CIVIL LITIGATION: JUDGMENT AND ENFORCEMENT OF JUDGMENT IN NIGERIA

So, we gradually getting close to the end of the lectures, at this point of civil litigation as a process not course, we should have knowledge on;

a)      Jurisdiction

b)      Parties to a suit and designation of parties

c)      Modes of commencing action at the Magistrate court and High Court

d)      The various documents to be filled, and how to draft each processes as the claimant or defendant

e)      Interlocutory applications

f)       Motions, affidavit and written address

g)      Pre-trial and Trial Procedure

h)       Evidential issues during trial.

So currently, we working on an assumption that trial have commenced and finally it has come to an end.

                                                JUDGMENT

Literally speaking, judgment is the end result of a trial. In SARAKI V KOTOYE defined as;

            ‘’binding authentic, official and judicial determination of the court in respect of claims and in an action before it’’

Constitutionally, the Judgment of the court can be referred to as the ‘’decision’’ of the court which means;

            ‘’…any determination of that court and includes judgment; decree, order conviction, sentence or recommendation’’ see SECTION 318 CFRN 1999 AS AMMENDED.

CHARACTERISTICS OF A VALID JUDGMENT

1.      It must be in writing: this is constitutional requirement by virtue of Section 294(1) CFRN;

        ‘’ Every court established under the constitution shall deliver its decision in writing…’’

2.      

 It is to be delivered not later than 90 days after the conclusion of evidence and Final Address

3.      Delivered in public. See Section 36(3) CFRN, ORDER 35 RULE 1 LAG, ORDER 39 RULE 1.

N.B: Open court means a place accessible to the members of the public. A judgment delivered in chambers is a nullity and vitiates the entire proceedings. See NIGERIA-ARAB BANK V BARRI ENGINEERING (NIG) LTD

N.B: EXCEPTIONS;

a)      where such proceedings in open court would be against public safety, public morality, public order

b)      persons under the age of 18 years

c)      the interest of defense

4.      it should demonstrate a full and dispassionate consideration of all issues properly raised and heard and the result must reflect such exercise see OJOGBUE V NNUHIA

5.      The court must not grant a judgment in excess or outside the claim before it. See EKPENYONG V NYONG

N.B: that the court may give a consequential or ancillary order even though they were not claimed. A perfect example is the case of AMAECHI V INEC

POSER: WHAT IS THE ROLE OF THE JUDGE IN REACHING A DECISION

1.      He admits evidence that has been pleaded and  relevant and it is in an admissible form…see ACB V ALHAJI GWAGWADA

2.      He properly evaluate the evidence admitted

3.      He weighs the testimony adduced by both parties in an imaginary scale

4.      Finding of facts are reached after the evaluation of evidence

5.      He applies the applicable law to the finding of the fact.

FORMAT OF WRITING A JUDGMENT

1.      The Claim is set out

2.      The pleadings

3.      The issues arising for determination

4.      Consideration and evaluation of evidence

5.      Findings of facts

6.      Applicable laws

7.      Relief granted

See MOGAJI V ODOFIN

POSER: WHAT IS THE EFFECT OF NON COMPLIANCE WITH S. 294(1) OF THE CFRN?

RULE: The judgment should be delivered in writing not later than 90 days after conclusion of evidence and final address…..

So, if this provision is not followed the effects are;

1.     

 The decision of the court shall not be set aside or treated as a nullity solely on the ground of non-compliance with S. 294(1) unless that non-compliance occasioned a miscarriage of justice.

2. On appeal, where the court determines or observes that there was non-compliance with subsection (1) of S. 294, the person presiding at the sitting of the court shall send the case to the chairman of the National Judicial Council. –S. 294(6)

TYPES OF JUDGMENT

1.      CONSENT JUDGMENT: This is a form of judgment given after parties have agreed to settle out of court then a Terms of Settlement is filled to the court, the court then pronounce the judgment based on this agreement. WOLUCHEM V WOKAMA. The rule is that such a judgment is binding on the parties and it is a final judgment and cannot be set aside by the same court on the agreement of the parties. AISA V BABAJIDE

However, for there to be consent judgment, the parties must be ad idem as far as the agreement is concerned and their consent must be free and voluntary.

