- Laws of the Federation of Nigeria and Lagos (1958) vol V, cl 175 (1922 Act). The preferred abbreviated form of this statute is the 1922 Act, although it is sometimes referred to in Nigerian judgments and literature as either the 1958 Ordinance or the 1958 Act. The statute started out as Ordinance No 8 of 1922, which is included in Laws of Nigeria (1948) vol V, cl 192 and in Laws of the Federation of Nigeria and Lagos (1958) vol V c 175, and was subsequently rebranded as an Act.
- Laws of the Federation of Nigeria (1990) cl 152 (1960 Act). The preferred abbreviated form of this statute is the 1960 Act, although it is sometimes referred to somewhat confusingly in some Nigerian judgments and literature as the 1990 Act because of its inclusion in Laws of the Federation of Nigeria (1990).
- Interestingly, the provisions of both the 1922 Act (n 1) and the 1960 Act (n 2) extend the meaning of ‘judgment’ to include an arbitration award that has become enforceable in the same manner as a judgment under the law of the place in which the award was made. See 1922 Act (n 1) s 2; 1960 Act (n 2) s 2(1). It is, however, more likely that the enforcement of an arbitration award in Nigeria would now be sought under the Arbitration and Conciliation Act 1988, which implements the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
- 1960 Act (n 2) s 3(1).
- [2003] 18 NWLR 282. See also Marine & General Assurance Co Plc v Overseas Union Insurance Ltd & Ors [2006] 4 NWLR 622; Witt & Busch Ltd v Dale Power Systems Plc [2007] 17 NWLR 1; Grosvenor Casinos Ltd v Ghassan Halaoui [2009] 10 NWLR 309.
- See eg Marine & General Assurance (n 5), [642]—[44]; Witt & Busch (n 5) [19]—[20]; Grosvenor Casinos (n 5) [347], [351]—[52].
- ‘Gbenga Bamodu, ‘Transnational Litigation—Nigeria’ in J Fellas (ed), Transnational Litigation—A Practitioner's Guide (OUP/Oceana 2008) 45–6.
- See the old decision of the Supreme Court in Alfred C Toepfer Inc of New York v Jon Edokpolor [1965] 1 All NLR 292. Technically, it is also possible to sue on the original cause of action before the Nigerian courts subject to the extent to which the courts will apply principles of res judicata arising from decisions in foreign proceedings. Strictly speaking, the option of suing on the original cause is not a case of enforcing a foreign judgment.
- See eg Grosvenor Casinos (n 5) [338]–[39] (Oguntade JSC), [351]–[52] (Ogbuagu JSC).
- 1922 Act (n 1) s 3(1). It is thought that ‘England’ would now be read by the courts essentially as ‘England & Wales' but it is doubtful, however, that the reference to ‘Ireland’ would necessarily be construed by the courts to mean the present Republic of Ireland, which is not a member of the Commonwealth. Further, similar references in the Administration ofJustice Act 1920 (UK) (AJA 1920), from which the Nigerian 1922 Act derives, have been amended to ‘Northern Ireland’.
- 1922 Act (n 1) s 5(1).
- Laws of the Federation of Nigeria and Lagos (1958) vol IX, cl 175, s 5. The countries listed under this instrument are Barbados, Bermuda, British Guiana (Guyana), England, The Gambia, Gold Coast including Ashanti and northern Territories (Ghana), Gibraltar, Grenada, Ireland (Northern Ireland), Jamaica, Leeward Islands (Anguilla, Antigua and Barbuda, British Virgin Islands, Dominica, Montserrat, St Christopher-Nevis), Newfoundland, New South Wales, St. Lucia, St. Vincent, Scotland, Sierra Leone, Trinidad and Tobago, and Victoria. See further KW Patchett, Recognition of Commercial Judgments and Awards in the Commonwealth (Butterworths 1984) 87.
- See (n 5) (everything contained therein).
- This is in the same vein as it was intended that, in the UK, the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK) would eventually replace the AJA 1920 (n 11). See xAlfred C Toepfer (n 8) [295] (Bairamian JSC).
