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
CONCLUSION
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
08108527278 Habeebgobir2@gmail.com
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