Introduction

The economic recession which is currently taking place in most countries of the world has made Africa the beautiful bride of foreign investments as most established businesses are currently coming to invest in Africa. There is no doubt that Nigeria being the most populous country in Africa would attract a significant portion of the foreign investments which are being channelled into Africa.

Thus, it is important that there needs to be a very deep understanding of the regime of the enforcement of foreign judgments in Nigeria, as foreign business men and organizations are bound to shun Nigeria and avoid doing businesses with Nigerian companies and business men if they are not confident that any judgment which they obtain against a Nigerian business man or company in a court in a foreign country would be enforceable in Nigeria.

The aim of this paper is therefore to shed more light on the regime of the enforcement of foreign judgments in Nigeria— we shall do this by reviewing the laws applicable to the enforcement of foreign judgments in Nigeria and the judicial attitude to the registration of foreign judgments in Nigeria.

Applicable Laws to the recognition and enforcement of foreign judgments in Nigeria

The principal laws regulating the recognition and enforcement of foreign judgments in Nigeria are:

• Reciprocal Enforcement of Judgments Ordinance, Chapter 175, Laws of the Federation of Nigeria, 1958.
• The Foreign Judgments (Reciprocal Enforcement) Act, Chapter F35, Laws of the Federation of Nigeria, 2004

A foreign judgment needs to be recognized and registered in Nigeria before it can become enforceable in Nigeria— this is because there is a difference between the recognition of a foreign judgment and the enforcement of a foreign judgment.

Thus, whilst it is the Reciprocal Enforcement of Judgments Ordinance, Chapter 175, Laws of Federation Nigeria, 1958 and the Foreign Judgments (Reciprocal Enforcement) Act, Chapter F35, Laws of Federation of Nigeria, 2004 that regulates the recognition and registration of foreign judgments in Nigeria, it is the Sheriff and Civil Processes Act, Chapter S6, Laws of the Federation Nigeria, 2004 that regulates the enforcement of foreign judgments in Nigeria since a foreign judgment automatically becomes a judgment given by a Nigerian court upon registration in Nigeria.

In 21st Century Tech. Ltd. v. Teleglobe America, Inc3 , Okoro, JCA held thus:

• “The effect of registering a foreign judgment in a Nigerian Court is, for all intents and purposes, to make the registered judgment a judgment of the Nigerian Court. In the instant case, the registration by this court of the judgment of Fairfax County Court, Virginia, made it a judgment of this court and no longer the judgment of an American Court”

Reciprocal Enforcement of Judgments Ordinance, Chapter 175, Laws of the Federation of Nigeria, 1958

The 1958 Ordinance was promulgated as No. 8 of 1922 to facilitate the reciprocal enforcement of judgments obtained in Nigeria, in the United Kingdom and other parts of Her Majesty’s Dominions and Territories under Her Majesty’s protection, and it came into operation on 19th January, 1922

Section 5(1) of the 1958 Ordinance provides that the Governor-General may extend the application of the Ordinance to any other territory administered by the United Kingdom or any other foreign country through proclamation.

Section 3 (1) of the 1958 Ordinance provides that where a judgment has been obtained in the High Court in England or Ireland, or in the court in session in Scotland, the Judgment Creditor may apply to a High Court in Nigeria within twelve months after the date of the judgment or such longer period as may be allowed by the High Court, to have the judgment registered in the High Court and enforceable in Nigeria.

The implication of the provisions of Section 5 and 3 of the 1958 Ordinance is that the Ordinance would only be applicable for the registration of foreign judgments which were obtained in courts in: England, Ireland, the court in session in Scotland and the other countries of which the Governor-General has extended the application of the Ordinance to by virtue of a proclamation. 8 The foreign judgments must be registered in a High Court in Nigeria within twelve months9 after the date the judgment was delivered or such longer period as may be allowed by the High Court.

