CONFLICT 2.5 ENFORCEMENT OF FOREIGN JUDGMENTS
There are two regimes for enforcement of foreign judgement in Nigeria.
- Common-Law: which is by an action.
- Statute: which is by registration.
ENFORCEMENT OF FOREIGN JUDGMENT UNDER COMMON LAW
Enforcement under common law applies where judgment cannot be enforced under the statutory regimes. (e.g. maybe the foreign state does not offer a reciprocal feature to Nigeria i.e. it does not enforce Nigeria’s judgment)
The procedure under common law is thus:
After a judgment is obtained in State A, the judgment creditor can enforce it in State B by suing on the judgment of the foreign court as a debt. The judgment obtained in State A would be used as evidence to prove that the other party is the judgment debtor.
The following must be satisfied:
- The foreign judgment must have been obtained from a superior court of competent jurisdiction-See Blohn V Desser, Adams V Cape industries, Emmanuel V Symon,
- The judgment must be final and conclusive–Peenok Ltd Hotel Presidential Ltd
- The judgment must be for a fixed (i.e. definite) sum of money.
- The Money imposed in the judgment must not be a tax, penalty or revenue of the other government-See Kuwait Airways V Iraqi Airways; Kendal V Kendal; Governor of Libya V AG New Zealand V Ortiz.
- The judgment must NOT be vitiated by: or obtained by fraud, non-compliance with natural justice and public policy.
- The Judgment must NOT be invalid: under the law of the place where it was obtained. i.e. it must be a valid judgment. NB a voidable judgment is not yet void/invalid until declared so.
A foreign judgment in breach of arbitration clause may not be enforced.
The above conditions may constitute a ground for setting aside the enforcement of foreign judgment both under Common law and Statute.
ENFORCEMENT UNDER STATUTE.
The statutory regimes are based on the common law and have substantial similarity so you must also state all that we have discussed in relation to the common law position here. HOWEVER (i.e. EXCEPT THAT): Note the only differences here is that (under statute) you register the judgment rather than sue on the judgment and the foreign country must be offering a reciprocal service to Nigeria (i.e. one must also be able to enforce Nigerian judgment in the said foreign country whose judgment is sought to be enforced in Nigeria) .
Enforcement of judgment under statute is done by registration of the judgment in any Nigerian High Court within 6 years from the date of getting the foreign judgment. The Reciprocal E F J Ordinance 1922 says 12 months. But just read on.
There are two relevant statutes under this:
– The Reciprocal Enforcement of Foreign Judgement Ordinance 1922 (The equivalent of the United Kingdom’s Administration of Justice Act of 1920).
– The Foreign Judgements Reciprocal Enforcement Act CAP F35 LFN 2004. This is the current law (This is the equivalent of UK’s Foreign Judgements Reciprocal Enforcement Act 1933).
THE RECIPROCAL ENFORCEMENT OF FOREIGN JUDGEMENT 1922.
The ordinance was enacted for reciprocal enforcement of judgements obtained in Nigeria and in the common wealth countries. The Law automatically applies to England, Ireland and Scotland… Judgements obtained from these countries can be registered in Nigeria-Sc 3(1) of the Ordinance. The governor general is empowered to extend its application by a proclamation to any other parts of the commonwealth-Part 1 of the ordinance. Extension was made by proclamation pursuant to Section 5(1) of the Law to certain countries namely: Sierra Leone, Gambia, Jamaica, Trinidad and Tobago and so on (this is in addition to England, Ireland and Scotland).
The procedure: The application for registration must be made within twelve months from the date of the judgment (or such longer periods as is allowed by the courts)-Marine and General Assurance Plc V Overseas Union Insurance Ltd and others. Andrew Mark Macaulay V RZE of Austria.
The Ordinance only applies to judgment or order given by a court in any civil proceeding made before or after the commencement of the ordinance. Note further that the ordinance applies to money judgments only. An award in an arbitration needs leave for enforcement Tulip Nigeria Ltd V NTMSAS 2011.
Section 3 sub 2 provides the grounds or refusing registration (Which is very similar to the common law position):
– That the original court (where the judgment was delivered) acted without jurisdiction.
