3PLR – KABO AIR LIMITED V. THE O’ CORPORATION LIMITED

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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KABO AIR LIMITED

V.

THE O’ CORPORATION LIMITED

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 20TH DAY OF JUNE, 2014

CA/K/501/2013

LN-e-LR/2002/60 (CA)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

THERESA NGOLIKA ORJI-ABADUA, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

TIJJANI ABUBAKAR, JCA

BETWEEN

KABO AIR LIMITED Appellants

AND

THE O’ CORPORATION LIMITED Respondents

REPRESENTATION

Mr. F. Asekome For Appellant

AND

Mr. K. Amodu For Respondent

MAIN ISSUES

DEBTOR AND CREDITOR LAW:– Judgment debtor – where order secured in foreign court – Whether can be registered and enforced in Nigeria – Relevant considerations

DEBTOR & CREDITOR:- Foreign judgment – Where incapable of enforcement in the country of origin on account of the absence of assets of the judgment debtor – Whether basis to deprive the judgment creditor of the right to register and enforce the foreign judgment in Nigeria under Sections 3 and 4 of Foreign Judgment (Reciprocal Enforcement) Act, 1961, Cap. 152, Laws of the Federation of Nigeria, 1990

DEBTOR AND CREDITOR – REGISTRATION AND ENFORCEMENT OF FOREIGN JUDGMENT: The law applicable to the proceedings for the registration of foreign judgment in Nigeria under Section 3 (2) of the Reciprocal Enforcement of Judgment Act, 1922 Cap. 175 – Proper procedure for setting aside a registered foreign judgment for the recovery of judgment debt – Court with jurisdiction for registering foreign judgment relating to aviation/aircraft matters

AVIATION LAW:- Exclusive jurisdiction of Federal High Court to hear matters relating to aviation/aircrafts – Whether extends to jurisdiction to register foreign judgment relating to aircraft/aviation – Section 251 (1) (k) of the 1999 Constitution

CONSTITUTIONAL LAW – FAIR HEARING RIGHTS:- Where a court decides a matter before it by applying a rule of law/legislation which it had not afforded parties opportunities to address it on – Whether amounts to denial of fair hearing – Section 36 (1) of the 1999 Constitution

INTERNATIONAL LAW – ENFORCEMENT OF FOREIGN JUDGMENT IN NIGERIA:- Proper procedure for registering an enforcing a foreign judgment in Nigeria – Court with jurisdiction to register a foreign judgment relating to aviation in Nigeria – How treated

PRACTICE & PROCEDURE – ACTION – PETITION AND MOTION ON NOTICE: Distinction between a petition and a motion on notice – Implication for matters to which Rule 12 of the rules of the Federal High court made pursuant to Section 6 (1) of the Reciprocal Enforcement of Judgment Act, 1922 Cap. 175 apply

PRACTICE & PROCEDURE – ACTION – PETITION AND MOTION ON NOTICE: Petition as an originating process – Motion on notice as an interlocutory application – Finality of a matter resolved by way of a petition compared to one brought via a motion on notice – Exceptions to the rule that matters brought via motion on notice is interlocutory – Judicial review or fundamental rights proceedings –

PRACTICE & PROCEDURE – COURT – FEDERAL HIGH COURT: Section 6 (1) (3) (5) (c), of the 1999 Constitution – Jurisdiction of the Federal High Court as a superior court of record to register foreign judgments in Nigeria – Enabling Statute – Section 2 and 4 of the Act

PRACTICE & PROCEDURE – COURT – FEDERAL HIGH COURT: Exclusive jurisdiction to entertain matters pertaining to aviation/ aircraft – whether extends to registration foreign judgments arising therefrom

PRACTICE & PROCEDURE – COURT – RAISING ISSUES SUO MOTU: When a court can take an issue and decide on it suo motu without hearing parties – Where the issue relates to the court’s own jurisdiction – Where both parties are/were aware or ignored a statute which may have a bearing on the case undr Section 73 of the Evidence Act – When on the face of the record serious questions of the fairness of the proceedings is evidence – Whether such cases does not amount to denial of fair hearing

