➥ CASE SUMMARY OF:
VAB Petroleum Inc v. Mr. Mike Momah (2013) – SC
by Branham Chima (SAL).
Supreme Court – SC.99/2004
➥ JUDGEMENT DELIVERED ON:
Friday, January 18, 2013
➥ AREA(S) OF LAW
Jurisdiction in foreign judgement;
Service of writ of summons;
Suo moto issues;
Application before lower court when already appeal;
Time to register foreign judgement.
➥ PRINCIPLES OF LAW
⦿ JURISDICTION OF COURT – JURISDICTION CAN BE RAISED AT ANY TIME
I have found that ground (1) is premised on the jurisdiction of the lower court. It is the law that even where a court of law does not pronounce whether it has jurisdiction to try a matter or not, once the establishing law or other statutes or the subject matter or party before the court has divested that court of jurisdiction, then jurisdiction does not reside in the court. The ground is properly taken by the appellant in this appeal as issue of jurisdiction can be raised at any level of the proceedings of a court even at appeal levels. See: Nigeria Eng. Works Ltd. v. Denap Ltd. (2001) 18 NWLR (Pt.746) 726. — T. Muhammad, JSC.
⦿ TWO TYPES OF FINDING OF FACTS – WHEN APPEAL COURT CAN INTERFERE
In a trial, there are generally two sets of findings of facts: A finding of fact may be based on the credibility of witnesses or may be informed from other facts proved before the trial court. Where a witness gives direct evidence that is the evidence of the facts in issue as seen, heard or perceived by any other sense by him. (Section 77 of the Evidence Act). The finding of the trial court on such evidence depends on whether or not it believes that witness (credibility of the witness). Such a finding on such evidence is a primary finding of fact, i.e. the way the witness testifies, his demeanor in the box tells much of his credibility. The trial court that saw and heard the witness is in the best position to assess his credibility and make findings of primary facts. But, where on the other hand, other facts are put in evidence from which the facts in issue can be inferred, or where a witness gave circumstantial evidence, the finding of the trial court on the facts in issue depends on inference. This is a secondary finding of fact as it is not based on the credibility of the witness but on logical process of inference. In the former’s case, i.e. primary findings of fact, an appeal court should always be loathe in interfering with such a finding as it did not have the privilege of seeing, hearing or observing the demeanour of the witness. There are several decided authorities on this: Ebba v. Ogodo & Anor (1984) 4 SC 75; Akintola v. Olowa (1962) 1 All NLR 224; Fatoyinbo v. Williams (1956) 1 FSC 87; Egri v. Uperi (1974) 1 NMLR 22; just to mention a few. In the latter’s case, i.e. where findings of fact are secondary, i.e. drawn from inferences, an appeal court is in as good position as a court of trial to do this. It can differ from the trial court. See: Akpopuma V. Nzeka (1983) 2 SCNLR 1. — T. Muhammad, JSC.
⦿ STRAINING THE RULE ON PROOF OF SERVICE
The correct position of the law has repeatedly been stated by this court that it is straining the rule on proof of service to say that a defendant who filed a defence to the statement of claim was not served the writ of summons because there was no bailiff’s endorsement on the writ. See: Okesuyi v. Lawal (1991) 1 NWLR (Pt.176) 661, per Olatawura, JSC (of blessed memory). — T. Muhammad, JSC.
⦿ WHERE PARTY HAS COUNSEL, PARTY’S PHYSICAL APPEARANCE IS NOT NECESSARY
I think the law has for long been settled that where a party to a proceeding before a court is represented by a counsel of his choice, his physical appearance to conduct the proceeding by himself is no longer necessary except where for good reasons, the court conducting the proceedings, orders otherwise. See: Akinnuli v. Odugbezan (1992) 3 NWLR (Pt.258) 172, Kehinde v. Ogunbumi (1967) 1 All NLR 306. — T. Muhammad, JSC.
⦿ DISTURBED FINDING OF FACT
The trite position of the law is that where the Court of Appeal wrongly disturbed any finding of fact of a trial court, the Supreme Court will not hesitate in restoring that finding, See: Board of Customs and Excise v. Barau (1987) 10 SC 48. — T. Muhammad, JSC.
⦿ FUNCTION OF THE APPELLATE COURT
Finally, on this issue, I may have to reiterate the function of an Appellate Court on question of facts. It is mainly limited to seeking whether or not there was evidence before the trial court upon which its decision on facts was based, whether it wrongly accepted or rejected any evidence tendered at the trial; whether evidence called by either party to the conflict was put on either side of the imaginary scale and weighed one against the other. In other words, whether the trial court properly evaluated the evidence, whether the trial court correctly approached the assessment of the evidence before it and whether the evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom. This is the only way and procedure open to an appellate court in the consideration of an appeal brought before it. — T. Muhammad, JSC.
