Legalpedia Citation: (2025-06) Legalpedia 60072 (undefined)

In the Court of Appeal

Holden at Lagos

Fri Jun 20, 2025

Suit Number: CA/L/1238/2015

CORAM

Mohammed Mustapha Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Uwabunkeonye Onwosi Justice of the Court of Appeal

PARTIES

CHAMPION BREWERIES PLC

APPELLANTS

BRAUEREI BECK GMBH & CO. KG

RESPONDENTS

AREA(S) OF LAW

ARBITRATION LAW, CONTRACT LAW, INTERNATIONAL COMMERCIAL LAW, TECHNOLOGY TRANSFER LAW, EQUITY AND ESTOPPEL, CIVIL PROCEDURE, ENFORCEMENT OF FOREIGN ARBITRAL AWARDS, ADMINISTRATIVE LAW, APPEAL

SUMMARY OF FACTS

This appeal arose from a decision of the Federal High Court, Lagos Division, delivered by Hon. Justice M.B. Idris on November 20, 2015, in Suit No: FHC/L/CS/889/2012, wherein judgment was in favor of the Respondent.

The Appellant (Champion Breweries PLC) and the Respondent (Brauerei Beck GmbH & Co. KG) entered into a Manufacturing, Distribution, Technology, and Trademark License Agreement regarding Beck’s Beer in Nigeria dated October 24, 2005. By virtue of Clause 19.2 of the Agreement, parties agreed to submit their disputes arising from or in connection with the agreement to arbitration with the seat of arbitration in Geneva, Switzerland.

Under the Agreement, the Appellant was obligated to register the Agreement with the National Office of Technology Acquisition and Promotion (NOTAP) pursuant to the NOTAP Act within 60 days from the date of the Agreement. However, the Appellant did not make any application to NOTAP until May 7, 2007, almost two years after the date of the agreement. Despite this failure, the Appellant proceeded to implement the agreement and generate income therefrom by producing, distributing, and selling Beck’s Beer in Nigeria.

The Appellant subsequently failed to fulfill its payment obligations under the agreement by making royalty payments to the Respondent as agreed, citing the illegality of the agreement due to its non-registration with NOTAP as the reason for its failure to pay. Following repeated requests for payment, the Respondent terminated the agreement by letter dated November 28, 2008.

On December 1, 2008, the Respondent commenced arbitral proceedings at the ICC International Court of Arbitration in Geneva, Switzerland, claiming unpaid royalty outstanding as at the date of termination. On January 14, 2011, a Final Arbitral Award was made by the Arbitral Panel in favor of the Respondent, finding the Appellant liable to pay outstanding royalties, damages, and costs of arbitration.

Meanwhile, the Appellant had filed Suit No. FHC/IKJ/CS/29/2009 at the Federal High Court, Ikeja, seeking a declaration that Clause 19.2 of the agreement (the arbitration clause) was illegal, null and void, having regard to Sections 6(2)(r) and Section 7 of the NOTAP Act. The court found that despite failing to register the agreement, the Appellant had derived substantial benefit from implementing the agreement and was therefore estopped from benefiting from its own wrong by raising the issue of illegality.

The Respondent subsequently filed an Originating Motion at the Federal High Court, Lagos Division, for recognition and enforcement of the Arbitral Award, which was granted on November 20, 2015. Dissatisfied with this decision, the Appellant filed this appeal.

HELD

1. The appeal lacked merit and was dismissed.
2. The judgment of the Federal High Court, Lagos Division delivered by Hon. Justice M.B. Idris, in Suit No: FHC/L/CS/889/2012, was affirmed.
3. The Court held that the agreement between the parties was not illegal, null and void or contrary to public policy. Section 6(2)(r) of the NOTAP Act merely renders a contract that fails to satisfy its requirements non-registrable but does not make it illegal.
4. The Court found that the Appellant, having substantially benefited from implementing the agreement while refusing to honor its obligations, was estopped from claiming the agreement was illegal.
5. The Court held that disobedience to court orders was reprehensible, but noted that the Appellant had withdrawn contempt proceedings against the Respondent and could not subsequently complain about alleged breaches of injunctive orders.

ISSUES

The sole issue for determination as formulated by the Appellant was:

Whether or not the learned trial Judge was right when he granted an order recognizing and enforcing the Final Award of Dr. Bernard Berger (Chairman), Prof. Dr. Christoph Miller (Arbitrator) and Mr. Mohammed Dele Belgore, SAN, FCIArb (Arbitrator) in respect of the arbitration conducted under the auspices of the International Court of Arbitration in Geneva, Switzerland delivered on the 14th January, 2011 in favour of the Respondent contrary to public policy of Nigeria?

RATIONES DECIDENDI

NATURE OF APPEAL – CONTINUATION OF ORIGINAL SUIT

An appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action, and it should be a complaint against the decision of a trial Court. Thus in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. – Per UWABUNKEONYE ONWOSI, J.C.A.

APPELLANT’S DISCRETION IN APPEAL SCOPE

It is in the exclusive domain of the Appellant to decide whether to appeal against only a part or parts of the decision in the judgment complained of or the entire decision in the judgment. And a party is at liberty to present his case in manner he desires to drive home his point, and the opponent cannot detect for him. – Per UWABUNKEONYE ONWOSI, J.C.A.

