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Witt & Busch Limited v Dale Power Systems Plc (2007) – SC

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➥ CASE SUMMARY OF:
Witt & Busch Limited v Dale Power Systems Plc (2007) – SC

by Branham Chima (SAL).

➥ COURT:
Supreme Court – SC.240/2000

➥ JUDGEMENT DELIVERED ON:
Friday, the 25th day of May, 2007

➥ AREA(S) OF LAW
Registration of foreign judgement.

➥ PRINCIPLES OF LAW
⦿ REGISTERING COURT DOES NOT SIT AS APPELLATE COURT OVER FOREIGN JUDGEMENT
I will also add that it is not the duty of the court entertaining an application for the registration of a foreign judgment to sit as an appellate court over the foreign judgment. The respondent to the judgment sought to be registered is expected to have exercised its right of appeal under the laws of the foreign country. All that the court to which the application is made needs to do is to ensure that the appellant complies with the requirements of our laws on registration of foreign judgment. I believe that the requirements were met in this case. — S.A. Akintan, JSC.

⦿ JUDGEMENT OF COURT REMAINS VALID UNTIL SET ASIDE; COURT OF COORDINATE JURISDICTION CANNOT SET ASIDE COORDINATE COURT JUDGEMENT
It is now settled firstly, that a judgment or order of a court of competent jurisdiction, remain valid and effective, unless it is set aside by an appeal court or by the lower court itself if it found that it acted without jurisdiction. See the cases of Ogueze v. Ojiako (1962),SCNLR 112; (1962) 11 All NLR 58 at 61; Williams v. Sanusi (1961) All NLR 334 at 337; Odiase v. Agbo (1972) 1 All NLR (Pt.1) 170 at 176; Melifonwu v. Egbuyi (1982) 9 SC 145; Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802 at 823 and many others. Secondly, in the absence of statutory authority or except where the judgment or order is a nullity, one Judge, has no power, to set aside or vary the order of another Judge of concurrent and co-ordinate jurisdiction. See the cases of Amanabu v. Okafor (1966) 1 All NLR 205 at 207; Okorodudu v. Ejuetami (1967) NMLR 282 at 283; Akporue & Anor  v. Okei (1973) 12 SC 137; Uku v. Okumagba (1974)1 All NLR (Pt. 1)475; Wimpey(Nig.)Ltd. v. Balogun (1986) 3 NWLR (Pt. 28) 324 at 331 and Orthopaedic Hospital Management Board v. B. B. Apugo & Sons Ltd. (1990) 1 NWLR (Pt.129) 652 at 657 just to mention but a few. The rationale or reason for this, is because, it is now firmly established that there is only one High Court in a State. — I.F. Ogbuagu, JSC.

⦿ INVOKING A COURT UNDER WRONG LAW DOES NOT STOP THE COURT
But that in order to benefit from the principle, the facts relied upon, must support the correct law to be applied. In other words, where a court has jurisdiction to make an order, the fact that the power of the court, is invoked under a wrong law or rule of court, is no reason, for not making the order or where it is made, it is no reason for setting it aside. See also the cases of Salawu Oke & Ors. v. Musilim Aiyedun & Anor.: (1986) 2 NWLR (Pt. 23) 548: (1986) 4 SC 61 at 68 and Dr. Maja v. Mr. Costa Samouris (2002) 3 SCNJ 29 at 50, (2002) 7 NWLR (Pt.765) 78. — I.F. Ogbuagu, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Mohammed, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Inam A. Wilson, Esq.

⦿ FOR THE RESPONDENT
Dr. A.I. Layonu.