PRACTICE & PROCEDURE – EVIDENCE – JUDICIAL NOTICE: Rule that a Court can take judicial notice of an enactment and any subsidiary legislation – Whether entitles court to suo motu raise the issue of applicability of a statute and pronounce thereon without giving parties opportunity to address court – Ordinance of 1958 (now cap. 152 LFN 1990) (supra) vide Section 122 (2) (a) of the Evidence Act, 2011, (former S. 74 (1) (A) of the Evidence Act, 2010 –Effect

PRACTICE & PROCEDURE – JUDGMENT AND ORDER – FOREIGN JUDGMENT:- Proper procedure for setting aside a registered foreign judgment – Whether by petition and not by motion on notice – Whether one brought by way of motion on notice incurably defective

PRACTICE & PROCEDURE – COURT – RULES OF COURT: Effect of compliance or non-compliance with the rules of Court – When deemed incurably fatal to an action – Whether court has inherent jurisdiction to pronounce on its lack of jurisdiction due to non-compliance with Rules of Court

INTERPRETATION OF STATUTE:- Reciprocal Enforcement of Judgments Act, 1922, Cap. 175, Laws of the Federation of Nigeria and Lagos, 1958 and the Foreign Judgment (Reciprocal Enforcement) Act, 1961, Cap. 152, Laws of the Federation of Nigeria, 1990 – Interpretation and application

MAIN JUDGMENT

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): This is an appeal from a ruling/decision of the Federal High Court sitting in Kano (the court below) dismissing an application to set aside registration of foreign judgment of USD 4,670,861 plus interest of 25% per annum entered in favour of the respondent against the appellant by the High Court of Justice of The Gambia on 3.07.2000.
The pith of the dispute was that the respondent successfully moved the court below on an ex parte application for registration of the judgment of the High Court of The Gambia out of time. The appellant was served with the order of the registered judgment after its registration. Some six months after service of the order of registration of the foreign judgment on the appellant, the respondent commenced garnishee proceedings at the Federal High Court Lagos to enforce the judgment debt of USD 4, 670, 861 with interest of 25% per annum against the appellant. It was at that point in time that the appellant reacted by filing an application at the court below for the registered foreign judgment to be set aside principally on grounds of lack of jurisdiction and breach of the right to fair hearing. The court below found no substance in the application which it dismissed.
Aggrieved with the decision of the court below the appellant filed a notice of appeal containing four (4) grounds of appeal on 28. 11. 13. In compliance with the relevant rules of the Court, the appellant filed a brief of argument on 07. 01. 14, with these issues for determination-

“1. Whether the learned trial judge was not wrong when he failed to apply the provisions of Section 4 (1) (b) of the Foreign Judgment (Reciprocal Enforcement) Act 2004 and Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria to set aside the registration of the Foreign Judgment of The Gambia in suit No. 169/2000 on the 23rd March, 2011?

“2. Whether the registration of the foreign judgment of the High Court of The Gambia vide the Respondent’s petition ex parte dated 3rd December, 2010 was not done in breach of the Appellant’s constitutional right to be heard and whether the trial court was not wrong to have refused to set aside the registration of his foreign judgment in the peculiar circumstances of this matters”.

