NIGERIAN LEGAL SYSTEM AND REGISTRATION OF FOREIGN JUDGMENTS VIS A VIS TERRORISM PREVENTION

On the 11^th of September ,the world was shook to its base with the terror attack on the most significant trade centre in the united states-world trade centre and thus open a new vista in international security challenges .since then, terrorism has continued to threaten global peace and prosperity. Terrorism is described as the calculated and extreme use of violence or threatened violence, perpetuated by malice, to cause serious harm or violence against individuals, governments and their assets with the intention to attain political,

In this piece ,it is our intention to find out  whether a person can be prosecuted for terrorism and the legal regime [the law and where it can be found] for such  prosecution [if any].However before  we can safely and properly carry out this inquiry, it is imperative to find out the sources of the Nigerian legal system.

LEGAL SYSTEM

The Nigerian legal system is based on the English common law legal tradition by virtue of colonization and the attendant incidence of reception of English law through the process of legal transplant. According to Obilade (1979) English law has a tremendous influence on the Nigerian legal system, and “English law forms a substantial part of Nigerian law”. The sources of Nigerian law are: The Constitution; Legislation; English law; Customary law; Islamic law; and  Judicial precedents.

Constitution

The current constitution is the 1999 Constitution.The 1999 Nigerian Constitution came into operation on May 29, 1999.

Legislation

The Constitution of the Federal Republic of Nigeria 1999 regulates the distribution of legislative business between the National Assembly, which has power to make laws for the Federation and the House of Assembly for each State of the Federation. The current legislation in force at the federal level is largely contained in the Laws of the Federation of Nigeria 1990 (LFN). Laws made after the 1990 law revision exercise of the federal laws are to be found in the Annual Volumes of the Laws of the Federal Republic of Nigeria. Federal laws under the Military, known as Decrees, and state laws, known as Edicts, form the bulk the primary legislation.

Each of the 36 states and the Federal Capital Territory (FCT) Abuja has its own laws. Some states have in recent times undertaken law revision exercises to present their laws in a compact and comprehensive form to guarantee easy access. Most of the pre-1990 Decrees were incorporated into the LFN and those patently incompatible with the new constitutional order were repealed on the eve of the inauguration of a new democratic government in May 1999. Primary and subordinate legislation in force on the coming into operation of the Constitution are treated by the Constitution as existing laws and deemed to have been made by the appropriate legislative body with competence to do so under the 1999 Nigerian Constitution. Legislation has been described as the most important source of Nigerian law. This is partly because all other sources of Nigerian law are considered as such by virtue of a piece of legislation or the other.

English Law

This consists of:

(a) the received English law comprising:

(i) the common law;

(ii) the doctrines of equity;

(iii) statutes of general application in force in England on January 1, 1900;

(iv) statutes and subsidiary legislation on specified matters and

(b)English law (statutes) made before October 1, 1960 and extending to Nigeria which are not yet repealed. Laws made by the local colonial legislature are treated as part of Nigerian legislation. The failure to review most of these laws especially in the field of criminal law has occasioned the existence of what may be described as impracticable laws or legal provisions which are honored more in breach than in observance. Despite the influence of English Law, the Nigerian legal system is very complex because of legal pluralism.

Customary Law

The traditional classification of customary law is into the two categories:Ethnic/Non-Moslem; Moslem law/ Sharia.

In the states in the Southern part of the country, Moslem/Islamic law, where it exists, is integrated into and has always been treated as an aspect of the customary law. Since 1956, however, Islamic law has been administered in the Northern states as a separate and distinct system. Even then it has only been in relation to Muslim personal law. However, it is better to accord Islamic law its distinct status as a separate source of law because of its peculiarities in terms of origin, nature and territorial and personal scope of application.

Ethnic / Non-Moslem Law-The ethnic customary law is the indigenous law that applies to the members of the different ethnic groups. Nigeria is made up of several ethnic groups each with its own variety of customary law. Customary law is a system of law that reflects the culture, customs, values and habits of the people whose activities it regulates. It has been described as a mirror of accepted usage. Customary law is particularly dominant in the area of personal and family relations like marriage, divorce, guardianship and custody of children and succession. Naturally, differences in the customary laws of different ethnic groups do exist and this must be taken for granted. Even within an ethnic group, instances of pockets of differences in aspects of customary law are noticeable. For example, the marriage customs and inheritance rules of the Ibos of the South Eastern Nigeria are different from those of the Yorubas of the South Western Nigeria. Beyond this the customary values and systems of various Yoruba sub-ethnic groups are bound to be different even if they are in the same State. Unfortunately, ethnic customary law is unwritten, uncertain and difficult to ascertain. It is flexible and has the capacity to adapt to social and economic changes without losing its character. There have been instances of legislative interventions to modify and at times abrogate rules of customary law. Customary law is usually enforced in customary courts, the courts at the lowest rung of the hierarchy of courts, which in most cases are presided over by non-legally trained personnel, though higher courts are equally permitted to observe and to enforce the observance of rules of customary law by their enabling laws. It is to be noted the bulk of causes on the Cause List of customary courts, especially in South Western Nigeria, are matters relating to the dissolution of traditional marriages.

