Article X makes the Convention applicable to the colonial territories, who most times do not have the power to enter into any international relations or treaties without recourse to their colonial masters.
By Article XI, the Convention is applicable to federal and non-unilateral States that made up a constituent or provinces.
Article XIV provides that: „a contracting State shall not be entitled to avail itself of the present Convention against other contracting State except to the extent that it is itself bound to apply the Convention.”
The argument for this doctrine is that it is an avenue to protect nationals of the State where the foreign arbitral award is sought to be enforced.348
4.6.2 Enforcement of Foreign Arbitral Award by Registration under Foreign Judgments
foreign country, substantial reciprocity of treatment will be assured as respects the enforcement in that foreign country of judgments given in the superior Courts in Nigeria may by order direct-
a. That this part of the Act shall extend to that foreign country and
b. That such Courts of that foreign country as are specific in the order shall be deemed superior Courts of that country for the purpose of this part of this Act.
2. Any judgment of a superior Court of a foreign country to which this part of this Act extends other than a judgment of such a Court given on appeal from a Court which is not a superior Court shall be a judgment to which this part of the Act applies if:-
a. It is final and conclusive as between the parties there to.
b. There is payable thereunder a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in or in respect of a fine or other penalty and c. It is given after the coming into operation of the order
directing that this part of this Act shall extend to that
foreign country, or if it is a judgment to which section 10 of this Act applies.
3. For the purposes of this section, a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it or that it may still be subject to appeal in the Courts of the country of the original Court.
4. The Minister of Justice may by a subsequent order vary or revoke any order previously made under this section.
For such foreign judgment to be registered in Nigeria such judgment must not be wholly satisfied or it must be enforceable by execution in the country of the original Court.350
It is important to note that the foreign award or judgment has to be enforceable and must be registered first in the Nigerian Court that has jurisdiction to hear the matter if the dispute had occurred or arisen in Nigeria
The foreign arbitral award must be final and conclusive as between the parties and there must be payable there under a sum of money, not being a sum payable in respect of a fine or other penalty.
350 Foreign Judgments (Reciprocal Enforcement) Act Cap F35 Laws of the Federation of Nigeria 2004 s. 4.
In Harka Air Services (Nigeria) Ltd v Keazor,351 the Supreme Court held that:
In the case of Koya v U.B.A (1997) 1 NWLR (Pt481) p. 251, the Supreme Court per, M.E Ogundare JSC of blessed memory had this to say
“It is my respectful view that Courts in this country can claim jurisdiction to entertain and determine cases where sums in foreign currency are claimed. The old rule in England as well as in Nigeria, is judge made and in the light of present day circumstances of extensive international commercial relationships, that rule should give way to a new rule as now in England, more so that the difficulties hitherto experienced in enforcing such judgments no longer apply.” My Lord had in the foregoing judgment supported the foregoing conclusion with reasons as follows-
(1) The Exchange Control Act 1962 has been repealed and the Naira allowed to float on market forces may determine.
(2) By section 7 of the Admiralty Jurisdiction Decree 1991- the Federal High Court is given jurisdiction to award judgment in foreign currency.
(3) The Arbitration and Conciliation Act, Cap 19 Laws of the Federation of 1990, provides that the Courts in Nigeria can enforce arbitral awards in foreign currency.
351 (2011) LPELR p.1353 (SC).
(4) The Foreign Currency (Domiciliary Accounts) Act Cap 151 Laws of Nigeria 1990 authorizes citizens, corporate bodies, diplomats, foreign diplomatic missions and international organizations to import foreign currency and deposit same in designated local bank account maintained in an approved foreign currency.
(5) The Foreign Judgments (Reciprocal Enforcement) Act Cap 152 allows for the enforcement in Nigeria of Judgments given in foreign countries in their currency. These legislations are still intact and applicable and there are cases to support that the Courts, in appropriate cases, have power to enter judgment in favour of a party in any foreign currency claimed.
However, it is the prerogative of the Minister of Justice to determine the country whose arbitral award would be recognized and registered in Nigeria. This then would suggest that countries whose arbitral awards or judgments are registered in Nigeria have a moral obligation to extend similar gesture to Nigeria in that regard.
