3PLR – NAHMAN V. WOLOWICZ
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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NAHMAN
V.
WOLOWICZ
COURT OF APPEAL
(LAGOS DIVISION)
THURSDAY, 14TH MAY, 1992
CA/L/207/88
3PLR/1993/76 (CA)
OTHER CITATIONS
[1993] 3 NWLR (PT. 282) 443
BEFORE THEIR LORDSHIPS
UMARU ATU KALGO, J.C.A. (Presided and Read the lead Judgment)
NIKI TOBI, J.C.A.
EUGENE CHUKWUEMEKA UBAEZONU, J.C.A.
REPRESENTATION
Chief A Ogunsanya SAN (with him, L Ogunsanya (Miss) – for the Appellant.
Professor A Adesanya (with him O Adesina, O Fatunla) – for the Respondent.
MAIN ISSUES
BANKING AND FINANCE- Promissory note
PUBLIC LAW AND JURISRDENCE- Conflict of laws
INTERNATIONAL LAW – Private international law
The respondent claimed jointly and severally against the appellant and his father the sum of N342,000.00 being a friendly loan granted the appellant and the 1st defendant, at their request, sometime in 1985. The respondent further claimed 13% interest on the said sum until judgment and thereafter at 6% until the judgment debt is liquidated.
The respondent filed his writ of summons along with the statement of claim on 20th February, 1987. Thereafter, the respondent sought and obtained the leave of the court to effect service of the court’s processes out of jurisdiction on the appellant who was ordinarily resident in England at the material time. The appellant was duly served on the 13th Mar, 1987. In the same vein, the 1st defendant was served with the court’s processes but he merely filed memorandum of appearance on 18th March, 1987.
The appellant and the 1st defendant (who did not appeal) failed to appear in court or file any statement of defence to the action within the statutorily stipulated period. Consequently the respondent brought an application against the appellant for judgment as per his claim. In response, the appellant filed a counter affidavit challenging the jurisdiction of the trial court on the ground that the promissory note acknowledging the loan of N342,000.00 was executed in England where he resided at the material time. In effect, that the trial court had no jurisdiction to entertain the suit. The court found for the respondent and held that it had jurisdiction to entertain the suit. Dissatisfied with the court’s decision the appellant appealed to the Court of Appeal contending that since the acknowledgment of the debt was made in England the learned trial Judge in Lagos had no jurisdiction to try the case.
{Issues}
- Whether the trial court had jurisdiction to determine the matter
- Whether the trial court was right in law to strike out paragraph 4(i) (iv) and (vi) of the respondent’s counter affidavit.
{Held – Summary}
Unanimously allowing the appeal
- The issue of jurisdiction is very fundamental and is a priceless commodity in the judicial process. It is the fulcrum, center pin or the main pillar upon which the validity of any decision of any court stands and around which other issues rotate. It is conferred by law and not by the parties appearing before the court. It cannot properly be assumed or implied
- A situation may arise where two courts in the same country as respects municipal law or in different countries as respects international law, have concurrent jurisdiction in a matter, Where this happens then any of them can exercise jurisdiction. However, once on e of them exercises jurisdiction, the other cannot exercise jurisdiction in the same mater. The jurisdiction of the second court must, as a matter of law or of operation of law, abate. Where however the second court still arrogates to itself jurisdiction, the action will be liable of the equitable relief of estoppel per rem judicatam, if the matter is finally disposed of.
- Before a party can call upon a court of law to invoke the principles of private international law, the onus is on the party to prove hat there exists a real, and not merely an apparent conflict between two sets of municipal laws. This is because the principle is not and cannot be invoked for fun. Thus, it is only when that burden is discharged that the principles of private international law qua conflict of laws can play the role of an umpire to resolve or reconcile the conflict.
- The basic aim of private international law is to resolve conflicts of municipal or domestic laws and the international level. It is good law that all sovereign nations zealously and jealously guide and guard their sovereign status or sovereignty in international law. However, since no country can operate in isolation or as an island of its own, international diplomacy and international trade an commerce necessitates the formulation of rules of private international law to resolve any conflicts in the different municipal laws.
