➥ CASE SUMMARY OF:
Teleglobe America, Inc. v. 21st Century Technologies Limited (2008) – CA/L/694/2006
by Branham Chima (SAL).
Court of Appeal – CA/L/694/2006
➥ JUDGEMENT DELIVERED ON:
Friday, the 4th day of July, 2008
➥ AREA(S) OF LAW
Registration of foreign judgement.
➥ PRINCIPLES OF LAW
⦿ IF COUNSEL HAS NO AUTHORITY TO REPRESENT CLIENT, HE CANNOT ASK FOR ADJOURNMENT
Whilst hearing the Appeal on the 10th of April, 2008, Learned Counsel E. Uwa with Ogunshote announced appearance for the Appellant and the Learned Senior Advocate Prof. S. A. Adesanya (SAN) announced appearance for the Respondent. Prof. Adesanya (SAN) informed the court that the Respondent is registered in Nigeria but based in America, that he has not had contact with him nor does he have his contact as he was introduced to the Respondent by a third party, he further explained he has no further instruction to represent the Respondent. He applied for an adjournment because he has not been in contact with the Respondent. The Learned Counsel to the Appellant opposed the application contending that the learned SAN was served with all the processes including the Appellant Brief, he failed to react nor write to slate he is no longer in the matter. Learned Counsel submitted that if he has not been instructed he cannot apply for adjournment. This court considered the application of the Learned Senior Advocate for adjournment and the response of the Appellant’s Counsel and ruled refusing the application for adjournment. — R.O. Nwodo, JCA.
⦿ NOTWITHSTANDING FAILURE OF RESPONDENT TO FILE BRIEF, APPELLANT WILL SUCCEED ON HIS OWN BRIEF
This failure will not affect the determination of the appeal. This is because an appellant will succeed on the strength of his case. He can only succeed or fail on his own brief notwithstanding the absence of the Respondent’s Brief. In a catalogue of decided cases, the Appellant courts have held that the failure of a Respondent to file a reply brief is immaterial. See John Holt Ventures Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) 101 C.A., Onyejekwe v. The Nigeria Police Council (1996) 7 NWLR (Pt.463) 704 C.A., Waziri v. Waziri (1998) 1 NWLR (Pt. 533) 322 C.A. and U.B.A. Plc v. Ajileye (1999) l3 NWLR (Pt. 633) 116 C.A. Confirming the effect of failure of Respondent to file a reply Brief, the Supreme Court in Unity Bank Plc v. Bouari (2008) 7 NWLR (Pt.1086) SC 372 per Ogbuagu J.S.C. held: “It has been held that the failure of a Respondent to file a reply Brief is immaterial. This is because an Appellant will succeed on the strength of his case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the records. In other words, it is not automatic an Appellant must succeed or fail on his own Brief”. — R.O. Nwodo, JCA.
⦿ NATURE OF ESTOPPEL
It is trite law that where a court of competent Jurisdiction has settled an issue by a final decision, in respect of matters in dispute between the parties neither party may re-litigate on that issue again by raising same in any proceedings except on appeal. This issue of relitigation falls within the ambit of estoppel. There are two kinds of estoppels; the first is called cause of action estoppel which occurs where the cause of action is merged in the Judgment which can be described as transit in rem judicatam either party is precluded from litigating on the same cause of action. See Fadiora Gbadebo (1978) 3 SC 219, Ebba v. Ogodo (2000) 10 NWLR (Pt.675) 387. The second kind of estoppel inter parties usually occurs where an issue has earlier on been adjudicated upon by a court of competent Jurisdiction and the same issue comes in question in any subsequent proceedings between the same parties. Idigbe JSC distinguished the two types of estoppel by record of inter parties in Fadiora v. Gbadebo Supra where he held: “Now, there are two kinds of estoppel by record inter parties or per rem judicatam, as it is generally known. The first is usually referred to as ’cause of action estoppel’ and it occurs where the cause of action is merged in the judgment, that is Transit in rem judicatam – See King v. Hoare (1844) 13 M.& W 495 at 504. Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter they are precluded from re-litigating the same cause of action. There is however, a second kind of estoppel inter parties and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, ‘issue estoppel’ arises. This is based on the principle of law that a party is not allowed to (ie., he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. See Cutram v. Morewood (1803) 3 East 346. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per remjudicatam must apply, that. (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceedings), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies)”. See also Ladega v. Durosimi (1978) 3 S.C. 91, 102-103where Eso, J.S.C. said: “The doctrine of res judicata, which finds expression in the maxim ‘nemo debet his vexari pro una et eadem causa, lays emphasis on the ‘causa. It is the cause of action that would have been determined and nay suit, brought to relitigate such action, which has been determined, would be dismissed. Where, however, what is raised in an issue estoppel, then, it is only in regard to that issue, that has been raised that the parties to an action, shall be bound, and the proper course to take would be one of striking out all the paragraphs in the pleadings raising that issue”. Though the whole concept of ‘estoppel’ is viewed as a substantive rule of law (see Haustead v. Commissioner of Taxation (1926) A.C. 155 at pp. 165.166 and also Canada and Dominion Sugar Coy. Ltd. v. Canadian National (West Indies) Steamships Ltd. (1947) A.C. 46 at p.56, it is essentially a rule of evidence. — R.O. Nwodo, JCA.