Placing reliance on Section 4 (1) (b) of the Foreign Judgment (Reciprocal Enforcement) Act Cap. F35 Laws of the Federation of Nigeria, 2004, and Section 251 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution) together with the cases of Okoya V. CBN (2011) 7 NWLR (pt. 124) 465, UAC V. Macfoy (1962) AC 205, KLM Airlines V. Kumskhi (2004) 3 NWLR (pt. 875) 231, Peenok Investment Ltd. V. Hotel Presidential Ltd. (1982) 13 NSCC 477, Kano V. Maikaji (2011) 17 NWLR (pt. 1275) 139, Skye Bank Plc V. Akinpelu (2010) ALL FWLR (pt. 526) 460, Oseni V. Bajulu (2010) ALL FWLR (pt. 511) 813, Madukolu V. Nkemdilim (1962) 1 ALL NLR (pt. 4) 581, Olutola V. University of Ilorin (2004) 15 NWLR (pt. 905) 416, Adeyemi V. Opeyori (1976) SC 31, Julius Berger Nigeria Plc V. Toki Rainbow Community Bank Ltd. (2010) ALL FWLR (pt. 552) 1765, Afribank (Nig) Plc V. Akwara (2006) 5 NWLR (pt. 974) 619, Messers. N. V. Sheep V. The MV “S Araz” (2000) 15 NWLR (pt. 691) 650, Tukur V. Government of Gongola State (1989) NWLR (pt. 117) 517, Onuorah V. KRPC Ltd. (2005) 6 NWLR (pt. 921) 393, Ada V. NYSC (2004) 13 NWLR (pt. 891) 639, NEPA V. Edegbero (2002) 18 NWLR (pt. 798) 29, NDIC V. CBN (2002) 7 NWLR (pt. 766) 272 and Ezomo V. Oyakhire (1985) 1 NWLR (pt 2) 195, the appellant urged on the first issue (supra) that the foreign judgment having been shown by paragraph 2 (e) of the appellant’s affidavit in support of the petition ex parte at the court below and paragraph 5 (f) of the respondent’s counter affidavit against the said motion to be incapable of enforcement in The Gambia where it was pronounced and the court below not having the jurisdiction to register and enforce the foreign judgment, the application to recognise and enforce the foreign judgment should have been refused by the court below.
Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) and the cases of Opara V. NCSB (2011) 8 NWLR (pt. 1248) 1 at 30, Olaye V. Chairman, Medical and Dental Practitioners Investigating Panel (1997) 5 NWLR (pt. 506) 550, Military Governor, Imo State V. Nwauwa (1997) 2 NWLR (pt.490) 675, Saleh V. Monguno (2003) 1 NWLR (pt. 801) 221, Bamgboye V. University of Ilorin (1999) 10 NWLR (pt. 622) 270, Olufeagba V. Abdul-Raheem (2009) 40 NSCQR 684 at 724, Leedo Presidential Motel Ltd. V. Bank of the North Ltd and Anor. (1998) 7 SCNJ 328 at 353 were referred to by the appellant for the submission under the second issue that by entertaining the matter on ex parte application, the court below breached the appellant’s right to fair hearing; that, although rules 1 (i) (2) (5) or 12 (2) of the Enforcement of Judgment Act Cap 175 (Laws of the Federation and Lagos) 1958, permits an ex parte application for the enforcement of a foreign judgment, the said statutory provision is inconsistent with Section 36 (1) of the 1999 Constitution and is to the extent of the inconsistency void vide A. G. Abia State v. A. G., Federation (2002) 6 NWLR (pt. 821) page 1, Ondo State V. A. G., Federation and Ors. (2002) 9 NWLR (pt. 772) 222, Nigerian Union of Electricity Employees and Anor. V. Bureau of Public Enterprises (2010) 41 NSCQR (pt. 1) 611 at 647; that, in any event, the said statutory provision has been repealed by the Foreign Judgment (Reciprocal Enforcement) Act, 2004, and could not have, as wrongly held by the court below, availed the ex parte application brought by the respondent at the court below; that the relevant statutory provision for applications at the court below is the Federal High Court (Civil Procedure) Rules 2009 (the Rules of the court below); that, although rule 12 of the Rules of the court below concerns application to set aside the registration of a foreign judgment, the parties never joined issues on it at the court below, but the court below raised and considered it suo motu by dismissing the application on the premise that it was brought under wrong procedure- Motion on notice, when the issue of procedure is a mere irregularity or technicality which should not have been used by the court below as the basis to dismiss the application vide Ecobank Nigeria Plc V. Gateway Hotels Ltd. (1999) 1 NWLR (pt. 627) 397 at 401, Egbo V. Agbara (1997) 1 NWLR (pt.481) 293 at 303; all the more so the respondent did not raise objection to the procedure at the court below vide Noibi V. Fikolati (1987) 1 NWLR (pt. 52) 619; and that the appeal be allowed on the issues canvassed (supra).