Islamic Law / Sharia / Moslem Law-Islamic law, unlike ethnic customary law, is written. Its principles are clearly defined and articulated. This system of law has worked with detailed thoroughness and incisive precision. It is based on the Islamic religion and was introduced into Nigeria by its practitioners as a consequence of a successful process of Islamization. This system of law is based on the Holy Koran and the teachings of Prophet Muhammad. In some areas Islamic law after its introduction completely supplanted the preexisting system of customary laws whereas in other areas it became incorporated with customary law and the two systems have become fused and are jointly administered. Islamic law is being enforced in some states of Nigeria especially in the Northern part where populations are predominantly Moslem. The scope of operation of Islamic law has been broadened since the introduction of the Sharia legal system in the present democratic dispensation in a number of Northern states such as Zamfara, Kano, Kaduna, and Sokoto among others. The principal feature of this new development is the introduction of religious based criminal offences, especially on matters of morality and the introduction of punishments sanctioned by the Koran. The apex court, the Supreme Court of Nigeria, has not had the opportunity to pronounce on the constitutionality of punishments like amputation and stoning of a person to death, which the Sharia prescribes for certain offences.

Judicial Precedents-The Supreme Court is the highest court of the land. It replaced the Judicial Committee of the Privy Council in 1963 as the final court of appeal. The Court of Appeal (originally known as the Federal Court of Appeal) was established in 1976 as a national penultimate court to entertain appeals from the High Courts, which are the trial courts of general jurisdiction. The Court of Appeal sits in 10 Judicial Divisions scattered throughout the country but it is still a single court and is ordinarily bound by its own decisions. The Court of Appeal and all lower courts are bound by the decisions of this Supreme Court. The High Courts and other courts of coordinate and subordinate jurisdiction are equally bound by the decisions of the Court of Appeal. The doctrine of judicial precedents does not apply rigidly to certain courts like the customary/area courts and the Sharia courts in Nigeria.

LEGAL REGIME FOR THE PROSECUTION OF TERRORISM IN NIGERIA

 To address this criminal activity, governments all over the world, including the Nigerian government, have passed into law various legislation making terrorism very serious global criminal offences. In Nigeria, the legislation that proscribes all manner of terrorist activity is the Terrorism (Prevention) Act, 2011. The Act is divided into eight parts, with 41 sections. The provisions cover the following issues:

•Acts of terrorism and related offences.

•Terrorism funding and properties obtained through acts of terrorism.

•Mutual assistance, information sharing and extradition where there is a mutual treaty with a foreign state on offences related to terrorism.

•Investigation and prosecution of terrorists.

•Revocation of licences and refusal of application for registration of charities linked to terrorist groups.

•How to obtain information relating to passengers of vessels, aircraft and persons from operator of an aircraft or master of a vessel when a person(s) suspected for terrorist activity is on board.

Prohibition of Terrorism
It is a criminal offence, under Nigerian law, for any person to commit, threaten, promote, assist or facilitate any act preparatory to or in furtherance of, or the actual execution of any act(s) of terrorism.

Terrorism Funding
Any person who directly or indirectly provides or collects funds with the knowledge or intention that such funds will be used in full or in part for any kind of terrorist activity commits an offence and is liable on conviction to a maximum term of imprisonment of ten (10) years. Similar provisions and penalty applies to persons who knowingly solicit, receive, provide or possess any property for the furtherance of a terrorist activity or activities.The Attorney General of the Federal Republic of Nigeria is empowered to make regulations for the freezing of the assets and funds of a terrorist group or of any individual involved in terrorist activity.

Arranging and supporting terrorist meetings, harbouring terrorists, obstructing terrorist investigations, been declared an international terrorist group or individual or failing to report terrorist financial transactions are offences which on conviction carry terms of imprisonment of not less than 3 years and not more than 20 years.

The Nigerian Terrorism (Prevention) Act, 2011 essentially seeks to

•Provide measures for the prevention, prohibition and combating of acts of terrorism and the financing of terrorism in Nigeria.

•The effective implementation of the AU Convention on the Prevention and Combating of Terrorism and the Convention and Suppression of Financing of Terrorism.

•Prescribe penalties for violating any of its provisions.

