Enforcement of Foreign Judgments in Nigeria

Vol. 10 No. 1 Journal of Private International Law 129

DOI:10.5235/17441048.10.1.129Enforcement of Foreign Judgments in NigeriaDOI:10.5235/17441048.10.1.129

ENFORCEMENT OF FOREIGN JUDGMENTS IN NIGERIA: STATUTORY DUALISM AND

DISHARMONY OF LAWS

ADEWALE A. OLAWOYIN*

A. INTRODUCTION

Developing countries have opened, and continue to make giant strides in open-ing further, their economies to encourage and secure the infl ow of foreign direct investment from developed economies. Many African countries have already done much to create a more business-friendly environment to promote local investment as well as foreign direct investment, and many have made impressive progress towards political and economic stability. In their efforts to revive economic activity they have reduced bureaucratic obstacles and inter-ventions in their economies, embarked on privatisation programmes and are putting in place proactive investment measures.1

Businesses from these developing economies in Africa are also rapidly engaging in a myriad of international transactions spanning from sale of goods through to complex and strategic business transactions locally and abroad. Resolution of potential disputes remains a prime consideration for entrepre-neurs in the conduct of the risk profi le analysis of any transaction. The mode and forum of dispute resolution are signifi cant factors in the decision-mak-ing process. Despite the signifi cant strides made by developing countries in changing arbitration law and practice2 and introducing adjectival laws that are consistent with acceptable international standards,3 foreigners engaging in com-

* *LLB (Hons) Ife; LLM (London); PhD (Bristol), Senior Lecturer, University of Lagos, Akoka, Lagos. I am very grateful for the very helpful and insightful comments of the anonymous reviewer on an earlier draft of this article.

1 See the Preface to Foreign Direct Investment in Africa: Performance and Potential, United Nations Con-ference on Trade and Development (1999) Publication No UNCTAD/ITE/IIT/Misc 15.

2 See AA Olawoyin, “Charting New Waters with Familiar Landmarks: The Changing Face of Arbitration Law and Practice in Nigeria” (2009) 26 Journal of International Arbitration 373 for a discourse on the proposed Arbitration and Conciliation Bill in Nigeria.

3 In Nigeria, for example, most of the component states of the Federation of Nigeria have over-hauled the applicable civil procedure rules in the State High Courts by introducing measures such as case management, pre-trial conferencing, fast tracking and front loading of court pro-cesses. See eg the High Court of Lagos State (Civil Procedure) Rules 2012. In some states, court-assisted meditation through the Multi-court Door was introduced. See the Lagos Multi-Door Courthouse Law No 21 of 2007.

130 Enforcement of Foreign Judgments in Nigeria April 2014

mercial intercourse with business counterparts from developing countries still exhibit a strong reluctance in litigating or arbitrating their disputes in fora located in developing countries.4 Most international sale contracts, joint venture or investment agreements, and indeed, in some cases the acquisition of sub-stantial local assets especially through privatisation, contain foreign jurisdiction and/or arbitration clauses.5

The study and development of private international law in the region has stagnated because Africa has largely been excluded from, and not actively engaged with, many of the contexts in which the subject’s development has been promoted in other jurisdictions.6 This sentiment still rings true in Nigeria at the present time. Conceptually, private international law is anchored on the tripod of choice of law, choice of jurisdiction and enforcement of foreign judg-ments. The principle of laissez-faire enables parties freely to choose the law that they wish to govern their contractual relationships and the fora wherein which their grievances are to be resolved. However, the enforcement of the resultant judgment is not within the control of the parties but subject to the legal pre-cepts of the country in which enforcement is being sought. The judgment of one state’s court has no force of law by itself in another state. Consequently, rules have been developed in the realm of private international law permitting judgments of one country to be recognised and enforced in other countries.

Nigeria is a member of the Commonwealth of Nations7 and much of its statutes and judge-made law are still, albeit indirectly, tied to the apron strings of the common law and statutes of England.8 This infl uence also pervades the regime for the enforcement of foreign judgments. The fi rst legislative incursion to have legal effect in this area in Nigeria was the enactment of

4 See CN Fondufe and S Mansuri, “Doing Deals in Africa – Refl ections on What Is Different and What Is Not” (2013) 14 Business Law International 163, 176–82 on the risks and challenges in Africa transactions and what transaction lawyers need to know on issues ranging from com-petence and exposure of the judiciary, regime change and local content legislation.

5 It is not unusual to fi nd agreements, especially those between Nigerian entities and foreigners, that may be governed by Nigerian law but have foreign jurisdiction or arbitration clauses stip-ulating England or some other country as the forum for resolution of any disputes or the lex arbitiri.

6 RF Oppong, “Private International Law in Africa: The Past, Present and the Future” (2007) 55 American Journal of Comparative Law 677, 678.

7 See www.royal.gov.uk/monarchandcommonwealth/commonwealthmembers/membersofthe com monwealth.aspx (accessed 7 May 2013).

8 See s 32 of the Interpretation Act Cap I23 Laws of the Federation of Nigeria 2010 which pro-vides that: “[S]ubject to the provisions of this section and except in so far as other provisions is made by any Federal Law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st day of January 1900, shall so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria.” See also A Park, The Sources of Nigerian Law (Sweet & Max-well, 1963), 1–2; CO Okonkwo (ed), Introduction to Nigerian Law (Sweet & Maxwell, 1980), 1.


the Reciprocal Enforcement of Judgments Ordinance 1922.9 The 1922 Ordi-nance, which as we shall see still has the force of law in Nigeria,10 was a derivative of the Administration of Justice Act 1920 in England.11 Given the colonial ties between Nigeria and the United Kingdom at the time of enact-ment, the structure of the 1922 Ordinance naturally envisages only judgments in respect of legal relationships between citizens of Nigeria, on the one hand, and the United Kingdom and some other specifi cally mentioned dominions and countries of the Commonwealth, on the other. The 1920 scheme was devised, and remains almost exclusively, for use between jurisdictions within the Commonwealth or, as many states have it, in ‘Her Majesty’s Dominions’.12 The 1933 scheme,13 which is replicated in the Foreign Judgments (Reciprocal Enforcement) Act No 31 of 1960 in Nigeria, was designed primarily for non-Commonwealth states, with power to apply it to Her Majesty’s dominions or, in some statutes, to the Commonwealth.14 It was also intended to represent the common law, but with some conscious departures, and intended eventually to supersede the 1920 scheme.15

Today, the world has truly become a global village wherein Nigerian businesses regularly enter into commercial relationships with persons and cor-porations resident or present in countries in Asia, North America and the European Union. Judgments obtained in any of those regions often require enforcement in Nigeria.16 Without the benefi t of coming within the purview of the statutory enforcement regime, which clearly sets out defi ned limits of the extent to which the courts of the enforcing country may interfere with judgments from a foreign forum, such judgments can only be “enforced” by commencing a new action based on the foreign judgment.17 Such action may,

9 Cap 175 Laws of the Federation of Nigeria and Lagos 1958 (hereinafter referred to as “the 1922 Ordinance”).

10 See discussion infra, Section II on Applicable Laws.11 1920 c 81 (Regnal 10 and 11 Geo 2). In fact, the fi rst enactment in the statute books in Nigeria

was the Foreign Judgments (Reciprocal Enforcement) Ordinance Cap 73 Laws of the Federa-tion of Nigeria 1948. S 9 of Cap 73 of the 1948 Laws provided that Part I of that Ordinance shall apply to her Majesty’s Dominion outside Nigeria and to judgments obtained in courts of the said Dominions as it applies to foreign countries and to judgments obtained in the courts of foreign countries, and the Ordinance shall cease to have effect except in relation to those parts of the said Dominion to which it extends at the date of the commencement of the said Cap 73. However, no date was fi xed for the coming into operation of that Ordinance and it was omitted from the 1958 edition. See Cap 175 at p 3181.

12 KW Patchett, Recognition of Commercial Judgments and Awards in the Commonwealth (Butterworths, 1984), 91.

13 In line with the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK).14 Patchett, supra n 12, 91.15 Halsbury’s Laws of Singapore, vol 6(2) 2013 Reissue, “Confl ict of Laws” 145, para [75.151].16 See eg Teleglobe America Inc v 21st Century Technologies Limited (2008) 17 NWLR (Pt 1115) 108;

Hypporite v Egharevba (1998) 11 NWLR (Pt 575) 598. Both cases involved US judgments.17 See Lord Collins of Mapesbury (gen ed), Dicey, Morris and Collins on The Confl ict of Laws, vol

I (Sweet & Maxwell, 15th edn, 2012), 668 (hereinafter Dicey, Morris and Collins): “A Judgment Creditor seeking to enforce a foreign judgment in England at common law cannot do so by


in a Nigerian context, be susceptible to challenges on issues of substance that have already been decided by the foreign court and, more importantly, the vagaries of an unknown legal system which may have been originally intended to be avoided by the insertion of a foreign jurisdiction clause in the underlying contract.18 This point, admittedly conjectural, is made for a number reasons. First, there are no case-law authorities in Nigeria on the action at common law in this context.19 However, it appears that foreign judgments, which are outside the purview of the statutory schemes and which ordinarily ought to have been enforced by common law action, have curiously been enforced under the rel-evant statutes.20 Secondly, and perhaps more importantly, even though there are authorities on the applicability of English confl ict-of-law rules in Nigeria, there is evidence of a culture of superfi ciality or oversimplifi cation in applying those principles in Nigeria.21 It is yet to be seen whether there would be a confl ation of a common law action on the judgment and a relitigation of the original cause of action in the case of foreign money judgments. In reality, the line between the two is a very fi ne one. Added to that is also the subtle distinction in the case of foreign non-money judgments where the judgment creditor has to relitigate the cause of action in the absence of a statutory scheme that allows foreign non-monetary judgments to be enforced under the statutory scheme.22

direct execution of the judgment. He must bring an action on the foreign judgment.” See also ‘G Bamodu, “The Enforcement of Foreign Money Judgments in Nigeria: A Case of Unnec-essary Judicial Pragmatism?” (2012) 12(1) Oxford University Commonwealth Journal 1, 3, n 8, who notes that strictly speaking the option of suing on the original cause of action is not a case of enforcing a foreign judgment. See also A Briggs, The Confl ict of Laws (Oxford University Press, 3rd edn, 2012), 164.

