A COMPARATIVE ANALYSIS OF THE ENFORCEMENT OF FOREIGN JUDGMENT IN NIGERIA AND UNITED KINGDOM: A CASE FOR CYBER JURISDICTION
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. 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 declarationas per the rights and the duties of the parties involved.
The matter does not however end with the court pronouncing its judgment,recognition and enforcement of the court‟s judgment are the next procedures. Apart from declaratory judgments that are not enforceable, 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.
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 treaties or multilateral international conventions.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 statutes 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.
Underscoring the importance of jurisdiction as a condition precedent to recognition and enforcement procedure, a writer 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”
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 nullity
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 scholars 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.