In the case of Marine & General Assurance Company Plc. v. Overseas Union Insurance Company Ltd10 the Supreme Court set aside the registration of a foreign judgment which was registered with the High Court of Lagos State on the ground that the judgment was registered outside the twelve months period as stated in Section 3 of the 1958 Ordinance. In this case, the judgment of the foreign court was registered with the High Court of Lagos State four (4) years after the decision was delivered by the foreign court.

Thus, any Applicant who wants to successfully register the judgment of any foreign court which the 1958 Ordinance applies to in Nigeria must ensure that he brings his application to register the judgment in Nigeria within twelve months from when the judgment was delivered by the foreign court, otherwise he must bring an application seeking for extension of time within which he may register the foreign judgment if he is seeking to register the judgment outside the statutory twelve months period. This is because the appellate courts in Nigeria would set aside any foreign judgment which was registered outside the twelve months period if the applicant did not obtain the leave of court to register the judgment outside the twelve months statutory period.

It should also be noted that an Applicant for the registration of a foreign judgment who decides to apply for extension of time within which he may bring his application seeking to register the foreign judgment has a duty to explain to the satisfaction of the court, the reason why he did not register the judgment within the statutory twelve months. This is because the power of the court to grant an order extending the time within which a foreign judgment may be registered is discretionary and it would only be granted if the Applicant places sufficient material before the court.

Nnaemeka-Agu, JCA aptly explains this point in Ramon v. Jinadu13 where his Lordship held thus:

• “The applicant must place before the court materials upon which the discretion may be exercised in his favour. Indeed time within which the application is made goes to the jurisdiction of the court: where the application is made within twelve months the court has power to authorize registration of the judgment subject only to the provisions of the Act; but where it is made after twelve months it can only do so if there are materials placed before it sufficient to explain the failure to register the judgment within time”. (Emphasis supplied)

Section 3 (2) of the 1958 Ordinance does not however make the registration of foreign judgments in Nigeria automatic, as it states that no foreign judgment must be registered by the courts in Nigeria if any of the following arises:

• If the original foreign court acted without jurisdiction.
• If the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court14; or
• The judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court, and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or
• The judgment was obtained by fraud15; or
• The judgment debtor satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal against the judgment; or
• The judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court

Thus, where a Defendant17 in a foreign judgment is able to establish any of the six factors mentioned above, a High Court in Nigeria would be bound to refuse to recognize and register such a foreign judgment in Nigeria.

Procedure for the Registration of a Foreign Judgment under the 1958 Ordinance

It is important to remember that the 1958 Ordinance only applies to the judgments of superior courts in the United Kingdom and the countries which the Governor-General extended the application of the Ordinance to.

Article 1 (1) of the Rules of Court made pursuant to Section 6 of the 1958 Ordinance provides that an Applicant for the registration of a foreign judgment18 to which the Ordinance applies is expected to bring a Petition made ex parte or on notice to a Judge for the registration of a foreign judgment. Where the Petition is made ex parte, the Judge may direct notice to be served upon the Judgment Debtor.

Upon the filing of the Petition for the registration of a foreign judgment to which the Ordinance applies, the Judge is expected to ensure that the Order granting leave to register the judgment shall state the time within which the Judgment Debtor is to be entitled to apply to set aside the registration of the foreign judgment. Usually where the Judgment Debtor is Resident within Lagos State and the judgment is registered in a Lagos High Court, the time within which the Judgment Debtor may apply for the setting aside of the registration of the foreign judgment shall be fourteen days; whilst the Judge has the discretion to determine the number of days where the Judgment Debtor is resident outside Lagos State .

Although the 1958 Ordinance specifically states that an application to register a foreign judgment shall be by Petition ex parte or on notice, most legal practitioners usually make use of a Motion on Notice/Motion Ex Parte as against a Petition on Notice or Petition Ex Parte which is stated in the Rules of Court which was made pursuant to the 1958 Ordinance20 . It is submitted that this practice is wrong and same should not be condoned by Judges since it clearly runs contrary to the provisions of Article 1 (1) of the Rules of Court made pursuant to the Section 6 of the 1958 Ordinance.

