SHONA-JASON NIGERIA LIMITED v. OMEGA AIR LIMITED
CITATION: (2005) LPELR-CA/L/418/2000
   
new OTHER CITATIONS:
1 Shona-Jason Ltd. v. Omega Air Ltd. (2006) 1 NWLR (Pt.960)1
Nigerian Coat of Arms
In The Court of Appeal
(Lagos Judicial Division)
On Monday, the 7th day of February, 2005
Suit No: CA/L/418/2000
 
Before Their Lordships
 
   
WALTER SAMUEL NKANU ONNOGHEN
....... Justice, Court of Appeal
MUSA DATTIJO MUHAMMAD
....... Justice, Court of Appeal
MOHAMMED LAWAL GARBA
....... Justice, Court of Appeal
 
 
 Between
SHONA-JASON NIGERIA LIMITED Appellants
 
 
 And
       
OMEGA AIR LIMITED Respondents
 
     
  RATIO DECIDENDI  
     
1
PRACTICE AND PROCEDURE - ACACEMDIC ISSUES: Attitude of courts to issue that are academic in nature
 
 
"The issue of applicable law was never raised or joined by the parties in the lower court. That court did not make any finding or decision on the issue or question of applicable law as far as the records of appeal show. That must be why the appellant did not file any ground of appeal against or raise a decision of the lower court on the applicable law. Since the question was not raised nor was it pronounced upon by the lower court, I consider it purely academic and not relevant to the determination of the issues raised in this appeal. The consistent attitude of the courts over the years is that it is not their function to entertain and decide such issues. See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 26 and NICON v. Power and Industrial Engineering (1986) 1 NWLR (Pt. 14) 1 at 22." Per GARBA, J.C.A (P. 21, paras. C-G) - read in context
 
     
2
PRACTICE AND PROCEDURE - APPEARANCE BY COUNSEL: What is the implication when a counsel announces appearance or appears before or in a court
 
 
"I would like to quickly say here that when a counsel announces appearance or appears before, or in a court, he is not only presumed to be seized of the case, as submitted by the appellants' counsel, but also presumed to have the authority of the party for whom he appears or on behalf of whom he announced appearance. See Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39 and Gazu v. Nyam (1998) 2 NWLR (Pt.538) 477." Per GARBA, J.C.A (P. 34, paras. A-B) - read in context
 
     
3
JUDGMENT AND ORDER - DEREGISTRATION OF FOREIGN JUDGMENT: Whether a foreign judgment deregistered in Nigeria will have the effect that the judgment has been setting aside
 
 
"The appellant's prayer in his motion was for the de registration (so to say) of that judgment back to a judgment of an English court. In my view, the de-registration would not have the effect of setting aside the judgment of an English court because it would remain a valid judgment of an English court even after such de-registration by the Nigerian court. In fact, it was because the judgment was a valid judgment of an English court that it was registered in the 1st place by the lower court. So the de-registration would leave it as it was before the registration; i.e. a valid judgment of an English court. Be that as it may, even if it was still a judgment of an English court, my respectful opinion is that having registered same under the relevant Nigerian statutes, the lower court has the power and jurisdiction under section 6(1) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990, to set it aside." Per GARBA, J.C.A (Pp. 25-26, paras. E-B) - read in context
 
     
4
EVIDENCE - ESTOPPEL: The effect of estoppel
 
 
"Where estoppel arises, it constitutes an admission of facts. By its very conclusive nature, the party it affects is not allowed to adduce evidence against it. See Oyerogba v. Olaopa (1998) 13 NWLR (Pt. 583) 509 SC; Ito v. Ogodo 6 SC (Pt.1) 133 and Ezewani v. Onwordi (1986) 4 NWLR (Pt.33) 27. Let us try to apply the foregoing postulations to the facts of the instant matter." Per MUHAMMAD, J.C.A. (DISSENTING) (P. 76, paras. E-G) - read in context
 
     
5
LEGAL PRACTITIONER - ETHIC OF THE LEGAL PROFESSION: Whether it is ethical for a counsel to appear in court in a matter merely to ask for an adjournment; to enable a more senior colleague to conduct the matter
 
 
"Furthermore, it is unethical, undesirable and intolerable that a counsel should attend or appear in court in a matter or case merely to ask for an adjournment to enable a more senior colleague to conduct the matter. See the case of Madu v. Okeke (1998) 5 NWLR (Pt.548) 159. The situation was even worse in the lower court because, Mr. Agomuo who appeared for appellant only told the court that "my principal is out of the country and he just asked me to hold his brief'. Counsel did not even ask for an adjournment to enable the principal be in court, but had nothing to say. I do not think it can seriously be contended that the counsel gave any impression that he had no authority to conduct the defence or that the lower court was wrong in preceding in the way it did in the circumstances." Per GARBA, J.C.A (P. 34, paras. C-F) - read in context
 
     
6
EVIDENCE - JUDICIAL NOTICE: Facts that a judge can take judicial notice of
 
 
"A Judge is free to take Judicial notice of all such facts he is either called upon to or from his general knowledge of such facts or from enquiries made by him on such facts from sources to which it is proper for him to refer. In the instant case the Judge was free to take judicial notice of records of proceedings in his court given the combined effect of S 74 and S 109 of the Evidence Act see: Gbadamosi v. Alete (1998) 12 NWLR (Pt.578) 402 and URN Plc. v. SCPOK (Nigeria) Ltd. (1998) 12 NWLR (Pt.578) 439." Per MUHAMMAD, J.C.A. (DISSENTING) (P. 76, paras. C-E) - read in context
 
     
7
COURT - POWER OF COURT: Power of the Court of Appeal to adopt or formulate issues that will determine the real grievance in an appeal
 
 
"Issue No.3 raised by appellant has the same substance as the only issue formulated by the respondent and since this court is at liberty and has the power to adopt or even formulate issues that would determine the real grievance in an appeal. See Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt. 435) 146 and Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) 582. I would consider the issues 1 and 3 as formulated by the appellant in this appeal." Per GARBA, J.C.A (P. 20, paras. D-F) - read in context
 
     
8
COURT - POWER OF COURT: Whether the power of court to set aside the registration of a foreign judgment is statutory
 
 
"In any case, the authority, power or jurisdiction to set aside the registration of a foreign judgment as seen above is provided by statute and the courts have recognized that position in a number of decisions. See Hyppolite v. Egharevba (1998) 11 NWLR (Pt. 575) 598 at 614 and 617, Berliet (Nig.) v. Kachalla (1995) 9 NWLR (Pt.420) 478, Dale Power System v. Witt and Busch (2001) 8 NWLR (Pt.716) 699 at 708 and Halaoui v. Grosvenor Ltd. (2002) 17 NWLR (Pt.795) 28 at 42-3." Per GARBA, J.C.A (P. 24, paras. D-F) - read in context
 
     
9
EVIDENCE - PROOF OF FACT: How facts can be proved
 
 
"Facts are proved by oral testimony of the persons who perceived them, by the production of documents and inspections of things or places. Facts can also be proved by admissions, confessions, judicial notice, presumptions and estoppel." Per MUHAMMAD, J.C.A. (DISSENTING) (P. 76, paras. B-C) - read in context
 
     
10
JUDGMENT AND ORDER - REGISTRATION OF FOREIGN JUDGMENT: What is the effect when a foreign judgment is registered in a Nigerian Court
 
 
"It needs be pointed out that under the relevant laws; Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of Federation of Nigeria, 1990 and the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws of Federation of Nigeria, 1958, the effect of registering a foreign judgment in a Nigerian court is for all intents and purposes, to make the registered judgment a judgment of the Nigerian court. See section 4(2)(a) of the Foreign Judgments (Reciprocal Enforcement) Act, 1990 and ruling of lower court on p. 39 of the record. Consequently, the registration by the lower court of the judgment in question made it a judgment of that court and it was no longer "a judgment of an English court." Per GARBA, J.C.A (P. 25, paras. B-E) - read in context
 
     
11
JUDGMENT AND ORDER - REGISTRATION OF FOREIGN JUDGMENT: The procedure for registration of a foreign judgment
 
 
"Now the rules of court made pursuant to section 6 of the Reciprocal Enforcement of Judgments Act, Cap. 175 of LFN, 1958 provide in sections 1(1) and (2); 5; 6 and 12 as follows:- "1(1) Any application under section 3(1) of the Reciprocal Enforcement of Judgments Ordinance for leave to have a judgment obtained in a superior court in any part of Her Majesty's Dominions outside Nigeria, to which the Ordinance applies, registered in a High Court of Nigeria shall be made by petition ex parte or on notice to a Judge. (2) If the application is made ex parte, the Judge to whom it is made may direct notice to be served on the judgment debtor. 5. Any order giving leave to register shall be drawn up by or on behalf of the judgment creditor and when the order is made on notice the order shall be served on the judgment debtor, but where the order is made on an ex parte application no service of the order on the judgment debtor shall be made. 6. The order giving leave to register the judgment shall state the time within which the judgment debtor is to be entitled to apply to set aside the registration. Such time when the judgment debtor is or is ordinarily resident within the area of the town of Lagos for the time being shall be fourteen days and when the judgment debtor is or is ordinarily resident outside the said area shall depend on the distance from the town of the place where the judgment debtor resides and the postal facilities between the town of Lagos and that place. 12. The judgment debtor may at anytime within the time limited by the order giving leave to register after service on him of the notice of the registration of the judgment apply by petition to a Judge to set aside the registration or to suspend execution of the judgment and the Judge on such application if satisfied that the case comes within one of the cases in which under section 3(2) of the ordinance no judgment can be ordered to be registered or that it is not just or content that the judgment be enforced in Nigeria or for other sufficient reason may order that the registration be set aside or execution on the judgment suspended either unconditionally or on such terms as he thinks fit and either altogether or until such time as he shall direct; provided that the Judge may allow the application to be made at any time after the expiration of the time mentioned." (Italics supplied by me.) From the above provisions, it is clear that the procedure for registration of a foreign judgment to which the ordinance applies, is to be upon a petition made ex parte or on notice to a Judge. Where the said petition is made ex parte, the Judge may direct notice to be served on the judgment debtor - as in the present case. Now when the court is satisfied, it then registers the judgment and an order to that effect is drawn up and when the said order is made upon a petition on notice (as in this case) the order shall be served on the judgment debtor. On the other hand, when the order is made upon an ex parte petition, there is no provision that the same shall be served on the judgment debtor. The rules also require the order granting leave to register the judgment to state the time within which the judgment debtor is entitled to apply to set aside the registration. Finally the judgment debtor is empowered, at any time within the time limited by the said order granting leave to register the said judgment and after service on him of the notice of registration of the judgment to apply by petition to a Judge to set aside the registration etc." Per ONNOGHEN, J.C.A (Pp. 46-49, paras. E-G) - read in context
 