⦿ INGREDIENTS FOR ISSUE ESTOPPEL TO APPLY
It is trite law that for issue estoppel to apply the following ingredients must be present: 1. The parties must be the same in the previous and present actions; 2. The same question that was decided in the previous action must arise in the present action in respect of the same subject matter; and 3. That question must be a final decision of a competent court. See Ebba v. Ogodo (2000) 10 NWLR (Pt. 675) S.C. 387. — R.O. Nwodo, JCA.
⦿ BOTH THE 1958 ACT AND THE 1990 ACT APPLIES TO FOREIGN JUDGEMENT
The two main statutes are the Reciprocal Enforcement of Judgment Act 1922 Cap 175 Laws of the Federation and Lagos 1958 and the Foreign Judgment (Reciprocal Enforcement) Cap 152 Laws of the Federation 1990 Act Cap F35 of the Revised Laws of the Federation 2004. The 1958 ordinance was promulgated to facilitate the reciprocal enforcement of Judgments obtained in Nigeria and in the United Kingdom and other territories under her majesty’s protection not having been repealed by the 1990 Act, the Act still applies to the United Kingdom and other part of her majesty’s dominion. See Macaulay v. R.Z.B Austria (2003) 18 NWLR (Pt. 852) SC 282. — R.O. Nwodo, JCA.
⦿ SIX YEARS TO REGISTER FOREIGN JUDGEMENT CANNOT BE APPLICABLE UNTIL MINISTER MAKES ORDER UNDER THE 1990 ACT
Under S4 of the Foreign Judgment (Reciprocal Enforcement) Act, the period within which a foreign Judgment may be registered in Nigeria was extended to six years from the date of the Judgment. However, S3(1) of the Act subjected the coming into force of the provisions of part 1 of the Act which part 1 contains S4(1) of the said Act which provides for the period of registration to be six years if an order is made by the Minister of Justice directing the extension of part 1 of the Act to the relevant foreign countries. In effect, until the Minister of Justice in this country makes the Order under S3(1) of the Act, S4 of the Foreign Judgment Act cannot be available to any applicant to support an application to register a foreign Judgment within a period of 6 years from the date of the Judgment. See Marine & Gen. Ass. Co. Plc. v. O. U. Ins. Ltd. (2006) 4 NWLR (Pt.971) SC 622. — R.O. Nwodo, JCA.
⦿ PREREQUISITES TO SET ASIDE FOREIGN JUDGEMENT WILL BE CONSIDERED WHEN FOREIGN JUDGEMENT IS TO BE REGISTERED
The purpose from the subtitle is for cases in which registered Judgments must or may be set aside. There is no doubt that the application in the lower court is not for an Order to set aside but to register a Foreign Judgment. Notwithstanding, the requirements under S6(2) and S6(3) are germane to all Foreign Judgment applications. This is because prescribed conditions therein will serve as a guard for the court to avoid circumstances wherein a registered Judgment will be subsequently set aside on the basis of the provision stated in S6 of the Act. The provision therein is not mandatory but necessary when considering whether a Foreign Judgment will be registered or not … Therefore once Applicant seeking registration has presented facts to support the prerequisites under S4 for registration, the lower court must presume the foreign court had jurisdiction. The court will refuse to register a foreign Judgment when these aforesaid conditions have not been fulfilled inclusive of where the Judgment could not be enforced by execution in the country of the original court. The conditions set out under S4 of the foreign Judgment (Reciprocal Enforcement) Act should be considered by the Learned Trial Judge before registering the Judgment or refusing to register. — R.O. Nwodo, JCA.