N.B Under the rules of court;

a)      The consent of the DEFENDANT is to be given by his legal Practitioner or agent before any consent judgment may be entered. Order 35 rule 6 LAGOS.

b)      Where not represented by counsel, the defendant must appear in court and give his consent in open court. Order 35 R. 7 LAGOS

In UTC (NIG) LTD V PAMOTEI

The Supreme court held that a consent judgment once passed and entered can only be set aside save on appeal, even if it was entered under a mistake

AMORI V IYANDA (2008) 3 NWLR (PT 1074) 250; other grounds are;

a)      Where it was obtained by fraud

b)      Where it was obtained by Misrepresentation or non disclosure of a material fact that was an obligation to disclose

c)      Where it was obtained under duress

d)      Where it was concluded under a mutual mistake of fact and

e)      Where it was obtained without proper authority

N.B: By virtue of Section 241 (c) to appeal a consent judgment thou being a final decision, you will need the leave of court to appeal. The leave must first be applied to the trail court.

DRAFTING OF THE TERMS OF SETTLEMENT

a)      Heading of the court

b)      Reference no

c)      Parties

d)      Heading: TERMS OF SETTLEMENT

e)      Content will be the terms agreed upon

f)       Date

g)      Attestation of both parties

2.      DEFAULT JUDGMENT: This was defined in UTC (NIG) LTD V PAMOTEI: a judgment obtained by a plaintiff in reliance on some omission on the part of the defendant in respect of something which he is directed to do by the Rules.

N.B: A default Judgment thou a final judgment but since it is not on merit, it can be set aside.

N.B It can be set aside by either the court that gave judgment or a court of co-ordinate jurisdiction on application. EMODI V KWENTOH

UNDER THE RULES;

IN LAGOS; ORDER 20 RULE 12; provides that the grounds to set it aside are; ground of fraud, non-service or want of jurisdiction.

The applicant should show on application to set aside that;

a)      The reasons for the default

b)      There was no undue delay in bringing the application

c)      The application is not prejudicial to the judgment creditor

d)      The court will also consider the conduct of the applicant.

3.      NON-SUIT: this is an order given where satisfactory evidence is not given entitling both the Claimant and defendant to the judgment of the court. See ORDER 34 RULE 1 LAG, CRAIG V CRAIG

N.B: Conditions for this order are;

a) Satisfactory evidence is not given

b) The legal practitioners shall be invited to make submission about the propriety or otherwise of making such order

EFFECTS OF THE ORDER: It is not a final decision although it terminates the proceeding but the plaintiff has another chance to institute the same action

4.      ORDER OF DISMISSAL: This is an order given after the case has been heard on merits and the claimant fails entirely to prove his case

EFFECTS OF THE ORDER: It renders the court a funtus office, meaning that it a final decision that concludes the rights of the parties and can only be appealed.

5.      JUDGEMENT IN REM: A Judgment given to bind the whole world, and not only the parties to the action. E.g; Matrimonial Causes action, Bakruptcy

6.      JUDGMENT IN PERSONAM: A form of judgment given that has a binding effect on the parties that are before the court. And the parties include; Privies Agents, Representative, Legal successors of the parties.Similarly, a person whose interest will be necessary affected by the outcome of an action but who sat by and did not take steps to be joined in such action will be bound by the decision.

7.      DECLARATORY JUDGMENT: This is a form of judgment that merely declares the rights and duties of the parties in the action and does not contain specific order to be carried out by, or enforced against the defendant.

8.      EXECUTORY JUDGMENT: This is a form of judgment which declare the respective rights of the parties and then proceed to order the defendant to act in a particular way; example, to pay damages…..OKOYA V SANTILI

9.      INTERLOCUTORY JUDGMENT: In simple words it a form of judgement that merely disposes of an issue in the course of the proceeding, it does not dispose of the rights of the parties finally

10.  FINAL JUDGEMENT: This is a form of judgment that disposes the rights and liabilities of the parties finally in the suit. GOMWALK V OKOSA

DIFFERENCES BETWEEN INTERLOCUTORY AND FINAL JUDGMENT

 IN OMONUWA V OSHODI: the court tends to differentiate the two;

‘’where the nature of the application does not aim at finally determining the claim in dispute between the parties, but only deals with an issue, both application and order are INTERLOCUTORY, BUT where an application has the effect by the order of finally determining the claim before the court, the order may properly be regarded as FINAL’

N.B: For final judgment, a party has to appeal against the decision WITHIN 3 MONTHS of its delivery; S. 25 Court of Appeal Act while for interlocutory judgment; a party has 14days to appeal against it.