     
12
APPEAL - REPLY BRIEF: What is the effect where a party fails to reply, in an appeal, to material point canvassed in other party's brief
 
 
"I have observed that the respondent did not reply on this issue whether the lower court had the power to set aside the registration of the judgment in question. Throughout the brief of the respondent, I can find no answer to this issue raised by the appellant and so I take it that the respondent has conceded to the power of the lower court, in circumstances provided by the above provisions of the law, to set aside the registration of the judgment. See Okongwu v. NNPC (1989) 4 NWLR (Pt.115) 296 where Nnaemeka-Agu (JSC) said inter alia... "every material point canvassed in an appellant's brief which is not countered in the respondent's is deemed to have been conceded to the appellant." Per GARBA, J.C.A (Pp. 23-24, paras. G-C) - read in context
 
     
13
INTERPRETATION OF STATUTE - RULE OF INTERPETATION OF STATUTE: The purpose of interpretative effort of courts where legislative provisions are made up of words which are clear and unambiguous
 
 
"The interpretative effort of courts is about finding out the intention of the law makers from the legislation under reference. The safest and correct course of dealing with the question of statutory constructions is by limiting one's interpretative effort, where possible, to the very words used by the law giver. The language of the law maker rather than his beliefs and assumptions has been the most accepted tool in the discovery of the intention of the legislator. Where, therefore, the language of the statute is plain and admits of but a lone meaning, the task of interpretation hardly arises. In that instance, where the legislature has used clear and unequivocal language, such enactment no matter how harsh, absurd, unreasonable and nonsensical, must be enforced. Here the chain of judicial authorities is legion. See for example Ogbunyinya v. Okudo (1979) All NLR 105; Shell Petroleum Development Co. (Nig.) Ltd. v. Federal Board of Inland Revenue (1996) 8 NWLR (Pt. 466) 256; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 SC 158, (1983) 1 SCNLR 296; Jammal Steel Structures Ltd. v. ACB (1973) 11 SC 77; Board of Custom and Excise v. Barau (1982) 10 SC 48; Rabiu v. State (1980) 8/11 SC 130 and Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 203-204. In the instant case, the relevant legislative provisions, and these have been reproduced supra, are made up of words which are clear and unambiguous in their meanings. Their ordinary literal meaning must accordingly be ascribed to them." Per MUHAMMAD, J.C.A. (DISSENTING) (Pp. 73-74, paras. F-F) - read in context
 
     
14
JUDGMENT AND ORDER - SETTING ASIDE REGISTRATION OF FOREIGN JUDGMENT: The principles guarding setting aside of registered judgment
 
 
"There is no dispute as to the power of the High Court to register foreign judgments neither is there a dispute as to the fact that having so registered the foreign judgment the High Court has the discretion to set aside that registration upon the fulfillment of certain conditions laid down by law. The principles guarding setting aside of registered judgment laid down in section 6(1)(a) and (b) of the Foreign Judgment, (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990 are that upon an application duly made by any party against whom a registered judgment may be enforced, the registration of the judgment shall be set aside if the registering court is satisfied: (i) that the judgment is not a judgment to which this part of this Act applies or was registered in contravention of the foregoing provisions of this Act; or (ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or (iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or (iv) that the judgment was obtained by fraud; or (v) that the enforcement of the judgment would be contrary to public policy in Nigeria; or (vi) that the rights under the judgment are not vested in the person by whom the application for registration was made; (b) if the registering court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter." Per ONNOGHEN, J.C.A (Pp. 42-43, paras. B-C) - read in context
 
     
15
JUDGMENT AND ORDER - SETTING ASIDE REGISTRATION OF FOREIGN JUDGMENT: Whether failure to raise objection to the registration of foreign can bar the application brought to set it aside
 
 
"I agree that the two Acts, have provisions in section 3(2)(g) and (i) of the Reciprocal Enforcement of Judgments Act, Cap. 175 of 1958 and proviso to section 4 of the Foreign Judgments (Reciprocal Enforcement) Act, Laws of the Federation of Nigeria, 1990 in respect of situations when a foreign judgment shall not be registered. Ordinarily, a party against whom a foreign judgment was to be registered should be diligent to raise any objection it might have against the registration, but that no objection or opposition was made to the application for registration would not in my view, on the face of the above provisions bar such a party from applying to set aside the registration." Per GARBA, J.C.A (Pp. 35-36, paras. F-A) - read in context
 
     
16
EVIDENCE - UNCHALLENGED AVERMENTS IN AFFIDAVIT: The effect of unchallenged averments in an affidavit
 
 
"Let me say that I agree with both counsels on their respective submissions that unchallenged averments in an affidavit are deemed to be established and admitted by the party whose duty it is to controvert same. Our judicial landscape is replete with authorities on the position that it is now elementary. In addition to the case cited by counsel, see the famous cases of Ajomale v. Yaduat (No.2) (1991) 5 SCNJ 172 at 178; (1991) 5 NWLR (Pt.191) 266 and U.B.N. v. Odusote (1994) 3 SCNJ 1; (1994) 3 NWLR (Pt.331) 129 in the case of Olori Motors v. U.B.N. (1998) 6 NWLR (Pt.554) 493 this court, at page 506-7, held the view that the court must accept unchallenged averments of an affidavit without hesitation." Per GARBA, J.C.A (P. 33, paras. B-E) - read in context
 
     
     
 

GARBA, J.C.A. (Delivering the Leading Judgment): The High Court of Justice, England (Queens Bench Division Commercial Court) entered judgment in favour of the respondent as plaintiff, in suit No. 1977 Folio 2194 on 9th January, 1998 against the appellant and one other.

The respondent then went to the Federal High Court in a motion on notice dated 25th November, 1998 and sought the registration of the said judgment as that of the Federal High Court under the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation of Nigeria, 1990.

On the 15th March, 1999, the motion was heard and granted, but the following week, precisely on the 22nd March, 1999, the appellant pursuant to Order 33 rule 5 of Federal High Court - (Civil Procedure) Rules, 1976, the Reciprocal Enforcement of Judgment Act, Cap. 175 LFN 1958 as well as Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, of the Laws of the Federation 1990 and section 33(1) of the 1979 Constitution, in a motion, applied to the Federal High Court to set aside the registration of the judgment. On the 12th April, 1999, the Federal High Court heard the appellant's motion and on the ground that it could not set aside a judgment of English Court, dismissed the motion. Being very dissatisfied with the decision of that court, the appellant filed this appeal against it vide a notice of appeal on the 20th April, 1999. The notice of appeal, dated the 18th April, 1999 contained the following grounds of appeal.

"Ground 1:

Error in law

The learned trial Judge erred in law when he held that he cannot set aside his order for the registration of a foreign judgment which he had ordered on 15th March, 1999.

Particulars of errors

(i) The laws governing the registration of foreign judgments, the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 152) Laws of the Federation of Nigeria, 1990, and the Reciprocal Enforcement of Judgments Rules (Cap. 175) Laws of the Federation of Nigeria, 1958 allow a Judge to set aside the registration of a foreign judgment even after an order for the registration of same had been made. The powers to set aside are provided for under section 6(1)(a)(iv), (v) and (vi) of the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 152) Laws of the Federation of Nigeria, 1990 and Rule 12 (Cap. 175) Laws of the Federation of Nigeria, 1958.

(ii) That when it came to the notice of the court that the appellant was not served with processes or notified of the proceedings of the foreign court for which its judgment has been registered as a judgment of His Lordship, that it is neat and proper to listen to the cries of the appellant.

Ground 2.

Error in law

The learned trial Judge erred in law when he ruled that the judgment registration on 15th March, 1999 can no longer be set aside by him.

Particulars of errors

(i) The appellant had by a motion on notice drawn the attention of the court below to the fact that the appellant was not served with processes nor notified of proceedings against it leading to the judgment obtained by the respondent in the High Court of Justice, Queen's Bench Division Commercial Court in suit No. 1997 Folio No. 2198, which non-service rendered the judgment a nullity.

(ii) The lower court was entitled to treat the above error as a fundamental defect which invariably ousted the jurisdiction of the High Court of Justice, Queen's Bench Division Commercial Court, England. The court ought therefore to have set aside the registration.

Ground 3

Additional ground of appeal shall be filed upon the receipt of the record of appeal."

After compilation and settlement of the records of appeal and pursuant to the provisions of Order 6, rules 2, 3 and 4 of the Court of Appeal Rules, the parties exchanged briefs of argument in which issues were formulated for determination by this court. The appellant raised three (3) issues in its brief as follows:

"1. Whether from a consideration of the laws governing the registration of foreign judgment in Nigeria, the learned trial Judge was right to have held that he cannot set aside the registration of the judgment of English Court as a judgment of the Federal High Court, Lagos?.

This issue relates to ground 1 of the notice of appeal.

2. Whether upon the judgment debtor/appellant application dated 22nd March, 1999, the registration of the judgment of the High Court of Justice, Queen's Bench Division in suit No. 1997 Folio No. 2198 as a judgment of the Federal High Court, Lagos on 15th March, 1999 is still at that stage capable of being set aside by the Federal High Court?.

This issue relates to ground 2 of the notice of appeal.

3. Whether upon consideration of the judgment debtor/appellant motion on notice dated 22nd March, 1999.

The learned trial Judge was right to have refused the prayer for setting aside the order of court dated 15th March, 1999 registering the judgment of the English Court as a judgment of the Federal High Court, Lagos.

This issue relates to ground 2 of the notice of appeal."

On its part, the respondent formulated only one issue as calling for resolution in this appeal. It is thus:-

"1. Whether the learned trial Judge was right in dismissing the application of the appellant to set aside the order of the Honourable Court registering the judgment of the High Court of Justice, England as the judgment of the Federal High Court, Nigeria."

Looking at the grounds from which these issues were formulated, it would appear to me that issues 1 and 3 formulated by the appellant would adequately resolve the real complaint against the decision of the lower court by the appellant. Issue No.3 raised by appellant has the same substance as the only issue formulated by the respondent and since this court is at liberty and has the power to adopt or even formulate issues that would determine the real grievance in an appeal. See Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt. 435) 146 and Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) 582. I would consider the issues 1 and 3 as formulated by the appellant in this appeal.

In the appellant's brief, issues 1 and 2 were argued together, as if to support the adoption of issues 1 and 3 by the court. After reference to the motions of the parties before the lower court, the appellant posed the question as to what was the applicable law(s) for registration of judgment of English Court as in this case.  

Learned counsel for the appellant then copiously set out provisions of sections 4, 6 and 9 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 and sections 3 and 6 of Cap 175 as well as the rules of court made thereunder. He also cited the case of Board of Customs and Excise v. Barau (1982) 10 SC 48 and Macaulay v. R. Z. B. of Austria (1999) 4 NWLR (Pt.600) 599 at 609-10 and submitted that the applicable law was Cap. 175 of 1958 along side Cap.152 of 1990.

