The HCCH and and the Istanbul Bilgi University, Department of Private International Law, are organising a webinar on the 1996 Hague Child Protection Convention on 6 December 2022, 3 pm-5 pm (GMT +3).

The HCCH 1996 Child Protection Convention has been occupying a crucial spot for the protection of children in today’s globalized world, for more than 25 years. Experts from several countries, including central authority representatives, will discuss the convention, which tries to ensure that children are affected by intrafamilial disputes as little as possible, and will share their experiences as regards its application.

The webinar plan is as follows:

First Session

Moderator: Prof. Dr. Faruk Kerem Giray – Istanbul University Faculty of Law, Private International Law Department

• Introduction: “The HCCH 1996 Child Protection Convention: Main Features, Challenges and Opportunities After 25 Years” – Raquel Salinas Peixoto (on behalf of the Hague Conference on Private International Law)
• “Basic Concepts of the Convention, Role and Function of Central Authorities (GER)” – Christian Höhn – Germany, Central Authority, Federal Office of Justice
• “Basic Concepts of the Convention, Duties and Functions of Central Authorities (SUI)” – Joëlle Schickel-Küng – Switzerland, Central Authority, Co-Head, Private International Law Unit, Federal Office of Justice

Second Session

Moderator: Retired Judge Izzet Do?an

• “The Issue of Jurisdiction and General Experience of the Operation of the Convention” – Lord Justice Andrew MOYLAN – UK, Judge of the Court of Appeal, The Royal Courts of Justice, London
• “The Determination of the Applicable Law According to the HCCH 1996 Child Protection” – Judge Dr. Joanna GUTTZEIT – Germany, Judge of the Family Court, Local Court of Pankow (Richterin am Amtsgericht Pankow), Berlin, Liaison Judge of the International Hague Network of Judges
• “Recognition-Enforcement Pursuant to the Convention, and the Practical Benefits” – Carolina Marín Pedreño – Practitioner, Partner, Dawson Cornwell

The Chinese University of Hong Kong’ Cross-Border Legal issues Dialogue Seminar Series presents this online seminar by Professor Richard Garnett on 1st April 2022 12.30pm -2pm (Hong Kong time; GMT +8 hours).

The conflict of laws has traditionally drawn a sharp distinction between jurisdiction and applicable law. The conventional approach suggests that a court only reaches the question of the law to be applied to the merits after the tribunal has determined that it has the power to adjudicate the action. Common law systems have however long recognised that a court has a discretion to accept or decline jurisdiction (determine the appropriate forum) and that a relevant factor in this discretion is the applicable law.

The purpose of this presentation is to examine the current status of the applicable law in jurisdiction and forum disputes, noting the trend in countries such as Australia to give the factor substantial weight and significance.

About the speaker:

Richard Garnett is Professor of Private International Law at the University of Melbourne, Australia and a consultant in international disputes at Corrs Chambers Westgarth. Richard regularly advises on cross-border litigation and arbitration matters and has appeared as advocate (barrister) before several tribunals including the High Court of Australia. Richard has written extensively in the fields of conflict of laws, foreign state immunity and international arbitration, with his work cited by leading tribunals around the world, including the International Court of Justice, the European Court of Human Rights, the English Court of Appeal, United States federal district courts, the Singapore Court of Appeal and Australian, Israeli and New Zealand courts. Richard has also served as expert member of the Australian Government delegation to the Hague Conference on Private International Law, to negotiate the 2005 Hague Convention on Choice of Court Agreements and the 2019 Convention on Recognition and Enforcement of Foreign Judgments.

Please register by 5 pm, 31 March 2022 (Hong Kong time; GMT +8 hours) to attend the seminar.

The University of Szeged Faculty of Law and the ELKH Centre for Social Sciences, Institute for Legal Studies are organizing an international online conference: “Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts”. The conference will present the main results of the EU-funded CEPIL research project (“Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts”, 800789 — CEPIL — JUST-AG-2017/JUST-JCOO-AG-2017). The CEPIL project inquires whether EU PIL functions optimally in the CE Member States in order to secure “a Europe of law and justice”. It examines whether EU PIL instruments are applied in CE Member States in a correct and uniform manner, whether Member State courts deal appropriately with disputes having a cross-border element and whether the current legal and institutional architecture is susceptible of securing legal certainty and an effective remedy for cross-border litigants. The project’s research output will be published by Kluwer International.

