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Recovery of Foreign Judgment Debts

Enforcement of foreign judgments has significant relevance in this era of increased international trade and foreign investments. Businesses are more comfortable doing business with foreign partners knowing that if they obtain judgment from a superior court in their home country; it can be enforced against the judgment debtor across borders.

Fortunately, Nigerian courts recognise judgments from superior courts of commonwealth countries and countries with reciprocal treatment with Nigeria.

This has increased the confidence of foreigners and foreign companies to do business with Nigerians and Nigerian companies. Nevertheless, the procedure for registration of foreign judgment in Nigeria is not without challenges. Apart from the uncertainty in the statute and rules regulating the enforcement of foreign judgment, the procedure for registration of foreign judgments does not take into cognisance the evolving trends in global economy and international commerce.

The statute regulating the enforcing of foreign judgments in Nigeria is imprecise. Ordinarily the recent Foreign Judgment Act, CAP 152, Laws of the Federation of Nigeria, 1990 would have been the legislation regulating enforcement of foreign judgment but the Supreme Court in the case of Macaulay v R.Z.B of Austria 18 NWLR 282 held that the Minister of Justice has not made an order extending the Act to judgments of the United Kingdom and other countries with reciprocal treatment with Nigeria pursuant to Sections 3 and 9 of the Act as such the first part of Act is inapplicable.

Again, in the case of Grosvenor Casinos Ltd v Ghassan Halaoui 10 NWLR 309, the Supreme Court postulated that both the Act and the Reciprocal Enforcement of Judgments Ordinance, CAP 175, Laws of the Federation of Nigeria, 1958 are relevant statutes in the enforcement of foreign judgments in Nigeria.

Judgment creditors now rely on the colonial Reciprocal Enforcement of Judgment Ordinance, 1958 which provides for a 12 months period to register and recover a foreign judgment debt in Nigeria. This is why in Suit No. FHC/ABJ/CS/203/2017; Emmanuel Ekpenyong Esq v. Attorney General and Minister of Justice of the Federation, I sought an order of mandamus at the Federal High Court, Abuja Division to compel the Attorney General and Minister of Justice of the Federation to promulgate an Order to bring the 1990 Act into operation.

The Federal High Court in its judgment opined that the Minister has discretionary powers to promulgate the Order. The trial court held that the Minister had unlimited powers to determine when to promulgate the Order. An appeal against the trial court’s judgment is pending before the Court of Appeal, Abuja division. The backlog of appeals at the appellate court has made it difficult to obtain a hearing date for the appeal.

The imprecision on the particular statute regulating foreign judgment enforcement has a devastating effect on the whole process of registering foreign judgment in Nigeria. For instance, the time within which to register a judgment under the 1990 Act is 6 years while the time to register a judgment under the Ordinance is 12 months. Since there is no Foreign Judgment Enforcement Rules for the 1990 Act, the Reciprocal Enforcement of Judgments Rules of the Ordinance which was enacted in 1922 regulates the legal conditions for registration of foreign judgment in Nigeria today.

Rules 1 and 5 of the Rules of the Ordinance which provides that the application for enforcement of foreign judgment be made by a motion ex-parte is inconsistent with the modern concept of fair hearing and the current civil procedure rules of Courts that an adverse party must be put on notice. It is without doubt that the Rules of the Ordinance is out of touch with modern realities and the different conditions in the applicable legislations have led to calamity and more uncertainty.

In a Ruling of a Lagos High Court, per Candide-Johnson J, the Court rejected the registration of a Judgment of Justice Michael Burton of the High Court of Justice, Queen’s Bench Division, Commercial London on the ground that since the Lagos Court did not have jurisdiction to hear the subject matter before the original Court, it could not register and execute the Judgment of the original court against the judgment debtor. But registration of foreign judgment under the provisions of the applicable legislations appears to be a subject matter on its own. Little wonder the process of registration of foreign judgment is regulated by its separate and distinct legislations and rules which spell out its conditions and legal requirements.

The applicable legislations provide that Nigerian courts shall accord reciprocal treatment to judgment of ‘superior courts’ from commonwealth countries and other countries with reciprocal treatment with Nigeria. They also provide that a judgment creditor from a foreign country with reciprocal treatment with Nigeria may apply to a ‘superior court’ in Nigeria within the specified time for registration of the judgment. From the ordinary meaning of the wordings of the provisions of the applicable legislations on conditions for registration of foreign judgments, it did not contemplate that the jurisdiction of the Nigerian court to register a foreign judgment will be subject to its jurisdiction to hear and determine the original subject matter of the case.