I would like to say that I do not understand why the appellant raised the question as to the applicable laws for registration of foreign judgments. The issue of applicable law was never raised or joined by the parties in the lower court. That court did not make any finding or decision on the issue or question of applicable law as far as the records of appeal show. That must be why the appellant did not file any ground of appeal against or raise a decision of the lower court on the applicable law. Since the question was not raised nor was it pronounced upon by the lower court, I consider it purely academic and not relevant to the determination of the issues raised in this appeal. The consistent attitude of the courts over the years is that it is not their function to entertain and decide such issues. See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 26 and NICON v. Power and Industrial Engineering (1986) 1 NWLR (Pt. 14) 1 at 22. The issue of applicable law was never in doubt before the lower court and indeed in this court. Now on the issue whether the lower court can, under the applicable law, set aside the registration of the foreign judgment. Counsel for appellant said the effect of provisions of Reciprocal Enforcement of Judgments Act, Cap. 175 of 1958 and Rules made there under, is to enable the court which registers a foreign judgment to set the registration aside if section 12 of the Act was satisfied. Section 12 of the Reciprocal Enforcement of Judgment Act, 1958, Cap. 175 provides thus:-

"12. The judgment debtor may at any time within the time limited by the order giving leave to register after service on him of the notice of the registration of the judgment apply by petition to a Judge to set aside the registration or to suspend execution on the judgment and the Judge on such application if satisfied that the case comes within one of the cases in which under section 3(2) of the Ordinance no judgment can be ordered to be registered or that it is not just or convenient that the judgment be enforced in Nigeria or for other sufficient reason may order that the registration be set aside or execution on the judgment suspended either unconditionally on such terms as he thinks fit and either altogether or until such time as he shall direct; provided that the Judge may allow the application to be made at any time after the expiration of the time mentioned."

Section 6(1) of the Foreign Judgment (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation Nigeria, 1990 puts the position more clearly as follows:-

"6(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment -

(a) shall be set aside if the registering court is satisfied

(i) that the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the foregoing provisions of this Act; or

(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

(iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or that the judgment was obtained by fraud; or

(iv) that the enforcement of the judgment would be contrary to public policy in Nigeria; or

(v) that the rights under the judgment are not vested in the person by whom the application for registration was made;

(b) may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter."

I have observed that the respondent did not reply on this issue whether the lower court had the power to set aside the registration of the judgment in question. Throughout the brief of the respondent, I can find no answer to this issue raised by the appellant and so I take it that the respondent has conceded to the power of the lower court, in circumstances provided by the above provisions of the law, to set aside the registration of the judgment. See Okongwu v. NNPC (1989) 4 NWLR (Pt.115) 296 where Nnaemeka-Agu (JSC) said inter alia... "every material point canvassed in an appellant's brief which is not countered in the respondent's is deemed to have been conceded to the appellant."



In any case, the authority, power or jurisdiction to set aside the registration of a foreign judgment as seen above is provided by statute and the courts have recognized that position in a number of decisions.

See Hyppolite v. Egharevba (1998) 11 NWLR (Pt. 575) 598 at 614 and 617, Berliet (Nig.) v. Kachalla (1995) 9 NWLR (Pt.420) 478, Dale Power System v. Witt and Busch (2001) 8 NWLR (Pt.716) 699 at 708 and Halaoui v. Grosvenor Ltd. (2002) 17 NWLR (Pt.795) 28 at 42-3.


In the premises of the above authorities, the decision of the lower court, on page 50 of the record that:

"The defendant has made no case as he is asking me to set aside a judgment of an English Court. That I cannot and will not do ... inter alia, cannot be right with due respect. In the 1st place the appellant did not by his motion dated 22nd March, 1999 ask the lower court to set aside judgment of an English court. All that the appellant applied for, as was shown on the face of the motion paper, was for an order from the lower court setting aside the registration of the judgment in question. It needs be pointed out that under the relevant laws; Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of Federation of Nigeria, 1990 and the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws of Federation of Nigeria, 1958, the effect of registering a foreign judgment in a Nigerian court is for all intents and purposes, to make the registered judgment a judgment of the Nigerian court. See section 4(2)(a) of the Foreign Judgments (Reciprocal Enforcement) Act, 1990 and ruling of lower court on p. 39 of the record. Consequently, the registration by the lower court of the judgment in question made it a judgment of that court and it was no longer "a judgment of an English court." In fact, that was the ruling of the lower court, on p. 39 of the record. The appellant's prayer in his motion was for the de registration (so to say) of that judgment back to a judgment of an English court. In my view, the de-registration would not have the effect of setting aside the judgment of an English court because it would remain a valid judgment of an English court even after such de-registration by the Nigerian court. In fact, it was because the judgment was a valid judgment of an English court that it was registered in the 1st place by the lower court. So the de-registration would leave it as it was before the registration; i.e. a valid judgment of an English court. Be that as it may, even if it was still a judgment of an English court, my respectful opinion is that having registered same under the relevant Nigerian statutes, the lower court has the power and jurisdiction under section 6(1) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990, to set it aside. For these reasons, I answer and resolve the issues No.1 and 2 in favour of the appellant.

The next issue is whether upon a consideration of the appellant's motion dated 22nd March, 1999 the lower court was right to have refused the prayer for setting aside the registration of the judgment in question.

In its brief, the appellant made reference to section 3(2)(g)-(i) of the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws of Federation of Nigeria, 1958 and section 6(1)(c) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of Laws of Federation of Nigeria, 1990 which set out situations in which the registration of a foreign judgment by the Nigerian court can be or shall be set aside. For ease of reference, section 6(1)(c) of Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of Federation of Nigeria, 1990 provides thus:-

"6(1). On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment -

(a) shall be set aside if the registering court is satisfied

(i) that the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the foregoing provisions of this Act; or

(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

(iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or

(iv) that the judgment was obtained by fraud; or

(v) that the enforcement of the judgment would be contrary to public policy in Nigeria; or

(vi) that the rights under the judgment are not vested in the person by whom the application for registration was made;

(b) may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter."

Sections 3(2) and 6(1) of the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws of Federation of Nigeria, 1958:

"No judgment shall be ordered to be registered under this Ordinance if:

(a) the original court acted without jurisdiction; or

(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; or

(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court, and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or

(d) the judgment was obtained by fraud; or

(e) the judgment debtor satisfies the registering court either that an appeal was pending, or that he is entitled and intends to appeal against the judgment; or

(f) the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court."

"6(1) The Chief Justice of a High Court may make rules of court for regulating the practice and procedure (including scales of fees and evidence) in respect of proceedings of any kind under this Ordinance.

(2) such rules shall, among other things, provide:

(a) for service on the judgment debtor a notice of registration of a judgment under this Ordinance; and for enabling the registering court on an application by the judgment debtor to set aside the registration of a judgment under this Ordinance on such terms as the court thinks fit; and for suspending the execution of a judgment registered under this Ordinance until the expiration of the period during which the judgment debtor may apply to have the registration set aside."

It was submitted that the appellant had deposed to facts in the affidavit in support of the motion dated 22nd March, 1999 for setting aside the judgment and that the respondent did not file a counter affidavit to challenge them. Among the facts are:

(1) That the judgment debtor at all times material to this suit has its place of business in Nigeria and had no office in the United Kingdom - paragraph 4.

(2) The judgment debtor/applicant was never served with any court process or notified of any court proceedings by the judgment creditor - paragraph 5.

(3) The applicant never had the opportunity to defend the case at the English court in respect of which a judgment was made in favour of the judgment creditor and registered by lower court - paragraph 15.

Learned counsel for appellant said it has been settled that facts deposed to in affidavit would be deemed to be true and admitted by the opposite party who failed to counter them. He cited the cases of Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773 and Rakol Clinic and Maternity Hospital v. S. F. I. Co. Ltd. (1999) 7 NWLR (Pt.612) 613 at 619 and submitted that since the averments were not controverted, the lower court should have treated them as admitted and true. According to learned counsel, the averments adequately satisfy the requirements for setting aside the registration of the judgment in issue as set out in the law. It was his further submission that non service of the processes of the English court on the appellant was a fundamental breach which goes to the jurisdiction of that court to entertain the matter and which rendered the proceedings a nullity. He relied on the cases of U.B.A. v. Ajileye (1999) 13 NWLR (Pt. 633) 116 at 125 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341.  Counsel also referred to section 33(1) of the 1979 Constitution and the case of Bamgboye v. University of  Ilorin (1999) 10 NWLR (Pt. 622) 290 at 335-6 and argued that the lower court on the unchallenged averment that appellant never had opportunity to defend the case, ought to have treated same as a fundamental defect in the proceedings of the English court and consequently set aside the registration of its judgment. He therefore urged this court to set aside the registration of the judgment in question by the lower court.

On his part, the learned counsel for respondent, after making reference to the requirements for registration of a foreign judgment in section 3(1) and (2) of Reciprocal Enforcement of Judgments Act, Act, Cap. 175, Laws of Federation of Nigeria, 1958 and setting on the affidavit in the motion dated 25th November, 1998 by respondent before the lower court for registration of the judgment in issue, submitted that the appellant did not file a counter-affidavit to controvert the facts deposed in support of the application for registration. Counsel said the appellant was served with the notice of the application for registration on 15thJanuary, 1999, two months before the 15th March, 1999 when it was heard, as weighty as the averments of the affidavit in support were. Learned counsel said the appellant was therefore in law, deemed to have admitted all the averments as true, but particularly paragraphs 7 and 9 which aver thus:

"7. That to the best of my information and belief, the said judgment is now enforceable in the United Kingdom and if the said judgment is registered in this Honourable Court it is not liable to be set aside under section 3(2) of the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws

of the Federation and Lagos, 1958 and/or under section 6 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation, 1990."

"9. That to the best of my knowledge and belief, the said judgment does not fall within any of the cases in which under section 3(2) of the Reciprocal Enforcement of Judgments Act, (Cap. 175) of 1958 a judgment cannot properly be ordered to be registered."

Counsel cited the case of Long-John v. Blakk (1998) 6 NWLR (Pt.555) 524 and 532 and Fawehinmi v. Abacha (1996) 5 NWLR B (Pt. 447) 198 at 20l.

In addition, respondent's counsel referred to the proceedings of the 15th March, 1999 when the motion for registration was taken on page 39 of the record of appeal and argued that appellant's counsel who appeared for the motion did not oppose it and so the lower court granted it and registered the judgment.

He then set out rule 12 of Reciprocal Enforcement of Judgments Act, Cap. 175, 1958 on conditions for setting aside a registered judgment and contended that the appellant has failed to meet any of them since it did not challenge the affidavit of the respondent in support of the motion for registration. The case of Falomo v. Banigbe (1998) 7 NWLR (Pt.559) 679 at 687 on the authority of counsel who announced appearance in court was cited by counsel and it was submitted that the appellant's counsel participated in the proceedings for registration and did not ask for an adjournment. Appellant can't therefore be heard now to deny what in law, he was deemed to have admitted, said counsel.