N.B: Where a court takes a decision that it does not have jurisdiction it becomes a final decision, whereas where the court finds that it has jurisdiction, it is an interlocutory decision.

ENFORCEMENT OF JUDGMENT

RULE: Once a Judgment has been given by the court it remains valid until it is set aside. However, due to failure of one of the party to comply with the decision of the court, some coercive methods must be used to ensure due compliance with the judgment.

PARTIES TO EXECUTION: There are usually two parties to execution, the judgment creditor and the Judgment debtor. A judgment creditor is the party in whose favor the judgment or order was made and subsist. WHILE a Judgment debtor is the party against whom the judgment or order was made.

But where it is a Garnishee proceedings, there are usually 3 parties, the Judgment Creditor becomes the Garnishor, the Judgment debtor and a third party against whom the proceedings are taken called the Garnishee.

NB: The person legally charged with the enforcing or executing judgments and orders of court are:

a)      Sheriff

b)      Deputy sheriff

c)      Bailiff.

TIME FOR EXECUTING OF JUDGMENT

RULE: Every order of the court made commands immediate authority and must be obeyed without demand immediately after the order has been made. HOWEVER, the judgment itself may stipulate a time it when it should take effect

SO, where there has been no compliance with the judgment of the court, the execution of the judgment can only commence;

1.     

 If the court gives a specific date when the judgment should take effect then after the expiration of the specified period of time of the court

2.      Where no time have been stipulated by the court;

a.       For writ of possession it is 14 days from the day the judgment was given

b.      For other processes of execution it will be 3 days from the day the judgment was given ….ORDER 4 RULE 1 (2) JUDGMENT AND ENFORCEMENT RULES

N.B: The writ of execution or other process of execution has a life span of one (1) year from the date of issue. See Order 4 r 10 JER which provides that any process, if unexecuted shall remain in force for one year only. AND execution shall not be effected on a Sunday or Public Holiday, nor before 6 a.m nor after 6 p.m, unless the judge or magistrate directs otherwise by order endorsed on the process to be executed. See ORDER 2 RULE 4 JER

N.B Application for issuance of execution process is made to the Registrar either;

a)      By completing and filing Precipe form or

b)      By mere written application stating; suit no, parties, date of judgment, nature of the process

See ORDER 4 RULE 4 & 5 JER

                              MODES OF ENFORCING JUDGMENT

The mode of enforcing a judgment or order of court will depend on the nature of the particular judgment or order made. In GOVERNMENT OF GONGOLA V. TUKUR the Supreme Court per Nnaemeka Agu enumerated the methods of enforcing different kinds of judgment as follows:

1. A judgment or order for the payment of money may be enforced by a Writ of Fieri facias, garnishee proceedings, a charging order, a writ of sequestration or an order for committal on judgment debtor summons.
2. A judgment for possession of land may be enforced by a Writ of possession, a Writ of sequestration or committal order.
3. A judgment for delivery of goods may be enforced by a writ of specific delivery or restitution or their value, a Writ of sequestration or writ of Committal.
4.  A judgment ordering or restraining the doing of an act may be enforced by an order of committal or a writ of sequestration against the property of the disobedient person.

For these see Sections 20, 24, 25, 35, 38, 44, 55, 57, 58, 65, 82 and 83 of the Sheriffs and Civil Process Act, cap S6 LFN 2004

1.      WRIT OF FIERI FACIAS

This is also known as ‘’writ of fifa’’. This is issues by the Registrar on the application of the Judgment creditor. It can be executed against the Judgment debtor’s movable or immovable property or both of them. BUT  take note that it is only when the movable properties are not sufficient to satisfy the debt that a writ of execution will be issued for the sale of the immovable properties of the Judgement debtor and the Leave of the court is required to do this.

HOW DOES IT WORK: The writ empowers the Sheriff to; (SECTION 25 SHERRIF AND CIVIL PROCES ACT)

a)      Seize any goods and chattel of the person against whom the execution is levied

b)      He levies or causes to be levied by distress and sale of his goods and chattels wherever they may be found within the division or magisterial district of the court

c)      He may also seize any money, bank note, bills of exchange, promissory notes, bond, specialties or securities for money belonging to that person

HOWEVER, the act provides that he cannot seize the wearing apparels of that Judgment debtor or that of his family and the tool and implements of his trade, to the value of TEN NAIRA

N.B(Until the act be reviewed this is not a limitation because in actual sense no goods are worth #10)

THE PROCEDURE

1.      The Judgment Creditor shall file an Application with the Registrar for a WRIT OF FIFA in FORM 3 of 1^st Schedule to the SHERRIF AND CIVIL PROCESS ACT (PRAECIPE FORM) ORDER 4 RULE 15

N.B: The Form is in two parts. The applicant fills the first part stating the name and address of the judgment debtor or a sufficient identification of him thereof. After paying the appropriate assessment fees, the Registrar indorses on the Form in the second part, the date and hour of the application together with the sum of money payable under the judgment and the costs of execution

2.       