In Mudasiru v. Abdulahi, 21 the Court of Appeal held that the Judgment Debtor was wrong to have made an application for the setting aside of the registration of the foreign judgment by a Motion on Notice, and not a Petition on Notice as provided in Article 12 of the Rules of Court made pursuant to the 1958 Ordinance. The Court of Appeal therefore upturned the decision of the trial Judge which set aside the registration of the foreign judgment and held that the registration of a foreign judgment in Nigeria can only be set aside by virtue of a Petition on Notice and not a Motion on Notice.

Salami, JCA, whilst delivering the lead judgment of the Court of Appeal in Mudasiru v. Abdulahi22 held thus:

• “The only legally acceptable means of setting aside a registered foreign judgment is, on the strength of rule 12 of the rules of court, by petition and not by motion on notice. It is only then that there can be said that there is compliance with due process.”

Procedure for setting aside the Registration of a Foreign Judgment under the 1958 Ordinance

There is no doubt that a High Court Judge who grants a Judgment Creditor leave to register a foreign judgment with the High Court of a state in Nigeria also has the jurisdiction to set aside the registration of a foreign judgment where it is found that the registration of the foreign judgment ought not to have been allowed in the first place,

Article 12 of the Rules of Court made pursuant to Section 6 of the 1958 Ordinance endows the Judgment Debtor with the power to bring an application by petition for the setting aside of a registered foreign judgment where he is able to establish that the registered judgment falls under one of the categories in Section 3 (2) of the 1958 Ordinance or where he is able to establish that it will not be just or convenient for the foreign judgment to be enforced in Nigeria24 . This application by the Judgment Debtor must however be brought within the time limited by the order giving leave to the Judgment Creditor to register the foreign judgment after service on the Judgment Debtor of the notice of registration of the judgment.

In Shon Jason Ltd. v. Omega Air Ltd25 the Judgment Creditor who had obtained a judgment against the Judgment Debtor at the High Court of Justice, England (Queens Bench Division Commercial Court) registered same at the Federal High Court Lagos on 15th March 1999. The Judgment Debtor then brought an application seeking an order setting aside the registration of the English judgment on the ground that he was not served with the court processes and he did not have the opportunity to defend the suit, but the Federal High Court Judge dismissed his application on the basis that it did not have the jurisdiction to set aside the judgment of the High Court of England.

The Judgment Debtor appealed against the decision of the Federal High Court to the Court of Appeal and the Court of Appeal upheld his appeal by holding that the Federal High Court had the jurisdiction to set aside the registration of a foreign judgment, and that the Judge ought to have set aside the registration of the English judgment since the Judgment Debtor had satisfied the court that he was not served with the court processes in the English suit and he did not have the opportunity to defend himself.

The Court of Appeal further held that the mere fact that a Judgment Debtor did not oppose the registration of a foreign judgment at the High Court in Nigeria whilst the Judgment Creditor was arguing the application for registration of the foreign judgment will not preclude the Judgment Debtor from later bringing an application seeking to set aside the registration of the foreign judgment.

Disadvantages of the Reciprocal Enforcement of Judgments Ordinance, Chapter 175, Laws of the Federation of Nigeria, 1958

It is submitted that the disadvantages of the Reciprocal Enforcement of Judgments Ordinance, Chapter 175, Laws of the Federation of Nigeria, 1958 are more than the advantages of the Ordinance. This perhaps explains the reason why the Foreign Judgment (Reciprocal Enforcement) CAP F35 Laws of the Federation of Nigeria 2004 was enacted in 1961.

The first major disadvantage of the 1958 Ordinance is that the spectrum of countries which the Ordinance applies to is very narrow— this is because it does not apply to the registration of foreign judgments which are obtained in most important countries of the world such as: United States of America, Russia, China, Canada, Brazil, Singapore, UAE, France, Germany, Spain and so on. The sad implication of this fact is that a Judgment Creditor who obtains a judgment against a Nigerian Business man or Nigerian Registered Company in any foreign country outside the countries which the Ordinance applies to, will not be able to register and enforce the judgments in Nigeria under the 1958 Ordinance!