The online conference will take place via Microsoft Teams on July 6, 2021. The full programme of the event is available here. Participation is free but online registration is kindly requested to receive the link to the conference, which will be emailed shortly before the event.

Written by Dr Abubakri Yekini, a Lecturer in Law at Lagos State University

This is the fourth and penultimate online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomicslaw.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, the second symposium was published by Anthony Kennedy, and the third symposium was published by Richard Mike Mlambe. A final blog post on this online symposium will be published tomorrow.

I. Introduction

Private international law (PIL) is not one of those fanciful subjects that command the attention of students, academics and practitioners at least in Nigeria. As important as this field, it is still largely ignored. Several legal commentators have called our attention to the poor state of PIL in Africa generally (Oppong, 2006; Okoli, 2019). So, we can say Nigeria is not standing alone here. Dr Oppong is one of those who are passionate about the development of PIL in Africa, and I may add Nigeria. In a piece titled ‘Private International Law and the African Economic Community: A Plea for Greater Attention’, he lamented the general state of neglect of PIL in the African economic integration project. What caught my attention in that article was his remark on the treatment of jurisdiction agreements in some African countries such as Angola and Mozambique. He noted that:

“This hostility to jurisdiction agreements is akin to Latin American countries’ historical disdain for similar clauses founded on their rejection of the principle of party autonomy- a principle so important in international commerce. This treatment of jurisdiction agreements can be a disincentive to international commercial relations since they are very much part of the current modes of dealing across national boundaries” (p.917)

Although Dr Oppong did not examine the attitude of Nigerian courts on this issue, his new work which he co-authored with Dr Okoli (Okoli and Oppong, 2020) gives us an insight. The book is an excellent piece. For the first time, students and practitioners can have access to an avalanche of Nigerian PIL cases and they can measure the mood of Nigerian courts on important subject matters such as jurisdiction agreements. This topic was conceived while reviewing the book.

In recent years, Nigeria has been making frantic efforts to turn around its economy. There is a consistent drive at improving the ease of doing business, and various investment promotion laws have also been enacted to that effect. However, we seem not to appreciate the nexus between PIL and the promotion of cross border commercial transactions. We agree with Dr Oppong that PIL has a role to play in making Nigeria attractive for international trade and commerce. International businesspersons are more interested in economies that enforce contracts, protect and secure property rights, and have simple and efficient dispute resolution mechanisms in place. Jurisdiction agreements are part of contractual terms. As observed from the analysis of Okoli and Oppong (2020), it is difficult to give a straight answer on whether jurisdiction agreements are enforced by Nigerian courts. This calls for great concern as a negative attitude to jurisdiction agreements can potentially disincentives the inflow of foreign direct investment or international business transactions to Nigeria generally. Even if such businesses must be done in Nigeria, the least is that the non-enforcement of jurisdiction agreements will lead to an increase in transaction cost since there are uncertainties surrounding the enforcement of contracts. Investors may envisage multiple proceedings and the cost of such proceedings are factored into the contract ab initio. They might also envisage that judgments obtained abroad may not be enforced by Nigeria courts that might have earlier exercised jurisdiction in breach of the agreement. There is also the tendency to have inconsistent judgments.  These uncertainties are drawbacks on whatever reforms the Nigerian government might have been carrying out in the area of trade and investment.

Jurisdiction agreements are otherwise called choice of court agreements. In most cases, they form part of the contract agreement. They come in various forms. They may be symmetric (exclusive or non-exclusive) or asymmetric where one party is free to choose any preferred forum and the other party is restricted to a particular venue. Jurisdiction agreement is party autonomy has been embraced in almost all jurisdictions. Like arbitration agreements, parties are allowed to contract out of certain jurisdictions. While a contract may be formed or executed in jurisdiction A and B, the parties may wish that their disputes be resolved in jurisdiction C. For instance, many international contracts choose English courts as their preferred venue for litigation. Several reasons have been offered for this. They include case management system of the English courts (procedural efficiency), expertise in English law and complex commercial transactions, the quality of the English bar, availability of varieties of interim measures, prioritisation of private justice, independence of the judiciary, pro-enforcement of contracts and judgments amongst others.

