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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
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
15 June 1970.
(Source: Nigeria’s Treaties in Force, 1970–1990 Vol. 2, No. 24, p. 269)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Yes.
(Source: ACA 1988, s. 54(1)(a).)
While s. 54(1)(a) of the Arbitration and Conciliation Act sets out the reciprocity reservation, s. 51(1) provides that an arbitral award shall be recognized as binding irrespective of the country in which it was made. In the recent case of Tulip Nigeria LTD v. Noleggioe Transport Maritime S.A.S. (2011) 4 Nigerian Weekly Law Report, the Court of Appeal held, inter alia, as follows:
(Source: ACA, s. 51(1); Tulip Nigeria LTD v. Noleggioe Transport Maritime S.A.S. (2011) 4 Nigerian Weekly Law Report, pt 1237, p. 254.)
(b) commercial relationships?
(Source: Arbitration and Conciliation Act 1988 (Cap. A18 Laws of the Federation of Nigeria 2004), ss. 54(1)(b) and 57.)
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?
Yes. International commercial arbitrations take place in Nigeria pursuant to the Arbitration and Conciliation Act 1988 (Cap. A18 Laws of the Federation of Nigeria 2004), ss. 43(57. Awards rendered in international arbitrations taking place in Nigeria are not considered as domestic awards and come within the scope of the New York Convention.
(Source: Arbitration and Conciliation Act 1988 (Cap. A18 Laws of the Federation of Nigeria 2004), s. 54.)
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)?
(i) ss. 51 and 54 of the Arbitration and Conciliation Act 1988, Cap. A18, Laws of the Federation of Nigeria 2004 (Schedule II of the Act incorporates the New York Convention into Nigerian law without any modifications) (‘ACA’);
(ii) International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act, Cap. 120, Laws of the Federation of Nigeria 2004, which provides for the enforcement of ICSID awards in Nigeria;
(iii) case law.
In 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 held that the law governing arbitration in Nigeria is the ACA.
A foreign arbitral award may also be enforced using the Reciprocal Enforcement of Foreign Judgments Ordinance, Cap 175, Laws of the Federation of Nigeria and Lagos, 1958 (the ‘1958 Ordinance’ enacted in 1922 as L.N. 8, 1922). Arbitral awards which have become enforceable as court judgments in the countries to which the 1958 Ordinance applies (the United Kingdom and some commonwealth countries) will be enforced under the 1958 Ordinance.
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?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The ACA does not contain any provisions setting a time limit for commencing legal proceedings for recognition and enforcement of foreign awards. However, the Supreme Court held in the case of Murmansk State Steamship v. Kano Oil Millers Limited (1974) All Nigeria Law Report 893, relating to recognition and enforcement of an arbitral award made in Moscow, that the limitation period for commencing action for the recognition and enforcement of foreign arbitral awards is six years from the date of accrual of the cause of action leading to the arbitration proceedings in which the award was made, and not from the date of the award. The Supreme Court unanimously held the same position in City Engineering Nigeria Limited v. Federal Housing Authority [1997] 9 NWLR (Pt 520) 244. See also Tulip Nigeria Ltd v. Noleggioe Transport Maritime S.A.S (2011) 4 Nigerian Weekly Law Report, Pt 1237, p. 254.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Nigeria is a federation comprising 36 states and the federal capital territory, Abuja. The High Courts of the 36 states as well as the High Court of the federal capital territory, Abuja, each have jurisdiction over recognition and enforcement of foreign arbitral awards as courts of first instance.
The various divisions of the Federal High Court, including the Federal High Court of Abuja, likewise have jurisdiction over recognition and enforcement of foreign awards as courts of first instance.
(Source: Magbagbeola v. Sanni (2002) 4 Nigerian Weekly Law Report, Pt 756, p.193, 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. While Federal High Court (Civil Procedure) Rules 2009, Order 1 Rule 5 defines ‘court’ as meaning the Federal High Court, High Court of Lagos State (Civil Procedure) Rules 2012, Order 1 Rule 2(3) defines ‘court’ as meaning the High Court of Lagos State. However, ACA, s. 57 defines ‘court’ as meaning the High Court of a State or the High Court of the federal capital territory, Abuja, or the Federal High Court.)
