This Country Answer reflects the state of the law as of 18 July 2008. Please refer to the explanations in the chapter entitled Disclaimer and Preliminary Note.

A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Nigeria.

2. Date of entry into force of the New York Convention

Nigeria became a signatory to the New York Convention on 17 Mar. 1970. The Convention entered into force on 15 June 1970. See Nigeria's Treaties in Force, 1970-1990 Vol. 2, No. 24, p. 269 and United Nations Treaty Collection status of the New York Convention, <http://www.uncitral.org.>.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity

Yes.

(Source: Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria 2004), s. 54(1)(a).)

(b) commercial relationships

Yes.

(Source: Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria 2004), s. 54(1)(b).)

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

No.

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

Section 51 and Schedule II of the Arbitration and Conciliation Act 1988, Cap. A18, Laws of the Federation of Nigeria 2004.

Another national source of law applicable to recognition and enforcement of foreign awards in Nigeria is the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act, Cap. 120, Laws of the Federation of Nigeria 2004, which provides specifically for the enforcement in Nigeria of an award made by ICSID.

As far as the New York Convention is concerned, the only national source of law is the Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria 2004).

In the case of C.N. Onuselogu Enterprises Ltd v. Afribank (Nigeria) plc, 2005 Nigerian Weekly Law Report, Pt 940 p. 579, particularly at p. 585 para. F, the Nigerian Court of Appeal deciding on the law governing arbitration in Nigeria held that the relevant law in Nigeria dealing with arbitration is the Arbitration and Conciliation Act 1988, Cap. 19, Laws of the Federation of Nigeria 1990, which is now Cap. A18, Laws of the Federation of Nigeria 2004.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Yes.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

Six years. See the cases of Murmansk State Steamship v. Kano Oil Millers Limited (1974) All Nigeria Law Report 893 and City Engineering Limited v. Federal Housing Authority (1997) 9 Nigerian Weekly Law Report, Pt 520, p. 224, where the Supreme Court of Nigeria held that the limitation period of 6 years starts running from the date of accrual of the cause of action.

(Source: The source for the 6-year limitation period is s. 8(1)(d) of the Limitation Law of Lagos State, Cap. L67, Vol. 5, Laws of the Lagos State of Nigeria 2003 (Lagos is one of the states of the Federation of Nigeria where enforcement proceedings of a foreign award may be commenced; the same period of 6 years applies in all the other states of the Federation).)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

High Court of a state, Federal High Court and High Court of the Federal Capital Territory, Abuja.

All the courts mentioned are courts of first instance with jurisdiction over recognition and enforcement of foreign arbitral awards. Nigeria operates a federal system: the Federal High Court is the court of first instance for the Federation, while each state has its High Court, and the Federal Capital Territory Abuja has its own court of first instance-the High Court of the Federal Capital Territory, Abuja.

(Source: cf. case of Magbagbeola v. Sanni (2002) 4 Nigerian Weekly Law Report, Pt 756, p.193 at 206, paras. A-B, where it was held that 'court' means the High Court of a state, the High Court of the Federal Capital Territory, Abuja or the Federal High Court. See also Federal High Court (Civil Procedure) Rules 2000, Order 20 Rule 17(1).)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

The Arbitration and Conciliation Act does not mention any requirements for invoking the jurisdiction of the court, but it is presumed that to apply for recognition and enforcement of a foreign award in Nigeria the respondent would be expected to have assets upon which execution can be made within the jurisdiction.

Legal proceedings for the recognition and enforcement of a foreign award are like any other proceedings in respect of which a state High Court or the Federal High Court have jurisdiction.

(Sources: cf. Lagos State High Court (Civil Procedure) Rules 2004, Order 2 Rules 3 & 4; Federal High Court (Civil Procedure) Rules 2000, Order 11 Rule 4, which respectively stipulate domicile or business within the jurisdiction of the court.)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The decision is obtained through ex parte proceedings, but the courts would invariably order the respondent to be put on notice since any order would affect the respondent's assets.