- A promissory note qualifies as an agreement between two or more consenting parties, and it must therefore be construed in accordance with the laid down rules for the construction of agreements.
Lead judgement Delivered by Kalgo JCA
In the High Court of Lagos the Respondent as Plaintiff, claimed against the Appellant and his father as Defendants jointly and severally.
“the sum of N342,000.00 being a friendly loan made to the Defendants in Lagos by the plaintiff at the Defendants request sometime in 1985 which said loan the Defendants have neglected, failed and/or refused to pay in spite of repeated demands by the Plaintiff.”
The Respondent also claimed interest at the rate of 13 percentum on the said sum until judgment and thereafter at 6 per centum until the judgment shall have been satisfied.
At the time of filing the writ of summons for the said claim, on the 20th of February, 1987 the Respondent also filed a ten paragraph Statement of Claim.
There were two defendants at the trial. The 1st Defendant who is the father of the Appellant did not appeal in this matter. The 1st Defendant who was at all material time resident in Lagos was duly served with the writ of summons and the Statement of Claim, he filed a memorandum of appearance dated 18th March, 1987 and entered an appearance in the trial Court accordingly. The Appellant, who was the 2nd Defendant, was ordinarily resident in England at the material time. The Respondent therefore sought and obtained leave of the trial Court to serve him with the Court processes out of jurisdiction in England and he was duly served on the 13th of March, 1987.
The Appellant and the 1st Defendant thereafter failed to appear in court or file any Statement of Defence to the action and on the 2nd of July, 1987 the Respondent filed a motion on notice seeking the order of the trial Court to enter final judgment against the Appellant for failure to enter an appearance and to file a Statement of Defence and also as per his written admission of debt contained in the written acknowledgment dated 12th December, 1985. The application was supported by a 13 paragraph affidavit sworn to by Waidi Kasali a law clerk in the Chambers of the Respondent’s counsel.
The Appellant’s counsel was then served with the motion papers. He thereafter filed a memorandum of appearance dated 6th July, 1987 and on the 9th of July, 1987 he also filed a counter affidavit of 7 paragraphs mainly challenging the jurisdiction of the trial court to hear the matter.
The motion was heard by the learned trial Judge on the 9th of October, `1987 and reserved ruling to the 4th of November, 1987 On the 4th November, 1987 in what we called “Judgment” and not “ruling”, the learned trial Judge Adeniji J, found that he had jurisdiction to entertain the matter and he also proceeded to enter judgment for the Respondent against the Appellant for the amount claimed.
Dissatisfied with the Judgment the Appellant filed in this Court a Notice of Appeal dated 10th November, 1987 against the judgment on 2 grounds of appeal.
The parties counsel filed and exchanged briefs of argument in accordance with the rules of this Court. In the Appellant’s brief he formulated the following issues for determination in the Appeal:
(1) Whether a Promissory Note made outside Nigeria between parties resident outside Nigeria and expressing payment in Nigerian Currency is sufficient to confer jurisdiction on a Court in Nigeria over the maker who at all material times is domicile outside Nigeria.
(2) Whether or not it is proper for a court to strike out Paragraphs of a Counter Affidavit or to ignore their contents on the one and only ground that the Deponent omits to state that he verily believes in the truth of the informally contained therein and without taking into account the provisions of Sections 83 and 84 of the Evidence Law.
(3) Whether a Court can properly proceed to enter final Judgment in a Suit when the Counter Affidavit before him discloses an illegally in the transaction upon which the claim is founded.
The Respondent set out the issues for determination in the appeal according to his brief thus:
“1. Whether the learned trial Judge was right in striking out paragraph 4(i) to (v) to (vii) of the Appellant’s counter affidavit and whether the court had the power to do so.
- Whether the court had jurisdiction to hear and determine the claim.
- Whether the learned trial Judge was on the facts right in Law in entering judgment for the Plaintiff/Respondent.
Looking carefully at the issues formulated by each counsel in their different briefs, I find that the issues set out in one brief are very similar, in substance with those set out in the other even though couched in difference ways.
