Recognition and Enforcement of Foreign Judgment in Nigeria. Part 2

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Nigeria is not a signatory to any multilateral convention for the purpose of enforcement of foreign judgment. Hence, the recognition and enforcement of foreign judgment in Nigeria can be viewed from only two ways:

  1. Enforcement by action (action at common law) and
  2. Enforcement by registration (under statutory provision).

Enforcement by action (action at common law)

A judgment creditor  who wants his foreign judgment enforced in Nigeria  but  not covered by statutory provision which would entitle him to registration must enforce the judgment by commencing an action at the high court in Nigeria.  The action should ideally be commenced by the summary judgment procedures available under the High Court Civil Procedure Rules i.e. Order  11 in Lagos 2012 Rule Order 21 in Abuja 2004 rules which is more known as the undefended list procedure. The judgment will be made the cause of action.

To be accorded recognition as earlier discussed, the foreign judgment must satisfy the following:

  • The judgment must be final and conclusive.
  • Determined on the merit and not a default judgment
  • It must have been given by a court of competent jurisdiction (a superior court).

The court, in the case of PEENOK LTD V HOTEL PRESIDENTIAL LTD[1].  held that, the court may refuse to enforce the decision of a foreign court where the domestic tribunal finds suo motu that the foreign court has no jurisdiction at the time of giving the judgment.

Even though the summary judgment/undefended list procedure envisages that the defendant has no defence to the action, the judgment debtor can still raise any of the following defences to prevent the court from enforcing the judgment:

  • That the judgment was obtained by fraud
  • That the decision was contrary to public policy in Nigeria
  • That the judgment is in breach of natural justice.

 

Enforcement by registration (under statutory provision)

The enforcement of foreign judgment in Nigeria is governed by two separate statutes and creates a bit of complication due to administrative complacency. The two statutes are:

  1. Reciprocal enforcement of judgments ordinance, CAP 175 LFN 1958 which was passed in 1922 and
  2. Foreign Judgment (Reciprocal Enforcement) Act CAP F35, LFN, 2004 which was passed in 1961.

The 1922 ordinance provides for the enforcement of judgments of the High Court in England or Ireland or the Court of Session in Scotland. Section 5 (1) of the 1922 Ordinance further provides that the Governor-General may extend by Proclamation, the application of the Act to judgments obtained from other parts of Her Majesty’s Dominions outside the United Kingdom if he is satisfied that reciprocal provisions have been made by the Legislature of that part. A number of such proclamations were made between 1st December, 1922 and 3rd February, 1927. Pursuant to the 1922 Ordinance, the judgment creditor may apply to a High Court in Nigeria at any time within twelve (12) months  after the date of the judgment or such longer period as the court may allow for the registration of the judgment in the court.

A judgment shall not be registered under the 1922 Ordinance if:

  • the original court acted without jurisdiction; or
  • the judgment debtor being the defendant in the proceedings was not duly served with the process of the original court, and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or
  • the judgment was obtained by fraud; or
  • the judgment debtor satisfied the court either that an appeal is pending, or that he is entitled and intends to appeal against the judgment; or
  • the enforcement of the judgment would be contrary to public policy

Under Section 4 of the 1961 Act, a judgment creditor under a judgment of a foreign court to which Part I of the Act applies, may apply to a superior court in Nigeria for the registration of the judgment within six (6) years of the date of judgment. In order for Part I of the 1961 Act to apply to a judgment, the Minister of Justice must have exercised its power under Section 3 of the Act to extend the application of Part 1 to judgments given in superior courts of the foreign country where the judgment was made, after being satisfied that the foreign country gives reciprocal treatment to judgments of superior courts in Nigeria. In order for a foreign judgment to be registered under the 1961 Act, it must be enforceable by execution in the country of the original court and it must not have been wholly satisfied. The 1961 Act did not repeal the 1922 Ordinance. However, once an order under section 3 of the 1961 Act is made with respect to a country to which the 1922 Ordinance applies, the 1922 Ordinance will cease to have effect.

