CONFLICT OF LAWS IN NIGERIAN APPELLATE AND APEX COURTS: A BIENNIAL CRITICAL ASSE

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The paper analyzes decisions of the Nigerian Court of Appeal and her Supreme Court on the subject area of conflict of laws, the author believing that the most potent method of effecting change in judicial attitude is by continuously discussing judicial decisions and highlighting perceived errors of the courts. The paper critically analyzes the decisions during this period on choice of jurisdiction, the effect of non-compliance with sections 97, 98 and 99 of the Sheriffs and Civil Process Act as well as the vexed issue of implying constitutional limit to the jurisdiction of the state high courts in entertaining out of state tort cases. The paper also discusses two cases decided during the period on carriage by air and by sea respectively, both of which endorse the primacy of the relevant choice of law and choice of jurisdiction rules enacted in domesticated treaties. Finally, the paper critically reviews two decisions pronounced during the period on enforcement of judgment and proffers informed comments on the indexing style of law reporters and how this has negatively affected researching this subject through nigerian case law.

The Warsaw Convention 1929 was ratified and domesticated by the UK and its application extended to Nigeria by an order in council―the Carriage by Air (Colonies. Protectorates and Trust Territories) Order 1953. The Convention prescribes choice of jurisdiction rules and the governing law of disputes arising under a carriage by air relationship thus making this subject one of the few areas when treaty supplant municipal law as source of both internal law (lex fori) and the conflict rules of the lex fori. Whilst this position has never been in doubt in this country, attempt was made at some point to challenge the continuous relevance of the convention within the municipal legal system of Nigeria because it was omitted in the compilation of the 1990 Laws of the Federation. In Ibidapo v. Lufthansa Airline,69 the Supreme Court, per Wali JSC, said Order 53 had not been repealed, the Convention remained an existing law under Nigeria municipal legal system.

In the case of carriage by sea, the Carriage of Goods by Sea Act was enacted to fulfill the obligations acquired on behalf of Nigeria by the UK’s signature and ratification of the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Hague Rules), and Protocol of Signature.70

This legislation is also an existing legislation, but governs only outward carriage from Nigeria. As far as any choice of jurisdiction rules contained therein is concerned, the Act must now be subject to Section 20 of the admiralty Jurisdiction Act 1991. Otherwise, the statute is the determinant of both choice of jurisdiction and governing law of a contract of carriage by sea from Nigeria. However, a contract of carriage by sea from another country to Nigeria may also be governed by the Hague rules 1924 if by a clause paramount71 in the bill of lading the parties chose the rules or if

The Court of Appeal also held that by Section 315 of the 1999 Constitution, the Convention is still an existing law in this country, relying on the Supreme Court decision in Ibidapo v. Lufthansa Airlines.73

In the case of JFS Investment Limited v. Brawal Line Limited & 3

Ors74 the consignee of a contract of carriage by sea from Germany to Nigeria sued the carriers for damage to his consignment. The action was commenced well over the one year time limit allowed under the Hague Rules for filing such action. The Defendants therefore pleaded limitation of time which the court of first instance upheld in limine. The appeal of the appellant to the Court of Appeal also failed whereupon he appealed to the Supreme Court. His counsel argued that German law but not the Hague Rules ought to determine the question of limitation. He did not however plead or prove that German law was any different from the provision of the Hague Rules applicable in Nigeria. The contract of carriage also has a paramount clause.

In dismissing the Appeal the Supreme Court, per Adekeye JSC said75:

At common law a foreign judgment is enforceable by fresh action taken at the forum upon it.81 The common law procedure does not discriminate between foreign judgments on the basis of the court issuing them but enjoins the forum court to enforce them, without allowing the defendants/judgment debtors to go into the merits of the cases all over again. Of course, this latitude is subject to some conditions, key among which is that the foreign court must have been seized of jurisdiction in the“international” sense as understood at common law82 In 1920, the Parliament of the United Kingdom enacted the Administration of Justice Act which introduced the registration regime for foreign judgments on the basis of reciprocity between Britain and her colonies. Each of the colonies in turn enacted identical regime as between each colony and Britain and as between each colony and the other colonies. Nigeria’s equivalent of the English 1920 Act is the Reciprocal Enforcement of Judgment Ordinance.83 Part I of the Ordinance apply automatically to England, Ireland, and Scotland84 thus enabling judgments obtained from these countries to be registered in this country. On the other hand, the Governor-General was empowered to extend by proclamation Part I of the Ordinance to any other