Before this court, the learned counsel for the Appellant relied on his brief of argument and the reply brief which he filed on the 10th of August 1988 and 20th of September, 1988 respectively. Learned counsel pointed out that the main plank of the appeal rested on jurisdiction and illegality. He the submitted that as the acknowledgment of debt on page 16 of the record of appeal was made in London, England, the learned trial Judge in Lagos had no jurisdiction to try the case. In respect of paragraph 4 of the counter affidavit which were struck out by the learned trial Judge, counsel submitted that the paragraph was not defective and that the learned trial Judge had no right or power to strike it out as he did. Counsel then referred to Section 87 of the Evidence Act and submitted that all that is required under the provisions of that section is the source and description of the averments and this was covered in the said paragraph 4. Learned counsel further contended that since the primary duty of the court is to do justice in all matters before it, any issue of technicality such as in this case which would slow down the development of the law, should not be encouraged. He therefore submitted that paragraph 4 of the counter affidavit was wrongly struck out.
Learned counsel did not expantiate on the issue of illegality because, according to him the issue was shut out when the learned trial Judge struck out paragraph 4 of the counter affidavit.
Professor Adesanya who appeared for the Respondent also adopted and relief upon his brief of argument filed on the 1st of September, 1988 He began his argument in reply by pointing out that the notice of appeal filed by the Appellant in this case contained only two grounds of appeal and that none of these grounds alleged any issue of illegality and nor was such issue canvassed at the trial. Learned counsel therefore submitted that the Appellant cannot properly raise the issue of illegality at this stage. He then referred the court to page 3 of the Appellants brief and submitted that issue 3 there should be struck out together with all the arguments relating thereto. He cited the case of Idika v Erisi (1988) 2 NWLR (pt 78) 563 in support of his contention.
On the issue of jurisdiction, Prof. Adesanya submitted that on the documentary evidence before the learned trial Judge, issues were joined as to the point of jurisdiction and that the learned trial Judge was right in resolving it the way he did. Learned counsel contended that the whole judgment in the case was based on the written admission of the loan (Exhibit B) by the Appellant and that it was done pursuant to Order 28 r. 6 of the High Court of Lagos (Civil Procedure) Rules 1972 and not under Order 10 of the same rules.
On paragraph 4 of the counter affidavit which was struck out by the trial Judge, Learned counsel made 2 separate submissions. As to paragraph 4 subparagraphs (1) – (v), he pointed out that the deponent did not state that Mark Feldmann & Co was the information and to that extent the averment is hearsay. And even if Mark Feldmann is the informant, the deponent did not state that he believed the information to be true as is required by S 85 of the Evidence Act, Therefore, the averments in paragraph 4 sub paragraphs (i) – (v) cannot stand all, learned counsel submitted. For similar reasons, and more particularly in accordance with the decision in the case of Fed. Military Government v Sanni (No 2) (1989) 4 NWLR (pt 117) 624, Learned counsel submitted that paragraph 4 sub paragraphs (vi) and (vii) were properly expunged and struck out. Counsel further submitted that even if the learned trial Judge was wrong to have struck out paragraph 4 of the counter affidavit, the contents of that paragraph could not oust the jurisdiction of the trial Court particularly i view of the provisions of Order 1A rule 3 of the High Court (Civil Procedure) Rules 1972. Learned counsel also submitted hat from a careful examination of the contents of the written acknowledgment, of the debt in Exhibit B, there is nothing to suggest any illegality in this matter. He finally asked the Court to dismiss the appeal.
In his brief of argument learned counsel for the appellant submitted that the trial Court was wrong to assume jurisdiction as he did by virtue of Order 1A rule 3 of the High Court of Lagos (Civil Procedure) Rules 1972 because according to him the issue of jurisdiction in this case is a matter involving Private International Law an d so no domestic law is applicable. Therefore, he submitted in the brief, that by virtue of S 10 of the Lagos High Court Law, the trial court is bound to apply the provisions of Rules 21 – 24 set out in Dicey &Morris Conflict of Laws 10th Edition, Vol 1 pages 181 196 since this action an action in personam. Counsel submitted that by a combination of the provisions of the said Rules, the learned trial Judge would have no jurisdiction to entertain the matter, since the appellant was resident in England and he did not submit to the jurisdiction of the Court in Nigeria. Learned appellant’s Counsel also argued in his brief that Exhibit ‘B’ being a promissory note made in England is a chose in action and can only be recoverable or enforced where the debtor resides. He therefore submitted that the trial Court had not jurisdiction in the matter.
