Holman Bros. (Nig.) Limited V. Kigo (Nig.) Limited & Anor (1980)

LawGlobal-Hub Lead Judgment Report

SIR U. UDOMA, J.S.C. 

My Lords, this appeal has come to this court by leave of the Federal Court of Appeal.

It has been brought by the defendants, herein appellants, against the ruling of the Federal Court of Appeal given on 31st March, 1980, refusing the appellants leave to appeal to the Federal Court of Appeal against the decision and order of the High Court, Kano State. Rowland, J., striking out the second respondents herein as Third Party in suit No. K/108/79; and thereafter refusing the appellants leave to appeal therefrom to the Federal Court of Appeal.

The appeal raises in a rather acute form the important question of the principles of law and rules of practice to be applied or followed and the approach to be adopted by the Federal Court of Appeal when an application for leave to appeal from a judgment or decision given or an order made by the High Court comes before it for consideration and determination. The quality of the materials to be placed before the court to enable it to discharge such functions satisfactorily is also involved. This area of law and practice would appear to be an uncharted terrain, involving as it does, the exercise of discretion by the Federal Court of Appeal.

Stated broadly, the main question for determination and decision in this appeal is as to whether or not the Federal Court of Appeal erred in law and also exercised its discretion on wrong principles in refusing to grant leave to the appellants to appeal against the decision and order of the High Court, Kano, made on 11th February, 1980, in the circumstances of this case.

The events which gave rise to this appeal may briefly be stated as having occurred as hereunder set forth.

On 14th May, 1979, in the High Court, Kano State, in suit No. K/108/79, Kigo (Nigeria) Limited, the first respondents, that is, as plaintiffs, claimed:

“(i) the right to reject the whole crushing Plant comprising one Goliath Primary Crusher 30 x 18 and one Goliath Secondary 30 x 24 sold and delivered by the Defendant to the Plaintiff between April and September, 1978. And

(ii) special and general damages for several breaches of contract by the Defendant in respect of goods sold and delivered by the Defendant and for several wrongs committed in tort against the Plaintiff including deceit, fraud, false representations and negligence whereby the plaintiff has suffered substantial damages.”

Special damages alone claimed amounted to the sum of N3,836,323. Interest was also claimed.

Later, the 1st respondents filed their statement of claim dated 22nd May, 1979, in obedience to an order of court made in that behalf on 21st May, 1979.

On 24th September, 1979, on the ex parte application of the appellants, Goodwin Barsby Limited of Leicester, England, were joined by order of court, Jones, CJ., as he then was, as third Party in the suit.

And pursuant to the order of court made in that behalf, Third Party Notice and other relevant papers were served on counsel in Kano, who accepted service within the jurisdiction of the court, acting for the Third Party, herein 2nd respondents.

After the occurrence of a number of other events, including appearances in court by counsel for the 2nd respondents and obtaining orders for extension of time within which to file statement of defence for the 2nd respondents and a definite date for the hearing of the suit which, at all events, was fixed by consent of all parties to commence on 26th February, 1980, counsel for the 2nd respondents applied under order 6, rule 10 and order 12, rule 3 of the High Court, Kano, Rules 1976, by motion on notice, dated 26th December, 1979 for:

“(a) an order setting aside the proceedings on the Third Party Notice, or striking out the Third Party from this action; and

(b) extension of time by 3 days to file a defence in this action.”

The motion was supported by 2 affidavits, that is, an affidavit and a further affidavit setting out the grounds and circumstances for the application.

On 11th February, 1980, the High Court, Rowland, J., delivered a reserved ruling; set aside the Third Party proceedings and struck out the Third Party, that is , 2nd respondents, from the suit:

“in accordance with Order 6, rule 10 of the High Court (Civil Procedure) Rules, 1976, for reason of lack of jurisdiction to entertain the matter if any between the defendants and Third Party and for other reasons which I have clearly stated.”

Further, in its ruling, the court expressed the view

“that the question or issue if any between the defendants and Third Party apart from the question of lack of jurisdiction by this court cannot be completely disposed of in the action before the court.”

Thereupon the appellants applied to the High Court for leave to appeal to the Federal Court of Appeal against the decision so given and the order so made. On 21st February, 1980, the application was refused.

The appellants then applied to the Federal Court of Appeal for leave to appeal from the decision and order of the High Court, Kano, to the Federal Court of Appeal.

On 31st March, 1980, the Federal Court of Appeal refused the application in a reserved ruling in which, it would appear, the facts and circumstances of the case as were manifest in the proceedings before it, and several legal authorities relevant thereto, some of them highly controversial, were laboriously and critically scrutinised in great detail.