⦿ WHEN AN APPEAL IS ENTERED, THE APPEAL COURT IS SEISED OF THE WHOLE PROCEEDING
As observed earlier, there is a finding by the court below that there was a pending appeal before it as Appeal No. CA/L/133/93 which was entered on May 2, 1995. Now, in accordance with the provisions of the Court of Appeal Rules, 1981 (as amended) an appeal is said to be entered in the court when the record of proceedings in the trial court has been received in the Registry of the court. See: Order 1 Rule 22, Court of Appeal Rules (1981) (as amended); Order 4 Rule 10, Court of Appeal Rules, 2007 (as amended). Once it is so entered, an appeal is then said to be pending. The Rule governing the control of proceedings during pendency of an appeal is that after an appeal has been entered and until it has been finally disposed of, the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in the Rules, every application therein shall be made to the court and not to the court below (i.e. the trial), but any application may be filed in the trial court for transmission to the court below. See Order 4, Rule 11. Thus, in pursuance of the above provisions of the Court of Appeal Rules, the trial court will have no competence or jurisdiction to decide on any application whether on notice or ex-parte in relation to an appeal which the trial court has become FUNCTUS OFFICIO. If the trial court takes any step thereon, except for the purposes of transmitting the processes so filed to the Court of Appeal, that step taken will be declared a nullity. — T. Muhammad, JSC.
⦿ ABUSE OF COURT PROCESS ON MULTIPLE ACTIONS
The trite position of the law on abuse of a court process is that it happens in regard to multiple actions between the same parties, on the same subject matter, when a party (such as the appellant in this appeal) improperly uses judicial process to the irritation, of annoyance and harassment of his opponent (the respondent herein) not only in respect of the same subject matter but also in respect of the same issues in the other action or actions. See: Okafor v. A – G Anambra State (1991) 6 NWLR (Pt.200) 659 at 681; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156; Ikine v. Edjerode (2001) 18 NWLR (Pt.745) 446. — T. Muhammad, JSC.
⦿ COURT DEALS WITH LIVE ISSUES
This court deals with live issues and there is no need beating a dead horse as it will never rise again. — T. Muhammad, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
T. Muhammad, J.S.C.
⦿ FOR THE APPELLANT
O. S. Amobi Esq.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
By a Motion on Notice before the High Court of Lagos State (trial court), the judgment creditor/applicant, prayed the trial court for the following reliefs: i. “an order to have the judgment of the United Kingdom’s High Court of Justice, Queen’s Bench Commercial Court Division, London, in suit No. 1991 Folio No.1048 between parties hereto, registered in this Honourable court for execution. ii. such order(s) as this Honourable Court may deem fit to make in the circumstances.”
After having evaluated the affidavit evidence placed before him by the parties, the learned trial judge, Adeniji, J., granted the application to register the said United Kingdom judgment. Dissatisfied with the Ruling of the trial court, the judgment debtor/respondent, appealed to the Court of Appeal.
The court below in its judgment allowed the appeal. The respondent was also dissatisfied with some aspects of the court below’s decision and he filed a cross-appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL SUCCEEDS IN PART]
♎ I. Did the London’s Queens Bench Division Commercial Court have Jurisdiction to entertain this suit?
RULING: IN APPELLANT’S FAVOUR.
A. THE LONDON BENCH DIVISION HAD JURISDICTION OVER THE CASE
[Thus, the name of the respondent appeared in Exh. “N” as the 2nd defendant before the U.K. High Court of Justice, Queen’s Bench Commercial Division, London in suit No. 1991 folio No.1048. This satisfies the first requirement of Section 6(2)(a)(iv) that the respondent was a defendant before that court. Secondly, it is clear also from the record of appeal that the respondent was resident in England at the time when the proceedings were instituted. Below is the finding of the trial court: “Exhibit ‘K’ is the particulars of the 1st defendant. It shows the name of 2nd defendant as a Businessman, and a director and Secretary of the Company. The usual residential address of the 2nd defendant given as 60/62 London Road, Kingston-Upon-Thames, survey KTZ 6 Q2, England ……. The respondent has shown by the said exhibits where he wants people to contact him or, where process is to be served on him, where such process is to be effected with reasonable possibility that he would receive it.” (underlining for emphasis) Here again, there is no dispute as to the usual residential address of the respondent in England. This satisfies the second requirement of Section 6 (2)(a)(iv) and (v) that the respondent had his residential address at 60/62 London Road, Kingston-Upon-Thames, Survey, KT2 6 Q2, England. This is also the same place from where he conducted his businesses and where court process could be served/effected with reasonable possibility. In the face of the above facts and the holdings of the trial court, I resolve issue No. 1 against the respondent and in favour of the appellant.]