Since the judgment creditor is not asking the Nigerian court to hear the case based on its subject matter, but to grant leave for registration of the foreign judgment under the applicable legislations only, Nigerian courts have no business making its jurisdiction to hear the subject matter of the case, a condition precedent for registration of the judgment. Unless the appellate courts pronounce on this grey area, it will continue to impede the registration of foreign judgments in Nigeria.

An interesting requirement of the applicable legislations is that the Defendant against whom the foreign judgment is to be enforced must have been a Defendant at the original court. This requirement creates a profound difficulty for Judgment creditors. With the recent economic meltdown, businesses are trying to stay afloat by merging or acquiring other companies. To maintain a local presence, a multinational company may take over the business and goodwill of viable Nigerian Company. Upon such takeover the acquired company is wound up.

What then happens to a judgment creditor who obtained a foreign judgment against the acquired company? Does it mean that the judgment creditor cannot maintain a cause of action against the acquiring company just because the acquiring company was not a Defendant at the original court? Since the acquiring company acquired both the assets and liabilities of the acquired company and the acquired company is no more, the justice of the case demands that the foreign judgment obtained against the acquired company should be enforced against the acquiring company.

Another curious requirement in both the Act and the Ordinance is that foreign judgments in respect of fine, taxes and penalties cannot be enforced in Nigeria. This is against the whole concept of reciprocal treatment of judgment because it may give a safe haven to impenitent tax evaders. With the increase in tax evasion by foreign businesses and multinational companies, inability of states and government bodies to recover judgment debts in respect of fines, taxes and penalties across borders would led to a great loss of revenue. The role of fines, taxes and penalties is invaluable in the economic development of states in the 21st Century. Unlike the 19th Century where most states closed their borders against foreign goods and investment, the 21st century world is a global village.

Though Section 1 of the Foreign Judgments Act 1933 provides that taxes or other charges of a like nature or in respect of a fine or other penalty cannot be registered and enforced in United Kingdom, the United Kingdom Prime Minister David Cameron in a letter to Leaders of the British Overseas Territories and Crown Dependencies dated 20 May 2013 said “… I very much welcome the commitments you have made to automatic tax information exchange, both on a bilateral and multilateral basis, which will help us to reach our goal of setting a global standard in tax transparency… We also need to ensure information exchange works effectively for all… That is why we strongly support the Multilateral Convention on Mutual Assistance in Tax Matters”.

This highlights the importance of cross border tax collection. Nigeria will gain more if it offers herself and other states the opportunity to recover fine, taxes and penalties against evading offenders by either amending her Foreign Judgment statutes to accord foreign judgments on fine, taxes and penalties the same status with monetary judgments or enter into Multilateral and Bilateral treaties with other states to assist themselves on recovery of cross borders fine, taxes and penalties.

Furthermore, the requirement that once an appeal is filed at the original court, the foreign judgment cannot be registered at the registering court may be prejudicial to the judgment creditor. What happens in a situation where an unscrupulous debtor in an attempt to forever deny the judgment creditor the fruits of his judgment files an appeal at the original jurisdiction and goes to sleep? What happens to the judgment creditor where the judgment debtor dissipates the res before outcome of the appeal at the original court? Is it not justiciable to preserve the res at the registering court pending the outcome of the appeal at the original jurisdiction? This is the reasoning behind the provisions of Section 1 of the United Kingdom’s Act which provides that “a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court”.

In conclusion, there is a need for the lingering crisis on the law regulating enforcement of foreign judgment in Nigeria to be settled. The legal conditions for enforcement of foreign judgment have been interpreted too broadly to adequately protect the interest of foreign judgment creditors. Therefore, the law and rules should be amended to reflect modern realities.

The Courts should be proactive in breaking new grounds and developing the jurisprudence on enforcement of foreign judgment in Nigeria in accordance with the essence of reciprocity of judgments. This will improve the prospects of Nigeria as a business destination and enhance the growth of her economy.

Navigating Arbitration and Specialised Courts in IP Matters

IP is a category of property that includes intangible creations of the human intellect. There are many types of IP, and some countries recognise more than others. The best-known types are copyrights, patents, trademarks, and trade secrets.

