A COMPARATIVE ANALYSIS OF THE ENFORCEMENT OF FOREIGN JUDGMENT IN NIGERIA AND UNITED KINGDOM: A CASE FOR CYBER JURISDICTION

A COMPARATIVE ANALYSIS OF THE ENFORCEMENT OF FOREIGN JUDGMENT IN NIGERIA AND UNITED KINGDOM: A CASE FOR CYBER JURISDICTION

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CHAPTER ONE

GENERAL INTRODUCTION

1.1       BACKGROUND OF THE STUDY

A wise saying has it that, no man is an island, hence human interaction becomes necessary. The dynamic nature of this social interaction being what is occasionally brings about disputes or disagreements. To mend these disputes or disagreements, civilized societies in a bid to make life meaningful put some instruments in place. One of such instruments is law.[1] By the instrumentality of law, an aggrieved party normally goes to court of competent jurisdiction2 seeking for redress. One of the duties of court in this circumstance is to make order or declaration[2] as per the rights and the duties of the parties involved.

The matter does not however end with the court pronouncing its judgment,[3] recognition[4] and enforcement[5] of the court‟s judgment are the next procedures. Apart from declaratory judgments that are not enforceable,[6] other forms of judgment8 may need some form of compliance or the other in order to be realized. Otherwise, the successful litigant, called the judgment creditor, may have secured a pyrrhic victory.

If the party against whom judgment is given, called the judgment debtor willingly complies with the terms of the judgment, there will be no problem. But more often than not, the judgment debtor does not willingly comply with the terms of the judgment. Thus, there arises the need to compel him to do so through execution or enforcement procedure. This conforms to the general principle of law that judgment or order of the court must as far as possible be obeyed or complied with. Otherwise the authority of the court would be diminished and the legal order would suffer a breakdown.[7]

Again, if the enforcement or execution is to be carried out, in the jurisdiction or country in which the judgment is given, no much problem would arise. But a much more challenging circumstance showcases itself where the judgment creditor only after his success in the case realizes that, the fruit of his labour has to be satisfied abroad.

The question is, can judgment given by the court of one country be enforced by the court of another? This necessitates the study of feasibility of enforcing foreign judgment. Enforcement of foreign judgment is not a new phenomenon. It has long existed as a topic in the sphere of private international law. Besides the Rule of Common law, it is regulated by bilateral treaties[8] or multilateral international conventions.[9] This area of the law has gained prominence, at least of late, because of the advent of the internet and the age of globalization. Increase in cross border business transactions would naturally cause an upshot in litigation. This in turn would require national or municipal courts to decide whether a judgment or order obtained in a foreign country should be recognized or allowed to be enforced in their own country.

In Nigeria and the United Kingdom, it is well settled under both the common law and statutes[10] that the foreign judgment sought to be enforced must satisfy certain requirements as precondition to its enforcement or recognition.  The most essential of all the requirements for recognizing or enforcing foreign judgment is that the foreign court which rendered the judgment sought to be enforced is one of competent jurisdiction in the international sense.[11]

Underscoring the importance of jurisdiction as a condition precedent to recognition and enforcement procedure, a writer[12] states thus:

“In general, recognition or enforcement of foreign judgments may not be allowed if the foreign court acted without competent jurisdiction or if the defendant can avail himself of any of the limited number of defenses available”[13]

1.2       STATEMENT OF RESEARCH PROBLEM

Enforcement of foreign judgment has significant relevance in this era of increased international trade and foreign investment. Businessmen are more comfortable doing business with foreign partners knowing that if they obtain judgment from superior court in their home country; it can be enforced against the judgment debtor across borders.

This is what actually gave rise to conflict of laws as a course or private international law which is aim at making case for the enforcement of judgments obtain from one country in t another. The two counties that are the case study of this research work (Nigeria and the United Kingdom) have conditions or requirements a judgment must satisfy before its enforcement and the procedure of so doing which fall on all fours.

It has been well settled that by international laws of the two countries that a judgment given by a court of one country may not be capable of recognition or enforcement in another, except if the court that gave the judgment is one of competent jurisdiction in international sense. Once jurisdiction is lacking, the judgment becomes nullity[14]

Today the bulk of transactions are conducted online and breaches are occasioned from these transactions which may necessitates going to court. Hence, the concept of cyber – jurisdiction emerges. Cyber – jurisdiction unlike the ordinary territorial jurisdiction is placeless.

