Enforcement of Foreign Arbitral Awards in Nigeria: An Overview

Introduction

With the developments in international trade and commerce, international commercial transactions with persons and corporations residents in different countries, are on the increase. When disputes arise in these relationships and consequently resolved via arbitration, the next riddle to be solved centres on enforcing the arbitration award. Given that judgment of one state’s court has no force of law by itself in another state, enforcing a judgment of a court in another country may not be practicable. However, in private international law, judgments delivered in a country can be recognized and enforced in another country.

An arbitral award is a judgment in Nigeria

An arbitral award is the final and binding decision made by an arbitral tribunal, which resolves, wholly or in part, the dispute submitted to its jurisdiction.

In Nigeria, an arbitral award is a judgment. According to Section 2(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1960 (“Foreign Judgments Act”), a “Judgment” means a judgment or order given or made by a court in any civil proceedings and shall include 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, or a judgment or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party.

Statutory laws on enforcement of foreign awards in Nigeria

There are four statutes regulating enforcement of a foreign arbitral award in Nigeria: the Reciprocal Enforcement of Judgments Act 1922 (“Ordinance”); the Foreign Judgments Act; the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act 1967 (“ICSID Act”) which arose from the domestication of the 1965 International Centre for Settlement of Investment Disputes (ICSID) Convention in 1965; and the Arbitration and Conciliation Act 1988 (“ACA”) which adopted and included the 1958 Convention on the Recognition and Enforcement of Arbitral Awards (“New York Convention”) as the Second Schedule.

The Ordinance was enacted 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. In 1960, the Foreign Judgments Act was enacted to make provision for the enforcement of judgments in Nigeria given in foreign countries, which accord reciprocal treatment to judgments given in Nigeria. It is for facilitating the enforcement in foreign countries of judgments given in Nigeria, and for other purposes in connection with the matters aforementioned.

The ACA, which is the law governing arbitration in Nigeria is the arbitration in Nigeria as held in C.N.Onuselogu Enterprises Ltd v. Afribank (Nigeria) Plc (2005) 1 NWLR Part 940 577, was enacted to provide a unified legal framework for the fair and efficient settlement of commercial disputes by arbitration and conciliation, and to make applicable the New York Convention to any award made in Nigeria or any contracting State arising out of international commercial arbitration.

Enforceability of a foreign award in Nigeria

Based on the provisions of the Foreign Judgments Act only, the doctrine of reciprocity is vital to enforcing foreign judgments in Nigeria. This however is inconsequential in foreign commercial arbitral awards. Section 51(1) of the ACA provides that an arbitral award shall, irrespective of the country in which it is made, be recognised as binding and subject to this section 32 of this Act, shall, upon application in writing to the court, be enforced by the court.

Limitation of time for enforcing an award

Under Section 3 of the Ordinance, foreign judgment from any of England, Northern Ireland, or Scotland upon the application of the judgment creditor should be registered within twelve months from the day the judgment. This period may be extended by the court.  

According to Section 4 of the Foreign Judgments Act, a judgment creditor, may apply to a superior court in Nigeria at any time within six years after the date of the judgment, or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in such court. However, in Marine and General Assurance v. Overseas Union & 7 Ors. (2006) 4 NWLR (Pt. 971) 641, the Supreme Court held that section 3(1) of the Foreign Judgments Act had subjected the coming into force of the provisions of Part 1 of the Act which contains section 4(1) of the Foreign Judgments Act extending the period of registration to six years, to an Order to be made by the Minister of Justice directing the extension of Part 1 of the Act to relevant foreign countries. Section 9 of the Foreign Judgments Act had also unequivocally preserved the effect of the Ordinance pending the promulgation of the Order envisaged under section 3(1) of the Foreign Judgments Act by the Minister of Justice. Therefore, time is limited to twelve months.

In interpreting section 8(1)(d) of the Limitation Law of Lagos State, the Supreme Court held in City Engineering Nigeria Limited v Federal Housing Authority(1997) 9 NWLR (Pt. 520) 224, that to enforce arbitral awards, the period of limitation runs from the moment of the occurrence of the breach which gave rise to the arbitration and not from the date of the award except where the arbitration agreement is under seal or made under any other enactment other than the Arbitration Law.

