Nigeria: Is The Supreme Court On A Flip Flop With Respect To The Legal Status Of The Foreign Judgments (Reciprocal Enforcement) Act?

Is the Supreme Court on a Flip Flop with respect to the Legal Status of the Foreign Judgments (Reciprocal Enforcement) Act?¹

1. Introduction

There are two laws that regulate the enforcement of foreign judgments in Nigeria. The first is the Reciprocal Enforcement of Judgments Act², (“the Ordinance”), which 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 second law which is largely unsettled, and which is the crux of this discourse is the Foreign Judgments (Reciprocal Enforcement) Act³ (“the Act”). The Act is made up of two major parts, Part 1 and Part 2. Part 1 which spans from section 3 to section 10, contains the provisions for the registration of foreign judgments in Nigeria, while Part 2 contains the miscellaneous provisions of the Act.

Section 4 of the Act stipulates that a foreign judgment creditor may apply to a superior court in Nigeria within a period of 6 years from the date of the last judgment in the matter to have the judgment registered in that court for the purpose of enforcement in Nigeria, subject to the reciprocity requirement under Section 3 of the Act. Section 3 of the Act stipulates that the Minister of Justice, may by order direct, that Part 1 of the Act

shall extend to a foreign country if he is satisfied that substantial reciprocity of treatment will be assured as regards the enforcement in that foreign country of judgments given in the superior courts in Nigeria. It should be noted that the Minister of Justice has not yet made any order pursuant to Section 3 of the Act extending the application of Part 1 of the Act to any country.

Worthy of note also is Section 10(a) of the Act which appears to provide for the enforcement of a foreign judgment obtained before the commencement of an order under section 3 of the Act. It stipulates thus:

The provision of section 10(a) of the Act has been the subject of almost unending controversy when it comes to the powers of the courts to register judgments under that section of the Act. While some authorities have stated that the right of a judgment creditor to register a foreign judgment under the Act is inchoate since the entire Part 1 of the Act requires a positive action on the part of the Minister of Justice of the Federation under section 3 of the Act to bring that part of the Act into force (see for example Grosvenor Casinos Ltd v. Ghassan Halaoui,⁴ other authorities, as we shall see hereunder, have decided that section 10(a) of the Act permits the registration of foreign judgments under the Act pending an order by the Minister of Justice extending the application of other sections of Part 1 of the Act to such countries.

2. Judicial Pronouncements and Commentary on the Legal Status of Part 1 of the Act

The decision of the Court of Appeal in Teleglobe America Inc. v. 21^st Century Tech. Ltd⁵is the most telling in respect of the legal implication of section 10(a) of the Act. In that case, the Court of Appeal overturned the ruling of the Federal High Court which refused to register a judgment obtained in Fairfax County, Virginia, United States of America and held that the foreign judgment was registrable under section 10(a) of the Act. The Court of Appeal, in coming to its decision relied on the Supreme Court's decision in Macaulay v. R.Z.B Osterreich Akiengesell Schaft of Austria⁶ where the Supreme Court while interpreting section 10(a) of the Act held per Kalgo J.S.C as follows:

Whilst maintaining that section 10(a) of the Act permits the registration of a judgment obtained from any foreign country within 12 months pending an order by the Minister of Justice under Section 3 of the Act, the Supreme Court has also held in a seemingly sweeping fashion in some of its judgments, that the entire Part 1 of the Act requires a positive action on the part of the Minister of Justice of the Federation under Section 3 of the Act to bring that part of the Act into force. For example, the Supreme Court per Mohammed, J.S.C in Marine & General Assurance Company Plc v. Overseas Union Insurance Ltd. & Ors⁷ held thus:

If, as it was held by the Supreme Court that, the entire provisions of Part 1 of the Act, which includes Section 10(a) of the Act remain dormant or inactive until the Minister of Justice makes an order under section 3 of the Act, can we still say that a foreign judgment is registrable under section 10(a) of the Act as decided by the Supreme Court in Macaulay v. R.Z.B. of Austria?⁸The Supreme Court answered this question in Marine & General Assurance Company Plc v. Overseas Union Insurance Ltd. & Ors., (supra) when, despite its aforesaid pronouncement in the same case, it cited with approval its previous decision in Macaulay v. R.Z.B. of Austria⁹and held that the judgment of the High Court of England and Wales in that case was registrable within 12 months under either Section 3(1) of the Ordinance or Section 10(a) of the Act. This decision of the Supreme Court has given fillip to the argument that pending the making of an order by the Minister of Justice extending the application of Part 1 of the Act to any country, foreign judgments from any country in the world are registrable within 12 months under section 10(a) of the Act.

In a more recent judgment, the Supreme Court in Grosvenor Casinos Ltd v Ghassan Halaoui¹⁰raised the issue of whether the application to set aside the registration of the judgment was properly brought under Section 6 of the Act. The Supreme Court held that both the Ibadan High Court and the Court of Appeal were wrong to have decided the case under Section 6 of the Act. The Supreme Court stated that since the Minister of Justice had not made any order pursuant to Section 3 of the Act extending Part 1 of the Act to any country, the proper law that was applicable to the case was the Ordinance since the judgment was from the High Court of England. The Supreme Court relied on the case of Macaulay v. R.Z.B. of Austria¹¹ and in the end dismissed the appeal relying on the provisions of the Ordinance.

