Enforcement of Foreign Judgments

August 9, 2018

1 Treaties 

Is your country party to any bilateral or multilateral treaties  for the reciprocal recognition and enforcement of foreign  judgments? What is the country’s approach to entering into  these treaties and what, if any, amendments or reservations  has your country made to such treaties? 

At present, Nigeria is not a signatory to any multilateral or bilateral  treaties for the reciprocal recognition and enforcement of foreign  judgments. Foreign judgments are enforced in Nigeria by virtue of the  Foreign Judgments (Reciprocal Enforcement) Act, Chapter F35, Laws  of the Federation of Nigeria 2004 (the 2004 Act) and the Reciprocal  Enforcement of Judgments Act 1922, Chapter 175, Laws of the  Federation and Lagos 1958 (the 1958 Act). Section 3 under Part 1 of the  2004 Act (which contains provisions for the registration of foreign judg ments) provides that where the Minister of Justice of the Federation  of Nigeria is satisfied that in the event of the benefits conferred by  Part 1 of the 2004 Act being extended to judgments given in the supe rior courts of any foreign country, substantial reciprocity of treatment  will be assured with regard to the enforcement in that foreign country  of judgments made by a superior court in Nigeria. The Minister may,  by order, direct the extension of Part 1 to that foreign country. No such  order has been made by the Minister of Justice to date. Section 10(a) of  the 2004 Act allows the enforcement of foreign judgments of countries  to which Part 1 of the 2004 Act has not been extended, provided that  such applications for enforcement are made within 12 months of the  foreign judgment or within such other time as the court may permit. 

Certain foreign judgments may also be enforced under the 1958  Act. This Act deals with the registration and enforcement of judg ments obtained in Nigeria and the United Kingdom and other parts of  Her Majesty’s (Queen of the United Kingdom) dominion and territo ries, and was not repealed by the 2004 Act as decided by the Nigerian  Supreme Court in the case of Witts & Busch Ltd v Dale Power Systems plc.  The constitutional approach in entering any bilateral or multilateral  treaties is that until such an international treaty signed by Nigeria is  enacted into law by the National Assembly, it has no force of law and  its provisions will not be justiciable in the court of law within the coun 

try. This connotes that, before the enactment into law by the National  Assembly of such a bilateral or multilateral treaty to which Nigeria is  a signatory, the signed treaty has no force of law and Nigerian courts  cannot give effect to it, as they can with other laws. This same process  is applicable to every amendment made to any international treaty to  which Nigeria is a signatory or party. 

2 Intra-state variations 

Is there uniformity in the law on the enforcement of foreign  judgments among different jurisdictions within the country? 

Nigeria operates a federal system of government comprising 36 states  and a central federal government. Although each state has a legislative  assembly, the authority to make laws on issues regarding the enforce ment of foreign judgments is constitutionally vested in the National  Assembly, which is the federal legislative body, as such powers are  contained in the exclusive legislative list of the Constitution. There are  therefore no intra-state variations and there is uniformity in the law on  the enforcement of foreign judgments. 

3 Sources of law 

What are the sources of law regarding the enforcement of  foreign judgments? 

The primary sources of law are: 

  • the 1958 Act; 
  • the 2004 Act and the Rules of Court made pursuant to section 5 of  the Act; 
  • the Sheriffs and Civil Processes Act Chapter S6, 2004; • the various civil procedure rules of the superior courts before  which registration and enforcement are sought; and 
  • the Judgment Enforcement Rules under section 94 of the Sheriffs  and Civil Processes Act. 

4 Hague Convention requirements 

To the extent the enforcing country is a signatory of the  Hague Convention on the Recognition and Enforcement of  Foreign Judgments in Civil and Commercial Matters, will  the court require strict compliance with its provisions before  recognising a foreign judgment? 

Nigeria is not a signatory to the Hague Convention on the Recognition  and Enforcement of Foreign Judgments in Civil and Commercial  Matters. Its provisions, therefore, do not apply to the application for  registration and enforcement of foreign judgments in Nigeria. 

