Introduction

Recognition and enforcement of foreign judgments refer to the legal process of acknowledging and enforcing court decisions made in a different country. This aspect of the legal system is essential for maintaining the integrity of international law and ensuring justice is upheld across borders.

When it comes to enforcement of foreign judgments, it is crucial to understand the legal requirements and procedures involved. Typically, this process involves submitting the foreign judgment to a local court and demonstrating that it meets certain criteria for recognition and enforcement. This may include proving that the judgment was issued by a court with jurisdiction and that the parties involved were given a fair opportunity to present their case.

In cases where a foreign judgment is recognized and enforced, it can have significant implications for the parties involved. It can provide relief to plaintiffs seeking to collect on a judgment or uphold their rights, while also holding defendants accountable for their actions regardless of where they took place.

The process of recognising and enforcing foreign judgments in Nigeria is a serious aspect of the legal system that ensures the enforcement of rights and obligations arising from international transactions. This article provides an overview of the procedures and regulations governing the recognition and enforcement of foreign judgments in Nigeria.

Legal regime for the recognition and enforcement of foreign judgments

Nigeria, as a member of various international conventions, including the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, has established a legal framework for the recognition and enforcement of foreign judgments. The country has also signed bilateral agreements with several countries to facilitate the recognition and enforcement of judgments.

In Nigeria, the recognition and enforcement of foreign judgments are governed by the Reciprocal Enforcement of Judgments Ordinance (Cap 175 LFN 1958), the Foreign Judgment (Reciprocal Enforcement) Act (Cap F34 LFN 2004), and common law.

1. The Reciprocal Enforcement of Judgments Ordinance: This covers judgments issued by courts in the UK, Ghana, Sierra Leone, Gambia, Barbados, Bermuda, British Guiana, Gibraltar, Grenada, Jamaica, the Leeward Islands, Newfoundland, New South Wales, St Lucia, St Vincent, Trinidad and Tobago, and Victoria.
2. The Foreign Judgments (Reciprocal Enforcement) Act: This Act outlines the procedures for enforcing judgments from designated countries. It provides a clear and transparent process for parties seeking to enforce foreign judgments in Nigeria, ensuring that the rights of all parties involved are protected.
3. The common law: Under common law, a foreign judgment is considered a debt and creates a new cause of action for the creditor. This view remains valid in Nigeria until it is repealed or modified by statute.
4. Other applicable legislations: The Sheriffs and Civil Processes Act, as well as the civil procedure rules of courts, where the registration and enforcement are sought are also applicable,

Enforcement of foreign judgment under the Reciprocal Enforcement of Judgments Ordinance

The Ordinance applies to judgments obtained in the following Commonwealth countries/territories: Sierra Leone, Ghana, Gambia, Newfoundland, New South Wales, Victoria, Barbados, Bermuda, British Guiana, Gibraltar, Grenada, Jamaica, the Leeward Islands, St Lucia, St Vincent, and Trinidad and Tobago.

The registration process under the Ordinance must be done within 12 months of the judgment date, or a longer term as permitted by the court.

A judgment from another nation may only be recognized and upheld in Nigeria in accordance with Section 3 of the Ordinance if:

• It is a decision rendered by a High Court in England or Ireland, the Court of Session in Scotland, or a superior court of record in the area of Her Majesty's domain to which the Ordinance has been declared applicable by proclamation under Section 5 of the Ordinance (i.e., the Commonwealth countries)

Under Section 3 of the Act, a judgment of a foreign country shall only be recognised and enforced in Nigeria if:

• it is a judgment of a superior court of record;
• it is a final and conclusive judgment as between the parties;
• the judgment was delivered by a court of competent jurisdiction; and
• the judgment is for a definite sum of money, but not for money recoverable as tax, a fine or another penalty

Foreign Judgments that cannot be enforced under the ordinance

According to the Ordinance, a foreign judgment cannot be registered or enforced if:

• The original court lacked jurisdiction, or
• If the judgment debtor did not reside or conduct business within the original court's jurisdiction; or
• The judgment debtor did not live, conduct business, or submit to the jurisdiction of the original court, meaning that the judgment debtor was not subject to the jurisdiction of the original court; or
• Despite the judgment debtor's domicile or place of business being within the court's jurisdiction, the judgment debtor did not show up for the proceedings or receive court process serving them; or
• There was fraud involved in obtaining the judgment; or
• The judgment debtor certifies to the court that it plans to file an appeal against the judgment, or there is an appeal pending about the judgment;
• The judgment concerned a cause of action that the registration court was unable to consider due to public policy; or

Procedure for registration and enforcement of foreign judgments under the Ordinance

• An application under the Ordinance seeking leave to register a foreign judgment is to be made by a petition ex parte or on notice to a judge. The judge may direct a petition made exparte to be made on notice. The petition is to be supported by an affidavit of facts exhibiting a certified copy of the judgment and stating that to the best of the information and belief of the deponent, the judgment creditor is entitled to enforce the judgment.
• Upon hearing the petition, the court may, by an order, grant the judgment creditor leave to register the judgment. Where the order granting leave is made, the order must be served on the judgment debtor where the order is made upon a petition on notice. However, where the order is made upon a petition ex parte, no service of the order on the judgment debtor is required.
• Thereafter the judgment is to be registered along with the order granting leave to register it in the register of judgments kept in the High Court Registry.
• Notice of the registration is to be served on the judgment debtor within a reasonable time after such registration.
• The judgment debtor may, within the time limit specified in the order granting leave to register the judgment, apply by originating petition to a judge to set aside the registration or suspend the execution of the judgment. The judge may, if he is satisfied that the case comes within one of the restricted cases in respect of which may not be registered, or for any other reason, order that the registration be set aside or execution on the judgment be suspended either unconditionally or on such terms as he thinks fit.
• Upon registration, the judgment has the same force and effect as a judgment delivered by the registering court and the registering court has the same control and jurisdiction over the judgment as it has over its own judgment. A registered judgment cannot be executed until the expiry of the time limit specified in the order granting leave to register the judgment.

Enforcement of foreign judgment under the Foreign Judgments (Reciprocal Enforcement) Act

Section 4 of the Act stipulates that foreign judgments are only enforceable by Nigerian courts if they fall under Part I of the Act, which is defined as final and conclusive foreign superior court judgments involving a sum of money payable that is not recoverable as tax, fine, or other penalty.

The Act specifies when a registered judgment may or may not be set aside as follows:

• The judgment is not a judgment to which Part 1 of the Act applies or was registered in contravention of the provisions of the Act;
• The courts of the country of the original court had no jurisdiction in the circumstances of the case;
• The judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) received notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear;
• The judgment was obtained by fraud;
• The enforcement of the judgment would be contrary to public policy in Nigeria; or
• The rights under the judgment are not vested in the person by whom the application for registration was made.

Accordingly, the types of foreign judgments that will not be enforced in Nigeria are:

• Interim and interlocutory orders;
• Judgments obtained from an inferior court in the foreign country; and
• Judgments that are not in respect of a monetary sum or, where in respect of a monetary sum, the sum is payable in respect of taxes, or other charges of a like nature.
• If a foreign judgment was fully satisfied at the time of the application or could not have been executed in the place where the original court was located, it will also not be registered and will be unenforceable.

Enforcement of foreign judgment under the Common Law

Under Common Law, a foreign judgment is considered a debt that gives birth to a new cause of action by the creditor. The common practice among the many Common Wealth Countries appears to be the inability of a judgment creditor to directly enforce the judgment in the country of the judgment debtor.

According to Common Law, the foreign judgment creates an obligation, but the judgment creditor must file a new lawsuit in response to the decision. Direct execution cannot be carried out by the judgment creditor. These judgments are regarded under common law as proof of debt.

A Writ of Summons and an application for summary judgment are typically used to start a new action. A judgment debtor may raise more defenses against the action to enforce the judgment under this approach.