The two important issues to be determined in this appeal, in my view are:
(a) Whether the trial Court had jurisdiction to determine the matters;
and
(b) Whether the trial Court was right in law to strike out paragraph 4(i) -(iv) and – (vii) of the respondent’s counter affidavit.
The 3rd issue, which concerns illegality depends to a large extent on issue (b) above If issue (b) is answered in the affirmative, then the third issue could not arise as there is no foundation upon which it could stand.
I shall first deal with the issue of jurisdiction as it is very fundamental. there is no doubt that jurisdiction is the main pillar upon which the validity of any decision of any court sands. it is conferred by Law and not by the parties appearing before the court. It cannot properly be assumed or implied (See A G Federation v Sode (1990) 1 N WLR (pt 128) 500 at 541; Osadebay v A G Bendel state (1991) 1 NWLR (pt 169) 525 at 572.
The main argument of the learned counsel for the appellant was centered on the written acknowledgment of the friendly loan which was made in England. He submitted that since it was made in England, Courts in Nigeria have no jurisdiction to adjudicate on it. He relies in Rules 21 – 24 and 76 Dicey &Morris Conflict of Laws 10th Edition Vol which he set out on pages 5-7 of his brief of argument, which he said applied to the Lagos High Court by virtue of Section 10 of High Court Law of Lagos State.
The learned respondent’s counsel on the other hand submitted in his brief and in this court that by Rule 24 of Dicey & Morris above mentioned, both the Court in England and in Nigeria have jurisdiction in this matter and the fact that the High Court of Lagos (Civil Procedure) Rules 1972 makes provision for leave to serve a party out of jurisdiction re enforces his argument. Counsel then submitted that from the wordings of Exhibit ‘B’ the loan was made in Lagos and expressed to be refunded in Nigerian currency, which therefore clearly gives Lagos High Court the jurisdiction to entertain the matter.
In their briefs of argument and before this court, both counsel agreed that this is an action in personam. They also agree without any reservation, that Exhibit ‘B’ the written acknowledgment of the loan on p 16 of the record, was made in England by the appellant.
For a clearer understanding of the situation, I shall reproduce Exhibit ‘B’ verbatim. It reads:-
“NAZIH NAHMAN
7, Longwood Drive
LONDON S.W. 15
12/12/85
Allen Wocowicz
Olmwood
Wiston Hill
Wiston, Surrey
This is to confirm that 1, NAZIR NAHMAN owe MR. ALLEN WOCOWICZ the sum of N342,000.00 (Three hundred and Forty Two Thousand NIGERIAN NAIRA) and I promise to pay said amount on or before the end of February, 1986.
SIGNED
From the wording of Exhibit ‘B’ above and the ordinary meaning of the words used therein it is manifestly clear that the appellant confirmed that he was owing the respondent the sum claimed in this action in Nigerian currency (Naira) and that he intended to pay it on or before the end of February, 1986 By agreeing to refund the debt in Naira, it is my firm view that there is clear intention to give the Nigerian Court jurisdiction to entertain the matter. This does not however, having regard to Rule 24 of Dicey & Morris (supra) deprive the English Courts from exercising jurisdiction if the case was filed there. But since it is first filed in Lagos, Nigeria, Lagos High Court would properly have jurisdiction even though the loan agreement was made in England, since the appellant was properly served outside jurisdiction with the leave of court (See Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (pt 109) 250 at 293; Nwabueze v Obi Okoye (1988) 4 NWLR (pt 91) 664).
Also from the clear meaning of Exhibit ‘B’ it is my humble opinion that since the payment of the loan was to be made in Naira, there is implied intention to perform the contract in Nigeria. this would therefore afford jurisdiction to the Nigerian Court, in this case Lagos High Court and this is further re enforced by Order 1A rule 3 of the High Court of Lagos (Civil Procedure) Rules 1972 which provides:-
“All suits for specific performance or upon the breach of any contract may be commenced and determined in the judicial division in which such contract ought to have been performed or in which the defendant resides
In the present case, the respondent claimed the amount in question by his writ of summons dated 20/2/87 which by Exhibit ‘B’ the appellant promised to pay on or before February, 1986. There is therefore a breach of the agreement to pay by exactly one year. And since the payment was to be made in Naira, that agreement ought to have been performed in Nigeria, or in England where the appellant resides. But since the venue of action is by rule 3 of Order 1A above, in the alternative, the action having been commenced in Lagos, Nigeria, satisfies the provisions of the rule.
