1.0
As of today, the applicable law on the registration of foreign
judgments in Nigeria is the Reciprocal
Enforcement of Judgments Ordinance, Cap. 175, Laws of the Federation of
Nigeria, 1958 (REJO). See Witt &
Busch Limited v. Dale Power Systems Plc (2007) 17 NWLR (Pt. 1062) 1. By
extension, the Reciprocal Enforcement of
Judgments Rules, Cap. 175 Laws of
the Federation of Nigeria, 1958 (REJ
Rules) is also applicable. It becomes pertinent to highlight the relevant
portions of the REJO and REJ Rules.
As of today, the applicable law on the registration of foreign
judgments in Nigeria is the Reciprocal
Enforcement of Judgments Ordinance, Cap. 175, Laws of the Federation of
Nigeria, 1958 (REJO). See Witt &
Busch Limited v. Dale Power Systems Plc (2007) 17 NWLR (Pt. 1062) 1. By
extension, the Reciprocal Enforcement of
Judgments Rules, Cap. 175 Laws of
the Federation of Nigeria, 1958 (REJ
Rules) is also applicable. It becomes pertinent to highlight the relevant
portions of the REJO and REJ Rules.
2.0
Section 3
(1) of REJO provides thus:
Section 3
(1) of REJO provides thus:
“Where a judgment has been obtained in the
High Court in England or Ireland or in the court or session in Scotland, the
judgment creditor may apply to a High Court at any time within 12 months after
the date of the judgment or such longer period as may be allowed by the court
to have the judgment registered in the court….”
High Court in England or Ireland or in the court or session in Scotland, the
judgment creditor may apply to a High Court at any time within 12 months after
the date of the judgment or such longer period as may be allowed by the court
to have the judgment registered in the court….”
3.0
Section 3
(2) of the REJO provides thus:
Section 3
(2) of the REJO provides thus:
No judgment
shall be ordered to be registered under this Ordinance if –
shall be ordered to be registered under this Ordinance if –
(a)
the original
court acted without jurisdiction; or
the original
court acted without jurisdiction; or
(b)
the judgment
debtor, being a person who was neither 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; or
the judgment
debtor, being a person who was neither 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; or
(c)
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
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
(d)
the judgment
was obtained by fraud; or
the judgment
was obtained by fraud; or
(e)
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
debtor satisfies the registering court either that an appeal is pending or that
he is entitled and intends to appeal against the judgment; or
(f)
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.
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.
4.0
Rule 12 of the REJ Rules also provides that:
Rule 12 of the REJ Rules also provides that:
The judgment debtor may at any time
within the time limited by the order giving leave to register after service on
him of the notice of registration of the judgment apply by petition to a Judge
to set aside the registration or to suspend execution on the judgment and the
Judge on such application if satisfied that the case comes within one of the
cases in which under section 3(2) of the Ordinance no judgment can be ordered
to be registered or that it is not just or convenient that the judgment be
enforced in Nigeria or for other sufficient reasons may order that the
registration be set aside or execution on the judgment suspended either
unconditionally or on such terms as he thinks fit and either altogether or
until such time as he shall direct; provided that the Judge may allow the
application to be made at any time after the expiration of the time mentioned.”
within the time limited by the order giving leave to register after service on
him of the notice of registration of the judgment apply by petition to a Judge
to set aside the registration or to suspend execution on the judgment and the
Judge on such application if satisfied that the case comes within one of the
cases in which under section 3(2) of the Ordinance no judgment can be ordered
to be registered or that it is not just or convenient that the judgment be
enforced in Nigeria or for other sufficient reasons may order that the
registration be set aside or execution on the judgment suspended either
unconditionally or on such terms as he thinks fit and either altogether or
until such time as he shall direct; provided that the Judge may allow the
application to be made at any time after the expiration of the time mentioned.”
5.0
Thus, by Section 3 (1)
of REJO, a judgment creditor (the
Applicant) may apply to a High Court in Nigeria, within 12 months of the judgment, for leave to register a foreign
judgment. When the Applicant is unable to register same within the allowable 12 months period, the Applicant may
apply to the court for extension of time to register. By a combined reading of Section 3 (2) of REJO and Rule 12 of the REJ Rules, upon service of the notice
of registration or the order granting leave to register the foreign judgment on
the judgment debtor (the Respondent), the Respondent may, within the time given
in the order, apply to the Court, vide a Petition, for the setting aside of the
registration or the order granting leave to the Applicant to register the said
judgment or for the suspension of execution of the judgment if the foreign
judgment falls within any of the circumstances highlighted in Section 3 (2) of REJO and Rule 12 of the REJ Rules.
Thus, by Section 3 (1)
of REJO, a judgment creditor (the
Applicant) may apply to a High Court in Nigeria, within 12 months of the judgment, for leave to register a foreign
judgment. When the Applicant is unable to register same within the allowable 12 months period, the Applicant may
apply to the court for extension of time to register. By a combined reading of Section 3 (2) of REJO and Rule 12 of the REJ Rules, upon service of the notice
of registration or the order granting leave to register the foreign judgment on
the judgment debtor (the Respondent), the Respondent may, within the time given
in the order, apply to the Court, vide a Petition, for the setting aside of the
registration or the order granting leave to the Applicant to register the said
judgment or for the suspension of execution of the judgment if the foreign
judgment falls within any of the circumstances highlighted in Section 3 (2) of REJO and Rule 12 of the REJ Rules.
6.0
Whilst the provisions of the law appear substantially to be self-explanatory,
some of the said provisions are however shrouded in controversy. An example is
the nebulous provision of Section 3 (2)
(f) of REJO. This provision will certainly warrant the posing of certain rhetorical
questions like; what will amount to 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?’; in Rule 12 of the REJ Rules, what ‘is not just or convenient?’ and what are ‘other sufficient reasons?’
Whilst the provisions of the law appear substantially to be self-explanatory,
some of the said provisions are however shrouded in controversy. An example is
the nebulous provision of Section 3 (2)
(f) of REJO. This provision will certainly warrant the posing of certain rhetorical
questions like; what will amount to 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?’; in Rule 12 of the REJ Rules, what ‘is not just or convenient?’ and what are ‘other sufficient reasons?’
7.0
Since the REJO and the REJ Rules referred to above do not define “public policy”, “other
similar reasons”, “what is just and convenient” and “other sufficient reasons”,
the reasonable inference that can be made from the said open-ended provisions
is that the registering court has wide discretionary powers to set-aside and/or
refuse the registration of a foreign judgment depending on its interpretation
and/or definition of the above provisions. We hope someday soon, the Supreme
Court will make definite and definitive pronouncements on the application
and/or interpretation of Section 3(2)
of REJO and Rule 12 of the REJ Rules.
Since the REJO and the REJ Rules referred to above do not define “public policy”, “other
similar reasons”, “what is just and convenient” and “other sufficient reasons”,
the reasonable inference that can be made from the said open-ended provisions
is that the registering court has wide discretionary powers to set-aside and/or
refuse the registration of a foreign judgment depending on its interpretation
and/or definition of the above provisions. We hope someday soon, the Supreme
Court will make definite and definitive pronouncements on the application
and/or interpretation of Section 3(2)
of REJO and Rule 12 of the REJ Rules.
8.0
For now, one can safely conclude that the facts and circumstance
of each case will determine the application and/or interpretation of the
provisions of Section 3 (2) of REJO and Rule 12 of the REJ Rules.
For now, one can safely conclude that the facts and circumstance
of each case will determine the application and/or interpretation of the
provisions of Section 3 (2) of REJO and Rule 12 of the REJ Rules.
By Bolarinwa Awujoola.