Enforcement of IP in Nigeria is saddled with loop holes, bureaucratic bottlenecks, lack of technical knowledge, skills and lack of public awareness. These have led to the prevalence of piracy, counterfeiting, unauthorised, unlicensed use and infringement of IP rights.

Though there have been laudable developments in recent times, there is still a wide gap in the enforcement of Intellectual Property Rights.

Regulatory Framework & Institutions

The principal types of Intellectual Property rights in the Nigeria Legal System are Copyrights, Patents, Trademarks and Industrial Designs. The regulatory frameworks include by the Copy Right Act Cap C28, Trade Marks Act Cap T13, Patent & Design Act P2 and the Merchandise Marks Act Cap M10.

These laws are enforced by the Nigerian Copyright Commission, The Trademark, Design and Patents Registry which is a subdivision of the Ministry of Industry, Trade & Investment, The National Agency for Food and Drug Administration Control, The Nigerian Police and The Nigerian Custom Service.

Nigeria is also a signatory to numerous international treaties on Intellectual Property. These include the World Intellectual Property Convention of 1970, Agreement on Trade-Related Aspects of Intellectual Property Rights, Berne Convention and Rome Convention for the Protection of Performers, Producers of Phonograms &Broadcasting Organisation etc.

The Current Situation

Enforcement of IP rights in Nigeria have been slow, largely ineffective and ladled with obstacles and loopholes.

We shall consider the causative factors:

  • Obsolete and Weak Laws: The principal laws in force were adopted from the Laws of England and date back as far as the 19th Century with no review since enactments. Intellectual Property is a steadily evolving concept and these laws do not also take into consideration, these dynamic changes in IP including the advancements in Technology. These Laws are also weak and cannot effectively control issues like piracy and counterfeiting.
  • Non Implementation of International Treaties: Section 12 of the Constitution of the Federal Republic of Nigeria 1999 as amended provides that before an International Treaty can be implemented in Nigeria, it must be ratified and enacted by the Legislative. Though Nigeria is a signatory to numerous International Treaties on IP, which can be a supplement to our laws, these cannot be implemented because they haven’t been ratified and enacted according to the CRFN.
  • Lack of Awareness and Inadequate Finance & Staffs of the Regulatory Agencies: Regulatory Agencies charged with enforcing IP rights in Nigeria are greatly understaffed; lack the necessary equipment, training and knowledge to effectively carry out their duties. . These culminate in a slow and inefficient enforcement of IP rights.
  • Lack of Uniformity and Cooperation amongst enforcement Agencies: Intellectual Property is a broad and technical area. Its enforcement cannot be carried out by one regulatory agency alone; the agencies need to work together. However in Nigeria, there is no such cooperation, they also lack a uniform public domain between the agencies to access the data of each agency in enforcing Intellectual property rights.
  • Judicial Enforcement: The Nigerian Judicial System is slow and t cases take an inordinate amount of time before coming to a conclusion. This coupled with the technical nature of Intellectual Property Rights, the lack of such technical knowledge by the Judges and the non-observance of judicial orders has further inhibited the effective enforcements of IP rights by the Judiciary. Furthermore the Federal High Court is vested with exclusive jurisdiction over IP disputes. This is a bar to parties exploring Alternative Dispute Resolution.

The Way Forward

Due to the loopholes in enforcing IP rights and resolving IP disputes in Nigeria, it has become necessary that new and alterative procedures need to be considered. These include Arbitrations and Special Courts.

Why Arbitration

Arbitration according to the Black’s Law Dictionary is a dispute resolution process in which the disputing parties choose one or more neutral third parties to make a final and binding decision resolving the dispute. WIPO has advocated for the use of Arbitration for resolving IP disputes and has gone further to establish an Arbitration & Mediation Centre for resolving IP disputes.

It also has in place its Arbitration rules. Discussed here are the advantages of Arbitration over Litigation and why IP disputes should be resolved using Arbitration in Nigeria.

