Tag Archive for: Online Symposium

Open Online Conference on International Recovery of Maintenance by Public Bodies on May 15th, 2024

The following announcement has been shared with us by the Child Support Forum.

The Child Support Forum is pleased to invite every interested stakeholder to an open conference deepening the topic of cross-border maintenance recovery by public bodies.

Due to the increase in international mobility of families, the need for immediate child support in case of default of maintenance payment is growing. This support often consists of advance maintenance payments granted by public authorities, which then must be reimbursed by the debtor. The enormous sums of money that states spend on these benefits make the cross-border enforcement of maintenance by public bodies an important political issue.

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Webinar 6 December: From All Aspects: The HCCH 1996 Child Protection Convention

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

SDGs and Private International Law: webinar 5 December

The Centre for Private International Law of the University of Aberdeen is organsing a webinar in its Crossroads in Private International Law Series, The Private Side of Transforming Our World: UN Sustainable Development Goals 2030 and the Role of Private International Law. The webinar will take place on 5 December 2022 at 2 pm (GMT).

Prof Dr Verónica Ruiz Abou-Nigm (Chair of Private International Law, School of Law, University of Edinburgh) will focus on the role of private international law in implementing the sustainable development goals (SDGs) of the United Nations 2030 Agenda and highlight, however, that it is essential to assess the impact of contemporary approaches in PIL on the realisation of the SDGs in a changeable legal landscape. She was one of the editors of the volume The Private Side of Transforming our World (Intersentia, 2021), which demonstrates that private international law is as an integral part of the global legal architecture needed to turn the SDGs into reality.

The event will be moderated by Prof Laura Carballo Piñeiro of the Universida de Vigo.

Interested persons should please register.

Determining the Appropriate Forum by the Applicable Law by Prof. Richard Garnett (1 April Online)

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.


Call for Abstracts on Transnational Dispute Resolution in an increasingly digitalized world.

The call for abstracts for the ‘Transnational Dispute Resolution in an Increasingly Digitalized World’ conference is now open until 1 December 2021. This online conference will be hosted by the Center for the Future of Dispute Resolution at Ghent University on Thursday 24 March 2022.

The increased digitalization in the field dispute resolution, which received a boost from the Covid-19 pandemic, raises a number of important questions in terms of privacy, cybersecurity, data protection and artificial intelligence, going from rather practical concerns (how to protect the information exchanged, how to organize the taking of evidence, how to comply with the various obligations, etc.) to more fundamental inquiries (does it scare litigants off, does it foster or rather compromise efficiency, etc.).

The goal of the conference is to bring together academics, practitioners and policy makers with expertise in the field of dispute resolution (arbitration, transnational litigation, mediation, other ADR mechanisms) and technology law. That is why we are particularly (but not exclusively) interested in contributions that focus on

  • Obligations of the actors of justice
  • Challenges and opportunities of (partial) online proceedings
  • Evidentiary issues related to cybersecurity and data protection
  • The (ab)use of these instruments as a dispute resolution strategy

and discuss these forward-looking dispute resolution topics in light of the various privacy, data protection, cybersecurity and AI regulations.

Ph.D. candidates, senior researchers and legal practitioners are invited to submit an abstract (on one of the topics above or on a topic of their own choice relating to the general theme) by 1 December 2021 to Maud.Piers@ugent.be and Wannes.Vandenbussche@ugent.be. Abstracts should be no longer than 1000 words. Authors of selected abstracts will be notified by 10 January 2022.

All contributions should be in English. This online conference is intended to serve as a first opportunity to present and discuss the authors’ ideas. Publication venues for the final papers will also be explored.

Should you have any questions please do not hesitate to contact the two members of the organizing committee.

Maud Piers

Wannes Vandenbussche

Online conference Cross-Border Litigation in Central-Europe

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.

A call for the wider study of Private International Law in Africa: A Review of Private International Law In Nigeria

Written by Orji Agwu Uka, Senior Associate at Africa Law Practice (ALP)*

This is the fifth and final online symposium on Private International Law in Nigeria initially announced on this blogIt 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, the third symposium was published by Richard Mike Mlambe, and the fourth symposium was published by Dr Abubakri Yekini.