- The spreading of the impression that the 1922 Act (n 1) had been repealed might have been fuelled by the suggestion in two notable works which themselves seemed to assume that the 1922 Act (n 1) had been repealed. First, the 1990 reprint of Nigerian statutes left out the 1922 Act (n 1), giving the impression that it had been repealed. Second, a similar impression had earlier been given in a book indexing Nigerian statutes. See FA Oduba, Nigeria: Index to Federal Statutes in Force 1984 (Professional Books 1985) 104.
- Grosvenor Casinos (n 5) [339] (Oguntade JSC), [347] (Mohammed JSC). cf Marine & General Assurance (n 5) [646] (Mohammed JSC).
- See eg Macaulay (n 5) [297] (Kalgo JSC), [303] (Uwaifo JSC); Witt & Busch (n 5) [17] (Mohammed JSC).
- 1922 Act (n1) s 3(1).
- 1922 Act (nl) s 3(l).
- 1922 Act (n1) s 3(2).
- IFC v DSNL Offshore Ltd & Ors [2008] 9 NWLR 606 [640].
- Laws of the Federation of Nigeria and Lagos (1958) vol IX, cl 175, s 6.
- 1922 Act (n1) s 3(3).
- Legal Notice No 56 (1961).
- 1960 Act (n2) s 3(1).
- The Nigerian superior courts which exercise original jurisdiction to entertain applications for registration of foreign judgments are the Federal High Court, State High Courts and the High Court of the Federal Capital Territory, Abuja, depending on either the subject matter (if exclusive to the Federal High Court) or the part of Nigeria that is appropriately connected to the enforcement action. See also Sheriff and Civil Process Act 1945, ss 104–12.
- 1960 Act (n2) s 4(1).
- 1960 Act (n2) s 3(2).
- 1960 Act (n2) ss 4(1)(a)–(b). There are further provisions that may affect the acceptability or extent of acceptability of a foreign judgment for registration, including for example a judgment which has already been partially satisfied and, one for potentially serious controversy, a provision that a foreign judgment expressed in a foreign currency is to be registered as a judgment in Nigerian currency based on prevailing exchange rates. See further the 1960 Act (n 2) ss 4(2)–(6).
- In some Commonwealth countries with similar legislation, including the UK from whose 1933 Act the rest derive, there have been changes that in some circumstances allow for the enforcement of judgments from subordinate courts that are not seen traditionally as superior courts including, for example, county courts. See eg Civil Jurisdiction and Judgments Act 1982, sch 10 amending the Foreign Judgments (Reciprocal Enforcement) Act 1933.
- Bamodu (n7) 46.
- Macaulay (n5) [299].
- Macaulay (n5) [297] (Kalgo JSC), [304] (Uwaifo JSC).
- See section II above and especially the text to (n 18).
- Macaulay (n5) [297]–[98] (Kalgo JSC).
- Marine & General Assurance (n5) [642].
- Marine & General Assurance (n5) [643].
- Grosvenor Casinos (n5) [347].
- Grosvenor Casinos (n5) [347].
- See eg Macaulay (n5) [298] (Kalgo JSC), [303] (Uwaifo JSC); Marine & General Assurance (n 5) [644] (Mohammed JSC); Witt & Busch (n 5) [17] (Mohammed JSC). In fact of all the members of the Supreme Court that delivered reasoned judgments in this series of cases only Oguntade JSC in Grosvenor Casinos Ltd (n5) did not say expressly that 1960 Act (n2) s 10(a) applies alongside the 1922 Act (n1).
- 2008) 17 NWLR (Pt 1115) 108.
- Hyppolite v Egharevba (1998) 11 NWLR 598 is another instance where enforcement of an American judgment was sought in Nigeria. In that case, however, the registration was set aside on the grounds that the judgment debtor was neither resident nor carrying on business in the USA at the relevant time. Thus, the case does not depart from the prevailing ‘orthodoxy’ that, in general, an American judgment can be enforced by registration in Nigeria.
