By Ggenga Bamodu
In a series of judgements going back to at least 2003 Nigeria’s highest courts, especially the Supreme Court, have provided greater clarity concerning the statutory regimes for enforcing foreign money judgements in Nigeria. Nevertheless, an examination of the decisions of the courts and the practical implications of some of the most recent decisions indicate that an enormous amount of caution is still required when seeking to enforce a foreign judgment in Nigeria.
There are two statutory regimes under which it may be possible to enforce a foreign judgment in Nigeria. The first is the Reciprocal Enforcement of Judgments Act 1922 (‘the 1922 Act’ which is sometimes confusingly referred to as the 1958 Act) and the Foreign Judgments (Reciprocal Enforcement) Act 1960 (‘the 1960 Act’ which is sometimes referred to, also confusingly, as the 1990 Act). While it had been assumed to some degree that the advent of the 1960 Act had led to the repeal of the 1922 Act, the Supreme Court has decided, rightly, that the 1922 Act was never repealed and remains in force; (see inter alia Macaulay v RZB of Austria [2003] 18 NWLR 282). The 1922 Act continues to be available for the enforcement by registration of judgments of the courts of the United Kingdom and some Commonwealth countries to which its application is extended by proclamation. This is what was always intended and the countries to which the 1922 Act applies include specifically the countries listed in an extant proclamation order (Laws of the Federation of Nigeria and Lagos (1958) vol IX, cl 175, s. 5).
Rather surprisingly, the Nigerian Supreme Court has held that a particular part of the 1960 Act can be invoked to enforce a foreign judgment, even in the absence of a ministerial order. The Nigerian Supreme Court has held that section 10(a) of the 1960 Act can be invoked as an exception to the requirement of a ministerial order. In reaching this conclusion, the court took the view that section 10(a) is an “interim” provision intended to apply before the Minister of Justice makes an order under the Act. It has been argued extensively elsewhere that this approach is not only of dubious accuracy but that it is also self-contradictory; otherwise, it is at best an exercise in judicial pragmatism. (See the article: ‘The Enforcement of Foreign Money Judgments in Nigeria: A Case of Unnecessary Judicial Pragmatism?’ in (2012) 12(1) Oxford University Commonwealth Law Journal 1)
The reality is that the provisions of section 10(a) of the 1960 Act are not supposed to apply at all before the making of an Order of the Minister; rather they are supposed to apply before the commencement of an order of the Minister. This presupposes that only when an order has been made but before its commencement can the provision of section 10(a) of the 1960 Act be invoked. The drastic reality is that the provisions of the1960 Act are not truly supposed to be invoked at all presently – unless and until (a) relevant ministerial order(s) is/are made!
That the conclusion of the Supreme Court applying section 10(a) of the 1960 Act in the absence of any ministerial order is contradictory is apparent on a careful examination of some of the statements of the court itself. For example Mohammed JSC, who delivered some of the most lucid reasoning on this topic, observed as follows: ‘the entire provisions of Part I of the [1960 Act] containing section 4 of the Act require a positive action on the part of the Minister of Justice of the Federation to bring that part of the Act into force. Part I…. comprises sections 3, 4, 5, 6, 7, 8, 9, and 10. From the provisions of section 3 of the Act . . . it is quite clear that the provisions of Part I of the Act remains (sic) dormant or inactive until life is breathed into them by an order promulgated by the Minister . . .’ (Marine & General Assurance Co Plc v Overseas Union Insurance Ltd &Ors [2006] 4 NWLR 622,643)
It is not difficult to identify reasons why it is easy to fall into the temptation to find a way to make the provisions of the 1960 Act invocable for the enforcement of foreign judgments. In the absence of the approach taken by the Supreme Court judgments from several countries, including judgments from important trading partner countries, cannot be enforced by registration though they can still be enforced by action on the judgment debt. The only statutory registration regime that can be invoked, the 1922 Act, is only applicable in respect of the United Kingdom and the Commonwealth countries to which its provisions have been extended. For example, a case like Teleglobe America Inc v 21st Century Technologies Ltd (2008) 17 NWLR (Pt 1115) 108 would have had to be decided differently since there is no ministerial order extending the 1960 Act to the USA. Consequently, it would mean that American judgments cannot be enforced by registration but rather by action, although it may be possible to expedite the action to some extent by use of the undefended list procedure.
A surprising recent development arose from the judgment of the High Court of Lagos state from which the suggestion to adopt an ex abundanticautela approach is taken. In Access Bank plc v Akingbola, the Lagos High Court ruled that the court in which the enforcement of the judgment of the English court in the particular case should have been sought was the Federal High Court. The reason for this was, in effect, that if the original action had been tried in Nigeria the court with rightful jurisdiction would have been the Federal High Court because the original (foreign) judgment concerned the statutory duties of the judgment debtor under the Companies and Allied Matters Act 1990 as a director. The court concluded that, in light of that fact, the judgment creditor should have sought enforcement of the foreign judgment in the Federal High Court ex abundanticautela i.e. out of an abundance of caution. The judgment debtor’s arguments that he did not carry on business in the jurisdiction of the foreign court or that he did not voluntarily appear before that court are not key issues in this particular respect. Compare e.g. Union Petroleum Services Ltd v Petredec Ltd (CA, 2014)
It would be very surprising if the decision of the Lagos High is not challenged further in the Nigerian appellate courts. Nevertheless, the case does confirm that seeking to enforce a foreign judgment in the Nigerian courts is a matter that requires ‘an abundance of caution’; it is truly a case of proceeding ex abundanticautela.
Dr. Gbenga Bamodu via [email protected].
