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

Dictum

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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NON-SUBMISSION TO THE JURISDICTION OF FOREIGN COURT

✓ In the New Zealand case of Sharps Commercials Ltd. v. Gas Turbines Ltd. (1956) NZLR 819, the Supreme Court of that country, held that a judgment given by the High Court of Justice in England in an action in personam (as in the instant case leading to this appeal), could not be registered in that Supreme Court because, the judgment debtor – a Company registered in New Zealand, which at no time, had any office or place of business in England, but or although it was served with the Writ, it did not take any part in the proceedings in the said High Court or submit to its jurisdiction or agree in respect of the subject-matter of the proceedings to submit to the judgment of that court, because none of the conditions set out in Section 6(3) of the Reciprocal Enforcement of Judgments Act, 1934 of New Zealand (which is substantially the same with the 1958 Act).

✓ In the case of Schibsby v. Westenholz & Ors. (1861 – 73) All E.R. 988, it was held that a judgment obtained in a foreign court in default of appearance, against the defendants who were not subjects of the Foreign State and who also, were not resident there at the time the proceedings were instituted and who also did not own any property in that foreign State, but although the defendants had notice of the said proceedings sufficient for them to have appeared and defend the action, they had no duty, to obey the judgment so, an action to have the judgment enforced, failed. I note however, that this case, was before the 1933 Act.

✓ In the case of Societe Cooperative Sidmetal v. Titan Internatioonal Ltd. (1966) 1 Q.B. 828. it was held or decided by the Queen’s Bench Division of the High Court of Justice, London, England, that a judgment of a Belgian Court given against a defendant resident in England, could not be registered in England under the 1933 Act because, although the defendant, was served with the processes in England, he did not surrender to the jurisdiction of the Belgian Court by voluntarily appearing and participating in the proceedings.

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THE REGISTERING COURT AND THE ORIGINAL COURT SHOULD KEEP WATCH NOT TO CONFLICT IN EXECUTION

The process of execution of a judgment may take different forms and may necessitate other ancillary proceedings. In the quest to eliminate any conflict of jurisdiction as to execution between the registering court and the original court, it is important for either of the courts to discover what is being done or has been done by either of them at a particular time before either assumes jurisdiction. It seems to me that the matter boils down to the necessity for both courts to prevent an abuse of its execution process rather than in the proclamation of principles.

— Oguntade, JCA. Adwork Ltd. v Nigeria Airways Ltd. (1999) – CA/L/156/99

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MINISTER OF JUSTICE HAS POWER TO EXTEND THE APPLICATION OF PART 1 OF THE 1990 ACT

Section 3 of the 1990 Act empowers the Minister of Justice of the Federation of Nigeria to extend the application of Part 1 of that Act with regard to registration and enforcement of foreign judgments of superior courts, to any foreign country, including United Kingdom if he is satisfied that the judgments of our superior courts will be accorded similar or substantial reciprocity in those foreign countries. And once an order is made under section 3 of the 1990 Act in respect of any part of Her Majesty’s dominions to which the 1958 Ordinance earlier applied, the latter ceases to apply as from the date of the order. The learned counsel for the parties have both agreed that the Minister of Justice has not exercised that power in respect of any foreign country under the said Act. I also agree with them on this and I so find.

— A. Kalgo, JSC. Macaulay v RZB (2003) – SC.109/2002

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THE 1958 ORDINANCE STILL APPLIES TO REGISTRATION OF FOREIGN JUDGEMENTS

The 1958 Ordinance was promulgated as No.8 of 1922 “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”. It came into operation on the 19th of January, 1922. There is no doubt therefore that it applies to all judgments of the superior courts obtained in the United Kingdom and its application can be extended to any other territory administered by the United Kingdom or any other foreign country. This can be done by proclamations pursuant to section 5 of that Ordinance. Therefore the 1958 Ordinance not having been repealed by the 1990 Act, still applies to the United Kingdom.

— A. Kalgo, JSC. Macaulay v RZB (2003) – SC.109/2002

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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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THE 1958 RECIPROCAL ACT APPLIES SINCE THE MINISTER OF JUSTICE IS YET TO MAKE AN ORDER UNDER THE 1990 ACT

Taking into consideration that Part I of the Foreign Judgments (Reciprocal Enforcement) Act, CAP 152 of the Laws of the Federation, 1990, comprising Sections 3, 4, 5, 6, 7, 8, 9 and 10, is to come into force only at the instance of the Minister of Justice by an order issued by him as specified in Section 3 of the Act, and in the absence of this order directing the application of Part I of the Act to the chosen countries specified in the order, the provisions of the earlier 1958 Reciprocal Enforcement of Judgments Act CAP 175, remains applicable to the registration of foreign Judgments in Nigeria, particularly Judgments of the United Kingdom, one of which is the subject of this appeal. In other words Section 6 of the 1990, Act which was relied upon by the parties at the Courts below and interpreted and applied by the Court of Appeal below in its Judgment, is yet to come into force in the absence of the Order to bring it into force together with the other Sections in Part I of the Act by the Hon. Minister of Justice. This situation makes it necessary to fall back to the 1958 Ordinance to determine whether or not the Foreign Judgment of the Appellant was registrable under that Act.

— M. Mohammed, JSC. Grosvenor v Halaloui (2009) – SC.373/2002

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