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BOTH THE 1958 ACT AND THE 1990 ACT APPLIES TO FOREIGN JUDGEMENT

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The two main statutes are the Reciprocal Enforcement of Judgment Act 1922 Cap 175 Laws of the Federation and Lagos 1958 and the Foreign Judgment (Reciprocal Enforcement) Cap 152 Laws of the Federation 1990 Act Cap F35 of the Revised Laws of the Federation 2004. The 1958 ordinance was promulgated to facilitate the reciprocal enforcement of Judgments obtained in Nigeria and in the United Kingdom and other territories under her majesty’s protection not having been repealed by the 1990 Act, the Act still applies to the United Kingdom and other part of her majesty’s dominion. See Macaulay v. R.Z.B Austria (2003) 18 NWLR (Pt. 852) SC 282.

— R.O. Nwodo, JCA. Teleglobe v 21st Century Tech. (2008) – CA/L/694/2006

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SIX YEARS TO REGISTER FOREIGN JUDGEMENT CANNOT BE APPLICABLE UNTIL MINISTER MAKES ORDER UNDER THE 1990 ACT

Under S4 of the Foreign Judgment (Reciprocal Enforcement) Act, the period within which a foreign Judgment may be registered in Nigeria was extended to six years from the date of the Judgment. However, S3(1) of the Act subjected the coming into force of the provisions of part 1 of the Act which part 1 contains S4(1) of the said Act which provides for the period of registration to be six years if an order is made by the Minister of Justice directing the extension of part 1 of the Act to the relevant foreign countries. In effect, until the Minister of Justice in this country makes the Order under S3(1) of the Act, S4 of the Foreign Judgment Act cannot be available to any applicant to support an application to register a foreign Judgment within a period of 6 years from the date of the Judgment. See Marine & Gen. Ass. Co. Plc. v. O. U. Ins. Ltd. (2006) 4 NWLR (Pt.971) SC 622.

— R.O. Nwodo, JCA. Teleglobe v 21st Century Tech. (2008) – CA/L/694/2006

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FOREIGN DECISIONS ARE ONLY OF PERSUASIVE VALUE

In Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 580, Niki Tobi JSC (God bless his soul) had emphatically held inter alia thus: Decisions of Foreign Countries are merely of persuasive authority. This Court will certainly allow itself to be persuaded in appropriate cases but this Court will not stray away from its course of interpreting the Nigerian Constitution by resorting to foreign decisions which were decided strictly in the context of their Constitution and which are not similar to ours. See also Okon v. The State (1988) 1 NWLR (Pt. 69) 172 @ p. 180, where Nnemeka-Agu, JSC had stated inter alia thus: ”It is well to remember not only that a foreign decision should at best be of persuasive authority in a Nigerian Court but also that before it can even qualify as such, the legislation, substantive or adjectival, upon which it was based must be in pari materia with our own. It is dangerous to follow a foreign decision simply because its wording approximates to our own. Nigerian Courts are obliged to give Nigerian Legislation its natural and ordinary meaning, taking into account our own sociological circumstances as well as other factors which form the background of our Local Legislation in question. A Copy-Cat transportation of an English decision may in some circumstance turn out to be inimical to justice in our own Courts. See also Adetoun Oladeji (Nig) Ltd v. Nigerian Breweries PLC (2007) LPELR 160 (SC) Dada v. The State (1977) NCLR 135; Eliochin Nig. Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Nigerian National Supply Co. Ltd v. Alhaji Hamajode Sabana Co. Ltd (No 3) (1988) 2 NWLR (Pt. 74) 23: Senator Adesanya v. President of the Federal Republic of Nigeria (1981) 5 SC 112; Yahaya v. State (2002) 3 NWLR (Pt. 754) 289.

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PREREQUISITES TO SET ASIDE FOREIGN JUDGEMENT WILL BE CONSIDERED WHEN FOREIGN JUDGEMENT IS TO BE REGISTERED

The purpose from the subtitle is for cases in which registered Judgments must or may be set aside. There is no doubt that the application in the lower court is not for an Order to set aside but to register a Foreign Judgment. Notwithstanding, the requirements under S6(2) and S6(3) are germane to all Foreign Judgment applications. This is because prescribed conditions therein will serve as a guard for the court to avoid circumstances wherein a registered Judgment will be subsequently set aside on the basis of the provision stated in S6 of the Act. The provision therein is not mandatory but necessary when considering whether a Foreign Judgment will be registered or not … Therefore once Applicant seeking registration has presented facts to support the prerequisites under S4 for registration, the lower court must presume the foreign court had jurisdiction. The court will refuse to register a foreign Judgment when these aforesaid conditions have not been fulfilled inclusive of where the Judgment could not be enforced by execution in the country of the original court. The conditions set out under S4 of the foreign Judgment (Reciprocal Enforcement) Act should be considered by the Learned Trial Judge before registering the Judgment or refusing to register.