II. Jurisdiction agreements in Nigerian courts

What is the attitude of Nigerian courts to jurisdiction agreements? Theoretically, we may say that Nigerian courts enforce jurisdiction agreements. There are numerous precedents extolling party autonomy and the need to enforce contracts freely negotiated by parties. Nevertheless, in practice, Nigerian courts assume jurisdiction, in some cases, in breach of jurisdiction agreements. There is hardly any distinction between exclusive and non-exclusive jurisdiction agreements. From Okoli and Oppong (2020), and my assessment of reported cases, jurisdiction agreements have only been upheld in five cases: Nso v Seacor Marine (Bahamas) Inc (2008) LPELR-CA, Beaumont Resources Ltd v DWC Drilling Ltd (2017) LPELR-42814 (CA), Nika Fishing Co Ltd v Lavina Corporation (2008) 16 NWLR (Pt 1114) 509, Megatech Engineering Ltd Sky Vission Global  Networks LLC (2014) LPELR-22539 (CA) and Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699 (CA).

An analysis of the reported cases on jurisdiction agreements reveals that jurisdiction agreements are jettisoned on three main grounds as presented below.

1. The mischaracterisation of jurisdiction agreement as an ouster clause

Nigerian jurisdictional law generally lacks any coherent theoretical foundation. Okoli and Oppong’s treatment of the topic in chapter 5 attest to this fact. Credit must be given to them for an attempt to synchronise and present in an intelligible form, a body of precedents that is riddled with inconsistencies and contradictions. Unlike elsewhere where courts consider many factors (eg reasonableness, party autonomy, due process, proximity, foreseeability) when treating adjudicatory jurisdiction, Nigerian courts largely see it from the prisms of territorialism and power. It is no surprise that the courts are extremely protective/jealous of their power when a matter is connected to the forum. They generally frown at any attempt to divest the courts of their jurisdiction. Hence, they characterise jurisdiction agreements as ouster clauses.

This mischaracterisation can be traced to Sonnar (Nig.) Ltd. v Nordwind(1987) 4 NWLR (Pt.66) 520 where the Supreme Court imported this idea relying on The Fehmarn[1957] 1 W.L.R. 815. In this case, Oputa JSC had this to say on jurisdiction agreements:

“[A]s a matter of public policy our courts should not he too eager to divest themselves of jurisdiction conferred on them by the Constitution and by other laws simply because parties in their private contracts chose a foreign forum and a foreign law. Courts guard rather jealously their jurisdiction and even where there is an ouster of that jurisdiction by Statute It should be by clear and unequivocal words, If that is so, as indeed It is, how much less can parties by their private acts remove the jurisdiction properly and legally vested In our courts? Our courts should be in charge of their own proceedings. When it Is said that parties make their own contracts and that the courts will only give effect to their intention as expressed in and by the contract, that should generally be understood to mean and imply as contract which does not rob the court of its jurisdiction in favour of another foreign forum (p. 544 paras B-E)

While an earlier case of Ventujol v Compagnie Francaise  DeL’AfrriqueOccidentale  (1949) 19 NLR 32 mentioned an ouster clause, most recent cases rely on the above exceprt from Sonnar. Oputa’s view was recently echoed by Nweze JSC in Conoil v. Vitol S.A. (2018) 9 NWLR (Pt. 1625) 463 at 502, para A-B where his Lordship noted that: “our courts will only interrogate contracts which are designed to rob Nigerian courts of their jurisdiction in favour of foreign fora or where, by their acts, they are minded to remove the jurisdiction, properly and legally, vested in Nigerian courts.”

The Fehmarn was a 1957 English decision and may well reflect the mood of the courts in that era where party autonomy was still emerging. Two problems are identified here. First, laws should always be read in context. The Fehmarn did not treat jurisdiction agreement as an ouster clause. Rather, that case established the fact that a court which is properly seized, nevertheless, has the discretion to decline jurisdiction in deference to the parties’ jurisdiction agreement. The substance of The Fehmarn is that “where there is an express agreement to a foreign tribunal, clearly it requires a strong case to satisfy this court that that agreement should be overridden ” (p. 820). Second, many Nigerian lawyers have equally misunderstood the nature of jurisdiction agreements. In those cases where the courts have shown this combative attitude, some counsel have asked courts for dismissal on the ground that the courts lacked jurisdiction based on jurisdiction agreements.