In a brief of argument filed on 07.02.14, the respondent extracted the following issues for determination-

“3.1 Whether the Order of Registration of Foreign judgment of the High Court of the Gambia constitutes a breach of Section 4 (1) (b) of the Foreign Judgments (Reciprocal) Act 2004.

3.2 Whether the Federal High Court has jurisdiction to register the foreign judgment, obtained The High Court of The Gambia.

3.3 Whether the Registration of the foreign judgment by way of Ex-Parte application is contrary to the judgment Debtor/Applicant’s Right to fair hearing.”

Predicating her case on the Foreign Judgment (Reciprocal Enforcement) Act Cap 152 Laws of the Federation of Nigeria 1990, now Cap F35 Laws of the Federation of Nigeria 2004 (the Act) and the Reciprocal Enforcement of Judgment Ordinance Cap 175 Laws of the Federation of Nigeria 1958 (the Ordinance) which is said by the respondent to be extant in virtue of the decision of the Supreme Court in the cases of Macaulay V. R. Z.B. Austria (2003) 18 NWLR (pt. 852) 282 and Witt and Bush Ltd. V. Dale Systems Plc. (2007) 17 NWLR (pt. 1062) 1 at 16 -17, the respondent submitted on the first issue that on the strength of the statutory law (supra) and case law (supra) the registration of the executor monetary foreign judgment by the court below was properly made under Section 3 (2) of the Ordinance and Section 4 (1) (b) of the Act and should not be disturbed vide Akunnia V. A. G., Anambra State (1977) 5 SC 161 at 177 and Ayangada V. O. A. U. T. H. C. M. B. (2001) 7 NWLR (pt. 711) 187 at 197 on the scope of executor judgment including monetary judgment.
The contention of the respondent on the second issue is that the foreign judgment involved an issue of aviation under the below which is also a superior court of record whose jurisdiction is not only derived from Section 251 (1) K of the 1999 Constitution read with Section 7 (k) of the Federal High Court Act, 2004 Sections 2 and 4 (1) of the Foreign Judgment (Reciprocal Enforcement) Act Cap F. 35 Laws of the Federation 2004 (the Act) empowers the court below as a superior court of record to register foreign judgments citing in support of the arguments (supra) the cases of Cameroon Airlines V. Otutuizu (2011) 4 NWLR (pt. 1238) 512 at 537, Mecca-Medina Travels Agency Ltd. V. Cameroon Airlines (1998) 13 NWLR 286 at 291, Kabo Air Ltd. V. Oladipo (1999) 10 NWLR 517, Egypt Air V. Abdullahi (1997) 11 NWLR (pt. 528) 179, Sudan Airway V. Surajo Mohammed Abdullahi (1998) 1 NWLR 156.

