1 Legal and judicial framework
1.1 Which legislative and regulatory provisions govern the recognition and enforcement of foreign judgments in your jurisdiction?
- The Reciprocal Enforcement of Foreign Judgment Ordinance 1922, Laws of the Federation 2004 and Lagos 1958.
- The Foreign Judgments (Reciprocal Enforcement) Act, Laws of the Federation of Nigeria 2004.
- The High Court of Lagos State (Civil Procedure Rules) 2019.
- The Federal High Court Rules 2019
- The Sheriff and Civil Process Act, Laws of the Federation of Nigeria, 2004.
- Arbitration and Conciliation Act, Laws of the Federation of Nigeria, 2004
1.2 Which bilateral and multilateral instruments on the recognition and enforcement of foreign judgments have effect in your jurisdiction?
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
1.3 Which courts have jurisdiction to hear applications for the recognition and enforcement of foreign judgments?
- The high court of a state or of the federal capital territory, Abuja.
- The Federal High Court.
2 Requirements for enforceability
2.1 What types of judgments may be recognised and enforced in your jurisdiction? Are any types of judgments specifically precluded from enforcement?
The following judgments are recognisable and enforceable:
- any judgment or order arising from civil proceedings;
- any arbitration award which has become enforceable under the law in force at the place where it was made in the same manner as a judgment of a court in that place; and
- any monetary judgment or court order in criminal proceedings for the payment of compensation or damages to an injured party.
The following foreign judgments cannot be recognised and enforced:
- judgments of a superior court of a foreign country issued on appeal from a court which is not a superior court; and
- judgments in respect of taxes or other similar charges or penalties or fines.
2.2 Must a foreign judgment be final and binding before it can be enforced?
2.3 Is a foreign judgment enforceable if it is subject to appeal in the foreign jurisdiction?
Yes, the law states 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.
2.4 What is the limitation period for making an application for recognition and enforcement?
Under Section 10 of the Foreign Judgments (Reciprocal Enforcement), unless an order has been issued by the minister of justice, a foreign judgment must be recognised within 12 months of being passed, unless the court permits a longer period.
Under the Reciprocal Enforcement of Foreign Judgment Ordinance, the limitation period for enforcement of a judgment is 12 months from the date of the judgment or such longer period as may be allowed by the court.
3 Recognition and enforcement process
3.1 Is recognition of a foreign judgment a separate process from enforcement and does it have separate legal effects?
A judgment is recognised when the court accepts the judicial decision of a foreign court. A foreign judgment must be recognised before it can be enforced. A judgment can be recognised by a court without being enforced by it. For example, a party to a suit instituted in a Nigerian court may ask that the foreign judgment be recognised in order to satisfy the res judicata defence. Recognition of a foreign judgment is a separate process from enforcement.
Once a foreign judgment has been recognised, the judgment creditor may seek to enforce it by commencing garnishee proceedings or any other mode of enforcement.
Section 2 of the Foreign Judgment (Reciprocal Enforcement) Act provides that for the purpose of execution, proceedings may be taken on a recognised judgment and the court which recognised the judgment shall have the same control over execution of the judgment as if it were an original judgment of that court entered on the date of recognition.
Upon recognition of a foreign judgment by order of court on the grant of an application, the judgment creditor can apply to the court for its enforcement by means of any of the judgment enforcement procedures.
3.2 What is the formal process for recognition and enforcement?
- An originating application must be sent to the High Court of a state or the Federal High Court (usually by way of a motion ex parte or petition, although the court may require that the judgment debtor be put on notice) within 12 months of the date of the judgment (or six months after the date of the judgment where the minister for justice has made a direct order under Part A of the Foreign Judgments (Reciprocal Enforcement) Act), or any last judgment where there have been appeals.
- The application must be supported by an affidavit which exhibits all relevant proofs, including a certified true copy of the judgment for which recognition is sought.
- The application must also be supported by a written address setting out the applicable laws and arguments in support of the application.
3.3 What documents are required in support of an application for recognition and enforcement?
The formal procedure for seeking recognition and enforcement of a foreign judgment varies depending on which law is relied on.
Reciprocal Enforcement of Judgments Ordinance: The judgment creditor must apply to a state high court of the Federal High Court to recognise the foreign judgment by a petition, either ex parte or on notice. The court reserves the right to put the judgment debtor on notice of an ex parte petition.
The applicant must support the petition with an affidavit of facts, which should include a certified true copy of the judgment for recognition. The supporting affidavit should state the full name, title, trade or business, and usual or last known place of abode or business of the judgment creditor and judgment debtor, respectively.
If recognition of the foreign judgment is granted, the order to this effect will be served on the judgment debtor. The order will specify a timeframe within which the judgment debtor may apply to set aside the recognition. If the judgment debtor does not apply to set aside the order, the judgment creditor can have the foreign judgment recognised and subsequently take steps to enforce it through any of the judgment enforcement mechanisms.