A wrong characterisation leads to negative treatment. While ouster clauses are special statutory clauses which are meant to prevent courts from entertaining specific cases that engage state interest, jurisdiction agreements only appeal to the courts to decline jurisdiction in deference to parties’ choice. It is interesting to also note that an arbitration agreement is never treated as such and there area plethora of authorities on this point (For instance see Felak Concept Ltd. v. A.-G., Akwa Ibom State (2019) 8 NWLR (Pt. 1675) 433; Mainstreet Bank Capital Ltd. v. Nig. RE (2018) 14 NWLR (Pt. 1640) 423). One wonders whether there is any rational or legal basis to treat a jurisdiction agreement differently from an arbitration agreement.

2. Mandatory statutes

Some Nigeran statutes confer mandatory jurisdiction over some subject matters on Nigerian courts. The reasonability or otherwise of such sweeping and exclusive jurisdiction over matters that are purely civil and commercial will not be addressed here for want of space. Examples of these statutes are the Admiralty Jurisdiction Act and the Civil Aviation Act. One can sympathise with Nigerian courts when they are asked to enforce jurisdictional agreements which fall within the scope of these statutes. No amount of judicial pragmatism would override mandatory national statutes vesting exclusive jurisdiction in Nigerian courts. It was on this basis that the courts refused to enforce jurisdictional agreements in Swiss Air Transport Coy Ltd v African Continental Bank (1971) 1 NCLR 213, for instance.

3. Forum non conveniens

Forum non conveniens(FNC) is a pragmatic procedural mechanism developed by common law judges (even though it has a Scottish origin) to advance efficiency and justice in civil litigation. Many transactions have connections with more than one jurisdiction and parties would want to commence litigation in any of those fora that can deliver maximum results for them. In some cases, it may be simply to harass the opponent. Thus, where a court has jurisdiction over a matter under its national laws, it can decline jurisdiction (by staying an action) to allow parties to litigate in a more convenient forum.

FNC test as stipulated by Brandon J in The Eleftheria[1969] 2 All ER 641 has been adopted and applied by the Nigerian Supreme Court in Sonnar (Nig.) Ltd. v Nordwind. Brandon J was merely laying down general factors that the court should consider when asked to decline jurisdiction. Brandon test supports the enforcement of jurisdiction agreement. The underlying principles are largely based on convenience and justice. The case emphasised “a strong’” cause for assuming jurisdiction in breach of a jurisdiction agreement. The strong cause has further been qualified in subsequent cases such as Donohue v Armco Inc &Ors [2001] UKHL 64 where many FNC grounds were discountenanced (see para 24-39). The US Supreme Court would also require ‘some compelling and countervailing reasons’ to allow an action to proceed in a non-chosen court if the agreement was reached “by experienced and sophisticated businessmen” (See Bremen v. Zapata Offshore Co.92 S. Ct. 1907 (1972)). This is contrary to the Nigerian courts’ approach where any FNC test no matter how weak may displace foreign jurisdiction clause. The Supreme Court recently re-emphasised the approval of any of the FNCs grounds in Nika Fishing Co Ltd. However, an application for stay was granted in that case because the party in breach did not file any counter affidavit.

In Ubani v Jeco Shipping Lines (1989) 3 NSC 500 and Inlaks Ltd v Polish Ocean Lines (1989) 3 NSC 588, jurisdiction agreements were not enforced either because the matter would be statute-barred in the chosen jurisdiction or parties and evidence were located in Nigeria. It is conceded that one of the tests of FNC is the availability of an alternative forum. It can easily be argued that these decisions are justified on the ground of justice because the Claimants would not be able to file a claim in the chosen jurisdiction. However, there is a danger in applying FNC grounds to jurisdiction agreements. As rightly suggested in Donohue where jurisdiction agreement is in issue, FNC grounds should ordinarily not apply. Non-enforcement of jurisdiction agreement should be restricted to very strong reasons such as where third parties who are not bound by the agreement are parties to the suit or where the claim falls within the exclusive jurisdiction of the non-chosen forum (see Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90; Continental Bank NA v Aeakos Compania Naviera SA and Others [1994] 1 WLR 588). One can also add inability to sue in the chosen forum for reasons beyond parties’ control such as the ongoing global lockdown (RCD Holdings Ltd v LT Game International (Australia) Ltd [2020] QSC 318) or the protection of weaker parties like consumers and employees. This is the approach of the English courts and the same is followed in other commonwealth jurisdictions such as Australia (FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 559) and New Zealand (RCD Holdings Ltd v LT Game International (Australia) Ltd (supra); Kidd v van Heeren [1998] 1 NZLR 324). A party who agreed to litigate in a particular forum had contracted to be bound by the law and procedure of that jurisdiction. Limitation period, location of parties and evidence should not be a valid excuse without more. Put differently, inconvenience and procedural disadvantages should be discountenanced especially when those factors are forseeable when parties are negotiating the contract ()