⦿ JUDGEMENT NOT ENFORCEABLE IN ORIGINAL COURT WILL NOT BE ENFORCEABLE IN REGISTERING COURT
The reasoning behind the conditions laid down for refusal is very obvious. In other words where a judgment has been satisfied, the interest of the judgment creditor had been served and therefore any further registration of same would serve no beneficial purpose but a mere waste of time. There would be nothing more to pursue. Further more and on the second reason warranting refusal, it is a matter of common knowledge that any judgment which by its nature cannot be enforced by exemption in the country of the original court would certainly and invariably encourter the same situational characteristics wheresoever else. Basically the general fundamentals relating to the purpose, determination application and effectual reasonings of any legal system are principally based on the same pedestal connotation. Any judgment which could not be executed is as good as none at all. — C.B. Ogunbiyi, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Regina Obiageli Nwodo, J.C.A.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
Prof. S. A. Adesanya (SAN).
➥ CASE FACT/HISTORY
This is an appeal against the decision of the Federal High Court, Lagos Judicial Division delivered on the 15th of March, 2006 against the plaintiff Teleglobe America. Inc. hereinafter referred to as the Appellant. 21st Century Technologies Ltd. was the Respondent in the lower court and is still the Respondent on Appeal. The Appellant in the lower court instituted an action by Notice of Originating Motion dated and filed 25th of October, 2005 seeking the following reliefs: 1. “An order registering the judgment of the CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA entered in LAW NO. 218964 on the 2nd day of December, 2004 by the said court (marked exhibit GB10 in the affidavit in support of this Notice), in the sum of USDollar 1,231,489.00 with interest at the rate of 1.5% per month from the 2nd of December, 2004 till it is fully satisfied, so that the said Judgment shall have the same force and effect as a judgment of the Federal High Court of Nigeria or any other superior court of Record in Nigeria. 2. Cost of this action. 3. Further and other orders as this Honourable Court may deem fit to make in the circumstances.”
Briefly the facts garnered from the record of appeal that lead to this appeal are as follows: On or about the 2nd day of August, 2000, Teleglobe International Corporation, the predecessor in title of the Appellant entered into a Teleglobe Internet Services Agreement with the Respondent which agreement was subsequently amended for the provision of internet access by Teleglobe International Corporation and its successors to the Respondent. All rights and duties of Teleglobe International Corporation under the agreement were assigned to the Appellant. Sometime in May 2003, the respondent terminated the agreement. As a result of the termination, the Appellant commenced an action against the Respondent in Suit No. 218964 titled Teleglobe America, Inc. v. 21st Century Technologies Ltd. on or about 19 of November 2003 in the Circuit Court of Fairfax County, Virginia claiming the sum of US Dollar 983,046.67 plus interest and cost. The Respondent was served the Originating Processes in accordance with the Rules of Court of the Circuit Court. The circuit court heard the case and entered final Judgment on 2nd December 2004 in favour of the Appellant. The Appellant then proceeded to the Federal High Court Lagos on 25th of October 2005 and filled a Notice of Originating Motion for Registration of the Circuit Court Judgment hereinafter referred to as the foreign Judgment. The Respondent in the lower court filled a Notice of Preliminary Objection to the Registration contending that the Federal High Court is devoid of jurisdiction to entertain the suit on the basis that the Respondent was not served with the Originating Processes of the suit in the Circuit Court in Nigeria in accordance with the applicable Nigerian law, before Judgment was entered against them. The Learned Trial Judge heard both applications together and in a considered Judgment on 15th of March, 2006 the Learned Trial Judge refused the application to register the foreign Judgment and struck out the originating motion. The Appellant dissatisfied with the Judgment of the lower court then filled a Notice of Appeal on 9th June, 2006 containing six grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Federal High Court can revisit and determine the issue of service of the processes of a foreign court when there is a subsisting decision of that foreign court on the same issue?
RULING: IN APPELLANT’S FAVOUR.
A. THE FEDERAL HIGH COURT WAS WRONG TO CONSIDER THE ISSUE OF SERVICE SAME HAVING BEEN CONSIDERED BY THE FOREIGN COURT – ESTOPPEL APPLIED
[“The question raised as to whether the issue of valid service of originating processes in the foreign court can be re-opened at the lower court is very critical. This is because of the fundamental nature of valid service of processes in any proceeding. Service was effected in the foreign court on a claim based on damages, the foreign court found there was valid service and gave a decision. The cause of action in the lower court is for registration of the judgment of the foreign court. Notwithstanding, the two causes of action are different as long as during litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a competent court neither party can in subsequent litigation between one another upon any cause of action which depends on a final decision of a cause of action arising from the issue earlier determined raise the same issue. The parties are bound on that issue determined. They cannot subsequently in another suit advance argument to show that the issue was wrongly determined. This is settled law. There only remedy is by way of appeal. The pronouncement of the County Court is explicit and was final on issue of valid service on the Appellants.”
