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A Comparative Analysis Of The English And Nigerian Regime On Registration Of Foreign Judgement
As a former colony of England, the legislation for recognition of foreign judgment in Nigeria is modeled after that of England. Nigeria’s Reciprocal Enforcement of Foreign Judgment Ordinance, 1958 (“the Nigerian Ordinance”) provides for registration of judgments of only commonwealth countries.
After colonialism, the Nigerian legislature amended some provisions of the Nigerian Ordinance to meet local circumstances. To measure the level of progress made, it is important to compare the legal regime for registration of foreign judgment in both English and Nigerian jurisdictions to ascertain the extent to which the English legislation remain the fulcrum of the Nigeria legislation.
In England, judgment from European countries may be registered in England under the Brussels Regulation 44/2001. But this may no longer be the case in light of England’s recent withdrawal from the European Union. Foreign judgment of commonwealth countries may be registered in England under the Administration of Justice Act, 1920 and the Foreign Judgments (Reciprocal) Enforcement Act, 1933 (“the English Act”). The Civil Judgment and Jurisdiction Act, 1982 provides for registration of judgments from jurisdictions within the United Kingdom. On the other hand, the Nigerian Ordinance though a colonial legislation, is still in operation since the Minister of Justice has not promulgated an Order extending reciprocity treatment of judgments to superior courts of foreign countries as provided under the Foreign Judgment (Reciprocal Enforcement) Act, 1990 (“the Nigerian Act”). The consequence of this is that it is only judgments of commonwealth countries as provided in the Nigerian Ordinance that are registrable in Nigeria.
Furthermore, the time for registration of a foreign judgment under the English Act is 6years after the date of judgment while the time to register a foreign judgment under the Nigerian Ordinance is 12 months after the date of judgment. The 6 years period for registration of a foreign judgment under the Nigeria Act is yet to come into effect. It is without doubt that the provision of time within which to register foreign judgment under the English Act is more in tune with modern realties. This is because it may be difficult to obtain the necessary documents from the original court and conclude logistics for registration of a judgment in a foreign jurisdiction within 12 months as provided in the Nigerian ordinance.
In both English and Nigerian jurisdiction, the Court would refuse to register judgments on taxes, charges of a like nature, fine or penalty. This means both jurisdictions only recognize and register monetary judgments. The essence of reciprocity of judgment is for countries to respect and validate judgments from other countries. Hence, restricting reciprocity of judgment to only monetary judgments denies States and other constituted authorities the power to recover taxes and fines due to them across borders.
The mode of commencement of the registration process under the Nigerian Ordinance and the English Act is an application made exparte. This means the judgment debtor will only be put on notice of the foreign judgment after its registration. Though the judgment debtor may not be prejudice by the registration of a judgment against him behind him because he has a right to apply for it to be set aside, fair hearing principles demands that he be informed of the registration proceedings.
The conditions which the judgment creditor must satisfy before the court can register the foreign judgment in both the Nigerian Ordinance and the English Act include; the judgment must be final and conclusive, the original must have had jurisdiction to determine the case, the judgment debtor received the processes of the original court and had sufficient time to prepare his defence, the judgment is not against public policy, the interest in the judgment is vested in the judgment creditor. In both jurisdictions, the conditions for registration of the foreign judgment are also the conditions to set it aside.
Both the provisions of the Nigerian Act and the English Act provides that the judgment creditor is entitled to interest on the judgment sum, reasonable registration expenses, payment of judgment sum in local currency on the basis of the prevailing rate on the date of judgment, registration of the whole or part of the judgment sum. A foreign judgment creditor in Nigeria may be entitled to these claims under the general civil procedure rules. This is because Part 1 of the Nigerian Act which provides for these claims is still dormant.
In conclusion, though the Nigerian legislation on registration of foreign judgment is similar to the English legislation in ‘soul’, there is need for life to be given to the Nigerian Act to bring the period within which to register a foreign judgment in Nigeria to be the same with that of the English Act. Nigeria must as a matter of urgency enter into bilateral treaties with most of its trade partners in Asia and Europe for reciprocal treatment of judgments. This will promote greater business relations between Nigeria and those countries. There is also need for multilateral treaties on recognition of judgments amongst ECOWAS and AU member States to foster economic growth and development within the West African sub region and the African continent.