— R.O. Nwodo, JCA. Teleglobe v 21st Century Tech. (2008) – CA/L/694/2006

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FOREIGN JUDGEMENTS CAN ONLY BE REGISTERED WITHIN 12 MONTHS IF NO EXTENSION OF PART 1 OF THE 1990 ACT

This court in the case of Macaulay v. R. Z. B. Austria (2003) 18 NWLR (Pt.852) 282 at pp. 298H -299 A – B, per Kalgo, JSC observed as follows: “By this provision, irrespective, regardless or inspite of any other provision in the 1990 Act, any judgment of a foreign country including United Kingdom to which part 1 of that Act was not extended, can only be registered within twelve months from the date of the judgment or any longer period allowed by the court registering the judgment since the provisions of Part 1 of the said Act had not been extended to it. Section 4 of the 1990 Act which speaks of registering a judgment within 6 years after the date of judgment only applies to the countries where Part 1 of the said Act was extended, that is to say, when the Minister made an order under the 1990 Act; and in this case it was not.”

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REGISTERING COURT CANNOT SIT AS APPELLATE COURT OVER JUDGEMENT SOUGHT TO BE REGISTERED

The law is that it is not the duty of the registering Court to sit on appeal over the decision of the original Court that delivered the Judgment sought to be registered. My view above is fortified by the decision of the Supreme Court in the case of:- – Witt & Busch Ltd. v. Dale Power Systems Plc (2007) 17 NWLR part 1062 Page 1 at 23 – 24 Paragraphs G – A; where it was held as follows:- “I entirely agree with the statement of the laws as declared in the lead judgment particularly on the point that section 3 (1) of the Reciprocal Enforcement of Judgment Ordinance was applicable to the case. I will also add that it is not the duty of the Court entertaining application for the registration of a foreign judgment to sit as an appellate Court over the foreign judgment. The Respondent to the judgment sought to be registered is expected to have exercised its right of appeal under the laws of the foreign country. All that the Court to which the application is made needs to do is to ensure that the Appellant complies with the requirements of our laws on registration of foreign judgment. I believe that requirement has been met.”

— J.O. Bada, JCA. Conoil v Vitol (2011) – CA/A/213/2010

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CRITERIA AND PROCESSES FOR REGISTRATION OF A FOREIGN JUDGEMENT

In the instant case, the relevant legislative provisions, and these have been reproduced supra, are made up of words which are clear and unambiguous in their meanings. Their ordinary literal meaning must accordingly be ascribed to them. Resultantly the combined effect of these provisions are:- (1) Foreign judgments are, on application and a court order thereon, registrable in this country. (2) Application for an order for leave to register such judgments can be made either ex parte or on notice. (3) An application on notice for the registration of a foreign judgment can be made, by the necessary implication deducible from S. 3(4), more than once.
Judgments that must not be registered pursuant to applications in that behalf and if registered their registrations are liable to being set aside, on application by the judgment debtor include:- (a) Judgment given by a court without jurisdiction. (b) Judgment against a judgment/debtor who did not carryon business or resided within the jurisdiction of or voluntarily appeared or submitted or agreed to submit to the jurisdiction of the court that gave the judgment. (c) Judgment against a defendant who although ordinarily resident or was carrying on business or agreed to submit to the jurisdiction of the court that gave the judgment was not duly served with the processes of the court and did not attend trial. (d) Judgment that was fraudulently obtained. (e) An appeal subsist against the judgment or that being entitled to, the judgment/ debtor intends to appeal. (f) If the cause of action on the basis of which the judgment was given could not have been heard by the registering court for reasons of public policy or such other related reasons. (g) it is neither just nor convenient that the judgment be enforced in Nigeria and; (h) for any other sufficient reasons. The discretion of the Judge are frighteningly wide indeed.

– M.D. Muhammad, J.C.A. Shona-Jason v Omega Air (2005) – CA/L/418/2000

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