Private International Law in Nigeria

For too long, law students in Nigerian universities have largely considered Private International Law [or Conflict of Laws as it is more commonly known in Nigeria] as an esoteric subject. Most students avoid it because of the adverse effect they think it is sure to have on their cumulative grade points average and the seeming lack of practical benefit of the subject to their future law practices. They do not know any better. Nigerian legal practitioners have had to provide legal advice and represent clients before trial and appellate courts as well as arbitral tribunals on disputes involving private international law questions within the context of Nigerian law. Those pieces of advice and legal representations would have benefitted greatly from a comprehensive private international law treatise. On their part, Nigerian courts have had to meander through the maze of interpreting questions of private international law without the benefit of the direction that high quality academic works [available in some other subject areas] provide. I am gratified to announce that finally, a Daniel is come to judgment.

Since Nigeria’s return to civilian rule in 1999, there have been significant increase in cross border trade, international business transactions and foreign investments in Nigeria. Successive Nigerian governments across all tiers have made the attraction of foreign investments a cardinal part of their economic policies and have accordingly made deliberate efforts and committed abundant resources to attract foreign investments into Nigeria.[1]This accords with the preponderance of opinion to the effect that, with the right economic policies, FDI inflow into developing economies can be a major catalyst for economic development.[2] With these activities however, have come the resultant need for increased attention to the body of laws in Nigeria that regulate transactions with multi-jurisdictional elements.

In a recent article, I called for increased study of private international law in Africa and the establishment of a harmonised private international legal regime especially in the context of the Agreement establishing the African Continental Free Trade Area (AfCFTA) which came into force on 30 May 2019.[3] I argued that the economic integration and the concomitant growth in international relationships that are sure to result from these integration efforts will undoubtedly lead to a rise in cross border disputes, which call for resolution using the instrumentality of private international law. That call, especially in the case of Nigeria, was significantly handicapped by the absence of a treatise length textbook on the subject.

Interestingly, I had, in that article, borrowed heavily from the writings of Professor Richard Frimpong Oppong, a renowned private international law expert in Africa, and Dr Chukwuma Samuel Okoli, a Postdoctoral Researcher at T. M. C. Asser Institute in the Hague and a prolific writer in the field of private international law in Nigeria. Writing on the importance of a private international law system that responds to the interests of Africa, Dr Okoli observed that with growing international trade with Africa comes an inevitable rise in disputes among contracting parties conducting trade on the continent.[4]According to him, when these disputes arise, questions such as what courts have jurisdiction, what law(s) should apply, and whether a foreign judgment will be recognised and enforced by the courts of African States, will need to be resolved for international trade to run smoothly.[5]

On his part, Professor Oppong, argued that a well-developed and harmonised private international law regime is an indispensable element in any economic community and can play a significant role in addressing issues such as the promotion of international trade and investment, immigration, regional economic integration, globalisation and legal pluralism.[6] It is altogether fitting that these two will join forces to produce the first treatise length textbook on private international law in Nigeria and it is against the foregoing backdrop that I wholeheartedly welcome the product of their collaboration – Private International Law in Nigeria.[7]

The book examines Nigerian law rules, principles, and doctrines for the resolution of disputes with cross-border components. The authors begin by tackling the elephant in the room which is to provide a helpful explanation of the conceptual and preliminary issues which constitute the most intricate aspects of private international law. The concepts addressed are Characterisation; Substance and Procedure; and of course, Renvoi which the authors wittingly recall has been described in the past as a subject loved by academics, hated by students and ignored by lawyers and judges. There is also a special treatment of the concept of domicile which is one of the cardinal concepts in the field of English private international law and by necessary implication that of Nigeria, and which is one of the fundamental connecting factors that indicate the law or jurisdiction that governs a dispute particularly in matters related to jurisdiction, family law, property law, and other issues affecting the legal rights and privileges of parties.

The book expertly navigates the topic of jurisdiction, a cardinal concept under Nigerian adjectival law, but which in some cases is weaponised and has now acquired exaggerated notoriety to the extent that it now constitutes a cog in the wheel of the smooth and timely determination of cases in Nigeria. To avoid the monster that jurisdiction as a concept has developed into, the book carefully focuses on a consideration of jurisdiction in actions in personam. The authors consider the rules for determining jurisdiction in actions in personam and the extent to which judges in Nigeria have succeeded or mostly failed in appreciating or applying jurisdictional rule son actions in personam especially by misapplying rules designed for international litigation in the context of interstate disputes in the unique federal system practiced in Nigeria.

