Limitation Of Application Of Foreign Law Nigeria

By Elebute Joshua A.

INTRODUCTION

It is the generally accepted view that the powers of various courts are limited by the territorial boundaries or what we can call national boundaries that is territorial jurisdiction. In which the Judgment given in a particular jurisdiction may have no force or power beyond the jurisdiction in which the Judgment was given save and except where other jurisdictions have agreed to such judgments to be enforceable in their territories. These theories are therefore known as reciprocity and obligation.

The theory of reciprocity postulates that one country would recognize and enforce the judgments of another country if only the other country would do the same in respect to recognition and enforcement of the judgments of that country.

The doctrine of Obligation, on the other hand, came into prominence in the 19th century and was very put forward by Blackburn J in the case of Schibsby v. Westenholz[1] as follows;

“We think that …. the true principles on which the judgments of foreign tribunals are enforced in England is…. that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay he sum for which judgment is given, which the courts in the country are bound to enforce; anything which negatives that duty, or forms a legal excuse for not performing it, is a defense to the action”.[2]

LIMITATION OF APPLICATION OF FOREIGN LAWS IN NIGERIA

The courts in Nigeria, recognize parties’ choices of foreign law and jurisdiction. The Nigerian Courts would as a general rule give effect to the parties choice of foreign law as the governing law to some given sets of facts that are relevant to them.

Nigerian courts would only interfere in circumstances and situations where the terms of the contract are contrary to the Nigerian public policy, inconsistent with Nigerian Law, or where there are elements that vitiate the contract itself such as misrepresentation, undue influence, illegality and so on. It was held in the case of Sonnar & Anor v Partnenreedri M.S Nordwind & Anor[3] the parties’ choice of foreign law is not conclusive and for the choice to be effective the choice must be “real, genuine, bona fide and reasonable”.[4]

In Nigeria, the very much applicable statutory framework which is set in place in respect of the enforcement of foreign judgments remains uncertain despite there have been numerous judicial pronouncements on the subject above. However, there are three legal regimes under which foreign judgment laws are enforceable and these regimes are as follows;

• 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 Judgement (Reciprocal Enforcement) Act Cap. F35, Laws of the Federation of Nigeria, 2004 (the “Act”)
• Finally, the Common Law Action.[5]

As it is very much possible to enforce the judgment of one state in another, so also it is possible to enforce the judgment of a court of one country in another country. The Enforcement of Judgment laws of foreign courts can be enforced in Nigeria and also vice-versa in the other country.[6]

Action at Common Law

For foreign Judgments to be enforceable in Nigeria, they must meet the following requirements and these requirements are stated in the case of Peenok v Hotel Presidential[7] and they are as follows;

1. The foreign Judgment must be final and conclusive.
2. It must be delivered by a superior court of competent jurisdiction in the country in which the judgment was delivered.
3. The Judgment must also be for a definite sum of money, but not be for tax, fine or penalty.
4. If the Judgment is for ‘res’ and not for money, the ‘res’ must be within the jurisdiction of the court that gave that judgment at the time of the delivery of the judgment in question.

The procedure for the enforcement of Foreign Judgment Law in Nigeria under the common law is follows;

1. The Judgment Creditor would begin the process of enforcement by instituting an action at the High Court in Nigeria, claiming the reliefs which were granted in the foreign court.
2. Then the Cause of action in the suit would be the Judgment, the action would then be brought by way of Summary Judgment procedure such as undefended list procedure under Order 13 of the High Court (Civil Procedure) Rules of Lagos State, 2019 or the Order 11 of the High Court (Civil Procedure) Rules of Abuja 2018.[8]

The Judgment Creditor is to file an originating summons or a writ of summons which would then be accompanied by a motion for summary judgment since the suit in question would most likely be unchallenged.[9] However, in most cases, the registration and enforcement of foreign judgment under common law is done through the institution of a case via a writ of summons, which would then be followed by an application for summary judgment stated earlier, as it can easily be inferred that the Judgment Debtor would have to defence to the claim for the enforcement of the foreign judgment.[10]

Reciprocal Enforcement

This is the Foreign Judgment (Reciprocal Enforcement) Act, Cap F35 LFN 2004. The statute provides for the enforcement of Judgment Laws of foreign countries, being countries that show the same respect, recognition and reciprocal treatment of Judgment Laws made by Nigerian Courts. Such Countries are to be provided for under an Order to be made by the Minister of Justice under part I of The Foreign Judgment (Reciprocal Enforcement) Act, Cap F35 LFN 2004. That Order is yet to be made; however, it is expected that it would include the Commonwealth Countries and Nations under mandate or trusteeship of the League of Nations or United Nations as accepted by the President of the Federal Republic of Nigeria.[11]