♎ II. Was the respondent served with the Writ of Summons and Processes of the case in London?
RULING: IN APPELLANT’S FAVOUR.
[In furtherance of the proof of service of the Original Court’s processes, another document of relevance issued from the Original Court, is an acknowledgement of service of the court. In this document, where a party intends to instruct a solicitor to act for him, he should give him the form immediately. There is a signature on the form and the name of Leonard & Kalimi Solicitors appeared beneath it. Again, pages 66 – 69 of the Record of Appeal contain “Points of Defence of First and Second Defendants” (Statement of Defence) at the original court filed by the law firm of Leonard and Kalimi Solicitors. Thus, the act of filing a defence to the action before the original court is enough to establish service of the processes (writ of summons) on the respondent. I cannot imagine how a counsel/solicitor in an enlightened country such as United Kingdom would go out of his own way to file a defence to a civil suit without being briefed by a party to do so. That will certainly be against the ethics of his profession. Even where a counsel decides to conduct cases (especially in criminal matters) on PROBONO basis, he will surely require the consent of the party in need thereof. It is thus difficult to appreciate the argument of the learned counsel for the respondent as well as the holding of the court below that no service of the processes was effected on the respondent. In fact, the court below appreciated and reiterated the position of the law that service of process on counsel is as good service on a party to the proceedings and that proof of service is unnecessary where a defendant appears.
The firm of Leonard and Kalimi as per the endorsement on the writ of summons and the “Points of Defence of first and second defendants” before the Original Court in London must be taken to be the legal representative of the respondent.]
♎ III. Whether the Justices of the Court of Appeal, Lagos, were right in law to introduce and profer suo motu evidence not before the Court and proceed to draw conclusions even without calling on the parties through their counsel to address the court on it?
[Now, if I understand what the court below said as quoted and challenged by the learned counsel for the appellant, was drawing a conclusion from the evidence laid before the trial court on the address given in “Form 288” which was in respect of change of director or secretary or change of particulars. Although a company does not have a ‘date of birth’ or ‘previous forenames’ as are applicable to a natural person, the trial court did not rely entirely on “form 288” to make a finding in favour of the appellant that the respondent had his usual residential address in England. What the court below did was to draw inference, itself, from the evidence made available before the trial court. There might be some misapprehension of the facts contained on “Form 288” by the court below. Further, the Company referred to i.e. MICMOSON, belonged to the respondent and both were sharing same residential/business address. I do not think the finding of the trial court on the address of the respondent in UK was perverse.]
♎ IV. was there a pending appeal before the court below when the motion Ex-parte was filed and decided by the trial court?
RULING: IN RESPONDENT’S FAVOUR.
A. THERE WAS A PENDING APPEAL BEFORE THE COURT BELOW WHEN THE EX PARTE APPLICATION WAS FILED
[As observed earlier, there is a finding by the court below that there was a pending appeal before it as Appeal No. CA/L/133/93 which was entered on May 2, 1995. Now, in accordance with the provisions of the Court of Appeal Rules, 1981 (as amended) an appeal is said to be entered in the court when the record of proceedings in the trial court has been received in the Registry of the court. See: Order 1 Rule 22, Court of Appeal Rules (1981) (as amended); Order 4 Rule 10, Court of Appeal Rules, 2007 (as amended). Once it is so entered, an appeal is then said to be pending. The Rule governing the control of proceedings during pendency of an appeal is that after an appeal has been entered and until it has been finally disposed of, the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in the Rules, every application therein shall be made to the court and not to the court below (i.e. the trial), but any application may be filed in the trial court for transmission to the court below. See Order 4, Rule 11. Thus, in pursuance of the above provisions of the Court of Appeal Rules, the trial court will have no competence or jurisdiction to decide on any application whether on notice or ex-parte in relation to an appeal which the trial court has become FUNCTUS OFFICIO. If the trial court takes any step thereon, except for the purposes of transmitting the processes so filed to the Court of Appeal, that step taken will be declared a nullity. In the appeal on hand, it is clear from the printed record of appeal that: i. The ruling appealed against on the order granting the application to register the U.K. judgment was delivered on 14/12/93 ii. An appeal was filed to the court below on same 14/12/93. iii. The said appeal was entered in the lower court’s registry on the 2/5/95 and given appeal No. CA/L/133/93 iv. The ex-parte motion giving rise to Appeal No. CA/L/256/96 was dated and filed before the trial court on 30/4/96. v. Ruling on the ex-parte motion was delivered by the trial court on 18/6/96. vi. An appeal on the said Ruling was filed to the Court below on 20/6/96 vii. The appeal to the court below was determined on the 29/3/2001. It is clear from the above that an appeal had been pending in CA/L/133/93, since the 14/12/93. Thus, by the time the motion ex-parte was filed and determined, the court below was seized of jurisdiction on any matter relating to the decision delivered by the trial court on 14/12/93 which culminated in Appeal No. CA/L/133/93. If there was any application in relation to the subject matter of that appeal, from the time the appeal was entered, such application ought to have been filed before the court below. It was wrong of the trial court to have over-stretched its jurisdiction (which by the operation of law it did not have) to cover any matter or application whether on notice or ex-parte.]
