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Registering foreign judgments and the issue of state immunity

Map of Nigeria Print publication

11/02/2016

In the recent case of Ogelegbanwei and 52 others v President of the Federal Republic of Nigeria and others [1], the claimants applied to the English court for registration of a judgment given in their favour in Nigeria, in order to be able to enforce the judgment against the defendants’ assets in England. Gwendoline Davies considers the case and the practical implications for clients and practitioners alike.

Background

The claimants were the chiefs of 53 communities in the Gbaramatu Kingdom in the Federal Republic of Nigeria. In 2009, the Nigerian government deployed a military task force against the Kingdom’s inhabitants and, in 2010, the claimants (acting on behalf of themselves and the communities they represented) brought proceedings in Nigeria’s Federal High Court. The defendants were the President of the Federal Republic of Nigeria, the Attorney General of the Federation and the commander of the Joint Task Force (sued in his own right and as a representative of the personnel who served in the Task Force).  Judgment was awarded in the claimants’ favour in December 2013. The bombardment of their communities was unconstitutional and they were awarded damages exceeding 99 billion Naira (nearly £400 million). The awards were made against the defendants “jointly and severally”; meaning that each, any or all of them could be pursued by the claimants for payment, providing the claimants (in theory) with maximum flexibility.

The time limit for appeals expired in March 2014 and, despite assurances to the contrary, the judgment debt was not paid. Believing that all of the defendants had assets in England, the claimants applied (without notice to the defendants) to the English High Court in May 2015 for registration of the Nigerian judgment under section 2 of the Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 Act). The Judge queried whether the 1933 Act extended to Nigeria and gave the claimants’ legal advisers time to clarify. They concluded that the court did not in fact have jurisdiction under the 1933 Act (because no legislation existed applying it to Nigeria) and instead correctly issued an amended application notice seeking registration under section 9 of the Administration of Justice Act 1920 (1920 Act).

1920 Act

Section 9 of the 1920 Act sets out the procedure for registration of a foreign judgment (from a jurisdiction to which the 1920 Act extends) in England. The application must be made within 12 months after the date of judgment, or such longer period as the court allows. In this case, the application was made out of time, but the court allowed a longer period since the claimants had accepted assurances of payment in good faith and refrained from taking enforcement steps as a result. Rule 74.4 of the Civil Procedural Rules (CPR), which the claimants complied with, sets out the required evidence in support of such an application.

From the date of registration, the foreign judgment has the same force and effect as if it had been originally obtained in the registering court and can be enforced in the same way. (The order must be served on the judgment debtor, who can challenge the registration and apply to have it set aside.  The creditor may not enforce the judgment during that period.)

The issue of state immunity

Given the status of the defendants involved, state immunity was a key issue for consideration in this case:

Section 1 of the UK’s State Immunity Act 1978 (SIA) provides a State (as defined) with general immunity from jurisdiction:

(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.

(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.

Section 14 provides that references to a “State” include references to:

(1)…(a) the sovereign or other head of that State in his public capacity;

(b) the government of that State; and

(c) any department of that government,

but not to any entity (hereafter referred to as a “separate entity”) which is distinct from the executive organs of the government of the State and capable of suing or being sued.

(2) A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if–

(a) the proceedings relate to anything done by it in the exercise of sovereign authority; and

(b) the circumstances are such that a State…would have been so immune.

Section 5 provides:

A State is not immune as respects proceedings in respect of–

(a) death or personal injury; or

(b) damage or loss of tangible property,

caused by an act or omission in the United Kingdom.

The Judge had no difficulty in concluding that no issue of state immunity arose with the third defendant and ordered registration of the judgment against him accordingly. This was a clear case in which it was just and convenient that the judgment against him should be enforced. The position with the first and second defendants was a lot less straightforward – on the face of it, they were immune from the court’s jurisdiction.

Essentially, the claimants argued that:

  • The defendants’ actions were grave breaches of human rights guaranteed by a charter ratified by Nigeria in 1983 – effectively the same as those guaranteed in England by the Human Rights Act 1998 (HRA) and the EU Charter of Fundamental Rights (EU Charter);
  • To deny the claimants access to the English court would be a breach of:
    • the court’s duty under the HRA to give effect to legislation in a way which is compatible with the protections in the European Convention on Human Rights (Convention) [2];
    • the claimants’ article 6 Convention right to a fair hearing;
    • Article 47 of the EU Charter (“Right to an effective remedy and to a fair trial”) [3];
  • Sections 1 and 5 of the SIA are incompatible with the HRA and should be disapplied; section 5 is incompatible with the article 6 Convention right because it excludes a state’s immunity only in respect of personal injury/damage to property within the UK – it should be read so as to exclude a state’s immunity in respect of injury/damage caused by any acts which constitute a breach of human rights.

Conclusion and practical barriers

The Judge was not prepared to make a declaration of incompatibility under section     4(2) of the HRA or to disapply the relevant provisions of the SIA and ultimately refused the claimants’ application to register the Nigerian judgment against the first and second defendants on the following basis:

  • The wording of section 5 of the SIA is entirely plain and to interpret it as the claimants contended would disturb the overall balance struck by Parliament in enacting the SIA.
  • Section 1 of the SIA grants immunity in accordance with the principle of international law that one state does not have jurisdiction over another – it clearly pursues a legitimate aim. The Judge was not persuaded that the restriction imposed by section 5 is not proportionate to that legitimate aim [4].
  • Even if the court had been persuaded to make a declaration of incompatibility, the claimants had misunderstood a point of considerable practical importance – such a declaration (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given, and (b) is not binding on the parties to the proceedings in which it is made [5].
  • No notice in respect of a declaration of incompatibility had been given to the Crown as required under CPR 19.4A (if it had, the Judge indicated that it would also have been necessary to make the current application on notice to the defendants).
  • The EU Charter provisions only apply to national authorities when implementing EU law – in this case, the application for registration was being made under the 1920 Act and therefore did not fall within the scope of EU law [6].

If you have any questions arising from this briefing, or wish to find out more about the methods and practicalities of enforcing a money judgment in England, please contact Gwendoline Davies.

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[1] [2016] EWHC 8 (QB)
[2] The HRA effectively codified these Convention rights into UK law.
[3] The wording of many of the EU Charter rights is based on the wording of the Convention rights.
[4] The Judge queried whether article 6 was engaged at all.  He referred to an unresolved conflict between the case law of the UK and the European Court of Human Rights, but practically this did not affect the outcome.
[5] Section 4(6) of the HRA.  This is an example of the concept of “parliamentary sovereignty” in action – it is a decision for Parliament whether or not to amend the incompatible legislation.
[6] The claimants had sought to rely on the decision in Benkharbouche and Janah v Embassy of the Republic of Sudan [2015] EWCA Civ 33, in which the Court of Appeal not only made a declaration of incompatibility but also declared that certain provisions of the SIA, in their application to those parts of the claims which fell within the scope of EU law, infringed Article 47 of the EU Charter.  On that ground, it disapplied the offending provisions.

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