Some recent decisions and pronouncements of the Central Bank of Nigeria (‘CBN’) affecting international money remittances to Nigeria and the operators of related businesses have raised eyebrows within and beyond Nigeria. In particular, they have been a source of concern for foreign (non-Nigerian) providers of international remittance services to Nigeria, causing some of them to suspend their remittance operations to Nigeria. .
In a recent press release (of 2nd August 2016) which has been widely reported in the press the CBN stated that all “financial service providers” are required to be duly licensed in order to protect customers and the financial system; that international money transfer operators are required to remit foreign currency to their agent banks in Nigeria for disbursement in Naira to beneficiaries; and, that foreign currency proceeds are to be sold to bureau de change operators.
Following the expressions of concern which followed naturally, the CBN has since clarified in another press release that “it has not foreclosed the licensing of interested players in the IMTO space in Nigeria.”
‘It is hard to imagine a less well-defined boundary than that separating contracts which do from those which do not “affect” interstate commerce.’ (Robert Braucher, 1951)
In the last entry we started examining the extent of applicability of the sale of goods legislation of some of the states of Nigeria in light of the trade and commerce provision of the Nigerian Constitution. The trade and commerce clause confers exclusive legislative powers on the Nigerian federal legislature in respect of trade and commerce between Nigeria and other countries and between the states. It was noted that in Attorney General of Ogun State v Aberuagba (1985) the Nigerian Supreme Court did not confine the operation/application of the provisions to relationships between government entities. Instead the court considered the provisions as applicable in the particular case to the movement of products across the states or between Nigeria and another country. It was also noted that, taking account of the terms of the decision, the sale of goods would also fall within the meaning of trade and commerce.
In a previous entry we argued that despite the fact that “trade and commerce” is listed as an item on the Exclusive Legislative List of the Nigerian 1999 Constitution, state legislatures also have legislative competence to enact arbitration legislation even in respect of interstate and international commercial transactions.
In this entry, we examine the “trade and commerce” provision in the Exclusive Legislative List from another dimension. In particular, we are going to briefly raise a question concerning the validity of some of the extant state legislation on sale of goods in light of the trade and commerce provision in the Exclusive Legislative List.
The doctrine of covering the field continues to attract some attention in relation to arbitration law and practice in Nigeria. As has been discussed recently, its relevance is being raised in the particular context of whether a state arbitration legislation can be or remain valid in light of the existence of the federal Arbitration and Conciliation Act. The particular legislation that has been raising the dust is the Lagos State Arbitration Law of 2009 and suggestions continue being made that the law either needs to be amended (or cannot even stand) in light of the federal legislation owing to the doctrine of covering the field.
Since 1988 the legislation typically invoked in Nigeria as the framework legislation concerning commercial arbitration has been the federal Arbitration and Conciliation Act 1988 – although many states continue to have legacy arbitration legislation from Nigeria’s colonial era on their statute books. The introduction and enactment of the Lagos State Arbitration Law of 2009, as an alternative to the federal legislation, and that state’s argument that it has the necessary competence under the Nigerian Constitution of 1999 has ignited a serious constitutional debate about legislative competence over arbitration – especially arbitration concerning transactions or disputes with connections to more than one state or beyond Nigeria.
The purpose of this brief essay is to summarise a generally overlooked line of argument, based on a conceptual appreciation of arbitration and extant Nigerian judicial authority, that the 1999 Constitution is consistent with the conclusion that both the federal and states’ legislatures have competence to enact arbitration legislation in respect of transactions or disputes with connections to more than one state or beyond Nigeria.
A recent decision of the Nigerian Court of Appeal on whether a third party can challenge an arbitration agreement in Nigeria, i.e. whether a person who is not a party to an arbitration agreement can bring an action in the courts to challenge the arbitration proceedings based on the agreement, has stirred up some controversy. The judgment of the Court of Appeal in Statoil Nigeria Ltd & Anor v Federal Inland Revenue Service & Anor which was delivered in June 2014 has been reported recently in (2014) LPELR-23144.
