NIGERIA Trends and Developments Contributed by: Ibukun Enigbokan, Yussuf Akinola Oyebanjo, Temilade Oluwaseun Adepate and Hafeezah Salau, Streamsowers & Köhn
Reciprocity under the Ordinance The Ordinance provides for the registration of judg - ments of superior courts of England, Ireland and Scot - land whilst the Governor-General was vested with the powers to, by Proclamation, extend the application of the Ordinance to judgments of “any part of Her Majesty’s dominions outside the United Kingdom” (being Commonwealth countries). The Proclamation was conditional upon the Governor-General being satisfied that reciprocal provisions have been made by the legislature of the foreign country (Section 5 (1) of the Ordinance). Reciprocity under Part 1 of the Act The Act retains the reciprocity requirement in the same spirit as the Ordinance. By the provisions of Section 2 (c) under Part I of the Act, a foreign judgment is registrable by a superior Nigerian court if the Minister of Justice of Nigeria (the “Minister”) makes an order extending the application of the Act to the foreign country where the judgment was given. By Section 3 (1) (a) of the Act, the Minister’s extension of the appli - cation of Part I of the Act to a foreign country is con - tingent on the Minister’s satisfaction that substantial reciprocity of treatment will be assured in such foreign country with respect to the enforcement of judgments of the Nigerian courts. For registrations of foreign judgments under the Minis - ter’s order, Section 4 (1) of the Act prescribes a period of six years after the date of the judgment. In the absence of an order by the Minister, Section 10 of the Act allows registration of a foreign judgment within 12 months of the date of the foreign judgment or as extended by a superior Nigerian court. Reciprocity under Part II of the Act Section 12 (2) of the Act restricts a Nigerian court from entertaining proceedings for the recovery of any sum alleged to be payable under a foreign judgment where the foreign country’s treatment in respect of recognition and enforcement of Nigerian judgments is substantially less favourable than that accorded by the Nigerian courts to the judgments of the superior courts of the foreign country. Further, the Minister is empowered to make an order to decline proceedings
for judgments of such foreign country or to vary or revoke such order. It is, therefore, difficult, by law, for Nigerian courts to preside over proceedings concerning judgments of countries whose superior courts do not recognise and enforce judgments of Nigerian courts. This signifies that the principle of reciprocity is retained in cases where an action is being commenced at common law to enforce a foreign judgment, with the foreign judg - ment as the cause of action. The actual state of the reciprocity requirement for the enforcement of foreign judgment by Nigerian courts As shown above, Nigeria has elaborate provisions for the application of reciprocity by its courts in the recognition or registration and enforcement of foreign judgments. However, the reciprocity requirement, historically fundamental to Nigeria’s jurisprudence on registration and enforcement of foreign judgment, appears to have been abandoned despite the provi - sions. Reciprocity is currently not operational by the Nigerian courts for many reasons traceable to the Act. Firstly, to date, the Minister has not made an order under the powers vested in him to extend the applica - tion of Part I of the Act to countries that offer reciproc - ity to judgments of the Nigerian courts. Without an order of the Minister validly made under the Act, the registration and enforcement of foreign judgments in Nigeria are governed by the Ordinance and/or Section 10 of the Act (which has no reciprocity requirement). The Ordinance, as stated earlier, applies to instances where the judgments are judgments of courts in Eng - land, Ireland, Scotland, and Commonwealth countries as extended by the Proclamation pursuant to the Ordi - nance. Section 10 of the Act is applicable to foreign judgments in all other instances. Secondly, in cases where fresh actions are com - menced at common law for enforcing foreign judg - ments, the Minister is yet to identify and make orders regarding non-reciprocating countries under Section 12, Part II of the Act. Thirdly, without the application of reciprocity and the Minister’s order thereto, there cannot be the applica -
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