part of the commonwealth.85 Judgments obtained from such countries could not be registered unless the Governor-General extends the Ordinance to those countries. The Governor-General made proclamations pursuant to Section 5(1) extending the 1958 Ordinance to certain countries including Sierra Leone, Gambia, Ghana, Jamaica, Trinidad & Tobago, etc.86

In 1933 the UK Parliament enacted another statute on registration of foreign judgment which was intended to extend the registration regime to judgments obtained from other countries outside the commonwealth. The coming into force of a registration regime of enforcement between the UK and a non-commonwealth country was to be subject principally to the conclusion of bilateral treaties between the UK and that non commonwealth country. Upon the conclusion of such bilateral treaty which guarantees that UK judgments would enjoy identical treatment in the courts of the foreign country, “His Majesty” will publish an order extending the registration regime to foreign judgments obtained from specified courts of such country.87 Again, commonwealth countries in turn enacted identical legislation.88

The Nigerian equivalent of the 1933 Act was enacted on the 1st day of February, 1961 and is titled Foreign Judgments (Reciprocal Enforcement) Act.89 It enacts exactly the same policies as the other commonwealth legislative equivalents of the 1933 Act. Unfortunately, unlike the other commonwealth countries,90 the designated authority91 in Nigeria has not

Notwithstanding any other provision of this Act―

(a) a judgment given before the commencement of an order under section 3 of this Act applying Part I of this Act to the foreign country where the judgment was given may be registered within twelve months from the date of the judgment or such longer period as may be allowed by a superior court in Nigeria.

UK Court’s rules99 seeking recovery of outstanding together with interest. The appellant, though served did not enter appearance to the case until default judgment in the sum of 180,530.00 UK pounds and costs assessed at 71,800 UK pounds was issued against him. The appellant filed an ex parte application at the High Court of Oyo State, Ibadan to register the judgment, which the trial court granted. The respondent then applied to set aside the registration on the ground that the English court lacked jurisdiction as he was not served in England and did not make voluntary submission to the case. The trial court refused this application claiming that he had acknowledged service.

Upon appeal the Court of Appeal allowed the appeal. The appellant now appealed to the Supreme Court, which affirmed the decision of the Court of Appeal and dismissed his appeal. In so doing the Supreme Court referred to Section 3(2) of the 1922 Ordinance which provides inter-alia that no judgment shall be ordered to be registered under the ordinance if―

In the light of these provisions of the two pieces of legislation, it was easy for the Supreme Court to conclude that the Court of Appeal was right to have overruled the trial court.

The Supreme Court and the Court of Appeal did better in this case than the Court of Appeal in the earlier case of Teleglobe America Inc. v. 21st Century Technologies Ltd,100 where a judgment debtor had objected to the registration of an American judgment on the ground that it was not properly served with the process of the U.S court in line with Nigerian Law, a ground which admittedly was wrongly couched.101 The High Court had upheld this objection but on appeal, the Court of Appeal had overruled the trial court on the equally wrong ground that the Nigeria court cannot address the issue of service as that had been resolved by the U.S Court. Going by the judgment in the Grosvernor case instant it is clear that the Foreign Judgment(Reciprocal Enforcement) Act 1961 under which the Application was wrongly brought, argued and granted102 permits the court to set aside registration on ground that the U.S court had no jurisdiction. Clearly, it was open to the judgment debtor to raise issues which Nigerian rules on enforcement of foreign judgment permits it to raise irrespective of whether American opinion had been expressed on the issue.

Both at common law and under the two statutes,103 the jurisdiction of the foreign court must have been based on either voluntary submission or proper service104 and the fact that the issue was raised and resolved in the case at least proves that submission was not voluntary. A case where the judgment debtor lost his challenge of the jurisdiction of the foreign court is not different from a case where the judgment debtor simply refused to appear to the writ of the foreign court. The former will clearly negative

Section 6(2)(i) above as such appearance was for purpose of contesting jurisdiction.