Then the appellants, in further exercise of their right secured under Section 213(3) of the Constitution of Nigeria, 1979, applied to the Federal Court of Appeal for leave to appeal to this court against the decision and order of the Federal Court of Appeal refusing leave. That application was granted in a ruling dated 14th April, 1980.

In the ruling of the court granting leave, Kazeem, JCA., said inter alia:

“In the first place, I think that in the Ruling of this court delivered on 31st March, 1980, some novel points of law arose and were considered and I am of the view that they are worthy of further consideration by the Supreme Court on the points raised by the applicants in their proposed grounds of appeal.”

Thus it was that this court became seised of this matter.

The appellants are dissatisfied with the decision and order of the Federal Court of Appeal refusing them leave to appeal from the decision and order of the High Court, Kano State to the Federal Court of Appeal. Hence they have appealed by leave to this court on a number of grounds.

This court is not concerned strictly with what might have been the probable fate or outcome of an appeal against the decision and order of the High Court, Kano, if leave had been granted by the Federal Court of Appeal. Or, to put it in another way: this court is not here concerned with the question whether or not the appeal from the decision and order of the High Court, Kano, would have succeeded, if leave to appeal had been granted; or whether the High Court, Kano, was right or wrong in law in striking out the 2nd respondents from the suit, about which this court does not purpose to express any opinion in this judgment; but rather, with the way and manner the application for leave to appeal from the decision and order of the High Court, Kano was dealt with by the Federal Court of Appeal in refusing leave. This court is particularly concerned with the approach or, what might be termed, modus operandi adopted by the Federal Court of Appeal in handling the application for leave.

In these premises, My Lords, I think for the purpose of reaching a reasonable decision in this appeal, of the many grounds filed and argued before this court, only four need be considered. These are:

(1) The Federal Court of Appeal erred in law and also exercised its discretion wrongly in deciding on the application for leave to appeal that Harris v. Taylor [1915] 2 KB 580; and Henry v. Geoprosco International Limited [1976] QB 726 were wrongly decided and ought not to be followed when no such submission was made to the court by counsel for any of the two respondents;

(2) The Federal Court of Appeal misdirected itself in law and on the facts in holding that the Third Party had not submitted to jurisdiction having regard to the several acts of the Third Party and their counsel as adumbrated in the record of proceedings;

(3) Having arrived at the conclusion that the validity of Harris v. Taylor and Henry v. Geoprosco International Limited required careful consideration, the court ought to have granted leave to appeal so as to accord full opportunity to counsel representing all the parties to advance full arguments before the court for the purpose of assisting the court to come to a reasonably correct decision on the issue dealt with by the said authorities; and failure to do so is tantamount to a wrong exercise of judicial discretion, which has occasioned a miscarriage of justice; and

(4) Having found that the appeal raised issues which the court considered to be “recondite points of law”, the Federal Court of Appeal erred in deciding the points aforesaid without granting leave to appeal.

In his submissions on these grounds, which were argued generally, Chief Williams, learned counsel for the appellants, pointed out that the Federal Court of Appeal had refused the appellants leave to appeal from the decision and order of the High Court, Kano, to the Federal Court of Appeal on two main grounds. These were firstly, that the Third Party had not submitted to jurisdiction; and secondly, that the decision of the High Court, Kano, was based on the exercise of discretionary power by that court, which it was entitled to exercise at any stage of the proceedings, to strike out the third Party from the suit.

Chief Williams submitted forcefully that the Federal Court of Appeal dealt with the issue of jurisdiction most extensively in an effort to show that the Third Party, the 2nd respondent, that is, did not voluntarily submit to the jurisdiction of the High Court, Kano; and that having embarked upon that course of action, the Federal Court of Appeal was driven to the expedient of considering the decisions of the Court of Appeal in England in Harris v. Taylor (supra) and Henry v. Geoprosco International Limited (supra) most critically; both of which the court held ultimately to have been wrongly decided and, therefore, that they should not be followed in view of the decision of the Court of Appeal in England, Denning, LJ., as he then was, in Re Dulles Settlements Trust (No.2) [1951] Ch. 842 – a submission which neither counsel for the respondents had made to the court.

Chief Williams pointed out that the two cases – Harris v. Taylor (supra) and Henry v. Geoprosco International Limited (supra) were merely mentioned in the course of his submissions in order to show that the application for leave was not frivolous; and also to indicate to the court the sort of problems with which it would be confronted in the field of the conflict of Laws and the conflicts it would be called upon to resolve should leave be granted for the appeal to proceed.

