Andrew Mark Macaulay Vs Raiffeisen Zentral Bank Osterreich (2003)

LAWGLOBAL HUB Lead Judgment Report

U. A. KALGO, JSC

The issues which arise for the determination of this court in this appeal are on a very narrow compass. They are:

“1. Whether the Court of Appeal was right in holding that the registration of the judgment of the High Court of England in Nigeria after twelve months from the date of judgment was within time and competent.

2. Whether the Court of Appeal was right in holding that the registration of the foreign judgment in this case was not contrary to public policy.”

The appellant is a foreigner who has been residing in Nigeria since 1986. He together with 2 other persons who resided outside Nigeria guaranteed a loan from the respondent to a company called Constante Trading Limited based in Channel Island. The loan was to be repaid by the Company in accordance with the terms and conditions set out in the deed of guarantee and the company defaulted. The respondent sued the appellant and the other 2 guarantors jointly and severally in High Court, Queen’s Bench Division Commercial Court in England and obtained judgment on the 19th of December, 1995 against them jointly and severally for the sum of five million five hundred thousand U.S. Dollars (US $5,500,000.00) with interest in accordance with the deed of guarantee.

On the 28th of August, 1997, the respondent by an Exparte petition applied to the Lagos High Court for leave to register the said judgment and by an order made on 8th of September, 1997, Alabi J. granted leave and the judgment was accordingly registered as a foreign judgment. By a petition on notice filed on 22nd of October, 1997 the appellant applied to set aside the said registration on the grounds that it was not in accordance with the relevant law and was contrary to public policy in Nigeria. The petition was heard by the learned trial judge who on 6th of February, 1998 dismissed it and held that the judgment was validly registered. The appellant appealed to the Court of Appeal against that order, but his appeal was dismissed and he appealed further to this Court.

Both parties filed their respective briefs of argument in the appeal and each raised only 2 similar and identical issues for the determination of this court as set out earlier in this judgment.

ISSUE I

In my respectful view two Federal laws are relevant here. (1) Reciprocal Enforcement of Judgment Act Cap. 175 of Laws of the Federation 1958 and (2) Foreign Judgments (Reciprocal Enforcement) Act. Cap. 152 Laws of the Federation 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 Section 9(1) of the 1990 Act provides:

“This Part of this Act shall apply to any part of the Commonwealth other than Nigeria and to judgments obtained in the courts thereof as it applies to foreign countries and to judgments obtained in the courts of foreign countries, and the Reciprocal Enforcement of Judgments Ordinance shall cease to have effect except in relation to those parts of Her Majesty’s Dominions other than Nigeria to which it extended at the date of the commencement of this Act.” (Underlining mine)

By this provision, Part I of the 1990 Act applies to all Commonwealth countries as it applies to foreign countries and the 1958 Ordinance ceases to apply to them except those to which it was extended before the 1990 Act came into operation. The 1990 Act came into operation on the 1st of February, 1961. This Section is not automatically extending part I of the said Act to Commonwealth countries other than Nigeria; all it was saying was that the provisions of part I of the Act shall apply to the Commonwealth as it applies to foreign countries and where the 1958 Ordinance had been extended to any country before the commencement of the said Act, the Ordinance ceases to have effect. If the intention of the law makers was to be otherwise, Section 3 would have been superfluous and unnecessary.

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 proclamations 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. Section 3 of the Ordinance provides:

“3(1)where a judgment has been obtained in the High Court in England or Ireland, or in the Court Session in Scotland, the judgment creditor may apply to a High Court at any time within twelve months after the date of the judgment or such longer period as may be allowed by the Court, to have the judgment registered in the court, and on any such application the court may, if in all the circumstances of the case it thinks it just and convenient that the judgment should be enforced in Nigeria and subject to the provisions of this Ordinance, order the judgment to be registered accordingly.”

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.