CHAPTER ONE

GENERAL INTRODUCTION

1.1 INTRODUCTION

Judgment, simply put, means a Courts final determination of a case which normally includes a decree and any order from which an appeal lies . However, the foreign judgment (reciprocal enforcement) Act Cap F35 broadly defines judgment to mean “judgment or order given or made by a Court in any civil proceeding and shall include an award in proceeding on an arbitration…” The import of this definition is that judgment is not restricted to decisions of the Court, but to include the final determination of an arbitration tribunal. In this context, “Foreign judgment” can therefore be defined as a judgment delivered by a Court and arbitration tribunal other than the Court or arbitration tribunal of the forum.

Everyday, people all over the world institute actions in Courts of law, either to enforce a right or to redress an injury. This right can only be enforced or the injury redressed when the court determines the matter and not only give judgment but also enforced the judgment or alternatively, the plaintiff pursues the judgment before another judge in a different jurisdiction for its enforcement. In conflict of laws parlance, this last judicial act is called enforcement of foreign judgment. Therefore, recognition and enforcement of foreign judgment involves a court authenticating a judicial decision outside its jurisdiction, and taking necessary steps to cause a defendant to comply with the terms of the judgment.

The fundamental function of recognition and enforcement of foreign judgment is to provide for the judgment creditor the fruits of the judgment to obtain for him due satisfaction, compensation, performance and compliance with what the court has granted by way of relief or remedy . This conforms with the general principles of law that judgment or order of the court must be obeyed or complied with, otherwise the authority of the court would be diminished and the legal order would suffer a breakdown4.

This area of judicial process is growing in importance. This is because the private citizen’s enjoyment of the right to travel more freely from one place to another, the development of internet and e-ecommerce in an increasingly globalised set of market means, that individuals voluntarily buy goods, incur debts and suffer loss and injury across country borders. This economic relation which gives rise to social and domestic relations, there is a need for an enhanced judicial co-operation expedient, so that judgments proceeding from these relations can be recognized and enforced every where irrespective of territorial boundaries.

Recognition and enforcement of foreign judgment started as far back as the seventeenth century in England . Prior to that time foreign judgment had no direct operation in the English Courts and they do not extinguish an original cause of action . A judgment creditor in the early days was expected to bring a fresh action against the defendant for enforcement of the judgment offered in his favour cases that concerned enforcement of foreign judgment were tried DE Novo with the foreign judgment serving as prima facie evidence. But by the seventeenth century, the English Courts started recognising and enforcing foreign judgment. Two reasons were advanced for their action. The first was based on the doctrine of “comity”. The English judges believed that the law of nations required the Courts of one country to assist those of another, and they feared that if foreign judgment were not enforced in England, English judgment would not be enforced abroad. Therefore, in order to protect the English people’s interest, they started recognsing and enforcing judgment given in other jurisdiction as long as the judgments were given by Courts of competent jurisdiction.

The second reason for the recognition and enforcement of foreign judgment by the English court was based on the doctrine of obligation . By this, it means that the judgment rendered by a foreign court of competent jurisdiction imposes upon the defendant a duty or obligation to obey and discharge it. It also places an equal right on the plaintiff to enforce that obligation through the English Courts. This was clearly enunciated by Parke B. in Russels V Smith and Williams V Jones where he stated

thus:

We think that…..the true principle on which the judgment of foreign tribunals are enforced in England is…. that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum, of which judgment is given, which the Courts of this country are bound to enforced and consequently that anything which negates that duty forms a legal excuse for not performing it is a defence to the action.

This statement was approved by Blackburn later in Godard Vs Gray and Schibsby V Westerholz . Sequel to this statement any judgment given by a foreign Court with competent jurisdiction according to the English rules of conflict of laws the judgment now becomes enforceable in England, unless it is given by reason of fraud, public policy etc and not mere prima facie evidence of the defendants liability as it used to be.

The recognition and enforcement of foreign judgment has been facilitated in different parts of the world by series of enactments providing for registration.

For example, in Britain, the enactments were contained in the administration of Justice Act which was enforced in some part of the British Commonwealth providing for the reciprocal enforcement of judgment and awards. According to this Act, a judgment creditor who obtains judgment from a court within the British Commonwealth may within a certain time after the date of the judgment apply to a local court to have the judgment registered and enforced. Once the judgment is registered it assumed the same status with a judgment of the court of registration. The Act provide for the enforcement of judgment delivered by the Courts of those countries to which the Act applies. These territories are United Kingdom, New Zealand, Australian States but the Australian capital territory was not included.