Enforcement of Foreign Judgments 2020

August 8, 2019

LEGISLATION 

Treaties 

1 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, Part 1 of the 2004 Act (which  contains provisions for the registration of foreign judgments) provides  that where the Minister of Justice of the Federation of Nigeria is satis fied that in the event of the benefits conferred by Part 1 of the 2004  Act being extended to judgments given in the superior 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 from 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 time frame 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 judgments  obtained in Nigeria and the United Kingdom and other parts of Her  Majesty’s (Queen of the United Kingdom) dominion and territories, and  was not repealed by the 2004 Act as decided by the Nigerian Supreme  Court in the case of Witts & Busch Ltd v Dale Power Systems plc.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 into any bilateral or multilateral trea ties 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 provi 

sions will not be justiciable in the court of law within the country. This  suggests 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. 

Intra-state variations 

2 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. 

Sources of law 

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

The 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 Process Act, Chapter S6, Laws of the  Federation of Nigeria, 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. 

Hague Convention requirements 

4 To the extent the enforcing country is a signatory of the  Hague Convention on 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  1971. Its provisions, therefore, do not apply to the application for regis tration and enforcement of foreign judgments in Nigeria. 

BRINGING A CLAIM FOR ENFORCEMENT 

Limitation periods 

5 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 judg ment 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 proceed ings. An appeal is defined under the Act to include any proceeding by  way of discharging or setting aside a judgment, an application 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.  Therefore, where an application for registration of a foreign judgment  is not brought within the statutory 12-month period, the application will  be caught by limitation, except when time is extended for the judgment  creditor by the court. This position was affirmed by the Supreme Court  in Marine & Gen Ass Co plc v OU Ins Ltd (2006) 4 NWLR (Part 971) 622. 

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

Types of enforceable order 

6 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 that is 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). 

Competent courts 

7 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 registered, 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 registered 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 judg ment 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 seised  with 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  that was granted earlier. In Kabo Air Limited v the O’ Corporation  Limited (2014) LPELR-23616 (CA), the Court of Appeal also alluded to  the fact that the subject matter of the judgment sought to be registered  was in relation to aviation, which is within the exclusive jurisdiction of  the Federal High Court, in holding that the Federal High Court had juris diction to entertain the application for registration of a judgment that  was obtained in the Gambia. 

Separation of recognition and enforcement 

8 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 registered in  the Register of Judgments. Once the judgment has been registered  and is not set aside on appeal, it can then be enforced by the judg 

ment creditor. Enforcement, on the other hand, may or may not involve  a court hearing. Upon recognition or registration of a foreign judgment,  the judgment creditor may seek to enforce the foreign judgment (which  is now deemed to be the judgment of the court that registered it) by  the various means of execution provided under the Sheriffs and Civil  Process Act. These include execution by issuance of a writ of attachment  that empowers court bailiffs to seize property of the judgment debtor,  and execution through garnishee proceedings, which 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 obtaining 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 the leave of the court must be sought before a  writ of execution can be issued. 

OPPOSITION 

Defences 

9 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 registra tion 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 assess 

ment of the foreign judgment sought to be registered. 

Injunctive relief 

10 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 proceedings in  Nigeria. In Kalu v FGN (2014) 1 NWLR Part 1389, page 479, the Appeal  Court held that injunctive relief, being in personam, is directed against

the litigant and not the court or its proceedings. The available remedy  for a defendant, akin to a 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 registered in contraven 

tion 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 that made the application for registration. Similarly, the regis tering 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. 

REQUIREMENTS FOR RECOGNITION 

Basic requirements for recognition 

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

The mandatory requirements for registration or recognition of a foreign  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 it 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 without any form of fraud; • the foreign judgment must conform to public policy in Nigeria; • the judgment creditor must be the applicant for 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. 

Other factors 

12 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 registration of a  foreign judgment. 

Procedural equivalence 

13 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 proceedings  in the foreign court correspond to due process in Nigeria. 

