The quest for dispute resolution in commercial transactions has no bounds especially by means of litigation.  Parties in a contractually relation are at liberty to agree on a choice of court agreement without necessarily being domiciled or being nationals or carrying on business in that forum of their choice. The reason for such choice of forums are numerous. For example England is a preferred forum for most complex commercial disputes especially in admiralty and complex financial transaction because it is presumed that the forum has an established legal framework with seasoned practitioners and judges with vast resume of experience in handling such specialized disputes. Moreso in cases of libel England is also a preferred forum because the claimant need not necessarily proof damages to be successful against the tort feasor, See Lewis V king [2004] EWCA Civ 1329.  One other major factor which influence choice of London court is the fast pace at which trials are been dispense with especially at the Royal Court of Justice with specialized subject matters divisions. After the Woolf Committee report which gave rise to the  extant Civil procedure Rules, civil matters could well be determined within 3months. See the Cases of Roman Abramovich vs. Boris Berezovsky [2012] EWHC 2463 , where English top law firms profits from two feuding Russian Oligarchs in a dispute that had no nexus with the Forum.

It is note worthy to state that the English Court has a wide scope in the way and manner it assume jurisdiction over a matter.  For example mere presence in the forum for a few hours is sufficient for the English court to assume jurisdiction over a party if the writ was served on the defendant at the time of his presence within the forum. That in most cases may be the only connection with such a party to the forum, it is immaterial whether the defendant is on transit on English soil (See Colt Industries Inc v Sarlie [1966] 1 WLR 440)  or on a visit to watch the Ascot race for a few hours from a foreign land.

 One interesting case is that of Maharanee of Baroda v Wildenstein (1972) 2 Q.B 283, in this case Two French residents, but ‘citizens of the world’ had a dispute over the sale of a painting, the Claimant issued a claim form in 1969, but did not serve it to the defendant until 1970 when the defendant came to England to attend the Ascot racecourse the defendant argued that the proper forum for trial was France that English proceedings were oppressive. The claimant argued that unless the trial is held in England, her witnesses cannot be forced to testify. The court in complete agreement with the plaintiff held that:

 “ the issue whether or not the painting was a genuine Boucher was one of fact and supra- national in character and both parties were in a sense citizens of the world, there was no reason why the plaintiff should not bring her action within the jurisdiction where she had the right to bring her expert witnesses before the court on subpoena and where the defendant would suffer no more than inconvenience. The claimant did no wrong in taking out a High Court writ in the first place (foreigner though she is) and serving it here at the first available opportunity upon the defendant (foreigner though he also is). Both in taking it out and serving it (albeit when the defendant was only fleetingly on British soil) she was doing no more than our law permits, even though it may have ruined his day at the races. Some might regard her action as bad form; none can legitimately condemn it as an abuse of legal process”

This basis has been widely criticized as an exorbitant basis, that English court are poaching the business of other forums, especially by the Civil law jurisdiction and more so by decisions of European Court of Justice (ECJ). However the English court have justified their rationale on territorial dominion.  As Lord Russell of Killowen CJ (1895) puts it succinctly:

 “ the jurisdiction of a court was based upon the principle of territorial dominion, and that all persons within territorial dominion owe their allegiance to its sovereign power and obedience to all its laws to the lawful jurisdiction of its court ”

Simply put if you are within the crown’s territory you are amenable to the crown’s jurisdiction. This in some cases is referred to as forum shopping.

 

Such orders or judgment when obtained in foreign land against judgmenet debtor with no real connection with the forum suffers some resistance when enforcement and recognition is sought,  same applies to arbitration awards which is largely govern by the New York Convention 1958.

 

Nigeria is not a party to any multilateral convention for the enforcement and recognition of foreign judgments. The enforcement of foreign judgments is governed by Reciprocal Enforcement of Judgments Ordinance, chapter 175, Laws of the Federation of Nigeria, 1958 which was passed in 1922 (the 1922 Ordinance) and the Foreign Judgments (Reciprocal Enforcement) Act, chapter F35, Laws of the Federation of Nigeria, 2004 which was passed in 1961 (the 1961 Act)

Section 3(1) of CAP .175. 1958 provides thus:

“ where a judgment has been obtained in the High Court in England or Ireland, or in the Court of session in Scotland, the judgment creditor may apply to a High Court at any time within twelve months after the date of the judgment of the court or such longer period as may be allowed by the lower court, to have the judgment registered in the court, and on any such application the court may, if in all circumstances of the case it thinks it is just and convenient that the judgment should be enforced in Nigeria, and subject to the provisions of this ordinance, order the judgment to be registered”

However, the same section sets out the hurdles which such foreign judgment faces when sought to be enforced pursuant to subsection 2 Cap 175.

 

I        The original court acted without jurisdiction; or

  1. The judgment debtor being the defendant in the proceedings was not duly served with the process of the original court, and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or

II.    The judgment was obtained by fraud; or

  1. The judgment debtor satisfied the court either that an appeal is pending, or that he is entitled and intends to appeal against the judgment; or
  2. The enforcement of the judgment would be contrary to public policy.

Recent decisions has called for an answer to the question which of the High Courts under the present constitutional framework in Nigeria  has the requisite jurisdiction over enforcement of  foreign judgments?  As we know Nigeria is federal state with a Federal court which jurisdiction is spelt out in Section 251 of the Constitution and various High Court  of the 36 States which jurisdiction is also spelt out in Section 272 of the Constitution.  What the  1958 statutes provides for is that the Judgment creditor may apply to a “High Court”. Giving it its literary interpretation one will simply presume it is the High Court of the State since the statute did not envisage the present Federal structure.  Another school of thought believe it is either the High Court or the Federal High Court depending on the subject matter.  Up till lately, previous decisions regarding enforcement of foreign Judgment have not probably had the opportunity to determine this question or it is has been ignired.  The rationale behind this to my mind is that in the spirit of reciprocity, the enforcing court need to give due deference to the foreign court by not necessarily reviewing how the foreign court assume jurisdiction as that might pose an affront or be seen as sitting on appeal over the foreign court jurisdiction. This is in line with the theory of comity and reciprocity.  Like the 1922 Ordinance, English Court also possess some conditions for enforcement of foreign judgment which is often times criticizes as double standard. In Adams v Cape Industries [1990] (CA) The English Court reviewed how the Texas court assumed jurisdiction over  an English Subsidiary when enforcement was sought in England.