The result of the authors’ analyses of Nigerian appellate courts’ cases bordering on the jurisdiction of Nigerian courts in actions in personam arising from causes of action which accrue outside the territorial jurisdiction of the courts is particularly eye-opening. The authors divide the failure of Nigerian courts in this regard into three scenarios to wit: cases where Nigerian courts reach the right decision but wrongly apply choice of venue rules to arrive at that decision; cases where Nigerian courts wrongly apply choice of venue rules and reach the wrong decision; and cases where Nigerian courts simply conflate the choice of venue provisions in the rules of the respective courts in Nigeria with the rules of private international law applicable in actions in personam in Nigeria. The reasoning of the courts in the cases treated leaves a lot to be desired and call for a dispassionate soul searching.

Private International Law in Nigeria lucidly addresses the historical controversies surrounding the requirement for leave to issue and serve a court process out of jurisdiction both in the case of interstate (domestic) disputes and in international disputes strictly so called. The book highlights the delicate balance between the Sheriffs and Civil Process Act and the various rules of court. For good measure, the authors clearly explain what the Nigerian Supreme Court got wrong in the infamous M. V. Arabella case [which the court has now thankfully moved away from].[8] In that case the Supreme Court set aside a writ of summons that was issued in the Federal High Court Lagos and served on a defendant resident in Abuja, Federal Capital Territory without the leave of court. The court relied on Order 10 rule 14 of the Federal High Court (Civil Procedure) Rules 1976[9] and discountenanced the contention of the appellant that the Federal High Court is one court and no leave of court is required to issue and serve a court process in one judicial division of the court (i.e. in one State) for service in another State. The authors however rightly highlight the reluctance of the Supreme Court to explicitly overrule cases that were obviously wrong, a trend that has been on the rise in the last two decades; and which is the subject of another day’s discussion.

What I would consider as an ambitious aspect of the book, however, is the authors’ categorical position regarding the non-binding effect of the obiter dicta of some Supreme Court decisions. For instance, while discussing a recent decision of the Nigerian Supreme Court,[10]the authors stated that the obiter dictum of Aka’ahs JSC is not binding on lower courts in Nigeria and should not be followed.[11]While this undoubtedly represents the correct position of the law in principle, it is however of doubtful practical effect given the peculiarity of the diminishing line between rationes decidendi and obiter dicta under the Nigerian version of the doctrine of stare decisis as well the attitude of Nigerian courts to decisions of higher courts.

Special consideration is also given to such procedural law concepts as ‘forum selection clauses’, ‘forum non conveniens’, ‘lis alibi pendens’ and ‘limitations on jurisdiction’ as well as the substantive law topics of Contract, Torts, Foreign Currency Obligations, Bills of Exchange, Marriage, Matrimonial Causes and Administration of Estates. Very crucially too, the book does not fail to address the critical topics of enforcement of foreign judgments and international arbitral awards, while the last two chapters, grouped under a part entitled, ‘International Civil Procedure’ are dedicated to the consideration of the procedural rules applicable in international civil disputes including domestic remedies affecting foreign proceedings, international judicial assistance in the service of legal processes and taking of evidence. Nigerian lawyers with cross border practices will find these two chapters particularly helpful. One topic that is however given a less than adequate treatment is the topic of adoption. To be fair, adoption law and procedure in Nigeria is largely covered in opacity but a more comprehensive treatment of the subject in this book would have finally afforded practitioners the long-needed reference point.

On the whole, the book draws on over five hundred Nigerian cases including [thankfully] contemporary judicial decisions touching on the subject of private international law, relevant legislations and academic writings while exploring, where necessary, comparative perspectives from other jurisdictions.

This book is without doubt, one of the most impactful legal textbooks in Nigeria in at least twenty five years. It is a refreshing addition to the legal libraries across Nigeria and beyond. Judges at all levels of courts in Nigeria, legal practitioners, arbitrators and lawmakers alike as well as law teachers, researchers and students, will find Private International Law in Nigeria a highly resourceful and practical guide that fills an intellectual void in a long neglected but increasingly critical field of law. It is a long overdue contribution to the field of private international law in particular, and to legal scholarship in Nigeria as a whole.