- Hilton v Guyot 159 US 113 (1895) [181]–[97], [210]-[11], [227]–[28].
- In fairness, it is also worthy of note that there is some amount of debate as to the necessity or desirability of a requirement of reciprocity even under statutory enforcement schemes if there is assurance as to the quality of judgments from the jurisdiction whose judgment is sought to be enforced. For example, the Uniform Foreign Money Judgments Act applicable in a number of American states does not include a reciprocity requirement—apparently a deliberate reaction to the decision in Hilton (n 43). See also Friedrich Juenger, Selected Essays on the Conflict of Laws (Transnational Publishers 2001) 314.
- This would appear to be the approach always intended in England in relation to the Foreign Judgments (Reciprocal Enforcement) Act 1933. See HL Deb 14 February 1933, vol 86. The UK does have agreements under the 1933 Act with a number of countries including Australia. See eg The Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994. See also Practice Direction 74A—Enforcement of Foreign Judgments in Different Jurisdictions.
- See eg Order 23 of the High Court of the Federal Capital Territory (Abuja) Civil Procedure Rules 2004. cf procedure for summary judgment under Order 11 of the High Court of Lagos Civil Procedure Rules 2003.
- 1960 Act (n2) s 4(1) provides that once the requirements for registration are met, the Nigerian courts ‘shall’ order the judgment to be registered.
- 1922 Act (s1) s 3(1).
- IFC (n21) [636]–[40].
- 1960 Act (n2) s 8. See also Teleglobe America (n 41) [142]–[43], [145].
- 1922 Act (n 1) s 3(2).
- cf IFC (n 21) [635], [637].
- 1960 Act (n 2) s 6(1)(a)(ii).
- Teleglobe America (n 41) [141], [146]-[47].
- While the consideration whether the foreign court of whose judgment enforcement is sought by registration turns on the interpretation of statutory provisions in the final analysis, the statutory provisions themselves were informed by rules which had been developed under the common law and, accordingly, some help may still be derived from common law cases. Nevertheless, the use of the common law cases requires caution. For example, the case of Emanuel v Symon [1908] 1 KB 302 lists five circumstances in which the in personam jurisdiction of a foreign court will be recognised in an enforcement action as being: (1) Where the defendant is a subject of the foreign country in which the judgment has been obtained; (2) where he was resident in the foreign country when the action began; (3) where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued; (4) where he has voluntarily appeared; and (5) where he has contracted to submit himself to the forum in which the judgment was obtained. Of these five, the first is now doubted even at common law and is certainly not a consideration under either of the Nigerian statutes.
- See eg Jean-Gabriel Castel, ‘Jurisdiction and MoneyJudgments Rendered Abroad. Anglo-American and French Practice Compared’ (1957–58) 4 McGill Law Journal 152; Richard Oppong, ‘Mere Presence and International Competence in Private International Law’ (2007) 3 Journal of Private International Law 321.
- [1899] 1 Ch 781.
- Pemberton (n 57) [791]. cf Adams v Cape Industries Plc [1990] Ch 433, 514.
- In the UK, the Court of Appeal in Adams (n 58) 518, expressed the opinion, albeit obiter, that at least at common law the voluntary presence (ie not induced by compulsion, fraud or duress) of the defendant in the foreign jurisdiction at the time of service of the process originating the suit would be sufficient for recognising the jurisdiction of the original court in an enforcement action. See also the South African case of Richman vBen-Tovim (2007) 2 South African Law Reports 283; Oppong (n 56).
- See eg Afribank v Bonik Industries Ltd [2006] 5 NWLR 300; Capital Bancorp v Shelter Savings & Loans Ltd and Ngige [2007] 3 NWLR 148; Nelson Ngoh George v Savannah Bank [2009] 5 NWLR 302. However. the ability of the Nigerian courts themselves to exercise in personam jurisdiction over a defendant as a result of mere or transitory presence has long been recognised under the common law in Nigeria. See eg The British Bata Shoe Co Ltd v Melikian (1956) FSC 100; Ayinule v Abimbola (1957) LLR 41. cf ‘Gbenga Bamodu, ‘In Personam Jurisdiction: An Overlooked Concept in Recent Nigerian Jurispridence' (2011) 7 Journal of Private International Law 273.
