RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT UNDER PRIVATE INTERNATIONAL LAW

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT UNDER PRIVATE INTERNATIONAL LAW

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CHAPTER ONE

GENERAL INTRODUCTION

1.1 INTRODUCTION

 Judgment, simply put, means a Courts final determination of a case which normally includes a decree and any order from which an appeal lies[1].  However, the foreign judgment (reciprocal enforcement) Act Cap F35[2][3] broadly defines judgment to mean “judgment or order given or made by a Court in any civil proceeding and shall include an award in proceeding on an arbitration…”   The import of this definition is that judgment is not restricted to decisions of the Court, but to include the final determination of an arbitration tribunal.  In this context, “Foreign judgment” can therefore be defined as a judgment delivered by a Court and arbitration tribunal other than the Court or arbitration tribunal of the forum.

 Everyday, people all over the world institute actions in Courts of law, either to enforce a right or to redress an injury.  This right can only be enforced or the injury redressed when the court determines the matter and not only give judgment but also enforced the judgment or alternatively, the plaintiff pursues the judgment before another judge in a different jurisdiction for its enforcement.  In conflict of laws parlance, this last judicial act is called enforcement of foreign judgment.  Therefore, recognition and enforcement of foreign judgment involves a court authenticating a judicial decision outside its jurisdiction, and taking necessary steps to cause a defendant to comply with the terms of the judgment.  

 The fundamental function of recognition and enforcement of foreign judgment is to provide for the judgment creditor the fruits of the judgment to obtain for him due satisfaction, compensation, performance and compliance with what the court has granted by way of relief or remedy[4].    This conforms with the general principles of law that judgment or order of the court must be obeyed or complied with, otherwise the authority of the court would be diminished and the legal order would suffer a breakdown4.

 This area of judicial process is growing in importance.  This is because the private citizen’s enjoyment of the right to travel more freely from one place to another, the development of internet and e-ecommerce in an increasingly globalised set of market means, that individuals voluntarily buy goods, incur debts and suffer loss and injury across country borders.  This economic relation which gives rise to social and domestic relations, there is a need for an enhanced judicial co-operation expedient, so that judgments proceeding from these relations can be recognized and enforced every where irrespective of territorial boundaries.

            Recognition and enforcement of foreign judgment started as far back as the seventeenth century in England[5].  Prior to that time foreign judgment had no direct operation in the English Courts and they do not extinguish an original cause of action[6]. A judgment creditor in the early days was expected to bring a fresh action against the defendant for enforcement of the judgment offered in his favour cases that concerned enforcement of foreign judgment were tried DE Novo with the foreign judgment serving as prima facie evidence.  But by the seventeenth century, the English Courts started recognising and enforcing foreign judgment.  Two reasons were advanced for their action. The first was based on the doctrine of “comity”.  The English judges believed that the law of nations required the Courts of one country to assist those of another, and they feared that if foreign judgment were not enforced in England, English judgment would not be enforced abroad. Therefore, in order to protect the English people’s interest, they started recognsing and enforcing judgment given in other jurisdiction as long as the judgments were given by Courts of competent jurisdiction.

 The second reason for the recognition and enforcement of foreign judgment by the English court was based on the doctrine of obligation[7].   By this, it means that the judgment rendered by a foreign court of competent jurisdiction imposes upon the defendant a duty or obligation to obey and discharge it.  It also places an equal right on the plaintiff to enforce that obligation through the English Courts.    This was clearly enunciated by Parke B. in Russels V Smith[8] and Williams V Jones[9] where he stated

thus:

We think that.....the true principle on which the judgment of foreign tribunals are enforced in England is.... that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the  defendant to pay the sum, of which judgment is given, which the Courts of this country are bound to enforced and consequently that anything which negates that duty forms a legal excuse for not performing it is a defence to the action.

This statement was approved by Blackburn later in Godard Vs Gray[10] and Schibsby V Westerholz[11].  Sequel to this statement any judgment given by a foreign Court with competent jurisdiction according to the English rules of  conflict of laws the judgment now becomes enforceable in England, unless it is given by reason of fraud, public policy etc and not mere prima facie evidence of the defendants liability as it used to be.

The recognition and enforcement of foreign judgment has been facilitated in different parts of the world by series of enactments providing for registration.   