It shall not be issued until the expiration of 3 days from the day of Judgment except with the leave of court. See ORDER 4 RULE 1 (2) JER

3.      After the 3 days and execution is carried out, against the judgment debtor movable property and it not satisfactory to settle the judgment debt.

By virtue of SECTION 44 OF THE SHERIFF AND CIVIL PROCESS ACT provides that;

                  ‘’….if no movable property of the Judgment debtor can with reasonable diligence be found or if such property is insufficient to satisfy the judgment and costs and the costs of execution the judgment debtor is the owner of any immovable property, the judgment creditor may apply to the court for a writ of execution against the immovable property of the judgment debtor…..’’

4.      An application for leave to make execution on his immovable property which would be brought via Motion on Notice, Affidavit and Written Address

5.      The affidavit must show;

a)      Steps if any already taken to enforce the Judgment and with what effect

b)      What sum now remains due under the Judgment and

c)      That no movable property of the Judgment debtor, or no none sufficient to satisfy the Judgment debt, can with reasonable diligence be found…….SEE ORDER 4 RULE 16 JER

6.      If  leave is granted, the registrar issues writ, as in form 38 in the 1^st Schedule to the Judgment Enforcement Rules, after issuance the immovable property will be attached

7.      The immovable property shall be sold 15 days after the attachment unless the Judgment debtor requests otherwise in writing, then it can be sold earlier

8.      The sale shall be made in the principal court house of the division in which the property is situated, or on the land attached, or at such other place as may be appointed by the Sheriff or in case of dispute the Judge on the application of any person concerned

9.      The sale shall take place between the hour of 7am and 8pm and it is by public auction and not by private contract unless the court otherwise order…..see generally  ORDER 7 RULE 6 OF JER

THE APPLICATION OF THE PROCEEDS OF SALE

SEE ORDER 7 RULE 5 JUDGMENT ENFORCEMENT RULES

a)      Pay the amount due and unpaid for Sheriff’s, bailiff’s and appraiser’s fees and expenses

b)      Pay the prescribed fees and expenses of sale to the auctioneer if any

c)      Pay the amount to be levied, (Judgment debt), together with costs paid by the Judgment creditor subsequent to the issue of the Writ, if any: to the Judgment creditor directly or through the registrar of the home court

d)      The balance to the Judgment debtor

2.      GARNISHEE PROCEEDINGS

ORDINARY MEANING: This is a procedure whereby the Judgment creditor that has been given judgment knows that there is a 3^rd party who is owing the judgment debtor a certain amount of money enough to satisfy the Judgment debt as well as costs.

In this proceeding we have 3 parties; the Judgment Creditor becomes the Garnishor, the Judgment debtor and a third party against whom the proceedings are taken called the Garnishee.

RULE: Not all money with the 3^rd party is attachable, it must be established that the money with the 3^rd party is certain and the money owing must be due and accruable to be liable to garnishment at the time of executing the judgment.

LIMITATION;

a)      It applicable if the garnishee is indebted to the judgment debtor and is within the jurisdiction of the court where the judgment is given. See SECTION 83 SHERIFF AND CIVIL PROCESS ACT

N.B: In relation to debt, any amount of money standing to the credit of the savings account of the judgment debtor has been held to be a debt within the meaning of debt owed by another person to the judgment debtor

b)      Where the person to be garnisheed is a public officer, the consent of the Attorney General is required in the case of money in the custody or control of a public officer. See SECTION 84 SHERIFF AND CIVIL PROCESS ACT

THE PROCEDURE

N.B: Garnishee proceeding may be commenced in any court in which the Judgment debtor could sue the garnishee in respect of the debt, in accordance with the appropriate rules of court. See ORDER 8 RULE 2 JER

a)      The Judgment creditor shall file an application via Ex-parte supported by Affidavit and Written Address

b)      The affidavit shall contain

i.                    Names, addresses and occupation of the judgment creditor, the judgment debtor and the garnishee

ii.                  That judgment has been given and on what date

iii.                The judgment is still unsatisfied

iv.                The amount of the judgment debt that remains unsatisfied

v.                  That any other person is indebted to the judgment debtor and is within the state

c)      On the day of hearing of the Ex-parte application, if court is satisfied it enters a garnishee order nissi in FORM 26

d)      Therefore, at least 14 days before the day of hearing a copy of the order nissi shall be served upon the garnishee and on the Judgment debtor.