(Source: cf. Federal High Court (Civil Procedure) Rules 2000, Order 20 Rule 17(1).)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes.

(Source: cf. Federal High Court Act, Cap. F12, Laws of the Federation of Nigeria 2004, s. 32, which provides for appeal against the decision of the Federal High Court.)

When judgment is delivered by any of the courts of first instance mentioned in Q.7 above, any party dissatisfied with the decision is at liberty to appeal against the judgment to the Court of Appeal, within 90 days of delivery of the judgment. The appellant files a notice of appeal within 90 days of the date of the judgment. The notice of appeal contains the grounds upon which the appeal is based. If the grounds relate to law alone, then the appeal is as of right pursuant to section 241 of the Constitution of the Federal Republic of Nigeria. If the grounds relate to facts or both law and facts, then the appellant must obtain the leave of either the relevant court of first instance or the Court of Appeal to pursue the appeal.

(Source: Constitution of the Federal Republic of Nigeria 1999 (CAP. C23 Laws of the Federation of Nigeria 2004), ss. 241 and 242.)

(b) How many levels of appeal or recourse are available against this decision?

There are two levels of appeal: the Court of Appeal and the Supreme Court.

(Source: Constitution of the Federal Republic of Nigeria 1999 (CAP. C23 Laws of the Federation of Nigeria 2004), ss. 233 and 240.)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

The earliest stage at which a party can obtain execution against assets is in the High Court if there is no appeal.

(Source: Sheriffs and Civil Process Act (Cap. S6 Laws of the Federation of Nigeria 2004), s. 20.)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

(i) The duly authenticated original award or a duly certified true copy; (ii) the original arbitration agreement or duly certified copy thereof; (iii)where the award or arbitration agreement is not made in the English language, a duly certified translation thereof into English language. It is necessary to have an affidavit.

(Sources: Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria 2004), s. 51(1)(2); Federal High Court (Civil Procedure) Rules 2000, Order 20 Rule 17(1) and (2).)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

The Arbitration and Conciliation Act requires the arbitration agreement to be provided. Where the agreement is in the form of an arbitration clause, it is prudent to provide the entire contract containing the arbitration clause.

(Source: Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria 2004), s. 51.)

(c) Are originals or duly certified copies required?

Either originals or duly certified copies are required.

(Source: Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria 2004), s. 51.)

(d) How many originals or duly certified copies are required?

The Arbitration and Conciliation Act does not specify the number of copies; however, the number of copies will depend on the number of the parties to the proceedings since the copies are attached to the affidavits.

(e) Does the authority or court keep the originals that are filed?

Yes. Unless otherwise ordered by the court, the originals (exhibits) are not released unless the statutory period for filing a notice of appeal has elapsed without such notice having been given and only if the trial court grants leave for the release of the exhibits. Once an appeal has been filed, the exhibits are not released.

(Source: High Court of Lagos State (Civil Procedure) Rules, 2004, Order 30 Rule 17).

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes, if the documents are not in the English language.

(Source: Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria 2004), s. 51(2)(c).)

(b) If yes, into what language?

English.

(Source: Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria 2004), s. 51(2)(c).)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Yes. A sworn translator or a diplomatic or consular agent of the country of the award would be acceptable by the court. The translation must be certified.

(Source: Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria 2004), s. 51(2)(c).)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

A full translation of all the documents will be required.

(Source: Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria 2004), s. 51(2)(c).)

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes. Proceedings for recognition and enforcement can be stayed pending an application to set aside the award.

(Source: cf. Shell Trustees (Nig.) Ltd v. Imani & Sons Ltd (2000) 6 Nigerian Weekly Law Report, Pt 662, p. 639.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

Enforcement proceedings can be stayed on the grounds of forum non conveniens.

(Sources: cf. Supreme Court, M. V. Lupex v. Nigerian Overseas Chartering and Shipping Ltd (2003) 15 Nigerian Weekly Law Report, Pt 844, p. 469 (although it relates to the enforcement of an arbitration agreement, the same principles will apply to the enforcement of foreign arbitral awards); also Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria 2004), s. 52.)