The above facts made the two scenarios fall apart, such that what suits one cannot certainly suit the other. Consequently, some scholars[15] see the regime of online transaction as an end to recognition and enforcement of foreign judgment. This skepticism is thought provoking that makes one to wonder whether these online transactions are not regulated by law such that breaches there from cannot be enforced. 

The statement of problem of this research work is that, the traditional jurisdictional principle in Nigeria and the United Kingdom that is geographically based cannot suit the cyberspace scenario which is placeless and disrespects geographical boundaries. Thus, there is no agreement on when can a foreign court be of competent jurisdiction to entertain an online matter capable of recognition and enforcement in another country.

1.3       AIM AND OBJECTIVES OF THE RESEARCH

The aim of this research work is to discuss the extant laws regulating recognition and enforcement of foreign judgments in Nigeria and the United Kingdom and since jurisdiction is the most important requirement for the recognition and enforcement of foreign judgment the research work looks at the relationship between recognition and enforcement of foreign judgment and cyber – jurisdiction as well as exploring the possible ways of addressing the challenge that cyber jurisdiction poses to recognition and enforcement. In particular, the research work aims at achieving the following objectives:

i.                    To make a comparative analysis of the requirements and procedure for recognition and enforcement of foreign judgment in Nigeria and United Kingdom. 

ii.                  To critically explore how the challenge that the cyberspace poses to enforcement of foreign judgments could best be addressed so that internet users can transact with peace of mind. 

iii.                To explore the possible relationship between the requirement for enforcement of foreign judgment and cyber-space.

1.4       JUSTIFICATION OF RESEARCH

As rightly pointed out above, no man can happily live in isolation. Therefore, interaction among people both at national and international level becomes inevitable. Today, technology has made this interaction easier, sometimes by a mere click of a computer mouse. 

Sadly as it may sound, disputes are bound to arise from time to time owing to the dynamic nature of life. Absence of any mechanism to address the likely disputes may extinct online international transaction for the fear of likely beach of commercial relationship and other civil wrongs which may go unenforced.

This research work is therefore justified, because is targeted at ascertaining the competence of one of these redressing mechanisms that is, the court to decide over these disputes involving foreign elements (foreign element means foreign law or a foreigner) from online transactions, as well as the procedure to be followed in realizing the fruits of the litigant‟s labour and the likely defenses that can be raised thereto.

This will infuse life into this dying area of the law and instills confidence in the minds of foreigners (Nigeria and British citizens) to transact online freely knowing that for every breach there is a corresponding remedy. 

1.5       SCOPE OF THE RESEARCH

The scope of this research work is basically Nigeria and the United Kingdom. Attention is placed particularly on the common law principles as they apply to these countries on the topic under consideration. The respective statutes of these two countries that is, Foreign Judgment (Reciprocal Enforcement) Acts of each and other related statutes are also examined with respect to the conditions and procedures of enforcement of foreign judgments as well as the position of cyber-jurisdiction.

1.6       RESEARCH METHODOLOGY

In carrying out this research, information were collected for an in depth analysis through doctrinal method of research that is through reading of books and other written materials such as statutes, cases, articles among others. Recourse was also be made to information stored online (the use of internet facility). 

Information is collated form these sources for in-depth analysis with a view to finding out the present position of the law and possible contribution to expand the frontier of knowledge in this regard.  

1.7       LITERATURE REVIEW

Recognition and enforcement of judgment is an aspect of private international law that attracted the attention of virtually all the renowned authors on the subject. Some authors have despite sporadic reference to recognition and enforcement of foreign judgment in various chapters also devoted a full chapter to it in their respective books. Perhaps because it is a prime topic, the whole mark of all private international proceedings. Under this head, a number of these books and other available literatures were reviewed to see especially their contributions on the aspect and the need for improvements.