III       Conclusion

Legal certainty and predictability of results are key values of modern PIL especially in the area of cross border commercial transactions. A PIL framework that is driven by these values will promote and enhance commercial activities because it is a risk management mechanism in itself. Businesspersons are interested to do business in jurisdictions where contracts are enforced. They want to make informed decisions about the governing law of the contracts, the jurisdiction in which contractual disputes are resolved, jurisdictions whose judgments can be respected and enforced abroad.

Courts ought to help parties to achieve their contractual goals. They should neither frustrate negotiated terms nor rewrite them for the parties provided it is a contract that is negotiated at arm’s length. Nigerian courts should promote party autonomy as much as practicable. With this approach, foreign businesses would take the Nigerian justice system seriously and would be confident to do business with Nigeria. It can potentially attract more FDIs to Nigeria if we earn the trust of foreign investors.

Non-enforcement of jurisdiction agreements disincentives commercial transactions because of litigation and enforcement risks. Assuming that foreign companies must do business with Nigerians nevertheless, these risks ultimately be factored into contractual negotiations as businessmen would not want to spend their profits on litigation in unfamiliar/non-chosen fora. Cost of doing business with Nigeria will invariably be higher and this will further lead to an increase in the cost of goods and services in Nigeria.

Based on the foregoing, it is only sensible that Nigerian courts should give maximum effect jurisdiction agreements. The first task is to get the legislators to review some of the extant legislation such as the Admiralty Jurisdiction Act and Civil Aviation Act which vest exclusive jurisdiction in Nigerian courts over a wide range of purely private commercial transactions. Also, the courts can learn from the developments in other jurisdictions, particularly, how “strong cause” has been redefined in the light of modern developments to admit of only genuine cases where it is either practically or reasonable impossible to litigate in the chosen forum or where non-parties are genuinely involved in the suit. Lastly, Nigeria needs to join the Hague Conference and the 2005 Choice of Court Convention. It will benefit from the rich jurisprudence and expertise available at the Hague Conference and foreign businesspersons will be assured of the commitment of Nigeria to the enforcement of jurisdiction agreements.

Written by Anthony Kennedy, Barrister at Serle Court

This is the second online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomicslaw.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong. More blog posts on this online symposium will follow this week.

Introduction

Authority exists for the proposition that a creditor of a foreign judgment may bring an action at common law in Nigeria, by which action he, in effect, seeks recognition and/or “enforcement” of that foreign judgment[1]. The common law action has not been abolished by statute or disapproved judicially but, sadly, it is not widely understood or used by practitioners/courts in Nigeria. This is unfortunate, especially where the statutory mechanism[2] for the enforcement of foreign judgments is certainly limited but otherwise shrouded in confusion[3]. This paper argues for a reawakening of the common law action.

The construction placed on the statutory regime

It is impossible properly to assess the scope for the common law action in Nigeria without first addressing the statutory mechanism for the enforcement of foreign judgments. The common law action only works in the space which has been left for it by the applicable statutory regime. Moreover, tactically, judgment creditors are likely to favour registration of the foreign judgment  under that statutory regime, where such registration is permitted, given the “better protection” which such regime affords them, at least theoretically, when compared with the common law[4].

With that in mind, the authorities yield the following propositions:

1. the Reciprocal Enforcement of Foreign Judgments Ordinance 1922 (the ‘1922 Ordinance’) is still in force and applies to those jurisdictions to which it was extended by Proclamation prior to the passing of the Foreign Judgments (Reciprocal Enforcement) Act 1961[5] (the ‘1961 Act’);

2. the provisions of the 1961 Act only come into effect upon the making of an order by the Minister of Justice (pursuant to Section 3 of the 1961 Act)[6] and no such order has yet been made; but

3. notwithstanding proposition 2, Section 10(a) of the 1961 Act does have effect, thereby providing the time limit within which the application to register a foreign judgment in Nigeria must be made[7]. Moreover, Section 10(a) of the 1961 Act applies even where the foreign judgment is from a jurisdiction to which neither the 1922 Ordinance nor the 1961 Act has been extended[8].