Concerns regarding jurisdiction may arise when a foreign arbitral award has been recognised as a judgment of the court in another jurisdiction such as England and Wales and needs to be enforced as a court judgment in Nigeria. In recent rulings of the Lagos State High Court in Access Bank Plc v. Akingbola (Unreported, Suit No M/563/2013, delivered on 18 Feb. 2014), and the Court of Appeal in Kabo Air Limited v The O’ Corporation Limited [2014] LPELR 23616, the Nigerian courts held that a court would only have capacity to entertain an application to enforce a foreign judgement arising from a subject matter over which it would originally have jurisdiction. Accordingly, it is advisable to file an application before the Federal High Court or State High Court that would have had jurisdiction over the subject matter of the underlying claim resolved in the arbitration
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.)?
Neither the Rules of the Federal High Court, nor those of a state High Court, nor the ACA lay down any requirements for the attribution of jurisdiction.
The basis of the personal jurisdiction of the Nigerian Courts is the service of process on the defendant, either within the territorial jurisdiction of the courts or outside the jurisdiction with the leave of court.
Ownership of assets within the jurisdiction is not a requirement. However, the presence of assets within the jurisdiction will often be the only justification for bringing enforcement proceedings.
Jurisdiction with respect to proceedings for the recognition and enforcement of foreign awards will be determined as in any other legal proceedings.
(Source: cf. Lagos State High Court (Civil Procedure) Rules 2012, Order 2 Rules 3 and 4(1); Order 8; Federal High Court (Civil Procedure) Rules 2009; Orders 2 and 6.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The ACA does not specify the mode of commencement for enforcement. However, usual practice is by way of originating motion.
Order 39 of the Lagos State High Court Civil Procedure Rules 2012 states that all applications before a judge shall be brought by way of motion. Rule 29(1) of the Arbitration Application Rules attached to the Arbitration Law of Lagos State 2009 expressly states that enforcement shall be commenced by way of originating motion.
Order 52 Rule 16(1) of the Federal High Court (Civil Procedure) Rules 2009 stipulate ex parte proceedings, but the courts will 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 2009, Order 52 Rule 16(1).)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
Two, to the Court of Appeal and the Supreme Court.
(Source: ss. 240 and 241 of the Constitution of the Federal Republic of Nigeria 1999 (Cap. C23 Laws of the Federation of Nigeria 2004) provide a right of appeal to the Court of Appeal against decisions of both the Federal High Court and the State High Court, while s. 233 provides a right of appeal of the decisions of the Court of appeal to the Supreme Court.)
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 in legal proceedings is after the arbitral award has been entered as a court judgment. If there is no appeal, a party can apply to the High Court for execution against assets.
(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.
(Source: ACA, s. 51(2).)
The procedure for enforcement of a foreign arbitral award is the same as for a domestic award in s. 31 of the Arbitration and Conciliation Act, i.e. by a motion ex parte supported by an affidavit exhibiting documents (i) and (ii) above. The affidavit should also state (i) the name, usual or last known place of abode or business of the applicant and the person against whom enforcement is sought and (ii) that the award has not been complied with or the extent to which it has not been complied with at the date of the application.
(Source: Order 52 Rule 16(2), Federal High Court (Civil Procedure) Rules 2009; Order 39 Rule 4(2), Lagos High Court (Civil Procedure) Rules 2012.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The ACA 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: ACA 1988, s. 51.)
(c) Are originals or duly certified copies required?
Either originals or duly certified copies are required.
(Source: ACA, s. 51.)
(d) How many originals or duly certified copies are required?
The ACA does not specify the number of copies. The number of copies will depend on the number of 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. However, originals are returned upon request at the conclusion of proceedings and after enforcement. In the event of an appeal against the order of enforcement, the originals will not ordinarily be returned until the conclusion of the appeal save in exceptional circumstances. The original documents are kept in the archives of the court, but any of these documents can be obtained upon request, for instance if needed to support a plea of res judicata by any of the parties in a subsequent suit between the same parties in respect of the same subject matter or relating to the same contract that was the subject of the arbitration.
13.
(a) Is it necessary to provide a translation of the documents supplied?
Yes, if the documents are not in the English language.
(Source: ACA, s. 51(2)(c).)
(b) If yes, into what language?
English.
(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 to the court. The translation must be certified.
(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.
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)?
