Tiwalade Aderoju
Olympus Solicitors and Advocates
Lagos, Nigeria.
tiwaade@ymail.com
1. Basic criteria used by the Nigerian Courts in allowing enforcement of foreign judgements
The primary legal and regulatory framework in Nigeria that governs the enforcement of foreign judgements are the:
– The Reciprocal Enforcement of Foreign Judgments Ordinance, 1922. This is contained in Cap. 175, Laws of the Federation of Nigeria and Lagos, 1958 (“the Ordinance”):
– The Foreign Judgments (Reciprocal Enforcement) Act Cap. F35, Laws of the Federation of Nigeria, 2004 (“the Act”)
– The Civil Procedure of the various High Courts.
It is pertinent to note at this point that before the Nigerian Courts will enforce a foreign judgement, such a judgement must be registered in compliance with the Applicable laws. The Act sets out certain criteria before a foreign judgement can be registered and they include:
i. Jurisdiction: The foreign court that rendered the judgement must have had both subject matter and entity jurisdiction. If the court lacked jurisdiction or acted outside of its jurisdiction in delivering the judgement, the judgement
will not be enforceable.
ii. Final and conclusive: The foreign judgement must be final and conclusive in nature, leaving no room for further appeal or modification in the country of origin. It must be a judgement given by a Superior Court in that country and cannot be a judgement given in its appellate jurisdiction. See Section 3(2) of the Act.
iii. Reciprocating country: As mentioned earlier, the judgement must originate from a country recognized as reciprocating by Nigeria. This ensures a balanced and fair approach to enforcement.
iv. No fraud or public policy violation: Nigerian courts will not enforce foreign judgments if they were obtained fraudulently or are contrary to Nigerian public policy.
v. Regularly obtained: The foreign judgement must have been obtained in compliance with the procedural laws of the foreign jurisdiction. For instance, the judgement creditor must satisfy the court that the judgement debtor had been duly served with the court processes leading up to the judgement, and that the judgement debtor had voluntarily elected to appear and be submitted to the jurisdiction of the foreign court.
vi. No conflicting judgments: If there is already a conflicting judgement between the same parties on the same subject matter in Nigeria, the foreign judgement will not be enforced.
vii. Monetary Claims: The foreign judgement must be one that involves monetary compensation. The Act provides that it must involve a “payable sum of money, not being a sum payable in respect of taxes or other charges of a like nature in respect of a fine or other penalty;” [Section 3(2) of the Act]. It is therefore important to point out that Section 3(3) of the Act, prohibits the registration and enforcement of judgements of a non-monetary nature. This provision is applicable to both civil proceedings, which encompasses awards in arbitration proceedings; as well as judgments rendered in criminal cases involving the payment of monetary compensation
or damages to an aggrieved party. This is stipulated in Section 2 of the Act.
It is important to note that being a Common Law country, such a judgement may also be enforced at common law by instituting a fresh suit under the undefended list. This procedure allows the judgement creditor to apply for a summary judgement attaching the foreign judgement as an exhibit amongst other documents; as proof that the judgement debtor does not have a defence against the amount owed. If the application is successful, the foreign judgement can be enforced by the Court’s Sheriff.
- Other considerations that may apply to the enforcement of a foreign judgement against a State in Nigeria. It is pertinent to note the following:
- The Foreign Judgments (Reciprocal Enforcement) Act mandates that a judgement debtor be given adequate notice of
the proceedings of the original action in sufficient time to enable him to appear and defend the proceedings. Sections6(1)(a)(iii) of the Act makes it a ground for the setting aside of a registered foreign judgement.
ii. That upon filing the foreign enforcement registration application, a notice of the application is served on the judgement debtor, granting such person(s) the opportunity to contest the registration. If objections arise, a court hearing is scheduled to determine the validity of the objections and the foreign judgement’s eligibility for registration. Following a satisfactory assessment, the court issues a registration order, endowing the foreign judgement with the status of a Nigerian court judgement. With this registered judgement, the party seeking enforcement can proceed with enforcement proceedings, adhering to local procedures while utilising legal avenues to enforce the judgement’s provisions effectively.
iii. That the procedure for enforcing foreign judgments in Nigeria combines rigorous adherence to statutory rules, the opportunity for parties to contest the process, and the eventual recognition of the foreign judgement within the Nigerian legal system.
3. Special considerations that apply to the defendant/debtor in enforcement proceedings is a state.
The doctrine of sovereign immunity plays a pivotal role in the context of enforcing foreign judgments in Nigeria. Sovereign immunity is a fundamental principle of international law. It asserts that sovereign states are immune from jurisdiction and
legal actions of foreign courts. This doctrine has significant implications when attempting to enforce foreign judgements against states in Nigeria.
Nigeria, like many other nations, adheres to the doctrine of state immunity.