My Lords, there is considerable strength in these submissions. An examination of the ruling delivered by the Federal Court of Appeal leaves one with the almost indelible impression that the bulk of it was devoted to a critical analysis of the judgments in Harris v. Taylor (supra) and Henry v. Geoprosco International Limited (supra) and comparing and contrasting the same with the judgment in Re Dulles Settlement Trusts (No.2) (supra) to the disadvantage of the former on the issue of voluntary submission to jurisdiction. Such an approach to the application for leave also gives one the impression, albeit erroneous, that the Federal Court of Appeal was in fact dealing not with an application for leave, but with the appeal itself on its merits, the application for leave being treated as the appeal itself; which, of course, was a very clear and powerful indication that the appeal was arguable and that the application was not frivolous. It would have been quite proper for the Federal Court of Appeal having arrived at such a conclusion, to have treated the application for leave as if it were the appeal itself, if the court were so minded, and then to have granted leave and proceeded to hear the appeal on its merits.

My Lords, an illustration would perhaps serve to demonstrate more vividly the extent to which the Federal Court of Appeal had gone in the consideration of the two cases concerned and about which Chief Williams has complained; and the approach of the Federal Court of Appeal to this aspect of the matter.

In the ruling of the Federal Court of Appeal, Nnaemeka-Agu, JCA., said:

“the main plank in Chief Williams’ argument is that the 3rd party, though an English company, had submitted to the jurisdiction of the Kano High Court: that the third party’s acceptance of service through their solicitor was a submission to the jurisdiction of the court, even if the acceptance was to protest jurisdiction: that if a party outside the jurisdiction of a court accepts service in order to protest jurisdiction, he has submitted to the jurisdiction. He relied on this proposition upon two cases namely: Harris v. Taylor [1915] 2 KB 580 and Henry v. Geoprosco International Ltd. [1976] QB 726. Upon a view of all the authorities on the point, I am unable to accept the proposition that to accept service for the purpose of protesting jurisdiction amounts to a submission to jurisdiction. As I see it, the correct view is that a defendant who contends that a court has no jurisdiction over him may accept service for the sole purpose of protesting the jurisdiction and, provided he does not fight the case on its merits, he is not thereby deemed to have submitted to jurisdiction. Graveson: Conflict of Laws: (7th Edtion) at page 115 summarised the position of such a defendant thus:

‘Such a defendant has two courses open to him: he may ignore the entire English proceedings, in which case he may at some time in the future have to raise the lack of jurisdiction of the English court in defence to an action in a French court for the enforcement against him of the English judgment (if judgment were obtained); or owning property in England which might be taken in satisfaction of any judgment so obtained in default of appearance, he may consider it the wiser course to appear before the English court to protest against its claim to exercise jurisdiction over him. In the latter case, provided he does not contest the issue on the merits, but limits himself to denying jurisdiction, his appearance will not amount to submission to the jurisdiction. If he pleads to the merits of the case he will be held to have submitted voluntarily to the jurisdiction and will accordingly be bound by any judgment given.’

The learned author cited Boyle v. Sacker (1888) 39 Ch. 249 in support of the above proposition. Even Dicey and Morris; the conflict of Laws (9th Edn.) to which the learned counsel for the applicants referred us says at p. 168:

‘But a person who appears merely to contest the jurisdiction of the court does not thereby submit thereto.’

Denning, LJ., put it more succinctly in Re Dulles Settlement Trust (No.2) [1951] 1 All ER 69 p. 71 where he said:

‘I cannot see how anyone can fairly say that a man has voluntarily submitted to the jurisdiction. If he does nothing and lets judgment go against him in default of appearance he clearly does not submit to the jurisdiction. What difference in principle does it make, if he does not merely do nothing, but actually goes to the court and protests that it has no jurisdiction I can see no distinction at all…..if he fights the case, not only on the jurisdiction but also on the merits, he must then be taken to have submitted to the jurisdiction, because he is then inviting the court to decide in his favour on the merits and he cannot be allowed, at one and the same time to say that he will accept the decision on the merits if it is favourable to him and will not submit to it if it is unfavourable.’

As far as I am aware, this was the law at least up till 1915. The decision of the English Court of Appeal in Harris v. Taylor [1914-1915] All ER Rep. 366 (also in [1915] 2 KB 580) which the learned counsel for the applicants in this case relies upon if applied changed the law to be that whenever a defendant appears to protest jurisdiction he is deemed to have submitted to the jurisdiction of the court. That point was re-emphasised in Re Dulles Settlement Trust (No. 2) (supra). In that case too the principles underlining the decision in Harris v. Taylor (supra) were re-examined and explained – per Denning, LJ., at pp. 72-73 thus:

‘Harris v. Taylor (1) appears at first sight to conflict with the views I have expressed, but a careful examination of that case shows that it is distinguishable. The plaintiff there sued the defendant in the Isle of man for a tort committed there. The defendant was not in the island, but the Manx court gave leave to serve him out of the jurisdiction of the Manx court on the ground that the cause of action was founded on a tort committed within their jurisdiction. The defendant entered a conditional appearance in the Manx court and took the point that the cause of action had not arisen within the Manx jurisdiction. That point depended on the facts of the case, and it was decided against him, whence it followed that he was properly served out of the Manx jurisdiction in accordance with the rules of Manx court. Those rules correspond with the English Rules for service out of the jurisdiction contained in R. S. C., Ord. 11 and I do not doubt that our courts would recognise a judgment properly obtained in the Manx courts for a tort committed there whether the defendant voluntarily submitted to the jurisdiction or not just as we would expect the Manx courts in a converse case to recognise a judgment obtained in our courts against a resident in the Isle of Man on his being properly served out of our jurisdiction for a tort committed here. Harris v. Taylor (1) is an authority on res judicata in that the defendant was not allowed in our courts to contest the service on him out of manx jurisdiction because that was a point that he had raised unsuccessfully in the Manx court and he had not appealed against it. To that extent, he had submitted to the jurisdiction of the Manx court and was not allowed to go back on it, but the case is no authority on what constitutes a submission to jurisdiction generally.’

It became clear therefrom that the decision in Harris v. Taylor (supra) was based on three principles; namely that on the rules applicable in the Isle of Man at the time when the defendant appeared to protest the jurisdiction of the court there was no provision for entering of formal entry of appearance, that on the English principles for reciprocal recognition of foreign judgment the English court would recognise the judgment properly obtained in Manx court in the case for a tort committed there whether the defendant submitted to the jurisdiction or not, and that on principles of res judicata the defendant could not be allowed in England to contest again the service on him out of Manx jurisdiction because that was a point that he had raised unsuccessfully in Manx court and had not appealed against it. After the decision in Re dulles Settlement trusts (supra) the learned author of Dicey’s Conflict of Laws (9th Edn.) had this to say at p.996:

‘It used to be thought, on the authority of the decision of the Court of Appeal in Harris v. Taylor, that an appearance merely to contest the jurisdiction of the court was voluntary. Fortunately, there is no longer any need to accept a proposition so revolting to common sense. For Lord Denning has explained this decision on other grounds; and after this explanation it seems unlikely that the case will ever be followed.’

Cheshire: Private International Law (9th Edn.) at p. 638 described Harris v. Taylor as a “troublesome case” and went ahead to postulate that ‘it can be said with some assurance that to protest is not necessarily to submit.’”

After another bite at the cherry as the saying goes, or, if I may be permitted the use of a cricket field expression, after another ‘swipe’ at the two cases and comparing and contrasting them with the opinion of another English judge, the learned Justice of Appeal then said:

“I do not feel that this court is equally bound to follow it, and I do not follow it, for a couple of reasons.

First, decisions of the English Court of Appeal are not binding on this court. Secondly, I regard it as not only ‘revolting’ and ‘troublesome’ as the learned authors have said but also revolutionary in the sense that the traditional concept of private international law is that; a defendant who disputes the jurisdiction of a court is not regarded as having submitted to the jurisdiction simply because he appears to protest the jurisdiction.”

Thereafter the learned Justice of Appeal “paused”, to borrow his own expression, to observe that in the course of the submissions by counsel, there was no suggestion before the Federal Court of Appeal that when learned counsel for the 2nd respondent accepted service and appeared before the High Court, Kano, he did not do so in order to protest the jurisdiction of that court “That”, said the learned justice of Appeal, ‘was taken for granted in the argument before us”; and accounted for the reason why all the materials before the High Court, Kano, including affidavits in support of the application to strike out the Third Party from the suit were not placed before the Federal Court of appeal. The learned Justice of Appeal then quoted a long passage from the ruling of the High Court, Kano, purported to be the findings of fact by the learned trial Judge on the materials which were before that court when considering the application to strike out the 2nd respondent from the suit and then concluded as follows:-

“These findings were not faulted before us. On the face of these findings and having refused to follow the principles of submission by protest as laid down in Harris v. Taylor, I must hold that there was no submission to the jurisdiction of the Kano Court by the third party, an English Company. In holding so, I am fully aware that if I had found that what Mr. Majiyagbe did amounted to voluntary submission to jurisdiction, the 3rd party, his clients, would have been deemed to have submitted even though they were outside jurisdiction and no leave was sought or obtained to serve them out of jurisdiction.”