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Judgments registrable In Nigeria under the 1922 Ordinance and the 1961 Act The 1922 Ordinance applies to judgments of superior courts in the United Kingdom and the Dominions to which the Act had been extended by Proclamation but cannot apply to judgments of countries that are not part of the Commonwealth. As already mentioned above, in order for section 4 of the 1961 Act which provides for the enforcement of foreign judgments to apply to the judgment of any country, the Minister of Justice must have made the order contemplated in section 3(1) of the 1961 Act in respect of that country. No such order has been made. A cursory reading of the 1961 Act will therefore suggest that a foreign judgment that is not registrable pursuant to the 1922 Ordinance is not registrable and therefore not enforceable under statute in Nigeria. However an overriding provision in section 10(a) of the 1961 Act provides a window for such enforcement. Section 10(a) provides that notwithstanding any other provision of the 1961 Act:

a judgment given before the commencement of an order under section 3 of this Act applying Part I of this Act to the foreign country where the judgment was given, may be registered within twelve months from the date of the judgment or such longer period as may be allowed by a superior court in Nigeria

It may however be argued that section 10(a) only applies where an order has been made by the Minister but is yet to take effect. This issue was put to rest in the case of TELEGLOBE AMERICA INC. V.CENTURY TECHNOLOGIES LIMITED[2]  where the Court of Appeal held that the judgments of foreign countries not registrable pursuant to the 1922 Act may be registered and enforced by virtue of section 10(a) of the 1961 Act even when the Minister has not made an order under section 3(1). In Teleglobe’s case, the Court of Appeal ordered the registration of the judgment of the Circuit Court of Fairfax County, Virginia, United States to which the 1922 Ordinance does not apply. The Court of Appeal’s interpretation is supported by the Supreme Court dicta in ANDREW MARK MACAULAY V. R.Z.B., AUSTRIA[3].

 

  • TOPICAL ISSUES ARISING FROM THE NIGERIAN STATUTORY PROVISIONS.
  1. The failure of the 1961 Act to expressly repeal the 1922 Act making for two laws to operate under one regime: This has increased the challenges to the enforcement of foreign judgments and awards by making the 1922 Ordinance the applicable law for the recognition and enforcement of foreign judgments in the 21st century. This 1922 Ordinance, though a commendable piece of legislation, cannot meet the needs of the present age.
  2. Time limitation for registration: The Supreme Court decisions in Macaulay’s case and MARINE & GENERAL ASSURANCE COMPANY PLC V. O.U. INS. LTD[4] is that judgments of the superior courts in United Kingdom and parts of her Majesty’s Dominions to which the 1922 Ordinance applies, must be registered within 12 months as provided in section 3 of the 1922 Ordinance. Such judgments cannot benefit from the provision of Section 4 of the 1961 Act for registration of the judgment of a foreign court within 6 years until the Minister of Justice has made an order under section 3 of the 1961 Act, extending the application of the Act to judgments of courts in the country in which the relevant judgment is made. The Supreme Court on the basis of this reasoning set aside the judgment of the Court of Appeal in the Marine and General Assurance case. The Court of Appeal had held that section 9(1) of the 1961 Act excludes the application of section 3(1) to judgments of courts of Commonwealth countries and as such, all such judgments automatically benefit from the provision in section 4 of the 1961 Act that foreign judgments may be registered within six years of their making.8 Section 9(1) of the 1961 Act provides that Part 1 of the Act:
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“shall apply to any part of the Commonwealth other than Nigeria and to judgments obtained in the courts thereof as it applies to foreign countries and to judgments obtained in the courts of foreign countries and the Reciprocal Enforcement of Judgment Ordinance shall cease to have effect except in relation to those parts of Her Majesty’s Dominions other than Nigeria to which extended at the date of the Commencement of this Act.”

 

The Supreme Court’s interpretation of section 9 is that it preserved the effect of the 1922 Ordinance, pending an order made by the Minister pursuant to section 3(1).9 With respect to judgments of countries to which the 1922 Act does not apply, the Court of Appeal held in Teleglobe’s case that pursuant to section 10(a) of the 1961 Act, the judgment must be

registered within 12 months or such longer time as the court may permit.

  1. Failure of the minister of Justice under section 3 of the Act to come up with a list of countries to which the 1961 Act applies so as to avoid a fall back on the countries under the 1922 Act.
  2. The preference of reciprocity to the comity theory: This has been exhibited by Nigerian courts in deciding enforcement of judgment cases. The Acts emphasizes on reciprocity and the courts have been bound by it. This was exhibited in GROSEVENOR V HALAOUI[5]. The facts of this case are:

The Respondent had issued a cheque in favour of the Appellant. It was drawn on a bank in the United Kingdom. The cheque was in satisfaction of a debt of £199,711.00. Upon presentation on or about the 21st of April 1993, the cheque was dishonoured. Subsequently, and perhaps as a result of a demand for payment by the Appellant, the Respondent reduced his indebtedness by paying £88,000.00. This left outstanding the sum £111,711.00. The Respondent did not pay the balance. The Appellant then issued a writ of summons under the undefended list procedure at the High Court of Justice, Queen’s Bench Division in England. The Writ of Summons, Statement of Claim and other processes were served by substitution on the Respondent in Nigeria. The Respondent did not enter appearance to the Writ. He did not file a defence either. On the 15th of the 1999, judgment was given against the Respondent for £180,530.00 and costs assessed at £718.00. In its effort to execute the judgment, the Appellant upon an ex-parte application brought before the High Court of Oyo State, Ibadan (the trial Court) prayed that the judgment obtained in England to be registered. Adio J. (as he then was) heard the application and granted it on 22nd November 1999. In reaction, the Respondent brought an application before the trial judge that the order registering the judgment be set aside. Adio J. refused the prayer, holding that the only argument advanced by the applicant on jurisdiction is that when the Defendant was served outside the jurisdiction of Britain. “it is bad. I am not persuaded by that argument, the applicant having admitted service should have gone to the venue to challenge the jurisdiction of that Court. He did not. Judgment was given against him and he wanted it set aside”.

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The court held that the respondent having admitted service should have gone to the venue to challenge the jurisdiction of that court and that there was no evidence to prove lack of jurisdiction. Dissatisfied with the ruling of the trial Court, the Respondent brought an appeal against it before the Court of Appeal, Ibadan which allowed the appeal and set aside the order registering the judgment of the English Court. The Court of Appeal held that even though he was duly served with the processes of the Court, the Appellant (now Respondent)

did not enter any appearance and it has not been shown that he had anytime resided within the jurisdiction of that Court or that he had any property there. He was therefore held entitled to have the registration of the judgment made by the lower Court set aside. Being dissatisfied with the judgment of the Court below, the Appellant brought a final appeal before the Supreme Court.

The Supreme Court followed it’s earlier decision in RBZ of Austria and held inter alia that:

Although such state of affairs is pregnant with some disastrous consequences of encouraging crooks and fraudsters, there may be the need for the legislature liaising with the Attorney-General of the Federation and Minister of Justice to have a look at the 1958 and 1990 Act with a view to effecting an amendment. Until this is done, this court is bound to give effect to that section of the 1958 Act

 

Were the court to adopt the comity principle, things would turn differently because its focus would be to give courtesy to the decision of the foreign against such technicality.

  • EFFECT OF REGISTRATION OF A FOREIGN JUDGMENT

A foreign judgment once registered in a High Court becomes a judgment of that High Court upon which a certificate may be issued in accordance with the provisions of the Sheriffs and Civil Processes Act, chapter S6 Laws of the Federation of Nigeria, 2004. In particular, Section 4(2) of the 1961 Act provides that a registered judgment shall for the purposes of execution, be of the same force and effect; and proceedings may be taken on a registered judgment; and the sum for which a judgment is registered shall carry interest; and the registering court shall have the same control over the execution of a registered judgment as if the judgment had been a judgment originally given in the registering court and entered on the date of registration.

CONCLUSION

We acknowledged that various countries have different legal frame work for enabling the recognition and enforcement of a foreign judgment varying from bilateral treaties to conventions and multilateral treaties. To narrow the various jurisdictions, we put the radar on the Nigerian legal framework for the recognition and enforcement of foreign judgment. We made a subtle critique of the statutory provisions and spotted particularly the existence of two laws making the administration untidy. Also, the laws are quite antiquated and need a reform, the latest (the 1961 Act) being over half a century old. We also made a case for the theory of comity to be a better guiding principle rather than the reigning reciprocity which has made our Supreme Court Justices say their hands are tied until the legislatures amend the laws. We therefore conclude by submitting that to boost international relations and commercial confidence, it will be ideal for our law makers to yield the call of the Supreme Court Justices, while we also urge the Supreme Court Justices to turn on their judicial activism to take care of the lacunas pending the legislative intervention in order to minimize the negatives of conflict of laws.

[1] (1982) 12 sc 1

[2] (2009) 9 CLRN

[3] (2003) 18 NWLR (Part 852) 282

[4] (2006)4 NWLR (Part 971) 622

[5] (2009) 10 NWLR (PT 1149) 309

 

Written by:  Ganiyu Ajibola Bello. LL.B, BL. DRS. LL.M (in view)

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