18 Cf Bamodu, ibid, 16: “While an action on the foreign judgment as a debt may indeed be less advantageous than an application for registration of the judgment, such an action is not in real-ity unduly onerous. In particular it may be possible to seek summary judgment on the debt as a liquidated sum, for example under the faster track undefended list procedure involving a plead-ing that the defendant has no realistic defence to the cause of action.” While the above view is correct in theory, in practice it is hardly that straightforward because a recalcitrant defendant is bound to raise the most spurious factual allegations to ensure that the matter proceeds to trial at the very least bearing in mind that the minimal threshold required is “a good defence on the merits or such facts as may be deemed to entitle the defendant to defend the action generally” or that “there is a substantial question of law or fact which ought to be tried.” See Macaulay v NAL Merchant Bank Limited (1990) 4 NWLR (Pt 144) 283; Nishizawa Ltd v Jethwani (1984) 12 SC 234. Allegations of breach of natural justice or public policy considerations would readily meet that minimum threshold.

19 See HA Olaniyan, “The Commonwealth Model and Conundrum in the Enforcement of For-eign Judgment Regime in Nigeria” (2014) 40(1) Commonwealth Law Bulletin 76.

20 See the cases cited in n 16 supra.21 See eg ‘G Bamodu, “In Personam Jurisdiction: An Overlooked Concept in Recent Nigerian Juris-

prudence” (2012) 7 Journal of Private International Law 273 for a review of the misconception of in personam jurisdiction in Nigerian law. On a similar point, see also AO Yekini, “Compara-tive Choice of Jurisdiction Rules in Cases Having a Foreign Element: Are there Lessons for Nigerian Courts?” (2013) 39 Commonwealth Law Bulletin 333.

22 See RF Oppong, “Canadian Courts Enforce Foreign Non-Money Judgments” (2007) 70 Modern Law Review 670; Halsbury’s Laws of Singapore, supra n 15, 161, para [75.169].


However, at common law, the orthodoxy is that an enforcing court would refuse to investigate the propriety of the foreign proceedings.23 In some juris-dictions where the common law action, as a residual basis for recognition and enforcement, is in greater use, limited defences have evolved to attenuate the risk of attempting to relitigate the original cause of the action through the back door.24 Nigerian practitioners and courts must be alive to these defences and the proper procedural approach to adopt in dealing with such actions.

This article argues that the law(s) in Nigeria on the enforcement of foreign judgments are ill suited for engendering economic integration through inter-national judicial co-operation in cross-border litigation. The extant statutory regime, as we shall argue, that properly evolved during the industrial colonisa-tion era is evidently unsuited to an era of open borders, regional integration and economic liberalisation. The laws have not kept pace with the changes in Nigeria’s trading and commercial relationships. This state of affairs is bound to stymie the acceleration of economic intercourse and development between Nigeria and many other countries within and outside the Commonwealth. In the process, this article conducts an audit of the current state of perceived dualism of laws in the enforcement of foreign judgments in Nigeria and not only debunks the continuing historical relevance of such dualism but concludes that there is an urgent need for a total overhaul of the relevant laws as a basis for a coherent and properly articulated enforcement regime that recognises the importance of this aspect of law in cross-border trade. It also highlights the fact that the current state of affairs where antedated laws remain applicable does not augur well for the Nigeria 20 20:20 agenda for economic liberalisa-tion and development.25

23 It is not clear whenever the common law action takes root in Nigeria whether the courts will follow the principles espoused in a long line of cases starting with Russell v Smyth (1842) 152 ER 543; Schisby v Westenholz (1870) LR 6 QB155 and Adam v Cape Industries PLC (1990) Ch 433, to the effect that once a judgment creditor had proved the existence of a foreign judgment, a burden then lay on the judgment debtor to show why it should not be executed.

24 In South Africa, for example, a foreign judgment will be enforced if the following require-ments, as affi rmed in the leading case of Jones v Krok 1995(1) SA 677 (A), are met: (a) the foreign court must have had international competence as determined by South African law; (b) the judgment must be fi nal and conclusive and must not have become superannuated; (c) the enforcement of the judgment must not be contrary to South African public policy (which includes the rules of natural justice); (d) the judgment must not have been obtained by fraudu-lent means; (e) the judgment must not involve the enforcement of a penal or revenue law of a foreign state; and (f) enforcement must not be precluded by the Protection of Businesses Act 99 of 1978. See R Wakefi eld, “South Africa” in M Moedritzer and KC Whittaker (contribut-ing eds), Enforcement of Foreign Judgments in 28 Jurisdictions Worldwide 2012 (Law Business Research Ltd, 2011), 108, 109; See also South African Law Reform Commission, Consolidated Legislation Pertaining to International Judicial Cooperation in Civil Matters Report (Project 121) December 2006, 28–29 (hereinafter referred to as “South Africa Report 121”) available at www.justice.gov.za/salrc/reports/r_prj121_2006dec.pdf (accessed 5 January 2014).

25 See The Nigeria Vision 20:2020 Abridged Version Document (12 December 2010) available at www.npc.gov.ng/vault/Abridged_Version_of_Vision2020.pdf (accessed 6 June 2013). The Nigeria Vision 20:2020 (NV20:2020) is Nigeria’s long-term development goal designed to propel the


B. APPLICABLE LAW(S) – DUALISM?

The applicable statutory regime in respect of the enforcement of foreign judg-ments in Nigeria remains uncertain despite numerous judicial pronouncements on the subject. The failure to insert the 1922 Ordinance in the Revised Edition of the Laws of the Federation of Nigeria 1990 lies at the epicentre of the inco-herent state of Nigerian law on this point. The present conventional wisdom is that there are two applicable statutory regimes dealing with the subject but for various reasons these differ from the intention of the original colonial mas-ters who introduced the dual regime to virtually all the colonies before these attained independence. However, only one of the laws remains in the offi cially recognised and authentic compilation of laws in Nigeria.

A couple of important points need to be made early on. First, this oddity is largely traceable to a laxity of the law revision and law reform procedures in Nigeria. The 1922 Ordinance, with subsidiary legislation, was enacted as an ordinance to facilitate the reciprocal enforcement of judgments obtained in Nigeria and in the United Kingdom and other parts of Her Majesty’s Domin-ions and Territories under her Majesty’s protection and can be found in the Laws of Federation of Nigeria and Lagos 1958. In 1960, the Foreign Judg-ments (Reciprocal Enforcements) Act was enacted to make provision for the enforcement in Nigeria of judgments given in foreign countries which accord reciprocal treatment to judgments given in Nigeria, for facilitating the enforce-ment in foreign countries of judgments given in Nigeria, and for other purposes in connection with the aforesaid matters. This law was initially compiled in the Laws of the Federation of Nigeria 1990 as Cap 152, was later compiled as Cap F35 of the Laws of the Federation of Nigeria 2004, and is now Cap F35 of the Laws of the Federation of Nigeria 2010.26

It is, however, instructive to note that the 1960 Act did not expressly repeal the 1922 Ordinance. Indeed, it was never the intention of the lawmakers in 1960 to supplant the 1922 Ordinance with the 1960 Act at the relevant time. On the contrary, and in tune with the developments in England at the time, it was intended to have a dual regime, as was and remains evident in most Commonwealth countries, applicable to Commonwealth and non-Common-

country to the league of the top 20 economies of the world by 2020. As part of the legal framework for implementing the vision it is noted that “[l]egislative actions will be in the areas of amendment to a number of existing laws that are crucial to the actualization of the policy thrusts of the Vision, passage of the pending legislations and enactment of new legislations enabling implementation” (ibid, 28).

26 This Act is a derivative of the English Foreign Judgments (Reciprocal Enforcements) Act 1933, c13 (Regnal 23 and 24) geo 5 which was primarily intended to apply to non-Commonwealth countries. See Cap 152 Laws of the Federation of Nigeria 1990 and Cap F 35 Laws of the Federation of Nigeria 2010 (hereinafter referred to as “the 1960 Act”).


wealth countries, respectively.27 However, the 1922 Ordinance was not included in the Revised Edition of Laws of the Federation of Nigeria 1990 because the Law Revision Committee was under the mistaken impression that it had been repealed by the 1960 Act before the consolidation of laws embarked upon in 1990.28 In the apt words of Ayoola JCA (as he then was) in The Mercantile Group (Europe) AG v Victor Aiyela & Ors:

“In regard to the Reciprocal Enforcement of Judgments Ordinance is [sic] Chap-ter 175 of the 1958 Revised Edition, the Committee noted in the Table that that Act has been repealed by Act No 31 of 1960. It is evident from this that it was because the Committee considered Cap 175 of the 1958 Revised Edition as repealed that it was omitted from the 1990 Revised Edition. The problem that has arisen is that Act No 31 of 1960 had repealed the Foreign Judgment (Reciprocal Enforce-ment) Ordinance (Cap 73 of the 1958 Revised Edition [sic]29) and not the Reciprocal Enforcement of Judgments Ordinance (Cap 175 of the 1958 Revised Edition).”30

The Revised Edition of the Laws of the Federation of Nigeria 1990 was pre-pared by the Law Revision Committee established pursuant to the Revised Edition (Laws of the Federation of Nigeria) Decree No 21 of 1990.31 The Law Revision Committee was empowered to revise the laws of the Federation and compile a revised edition of the various laws of the Federation. Section 2 of the Act provides, inter alia, that the revised edition shall contain “all Federal enactments in force on the appointed day and all subsidiary instruments made thereunder and in force on the appointed day”.