The respondent relied on Rules 1 (1) (2) (5) (6) and 12 of the Reciprocal Enforcement of Judgments Rules Cap. 175 Laws of the Federation of Nigeria and Lagos 1958 (the Ordinance) and Order 26 rule of the Federal High Court (Civil Procedure) Rules 2009 (the Rules of the court below) read with the case of Shana – Johnson Ltd. V. Omega Air Limited (2006) 1 NWLR (pt. 960) 1, to contend that after granting the ex parte petition for registration of the foreign judgment, the appellant was served with a copy of the order of registration of the foreign judgment and had the opportunity under Order 26 rule 11 of the Rules of the court below to react to it but neglected to do so after six months (6) of the service of the order on it had elapsed and that it was when the appellant was faced with garnishee proceedings that the appellant suddenly took objection to the registration of the foreign judgment, therefore the appellant’s right to fair hearing under Section 36 (1) of the 1999 Constitution was not infringed and the appeal should be dismissed.
I think the issues highlighted by the appellant are apt for discussion. The said issues also cover the issues formulated by respondent. I would abide by the appellant’s issues for the discussion.
The Federal High Court is listed as a superior court of record in Section 6 (1) (3) (5) (c), of the 1999 Constitution, as altered. In fact Section 6 (3) and (5) (c) of the 1999 Constitution as altered, specifically calls the Federal High Court a “Superior court of record”. Section 2 of the Act defines “superior court in Nigeria” to mean “the High Court of a State or of the Federal High Court.” While Section 4 of the Act authorises a superior court in Nigeria within the context of Section 2 thereof to register foreign judgments.
In my respectful opinion, by dint of Section 6 (1) (3) (5) (c) of the 1999 Constitution, as altered, and Sections 2 and 4 of the Act, the court below (Federal High Court Kano) had the jurisdiction to register the foreign judgment of the High Court of Justice of the Gambia.
Also, the transaction that led to the foreign judgments in the litigation at the High Court of Justice of The Gambia involved an aircraft which is within the exclusive jurisdiction of the court below (The Federal High Court) by virtue of Section 251 (1) (k) of the 1999 Constitution, as altered read with the cases of Cameroon Airlines v. Otutuizu (supra) Mecca – Medina Travels Agency Ltd. v. Cameroon Airlines (supra), Kabo Air Ltd. v. Oladipo (supra), Egypt Air v. Abdullahi (supra), and Sudan Airway v. Abdullahi (supra) cited by respondent’s learned counsel in light of the above, I agree with the respondent’s learned counsel that the court below (Federal High Court) has the jurisdiction to register foreign judgments in Nigeria.
The foreign judgment was money judgment and is registrable under Section 3 (2) of the Act as an executor judgment or a judgment capable of enforcement by writ of execution as it had settled the respective rights of the parties by awarding specific amount of damages to the respondent vide the cases of Akunnia v. A.G., Anambra State (supra) and Ayangade v. O.A.U.T.H.C.M.B. (supra) cited by the respondent. The argument by the appellant that the foreign judgment was incapable of enforcement in The Gambia on account of the absence of assets of the judgment debtor there would not, with deference to the appellant, deprive the judgment creditor of the right to register and enforce the foreign judgment in Nigeria under Sections 3 and 4 of the Act, so long as the judgment debtor has assets in Nigeria. Again, I agree with the respondent that the foreign judgment is registrable in Nigeria.
That the ordinance is extant and complements the Act on the registration/recognition and enforcement of foreign judgments has been firmly settled by the Supreme Court in the case of Marine and General Assurance Co. Plc. v. Overseas Union Insurance Ltd. and Ors. (2006) 4 NWLR (pt. 971) 622 at 641 – 642 thus –

“The law applicable to the proceedings for the registration of foreign judgment in Nigeria therefore is the Reciprocal Enforcement of Judgments Act, 1922, Cap. 175, Laws of the Federation of Nigeria and Lagos, 1958 and the Foreign Judgment (Reciprocal Enforcement) Act, 1961, Cap. 152, Laws of the Federation of Nigeria, 1990.”
See also the Supreme Court cases of Witt and Bush Ltd. v. Dale Power Systems Plc. (supra) and Macaulay v. R.Z.B. (supra) cited by the respondent. I would conclude on these issues that the court below (Federal High Court) had the jurisdiction to register the foreign judgment from The Gambia which is a registrable judgment and can be so registered under the Ordinance and the Act taken together.
Now to the procedure regulating the registration of foreign judgment in Nigeria. The court below held in page 135 of the record on the issue thus –

“One fundamental issue that needs to be mentioned in this ruling is the fact that the powers of court to set aside the registration of a foreign judgment is provided by rule 12 of the Rules of Court made pursuant to Section 6 of the Reciprocal Enforcement of Judgment Act, Cap 175, Laws of the Federation of Nigeria, 1958. The rules provide that the Judgment debtor may apply by petition to a judge to set aside the registration of the Foreign Judgment in the case of I.F.C. VS. D.S.N.L OFFSHORE LTD. Supra at page 610 holding 1, the Court held as follows:-

“In the instant case, where the Judgment Debtor/Respondent applied by motion on notice to set aside the registration of the foreign judgment, they were wrong to have done so and the trial court had no jurisdiction to hear the application.”

