Nigeria: Procedure For Recognition And Enforcement Of Arbitral Awards In Nigeria

Last Updated: 3 April 2018
Article by Emmanuel Ekpenyong

(a) Under the provisions of the Arbitration and Conciliation Act, CAP A18, LFN, 2004 ("the Arbitration Act")

Section 51 of the Arbitration Act provides a unified legal framework for recognition and enforcement of arbitral awards of both local and foreign arbitral awards thus;

(1) "An arbitral award shall, irrespective of the country in which it is made, be recognized as binding and subject to section 32 of this Act, shall, upon application in writing to the court, be enforced by the court.

(2) The party relying on an award or applying for its enforcement shall supply

(a) the duly authenticated original award or a duly certified copy thereof;

(b) the original arbitration agreement or a duly certified copy thereof; and

(c) where the award or arbitration agreement is not made in the English language, a duly certified translation thereof into the English language"

In the case of Imani & Sons Ltd. V. BIL Construction Co. Ltd (1999) NWLR 12 (Pt. 630), 253 at 263, the Court of Appeal held that in addition to the motion on notice filed by the party seeking enforcement, the party also needs to provide the following simple requirements; 

"(1) The Arbitration Agreement;

(2) The Original Award;

(3) The name and last place of business of the person against whom it is intended to be enforced;

(4) Statement that the award has not been complied with, or complied with only in part"

In Ebokam v. Ekwenibe & Sons Trading Company, (2001) NWLR 2 (Pt. 696),32, the Nigerian Court of Appeal listed additional requirements needed for a party seeking recognition and enforcement under the New York Convention. The requirements are as follows;

1. The arbitration agreement;

2. That the dispute arose within the terms of the submission;

3. That arbitrators were appointed in accordance with the clause which contains the submission;

4. The making of the award; and

5. That the amount awarded has not been paid.

Once the Court recognizes the award by granting leave to the creditor to register same, it shall be enforced as a judgment of that Court.

(b) Under the registration of foreign judgments statutes

The Reciprocal Enforcement of Reciprocal Enforcement of Judgment Ordinance 1958 ("the 1958 Ordinance") and the Foreign Judgments (Reciprocal Enforcement) Act, Cap F35, Laws of the Federation of Nigeria, 2004 ("the 2004 Act") regulates registration of foreign judgments in Nigeria. For an award to be recognized under these legislations, it must be registered in the court of the country where it was made and become enforceable in the same manner as a judgment given by the court in that jurisdiction.

In Tulip Nig. Ltd v Noleggioe Transport Maritime S.A.S, (2011) NWLR 4 (Pt.1237), 254, the Court held that:

"the provisions of the Reciprocal Enforcement of Judgment Ordinance Cap 175 LFN 1958 and the Foreign Judgment (Reciprocal Enforcement) Act 1990 will apply in the enforcement of foreign arbitral award where same has been elevated to the status of a judgment by leave of the High Court been sought and obtained"

It was further held that the judgment shall become binding on the parties concerned irrespective of the country in which it was made and the court before whom an application is brought for enforcement is duty bound to enforce same. Therefore for an arbitral award to be elevated to the status of a judgment which can be registered and enforced under the 1958 Ordinance or 2004 Act, the creditor is required to have applied and obtained leave of the court in the country where the award was made in order to enforce the award in the same manner as a judgment of that court.

(c)Action upon award

Arbitral awards can be enforced by commencing an action upon the award. In the case of a foreign award, it is inconsequential whether there is reciprocal treatment in the country where the award was obtained or not.

In Topher Inc of New York v Edokpolor (Trading as John Edokpolor & Sons), (1965) 1 All NLR 1, 307, the Plaintiffs sued for the sum of £2,142 awarded in its favor by arbitrators in New York, and the Defendant moved the High Court to set aside the award on the ground that it was "founded on a Foreign Arbitration governed by the laws of the State of New York, United States of America". The trial Judge, whilst noting that in Nigeria, there was no statute similar to the Arbitrations (Foreign Awards) Act, 1930, of England held, as submitted for the Defendant that;

"for a foreign arbitral award to be recognized here there must be a treaty guaranteeing reciprocal treatment or an order in Council to that effect"

On appeal to the Supreme Court, the Court held as follows:

"i. A party is not prevented from suing upon a foreign judgment regardless of whether there is a reciprocal treatment in the country where it is obtained, if no order is made under section 124 to modify that position.

ii. A suit brought upon a foreign award ought not to be struck out merely on the ground that there must be a treaty guaranteeing reciprocal treatment in the country where it was made or an Order in Council to that effect"

This is based on the Doctrine of Obligation which postulates that if a foreign court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, the liability to pay that sum becomes a legal obligation enforceable domestically by a debt action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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