- Grosvenor Casinos (n 5). See also Hyppolyte (n 42).
- Grosvenor Casinos (n 5), where the defendant judgment creditor had been served with the English process in Nigeria under RSC Ord 11.
- For example, service may be effected on a defendant ordinarily resident within the jurisdiction but not present at the relevant time either by substituted service within jurisdiction or by service outside the jurisdiction under long arm provisions. The English Court of Appeal left the question open in Adams (n 58) [518].
- See Schibsby v Westenholz (1870) LR 6 QB 155; Adams (n 58) [514].
- Dunlop Pneumatic Tyre Co Ltd v AG fur Motor und Motofahrzeugbau vorm Cudell & Co [1902] 1 KB 342, [346]. In Adams (n 58) [518], the Court of Appeal declined to express a final opinion on the point.
- The equivalent provision in 1960 Act (n 2) s 6(2)(iv) does make this distinction. It provides for the acceptance of a foreign court's jurisdiction if the defendant, being a natural person, is ordinarily resident in that jurisdiction or, being a corporation, has its principal place of business there.
- See eg South India Shipping Co Ltd v Export-Import Bank of Korea [1985] 1 WLR 585, [589] (Ackner LJ). Also, in Adams (n 58) [523], Slade LJ noted that ‘presence’ and ‘residence’ in relation to corporations had been used more or less interchangeably by the courts.
- This proposition goes back to the case of Littauer Glove Co v F WMillington (1920) Ltd (1928) 44 TLR 746, [747] where Salter J said: ‘What was meant by saying that a business corporation was resident in a foreign jurisdiction for that purpose? That depended on whether, on the day in question, it was carrying on business in the foreign State so that it could fairly and properly be said to be then resident in that State… there must be some carrying on of business at a definite and, to some reasonable extent, permanent place.’ In Adams (n 58) [521], the English Court of Appeal saw ‘no reason to doubt the correctness' of the tests set out in the Littauer case.
- However, in the English case of Sfeir & Co v National Insurance Company of New Zealand [1964] 1 Lloyds Rep 330 where the court considered the equivalent provision under AJA 1920 (n 11), counsel on both sides as well as the court took a common view that a corporation is not ordinarily resident in a foreign country if it is not carrying on business in that country.
- cf JG Collier, ‘Recognition and Enforcement of Foreign Judgments: England' in G Walter and SP Baumgartner (eds), Recognition and Enforcement of Foreign Judgments Outside the Scope of the Brussels and Lugano Conventions (Kluwer 2000) 140.
- Nevertheless, there may yet be some differences in the detailed application. For example, the possibility of carrying on business elsewhere through a branch is more readily associated with corporations though it may also conceivably be associated with an individual trading under a business name.
- Similarly in Hyppolyte (n 42), which was decided under the 1960 Act (n 2), the court simply accepted the judgment debtor's affidavit evidence that he did not have an office or place of business in the foreign jurisdiction at the time when the foreign proceedings were instituted.
- [2006] 4 NWLR 114, [125].
- The relevant issue was whether the American company was carrying on business in violation of Companies and Allied Matters Act 1990, s 54. This requires a foreign company intending to carry on business in Nigeria to be incorporated under Nigerian law.
- Adams (n 58).
- Adams (n 58) [530].
- Aluminium Industries Aktien Gesellschaft v Federal Board of Inland Revenue [1971] 2 NCLR 121.
- See Witt & Busch (n 5) [21] (Mohammed JSC), [29] (Ogbuagu JSC). In that case, the defendant had not only contested the action but had also pursued appeals and lost in the foreign jurisdiction without at any time having challenged the jurisdiction of that court.