Secondly, another disadvantage of the 1958 Ordinance is that it makes the process of registering a foreign judgment in Nigeria very cumbersome given the onerous condition precedents26 which an applicant for the registration of foreign judgments in Nigeria must satisfy before the High Court in Nigeria would register a foreign judgment. Thus, based on the provisions of Section 3(2) of the 1958 Ordinance, a recalcitrant Judgment Debtor can easily frustrate the registration of a foreign judgment in Nigeria by: refusing to enter appearance in the foreign court and claim that he didn’t voluntarily submit to the jurisdiction of the court,27 by claiming that the foreign court acted without jurisdiction, by claiming that the judgment was obtained by fraud or by evading service of the processes of foreign court and later claim that he was not duly served with the process of the foreign court.

In Crosevenor v. Halaoui, 28 the Supreme Court set aside the registration of the judgment of the High Court of Justice Queen’s Bench Division, London, England by the Ibadan High Court on the ground that although the Respondent (Judgment Debtor) was validly served with the court processes issued by the London Court, the mere fact that the Respondent did not enter appearance in the London suit (submit to the jurisdiction of the English Court) simply means that the registration of the foreign judgment runs contrary to the provisions of Section 3 (2) (b) of the 1958 Ordinance which provides thus:

• “(2) No judgment shall be ordered to be registered under this Ordinance if-
• (b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court;”

Simply put, the facts of Crosevenor v. Halaoui29 are as follows:

The Respondent, Ghassan Halaout, issued a cheque drawn on a London bank to the Appellant, Crosevor Casinos Ltd., in London. Upon presentation of the cheque to the London Bank by the Appellant, the cheque was dishonoured. After several demands by the Appellant, the Respondent paid part of the sum covered by the dishonoured cheque, but failed to pay the balance despite repeated demands by the Appellant.

The Appellant then commenced an action at the High Court of Justice Queen’s Bench Division, London against the Respondent, and the Respondent was duly served with all the Court processes personally in Nigeria. Notwithstanding the service of the processes upon the Respondent, he refused to file a notice of intention to contest the suit or enter an appearance in the suit.

After the judgment was delivered by the London Court, the Appellant registered same with the Ibadan High Court,–the Respondent challenged the registration of the judgment by the Ibadan High Court on the ground that same was null and void since he did not voluntarily submit to the jurisdiction of the foreign court by entering appearance in the London Court. The Supreme Court upheld the Respondent’s contention by setting aside the registration of the London Judgment by the Ibadan High Court.

It should however be noted that the decision in Crosevenor v. Halaoui30 will not be followed by the courts where a Judgment Creditor can establish that there is an agreement between itself and the Judgment Debtor stating that any dispute between the parties in respect of the agreement shall be resolved by the court in a foreign country. This is because a Judgment Debtor would be considered to have submitted to the jurisdiction of a foreign court where there is an agreement between the parties stating that disputes in respect of the agreement shall be resolved by the court in the foreign country.

The last disadvantage of the 1958 Ordinance is that it limits the time for the registration of foreign judgments in Nigeria to twelve months from the date the judgment was delivered by the foreign court. Although the 1958 Ordinance makes provision for the High Court in Nigeria to enlarge the time within which a foreign judgment may be registered in Nigeria32 , it is sad to note that Nigerian counsel and Judges have not been making use of this provision, and this has unfortunately encouraged foreign business entities who have been unable to register their foreign judgments in Nigeria due to the short time limit to avoid doing business with Nigerian businessmen or Nigerian Registered Companies.

Notwithstanding the above, it must be pointed out that the case of C.C. (Oil & Gas) Co. SAL v. Masiri34 is one of the few reported cases where an Applicant for the registration of a foreign judgment in Nigeria successfully applied for extension of time within which to register a foreign judgment in Nigeria. In this case, the foreign judgment was delivered by the English court on 28th July 2006, but the application ex parte to register the judgment in Nigeria was brought at the Federal High Court, Lagos on 14th November 2008.