Foreign Judgment (Reciprocal Enforcement) Act: Section 4(1) of the act permits a judgment creditor to apply to a Nigerian superior court for recognition of a foreign judgment. The act does not specify the procedure for commencement; therefore, the procedural rules of the court before which recognition is sought will apply.
At common law: To have a foreign judgment recognised and enforced, the judgment creditor should institute a case via a writ of summons. The judgment creditor can file a summary judgment application together with the writ or apply for the suit to be placed on the undefended list, as it is for the enforcement of a judgment (and it may thus easily be inferred that the judgment debtor has no defence to the claim).
3.4 What fees are payable for recognition and enforcement?
- The filing fees for the application for recognition.
- The filing fees for any relevant court process that must be filed further to a court directive in respect of recognition.
- The cost of service of the application on the judgment debtor, where the court directs that the judgment debtor be put on notice.
- The cost of obtaining a certified true copy of the order of recognition, upon grant of such order.
3.5 Is the applicant required to provide security for costs?
This is at the judge's discretion. The judge may direct that security for costs be provided, in which case the cost and extent of same are likewise at the discretion of the judge.
3.6 How long does it usually take to obtain a declaration of enforceability?
Usually three months from the date of application. However, this is subject to court sittings and any directives made by the court.
3.7 Can the applicant seek injunctive relief while the process is ongoing?
Yes, an applicant can seek injunctive relief while the process is ongoing, as the court has the discretionary power to grant interim relief for the purpose of preserving the res (subject matter) in respect of any case pending before it, upon application by a party.
4.1 On what grounds can the defendant challenge recognition and enforcement of a foreign judgment?
- The judgment is not a judgment to which Part A of the Foreign Judgments (Reciprocal Enforcement) Act applies (eg, the time limit of six years upon order of the minister of justice) or the judgment was recognised in contravention of the act.
- The original foreign court had no jurisdiction in the circumstances of the case.
- The judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on it in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable it to defend the proceedings and did not appear.
- The judgment was obtained by fraud.
- Enforcement of the judgment would be contrary to public policy in Nigeria.
- The rights under the judgment are not vested in the person that made the application for recognition.
- At the time the judgment in the original court was issued, the dispute had already been the subject of a final and conclusive judgment handed down by a court with jurisdiction.
Further, irrespective of the country in which it was made, an arbitral award shall be binding and enforceable by the Nigerian courts upon application by a party thereto. Any of the parties to the arbitration agreement can apply to the court to refuse enforcement of that award, further to Sections 51 and 52 of the Arbitration and Conciliation Act, Laws of the Federation of Nigeria, 2004, as Nigeria is a party to the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards.
4.2 What is the limitation period for filing a challenge?
Under the Foreign Judgment (Reciprocal Enforcement) Act, an application seeking to challenge an order of recognition is subject to the Rules of Court. The Rules of Court provide that an application to set aside a ruling of court must be made within 14 days of such ruling.
4.3 Can the defendant seek injunctive relief to prevent enforcement while a challenge is pending?
Yes, Section 4(2) of the Foreign Judgment (Reciprocal Enforcement) Act provides that execution shall not issue on the judgment so long as, under the act and the Rules of Court made thereunder, it is competent for any party to make an application to have recognition of the judgment set aside or, where such application has been made, until after the application has been finally determined.
5 Court analysis and decision
5.1 Will the court review service of process in the initial proceedings?
From careful consideration of the Foreign Judgment (Reciprocal Enforcement) Act, it is understood that the court's powers to review the service of process in the initial proceedings will be exercised upon an application by the judgment debtor to set aside the initial judgment after recognition, and not necessarily at the time of the application for recognition.
5.2 Will the court review the jurisdiction of the foreign court in the initial proceedings?
The court has the power to review whether the foreign court had jurisdiction to adjudicate on the matter or make such judgment, upon the judgment debtor's application to set aside the recognition of a foreign judgment on this ground.
5.3 Will the court review the foreign judgment for compliance with applicable law and public policy?
The court has the power to do so, either by itself or upon application by a judgment debtor.
5.4 Will the court review the merits of the foreign judgment?
The court has the power to do so upon application by a judgment debtor.
5.5 How will the court proceed if the foreign judgment conflicts with a previous judgment in relation to the same dispute between the same parties?
The court may refuse to recognise a foreign judgment upon reaching this decision.
5.6 Are there any other grounds on which the court may refuse to recognise and enforce the foreign judgment?
Yes, as follows:
- The foreign judgment has been wholly satisfied.
- The foreign judgment could not be enforced by execution in the country of the original court.
- The foreign judgment is not final and conclusive.
- The foreign judgment is in respect of tax or other charges of a similar nature, or in respect of a fine or other penalty.