“In the instance case from the record of appeal there is no doubt nor are the facts disputed by the parties that the parties in the foreign court are the same parties in the lower court and that the issue of validity of service of the originating process on the Respondent was raised in the foreign court and a decision on that taken by the circuit court before the Learned Trial Judge in that court proceeded to enter a final Judgment. The circumstance addressed under issue 3 falls within the ambit of issue estoppel. The Respondent cannot and should not have advanced argument directed at showing that the issue of service was wrongly determined. Their only remedy is by way of appeal from the Judgment of the foreign Court to the Appellant Court in that country. The Federal High Court does not have appellate Jurisdiction over the decisions of the Circuit Court of Fairfax County. The Learned Trial Judge was wrong in considering the issue of valid service when same issue had been canvassed and determined in the foreign court. The issue was final. The lower court is devoid of Jurisdiction to consider the merits of the foreign Judgment when the Learned Trial Judge held: “Before registering a Judgment of a foreign court, this court is in my view entitled to look into the merits of that Judgment otherwise it would not have been provided in Section 6 of the Reciprocal Act that such a Judgment must or may be set aside if for example the registering court is satisfied that the court of the country of the original court had no Jurisdiction in the circumstances of the case or that the Judgment was obtained by fraud or that the enforcement of the Judgment would be contrary to public policy in Nigeria”. The lower court lacks competence to look into the merits of the Foreign Judgment. I resolve issue 3 in favour of the Appellants.”]
II. Whether the originating processes of the Circuit Court of Fiarfax County, Virginia, United States of America were properly and validly served on the Respondent in accordance with the applicable law?
RULING: IN RESPONDENT’S FAVOUR.
A. THIS ISSUE HAS ALREADY BEEN DETERMINED BY THE FOREIGN COURT
[“The Learned Counsel for the Respondent under issue 1 raised two questions; first is whether the provisions of Order 13 Rule 23 of the Federal High Court (Civil Procedure) Rules 2000 are mandatory for all occasions of service of processes of a foreign court in Nigeria as to be applicable in this case. Second question is whether the appropriate law or rules of procedure to be applied in respect of service of foreign processes in Nigeria is Nigerian law or rules of procedure of the country of the foreign court. This issue has been determined in the foreign court as evidenced in exhibit GB5:- The default Judgment Order is reflected in page 19 of the Record of Appeal wherein the Learned Trial Judge in the foreign court held: “It is appearing to the court that 21st Century was duly served with a Motion for Judgment with sworn affidavit incorporated therein, in accordance with Virginia Code S8. 01-28, through the Secretary of the Commonwealth on December 15 2003 and personally on Ms. Shade Shoage, Customer Relations Officer who was in charge of 21st Century’s office on December 30, 2003”. This issue having been decided in the foreign court becomes irrelevant at this stage. The foreign court’s decision is not on appeal in this court. Therefore, issue I is most inappropriate and an attempt by the Learned Counsel to the Appellant to canvass the issue of service already determined in the foreign court which ironically is the same point of issue estoppel he vehemently opposed. It will amount to a mere hypothetical issue or academic exercise if this court proceeds to consider this issue. The determination of service has no probative value because this court is devoid of jurisdiction to seat on appeal over the Judgment of County Court, Fairfax Country.”]
III. Whether having regard to the provisions of the foreign judgments (Reciprocal Enforcement) Act, the lower court was right to refuse to register the Judgment of the Circuit Court of Fairfax County and to find that the foreign court had no jurisdiction?
RULING: IN APPELLANT’S FAVOUR.
A. THE FOREIGN JUDGEMENT IS REGISTRABLE AND OUGHT TO HAVE BEEN REGISTERED BY THE TRIAL COURT
[“The Learned Trial Judge in his ruling found that there is nothing before the court to show that the Minister of Justice has exercised his powers under S3 of the Foreign Judgment Act in favour of the United States of America and proceeded to rely on S10(a) of the Foreign Judgment (Reciprocal Enforcement) Act. The Learned Trial Judge interpreting the provision and relying on the case of Andrew Mark Macaulay v. R. Z. B. Austria (2003) 18 NWLR (Pt. 18) 282 at 298 rightly made the following pronouncement: “There is nothing placed by this court to show that there is an Order by the Minister of Justice extending the provision of part 1 of the Reciprocal Act to Judgments given in United States. The applicant therefore has twelve months from the date of the Judgment within which to register it in Nigeria”
It is indisputable that the application for registration was filled within twelve months which period is covered under S10(1) of the Foreign Judgment Act in the absence of a Minister’s Order.