Thus, it is submitted that more foreign business concerns would be encouraged to invest their funds in Nigeria, if Nigerian Judges encourage counsel who must have brought their application for the registration of a foreign judgment outside the statutory twelve months period to apply for enlargement of time within which to register such judgments as against outrightly refusing to register the foreign judgments on the ground that the application for the registration of the judgment was brought outside the statutory twelve month period.

In VAB Petroleum Inc v. Momah, 36 the only reason why the Supreme Court set aside the registration of the foreign judgment which was registered by the High Court of Lagos State was because the judgment was registered outside the twelve months period as stated in Section 3 (1) of the 1958 Ordinance.

The Foreign Judgments (Reciprocal Enforcement) Act, Chapter F35, Laws of the Federation of Nigeria, 2004

The Foreign Judgments (Reciprocal Enforcement) Act, Chapter F35, Laws of the Federation of Nigeria, 2004 was enacted as Act No. 31 of 1960 (“FJREA”) 38 , but it did not come into force until 1 st February 1961. The FJREA was modelled after the English Foreign Judgments (Reciprocal Enforcement) Act 1933, and it was enacted to secure the recognition and enforcement of foreign judgments in Nigeria on the basis of reciprocity.

It is important to note that the FJREA did not specifically repeal the 1958 Ordinance. Although the 1958 Ordinance was omitted from the 1990 edition of the Laws of the Federation of Nigeria and the 2004 edition of the Laws of the Federation of Nigeria, this omission does not necessarily mean that the 1958 Ordinance has been repealed39 . Thus, these two enactments simultaneously regulate the registration of foreign judgments in Nigeria as at date.

Section 3 of the FJREA endows the Minister of Justice with the power to extend the application of Part 1 of the Act41 with regard to the registration and enforcement of foreign judgments of superior courts, to any foreign country, including the United Kingdom if he is satisfied that the judgments of Nigeria’s superior courts will be accorded similar or substantial reciprocity in those foreign countries. Thus, unlike the 1958 Ordinance which only applies to the United Kingdom and countries which the Governor-General has extended its application to by virtue of a proclamation, the FJREA is applicable to all foreign countries, provided that the Minister of Justice makes an order extending the application of Part 1 of the Act to such a foreign country.

Section 4 of the FJREA provides that the judgment of the court of a foreign country must be registered with a High Court in Nigeria within six (6) years from the date when the judgment was delivered or from the date when an appeal in respect of the judgment was decided. Unlike the 1958 Ordinance, the only grounds upon which a High Court Judge can refuse to register a foreign judgment in Nigeria is if the judgment has been wholly satisfied or if it cannot be enforced in the country where it was delivered.

The FJREA further provides that where a foreign judgment has been registered by a High Court in Nigeria, a Judgment Debtor can bring an application to set aside the registration where he is able to establish any of the following:

1. That the judgment is not one to which Part 1 of the Act applies to;
2. That the courts of the country of the original court had no jurisdiction in the circumstances of the case;
3. That the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear;
4. That the judgment was obtained by fraud;
5. That the enforcement of the judgment would be contrary to public policy in Nigeria;
6. That the rights under the judgment are not vested in the person by whom the application for registration was made.

Furthermore, it should be noted that the issue of determining whether or not the foreign court had the jurisdiction to entertain the suit has been covered in Section 6 (2) of the FJREA. Thus, based on the provisions of section 6 (2) of the FJREA, a foreign court would be considered to have had the jurisdiction to entertain a suit if:

1. If the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings otherwise than for the purpose of protecting, or obtaining the release of the property seized, or threatened with seizure, in the proceedings or of contesting the jurisdiction of that court; or
2. If the judgment debtor was plaintiff in, or counterclaimed in the proceedings in the original court; or
3. If the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of the country of that court; or
4. If the judgment debtor, being a defendant in the original court, was at the time when the proceedings were instituted resident in, or being a body corporate had its principal place of business, in the country of that court; or
5. If the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings in that court were in respect of a transaction effected through or at that office or place;

The FJREA goes further to state that a court in a foreign country would be considered not to have the jurisdiction to entertain a suit in the following circumstances:

1. If the subject matter of the proceedings was immovable property outside the country of the original court44;
2. If the proceedings in the foreign court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of the country of that court; or
3. If the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court.

