The Enforcement of Foreign Judgments in Nigeria: Scope and Conflict of Laws Questions

Published date01 February 2015
Date01 February 2015
Pages129-143
DOI10.3366/ajicl.2015.0113
INTRODUCTION

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).1

I. O. Agbede, Themes on Conflicts of Law , Shaneson (1989).

Thus a judgment (inclusive of a commercial arbitral award), pronounced by the court of one jurisdiction, may have no force or effect beyond its own territory save for situations where other jurisdictions or states have agreed to allow reciprocal enforceability within their own territories of judgments of Nigerian courts. There is no specific bilateral agreement of reciprocity signed by Nigeria with any foreign country at present

The Reciprocal Enforcement of Foreign Judgments Ordinance,19582

CAP 175, Laws of the Federation of Nigeria and Lagos, 1958 (a colonial statute in Nigeria which was originally enacted as LN 8, of 1922 and is still in force as an enabling statute).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.3

See section 1, 1958 Ordinance.

While the Foreign Judgment (Reciprocal Enforcement) Act, 20044

CAP F35, Laws of the Federation of Nigeria, 2004 (originally enacted as LN 56 in 1961).

(‘the 2004 Act’) specifically empowers the Nigerian Minister of Justice to extend the reciprocal treatment to any foreign country with substantial reciprocity of treatment with respect to the enforcement of foreign judgments.5

See section 3, 2004 Act.

To date, the Minister of Justice is yet to act as provided under the 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 Awards6

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.7

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.8

.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.9

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 Schibsby v Westenholz10

(1870) LR 6 QB 155 at p. 159. The doctrine was also approved in Adams . Cape Industries Plc (2004), ch. 433.

as follows

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.

LEGAL REGIME REGULATING ENFORCEMENT OF FOREIGN JUDGMENTS IN NIGERIA

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 Grosvenor Casinos Limited v Halaoui11

[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 Minister of Justice of the Federation of Nigeria to extend the application of Part I of the Act with regard to registration and enforcement of foreign judgments of superior courts to any foreign country, including the United Kingdom, if he is satisfied that the judgments of our superior courts will be accorded similar or substantial reciprocity in those foreign countries. Once an order is made under section 3 of the Act in respect of part of Her Majesty's dominions to which the Reciprocal Enforcement of Judgments Act, Cap. 175, Laws of the Federation of Nigeria, 1958 earlier applied, the latter ceases to apply as from the date of the order. However, the Minister of Justice has not exercised the power in respect of any foreign country under the Act. Thus, section 6 of the Foreign Judgments (Reciprocal Enforecement) Act, Cap. 152, Laws of the Federation of Nigeria, 2004 is yet to come into force in the absence of the Order to bring it into force together with other sections in Part I of the Act by the Minister of Justice…Taking into consideration that Part I of the Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152 of the Laws of the Federation, 2004, comprising sections 3, 4, 5, 6, 7, 8, 9 and 10, is to come into force only at the instance of the Minister of Justice by an order issued by him as specified in section 3 of the Act, and in the absence of this order directing the application of Part I of the Act to the chosen countries specified in the order, the provisions of the earlier 1958 Reciprocal Enforcement of Judgments Act, Cap. 175, remains applicable to the registration of foreign judgments in Nigeria, particularly judgments of the United Kingdom, one of which is the subject of this appeal. In other words, section 6 of the 2004 Act which was relied upon by the parties at the courts below and interpreted on appeal by the Court of Appeal below in its judgment is yet to come into force in the absence of the order to bring it into force together with the other sections in Part I of the Act by the Minister of Justice. This situation makes it necessary to fall back to the 1958 Ordinance to determine whether or not the foreign judgment of the appellant was registrable under the Act.

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 Act12

CAP 112, Laws of the Federation of Nigeria, 2004.

. A few of these High Court cases later went on appeal as discussed below.

In Dale Power Systems Plc v Witt & Bush Ltd13

(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 Halaoui v Grosvernor Casinos Limited14

(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 Halaoui case, the Court of Appeal was silent on the issue of the applicability of the 1958 Ordinance. This would, however, seem to be due to the fact that it was not canvassed before that court by any of the parties. It is submitted, however, that much of the confusion on the applicable law regulating the...

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