5 Limitation periods 

What is the limitation period for enforcement of a foreign  judgment? When does it commence to run? In what  circumstances would the enforcing court consider the statute  of limitations of the foreign jurisdiction? 

A judgment creditor in respect of a judgment to which Part 1 of the  2004 Act applies may apply to a superior court in Nigeria to have the  judgment registered at any time within six years of the date of the  judgment, or where there have been proceedings by way of an appeal  against the judgment after the date of the last judgment given in those  proceedings. An appeal is defined under the Act to include any pro ceeding by way of discharging or setting aside a judgment, an applica 

tion for a new trial or a stay of execution. 

Notably, where the Minister is yet to make an order extending the  application of Part 1 of the Act to a country, the applicable time limit  will be, as provided under section 10 of the Act, 12 months or longer,  depending on what is allowed by a superior court of record in Nigeria. 

For applications for enforcement made pursuant to the 1958 Act,  such applications may be brought within 12 months of the date of the  judgment or a longer period if allowed by the registering court. 

There are no circumstances stipulated by the Act under which  an enforcing court would consider the statute of limitation of the  foreign jurisdiction.

6 Types of enforceable order 

Which remedies ordered by a foreign court are enforceable in  your jurisdiction?  

The only order made by a foreign court that is enforceable in Nigeria  pursuant to the 2004 Act is a final judgment conclusive between the  parties thereto, under which some money is payable (excluding sums  that are payable in respect of taxes or other charges of a like nature,  such as fines or penalties). 

7 Competent courts 

Must cases seeking enforcement of foreign judgments be  brought in a particular court? 

Yes, the 2004 Act requires registration of a foreign judgment to be  sought before a superior court. A superior court is defined under the  Act as the High Court of a State or of the Federal Capital Territory,  Abuja, or the Federal High Court. After the foreign judgment is reg 

istered, it can then be enforced by the registering court. However, in  exercising an abundance of caution, it is pertinent to seek registration  of a foreign judgment in a court whose jurisdiction covers the subject  matter of the original suit conducted outside Nigeria. In Access Bank plc  v Akingbola, decided in 2014, the High Court of Lagos State ruled that  the instant judgment of the High Court in England could not be reg istered and enforced in the Lagos State High Court. The Court based  this decision on the ground that the subject matter of the suit that  led to the judgment was a matter within the exclusive jurisdiction of  the Federal High Court under section 251(1)(e) of the Constitution of  Federal Republic of Nigeria 1999 as a matter under the Companies and  Allied Matters Act, and if the original action had been tried in Nigeria,  the right court siesed with the jurisdiction would be the Federal High  Court. The Court therefore concluded that the application to register  should have been sought at the Federal High Court and quashed the  registration of the judgment which was earlier granted in respect of  the judgment. 

8 Separation of recognition and enforcement 

To what extent is the process for obtaining judicial  recognition of a foreign judgment separate from the process  for enforcement? 

The process of recognition involves a court hearing by a judge who  must first consider an application for the registration of the foreign  judgment. Should the application be granted, the judgment will be reg istered in the Register of Judgments. Once the judgment is registered  and has not been set aside on appeal, it can then be enforced by the  judgment creditor. Enforcement, on the other hand, may or may not  involve a court hearing. Upon recognition or registration of a foreign  judgment, a judgment creditor may seek to enforce the foreign judg 

ment (which is now deemed to be the judgment of the court that regis tered it) by the various means of execution provided under the Sheriffs  and Civil Processes Act. This includes execution by issuance of a writ of  attachment that empowers court bailiffs to seize property of the judg ment debtor, and execution via garnishee proceedings that will involve  a court hearing by which moneys due to the judgment debtor from  third parties are attached in satisfaction of the judgment debt. Where  property is to be attached, the judgment creditor must obtain a writ of  execution or fieri facias from the relevant court. The process of obtain ing a writ of execution is mostly administrative and very rarely involves  a court hearing, except in certain situations stipulated under the rules  of the various courts, where it is necessary that the leave of the court  must be sought before a writ of execution can be issued. 

9 Defences 

Can a defendant raise merits-based defences to liability or  to the scope of the award entered in the foreign jurisdiction,  or is the defendant limited to more narrow grounds for  challenging a foreign judgment? 

