➥ CASE SUMMARY OF:
Momah v. VAB Petroleum Inc – (2000) All N.L.R. 695
by Branham Chima (SAL).
➥ COURT:
Supreme Court – SC. 183/1995
➥ JUDGEMENT DELIVERED ON:
25 February 2000
➥ AREA(S) OF LAW
Stay of execution;
Order in foreign currency;
Conflicting affidavit.
➥ PRINCIPLES OF LAW
⦿ WHILE DEALING WITH RULING, COURT SHOULD NOT GO INTO MERIT
He dismissed the application in a somewhat lengthy ruling dealing in some respects with the substance and merit of the appeal which the Court of Appeal was yet to hear and determine. In my opinion, this is, with utmost respect, prejudicial, irregular and undesirable. Fortunately it is a different panel of the court below that will now hear the pending appeal. — Uwais, CJN.
⦿ ISSUE NOT BASED ON GROUNDS OF APPEAL WILL BE DISCOUNTENANCED
In my opinion, Issue (A) is not based on any of the seven grounds of appeal filed by the appellant. I will have to therefore, discountenance it. — Uwais, CJN.
⦿ CONTRADICTIONS IN APPLICANT’S OWN AFFIDAVIT
Based on the above findings, the applicant cannot be heard to contend that the court below did not exercise its discretion judicially and judiciously. With the inconsistent, dishonest and woolly averments in the affidavits of the applicant, no reasonable tribunal could have granted his application. The court below was even charitable to him to have gone into the merits of the application … The applicant having contradicted himself on very serious and important issues of fact in his application which bordered on dishonesty, should not have turned round to complain. He did not approach the court with clean hands and those averments disqualified him from the exercise of the court’s discretion in his favour. — Ogwuegbu, JSC.
⦿ WHERE CONFLICT IN BOTH AFFIDAVITS, COURT WILL CALL FOR ORAL EVIDENCE
On the question of conflict of affidavit evidence placed before the lower court which appellant’s learned Counsel had submitted should be resolved by oral evidence in order to act on such evidence, our case law is replete with authorities that where a matter is being tried on affidavit evidence and the court is confronted with conflicting or contradictory evidence relied on by the parties on a material issue before the court; it is the law that the court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve resolution of the conflict. (See Falobi v Falobi (1976) 9 & 10 SC 1 and Akinsete v Akidutire (1966) All NLR 137). — Achike JSC.
⦿ INCONSISTENCY IN PARTY’S OWN AFFIDAVIT – COURT CANNOT HELP
In the case in hand, the contradictions or conflicts in affidavit evidence did not relate to the affidavit evidence filed by the appellant, on the one hand, and that filed by the respondent, on the other; rather, the contradiction arose only in respect of the appellant’s averments in his numerous affidavits. Therefore, the age-long principle of fielding witnesses to furnish oral evidence for the resolution of the contradictions between the two separate sets of evidence by the parties did not arise. Rather, it was self-evident from the judgment of the lower court that the contradictions alluded to were those that arose from the inconsistencies in the depositions in the appellant’s own affidavits. Clearly, where the appellant’s case is plagued by inconsistencies or contradictions, there is no obligation, in such circumstances, on the court seized of the matter to arrange for oral evidence to be called for the purposes of making or resolving the contradictions in the appellant’s case. The law frowns on a party who approbates in one breath and reprobates in another. But having said that, I must hurry to state that the onus is undoubtedly on the appellant confronted with its self-created contradictions to fully and properly explain away the contradictions to the satisfaction of the court. Failure to do so is bound to leave an indelible dent on the appellant’s case. It is not open to the court to enter into the arena of judicial conflict between the parties in order to resolve the contradictions within the appellant’s own affidavit evidence. — Achike JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Uwais, CJN
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
This is an interlocutory appeal from the decision of the Court of Appeal, Lagos Division. The appellant herein is judgment debtor to a judgment delivered by the High Court of Justice, Queen’s Bench Division, (commercial court) London, United Kingdom, while the respondent herein is the judgment creditor to the said foreign judgment which was obtained in 1991. In 1993, the judgment creditor brought a Notice on Motion in the High Court of Lagos State, holden at Lagos, seeking an order of that court to register the foreign judgment in question pursuant to the provisions of the Foreign Judgments (Reciprocal Enforcement) Act Cap. 152 Laws of the Federation of Nigeria 1990. The motion was contested by the judgment debtor but it was granted by Adeniji J, in a considered ruling. Being dissatisfied with the ruling, the judgment debtor appealed to the Court of Appeal.