According to section 1(2(c)(i-iii), terrorism includes attacks upon a person’s life which may cause bodily harm or death, kidnappings, as well as the destruction of government facilities or private properties in a manner likely to endanger human life or result in a major economic loss.

Some of the laudable provisions are:

•Comprehensive definition of terrorism and terrorist activities.

•The power to proscribe terrorist groups or groups with terrorist tendencies.

•Several provisions enhancing collaboration between Nigeria and other countries in the global fight against terrorism.

•Provisions aimed at facilitating the ratification and enforcement of international and regional conventions and treaties on terrorism.

•Provisions allowing investigation into and the seizure of properties and cash belonging to terrorist groups and their financiers.

•The power to withdraw certificates of incorporation of business organisations who are found using the funds from their legitimate business to fund terrorist organisation.

However, the question that agitates the mind of Nigerians is: Are the provisions of the Act adequate in addressing the Nigerian terrorism situation? The answer is no, as there are several inadequacies therein. Some of the said inadequacies are enumerated below:

•In pursuing the objectives of the Act, the lawmakers have neglected to include in the Act, provisions for the protection of the fundamental human rights of terrorist suspects. It is a fundamental principle of law that a person is innocent until declared guilty by a competent court of law.

•There are inadequate provisions on the supervisory functions of the Judiciary over the activities of law enforcement agencies in relation to investigation and prosecution of terrorists.

•The Act is reactive and not proactive. There are no provisions to prevent people from turning to terrorism by tackling the factors or root causes of terrorism such as economic deprivation, employment, religious extremism and radicalisation.

•The Act is silent on the responsibility of government to protect Nigerians and other inhabitants of the country from terrorist attack. It does not reflect enough commitment from the government on how to reduce the vulnerability of Nigerians to attack through improved security of borders, transport and critical Infrastructure.

•The Act makes no provision on how to manage and minimise the consequences of terrorist attacks, by improving capabilities to deal with it and how to promptly respond to the immediate and long term need of victims.

•The only court with jurisdiction over terrorist related offences is the Federal High Court. Considering the present congestion of the Federal High Court and the number of years it takes to get judgment under the present Nigerian Judicial system, one would have expected that provisions would have been made in the Act, enabling the creation of courts specifically for trial of terrorists and terrorism related matters.

In view of the above mentioned inadequacies of The Nigerian Terrorism (Prevention) Act, 2011 in the prevention ,investigation,and prosecution of terror suspects, it Nigeria can gain from other legal jurisdiction with better legal framework in the field of terror prosecution. But then, what are the legal framework regulating the application or enforcement of foreign judgements in Nigeria.

APPLICATION OF FOREIGN JUDGMENT IN NIGIERIA

Two schools of thought have emerged over the years as rationalization for the recognition and enforcement of foreign judgments¹. These are the theories of reciprocity and obligation.The theory of reciprocity posits that the courts of country X should recognise and enforce the judgment of country Y, if and only if, country Y is prepared to offer similar recognition and enforcement to the judgments of country X. The doctrine of obligation, on the other hand, came into prominence in the 19^th century and was put forward by Blackburn J. in Schibsby v. Westenholz as follows:

"We think that … the true principles on which the judgments of foreign tribunals are enforced in England is … that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the courts in this country are bound to enforce; and any thing which negatives that duty, or forms a legal excuse for not performing it, is a defence to the action."

 Legal Regime Regulating Enforcement of Foreign Judgments in Nigeria

There are two statutes regulating enforcement of foreign judgments in Nigeria which are The Reciprocal Enforcement of Foreign Judgments Ordinance, Cap 175, Laws of the Federation of Nigeria and Lagos, 1958 ("the 1958 Ordinance) (this Ordinance was enacted in 1922 as L.N. 8, 1922) and The Foreign Judgments (Reciprocal Enforcement) Act, Cap 152, Laws of the Federation of Nigeria, 1990 ("the 1990 Act’) (enacted in 1961 as L.N.56,1961)

There has been some confusion among lawyers, with regard to the determination of which law regulates the registration of foreign judgments in Nigeria and as to whether a 1922 Ordinance is still applicable. However, this controversy has been laid to rest by recent Supreme Court decisions establishing that the laws generally applicable to proceedings for the registration of foreign judgments in Nigeria are the Reciprocal Enforcement of Judgments Act, 192211, (hereinafter referred to as “the 1922 Ordinance”) and the Foreign Judgments (Reciprocal Enforcement) Act, 1961  (hereinafter referred to as “the 1961 Act”). See generally Macaulay v. R. Z. B. Austria

The 1922 Ordinance was promulgated as Ordinance No. 8 of 1922 to facilitate the reciprocal enforcement of judgments obtained in Nigeria and the United Kingdom and other parts of Her Majesty‟s Dominions and Territories under Her Majesty„s Protection. It came into operation on the 19th of January, 1922.