*Orji Agwu Uka is a Senior Associate at a top Commercial Law Firm in Lagos, Nigeria. He holds an LLM from King’s College London and an LLB from Abia State University, Uturu Nigeria.

[1]Akinlo Enisan, ‘Determinants of Foreign Direct Investment in Nigeria: A Markov Regime-Switching Approach’ (2018) RIC 21.

[2] Organisation for Economic Cooperation and Development, Foreign Direct Investment for Development: Maximising Benefits, Minimising Costs (OECD 2002) 3.

[3]Orji Uka, ‘Cross Border Dispute Resolution under AfCFTA: A Call for the Establishment of a Pan-African Harmonised Private International Legal Regime to Actualise Agenda 2063’ (2020) ALP available at http://alp.company/resources/business-advisory/cross-border-dispute-resolution-under-afcfta-call-establishment-pan last accessed on 11 November 2020.

[4]Chukwuma Okoli, ‘Private International Law in Africa: Comparative Lessons’ available at http://conflictoflaws.net/2019/privateinternationallawinafricacomparativelessons/.

[5]Chukwuma Okoli, (n. 4) above.

[6] Richard Frimpong Oppong, ‘Private International Law and the African Economic Community: A Plea for Greater Attention’ The International and Comparative Law Quarterly, Vol. 55, No. 4 (Oct., 2006), Cambridge University Press pp.911-928 available at https://www.jstor.org/stable/4092623.

[7]Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, Private International Law in Nigeria Hart Publishing: Oxford, 2020.

[8]Owners of M. V. Arabella v Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182.

[9]For similar reasons, the Court of Appeal in Nestle (Nig) Plc v. Owners of M. V. MSC Agata(2014) 1 NWLR (Pt. 1388) 270 at pp. 288-290 set aside writ while relying on Order 6 rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000.

[10]Social Democratic Party v Bieman unreported decision of the Supreme Court in Appeal No. SC/341/2019 43.

[11]Chukwuma Okoli and Richard Oppong, (n. 7) above at p. 73.

The Practicality of the Enforcement of Jurisdiction Agreements in Nigeria

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 blogIt 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.

Private International Law in Nigeria


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.



Presence as a basis for International Jurisdiction of a Foreign Court under Nigerian Private International Law


Written by Richard Mike Mlambe, Attorney and Lecturer at University of Malawi- The Polytechnic

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

Private International Law in Nigeria


The Nigerian private international law (hereinafter PIL) regime is significantly influenced by the common law. As a result, the common law plays a major role in providing the applicable rules on the recognition and enforcement of foreign judgments.[1] Like in many other common law jurisdictions, Nigerian courts recognize and enforce foreign judgments only if, in the eyes of Nigerian PIL, the foreign court had jurisdiction to render the judgment in question.[2] The recognized bases of jurisdiction are submission, residence and presence of the defendant within the foreign country.[3] This is also the position in other common law countries such as South Africa[4], Australia[6]and Malawi.[7]

As a result of the foregoing, Nigerian courts would refuse to recognize and enforce a judgment of a foreign court where the defendant was not present/resident in the foreign country and did not submit to its jurisdiction.[8] It must be emphasized that once the court finds that none of the above grounds is established, then the foreign court is deemed not to have possessed jurisdiction regardless of any connection that the parties or the transaction in issue may have had with the foreign country.


Nigerian and Canadian PIL

Okoli and Oppong have observed as follows:

“It is open to question whether the existing recognised bases of international competence – residence, presence, and submission – are adequate for the current international climate of increased trade, movement of persons, and transnational relationships. From a comparative perspective, Canadian courts have applied the real and substantial connection test. This basis   requires that a significant connection exist between the cause of action and the foreign court. Such a connection could include the fact that the cause of action arose in the jurisdiction of the foreign court, or that jurisdiction was the place in which the contractual obligation was to be performed. The ‘real and substantial connection’ test has not found favour outside Canada, and the test has been the subject of academic criticism.”[9]

Under Canadian PIL, the traditional common law principles are recognized such that a foreign court will be deemed to have jurisdiction if the defendant submitted to the jurisdiction of that court[10] or where the defendant was resident[11] or present[12] in the territory of the foreign court. In addition to these bases, the foreign court’s jurisdiction will be recognized where there was a real and substantial connection between the matter and the foreign court.[13] The real and substantial connection test entails that a Canadian court can recognize and enforce a foreign judgment that was delivered in circumstances where the defendant was not physically present in the jurisdiction when served with the originating process, as long as a real and substantial connection between the case or the parties and that foreign jurisdiction exists. This is therefore an additional ground of jurisdiction to the traditional common law grounds obtaining in Nigeria and other common law jurisdictions.

