Enforcement of foreign judgements in Nigeria can be achieved through two major ways, either by an action at common law or by reciprocal enforcement. These methods of enforcing foreign judgements will be briefly discussed in this article.
For a foreign judgement to be enforced like a judgement delivered by Nigeria courts, such judgement must first be registered through the order of the court. Where it is impossible for such judgement to be registered, a new action must be commenced at the Nigerian court aiming towards the enforcement of the foreign judgement.
Applicable Laws for the Enforcement of Foreign Judgement in Nigeria
Currently, the laws that regulate the enforcement of a foreign judgement in Nigeria are;
- Foreign Judgments (Reciprocal Enforcement) Act, Cap F35 Laws of the Federation 2004, (the Act)
- Reciprocal Enforcement of Foreign Judgment Act 1922, Cap 175 Laws of the Federation and Lagos 1958 (the Ordinance).
- Civil Procedure Rules of various High Courts
METHODS OF ENFORCEMENT OF FOREIGN JUDGEMENTS IN NIGERIA
By an Action at Common Law
Where a foreign judgement is not qualified to be registered or enforced under the Act or the Ordinance, such judgement may nevertheless be enforced in Nigeria by the claimant/ applicant by filing a fresh suit in Nigeria together with the application for a summary judgement. The civil procedures of most Nigerian High Courts include provisions for summary judgement application where the indebted party does not have a defense to the debt owed. The foreign award may serve as evidence that the defendant or respondent is owing to a liquidated sum to the claimant/ applicant and it has no defence to it. If the summary judgement application is successful, the judgement can be enforced against the defendant under the provisions of the Sherriff and Civil Process Act.
Under the Civil Procedures of various High Courts in Nigeria, any person may commence a civil action against a defendant at a place he/she resides, even when the cause of action did not arise in there. Therefore, if a foreign judgement debtor resides in Nigeria, legal action can be validly be brought against such a person under the Nigerian law relying on the foreign judgement given against such person.
The defendant/ judgement creditor will ample opportunity to challenge both the suit and summary judgement application. The court may grant or deny the application for the summary judgement. If in the opinion of the judge, the defendant has a credible defense to such action emanated through the foreign judgement, the summary judgement application will be denied while the suit is set down for proper trial in the Nigerian court again.
Enforcement of Foreign Judgement by Reciprocal Enforcement
Under this procedure, the enforcement of the foreign judgment is done on the foundation of reciprocity. This simply means that the foreign country whose court delivered the judgment must be equally ready to enforce judgments delivered by Nigerian courts in its foreign courts. The countries that render reciprocal enforcement to Nigeria are those listed in an order to be made by the Minister of Justice under Part 1, Section 3 of the Foreign Judgments (Reciprocal Enforcement) Act, although the Attorney General is yet to make any order till now.
However, Section 10 of the Act provides that the judgment of the foreign country must be registered within 12 months of the date of the judgment or a longer period if permitted by a superior court.
Any judgement creditor who intends to register a foreign judgement must bring an application by way of Motion ex-parte praying the court for leave to register the foreign judgment, supported by an affidavit showing that the judgement is from a country that would render reciprocal enforcement to Nigerian Judgment and a written address. The judgment will be attached as an Exhibit. However, the court can also mandate creditor to put the debtor on notice.
If on the date of bringing an application for registration, a foreign judgment will not be capable of enforcement in its original country where it was delivered, it will not be registered in Nigeria in accordance with section 4(1) Foreign Judgment (Reciprocal Enforcement) Act. If the High court is satisfied by the affidavit evidence that the foreign country is one that has a reciprocal arrangement with Nigeria, it may order that the foreign judgement be registered.
The Minister of justice may advise against the registration if he is not satisfied that the foreign country will reciprocate. Upon registration, the High court in Nigeria can now enforce it as if it is its judgment.
Considerations by the Nigerian Courts in Enforcement of a Foreign Judgement
Various issues must be considered by the court in the enforcement of foreign judgements in Nigeria. Generally, Nigerian courts must consider public policy and whether the subject matter resulting in the original judgement is legitimate under the Nigeria law when making decisions in such respect.
In the case of Ramon v Jinadu ((1985) 5 NWLR part 39), the Court of Appeal set aside the registration of the foreign judgment by the High Court because the judgment was related to a contract that was illegal under the Nigerian law.
Grounds for Refusal of Enforcement of Foreign Judgement under the Act
According to Section 6 of the Foreign Judgment (Reciprocal Enforcement) Act, recognition and enforcement of foreign judgement can be challenged on the following grounds:
- The judgment is not a judgment to which the decree or regulation applies
- The court of the country where the original court is located has no jurisdiction over the circumstances of the case
- The judgment debtor is a defendant in the original court's litigation and did not receive notice of the litigation within sufficient time to enable him to defend the litigation, and therefore did not appear in court (although the litigation may have been properly conducted) according to the country where the original court is located /Regional legal services);
- The judgment was obtained through fraud;
- Enforcing the judgment will violate Nigeria's public policy;
- The rights in the judgment do not belong to the person applying for registration; or
In conclusion, enforcement of a foreign judgement in Nigeria is dependent on the applicable laws guiding the competent court in Nigeria. The judgement may be enforced in full or in part depending on the circumstances of each case. According to Section 4(4) and (5) of the Foreign Judgment (Reciprocal Enforcement) Act, the court can grant partial recognition and enforcement of judgements. If the foreign court's judgement is only partially satisfied, the foreign judgement should not be registered for the full amount of the judgement.
Finally, where a foreign judgement has been registered via a Nigerian court or allowed in Nigerian court via a new court action, such judgement can therefore be enforced or executed as a judgement of a Nigerian court under the Sheriffs and Civil Process Act. Some of the methods of execution of judgements in Nigeria include the garnishee proceedings and writ of fifa.
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.