Learned counsel also submitted that under the contract appellant had with respondent, the appellant irrevocably agreed and submitted to the jurisdiction of the English court by agreeing to be served with processes of court through its agent in England. For this, we are urged to dismiss the appeal and uphold the registration and refusal of the lower court to set aside same.

In its reply brief, the appellant said the statement by counsel on the 15th March, 1999 did not amount to an admission of the facts deposed to in the respondent's affidavit for registration of the judgment to preclude the appellant from applying to set aside the registration. It was submitted for the appellant that Mr. Agomuo who appeared before the lower court on 15th March, 1999 for appellant did not have the authority to conduct the defence of the motion though he was presumed to be seized of the matter.

Let me say that I agree with both counsels on their respective submissions that unchallenged averments in an affidavit are deemed to be established and admitted by the party whose duty it is to controvert same. Our judicial landscape is replete with authorities on the position that it is now elementary. In addition to the case cited by counsel, see the famous cases of Ajomale v. Yaduat (No.2) (1991) 5 SCNJ 172 at 178; (1991) 5 NWLR (Pt.191) 266 and U.B.N. v. Odusote (1994) 3 SCNJ 1; (1994) 3 NWLR (Pt.331) 129 in the case of Olori Motors v. U.B.N. (1998) 6 NWLR (Pt.554) 493 this court, at page 506-7, held the view that the court must accept unchallenged averments of an affidavit without hesitation.

Learned counsel then made reference to the definition of an "admission" and cited a number of cases on effect of admission and circumstances in which it was made. He also submitted that the lower court failed to appreciate the position of the law that courts do not generally punish parties for blunders or mistakes of counsel. The case of Bowaje v. Adediwura (1976) 6 SC 143 at 147 was cited and we are once again urged to allow the appeal.

I would like to quickly say here that when a counsel announces appearance or appears before, or in a court, he is not only presumed to be seized of the case, as submitted by the appellants' counsel, but also presumed to have the authority of the party for whom he appears or on behalf of whom he announced appearance. See Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39 and Gazu v. Nyam (1998) 2 NWLR (Pt.538) 477.

Furthermore, it is unethical, undesirable and intolerable that a counsel should attend or appear in court in a matter or case merely to ask for an adjournment to enable a more senior colleague to conduct the matter. See the case of Madu v. Okeke (1998) 5 NWLR (Pt.548) 159. The situation was even worse in the lower court because, Mr. Agomuo who appeared for appellant only told the court that "my principal is out of the country and he just asked me to hold his brief'. Counsel did not even ask for an adjournment to enable the principal be in court, but had nothing to say. I do not think it can seriously be contended that the counsel gave any impression that he had no authority to conduct the defence or that the lower court was wrong in preceding in the way it did in the circumstances.

I now go back to the main issue No.3 as set out earlier. The respondent had submitted that since the appellant did not file a counter-affidavit to challenge the application for registration of the judgment he could not afterwards be heard to do so. Counsel therefore said the lower court was right in refusing the application to set aside the registration on the ground inter-alia - "the defendant could but did not raise the issue of validity of the judgment during the hearing of application for registration."

This submission cannot and is not tenable in view of the provisions of section 6(1), (2)(e) of the Reciprocal Enforcement of Judgments Act, Cap. 175 of 1958 and section 6(1)(c) and (d) of the Foreign Judgments (Reciprocal Enforcement) Act, Laws of the Federation of Nigeria, 1990, the combined effect of which was to allow or permit a party against whom a foreign judgment was registered by a Nigerian court, to apply after the registration, to have such registration set aside by the registering Nigerian court.

The important point to be noted here is that these provisions permit a party to apply to the Nigerian court that registered a foreign judgment to set aside such registration. These provisions do not say that where such a party did not oppose the registration, he/it cannot afterwards, apply to set same aside in appropriate situations provided for in the laws. I agree that the two Acts, have provisions in section 3(2)(g) and (i) of the Reciprocal Enforcement of Judgments Act, Cap. 175 of 1958 and proviso to section 4 of the Foreign Judgments (Reciprocal Enforcement) Act, Laws of the Federation of Nigeria, 1990 in respect of situations when a foreign judgment shall not be registered. Ordinarily, a party against whom a foreign judgment was to be registered should be diligent to raise any objection it might have against the registration, but that no objection or opposition was made to the application for registration would not in my view, on the face of the above provisions bar such a party from applying to set aside the registration. In the case before the lower court, the motion for registration was supported by an affidavit and on notice to the appellant when on 15th March, 1999 the motion was taken by the court, the appellant did not file a counter affidavit to challenge the depositions in the respondent's affidavit and so was deemed in law to have admitted them as true and correct. Though the lower court did not give any reason in its ruling for the grant of the motion as can be seen on p. 39 of the record of appeal, it must have been due to the absence of a counter-affidavit or any opposition on points of law by appellant's counsel. The issue of registration therefore ended with the order of lower court registering the judgment. What the appellant's motion dated 22nd March, 1999 did was to commence the post registration procedure in accordance with provisions of section 6( 1), (2)(c) of the Reciprocal Enforcement of Judgments Act, Cap. 175, 1958 and section 6(1)(c) and (d) of the Foreign Judgments (Reciprocal Enforcement) Act, 1990 as shown earlier. This I find, the appellant is entitled to do. The issue or effect of the admission of the averments in the affidavit of the motion by respondent for registration of the judgment ended with the grant of that motion and registration of the judgment by the lower court on 15th March, 1999.

The next point to be decided is whether on the averments supporting the provisions of the Acts (set out earlier) for setting aside the registration of the judgment were met or satisfied. I would consider the requirements of the relevant section one after the other along with the affidavit in support of the motion.

Under section 6(1)(a) of the Foreign Judgments (Reciprocal Enforcement) Act, 1990, the following are the requirements for setting aside the registration of a registered judgment:

(1). that the judgment is not a judgment to which this part of this Act applies or was registered in contravention of the foregoing provisions of the Act.

One of the conditions for registration of a foreign judgment as seen in the provisions of the Act (set out earlier) is the judgment debtor, being the defendant in its proceedings was not duly served with the process of the original court and did not appear in the proceedings. Appellant had in paragraph 5 of the affidavit in support of the motion dated 22nd March, 1999 averred as follows:

"5. That the judgment debtor/applicant was never served with any court process or notified of my court proceedings by the judgment creditor/respondent." See page 44 of the record of appeal.

Though the motion was on notice and came up for hearing on 12th April, 1999, when respondent was represented by George-Ikoli and E. O. Madufor, I can find no record of a counter-affidavit for the respondent to challenge the averments of the appellant in the motion. The averment in paragraph 5 and all the other averments in support of the motion by the appellant were not challenged by the respondent. Consequently, like the appellant in the motion for registration of the judgment taken on 15th March, 1999, the respondent in law was deemed to have admitted all the averments in support of the motion. This is beyond dispute and the lower court; as was seen earlier in the case Olori Motors v. U.B.N. (supra) was under a duty to accept them without "hesitation. Surprisingly however, without a consideration of the affidavit evidence before it on the record, the lower court ruled on page 50 of the record of appeal thus:

"The defendant has made no case as he is asking me to set aside a judgment of an English court. That I cannot and will not do."

I am constrained to say that the above conclusion by the lower court, cannot be right on the face of the unchallenged affidavit; evidence before it in conflict of which it is.

I have observed that the respondent's counsel had attempted to say at paragraph 7.9 of his brief that respondent had deposed to the fact that appellant was served with processes of the High Court of England by implication at paragraph 9 of the affidavit in support of the motion for registration. Without much ado, the said paragraph did not challenge, let alone controvert the positive and clear assertion of the appellant in paragraph 5 above, that no process was served on it. If the respondent had seriously intended to challenge the very weighty assertions of the appellant in support of the motion dated 22nd March, 1999, it was under a legal obligation to have done so under oath, in an affidavit, like the appellant did. For failure to diligently discharge that duty the respondent cannot by any manner of maradonic submissions or arguments escape or avoid the legal risks and consequences of such failure.

The appellant specifically averred in paragraph 15 of his affidavit that it never had opportunity to defend the case at the English court in respect of which a judgment was entered for the respondent and registered as that of the lower court on 12th March, 1999.

In paragraph 4 of the same affidavit, the appellant deposed that the judgment debtor (appellant) at all times material to this suit has its place of business in Nigeria and had no office in the United Kingdom. All these averments were not challenged by the respondent and they disclose facts which establish the situations set out in the 1958 and 1990 Act when the registration of foreign judgment by a Nigerian court is liable to be set aside.

These unchallenged averments in my view satisfy the requirements for setting aside the registration of the foreign judgment in question by the lower court. I accordingly find that upon a consideration of the unchallenged averments of the appellant, the lower court was wrong to have refused the prayer setting aside the said judgment. The issue is resolved in favour of the appellant.

In the final result, I find merits in this appeal and allow same. The decision of the lower court refusing to set aside the registration of the judgment of High Court of England (Queen's Bench Division) in suit No. Folio No. 2198 of 1997, is hereby set aside. The registration of the said judgment by the lower court is accordingly set aside. I assess the costs of this appeal at N5,000.00 in favour of the appellant.

Appeal succeeds. Allowed.





ONNOGHEN, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Garba, JCA, just delivered. I agree with his reasoning and conclusion that the appeal has merit and should be allowed.

The facts of the case have been fully stated in the lead judgment of my learned brother I therefore do not intend to repeat them here except as may be needed to emphasise the point(s) being made.

To begin with, learned counsel for the appellant filed only two grounds of appeal but formulated three issues for determination. That is very much unacceptable since it is trite law that whereas an issue can be formulated out of one or more grounds of appeal, not more than an issue can be formulated out of a ground of appeal. That is the rule against proliferation of issues. That apart, I am of the considered view that there is not much difference between appellant's issue No.1 and No.2. In fact; they are the same. The issues are as follows:

"1. Whether from a consideration of the laws governing the registration of Foreign judgment in Nigeria, the learned trial Judge was right to have held that he cannot set aside the registration of the judgment of an English court as a judgment of the Federal High Court, Lagos?.

This issue relates to ground 1 of the notice of appeal.

2. Whether upon the judgment debtor/appellant application dated 22nd March, 1999, the registration of the judgment of the High Court of Justice, Queen's Bench Division in suit No. 1997 Folio No. 2198 as a judgment of the Federal High Court, Lagos on 15th March, 1999 is still at that stage capable of being set aside by the Federal High Court?."

I am therefore of the view that the single issue formulated by learned counsel for the respondent in the respondent's brief adequately raised the question for determination in this appeal as supported by the two grounds of appeal. The issue is stated thus:

"Whether the learned trial Judge was right in dismissing the application of the appellant to set aside the order of the Honourable Court registering the judgment of the High Court of Justice, England as the judgment of the Federal High Court, Nigeria?."