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

Yes. The court may sometimes require security from the party requesting a stay of enforcement proceedings.

(Source: cf. Union Bank of Nigeria Limited v. Odusote Bookstores Ltd (1994) 3 Nigerian Weekly Law Report, Pt 331, p. 129 at 150, para. F, where the Supreme Court held that a judgment creditor is entitled to the fruit of his judgment, therefore a stay of money judgment will be refused in the absence of the provision of security. This will also be the mood of the court in an application for the stay of recognition and enforcement proceedings.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

Yes. The documents filed for enforcement proceedings form part of public records. Neither the Arbitration and Conciliation Act nor the Rules of the Federal High Court provide for steps to preserve the confidentiality of the documents.

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

The hearings on recognition and enforcement are not confidential. Steps can however be taken to have the proceedings held in the presence of the parties and their representatives alone.

(Source: Federal High Court (Civil Procedure) Rules 2000, Order 51 Rule 2(1) & (2).)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Yes, judgments on recognition and enforcement are published. Steps cannot be taken to remove the names of the parties from judgments destined for publication. All judgments on recognition and enforcement of foreign arbitral awards are published with the names of the parties. However, State secrets or business secrets may be excluded by special arrangement with the publisher.

(Source: cf. Murmansk State Steamship Ltd v. Kano Oil Millers Ltd (1974) All Nigeria Law Report p. 893, relating to the enforcement of an award made in Moscow.)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Partial and interim awards may be recognized and enforced as soon as the award is made, just like a final award provided the award has not been set aside.

(Source: Rules of Arbitration of the Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria, 2004), Schedule 1, Art. 26.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

A party can obtain recognition and enforcement of a non-monetary relief upon application and satisfaction of all the requirements for the enforcement of an award. An award is recognized as a judgment of a court of first instance and enforced accordingly.

(Sources: Judgment (Enforcement) Rules of the Sheriffs and Civil Process Act (CAP. S6 Laws of the Federation of Nigeria 2004), Order V Rule (1)(a)(ii), Order V Rule 2(b); Rules of Arbitration of the Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria, 2004), Schedule I, Art. 26(3).)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

If other parts of the relief requested are unenforceable, e.g. under Art. V of the New York Convention where there are decisions on matters outside the scope of the arbitration. Only decisions on matters referred to arbitration will be enforceable.

(Source: Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria, 2004), s. 52 (2)(a)(v).)

In addition, if a party seeks to enforce only part of an award (e.g. due to a need to enforce different parts of the award in different jurisdictions), such partial enforcement is possible and would be undertaken in the same way as the enforcement of an entire award.

(Source: Judgment (Enforcement) Rules in the Sheriffs and Civil Process Act (CAP. S6 Laws of the Federation of Nigeria 2004), Order II.)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

Awards set aside in other jurisdictions cannot be recognized and enforced in Nigeria.

(Source: Arbitration and Conciliation Act 1988 (CAP. A18 Laws of the Federation of Nigeria, 2004), s. 52(2)(a)(viii).)

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

Court costs are the same as for other cases filed in the High Court. It is the responsibility of the applicant to identify the assets upon which enforcement is sought. A judge may require the claimant to provide security under Order VI Rule 8 of the Judgment (Enforcement) Rules in the Sheriffs and Civil Process Act (CAP. S6 Laws of the Federation of Nigeria 2004).

The fees payable are contained in the 2d Schedule of the Sheriffs and Civil Process Act and Order XII(4) of the Judgments (Enforcement) Rules. The maximum filing fees payable in the Federal High Court regardless of the value of the claim is NGN 50, 000.00 (less than USD 400 at the current exchange rate of NGN 138 = USD 1).

(Source: Federal High Court (Civil Procedure) Rules 2000, Appendix 2.)

Country Rapporteur: Dorothy U. Ufot.