For example, in Britain, the enactments were contained in the administration of Justice Act[12] which was enforced in some part of the British Commonwealth providing for the reciprocal enforcement of judgment and awards.  According to this Act, a judgment creditor who obtains judgment from a court within the British Commonwealth may within a certain time after the date of the judgment apply to a local court to have the judgment registered and enforced.  Once the judgment is registered it assumed the same status with a judgment of the court of registration.   The Act provide for the enforcement of judgment delivered by the Courts of those countries to which the Act applies. These territories are United Kingdom, New Zealand, Australian States but the Australian capital territory was not included.

 The English foreign judgment (reciprocal enforcement) Act 1933 was enacted to secure recognition and enforcement of English judgment in foreign countries on the basis of reciprocity, provides for the compulsory registration of judgment (Excluding Arbitral Award).  (Excluding Award). 

Unlike the Administration of Justice Act of 1920 which it was enacted to replace, it applies to all foreign judgment and not merely to judgments of Courts within the British Commonwealth.  Registration under this Act is as of right and not merely at discretion as in the  1920 Act.  

                               Aside from these enactments issues that are relevant to the

enforcement of foreign judgment are also frequently regulated by bilateral treaty and multinational conventions.  This include the Brussels convention on jurisdiction and enforcement of foreign judgment in civil and commercial matters 1968 which is enforced among the members of the European Union and the Hague convention on Private International law, 2004 which is presently ratified by Cyrus, Netherlands, Kuwait and Portugal.

 In Nigeria as earlier pointed out, legislative interference in the area of enforcement of foreign judgment dates back to colonial era when the reciprocal enforcement of foreign judgment Act 192213 was enacted for Nigeria.  This was followed by the foreign judgment (Reciprocal Enforcement) Act 1935. The 1935 Act never become operative as it was never brought into force in Nigeria and was omitted from the 1958 edition of the laws of federation.  The 1960 Act[13][14] followed the 1922 Act15.  The most current legislation on the subject matter is Cap F35[15].  The 1922 Act was omitted from the 1990 edition which is presently the 2004 edition of the laws of the federation of Nigeria, however, this omission does not warrant the conclusion that it has seize to have effect. In the case of Ibidapo V Lufthansa Airlines[16] it was held that the mere omission of any enactment does not amount to a repeal of that omitted enactment or order. Also the Court of Appeal had the opportunity to construe 3(2) of the revised edition (Laws of the Federation) Act 1990.  The Court of Appeal, after noting that the committee that revised the laws had no legislative powers so as to be able validly to repeal any otherwise existing law inter alias held:

The omission to be made cannot be equated with a repealing clause in an Act. For if the two were to give rise to the same result and effect, it would....have been unnecessary to have clause 3(2) in the revised edition of the Act of 1990.

               As regards the existence of the 1922 Act, sections 4,9 and 10 of Cap

F35 remained redundant until the minister exercise his power under section 3(i) to extend the application of part I of F35 to any country, otherwise the provision of section 3(i) will still be applicable.  In Macaulay V R. Z.B[17] of Austria - the Supreme Court after revising the fact of the case held that the case was brought more than 12 months after the judgment was given and that no leave was applied for extension of time and therefore struck out the registration of the judgment.

1.2        STATEMENT OF THE PROBLEM

                       Recognition and enforcement of foreign judgment concerns the

jurisdiction of a court to enforce a foreign judgment. Its guiding principles revolves around the doctrine of obligation and Reciprocity.  In this regard, foreign judgment operate as a res-judicata in favour of the defendant thus, where a person has had his day in a Court of competent jurisdiction, then the judgment of that Court should be conclusive on any future case built on the same matter. If this is done, it has the advantage of:

(a)              preventing waste of judicial machinery and expenses to both parties in re-litigating the case and

(b)              to avoiding substantive evil of having inconsistent judgment in

different jurisdiction[18].

 Despite the reasons given above capturing the relevance of recognition and enforcement of foreign judgment, not many cases are reported in our law reports on the issue.  This may not be unconnected with the fact that many affected parties and their lawyers are not aware of this process.  Again, the technicalities involved and attendant cost of bringing application in appropriate Courts might have serve to discourage would be litigants from engaging in the process.  The above problems are compounded by the fact that most textbooks that discuss the concept are foreign.  Thus, statutes and cases discussed are foreign.  This present not only problem to would be litigants and their lawyers in terms of proper understanding of the legal issue but even to this researcher who has to grapple with the problem of localising some of the principles and rules which are only obtainable in the foreign books, cases or statutes.  This, therefore, constitute the problem of this research.  Consequently, careful analysis of all legal issues involved in the recognition and enforcement process will not only help to popularise the concept but also proffer solution to difficulties involved in order to ease the hardship of prospective litigants.