The significance of Sections 6 (2) & (3) of the FJREA would be better appreciated if one considers the fact that the High Courts of the registering country (Nigeria in this case), do not usually like to delve into whether or not the foreign court had the jurisdiction to entertain a suit as they believe that it is not the duty of the registering court to enquire into the merits of a foreign judgment.

It is therefore submitted that the inclusion of Section 6 (2) & 3 in the FJREA is a positive development which would help to guide the High Courts in Nigeria towards understanding how to decide on whether or not a foreign High Court has the jurisdiction to entertain the suit.

Although it is clear from the above that the FJREA was enacted in order to cure the glaring defects in the 1958 Ordinance, it is sad to point out that the Supreme Court has held in the landmark case of Andrew Mark Macaulay v. R.Z. B Austria47 that Part 1 of the FJREA is yet to come into force because the Minister of Justice has not made an order by virtue of Section 3 of FJREA extending the application of the FJREA to certain foreign countries. This therefore means that the lofty provisions of the FJREA which have been discussed above cannot be relied upon by litigants since Part 1 of the FJREA is yet to come into force.

The Effect Of The Decision In Andrew Mark Macaulay V. R.Z.B Austria48 On The Registration Of Foreign Judgments In Nigeria.

The facts of this case are as follows: The Appellant and two other persons guaranteed a loan from the Respondent to a company called, Constante Trading Limited, based in Channel Island. The Respondent then sued the Appellant and the two other guarantors at the High Court, Queen’s Bench Division in England when the company defaulted in repaying the loan. The Respondent obtained judgment against the Appellant in the sum of $5,500,000 with interest in accordance with the deed of guarantee on 19th December 1995.

The Respondent however brought an ex parte Petition to the High Court of Lagos State for leave to register the said judgment, and leave to register the judgment was granted by the High Court of Lagos State on 8 th September 1997. The Appellant thereafter brought a petition on notice which he filed on 22nd October 1997 seeking an order of the court setting aside the registration of the English decision on the grounds that it was not in accordance with the relevant law and it was contrary to public policy in Nigeria. The petition was dismissed by the High Court on 6 th February 1998. The Appellant then appealed against this order of the High Court to the Court of Appeal, and the Court of Appeal also dismissed his appeal.

The Appellant further appealed to the Supreme Court and his appeal was upheld on the ground that the High Court of Lagos State erred in law when it registered the decision of the England High Court outside the twelve month period as stipulated in Section 3 of the 1958 Ordinance. The Supreme Court also held that the High Court of Lagos State ought not to have applied Section 4 of the FJREA which permits the registration of foreign judgments within six years from when the judgment was delivered in allowing the registration of the English judgment because Part 1 of the FJREA was not yet in force since the Minister of Justice was yet to make an order extending its application to certain foreign countries.

The Supreme Court therefore concluded its judgment by holding as follows:

1. That although Part 1 of the FJREA was not yet in force; the decision of the English Court could only be registered in Nigeria under Section 3 of the 1958 Ordinance and Section 10 (a) of the FJREA.
2. That the judgment of the court of any foreign country can be registered in Nigeria under Section 10 (a) of the FJREA since Section 10 (a) of the FJREA does not require the order of the Minister of Justice before it would come into force.
3. The 1958 Ordinance was not repealed by the FJREA, and it is therefore still relevant to the registration of judgments from the United Kingdom and countries which the Governor-General has extended its application to by virtue of a proclamation.

