NIGERIA Law and Practice Contributed by: Adeyinka Aderemi, Chinasa Unaegbunam, Omono Blessing Omaghomi and Ibukun Enigbokan, Streamsowers & Köhn
In Macaulay v RZB , Austria (2003) 18 NWLR (Pt. 852) 282, the Supreme Court of Nigeria held that the Ordinance still applies to the United Kingdom and to dominions to which it was extended by proclamation under Section 5 of the Ordinance before the coming into force of the 2004 Act, until the Minister makes an order under Section 3 of the 2004 Act extending the Act’s application to the United Kingdom or other dominions to which the Ordinance earlier applied. Furthermore, the 2004 Act allows the registration of foreign judgments prior to the commencement of an order of the Minister extending the applicability of the 2004 Act to a country, within 12 months from the date of the judgment or within any longer period permitted by a superior court in Nigeria. The Minister is yet to make an order of extension to other countries outside of the Commonwealth as pro - vided under the 2004 Act. Thus, the current position under both the Ordinance and the 2004 Act is that a foreign judgment is registrable within 12 months of the date of judgment subject to any extension by a superior court of Nigeria. 3.2 Variations in Approach to Enforcement of Foreign Judgments In Nigeria, the approach to the enforcement of foreign judgments does not vary by the type of judgment. By the provision of the 2004 Act and the Ordinance, the approach is the same: every foreign judgment must first be registered in Nigeria before it can be enforced in Nigeria. It is important to state that the registration should be done in the court that has the jurisdiction to entertain the subject matter of the judgment. There - fore, it should be registered in the State High Court, the Federal High Court or the High Court of the Fed - eral Capital Territory in Nigeria as applicable. 3.3 Categories of Foreign Judgments Not Enforced The categories of judgment that will not be registered in Nigeria are stated in the Ordinance and the 2004 Act.
Under the Ordinance, a foreign judgment is not enforceable if: • the original court acted without jurisdiction; • the judgment debtor was not subject to the juris - diction of the original court – ie, the judgment debtor did not reside nor carry on business within the jurisdiction of the original court and did not submit to that court’s jurisdiction; • notwithstanding the judgment debtor’s residence or business within the court’s jurisdiction, the judg - ment debtor was not served with the court process and did not appear in the proceedings; • the judgment was obtained by fraud; • there is an appeal pending on the judgment, or the judgment debtor satisfies the court that it intends to appeal against the judgment; or • the judgment was in respect of a cause of action that for reasons of public policy could not have been entertained by the registering court. Under the 2004 Act, a foreign judgment is not enforce - able if: • it is an interim or an interlocutory order; • it is obtained from an inferior court in the foreign country; • it is not in respect of a monetary sum or, where in respect of a monetary sum, the sum is payable in respect of taxes, or other charges of a similar nature; or • at the date of the application for registration and enforcement, it had been wholly satisfied or could not have been enforced by execution in the country of the original court. 3.4 Process of Enforcing Foreign Judgments To register a foreign judgment in Nigeria, the judgment creditor files a motion ex parte (an application without notice to the other party, thus, the judgment debtor may not be served) seeking leave of the court (the State High Court or Federal High Court) to register the judgment. The application could also be by a motion on notice. Where the application is made ex parte, the judge has the discretion to direct that the judgment debtor be put on notice.
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