♎ I. Was the trial court not lacking jurisdiction over the cause ab initio given that its order of registration of the subject foreign judgment was made several (13) months after expiration of the 12 months (from date of delivery) provided for by the applicable law i.e. Reciprocal Enforcement of Judgment Act, 1922 Cap., 175 Laws of the Federation and Lagos 1958?
RULING: IN CROSS-APPELLANT FAVOUR.
A. THE JUDGEMENT WAS NOT REGISTERED WITHIN 12 MONTHS THUS OUT OF TIME FOR REGISTERING A FOREIGN JUDGEMENT
[So, here we are! This court has already laid a precedent. In the appeal on hand, it has already been shown earlier that the foreign judgment was delivered on the 6th day of November, 1991. The exact date when the cross-respondent filed his Motion on Notice before the trial court, appears uncertain as there is no document exhibited to show the exact date of filing the process. However, the cross-appellant himself quoted the 6th day of November, 1991, when the judgment of the foreign court was made. And in a counter-affidavit filed by the cross-respondent as respondent to a motion filed by the cross-appellant for an order for stay of execution, the cross-respondent, himself, stated that the judgment of the foreign court was entered on 6/11/91. Thus the two parties are agreed that the foreign judgment was made on 6/11/91. The Ruling of the trial court on registration of the foreign judgment was made on the 14/12/93. The difference between 6/11/91 and 14/12/93 is exactly 2 years one month and 8 days or put simply, 25 months and 8 days. The cross-respondent had 12 months from the 6/11/91 within which to apply to the trial court to get the foreign judgment registered. That will mean that the last date within which to file his application for registration would have been the 5th day of November, 1992. There is nothing to guide and convince me that such application was filed within the given time. All I have seen and as relied upon by the parties and the court below is that the Ruling of the court below was delivered on 14/12/93. This date far exceeded the time limit provided by Section 10[a] of the 1990 Act. The cross-respondent would have, perhaps, saved the situation if he had supplied the date he approached the trial court. Nothing has been exhibited including the initiating process i.e. Motion on Notice (as shown in the 1st line of the trial court’s ruling of 14/12/93).
The practice in the courts is that for anyone to ask for the indulgence of a court, it is his duty to place before the court all necessary materials which will assist the court in arriving at a just decision. This, the cross-respondent had failed to do and the correct presumption which has not been reverted is that by the time he approached the trial court for registering the foreign judgment, he was out of time by well over thirteen months. It is also not shown that there was an order extending the said time by the trial court. The trial court, thus, acted without jurisdiction in making an order registering the foreign judgment. It is rather unfortunate! That trial court’s order is a nullity. It must be set aside.]
“On the account of this cross-appeal, the trial court’s order registering the judgment of the High Court, Queen’s Bench Division Commercial Court’s judgment of 6/11/91 is hereby declared to be a nullity and it is hereby set aside. The cross-appeal succeeds and it is allowed. I affirm the judgment of the court below which set aside the trial court’s decision. I make no order as to costs in this cross-appeal.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 6 of the Foreign Judgment (Reciprocal Enforcements) Cap. 152 of the LFN, 1990, one can be able with certainty to determine where a foreign court’s jurisdiction lies.
Section 10 of the Foreign Judgment (Reciprocal Enforcements) Cap. 152 of the LFN, 1990, the law provides: “10. 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 1 of this Act to the foreign country where the judgment was given may be registered within 12 months from the date of the judgment or such longer period as may be allowed by a superior court in Nigeria.”
➥ REFERENCED (CASE)
⦿ FOREIGN JUDGEMENTS CAN ONLY BE REGISTERED WITHIN 12 MONTHS IF NO EXTENSION OF PART 1 OF THE 1990 ACT
This court in the case of Macaulay v. R. Z. B. Austria (2003) 18 NWLR (Pt.852) 282 at pp. 298H -299 A – B, per Kalgo, JSC observed as follows: “By this provision, irrespective, regardless or inspite of any other provision in the 1990 Act, any judgment of a foreign country including United Kingdom to which part 1 of that Act was not extended, can only be registered within twelve months from the date of the judgment or any longer period allowed by the court registering the judgment since the provisions of Part 1 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 1 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.”
➥ REFERENCED (OTHERS)