The case of International Finance Corporation (I.F.C.) v. D.S.N.L. Offshore Limited and Ors. (2008) 9 NWLR (pt. 1093) 610 or (2008) All FWLR (pt.403) 1264 was relied upon by the court below for the proposition above. It is a decision of this Court (Port Harcourt Division) empanelled by a powerful Bench (Galadima, J.C.A., (now J.S.C.), Thomas, J.C.A., (now of blessed memory), and Rhodes – Vivour, J.C.A., (now J.S.C.)). Before I go into the case, it is necessary to sort out the preliminary complaints by the appellant against the use made suo motu by the court below of the case which the appellant complained was wrong.

True, the court below raised and decided the issue suo motu without getting any input from the parties. The issue had to do with rule 12 of the Rules of court made pursuant to Section 6 of the Ordinance (Reciprocal Enforcement of Judgment Act, Cap. 175, Laws of the Federation of Nigeria, 1958 retained by Cap. 152 Laws of the Federation of Nigeria, 1990) as construed by the Court (Port Harcourt Division) in the case of I.F.C. v. D.S.N. L. Offshore Ltd. (supra) as it applied to the case at the court below.

The appellant argued that the failure to follow the procedure for filing an application to set aside a registered judgment is a matter of irregularity, especially if it was not opposed by the adverse party. And that the court below was wrong to raise the issue suo motu and decide it without giving the parties the opportunity to be heard on it.

In my respectful opinion, a court can take judicial notice of an enactment such as the Ordinance of 1958 (now cap. 152 LFN 1990) (supra) vide Section 122 (2) (a) of the Evidence Act, 2011, (former S. 74 (1) (A) of the Evidence Act, 2010 or 4th Edition) which provides-

“The court shall take judicial notice of the following facts-

(a) all Laws or enactments and any subsidiary Legislation made thereunder having the force of law now and heretofore in force, or hereafter to be in force in any part of Nigeria”
See Finnih V. Imade (1992) 1 NWLR (pt. 219) 511.

In addition, a court can take an issue and decide on it suo motu in the circumstances stated in the case of Blessing Toyin Omokuwajo V. Federal Republic of Nigeria (FRN) (2013) 9 NWLR (pt. 1359) 300 at 332 per the illuminating judgment prepared by Rhodes – Vivour, J.S.C., thus-

“The need to give parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if:

(a) the issue relates to the court’s own jurisdiction.

(b) both parties are/were aware or ignored a statute which may have a bearing on the case. That is to say where by virtue of statutory provision the Judge is expected to take judicial notice. See Section 73 of the Evidence Act.

(c) when on the face of the record serious questions of the fairness of the proceedings is evidence.” (my emphasis).

The underlined or emphasised portion of the judgment of Rhodes – Vivour, J.S.C., (supra) squares with the approach adopted by the court below and justified its discussion of the issue it had raised suo motu in the course of the ruling and cannot, with respects, be impugned, and I most respectfully so decide.