➥ CASE FACT/HISTORY
The respondent as a judgment creditor, brought its application for the registration of the foreign judgment under the provisions of the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958. The application was heard and granted by Phillips, J, who in his order, gave the appellant in the present appeal which was the, judgment debtor in the application, 14 days from the date of service  of the notice of the order on it, to apply to set aside the registration of the foreign judgment. However, appellant/judgment debtor did not file its application to set aside the registration of the foreign judgment until 23rd June 1998. The application was heard on 18th September, 1998 and in a considered ruling delivered by Ade Alabi, J. (as he then was) on 30th October, 1998, the application to set aside the registration of the foreign judgment was granted. Dissatisfied with the ruling, the judgment creditor now respondent, appealed against it to the Court of Appeal Lagos Division which after hearing the appeal, in its judgment delivered on 30th May, 2000, allowed the appeal, set aside the decision of Ade Alabi, J. (as he then was) of the trial High Court setting aside the registration of the foreign judgment and restored the ruling of Phillips J. of the same High Court which ordered the registration of the foreign judgment in favour of the respondent. The appellant which is unhappy with the decision of the Court of Appeal, has now appealed to this court.

Available:  Legal Practitioners Disciplinary Committee (LPDC) v. Chief Gani Fawehinmi (1985) - SC

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]

I. Whether the Court of Appeal was right in holding that registration of the respondent’s judgment from the High Court of England was governed by the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 as against the Foreign Judgment (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990?

RULING: IN RESPONDENT’S FAVOUR.
A. THE 1958 ACT STILL APPLIES TO THE REGISTRATION OF FOREIGN JUDGEMENT IN NIGERIA; THE 1990 ACT APPLIES SIMULTANEOUSLY
[I entirely agree with the learned counsel to the respondent that the dispute in the applicable law has long been put to rest by the decision of this court in Macaulay v. R.Z.B. of Austria (2003) 18 NWLR (Pt. 852) 282 at 296 where Kalgo, JSC answered the question as follows – “In my respectful view two Federal laws are relevant here. (1) Reciprocal Enforcement of Judgments Act, Cap. 175 of Laws of the Federation of Nigeria, 1958 and (2) Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990. Learned counsel for the parties are also ad idem on this. The Reciprocal Enforcement of Judgments Act (Cap. 175 of 1958) hereinafter referred to as the 1958 Ordinance, deals inter alia, with the issue of the registration of judgments obtained in Nigeria and United Kingdom and other parts of Her Majesty’s dominions and territories. It is pertinent to observe that the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 152 of 1990) hereinafter referred as the 1990 Act did no specifically repeal the 1958 Ordinance. This means that it still applies to the United Kingdom and to parts of Her Majesty’s dominions to which it was extended by proclamation under section 5 of the Ordinance before the coming into force of the 1990 Act.” Therefore applying the provisions of the 1958 Ordinance to the foreign judgment of the United Kingdom sought to be registered in that case at the trial High Court, the court came to the conclusion that the judgment in question was registrable within 12 months after the date of judgment or any longer period allowed by the registering High Court in Nigeria. However, the judgment in Macaulay v. R.Z.B. of Austria (supra) did not stop on the application of the 1958 Ordinance alone. The judgment also went ahead to consider the relevant provisions of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws  of the Federation of Nigeria, 1990, particularly section 3(1) and 10(a) thereof and came to the conclusion that the 1990 Act is also applicable to the registration of foreign judgments obtained from the United Kingdom in Nigeria, pending the coming into force of Part 1 of the Act upon the extension of its application to the United Kingdom by  an Order of the Minister of Justice in exercise of his powers to do so under section 3 of the Act. Since the judgment in dispute between the paties in the present case was obtained from the United Kingdom, in addition to being registrable under the 1958 Ordinance which is still applicable in Nigeria, it is also registrable under the 1990 Act  where section 10(a) provides for interim registration of such judgment pending the coming into force of the Order by the Minister of Justice directing the application of Part 1 of the Act to the United Kingdom and other countries to be specified in the Order.

Applying these decisions to the present case, the court below was indeed right in holding that the 1958 Ordinance was applicable to the registration of the judgment obtained by the respondent against the appellant from the High Court of Justice, Queens Bench Division of England.