  • Technicality involved in Intellectual Property: Intellectual Property is a technical subject matter. Therefore it is a better to use an Arbitrator who has specialised knowledge of Intellectual Property. This is even more so when technical issues like computer programs, Industrial designs, patents etc. are being contested. When parties can choose their adjudicator they have the opportunity of picking one who possesses the necessary technical knowledge.
  • Expert determination: Disputing parties can also refer the matter to an expert in the area of dispute for expert opinion, appraisal, valuation or determination to settle a dispute. This expert can act as Arbitrator and the resulting decision is binding on the parties.
  • International Nature of Intellectual Property Disputes: IP is by its nature intangible and global unlike other forms of property. It can be exploited and transmitted globally instantaneously. This makes its rights infringeable internationally and disputes are cross borders. Therefore IP disputes are best resolved by Arbitration which is most suitable for International disputes.
  • Flexibility of Arbitration: Arbitration by its nature is flexible. The parties can choose the Arbitrator, time, conduct of the proceedings and venue of the proceedings. Also they can choose the applicable law to govern the proceedings. This is important having regards to the International nature of Intellectual Property disputes. Parties do not have to be bound by the local laws of a disputing party.
  • The Time Involved and Finality: Arbitral proceedings are fastidious. Parties do not have to go the tedious and formal procedure involved in litigation. Arbitration is expeditious, quick and efficient. This is an advantage for Intellectual Property disputes which are of a technical and economical nature and need to be resolved timeously. Furthermore, contracting parties can resolve that there will be no appeal to the arbitral award. This ensures the dispute will be brought to an end quickly unlike litigation where parties by contract cannot bar an appeal.
  • Confidentiality: Arbitration ensures confidentiality between parties. IP disputes may involve trade secrets and commercial benefits. These are better kept confidential in order to avoid being exploited by the public. Arbitration also ensures that parties’ trade reputation is protected and this is a commercial benefit.

Establishing Special IP Courts

A special IP Court is an independent public judicial body that can operate at national or regional levels to adjudicate IP disputes, enforcement of IP rights and incidental disputes. There has been a global trend toward the establishment of specialised IP courts especially in developed Countries.

Establishing a specialised Court improves the quality of justice available to litigants. This is because the Judiciary will have vast experience and knowledge in IP. This is unlike non specialised Court where the judiciary may or may not have vast knowledge of IP. Specialised Courts are better equipped to keep pace with and adapt to dynamic developments in Law.

Another advantage of specialised Courts is that they allow for timely and cost-effective handling of proceedings and can improve consistency in case Law. Establishing a specialised IP Court or Tribunal in Nigeria will further enhance the effective enforcement and protection of IP rights in Nigeria and it is important considering the fact that some IP disputes are of a criminal nature and thus not arbitrable.

Conclusion

Intellectual Property plays a key role in the economy and development of a Country. Where these rights are adequately protected, enforced and implemented, it has a lot of benefits to the economy and the society at large.

Lessons have been learnt form developed countries who have given IP the paramount stage that it deserves. A crucial method of ensuring these rights and enforced and disputes are efficiently resolved is to resort to Arbitration and establish specialised IP Courts.

Our Laws should be amended to meet up with dynamic trends in IP, to provide resort to ADR especially Arbitration and Special Courts and Tribunals should be established to ensure speedy and effective trial of IP disputes.

Is Customary Arbitration the Solution to Congestion of Cases?

Arbitration is a way to resolve disputes outside the judiciary courts. The dispute will be decided by one or more persons, which renders the ‘arbitration award’.

It is no longer news that determination of disputes especially commercial disputes before Nigerian courts is not time efficient. The courts are usually congested and cases are subjected to too many adjournments. A litigant cannot reasonably predict the term of a case in court.

Presently, the courts are not sitting because judiciary workers are on strike to demand financial autonomy for the judiciary. It is clear that the delay in resolving disputes in court makes the English model court system to be ineffective in meeting the demands for justice in Nigeria in the 21st century.

Customary arbitration was used to reach peaceful resolution of disputes in pre-colonial Nigerian societies. This made it easier for business and social relationships to be maintained in that era. The reason for this is that customary arbitration encouraged amicable settlement of disputes and the need to restore cordiality amongst members of the society.

The rights and liabilities of the parties were not interpreted in isolation like in the current English system of litigation. The rights and liabilities of the parties were interpreted in accordance with the general social good of the society.

Interestingly, recently in Umeadi v Chibunze 10 NWLR 405, the Supreme Court found that where parties who believe in the efficacy of juju, resort to oath-taking to settle a dispute, they are bound by the result and so the common law principles in respect of proof of title to land no longer applies since the proof of ownership of title to land will be based on the rules set out by the traditional arbitration resulting in oath-taking.