1.3        AIMS AND OBJECTIVES

 This work is embarked upon to popularise the concept of recognition and enforcement of foreign judgment.  In other words the work intends to make an exposition of the rules of recognition and enforcement of foreign judgment under private international law.

 Some  times successful parties to a litigation may not be able to reap the benefits from their success because the process of enforcing the judgment is difficult, either because they do not know the technicalities involved in pursuing the enforcement of a given judgment in another jurisdiction or because it is cumbersome for a judgment obtained in one jurisdiction to be enforced in another, due to constraints of Courts schedule.    It is therefore the aim of this work to explain the procedure involved in enforcing a foreign judgment so that interested parties can take advantage of that to enforce judgment delivered in their favour. In furtherance of the above, we shall examine and analysed the jurisdiction of Courts in the enforcement of foreign judgment as provided by statutes such as the provision of the civil jurisdiction and judgment Act[19], the English judgment (Reciprocal enforcement) Act[20] and the Nigerian foreign judgment (Reciprocal Enforcement) Act[21]. The work also aims to identify problems militating against the Courts and parties in the recognition and enforcement of foreign judgment and to proffer suggestions on how the problems identified can be solved.  The work also aim to be an addition to the existing literature on conflict of laws generally and this topic in particular by local authors.

1.4         SCOPE AND LIMITATIONS OF THE RESEARCH

 Enforcement is the last stage of every judicial process after the right, claim or interest has been reduced into a judgment or order[22] .  In this regard this work is intended to study the extra-territorial enforcement of foreign judgment given by a superior court of law as a means of ensuring that foreign judgments are enforced irrespective of the state or country where the judgment is given and that people are not made to waste energy, time and money for the purpose of re-litigating a matter that has already been decided upon and judgment given. Though judgment is defined according to CAP F35 to include judgments of arbitral tribunals, this work will be limited to judgment given by a court in civil proceeding.  Geographically, the work ventured into the legal system of America, Netherlands, France, Italy, England and Nigeria for purposes of proper analysis on their legal regime, on the issue.

1.5        LITERATURE REVIEW

Recognition and enforcement of foreign judgment is one relevant area where private law differs from public law. The rationale behind the concept of recognition and enforcement of judgment in jurisdictions other than the forum where the judgment is obtained is to foster cooperation among nations.  Thus, while co-operation is the rule in private law, under public law every decision of a state or institution be that a Court or other authority has no effect beyond its borders.

 Furthermore, due to equality of legal system and Courts the world over,  judgment given by one court is expected to serve its purpose not only at the forum but in some other states or countries thereby serving as “Resjudicata”.  Recognition and enforcement of foreign judgment has been dealt with in several text books but unfortunately most of them are obsolete.  There are only a few of them that are fairly recent.  All the same, though the concept has been dealt with by writers, attentions don’t seem to have been given to the problems faced by successful litigants and the Courts in the enforcement of a judgment delivered by a foreign Court.

 P.M. North in his book Private International Law described Recognition and enforcement of judgment extensively ranging from the principles of recognition, judgment in rem and inpersonam to jurisdiction of the Courts as regards movable and immovable properties and defences available to the defendant.  However, he did not pay attention to the problems encountered by litigants at the time of enforcement.  

                        The Association of American law school in their book selected

readings on conflict of laws, treated this concept in the light of the full faith and credit system as it operate in the United State of America.  The book dealt with the historical background of the full faith and credit, judicial interpretation of the clause, its scope and application. Under the United State constitution judgment have such faith and credit given to them in the United states as they have by law a usage in the Court of the state from which they are taken.  The book also discussed enforcement of foreign judgment under Anglo American law in the light of unsatisfied money judgment rendered in actions in personam.  The scope of inquiry here did not extend to many questions relating to the Recognition or Enforcing special types of judgment such as far example, decrees other than for money or the judgment of Courts other than the Courts of Record[23].

 M.P. Mpom[24] in his book, the Basic principle, of conflict of laws made an examination of some of the legal issues involved in the enforcement of foreign judgment. For example, he questioned the idea of the provision of section 3 of the Nigerian foreign judgment Act which provides for the power of the Minister of justice to extend the provision of part I of the Act to countries giving reciprocal treatment to Nigerian judgment Abroad, in his words “the principle is rather insular” this is because any country that does not reciprocate by recognising and enforcing Nigerian judgments will have its judgment recognized and enforced in Nigeria and Vice-Versa.  However, he did not dwell on the problems encountered by the litigants in pursuing a judgment before a judge in another jurisdiction.