It is the writers opinion about Section 3(1) and 3(2) of Cap 175 that they only recognize the “ High Court” these connotes a presumption that it is the High court  which will apply and carry into effect its provisions and which is the court that is already competent in its legal standing and legal status with respect to subject matter jurisdiction as the registering court authorized to substantively hear and determine the matter originally assuming it is the court at first instance, as a result there will be no jurisdictional encumbrance to such court entertaining the enforcement proceedings.

This question was extensively canvassed in the recent decision by  My Noble Lord, Hon Justice Candide-Johnson of the Lagos State Judiciary in Access Bank Plc V Akingbola, (2014) 3 CLRN pg 124,  I cannot help but Celebrate the invaluable contributions of both Learned Senior counsel for the respective parties, Chief Olanipekun (San) and Professor Ajayi (San) for advancing the law.  The arguments pros and cons were simply novel and out of the box. Like the trial judge alluded to the previously decided cases assumed what was not assumed by this question under discussion.

Is it relevant to take into cognizance the subject matter of the dispute adjudicated before the foreign court in order to ascertain which court will be more suited to entertain and determine the enforcement proceedings?   It is noteworthy to state that section 251 of the constitution provides for exclusive jurisdiction of the federal high court on certain subject matter to the exclusion of others, will that exclusively be taking into account when approaching the enforcing court.  This is similar to the issue in contention in the Akingbola case (supra). This focal issue for determination was whether or not High Court of Lagos state , as an institution of Nigerian Judicature, is a competent registering court in view of the provisions of the constitution of the federal republic of Nigeria 1999 ( as amended) having constitutional jurisdiction to undertake both a statutory registration and a statutory enforcement” of the foreign judgment  of Burton J.

In this case the decision sought to be enforced by the applicant  has to do with the interpretation of the CAMA 1990 CAP C20 which falls within the exclusive jurisdiction of the  Federal High Court. Suffice it to say the Federal High Court was established post 1922 ordinance which did not envisage the exclusive jurisdiction of  federal High Court. While i immensely appreciate the fine thinking of Professor Ajayi (SAN) that since the Federal High Court was established in 1973, it is was outside of, and should be excluded. From the contemplation, interpretation and application of the provisions of the 1922 ordinance, I tend to be drawn to the learned trial court’s reasoning who acceded to the arguments canvassed by Chief Olanipekun (San), that recourse has to be made to the dynamic evolution in the legal and constitutional regime of today’s Nigeria when giving interpretation to this 56 years old British ordinance though adjudged by the Apex Court in plethora of authorities as an existing law in the state.

The writer is completely swayed by the argument of Chief Olanipekun (San), that the 1958 ordinance as an existing law is to be interpreted and given effect with such modifications , as necessary, to bring it into conformity with the constitution. The supremacy of the constitution has the grundnorm cannot be overemphasized. In Bello v A.G Oyo state    (1986) it was held that “ an existing law can be subjected to modification intended to bring it into conformity with our Nigerian Constitution, by the mechanism of interfering, by invocation, the suitable and appropriate modification from the relevant constitutional provisions(s).

Jurisdiction is the capstone of every judicial adjudication. In the locus classicus of Madulkolu v Nkemdilim (1962) the Apex court held inter-alia that a court can only assume jurisdiction to entertain any matter when the subject-matter of the case is within the court’s jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction…..

From the foregoing, it is the writers contention owing to the latest decision of My Lord Justice Candide-Johnson J that the word  “High Court”  in the statute should  be giving a generic meaning not  limited to High Court of state,  recourse MUST be made to the constitutional jurisdiction of the subject matter which forms the judgment sought to be enforced. This is practically because A foreign judgment once registered in a High Court becomes a judgment of that Court upon which a certificate may issue in accordance with the provisions of the Sheriffs and Civil Processes Act, chapter S6 Laws of the Federation of Nigeria, 2004. In particular, Section 4(2) provides that a registered judgment shall for the purposes of execution, be of the same force and effect; and proceedings may be taken on a registered judgment; and the sum for which a judgment is registered shall carry interest; and the registering court shall have the same control over the execution of   registered judgment as if the judgment had been a judgment originally given in the registering court and entered on the date of registration. In other words, the enforcing court cannot turn a blind to the full import of the decision sought to be enforced by arrogating to itself a subject matter jurisdiction which it is originally excluded from by the provisions of the constitution.

Under the Brussels regime (i.e Recast regulation which is the extant law after the regulation 44/2001 was amended) a judgment given in a member state shall be recognized in the other state without special procedure being required, although there are some minor exception especially on public policy grounds which might occasion resistance or non recognition. Therefore subject matter jurisdiction is not considered. The underling objective of the Brussels regulation is comity and reciprocity.

However in England subject matter jurisdiction is not  accepted as a valid  bases for enforcement of foreign judgment. See CPR 6.36.

The Access Bank V Akingbola decision represent the law as at today we look forth to the reasoning of the appellate court when tested on appeal.

Michael Jonathan Numa LP, is the Managing Associate of Karina Tunyan (SAN) & Co. in  the Federal Capital Territory, Abuja.