The Attorney General of the Federation was empowered to authorise the omission of certain enactments by order specifying a Schedule of enactments, which it was deemed not to be necessary to include in the revised edition on the grounds that such enactments are obsolete, of a temporary nature, under revision with a view to replacement or of restricted or personal application.32 The 1922 Ordinance was not part of any Schedule pursuant to section 3 of the Decree. The comprehensiveness of the Revised Edition is proclaimed by section 5 which states that “the revised edition when brought into force in accordance with section 6 of this Decree shall be and be taken by all courts and for all purposes whatsoever to be the authentic edition of Federal enact-ments on or before the appointed day”.

27 See Patchett, supra n 12. For a review of the various duality of regimes in the Commonwealth, see Olaniyan, supra n 19.

28 See Index of the Laws of the Federation of Nigeria 1990, “Table of Acts Considered” at p xl where it was noted that Cap 175 was “repealed by 1960 No 31.”

29 This must have been a typographical error as Cap 73 of Laws of the Federation of Nigeria and Lagos 1958 is the Fugitive Criminals Surrender (Federation) Ordinance 1916, which has no connection with the enforcement of judgments. The correct reference is Cap 73 of the Laws of the Federation of Nigeria 1948. See supra n 11.

30 CA/L/348/92 Unreported decision of 1 July 1996, 6.31 See Supplement to Offi cial Gazette Extraordinary no 42, vol. 77, 20 July 1990. 32 S 3.


The second important point is that section 9 of the 1960 Act, on the face of it, recognises the continued legal effect of the 1922 Ordinance. Sub-section (1) provides that:

“This Part of this Act shall apply to any part of the Commonwealth other than Nigeria and to judgments obtained in courts thereof as it applies to foreign coun-tries and to judgments obtained in the courts of foreign countries and the Reciprocal Enforcement of Judgments Ordinance shall cease to have effect except in relation to those parts of her Majesty’s Dominions other than Nigeria to which it extended at the date of commencement of this Act.” [emphasis added]

Section 9(2) then concludes that

“if an order is made under section 3 of this Act extending Part I of this Act to any part of Her Majesty’s Dominions to which the Reciprocal Enforcement of Judgments Ordinance extends as aforesaid, the said Act [the 1922 Ordinance] shall cease to have effect in relation to that Part of Her Majesty’s Dominion, except as regards judgments obtained before the coming into operation of the order and registered in accordance therewith.”

The third point is that for over 50 years, successive Ministers of Justice have failed or neglected to take steps to issue Orders pursuant to the 1960 Act not-withstanding the admonition from the courts in several cases over the years, and the Law Revision Committee has failed on two successive occasions in 2004 and 2010 to reinstate the 1922 Ordinance in the extant Laws of the Fed-eration of Nigeria. In essence, there is the legal anomaly of having an extant law contained in a compilation of laws, which is no longer regarded as authen-tic. The legal consequences of this state of affairs was aptly summed up in the well-considered judgment of Ayoola JCA in Mercantile Group that:

“where the authenticity of an enactment is concerned, once the enactment is included in the Revised Edition one cannot look further than the Revised Edition. Where there is an erroneous omission in the Revised Edition of the totality of an enactment which to all intents and purposes is still in operation, the court, if the question arises, can, if a must, ascertain the authority of that enactment by the best means available to it. In this instance, the best means available is to refer to the 1958 Revised laws for vouching of the text of the Reciprocal Enforcement of Judgments Ordinance and to amending statutes if any. In my judgment having regard to the circumstance in which that Ordinance has been omitted from the Revised edition, the purpose which the Revised edition itself was supposed to serve as conclusive evidence of the authenticity of each enactment contained therein and the reference [sic] and implied saving of the Ordinance by Cap 152, the conclusion that is rea-sonable is that that Ordinance had not ceased to exist and on that ground alone it is the applicable statute.”33

33 Supra n 29. It is rather surprising that this important decision remains unreported 17 years after it was handed down despite being cited in some Supreme Court judgments. See Witt & Busch Limited v Dale Power Systems PLC (Formerly Dale Electric of Great Britain Limited) (2007) 17 NWLR


Following this fi rst incursion into the confusion surrounding the applicable law, there have been a number of reported decisions on the applicable laws from the appellate courts in Nigeria.34 Whilst there is a clear recognition of the inadvertence of omitting the 1922 Ordinance and its continued applicability, the cases also appear to suggest, albeit wrongly, that both the 1922 Ordinance and the 1960 Act are applicable. Indeed, the cases were to show that there are internal inconsistencies in most of the decisions emanating from the courts on this point.

Despite the fact that both legislations exist in the statute books in Nigeria, in reality the only applicable law of legal effect in relation to enforcement of foreign judgments in Nigeria at present is the 1922 Ordinance. In Marine & General Assurance Company PLC v Overseas Union Insurance Limited & Ors35 the Nige-rian Supreme Court, with respect, gave the wrong impression that the law applicable to proceedings for the registration in Nigeria of a judgment obtained in the High Court of England can be found in both legislations.36 Interestingly in the same judgment, the Court had rightly held that by virtue of section 3 of the 1960 Act, “the provisions of Part I of the Act that consist of sections 3,37 4, 5, 6, 7, 8, 9 and 10 of the Act, remain dormant or inactive until life is breathed into them by an Order promulgated by the Minister of the Federa-tion charged with the responsibility for justice”.38

The implications of this correct exposition of the law are even more pro-found when it is considered that the 1960 Act contains 13 sections in total, eight of which are considered “dormant or inactive” by the courts. In fact, sec-tions 11, 12 and 13 in Part II are also arguably “dormant or inactive” sections because the applicability of those sections is tied to Part I of the Act. Without

(Pt 1062) 1 (SC); Macaulay v Raiffeisen Zentral Bank Osterreich Akiengessellschaft (RZB) Austria (2003) 18 NWLR (Pt 852) 282 (SC).

34 See Witt & Busch, ibid; Consolidated Contractors (Oil and Gas) Company SAL v Mr Munib Masiri (2011) 3 NWLR (Pt 1234) 283; Marine & General Assurance Company PLC PLC v Overseas Union Assurance Ltd (2006) 4 NWLR (Pt 971) 622 (SC); Shona-Jason Nigeria Limited v Omega Air Limited (2006) 1 NWLR (Pt 960) 1; Grosvenor Casinos Limited v Ghassan Halaoui (2009) 10 NWLR (Pt 1149) 309 (SC); Macaulay, ibid; Teleglobe America Inc v 21st Century Technologies Limited (2008) 17 NWLR (Pt 1115) 108; Hypporite v Egharevba (1998) 11 NWLR (Pt 575) 598; Ibidapo v Lufthansa Airlines (1993) 4 NWLR (Pt 498) 124.

35 Marine & General, ibid.36 Ibid, 641–642.37 It is doubtful whether the section that gives the Minister of Justice the power to, in effect, trig-

ger the application of the statute should itself be regarded as “dormant and inactive”.38 See also the Supreme Court in Grosvenor Casinos, supra n 34, 334 (per Oguntade JSC): “Before

I proceed further, it is apposite to mention that the court below and the parties’ counsel who appeared before it all assumed that the applicable provision of the law which called for con-sideration was section 6 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap 152 LFN 1990. This was a mistake.” See also Mohammed JSC at 347. But cf Tobi JSC at 341: “The appeal dovetails on section 6 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap 152, LFN 1990.”


doubt, if Part I of the Act is inoperative, any section of the law that is depend-ent on or tied to that Part must of essence also be inoperative.39

From the foregoing, it would appear that the only “operative” sections of the 1960 Act are (a) section 1 which gives the short title of the Act; (b) section 2 which is the interpretation section; and (c) section 3 which gives the Min-ister of Justice the power to make orders in respect of reciprocal recognition and enforcement of foreign judgments. The foregoing analysis confi rms the indubitable fact that in reality the 1960 Act, though in existence in the current authentic compilation of laws, is an inoperative law and ought not be men-tioned, referred to or applied in any decisions on the enforcement of foreign judgments in Nigerian courts in the absence of an Order made pursuant to section 3 of the Act. To do so is a recipe for confusion as is evident from the most recent decision of the apex court in Nigeria.

In Vab Petroleum Inc v Mr Mike Momah40 there was an application for “an order to have the judgment of the United Kingdom’s High Court of Justice [sic], Queen’s [sic] Bench Commercial Court Division, London, in Suit No 1991 Folio No 1048 between parties hereto, registered in this Honourable court for execution”.41 In determining the main ground of appeal on the issue whether the Court of Appeal “erred in law in ordering the registration of the judgment of the High Court of Justice of the Queens Bench Division of England in Suit No 1991 Folio 1048 when the said registration will be in contravention of the Foreign Judgment (Reciprocal Enforcement) Act Cap 152 Laws of the Federa-tion of Nigeria”, the Supreme Court stated thus:

“But, what is the criteria [sic] of determining jurisdiction of a foreign court, here in Nigeria? I think by the provision of section 6 of the Foreign Judgment (Reciprocal Enforcements) [sic] Cap 152 of the LFN 1990, one can be able with certainty to determine where a foreign court’s jurisdiction lies.”42

Section 6 of the 1960 Act was applied to determine the question of proper exercise of jurisdiction over an absent defendant before an English court and the Supreme Court came to the decision that the High Court was right in its fi nding that the English court properly exercised jurisdiction over the defend-ant. This was the same section, the application of which by the Nigerian Court of Appeal was considered a “mistake” by the same Supreme Court in Grosvenor Casinos Limited.

