Foreign consent judgment is registrable a

COURT OF APPEAL (LAGOS DIVISION)

(AUGIE; OSEJI; ABUBARKA, JJ.CA)

The Respondent commenced an action for breach of contract against the Appellant at the High Court of Justice, Queens Bench Division, England. The Appellant entered appearance and took steps in the proceedings. Eventually, terms of settlement were entered as the judgment of the court.

The Respondent registered the consent judgment in the High Court of Lagos State. The Appellant brought an application to set aside the registration of the judgment. This application was dismissed. The Appellant appealed against the ruling to the Court of Appeal.

One of the three issues put forward for the determination of the Court of Appeal was:

“Whether lack of jurisdiction of the English court being the original court of the country of origin will make the Judgment not registrable in Nigeria. “

Counsel to the Appellant submitted that by virtue of section 6(2) of the Foreign Judgments (Reciprocal Enforcement) Act Cap F35 Laws of the Federation of Nigeria 2004 (“the FJ (RE) Act”), before the English court could exercise jurisdiction over the Appellant, it first had to be established that the Appellant being a corporate body was resident or had its place of business in England – the country of the original court. Counsel to the Appellant argued that the Appellant was neither resident nor had its place of business in England. The Appellant further submitted that it is an established principle of law that any proceeding without the jurisdiction of the court is a nullity. That being so, the court of England was robbed of its jurisdiction over the Appellant. It was also submitted that the lower court ought to have taken cognizance of the foregoing and set aside the judgment of the English court.

Conversely, counsel to the Respondent noted that by virtue of Sections 3(2)(b and 6(2)(a) of the FJ (RE) Act, where a judgment debtor voluntarily appears or submits to the jurisdiction of foreign court, the foreign court shall be deemed to have jurisdiction, and the judgment delivered shall be registrable in Nigeria.

Respondent’s counsel stated that the Appellant voluntarily appeared and submitted to the jurisdiction of the English court and entered into an agreement to settle amicably with the Respondent and this became the judgment of the court. The Respondent argued that by this conduct and pursuant to the provisions of section 6(2)(a)(i) of the FJ (RE) Act, jurisdiction was conferred on the English court. Further, counsel to the Respondent argued that the Appellant did not file notice of acting in protest of jurisdiction before the English court, or appear for the purpose of protecting or obtaining the release of property seized or threatened to be seized.

Lastly, the Respondent’s counsel argued that the Appellant had not in any way controverted or challenged the Respondent’s counter-affidavit and as such the depositions are deemed admitted. He urged the court to hold that the English court had jurisdiction and that the Appellant is merely seeking the assistance of the court to aid it in avoiding its liability to the Respondent.

The Court of Appeal noted that one of the circumstances where a foreign court will be deemed to have jurisdiction under section 6(2)(a)(ii) of the FJ (RE) Act is, “If the Judgment debtor being a defendant in the original court, had before the commencement of the proceeding agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the country of that court.” [Emphasis ours]

Unanimously dismissing the appeal, the Court of Appeal held as follows:

“From the entire processes filed by the appellant both in England and the court below, appellants failed to challenge the validity of the processes filed by the respondent’s before the original court in England, and the law is settled, that unchallenged averments as in the instant case are deemed to be established and admitted by the party whose duty it is to controvert same, See: Ajomale v. Yaduat (2) (1991) 5 NWLR (Pt 191) 266 Olori Motors v. UBN (1998) 6 NWLR (Pt 554) 493.

It is therefore without doubt, that the appellant submitted voluntarily to the jurisdiction of the High Court of England, the consent judgment of the High Court of England is therefore registrable in Nigeria; I therefore resolve this issue in favour of the respondent.

It is clear to me that, appellant adopted undisguised devise to render the victory of the respondent hollow, barren and of no slightest utilitarian value, a successful party is entitled to full benefit of his victory.”

Counsel:

A.M. Makinde with E. A. Udeolisa for the Appellant

A. Olawole for the Respondent.

This summary is fully reported at (2014) 2 CLRN

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