He also filed a Notice on Motion in that court in which he inter alia prayed for:- “1. An order staying execution of the order made in this suit on the 14 December 1993 by the Honourable Justice AB Adeniji of the High Court of Lagos sitting in Lagos wherein he ordered the registration of the foreign judgment of the High Court of Justice of the Queen’s Bench Division of England pending the determination of the appeal filed in this Honourable Court.” After filing series of affidavits, counter-affidavits and replies to counter-affidavits, the motion was heard by the Court of Appeal and a considered ruling was delivered on 25 June 1995 by Pats-Acholonu, JCA (with whom Kalgo, JCA, as he then was, and Ibrahim Tanko Muhammad, JCA concurred). He dismissed the application.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the Court of Appeal did not exercise its discretion judicially and judiciously in coming to the conclusion not to grant stay?
RULING: IN RESPONDENT’S FAVOUR.
A. THE COURT OF APPEAL ACTED JUDICIALLY AND JUDICIOUSLY
[‘It will be observed from the foregoing that the court below was concerned with the intrinsic contradictions in the affidavits filed by the appellant in support of his application and not the contradictions apparent between the appellant’s affidavits on one hand and the respondent’s affidavit on the other. While in the former case the contradictions do not call for the hearing of oral evidence in order to resolve them; in the latter case the contradictions must be resolved by oral evidence before the court below could rely on any of the contradicting depositions to reach a decision. It is the former position that the court below relied upon to reject the appellant’s application. The argument of the appellant, which has been based on the latter position, is a misconception. It is, therefore, irrelevant and unhelpful to his case. On the whole it cannot be said that the Court of Appeal did not exercise its discretion judicially and judiciously in coming to the conclusion not to grant stay. It is the balance of convenience that tilts the scale always in determining whether to grant a stay. The court below was not satisfied with the facts deposed to in the affidavits in support of the appellant’s application. It could not, therefore, in good conscience, grant him stay. In other words the balance of convenience in the case was not in favour of the appellant. For my part, I do not see any error in the decision of the Court of Appeal in this respect and cannot hold that it acted wrongly in refusing the stay.’]
B. THE CONSEQUENTIAL ORDER MADE BY THE COURT IS IN ORDER
[‘There can be no doubt that the consequence of the refusal to order Stay of Execution in the present case is, by inference, that the respondent, as judgment creditor, is entitled to enforce the judgment in his favour. In my opinion, therefore, the order that the appellant should deposit the judgment debt in court to be kept in a bank account does not detract from the dismissal of the application for Stay of Execution. It appears to me that the consequential order is, in effect or by implication, the same as an Order for Stay of Execution with a condition that the judgment debt should be paid into court instead of the appellant’s title deeds being deposited in court as prayed. For if the consequential order is complied with, the respondent will not be in a position to execute the foreign judgment before determination of the appeal in the court below. Furthermore, the Court of Appeal has the jurisdiction under Section 16 of the Court of Appeal Act Cap. 75 to have made the consequential order.’]
.
.
II. Whether the court below was right to order that the judgment debt should be paid in United States dollars contrary to the provisions of Section 4 subsection (3) of the Foreign Judgments (Reciprocal Enforcement) Act Cap. 152?
RULING: IN RESPONDENT’S FAVOUR.
A. NO INHIBITION THAT A SUBSTANTIVE CLAIM COULD NOT BE BROUGHT IN FOREIGN CURRENCY
[‘It is to be noted that these provisions are concerned with the registration of a foreign judgment, while the issue before us and indeed before the Court of Appeal in this respect, is of the execution of the foreign judgment. It does not matter that the consequential order made by the Court of Appeal has been in foreign currency since there is no inhibition that a substantive claim could not be brought in foreign currency. (See Metronex (Nigeria) Ltd v Griffin & George Ltd (1991) 1 NWLR (Part 169) 651 at 659D; Olaogun Enterprises Ltd case (supra) at 385C and Prospect Textile Mills (Nigeria) Ltd v I.C.I. Plc England (1996) 6 NWLR (Part 457) 668 at 682). It follows that there is no substance in this issue.’]
B. NO CURRENCY WAS SPECIFIED IN THE ORDER
[‘It is significant to point out that the exchange rate, as at the date the Court of Appeal made the order for the judgment debt to be deposited, can be easily ascertained from the Central Bank of Nigeria by either party, in the event of any doubt, if it becomes necessary for the judgment debt to be deposited in Naira. It is significant that the consequential order merely refers to “sum of money” and is not specific about the sum being in either dollars or Naira.’]
.
.
.
✓ DECISION:
“On the whole this appeal lacks merit and it is hereby dismissed in its entirety with N10,000 costs to the respondent against the appellant.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