In the passage of the ruling just reviewed, including the passage quoted above, two things, among others, stand out which ought to be noted and underlined. In the first place, the Federal Court of Appeal “paused” to complain of inadequacy of the materials made available to it to assist the court to come to a reasonably correct assessment of the merits of the application for leave. For want of materials, the Federal Court of Appeal had to fall back on the findings of the High Court, Kano, on the issues in controversy between the parties. In the second place, from the findings of the High Court, Kano, which according to the Federal Court of Appeal, were not “faulted”, the Federal Court of Appeal came to a definite conclusion that there was no submission to the jurisdiction of the High Court, Kano, by the 2nd respondent, an English Company.

Thus one of the most vital issues in controversy between the parties in the case and the subject of the proposed appeal for which leave was sought was laid to rest by the decision of the Federal Court of Appeal, notwithstanding the fact that no leave had been granted to appeal; and ipso facto without the benefit on the part of the Federal Court of Appeal of well developed and articulated arguments from all the parties concerned in the case. That issue was the question whether or not the third party, that is, the 2nd respondents, had submitted to the jurisdiction of the High Court, Kano, by their conduct acting by their counsel. The contention of the appellants which, incidentally, Mr. Majiyagbe, counsel for the 2nd respondents has before this court acclaimed as unassailable, was that the 2nd respondent had done so by conduct. And yet the Federal Court of Appeal has held the contrary to be the case.

The Federal Court of Appeal has held that there was no submission in law to the jurisdiction of the High Court, Kano by the 2 respondents – a decision which the 2nd respondent, on their own showing, have admitted to be wrong in law. That obviously must be a source of embarrassment to the Federal Court of Appeal. This is all due to a wrong approach to the application for leave. The Federal Court of Appeal, with respect, had arrived at that erroneous decision in law probably because it had dealt with the matter as if leave had been granted and all relevant papers made available to it and the appeal had been fully argued, when in fact that was not the case.

My Lords, with the greatest respect to the Federal Court of Appeal, a refusal of leave in such circumstances would appear to me to be mere cosmetics, or a ritualistic formular used as a cloak to cover the fact that the appeal had in fact been disposed of on its merits. It seems to me extremely difficult to justify an approach of this kind to an application for leave, especially when such leave is said to have been refused; or even to ascertain the principles upon which the Federal Court of Appeal had purported to act in this matter.

It is indeed incomprehensible that the Federal Court of Appeal did not think it prudent to grant leave to appeal after having arrived, on the materials available to it and after hearing arguments before it, at the conclusion that Harris v. Taylor (supra) even in the light of the explanation in Henry v. Geoprosco International Limited (supra) was not only “revolting” and “troublesome”, but also might be of doubtful authority. Had the Federal Court of Appeal granted leave then all the parties concerned would have been able to advance uninhibited arguments before the court for the purpose of assisting the court to come to a more reasonable interpretation and application of the ratio decidendi in both cases. Henry v. Geoprosco International Limited (supra) was concerned with explaining the ratio decidendi in Harris v. Taylor (supra) and showing that that ratio decidendi was misunderstood by Denning, LJ., in Re Dulles Settlement Trusts (No.2) (supra).

I am of opinion that the Federal Court of Appeal, having failed to grant leave to appeal in the circumstances disclosed in these proceedings, not only erred in law: see Donald Campbell and co. Ltd. v. Pollak [1927] AC. 732, but also exercised its judicial discretion on wrong principles or in disregard of principle -see Young v. Thomas [1892] 2 Ch. 134.

The right to apply to the Federal Court of Appeal for leave secured to an applicant under Section 221(1) of the Constitution of Nigeria, 1979, postulates that the issues involved in the proposed appeal for determination pertain to the realm of mixed facts and law since, under the Constitution, appeal lies as of right to the Federal Court of Appeal from the High Court on questions of law alone and other specified instances.

I think the principle here stated by the Lord Esher, MR., is important and relevant and should always be borne in mind by the judges of the High Court as well as of the Federal Court of Appeal when dealing with applications for leave to appeal even against their own decisions. On the other hand, care should always be taken so as not to give the impression that leave to appeal would be granted as a matter of course – a mere routine. It is precisely for this reason that jurisdiction to grant or refuse leave should be exercised judicially, and especially in cases established to be of very general importance. See also Bankes, L J., in Buckle v. Holmes [1962] All ER (Reprint) 90 at p. 91.

In principle, when dealing with an application for leave to appeal, an applicant is not required to show that the appeal would succeed, if leave were granted. It is sufficient to show that there is an arguable appeal. Or, to put it in another way: it is enough to show a prima facie case that the court from whose decision leave to appeal is sought has committed an error of law; or has failed to exercise its discretion judicially; or has based the exercise of such discretion on wrong principles.