The appellant’s contention that the procedure of commencing the matter by motion on notice instead of by petition was a mere irregularity and that having been acquiesced in or waived by the respondent at the court below it was no longer in issue appears untenable. See I. F. C. v. D. S. N. L. (2008) ALL FWLR (pt. 403) 1264 at 1287 – 1289 per the lead judgment of Galdima, J. C. A., (now J. S. C.), where His Lordship treated the issue as a matter of due process with jurisdictional ramification or thrust which cannot be waived and; in holding so the lead judgment relied on the earlier cases of Madukolu V. Nkemdili (1962) 2 SCNLR 341, Obasanjo V. Yusuf (2004) ALL FWLR (pt 213) 1884 (2004) 9 NWLR (pt. 877) 144 at 221, Jack V. University of Agriculture, Makurdi (2004) ALL FWLR (pt. 200) 1506 or (2004) 5 NWLR (pt. 865) 208 at 229 -230, Kankara V. C. O. P. (2002) 13 NWLR (pt. 785) 596 at 611, Omon V. Omon (2004) 13 NWLR (pt. 889) 45 and U. B. A. V. Ekpo (2003) 12 NWLR (pt. 834) 332.
In particular, the lead judgment stated in page 1289 of the law report-

“If the prescribed procedure, therefore, has not been followed, no proceedings have been instituted in accordance with the law. It is requirement under the law that enables the court to exercise jurisdiction. The rules of court must prima facie be obeyed. The courts have inherent jurisdiction to ensure compliance with the rules by litigants. The court will always strike out any process not filed in accordance or is compliance with the relevant rules.” (my emphasis).

See also the instructive judgment of Rhodes – Vivour, J. C. A., (now J.S.C.) in pages 1297 – 1298 of the Law report.

The prescribed procedure for setting aside a registered foreign judgment is by petition not by motion on notice.

The gulf between a petition and a motion on notice was comprehensively dealt with by the lead judgment in the case of I. F. C. v. D. S. N. L. Offshore Ltd (supra) in page 1290 of the law report which I gratefully copy below-

“I will now recapitulate the main points in this issue.

The learned trial Judge found that the respondents brought their application to set aside the registered judgment by way of motion on notice, whereas applicable law, that is, rule 12 of the rules of court made pursuant to Section 6 (1) of the Reciprocal Enforcement of Judgment Act, 1922 Cap. 175 for the 1922 Act provide that it shall be brought by way of a petition.

There is a world of difference between a petition and a motion on notice. A petition is an originating process whereas a motion on notice is an interlocutory application. Once a claim in a petition is resolved, the resolution is final and the claim can only be subject to an appeal whereas a motion on notice is normally interlocutory; except in the cases of judicial review or fundamental rights, the resolution of a claim in a motion on notice normally assumes that a further step is still to be taken. In any event, the learned trial Judge found that the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 under which the respondents brought their application did not provide for use of a motion on notice. It is desirous then that the respondents’ application was a case of an application under a non-applicable law and under a non-applicable procedural rule.

It is in view of the above reasoning I must hold that the learned trial Judge erred in law in entertaining the respondents’ application to set aside the registration of the English Judgment in claim No. 2005 folio 68, when it was obvious that due process had not been complied with in bringing the application, and once this is the case, other arguments are non-issues. I accordingly, resolve the first issue in favour of the appellant.”

See also the useful judgment of Thomas, J. C. A., (of blessed memory) in page 1296 of the law report.

Although the court below dismissed the application on the merit, having regard to its discovery that the appellant was bound to bring the application by way of petition, not by motion on notice, vide rule 12 of the rules of court made pursuant to Section 6 (1) of the Reciprocal Enforcement of Judgment Act, 1922 Cap. 175 (now pursuant to Section 5 (1) of the Foreign Judgments Reciprocal Enforcement) Act Cap. 152 LFN 1990), which was applied by the Court (Port Harcourt Division) in the case of I. F. C. v. D. S. N. L. Offshore Ltd (supra) to which the court below referred and which is binding on the court below, the appropriate order the court below should have made was to strike out the application, not to dismiss it. I would dismiss the appeal but vary the final order of the court below from dismissal of the application to striking out of the application which, for clarity, is hereby struck out for offending due process in the incurably defective commencement of the matter at the court below.

Parties to bear their costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

TIJJANI ABUBAKAR, J.C.A.: I had the opportunity of reading in advance the judgment prepared by my learned brother Ikyegh JCA, with which I entirely agree and adopt as my judgment in this appeal.