A defendant cannot raise merits-based defences to liability or defences  as to the scope of the award. The grounds for setting aside the regis tration of a foreign judgment are clearly stipulated under the 2004 Act  and are limited to issues such as fraud, public policy, jurisdiction, lack  

of service or lack of sufficient time after service to respond to the action  in the foreign court prior to the entry of the judgment. The courts in  Nigeria have held that a registering court has no appellate jurisdiction  over the foreign court and cannot therefore embark upon a merits 

based assessment of the foreign judgment sought to be registered. 

10 Injunctive relief 

May a party obtain injunctive relief to prevent foreign  judgment enforcement proceedings in your jurisdiction? 

There is no provision in the 2004 Act for a party to obtain injunctive  relief seeking to prevent the enforcement of foreign judgment pro ceedings in Nigeria. In Kalu v FGN (2014) 1 NWLR Part 1389, page 479,  the Appeal Court held that injunctive remedy being in personam is  directed against the litigant and not the court or its proceedings. The  available remedy for a defendant, akin to mandatory injunction, is to  bring an application to set aside the registration of a foreign judgment.  However, this can only be entertained if the foreign judgment was reg 

istered in contravention of the 2004 Act, if the original court that gave  it lacked jurisdiction, if it was obtained by fraud or if the rights under it  are not vested in the person who made the application for registration.  Similarly, the registering court can set aside a judgment if the judgment  debtor did not receive notice of the proceedings in the original court  that gave it and thereby did not appear, making the said judgment a  default judgment. 

11 Basic requirements for recognition 

What are the basic mandatory requirements for recognition  of a foreign judgment? 

The mandatory requirements for registration or recognition of a for eign judgment are as follows: 

  • the 2004 Act must be applicable to such judgment and the judg ment must be a final judgment; 
  • the judgment debtor as defendant in the original action must have  received notice of the proceedings (beside service of the processes)  in sufficient time to enable him or her to defend the proceedings; 
  • the foreign court must have jurisdiction in the circumstances of the  case and the foreign judgment must be enforceable by execution in  the country of the original court; 
  • the judgment must have been obtained regularly without any form  of fraud; 
  • the foreign judgment must conform to public policy in Nigeria; • the judgment creditor must be the applicant for the registration of  the judgment; 
  • the judgment must not have been wholly satisfied; and • the judgment must be one under which some money is payable not  being sums that are payable in respect of taxes or other charges of a  like nature, or fines or penalties. 

12 Other factors 

May other non-mandatory factors for recognition of a foreign  judgment be considered and if so what factors? 

No non-mandatory factors that are outside the provisions of the  2004 Act may be considered in an application for the registration of a  foreign judgment. 

13 Procedural equivalence 

Is there a requirement that the judicial proceedings where  the judgment was entered correspond to due process in your  jurisdiction, and if so, how is that requirement evaluated?  

There is no requirement under the 2004 Act that the judicial proceed ings in the foreign court must correspond to due process in Nigeria. 

14 Personal jurisdiction 

Will the enforcing court examine whether the court where  the judgment was entered had personal jurisdiction over the  defendant, and if so, how is that requirement met?  

The Nigerian courts do examine whether the foreign court had per sonal jurisdiction over a defendant. One of the grounds under the 2004

Act for setting aside the registration of a foreign judgment is whether  the original court had no jurisdiction in the circumstances of the case.  The Act further defines for this purpose ‘when the original court shall  be deemed to have jurisdiction and when the original court shall be  deemed not to have jurisdiction’ for judgments in an action in per sonam or in an action in rem. For an action in personam, the original  court shall be deemed not to have jurisdiction if the judgment debtor,  being a defendant in the original proceedings, was a person who under  the rules of public international law was entitled to immunity from the  jurisdiction of the courts of the country of the original court and did not  submit to the jurisdiction of that court. With specific regard to enforce ment under the Act, the foreign court is deemed to have jurisdiction  and the foreign judgment is registrable and enforceable in Nigeria only  if the judgment debtor voluntarily appears or otherwise agrees to sub mit to the jurisdiction of the relevant foreign court, or the judgment  debtor was resident in the jurisdiction of the relevant foreign court at  the time when the proceedings were instituted. 