It is interesting to note that in coming to its decision, the Supreme Court did not specifically overrule that part of the decision in Macaulay v. R.Z.B. of Austria where another panel of the Supreme Court held that by virtue of Section 10(a) of the Act a judgment from any foreign country to which Part 1 of the Act has not been extended can be registered in Nigeria within 12 months. Thus, it would appear that the current position of the Supreme Court is that Section 10(a) of the Act provides a leeway for the registration of a judgment from any foreign country under the Act within 12 months pending the making of an order by the Minister of Justice extending the application of other provisions of Part 1 of the Act to such foreign country. This position is bolstered by the decision of the Supreme Court in Obasi v. Mikson Establishment Industries Ltd,¹²which is arguably the most recent decision of the Supreme Court on the point. In the Obasi v. Mikson case, the judgment in issue was obtained in Niger Republic and the Respondent had applied to the Kano State High Court for the registration of the judgment pursuant to Section 10(a) of the Act for the purpose of enforcement, which application was duly granted. The Appellant was aggrieved with the registration and enforcement of the judgment against him and thus brought an application to set aside the registration of the judgment. The application was dismissed by both the Kano State High Court and the Court of Appeal.

On further appeal to the Supreme Court, the Supreme Court was, among other things, invited to determine the applicability of Section 6 (1)(a)(vi) of the Act to setting aside a judgment obtained in Niger Republic and registered under section 10(a) of the Act. After due consideration of the submissions of both parties, the Supreme Court held that an application to set aside the registration of a foreign judgment can properly be brought under Section 6 (1)(a) (vi) of the Act if the judgment debtor satisfies the court that the rights under the judgment are not vested in the applicant for registration. In that case however, the Supreme Court stated that the Appellant did not satisfy the court that the rights under the judgment from Niger Republic were not vested in the Respondent and thus affirmed the registration of the judgment under Section 10(a) of the Act.

A review of the above cited decisions of the Supreme Court suggests that the apex court has been on a flip-flop on the relevance and applicability of section 10(a) of the Act vis-à-vis the reciprocity requirements of section 3. In one breath holding that Part 1 of the Act is not yet in force since the Minister of Justice has not made any order under Section 3 of the Act extending Part 1 of the Act to any country, and in another breath holding that foreign judgments from any country can be registered in Nigeria under section 10(a) of the Act (which is under Part 1 of the Act) pending the aforesaid order by the Minister of Justice, and such registration may be challenged under section 6(1)(a)(vi) of the Act. If that is the case, of what use then is the requirement of reciprocity under Section 3 of the Act. One would have thought that the intent of the draftsmen of the Act was to get other countries to provide the same avenue for the enforcement in their countries of judgments obtained in Nigeria, so that judgment creditors in Nigeria would be able to reap the fruit of their judgment against judgment debtors that have assets outside the country. But that seems to be defeated by Section 10(a) of the Act which is apparently inconsistent with section 3 of the Act.

It is strongly arguable that Section 10(a) of the Act is completely unnecessary given that it defeats the purpose of the Act, which presumably is to ensure reciprocity of enforcement of judgments between Nigeria and other countries. This is more so, given that foreign judgments obtained outside of the UK and those countries to which the Ordinance is not applicable can still be enforced in Nigeria under common law by the judgment creditor filing a fresh action with the judgment as the cause of action. Thus, there was really no need for the draftsmen of the Act to create a leeway for the enforcement of foreign judgments under Section 10(a) of the Act pending the making of an order by the Minister of Justice under Section.

It is, however, curious that since the Act came into force on 1^st February 1961, the Minister of Justice has not made an attempt to make an order pursuant to Section 3 of the Act, extending the application of Part 1 of the Act to any country. Perhaps, this is because no country has extended reciprocal enforcement to judgments obtained in Nigeria, on the terms envisage by the Act. This, is the more reason why Section 10(a) of the Act ought not to have been inserted into the Act to provide benefits of the Act to judgments obtained from a country which has not provided reciprocal enforcement of judgments obtained in Nigeria on the terms envisage by the Act.

3. Conclusion

It is trite that where there are conflicting judgments of a court on an issue, it is the latest judgment that represents the position of the law on the issue.¹³ Accordingly, on the basis of the decision of the Supreme Court in Obasi v. Mikson Establishment Industries Ltd (supra), it is safe to assert that a foreign judgment obtained from any country other than a commonwealth jurisdiction is registrable under section 10(a) of the Act. It can also be safely said that such registration may be challenged under Section 6(1)(a)(vi) of the Act, until there is any contrary decision by the Supreme Court.

Footnotes

1 Emmanuel Bassey, Ifeoluwa Oyemade, Associates SPA Ajibade & Co., Lagos, Nigeria.

2 Cap. 175, Laws of the Federation of Nigeria, 1958.

3 Cap. F35, Laws of the Federation of Nigeria, 2004.

4 (2009) 10 NWLR 309).

5 (2008) LPELR-5006(CA).

6 (2003) LPELR-1802(SC).

7 (2006) LPELR-1840(SC) (pp. 15-17, paras. F-A (pp. 15-17, paras. F-A).

8 Ibid n. 3.

9 Ibid n. 4. See also, Witt & Busch Ltd v. Dale Power Systems Plc (2007) LPELR-3499(SC) (pp. 14-15, paras. D-F).

10 Ibid n. 1.

11 Ibid n. 4.

12 (2016)16 NWLR (Pt. 1539) 335.

13 Ikeni & Anor v. Efamo & Ors (2001) LPELR-1474(SC) (pp 21 - 21 paras C - D).

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