                                                  26

J.H.C, Morris in his book the Conflict of Laws dealt with enforcement in the light of judgment rendered inside and outside the European Economic Commission.  The former according to him, are governed by common law as answered and reinforced by statutes. While in the latter case recognition and enforcement of foreign judgment are governed exclusively by the civil jurisdiction and judgments Act of 1982. He distinguished between recognition  and enforcement of foreign judgment and analysed the position of the law for recognition and enforcement of foreign judgment outside the European Economic Commission (EEC).  However, he did not include other jurisdiction like Nigeria and some other Commonwealth countries and paid no attention whatsoever to the problems of enforcement of foreign judgment.

 Prof. I.O. Agbede a Nigerian author in his book, Themes on Conflict of Laws did not touch very much on the issue of enforcement of foreign judgment. He concentrated on the limits of application of foreign law, public policy and conflict justice, Nigerian conflict of laws, domicile in Nigeria and conflict of tort law.  He, however, commented on the application of public policy as it relates to foreign judgment.  According to him, he wonder whether the rule that English Courts will not give effect to a foreign judgment which has been procured by fraud or where the defendant has not been given an opportunity to put his case in truly a rule of limitation for if the alleged fraud, for example had been brought to the knowledge of the

26. Supra at P.3

foreign Court, the judgment might have been reversed.  Assuming that the foreign Court would pay no regard to these elemental notions of justice, it may well be that the subjects of such a foreign state are not likely to view such judicial practice as unjust.  It may simply represent their own standard of justice.  He pointed out that if England has no reasonable connection with the issue or the parties, there can be no justification, one imagines, for the importation of English standards of justice into the issue.  He therefore concluded that it appears that public policy reservation serves as a corrective measure against the defects of the forum conflict rules that a rule of limitation on the application of foreign laws and decisions.

 Though many text books out of which a few are cited above have dealt extensively with issues concerning the enforcement of foreign judgment, but as pointed out above little or no attention was paid to difficulties encountered by judgment creditors or successful litigants in pursuing a judgment before a judge in another jurisdiction for enforcement. 

1.6       JUSTIFICATION

 The justification for embarking on this research is to make an exposition of the rules governing the concept of recognition and enforcement of foreign judgment.   

 The need to make an exposition of the rules becomes necessary because international trade and investment is being promoted all over the world.  This, as earlier pointed, has positive effect of promoting social relations amongst people worldwide who are subject of various legal systems. The world itself has been reduced into a global village, consequently the need for enhanced judicial co-operation for a cheap, popular and ease judicial process that can ensure effective resolution of dispute pertaining trade, marriage etc need no gain saying.

 However, as has been pointed in 1.4 above many successful litigants have been denied this opportunity because even when judgment is given in their favour, the process of enforcement becomes difficult either because the successful party does not know the rules guiding recognition and enforcement of foreign judgment because the technicalities involved an attendant cost of bringing application in appropriate Courts.  For instance, in the European Union the requirement of due and timely service of the document instituting the proceedings in the state of origin has emerged as a significant obstacle to the enforcement of defaults judgment.  In some other places a judgment creditor may have to wait several months for his application to be dealt with because of the constraints of the court schedule. All these problems tend to cause hardship to the successful litigants thereby defeating the cause of justice which is the fundamental basis of the conflict of laws of which the concept is a part and parcel.

 The above underscore the justification of this work. Consequently the work will focus on analysing these and other problem associated with recognition and enforcement of foreign judgment at the end of which solutions will be proffered.

1.7       SIGNIFICANCE

 One very important aspect of conflict of laws is the fact that a judgment obtained in a foreign court can be enforced in the forum by the utilization of the internal conflict of laws mechanism embodied in the conflict rules on the subject[25].  This is to help a private person who succeeded in a litigation benefit from the fruits of his success.  However, many lawyers/academicians are not aware of the rules of recognition and enforcement of foreign judgment not to talk of lay members of the public. This work therefore becomes handy and useful by making an exposition of the rules of recognition and enforcement of foreign judgment as provided under the common law and statutes such as the English foreign judgment (Reciprocal enforcement) Act


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