In Vab Petroleum there was also a cross-appeal and the sole issue therein was whether the trial court was lacking jurisdiction given that the order of registra-

39 See the opening parts of sections 11, 12 and 13 of the 1960 Act.40 Vab Petroleum Inc v Mr Mike Momah (2013) 14 NWLR (Pt 1374) 284; (2013) 3 CLRN 1.41 It is not evident in the judgment under which law the motion on notice was brought in the

High Court. However, the argument of counsel for the appellant was premised on the 1960 Act. See ibid, 309.

42 Supra n 40, 312 (per IT Muhammad JSC).


tion of the foreign judgment was made 13 months after the expiration of 12 months from the date of delivery as provided by the 1922 Ordinance.43 It was argued, rightly in our view, on behalf of the cross-appellant that the applica-ble law was in fact the 1922 Ordinance and not the 1960 Act. Surprisingly, the Nigerian Supreme Court decided this issue by applying section 10(a) of the 1960 Act.44 Muhammad JSC stated that:

“[I]t is to be noted that the provision of this section [section 10] especially paragraph (a) quoted above in my view has made a very strict proviso, that notwithstanding ANY OTHER PROVISION OF THIS ACT; which is defi ned by section 1 thereof to mean: ‘the Foreign Judgment (Reciprocal Enforcement) Act’ of 1961 as contained in Cap 152 of the Laws of the Federation, 1990.”45

His Lordship then concluded, relying on the authority of Macaulay v RZB Austria,46 that:

“So here we are! This court has already laid a precedent. … All I have seen and as relied upon by the parties and the Court below is that the Ruling of the Court below was delivered on 14/12/93. This date far exceeded the time limit provided by section 10(a) of the 1990 Act.”47

This is the latest decision from the apex court and both the main appeal and the cross-appeal were decided solely on the basis of the 1960 Act and sections of that law that the same court had in earlier cases rightly determined were largely inoperative because of the absence of any order by the Minister of Justice under section 3 of the Act. With due respect, this approach will only serve to fan the embers of confusion and will have the effect of continuing to engender the uncertainty and inconsistency that seems to pervade this area of Nigerian jurisprudence. The case could have been decided with the same result by applying section 3 of the 1922 Ordinance.48 Without doubt, section 10(a) was not intended to have general or “interim”49 application where there is no Order in existence pursuant to section 3. Section 10 only applies to save any “judgments given before the commencement of an Order”. In essence, section

43 It is rather surprising that in this case the main issue for the determination in the appeal was an allegation of infraction of the 1960 Act, while the main issue for determination in the cross-appeal on the same set of facts was an infraction of the 1922 Ordinance.

44 S 10(a) provides that “Notwithstanding any other provision of this Act – (a) a judgment given before the commencement of an order under section 3 of the Act applying Part I of this Act to the foreign country where the judgment was given may be registered within 12 months from the date of the judgment or such longer period as may be allowed by a superior court in Nigeria.”

45 Supra n 40, 331.46 Supra n 34.47 Supra n 40, 332G and 333C (emphasis added).48 The 1922 Ordinance, s 3, makes provisions for a limitation of 12 months and also the grounds

for refusal to recognise a foreign judgment due to the defendant’s failure to submit to juris-diction either by presence within jurisdiction or by accepting service within jurisdiction.

49 See Muhammed JSC in Witt & Busch, supra n 34, 17.


10 is a saving provision that kicks in only after an Order has in fact been made pursuant to section 3 by the Justice Minister and not a legally effective provi-sion on its own as applied in Vab Petroleum and in other cases.50

C. DEFICIENCIES IN THE 1922 ORDINANCE AS THE EXTANT APPLICABLE LAW

We have seen the rather incoherent state of case-law in Nigeria on this issue. It has also been argued that the 1922 Ordinance, which is premised on the Administration of Justice Act 1920 scheme, is the only extant and operative law. The 1960 Act remains a putative law. In this section the defi ciencies of the extant Ordinance are highlighted with a view to showing that the antiquity of the law renders it ill suited for contemporary realities and will only serve to erode or stultify the efforts towards economic integration at the African or West African sub-region level and heightened economic intercourse with other countries.

1. Which Territories?

The 1922 Ordinance contains a list of countries from whose courts judgments are recognised and enforced as of right and those recognisable by order of the Governor-General where he

“is satisfi ed upon information received from the Secretary of State that reciprocal provisions have been made by the legislature of any part of Her Majesty’s Domin-ion outside the United Kingdom for enforcement within that Part of Her Majesty’s Dominion of judgments obtained in a High Court in Nigeria”.51

By virtue of section 3(1) of the 1922 Ordinance, the judgments of courts of countries to which the Ordinance applies by force of law are England, Ire-land and Scotland. However, by Proclamations made pursuant to section 5, the Ordinance was extended to judgments in courts from the Gold Coast Colony and the Colony and Protectorate of Sierra Leone, the Colony of Gambia, Barbados, Bermuda, British Guiana, Gibraltar, Grenada, Jamaica, Leeward Islands, St Lucia, St Vincent, Trinidad and Tobago, Newfoundland, New South Wales and Victoria.52

The fi rst glaring point is that the offi ce of Governor-General or Secretary of State in Nigeria no longer exists. The Head of State is now the President

50 For a comprehensive and correct analysis of s 10(a) of the 1960 Act, see Bamodu, supra n 17, 9–16.

51 See Cap 175 of the 1958 Laws, s 5.52 See the List of Subsidiary Legislation in Cap 175 Laws of the Federation of Nigeria and Lagos

1958.


of the Federal Republic and it is doubtful whether an interpretation that per-mits a manipulation of the words of the statute can be adopted in this case to substitute “Governor-General” with “President”. Accordingly, an expansion of the Proclamation by an order premised on reciprocal provisions can never be made in present-day Nigeria pursuant to section 5 of the 1922 Ordinance. Furthermore, should there also be a statutory interpretation that involves a verbal manipulation of the reference to the “Gold Coast Colony”, “Colony and Protectorate of Sierra Leone” and “Colony of Gambia” to the present day Republics of Ghana, Sierra Leone and Gambia? It is also doubtful whether such statutory interpretation would be permissible in the circumstances.53

The position in Commonwealth countries of East Africa serves as a useful analogue to the Nigerian situation. In Italframe Ltd v Mediterranean Shipping Com-pany54 the Appellant obtained judgment from the High Court in Tanzania and sought unsuccessfully to register the same in Kenya. The Kenyan Court of Appeal in upholding the decision of the High Court not to permit the reg-istration of the foreign judgment reasoned that the provisions of the Foreign Judgments Enforcement Act (Cap 43 of the Laws of Kenya)55 did not apply to the decree of the High Court of Tanzania since the legislation referred to the High Court of Tanganyika, the former name of Tanzania. The court took the view, relying on an earlier Kenyan High Court case of Re Lowenthal and Air France,56 that it was not competent for any court to assume a mistake in an Act of Parliament and put a sensible meaning to the words of a statute. It would be most dangerous for any court to presume to insert in legislation a substantive word naming a new country in a statutory provision. That is for parliament.57

53 Cf Patchett, supra n 12, 87 where in listing the Extension Orders under the reciprocal enforce-ment legislation for Nigeria, it was assumed that “Ashanti and Northern Territories” relates to present-day Ghana and “Ireland” relates to “Northern Ireland”. See also Bamodu, supra n 17, 3, n 10 for the view that it is doubtful whether reference to “Ireland” in the 1922 Ordinance should be construed as referring to the Republic of Ireland. But see, for example, The Recip-rocal Enforcement of Judgments Act No 12 of 1922, Cap 8.05 Laws of Gambia 2009, where s 3 expressly refers to “Northern Ireland” unlike the equivalent Nigerian provision in the same legislation.

54 Italframe Ltd v Mediterranean Shipping Company [1986] KLR 54.55 Since replaced by the Foreign Judgments (Reciprocal Enforcement) Act 1984, Cap 43 Laws of

Kenya 2004.56 Re Lowenthal and Air France 1966 (2) ALR Comm. 301. In this case the applicant brought an

application to set aside the registration of a decree of the High Court of Zambia, which was registered in Kenya under the Foreign Judgments Enforcement Act (Cap 43). The question in that case was whether the application of Part II of the Act to the superior courts of Northern Rhodesia continued in effect after Zambia became independent so as to apply the said Part to the superior courts of Zambia. The court held that there was clearly a major legal change in status when Zambia became independent and it would not be correct or right to assume that the superior courts of Zambia are, or were since the independence of Zambia, superior courts of Northern Rhodesia.

