Article Review:
Foreign judgments in Nigerian courts in the last decade: a dawn of liberalization
The above article was published few weeks ago in (2017) 2 Netherlands Journal of Private International Law. The gist of the article for the benefit of Nigerian audience is as follows:
Abstract
“Nigeria has largely been governed by military dictators since it gained independence from Great Britain in 1960. Sustained democratic transition is a recent phenomenon and that, possibly, accounts for the recent increase in foreign direct investment, international trade and trade in services between Nigeria and its trading partners such as the European Union, China and the US. The surge in international trade has caused an increase in transnational litigation and requests for the enforcement of foreign judgments in Nigeria. An assessment of reported cases reveals that the majority of these cases were decided roughly between 2005 and 2015. There is a need to evaluate the Nigerian regime for enforcement of foreign judgments, with a particular focus on judicial opinions and legislative policy in this area. The article seeks to achieve this by analysing the two relevant statutes on judgment enforcement and judicial precedents over the last decade. The article finds that while reciprocity appears to be the policy behind the relevant statutes, the courts have adopted a liberal and pragmatic approach towards recognition and enforcement of foreign judgments. The article therefore concludes that while the liberal approach of the Nigerian Supreme Court is a welcome development, it needs to be supported by clear, consistent, and robust judicial reasoning. This will set a clear agenda for lawmakers tasked with aligning the relevant statutes with already established judicial approach and, above all, will make it easier to offer legal advice to foreign investors”
Summary
Since independence, Nigeria has largely been ruled by military dictators who typically suspend the Constitution and implement draconian decrees. The return to democratic rule in 1999 and the entrenchment of the rule of law have accounted for a recent increase in foreign direct investments, international trade, and services in Nigeria. This boosts investors’ confidence and creates assurance that an impartial tribunal can settle disputes and that the judgments are enforceable. Over the years, Nigerian trade relationships with major trading partners like the EU, US and China have increased. This trend has brought about an increase in transnational litigation and requires the enforcement of foreign judgments in Nigeria. While there is an established regime for recognition and enforcement of foreign judgments in Europe and with other key trading partners, a similar regime does not exist in Nigeria. The little work that has been done tends to focus on the more controversial aspects of this particular area of law rather than focusing on finding solutions to fill this gap. The thesis of the article is that while it cannot be denied that the legal regime for the enforcement of foreign judgments in Nigeria has been in crisis, a clear body of precedents has emerged in the last decade from the Supreme Court decisions which state that all foreign judgments are enforceable by common law action or statutory registration, and for the latter, this rule applies as long as the application is fi led within 12 months of the delivery of the judgment. The article departed from existing works- especially those of Olaniyan, Olawoyin, Olukolu and Bamodu- by arguing that the Supreme Court is motivated by pragmatic reasons to save foreign judgments from the reciprocity regime laid down in the relevant statutes. To support this argument, this article relied on relevant Supreme Court decisions and the decisions of the lower courts. It was argued that recent authorities appear to have laid to rest the controversies highlighted by existing works on the enforcement of foreign judgments in Nigeria. The author specifically reviewed and relied on decisions in cases such as Catco Corporation Organised v. African Reinsurance Corporation (2010) All FWLR 677; Kerian Ikpara Obasi v. Mikson Establishment Industries Ltd (2016) All FWLR 811; Teleglobe America, Inc v. 21st Century Technologies Limited (2008) LPELR-5006(CA). The author also reviewed most of the reported cases on foreign judgments to drive home salient points on the liberalisation of foreign judgments enforcement rules in Nigeria. Some of these cases that might interest practitioners include Idisi & Anor v. Bircham (2013) 12 CLRN 201, Vab Petroleum Inc v. Mr. Mike Momah (2013) LPELR-19770(SC), Crescent Africa (Ghana) Ltd v. Bronwen Energy Trading Ltd (2010) 1 CLRN 297, Access Bank v. Akingbola (2015) 5 CLRN, International Finance Corporation v. DSNL Off shore Limited & Ors amongst others.
Abubakri Yekini
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