Marine & General Assurance Company Plc. V. Overseas Union Insurance Ltd. & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This appeal is against the judgment of the Court of Appeal, Lagos division delivered on 11-12-2000 in which the court reversed the judgment/ruling of the trial Lagos State High Court of Justice of 27-6-1996 dismissing a petition to have a judgment obtained in the Queens Bench Division of the High Court of Justice in England on 25-5-1990, registered and enforced as a judgment of the High Court of Justice of Lagos State. The respondents in this appeal were the petitioners/applicants before the trial Lagos State High Court and appellants at the court below. The appellant on the other hand, was the respondent to the petition at the trial High Court and also the respondent to the appeal at the court below.

By a petition/application dated 16-5-1994 as amended, the respondents at the trial High Court of Justice, Lagos State sought for the following relief:-

“An order that the judgment dated the 25th day of May, 1990 whereby it was adjudged that the respondents do pay the petitioner 427.77 (Four Hundred and Twenty Seven Pounds, Seventy Seven Pence) and US$92,470.80 (Ninety Two Thousand, Four Hundred and Seventy Dollars, and Eighty Cents) or the sterling equivalent at the date of payment with interest to be assessed if not agreed from 30th September, 1987, may be registered as a judgment of the High Court of Lagos State Judiciary Division pursuant to the Foreign Judgments/Reciprocal Enforcement Act, Cap. 152, Laws of the Federation, 1990, and enforced against the respondent.”

The appellant, as respondent to the said petition filed a counter affidavit dated 2-9-1994. A reply or response in the form of a further affidavit was filed by the petitioners/applicants on 24-10-1994 before the matter was subsequently argued by the parties on both sides before the trial High Court. In his considered ruling delivered on 27-6-1996, the learned trial Judge, Olugbani J. dismissed the respondents’ petition/application. Aggrieved by this decision of the trial High Court, the respondents decided to appeal against it to the Court of Appeal Lagos Division. The Court of Appeal after hearing the appeal in a unanimous decision delivered on 11-12-2000, allowed the appeal, set aside the decision of the trial Lagos State High Court and granted leave to the respondents to register and enforce the foreign judgment sought to be registered, as a judgment of the High Court of Lagos State. Obviously not satisfied with the judgment of the Court of Appeal, the appellant has now appealed to this court.

At the hearing of this appeal on 1-11-2005, learned counsel for the appellant adopted and relied on his appellant’s brief of argument and the appellant’s reply brief. The respondents’ learned counsel on his part adopted and relied on the respondents’ brief of argument and urged this court to disregard the reply brief and dismiss the appeal.

In the appellant’s brief of argument, one issue was distilled from each of the five grounds of appeal filed by the appellant. These five issues are:-

“(i) Whether the appellant herein was not denied a fair hearing by the Court of Appeal when the court in determining the appeal decided to adopt almost verbatim and virtually in its entirety, the contents of the respondents’ brief of argument filed in that court as its judgment without considering the issues raised and the arguments advanced by the appellant herein in its own brief of argument.

(ii) Whether in view of the provisions of sections 4(1)(b) and section 6(1)(ii) and 6(2)(a) of the Foreign Judgments (Reciprocal Enforcement) Act Cap. 152 Laws of the Federation of Nigeria 1990 dealing with the jurisdiction of the foreign court, the Court of Appeal was right to have granted the respondents leave to register a judgment which the Foreign Court had no jurisdiction to give against the appellant in this case.

(iii) Flowing from issue (ii) above whether the foreign court had jurisdiction to adjudicate on the matter between the parties considering that the writ of summons and points of claim filed in the United Kingdom were not served in accordance with Nigerian Law on the appellant who is not a company registered in the United Kingdom nor has an agent in the United Kingdom.

(iv) Whether the Court of Appeal (Lagos Division) was right to have given a decision inconsistent with the decision of the Court of Appeal (Benin Division) in the case of Thelma Hyppolite v. Dr. Joseph Egharevba (1998) 11 NWLR (Pt.575) 598 where the issue of the jurisdiction of the Foreign Court was considered without giving any reason therefore.

(v) Whether the Court of Appeal was right to have held that the trial court was wrong to have looked into the illegality of the purported transaction in respect of which the judgment sought to be registered was obtained which transaction ran foul of the Exchange Control Act 1962 which is now Cap. 113 of the Laws of the Federation of Nigeria, 1990.”

In the respondents’ brief of argument, five issues as well were posed for determination. I do not find it necessary to state these issues because on close scrutiny, the issues were found to be virtually the same as those issues in the appellant’s brief of argument although slightly differently worded. The real dispute between the parties in this appeal concerns the petition or application of the respondents as judgment creditors in a judgment obtained against the appellant in the High Court of Justice Queens Bench Division, Commercial Court, England. The respondents sought to register the foreign judgment delivered on 25-5-1990 in their favour at the High Court of Lagos State so as to enable them execute that judgment as the judgment of the High Court of Lagos State in Nigeria. The respondents sought their relief to register the foreign judgment under the Foreign Judgment (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation, 1990. The learned trial Judge in his ruling on the application delivered on 27-6-1996, refused leave to register the foreign judgment as the judgment of his court, mainly on the ground that application was not filed within the period prescribed under section 3(1) of the Foreign Judgment (Reciprocal & Enforcement) Act under which the application was brought. Part of this ruling which is relevant in this appeal, particularly with regard to the determination of the real issue for determination in this appeal reads:-

“In the present situation, if the judgment exhibit ‘QUILI’ is registrable it has to be registered within twelve months of the date of the judgment or if the court extends time to do so on the application of the party seeking to enforce the judgment. The judgment exhibit ‘QUILI’ was given on the 25th day of May, 1990. The application was filed in the High Court Registry on the 18th day of May, 1994 and came before this court in September 1994. The period for registration had expired in accordance with section 3(1) of the Foreign Judgment (Reciprocal & Enforcement) Act for more than four years before the application for registration was filed in this court.”