57 Supra n 54, 60 (per Hancox JA). In Nigeria, there may, however, be a possible reliance, though not a strong one in my view, on section 315 of the Constitution of the Federal Republic of Nigeria 1999 which provides that existing laws shall have effect with such modifi cations as may


Second, it is also evident that, in total, the 1922 Ordinance applies to 16 countries out of the 54 countries of the Commonwealth. The reference to Newfoundland is to a territory within present-day Canada while New South Wales and Victoria are now constituent states in the Commonwealth of Aus-tralia. However, given that no extension order by Proclamation is legally possible in Nigeria at the present time and the 1960 Act is being held in abeyance until triggered by an Order made pursuant to section 3, it follows that a judgment from the High Court of Ontario or Quebec in Canada or High Court of Queensland in Australia is not enforceable under the expe-dited statutory scheme in Nigeria. Similarly, a judgment from the Republic of South Africa (a fellow member of the Commonwealth and the African Union (AU)) and the Republics of Benin and Mali (fellow members of the AU and the Economic Community of West African States (ECOWAS)) suffer the same fate. It is evident that the Ordinance is inferior in its coverage and in an era of economic development through regional integration, this is clearly not a desirable state of affairs.58 It is a state of affairs that evinces inattention to a pertinent relational issue in economic integration.59 And the wider implications are rather troubling when judgments from countries of the African economic community are denied registration under a simplifi ed and expedited procedure while a judgment from the United Kingdom is more likely to be registered in most Member States.60

2. Judgments from which Courts?

We have seen the defi ciencies in the number of countries from which the judg-ments of certain courts are recognisable and enforceable in Nigeria. Even for designated countries, the statutory regimes do not apply to judgments from all

be necessary to bring the existing law into conformity with the provisions of the Constitution. Sub-section 2 of the section gives the appropriate authority the power at any time to make such modifi cations, by order, as considered necessary and expedient to bring the laws in conformity with the Constitution and not necessarily with the intention only to give a sensible interpreta-tion to the existing law. The appropriate authority is defi ned in sub-section 4 as the President, in relation to the provisions of any law of the federation or a person appointed by any law to revise or rewrite the laws of the Federation. Cf the ruling of Candide-Johnson J in Access Bank PLC v Dr Erastus Bankole Oladipo Akingbola in Unreported Suit No M/563/2013 delivered on 18 February 2014 to the effect that courts can read into provisions of the 1922 Ordinance the meaning of Court to include the Federal High Court which was not in existence at the time of the enactment of the Ordinance.

58 But see the doubtful decision in Teleglobe America Inc, supra n 34, where a judgment obtained in Virginia in the United States was enforced by the Nigerian Court of Appeal under the statu-tory scheme.

59 See RF Oppong, Legal Aspects of Economic Integration in Africa (Cambridge University Press, 2011), 278.

60 See ibid, 288–98 on the necessary reforms needed in Africa to facilitate the free fl ow of judg-ments among members of African communities.


courts.61 It is now important to have a closer look at the specifi cally mentioned courts to give an insight into what is clearly a limited scope of application of the Ordinance and its ultimate utility in contemporary times. For example, the Proclamation made pursuant to section 5 of the 1922 Ordinance refers to the “Supreme Court of the Gold Coast Colony and the Colony and Protectorate of Sierra Leone”. Even though it is common knowledge that the Gold Coast Colony is now the Republic of Ghana, and we have expressed doubts about a statutory interpretation which permits the substitution of new names of coun-tries following independence, the current structure of the courts in Ghana is totally different from what existed in 1922.

The hierarchy of courts in Ghana derives largely from British juridical forms. Under the extant Constitution of Ghana, the judiciary consists of the Superior Court of Judicature comprising the Supreme Court, the Court of Appeal, the High Court and Regional tribunals, and such lower courts or tri-bunals as Parliament may by law establish.62 Assuming it is conceded that a substitution of names is possible, as a matter of statutory interpretation, can it then be said that it is only judgments of the highest court in the judicial hier-archy in Ghana – the Supreme Court – that can be recognised and enforced in Nigeria? This is a possible argument that can be put forward to challenge an attempt to enforce a judgment from the High Court of Ghana in Nigeria under the statutory scheme.63

It is only in respect of the Caribbean countries mentioned in the Proc-lamation that there is some level of clarity as to the relevant courts. The Proclamation of 7 May 1925 refers to “A superior court in any of [those] Parts of Her Majesty’s Dominion”. The uncertainty surrounding the judgments of the courts in Ghana, Sierra Leone and some states in Australia serves to rein-force not only the antiquity of the 1922 Ordinance but also the urgent need for a wholesome review of the entire enforcement of foreign judgments regime in Nigeria. Clearly, this is the sad reality of the applicability of the 1922 Ordi-

61 RF Oppong, Private International Law in Commonwealth Africa (Cambridge University Press, 2013), 387.

62 See Art 126(1)(a) and (b) of the Constitution of the Republic of Ghana 1992 contained in the Schedule to the Constitution of the Fourth Republic of Ghana (Promulgation) Law 1992 (PNDCL 282). See also K Kumado and SO Gyandoh Jr (eds), Gyandoh & Griffi ths’ Sourcebook of Constitutional law of Ghana, vol 1, pt 2 (Black Mask Limited, 2nd edn, 2009), 1254.

63 The same argument will apply to the reference to the Supreme Court in the Colony of Gambia and the Supreme Court in Newfoundland, New South Wales and Victoria. This phenomenon is, unsurprisingly, not peculiar to Nigeria. See eg The Foreign Judgments Reciprocal Enforce-ment (Nigeria) Order No 11 made pursuant to s 3 of The Foreign Judgments Reciprocal Enforcement Act No 6 of 1936 as amended by Act No 3 of 1959, Cap 8.06, Laws of Gambia 2009 where Order 2 thereof extends the Act to the Federal Republic of Nigeria and Order 3 lists the Superior Courts of Record in Nigeria as only (a) the Supreme Court of Nigeria; (b) the High Court of Western Nigeria; (c) the High Court of Northern Nigeria; (d) the High Court of Eastern Nigeria; and (e) the High Court of Lagos. Nigeria presently has High Courts in 36 states of the Federation, including the Federal Capital Territory and also the Court of Appeal.


nance. From the foregoing, it is obvious that the enforcement of most foreign judgments, especially from Commonwealth Africa, will have to be carried out through the common law regime.64

The issue regarding relevant courts is, however, certain in the 1960 Act. Section 9 of the Act provides that: “This part of the Act shall apply to any Part of the Commonwealth other than Nigeria and to judgments obtained in the courts thereof as it applies to foreign countries and to judgments obtained in courts of foreign countries.” There is no specifi c description of courts as we see in the 1922 Ordinance but there is no ambiguity regarding the recognition and enforcement of “judgments given in superior courts of a foreign country” as specifi ed in section 3 of 1960 Act. It follows that once it is shown that the judgment emanated from a superior court of record, such judgment would be recognised and enforced irrespective of the nomenclature used in that country in describ-ing its courts.65

3. Relevance of Public Policy

In Dale Powers Systems PLC v Witt & Busch Ltd66 the Nigerian Court of Appeal adopted the defi nition of public policy by the trial court as meaning a “com-munity sense and common conscience, extended and applied throughout the State to matters of public morals, health, safety, welfare and the like”. Public policy must invariably have a role to play in the enforcement of judgments from a foreign country. Naturally, foreign judgments would not be recognised and enforced as a matter of course but on the basis of clearly articulated grounds as stated in both the 1922 Ordinance and the 1960 Act. The challenge, given the general distrust of the application of public policy in the context of law, is the extent of the application of the concept.

In the 1922 Ordinance, section 3(2)(f) provides that no judgment shall be ordered to be registered under the Ordinance if the “judgment was in respect of a cause of action which for reason of public policy or for some other simi-lar reason could not be entertained by the registering court”. Here, it seems that the role of public policy is limited to the specifi c cause of action and whether the cause of action underpinning the judgment is one that as a matter

64 Oppong, supra n 59, 389.65 Some jurisdictions of the Commonwealth have taken steps to make recommendations to

amend, and in some cases have amended, their applicable laws in line with current trade and commercial realities. One signifi cant area of change is in the extension of relevant courts to include judgments from subordinate courts. See Singapore Academy of Law, Report of the Law Reform Committee on Enforcement of Foreign Judgments (June 2005) paras 39–60, 15–22 (hereinafter referred to as the “Singapore Law Reform Committee Report”). See also The Foreign Judg-ment Act 1991, s 5(3) (Australia); Reciprocal Enforcement of Judgments Act 1934, s 3A (New Zealand); Foreign Judgments (Reciprocal Enforcement) Act, Cap 43, Laws of Kenya 2004, s 2(1)(c).

66 Dale Powers Systems PLC v Witt & Busch Ltd (2001) 8 NWLR (Pt 716) 699, 714–15.


of public policy Nigerian courts will not entertain. In effect, if the cause of action is not against Nigerian public policy, sub-section (2)(f) of section 3 pre-sumably cannot be used as a ground to refuse recognition or enforcement of any ensuing judgment.67

In the 1960 Act, we see a totally different provision on the extent of appli-cation of public policy which appears wider in its implications and application and should give the courts greater latitude in refusing to recognise and enforce certain foreign judgments. Section 6(1)(a)(iv) provides that on an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment shall be set aside if the register-ing court is satisfi ed that “the enforcement of the judgment would be contrary to public policy in Nigeria”. This provision, unlike section 3(2)(f) of 1922 Ordi-nance, does not constrict the application of public policy to the cause of action leading up to the judgment. Thus, under section 6(1)(a)(iv) of the 1960 Act, a Nigerian court may set aside the registration of a foreign judgment even though the underlying cause of action is not contrary to public policy, if the enforcement of the judgment itself would be contrary to public policy. Public policy in this context focuses on the consequences of enforcement of the judg-ment and not on the immorality underpinning the original cause of action.

