There is a general proposition that the powers of the courts are limited by their territorial boundaries (i.e. territorial jurisdiction). Thus, a judgment delivered by the court of one jurisdiction should ordinarily have no force or effect beyond its own territory save for situations where other jurisdictions have agreed to allow such judgment to be enforced within their own territories.
However, such judgment may become enforceable in another country if the judgment is registered and recognised in the country where it is sought to be recognised.
There is no doubt that an incentive for international trade and commerce is the ability to enforce a judgment obtained in one country in the courts of another. This incentive is largely made possible by private international law rules which permit judgments of one country to be recognized and enforced in other countries. Unfortunately, Nigeria is not a signatory to any private International law (treaties, convention, unilateral or bilateral agreement) for the enforcement of foreign judgment, But Nigeria is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Award (the New York Convention, 1958), this is only in respect enforcement of arbitration award.
In Nigeria, the applicable statutory regime in respect of the enforcement of foreign judgments remains uncertain despite numerous judicial pronouncements on the subject. The present conventional wisdom is that there are three applicable legal regimes which Foreign judgments are enforceable under. The legal regimes are:
- Reciprocal enforcement of foreign judgment Ordinance 1922 Cap 175, Laws of the Federation of Nigeria and Lagos, 1958 ("the 1922 Ordinance") (this Ordinance was enacted in 1922 as L.N. 8, 1922)
- Foreign Judgment (Reciprocal Enforcement) Act Cap. F35, Laws of the Federation of Nigeria, 2004 ( the "Act")
- Common Law action
ENFORCEMENT OF FOREIGN JUDGMENTS UNDER THE 1922 ORDINANCE
The 1922 Ordinance was enacted to facilitate the reciprocal enforcement of judgments obtained in Nigeria and in the United Kingdom, and other parts of Her Majesty's Dominions and Territories under Her Majesty's protection.
The judgment registrable under this Ordinance must be a monetary judgment, final and conclusive between the parties.
A judgment creditor who intends to enforce a foreign judgment under the Act must seek the leave of court to register the judgment by petition. The petition could either be by ex parte or on notice. However, where the judgement creditor chooses to go by exparte, the court may direct that the judgment debtor should be put on notice.
The petition must be supported with the affidavit of fact and certified true copy of the judgment as an exhibit.
The judgment debtor will be given the opportunity to show reason why the application for leave to register the judgment should not be granted.
ENFORCEMENT OF FOREIGN JUDGMENTS UNDER THE ACT
Section 3(1) of the Foreign Judgment (Reciprocal Enforcement) Act 1961 empowers the Minister of Justice to make an order extending Part 1 of the Act to any foreign country. The minister will specify in that order the courts of that country that will be deemed to be superior courts for the purposes of enforcing their judgments in Nigeria. Before exercising this power, the minister is required to satisfy himself that judgments of superior courts in Nigeria will be accorded substantial reciprocity of treatment as regards enforcement in that foreign country.
The Minister of Justice is yet to make an order extending Part 1 of the Act to any country.
Notwithstanding the above, foreign judgments from countries which are not listed in the 1958 Ordinance and cannot be recognized under the Ordinance may be recognized under Section 10 (a) of the Act as long as the application for recognition and registration of the judgment is brought within 12 months from the date in which the foreign court delivered the judgment.
ENFORCEMENT BY ACTION AT COMMON LAW
The expedited process of enforcement under the Ordinance is not available for judgments from countries not listed in the 1922 Ordinance. Also considering that the Minister of Justice has not exercised his power to extend under the 1960 Act, a person seeking to enforce judgments from any country other than the United Kingdom and those countries listed in the Schedule to the Ordinance has to commence a new action to enforce the judgment by filing a new writ of summons (or Originating Summons) to enforce the judgment.
The judgment debtor is then given a wider berth in defending the enforcement as such a person can raise new defences (not affected by issue estoppel) or reopen defences which were denied or discountenanced in the foreign suit (which might not be successful on the basis of res judicata).
Also, the rules of various Federal and State courts in Nigeria permit a judgment creditor to bring an application for summary judgment on the ground that the judgment debtor has no defence to the new suit based on the foreign judgment.
Under the Reciprocal Enforcement of foreign judgment ordinance 1922, the limitation period within which a judgment of foreign court must be registered is twelve (12) months and time begins to run from the date the judgment was given.2 Section 4(1) of the Act stipulates the limitation period under the Act to be Six (6) years from the date of enforcement and registration of the foreign judgment in Nigeria. However, since the Minister of Justice is yet to exercise his powers under section 3 of the Act to extend Part 1 of the Act to any country, consequently, the provision of section 4 of the Act remains inchoate.
Pursuant to section 10 of the Act, a foreign judgment should be registered within 12 months.
Section 10 states that:
Notwithstanding any other provision of this 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; and
- any judgment registered under the Reciprocal Enforcement of Judgments Ordinance at the time of the coming into operation of an order made under section 3 of this Act in respect of the foreign country where judgment was given shall be treated as if registered under this Act and compliance with the rules applicable to the former Act shall satisfy the requirements of rules made under this Act. The above have been given judicial backing in the case of Maculay v. R. Z. B Austria (2009) NWLR. (Pt.1149) page 298, para (H) and p. 299 para (A).
The limitation period under the common law is six (6) years from the date of the judgment.
GROUNDS FOR REFUSING THE REGISTRATION OF JUDGMENT UNDER THE ORDINANCE
Section 3(2) of the ordinance provides for the grounds for refusing the registration of a judgment. The grounds upon which a court can refuse the registration are:
- The original court acted without jurisdiction;
- The judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court;
- 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;
- The judgment was obtained by fraud;
- That the judgment satisfies the registering court either that an appeal is pending or he intends to appeal against the judgment; and
- The judgment was in respect of a cause of action which for a reason of public opinion cannot be registered.
GROUNDS FOR REFUSING THE REGISTRATION OF JUDGMENT UNDER THE ACT
The ground for refusing the registration of the judgment under the Act are:
- That the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the foregoing provisions of this Act;
- That the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
- That the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or That the judgment was obtained by fraud; or
- That the enforcement of the judgment would be contrary to public policy in Nigeria; or
- That the rights under the judgment are not vested in the person by whom the application for registration was made;
EFFECT OF A REGISTERED JUDGMENT
Once a judgment is registered, it shall for the purposes of execution be of the same force and effect as the judgment of the registering court.
It is clear beyond doubt that the current fragmented regime for enforcement of foreign judgments in Nigeria is not the best for the nation. There are conflicting decisions on the applicable law and hence there is a need for a review and a consequent harmonization of the current regime. The 1922 Ordinance is an antiquated piece of legislation in many significant respects and change is imperative in the present era. More significant to note is that despite the continued applicability of the 1922 Ordinance, the same law was not inserted in the most recent Consolidation of Laws in 2010 leaving room for uncertainty as to which law really applies.
On the other hand, Part 1 of the Act continues to be inchoate due to the failure of successive Ministers of Justice, for over 50 years to issue Orders pursuant to the Act, despite the admonition from the courts in several cases over the years.
Definitely, the consolidation of the legal regime governing foreign enforcement is an areas where legislative action is needed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.