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.
2.0 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….”
3.0 Section 3 (2) of the REJO provides thus:
No judgment shall be ordered to be registered under this Ordinance if –
(a) 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
(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
(d) 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
(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.
4.0 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.”
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.
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?’
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.
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.
By Bolarinwa Awujoola.