A party wishing for a foreign judgment to be recognized and enforced in Nigeria must file a suit before a Nigerian court based on the foreign judgment. However, in order for a foreign judgment to be recognized and upheld in Nigeria under the Common Law system, it must meet the requirements mentioned below:

• The judgment must be a judgment of a superior court of the country of the original court with the requisite jurisdiction to entertain such matter. The court that delivers the judgment must be court of competent jurisdiction over the foreign defendant. In the case of Emmanuel v Symon (1908) 1 K. B. 302, the court stated instances where a foreign judgment will be enforced to include:
  1. where the defendant is a subject of the foreign country in which the judgment has been obtained;
  2. where he was resident in the foreign country when the action began:
  3. where the defendant in the character of the plaintiff has selected the forum in which he was afterward sued;
  4. where he has voluntarily appeared; and
  5. where he has contracted to submit himself to the forum in which the judgment was obtained.
• The judgment must be for a specific amount of money. If the decision relates to a number that will fluctuate in the future or to expenses and damages that must be assessed, it is not definitive nor final in that sense because the total amount cannot be determined at that point.
• Between the parties to it, the judgment must be conclusive and final. Before it can be enforced, a foreign judgment must be final and conclusive in the court that issued it. A judgment in this regard is not definitive and final, and therefore cannot be enforced under the Common Law, if it can be reopened by additional processes in which defenses might be brought that may not have been pleaded in the earlier proceedings.
• The judgment must not have been obtained by fraud. The court will quickly refuse recognition and the judgment will not be enforced if it was obtained through illegal means.
• If the judgment is for res other than money, the res must have been situated at the foreign court's jurisdiction at the time of delivery of the sought judgment.

It is important to note that unsatisfied parties may still file an appeal in the original country even after a foreign judgment is registered in Nigeria.

Impact of a registered judgment

A judgment that has been registered has the same force and effect as the registering court's judgment for the purposes of execution.

Conclusion

The recognition and enforcement of foreign judgments in Nigeria are governed by specific legal frameworks and conditions. While there are challenges to recognition and enforcement, the process can be navigated effectively by understanding the legal requirements and procedures involved.

To enforce a foreign judgment in Nigeria, a party must file an application with the High Court, providing the necessary documents and evidence to demonstrate the validity of the judgment. The court will then review the documents and hear arguments from both parties before making a decision on whether to enforce the judgment.

It is important to note that the recognition and enforcement of foreign judgments in Nigeria are subject to certain conditions, including the requirement that the judgment must be final and conclusive, the court that issued the judgment must have jurisdiction, and the judgment must not be contrary to public policy in Nigeria.

Overall, the recognition and enforcement of foreign judgments in Nigeria play a crucial role in upholding the rule of law and protecting the rights of parties involved in international transactions. By following the established procedures and regulations, parties can ensure that their rights and obligations are enforced in a fair and impartial manner, contributing to a more efficient and effective legal system in Nigeria.

Recommendation

To ensure the smooth recognition and enforcement of foreign judgments in Nigeria, the following recommendations are made:

• Clear Understanding of Legal Frameworks: Courts, legal practitioners and litigants should have a clear understanding of the legal frameworks governing the recognition and enforcement of foreign judgments in Nigeria.
• Compliance with Conditions: Foreign judgments should comply with the conditions outlined in the legal frameworks to ensure recognition and enforcement.
• Proper Procedure: The proper procedure for recognition and enforcement should be followed to avoid challenges and ensure the effective enforcement of foreign judgments.
• Reciprocal Arrangements: Nigeria should consider establishing reciprocal arrangements with other countries to facilitate the recognition and enforcement of judgments.
• Legal Advice: A person wishing to enforce a foreign judgment in Nigeria should obtain legal counsel regarding the applicable legal regime for the specific judgment sought to be enforced, the court having jurisdiction over the subject matter, and the judgment debtor's right of appeal. The application for enforcement should be submitted no later than 12 months from the date the judgment was delivered.

Note: The content of this article is anticipated to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstance.

Author:  Adeola Oyinlade & Co.