(a) Enforcement by registration
This is the common method of enforcing foreign judgments in Nigeria. The judgment must be a judgment of a superior court of the foreign country with reciprocal treatment with Nigeria. The judgment must also be a monetary judgment, final and conclusive between the parties. Under the Reciprocal Enforcement of Judgments Rules 1922, a judgment creditor shall by an exparte application, apply for leave to register a foreign judgment within 12 months from the date the foreign court delivered the judgment.
Nevertheless, the court may direct that the judgment debtor should be put on notice. The Rules suggests that a Nigerian court can extend time within which a judgment creditor may apply to register a judgment. Generally, an application for extension of time within which to register a judgment outside the statutory period shall involve the exercise of the judge’s discretionary power which is exercised judicially and judiciously with regard to the circumstance of the case.
The application shall be by originating motion or petition brought pursuant to the Reciprocal Enforcement of Judgment Ordinance, 1958 (“the Ordinance”) and praying the court for leave to register the foreign judgment. The application shall be accompanied by an affidavit which shall state that the judgment does not fall within the cases in which it may be set aside under Section 3 (2) of the Ordinance. The affidavit shall also give the full name, title, trade or business and usual or last known place of abode or business of the judgment creditor and judgment debtor. A certified true copy of the judgment shall be exhibited. The application and affidavit shall be titled “In the Matter of the Reciprocal Enforcement of Judgments Ordinance and in the matter of a judgment of the …. (describe the court) obtained in … (describe the cause of matter) and dated the …day of ….20….”
If the court orders that the judgment debtor should be put on notice, the application shall be served on the judgment debtor in the same manner as a writ of summons. The judgment debtor shall not be required to enter any appearance at this stage. Where the court grants leave to the judgment creditor to register the judgment, the court’s order shall state the time within which the judgment debtor shall apply to set aside the registration. Such time shall be 14 days if the judgment debtor is resident within the jurisdiction of the court and when the judgment debtor is resident outside the jurisdiction of court, the time to be given to the judgment debtor to apply to set aside the registration shall be determine by the distance between the judgment debtor’s residence and the jurisdiction of the court. The register of judgments registered under the Ordinance shall be kept in the High Court Registry under the direction of the Chief Registrar.
b. Enforcement by an action at common law
If for any reason, the judgment debtor cannot register the judgment, he may do so by commencing an action upon the judgment. This also applies to judgments from countries without reciprocal treatment with Nigeria. The foreign judgment constitutes a cause of action upon which the judgment creditor will commence a summary judgment proceeding to recover the judgment debt thus avoiding the process of adducing evidence and calling witnesses to prove its case. This is because the judgment debt constitutes a liquidated sum and ordinarily the judgment debtor does not have a defence on the merit against it.
c. By operation of Section 10 (a) of Foreign Judgments (Reciprocal Enforcement) Act, CAP F 35, LFN, 1990
Section 10 (a) of the 1990 Act provides that;
“Notwithstanding any other provision of this Act—
a. a judgment given before the commencement of an order under section 3 of this Act applying Part I 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”
In Teleglobe America Inc v Century Technologies Ltd (2009) CLRN 9, 32, the Court of Appeal, per Regina Obiageli Nwodo JCA who read the lead judgment found that;
“The Learned Trial Judge in his ruling found that there is nothing before the court to show that the Minister of Justice has exercised his powers under S3 of the Foreign Judgment Act in favour of the United States of America and proceeded to rely on S10(a) of the Foreign Judgment (Reciprocal Enforcement) Act. The Learned Trial Judge interpreting the provision and relying on the case of Andrew Mark Macaulay v. R. Z. B. Austria (2003) 18 NWLR (Pt. 18) 282 at 298 rightly made the following pronouncement:
“There is nothing placed by this court to show that there is an Order by the Minister of Justice extending the provision of part 1 of the Reciprocal Act to Judgments given in United States. The applicant therefore has twelve months from the date of the Judgment within which to register it in Nigeria”.
The lower court rightly found that S10 of the Foreign Judgment Act was relevant in the determination of when an application can be made once the Minister has not made an Order. S10 stipulates as follows:
10(a): a judgment given before the commencement of an order under section 3 of this Act applying Part I 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”
It is undisputable that the application for registration was filed within 12 months which period is covered under S10 (1) of the Foreign Judgment Act in the absence of a Minister’s Order. The Learned Trial Judge on his judgment as reflected on page 103 of the record of appeal held:
“It has been shown that final judgment was entered in favour of the Applicant by the CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA on 2nd December 2004. This ORIGINATING MOTION was filed in this court on 25th October, 2005. The originating motion was therefore filed within twelve months from the date of the Judgment. The question is whether the judgment of the said CIRCUIT COURT should be registered by this court. Under Section 4 of the Reciprocal Act, such a judgment is registerable subject to proof of the prescribed matters and to other provisions of the Act provided at the date of the application the judgment has not been wholly satisfied or it could not be enforced by execution in the country of the original court. It is averred in the Supporting Affidavit that the Judgment has not been satisfied in whole or in part. This fact has not been controverted. The position of the Respondent however is that it was not served with the originating processes of the aforesaid CIRCUIT COURT OF FAIR FAX COUNTY, VIRGINIA in accordance with the applicable Nigerian Law. The issue therefore turns on whether service of the originating processes of the aforesaid CIRCUIT court on the Respondent which is a company incorporated under the Laws of the Federal Republic of Nigeria carrying on business within the jurisdiction of this court, was to be effected in accordance with the Law of Virginia or in accordance with Nigerian Law”.
From the Learned Trial Judge’s findings above, one would have expected the court below to proceed and register the foreign Judgment since the prerequisites for registration were present. Unfortunately the Learned Trial Judge did not fail to realize that the issue of service of process having been considered and determined by the foreign court cannot be relitigated again except by way of appeal. Clearly the issue of service was responsible for the lower court derailing from the right track and delving into the merits of the Judgment” (Emphasis supplied)
This means foreign judgments from countries which are not listed in the 1958 Ordinance and cannot be recognized under the Ordinance may be recognized under Section 10 (a) of the 1990 Act as long as the application for recognition and registration of the judgment is brought within 12 months from the date in which the foreign court delivered the judgment. This opens the door wide open for Nigeria’s recognition of the judgments of superior courts of all countries of the world.