N.B: The effects of the ORDER NISSI; it binds the garnishee and attaches the debt due from him to the judgment debtor in the manner the court will direct. See SECTION 85 SHERIFF AND CIVIL PROCESS AC, and if he does anything with the debt contrary to the Order Nissi, he will be liable for contempt of court.

e)      where the Garnishee is served with an order nissi, he can either pay the amount of debt or dispute it

f)       where he pays the amount in court, the proceeding terminates

g)      where he disputes, he will file a counter affidavit to showing cause why he should not pay over to the judgment creditor the debt due from him to the judgment debtor

h)      on the date of hearing TWO THINGS MAY HAPPEN;

i.                    where he successfully dispute the debt, the court will discharge him from the ORDER NISSI and the garnishee application is struck out

ii.                  where he is unable to successfully dispute the debt, the order nissi is made absolute

i)        after the order becomes absolute, the garnishee must pay the debt due

j)        where he fails to pay the debt due , appropriate writ of execution can be issued against him as if he were the judgment debtor under the judgment.

3.      JUDGMENT SUMMON

MEANING: This is issued against a judgment debtor on the application of the judgment creditor for intentionally refusing to make payment of any sum recovered against him or any installment thereof, he is to appear and be examined on oath as to his means. See SECTION 55 (1) SHERIFF AND CIVIL PROCESS ACT.

THE PROCEDURE

a)      The Judgment Creditor applies by filling a Praecipe in the appropriate FORMS 13- 15 in the 1^st Schedule to the ACT and pays the fee

b)      A date for hearing is fixed and the summon is personally served on the Judgment debtor

c)      The judgment summon should be filed in the Judicial division in which the judgment debtor resdies or carries business. See Generally SECTION 55 (2) SHERIFF AND CIVIL PROCESS ACT

d)      On the hearing date, the judgment debtor will be examined on oath as to his means, the court may make one or more of the following orders;

i.                    An order committing the judgment debtor to prison for any term not exceeding six weeks if it be proved to the satisfaction of the court that the judgment debtor has, since the time of the judgment or order, the means to pay the sum in respect of which he has made default.                 

ii.                  An order for attachment and sale of the judgment debtor’s property.

iii.                An order for payment of money by instalments or otherwise by the judgment debtor.

iv.                An order for the discharge of the judgment debtor from prison. See SECTION 63 SHERIFFS AND CIVIL PROCESS ACT

4.      PAYMENT BY INSTALLMENT

This is applied for by the Judgment debtor where he is willing to pay the judgment sum but is unable to pay the total sum at once or immediately.

See ORDER 39 RULE 8 ABUJA;

            ‘’Where a judgment or order directs the payments of money, the court may for any sufficient reason, order that the amount shall be paid by installments with or without interest’’

THE PROCEDURE

Application is by Motion on Notice supported by affidavit showing good cause and a wriiten address.

5.      ENFORCEMENT OF JUDGMENT FOR RECOVERY OF POSSESSION OF LAND

This is usually enforced by a WRIT OF POSSESSION

THE PROCEDURE

a)      By filling a praecipe form 3 in the 1^st schedule to the SHERIFF AND CIVIL PROCESS ACT

b)      The writ is issued upon filling the above form and the writ must contain the description of the property of which possession is to be given

c)      The Sheriff is empowered to enter upon the land and cause the judgment creditor to have possession of the land or recover it from the judgment creditor.

N.B: A WRIT OF POSSESSION shall not be issued until after the expiration of the day fixed in the judgment for the delivery of possession by the judgment debtor and if no day is fixed by the judgment, until after the expiration of 14 days from the day on which judgment is given. See ORDER 4 RULE 1 (1) JER

6.      ENFORCEMENT OF JUDGMENT FOR DELIVERY OF GOODS

This is usually enforced by WRIT OF DELIVERY

THE PROCEDURE

a)      The Judgment creditor files FORM 67 if it is for delivery of good

b)      If in addition to delivery of good, there is payment of sum of money  by the Judgment debtor, then he files FORM 68

c)      The writ is addressed to the Sheriff  requiring him to seize the goods in respect of which the order of delivery was made by the court wherever the goods may be found within the division or district of the issuing court and to deliver same to the judgment creditor.