– That 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 the court-Grovesnor Casinos Ltd V Ghassan Haloui.
– That the judgment debtor being 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 or agreed to the jurisdiction of the court.
– That the judgment was obtained by fraud.
– The judgment was in respect of a course of action which for reasons of public policy or similar reason could not have been entertained by the registering court. We move on to
THE FOREIGN JUDGEMENTS RECIPROCAL ENFORCEMENT ACT
Part one of the act provides for the registration of foreign judgments.
Under Section 3(1):
If the minister is satisfied that (in the event of benefits conferred by this part of the act being extended to judgments given in the superior courts of any foreign country) substantial reciprocity would be assured as respects the enforcement in that country of judgment given in the superior courts in Nigeria… he may by order direct that (a) this part of the act shall extend to that foreign country and (b)- That such courts of that foreign country as are specified in the order shall be deemed superior courts of that country for the purposes of this part of the act.
The import of the above is that; there should be reciprocity between Nigeria and the other country. Nigeria would not be ready to extend unless it is assured that the foreign country would do the same for it in similar situations. In lay terms; do unto Nigeria what you want Nigeria to do unto you. If you want Nigeria to enforce judgments obtained in the courts of your country, then you should be willing to enforce judgments obtained from Nigeria in your country.
Note that this Act applies to “any country” on the basis of reciprocity While the first one discussed above (the 1922 Act) applies to common wealth countries and those the Gov general extended its application to.
Under Section 3(2):
:: It should be a judgment of a superior court of record.
:: The judgment should be final and conclusive as between the parties: notwithstanding that it may still be subject to an appeal. So long as the superior court of record has conclusively decided.
:: It must relate to money: which should not be tax or charges or revenue.
:: The judgment should have been given after the coming into operation of the law.
:: Application must be made to a superior court of record in Nigeria within 6 years after the date of the judgment for registration. Where pre-requisites have been fulfilled, it would be registered.
:: There can be no registration of a judgment if the judgment debt has been wholly satisfied/liquidated.
:: If the judgment is unenforceable in the country where it was obtained, it cannot be enforced in Nigeria-Section 4(1).
It shall bear the date of registration and shall carry interest. Under Section 4(3), if the judgment was given in a foreign currency, it shall be registered in Nigerian currency at the date or at the rate prevailing at the date of the judgment of the foreign court. Also note that if the judgment is partly satisfied, it shall be registered only as per the balance.
Once registered, the judgment has the same force and effect as though it had been given in Nigeria. The judgment debtor may however apply to set it aside on the following grounds (the same as above listed for common law and the 1922 Act)
– That the original court had no jurisdiction in the circumstances of the case.
– That the judgment debtor being the defendant in the proceeding in the original court did not receive notice of those proceeding in sufficient time to enable him defend the proceedings and did not appear… (Notwithstanding that the process may have been duly served on him in accordance with the law of the country of the original court) Meaning that event though the defendant may have been served with the process, if he can establish that he did not receive notice of the service within a reasonable time for him to defend and in fact, he did not go to defend the matter, the registration can be set aside.
– That the judgment was obtained by fraud.
– Enforcement of the judgment would be contrary to public policy in Nigeria.
– That the rights under the judgment are not vested in the person whom the application for registration was made. Meaning that the person that applied does not have locus standi.
– No registration of cases violating the rule against double jeopardy.
See Section 6(3) for like cases which goes to the root of the jurisdiction of the court.
INSTANCES WHERE THE COURT MAY BE DEEMED TO HAVE JURISDICTION:
- Where there is voluntary submission to the jurisdiction of the court (or an agreement to submit to its jurisdiction), residence or substantial connection with the forum-Section 6(2)(a).
- Where judgment was given in an action of which the subject matter was immovable property (or in an action in rem where the subject matter was moveable property if the property in question was at the time of proceedings), in the country of that court-Section 6(2)(b).
- In other cases, it is left to the forum court to determine whether the foreign court had jurisdiction in respect of the case- Section 6(2)(C). This is an omnibus provision.
The discussion above on jurisdiction and vitiating elements above also apply to this Act. See Section 10 of the Act.