Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
Under Section 3(2) of the Foreign Judgment (Reciprocal Enforcement) Act, final and conclusive foreign monetary judgments may be enforced.
Under Section 3(2) of the act, judgments in respect of taxes or similar, or in respect of a fine or other penalty are excluded from recognition and enforcement. The judgment must be that of a superior court in the foreign country. The act does not apply to a foreign judgment given on appeal where the action did not originate from a superior court.
Under Section 4(1) of the act, foreign judgments that have not been wholly satisfied or could not be enforced by execution in the original country cannot be enforced in Nigeria.
How are foreign judgments subject to appeal treated?
Under Section 3(3) of the act, a foreign judgment is deemed final and conclusive, notwithstanding a potential or pending appeal.
However, after the foreign judgment is registered, an application can be brought to set aside its registration if the applicant satisfies the registering court that:
- an appeal is pending; or
- it is entitled and intends to appeal the judgment.
The court may set aside the registration until after a period that it considers sufficient to enable the applicant to take the necessary steps to have the appeal disposed of by the competent tribunal. Under Section 7 of the act, where the registration is set aside under this type of application, it must not prejudice any further applications to register the judgment once the appeal is complete.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
The formal procedure for seeking recognition and enforcement of a foreign judgment varies depending on the law being relied on.
Under the Reciprocal Enforcement of Judgments Ordinance
The judgment creditor must apply to the high court for leave to register the foreign judgment by a petition, either ex parte or on notice. The court reserves the right to put the other party on notice of an ex parte petition. The applicant must support the petition with an affidavit of facts, which should exhibit a certified true copy of the judgment for registration. The supporting affidavit should state the full name, title, trade or business, and usual or last known place of abode or business of the judgment creditor and judgment debtor, respectively. If the court grants leave to register the foreign judgment, the order should be served on the judgment debtor. The order will specify a time limit within which the judgment debtor can apply to set aside the registration. Where the judgment debtor does not apply to set aside the order, the judgment creditor can register the foreign judgment and subsequently take steps to enforce the judgment through any of the judgment enforcement mechanisms (eg, writ of fieri facias).
Under the Foreign Judgment (Reciprocal Enforcement) Act
Section 4(1) permits a judgment creditor to apply to a Nigerian superior court for the registration of a foreign judgment. The act does not specify the procedure for commencement; therefore, the procedural rules of the court before which the enforcement is sought will apply.
At common law
To register and enforce a foreign judgment, the judgment creditor should institute a case via a writ of summons. The judgment creditor can file a summary judgment application together with the writ or apply that the suit be placed on the undefended list as it is for the enforcement of a judgment (as it can easily be inferred that the judgment debtor has no defence to the claim).
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
See above. The enforcing court is not permitted to review the foreign judgment on the merits.
What is the limitation period for enforcement of a foreign judgment?
Under Section 10 of the act, until an order has been made by the minister of justice, a foreign judgment must be registered within 12 months of being passed, unless the court permits a longer period.
Under the ordinance, the limitation period for enforcement of a judgment is 12 months from the date of the judgment or a longer period as may be allowed by the court.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
Under Section 6 of the act, recognition and enforcement can be challenged on the grounds that:
- the judgment is not a judgment to which the act or ordinance applies;
- 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 receive notice of those proceedings in sufficient time to enable it to defend the proceedings and therefore did not appear before the court (notwithstanding that the process may have been duly served in accordance with the law of the country of the original court);
- the judgment was obtained by fraud;
- the enforcement of the judgment would be contrary to public policy in Nigeria;
- the rights in the judgment were not vested in the person who applied for registration; or
- the matter in dispute before the original court had, on the date of the original judgment, been the subject of a final and conclusive judgment by a court with jurisdiction in the matter.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
Under Section 6(1)(a)(iii) of the act, the court may refuse to recognise and enforce a foreign judgment if the judgment debtor, being the defendant in the proceedings in the original court, did not receive notice of those proceedings in sufficient time to enable them to defend the proceedings and therefore did not appear before the court (notwithstanding that process may have been duly served on them in accordance with the law of the original jurisdiction).
Section 3(2)(c) of the Reciprocal Enforcement of Judgments Ordinance provides that a foreign judgment will not be registered if “the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court, and did not appear”.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
There is a broad spectrum of issues which must be considered. Generally, Nigerian courts must consider public policy in reaching decisions. In Total Nigeria Plc v Ajayi ((2003) LPELR-6174), the Nigerian Court of Appeal held the following:
[The] principle of public policy is to protect public interest by which the courts would not sanction what is injurious to public welfare or against the public good. The phrase public policy, therefore, means that policy of the law of not sanctioning an act which is against the public interest in the sense that it is injurious to public welfare or public good. But public policy, like chameleon, changes from time to time and from place to place. For a court to contend that an act or transaction is against public policy it must go further to show in what respect the act or transaction is against public policy. (MIKA'ILU, JCA (pp 28-29, paragraphs G-B)).
In Ramon v Jinadu ((1985) 5 NWLR part 39), the Nigerian Court of Appeal set aside the registration of a high court foreign judgment due to the fact that it related to a contract that was illegal under Nigerian law.
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
Sections 6(1)(a)(ii) and 6(3) of the act stipulate that one of the grounds under which the enforcement of a foreign judgment can be challenged is where the courts of the original country had no jurisdiction over the case.
Section 6(2)(a) of the act provides that, in case of an in personam foreign judgment, the court may determine whether the foreign court had jurisdiction based on:
- whether the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings for any other purpose than:
- protecting or obtaining the release of property seized, or threatened with seizure, in the proceedings; or
- contesting the jurisdiction of the court;
- whether the judgment debtor was a plaintiff or had counterclaimed in the proceedings in the original court;
- whether the judgment debtor, being a defendant in the original court, had agreed before the proceedings to submit to the jurisdiction of that court or the courts of its country, in regard to the subject matter of the proceedings;
- whether the judgment debtor, being a defendant in the original court, was resident or had its principal place of business in the country of that court at the time that the proceedings were instituted; or
- whether the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings were in respect of a transaction effected through or at that office or place.
Section 6(2)(b) of the act stipulates that the foreign court has jurisdiction over foreign judgment given in an action concerning immovable property, or in an action in rem concerning movable property, where the property in question was at the time of the proceedings situated in the country of the original court.
For a foreign judgment given in an action not in personam or for immovable or movable property, the court must recognise the jurisdiction of the foreign court if the jurisdiction is recognised by the law of the registering court.
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
Where there are conflicting judgments involving the same parties or disputes and one of the judgments is local, the local judgment will take precedence.
In determining whether to grant an application for the recognition and enforcement of a foreign judgment where there are concurrent proceedings, Nigerian courts must consider whether the concurrent proceedings are an abuse of court process.
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