D. PARADIGM SHIFT AND CHALLENGING CONVENTIONAL WISDOM

1. Unreality of Reciprocity as a Basis of Enforcement

The requirement of reciprocity as the conceptual basis of the enforcement regime is a historical anachronism in Nigeria. Reciprocity as a concept of law connotes mutuality. It denotes the relationship existing between states where each of them gives the subjects of the other certain privileges on condition that its own subjects shall enjoy similar privileges at the hands of the latter state.68 Reciprocity and retaliation69 underpin the extant and putative statutory regimes in Nigeria. Enforcement of foreign judgments is only allowed when the foreign country has also agreed to enforce judgments from Nigerian courts. There is also indirect provision for retaliation as the legislations allow the relevant offi cer of state, if satisfi ed that the foreign court’s treatment of Nigerian judgments is substantially less favourable than the treatment by Nigerian courts of the for-

67 It is conceded that a Nigerian court may well be inclined to apply the much-maligned broad common law principles of public policy in a situation like this in any event and not be ham-strung by any technical rules of literal interpretation of statutes.

68 See Black’s Law Dictionary with Pronunciations (6th edn), 1270.69 On this policy concept in the context of enforcement of judgments, see K Pham, “Enforcement

of Non-Monetary Foreign Judgments in Australia” (2008) 30 Sydney Law Review 663, 669.


eign judgments from that foreign country, by subsequent order vary or revoke any order previously made.70

Apparently, the requirement of reciprocity entered the statutory registra-tion scheme as a means of encouraging other countries within the common law world to enact an equivalent system.71 Prior to the 1920 scheme, various countries within the Commonwealth relied on some form of judgment exten-sion legislation. The 1920 scheme was intended to be a modernised version of the Judgment Extension Act 1868 and was envisaged as a means of leading to a clear uniform statement of the enforcement law within the Commonwealth, and ultimately, to a more effi cient enforcement scheme.72

We have seen that much of the uncertainty in this area of Nigerian juris-prudence is traceable to the failure and/or inability of the Minister of Justice to make the necessary Orders pursuant to section 3 of the 1960 Act. Such inability is understandable and the absence of extension orders under the rel-evant laws appears to be a common denominator in Commonwealth countries. Determining reciprocity (whether on the basis of a bilateral or multilateral treaty or by acting unilaterally under the relevant legislation) requires a sig-nifi cant amount of empirical evidence, which is not readily available. To start with, there is no evidence in Nigeria today of the number of judgments from Nigerian courts between Nigerian citizens and foreigners that require enforce-ment abroad. Similarly, there is no empirical data of the total number of foreign judgments presented for registration before Nigerian courts. Once this is lacking, any exercise under section 3 will be a fl awed process. It just seems an almost impossible task for any Minister of Justice to collate the necessary evidence from 36 State High Courts in the country, almost a similar number of Federal High Courts, nine divisions of the Court of Appeal and the Supreme Court.

Secondly, it is also almost impracticable to obtain any cogent evidence from the courts of numerous countries as to the treatment accorded to judgments from Nigerian courts. Admittedly, this may have been possible and easier during the colonial era when these laws evolved, given the limited number of coun-tries in the Commonwealth under the suzerainty of the Crown and the vast administrative reach of Her Majesty’s Government in collating such evidence. This is clearly not the case in contemporary times and with the wider pool of countries with which Nigerian businesses now interact. There appears to be no readily discernible and rational legal basis for determining the reciprocity requirement in section 3.73 What factors would a Minister of Justice consider

70 The 1960 Act, s 3(4) and the 1922 Ordinance, s 5(3).71 Singapore Law Reform Committee Report, supra n 65, 24 para 68.72 Ibid.73 But see Bamodu, supra n 12, 31, who notes that the proof of reciprocity “may possibly depend

on the conclusion of a treaty or convention between Nigeria and the relevant country”. See also the Singapore Law Reform Committee Report supra n 65, 23–24 where it is suggested


in determining that “substantial reciprocity of treatment will be assured as respects the enforcement in that foreign country of judgments given in the superior courts of Nigeria”? What empirical evidence is available in making the decision on substantial, if not exact reciprocity? This is evidently a diffi cult, if not impossible, task and in the absence of any rational legal bases for arriving at such conclusion, any decision in this regard would be dependent on the size of the “Minister of Justice’s foot”.74

Clearly another rational conceptual basis of the enforcement regime that dispenses with reciprocity as the starting premise is required. Indeed, it has been said that, increasingly, courts and legislatures reject this impediment and that even where reciprocity persists, courts fi nd ways to ameliorate it.75 The suggestion being proposed here is not new. Within the Commonwealth statu-tory schemes exist that are not premised on reciprocity.76 The Indian77 and South African78 schemes do not require the Minister to be fi rst satisfi ed as to reciprocity. The rationale for such a scheme is that there should be no need to require reciprocal treatment if the recognising or enforcing country is per-suaded that the judgment in question is of a class of judgments which are of comparable quality to its own judgments. Reciprocity is dispensable because of the degree of confi dence in another’s judgment can only be a matter for unilateral assessment.79

There are very many countries that are of commercial and political impor-tance to Nigeria from whose courts judgments should be accorded recognition and enforcement on bases other than reciprocity. Commerce lies at the very heart of most decisions in international politics and economic development indices are typically measured by the level of trade relations between coun-tries. The bilateral trade statistics between Nigeria and countries such as China

that s 3(1) of the Reciprocal Enforcement of Foreign Judgments Act, Cap 265, 2001 rev edn, which is similar to s 3 of the 1960 Act envisaged the Minister entering into bilateral or mul-tilateral treaties with countries to provide “substantial reciprocity of treatment” in accordance with the Act. Cf Oppong, supra n 59, 387. This view by most commentators that reciprocity is determined on the basis of treaty obligations between or among countries should be viewed with caution. In reality the statutory schemes do not specifi cally prescribe this approach as the only means of recognising reciprocity. While it is conceded that the treaty approach is perhaps the most obvious rational basis to proceed, it must be appreciated that signing a bilateral or multilateral treaty, in itself, is not and cannot be the actual evidence of substantial reciprocal treatment that the legislation envisaged on a true construction of the words used. At best reci-procity in this sense is only notional.

74 This is borrowing the analogy of the proverbial “Chancellors’s foot” in the discussions of the undue infl uence of Equity on the rule of law in England around the fi fteenth century. See E Fry, “Life of John Selden” in F Pollock (ed), Table Talk of John Selden 177.

75 Singapore Law Reform Committee Report, supra n 65, 26 citing F Juenger, Selected Essays on Confl ict of Laws (Brill, 2001), 314.

76 Ibid, 25.77 See Code of Civil Procedure (Amendment) Act 1937 as amended in 1952 by Act No 71.78 See the Enforcement of Foreign Civil Judgments Act No 32 of 1988, s 2(1).79 Singapore Law Reform Committee Report, supra n 65, 25–26.


and the United States are substantially higher compared with the trade fi gures between Nigeria and the United Kingdom and some other Commonwealth countries. In 2012, the total bilateral trade fi gures (import and export) between Nigeria and China stood at about US$8.5 billion.80 The bilateral trade fi gures between Nigeria and the USA stood at about US$31.5 billion.81 While the bilateral trade fi gures between Nigeria and the UK stood at about US$7.8 bil-lion, the trade fi gures between Nigeria and the Republic of Ireland stood at a meagre US$652,434,930.82 On the regional front, South Africa is Nigeria’s largest trade partner and the total bilateral trade fi gures between the two coun-tries stood at US$4.8 billion.83 There are some countries of the Commonwealth that have no trade relations with Nigeria at all. The foregoing fi gures indicate that there should be a paradigm shift in the basis of enforcement of judgments from the woolly concept of “reciprocity” to one that is driven by commerce as a basis for designation under the statutory scheme.

This view again is not new. The South African Law Reform Commission, in its recommendation for the improvement of the statutory scheme for enforc-ing foreign judgments suggested that “a good starting point would be to begin negotiations with certain of our major trading partners”.84 In accepting that the South African legislation would be made applicable to more countries, the major question was whether relevant countries shall still be “designated” – a process that involves an exercise of executive discretion – and, if so, what criteria should be employed in the selection of countries.85 Extension orders designating certain countries are inevitable under any statutory scheme. The alternative is automatic recognition, which may not necessarily be appropriate in the circumstances. It is suggested, however, that extension orders should be on the basis of recognition of the commercial importance of Nigeria’s trade partners as a starting point. First, this had the advantage of downgrading, if not eliminating, the element of de facto or notional reciprocity that underpins the treaty approach. Under the suggested regime, the primary aim of the treaty obligations is the facilitation of trade relations between the countries with the legal framework for enforcement of foreign judgments as an adjunct to that primary focus. Second, the primary burden of making the decision should not be that of the Minister of Justice alone even if such offi ce remains the issuer of the extension orders. It allows for a more collective and collaborative effort

80 See UNCTADstat available at http://unctadstat.unctad.org (accessed 9 June 2013). 81 Ibid. See also “Trade in Goods with Nigeria” at www.census.gov/foreign-trade/balance/c7530.

html (accessed 9 June 2013), for US trade in goods with Nigeria from January to May 2013, giving a total fi gure of approximately US$8.4 billion. The total trade fi gures as assessed by the US government for 2012 stood at approximately US$24.04 billion, which is less than the UNCTAD fi gures.

82 Ibid.83 Ibid.84 South Africa Report 121, supra n 24, para 6.2.10, 83–84.85 Ibid, para 6.2.11.


at the executive cabinet level in making the decision regarding countries that merit designation pursuant to extension orders. Third, Nigeria will relegate the historical importance of the Commonwealth to the background and focus more on the contemporary importance of regional integration through multi-lateral initiatives.