The Court further stated that where customary arbitration is pleaded and proved, it is binding on the parties and capable of constituting estoppels.

The main difference between customary and modern arbitration is that while the former cannot be enforced as a judgment of court, the later can be enforced as a judgment with leave of court. However, if a customary arbitration award is pleaded and proved before a court of law, the parties cannot resile from it as it will be binding on them and create estoppel.

Customary arbitration is indigenous to Nigerian societies and has been part of our dispute resolution mechanism since time immemorial. It is more effective than the acrimonious and technical English model of litigation.

Hence, the Bill before the National Assembly to amend the Arbitration and Conciliation Act should take cognisance of the benefits of customary arbitration and make provisions for it to coexist with domestic and international commercial arbitration.

In order to ensure its efficacy, a customary arbitration award should not be subjected to the principles of English law by the court testing whether the decision of the customary tribunal meets English law standards. This is because the history and composition of the English system of adjudication is different from customary arbitration in Nigeria.

It is settled law that parties are bound by the terms of their agreement. Litigants do not need to go to conventional courts to resolve all their disputes.

If parties to a dispute subject themselves to customary arbitration before a religious or traditional leader, clan or village head or other persons they trust, they should naturally be bound by the decision of the person who they choose to resolve their dispute. This will in no small way decongest the courts, promptly resolve disputes and give Nigerians a sense of fulfilment in the justice delivery system in the country.

Indeed, the Supreme Court decision in Umeadi v Chibunze is a breath of fresh air and a welcome development.

It is also a clarion call for Nigeria to go back to its roots and develop its own customary arbitration and indigenous dispute resolution mechanisms, culture and principles which will better serve the demands of Nigerians for a justice system which will serve them promptly and efficiently.

The New Company Law and the Constitutional Rights

A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognised and established by a sovereign state or union of states.

The Companies and Allied Matters Act, 2019 recently signed into law by the President of the Federal Republic of Nigeria is a welcome development to Nigerian businesses. It has addressed the bottlenecks in formation of business entities and improved Nigerian corporate governance.

It has also given leverage to small companies to thrive and incorporated technological innovations to the processes of the Corporate Affairs Commission to facilitate the ease of doing business in Nigeria.

However, the legislature in extending the powers of the Companies’ Registry to effectively regulate the activities of Churches, Islamic Religious Organisations, Charity and Non-Government Organisation which are registered as Incorporated Trustees has introduced some new provisions in the new CAMA which are capable of usurping the fundamental rights of citizens to their freedom of thoughts, conscience and religion, freedom of peaceful assembly and association and constitutional rights of access to Courts.

The Plaintiff contends that Section 839 of the new CAMA which gives power to the Companies’ Registry to remove trustees and appoint an interim manager to take over an association where it reasonably believes that there is misconduct, mismanagement, fraudulent practices, for protection of the property of the association and public interest; Section 842, Section 843, Section 844 of the new CAMA which gives the Companies’ Registry the powers to control the proceeds of a dormant account of an association and dissolve an association on account of its dormant account; Section 845, Section 846, Section 847 and Section 848 of the new CAMA which directs associations to keep and submit their statement of affairs and accounting records to the Companies’ Registry, infringes the Plaintiff’s freedom of thoughts, conscience and religion enshrined in Section 38 of the Constitution of the Federal Republic of Nigeria, 1999.

The Plaintiff opines that Churches, Islamic religious organisations, Charity and Non-Governmental Organisations give hope to the Plaintiff and the Nigerian people. The activities of associations augment the efforts of government. They act as watchdogs for the people and put the government in check.

It is unfortunate for the provisions of the new CAMA to put the activities of associations under the complete whims and caprices of the Companies’ Registry which is an agency of the Federal Government.

The law provides for every association to have a Constitution which regulates the affairs of the association and protect them against misconduct, mismanagement, fraudulent or other activities which are contrary to the objects of the association.

Hence, the Companies’ Registry has no business whatsoever in suspending trustees and appointing interim managers for them. This is a sure recipe for disaster. The activities of associations are not against public interest to warrant such draconian provisions.

The funds of associations are not public funds. They are contributions, offerings and freewill donations of members to carrying out their objectives. There is no legal justification for the Companies’ Registry to be interested in the dormant account of associations.