Other than pending an application to set aside an award, proceedings for recognition and enforcement can be stayed pending an appeal against a decision to recognise and enforce the award. Forum non conveniens is not a legal basis on which recognition and enforcement can be stayed in Nigeria. This is because the legal consideration that undergird an argument of forum non conveniens (i.e. the court should not exercise jurisdiction because an alternative forum is a more convenient place in terms of costs and availability of evidence) are irrelevant in the context of enforcement of an award. The sole consideration in recognition and enforcement is typically the availability of the award debtor’s assets to satisfy the award.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. The grant of a stay of proceedings is within the discretion of the courts. Each case will be decided on its own peculiar facts and the courts will consider the individual circumstances. In the case of 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 the judgment in the creditor’s favour, so no judgment awarding a sum of money will be stayed without the provision of security. However, unconditional stays may be granted in deserving cases.
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 ACA 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. However, steps can be taken to have the proceedings held in the presence of the parties and their representatives only.
(Source: Federal High Court (Civil Procedure) Rules 2009, Order 46 Rule 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. No steps can be taken to remove parties’ names from judgments destined for publication. However, State secrets or trade secrets may be excluded by special arrangement with the publisher.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Partial and interim foreign awards which are final decisions on the issue(s) in question may be enforced. An arbitral tribunal sitting in Nigeria is empowered to order any interim measures it considers necessary in respect of the subject matter of the dispute, e.g. sale of perishable goods. Such interim measures may be ordered in the form of an interim award.
(Source: Rules of Arbitration of the ACA, 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 initiate court proceedings to obtain recognition and enforcement of non-monetary relief ordering or prohibiting certain action (e.g. delivery of share certificates or other property) in the same manner as it would initiate court proceedings to enforce a monetary award, provided the award has res judicata effect and all requirements for the enforcement of an award are satisfied. The award ordering the non-monetary relief is then recognized as a judgment of a court of first instance and enforced accordingly.
(Source: 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).)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
If 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 the decisions on matters referred to arbitration will be enforceable.
(Source: ACA, s. 52 (2)(a)(v), which is analogous with Art. V(i)(c) of the New York Convention.)
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 at the seat of the arbitration proceedings cannot be recognized and enforced in Nigeria.
(Source: ACA, 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 in 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 applicant 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 Schedule 2 of the Sheriffs and Civil Process Act and Order XII(4) of the Judgments (Enforcement) Rules. The maximum filing fee payable in the Federal High Court, regardless of the value of the claim, is NGN 50,000 (slightly over USD 160 at the current exchange rate).
(Source: Federal High Court (Civil Procedure) Rules 2009, Appendix 2.)
As noted in Q.5 above, another method exists in Nigeria for the recognition and enforcement of foreign awards, pursuant to the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 152 Laws of the Federation of Nigeria 2004). ‘Judgment’ is defined as including ‘an award in proceedings on an arbitration if the award has in pursuance of the law in force in the place where it was made become enforceable in the same manner as a judgment given by a court in that place’.
(Source: Foreign Judgments (Reciprocal Enforcement) Act (Cap. 152 Laws of the Federation of Nigeria Act 2004), s. 2(1).)
The Federal High Court (Civil Procedure) Rules 2009 provide that, ‘where an award is made in proceedings on arbitration in a foreign territory to which the Foreign Judgments (Reciprocal Enforcement) Act extends, if the award was in pursuance of the law in force in the place where it was made, it shall become enforceable in the manner as a judgment given by a court in that place and the proceedings of the Foreign Judgments (Reciprocal Enforcement) Act shall apply in relation to the award as it applies in relation to a judgment given by that court’.
(Source: Federal High Court (Civil Procedure) Rules 2009, Order 52 Rule 17; also Tulip Nigeria Ltd v. Noleggioe Transport Maritime S.A.S (2011) 4 Nigerian Weekly Law Report, Pt 1237, p. 254, where the Court of Appeal, relying on the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 152 Laws of the Federation of Nigeria Act 2004), s. 2(1), held inter alia that an arbitral award made in England could be elevated to the status of a judgment only if the party in whose favour the award was made had applied to the English High Court for leave to enforce the arbitral award in the same manner as a judgment and the High Court in England had granted such an order, giving the award the status of a judgment of the English High Court. Only when an award has acquired the status of a judgment of the High Court will it come within the scope of the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 152 Laws of the Federation of Nigeria 2004), s. 2(1).)
Country Rapporteur: Dorothy U. Ufot, SAN; Dr Babatunde Ajibade, SAN
Other contributors: Kolawole Mayomi; Busola Bayo-Ojo