With the decision of the Supreme Court Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd. (2018) 9 NWLR (Pt.1623) 138, where it was held that time freezes during the pendency of an action, the decision in City Engineering Nigeria Limited v Federal Housing Authority (supra)may be revisited.

Bearing in mind that arbitration proceedings and appeals ensuing therefrom are susceptible to delays thus, enforcing an award from such arbitral proceedings may be statute-barred, Section 35(5) of the Arbitration Law of Lagos State 2009 provides that, in computing the time for the commencement of proceedings to enforce an arbitral award, the period between the commencement of the arbitration and the date of the award shall be excluded.

Jurisdiction of courts to enforce an arbitral award

A court has jurisdiction when it has the power to decide a matter. It is so sacrosanct that, proceedings by a court without jurisdiction are liable to be set aside.

The application for the recognition and enforcement of an arbitral award is made to a court. Section 57 of the ACA defines a “Court” to mean “the High Court of State, the High Court of the Federal Capital Territory, Abuja of the Federal High Court”. The Court in Magbagbeola v Sanni (2002) 4 NWLR (Pt. 756) 193 held that the definition of “high court” under the ACA applies to arbitral proceedings.

Nonetheless, it is heedful that a judgment creditor considers the Constitution of the Federal Republic of Nigeria 1999 (as amended) to determine the court that would have had original jurisdiction over the subject-matter of the dispute. In FUTA v BMA Ventures (Nig.) Ltd. (2018) 17 NWLR (Pt. 1649) 477, the Court of Appeal after a microscopic examination of the suit held that the heart of the relief of the suit is for recovery of debt which emanated from a simple contract for which the Federal High Court was not clad with the garment of jurisdiction to entertain and grant the application for the recognition and enforcement of an arbitral award. Consequently, the court held that the order recognising the award for enforcement was null and void.

Even so, section 1(1) of the ICISD Act, vests the Supreme Court of Nigeria with the exclusive right to entertain proceedings in respect of an ICSID award.

Mode of application

Due to the unspecified mode of application in the ACA, reliance has been placed on the Civil Procedure Rules of the high court where recognition and enforcement are sought. Order 52 Rule 16(1) of the Federal High Court (Civil Procedure) Rules 2019 and Order 19 Rule 13(1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018 similarly provides that an application to enforce an award on an arbitration agreement in the same manner as a Judgment or order may be made ex-parte, but the Court hearing the application may order it to be made on notice. Order 28 Rule 3(1) of the High Court of Lagos State (Civil Procedure) Rules 2019 states to the effect that an application to enforce an award shall be by an originating motion on notice.

Documents that should support the application

Under Section 51(2) of ACA, the judgment creditor shall accompany the application for enforcement with the duly authenticated original award or a duly certified copy; the original arbitration agreement or a duly certified copy thereof; and where the award or arbitration agreement is not made in the English language, a duly certified translation thereof into the English language.

Grounds for refusal to recognize and enforce an award

The Court of Appeal in Ebokan v Ekwenibe & Sons Trading Co (2001) 2 NWLR (Pt. 696) 32 held that the court should not be ready to set aside awards where parties have agreed to abide by the decision of a tribunal of their own unless the proceedings are radically wrong.

Section 52 of the ACA, listed the grounds which when raised and proved, the Court may refuse to enforce a foreign arbitral award:

• That a party to the arbitration agreement was under some incapacity;
• the invalidity of the arbitration agreement;
• improper notice of the appointment of an arbitrator(s) or the proceedings;
• the award is unrelated to the dispute contemplated by parties or terms of the submission to arbitration;
• the award contains decisions on matters that are beyond the scope of the submission to arbitration
• the composition of the arbitral tribunal or the arbitral procedure contradicts the agreement of the parties
• composition of the arbitral tribunal or the arbitral procedure contradicts the law of the arbitration seat
• the award is not binding or has either been set aside or suspended;
• the dispute is not capable of settlement by arbitration under the laws of Nigeria
• the recognition or enforcement of the award is against the public policy of Nigeria.

Right of Appeal

The decision of the court can be appealed at the Court of Appeal and the Supreme Court. This right is guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Conclusion

It is therefore judicious that a judgment creditor seeking the enforcement of an award should completely do so by complying strictly to the extant laws, to avoid unnecessary delays before getting the benefits of the award in international commercial arbitration.

For further information, please contact:

 Farouk Obisanya farouk.obisanya@roukco.com