Associations are non-profit making organisations. They are not business ventures as such the Companies’ Registry cannot be ingrained in the affairs of associations by expecting them to submit statement of affairs or accounting records to the Registry.

The Plaintiff has a freedom to his thought, conscience and religion alone or in community with others. The Plaintiff has a right to propagate his religion, worship, teaching, practice and observance in public or private and does not even need to register same with the Companies’ Registry to propagate same.

Therefore, giving powers to the Companies’ Registry who is an outsider and complete stranger to determine the affairs of a place where the Plaintiff professes his thoughts, conscience and religion is an aberration which is in contravention of Section 38 of the Constitution.

Furthermore, the Plaintiff contends that Section 839, Section 843, Section 844, Section 845, Section 846, Section 847 and Section 848 of the new CAMA infringe his freedom to peaceful assembly and association. This is because the Companies’ Registry has a wide discretion to appoint interim managers to replace suspended trustees.

The interim managers to be appointed by the Companies’ Registry may have nothing in common with the members of the association and the members will not have a right to challenge such appointment.

This will impair the rights of members of associations to actively participate in activities of their associations and determine its direction. The enormous and dictatorial powers given to the Companies’ Registry to intrude and interfere with the operations and management of associations is not legally justifiable.

The use of phrases such as “is satisfied”, “reasonably believes”, “deem it necessary”, “public interests” in relation to the powers of the Companies’ Registry over associations are ambiguous phrases that can easily lead to an abuse of power by the Companies’ Registry and contravene the Plaintiff’s freedom to associate peacefully with other persons enshrined in Section 40 of the Constitution.

Again, the Plaintiff contends that the provisions of Section 851 of the new CAMA which gives powers to the Administrative Proceedings Committee to hear cases arising from the provisions of the new CAMA limits the Plaintiff’s constitutional rights of access to Courts. Section 6 and 6 of the Constitution confers judicial powers to the Courts. Section 36 of the Constitution gives citizens the right to access an independent and impartial Court to determine their civil rights and obligations.

Section 251 of the Constitution provides for the Federal High Court to hear any matter arising from the provisions of the new CAMA.

Hence, the provision of Section 851 of the new CAMA comes as a very huge surprise. The composition of the Administrative Proceedings Committee is made up mostly of employees of the Companies’ Registry who are involved or aware of the issue which caused the dispute in the first place.

It is against the principle of natural justice for a person to be a judge in his own case. In most disputes arising from the provisions of the company law or regulations, the Companies’ Registry is usually a party to the dispute.

The Companies’ Registry cannot independently and impartially determine a dispute which it is also a party. If this is allowed the Companies’ Registry will be a party and judge in its own case.

It is without doubt that Section 851 of the new CAMA is contrary to the Plaintiff’s rights of access to Courts enshrined in Section 6 6, Section 36 and Section 251 of the Constitution.

In conclusion, the Plaintiff contends that his freedom of conscience, thoughts and religion, freedom of peaceful assembly and right to access to Court are so serious and the only way to ensure that the rights are protected in the circumstance, is for the provisions of Section 839, Section 843, Section 844, Section 845, Section 846, Section 847 and Section 848 and Section 851 of the new CAMA to be expunge from the new CAMA.

The Plaintiff prays for an order of mandatory injunction of the Court directing the Defendants to expunge the offending provisions of the new CAMA.

The Essence of Civil Proceedings

The essence of civil proceedings is for the judgment creditor to enjoy the fruits of his Judgment. This may be achieved by the judgment creditor executing the Judgment by the attachment and sale of the moveable or immovable property of the judgment debtor, attachment of funds belonging to the judgment debtor in the possession of a third party under the garnishee proceedings or committal of the judgment debtor to prison for refusal to settle the judgment debt under the judgment summons proceedings.

However the following are the grounds upon which a Nigerian Court will set aside execution of a Judgment.

(i) If the judgment creditor executed the Judgment against a person other than the judgment debtor.

There are instances where a judgment creditor who is desperate to obtain payment of the judgment debt, attaches the movable property of a third party in the premises of the judgment debtor. Upon the application of the third party with proof that the property belongs to him and not the judgment debtor, the Court would set aside the execution of the Judgment.

(ii) If the person against whom the Judgment was executed, was never a party to the suit.

A judgment creditor cannot legally execute a Judgment against a person who was not a party to the suit upon which he obtained Judgment. This is so even if the person against whom the Judgment was executed is the judgment debtor’s successor-in-title.