My Lords, it is my considered opinion that the Federal Court of Appeal, with respect, also misdirected itself in law in failing to direct its mind properly to the principles stated above and the application thereof in the instant case when, considering the application for leave to appeal by the appellants herein. By reason of such misdirection, the Federal Court of Appeal came to a wrong decision in law in refusing the appellants leave to appeal while at the same time treating the application for leave as if it were the appeal itself, for which leave to appeal had been granted, and thereupon deciding issues in controversy between the parties in the appeal on their merits without leave having been granted for the appeal to be properly and fully argued before it. A refusal of leave in such circumstances cannot be allowed to stand by this court. It is unsustainable as it is based on an error of law due to misdirection and the exercise of judicial discretion in disregard of principles. On this point alone, this appeal ought to succeed. It must be allowed.

That then brings me to a consideration of the second limb of the submission made to this court by Chief Williams. But before embarking upon that exercise, in view of the observation of Kazeem, JCA., in granting leave that in the ruling of the Federal Court of Appeal, certain novel points of law had arisen for consideration and that such novel points ought also to be considered by this court, it might perhaps be just as well at this juncture to deal first with an aspect of the ratio decidendi in Harris v. Taylor (Supra) as explained in Henry v. Geoprosco International Limited (supra) which did not appear to have been clearly brought out, to put it modestly, by the Federal Court of appeal in its ruling under review.

Lest I be misunderstood, let me hasten to state here and now that no attempt has been made in this judgment to criticise the stance generally of the Federal Court of Appeal in refusing to be bound by the decision of the Court of Appeal in England. Its refusal so to be bound, had it been properly exercised on an appropriate occasion, could only have won the applause and admiration of this court. This country is no longer tied to the apron strings of Imperial England. This court is itself not bound by the decisions of the English Privy Council. Such decisions have only persuasive influence and may be adopted when appropriate and for cogent reasons. Indeed, such an attitude of independent thinking as exhibited by the federal Court of Appeal can only be to the good. It is an assertion of independence, which should contribute towards the broad development and growth of our independent corpus of jurisprudence.

My Lords, what has been criticised in this judgment is the manner in which the Federal Court of Appeal appeared to have still stuck to the decision of the Court of Appeal in England in Re Dulles Settlement Trusts (No. 2), (supra) which was given in 1951 and which had severely criticised Harris v. Taylor, (supra) itself given in 1915, despite the fact that the Court of Appeal in England was at pains to show and had gone to great length in showing in Henry v. Geoprosco International Limited, (supra) which was subsequently given in 1976, that in Re Dulles Settlement Trusts (No. 2), (supra) was wrong: and that the criticism of that judgment by Denning, LJ., in Re Dulles Settlement Trusts (No. 2), (supra) and by book writers were ill founded in the light of a long line of decisions of the Court of Appeal in England on the issue of voluntary submission to jurisdiction. The whole of the exercise of the Court of Appeal in England in Henry v. Geoprosco International limited, (supra) was directed towards showing that in Re Dulles Settlement Trusts (No. 2), (supra) was wrong in its criticism of Harris v. Taylor, (supra); and, in particular, that the ratio decidendi in Harris v. Taylor, (supra) was not the issue of res judicata as had been enunciated by Denning, L J., in Re Dulles Settlement Trusts (No. 2), (supra).

Henry v. Geoprosco International Limited, (supra) raised and decided an important question on the principles of the conflict of laws as to the circumstances in which the English courts would permit a plaintiff, who had obtained a judgment against a defendant in a country outside England, to which the Foreign Judgments (Reciprocal Enforcement) Act, 1933, did not apply, to enforce that judgment by action against the defendant therein in the English courts.

In the course of submissions by counsel in that case on appeal, the attention of the Court of Appeal in England was drawn to its previous decision in Re Dulles Settlement Trusts (No. 2), (supra) and certain comments by the Editors of Dicey and Morris: The Conflict of Laws (9th Edn.) 1973 at page 996 on the issue of submission to jurisdiction. The court was invited to hold that Harris v. Taylor, (supra) was wrongly decided in 1915 and ought not to be followed having regard to the explanation given by Denning, L J., in Re Dulles Settlement Trusts (No.2), (supra).

The Court of Appeal in England in its judgment, which was delivered by Roskill, L J., after an exhaustive review of a long line of decisions by the Court of Appeal throughout the 19th century and before the decision in Harris v. Taylor (supra), said at page 738:

“it seems to us of crucial importance, when considering the ratio decidendi of Harris v. Taylor [1915] 2 KB to observe, first, that the Isle of Man High Court had by its own local law jurisdiction over the defendant; secondly, that that court had a discretion whether or not to exercise that jurisdiction over the defendant; thirdly, that that court having heard a plea by the defendant that it could not and should not do so decided that it could and should exercise that jurisdiction; fourthly, that it was not argued in the English action that that decision was in any way wrong by the local law, and, fifthly, that the defendant, having voluntarily invited the Isle of man High Court, by the appearance which he made, to adjudicate upon his submission that that jurisdiction of that court could not and should not be exercised over him and having lost, had voluntarily submitted to the jurisdiction of that court so that thereafter the defendant could not be heard to say that that court did not have jurisdiction to adjudicate upon the entirety of the dispute between him and the plaintiff.”