In Macaulay v R.Z.B Austria,352 the Supreme Court per Kalgo JSC held that:
The Reciprocal Enforcement of Judgments Act (Cap 175 of 1958) herein after referred to as the 1958 Ordinance deals inter alia with the issue of registration of judgments obtained in Nigeria and United Kingdom and other parts of Her Majesty‟s dominions and territories. It is pertinent to observe that the Foreign Judgments
352 (2003) 18 NWLR (pt 852) p.282 (2003) LPELR p.1802.
(Reciprocal Enforcement) Act (Cap 152 of 1990) hereinafter referred to as the 1990 Act did not specifically repeal the 1958 Ordnance. This means that it still applies to the United Kingdom.
It was extended by proclamation under section 5 of the Ordnance before the coming into force of the 1990 Act.
Section 3 of the 1990 Act empowers the Minister of Justice of the Federation of Nigeria to extend the application of Part 1 of that Act with regard to registration and enforcement of foreign judgments of superior Courts, to any foreign country, including the United Kingdom if he is satisfied that the judgments of our superior Courts will be accorded similar or substantial reciprocity in those foreign countries and once an order is made section 3 of the 1990 Act in respect of any part of Her Majesty‟s dominions to which the 1958 Ordinance earlier applied, the latter case ceases to apply from the date of that order.
The Supreme Court in this decision held that the applicable law for enforcement of foreign judgements in Nigeria not the Foreign Judgment (Reciprocal Enforcement) Act 1990.
The implication of the decision above is that, the 1990 Act did not Specifically referred the 1958 0rdinance and as such the 1958 Ordinance continues to have effect until it is repeated by the legislature.
The crux of the judgment is the interpretation of s.3 (1) of the 1990 Act which provides as follow:
The Minister of Justice if satisfied that in the event of the benefits conferred by this part of this Act being extended to judgements given in the superior Courts of any foreign country, substantial reciprocity of treatment
will be assured as respects the enforcement in that foreign country, sustained reciprocity of treatment will be assured as respects the enforcement in that foreign country of judgements given in the superior Courts in Nigeria may be order direct
(a) That this part of this Act shall extend t o that foreign country, and;
That such Courts of that foreign country as are specified in the order shall be deemed superior Courts of that county for the purpose of this part of the Act.
Section 3 deals with the power of the Minister of Justice in respect of judgment from superior Courts outside Nigeria from countries giving Nigeria a reciprocal treatment.
However, as it is now the decision of the Supreme Court represent the current position of the law until the Supreme Court departs from it.
The parties to a foreign arbitral award or judgment must have submitted to the jurisdiction of the foreign arbitral tribunal or Court, before such arbitral award and judgment can be enforced by registration in Nigeria. The application under the Act has to be by way of an Originating Summons.353
353 Cap F35 Laws of the Federation of Nigeria 2004 s. 8.
s. 6 of the Foreign Judgments (Reciprocal Enforcement) Act354 provides for the conditions under which a registered award or judgment may be set aside upon an application of a defendant to include.
1. That the Act has not been complied with; or 2. That the original court had no jurisdiction; or 3. That the Judgment was obtained by fraud; or
4. That the enforcement would be contrary to public policy; or 5. On ground of res judicata; or
6. That the rights under the judgment are not vested in Nigeria, shall for all purposes have effect as if it were an award contained in a final judgment of the Supreme Court, and the award shall be enforceable accordingly.
Nwakoby and Aduaka sums up the grounds upon which the Court will refuse to enforce a foreign arbitral award or judgment as follows:
The superior Court in Nigeria will not enforce that award if at the time of the application for its enforcement there exists an appeal in any Court on the award for the purpose of setting it aside or if it has wholly been satisfied or it could not be enforced by execution in the country of the original Court. The enforcement of foreign award under this Act shall not be made if the Court is satisfied that the arbitral tribunal had no jurisdiction in the circumstances of the case to deal with the matter, if the successful party or the arbitral tribunal failed to serve notice of its
354 Cap F35 Laws of the Federation of Nigeria 2004.
proceedings to the defendant, if the award was obtained by fraud, and if the enforcement of the award will be contrary to the public policy of Nigeria. 355
4.6.3 Enforcement of Foreign Arbitral Award under International Centre for Settlement