For ease of understanding, the provision of Section 10 (a) of the FJREA is hereby reproduced:

“10. Notwithstanding any other provision of this Acta.
A judgment given before the commencement of an order under Section 3 of this Act applying Part 1 of this Act to the foreign country where the judgment was given may be registered within twelve months from the date of the judgment or such longer period as may be allowed by a superior court in Nigeria;”

The import of Section 10 (a) of the FJREA as can be seen above is that any judgment which is delivered by a court of a foreign country before the commencement of any order made by the Minister under Section 3 of the FJREA may be registered in Nigeria within twelve months from the date of the judgment or such longer period as may be allowed by a superior court in Nigeria.

It is submitted that the word, commencement, as used in Section 10 (a) of the FJREA means, “making”. This is because the intention of the law maker when it enacted Section 10 (a) of the FJREA was to make it possible for Judgment Creditors to be able to register foreign judgments in Nigeria in the event that the Minister of Justice does not make an order extending the application of Part 1 of the FJREA to certain countries.

Thus, whilst Part 1 of the FJREA is yet to come into force due to the fact that the Minister of Justice is yet to make an order extending its application to certain foreign countries, it should be noted that this fact doesn’t affect Section 10 (a) of the FJREA because Section 10 (a) can stand on its own regardless of whether or not the Minister of Justice makes the order under Section 3. This is because Section 10 (a) of the FJREA commences with the phrase, “notwithstanding any other provision of this Act”— and the effect of this phrase is that notwithstanding any other provision of the FJREA (including Section 3 which requires an order of the Minister for Part 1 of the FJREA to become effective), a Judgment Creditor would still be able to register a foreign judgment in Nigeria even if the Minister doesn’t make the order under Section 3 of the FJREA.

This is the reason why Kalgo, JSC, whilst dilating on the import of Section 10 (a) of the FJREA in Andrew Mark Macaulay v. R.Z.B Austria49 held thus:

“By this provision, irrespective, regardless or in spite of any other provision in the 1990 Act, any judgment of a foreign country including United Kingdom to which Part I of that Act was not extended, can only be registered within 12 months from the date of the judgment or any longer period allowed by the court registering the judgment since the provisions of Part I of the said Act had not been extended to it.” 50 (Emphasis supplied)

Kalgo, JSC went further to confirm the effectiveness and the applicability of Section 10 (a) of the FJREA to the registration of the foreign judgment of any country in Andrew Mark Macaulay v. R.Z.B Austria51 where his Lordship held thus:

“I have carefully read the briefs of counsel in this appeal and the decided cases and treaties referred to therein and having regard to what I have stated above, I am of the firm view and find accordingly that the provisions of section 3 of the 1958 Ordinance and section 10 (a) of the 1990 Act apply to the question of the registration of the judgment in the instant case. Each of these sections provides that the judgment to be registered under it must be registered within twelve months from the date of the judgment or any longer period allowed by the registering court. 52 ” Emphasis supplied

It is therefore respectfully submitted that the effect of the decision in Macaulay’s case can be classified into three namely:

1. Part 1 of the FJREA is yet to come into force due to the fact that the Minister of Justice is yet to make an order extending its application to certain countries, but this fact does not affect Section 10 (a) of the FJREA because this Section can stand alone regardless of whether or not the Minister of Justice makes the order.
2. The judgments of the courts of any foreign country (including the countries which the 1958 Ordinance applies to) can be registered in Nigeria within twelve months from when they were made based on the provisions of Section 10 (a) of the FJREA.
3. The 1958 Ordinance having not been repealed by the FJREA, continues to apply to the United Kingdom and the countries which its application has been extended to by virtue of the GovernorGeneral’s proclamation.

What Is The Implication Of The Non-Effectiveness Of Part 1 Of The FJEA?

The implication of the non-effectiveness of Part 1 of the FJREA is that the provisions of Sections 3-9 of the FJREA cannot be relied upon by a litigant in court. This is because Part 1 of the FJREA cannot be regarded as having the force of law until the Minister of Justice makes the order under Section 3 extending the application of Part 1 of the FJREA to certain countries. The Minister of Justice is yet to make this order as at the date of the preparation of this piece.