Dicey and Morris,[16] in their book, discussed extensively the requirements and procedure of recognition and enforcement of judgment involving foreign element both under the common law and statutes as they apply to cases in or out of England and the rest of the world. However, the book did not make any attempt to address the recent issue of cyber-jurisdiction[17] and the challenge it poses to recognition and enforcement of foreign judgments. They did not discuss post registration procedure and their discussion on defenses was scanty. Again, the work has not specifically related to the situation obtained in Nigeria. 

Amba Myss[18] is an English writer. Although he discussed synoptically the applicable laws regulating jurisdiction, recognition and enforcement of judgment, he did not however dwell on defenses. Cyber-jurisdiction also falls outside the scope of his work.

Cheshire and North,[19] took pain to discuss extensively the principles of jurisdiction as prerequisite to a valid judgment capable of recognition or enforcement under different heads namely, jurisdiction in personam22 and jurisdiction in rem[20] under both common law and statutes. They further discussed limitations to those jurisdictional principles, and the defenses that can be raised against recognition or enforcement of foreign judgment. Like other writers, they did not discuss cyber-jurisdiction. Their work did not equally capture the recent trends on recognition or enforcement procedures, both forming the basis of this work.

Agbede[21] is one of the renowned authors in this area of law in Nigeria. His work substantially reflects the relevant laws applicable in Nigeria. He discussed choice of jurisdiction or inter-state situation, as well as jurisdiction in rem and in personam.

His discussion on the topic under consideration that is recognition and enforcement was minimal as he discussed only jurisdiction under the common law and statutes as a basis of recognition and enforcement of judgment. He did not have cyber-jurisdiction in contemplation, neither did he discussed defences against enforcement.

Kera, F. A.,25 this is a work that substantially goes close to the topic under study. The writer dealt with the issue of jurisdiction and recognition as well as the enforcement requirements. The writer recommends for further study on cyber jurisdiction. This forms the [22]basis of this research work. This research is going to make immense contribution on this recent aspect thereby upgrading the frontier of knowledge in this regard.

Linus, A. H.[23] highlighted the threats that e-commerce is facing as a result of inadequate checkmating mechanisms such as inadequate regulatory framework that is legislations, equipped courts that are properly manned by Judges vast in the workings of computer technology or the internet. As the title of his articles says, the writer addresses only the crimes militating the flourishing of e-commerce especially in Nigeria and the United Kingdom and the need for proactive measures to curb this menace.

Oba, C. O.[24] devoted her article to two aspects of enforcement of foreign judgments only in Nigeria. The first is the powers conferred on the Attorney General and Minister of Justice to make an order stating the countries with which Nigeria has reciprocal arrangements. The second is with the conditions for the registration of a foreign judgment particularly on the conferment of jurisdiction on the original court by the voluntary appearance of the defendant.

The writer urged for pro-activeness by the Minister to exercise the powers vested on him by S.3 of the Foreign Judgment (Reciprocal Enforcement) Act.28 And the need for amending the provision of S.6(2)(a)(ii)[25] both with a view to laying a good ground for promoting foreign investments in Nigeria.

Ekpeyong, E.[26][27] commences his discussion on the subject by stressing the importance of foreign judgment in an era of increase trade and foreign investment. Businessmen are more comfortable doing business with foreigners knowing that if they obtain judgment from a superior court in their home country; it can be enforced against the judgment debtor across borders.

He called for pro activeness on the part of the minister to give effect to the provision of section 3 of the Foreign Judgment (Reciprocal Enforcement) Act mandating him to extend the provisions of the Act to certain countries as a condition to the applicability of the Act. He submits the failure of the minister so act throws uncertainty in trans-border businesses in Nigeria.

He also called for the review of the section of the Act prohibiting the enforcement of judgments on taxes or other penalties of a like nature. Insisting that review the provision highlights the importance of cross border tax collection. Nigeria will gain more if it offers herself and other states the opportunity to recover fines, taxes and penalties against evading offenders by either amending her foreign judgment statutes to accord foreign judgment on fines, taxes and penalties the same status with monetary judgments or enter into bilateral multilateral treaties with other states to assist themselves on cross border fines, taxes and penalties. 

Globe, S.[28] in his article discussed the procedure for registration of foreign judgment in England. By English law, judgments coming into England from any of the European country is enforced on a particular rule of procedure called European Judgment – Regulation (EU) 12/5/12 of the European Parliament and of the Council of 12, December,2012 on Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels Regulation).

