By Harmony Eghwubare Esq., Associate Counsel, AAA Chambers
We are in a time when the world has become a global village, as there has been an increase in foreign trade and investment. However, when there is a breach in trade/business contracts, the successful party should be able to enforce the judgment whether foreign or local/indigenous. This article will reveal the way a foreign judgment can be enforced in Nigeria and how Nigerian judgments can be enforced in other foreign jurisdictions.
RECOGNITION OF FOREIGN JUDGMENTS IN NIGERIA
A foreign judgment is simply a judgment delivered by a Court in a foreign country. For foreign judgments to have effect in Nigeria, it must be registered and recognized by a Nigerian Court. Judgments from all jurisdictions can be enforced in Nigeria. It is to be noted that Nigeria is not a party to any treaty or convention in this regard and therefore has no obligation to recognize and enforce judgments of foreign countries. There is no compulsion on Nigerian Courts to enforce foreign judgments.
REQUIREMENTS FOR RECOGNITION/REGISTRATION OF FOREIGN JUDGMENTS
The Foreign Judgments (Reciprocal Enforcement) Act Cap. F35, Laws of the Federation of Nigeria, 2004 & the Reciprocal Enforcement of Judgments Ordinance, Cap 175, Laws of the Federation of Nigeria and Lagos, 1958; is the legal framework in Nigeria for the recognition and enforcement of foreign judgments.
There are certain conditions as provided for by Sec. 3(2) & 6 of the Act for a foreign judgment to be recognized or be registrable in Nigeria as follows;
- It must be one given by a superior Court in that foreign country.
- The judgment must be final and conclusive.
- The original Court must have had jurisdiction to hear the matter.
- The judgment is in respect of a definite sum of money
- The Nigerian Minister of Justice has made an Order that judgments from the foreign country be recognized and enforced and is satisfied that the original country will also recognize and enforce Nigerian judgments (Sec. 3 & 12 of the Act).
PROCEDURE FOR RECOGNITION & ENFORCEMENT OF FOREIGN JUDGMENTS
A foreign judgment cannot be enforced in Nigeria if it has not been registered. There are two ways in which foreign judgments can be recognized and enforced in Nigeria, which are:
- Under the Act; and
- By enforcement at Common Law
UNDER THE ACT
The registration is to be done by any State High Court, Federal High Court or High Court of FCT. (Sec. 2 of the Act). Where the foreign judgment meets the requirements as earlier stated, the Judgment Creditor may proceed to apply ex-parte for registration of the foreign Judgment by way of an Originating Petition. Orders 1 & 4 of the Reciprocal Enforcement of Judgments Rules of 1922. The Court may order that the judgment debtor be served/put on notice and given an opportunity to oppose the application. The time within which a foreign judgment can be enforced is six (6) years from the date of delivery of judgment. Sec. 4
BY ENFORCEMENT AT COMMON LAW
This mode is usually employed when the stipulated period has expired and the procedure is as follows:
The judgment creditor is to file an originating summons or a writ of summons, accompanied by a motion for summary judgment (since the suit will most likely be unchallenged).
The cause of action will be the foreign judgment and not the substantive issues that resulted in the judgment.
Please note that the mode of recognition of foreign judgments in most West African countries is the same as Nigeria.
ENFORCEMENT OF FOREIGN JUDGMENTS
After the foreign judgments have been recognized/registered through any of the aforementioned means, the judgment creditor may proceed to enforce the judgment just like any other indigenous Nigerian judgment. The Court Sheriffs, the Deputy Sheriffs, Bailiffs and Police Officers are the officers critical to the entire process of execution of the judgments of Courts. Sections 3-15 of the Sheriffs and Civil Process Act Cap. S6 LFN 2004.
MEANS OF JUDGMENT ENFORCEMENT
This can be done in the following ways:-
- Garnishee Proceedings;
- A writ of execution;
- A judgment Summons; and
- Writ of Sequestration
This is a process by which the funds belonging to the judgment debtor which is in the possession of a third party (i.e. the garnishee) is attached to satisfy the judgment debt.
A Writ of Execution:-
By this method, immovable property and chattels of the judgment debtor are attached by a writ and Court Order to sell the property and chattels for the purpose of recovering the judgment debt.
A Judgment Summons:-
This is committal to prison of a capable but unwilling judgment debtor for failure to pay the judgment debt.