JURISDICTION OF THE FOREIGN COURT 

Personal jurisdiction 

14 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 personal  jurisdiction over a defendant. One of the grounds under the 2004 Act for  setting aside the registration of a foreign judgment is whether the orig inal 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 personam 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 that under the rules of public inter 

national 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 enforcement 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 appeared or otherwise agreed to submit 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 proceed ings were instituted. 

Subject-matter jurisdiction 

15 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 examine  whether the original court had subject-matter jurisdiction over the  controversy, but this can be inferred in certain circumstances. In consid ering the mandatory 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. Where the foreign judgment is in personam, section 6(2)(a)  of the Act requires the registering court to consider the residence of the  defendant in the original action; that is, whether the judgment debtor  was resident in the foreign country at the time of the proceedings, or  (if the judgment debtor was 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. Section 6(2)(b) of the Act deals with judgment in rem of which  the subject matter is movable property. The registering court will have  to consider before registration of the judgment whether the property  (subject matter) was at the time of the proceedings before the original  court situated in the country of that court.  

Finally, under the Act, the registering court will also consider  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. 

Service 

16 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 have received actual notice of the proceed ings of the original action in the foreign court within sufficient time to  enable it 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 (which was  the defendant in the original proceedings), it did not receive notice of  those proceedings in sufficient time to enable it 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 case. 

Fairness of foreign jurisdiction 

17 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 judgment 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 agreement  under which the dispute arose or by conduct voluntarily appeared or  submitted to the foreign court’s jurisdiction, the registering court will  not consider the relative inconvenience to the judgment debtor in the  registration or setting aside proceedings. 

EXAMINATION OF THE FOREIGN JUDGMENT 

Vitiation by fraud 

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

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

Public policy 

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

substantive laws? 

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

Conflicting decisions 

20 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, prior to the date of the judgment, been the subject  of a final and conclusive judgment of another court having jurisdiction  over 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 judg 

ment is only binding between the same parties and on the same issue. The language of the 2004 Act suggests that where there are  conflicting judgments, a subsequent or latter judgment will not be regis tered 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 is that which will be registered and enforced. 

Enforcement against third parties 

21 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 matter  and is binding only on the parties to the action and their privies. The  court cannot apply principles of agency or alter ego to enforce a judg ment against a party other than the named judgment debtor that 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 foreign judgment cannot be enforced  against a third-party agent that was not named as the judgment debtor  in the foreign judgment. 

Alternative dispute resolution 

22 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? 

Section 6(3)(b) of the 2004 Act provides that, if the bringing of proceed ings in the original court was contrary to an agreement under which the  dispute in question was to be settled other than by proceedings in that  court, the court in Nigeria will hold that the foreign court lacked jurisdic tion 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. 

Favourably treated jurisdictions 

23 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, the Republic of 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 judg 

ments 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 application for registration may be made within six years  of the date of such judgment. Aside from the foregoing, which relates  to the applicability of Part 1 of the 2004 Act to certain countries, no  special or greater deference is accorded to the judgments of the courts  of any one country. 

Alteration of awards 

24 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 has 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 judgment 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  

damages awarded in a foreign judgment. This would amount to exer 

cising supervisory or appellate control over the foreign court, which is  

not permitted under Nigerian law. 

AWARDS AND SECURITY FOR APPEALS 

Currency, interest, costs 

25 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 orig 

inal court equivalent to the sum awarded. The registering court will, in  addition to the original judgment sum, award interest and reasonable  costs of and incidental to registration, including the costs of obtaining  a certified true copy of the judgment from the original court. This is,  however, applicable only to judgments of countries in respect of which  the Minister of Justice has extended Part 1 of the 2004 Act. For judg 

ments registered pursuant to section 10(a) of the 2004 Act or pursuant  to the 1958 Act, the foreign judgment may be registered and enforced  in foreign currency. 

Security 

26 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 recognising and enforcing  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. 

The judgment creditor may 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 and restrains it from moving its  assets outside the jurisdiction or dissipating them below the adjudged  sum within the jurisdiction. 

ENFORCEMENT AND PITFALLS 

Enforcement process 

27 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. 

Etigwe Uwa 

etigwe@sskohn.com 

Adeyinka Aderemi 

yinka@sskohn.com 

Chinasa Unaegbunam 

chinasa@sskohn.com

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