2. Exercising Jurisdiction over an Absent Defendant

It is a fundamental principle of private international law that a foreign court will be deemed to have properly assumed jurisdiction in an international sense where the defendant submitted to the jurisdiction of the court. Submission could be by agreement or appearance. In Grosvenor Casinos Limited v Ghassan Halaoui,86 three out of the fi ve justices on appeal voiced their concern about the state of Nigerian law and the need for a review to bring it in consonance with “current international developments of comity and judicial reciprocity”. Oguntade JSC who delivered the leading judgment noted that:

“I have no doubt that it is inimical to the interest of trade and commerce if judg-ments in foreign countries cannot be readily enforced in Nigeria. It is particularly alarming that when in a case like this, a person ordinarily resident in Nigeria obtains a credit in England and in satisfaction issues a cheque which is later dishonoured, the judgment obtained against him cannot be enforced in Nigeria. Under Section 3(2)(b) above, the judgment of a court in England cannot be enforced in Nigeria on the ground that a defendant has not submitted to the jurisdiction of the English Court. There is an urgent need to reform our law on the matter. It is an open invitation to fraud and improper conduct.”87

Ogbuagu JSC in his contribution had this to say:

“One thing is clear to me, that the respondent, for whatever reason best known to him, did not and never submitted himself either personally or through counsel, to the jurisdiction of the English court. The court below per Akintan JCA (as he then was) at page 125 of the records stated that a registration of any foreign judgment made under section 4 of the 1990 Act will be set aside if the said foreign court had no jurisdiction or deemed not to have such jurisdiction if, inter alia, the judgment debtor did not submit to the jurisdiction of the trial English court by voluntarily appearing and participating in the proceedings before that court or that he was resident in or that he owned property within that jurisdiction. See also Cheshire & North Private International Law, 10th Edition, page 629, 12th Edition, page 346. Although such state of affairs is pregnant with disastrous consequences of encour-aging crooks and fraudsters, there may be need for the legislature liaising with the Attorney-General of the Federation and Minister of Justice to have a look at the

86 Grosvenor Casinos, supra n 34.87 Ibid, 338 (emphasis added).


1958 Act and the 1990 Act with a view to effecting an amendment. Until this is done, this court is bound to give effect to that section of the 1958 Act.”88

One main consideration in the evolution of principles of private international law is striking an appropriate equilibrium between international judicial co-operation or convenience and the protection of citizens of the enforcing court. This is a diffi cult juggling act for the legislature and courts in particular. It is common knowledge that international commercial lawyers, as a fi rst line of defence, advice litigants to refuse to submit to the jurisdiction of a foreign court in which the litigant is being sued, especially if there is no prior agreement as to jurisdiction. The intention being that it becomes easier to resist enforce-ment of the judgment in the country of residence of the defendant or where the defendant has assets. These attitudes to international litigation ought to be discouraged and the scales must be tilted on the side of international conveni-ence in clear cases where the principles of private international law are being surreptitiously used as an instrument to perpetuate wrongdoing and in some cases fraud as in Grosvenor Casinos Limited.

In addressing the valid concerns raised by the Justices of the Supreme Court in the Grosvenor Casinos Limited, a radical departure from the well-known accepted norms of private international law contained in section 6(1)(a)(iii) of the 1960 Act may be considered by changing the present language from

“the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accord-ance with the law of the country of the original court) receive notice of those proceedings in suffi cient time to enable him to defend the proceedings and did not appear”89

to

“the judgment debtor, being the defendant in the proceedings in the original court, was not properly served in accordance with the law of the country of the original court and did not receive notice of those proceedings to enable him to defend the proceedings”.

88 Ibid, 351. See also Ogebe JSC, ibid, 352: “This is a case in which the respondent is using a lopehole [sic] the Nigerian law to avoid his international obligation. The Attorney-General of the Federation should take urgent steps to update the law in line with modern trend.”

89 Emphasis added. See Dicey, Morris and Collins, supra n 12, 690–91, where it is stated that the common law position underpinning this provision is that: “A fundamental requirement for the recognition or enforcement of a foreign judgment in England at common law [and under the Acts] is that the foreign court should have had jurisdiction according to English Rules of the confl ict of laws. ‘All jurisdiction is properly territorial,’ declared Lord Selborne, ‘and extra ter-ritorium jus dicenti, impune non paretur. … In a personal action … a decree pronounced in absentem by a foreign court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law, an absolute nullity.’”


The suggested change, though subtle, is very signifi cant because it dispenses with the so-called loophole that allows an absent or non-resident defendant intentionally to ignore the proceedings, as mostly happens in practice, even when court processes have been properly served outside jurisdiction.

There is also arguably some indication of judicial support for the above proposition. In Teleglobe, the Court of Appeal held that the Federal High Court was wrong to have set aside the registration of the foreign judgment on the ground that the service of process of the original cause of action did not comply with the adjectival laws of Nigeria even though there was evidence that the service of process was compliant with the laws of the country of the court exercising original jurisdiction.90 Once it is established that the exercise of the “long arm jurisdiction”91 by the original court was in accordance with the rules of the country of original jurisdiction, it should be irrelevant that a defend-ant makes the reckless or intentional decision not to defend the action on its merits. Admittedly, the foregoing suggestion goes against conventional wisdom in private international law; it should not, however, present any conceptual or practical diffi culty in its implementation.92 This would be a justifi able departure from the English law position at common law.

Furthermore, statutory intervention in this area of Nigerian law may serve as an opportunity to consider the possible codifi cation of signifi cant, and desir-able, case-law developments in other Commonwealth jurisdictions such as the Canadian Supreme Court’s decision in Morguard Investments Ltd v De Savoye,93 which broadened the recognised jurisdictional elements in private international law to include a test of substantial connection between the foreign forum and the dispute in a domestic context but which has been extended to an inter-national context.94 If this had been the case in Nigeria, the result in Grosvenor

90 Supra n 34. No doubt the decision to enforce a US judgment is that case is doubtful but the reasoning on the issue of service of process in accordance with the laws of the country of the original court is sound.

91 For an in-depth discussion of in personam jurisdiction and jurisdiction in an “international sense” in the context of enforcement of foreign judgments, see Bamodu, supra n 12, 18–24.

92 A possible argument regarding lack of fair hearing would be of no moment because as a matter of Nigerian law the relevant consideration is whether a party has been given the oppor-tunity of a fair hearing. Once the opportunity to be heard is established by proper service out of jurisdiction there cannot be a suggestion of breach of natural justice. See Ezeigwe v Nwawulu (2001) 4 NWLR (Pt 1183) 159, 174 (SC); Chima v UBA PLC (2010) 6 NWLR (Pt 1191) 474, 479 (SC). A defendant who has derived the benefi t of a relationship in a foreign country, for example, cannot be heard to raise natural justice arguments when having been properly served and made aware of the pending proceedings such defendant refuses to participate. Along the same lines, see Art 5(1) of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 1971, available at www.hcch.net/upload/conven-tions/txt16en.pdf (accessed 10 January 2014).

93 Morguard Investments Ltd v De Savoye (1990) 3 SCR 1077.94 See Beals v Saldanha (2003) 3 SCR 416. See also SGA Pitel, “A Modern Approach to Enforcing

Judgments: Beals v Saldanha” [2004] Lloyd’s Maritime Commercial Law Quarterly 288; A Briggs (1992) 108 Law Quarterly Review 551. where it is noted that the insight of the Canadian Supreme Court


Casino Limited would surely have been different because the forum with the most substantial connection with the dispute was England.

3. Extension of Recognition and Enforcement to Foreign Non-Monetary Judgments

Historically, it was a long-settled common law rule that courts can only enforce fi nal money judgments from foreign courts.95 The purport of this restriction is said to refl ect the pragmatism of common law.96 In keeping with the notion of comity, the general reasoning was that a foreign monetary judgment was evi-dence of existence of a debt and the enforcing court could issue an order or decree on the strength of that fact alone. In the case of non-monetary judg-ments different considerations apply especially in cases of equitable remedies. It had been considered inappropriate that the enforcing court can be used as an avenue by a foreign court to constrain, limit, prohibit or generally affect the affairs of the citizens of the enforcing court within its territory.

The general view was that it may be diffi cult, and possibly costly, for the enforcing court to make the assessments necessitated by a foreign judgment ordering a party to perform an act.97 A court enforcing a foreign specifi c order or injunctions may have to assess the scope of the order; decide whether it was meant to have extra-territorial reach; assess its potential effect on third par-ties; and sometimes decide what it actually commands the judgment debtor to do. Enforcement could also entail costly judicial supervision, thus imposing an added strain on judicial resources.98

International commercial litigation is a dynamic process with manifold remedial measures evolving on a regular basis. In recent times, given the speed of movement of funds and assets pendente lite, there have been dramatic changes in the area of equitable remedies such as worldwide Mareva injunctions or freezing orders and Anton Pillar orders. These remedies have benefi ts for the individual litigant and, indeed, society as a whole.99 They preserve the status quo, ensuring that a party does not dissipate his assets to defeat a prospective judgment, and generally prevent him from taking actions to defeat the cause of justice.100 There have long been calls for a reassessment of the exclusion-ary rule of enforcing foreign non-monetary judgments in private international

is “rational and wholly welcome”; J Harris, “Recognition of Foreign Judgments at Common Law – The Anti-Suit Injunction Link” (1997) 17 Oxford Journal of Legal Studies 477, 483 for the application of the Morguard principle to non-Canadian judgments pre-Beals.

95 Oppong, supra n 22, 670.96 Ibid, 671.97 Ibid.98 Ibid.99 Oppong, supra n 59, 292.100 Ibid.


law.101 A wealth of jurisprudence on this issue emanated from Canada, where it has been said that there has been a quiet Canadian revolution in private inter-national law in a globalising age.102 From a statutory perspective, New Zealand law has provisions for the registration of non-monetary judgments.103 South Africa104 and Singapore105 have Reports from their respective Law Reform Commissions recommending a change in the law which are yet to be effected.

