The Enforcement of Foreign Judgments in Nigeria: Scope and Conflict of Laws Questions
| Published date | 01 February 2015 |
| Date | 01 February 2015 |
| Pages | 129-143 |
| DOI | 10.3366/ajicl.2015.0113 |
| Author | Yomi Olukolu |
It is a generally acceptable principle of Conflict of Laws that the powers of the courts are limited by their territorial boundaries (i.e. territorial jurisdiction).
I. O. Agbede,
The Reciprocal Enforcement of Foreign Judgments Ordinance,1958
CAP 175, Laws of the Federation of Nigeria and Lagos, 1958 (a colonial statute in Nigeria which was originally enacted as LN 8, of 1922 and is still in force as an enabling statute).
(‘the 1958 Ordinance’) only extends the reciprocity treatment to the judgments from the courts in Britain and other Her Majesty's territories within the British Commonwealth.See section 1, 1958 Ordinance.
CAP F35, Laws of the Federation of Nigeria, 2004 (originally enacted as LN 56 in 1961).
See section 3, 2004 Act.
The foregoing statutes are the enabling laws and they form the bedrock of the recognition and enforcement of foreign judgments in Nigeria with grave internal conflicts of the application of both laws in the Nigerian courts.
However, Nigerian courts seem to enforce foreign judgments, especially foreign arbitral awards, of states that are made in any contracting state to both the Convention on the Recognition and Enforcement of Foreign Arbitral Awards
New York, 10 June 158.
(‘New York Convention’) and the International Convention on the Settlement of Investments Disputes (ICSID) to which Nigeria is a party.Nigeria has not only signed and ratified both Conventions but also has taken further steps to domesticate both pursuant to section 53 of the Arbitration and Conciliation Act, Laws of the Federation of Nigeria, 2004 and the ICSID Act, Laws of the Federation of Nigeria, 2004.
Two schools of thought have emerged over the years as rationalisation for the recognition and enforcement of foreign judgments.
.For a detailed discussion of the various theories, see John O'Brien; Smith's Conflict of Laws, 2nd edn , Routledge–Cavendish (1999), pp. 263–4.
These are the theories of reciprocity and obligation.These schools of thought have their origins in English law and are applicable in Nigeria by virtue of section 32 of the Interpretations Act, Laws of Nigeria, 2004 as part of the ‘ received English (common) law’.
The theory of reciprocity posits that the courts of country X should recognise and enforce the judgment of country Y, if and only if, country Y is prepared to offer similar recognition and enforcement to the judgments of country X.
The doctrine of obligation, on the other hand, came into prominence in the 19th century and was put forward by Blackburn J. in
(1870) LR 6 QB 155 at p. 159. The doctrine was also approved in
We think that … the true principles on which the judgments of foreign tribunals are enforced in England is … that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the courts in this country are bound to enforce; and any thing which negatives that duty, or forms a legal excuse for not performing it, is a defence to the action.
This paper, therefore, seeks to examine the mechanisms through which foreign judgments are enforced in Nigeria. It also examines some of the prevailing issues, which have recurred in the Nigerian courts, as they relate to the recognition and enforcement of foreign judgments, with a view to bringing to the fore the applicable legal regime for the registration and enforcement of foreign judgments in the Nigerian courts, and the need for urgent reform of the law with a view to aligning the rules with the best practices obtainable in the international comity of nations.
Aside from the local statutes, 1958 Ordinance and the 2004 Act, the New York Convention and ICSID regulate the recognition and enforcement of the foreign judgments (inclusive of arbitral awards) regime in Nigeria.
However, it appears, though surprisingly, that only the 1958 Ordinance is presently the extant enabling law on this subject in Nigeria, apart from the international conventions. The 2004 Act is inchoate as the Nigerian Minister of Justice has not exercised its power, since its promulgation, to extend the application of the law with regard to registration and enforcement of foreign judgments of superior courts to any foreign country, including the United Kingdom. The Nigerian Supreme Court recently held in
[2009] 10 NWLR (Part 1149) 309 at 334–5, 347 per Oguntade and Mohammed JJSC [author's emphasis].
as follows:Section 3 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 2004 empowers the
Prior to the forgoing recent Supreme Court pronouncements, there had been intense intellectual polemics among text writers, commentators and legal practitioners as to which of these two statutes regulates the enforcement of foreign judgments in Nigeria. This confusion emerged as a result of various judgments of both the High Courts and the Court of Appeal in Nigeria that mostly applied the 2004 Act, though in error, the common law rules of private international law (or conflict of laws) and, in extreme cases, the Evidence Act
CAP 112, Laws of the Federation of Nigeria, 2004.
. A few of these High Court cases later went on appeal as discussed below.In
(2001) 8 NWLR (Pt. 716) 699.
the trial High Court had applied the provisions of the 2004 Act in registering the foreign judgment. On appeal, one of the issues raised before the Court of Appeal was whether the 1958 Ordinance was the applicable legislation as regards the registration a foreign judgment obtained from the High Court of Justice in England. The Court held that the trial court was in error in applying the 2004 Act and that the 1958 Ordinance was the applicable legislation.In
(2002) 17 NWLR (Pt. 795) 28.
an application was made to the High Court to set aside the registration of a foreign judgment for noncompliance with the provisions of sections 6(2) of the 2004 Act. The High Court, relying on sections 73, 74(1)(m) and 135(2) of the Evidence Act, declined to set aside the registration of the judgment. On appeal, the Court of Appeal, in setting aside the judgment of the High Court, held that the relevant statue was the 2004 Act, and the Evidence Act and the common law were inapplicable for the enforcement of foreign judgments in Nigeria.In the
To continue reading
Request your trial