Witt & Busch Limited V Dale Power Systems Plc (2007)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C

This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on 30th May, 2000, in which that court reversed the decision of the High Court of Justice of Lagos State delivered by Ade Alabi, J. (as he then was) on 30th October, 1998, setting aside the order of the same High Court of 13th October, 1997 by Phillips J. registering a foreign judgment of the High Court of Justice, Queens Bench Division in England dated 6th June, 1997, in favour of the respondent in the present appeal. The respondent as a judgment creditor, brought its application for the registration of the foreign judgment under the provisions of the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958. The application was heard and granted by Phillips, J, who in his order, gave the appellant in the present appeal which was the, judgment debtor in the application, 14 days from the date of service of the notice of the order on it, to apply to set aside the registration of the foreign judgment. However, appellant/judgment debtor did not file its application to set aside the registration of the foreign judgment until 23rd June 1998. The application was heard on 18th September, 1998 and in a considered ruling delivered by Ade Alabi, J. (as he then was) on 30th October, 1998, the application to set aside the registration of the foreign judgment was granted.

Dissatisfied with the ruling, the judgment creditor now respondent, appealed against it to the Court of Appeal Lagos Division which after hearing the appeal, in its judgment delivered on 30th May, 2000, allowed the appeal, set aside the decision of Ade Alabi, J. (as he then was) of the trial High Court setting aside the registration of the foreign judgment and restored the ruling of Phillips J. of the same High Court which ordered the registration of the foreign judgment in favour of the respondent.

The appellant which is unhappy with the decision of the Court of Appeal, has now appealed to this court. The appellant’s amended notice of appeal dated and filed on 25th March, 2003, contains three grounds of appeal from which the following three issues for determination were distilled in the appellant’s amended appellant’s brief of argument.

“1. Whether the Court of Appeal was right in holding that registration of the respondent’s judgment from the High Court of England was governed by the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 as against the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990 (ground 2). Whether the decision of the Court of Appeal is not liable to be set aside for reason that the English Court Judgment was registered in foreign currency and not Nigerian Naira contrary to the provisions of section 4(3) of the Foreign Judgments (Reciprocal Enforcement) Act, 1990 (ground 1). Whether the Court of Appeal is correct in holding that by participating in the proceedings before the English High Court, the appellant lost its right to challenge the subject matter jurisdiction of the English Court (ground 3).”

However, in the respondent’s brief of argument filed on 1st September, 2006, the two issues identified for determination are-

“i. Whether or not the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 ‘the 1922 Ordinance’ is the applicable law to the registration in Nigeria of foreign judgments obtained from the High Court of Justice of England.

ii. Whether the Court of Appeal was correct in its holding that the English High Court of Justice had jurisdiction to hear the matter.”

The issues as formulated in the appellant’s brief of argument clearly arose from the three grounds of appeal filed by the appellant.

These are therefore the issues falling for determination in this appeal. The first issue is whether the Court of Appeal was right in holding that registration of the respondent’s judgment from the High Court of England was governed by the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 as against the Foreign Judgment (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990. Citing the case of Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt. 498) 124 at 159 – 160 , learned appellant’s counsel concedes that the fact that an enactment is omitted from the Revised Laws of the Federation does not affect its subsistence and validity by virtue of section 3(2) of the Revised Edition (Laws of the Federation of Nigeria) Act No. 21 of 1990, he nevertheless submitted that the 1958 Ordinance has been repealed in part or made of limited application by the express terms of the 1990 Act. Learned counsel took time to analyse the provision of this 1990 Act particularly sections 3 and 9 thereof and argued that although the recent decision of this court in Macaulay v. R.Z.B. Austria (2003) 18 NWLR (Pt. 852) 282, relied upon by the respondent that the Reciprocal Enforcement of Judgment Ordinance of 1958 is the law applicable to the registration and enforcement in Nigeria of a judgment obtained in the United Kingdom and not the Foreign Judgments (Reciprocal Enforcement) Act, 1990, nevertheless learned counsel urged this court to depart from this decision upon the principles stated in Odi v. Osafile (1985) 1 NWLR (Pt. 1) 17 at 34 – 35; 37 – 39; 46 – 48; Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1; Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5 and Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382 at 447.

For the respondent however, it was submitted that on a proper construction and interpretation of the relevant provisions of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990, which both parties have been referred to as “the 1990 Act”, the irresistible conclusion that will be drawn is that the applicable law to the registration of judgments obtained from the High Court of Justice in England is the Reciprocal Enforcement of Judgments Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958, otherwise referred to as ‘the 1922 Ordinance.’ In support of this argument, learned counsel to the respondent relied on Andrew Mark Macaulay v. Raiffeisen Zentral Bank Osterreich Akiengesell Schaft (RZB) of Austria (2003) 18 NWLR (Pt. 852) 282 and Marine & General Ass. Company Plc. v. O. U. Insurance Ltd. (2006) 4 NWLR (Pt. 971) 622.In resolving the first issue arising for determination in this appeal on the law applicable to the application for registration and enforcement of foreign judgment in Nigeria, particularly foreign judgments obtained from the High Court of Justice, Queens Bench Division in England, I entirely agree with the learned counsel to the respondent that the dispute in the applicable law has long been put to rest by the decision of this court in Macaulay v. R.Z.B. of Austria (2003) 18 NWLR (Pt. 852) 282 at 296 where Kalgo, JSC answered the question as follows –

“In my respectful view two Federal laws are relevant here.

(1) Reciprocal Enforcement of Judgments Act, Cap. 175 of Laws of the Federation of Nigeria, 1958 and

(2) Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990. Learned counsel for the parties are also ad idem on this.