The paradigm shift in Canada was as a result of judge-made law. The Supreme Court of Canada in the case of Pro Swing Inc v Elta Golf Inc106 ruled that the common law should be gradually updated to allow for enforcement of non-money judgments in Canada in appropriate cases. In the Court’s view, in an age of increasing cross-border commerce, travel and communication, the common law prohibition which is refl ected in several legislation on enforcement of foreign judgments in countries of the Commonwealth has come to be seen as antiquated. Non-monetary foreign judgments may be enforced in Canada, so long as they were rendered by a court of competent jurisdiction, are clear and fi nal, and none of the possible defences (fraud, natural justice and public policy) apply.

There are, however, some strong arguments against the recognition of for-eign non-monetary judgments. Two main areas seem to have attracted the attention of commentators – territorial sovereignty and strain on judicial resources. The territorial sovereignty argument is that enforcement of a for-eign non-monetary judgment is inconsistent with territorial sovereignty because it allows the foreign state to regulate behaviour outside its jurisdiction by giving effect to the domestic policy of the foreign state.107 Unlike a money judgment, which merely mandates payment of a sum of money, a non-monetary order dictates the behaviour of a defendant in accordance with the foreign juris-diction’s laws.108 On the second area of concern, the enforcement of foreign non-monetary judgments may require more resources in terms of supervision than the enforcement of money judgments.109 Thus although the enforcement

101 Pham, supra n 69, 663.102 See J Blom, “Private International Law in a Globalizing Age: The Quiet Canadian Revolution”

(2002) 4 Yearbook of Private International Law 83; RF Oppong, “Enforcing Foreign Non-Money Judgments: An Examination of Some Recent Developments in Canada and Beyond” (2006) 39 University of British Columbia Law Review 257; K MacDonald, “A New Approach to Enforcement of Non-Monetary Judgments” [2006] Advocate’s Quarterly 44; V Black, “Enforcement of Foreign Non-Monetary Judgments: Pro Swing v ELTA” (2006) 42 Canadian Business Law Journal 81.

103 See Reciprocal Enforcement of Judgments Amendment Act 1992, s 4.104 See South Africa Report 121 supra n 24, para 4.2.18, 37.105 See Singapore Law Reform Committee Report, supra n 65, para 77, 27.106 Pro Swing Inc v Elta Golf Inc (2006) 2 SCR 612.107 Pham, supra n 69, 676.108 Ibid. Cf SGA Pitel, “Enforcement of Foreign Non-Monetary Judgments in Canada (and

Beyond)” (2007) 3 Journal of Private International Law 241, 247 for the view that non-monetary judgments are no less intrusive that money judgments.

109 See Pro Swing, supra n 106, 629. Cf Pitel, ibid, 246–48.


of non-monetary judgments presents some concerns in relation to sovereignty and the use of judicial resources, these are outweighed by the need to give effect to the pro-enforcement policies in the twenty-fi rst century, particularly in the light of modern technology.110

One other area of concern is the issue of fi nality of the non-monetary judgments. Interim injunctive or preservatory orders are commonplace in international as well as domestic litigation. As noted by Oppong, interlocutory judgments are as important for the effective administration of justice.111 It is perhaps easy to take the stance that an interlocutory order or judgment is not fi nal in the legal context of enforcement proceedings in private international law. It has, however been suggested, and rightly so, that it is important that fi nality is interpreted within the context of non-monetary judgments, and not with the principles that have been applied to the same requirement for money judgments.112 Interlocutory judgments, made pending the fi nal determination of the cause, are not always provisional. It is possible for interlocutory judg-ments to determine fi nally the rights of the parties in respect of a specifi c issue, if the decision on that issue cannot be reopened in subsequent proceedings.113 Indeed, despite the broadly expressed hesitation in this regard, there are sug-gestions of a possible rethink of the requirement of fi nality in this context.114

In Nigeria, it is unclear, but in all probability unlikely, that the Supreme Court will take such an activist role in reshaping and modernising confl ict-of-law rules by judicial reform of the law, especially in the area of foreign non-monetary judgments.115 And perhaps understandably so given the explicit provisions on the defi nition of “judgment” in the extant and putative statutes. It is also unlikely that the courts will assume such powers to enforce foreign non-monetary judgments when acting in equitable jurisdiction.116 This is so despite developments in other Commonwealth jurisdictions where, notwithstanding the absence of a statutory power to enforce non-monetary judgments, the court exercised an inherent jurisdiction to make an order in aid of a foreign order of a Mareva injunction.117 Statutory intervention is the best step forward and it

110 Pham, supra n 69, 682.111 Oppong, supra n 22, 677.112 Ibid. See also the dissenting judgment of McLachin CJ in Pro Swing, supra n 106, 95.113 See Halsbury’s Laws of Singapore, supra n 15, 154, para 75.159. See also Desert Sun Loan Corp v

Hill [1996] 2 All ER 847.114 Pitel, supra n 108, 258.115 On the particular weakness of case-law as an instrument of law reform, see the Rt Hon Sir

Richard Buxton, “How the Common Law Gets Made: Hedley Byrne and Other Cautionary Tales” (2009) 125 Law Quarterly Review 60.

116 See RW White, “Enforcement of Foreign Judgments in Equity” (1980–82) 9 Sydney Law Review 630; Pham, supra n 69, 666; Oppong, supra n 22.

117 See Davies v Turning Properties Pty Ltd (2006) 222 ALR 676 cited in Oppong, supra n 22, 675.


is suggested that this should be along the lines of the proposed defi nition of “Judgment” in the Foreign Judgments Bill 2005 in Singapore.118

E. CONCLUSION

The Canadian Supreme Court in Morguard Investments Ltd v De Savoye119 stated that:

“[T]he world has changed since [Confl ict of Law] rules were developed in 19th century England. … The business community operates in a world economy and [a]ccommodating the fl ow of wealth, skills and people across state lines has now become imperative. Under these circumstances, our approach to the recognition and enforcement of foreign judgments would appear ripe for reappraisal.”120

No doubt all is not well with the regime for enforcement of foreign judgments in Nigeria. The confl icting decisions on the applicable law and the internal inconsistencies in the reasoning underpinning the results in some of the cases emanating from the courts have not helped matters as well. Indeed, there have been calls in some of the decisions for a review and harmonisation of the laws in this area. The 1922 Ordinance is an antiquated piece of legislation in many signifi cant respects and change is imperative in an era of modernis-ing confl ict-of-law rules. That said, it is still rather surprising that despite the numerous judicial pronouncements on the continued applicability of the 1922 Ordinance, the same law was not again inserted in the most recent Consolida-tion of Laws in 2010.

An enforcement regime that recognises the global reach of Nigerian business intercourse is desiderable. Joining and participating in international initiatives such as the Hague Conference on Private International Law can only be ben-efi cial for Nigeria. The numerous judicial pronouncements on the urgent need for reform are apt but we share a different and more holistic view of what reform should entail in this area. While the suggested reform by the learned justices relates to the very narrow point on one of the criteria for setting aside the registration of foreign judgments, it is suggested that rather than continuing with a conceptual approach that is premised on reciprocity with such expan-sive authority given to the offi ce of the Minister of Justice, there should be a paradigm shift in jurisprudential approach to a new unifi ed regime on recogni-tion and enforcement driven by economic considerations based on international

118 See the Proposed Bill in Annexe A to the Singapore Law Reform Committee Report, supra n 65, 35. “Judgment” is defi ned as “a fi nal or interlocutory judgment or order given or made by a court in civil proceedings”. The Bill also defi nes “money judgment” and “non-money judg-ment”.

119 Supra n 93.120 Ibid, 1098 (per La Forest J.).


trade patterns between Nigeria and other trade partner countries as the basis for recognition by designation.

The historical colonial bond that is a common denominator of the mem-bers of the Commonwealth should no longer be a basis for considering or according recognition and enforcement. Rather the current economic realities of regional and sub-regional integration in the AU and ECOWAS, respectively, should play a more signifi cant role in determining the countries to be accorded recognition under the new enforcement regime. There is a stronger argument for according preferential treatment to judgments from those other Member States in fulfi lment of Nigeria’s multilateral treaty obligations under the AU and ECOWAS Treaties.121

It has been demonstrated that the solution to the problem in this area does not simply lie in the Minister of Justice making Orders pursuant to section 3 of the 1960 Act. In fact this is the bane of the problems in this area and must be dispensed with. There must be a new Act, with new nomenclature, that not only combines the relevant aspects of the extant and putative legislations but also develops new and relevant precepts on the basis for enforcement and also grounds for setting aside registration that improve on the traditional common law position in the light of current realities. This is one of those areas where legislative action is needed to actualise the policy thrust of Nigeria’s vision 20 20:20 agenda. Change should be done “thoughtfully, incrementally, pragmati-cally: crossing the river by feeling the stones”.122

121 See Art 3 ECOWAS Treaty for the aims and objectives of the organisation. Art 57(1) also pro-vides that “Member States undertake to co-operate in judicial and legal matters with a view to harmonizing their judicial and legal systems.” See Revised ECOWAS Treaty done at Cotonou on 24 July 1993, available at www.comm.ecowas.int (accessed 12 July 2013).

122 A Briggs, “Crossing the River by Feeling the Stones: Rethinking the Law on Foreign Judg-ments” (2004) 8 Singapore Year Book of International Law 1, 2.

Enforcement of Foreign Judgments in Nigeria

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