Section 3 (1) of the Act provides as follows;

“(1) the Minister of Justice if he is satisfied that, in the event of the benefits conferred by this Part of this Act being extended to judgments given in the superior courts of any foreign country, substantial reciprocity of treatment will be assured as respects the enforcement in that foreign country of judgments given in the superior courts in Nigeria may by order direct-

(a) That this Part of this Act shall extend to that foreign country; and

(b) That such courts of that foreign country as are specified in the order shall be deemed superior courts of that country for the purposes of this Part of this Act.”[12]

Where there is no lack of opposition against the recognition and enforcement of a Judgment by the Judgment debtor, it is relatively easy to then secure the recognition and enforcement of the Foreign Judgment law in Nigeria. However, in the situation where there is opposition the recognition and enforcement of the foreign Judgment can become complex.[13]

Before a foreign judgment can be recognised and enforced in the Federal Republic of Nigeria, it must satisfy the following requirements stated as follow;

• The Judgment must be made by a superior court of record in the foreign country.
• The Court must have had the Jurisdiction to hear and determine the subject-matter of the suit.
• It must have been a final and conclusive Judgment as between the parties.

The does not serve as any form of estoppel against the rights of the parties to the appeal against the decision. Likewise, the pendency of any appeal does not make the judgment any less final and conclusive.[14]

• The Judgment must be respect of a definite sum of money where is not a fine, penalty or tax against the Judgment Debtor.
• The Minister of Justice considers that the foreign country would reciprocally recognise and enforcement Judgments of Nigerian Courts and has in fact made an order that judgments from that foreign country be recognised and enforced.[15]

In other words, for any foreign judgment law to be valid and enforced in Nigeria, it must meet the stated criteria above, whilst it won’t be enforced and given recognition in a court of competent jurisdiction in Nigeria.

Grounds to Challenge Recognition and Enforcement of Foreign Judgment under the 1961 Act

1. That where the Judgment Debtor, being the Defendant in the proceedings in the original court, did not receive the notices of the proceedings which did not enable him to appear and defend the proceedings, notwithstanding that may have been duly served on the judgment debtor in the original court.[16] In the case of Hyppolite v Eghareva,[17] the Court of Appeal of Nigeria set aside foreign judgment on the ground that one of the court processes in relation to the judgment was not served on the Judgment Debtor.
2. The Judgment obtained through fraud

Registration of a foreign judgment which was obtained through fraud in the country of origin, on application for registration and enforcement in the registering court may be aside.

3. Enforcement of the Judgment would be contrary to the Public Policy of Nigeria

In Dale Power Systems Plc, public policy was defined as “community sense and common conscience extended and applied throughout the State to matters of public morals, health, safety, wealth and the like…”

In the case of Ramon v Jihad[18] the court declined to register a judgment on the ground that the judgment was against public policy and that the transaction giving rise to the judgment was illegal.[19]

4. The Judgment is one to which Part I of the Act applies.
5. The court of origin had no jurisdiction to handle the case in the first place.
6. The rights to enforce the judgment is not vested in the particular person through which the application for the registration of the judgment was brought through.

It is pertinent to note that a challenge for the enforcement of a foreign judgment may be made within fourteen days or such longer period as the court may impose.[20]

CONCLUSION

From the foregoing, it is clear that the Minister is yet to make any provisions or Order therefore extending the Part I to both countries of the Commonwealth and outside the Commonwealth as the major pursuit of the Order is to give priority to countries that offers reciprocal treatment for Nigerian Judgment Laws. It is also vehement to note that the limitation of the enforcement is solely dependent on the foreign law meeting the stated criteria for its application.

RECOMMENDATIONS

1. The first and most important recommendation is that an Order should be made by the Minister as to the countries whose judgments would be registered and enforced in order to avoid any form of controversy.
2. There must be due diligence in ascertaining if the judgment to be enforced was actually a judgment of a court of competent jurisdiction in the country of origin.
3. Lastly, most definitely be taken to ensure that the judgment which being enforced in Nigeria must be of countries who would likewise enforce our judgments in turn.