The learned trial Judge, in his penultimate paragraph of the judgment complained against, on page 29 of the record explained how he found jurisdiction in this matter. He said:
“By virtue of Exhibit ‘B’ parties intended that the loan shall be repaid in Naira, which is Nigerian currency. By so showing they intend that performance shall be done in Nigeria. thereby conferring jurisdiction on any competent court of jurisdiction in Nigeria. Since this suit is instituted in Lagos, by virtue of and applying and adopting the rules of jurisdiction of conflict of Laws having regard to Section 10 of the High Court Law and Order 1A Rule 3 of the High court of Lagos Civil Procedure Rules, this Court has necessary jurisdiction as the performance is to be executed in Nigeria Currency and I hereby exercise such jurisdiction”.
I cannot agree more with the learned trial Judge that he has jurisdiction to hear this matter and adjudicate upon it. The answer to issue 1 of the appellant’s issue for determination is in the affirmative.
The second issue deals with the striking out of paragraph 4 of the appellant’s counter affidavit. I shall also for clarity set out paragraph 4 of the counter affidavit of the appellant and it reads:
“The Messrs. Mark Feldmann & Co Solicitors further instructed us as follows:-
(i) That the transaction between the Plaintiff and the 2nd Defendant was one of a loan, the agreement for which was made in London for an amount given to the 2nd Defendant in London in Pounds Sterling.
(ii) That the 2nd Defendant has been domiciled in England since 1970 when he left Nigeria for good.
(iii) That he has never since been to Nigeria for a visit
(iv) That the Plaintiff himself is also resident in England
(v) That the hand written note dated the 12th December, 1985 on which the plaintiff has applied for judgment in default against the 2nd Defendant was made and signed in England.
(vi) That this action is an action IN PERSONAM
(vii) That the 2nd Defendant has not in any manner submitted to the jurisdiction of this Honourable Court.
The main plank of the appellant’s argument in court and in his brief is that even if the deponent of the counter affidavit did not state that he verily believed the averments this would only make the paragraph defective and not wholly inadmissible and could be corrected by leave of the trial Judge. Learned counsel vehemently submitted that no where in the Evidence Law or Act is the trial Judge empowered to strike out a defective part of an affidavit.
The respondent’s counsel however submitted and rightly in my view, that where in an affidavit the deponent is not deposing any fact of his own personal knowledge, but on information he derives from some other person, the deponent must state that he believes the information to be true, and that such information must be disclosed. This is the legal effects of S 85 of the Evidence Law of Lagos State.
Looking at the paragraph 4 of the counter affidavit of the appellant, it clearly stated facts and circumstance which formed the instructions from Messrs. Mark Feldmann & Co but no where in the opening words of e paragraph or in the seven sub paragraphs, was any statement showing that the deponent believes any of the facts and circumstances of the facts forming part of the instructions. So that even if one assumes that Mark Feldmann are the informants or as being the source of the information, nothing to show that such information was verily believed in proper compliance with S 85 of the Evidence Law.
S.85 of the Evidence Law is in my view a mandatory section and failure to comply with it is not a matter of form as envisaged by S 83 and S 84 of the same Law. What then is to be done in the event of non compliance with S 85 of the Evidence Law? In considering the effect of non compliance with S 85 of Evidence Act which is a carbon copy of S 85 of Evidence Law of Lagos State the Supreme Court in the case of Governor of Lagos State v Ojukwu (1986) 1 NWLR (pt 18) 621 at p 641 per Oputa J S C said:-
“From the point of view of these apparent contravention of Sections 85 and 86 of the Evidence Act, paragraphs 14 to 17 of the affidavit in support of this Motion for a stay ought to be struck out. And if these paragraphs are struck out, there is absolutely not one single averment to support the prayer in this Motion for a Stay of Execution.”
