Grosvenor Casinos Ltd V. Ghassan Halaloui (2009)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE J.S.C.

The facts surrounding the dispute out of which this appeal arose are simple and straight-forward. The applicable principle of law is however, not entirely free from difficulty.

The respondent had issued a cheque in favour of the appellant. It was drawn on a bank in the United Kingdom. The cheque was in satisfaction of a debt of 199,711.00. Upon presentation on or about 21-04-93, the cheque was dishonoured. Subsequently and perhaps as a result of a demand for payment by the appellant, the respondent reduced his indebtedness by paying 88,000.00.pounds This left outstanding the sum of 111,711.00. The respondent did not pay the balance. The appellant then issued a writ of summons under the undefended list procedure at the High Court of Justice, Queen’s Bench Division in England. The writ of summons, statement of claim and other processes were served by substitution on the respondent in Nigeria. The respondent did not enter appearance to the writ. He did not file a defence either. On 15/06/99, judgment was given against the respondent for 180,530.00pounds and costs assessed at 718.00pounds. In its effort to execute the judgment, the appellant upon an ex-parte application brought before the High Court, Ibadan (hereinafter referred to as “the trial court”) prayed that the judgment obtained in England be registered. Adio J. (as he then was) heard the application and granted it on 22/11/99. In reaction, the respondent brought an application before the trial judge that the order registering the judgment be set aside. On 24/2/2000, Adio J. in a ruling refused the prayer that the registration be set aside. In his ruling, he reasoned thus:

“The only argument advanced by the applicant on jurisdiction is that when the defendant was served outside the jurisdiction of Britain, it is bad. I am not persuaded by that argument, the applicant having admitted service should have gone to the venue to challenge the jurisdiction of that court. He did not. Judgment was given against him and he wanted it set aside. Where jurisdiction is in issue, the burden of establishing that the court has no jurisdiction is upon the party who asserts that the court has no jurisdiction or vice versa. I have no evidence to prove non- jurisdiction.”

The respondent, dissatisfied with the ruling of the trial court brought an appeal against it before the Court of Appeal, Ibadan (hereinafter referred to as “the court below.”). The court below, in its judgment on 11-06-2002 allowed the appeal. It set aside the order registering the judgment of the English court. Akintan J.C.A. (as he then was) who wrote the lead judgment relied on some foreign judicial authorities and then concluded in these words:

“The appellant in the instant case, although he was duly served with the processes of the court, he did not enter any appearance and it has not been shown that he was at anytime resident within the jurisdiction of that court or that he had any property there. In the result, the provisions of the afore-mentioned Section 6 of the Act will be applicable to him. He is therefore entitled to have the registration of the judgment made by the lower court to be set aside. The appeal therefore succeeds and the registration of the judgment made by the lower court is set aside. No order on costs is made.”

The appellant in this appeal (i.e. respondent at the court below) was dissatisfied with the judgment of the court below. He has brought a final appeal before this Court. In the appellant’s brief filed, the issues for determination in the appeal were identified as the following:

“(i) Whether the Court of Appeal could validly depart from its judgment in Hyppolite v. Egharevba (1998) 11 NWLR (Part 575) 598 thus over ruling it by reference to and reliance upon judgments of foreign jurisdictions as it did in this case.

(ii) Whether the regime of statutes establishing a link between Nigerian courts and English courts particularly the various High Court Laws and the Evidence Act do not create a special con which neutralize the English Common Law principles of Private International Law, which were relied upon, in interpreting section 6 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 LFN 1990 by the Court of Appeal in this case.

(iii) Whether faced with the choice between focusing the law pertaining to recognition and Enforcement of Foreign Judgments by Nigerian Courts on “Forum Convenience” or on “Presence and Submission,” the Court of Appeal failed to consider the developments in that field thereby erring in law by reverting to the anachronistic 19th century English Common Law principles of “Presence and Submission” in its interpretation of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, LFN 1990.”

It seems to me, that issue 1 above, under which the appellant’s counsel contends that the court below was in error because it failed to follow the ratio “in a case previously decided by it cannot be taken too seriously. The germane issue should have been whether or not the court below came to the right conclusion on the interpretation of the applicable law. The three issues raised for determination boil down to this single issue. It is convenient in any case to give attention to the reasoning of the Court of Appeal in Hyppolite v. Egharevba (supra). The facts in the Hyppolite case are similar to those in this appeal save that whereas in this case it was the Court of Appeal which set aside the order registering the foreign judgment, whereas it was the High Court that did so in Hyppolite v. Egharevba (supra). Another dissimilarity is the fact that the judgment under consideration in the Hyppolite case was that of the Superior Court of Suffolk County, Department of the Trial Court of the Commonwealth of Massachusetts U.S.A. whilst that in this case is the judgment of the High Court of Justice, Queen’s Bench Division England. Issue 4 in the Hyppolite case was:

“Whether the learned trial Judge was right in holding that the foreign court lacked jurisdiction to entertain the suit of medical malpractice against the respondent on the ground that the respondent was a non resident having no property in the State of Massachusetts at the time of the institution of the action at the court of the country of the original court.”

I have no doubt that the facts in the Hyppolite case and the current appeal are similar. But the decision of the Court of Appeal in Hyppolite case turned on whether or not a foreign judgment which has been registered could be set aside by the same court if the need arises. The central issue in this appeal is whether or not the respondent submitted to the jurisdiction of the High Court in England.

Before I proceed further, it is apposite to mention that the court below and the parties’ counsel who appeared before it all assumed that the applicable provision of the Law which called for consideration was section 6 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 LFN 1990. This was a mistake. In Macaulay v. R.Z.B., Austria [2003] 18 NWLR (Pt.852) 282 at pp.296-297 this Court per Kalgo J.S.C. examined the applicability of Cap. 152 thus: