A COMPARATIVE ANALYSIS OF THE ENFORCEMENT OF FOREIGN JUDGMENT IN NIGERIA AND UNITED KINGDOM: A CASE FOR CYBER JURISDICTION
Under Private International Law, enforcement of foreign judgment or its recognition is the whole mark of every proceeding. Without them, this spare of law will make little or no sense at all and international transactions will suffer a setback. They serve as guarantee that an act adjudged wrong by the court of competent jurisdiction in one state will same effect in other state. This research work intends to make comparative analysis of the conditions and procedures of enforcing foreign judgment as well as making case for cyber jurisdiction. Using doctrinal method of research, the comparative analysis of the conditions and procedures of enforcing judgments in Nigeria and United Kingdom was conducted. The research work also makes case for determination of jurisdiction of court to preside over internet cases. The research finds that, the legal regime on the subject in Nigeria has limited scope compared to that of the United Kingdom and the fact that presently no effective solution for the challenge of cyber jurisdiction is achieved yet. The research recommends that, the minister in Nigeria should give effect to section 3 of the Foreign Judgment (Reciprocal Enforcement) Act Cap. F35 L. F. N .2004. The Hague Convention on Recognition and Enforcement of Foreign Judgments should be amended with the hope that, if these and other recommendations are adopted enforcement of judgment in both Nigeria and the United Kingdom will be guaranteed and simpler.
1.1 BACKGROUND OF THE STUDY
A wise saying has it that, no man is an island, hence human interaction becomes necessary. The dynamic nature of this social interaction being what is occasionally brings about disputes or disagreements. To mend these disputes or disagreements, civilized societies in a bid to make life meaningful put some instruments in place. One of such instruments is law.1 By the instrumentality of law, an aggrieved party normally goes to court of competent jurisdiction2 seeking for redress. One of the duties of court in this circumstance is to make order or declaration3 as per the rights and the duties of the parties involved.
The matter does not however end with the court pronouncing its judgment,4 recognition5 and enforcement6 of the court‟s judgment are the next procedures. Apart from declaratory judgments that are not enforceable,7 other forms of judgment8 may need some form of compliance or the other in order to be realized. Otherwise, the successful litigant, called the judgment creditor, may have secured a pyrrhic victory.
If the party against whom judgment is given, called the judgment debtor willingly complies with the terms of the judgment, there will be no problem. But more often than not, the judgment debtor does not willingly comply with the terms of the judgment. Thus, there arises the need to compel him to do so through execution or enforcement procedure. This conforms to the general principle of law that judgment or order of the court must as far as possible be obeyed or complied with. Otherwise the authority of the court would be diminished and the legal order would suffer a breakdown.9
Again, if the enforcement or execution is to be carried out, in the jurisdiction or country in which the judgment is given, no much problem would arise. But a much more challenging circumstance showcases itself where the judgment creditor only after his success in the case realizes that, the fruit of his labour has to be satisfied abroad.
The question is, can judgment given by the court of one country be enforced by the court of another? This necessitates the study of feasibility of enforcing foreign judgment. Enforcement of foreign judgment is not a new phenomenon. It has long existed as a topic in the sphere of private international law. Besides the Rule of Common law, it is regulated by bilateral treaties10 or multilateral international conventions.11 This area of the law has gained prominence, at least of late, because of the advent of the internet and the age of globalization. Increase in cross border business transactions would naturally cause an upshot in litigation. This in turn would require national or municipal courts to decide whether a judgment or order obtained in a foreign country should be recognized or allowed to be enforced in their own country
In Nigeria and the United Kingdom, it is well settled under both the common law and statutes12 that the foreign judgment sought to be enforced must satisfy certain requirements as precondition to its enforcement or recognition. The most essential of all the requirements for recognizing or enforcing foreign judgment is that the foreign court which rendered the judgment sought to be enforced is one of competent jurisdiction in the international sense.13
Underscoring the importance of jurisdiction as a condition precedent to recognition and enforcement procedure, a writer14 states thus:
“In general, recognition or enforcement of foreign judgments may not be allowed if the foreign court acted without competent jurisdiction or if the defendant can avail himself of any of the limited number of defenses available”15
1.2 STATEMENT OF RESEARCH PROBLEM
Enforcement of foreign judgment has significant relevance in this era of increased international trade and foreign investment. Businessmen are more comfortable doing business with foreign partners knowing that if they obtain judgment from superior court in their home country; it can be enforced against the judgment debtor across borders.
This is what actually gave rise to conflict of laws as a course or private international law which is aim at making case for the enforcement of judgments obtain from one country in t another. The two counties that are the case study of this research work (Nigeria and the United Kingdom) have conditions or requirements a judgment must satisfy before its enforcement and the procedure of so doing which fall on all fours.
It has been well settled that by international laws of the two countries that a judgment given by a court of one country may not be capable of recognition or enforcement in another, except if the court that gave the judgment is one of competent jurisdiction in international sense. Once jurisdiction is lacking, the judgment becomes nullity16
Today the bulk of transactions are conducted online and breaches are occasioned from these transactions which may necessitates going to court. Hence, the concept of cyber – jurisdiction emerges. Cyber – jurisdiction unlike the ordinary territorial jurisdiction is placeless.
The above facts made the two scenarios fall apart, such that what suits one cannot certainly suit the other. Consequently, some scholars17 see the regime of online transaction as an end to recognition and enforcement of foreign judgment. This skepticism is thought provoking that makes one to wonder whether these online transactions are not regulated by law such that breaches there from cannot be enforced.
The statement of problem of this research work is that, the traditional jurisdictional principle in Nigeria and the United Kingdom that is geographically based cannot suit the cyberspace scenario which is placeless and disrespects geographical boundaries. Thus, there is no agreement on when can a foreign court be of competent jurisdiction to entertain an online matter capable of recognition and enforcement in another country
1.3 AIM AND OBJECTIVES OF THE RESEARCH
The aim of this research work is to discuss the extant laws regulating recognition and enforcement of foreign judgments in Nigeria and the United Kingdom and since jurisdiction is the most important requirement for the recognition and enforcement of foreign judgment the research work looks at the relationship between recognition and enforcement of foreign judgment and cyber – jurisdiction as well as exploring the possible ways of addressing the challenge that cyber jurisdiction poses to recognition and enforcement. In particular, the research work aims at achieving the following objectives:
- To make a comparative analysis of the requirements and procedure for recognition and enforcement of foreign judgment in Nigeria and United Kingdom.
- To critically explore how the challenge that the cyberspace poses to enforcement of foreign judgments could best be addressed so that internet users can transact with peace of mind.
- To explore the possible relationship between the requirement for enforcement of foreign judgment and cyber-space.
1.4 JUSTIFICATION OF RESEARCH
As rightly pointed out above, no man can happily live in isolation. Therefore, interaction among people both at national and international level becomes inevitable. Today, technology has made this interaction easier, sometimes by a mere click of a computer mouse
Sadly as it may sound, disputes are bound to arise from time to time owing to the dynamic nature of life. Absence of any mechanism to address the likely disputes may extinct online international transaction for the fear of likely beach of commercial relationship and other civil wrongs which may go unenforced.
This research work is therefore justified, because is targeted at ascertaining the competence of one of these redressing mechanisms that is, the court to decide over these disputes involving foreign elements (foreign element means foreign law or a foreigner) from online transactions, as well as the procedure to be followed in realizing the fruits of the litigant‟s labour and the likely defenses that can be raised thereto.
This will infuse life into this dying area of the law and instills confidence in the minds of foreigners (Nigeria and British citizens) to transact online freely knowing that for every breach there is a corresponding remedy.
1.5 SCOPE OF THE RESEARCH
The scope of this research work is basically Nigeria and the United Kingdom. Attention is placed particularly on the common law principles as they apply to these countries on the topic under consideration. The respective statutes of these two countries that is, Foreign Judgment (Reciprocal Enforcement) Acts of each and other related statutes are also examined with respect to the conditions and procedures of enforcement of foreign judgments as well as the position of cyber-jurisdiction.
1.6 RESEARCH METHODOLOGY
In carrying out this research, information were collected for an in depth analysis through doctrinal method of research that is through reading of books and other written materials such as statutes, cases, articles among others. Recourse was also be made to information stored online (the use of internet facility).
Information is collated form these sources for in-depth analysis with a view to finding out the present position of the law and possible contribution to expand the frontier of knowledge in this regard.
Dicey and Morris,18 in their book, discussed extensively the requirements and procedure of recognition and enforcement of judgment involving foreign element both under the common law and statutes as they apply to cases in or out of England and the rest of the world. However, the book did not make any attempt to address the recent issue of cyber-jurisdiction19 and the challenge it poses to recognition and enforcement of foreign judgments. They did not discuss
post registration procedure and their discussion on defenses was scanty. Again, the work has not specifically related to the situation obtained in Nigeria.
Amba Myss20 is an English writer. Although he discussed synoptically the applicable laws regulating jurisdiction, recognition and enforcement of judgment, he did not however dwell on defenses. Cyber-jurisdiction also falls outside the scope of his work.
Cheshire and North,21 took pain to discuss extensively the principles of jurisdiction as prerequisite to a valid judgment capable of recognition or enforcement under different heads namely, jurisdiction in personam22 and jurisdiction in rem23 under both common law and statutes. They further discussed limitations to those jurisdictional principles, and the defenses that can be raised against recognition or enforcement of foreign judgment. Like other writers, they did not discuss cyber-jurisdiction. Their work did not equally capture the recent trends on recognition or enforcement procedures, both forming the basis of this work.
Agbede24 is one of the renowned authors in this area of law in Nigeria. His work substantially reflects the relevant laws applicable in Nigeria. He discussed choice of jurisdiction or inter-state situation, as well as jurisdiction in rem and in personam.
His discussion on the topic under consideration that is recognition and enforcement was minimal as he discussed only jurisdiction under the common law and statute