I have to note that learned counsel for the respondent did not comment on the fact that counsel for the appellant formulated three issues out of two grounds of appeal.

The main issue that calls for determination is whether the trial Judge wrongly exercised his discretion in refusing to set aside the registration of the judgment entered in England.

There is no dispute as to the power of the High Court to register foreign judgments neither is there a dispute as to the fact that having so registered the foreign judgment the High Court has the discretion to set aside that registration upon the fulfillment of certain conditions laid down by law. The principles guarding setting aside of registered judgment laid down in section 6(1)(a) and (b) of the Foreign Judgment, (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990 are that upon an application duly made by any party against whom a registered judgment may be enforced, the registration of the judgment shall be set aside if the registering court is satisfied:

(i) that the judgment is not a judgment to which this part of this Act applies or was registered in contravention of the foregoing provisions of this Act; or

(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

(iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or

(iv) that the judgment was obtained by fraud; or

(v) that the enforcement of the judgment would be contrary to public policy in Nigeria; or

(vi) that the rights under the judgment are not vested in the person by whom the application for registration was made;

(b) if the registering court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.


The Reciprocal Enforcement of Judgments Act, Cap. 175, Laws of the Federation of Nigeria, 1958, provides in section 3(1) as follows:-

"3(1) Where a judgment has been obtained in the High Court in England or Ireland, or in the court of Session in Scotland, the judgment creditor may apply to a High Court at any time within twelve months after date of judgment, or such longer period as may, if in all the circumstances of the case it thinks it is just and convenient that the judgment should be enforced in Nigeria, and subject to the provisions of this ordinance, order the judgment to be registered accordingly."

Under the said Cap. 175, LFN, 1958 the conditions which may lead to the High Court refusing to register a relevant foreign judgment are stated as follows:-

(a) the original court acted without jurisdiction; or

(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; or

(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original
court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or

(d) the judgment was obtained by fraud; or

(e) the judgment debtor satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal against the judgment; or

(f) the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court.

"It is very clear that the above provisions are almost the same as section 6(1)(a) and (b) of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, LFN, 1990 earlier stated in this judgment.

There is no dispute as to the fact that the respondent originally applied for registration of the judgment ex-parte but the lower court directed that the appellant be put on notice which was done; that during the hearing of the application on notice both parties were represented by counsel and that counsel for the appellant did not oppose the said application; that the judgment was therefore ordered to be registered which was subsequently carried out; that the appellant subsequently brought an application before the lower court for an order setting aside the order of registration; that the lower court in dismissing the application held thus:-

"The defendant has made no case as he is asking me to set aside a judgment of an English court. That I cannot, and will not do. The defendant could but did not raise the issue of validity of the judgment during hearing of application for registration. The defendant is at liberty to appeal against the order of this court. The application is dismissed."

Learned counsel for the appellant has submitted that "whether the application for registration is heard ex-parte or on notice, then, if upon the hearing, an order to register the foreign judgment is made, the order for registration so made is not a final order, because the enactments under which the order is made provide for certain terms and conditions to be imposed by the court (when making the order for registration)."

I understand the learned counsel by the above submission as saying that whether the registration of the foreign judgment is made upon an ex parte application of the judgment creditor or on notice, the judgment debtor retains the right to apply to the same court to set aside the registration. I have gone through the submission of learned counsel for the respondent in the respondent's brief and have found no where in which he replied to the said submission. The submission of the learned counsel for the appellant is to my mind, the most crucial issue to the determination of the appeal in view of the ruling of the court earlier quoted in this judgment. If the submission of learned counsel for the appellant is correct then the lower court cannot be right in refusing to consider the application of the appellant on the merit before proceeding to dismiss same as it did; apart from the fact that the said court erred in holding that the application before it is for setting aside the judgment of an English court and that the appellant did not contend the validity of that judgment during the hearing of the application for registration.

On the other hand, if the appellant, having not opposed the application on notice for registration is estopped from applying subsequently to have the said registration set aside, then the refusal of the lower court to entertain the matter on merit may be right granted that other findings made in the said ruling can be supported by the facts and law.

Now the rules of court made pursuant to section 6 of the Reciprocal Enforcement of Judgments Act, Cap. 175 of LFN, 1958 provide in sections 1(1) and (2); 5; 6 and 12 as follows:-

"1(1) Any application under section 3(1) of the Reciprocal Enforcement of Judgments Ordinance for leave to have a judgment obtained in a superior court in any part of Her Majesty's Dominions outside Nigeria, to which the Ordinance applies, registered in a High Court of Nigeria shall be made by petition ex parte or on notice to a Judge.

(2) If the application is made ex parte, the Judge to whom it is made may direct notice to be served on the judgment debtor.

5. Any order giving leave to register shall be drawn up by or on behalf of the judgment creditor and when the order is made on notice the order shall be served on the judgment debtor, but where the order is made on an ex parte application no service of the order on the judgment debtor shall be made.

6. The order giving leave to register the judgment shall state the time within which the judgment debtor is to be entitled to apply to set aside the registration. Such time when the judgment debtor is or is ordinarily resident within the area of the town of Lagos for the time being shall be fourteen days and when the judgment debtor is or is ordinarily resident outside the said area shall depend on the distance from the town of the place where the judgment debtor resides and the postal facilities between the town of Lagos and that place.

12. The judgment debtor may at anytime within the time limited by the order giving leave to register after service on him of the notice of the registration of the judgment apply by petition to a Judge to set aside the registration or to suspend execution of the judgment and the Judge on such application if satisfied that the case comes within one of the cases in which under section 3(2) of the ordinance no judgment can be ordered to be registered or that it is not just or content that the judgment be enforced in Nigeria or for other sufficient reason may order that the registration be set aside or execution on the judgment suspended either unconditionally or on such terms as he thinks fit and either altogether or until such time as he shall direct; provided that the Judge may allow the application to be made at any time after the expiration of the time mentioned."

(Italics supplied by me.)

From the above provisions, it is clear that the procedure for registration of a foreign judgment to which the ordinance applies, is to be upon a petition made ex parte or on notice to a Judge. Where the said petition is made ex parte, the Judge may direct notice to be served on the judgment debtor - as in the present case.

Now when the court is satisfied, it then registers the judgment and an order to that effect is drawn up and when the said order is made upon a petition on notice (as in this case) the order shall be served on the judgment debtor. On the other hand, when the order is made upon an ex parte petition, there is no provision that the same shall be served on the judgment debtor. The rules also require the order granting leave to register the judgment to state the time within which the judgment debtor is entitled to apply to set aside the registration. Finally the judgment debtor is empowered, at any time within the time limited by the said order granting leave to register the said judgment and after service on him of the notice of registration of the judgment to apply by petition to a Judge to set aside the registration etc.




It is my considered view that the above provisions clearly state in effect that in a situation such as disclosed in the facts of this case, the appellant has the right to apply to have the registration of the judgment set aside - that is irrespectful of the fact that he had notice of the petition for registration of same and did participate in the proceedings leading to that registration and that he did not oppose that application at the time.

That being the case it is my considered view that the lower court was under legal obligation to hear the appellant and determine its application according to law. The application itself was not to set aside the judgment of the foreign court, as erroneously held by the lower court, but to set aside the order granting leave to the respondent to register the said judgment.

It is the duty of the lower court to exercise its discretion in the matter one way or the order.

In conclusion I too allow the appeal and abide by the consequential orders made in the lead judgment of my learned brother Garba, JCA, including the order as to costs.

Appeal allowed.





M. D. MUHAMMAD, J.C.A. (DISSENTING): The respondent in this appeal, Omega Air Limited, entered into an Aircraft lease purchase agreement with Real Aviation Limited. The agreement is dated 6th December, 1996. Real Aviation Limited is a company registered in Ghana. The appellant before us guaranteed the agreement between the two companies. The agreement pertained a Boeing 707-323C MSN 19352 Aircraft with registration number mark 99-JNR.

Following a breach of the agreement between the respondent and Real Aviation Ltd., the former commenced action against the latter and the appellant on 15th October, 1998 at the Queens Bench

Division of the High Court of England in suit No. 1997 Folio No. 2194. In its judgment of 9th November, 1998, the English court, having found the two defendants liable, decided in favour of the respondent. By the not arised copy of the judgment in favour of the respondent, Ex. A, the defendants in the suit were jointly and severally ordered to pay the respondent:-

"1. The sum of US$1, 513, 504.73.

2. The amount of the plaintiffs' post termination costs to be assessed.

3. Interest upon rentals due and payable at the default rate being the sum of US$13,692.01 at 8% per annum and continuing at the rate of US$97 .98 per day.

4. Interest on the plaintiff's post termination costs at the default rate aforementioned.

5. An account of payments due to the maintenance reserve account, together with all necessary enquiries and directions.

6. It is hereby adjudged that the defendants should pay to the plaintiffs all sums found to be upon the taking of the said account mentioned in 4 above, together with interest thereon at the default rate.

7. An order for the payment of costs on the indemnity basis pursuant to Clause 27.02 of the agreement made between the plaintiffs and defendants dated the 6th day of December, 1996.

8. That the defendants pay damages in respect of the failure to re-deliver, on time, or at all of the aircraft being a Boeing 707 324C Aircraft, manufacturing serial number 19353, to be assessed, together with interest thereupon at the default rate."

The respondent applied to the Federal High Court, Coram Belgore, C. J., praying that Ex. A, the judgment awarded in its favour by the English court, be registered. Respondent's application on notice in that regard, dated 30 November, 1998, was pursuant to Foreign Judgments (Reciprocal Enforcement) Acts, Cap. 152 of 1990 and Cap. 175 of 1958 Laws of the Federation. The application was supported by a ten paragraph affidavit paragraphs 3, 4, 5, 6, 7, 8 and 9 of which are, for their relevance, hereunder reproduced:-

"3. That the judgment/creditor/applicant filed a motion ex parte dated 15th October, 1998 with an 18-paragraph affidavit in support to which were attached 3 exhibits, to wit, exhibits A, B and C which I sworn to on 15th October, 1998.

4. That attached to the said motion ex parte was also an affidavit of urgency which I also swore to on 15th October, 1998.

5. That when the said motion ex parte came up for argument on 4th November, 1998, the Honourable Court directed that the judgment debtor/respondent be put on notice; hence this present motion on notice.

6. That the said motion ex parte dated 15th October, 1998 with the affidavit in support and the affidavit of urgency all sworn to on 15th October, 1998 are attached hereto and collectively marked Exhibit EM-1.

7 That the said processes above already form part of this Honourable Court's record.

8. That in support of this present motion on notice, the judgment creditor/respondent shall be relying on the said affidavit in support dated 15th October, 1998 incorporated in exhibit EM-1 hereto which affidavit I adopt herein as being true and correct and as if same is restated herein expressly.