15 Subject-matter jurisdiction 

Will the enforcing court examine whether the court where the  judgment was entered had subject-matter jurisdiction over  the controversy, and if so, how is that requirement met?  

The 2004 Act does not specifically direct the enforcing court to exam ine whether the original court had subject-matter jurisdiction over the  controversy, but by inference this is implied. In considering the manda tory conditions for registration, such as the foreign court’s jurisdiction  in the circumstances of the case, the enforceability by execution of the  foreign judgment and whether the foreign judgment was obtained by  fraud or not, the registering court may have to visit the subject-matter  jurisdiction of the original court. 

This is also contingent on whether the foreign judgment is in rem  or in personam. Section 6(2)(b) of the Act deals with judgment in rem  of which the subject matter is moveable property. The registering court  will have to consider before registration of the judgment if the property  (subject matter) was at the time of the proceedings before the original  court situated in the country of that court. Section 6(2)(a) of the Act  deals with judgment in personam, the registering court will have to  consider the residence of the defendant in the original action, that is,  whether the judgment debtor was resident in the country of the foreign  court at the time of the proceedings, or (if the judgment debtor is a  body corporate) whether its principal place of business is in the original  country or the business being the subject matter was to be performed  or executed in the country of that court. 

Finally, under the Act, the registering court will also consider the  subject-matter jurisdiction where there is controversy as to whether  the proceedings of the original court ran contrary to an agreement by  the parties to settle their dispute otherwise than by proceedings in the  courts of the foreign country. 

16 Service 

Must the defendant have been technically or formally served  with notice of the original action in the foreign jurisdiction,  or is actual notice sufficient? How much notice is usually  considered sufficient? 

The judgment debtor must receive actual notice of the proceedings of  the original action in the foreign court within sufficient time to enable  him or her to appear and defend the proceedings. Under section 6(1)(a) (iii) of the 2004 Act, one of the grounds for setting aside a registered  foreign judgment is that, notwithstanding that the processes in the  original court may have been duly served on the judgment debtor (who  is a defendant in the original proceedings), he or she did not receive  notice of those proceedings in sufficient time to enable him or her to  defend the proceedings and did not appear. 

There is no stipulation of the length of notice that will be consid ered as sufficient, but Nigerian courts will usually in such cases follow  the common law rules of reasonable notice, which will be subject to the  circumstances of each particular case. 

17 Fairness of foreign jurisdiction 

Will the court consider the relative inconvenience of the  foreign jurisdiction to the defendant as a basis for declining to  enforce a foreign judgment? 

The relative inconvenience of the foreign jurisdiction to the defendant  is not one of the grounds for declining to register or enforce a foreign  judgment under the 2004 Act. Where the parties by whatever agree ment under which the dispute arose or by conduct voluntarily appeared  or submitted to the foreign court jurisdiction, the registering court will  not consider relative inconvenience. 

18 Vitiation by fraud 

Will the court examine the foreign judgment for allegations of  fraud upon the defendant or the court? 

One of the grounds for setting aside the registration of a foreign judg ment under the 2004 Act is that judgment was obtained by fraud. The  courts, therefore, ordinarily examine the foreign judgment for any alle gation of fraud. 

19 Public policy 

Will the court examine the foreign judgment for consistency  with the enforcing jurisdiction’s public policy and substantive  laws? 

One of the grounds for setting aside the registration of a foreign judg ment is that the enforcement of the judgment would be contrary to  public policy in Nigeria. There is no specific requirement that the for eign judgment should be consistent with substantive laws in Nigeria. 

20 Conflicting decisions 

What will the court do if the foreign judgment sought to  be enforced is in conflict with another final and conclusive  judgment involving the same parties or parties in privity? 

The registering court may set aside the registration of a foreign judg ment if it is satisfied that the matter in dispute in the proceedings in  the original court had previously on the date of the judgment been  the subject of a final and conclusive judgment of another court hav ing jurisdiction in the matter in the original foreign country. The 2004  Act does not specify whether the judgment obtained in the original  proceedings must have been between the same parties or their privies,  but the common rule applied by Nigerian courts in such cases is that  a previous judgment is only binding between the same parties and on  the same issue. 

