Andrew Mark Macaulay V. Raiffeisen Zentral Bank Osterreich Akiengesell Schaft (Rzb) Of Austria (2003) LLJR-SC
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.
- 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)
By this provision, Part 1 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 lower 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 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.
At the same time since the Minister of Justice has not yet exercised his power under section 3 of the 1990 Act extending the application of Part I of that Act to the United Kingdom where the judgment in question was given, then section 10(a) of the said Act can also apply. That section reads:-
“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 I of this Act to the foreign country where the judgment was given may be registered within twelve months from the date of the judgment or such longer period as may be allowed by a superior court in Nigeria.”
(italics mine)
By this provision, irrespective, regardless or in spite of any other provision in the 1990 Act, any judgment of a foreign country including United Kingdom to which Part I of that Act was not extended, can only be registered within 12 months from the date of the judgment or any longer period allowed by the court registering the judgment since the provisions of Part I 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 I 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.
The substantial point in issue and which was in contention in this appeal is that the judgment in question was registered by the Lagos High Court and confirmed by the Court of Appeal in contravention of the relevant and applicable laws. The view expressed by the High Court and confirmed by the court of Appeal was that by virtue of the provisions of section 9(1) of the 1990 Act it was not necessary to extend the application of Part I of the said Act to the Commonwealth countries and that although the 1958 Ordinance was saved from extinction by the said section, the provisions of section 4 of the 1990 Act still applies. This view was clearly wrong having regard to what I have said earlier in this judgment. In addition the Court of Appeal clearly found the relevance of the provisions of section 10 of the 1990 Act in cases where an order under section 3 of the said Act was not made, but failed to properly apply it in cases of the judgment in question. It said:-
“This does not mean that the provisions of section 4 of the same Law have been cancelled by Sec. 10(a) & (b). It is my view that the general period of limitation for registration and application of judgments for enforcement in foreign countries is six years but an application may be made for registration within twelve months from the date of judgment or such longer period as may be allowed by a superior court in Nigeria in cases of certain judgments referred to under Cap. 175 of 1958.”
This view is clearly an amalgam of the provisions of section 4 of the 1990 Act and section 3 of the 1958 Ordinance. This is obviously wrong since every section of the law must be taken and interpreted separately except where the law so provides or the circumstances dictate. It is not so here. According to the provisions of section 4 of the 1990 Act and section 3 of the 1958 Ordinance, the periods within which a judgment must be registered are within 6 years or 12 months respectively from the date of the judgment, or any further period allowed by the registering court in the case of section 3 of the 1958 Ordinance.
I have carefully read the briefs of counsel in this appeal and the decided cases and treaties referred to therein and having regard to what I have stated above, I am of the firm view and find accordingly that the provisions of section 3 of the 1958 Ordinance and section 10(a) of the 1990 Act apply to the question of the registration of the judgment in the instant case. Each of these sections provides that the judgment to be registered under it must be registered within twelve months from the date of the judgment or any longer period allowed by the registering court.
In the instant case, the judgment was delivered on the 19th of December, 1995, and the application for registration of the judgment was filed in the trial High Court on the 18th of August, 1997. This is one year eight months from the date of the judgment. This is clearly in c0ntravention of the provisions of both sections mentioned earlier. I therefore agree with the learned counsel for the appellant that the registration of the judgment in question made by the trial High Court and confirmed by the Court of Appeal was incompetent and not in accordance with the relevant laws. I therefore answer issue I in the negative.
It appears to me that having answered issue I in the negative, it is enough to dispose of this appeal and no useful purpose will be served by looking into or considering issue 2. See Anyaduba v. N.R.TC. Ltd. (1992) 5 NWLR (Pt. 243) 535. In fact it does not arise at all in the circumstances as it appears to be more than an academic exercise which this court has long refrained from entertaining. See Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 at 534; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 330; Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at 179.
For the reasons stated above, I find that there is merit in this appeal and I allow it. The registration of the judgment in question made by the trial High Court and confirmed by the Court of Appeal is incompetent and is hereby struck out. I award N10,000.00 costs in favour of the appellant against the respondent.
SC.109/2002