In reaching that decision, the Court of Appeal in England pointed out that what it had done was nothing more than follow a well established line of authority on the subject. The court distinguished Re Dulles Settlement trusts (No.2) (supra) from Harris v. Taylor (supra) on the very important ground that whereas Harris v. Taylor (supra) was a decision upon the enforcement of a foreign judgment by action in the English Courts, Re Dulles Settlement Trusts (No.2) (supra) arose from wardship proceedings coupled with an application for an order for maintenance under the Guardianship of Infants Act, 1925, in an English court in which the defendant was an American outside the jurisdiction of the English court. It then held that Denning, LJ., fell into an error, having realised that his decision in Re Dulles Settlement Trusts (No. 2), (supra) was in conflict with the decision in Harris v. Taylor, (supra) to have distinguished Re Dulles Settlement Trusts (No.2), (Supra) from Harris v. Taylor (Supra) on the basis that the latter was only an authority on res judicata. It also held that the issue as to where the criminal conversation, the subject matter of the action in the Isle of Man High Court, had taken place was never decided by that court, which, in any case, had taken the view that it made no difference where the adultery had taken place, whether at Liverpool or at the Isle of Man; and that it had jurisdiction over the matter. There was no decision given upon the issue of whether or where the adultery complained of in Harris v. Taylor, (supra) had taken place; and there was no express submission to the jurisdiction of that court. No question of res judicata could have arisen, the issue not having been tried and therefore there was no specific decision by the court on that issue.

In dealing with comments by the learned authors of Dicey and Morris: the Conflict of Laws, the Court of Appeal said at page 746:

“We need hardly say that we have considered with the utmost care and respect the views expressed by the editors of Dicey’s Conflict of Laws in successive editions of that work, by way of criticism of Harris v. Taylor, culminating in the views expressed in the 9th ed. (1973) to which we have already referred, as well as the views of Professor Cheshire in various editions of Cheshire’s Private International Law. But however distinguished the authors and editors of these books, the law must be taken to be as laid down by the courts, however much their decisions may be criticised by writers of such great distinction.”

Taking the view that Harris v. Taylor, (supra) was still good law and binding on the Court of Appeal in England, and arising therefrom as well as from the several authorities examined, the court then proceeded to lay down three propositions of law upon which English Courts would act in the enforcement of foreign Judgments. These are:

“(1) The English courts will not enforce the judgment of a foreign court against a defendant who does not reside within the jurisdiction of that court, has no assets within that jurisdiction and does not appear before that court, even though that court by its own local law has jurisdiction over him;

(2) English courts will not enforce the judgment of a foreign court against a defendant who, although he does not reside within the jurisdiction of that court, has assets within that jurisdiction and appears before that court solely to preserve those assets which have been seized by that court;

(3)The English courts will enforce the judgment of a foreign court against a defendant over whom that court has jurisdiction by its own local law(even though it does not possess such jurisdiction according to the English rules of conflict of laws) if that defendant voluntarily appears before that foreign court to invite that court in its discretion not to exercise the jurisdiction which it has under its own local law.”

The Court of Appeal then continued at page 747:

“What has, curiously enough, never been finally and authoritatively decided in the English courts is whether where a defendant appears in a foreign court solely to protest against the jurisdiction of that court (whether or not by its own local law that court possesses such jurisdiction) and such protest fails and judgment is then given against him, such appearance under protest amounts to a voluntary submission to the jurisdiction of that court so that the English courts will subsequently enforce that judgment against him.”

My Lords, in the light of the foregoing, including the passage just quoted, I find myself in great difficulty to understand and appreciate the reason why, having come to the conclusion that the 2nd respondents in the appeal in hand had only appeared to protest against the exercise of jurisdiction over them, and therefore had not voluntarily submitted to the jurisdiction of the High Court, Kano, the federal Court of Appeal should have stated that it had refused to allow the decisions of the Court of Appeal in England in Harris v. Taylor, (supra) and Henry v. Geoprosco International Limited, (supra) which were not at variance with its own conclusion. It seems clear that what the court actually did in fact, perhaps unconsciously, was to distinguish the facts and circumstances present in the case in hand from the facts found and the circumstances held to have been present in Harris v. Taylor (supra) as explained by Henry v. Geoprosco International Limited (supra). And the Federal Court of Appeal ought to have stated so clearly. Had that been the case then the Federal Court of Appeal might have considered itself as having blazed a new trial and made legal history by helping to close up a legal vacuum by its decision that an appearance solely to protest against jurisdiction does not constitute a voluntary submission to jurisdiction for which up to 1976, at least, according to Henry v. Geoprosco International Limited (supra), there was no available English authority.