In any case since both the 1958 Ordinance in section 3(1) and the 1990 Act in section 10(a)  have made or contain identical provision for the registration of the foreign judgment in the present case within twelve months after the date of the delivery thereof and taking into consideration that the judgment in question was registered within the prescribed period as prescribed under both applicable statutes, the complaint of the  appellant of which of the two statutes is applicable is neither here nor there. It may be observed here that even the appellant in its appellant’s reply brief seemed to have agreed that the respondent’s foreign judgment which is of the United Kingdom origin is registrable under section 10(a) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, 1990.]
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II. Whether the decision of the Court of Appeal is not liable to be set aside for reason that the English Court Judgment was registered in foreign currency and not in Nigerian Naira contrary to the provisions of section 4(3) of the 1990 Act?

Available:  Barr. (Mrs.) Amanda Peters Pam & Anor. V. Nasiru Mohammed & Anor. (2008) - SC

RULING: IN RESPONDENT’S FAVOUR.
A. FOREIGN JUDGEMENT WITH FOREIGN CURRENCIES CAN BE REGISTERED IN NIGERIA UNTIL THE MINISTER MAKES AN ORDER UNDER THE 1990 ACT
[This is in line with the dictum of this court in Marine & General Assurance Company  PIc. v. Overseas Union Insurance Limited (supra). It is quite clear from the provision of section 3 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, 1990 that the provisions of Part of the Act shall come into force by Order of the Minister of Justice which is yet to be promulgated.

The respondent being fully aware that the provisions of Part 1 of the Act have not been brought into operation by an order of the Minister of Justice, did not bring its application for the registration of the foreign Judgment in its favour under section 4 of the Act. The appellant therefore cannot hide under the section to attack the registration of the respondent’s foreign judgment registered in foreign currency. In other words, until the provisions of section 4 of the 1990 Act comes into force in accordance with section 3 of the same Act, there is no restriction for any superior court in Nigeria to register a foreign judgment in foreign currency. For this reason, the respondent’s foreign judgment of the High Court of Justice, Queens Bench Division of England registered by the trial Lagos State High Court in Pounds Sterling, was correctly registered in accordance with the law.]
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III. Whether the Court of Appeal is Correct in holding that by participating in the proceedings before the English High Court, the appellant lost its right to challenge the subject matter of jurisdiction of the English Court?

Available:  Trade Bank Plc v. Benilux (Nig.) Ltd. (2003)

RULING: IN RESPONDENT’S FAVOUR.
A. THE APPELLANT LOST ITS RIGHT
[From the record of this appeal containing the proceedings of the High Court of Justice of England and the two separate proceedings of the High Court of Justice of Lagos State presided by Phillips J. which granted the respondent’s application registering its foreign judgment against the appellant and the other presided by Ade Alabi, J. (as he then was) which set aside the registration of the same foreign judgment, there is enough evidence showing that the appellant on its own volition through its learned counsel unsuccessfully defended the respondent’s action against it in the English High Court up to the end of the proceedings culminating in the final judgment against it. Further more, the appellant through its learned counsel in England also appealed against the foreign judgment, without any complaint of the jurisdiction of the English High Court, prosecuted its appeal again which ended woefully against it. Notwithstanding the feeble attempt made by the appellant in an affidavit evidence at the trial court to heap up the blame of the failure to raise the issue of jurisdiction of the English High Court before that court on his learned counsel who had no slightest opportunity to refute the allegation on a counter affidavit, the appellant has clearly failed to substantiate its claim that the High Court of Justice of England had no jurisdiction to hear and determine the respondent’s claim leading to the judgment ordered to be registered in Nigeria by the court below in allowing the respondent’s appeal. In any case, the present issue which is a mere complaint against a statement in the lead judgment of the court below that by participating in the proceedings before the English High Court, the appellant had lost its right to challenge the jurisdiction of that court without showing how that statement affected the final decision of the court below, can hardly be regarded as a real issue for determination in this appeal.]
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✓ DECISION:
“Accordingly, the appeal is hereby dismissed. The judgment of the court below delivered on 30th May, 2000, is hereby affirmed. There shall be N10, 000.00 costs to the respondent against the appellant.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

End

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