Recognition and Enforcement of Foreign Judgment in Nigeria Court By Gobir Habeeb Bolaji
Basically, it’s a trite law that, the powers of courts are limited by their territorial boundaries. Thus, a judgment delivered by the court of one country should ordinarily have no force or effect beyond its own territory on the basis of territorial jurisdiction. Hence, a judgment delivered by a foreign court, may not be enforceable within the territorial boundary of Nigeria.
A judgment creditor who received judgment in a foreign court against a judgment judgement debtor residing in Nigeria, often find it difficult to enforce the judgment within the territorial boundary of Nigeria. Thus, rendering the judgment to be nugatory.
In a bid to ensure transparency in the dispensation of justice in Nigeria, the law provided for two ways of upon which a foreign judgement can be recognized and enforced in Nigeria. These two method are:
1. By reciprocity or reciprocal enforcement
2. By action at common law
It should however to be noted that, only monetary foreign judgement are enforceable in Nigeria by this method. All other judgement arising outside the purview of monetary claim are not enforceable in whatever way in Nigeria.
Basically, these are the two method upon which foreign judgement can be enforced in Nigeria court. However, in term of relevancy and applicability, recourse is often given to the former as the proper and safer way of enforcing foreign judgement in Nigeria. The latter can only be used when the conditions stipulated for the former could not be complied with. Premise on this, only the reciprocity or reciprocal enforcement method will be discussed in this article.
RECIPROCITY OR RECIPROCAL ENFORCEMENT
This is the most applicable and common method of recognising and enforcing foreign judgement in Nigeria. Under this, foreign judgement are enforced in Nigeria court on the basis of reciprocity. I.e the foreign country whose Court judgement is been purported to be enforce in Nigeria court must also be ready to reciprocate by enforcing the judgement of Nigeria court in its territory when the need arise.
In addition to this, the foreign judgement must be made by a superior court of the foreign country and the judgement must be conclusive and final between the parties thereto. Similarly, the judgement will be deemed to be conclusive between the Parties even if their is appeal lying against that judgment in the foreign country.
Generally, the minister of justice is saddled with the power to make an order in respect of Countries who render reciprocal enforcements to Nigeria to be listed under part 1 of the foreign judgement (reciprocal enforcement) Act. The foreign judgement Act was enacted in 2004 and it contains provisions regulating the enforcement of foreign judgement in Nigeria. Only the judgement of countries listed under the Act will be enforceable in Nigeria court. This is provided under section 3(1)(a) of the Act which provides thus:
” The Minister of Justice if he is satisfied that, in the event of the benefits conferred by this Part of this Act being extended to judgments given in the superior courts of any foreign country, substantial reciprocity of treatment will be assured as respects the enforcement in that foreign country of judgments given in the superior courts in Nigeria, may by order direct: (a) that this Part of this Act shall extend to that foreign country.”
Also see the case of Macaulay v. K.Z.B. of Austria (2003) 18 NWLR (Pt. 852) 282 at 296, (2004) FWLR (Pt. 192) 135 at 144,
From the wordings of the section cited above, it clearly shows that, judgments from countries listed in Part 1 of the Act should be given full accord of judgment recognition and enforcement reciprocity. Regrettably, no country has been granted such fellowship by the Nigerian Minister of Justice. Till date, Nigeria minister of justice has not include any country in the Act.
However, section 9 of the foreign judgement (reciprocal enforcement) Act, extended the effect of section 3(1)(a) to some Commonwealth countries jurisdiction. Therefore, judgement of countries under commonwealth can be recognised and enforced under the Act even though it has not been listed under Part 1 of the Act pursuant to the ministerial order. The section provides thus:
” This Part of this Act 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 judgment obtained in the courts of foreign countries.”
Similarly, section 10 of the Act allows the recognition and enforcement of foreign judgement in the absent of the order of the minister of justice. This is the case in Nigeria, since the minister of justice failed to include any countries to part 1 of this Act, judgement of foreign countries can be enforced in Nigeria court in the absent of the minister order. By this, Judgments from all jurisdictions can be recognised and enforced in Nigeria and thus, opens the door wide open for Nigeria’s recognition of the judgments of superior courts of all countries of the world. The section provides thus:
” 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.”
From the wordings of the section cited above, a proper perusal of it will shows that, the word ” _Registration within 12 months was visible.”_ The importance of registering a foreign judgement before it can be enforced in Nigeria court will be discussed below.
REGISTRATION OF FOREIGN JUDGEMENT
In addition to the above discussed requirements, a judgement creditor who is desirous and eager to enforced a foreign judgement in Nigeria court under the Act must apply to have the judgement registered before a superior court in Nigeria. The Act defines superior courts in Nigeria as “ the High Court of a State or of the Federal Capital Territory, Abuja or the Federal High Court”.