1 However, this immunity is not absolute. One of such significant exceptions is the commercial activities exception. This exception implies that a state becomes subject to legal action in foreign courts if the dispute arises from its commercial
activities. This implies that if a state engages in commercial ventures or transactions, it therefore consents to the waiver of its sovereign immunity with respect to those specific activities. Unfortunately, the Nigerian courts are yet to take a unified stance on the scope of the restrictive immunity in Nigeria. In Ehiosu Order v. The High Commissioner for Malaysia & Anor 2 the trial judge at the Lagos High Court ruled that restrictive immunity was unknown to Nigerian law by virtue of the Diplomatic Immunities and Privileges Act of 1962; regardless of whether or not the dispute in question boaders on a commercial or contractual business matter. By this ruling, it would appear that the concept of restrictive immunity is of no consequence under Nigerian laws.
On the contrary, in the Nigerian case of African Reinsurance Corporation v. AIM Consult Limited, 3 the Nigerian Court of Appeal found that sovereign immunity cannot be allowed to be a sufficient defence in matters of trade, commerce or ordinary business activities. The Court ruled that it would be inequitable to set the appellant free from being called to answer obligations it freely assumed under a contract. Also, in an unreported case before the High Court of the Federal Capital Territory in Abuja, Nigeria, a distinct application of the restrictive immunity principle emerged. This scenario unfolded within the legal context of S.C Montel Nig Ltd.
vs. International Organisation for Migration (IOM) & Anor 4 . In this particular case, the Court rendered a judgement that diverged from prior cases. Notably, the Court issued a Garnishee Order absolute, effectuating the attachment of funds owed by IOM in favour of the Judgment Creditor.
1 See the Diplomatic Immunities and Privileges Act 1962
2 (2005) 4 NWLR 760
3 (2004) 11 NWLR 223
4 CV/1623/2019 (FCT High Court, Abuja)
Failure of the judgement debtor to raise the defence does not amount to a waiver of the defence of sovereign immunity. Reason being that the Nigerian courts have the power to raise the immunity for a judgement debtor suo motu, and thereafter give the parties an opportunity to address the court on the issue raised. This is in tandem with the principle of fair hearing as practised by the Nigerian courts. See the case of Adegoke v. Adibi. 5
4. Exceptions that may apply where the claim results from improper actions of the defendant state In Nigeria, sovereign immunity is addressed by the principle of “Crown Immunity” which is inherited from the English common law. While Nigeria has evolved its
legal framework and jurisprudence, the concept of sovereign immunity still applies in certain circumstances. Sovereign immunity is generally concerned with the immunity of states from being sued in foreign courts.
4.1. Exceptions to Sovereign Immunity under Nigerian Law:
a. Statutory Waivers: Nigerian law provides for instances where the government consents to being sued or waives its immunity. For example, the Public Officers Protection Act and the Public Complaints Commission Act waive immunity for certain government actions.
b. Commercial Activities: Under Nigerian laws, States can be sued in cases involving its commercial activities. If the government is engaged in a business- like activity, it may be subject to lawsuits related to that specific activity. See, A.G. Federation v. Alhaji Alhassan Dantata. 6 In this case, the Nigerian Supreme Court reaffirmed the principle of Crown Immunity but recognized that the government can waive its immunity in cases where it is involved in commercial activities.
c. Actions Against Government Officials: Individuals can sue government officials for actions taken in their personal capacities, even if the officials are acting in their official capacities. This is particularly relevant when officials are alleged to have violated an individual’s rights.
5 1992 5 NWLR Pt. 242 410 at 420
6 (2003) 12 NWLR (Pt.833) 475
- Human Rights Violations: The Nigerian Constitution and international human rights treaties to which Nigeria is a party provide avenues for individuals to seek redress against the government for human rights violations. See the case of Ken Saro-Wiwa v. Nigeria 7 : This case involved human rights violations against the environmental activist Ken Saro-Wiwa and others. The Nigerian Court of Appeal held that the Nigerian government could be held liable for human rights violations, emphasizing that such violations are exceptions to sovereign immunity.
4.2. Criteria for applicability of exceptions to Sovereign Immunity The criteria are set out in the Foreign Judgment (Reciprocal Enforcement) Act as explained above, example of such is the commercial activities exception.
4.3. Whether War of aggression/Breach of international law are considered to be exceptions to Sovereign Immunity.
War of aggression and breach of international law are complex topics in the context of sovereign immunity and exceptions.
A war of aggression refers to the use of armed forces by a state against the sovereignty, territorial integrity, or political independence of another state; when the use of such forces is not justified by self-defence or authorised by the United
Nations Security Council. This means that when a state engages in actions that clearly violates established norms of international law, it may not be able to invoke sovereign immunity as a defence in legal proceedings. In terms of applicability of sovereign immunity, acts of aggression that violate international humanitarian laws, and the human rights as
enshrined in the Nigerian constitution could influence the application of exceptions to sovereign immunity. See the case of Attorney General, Ogun State v. Aberuagba 8 : The Nigerian Supreme Court ruled that when a government’s action is
in contravention of a person’s constitutional rights, the government cannot rely on sovereign immunity as a defence.