Difficulties generated by the legal profession’s approach to proposition 1

Proposition 1 holds, it is submitted, and, of itself, generates no difficulty for the continued existence and/or growth of the common law action. That said, the legal profession’s approach (and that of the courts) to proposition 1 has been problematic.

Two points are worth making here; both are demonstrative of problems which beset the current state of the law. First, insufficient attention has been paid to the consequence of proposition 1, meaning that its import has not been fully understood. This may, of course, be the result of practitioners and judges concentrating on establishing and endorsing proposition 1 (which process is still ongoing, given the difficult relationship between proposition 1 and proposition 3[9]). Even so, difficulty remains. By way of example: Section 3(1) of the 1922 Ordinance provides that an application for registration be made “at any time within twelve months after the date of the judgment, or such longer period as may be allowed by the court…” (italics added). Where one would have expected argument as to why the court should have, in the legitimate exercise of its discretion, extended the time within which the application could be made, one finds none[10]. A chance to establish when a judgment creditor might appeal to the court’s discretion[11], and, correlatively, when he might have to fall back on the common law action, has been missed.

The second point follows from the first. While, as noted, tactically less advantageous than registration under the statutory regime, Section 3(4) of the 1922 Ordinance allows a judgment creditor to bring an action at common law on the foreign judgment, rather than have it registered under the 1922 Ordinance itself[12]. In circumstances where courts have not heard substantial argument on the Section 3(1) discretion and/or have exhibited a hostile attitude towards extending the time within which to make the application for registration[13], one would have expected a much greater role carved out for the common law action; one remains disappointed. And doubly so because, while not free from all controversy[14], the common law action may be brought within a longer period of time than the 1922 Ordinance permits (if one discounts the fact that the court may, at its discretion, extend time thereunder). At a stroke – so long as the judgment debtor could demonstrate that the other requirements had been met[15] – reliance on the common law action would remove the judgment creditor’s need to act as swiftly as the 1922 Ordinance has been made to require[16].

Difficulties generated directly by proposition 3

The language in which Section 10(a) of the 1961 Act is couched gives rise to similar problems as those described when dealing with the first point under the previous sub-heading. Leaving those to the side, it is the second sentence of proposition 3 which poses the most significant risk to the continued life (such as it is) of the common law action in Nigeria. If “registration” is contemplated (or somehow required) when dealing with judgments from jurisdictions to which the statutory regime has not been extended, the common law action (which has nothing at all to do with “registration” of a foreign judgment) is rendered completely useless[17].

Several cases may be cited which combine to paint a rather gloomy picture in this regard. Teleglobe America Inc v 21st Century Technologies[18]is, as far as one can tell, the judiciary’s first (and so most egregious) brushstroke but others have since been added[19]. Taken collectively, they suggest that there is no room left for the common law action, even though there is Supreme Court authority which suggests that the statutory regime was not designed to kill it off.

To be sure, the statutory regime, properly construed, applies only to foreign judgments from a narrow field of jurisdictions. If this is thought to be a problem, the answer does not lie, it is submitted, in a distorted interpretation and application of that statutory regime. Supplementing (a narrow) statutory regime by allowing a judgment creditor to resort to the common law action makes sense: it recognises that the necessary reciprocity which underpins the statutory regime is absent in the majority of circumstances while, at the same time, preserving the judgment creditor’s ability to obtain the debt which the judgment debtor is said to owe, at least in circumstances where Nigerian legal policy (as set out in the rules which govern the common law action) thinks that he should. Judgments which treat this idea with kindness, or at least do not dismiss it out of hand, are to be welcomed[20].

Difficulties generated indirectly by proposition 3

If proposition 3’s formulation is the product of perceived problems either with the statutory regime or the common law action itself, that is most unfortunate. For, rather than alleviating those problems, proposition 3 rather ensures that they will continue, at least until action on the part of the legislator (which action appears to be some way off).

Removing the common law action from view means that the rules which govern that common law action cannot be changed by the judiciary (which change might allow certain kinks within those rules to be ironed out). To be sure, the common law world has not stood still in relation to the enforcement of foreign judgments: interesting questions remain to be explored. For instance, there is ongoing debate as to the circumstances in which a foreign court should be accorded international jurisdiction over the judgment debtor[21] and different views have been expressed regarding whether the common law may be used to enforce judgments from supra-national tribunals[22]. Consideration of these questions in Nigeria has been stymied by the side-lining of the common law action.

