Toepher Inc. Of New York V Edokpolor (Trading As John Edokpolor & Sons) (1965)
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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
(3), which provides that:-
‘(3) Nothing in this section shall be taken to prevent any court in Nigeria recognizing any judgement as conclusive of any matter of law or fact decided therein if that judgment would have been so recognized before the passing of this Ordinance.’
Section 12 provides that:-
‘(1) If it appears to the Governor-General that the treatment, in respect of recognition and enforcement accorded by the courts of any foreign country to judgments given in the superior courts of Nigeria is substantially less favourable than that accorded by the courts of Nigeria to Judgments of the superior courts of that country, the Governor-General may by order apply this section to that country.
(2) Except in so far as the Governor-General may by order under this section otherwise direct, no proceedings shall be entertained in any court in Nigeria for the recovery of any sum alleged to be payable under a judgment given in a court of a country to which this section applies.
(3) The Governor-General may by a subsequent order vary or revoke any order previously made under this section. Speaking broadly, without the benefit of argument, we think those provisions mean that foreign judgments can be relied upon as before by either party in accordance with the common law, if no order is made under section 12 to modify that position, and as there is no suggestion of any such order having been made, we think that a party who is not prevented by section 8 in Part I of our Act (which corresponds to section 6 of the English Act) from suing upon a foreign judgment, is entitled to sue in Nigeria to the same extent as he might have done before the passing of our Act of 1960, for recovery of the amount payable under the judgment, regardless of whether there is reciprocal treatment in the country where it was obtained. We now pass on to arbitral awards.
5. After saying that an action can be brought upon a judgment obtained in New York, Begho J. goes on to say as follows: (at p. 48, I. 28):
‘However, this is not a judgment of a competent court of New York but an arbitral award for which execution, I believe, cannot levy straight away in New York without the sanction of a competent court there. There is no pleading to the contrary. I hold the view that for a foreign arbitral award to be recognized here there must be a sort of treaty guaranteeing reciprocal treatment or an Order in Council to that effect. I hold the view that it would have been better if the plaintiffs had sued afresh here on the breach of contract. In the absence of any Order in Councillor pleading that we enjoy similar reciprocal treatment in the courts of the State of New York, I hold the view that it is wrong to bring an action here for the enforcement of the arbitral award for the alleged breach of contract.’
That was referred to at the hearing of the appeal as the core of the judgment. A little lower down the learned judge, after referring to the Arbitrations (Foreign Awards) Act, 1930, of England, states that we have not got any similar Act of our own, but in his view this does not mean that in the absence of statutory provision we must give effect to foreign awards.
6. Mr Giwa-Amu for the plaintiffs has argued that as the court below applies the common law of England and has the jurisdiction of the High Court of Justice in England, the defendant cannot argue that the High Court of the Mid Western Region has no jurisdiction to entertain a suit brought upon a foreign award, and the plaintiffs are entitled to sue upon their award.
He cited the following passage from Cheshires Private International Law (5th ed.) at p. 599 (in the chapter on Foreign Judgments) (in the6th ed. at p. 631): ‘A foreign arbitral award is on the same footing as a foreign judgment in the sense that an action to recover the sum awarded may be brought in England. The essentials of success are proof that the parties submitted to arbitration, that the arbitration was conducted in accordance with the submission, and that the award is valid by the law of the country in which it has been made.’
The relevant footnote reads as follows:-
‘Norske Atlas Insurance Co. Ltd. v. London General Insurance Co. Ltd. (1927) 43 T.L.R. 541. This right of action is not affected by the statutory right to enforce certain foreign arbitral awards: Arbitration A
Other Citation: (1965) LCN/1205(SC)