7.      EXECUTION BY WRIT OF SEQUESTRATION

This is a mode of enforcement of judgment against the property of a person against whom an order or warrant of arrest, commitment or imprisonment issues is not and cannot be found, or is taken and detained in custody without obeying the judgment. See SECTION 82 SHERIFFS AND CIVIL PROCESS ACT

THE PROCEDURE

a)      The judgment creditor makes an application via a motion on Notice supported by Affidavit for the issue of writ of sequestration in FORM 69

b)      The writ is directed to two or more commissioners to be appointed by the court for that purpose

c)      They are commanded and empowered to enter upon immovable property of the person against whom the writ shall issue and to collect, take and get into their hands, not only the rents and profits of his immovable property, but to detain and keep the same under sequestration in their hands until he shall clear his contempt or the court makes other order to the contrary. SEE ORDER 11 RULE 8 JER

The circumstances under which a writ of sequestration may issue are:

(a) Where an order or warrant of arrest, commitment, or imprisonment has been issued against a judgment debtor but he cannot be found and
consequently the execution of the order or warrant against him is not possible; he may have gone into hiding or just disappeared in order to
evade or frustrate the execution;

(b) Where he has been arrested and detained in custody for failing to obey the judgment of the court but in spite of the arrest and detention
persists in his disobedience of that judgment.

EFFECTS OF THIS ORDER;

a)      The writ empowers the commissioners to take possession of the property of the person against whom the writ was issued as a means of ensuring that he complies with the judgment.

b)      The writ of sequestration is not to attach and sell the property of the judgment debtor. Nevertheless, the court can order the payment of the cost of the proceedings, out of the proceeds of such sequestration. It only binds the property and temporary vests the commissioners with possession and not power to sell.

ENFORCEMENT OF JUDGMENT OF ONE STATE IN ANOTHER STATE

Generally, the judgment of any superior court of record is enforceable  in  any part of the Federation as this is guaranteed by the constitution. See SECTION 287 CFRN 1999 AS AMENDED

THE PROCEDURE SECTION 104-110 SHERIFF AND CIVIL PROCESS ACT

1.      The Judgment Creditor applies for and obtains Certificate of Judgment from the Registrar of the High Court that gave the judgment. The Certificate must be duly signed and sealed by the Registrar

2. The judgment creditor takes the Certificate to the State in which he intends to execute it and registers it with the Registrar of a Court of similar jurisdiction with the one that gave the judgment.
3. The Registrar of the enforcing court shall the particulars of the judgment in a book called “the Nigerian Register of Judgments”.
4. After registration, the judgment would become a record of the court and have the same effect as judgment of that court – section 105(2) SCPA. That is, from the moment of registration, the enforcing court can deal with the judgment as if it was given by it. It can therefore execute it.
5. Normal processes of levying execution of judgment will be taken on it.

HOWEVER, by virtue of section 107 SCPA, before the judgment can be enforced on registration, the judgment creditor must depose to an affidavit stating either of the following:

a)      That the amount in the process has become due but unpaid; or

b)      That an act ordered to be done remains undone; or

c)      That the person ordered to forebear from doing an act has disobeyed the order.

After execution, the registrar of the enforcing court shall file a report under seal of the court of the outcome of the execution notifying the registrar of the court where the judgment was given, that the judgment has been satisfied either wholly or in part. See ELECTRICAL & MECHANICAL CONSTRUCTION CO LTD v. TOTAL NIG LTD. This is known as REPORT OF EXECUTION

ENFORCEMENT OF FOREIGN JUDGMETNTS

Foreign judgments can be enforced in Nigeria through any of the following two ways:

1.      By an action at common law

2. By reciprocity or reciprocal enforcement

Enforcement by Action at Common Law

At common law, the judgment of a court of one country may be enforced in another country by way of an action commenced in a court of that foreign country, using the judgment as the cause of action.

RULE 1: To enforce a foreign judgment in Nigeria, the judgment creditor must institute an action in a Nigerian court claiming the reliefs granted him by the foreign court, using the judgment as his cause of action.