From the Learned Trial Judge’s findings above, one would have expected the court below to proceed and register the foreign Judgment since the prerequisites for registration were present. Unfortunately the Learned Trial Judge did not fail to realize that the issue of service of process having been considered and determined by the foreign court cannot be relitigated again except by way of appeal. Clearly the issue of service was responsible for the lower court derailing from the right track and delving into the merits of the Judgment.
The Learned Trial Judge in the lower court considered the basic requirements and found that the Appellant was the Judgment creditor in respect of the foreign Judgment, that the application for registration was made within one year and that the Judgment was not satisfied either in whole or in part. All his findings fall within circumstances where the foreign Judgment should be registered. Issue of service of originating process is not a condition to consider on when to grant or refuse to register a foreign Judgment. Equally, S6 is not a mandatory provision to consider in registering a foreign Judgment. It may be necessary in circumstance where there is documentary evidence challenging at that stage the existence of the Judgment otherwise it is mandatory when an application is for setting aside then provision S6 will be considered as conditions. Looking at the record of appeal there is no evidence from the document and proceedings therein that the foreign Judgment cannot be executed in the United States of America. The requirement that Judgment must be enforceable in the country of original court must relate to Judgments that are not enforceable in that the Jurisdiction in the instance case, the Circuit Court of Fairfax County. The determination of the issue of service of process by the Learned Trial Judge exceeded the statutory powers conferred on the court under the foreign Judgments (Reciprocal Enforcement) Act. See O. U. Ins. Ltd. v. Marine & General Ass. Co. (2001) 9 NWLR (Pt.717) CA92. The lower court veered into the terrain preserved for the Appellant court in the foreign Jurisdiction. The record of proceedings is clear it shows that the parties agree that any dispute arising from the Agreement will be resolved in the American Court.
Therefore once a foreign Judgment is for registration, the Learned Trial Judge must limit himself to the requirements stipulated under S4 of the foreign Judgment (Reciprocal Enforcement) Act.
S11(1) of the Act enjoins the lower court to recognize foreign Judgment as conclusive between the parties as long as it is on the same cause of action. Having regards to the above provisions, the Learned Trial Judge with due respect misconceived the prerequisites to the registration he predicted his decision on issue of validity of service of the originating process from the foreign court in Nigeria. His decision on service was irrelevant to the issue before him which was for the registration of a foreign Judgment only. The Learned Trial Judge is to presume the Foreign Judgment is the Judgment of a competent court and consider the prerequisites for Registration of the Judgment. I hereby set aside the decision of the lower court refusing to grant the Appellant’s application on grounds of non service of the foreign process in accordance with Order 13 Rule 23 of the Federal High Court (Civil Procedure Rules) 2000 and hold there is merit in this appeal.”]
B. THE APPELLANT SATISFIED THE PREREQUISITE FOR THE REGISTRATION OF THE FOREIGN JUDGEMENT
[“In the instance case, the Learned Trial Judge rightly made the following findings; that the Appellant is the judgment creditor, that the Foreign Judgment was not satisfied wholly or partly, and that the application was filled within a period of twelve months in accordance with S10 of the said Act. The foreign Judgment is presumed conclusive by virtue of S11 of the Act unless there is contrary evidence on its authencity. Equally S8 of the same Act stipulates that no other proceedings can be initiated in respect of a Foreign Judgment other than for registration of same. Therefore, the Appellant have satisfied the prerequisites to the registration of the Judgment of the Circuit Court of Fairfax in this country.”]
“Consequently, I order the registration of the Judgment of the Circuit Court of Fairfax County, Virginia entered in Law No.218964 on the 2nd day of December, 2004 by the said court (marked exhibit GB10 in the affidavit in support of this Notice), in the sum of US Dollar 1,231,489.00 with interest at the rate of 1.5% per month from the 2nd of December 2004 until it is fully satisfied, so that the said Judgment shall have the same force and effect as a Judgment of the Federal High Court of Nigeria or any other superior court of Record in Nigeria. Cost is awarded in the sum of N20,0000 in favour of the Appellant against the Respondent.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)