 The 1922 Ordinance is applicable to all judgments of superior courts obtained in the United Kingdom. ThisThis was the first Federal law governing the registration of foreign judgments in Nigeria.

The 1961 Act came into operation on the 1st of February, 1961 by an act of Parliament and is applicable to judgments obtained in all foreign countries and not just Commonwealth countries. It is significant to note that the 1961 Act, did not repeal the 1922 Ordinance rather it complemented it. The implication of this is that the 1922 Ordinance is still applicable to judgments obtained in the United Kingdom and to parts of Her Majesty‟s dominions to which it was extended by proclamation under Section 5 of the Ordinance before the coming into force of the 1961 Act.

In summary, whilst it can be said that the 1922 Ordinance is still the law regulating the registration and enforcement of foreign judgments obtained in United Kingdom and parts of her Majesty‟s dominions, the 1961 Act generally deals with the registration of judgments from all foreign countries, including those that the 1922 Ordinance is not applicable to. It should be noted that once a foreign judgment has been registered by a Nigerian Court, it becomes a judgment of the Nigerian Court and is enforceable as such.

Based on the applicable law governing the registration of foreign judgments as established above, the procedure for registration of foreign judgment is spelt out in the Rules of Court made pursuant to Section 6 of the 1922 Ordinance which provides that it shall be upon a petition made ex-parte or on notice to a Judge. Where the said petition is made ex-parte, the Judge may direct notice to be served on the Respondent or Judgment debtor as the case may be. Once the Court is satisfied with the petition of the Applicant or Judgment Creditor, the Court shall register the judgment and an order to that effect is drawn up.

“It is significant to note that the 1961 Act did not repeal the 1922 Ordinance, rather it  

complemented it. The implication of this is that the 1922 Ordinance is still applicable to judgments obtained in the United Kingdom and to parts of Her Majesty‟s dominions to which it was extended by proclamation under Section 5 of the Ordinance before the coming into force of the 1961 Act.”

When the said order is made upon a petition on notice the order shall be served on the Respondent or Judgment Debtor. Where the order is made upon an ex-parte petition, there is no provision in the rules that the same shall be served on the Judgment debtor. Finally, the rules also require the order granting leave to register the foreign judgment to state the time within which the Judgment Debtor is entitled to apply to set aside the registration which is also by way of petition to a Judge.

 What Judgments are Registrable

In order for a foreign judgment to be enforceable in Nigeria, it must be pronounced by a superior court of the country of the original court. This applies to both civil proceedings (including awards in arbitration proceedings) and judgments given in criminal proceedings for the payment of money in respect of compensation or damages to an injured party.

To qualify for registration, the foreign judgment must be a money judgment.^. The judgment must be for a sum certain. A sum is sufficiently certain for this purpose if it can be ascertained by a simple arithmetical process.

Additionally, the judgment must be final and conclusive as between the parties thereto.¹⁰ In other words, it must settle the rights and liabilities of the parties so as to be res judicata in the country in which it was given. As Lord Herschell put it:

"It must be shown that the court in which it was produced, it conclusively, finally and forever established the existence of the debt which it is sought to be made conclusive evidence in this country, so as to make it res judicata between the parties."

Thus interim or interlocutory and default judgments that do not finally and conclusively determine the rights and liabilities of the parties are not registrable. Also a judgment which is capable of being varied or rescinded by the court that gave it is not registrable.

The onus of proof that the judgment is final and conclusive is on the party who so asserts. However, a judgment shall be deemed to be final and conclusive despite the fact that an appeal is pending against it or that it may still be subject to an appeal in the foreign country in which it was pronounced.

Similarly, judgments of a non monetary nature such as declarations regarding an existing state of affairs and injunctions either directing or prohibiting a person from doing a particular thing (other than the payment of money) are not registrable. Judgments directing payment of taxes, revenues and penalties, judgments in criminal proceedings imposing terms of imprisonment or fines are also excluded from being registered. A judgment shall also not be registered if at the date of the application for registration the judgment has been wholly satisfied (paid) by the judgment debtor or if the judgment could not be enforced by execution in the original court. This will cover cases of declaratory judgments which by their very nature are incapable of enforcement.

Effect of Registration of the Foreign Judgment

For the purposes of execution, a registered judgment has the same force and effect as the original judgment and proceedings may be taken on it. The judgment sum carries interest, and the registering court has the same control over execution, as if the registered judgment had been one originally given by the registering court and entered on the date of registration.