- In technical parlance at common law, a person ‘enters an appearance’ as a defendant after being served with the originating process by which action is commenced against him. In this sense, it would not be appropriate to speak of the ‘voluntary appearance’ of a plaintiff/claimant. Further, the comparative provisions in section 6 of the 1960 Act (n 2) actually distinguish between jurisdiction arising from submission by voluntary appearance on the one hand and from being a plaintiff or making a counterclaim on the other.
- Emanuel (n 55).
- See generally JG Monroe, ‘Foreign Judgments: Competence of Court Pronouncing Original Judgment’ (1950) 3 The International Law Quarterly 444; G Solomons, ‘Enforcement of Foreign Judgments: Jurisdiction of Foreign Court'(1976) 25 International and Comparative Law Quarterly 665.
- Re Dulles Settlement (No. 2) [1951] Ch 842, 851 (Denning LJ). See also NV Daarnhouwer & Co Handelmaatschappi v Boulos [1968] 2 Lloyd's Rep 259.
- Grosvenor Casinos (n 5).
- Henry v Geopresco International Ltd [1975] 2 All ER 702.
- The Nigerian courts have long accepted the validity and enforceability of forum selection clauses. See Adesanya v Palm Line Ltd (1967) LLR 18; Sonnar Nig Ltd v PMS Nordwind [1987] NWLR 520. See also Gbenga Bamodu, ‘Jurisdiction and Applicable Law in Transnational Dispute Resolution before the Nigerian Courts' (1995) 29 The International Lawyer 555.
- In Grosvenor Casinos (n 5) [21], Mohammed JSC noted that apart from appearing before the original court, the judgment debtor had also agreed by contract to submit to the jurisdiction of that court.
- In Sfeir & Co (n 69), Mocatta J held that an implied submission or agreement to submit can satisfy the same provisions in the equivalent AJA 1920 (n 11) with the caution that the implication should not merely be reasonable but must be a ‘necessary’ implication. cf I Carr and P Stone, International Trade Law (3rd edn, Cavendish 2009) 610–11.
- 1922 Act (n 1) s 3(2)(c).
- It is thought that ‘process’ in this context means the originating process by which the action was commenced but it is conceivable that it may extend in some circumstances to other processes including interlocutory processes for example.
- Teleglobe America (n 41) [134], [147]. The Court of Appeal held that the judgment debtor was no longer entitled to raise the issue of inadequate service in the enforcement proceedings in Nigeria when the original court had ruled that service had been properly effected under its own provisions.
- 1922 Act (n 1) ss 3(2)(d)-(f).
- 1960 Act (n 2) s 6(1).
- 1960 Act (n 2) s 6(1)(a)(ii). The 1960 Act does not state explicitly who has the burden of proof in relation to the jurisdiction of the original court. It seems implicit from the language, however, as is the case at common law, that the burden of proving that the original court lacked jurisdiction lies on the judgment debtor. See Pemberton v Hughes (n 57) 792.
- See text accompanying (n 58)–(n 60).
- 1960 Act (n 2) s 6(2)(a)(i).
- 1960 Act (n 2) s 6(2)(a)(ii).
- 1960 Act (n 2) s 6(2)(a)(iii).
- 1960 Act (n 2) s 6(3)(b). This provision would seem to cover, for example, a circumstance where the parties had agreed to refer disputes to arbitration or to the courts of a country other than that of the original court.
- 1960 Act (n 2) s 6(3)(c).
- 1960 Act (n 2) s 6(2)(a)(iv).
- cf Collier (n 71) 139, 141.
- 1960 Act (n 2) s 6(2)(a)(v). As jurisdiction under these provisions is jurisdiction in the international sense, and considering that these particular provisions refer to courts of the country of the original court, it would ordinarily not matter for registration purposes that while the defendant had the place of business in one constituent state of the country (eg Illinois), the action was commenced and judgment obtained in the courts of another constituent state (eg Texas); however, at common law at least, this position may possibly be affected by peculiar considerations such as diversity rules in the United States. See Adams (n 58) especially [550]–[57].