AUTHOR’S PROFILE;

ELEBUTE JOSHUA A. (AUTHOR)

Joshua is a decided undergrad of law with a showed enthusiasm for Intellectual property law, Arbitration, LegalTech and other areas yet to be discovered. He’s a member of the Young African Leaders Initiative (YALI). As an undergrad, he created aptitudes that empower him to include an incentive in any position he gets himself. He is a functioning individual from his school’s Moot and Mock society departments, Client Counselling and Tech Savvy Law Students’ Club (TSL) Babcock University Chapter and some other organizations.

He has successfully acquired soft skills from various organizations such as Leadership, Team Organization, Teamwork, Public Organization, having held the post of Dir. Of Protocol of LAWSAN BU Chapter 19/20. He has also acquired other skills such as Team Building, Networking, Managing People, Editorial skills amongst many others at Diverse Law, which he actively engages. He also held the workplace of the Scribe Exchequer of LAWSAN BU Chapter 20/21. He’s currently a student senior partner at his school’s Faculty of Law.

[1] (1870) L.R.6 QB. 155.

[2] Godwin Omoaka, ‘Nigeria: Legal Regime For The Enforcement of Foreign Judgements in Nigeria: An Overview’ (2 December, 2004)  https://www.mondaq.com/nigeria/international-trade-investment/27249/legal-regime-for-the-enforcement-of-foreign-judgments-in-nigeria-an-overview accessed on 17 May, 2021.

[3] (1988) N.S.C.C. pps 28-49

[4] Afoke Igwe’ ‘Nigeria: Enforcement of Choice of Foreign Law and Jurisdiction In Transaction Agreements’  https://www.mondaq.com/nigeria/contracts-and-commercial-law/309168/enforcement-of-choice-of-foreign-law-and-jurisdiction-in-transaction-agreements accessed on 17 May, 2021.

[5] Akinbobola Adeniyi, ‘Nigeria: Enforcement Of Foreign Judgment Under The Nigerian Law; A Reality Or A Myth?’ (3 December, 2018) https://www.mondaqq.com/nigeria/constitutional-administrative-law/758324/enforcement-of-foreign-judgment-under-the-nigerian-law-a-reality-or-a-myth accessed on 17 May, 2021.

[6] D.I.Efevwerhan, ‘Principles of Civil Procedure in Nigeria’ Third Edition, Snaap Press Ltd, Enugu 2018) 465.

[7] (1982) 12 SC 1.

[8] M.M. Stanley- Idum, J.A.Agaba, ‘Civil Litigation in Nigeria’ 1^st Edition, Nelag & Company Limited 2015) 681.

[9] Harmony Eghwubare, ‘Nigeria: Enforcement of Foreign Judgements In Nigeria’ (27 March, 2020) https://www.mondaq.com/nigeria/international-trade-investment/894510/enforcement-of-foreign-judgments-in-nigeria accessed on 17 May, 2021.

[10] ‘Litigation: Enforcement of Foreign Judgments in Nigeria’ (25 January, 2019)  https://www.lexology.com/library/detail.aspx?g=b162fcc-ea12-49f7-b4f6-2f68f593f163 accessed on 17 May, 2021.

[11] M.M. Stanley- Idum, J.A.Agaba, ‘Civil Litigation in Nigeria’ 1^st Edition, Nelag & Company Limited 2015) 681.

[12] Udo Udoma & Belo-Osagie ‘Enforcement of Foreign Judgments Under Nigerian Law’  https://www.uubo.org/media/1342/enforcement-of-foreign-judgments-under-nigerian-law.pdf accessed on 17 May 2021.

[13] ‘Litigation: Enforcement of Foreign Judgments in Nigeria’ (25 January, 2019)  https://www.lexology.com/library/detail.aspx?g=b162fcc-ea12-49f7-b4f6-2f68f593f163 accessed on 17 May, 2021.

[14] ‘Nigeria: Enforcement of Foreign Judgments Laws and Regulations 2020 https://iclg.com/practice-areas/enforcement-of-foreign-judgments-laws-and-regulations/nigeris accessed on 17 May, 2021.

[15] Ibid.

[16] Ibid.

[17] (1998) 11 NWLR (Pt.575) 598.

[18] (1985) 5 NWLR part 39),

[19] Godwin Omoaka, ‘Nigeria: Legal Regime For The Enforcement of Foreign Judgments in Nigeria: An Overview’ ( 2 December, 2004) https://www.templars-law.com/wp-content/uploads/2015/05/Enforcement-of-Foreign-Juda-GOO.pdf accessed 17 May, 2021.

[20]‘Enforcement of Foreign Judgments 2016’ http://www.spaajibade.com/resources/wp-content/uploads/2016/03/EFJ16_Chapter-23_Nigeria.pdf accessed on 17 May, 2021.