While judgments of Commonwealth states and states with which England has a bilateral treaty are enforced through different sets of laws. He went further to discuss requirements of enforcing these judgments both under those statutes and common law.

Olaniyan, A. H.[29] reviewed the judicial and legislative approaches of Nigeria to discretionary jurisdiction over foreign causes. He criticized the writ rule which permits suits to be maintained against person who has no other connection with Nigerian forum apart from their transient present here. He submits that, the rule makes it easy for a vindictive plaintiff to seek justice mixed with embracement against a helpless defendant. He discussed the three grounds upon which a court may decline to assume jurisdiction at common law under the writ rule which is otherwise mandatory. The grounds could be any of the followings; the ground of a successful plea of forum non-convenience, the ground of a contractual ouster of court jurisdiction and upon a successful plea of lis alibi pendes.

His discussion on the topic is limited to only personal jurisdiction as a basis to recognition and enforcement of foreign judgments leaving out other requirements to recognition and enforcement of foreign judgments which is intended to be covered by this research work.

Omoaka, G.[30] wrote on the legal regime for the enforcement of foreign judgments in Nigeria. Therein, he noted the fact that in Nigeria there are two legislations regulating the foreign judgments that are meant to be enforced in Nigeria. He also noted the fact that, there is confusion as to which of these legislations is applicable or the two legislations are applicable at the same time. 

He discussed the conditions that a foreign judgment seeking enforcement in Nigeria must satisfy. Such conditions include the fact that, the judgment must be final and conclusive between the parties thereto, it must be a judgment for a definite sum of money in favour   of a successful party and the judgment was delivered by a court of competent jurisdiction. He made emphasis on the importance of jurisdictional requirement. He discussed the requirements of assuming personal jurisdiction over a foreign defendant. He also stated the requirements of assuming jurisdiction on foreign properties, both movables and immovable. 

He rounded up his discussion on the subject by discussing the defences a defendant can raise against enforcement of a foreign judgment. If such defence is successful no enforcement can be executed against him and the judgment becomes a nullity.

Wallace, P.[31] titled his article, the Enforcement of Foreign Judgment under Nigerian Laws. While discussing this tittle, the author focuses on his attention on the following major subheads: Enforcement of Foreign Judgments under the Ordinance wherein the author stated the countries or colonies to which the Nigerian Ordinance on the subject applies. In the next subhead, the author noted that in the Ordinance the period within which an application for registration should be made is 12 months after the date of the judgment or such longer period as the court may permit. The succeeding sub-head is about the fact that the Ordinance comes into play only when the judgment seeking enforcement is a monetary judgment on a definite sum.

The author discussed g[32]rounds of refusing to enforce the judgment under the Ordinance. He stated the provisions of section 3(2)35 which provides for such grounds. He concluded his discussion under the Ordinance by highlighting the unfortunate consequences of section 3 (2),(b) as demonstrated by the case of Grosvenor Casinos Ltd vs. GhassanHoloui.[33]

The second part of his discussion was on the 1961 Act[34] and its provision as another legislation regulating the subject matter in Nigeria. The discussion of this part is in the same order the author discusses the provisions of the Ordinance above. The author did not however make the English provision equivalent to what is obtained in both the Ordinance and the Act the scope of his work.

Gbenga, B.[35] centers his discussion on the uncertain features of the Nigerian legislation on foreign judgment enforcement procedure that require utmost caution (ex abundaticautela) whenever a foreign judgment is sought to be enforced in Nigeria. He argued that, the uncertainty stems from the failure or negligence of the Attorney General and Minister of Justice to give effect to the provision of section 3 of the Foreign Judgment (Reciprocal Enforcement) Act39 that mandates him to designate countries to which part one of the Act applies. This failure or negligence of the Hon. Minister to so act leads to contradictory and conflicting decisions even by the Supreme Court hence the need for serious caution by any person seeking to register foreign judgment for enforcement in Nigeria.

His discussion centers squarely on the statutory provisions on enforcing foreign judgment in Nigeria without making reference to the provision of common law on the matter. He did not equally consider the provisions of other countries like the United Kingdom on the matter.

Paige, B.R.[36] undertook comparative study on foreign judgment enforcement


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