While Nigerian courts insist on the physical presence/residence of the defendant in the foreign territory[14]Canadian courts will go further to determine if there was a real and substantial connection between the matter and the foreign forum. This paper discusses the differences in the two approaches in view of their impact on the interests of justice between the parties, and suggest, with reasons, that Nigeria and the rest of the common law should derive lessons from Canadian PIL.



This paper acknowledges that the requirement of presence of the defendant in the territory of the foreign court at the time of service ensures that the proceedings are conducted in accordance with the principles of natural justice. If the defendant was not present, the necessary originating processes may fail to reach him, or at least in good time, so as to have sufficient time to defend his case.[15]

However, the fact that in Nigerian a court may be satisfied that the foreign court had jurisdiction merely by virtue of the defendant’s presence therein, without more, is not satisfactory. Firstly, such an approach enables recognition of a foreign judgment that was rendered by a court that was not connected, or at least sufficiently connected, to the case, and therefore an inappropriate court. As a result, the international jurisdiction of a court that has no connection at all with the case or the parties would be established simply because the defendant happens to have been present within that country, no matter how brief the stay may have been in that country. This may encourage forum shopping.[16] The plaintiff may deliberately institute proceedings in a court that is not connected to the case and therefore inappropriate, knowing that the resulting judgment will be accorded recognition and enforcement in Nigeria. Actually, it is this paper’s view that if this is to be followed to its ultimate logical conclusion, then any country in the world has jurisdiction to render a judgment capable of recognition in Nigeria and other common law countries as long as the originating process was served on the defendant within its territory regardless of how little, if any, is that jurisdiction’s connection to the case.[17] We do not believe that such a result is consistent with the ends of justice.[18]


Secondly, the insistency on the presence of the defendant in the foreign court practically means that an unscrupulous defendant is at liberty, at the first hint of a dispute, to prevent the plaintiff from getting a judgment capable of recognition in England merely by leaving the natural and appropriate jurisdiction in which the plaintiff may institute proceedings against him. Much as the plaintiff may still initiate the proceedings against the defendant and service be effected in accordance with the procedure for service out of jurisdiction, this paper’s view is that as long as the plaintiff would be unable to secure recognition and enforcement of that judgment on the ground of the defendant’s absence from the jurisdiction, the plaintiff’s right to access to justice and legal remedies would be infringed.[19]

Actually, in our view, the injustice occasioned by the insistence on the presence of the defendant as a necessary and sufficient condition as far as jurisdiction is concerned, may be suffered not only by the plaintiff but also by the defendant. The plaintiff, as stated in the preceding paragraph, may be unable to enforce a judgment that was obtained in a country that is very appropriate forum as long as the defendant was not present, notwithstanding his right to access to justice and effective remedies.[20] On the part of the defendant, a Nigerian court may recognize and enforce a foreign judgment rendered by a court that was not in any material way connected to the case.[21] It is our view that considerations such as these necessitate a revision in the common law approach to presence as a ground of jurisdiction for purposes of recognition and enforcement of foreign judgments.[22]

Under Canadian PIL, a foreign judgment will be enforced against a defendant who was not present within the territory of the foreign forum provided that there was a real and substantial connection between the matter and the forum.[23] Further, it must be noted that the Canadian court will ensure that the rights of the defendant were protected and that the proceedings were conducted in accordance with the principles of natural justice.[24] Put precisely, the courts will require the judgment creditor[25] to satisfy them that the defendant was aware of the proceedings against him through proof of service. The real and substantial connection test therefore enables the plaintiff to have the judgment enforced in circumstances where the court properly exercised jurisdiction even if service was not effected on the defendant within the foreign court’s territory. In this case, the plaintiff’s fundamental right to access to justice and legal remedies as well as the defendant’s right to be duly served with the originating process and to have sufficient time to defend his case are both served.[26]

