RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT UNDER PRIVATE INTERNATIONAL LAW

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT UNDER PRIVATE INTERNATIONAL LAW

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^[1].  However, the foreign judgment (reciprocal enforcement) Act Cap F35^[2][3] 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 UNDER PRIVATE INTERNATIONAL LAW