Agbara & Ors v The Shell Petroleum Development Company of Nigeria Ltd & Ors

Registration of a foreign judgment under section 9 of the Administration of Justice Act 1920 is discretionary. A judgment obtained after a serious breach of natural justice may be refused enforcement because registration would not be just and convenient, even where the statutory grounds in section 9(2) do not provide an absolute bar.

A judgment debtor need not have a pending appeal where any appeal remains dependent on permission or an extension of time. Earlier procedural misconduct may be relevant, but it does not necessarily justify depriving a party of the fundamental opportunity to present its defence. Subsequent procedural failures in the foreign appellate process do not necessarily cure or materially reduce the significance of a serious denial of that opportunity.

The claimants obtained a Nigerian Federal Court judgment dated 14 June 2010 awarding damages for pollution caused by an oil-pipeline rupture. The judgment was registered in England under section 9 of the Administration of Justice Act 1920, substantially increasing the amount claimed through interest.

The defendants applied to set aside registration. They argued that an application for permission and extensions of time pending before the Nigerian Supreme Court constituted a pending appeal, and that the Nigerian proceedings involved a substantial breach of natural justice because they were prevented from presenting their defence. They also challenged the registered quantum.

The central issues were whether the Nigerian applications amounted to a pending appeal, whether enforcement was just and convenient, and whether the registration should remain in place.

1. Application allowed. The order registering the Nigerian judgment was set aside.
2. Applications for permission to appeal, or for an extension of time required before an appeal can proceed, do not constitute a pending appeal under section 9(2)(e) of the Administration of Justice Act 1920. An appeal is pending only where the judgment debtor is entitled to appeal without further permission or extension. The reasoning in State Bank of India v Mallya [2018] 1 WLR 3865 and Tenaga Nasional Bhd v Frazer-Nash Research Ltd [2019] 1 WLR 946 was applied.
3. A breach of natural justice is relevant to the broad discretion under section 9(1). Although it is not necessarily an automatic bar to registration, its significance depends on its severity and materiality. The assessment must respect international comity and the foreign legal system, while applying English common-law standards.
4. The defendants’ failure to appear by counsel during the earlier stages of the Nigerian trial was a deliberate choice and did not itself establish a breach of natural justice. However, on 25 February 2008 the trial judge unexpectedly continued the trial after a hearing listed for a ruling, refused a short adjournment to allow the defendants’ witnesses to attend, and closed the defence. That deprived the defendants of the fundamental opportunity to be heard and amounted to a serious breach of natural justice.
5. The defendants’ unsuccessful or withdrawn Nigerian appeals did not materially lessen the effect of that breach. In the circumstances, enforcement in England was not just and convenient.
6. It was unnecessary to determine the quantum issues. The judge nevertheless observed that materially overstated damages would not be just and convenient to enforce, and that the substantial award of punitive general damages lacked an adequate evidential or reasoning basis. The latter conclusion was supported by the principle in Adams v Cape Industries [1990] 1 Ch 433 that damages must be assessed on the evidence.

First-instance application in the High Court. The judgment concerned registration of a Nigerian Federal Court judgment; no appeal from the present decision is stated.