9. That the judgment creditor/respondent shall rely on all process filed in this suit."

Exhibit EM-1 referred to in paragraphs 6 and 8 reproduced supra provided the facts on the basis of which respondent canvassed for the registration of Ex. A. Paragraphs 5, 6, 7, 8, 9, 10, 11, 14 and 17 of the supporting affidavit which along with the process constitute exhibit EM1 are hereunder reproduced:-

"5. That on 9/1/98 the judgment creditor/applicant (as plaintiff) obtained judgment in the High Court of Justice England (Queen's Bench Division, Commercial Court), in suit No. 1997 Folio No. 2194: Between Omega Air Limited v. (1) Real Aviation Limited & (2) Shona-Jason (Nigeria) Limited Whereby it was adjudged that the judgment creditor/applicant do recover from the judgment debtor/respondent (as 2nd defendant in that suit):

i. the sum of US$1,513,504.73;

ii. the amount of the plaintiff's post termination costs to be assessed;

iii. interest upon rentals due and payable at the default rate being the sum of US$13,692.01 at

8% per annum and continuing at the rate of US$97,98 per day;

iv. interest on the plaintiff's post termination costs at the default rate aforementioned;

v. an amount of payments due to the maintenance reserve account, together with all necessary enquiries and directions;

vi. all sums found to be due upon the taking of the said account mentioned in 4 above, together with interest thereon at the default rate;

vii. an order for the payment of costs on the indemnity basis pursuant to Clause 27.02 of the agreement made between the plaintiffs and defendants dated the 6th day of December, 1996;

viii. the defendants pay damages in respect of the failure to re-deliver, on time, or at all of the aircraft, being a Boeing 707 324C Aircraft, manufacturing serial number 1933, to be assessed, together with interest thereupon at the default rate.

Now shown to me and marked exhibit "A" is a certified true copy of the said judgment not arised by I an Roderick Campbell of Saville & Co., of the London Notary Public.

6. That to the best of my knowledge and belief the judgment creditor/applicant is entitled to enforce the said judgment against the judgment debtor/respondent.

6(a) That the said judgment is still wholly unsatisfied and there is now due and owing from the judgment debtor/respondent to the judgment creditor/applicant the sums of money and the interests thereon as stated in paragraph 5 hereinabove particularly:

i. the sum of US$1,513,504.73;

ii. interest upon rentals due and payable at the default rate being the sum of US$13,692.01 at  8% per annum and continuing at the rate of US$97,98 per day; (US$13,692.01 at 8% p.a = US$1,095.36).

6(b) That the local rate of exchange prevailing at the Autonomous Foreign Exchange Market (AFEM) at the date of the said judgment was US$85 to N128,647,902.05 (US$1,513,504.73) and N93,105.60 (US$1,095.36); totaling N128,741.007.65.

7. That to the best of my information and belief the said judgment is now enforceable in the United Kingdom and if the said judgment is registered in this Honourable Court it is not liable to be set aside under section 3(2) of the Reciprocal Enforcement Act (Cap. 175) Laws of the Federation and Lagos, 1958, and/or under Section 6 of the Foreign Judgments (Reciprocals Enforcements) Act, Cap. 152, Laws of the Federation, 1990.

8. That the judgment creditor/applicant is desirous of having the said judgment registered in this Honourable Court pursuant to the enabling laws as stated on the motion paper.

9. That to the best of my knowledge and belief, the said judgment does not fall within any of the cases in which under section 3(2) of the Reciprocal Enforcement of Judgments Act (Cap. 175) of 1958 a judgment cannot properly be ordered to be registered.

10. That the judgment arose from suit No. 1997 Folio No. 2194; Between Omega Air Limited v. (1) Real Aviation Limited & (2) Shona-Jason (Nigeria) Limited in the High Court of Justice of England, Queen's Bench Division.

11. That I am informed by Jonathan Stuart Sharp, a solicitor in the London firm of Lawrence Jones, solicitors retained by the judgment creditor/applicant in that suit, whom I verily believe as to the following:

11(a). The proceedings in that suit concern an aircraft lease purchase agreement dated 6th December, 1996, ("the agreement") and a deed of guarantee of the same date.

11(b). By the said agreement made in writing, the judgment creditor/applicant would lease its aircraft Boeing 707-324, MSN 19353, registration mark 9G-JNR ("the aircraft") to Real Aviation Limited (a company incorporated under the Laws of Ghana) (the 1st defendant in that suit) for a period of sixteen (16) months, in consideration of, inter alia, payment of rent US$86,705 per month, plus a balloon payment of US$300,000, with an option to purchase the aircraft for the sum of US$25,000.

11 (c) By a guarantee made in writing and dated 6th December, 1996, the judgment debtor/respondent herein (2nd defendant in that suit), in consideration of the judgment creditor/applicant entering into the agreement, irrevocably and unconditionally guaranteed the full complete and prompt performance and discharge by the said Real Aviation Limited (first defendant in that suit) of all its duties and liabilities thereunder.

11(d) On or about 22nd March, 1996, the said Real Aviation Limited (First defendant in that suit) paid the judgment creditor/applicant the security deposit of US$250,000, and took delivery of the aircraft. 11(e) Upon a breach of the agreement, the judgment creditor/applicant sued the said Real Aviation Limited (as first defendant in that suit) and the judgment debtor/respondent herein (as in the second defendant in the suit) at High Court of Justice, Queen's Bench Division, England constituted as in paragraph 10 above.

Attached hereto and marked exhibit "B" is the certified true copy of the writ and the points of claim in that suit not arised by Ian Roderick Campbell of Saville & Co., of the city of London Notary Public.

11(f) That on 9/1/98 the said High Court of England gave judgment against the judgment debtor/respondent herein (as 2nd defendant in that suit) as stated in paragraph 5 above (exhibit "A" supra); and on 6/2/98 the said court also delivered judgment against the said Real Aviation Limited (first defendant in that suit) which, inter alia, ordered the said Real Aviation Limited to deliver to the judgment creditor/applicant the said aircraft).

Attached hereto and marked exhibit "c" is a certified true copy of the judgment of the said court

in that suit against the said Real Aviation Limited not arised by Ian Roderick Campbell of Saville & Co., of city of London Notary Public.

14. That it will meet with the ends of justice to preserve the aircraft at its place of present location pending the determination of any application that may be filed by the judgment debtor/respondent upon the grant of this application or pending the execution of the said judgment so as not to defeat the essence of the said judgments.

17. That it is in the interest of justice to grant this application in its entirety and the judgment debtor/respondent will not be prejudiced thereby."

With the foregoing averments not countered by the appellants, they remained uncontroverted. In relying on them at the end of arguments, the lower court obliged the respondent the order it sought.

Reproduction of the proceedings of the court leading to the registration of ex. A is significant and is hereunder undertaken for more reasons than one thus:-

"Agomuo:- My principal is out of the country and he just asked me to hold his brief.

Madufor:- I am to move my motion dated 25th November, 1998. The motion seeks for three principal reliefs namely for an order granting leave for the applicant to register judgment of High Court of England dated 9th January, 1998 in Folio No. 2194 as attached in schedule as a judgment of Federal High Court of Nigeria. Secondly an order directing the judgment debtor etc.

Court:- If the judgment is registered since it is for a liquidated sum you need to bring an application under our law and rules to execute the judgment on immovable property of the judgment debtor.

Madufor:- I am grateful for the enlightenment. I withdraw my 2nd and 3rd prayers.

Agomuo:- I have nothing to say.

Court:- The application is granted and the judgment of High Court of Justice England (Queen's Bench Division Commercial Court) dated 9th January, 1998 in Folio 2194 is registered as judgment of this court to be enforced as such a judgment. The second and third prayers that have been withdrawn are struck out.

(Sgd)

M. B. Belgore

Chief Judge

15/3/99"

It draws clearly from the court's proceedings that Mr. Agomuo had full instruction to represent the appellant having been asked to hold the brief of his principal. The latter was not in the country.

Appellant's counsel neither asked for adjournment on the basis of any disability nor in participating in the day's proceeding contested respondent's application for the registration of the judgment, Ex. A, against the appellant.

By a notice of motion dated 22nd but filed on the 29th March, 1999, the appellant asked of the lower court the two reliefs relevant to this appeal thus:-

(1) An order setting aside the registration of the judgment obtained by the judgment creditor/respondent against the judgment debtor/applicant in the High Court of Justice, Queen's Bench Division Commercial Court, in suit No. 1997 Folio No. 2194 and registered as judgment of this Honourable Court on 15th March, 1999, and

(2) An order suspending the execution of the said judgment. Paragraphs 4, 5, 6, 7, 13, 14, 15 and 16 of the seventeen paragraphs affidavit in support of the appellant's motion on notice would facilitate a better understanding of the issues raised in this appeal. They are hereunder supplied:

"4. That the judgment debtor/applicant was at all times material to this suit, has its principal place of business in Nigeria and has no office in the United Kingdom.

5. That the judgment debtor/applicant was never served with any court process or notified of any court proceedings by the judgment creditor/respondent.

6. That the judgment debtor/applicant only got to know about the purported suit against it in the United Kingdom on the 15th January, 1999 when a motion or notice dated 25th November, 1998, and a motion ex parte dated 15th October, 1998 from this Honourable Court with a judgment from the High Court of Justice, Queen's Bench Division Commercial Court in 1997 Folio No. 2194 attached to it as an exhibit was dropped at our premises after the close of work on that date.

7 That the lease purchase agreement entered into between the judgment creditor/respondent and the judgment debtor/applicant on 6th December, 1996 was for $1,712,280.00 for 16 months. Out of the aforestated sum, the judgment debtor/applicant has paid the sum of $1,171,696 leaving a balance of $540,584.

13. That if the judgment is executed, the applicant would have been denied of its right to be heard as enshrined under the Constitution of the Federal Republic of Nigeria and universally acknowledged.

15. That the applicant never had the opportunity to defend the case for which a judgment was entered for the respondent and registered as judgment of this Honourable Court on 15th March, 1999.

16. That it would be in the interest of justice if this application is granted and the judgment set aside for being contrary to public policy."

In a terse but profoundly loaded ruling, the court dismissed appellant's application. The ruling reads:-

"Court:-The defendant has made no case as he is asking me to set aside (sic) a judgment of English Court. That I cannot and I will not do. The defendant could but did not raise the issue of validity of the judgment during hearing of application for registration. The defendant is at liberty to appeal against the order of this court. The application is dismissed."

Being dissatisfied with the ruling, appellant has appealed on a notice containing two grounds. The grounds are hereunder fully reproduced too:-

"Grounds of Appeal:

Ground 1

Error in law

The learned trial Judge erred in law when he held that he can not set aside his order for the registration of a foreign judgment which he had ordered on 15th March, 1999.

