RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT UNDER PRIVATE INTERNATIONAL LAW

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT UNDER PRIVATE INTERNATIONAL LAW

Abstract

There is a general proposition that the powers of the courts are limited by their territorial boundaries (i.e. territorial jurisdiction). Thus, a judgment delivered by the court of one jurisdiction should ordinarily have no force or effect beyond its own territory save for situations where other jurisdictions have agreed to allow such judgment to be enforced within their own territories.

However, such judgment may become enforceable in another country if the judgment is registered and recognised in the country where it is sought to be recognised.

There is no doubt that an incentive for international trade and commerce is the ability to enforce a judgment obtained in one country in the courts of another. This incentive is largely made possible by private international law rules which permit judgments of one country to be recognized and enforced in other countries. Unfortunately, Nigeria is not a signatory to any private International law (treaties, convention, unilateral or bilateral agreement) for the enforcement of foreign judgment, But Nigeria is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Award (the New York Convention, 1958), this is only in respect enforcement of arbitration award.

In Nigeria, the applicable statutory regime in respect of the enforcement of foreign judgments remains uncertain despite numerous judicial pronouncements on the subject. The present conventional wisdom is that there are three applicable legal regimes which Foreign judgments are enforceable under. The legal regimes are:

• Reciprocal enforcement of foreign judgment Ordinance 1922 Cap 175, Laws of the Federation of Nigeria and Lagos, 1958 (“the 1922 Ordinance”) (this Ordinance was enacted in 1922 as L.N. 8, 1922)
• Foreign Judgment (Reciprocal Enforcement) Act Cap. F35, Laws of the Federation of Nigeria, 2004 ( the “Act”)
• Common Law action

ENFORCEMENT OF FOREIGN JUDGMENTS UNDER THE 1922 ORDINANCE

The 1922 Ordinance was enacted to facilitate the reciprocal enforcement of judgments obtained in Nigeria and in the United Kingdom, and other parts of Her Majesty’s Dominions and Territories under Her Majesty’s protection.

The judgment registrable under this Ordinance must be a monetary judgment, final and conclusive between the parties.

A judgment creditor who intends to enforce a foreign judgment under the Act must seek the leave of court to register the judgment by petition. The petition could either be by ex parte or on notice. However, where the judgement creditor chooses to go by exparte, the court may direct that the judgment debtor should be put on notice.

The petition must be supported with the affidavit of fact and certified true copy of the judgment as an exhibit.

The judgment debtor will be given the opportunity to show reason why the application for leave to register the judgment should not be granted.

ENFORCEMENT OF FOREIGN JUDGMENTS UNDER THE ACT

Section 3(1) of the Foreign Judgment (Reciprocal Enforcement) Act 1961 empowers the Minister of Justice to make an order extending Part 1 of the Act to any foreign country. The minister will specify in that order the courts of that country that will be deemed to be superior courts for the purposes of enforcing their judgments in Nigeria. Before exercising this power, the minister is required to satisfy himself that judgments of superior courts in Nigeria will be accorded substantial reciprocity of treatment as regards enforcement in that foreign country.

The Minister of Justice is yet to make an order extending Part 1 of the Act to any country.

Notwithstanding the above, foreign judgments from countries which are not listed in the 1958 Ordinance and cannot be recognized under the Ordinance may be recognized under Section 10 (a) of the Act as long as the application for recognition and registration of the judgment is brought within 12 months from the date in which the foreign court delivered the judgment.

TABLE OF CONTENT

Title page- – – – – – – – – i
Approval page – – – – – – – -ii
Dedication – – – – – – – – -iii
Acknowledgement – – – – – – – -iv
Abstract – – – – – – – – – -v
Table of content – – – – – – – -vi

CHAPTER ONE
INTRODUCTION – – – – – – – -1
1.0 Background of the study – – – – -1
1.1 Statement of the problem – – – – -5
1.2 Purpose of the study – – – – – -6
1.3 Significance of the study – – – – -8
1.4 Research questions – – – – – -9
1.5 Scope of the study – – – – – – -10

CHAPTER TWO

LITERATURE REVIEW – – – – – – -11

CHAPTER THREE

Research methodology – – – – – – -39
Design of study – – – – – – – -40

CHAPTER FOUR

Presentation, analysis and interpretation of data – -48

CHAPTER FIVE

Summary of findings – – – – – – -60
Conclusion – – – – – – – – -61
Recommendations – – – – – – – -62
Suggestions for further research – – – – -64
References – – – – – – – – -65
Appendix I – – – – — – – – -68
Questionnaire. – – – – – – – -69

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT UNDER PRIVATE INTERNATIONAL LAW

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