There are two points that need to be made here. Firstly, under Nigerian PIL, provision is made for service outside jurisdiction if the defendant is not present within the jurisdiction and the case is sufficiently connected with Nigeria and it is the appropriate forum for hearing the case.[27] It can be argued, therefore, that if Nigerian law recognizes that there are circumstances under which courts can properly exercise jurisdiction against a defendant who is not within the jurisdiction and was actually served out of jurisdiction with originating process, why should they not accept that other courts can also exercise jurisdiction under the same circumstances and therefore be able to recognize and enforce judgments rendered by foreign courts under similar circumstances?[28]

Secondly, it must be stated that Nigerian courts are able to decline jurisdiction, when called upon to hear a case, if upon considering all relevant factors, they form the view that another forum exists with jurisdiction and is the more appropriate forum.[29] However, when a judgment is brought for recognition in Nigeria, Nigerian courts would not examine the appropriateness of the foreign court and would recognize that judgment even if the case was not in any way connected to that jurisdiction as long as the defendant’s presence is established. Why should the Nigerian courts, and indeed the courts in other common law jurisdictions, be able to recognize that jurisdiction should be exercised when it is appropriate to do so in the interest of justice when they are asked to hear a case, and then take a very different approach when it comes to recognition of foreign judgments so that they end up recognizing judgments rendered by forums that would be deemed appropriate?[30]

It is submitted that refusal to recognize and enforce foreign judgments by common law courts on the basis of the defendant’s absence from the foreign court, even when the matter was sufficiently connected to that foreign court, is an affront to the ends of justice in international litigation and is not in accordance with the realities of international commercial life. The approach of the Canadian courts through the adoption of the ‘real and substantial connection’ test is commendable. This paper laments that Nigeria and other common law jurisdictions have not joined Canada in this positive direction. An opportunity arose in Malawi, another common law jurisdiction, to modernize her international civil procedure when the Courts (High Court) (Civil Procedure) Rules (2017) were enacted. There is no provision at all with regard to recognition and enforcement of foreign judgments, which leaves the common law regime unchanged. One can only express regret at this missed opportunity.



It has been seen that presence of the defendant in the foreign jurisdiction is a basis of jurisdiction of the foreign court for a judgment rendered by that court to be recognized and enforced in Nigeria. In Canada, it is also a recognized basis of the jurisdiction of the foreign court but a foreign judgment may be recognized even when the defendant was not present in the foreign country as long as a real and substantial connection exists between the matter and the foreign jurisdiction.

This paper is of the view that the insistence of the common law on the presence of the defendant in the foreign country leads to injustices in circumstances where recognition is accorded to a judgment having been delivered in a foreign forum that was not appropriate, on one hand, or when a foreign judgment is refused recognition where it was rendered by an appropriate court merely on the basis of the defendant’s absence from the foreign jurisdiction, on the other hand. It is therefore submitted that Nigeria and the rest of the common law should join Canada in applying and developing a test that prevents presence or absence of a defendant from undermining the ends of justice in international litigation and, in particular, in the recognition and enforcement of foreign judgments.

[1] See Richard Frimpong Oppong Private International Law in Commonwealth Africa (Cambridge University Press) 2013 p. 313.

[2] Nigeria law has both a statutory and common law regime for the enforcement of foreign judgments. In this paper, the focus is exclusively on the common law regime. Further, this paper focuses on jurisdiction as a condition of the recognition and enforcement of the foreign judgment and the other conditions (such as finality of the foreign judgment) are not addressed.

[3] Oppong (n1 ) 320.

[4] Richman vBen Tovim, SCA [2006] 148, [2007] (2) SA 283

[5] Burham vSuperior Court of California, 495 US 604; and Born, Rutledge and Kluwer International Civil Litigation in United States Courts (2011) 1120.

[6] Herman vMeallin (1891) 8 WN (NSW) 38.

[7] Malawi also has both a statutory and common law regime for the recognition and enforcement of foreign judgments.

[8] Submission is established either through choice of forum agreements or where he defendant pleads to the merits of the case without contesting jurisdiction which the court otherwise did not have.

[9] Chukwuma Samuel Adesina Okoli and Richard Fimpong Oppong Private International Law in Nigeria (Bloomsbury publishing) 2020 p 353.