Particular of errors

1. The laws governing the registration of foreign judgments, the Foreign Judgment (Reciprocal Enforcement) Act (Cap. 152) Laws of the Federation of Nigeria, 1990, and the Reciprocal Enforcement of Judgment Rules (Cap. 175) Laws of the Federation of Nigeria, 1958 allows a Judge to set aside the registration of a foreign judgment even after an order for the registration of same had been made. The powers to set aside are provided for under section 6(v), (iv) and (v) of the Foreign Judgment (Reciprocal Enforcement) Act (Cap. 152) Laws of Federation of Nigeria, 1990 and rule 12 (Cap.175) Laws of the Federation of Nigeria, 1958.

ii. That when it came to the notice of the court that the appellant was not served with processes or notified of the foreign court for which its judgment has been registered as a judgment of His Lordship, that it is neat and proper to listen to the cries of the appellant.

Ground 2

Error in law

The learned trial Judge erred in law when he ruled that the judgment registration on 15th March, 1999 can no longer be set aside by him.

Particulars of errors

I. The appellant had by a motion on notice drawn the attention of the court below to the fact that the appellant was not served with processes nor notified of proceedings against it leading to the judgment obtained by the respondent in the High Court of Justice, Queen's Bench Division Commercial Court in suit No. 1997 Folio No. 2198, which non-service rendered the judgment a nullity.

II. The lower court was entitled to treat the above error as a fundamental defect which invariably ousted the jurisdiction of the High Court of Justice, Queen's Bench Division Commercial Court, England. The court ought therefore to have set aside the registration."

Parties have filed and exchanged briefs of argument. The appellant on being served the respondent's brief also filed a reply brief. Parties have adopted and relied on these briefs at the hearing of the appeal. They proffered no oral arguments.

Appellant has formulated three issues considered to have arisen from its two grounds of appeal for the determination of the appeal.

The issues read:-

"1. Whether from a consideration of the laws governing the registration of foreign judgment in Nigeria, the learned trial Judge was right to have held that he cannot set aside the registration of the judgment of an English court as a judgment of the Federal High Court, Lagos?.

This issue relates to ground 1 of the notice of appeal.

2. Whether upon the judgment debtor's/appellant's application dated 22nd March, 1999, the registration of the judgment of the High Court of Justice, Queen's Bench Division in suit No. 1997 Folio No. 2198 as a judgment of the Federal High Court, Lagos on 15th March, 1999 is still at that stage capable of being set aside by the Federal High Court?.

This issue relates to ground 2 of the notice of appeal.

3. Whether upon consideration of the judgment debtor's/appellant's motion on notice dated 22nd March, 1999 the learned trial Judge was right to have refused the prayer for setting aside the order of court dated 15th March, 1999 registering the judgment of the English court as a Judgment of the Federal High Court, Lagos?.

This issue relates to ground 2 of the notice of appeal".

It must be pointed out at once that it is not open for a party to an appeal to formulate more issues than the grounds of appeal contained in the notice of appeal. While it is lawful for the appellant to formulate a single issue from more than one ground of appeal, plurality of issues do not draw and survive from a single ground of appeal. In the instant case we shall discountenance appellant's 2nd issue. The ground seems to be subsumed in appellant's third issue anyway.

Respondent's lone, pragmatic and comprehensive issue reads:

"Whether the learned trial Judge was right in dismissing the application of the appellant to set aside the order of the Honourable Court registering the judgment of the High Court of Justice, England as the judgment of Federal High Court, Nigeria?."

In arguing the appeal, learned appellant counsel referred to S. 4 and S. 6 of the Foreign Judgment (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation, 1990 which he submitted, provided for the registration of judgments such as the one obtained against the appellant. The section also provided the basis for the rejection of prayers for the registration of such judgments. Counsel also referred to S. 6 of the same Act for the de-registration of judgment that had been registered pursuant to the provision of S. 4 of the same Act. S. 6 provided for the conditions on the basis of which fulfillment a registered judgment may, on application by a party against whom the judgment would be enforced, be ordered set aside.

Reference was also made by appellant's counsel to S. 3 of the Reciprocal Enforcement of Judgment Act, Cap. 175, Laws of the Federation, 1958. The Act by S. 3 also provided for the registration of foreign judgment and such judgment which do not qualify for registration by virtue of the very enactment. Learned counsel again made reference to the rules of court governing applications for the de-registration of judgment registered pursuant to Cap. 175 of 1958 which rules also flow by virtue of the same Cap. 175 of 1958. Counsel submitted that the two legislations he referred to were applicable to the instant case. In particular, (Cap. 175) of 1958, the more special of the two legislations, Cap. 152 of 1990 being a general one, entitled the appellant to apply for the de-registration of the very judgment that had earlier been registered. Learned counsel submitted that it is not the case that once a judgment had been registered it cannot be de-registered. Appellant, it was argued, had the right to apply for the de-registration of the registered judgment and have it deregistered on satisfying the court of any of the conditions outlined under the two legislations which provided for such de-registration.

In particular, counsel made allusions to S. 12 of Cap. 175 of the Laws of the Federation in this regard. The intention of the law maker in the two legislations and the rules of court emanating from Cap. 175 of 1958 is that the order for registration is not final such that once made enforcement of the judgment must follow. The trial court, it is submitted, was wrong in holding that it lacked the power to set-aside a foreign judgment once registered. The applicable legislations are mandatory and the words making them up unambiguous. The court must give effect to these clear words. The decisions in Amokeodo v. IGP (1999) 6 NWLR (Pt. 607) 467 SC and Chigbu v. Tonimas Nigeria Limited (1999) 3 NWLR (Pt. 593) 115 have been cited and relied upon. Further arguing the appeal, learned appellant counsel submitted that at the hearing of the application for the registration of the judgment, lower court only had the opportunity of considering the authenticity of the certificate of the judgment. The application for the de-registration of the judgment on the other hand, afforded the court the opportunity to scrutinize the validity of the same judgment.

A The holding of the lower court that it could not set-aside the judgment of an English court, counsel argued is not only a misconception but a violation of appellant's constitutional right to fair hearing.

Under appellant's 3rd, for our purpose, 2nd issue for determination, learned counsel reiterates that by virtue of the depositions in the affidavit in support of appellant's application for the de-registration of the judgment of the foreign judgment, and the depositions had not been opposed, enough materials had been supplied to the lower court to exercise its discretion in favour of the appellant as allowed by law. In Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773 and Rakol Clinic & Maternity Hospital v. S.F.I. Co. Ltd (1999) 7 NWLR (Pt. 612) 613 at 61a, counsel submitted, the principle had been restated that the lower court had no option than to accept the depositions in appellant's affidavit as true and rely on them. And the facts on the basis of which the court was empowered to set-aside the registration of a judgment afflicted by the lapses were conveyed by the averments in their unchallenged and uncontroverted supporting affidavit. Having in particular shown that appellant had not been served and as such not privy to the proceedings that led to the birth of the registered judgment, the lower court was wrong for failing to stop a judgment so obtained from being processed and enforced. Appellant's right to fair hearing given S. 33(1) of the 1979 Constitution having been violated, the foreign judgment stood no chance.

Concluding, counsel asked us to allow the appeal.

On respondent's behalf, counsel has argued that the dismissal by the lower court of appellant's application dated 22nd March, 1999 and refusal to de-register the English judgment was in order. Counsel conceded that the Reciprocal Enforcement of Judgment Act, Cap. 175, Laws of the Federation, 1958 is the applicable legislation. Counsel conceded that the Act in S. 3(1) provides for the registration in Nigeria of judgment obtained in the High Court of England, Ireland or in the court of session in Scotland on application to the High Court by the judgment creditor. The counsel prayed the court by virtue of S. 3(2), orders registration of a foreign judgment if in all the circumstances of the case; it is just and convenient that the judgment should be enforced in Nigeria. The power the court exercises in the grant or refusal of the prayer, counsel argued is a discretionary one arrived at on the basis of the facts placed before it and which facts differ from one case to another. S. 3(2) counsel argued, outlined six conditions the court must not flout as it decides to order the registration of the judgment. These conditions, it is submitted, were not flouted by the lower court. Counsel referred to paragraphs 5, 6, 7, 8,9, and 12 of the affidavit they relied upon in the prosecution of the application for the registration of the judgment of the English court - exhibit EM-1 and submitted that the averments were never opposed by the appellant. Appellant's counsel chose not to respond to the submissions made by respondent's counsel in moving the application. The lower court, counsel submitted, must rely on the averment in the affidavit in support of respondent's case. Counsel relied on Long-John v. Blakk (1998) 6 NWLR (Pt. 555) 524 and Fawehinmi v. Abacha (1996) 5 NWLR (pt. 447) 198 at 200.

Learned respondent's counsel further conceded that rule 12, issued consequent upon Cap. 175 of 1958, in the main provided for the setting aside of the registration of the judgment registered pursuant to S. 3(1) and (2) of the substantive Act. Given the role counsel to the appellant played on 15th March, 1999, when the lower court heard and granted respondent's prayers for the registration of the foreign judgment, it was no longer open for the appellant's counsel to ask for the de-registration of the judgment on the basis of the very facts he could have opposed the registration but deliberately refrained from. That counsel was holding his principal's brief was no excuse as counsel had the authority and competence to do appellant's bidding on the appointed day. Counsel cited and commended the Supreme Court's decision in Falomo v. Banigbe (1998) 7 NWLR (Pt. 559) page 679. Besides, appellant cannot claim not being served the processes of the English court. Counsel referred to page 19 of the record of appeal and paragraph 6(n) of the statement of claim, where it was asserted that at all times material to the suit and eventual judgment from same, appellant's address for service had been England through agents irrevocably appointed by the appellant to accept service. Appellant, it was finally submitted, cannot allege breach of fair hearing either at the English court or the lower court.

Respondent argued that the appeal being without merit be dismissed.

It appears to me that appellant is under a serious misapprehension of the import of the ruling of the lower court. The court, after appellant had moved its application was not saying that it never had the power to set aside the registration of the foreign judgment obtained against the appellant. If appellant counsel had seen the ruling in this light it must have been for the simple reason that a sustained effort had not been applied at reading and understanding the court's ruling wholly and in its entirety. The unmistakable import of the ruling in my firm and considered view is that because appellant had not made out a case for the reliefs he prayed the court, the de-registration of the judgment of an English court and suspension of execution of the said judgment, the Judge "cannot and will not" oblige the reliffs sought by the appellant. So much weather had been put on the impression that the Judge's ruling was misconceived as there never was a prayer before him to set aside the registered judgment. The relief sought was, instead, for de-registration which the Judge, asserted appellant's counsel, ignored.

This argument to say the least is cheap, opportunistic and uncharitable. Considered as a whole, the court's ruling does not admit this view. By the materials before the court and given the appellant's deliberate failure to oppose the application, nay its tacit admission of the fact that respondent had met all the conditions required in making a case for the registration of "the judgment of an English court, the court's position is that it "cannot and will" not oblige appellant the relief of setting aside the registration of the judgment of an English court it ordered on application by the respondent that had not been opposed.