The real issue therefore in both the Teleglobe and Grosvernor cases is whether assumed jurisdiction by service abroad (service in Nigeria) of the court’s writ, in the absence of voluntary submission is a basis of jurisdiction recognized by Nigerian enforcement or registration of judgments rules. The Supreme Court and the Court of Appeal were right in the latter case to answer the question in the negative, whilst the Court of appeal was wrong in the former case to answer the question in the positive. It is therefore kudos to the appellate courts.

The only possible flaw in the judgment is that the court by reviewing the provisions of both the 1922 and 1961 legislation seems to suggest that either could apply. But as the author has said earlier, the 1961 Act is inchoate for all intents and purposes until the ministerial order has been made. Besides, when the 1961 Act becomes applicable to a judgment from the commonwealth, the 1922 Ordinance will cease to apply to such judgment.105 The commonwealth model forecloses the enjoyment of double portion of the two pieces of legislation.

There may be no need for any bilateral treaties to extend the 1961 Act to judgment from the UK and other commonwealth countries to which the 1922 Ordinance has already been extended, but still the order is necessary.106

In the case of Mrs Foluke Mudashiru v. Mr. Ibrahim Abdulahi &

4Ors107 the confusion arising from application of dual registration regime was apparent. The appellant had vided an ex parte motion registered a judgment, she obtained in the Chancery Court of England and had on that basis obtained a writ of fifa which she executed. The respondents applied to setting aside both the registration and the execution viding a motion on notice and succeeded. The appellant then appealed to the Court of Appeal on a number of grounds under both the 1922 and 1961 legislation. Now a rule requiring that application to set aside must be by petition was made pursuant only to the 1922 Ordinance. Section 6 of the 1961 Act merely prescribes that the judgment debtor may by application seek to set aside the registration of a foreign judgment. The Court of Appeal reasoned that since

Law reporters have continued to make research into this subject through the case laws a nightmare. Whereas all the cases herein reported were decided during this period it is regrettable that only one of them was listed under the subject head of Conflict of Laws108 by the publishers of the famous Nigerian Weekly Law Reports. The case was listed under this subject head in their 2009 Index for the wrong reason that it threw up conflict between domesticated convention and domestic legislation. Apart from the fact that this was not the prominent issue discussed in that case, the issue of the relationship between international law and the municipal law of a country or the effect of domestication of treaties within municipal law of a state is a public, not a private, international law matter.

In their 2009 Index they listed a case that bothered on inconsistency between two pieces of federal legislation under the broad title of Conflict of

Laws.109 In the strict sense of the term a case throwing up inconsistency between legislation that in theory belong to the same legislature or even the same hierarchy cannot be a conflict of laws case. The subject of conflict of laws does not reconcile laws. Rather the subject applies connecting factors to a cause of action or set of facts to determine applicable law or legal systems. The conflict in private international law is usually spacial and horizontal, not vertical―as in conflict between state and federal laws, or between two federal or state statues both potentially applicable to a case. A typical conflict of laws case will require choice between Ghanaian and Nigerian laws or venues as the case may be or between the law or venue as the case may be of Oyo or Ogun States. Enforcement of foreign judgment is clearly a matter of the conflict of laws but Nigerian Law Reporters prefer either to treat it as a separate subject head110 or lump it with issues listed under some obscure subject head.111

prescribe localization factors for the exercise of inter-state jurisdiction and to the writ rule which confers on every court which writ has been properly served within its territory jurisdiction in personam over every cause of action submitted to it. On enforcement of foreign judgment, the courts need to understand that there is a commonwealth model for enforcement of foreign judgment by registration and that it was not by accident that we have retained two extant pieces of legislation on the subject. The Supreme Court needs to revisit its construction of Section 10(a) of Cap.F35 Laws of the Federation, 2004 as it clearly amounts to putting the cart before the horse to apply that statute to the registration of any judgment before the ministerial order is made. Until the order is made the apex court must insist on registration under the 1922 Ordinance where applicable or enforcement by common law action.