CASE TITLE: CHAMPION BREWERIES PLC v. BRAUEREI BECK GMBH & CO. KG (2025) LPELR-81422(CA)
JUDGMENT DATE: 20TH JUNE, 2025
PRACTICE AREA: CONTRACT (ENFORCEMENT OF CONTRACT)
LEAD JUDGMENT: UWABUNKEONYE ONWOSI, J.C.A.
SUMMARY OF JUDGMENT:
INTRODUCTION:
This appeal borders on enforcement of contract under the National Office of Technology Acquisition and Promotion Act.
FACTS:
This is an appeal against the decision of the Federal High Court, Lagos Division, delivered by Hon. Justice M. B. Idris.
The Appellant and the Respondent are parties to the Manufacturing, Distribution, Technology, and Trademark License Agreement regarding Beck’s Beer in Nigeria dated 24th October, 2005 (“the Agreement”). 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. It was the obligation of the Appellant under the agreement to register the agreement with the National Office of Technology Acquisition and Promotion (“NOTAP”) pursuant to the National Office of Technology Acquisition and Promotion Act (“NOTAP Act”) within 60 days from the date of the Agreement. The Appellant did not make any application to NOTAP until 7th May 2007, almost two years after the date of the agreement. Despite the foregoing, the Appellant proceeded to implement the agreement and generate income therefrom.
The Appellant failed to fulfil its obligations under the agreement by making payment to the Respondent in the form of royalty as agreed, notwithstanding the Respondent’s repeated requests, citing the illegality of the agreement due to its non-registration with NOTAP as the reason for its failure to pay royalty. Whereupon the Respondent terminated the agreement by its letter dated 23rd November, 2008.
The Respondent on 1st December, 2008, commenced arbitral proceedings at the ICC International Court of Arbitration in accordance with the terms of the agreement, wherein it claimed inter alia the unpaid royalty outstanding as of the date of termination of the contract. On 14th January, 2011, a Final Arbitral Award was made by the Arbitral Panel in favour of the Respondent in which the Appellant was found liable under the agreement to pay to the Respondent the outstanding royalties, damages, and costs of the arbitration.
The Appellant filed a suit at the Federal High Court, Ikeja, prior to the institution of the action that gave rise to this appeal, seeking a declaration that Clause 19.2 of the agreement (the arbitration clause) is illegal, null and void and incapable of being performed, having regard to Sections 6 (2) (r) and Section 7 of the NOTAP Act. The Federal High Court found that, despite failing to register the agreement under the NOTAP Act, the Appellant embarked on the production, distribution, and sale of Beck’s Beer in Nigeria, thereby deriving a benefit from the implementation of the agreement. The Court held that the Appellant was estopped as between the parties from benefitting from its own wrong by raising the issue of the illegality or unlawful nature of clause 19.2 of the agreement.
The Respondent filed an Originating Motion at the Federal High Court for the recognition and enforcement of the Arbitral Award, and on 20th November, 2015, the Court granted the reliefs sought by the Respondent.
Being dissatisfied with the decision of the Court, the Appellant appealed to the Court of Appeal.
ISSUE(S) FOR DETERMINATION:
The Court determine the appeal based on the following issue:
“Whether or not the learned trial Judge was right when he granted an order recognising and enforcing the final award of Dr Berhard 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 of January, 2011, in favour of the Respondent contrary to public policy of Nigeria.”
DECISION/HELD:
In conclusion, the Court dismissed the appeal and affirmed the decision of the trial Court.
RATIOS:
- APPEAL – NATURE OF APPEAL – Whether there can be an appeal against what has not been decided against a party
- CONTRACT – ILLEGAL/VOID CONTRACT – Whether a party who has benefitted from a contract can resile from his obligation under such contract on the pretext of illegality
- CONTRACT – AGREEMENT – Effect of failure to register an agreement under the National Office of Technology Acquisition and Promotion Act
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