The fundamental question in this appeal is not whether or not the trial court had the power to set aside its order of registration of a foreign judgment made pursuant to its powers under S. 3(1) & (2) of the Reciprocal Enforcement of Judgment Act, Cap. 175, Laws of the Federation, 1958. The issue is whether in the light of what transpired at the lower court at the hearings of the respondent's application for registration of the judgment and appellant's application for de-registration and the totality of materials before the court, appellant had made out a case to be entitled to an order setting aside the judgment. The discretionary relief appellant prayed the court, it must be pointed out, is never given as a matter of course.

An applicant to such relief would only be obliged after a judicial and judicious exercise of the powers the court was asked to exercise.

S. 3(1), (2) and (4), and S. 6 of the Reciprocal Enforcement of Judgments Act, Cap. 175 of 1958 and the rules of court, in particular rule 12 thereof, issued pursuant to S. 6 of the principal legislation, are relevant to the determination of the crucial issue in this appeal.

They are hereunder supplied:

"3.(1) Where a judgment has been obtained in the High Court in England or Ireland, or in the Court of Session in Scotland, the judgment creditor may apply to a High Court at any time within twelve months after the date of the judgment, or such longer period as may be allowed by the court, to have the judgment registered in the court, and on any such application the court may, if in all the circumstances of the case it thinks it is just and convenient that the judgment should be enforced in Nigeria, and subject to the provisions of this Ordinance, order the judgment to be registered accordingly.

(2) No judgment shall be ordered to be registered under this Ordinance if -

(a) the original court acted without jurisdiction; or

(b) the judgment debtor, being a person who was neither carrying on business nor ordinary resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; or

(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court, and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or

(d) the judgment was obtained by fraud; or

(e) the judgment debtor satisfies the registering court either that an appeal is pending, or that he

is entitled and intends to appeal the judgment; or

(f) the judgment was in respect of a cause of action which for reasons of public policy or for some

other similar reason could not have been entertained by the registering court.

(4) In any action brought in any court in Nigeria on any judgment which might be ordered to be registered under this Ordinance, the plaintiff shall not be entitled to recover any costs of the action unless an implication to register the judgment under this Ordinance has previously been refused, or unless the court otherwise orders.

(6)(1) The Chief Justice of a High Court may make rules of court for regulating the practice and procedure (including scales of fees and evidence) in respect of proceedings of any kind under this Ordinance.

(2) Such rules shall, among other things, provide -

(a) for service on the judgment debtor of notice of registration of a judgment under this Ordinance; and

(b) for enabling the registering court on an application by the judgment debtor to set aside the registration of a judgment under this Ordinance on such terms as the court thinks fit; and

(c) for suspending the execution of a judgment registered under this Ordinance until the

expiration of the period during which the judgment debtor may apply to have the registration set aside."

Rules enacted pursuant to S. 6 supra states:-

"12. The judgment debtor may at any time within the time limited by the order giving leave to register after service on him of the notice of the registration of the judgment apply by petition to a Judge to set aside the registration or to suspend execution on the judgment and the Judge on such application if satisfied that the case comes within one of the cases in which section 3(2) of the Ordinance, no judgment can be ordered to be registered or that it is not just or convenient that the judgment be enforced in Nigeria or for other sufficient reason may order that the registration be set aside or execution on the judgment suspended either unconditionally or on such terms as he thinks fit and either altogether or until such time as he shall direct; provided that the Judge may allow the application to be made at any time after the expiration of the time mentioned." (Italics mine for emphasis)

The interpretative effort of courts is about finding out the intention of the law makers from the legislation under reference. The safest and correct course of dealing with the question of statutory constructions is by limiting one's interpretative effort, where possible, to the very words used by the law giver. The language of the law maker rather than his beliefs and assumptions has been the most accepted tool in the discovery of the intention of the legislator. Where, therefore, the language of the statute is plain and admits of but a lone meaning, the task of interpretation hardly arises. In that instance, where the legislature has used clear and unequivocal language, such enactment no matter how harsh, absurd, unreasonable and nonsensical, must be enforced. Here the chain of judicial authorities is legion. See for example Ogbunyinya v. Okudo (1979) All NLR 105; Shell Petroleum Development Co. (Nig.) Ltd. v. Federal Board of Inland Revenue (1996) 8 NWLR (Pt. 466) 256; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 SC 158, (1983) 1 SCNLR 296; Jammal Steel Structures Ltd. v. ACB (1973) 11 SC 77; Board of Custom and Excise v. Barau (1982) 10 SC 48; Rabiu v. State (1980) 8/11 SC 130 and Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 203-204.

In the instant case, the relevant legislative provisions, and these have been reproduced supra, are made up of words which are clear and unambiguous in their meanings. Their ordinary literal meaning must accordingly be ascribed to them.


Resultantly the combined effect of these provisions are:-

(1) Foreign judgments are, on application and a court order thereon, registrable in this country.

(2) Application for an order for leave to register such judgments can be made either ex parte or on notice.

(3) An application on notice for the registration of a foreign judgment can be made, by the necessary implication deducible from S. 3(4), more than once.

Judgments that must not be registered pursuant to applications in that behalf and if registered their registrations are liable to being set aside, on application by the judgment debtor include:-

(a) Judgment given by a court without jurisdiction.

(b) Judgment against a judgment/debtor who did not carryon business or resided within the jurisdiction of or voluntarily appeared or submitted or agreed to submit to the jurisdiction of the court that gave the judgment.

(c) Judgment against a defendant who although ordinarily resident or was carrying on business or agreed to submit to the jurisdiction of the court that gave the judgment was not duly served with the processes of the court and did not attend trial.

(d) Judgment that was fraudulently obtained.

(e) An appeal subsist against the judgment or that being entitled to, the judgment/ debtor intends to appeal.

(f) If the cause of action on the basis of which the judgment was given could not have been heard by the registering court for reasons of public policy or such other related reasons.

(g) it is neither just nor convenient that the judgment be enforced in Nigeria and;

(h) for any other sufficient reasons.

The discretion of the Judge are frighteningly wide indeed.

Now, a court in the determination of a matter before it enquires into and relies on the relevant facts led by parties before it, draws inferences from such facts and the arguments canvassed by the parties or their counsel. Judicial evidence is the means by which the facts relied upon in taking decisions are proved. Facts are proved by oral testimony of the persons who perceived them, by the production of documents and inspections of things or places. Facts can also be proved by admissions, confessions, judicial notice, presumptions and estoppel. A Judge is free to take Judicial notice of all such facts he is either called upon to or from his general knowledge of such facts or from enquiries made by him on such facts from sources to which it is proper for him to refer. In the instant case the Judge was free to take judicial notice of records of proceedings in his court given the combined effect of S 74 and S 109 of the Evidence Act see: Gbadamosi v. Alete (1998) 12 NWLR (Pt.578) 402 and URN Plc. v. SCPOK (Nigeria) Ltd. (1998) 12 NWLR (Pt.578) 439.

Also, there is that rule of evidence called estoppel. Where estoppel arises, it constitutes an admission of facts. By its very conclusive nature, the party it affects is not allowed to adduce evidence against it. See Oyerogba v. Olaopa (1998) 13 NWLR (Pt. 583) 509 SC; Ito v. Ogodo 6 SC (Pt.1) 133 and Ezewani v. Onwordi (1986) 4 NWLR (Pt.33) 27.

Let us try to apply the foregoing postulations to the facts of the instant matter.


When the respondent before us applied for the registration of the judgment obtained against the appellant, he relied on his supporting affidavit. The crucial averments in this affidavit have already been reproduced in this judgment. By the averments, respondent asserted that all the conditions under S. 3(2) of Cap. 175 of 1958 had been fulfilled.

Notably, it was asserted that the original court had the necessary jurisdiction and that appellant had submitted to the jurisdiction of the court. Appellant did not contradict these averments. He must be deemed to have admitted them and it was on the basis of these admissions that the court proceeded to order registration.

Subsequently, appellant, as allowed by the law, in particular rule 12 of the rules of court in that regard, applied for the setting aside of the registration of the very judgment he had, in an application on notice, admitted had satisfied all the necessary conditions stipulated by the law to enable registration. Appellant is estopped from resiling from those facts he had earlier admitted. Appellant could only have asked for the de-registration of the judgment on the basis of fresh facts other than those which respondent had averred in support of his application for registration and which facts appellant had admitted to be correct and true. It does not lie in his mouth to say otherwise in a subsequent proceeding. See Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 SC; Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) 561 SC and Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647 SC.

It is clear from the affidavit in support of his application for the setting aside of the judgment that appellant's main grouse is that he was neither resident nor carried out business within the jurisdiction of the original court. He also asserted that he was not served the court's processes or appeared before or submitted or agreed to submit to the court's jurisdiction. These are all matters he is deemed to have admitted and estopped from asserting contrary to those admitted facts. His counsel submitted that since respondent did not contradict the averments in the affidavit in support of appellant's application for de-registration, the court had nothing to the contrary to rely upon. We have seen the fallacy of that submission from the foregoing. It is evident that with appellant having been estopped from making the averments in the first place, there was nothing for the respondent to contradict. The trial court was accordingly right to hold that from the materials before it, appellant did not make out a case for the setting aside of the registration of the judgment of an English court and that he could not and would not so order. This position is in harmony with the legislations the Judge had to apply and the facts available to him. Discretionary powers judicially and judiciously exercised cannot be interfered with. One must let the decision of the lower court be.

S. 3(4) of the Reciprocal Enforcement of Judgments Act, Cap. 175 of 1958 has one significant implication. The subsection gives a judgment/creditor the right to repeat an application for the registration of a foreign judgment where an earlier one had been refused by the court. It will be against public policy if such subsequent applications are made on the basis of the same facts in support of the earlier application that was refused after the court had considered the application on notice and on its merits. Subsequent applications can only be made on the basis of fresh facts. It is therefore the law that even where the clear wordings of a statute had entitled a litigant to make a subsequent bid in obtaining a relief, that right is never at large. In the instant case where the appellant relied on the very facts that had been considered and pronounced upon by the court, the right that had been conferred in very clear terms by law is of no use to it. The right could only be beneficial on the basis of fresh facts which on satisfying the court would lead to the grant of the reliefs sought. Otherwise, as the trial Judge had pointed out, the only remedy is by way of appeal.

In conclusion, I find no merit in this appeal and for the forgoing reasons, the very reasons that made me to disagree with the judgment of my learned brother Garba, JCA, I dismiss the appeal and affirm the decision of the lower court. I order a cost of ten thousand naira (N10,000.00) against the appellant.



Appeal allowed

         
Appearances
             
Appellant not represented For the Appelants
             
Otunba Yomi Oshikoya, (with him, Akorede-Lawal, Esq. and B.O. Oshikoya, Esq.) For the Respondents