These are the courts of first instance where foreign judgments are registered and enforced.
Importantly, it should be noted that one of the conditions the court will consider before registering any foreign judgement still lies on reciprocity. By this, the judgement creditor, must either show that the foreign country is one listed under part 1 of the Act or in the absence of the order of the minister of justice, other countries covered by S. 9 and 10 of the Act.
Equally, The minister of justice is empowered to advise the court against registration of a foreign judgement, if he is satisfied that the said country will not reciprocate in respect of judgement delivered by Nigerian court.
However, the duration for a judgement creditor to registered the judgement differs. If the judgement sought to be enforced was delivered by the court of a foreign country listed under part 1 of the Act pursuant to the ministerial order, or those countries covered by section 9. Of the Act (commonwealth countries), same must be registered within 6 years of delivery of judgement in the foreign court. This is provided under section 4 of the Act which provides thus:
” A person being a judgment creditor under a judgment to which this Part of this Act applies, may apply to a superior court in Nigeria at any time within six years after the date of the judgment “.
For other countries not listed under the Act, but whose court judgement is sought to enforced in Nigeria,( those covered by s. 10 of the Act in the absence of ministerial order) the said judgement must be registered within 12 months of delivery in the foreign court. This was affirmed by the court in the case of TELEGLOBE AMERICA INC V CENTURY TECHNOLOGIES LTD (2009) CLRN 9, 32 where the court of Appeal held thus:
” There is nothing placed by this court to show that there is an Order by the Minister of Justice extending the provision of part 1 of the Reciprocal Act to Judgments given in United States. The applicant therefore has twelve months from the date of the Judgment within which to register it in Nigeria “.
From the decision of the court stated above, it clearly shows that, in the absence of the order of minister of justice, judgement of other countries can be registered within 12 months of delivery of the judgement in the foreign country.
Interestingly, under the Act, a Nigerian court can extend time within which a judgment creditor may apply to register a judgment. Generally, an application for extension of time within which to register a judgment outside the statutory period shall involve the exercise of the judge’s discretionary power which is exercised judicially and judiciously with regard to the circumstance of the case.
Equally, by the virtue of S. 4(4) of the Act, where the Judgement has been partly enforced, the judgement will not be registered in respect of the part of the judgement that was enforced, but will be registered in respect of the other part of the judgement that haven’t been enforced. The section provides thus:
” If, at the date of the application for registration, the judgment of the foreign court has been partly satisfied, the judgment shall not be registered in respect of the whole sum payable under the judgment of the foreign court, but only in respect of the balance remaining payable at that date “.
Upon successful registration, the High court for the purpose of execution has power to deal with the judgement as if it were its own judgement.
It should be noted however, that there is a whole world of difference between Recognition and enforcement of judgement. The enforcement of a judgment is a separate proceeding from the recognition and registration of the judgment itself. But every judgment that must be enforced must first be recognised and duly registered. At recognition, the foreign judgment becomes the judgment of the Nigerian Court while at enforcement, the judgment is enforced against the Debtor as though it was delivered by the Nigerian Court.
Most Importantly, the judgement debtor may apply to set aside the registration of a foreign judgement, provided same is done timeously. This can be done in any of the following circumstances as provided under S. 6(1) of the Act.
✔ Where the foreign court lacked jurisdiction to entertain the suit
✔ Where the judgement is not one to which part 1 of the Act applies or that the Act has not been complied with
✔ Where the judgment was obtained by fraud
✔ Where the judgment is against public policy in Nigeria
✔ Where the judgment has been wholly satisfied;
✔ Where the judgment was not delivered by a superior court
As pointed earlier, foreign judgement ordinarily have no effect in Nigeria unless and until a party who wish to enforce same in Nigeria can satisfied the above discussed requirements of the law.
The law is quite lucid in this regard.
Ordinarily, only the judgement of countries who are listed under the Act upon the minister of justice order can be enforced in Nigeria, and only country who render reciprocity to Nigeria judgement will be listed under the Act. However, ever since the inception of the Act, the minister of justice has not included any country under the Act.
In other to ensure the functionality of the Act, the drafter went ahead to give priority to judgement delivered by Commonwealth countries by making a provision which allows the registration of judgement delivered in their country to be enforced in Nigeria. On the same ground, the Act went further to allow the enforcement of foreign judgement of any country to be enforced in Nigeria in the absence of the order of the minister of justice. This is basically what is obtainable till date.
Gobir Habeeb Bolaji is a 300level law student of usmanu Danfodiyo university, sokoto
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