Perhaps even more importantly, with an eye to the future, deliberately obscuring the common law action prevents one from taking a clear view of the current Nigerian legal system, insofar as it relates to the enforcement of foreign judgments, and so, in turn, prevents an assessment of the merits of signing up to international projects, like the recent (and still draft) Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The answer to such questions is of supreme importance if Nigeria wishes to attract (legal) business from the continent as a whole. Those answers must be reached using all of the information available, which is why the common law action must somehow be revived.

[1]Alfred C Toepfer Inc v Edokpolor (1965) NCLR 89. More recently, see: Wilbros West Africa v Mcdonnel Contract Mining Ltd (2015) All FWLR 310.

[2] The overarching statutory regime for enforcement of foreign judgments comprises the Reciprocal Enforcement of Foreign Judgments Ordinance 1922 and the Foreign Judgments (Reciprocal Enforcement) Act 1961.

[3] Olawoyin, Enforcement of Foreign Judgments in Nigeria: Statutory Dualism and Disharmony of Law (2014) 10 JIPL 129, 140.

[4]CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020) 360.

[5]Macaulay v RZB of Austria (2003) 18 NWLR 282.

[6]Marine & General Assurance Company Plc v Overseas Union Insurance Ltd (2006) 4 NWLR 622; Grosvenor Casinos Ltd v Ghassan Halaoui (2009) 10 NWLR 309.

[7]Witt & Busch Ltd v Dale Power Systems PLC (2007) 17 NWLR 1.

[8]Teleglobe America Inc v 21^st Century Technologies Ltd (2008) 17 NWLR 108.

[9]VAB Petroleum Inc v Momah (2013) 14 NWLR 284.

[10] By way of example, see Macaulay, supra fn. 5, and Marine & General, supra fn. 6.

[11] For a recent example of when an English court might be likely to exercise a similar discretion, see: Berhad v Frazer-Nash Research Ltd[2018] EWHC 1848 (QB).

[12] Though, where he does so, he is subject to a costs penalty where the conditions in Section 3(4) of the 1922 Ordinance are not satisfied.

[13] See the cases cited supra fn. 10.

[14] Compare, for instance, the competing views of the proper period of limitation as expressed by Olaniyan, The Commonwealth model and conundrum in the enforcement of foreign judgement regime in Nigeria, (2014) Commonwealth Law Bulletin, 40:1, 76, 88 (who seemingly advocates a standard 12 year time limit) and Okoli and Frimpong Oppong “Private International Law in Nigeria”(Hart Publishing, 2020), at 358-359 (who state that it depends on the state of Nigeria in which the action is brought).

[15] As to which, see Okoli and Frimpong Oppong, supra fn. 14 at 351-358.

[16]In this respect, Ogbuagbu JSC’s judgment in Grosvenor, supra fn. 6, at 334-335 is particularly disappointing. See: Okoli and Frimpong Oppong, supra fn. 14, at 373.

[17] See, to similar effect, Olaniyan, supra fn. 14, 88.

[18]Supra fn. 8.

[19] See, inter alia, African Reinsurance Corp v Gilar Cosmetic Store (2010) All FWLR 1194 (concerning a judgment from Liberia) and Obasi v Mikson Establishment Industries Ltd (2016) 16 NWLR 335 (concerning a judgment from Niger).

[20]Wilbros, supra fn. 1. Even there, however, Counsel took great pains to say that this was not an attempt to enforce a foreign judgment and the reasoning of the court in relation to that submission is not always easy to understand.

[21] Compare the position adopted by the Supreme Court of Canada in (originally)Beals v Saldanha 2003 SCC 72 and (more recently) Club Resorts Ltd v Van Breda [2012] 1 SCR 572 with that of the English Supreme Court in Rubin v Eurofinance SA [2012] UKSC 46.

[22] Compare the decision of the South African Constitutional Court in Government of the Republic of Zimbabwe v Fick [2013] ZACC 22 with that of the Ghanaian Supreme Court in Republic v High Court (Commercial Division) Accra, ex parte AG NML Capital and Argentina, Civil Motion No J5/10/2013. For a Nigerian perspective, see: Adigun, Enforcing ECOWAS judgments in Nigeria through the Common Law Rule on the Enforcement of Foreign Judgments (2019) 15 JIPL 130.