The Recognition And Enforcement Of Foreign Judgements In Nigeria

By Oyetola Muyiwa Atoyebi, SAN

INTRODUCTION

The concept of enforcement of judgment more often than not stems from the unwillingness of an unsuccessful party to give effect to the judgment of the court which ought to be binding at the end of litigation.

Any judgment given by a court outside of Nigeria is a foreign judgment and before it can be enforced, it must have first been recognized. A judgment can be recognized and not be enforced, likewise, the enforcement of a judgment can translate to implied recognition. The onus lies on the judgment creditor to a judgment given in a foreign jurisdiction to initiate the process of recognition and enforcement of the judgment in Nigeria^[1].

LEGAL FRAMEWORK FOR THE ENFORCEMENT OF FOREIGN JUDGMENT

The laws that regulate the enforcement of foreign judgment in Nigeria are the Reciprocal Enforcement of Judgments Ordinance^[2] and the Foreign Judgment (Reciprocal Enforcement) Act^[3]. Common law can also be regarded as part of the legal regulation for the recognition and enforcement of Foreign Judgment.

The Reciprocal Enforcement of Judgments Ordinance applies to judgments from England, Scotland, Ireland, Sierra Leone, Ghana, Gambia, Barbados, Bermuda, Gibraltar, Grenada, Jamaica, Leeward Islands, Newfoundland, New South Wales, St Lucia, St Vincent, Trinidad, and Tobago. Judgments from any of these countries are enforced in line with the Ordinance.

It should be noted that Nigeria is not a signatory to any international convention or treaty that relates to the recognition and enforcement of foreign judgments and this means that it is not bound or under compulsion to enforce a foreign judgment.

JURISDICTION FOR RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT

By virtue of the Foreign Judgment (Reciprocal Enforcement) Act, the court with competent jurisdiction to recognize and enforce a foreign judgment is the High Court which translates as the High Court of a state or the High Court of the Federal Capital Territory and the Federal High Court^[4].

For a judgment to be recognized and enforced in Nigeria, it must have been one that is capable of being enforced in the jurisdiction where the judgment was given.^[5] The jurisdiction of the High Court to enforce foreign judgment also extends to final judgment on monetary claims^[6]. The definition of a final judgment for the purpose of enforcement of foreign judgments includes cases pending appeal. Where there is however a pending appeal or an intention to appeal a final judgment, an application by the Appellant can be made to the High Court where the judgment was registered, to set aside the registration pending appeal.

Under the available Ordinance and Act, the period within which a judgment can be registered for enforcement is 12 months from the date of delivery of the judgment.

PROCEDURE FOR ENFORCEMENT OF FOREIGN JUDGMENT IN NIGERIA

A foreign judgment can be enforced either by Reciprocal arrangement or by an action at common law.

Reciprocal Enforcement

The principle that guides this method is the principle of reciprocity. This mode of enforcement is hinged on the willingness of the Country where the judgment was given to enforce the judgment of Nigerian Courts. Countries that Nigeria enjoys this arrangement with ought to be contained in Part 1, Section 3 of the Foreign Judgment (Reciprocal Enforcement) Act by virtue of an order to be made by the Minister of Justice. Interestingly, the order is yet to be made.

An application within 12 months of the delivery of the judgment is to be made to the High Court by way of a Motion Exparte, supported by an affidavit and a written address seeking the leave of court to register the judgment. The Affidavit and written address must contain facts to prove that the foreign judgment was given by a country that has reciprocal arrangement with Nigeria and in some cases, the Court might however, demand that the party be put on notice.

Enforcement at Common Law

Under this method, the procedure is likened to a fresh action as it is instituted by way of a Writ of Summons with the judgment being the cause of action. The applicant (Judgment creditor) is expected to accompany the Writ with an application for summary judgment or an application to enlist the matter under the undefended list. This is particularly necessary for countries that do not have a reciprocal arrangement with Nigeria.

The steps and conditions for the grant of summary judgment are:

1. The other party has no defense and the production of a final judgment is sufficient proof of same.
2. Where the application is granted, the judgment would be executed in accordance with the Sheriffs and Civil Processes Act.
3. The application for summary judgment can however be denied and the case set down for trial where the court is of the opinion that the judgment debtor has a defense.

The conditions to be considered by the court in the enforcement of foreign judgment under common law include:

1. It must be a final judgment,
2. It must have been granted by a court with competent jurisdiction in the country it was given,
3. It must be a monetary claim or in reaction to a res within the jurisdiction of the foreign court.

NIGERIAN COURTS AND ENFORCEMENT OF JUDGMENT

Section 6 of the Foreign Judgment (Reciprocal Enforcement) Act provides for the conditions under which a foreign judgment can be denied enforcement. They include the following:

1. The judgment is not a judgment to which the act or ordinance applies,
2. The courts of the country of the original court had no jurisdiction in the circumstances of the case,
3. The judgment debtor did not receive notice of those proceedings in sufficient time to enable it to defend the proceedings and therefore did not appear before the court (notwithstanding that the process may have been duly served in accordance with the law of the country of the original court),
4. The judgment was obtained by fraud and the enforcement of the judgment would be contrary to public policy in Nigeria,
5. The rights in the judgment were not vested in the person who applied for registration or the matter in dispute before the original court had, on the date of the original judgment, been the subject of a final and conclusive judgment by a court with jurisdiction in the matter.

Furthermore, where the court is faced with conflicting judgments, the local judgment would take precedence and where the judgments are concurrent, the courts would have to decide. The court is also empowered to grant partial recognition to a foreign judgment and enforce it partially where the judgment has been partly satisfied before the application.

This shows that the court is allowed to use its discretion to determine the foreign judgment that would be registerable or otherwise, provided it does so judicially and judiciously.

CONCLUSION

Any judgment given by a court outside of Nigeria is not binding in Nigeria without being registered and enforced as a Nigerian judgment. The different modes of enforcement of judgment are to the end that a foreign judgment is regarded as a Nigerian judgment and can be treated as such. Due to the fact that Nigeria is not a signatory to any international instrument on foreign judgment enforcement, following the procedures and guidelines for the enforcement of judgment might not be granted as the court is under no compulsion to grant same.

SNIPPET:

A judicial decision binding on the parties ought to be the end of litigation. This however does not immediately translate in compliance by parties involved.

KEYWORDS:

Foreign Judgment, Enforcement of Foreign Judgment, Reciprocal Enforcement, Common Law.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN

Mr Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and a broad knowledge of Litigation Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached via atoyebi@omaplex.com.ng   

CONTRIBUTOR: Faridah F. Ajibade

Faridah is a member of the Dispute Resolution Team at OMAPLEX Law Firm. She also holds a commendable legal expertise in Litigation Practice.

She can be reached via farida.ajibade@omaplex.com.ng

^[1] Emmanuel Ekpenyong, ‘An Appraisal Of Challenges Of Enforcing Foreign Judgments In Nigeria’ (2014)  http://www.mondaq.com/Nigeria/x/322886/international+trade+investment/An+Appraisal+Of+Challenges+Of+Enforcing+Foreign+Judgments+In+Nigeria  accessed on 17^th June, 2023

^[2] Chapter 175 of the Laws of the Federation of Nigeria and Lagos, 1958

^[3] Chapter C35 of the Laws of the Federation of Nigeria, 2004

^[4] Section 2 of the Foreign Judgment (Reciprocal Enforcement) Act

^[5] Section 4 (1) of the Foreign Judgment (Reciprocal Enforcement) Act

^[6] Section 3(2) of the Foreign Judgment (Reciprocal Enforcement) Act