Writ of Sequestration:-
This is a process wherein a Sheriff or other authorized officer of the Court is commanded to seize the goods and/or properties of the judgment debtor.
ENFORCEMENT OF NIGERIAN JUDGMENTS IN FOREIGN COUNTRIES/JURISDICTIONS
United States of America:
The process for registration and enforcement in the U.S can only commence after the time allowed for appeal in the foreign country has elapsed. When this condition has been satisfied, the judgment creditor may proceed to file a suit in a superior Court which will then exercise its discretion as to whether or not to recognize the judgment and make same enforceable. Uniform Foreign Money Judgments Recognition Act. 13 U.L.A. 149 (1986), Uniform Enforcement of Foreign Judgments Act. 13 U.L.A. 261 (1986).
The procedure for the registration of foreign judgments is that the judgment or certified copy is filed at the High Court together with an affidavit in support of the application for the judgment to be registered. The judgment debtor has 21 days to oppose the registration of the judgment. After which the Court will hear the application.
The basis of enforcement of a foreign judgment in Ghana is very similar to that of Nigeria. The conditions for recognition and enforcement are that the judgment must be final and conclusive; there is money payable which is not in taxes or some form of penalty, it must have not exceeded the period of 6 years, etc. The judgment creditor can apply for the recognition of the judgment in the High Court. Once the period of 6 years has elapsed, there can be no enlargement of time.
The Ghanaian legislation recognises two grounds for which a recognised judgment will be set aside, it is either mandatory or discretionary. The mandatory grounds are:
- Absence of jurisdiction of the original Court;
- Judgment debtor was not given time and opportunity to defend the suit in the original Court;
- Fraud; and
- Inconsistency with public policy.
There are also discretionary grounds for setting aside registration. First, the registration may be set aside if the registering Court is satisfied that the matter in dispute in the proceedings in the original Court had, prior to the date of the judgment in the original Court, been the subject of a final and conclusive judgment by a Court that had jurisdiction in the matter (res judicata/abuse of Court process). Part V of the Courts Act 1993 (Act 459)
Asset tracing is a means by which a creditor, in seeking to recover monies owed to him, traces the assets of a defaulting debtor who has left his known address or cannot be found. An asset is anything with a monetary value attached. Assets may be personal or real property; which may be used for the fulfilment of debt obligations. Asset could be chattels, real estate, equipment, bank accounts, etc
Generally, the term “asset tracing” is used when tracing assets that are proceeds of crime and Nigeria has signed a Mutual Legal Assistance Treaty (MLAT) with various countries such as Russia, United States of America, France, South Africa etc., to aid them in the fight against corruption and the recovery of monies and various other assets which are proceeds of crime.
However, asset tracing can be used in matters that are not necessarily criminal, such as debt recovery and there are various private organizations that engage in asset tracing services. When a person owes money and is unable to pay, the Creditor goes after the debtor’s assets which may include bank accounts, shares, companies, real estate etc., in order to recover its money. Here, in AAA Chambers, we have successfully handled various recovery matters and are still handling several cases wherein we have frozen accounts of debtors, done receivership and have sold various properties to recover our clients’ funds. Presently, in Nigeria, there is no legal framework for asset tracing in respect of civil matters.
- It is advised that the Original Court that delivered the judgment must be notified, either by letter or other means of communication, so as to confirm if the judgment is genuine and so the court officials in the foreign country can proceed with the execution of the judgement without engaging the services of a lawyer in the foreign country. We believe this would have saved the cost of engaging lawyers in the foreign country and at the same time save the judicial time of the foreign Courts. In fact, the maxim that justice delayed is justice denied, and have been defeated, because justice would not be delayed if this proceeding is adopted.
- The process for renewal/enlargement of time to enforce Judgment of Court should be made less cumbersome; or better still there should be no limitation of the time within which to enforce a judgment.
- There should be a universal system of tracing assets of persons in different countries, and this would not be done arbitrarily. Obtaining an Order of Court to trace assets of a person should be a compulsory requirement for the judgment creditor.
In conclusion, the enforcement of foreign judgments alongside asset tracing is very important as it aids persons in enforcing terms of their contracts, especially against foreigners doing business in Nigeria and it is advised that a party seeking to enforce a judgment should not delay in doing so.