In essence, the Court of Appeal held that the Federal High Court was justified to refuse an application to stay its proceedings in which the arbitration agreement and proceedings were challenged by a third party on the basis that the third party had locus standi to bring the challenge before the courts. The key facts of the case are as summarised below …
With rather coincidental timeliness following our recent blog entry (also published elsewhere) on the enforcement of foreign judgments in Nigeria, our friend and Colleague Adewale Olawoyin of the Nigerian law firm Olawoyin & Olawoyin has just published a very instructive article on the same topic in the Journal of Private International Law.
The article agrees with our conclusion in both the recent blog entry and ’Gbenga Bamodu’s earlier similarly analytical article in the Oxford University Commonwealth Law Journal that, contrary to the decisions of the Nigerian Supreme Court, the Foreign Judgment (Reciprocal Enforcement) Act 1960 really should be and continue to be inoperative until relevant orders are made by the Minister of Justice.
’Wale’s article also goes on to make important observations and recommendations. Arguably, the most important of these is that the Nigerian legislature and policy makers should really be looking at enacting a new legislative regime for the enforcement of foreign judgments in Nigeria. The suggested new regime does not necessarily have to be based on reciprocity, it can take account of Nigeria’s commercial and strategic interests especially bearing in mind which countries are Nigeria’s most important trading partners, and it might even take account of non-money judgments . Finally, the new regime would obviate all the potential difficulties of interpretation that may attend both the Reciprocal Enforcement of Judgments Act 1922 and the Foreign Judgments (Reciprocal Enforcements) Act 1960. We heartily recommend this article.
In a series of judgments going back to at least 2003 Nigeria’s highest courts, especially the Supreme Court, have provided greater clarity concerning the statutory regimes for enforcing foreign money judgments in Nigeria. Nevertheless, an examination of the decisions of the courts and the practical implications of some of the most recent decisions indicate that an enormous amount of caution is still required when seeking to enforce a foreign judgment in Nigeria.
In one of the most recent cases, Access Bank v Akingbola (2014), the Lagos State High Court advised that the judgment creditor should have acted ex abundanti cautela (‘out of the abundance of caution’) when selecting which Nigerian court to approach for the enforcement of a judgment of the English High Court. It is contended that the necessity for caution, while indeed advisable and recommended, is in part due to uncertainty and confusion arising from very questionable interpretations and decisions of the courts themselves.
There are two statutory regimes under which it may be possible to enforce a foreign judgment in Nigeria. The first is the Reciprocal Enforcement of Judgments Act 1922 (‘the 1922 Act’ which is sometimes confusingly referred to as the 1958 Act) and the Foreign Judgments (Reciprocal Enforcement) Act 1960 (‘the 1960 Act’ which is sometimes referred to, also confusingly, as the 1990 Act). While it had been assumed to some degree that the advent of the 1960 Act had led to the repeal of the 1922 Act, the Supreme Court has decided, rightly, that the 1922 Act was never repealed and remains in force ….
In the US Supreme Court decision in the Kirtsaeng case, discussed previously, the dissenting opinion written by Ginsburg J contained some interesting observations about the approach of the United States government to the issue of exhaustion of intellectual property rights. In particular, Ginsburg J observed that while the majority decision of the court ‘places the United States solidly in the international exhaustion camp’, it is the position of the dissent which favours a national exhaustion doctrine that is consistent with ‘the stance the United States has taken in international negotiations’. The dissent judgment points out further that the US government ‘reached the conclusion that widespread adoption of the international exhaustion framework would be inconsistent with the long term economic interests of the United States’.
The comments of Ginsburg J reflect the important fact that policy considerations affect the type of exhaustion doctrine adopted by a particular country or even, in contemporary times, a politico-economic region. ………
The recent judgment of the Supreme Court of the United States in the case of Kirtsaeng v John Wiley Inc is already attracting a lot of attention. This is understandable because of its effect in rightly being seen as confirming that, at least in relation to copyright specifically, the US law presently recognises the concept of ‘international exhaustion’. In the decision in Kirtsaeng the US Supreme Court confirmed (in a majority decision) that the ‘first sale doctrine’ (another expression for ‘exhaustion doctrine’) applies in respect of copyrighted works manufactured abroad with the permission of the copyright owner. ……….