This Country Answer reflects the state of the law as of 31 December 2012. Please refer to the explanations in the chapter entitled 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

15 June 1970.

(Sources: Nigeria's Treaties in Force, 1970-1990 Vol. 2, No. 24, p. 269; 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).)

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 that (i) a foreign arbitral award is enforceable in Nigeria directly pursuant to the New York Convention and (ii) according to s. 51(1) of the Arbitration and Conciliation Act, an arbitral award shall be recognized as binding irrespective of the country in which it was made and shall be enforced upon application in writing to the court, thereby giving effect to both s. 54(1) and s. 51(1) of the Arbitration Act.

(Sources: Arbitration and Conciliation Act 1988 (Cap. A18 Laws of the Federation of Nigeria 2004), s. 51(1); Tulip Nigeria LTD v. Noleggioe Transport Maritime S.A.S. (2011) 4 Nigerian Weekly Law Report, pt 1237, page 254.)

(b) commercial relationships?

Yes.

(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);

(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 Arbitration and Conciliation Act 1988, 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?

The Arbitration and Conciliation Act 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. This decision was followed recently in 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.

(Sources: 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, Federal High Court (Civil Procedure) Rules 2012, Order 2 Rule 4 defines 'court' as meaning the High Court of Lagos State. However, the Arbitration and Conciliation Act 1988 (Cap. A18 Laws of the Federation of Nigeria 2004), 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.)

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 Arbitration and Conciliation Act lay down any requirements for the attribution of jurisdiction. It can be presumed that the respondent would be expected to have assets within the jurisdiction.

Jurisdiction with respect to proceedings for the recognition and enforcement of foreign awards will be determined as in any other legal proceedings.

(Sources: cf. Lagos State High Court (Civil Procedure) Rules 2012, Order 2 Rules 3 & 4(1); Federal High Court (Civil Procedure) Rules 2009, Order 2 Rule 4, which respectively require 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?

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?

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, 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 setting out the grounds on which the appeal is based.

(Source: Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria 2004, s. 24(2).)

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

Two: to 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)?

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: Arbitration and Conciliation Act 1988 (Cap. A18 Laws of the Federation of Nigeria 2004), 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: Federal High Court (Civil Procedure) Rules 2009, Order 52 Rule 16(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. 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 be returned 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: 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 to 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 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 the judgment in the creditor's favour, so no judgment according money will be stayed without the provision of security. This will also be the court's approach to 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. 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 business secrets may be excluded by special arrangement with the publisher.

(Sources: 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; Tulip Nigeria Ltd v. Noleggioe Transport Maritime S.A.S. (2011) 4 Nigerian Weekly Law Report, Pt 1237, p.254, relating to the recognition and enforcement of an arbitral award made in the United Kingdom.)

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 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 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: Arbitration and Conciliation Act 1988 (Cap. A18 Laws of the Federation of Nigeria, 2004), 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 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 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 300 at the current exchange rate).

(Source: Federal High Court (Civil Procedure) Rules 2009, Appendix 2.)

It is important to note that 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