In this regard, and by way of emphasis, the Court of Appeal in England on this point said at page 747:

“we do not, therefore, consider that adherence in the present appeal to what this court decided in Harris v. Taylor compels us also to hold that an appearance solely to protest against the jurisdiction of a foreign court is a voluntary submission to that court.”

And further: at p. 748

“we, therefore, say no more than that we are not deciding that an appearance solely to protest against the jurisdiction is, without more, a voluntary submission.”

I now turn to consider the second limb of the submission of Chief Williams, which concerns the judicial exercise of discretion. Chief Williams had contended that the Federal Court of Appeal was wrong in law in holding that the decision of the High Court, Kano, was based on the proper exercise of juducial discretion in striking out the 2nd respondents from the suit.

In answer to that contention, while conceding that in law the 2nd respondent did submit to the jurisdiction of the High Court, Kano, Mr. Majiyagbe, learned counsel for the 2nd respondent, submitted that the application to strike out the 2nd respondent from the suit was not based solely on the issue of jurisdiction. He submitted rather strenuously that there were other grounds, such as the absence of privity of contract; delay which the joinder was likely to occasion; and the likelihood of the right of the 2nd respondent being prejudiced by the joinder; which were set out in the affidavits supporting the motion on notice to strike out the 2nd respondent from the suit, in accordance with the relevant rules of the High Court, Kano; and that the High Court acted in the proper exercise of its judicial discretion after an exhaustive examination of all the grounds and having regard to all the circumstances.

My Lords, Chief Williams’ submission and Mr. Majiyagbe’s contention in answer thereto, leave one in no doubt that those submissions are directed towards attacking the exercise of discretion by the High Court, Kano, in striking out the 2nd respondents from the suit. In the circumstances, I think it is but right that this court should not express any opinion one way or the other on this aspect of Chief williams’ submission in view of the decision which this court has already given that the appeal be properly heard with all papers, material and relevant to the issues in controversy between the parties, by the Federal Court of Appeal. It will obviously be the duty of the Federal Court of Appeal to deal appropriately with this issue, if it is again raised before it.

On Tuesday, 24th June, 1980, after the submissions of counsel, for the reasons which were reserved to be given today, your Lordships had allowed this appeal with costs, including disbursements to the appellants against the 1st and 2nd respondents, and had then also directed.

THAT the decision and order of the Federal Court of Appeal refusing the appellants leave to appeal from the decision and order of the High Court, Kano, striking out the 2nd respondents as Third Party therein from suit No. K/108/79 be set aside, and it was so set aside;

THAT leave be granted, and it was so granted to the appellants to appeal against the decision and order of the High Court, Kano, to the Federal Court of Appeal;

AND THAT the appeal be filed in the High Court, Kano, within 30 days.

My Lords, I had then agreed with your Lordships’ decision and direction for the reasons I have just given.

C. IDIGBE, J.S.C.: My Lords, it is for the reasons so adequately stated in the judgment which has just been read by my learned brother, My Lord, Udoma, JSC., with which I am in entire agreement – having had the advantage of reading the draft – that I shared in the common agreement of your Lordships on Tuesday the 24th day of June, 1980, after the submissions of counsel, that this appeal be allowed.

A. O. OBASEKI, J.S.C.: My Lords, on Tuesday, 24th June, 1980, after the submissions of counsel, your Lordships allowed this appeal, reserving the Reasons to be delivered today, Friday, 5th September, 1980.

I have had the advantage of reading in draft, the Reasons for Judgment just delivered by my learned brother, Sir Udo Udoma, JSC. He has expansively considered the issues involved in this appeal and set out the reasons with distinctive clarity. There is nothing I can usefully add. I am in complete agreement that it was for those reasons that I allowed the appeal and agreed with the order which was made.

K. ESO, J.S.C.: It is for the reasons just given in such great detail in the judgment of my learned brother, my Lord, sir Udo Udoma, JSC., and which I have had the privilege to read in draft, that I agreed with your Lordships on 24th June, 1980, that the appeal filed in this case be allowed and also that leave to appeal to the Federal Court of Appeal be granted to the appellant and that the appellant should file their notice of appeal within three days of that date and also that costs of N550 be paid by each respondent to the appellant.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the reasons for judgment delivered by my Lord, sir Udo Udoma, JSC. I entirely agree with all the reasons so clearly given by him for allowing the appeal and I have nothing to add.

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Other Citation: (1980) LCN/1095(SC)