- The equivalent provision under the 1922 Act (n 1) was applied in respect of a natural person in Grosvenor Casinos (n 5).
- 1960 Act (n 2) s 6(2)(b). It is not clear whether ‘time of the proceedings' refers to when the proceedings are issued or when service of originating process is effected.
- 1960 Act (n 2) s 6(3)(a).
- 1960 Act (n 2) s 6(2)(c). It remains to be seen how the scope of this provision will be delimited; possibly, it may be that the original court will be deemed to have had jurisdiction in circumstances in which an equivalent court in Nigeria would assume jurisdiction.
- 1960 Act (n 2) s 6(1)(a)(iii).
- Teleglobe America (n 41) [134], [147].
- Firstly, the court applied the provisions of the 1960 Act (n 2) without sufficient or accurate consideration of the effect of the absence of a ministerial order, which really should have meant that the judgment in question did not qualify for registration under the 1960 Act (n 2) in the first place. Secondly, the court seemed to conclude rather too readily that the registering court is not entitled to re-examine the question of service once it had been ruled upon by the original court when the language of section 6 requires such an examination for the purpose of determining if the defendant was given sufficient notice of the foreign proceedings at least in the instance of an application to set aside a registration.
- Although it appears dubious, it may be that the Court of Appeal is correct in holding that a refusal is not mandatory at the application stage since such applications usually start out as ex parte proceedings and always with the fall back that the outcome of the proceedings will be notified to the judgment debtor who will then have the opportunity to apply to set aside any registration obtained. It is also likely that the burden of proof of lack of sufficient notice rests on the judgment debtor who may possibly not be a party to the enforcement proceedings until making an application to set aside a registration.
- 1960 Act (n 2) s 6(1)(a).
- 1960 Act (n 2) s 6(1)(b).
- See also 1960 Act (n 2) s 7(1). For the position at common law, see Nouvion v Freeman (1890) LR 15 App Cas 1. cf Vanquelin v Bouard (1863) 15 CB (NS) 342, 367–68. See also Philip St John Smart, ‘Finality and the Enforcement of Foreign Judgments under the Common Law in Hong Kong' (2005) 5 Oxford University Commonwealth Law Journal 301.
- 1960 Act (n 2) s 4(3).
- Witt & Busch (n 5).
- See the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act 1995.
- This does not detract, of course, from the fact that a foreign currency judgment can continue to be registered under the 1922 Act (n 1) where applicable, as well as at common law in Nigeria.
- Observation of the absence, and effect thereof, of ministerial orders under the 1960 Act (n 2) goes as far back as the 1965 decision in Alfred C Toepfer (n 8). Suggestions for ministerial action also go back a considerable time. See eg Chuma Uwechia, ‘Memo to the Federal Attorney-General and Minister of Justice on the Enforcement of Foreign judgments in Nigeria' Unpublished Memo, 19 December 1991. Additionally, as noted earlier, there have been more recent calls for necessary ministerial action by members of the Nigerian Supreme Court (see text to (n 11)).
- It is theoretically possible though that a Commonwealth country which had enacted legislation based on the AJA 1920 (n 10) may later change its foreign judgment enforcement regime in a manner that does away with the presumed reciprocity.
- Schibsby (n 64).
- Traditionally, courts in common law jurisdictions do not apply the doctrine of merger of the cause of action into the judgment given in relation to foreign judgments, with the result that, subject to questions of res judicata and issue estoppel, a foreign judgment creditor can sue again locally on the same cause of action that gave rise to the original judgment. It had been assumed until recently that in the UK s 34 of the Civil Jurisdiction and Judgment Act 1982 had abolished the non-merger rule concerning foreign judgments, but see now Republic of India v India Steamship Co Ltd (The Indian Grace’) [1993] AC 410. See also Simon Beckwith, ‘Res Judicata and Foreign Judgments: The Indian Grace (1994) 43 International and Comparative Law Quarterly 185.
Oxford University Commonwealth Law Journal
Volume 12, 2012 - Issue 1