Can The Judgment Of Countries Which The 1958 Ordinance Do Not Apply To Be Registered In Nigeria?

It is submitted that the judgments of countries which the 1958 Ordinance do not apply to can be registered in Nigeria by virtue of the provision Section 10 (a) FJREA. This is because Section 10 (a) of the FJREA makes provision for the registration of the judgments of any country within twelve months from when the judgment was delivered or such other period as may be allowed by the High Court.

This position is supported by the decision in Macaulay’s Case because although the Supreme Court in Macaulay’s Case held that Part 1 of the FJREA had not yet come into force, the Supreme Court went ahead to hold that the decision of the Queen’s court in England could be registered in Nigeria based on the provisions of Section 3 of the 1958 Ordinance and Section 10 (a) of the FJREA.

Thus, although Section 10 (a) of the FJREA forms part of Part 1 of the FJREA, it is clear that the provisions of Section 10 (a) of the FJREA was not affected by the decision in Macaulay’s Case which is to the effect that Part 1 of the FJREA had not yet come into force—the Sections in Part 1 of the FJREA which have not yet come into force by virtue of the decision in Macaulay’s Case are Sections 3-9 of the FJREA

This position is further strengthened by the decision of the Court of Appeal in Teleglobe America Inc v. Century Technologies Limited54 where the Court of Appeal ordered the registration of the judgment of the Circuit Court of Fair Fax County Virginia which was delivered in the United States of America on 2nd December 2004 on the ground that Section 10 (a) of the FJREA permits the registration of the judgment of foreign countries outside the commonwealth in Nigeria. It should be noted that the application to register the judgment of the Circuit Court was brought at the Federal High Court within one year from when the judgment was delivered in USA.

It is therefore clear from the above that the decision of the Court of Appeal in Teleglobe America Inc v. Century Technologies Limited55 can be relied upon by Judges and counsel to register the judgments of the superior courts of any foreign country in Nigeria.

Conclusion

There is no doubt that the FJREA is a good piece of legislation which would help to ensure that the judgments of superior courts of foreign countries can be easily registered and enforced in Nigeria. This is because unlike the 1958 Ordinance, the FJREA allows Judgment Creditors to register foreign judgments in Nigeria within six (6) years from the date the judgment was delivered. Further, the condition precedents for the registration of a foreign judgment under the FJREA regime is quite easy to fulfil, and the spectrum of countries which the FJREA applies to is wider than the countries which the 1958 Ordinance applies to.

It is however unfortunate that these positive provisions of the FJREA have not yet come into force due to the failure of the Minister of Justice to make an order extending the application of Part 1 of the Act to certain countries. 56 Thus, this simply means that an Applicant for the registration of a foreign judgment in Nigeria must bring his application within twelve months from the date the judgment was delivered or he must apply for extension of time within which to register the judgment if his application is to be successful. This is because any application based on the provisions of Section 4 of the FJREA which permits the registration of foreign judgments in Nigeria within six years from when the judgment was delivered would be refused by the High Court because Part 1 of the FJREA (which includes Section 4) is yet to come into force.

It is therefore submitted that it is important for the Minister of Justice to make an order extending the application of Part 1 of the FJREA to certain countries in order to allow Part 1 of the FJREA to become effective in Nigeria. It should also be noted that Section 9 (2) of the FJREA provides that the 1958 Ordinance shall no longer have effect if the Minister of Justice’s order covers the countries which the 1958 Ordinance applies to. Thus, this means that once the Minister of Justice makes the order58 , the FJREA would be the sole legislation regulating the registration of foreign judgments in Nigeria.

Regardless of the above, Judgment Creditors who are desirous of registering foreign judgments delivered by courts in countries which the 1958 Ordinance do not apply to in Nigeria can still do so by virtue of Section 10 (a) of the FJREA pending the time when the Minister of Justice would make the order stated in Section 3 of the FJREA. Whilst judgments delivered by superior courts in countries which the 1958 Ordinance apply to can be registered in Nigeria by virtue of Section 3 of the 1958 Ordinance.