Toepher Inc. Of New York V Edokpolor (Trading As John Edokpolor & Sons) (1965)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC

The plaintiffs (now appellants) began an action in the High Court of the Mid- Western Region (B/39/64)- ‘for the sum of £2,142-0s-0d being total award made on 4th January, 1960 against the defendant in favour of the plaintiff by the Rubber Trade Association of New York, Incorporateds Board of Arbitrators in respect of Contract No. 1-7186 of 2nd June, 1959 and Contract No. 1-7197 of 3rd June, 1959 and in accordance with the terms of the said contracts.’

After the plaintiffs filed their Statement of Claim the defendant gave notice that he would move for an order setting aside the action on the ground that it was ‘founded on a foreign arbitration governed by the laws of the State of New York, United States of America.’ Begho J. gave a considered judgment on 7th November, 1964 which granted the defendants application by striking out the claim. And the plaintiffs have appealed. Having regard to the contents of the judgment and the arguments on appeal, we shall first deal with foreign judgments.

2. A person who obtained a judgment in a foreign court could bring an action in England upon the judgment. According to Cheshires Private International Law (6th ed.) under Foreign Judgments, at p.628-9, the hospitality was thought at first to be due to the comity of nations, but this view was given up by the middle of the 19th century, for logically it, involved two inconvenient consequences-( 1) that of requiring reciprocal treatment in the foreign court, and (2) that of restricting the ambit of the defence which could be made to a claim based on a foreign judgment. That view was supplanted by another, namely the doctrine of obligation; in the  words of Blackburn J. in Schibsby v. Westenholz (1870) L.R. 6 Q.B. 155,159, the true principle is that:-

‘the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the courts in this country are bound to enforce.’ And lower down on p. 159 of the report Blackburn J. makes it plain that the doctrine of ‘comity’ is incorrect. Thus, no question of reciprocity could arise in an action brought upon a foreign judgment.

3. We now pass on to the statutes which have enabled judgments given outside the United Kingdom to be made directly effective in England; they are the Administration of Justice Act, 1920, which relates to judgments of the British Dominions, including protected or mandated territories, and the Foreign Judgments (Reciprocal Enforcement) Act, 1933, which relates to judgments of foreign countries, and may be applied and extended to British Dominions etc., the aim being to supersede the Act of 1920 by the Act of 1933 in the course of time.

(a) It is Part II of the 1920 Act that is relevant to the subject in hand. By section 14 the King in Council, if satisfied that reciprocal arrangements hadbeen made, was empowered to extend Part II to any part of the Dominionsetc., and section 9 enabled the successful litigant to register his judgment in England by leave of court. Subsection (S) of section 9 saved his right to sue on a judgment which might be registrable but, except in certain circum- stances, he would have no costs of action.

(b) It is Part I of the 1933 Act which deals with the direct enforcement of a foreign judgment by registration of the judgment. An Order in Council can be made to extend Part I to the judgments of the superior courts of a foreign country that accords reciprocal treatment to the judgments of the superior courts of the United Kingdom, and the Order will specify the courts that are to be deemed superior courts of the country. Section 6 provides that no proceedings other than by way of registration shall be brought to recover money payable under a judgment to which Part I applies.

4. The decision in Yukon Consolidated Gold Corporation Ltd. v. Clark [1938J 2 K.B. (C.A.) 241 establishes that a foreign judgment may be sued upon if it is not open to the plaintiff to adopt the method of applying to register the judgment under section 2 in Part I of the Act of 1933. The Act of 1933 served as the model for our Foreign Judgments (Reciprocal Enforcement) Ordinance, 1960, which was enacted after Independence, and Begho J. recognizes that as Part I of what we ought now to describe as our Act of 1960 has not been extended to the State of New York, a judgment obtained in its superior court cannot be registered under that Part, but has to be sued upon for recovery of the money payable under the judgment.

Mr Alele for the defendant has, however, argued before us that Yukon etc. means that unless there is reciprocal treatment in the State of New York, our courts cannot entertain an action brought on a judgment obtained there, but he was unable to point to anything in that case which supported his argument; and he also overlooked subsection (3) of section 11 and section 12 of our Act of 1960, on neither of which could he offer any helpful argument when drawn to his attention.

Section 11 is the first section in Part II-Miscellaneous of the Act, it begins by providing in subsection (I) that:-

‘(1) Subject to the provisions of this section, a judgment to which Part I of this Ordinance applies or would have applied if a sum of money had been payable thereunder, whether it can be registered or not, and whether, if it can be registered, it is registered or not, shall be recognized in any court in Nigeria as conclusive between the parties thereto in all proceedings founded on the same cause of action and may be relied on by way of defence or counter claim in any such proceedings. ‘ It goes on in subsection

(2) to set out exceptions, and ends with subsection