The language of the 2004 Act suggests that where there are con flicting judgments, a subsequent or latter judgment would not be reg istered and enforced. Although there is no case law on the point in  Nigeria in the event of conflicting judgments between the parties on  the same issue, it appears from the language of the statute that the  judgment that came first chronologically is the one that would be reg istered and enforced. 

21 Enforcement against third parties 

Will a court apply the principles of agency or alter ego to  enforce a judgment against a party other than the named  judgment debtor? 

A judgment is a final decision of the court on a particular subject mat ter and such judgment is binding only on the parties to the action and  parties affected by the judgment. The court cannot apply the principles  of agency or alter ego to enforce a judgment against a party other than  the named judgment debtor who was the defendant in the proceedings  that led to the judgment. The alter ego is a distinct person; hence, no  judgment delivered against a specific person can be enforced on the  alter ego. The principle of agency is equally not applicable and a for 

eign judgment cannot be enforced against a third-party agent that is  not named as the judgment debtor in the foreign judgment. 

22 Alternative dispute resolution 

What will the court do if the parties had an enforceable  agreement to use alternative dispute resolution, and the  defendant argues that this requirement was not followed by  the party seeking to enforce? 

Subsection 6(3)(b) of the 2004 Act provides that, if the bringing of  proceedings in the original court was contrary to an agreement under  which the dispute in question was to be settled other than by proceed ings in that court, the court in Nigeria will hold that the foreign court  lacks jurisdiction and will refuse to register the foreign judgment, and  if registration had been procured by the judgment creditor ex parte,  such registration may be set aside by the registering court. 

23 Favourably treated jurisdictions 

Are judgments from some foreign jurisdictions given greater  deference than judgments from others? If so, why? 

No more deference is accorded to a judgment of any one foreign juris diction over others. However, only judgments of the courts of the  United Kingdom and Ireland, and courts of other parts of Her Majesty’s  dominions and territories, are registrable and enforceable under the  1958 Act. Under section 3 of the 2004 Act, the Minister of Justice may  extend Part 1 of the Act, which permits registration and enforcement  of foreign judgments within six years of the date of such judgment to  any country that accords reciprocal treatment to judgments of superior  courts in Nigeria. The Minister of Justice has not extended the said part  to any country to date. Section 9 of the 2004 Act applies Part 1 of the Act  to judgments of courts of all Commonwealth countries. Accordingly,  in respect of judgments of such Commonwealth countries, an applica tion for registration may be made within six years of the date of such  judgment. Aside from the foregoing, which relate to the applicability  of Part 1 of the 2004 Act to certain countries, no special or greater def erence is accorded to the judgments of the courts of any one country. 

24 Alteration of awards 

Will a court ever recognise only part of a judgment, or alter or  limit the damage award? 

Where a foreign judgment is in various parts or on different matters,  the registering court can register part of the judgment. Under section  4(4) of the 2004 Act, where part of the judgment had been satisfied  and part unsatisfied, the court can register the part that is unsatisfied.  Additionally, section 4(5) of the Act provides that where part of a judg ment can be properly registered, the judgment may be registered in  respect of that part alone. 

There is no provision under the Act for alteration or reduction of  award or damages made in a foreign judgment. This will amount to  exercising a supervisory or appellate control over the foreign court,  which is not permitted under Nigerian law. 

25 Currency, interest, costs 

In recognising a foreign judgment, does the court convert the  damage award to local currency and take into account such  factors as interest and court costs and exchange controls?  If interest claims are allowed, which law governs the rate of  interest? 

Section 4(3) of the 2004 Act provides that where the sum payable under  a judgment that is to be registered is expressed in a currency other than  the currency of Nigeria, such judgment shall be registered as if it were  a judgment for such sum in the currency of Nigeria, based on the rate  of exchange prevailing at the date of the judgment of the original court  equivalent to the sum awarded. The registering court will, in addition  to the original judgment sum, award interest and also reasonable costs  of and incidental to registration, including the costs of obtaining a cer tified true copy of the judgment from the original court. This is, how ever, applicable only to judgments of countries in respect of which the  Minister of Justice has extended Part 1 of the 2004 Act. For judgments  registered pursuant to section 10(a) of the 2004 Act or judgments regis 

tered pursuant to the 1958 Act, the foreign judgment may be registered  and enforced in foreign currency. 