[10] Richardson v Allen (1916), 28 D.L.R. 134 (Alta S.C. (A.D.))

[11] First Hawaiian Bank v Smith, [1999] A.J. No. 643, 245 A.R. 148 (Alta Q.B.).

[12] Royal Bank of Canada v Industmarine Ltd., [1982] B.C.J. No. 2365. The constitutionality of mere presence as a ground of jurisdiction is however a controversial issue in Canada.

[13] Morguard Investment Ltd v De Savoye, [1990] S.C.J, No.135, 76 D.L.R. (4th) 256 (S.C.C.). This is a landmark and revolutionary decision that marked a departure from the refusal of recognition of foreign judgments if the defendant was absent from the jurisdiction of the court that delivered the judgment. The court felt that time had come to take a different approach to recognition and enforcement of foreign judgments. Indeed the principles laid down in this case have been confirmed in the subsequent case law of the Supreme Court of Canada, most notably, in Beals v Saldanha (2003) 3 SCR 416.

[14] Assuming that the defendant did not submit to the jurisdiction of the foreign court

[15] See Castel Conflict of Laws Cases, Notes and Materials (1968) 956 where the author actually states that the question of whether a court should have jurisdiction to entertain actions against absent defendants and give judgments which though effective territorially can be recognized in other jurisdictions is a policy issue not for the courts, thereby suggesting (it is submitted) that the court should be slow to render recognition to such judgments except where by legislation they are empowered to do so.

[16] See Tilbury, Davies an Opeskin Conflict of Laws in Australia (2002) 139 where the learned authors write: “A party engages in forum shopping when it seeks to litigate its case in a forum has little genuine connection with the court or the parties. Both plaintiff and defendant may influence the forum in which a case is tried, but the plaintiff is usually better able to do so”.

[17] See Collins (ed) Dicey, Morris and Collins on the Conflict of Laws (2012) 693 who seem to justify mere presence as a ground of jurisdiction on the basis of the temporary allegiance owed by the defendant to the local sovereign.

[18] See Ehrenzweig The Transient Rule of Personal Jurisdiction; The “Power” Myth and Forum Conveniens in Jurisdiction and Private International Law (2014) 565.

[19] It is therefore respectfully submitted that this may amount to a denial of the right to legal remedies and redress by preventing the plaintiff from enforcing the judgment. See generally Grosvenor Casinos Ltd v Ghassan Halaoui (2009 ) 10 NWLR 309.

[20] See TC Hartley International Commercial Litigation Texts, Cases and Materials in Private International Law (2015) 406. The learned author states that actually as far as English courts are concerned, if the defendant was absent from the jurisdiction in question, the fact that a contract was breached in that foreign country or that the tort was committed there does not suffice to confer jurisdiction on the foreign court.

[21] This means that the plaintiff may benefit from his forum shopping.

[22] Indeed the consideration of the injustices occasioned by the traditional common law principles convinced the Supreme Court of Canada to adopt the real and substantial connection test.

[23] See n 13.

[24] If the plaintiff fails to show that the principles of natural justice were adhered to the court will refuse recognition of the foreign judgment.

[25] Usually the plaintiff

[26] It is the submission of this paper that this is the approach that is in accord with the nature of private international law because it is based on the recognition that the parties will not always be physically present in the same jurisdiction when causes of action arise between them. The real and substantial connection test, in the view of this paper, is a recognition of this reality.

[27] See, for example, High Court of Kaduna State (Civil Procedure) Rules 2007, Ord. 8, r. 1)

[28] In other words, why should Nigerian court be able to exercise jurisdiction when they are not ready to recognize the judgments rendered by foreign courts under the same circumstances?

[29] The doctrine of forum non conveniens. On this doctrine in general see Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460.

[30] In other words, why should the Nigerian court recognize that there are circumstances under which they may not be the appropriate forum for the trial of certain cases and decline to do so, and fail to recognize that the same may be the case in other jurisdictions and only regard mere physical presence of the defendant in the foreign territory as conclusive, no matter how improper the exercise of jurisdiction may have been in the foreign court?


The Recognition and Enforcement of Foreign Judgments at Common Law in Nigeria


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.

Private International Law in Nigeria


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’);


  1. 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


  1. 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 21st 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.