court and the learned counsel to the respondents failed to realize is the fact that the entire provisions of Part 1 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, 1990 containing section 4 of the Act required a positive action on the part of the Minister of Justice of the Federation to bring that part of the Act into force.’]
B. THE COURT OF APPEAL WAS IN ERROR IN REGISTERING THE JUDGEMENT DELIVERED FOUR YEARS AGO
[‘Part 1 of the Foreign Judgment (Reciprocal Enforcement) Act Cap. 152 of the Laws of the Federation 1990, comprises sections 3, 4, 5, 6, 7, 8, 9 and 10. From the provisions of section 3 of the Act quoted above, it is quite clear that the provisions of Part 1 of the Act remains dormant or inactive until life is breathed into them by an order promulgated by the Minister who by section 1 of the Act, is the Minister of the Federation charged with responsibility for justice. It is quite clear on the face of the provisions of this Act that no such order was made by the Minister of Justice in exercise of his powers under section 3(1) of the Act to bring into life the provisions of Part 1 of the Act. Therefore until then, section 4 of the Act shall not be available to any litigant to support an application to register a foreign judgment within a period of 6 years from the date of the judgment. In this respect, the court below was clearly in error in relying on the provision of section 4 of the Act which is yet to come into force, to allow the respondents’ appeal and grant leave for the registration of the foreign judgment in favour of them even though the judgment was delivered four years after the date of filing of the application at the trial High Court.’
‘With this correct statement of the law on the subject of the registration of foreign judgment by the court below, one would have expected that court to proceed and affirm the ruling of the trial court which refused to register the United Kingdom Foreign Judgment in favour of the respondents because the application to register it was not brought until four years after the date of the judgment. Unfortunately, the court below failed to realize that the provisions of section 4 of the 1990 Act containing the period of six years for the registration of such judgment is yet to come into force in the absence of the Order by the Minister of Justice under section 3 of the Act. Therefore, the failure of the court below to apply the provisions of sections 3(1),9(1) and 10 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, 1990 which that court found to have been quite clear, precise and unambiguous requiring only literal interpretation, was responsible for its derailing from the right track it was on, in its judgment.’]
C. REGISTRATION OF FOREIGN JUDGEMENT SHOULD BE IN 12 MONTHS AFTER JUDGEMENT DELIVERY
[‘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 1 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.’]
‘In the final analysis, this appeal has merit. The appeal is therefore allowed. The judgment of the lower court delivered on 11-12-2000 is set aside. In place of that judgment set aside, there shall be substituted, the ruling of the trial court of 27-6-1996 dismissing the respondents/applicants application. The appellant is entitled to costs both at the lower court and in this court which I assess at N5,000.00 and N10,000.00 respectively.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)