26 Security 

Is there a right to appeal from a judgment recognising or  enforcing a foreign judgment? If so, what procedures, if any,  are available to ensure the judgment will be enforceable  against the defendant if and when it is affirmed? 

A party may appeal to a higher court, in this case the Court of Appeal,  against a decision recognising and enforcing a foreign judgment. The  appeal process is distinct from the process of setting aside the recogni tion and enforcement of the foreign judgment that is made at the High  Court before which the judgment is first sought to be recognised and  enforced. Where the High Court has made a final order recognising  the award, the judgment debtor may thereafter appeal to the Court of  Appeal seeking to set aside the order of the High Court. 

Where a foreign judgment has been registered and an appeal  is pending, the Court of Appeal in Purification Tech v A-G Lagos State (2004) 9 NWLR Part 879, page 665 held that the existence of an order  of stay of execution of a judgment does not preclude a judgment credi 

tor from seeking to use garnishee proceedings to enforce judgment.  This suggests, therefore, that the judgment creditor may apply for a  garnishee order attaching sums of money due to the judgment debtor  from third parties, which in Nigeria are mostly commercial banks, in  the face of a pending appeal and application for stay. The judgment  creditor may also apply for a post-judgment Mareva order of injunction  that freezes the judgment debtor’s accounts pending the hearing and  determination of the appeal. This effectively freezes the bank accounts  of the judgment debtor or restrains him or her from moving his or her  assets outside the jurisdiction or dissipating them below the adjudged  sum within the jurisdiction.

 

27 Enforcement process 

Once a foreign judgment is recognised, what is the process for  enforcing it in your jurisdiction? 

Once registered, the foreign judgment shall for the purpose of execu tion be of the same force and effect as a judgment of a superior court  of record in Nigeria. Proceedings may be taken on the registered judg ment, the sum for which the judgment is registered shall carry interest  and the registering court shall have the same control over the execution  of a registered judgment as if the judgment had been originally given in  

the registering court and entered on the date of registration. After registering, all the processes by which a judgment of a supe rior court may be enforced in Nigeria are available to the enforcement  of a foreign judgment. They include, but are not limited to, writs of  attachment of real and personal property (moveable and immoveable),  garnishee proceedings and attachment of the person of the judgment  debtor to prison where he or she is unable to pay the debt after other  means of enforcement have failed. A judgment creditor may also apply  to the court for the issuance of judgment summons and writ of seques tration in order to enforce the registered judgment. 

28 Pitfalls 

What are the most common pitfalls in seeking recognition or  enforcement of a foreign judgment in your jurisdiction?  

The most common pitfall is where a defendant ignores a foreign  court process that eventually results in a judgment that is sought to be  enforced under the provisions of the 1958 Act. The case of Grosvenor  Casinos v Halaoui (2009) 10 NWLR, Part 1149, page 309 is authority  for the principle that a foreign judgment entered against a defendant  resident in Nigeria who does not willingly appear in the foreign court  or otherwise submit to its jurisdiction is not registrable in Nigeria under  the 1958 Act. In such cases, it is better to proceed under sections 9 or  10 of the 2004 Act. Although Part 1 of the 2004 Act provides a limita tion period of six years, because that part has not been extended to any  country by the Minister of Justice, the limitation period for applying for  registration of foreign judgments (except judgments to which section 9  of the 2004 Act applies) is 12 months from the date of such judgment.  Frequently, applications for registration of foreign judgments are made  outside the limitation period of 12 months without an application for  extension of time to the registering court. This usually results in such  applications being defeated on a technical basis. Furthermore, appli cations for registration of foreign judgments are sometimes stalled  or slowed down by appeals that may continue for years and reach the  Supreme Court of Nigeria, resulting in significant delays.

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