NOTAP REGISTRATION – EFFECT OF NON-REGISTRATION ON CONTRACT VALIDITY

Therefore, the agreement between the parties simpliciter is not illegal, null and void or contrary to public policy as contended by the Appellant. Section 6 (2) (r) of the NOTAP Act merely renders a contract that fails to satisfy its requirements, non-registrable thereunder. – Per UWABUNKEONYE ONWOSI, J.C.A.

LITERAL RULE OF STATUTORY INTERPRETATION

The literal rule of interpretation is the oldest rule and is followed by Judges all over the world. The rationale behind the Literal Rule is that it prevents Courts from making biased decisions when the issue relates to sensitive and political matters by sticking to the dictionary meaning without discretion (without expansion or contraction) of the very words used in the statute. Thus, when the words of the statute are very clear, plain and unambiguous without equivocation, then the Courts are bound to give effect to that meaning irrespective of the consequences. – Per UWABUNKEONYE ONWOSI, J.C.A.

UNREGISTERED CONTRACTS – LEGAL STATUS AND PROTECTION

Therefore, failure to register the agreement does not mean that it does not exist, but may not be afforded such protection of a standard registered agreement under the Act and whoever undertakes such agreement is doing so at his peril. – Per UWABUNKEONYE ONWOSI, J.C.A.

CLEAN HANDS DOCTRINE – PROHIBITION AGAINST BENEFITING FROM OWN WRONG

He who comes to equity must come with clean hands. The time honoured principle is that no one can or shall take advantage of his own wrong doing. The maxim is: nullum commodum capere potest de injuria sua propria exturpi causanon oritur actio. No polluted hand shall be allowed to touch the pure foundation of justice. One shall not have a right when one comes to a Court of justice in an unclean manner. – Per UWABUNKEONYE ONWOSI, J.C.A.

COURT ORDERS – VALIDITY AND OBEDIENCE REQUIREMENT

Order of Court is valid and must be obeyed whether right or wrong until set aside on appeal. It is not a paper tiger, yet not self–executory. Therefore, it has to be activated by enforcing same on a party in disobedience. That will mean serving the party in disobedience the order and complying with the special procedure for its enforcement. – Per UWABUNKEONYE ONWOSI, J.C.A.

WITHDRAWAL OF CONTEMPT PROCEEDINGS – EFFECT ON SUBSEQUENT COMPLAINTS

In the instant case, it is on record that the Appellant took out contempt proceedings to enforce the order, but at stage withdrew same. Therefore, he cannot turn around to complain after he had compromised the order and/or judgments of Court. – Per UWABUNKEONYE ONWOSI, J.C.A.

PARTIES’ LIBERTY TO COMPROMISE COURT JUDGMENTS

A judgment of Court often settles the issues in dispute between parties and makes a pronouncement on the rights and entitlements of the parties. There is nothing preventing parties after the judgment of a Court from changing their positions from what it was in Court in order to compromise the terms of the judgment of a High Court. Before, during or after trial or on appeal and even after judgment of the Supreme Court is delivered, the parties are at liberty to compromise or settle their matter on terms agreeable to both sides.– Per UWABUNKEONYE ONWOSI, J.C.A.

DISOBEDIENCE TO COURT ORDERS – THREAT TO SOCIETY AND RULE OF LAW

I must pause here to reiterate that disobedience to the order of Court of competent jurisdiction is affront to the society, state and the citizens. It is difficult to live in anarchistic society where rule of law is trampled upon. It pains more, where such flagrant disobedience to the Court’s order is actuated by counsel who should be a minister in the temple of justice. Disobedience to the order of a Court of competent jurisdiction is a ‘monster’ that should be condemned in its entirety before it condemns us. Without the rule of law there is no society, and we will live a life less humans. – Per UWABUNKEONYE ONWOSI, J.C.A.

ESTOPPEL – PROHIBITION AGAINST CLAIMING ILLEGALITY AFTER BENEFITING

It is this same agreement which the Appellant has refused to honour his own part of the obligation of registering it within sixty days as required by NOTAP Act, and which he has benefited from substantially and refused to pay the Respondent the royalty as agreed, that he has now turned around to urge that it be declare illegal, null and void and contrary to public policy. – Per UWABUNKEONYE ONWOSI, J.C.A.

INEQUITABLE CONDUCT – RETENTION OF BENEFITS WHILE AVOIDING OBLIGATIONS

The conduct of the Appellant depicts a ploy to cover his default of non-performance of his own obligation under the agreement and still retain the profit made from the said agreement. It will be conscienceless and inequitable to allow the Appellant by whatever antics to chicken-out of his obligation and retain the profit of the said agreement. He has to purge out all the profits. – Per UWABUNKEONYE ONWOSI, J.C.A.

NOTAP ACT – CONSEQUENCES OF NON-COMPLIANCE

Section 6 (2) (r) of the NOTAP Act provides that the Director shall not register an agreement where he is satisfied that the transferee is obliged to submit to foreign jurisdiction in any controversy arising for decision concerning the interpretation or enforcement in Nigeria of any such contract or agreement. The Section 7, on the other hand, provides that no payment shall be made by or under the authority of the Ministry of Finance, the Central Bank of Nigeria or any licensed bank to the credit of any person outside Nigeria, unless the parties concerned present a certificate of registration issued under the Act and a certified copy of the agreement.– Per UWABUNKEONYE ONWOSI, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. National Office of Technology Acquisition and Promotion Act (NOTAP Act)
2. Constitution of the Federal Republic of Nigeria 1999 (as amended)
3. Federal High Court Rules
4. Sheriffs and Civil Process Act
5. Arbitration and Conciliation Act

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