Enforcement Of Foreign Judgements In Nigeria – By OLUFE J. POPOOLA
It is apposite to note that for foreign judgments to be enforced in Nigeria, it must first be registered through an Order of the Court. Where it is impossible to carry out or effect the registration of the foreign judgment, resort must then be had to the filing of a new action/suit geared towards the enforcement of the foreign judgment.
The legal framework in Nigeria for the recognition and enforcement of foreign judgments are;
- the Foreign Judgments (Reciprocal Enforcement) Act Cap. F35, Laws of the Federation of Nigeria, 2004,
- the Reciprocal Enforcement of Judgments Ordinance, Cap 175, Laws of the Federation of Nigeria and Lagos, 1958, and
- the Civil Procedure Rules of various High Courts.
It is important to note also that before the Courts in Nigeria will consider registering a foreign judgment, there are certain factors that the Courts must consider.While the Nigerian Courts are enjoined to consider public policy and whether the subject matter resulting in the original judgment is legitimate under the Nigerian Law when making decisions in such respect, Section 3(2)of the Foreign Judgment (Reciprocal Enforcement Act provides that “Any judgment of a superior court of a foreign country to which this Part of the Act extends other than a judgment of such a court given on appeal from a court which is not a superior court, shall be a judgment to which this part of this Act applies, if –
- it is final and conclusive as between the parties thereto; and
- there is payable there under a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and
- it is given after the coming into operation of the order directing that this Part of this Act shall extend to that foreign country, or if it is a judgment to which section 10 of this Act applies“.
Other conditions that the Nigerian Courts have considered outside the aforesaid provisions are;
- It must be one given by a superior Court in that foreign country.
- The original Court must have had jurisdiction to hear the matter.
METHODS OF ENFORCEMENT OF FOREIGN JUDGMENTS IN NIGERIA
There are two ways in which a party or a beneficiary or a judgment creditor of a foreign judgment can enforce foreign judgments in Nigeria. These modes or ways are by:
- Through enforcement at Common Law, and
- Through enforcement by Reciprocal Enforcement.
THROUGH ENFORCEMENT AT COMMON LAW
Where a foreign judgement is not registered or enforced under the Act or the Ordinance, such judgment may however still be enforceable in Nigeria where the concerned party institutes a fresh suit in Nigeria together with the application for a summary judgment. The foreign award or judgment may serve as evidence that the defendant is owing a liquidated sum and that such defendant does not have any defence to the claim. If the summary judgment application is successful, the judgement can be enforced against the defendant under the provisions of the Sherriff and Civil Process Act.
Under the Civil Rules of various High Courts in Nigeria, any person may commence a civil action against a defendant at a place he/she resides, even when the cause of action did not arise there. Therefore, if a foreign judgment debtor resides in Nigeria, legal action can validly be brought against such a person under the Nigerian law relying on the foreign judgement given against such person.
THROUGH ENFORCEMENT BY RECIPROCAL ENFORCEMENT
Under this procedure, the enforcement of the foreign judgment is done on the foundation of reciprocity to wit; that the foreign country whose court delivered the judgment must be equally ready to enforce judgments delivered by Nigerian Courts in its foreign Courts.
Section 10 of the Act provides that “Notwithstanding any other provision of this Act –
- 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; and
- any judgment registered under the Reciprocal Enforcement of Judgments Ordinance at the time of the coming into operation of an order made under section 3 of this Act in respect of the foreign country where judgment was given shall be treated as if registered under this Act and compliance with the rules applicable to the former Act shall satisfy the requirements of rules made under this Act”.
In registering a foreign judgment under this method, the concerned party must bring an application (Ex-parte) urging the court for leave to register the foreign judgment. However, the Court still maintains the absolute discretion to register the foreign judgment or not.
If on the date of bringing an application for registration, a foreign judgment will not be capable of enforcement in its original country where it was delivered, it will not be registered in Nigeria. See Section 4(1) of the Foreign Judgment (Reciprocal Enforcement) Act.
Upon registration, the “High Court” in Nigeria can now enforce the foreign judgment as if it emanated from it. The time within which a foreign judgment can be enforced is six (6) years from the date of delivery of judgment.See Section 4 of the Act.
MEANS OF JUDGMENT ENFORCEMENT
The suitable means to enforce the said judgment are:
- Garnishee Proceedings;
- A writ of execution;
A) Garnishee Proceedings: –
This is a process whereby the funds belonging to the Judgment Debtor which is in the possession of a third party (i.e., the garnishee) is attached to satisfy the judgment debt. This can be done by filing a Motion Ex-parte for the grant of the Garnishee Order Nisi by the Court and the enrolment Order issued under the hand of the Judge served on the garnishees to show cause why the funds standing to the credit of the Judgment Debtor should not be attached and paid to the Judgment Creditor as well as the Garnishee Order Nisi should not be made absolute by the Court.
B) Writ of Fifa/Execution: –
Where the sum gotten from the Garnishee Proceedings by the Judgment Creditor cannot fully satisfy the debt owed by the Judgment Debtor or where the Judgment Creditor cannot find any sum to satisfy the debt owed by the Judgment Debtor, immovable property and chattels of the judgment debtor are attached by a writ and Court Order to sell the property and chattels for the purpose of recovering the judgment debt.
In conclusion, foreign judgments to be enforced in Nigeria must first be registered through an Order of the Court. Where it is impossible to carry out or effect the registration of the foreign judgment, resort must then be had to the filing of a new action/suit geared towards the enforcement of the foreign judgment in Nigeria