In the case of Fed Military Government v Sani (No 2) (1989) 4 NWLR (pt 117) 624 at 638 the court of Appeal (Lagos Judicial Division) per Akpata JCA (as he then was) had this to say:
“The facts contained in the said 38 paragraphs were no doubt obtained from information received by the deponent in the course of his investigating. The sources of information and the time, place and circumstances of the information were not supplied and there is no averments that the deponent believed them to be true. Section s85 87 and 88 do not exempt security officers or investigating officers of whatever description from disclosing their source or sources of information and the circumstances of the information and stating that they believe the information. The fact is that any paragraph of an affidavit which offends against any of the relevant provisions of the Evidence Act, that is, Section 85 to 88 may be struck out by court. If not struck out the court may not attach any weight to it”.
In the case of Fed Military Government v Sani (No 2) 4 NWLR (pt 117) 624 at 638, the court of Appeal (Lagos Judicial Division) per Akpata JCA (as he then was) had this to say:
“The facts contained in the said 38 paragraphs were no doubt obtained from information received by the deponent in the course of his investigating. The sources of information and the time, place and circumstances of the information were not supplied and there is no averments that the deponent believed them to be true. Sections 85,87 and 88 do not exempt security officers or investigating officers of whatever description from disclosing their source or sources of information and the circumstances of the information and stating that they believe the information. The fact is that any paragraph of an affidavit which offends against any of the relevant provisions of the Evidence Act, that is, Section 85 to 88 may be struck out by court. If not struck out the court may not attach any weight to it.”
In each of the above quotations, the non complying paragraphs ought to be or maybe struck out” by the Court. And that even where the paragraphs are not struck out, the court would not attach any right to them. I am bound to follow the views and opinions expressed above and I so do. I think therefore that the learned trial Judge was right when he said on p 27 of the record referring to paragraph 4 of the affidavit that “I think it is necessary to strike out that paragraph. I hold therefore that the said paragraph was properly struck out by the learned trial Judge.
With the striking out of paragraph 4 of the counter affidavit to the application to enter judgment, there cannot arise any question of illegality. There is nothing in the said counter affidavit to show that the transaction as illegal. Exhibit ‘B’ on the face of it is unambiguous and speaks clearly of a loan of N342,000.00 to be paid on or before February, 1986. There is nothing to suggest any illegality on it or about it. And although the appellant raised the issue of illegality in his brief of argument, he did not make it a ground of appeal in his Notice of Appeal. He cannot therefore properly make it an issue for determination in this appeal (See Idika v Erisi (1988) 1 N W L R (pt 78) 563.
Exhibit ‘B’ is in the nature of an admission or confirmation that the appellant was owing the amount now claimed by the respondent. It was not denied in any form of evidence before the trial court. Therefore, the appellant is perfectly entitled to apply for judgment for the said amount under Order 28, r 6 of the High Court of Lagos (Civil Procedure) Rules, 1972, which he did, and the learned trial Judge was perfectly justified in giving judgment for the amount as he did in favour of the respondent.
For the reasons stated above, I find no merit in this appeal and it is accordingly dismissed. The judgment of the learned trial judge is hereby affirmed. I award the respondent against the appellant, the cost of this appeal which I assess at N450.00.
Nigerian Cases Referred to:
A-G Fed v Sode (1990) 1 NWLR (pt 128) 500
Adamu v Ikharo (1988) 4 NWLR (pt 89) 474
Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (pt 109) 250
Fed Mil Govt. v Sanni No 2(1989) 4 NWLR (pt 117) 624
Governor of Lagos State v Ojukwu (1986) 1 NWLR (pt 18) 621
Idika v Erisi (1988) 2 NWLR (pt 78) 563
Niger Dams Authority v Lajide (1973) 5 S C 207
Nwabueze v Obi-Okoye (1988) 4 NWLR (pt 91) 664
Nwonu v Administrator General Bendel State (1991) 2 NWLR (pt 173) 343
Osadebay v A-G Bendel State (1991) 1 NWLR (pt 169) 525
Salami v Chairman LEDB (1989) 5 NWLR (pt 123) 539
