Andrew Mark Macaulay V. Raiffeisen Zentral Bank Osterreich Akiengesell Schaft (Rzb) Of Austria (2003)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C.

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 ex-parte 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 1

In my respectful view two Federal laws are relevant here. (1) Reciprocal Enforcement of Judgments 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 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 not 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 S.5 of the Ordinance before the coming into force of the 1990 Act.

Section 3 of the 1990 Act empowers the Minister of Justice of the Federation of Nigeria to extend the application of Part 1 of that Act with regard to registration and enforcement of foreign judgments of superior courts, to any foreign country, including United Kingdom if he is satisfied that the judgments of our superior courts will be accorded similar or substantial reciprocity in those foreign countries. And once an order is made under section 3 of the 1990 Act in respect of any part of Her Majesty’s dominions to which the 1958 Ordinance earlier applied, the latter ceases to apply as from the date of the order. The learned counsel for the parties have both agreed that the Minister of Justice has not exercised that power in respect of any foreign country under the said Act. I also agree with them on this and I so find.

Section 9(1) of the 1990 Act provides:

“This Part of this Acts 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.”

(Italics mine)