Teleglobe America, Inc. V. 21st Century Technologies Limited (2008)

LawGlobal-Hub Lead Judgment Report

REGINA OBIAGELI NWODO, J.C.A.

This is an appeal against the decision of the Federal High Court, Lagos Judicial Division delivered on the 15th of March, 2006 against the plaintiff Teleglobe America. Inc. hereinafter referred to as the Appellant. 21st Century Technologies Ltd. was the Respondent in the lower court and is still the Respondent on Appeal. The Appellant in the lower court instituted an action by Notice of Originating Motion dated and filled 25th of October, 2005 seeking the following reliefs:

1. “An order registering the judgment of the CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA entered in LAW NO. 218964 on the 2nd day of December, 2004 by the said court (marked exhibit GB10 in the affidavit in support of this Notice), in the sum of USDollar 1,231,489.00 with interest at the rate of 1.5% per month from the 2nd of December, 2004 till it is fully satisfied, so that the said Judgment shall have the same force and effect as a judgment of the Federal High Court of Nigeria or any other superior court of Record in Nigeria.
2. Cost of this action.
3. Further and other orders as this Honourable Court may deem fit to make in the circumstances”.

In support of the originating motion is a 22 paragraph affidavit deposed to by Gbenga Biobaku Male, Legal Practitioner Nigerian Citizen exhibiting Exhibit GB1 to GB10.

The Respondent in response to the affidavit filled a 6 paragraph counter affidavit on 30th November, 2005 deposed to by Kemi Alakija, a Legal Practitioner. Briefly the facts garnered from the record of appeal that lead to this appeal are as follows:

On or about the 2nd day of August, 2000, Teleglobe International Corporation, the predecessor in title of the Appellant entered into a Teleglobe Internet Services Agreement with the Respondent which agreement was subsequently amended for the provision of internet access by Teleglobe International Corporation and its successors to the Respondent. All rights and duties of Teleglobe International Corporation under the agreement were assigned to the Appellant. Sometime in May 2003, the respondent terminated the agreement. As a result of the termination, the Appellant commenced an action against the Respondent in Suit No. 218964 titled Teleglobe America, Inc. v. 21st Century Technologies Ltd. on or about 19 of November 2003 in the Circuit Court of Fairfax County, Virginia claiming the sum of US Dollar 983,046.67 plus interest and cost. The Respondent was served the Originating Processes in accordance with the Rules of Court of the Circuit Court. The circuit court heard the case and entered final Judgment on 2nd December 2004 in favour of the Appellant. The Appellant then proceeded to the Federal High Court Lagos on 25th of October 2005 and filled a Notice of Originating Motion for Registration of the Circuit Court Judgment hereinafter referred to as the foreign Judgment. The Respondent in the lower court filled a Notice of Preliminary Objection to the Registration contending that the Federal High Court is devoid of jurisdiction to entertain the suit on the basis that the Respondent was not served with the Originating Processes of the suit in the Circuit Court in Nigeria in accordance with the applicable Nigerian law, before Judgment was entered against them. The Learned Trial Judge heard both applications together and in a considered Judgment on 15th of March, 2006 the Learned Trial Judge refused the application to register the foreign Judgment and struck out the originating motion.

The Appellant dissatisfied with the Judgment of the lower court then filled a Notice of Appeal on 9th June, 2006 containing six grounds of appeal. For purpose of elucidation I reproduce the grounds as follows:

“GROUND 1

1. The Learned Trial Judge erred in law when he held that Section 78 of the Companies and Allied Matters Act does not apply to service in Nigeria of foreign documents and court processes on the basis that the said section deals only with service of court processes and documents emanating from Nigeria.

GROUND 2

2. The Learned Trial Judge erred in law when he refused to register the judgment of the County Court of Fairfax, Virginia in LAW No. 218964 delivered on the 2nd day of December, 2004 on the basis that the service of the processes of the said court on the respondent was not in accordance with Nigerian municipal law when there is no requirement in the Foreign Judgments Reciprocal Enforcement Act, or in any other applicable law, for a court in Nigeria to decline registration of a judgment on the basis that the originating processes of the foreign court were not served in accordance with the laws of Nigeria.

GROUND 3

3. The Learned Trial Judge erred in law in refusing to register the foreign judgment aforesaid on the basis that there was no proper service of the originating processes, when that was an issue which had been distinctly raised by the Respondent in the proceedings of the original court and in respect of which an order had been made against the Respondent, who regardless of that decision continued to participate in the proceedings until it was finally determined.

GROUND 4

4. The Learned Trial Judge erred in law when he held that service of foreign processes in Nigeria is governed by Order 13 rule 23 of the Federal High Court (Civil Procedure) Rules 2000, when there is no provision in any enactment of the National Assembly requiring service of foreign processes in Nigeria to be in accordance with the Rules of the Federal High Court and when the said Order 13 Rule 23 does not law down any mandatory requirement for service in Nigeria of foreign processes to comply with it.

GROUND 5

5. The Learned Trial Judge erred in law when he placed the onus of establishing service in accordance with Nigeria law on the Appellant rather than the Respondent who was asserting non service.

GROUND 6

6. The Learned Trial Judge erred in law when he held that as the Appellant had averred that service of the process was in accordance with the laws of Virginia by one Mr. Johnson Okebukola, that it amounted to an admission that the service was not done via official channel but by a private person when as the Trial Judge subsequently held there was no evidence to prove that the said Mr. Okebukola was not an officer of the court, and that no request had been made to the Chief Judge of the Federal High Court and when there was no evidence led in proof of the fact that Virginia Law on service materially differs with Nigerian Law on service”.

Based on the aforesaid grounds, the Appellant seeks an Order setting aside the Judgment of the lower court aforesaid and in its place an Order registering the Judgment of the Circuit Court of Fairfax County, Virginia entered in Law No.218964 the 2nd December 2004, as sought in the Respondent’s Notice of Originating Motion filed at the lower court.

The Appellant filled his Brief of Argument on 19th of January 2007. The Respondent did not file a Respondent’s Brief. Whilst hearing the Appeal on the 10th of April, 2008, Learned Counsel E. Uwa with Ogunshote announced appearance for the Appellant and the Learned Senior Advocate Prof. S. A. Adesanya (SAN) announced appearance for the Respondent. Prof. Adesanya (SAN) informed the court that the Respondent is registered in Nigeria but based in America, that he has not had contact with him nor does he have his contact as he was introduced to the Respondent by a third party, he further explained he has no further instruction to represent the Respondent. He applied for an adjournment because he has not been in contact with the Respondent.