7 (2005) AHRLR 212 (NgCA 2005)
8 (2002) 8 NWLR (Pt. 719) 349
Unfortunately, the Nigerian legal regime on the enforcement of foreign judgments is silent on the applicability of sovereign immunity in the light of acts of wars of aggression or any breach of international law’s provisions. However, international legal instruments, which Nigeria have either ratified or is a contracting party to; such as the Genocide Convention and the Rome Statute of the International Criminal Court, establish mechanisms for holding individuals and states accountable for grave violations of international law. While these instruments primarily address individual criminal responsibility, they also contribute to the idea that states engaging in such actions should not be immune from legalconsequences.
4.4. Which Party bears the burden of proof in the applicability of the exceptions. The rules of civil procedural evidence are built on the Latin maxim, “affirmanti non neganti incumbit probatio – the burden of proof lies upon he who asserts and not upon he who denies. It therefore goes without saying that the judgement creditor seeking to rely on the exceptions in an enforcement proceeding, has the
burden of proving the applicability of the exception.
- The due process standards and exceptions that may apply in proceedings for enforcement of judgement against a State?
The only due process standards set by the Foreign Judgements (Reciprocal Enforcement) Act is the adequate notice standard set out by Section 6(1)(a)(iii) of the Act. The foreign court is expected to ensure that the judgement debtor is given adequate notice to enable it to adequately enter a defence in the original suit. The Nigerian Courts have the discretion as to whether to give deference to the law of courts of the jurisdiction in which the judgement was issued. However, the Act provides that the foreign court judgement must emanate from a Superior court in the foreign jurisdiction. The judgement debtor is charged with the burden of proving that due process has been complied with at the foreign courts, which is in compliance with section 3 of
the Act. The Nigerians courts however, have the power to review the foreign judgement for compliance with applicable law and public policy. It can either do this suo motu or upon application by the judgement debtor.
5.1 The standard the courts will apply in the enforcement proceedings when assessing whether the service requirements have been met in the original proceedings against a state. The Act is silent on the mode or acceptable means of service to be issued on the
judgement debtor, in the original proceedings. However, a careful read of the provisions will show that the Act places emphasis on the sufficiency of time for the judgement debtor to enter a defence in the original proceeding. Under the Nigerian laws, service by electronic means falls under the category of substituted service, which can only be executed with the leave of the court. It is therefore safe to conclude that there is no exhaustive list of acceptable means of service, provided that it serves the purpose of sufficient service of the enforcement proceeding.
5.2. Exceptions that may apply where conventional forms of service against a State are impossible, e.g., due to absence of diplomatic relations. Where conventional forms of service are impossible due to factors such as absence of diplomatic relations. The judgement creditor may seek the leave of the court to serve the enforcement processes. Under the Abuja (FCT) High Court Civil Procedure Rules 2018, Order 7 Rule 11(2) substituted service may be by way of emails or any other electronic means, or even by courier services or any other means convenient to the court. In an instance where diplomatic relations are absent, the court has the discretion to permit any means of substituted service possible.
5.3. The Standards applicable in the enforcement proceedings when accessing whether the right to representation requirement have been met in the original proceedings against a state.
There are no further standards in relation to whether the requirements have been met in the original proceedings state. The only criteria provided for is that the foreign judgement was not obtained by fraud.
5.4. Exceptions that may apply where the defendant state cannot find legal representation, or chooses not to be represented.
Section 8(3) of the Legal Aid Act, provides for the creation and provision of free legal services to indigent persons who cannot afford legal representations provided that such person’s income does not exceed minimum wage. Additionally, where a
defendant wilfully refuses legal representation, he has the option to represent himself. Apart from these the legal regime in Nigeria does not provide for any exceptions for a defendant state that is unable to get legal representation or chooses not to be represented in an enforcement proceeding.
- Enforcement against assets of State-owned entities
A significant challenge often encountered by judgment creditors seeking to enforce judgments against government entities and agencies in Nigeria pertains to the requirement outlined in the SCPA (Sheriffs and Civil Process Act 2004). This requirement dictates that prior to pursuing enforcement through garnishee proceedings, the consent of either the Attorney General of the Federation or the Attorney General of a specific State, depending on the case, must be obtained. Section 84 of the SCPA specifically states that in cases where the funds subject to attachment through garnishee proceedings are in the possession or control of a public officer in their official capacity or are considered “in custodia legis” (under legal custody), an order nisi (an interim order) cannot be granted unless prior consent for such attachment is secured from the relevant authority. In this context, the term “appropriate officer” refers to either the Attorney General of the Federation or the Attorney General of the relevant State, as applicable.
It crucial to note that, it is usually very difficult to receive this consent from the relevant Attorney General.