For instance, if a defendant dies before Judgment is delivered, the judgment creditor ought to bring an application to substitute the defendant’s name with that of his successor-in-title and serve the successor-in-title with all the processes in the suit.

If the judgment creditor fails do so and the Judgment is delivered against the defendant, the judgment creditor cannot sustain an execution against the defendant’s successor in title. This is because the successor-in-title was not a party to the suit. In law, the defendant and his successor-in-title are distinct and different persons.

(iii) Lack of service of the processes on the judgment debtor.

If the judgment creditor failed to effect service of the processes in the suit on the judgment debtor in line with the provisions of the relevant statutes on service of processes, the Court would set aside the execution of the Judgment against the judgment debtor.

This is because service of processes on the judgment debtor goes to the root of the suit and affects the jurisdiction of the Court to validly enter Judgment against the judgment debtor. Lack of service is a clear breach of the judgment debtor’s fundamental right to fair hearing and makes the proceedings conducted a nullity and of no legal effect whatsoever.

(iv) Lack of jurisdiction of the Court who delivered the Judgment.

Jurisdiction of Court is a threshold issue. If the Court who delivered the Judgment which the judgment creditor executed against the judgment debtor had no jurisdiction in the first place over the subject matter of the suit or exceeded its statutory jurisdiction, the judgment debtor may apply to set aside the execution of the Judgment.

(v) Execution of a Judgment outside the stipulated statutory period.

Order IV Rules 8 and of the Judgment Enforcement Rules provides that a Judgment shall be executed against the property of a judgment debtor within 6 years and against the person of the judgment debtor within 2 years from the date in which the Judgment was delivered, failing which the judgment creditor must file an exparte application for leave of Court to execute the Judgment outside the stipulated statutory period.

If a judgment creditor, without leave of court, execute a Judgment outside the stipulated statutory period, the judgment debtor may apply to the Court to set aside the execution of the Judgment.

Damages for Unlawful Termination of Employment

In law, wrongful dismissal, also called wrongful termination or wrongful discharge, is a situation in which an employee’s contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contract of employment, or a statute provision or rule in employment law.

All employment has its terms. The terms may be written in a single contract, several documents, custom and usage or inferred from the conduct of the employee and his employer. The terms of employment usually stipulates the procedure, notice and termination package in which the employer would pay to the employee upon termination of the employee’s employment.

It therefore behooves of the employer to terminate the employee’s employment in line with the provisions of the employee’s terms of employment. Consequently, termination of the employee’s employment is said to be unlawful, if the employer fails to terminate the employee’s employment in line with the provisions of the employee’s terms of employment.

What then are the damages which will accrue to the employee for unlawful termination of his employment by the employer?

(a) Employment with statutory flavour

An employment with statutory flavour is an employment which is provided by an extant statute. Civil servants fall under this category. The law is settled that where the employment of an employee with statutory flavour is terminated without recourse to the laid procedure in the relevant statute or statutes as the case may be, the court would order that the employee be reinstated.

The employer in such a case is liable to pay the employee all outstanding salaries and allowances during the entire period which his employment was unlawfully terminated.

(b) Employment by contract

Unlike an employment with statutory flavour, where the employment of an employee by contract is unlawfully terminated, the employer is liable to pay only what he would have paid had the employment of the employee been properly terminated.

The employee is not entitled to reinstatement because the court cannot force an employee on an unwilling employer and vice versa. This means if for instance the employee’s terms of employment stipulates that the employee is entitled to pension, gratuity and 3 months’ notice for termination of his employment, upon the court arriving at a decision that the termination of the employee’s employment is unlawful, it can only order the employer to pay the employee his pension, gratuity and 3 months’ salary in lieu of notice and nothing else.

(c) Employment at will

An employer under common law has the right to hire and fire. An employee at the will of the employer can be summarily dismissed with or without reason. However, if an employee’s employment is terminated on allegation of crime, a competent court must hold the employee guilty of the crime; otherwise the termination of the employee’s employment on allegation of crime is unlawful.

Can a Nigerian court grant damages for psychological, emotional pain and distress claims for unlawful termination of contract of employment?

Unlike in the UK and other commonwealth jurisdictions, a Nigerian court would not grant damages for psychological, emotional pain and distress claims of an employee for unlawful termination of his contract of employment by the employer.