- The foreign judgment is sought to be recognised six years after it was issued.
5.7 Is partial recognition and enforcement possible?
Partial recognition and enforcement is possible in two instances, as follows:
- If, at the date of the application for recognition, the foreign judgment has been partly satisfied, the judgment shall not be recognised in respect of the whole sum payable under the foreign judgment, but only in respect of the balance remaining at that date.
- If, on an application for recognition of a foreign judgment, it appears to the court that the judgment is in respect of different matters and that some, but not all of the provisions of the judgment are such that, had they been contained in a separate judgment, those judgments could properly have been recognised, the judgment may be recognised in respect of those provisions, but not in respect of any other provisions contained therein.
5.8 How will the court deal with cost issues (eg, interest, court costs, currency issues)?
Under Section 4(6) of the Foreign Judgment (Reciprocal Enforcement) Act, in addition to the sum payable under the foreign judgment – including any interest which, under the law of the country of the original court, has become due under the judgment up to the time of recognition – the judgment shall be recognised for the reasonable costs of and incidental to recognition, including the costs of obtaining a certified true copy of the judgment from the original court.
6.1 Can decisions in relation to the recognition and enforcement of foreign judgments be appealed?
Yes, the court order granting, refusing or setting aside recognition of a judgment may be appealed. However, the court recognising the foreign judgment cannot sit on appeal on the foreign judgment made by the foreign court.
6.2 Can the applicant seek injunctive relief while the appeal is pending?
Parties can always seek injunctive relief to preserve the res (subject matter) while an appeal is pending, but this must not prejudice the appeal or render the appellate decision unenforceable.
7 Enforcing the foreign judgment
7.1 Once a declaration of enforceability has been granted, how can the foreign judgment be enforced?
Following recognition, a foreign judgment may be enforced through:
- garnishee proceedings;
- judgment debtor summons;
- writ of fieri facias;
- writ of attachment; or
- writ of sequestration.
7.2 Can the foreign judgment be enforced against third parties?
No, the foreign judgment cannot be enforced against third parties. The foreign judgment can be enforced only against the judgment debtor, which must have been a party to the proceedings in the foreign court that gave rise to the foreign judgment. However, through garnishee proceedings, the judgment may be enforced against credit balances in bank accounts of the judgment debtor maintained with the garnishees.
8 Trends and predictions
8.1 How would you describe the current enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
The current enforcement landscape provides a conducive but cautious environment for the recognition of foreign judgments – especially given that such judgments are handed down in proceedings in which the Nigerian courts have played no part. While the courts and the applicable laws in Nigeria provide for the recognition and subsequent enforcement of foreign judgments, the reality is that this is exercised with caution by the courts. The applicant must fully disclose and discharge the burden of supporting its application before the courts will exercise their discretionary power to grant recognition in its favour. It is expected that in the not too distant future, the process will be more utilised more frequently by litigants to enforce foreign judgments in Nigeria.
9 Tips and traps
9.1 What are your top tips for smooth recognition and enforcement of foreign judgments, and what potential sticking points would you highlight?
- For smooth recognition and enforcement of a foreign judgment, proper attention must be paid to timing, as the date on which the judgment was handed down and the period that has since elapsed are fundamental to the application. Although they are empowered to grant an extension of time, the Nigerian courts are wary of recognising a judgment more than 12 months after it was originally handed down.
- It is also important to ensure that:
- the original court had the requisite jurisdiction to adjudicate on the matter;
- the judgment debtor was properly served in the substantive suit; and
- the foreign judgment does not fall foul of any applicable law or public policy in Nigeria and is capable of being enforced.
- A potential applicant should be cautious of how it submits its application to court. While the Foreign Judgments (Reciprocal Enforcement) Act provides for this be made by application to court, the Reciprocal Enforcement of Judgment Ordinance provides for this be made by way of petition.
Further caution is required in light of the recent decision in Heyden Petroleum Ltd v Planet Maritime (2018) Lpelr-45553(Ca), in which the Nigerian Court of Appeal held that an application seeking to set aside a recognised foreign judgment shall be by way of petition, as provided by Section 6 of the Reciprocal Enforcement of Judgments Ordinance, and not by motion on notice. The proper order to make where this is not adhered to is an order to strike out the application, and not a dismissal.
Also, in Andrew Mark Macaulay v Raiffeisen Zentral Bank Osterreich Akiengesell Schaft (Rzb) of Austria (2009) NWLR (Pt 1149), the Supreme Court held that both existing federal laws on foreign judgment are relevant and co-exist independently of each other, and that the Foreign Judgments (Reciprocal Enforcement) Act did not repeal the Reciprocal Enforcement of Judgments Ordinance.
There is thus a need to streamline these federal laws, which include both similar and different stipulations on matters which could significantly affect any such application.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.