RULE2: The action should be commenced under the summary judgment procedures as it needs not go through the entire gamut of a substantive trial.

RULE 3: Only judgments of a superior court of a foreign country will be enforced in Nigeria and the enforcement of foreign judgments by an action at common law can only be done by a High Court in Nigeria. Therefore, the superior court in the foreign country must be of same or higher status than a High Court in Nigeria.

In PEENOK LTD v. HOTEL PRESIDENTIAL LTD, it was held that for the enforcement of a foreign judgment through an action at common law to be successful, the foreign judgment must satisfy the following requirements:

a)      The judgment must be final and conclusive’

b)      The judgment must have been delivered by a court of competent jurisdiction

c)      The judgment must be for a definite sum of money, provided that it is not money recoverable as tax, penalty or fine; and

d)     If the judgment is for a res other than money, the res must have been situate at the jurisdiction of the foreign court that gave the judgment, as at the time of delivery.

N.B: Not all judgments are enforceable by this method. Any foreign judgment to which Part I  of the Foreign Judgment (Reciprocal Enforcement) Act  applies cannot be enforced in Nigeria through an action at common law, but can only be so enforced through registration under the Act. (Reciprocity). That is, any judgment to which reciprocal enforcement applies cannot be enforced by action at common law. See section 8 Foreign Judgment (Reciprocal Enforcement) Act.

RECIPROCAL ENFORCEMENT

Enforcement of foreign judgments under this process is done on the basis of reciprocity. That is, the foreign country whose court delivered the judgment must also be ready to enforce the judgment of Nigerian courts in its own country. Such countries that are engaged in reciprocal enforcement with Nigeria are those to be listed in an order mande by the Minister of Justice under Part I of the Foreign Judgment (Reciprocal Enforcement) Act. Till date, no such order has been made.

To be enforceable in Nigeria;

a)      The foreign judgment must be of a superior court in that country, that is High Court status or above. See section 3(1) Foreign Judgment (Reciprocal Enforcement) Act.

b)      The judgment must be final and conclusive, though there may be a pending appeal in the country of origin.

c)      There must also be payable under, a sum of money which is not money recoverable as tax, fine or penalty. See section 3(2) Foreign Judgment (Reciprocal Enforcement) Act.

REGISTRATION: for such a foreign judgment to be enforceable in Nigeria, it must be registered under the Act within six(6) years of its delivery or if there is a pending appeal, within six(6) years of the determination of the appeal. See section 4(1) Foreign Judgment (Reciprocal Enforcement) Act.

The application for registration is by way of Motion on Notice, supported by affidavit and address. The affidavit must show that the foreign country from which the judgment came would render reciprocal enforcement to Nigerian Judgments or else, it would not be registered.

A foreign judgment would also not be registered in Nigeria if at the date of the application, it is not capable of execution in its country of origin. See section 4(1) Foreign Judgment (Reciprocal Enforcement) Act.

On registration, the High court in Nigeria can now enforce it as if it were its own judgment. See section 4(2) Foreign Judgment (Reciprocal Enforcement) Act. However, it cannot order instalmental payments. See GOODCHILD v. ONWUKA

If the judgment sum is in foreign currency, it will be registered in Nigerian currency at the prevailing exchange rate as at the date of the judgment. See section 4(2) Foreign Judgment (Reciprocal Enforcement) Act.

The judgment debtor may apply to set aside the registration of the foreign judgment on any of the following grounds:

1)      That the judgment is not one to which Part I of Foreign Judgment (Reciprocal Enforcement) Act applies, or that the act has not been complied with

2)      That the court in the foreign country had no jurisdiction to give the judgment. See Peenok Ltd v. Hotel Presidential Ltd.

3)      That the judgment was obtained by fraud

4)      That the enforcement of the judgment would be contrary to public policy in Nigeria

5)      That the applicant is not the person vested with the rights under the judgment

6)      That the judgment was in respect of a matter which was res judicata as at the date it was delivered in the foreign country..

See section 6 Foreign Judgment (Reciprocal Enforcement) Act; IFC v. DSNL OFFSHORE LTD (2008) 9 NWLR (Pt. 1093)606.

Application to set aside the registration of a foreign judgment is by way of PETITION. See IFC v. DSNL OFFSHORE LTD (2008) 9 NWLR (Pt. 1093)606; Rule 12 of the Reciprocal Enforcement of Judgment Rules.