Nigeria

Part I: what can be enforced?

1. What counts as an arbitral “award” that can be enforced?

The principal federal legislation (Arbitration and Mediation Act 2023 (AMA)) on arbitration in Nigeria makes no provision as to the kinds of awards that may be enforced. However, the Lagos State Arbitration Law 2009 (LSAL), unlike the AMA, defines an award as a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory, or partial award but excludes any orders, measures, or directions made by the arbitral tribunal (s63(1)).

Therefore, an award that can be enforced includes those within the meaning of the law.

2. Formal requirements that an award needs to conform with to be enforceable

• The award shall be in writing and signed by the arbitrator(s) (AMA s47(1); LSAL s47(1)).
• The award shall state the (a) reasons upon which it is based, unless the parties have otherwise agreed; (b) date it was made; and (c) seat of the arbitration as agreed or determined under AMA s32(1), which seat is deemed to be the place where the award was made (AMA s47(3); LSAL s47(3)).
• A copy signed by the arbitrators in accordance with subsections (1) and (2) shall be delivered to each party (AMA s47(4); LSAL s47(4)).

3. Orders on interim measures: enforceability

a. Domestic awards

b. International commercial arbitration awards

The same provision applies to both domestic and international commercial awards. An interim measure issued by an arbitral tribunal is binding and, unless otherwise provided by the arbitral tribunal, shall be enforced upon an application to the court, irrespective of the country in which it was issued, subject to AMA s29 (which provides for grounds for refusal) (AMA s28; LSAL s29).

4. Emergency awards: enforceability

a. Domestic awards

b. International commercial arbitration awards

The decision of an emergency arbitrator under Nigerian arbitration law is referred to as the “Emergency Decision”. Any Emergency Decision shall be recognised and enforced in the same manner as an interim measure under AMA s28 (Article 27 of the Arbitration Rules contained in the First Schedule to the AMA). Thus, it may be enforced upon application to the court irrespective of where it was issued.

Part II: resisting enforcement

An arbitral award may be unenforceable where:

1. It is declaratory as declaratory awards cannot be directly enforced.
2. The party against whom an award is sought to be enforced furnishes proof of the presence of vitiating elements, such as:

• The arbitration agreement was invalid by reason of the incapacity of one of the parties thereto or was not valid under the governing law of the jurisdiction of either the contract or the seat of arbitration.
• The award deals with a dispute that does not fall within the terms of the submission to arbitration.
• The composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the agreement of the parties.
• The award has been set aside by a court at the seat of arbitration.
• If  the court finds that the subject matter of the dispute is not arbitrable under Nigerian law, or that enforcement of the award would be against public policy.

5 a. How are awards set aside?

By an application for setting aside the award made to a court in accordance with AMA s55(3) and (4), which provide for the instances where a court may set aside an award.

b. Can enforcement be resisted if the respondent has not formally applied to set aside the award?

Yes, there are several other grounds upon which a party can resist enforcement of an award apart from the ground that there has been a formal application to set aside the award. A party can resist enforcement of an award on the ground that: the arbitration agreement was made under some form of incapacity; the party was not given proper notice of the appointment of an arbitrator or of the arbitral tribunal; the agreement is not valid under the law where the arbitration agreement was made; the award deals with a dispute not contemplated under the arbitration agreement; the award goes beyond the scope of the submission to arbitration; or the composition was not in accordance with the agreement of the parties (AMA s58; LSAL s57).

c. Can non-parties seek annulment?

The AMA does not specify whether the right to bring an application for setting aside an arbitral award, as granted under s55, is restricted to parties to the arbitration agreement. The wording of the Act is such that it accommodates any person. Notwithstanding this, recourse to court in Nigeria generally is granted on the principle of locus standi and such person would have to show that they are an interested party.

d. Grounds to seek setting aside

The court may set aside an award on the following grounds (AMA s55(3)):

• Legal incapacity of a party to the arbitration agreement.
• Invalidity of the arbitration agreement under the law to which the parties have subjected it.
• Lack of proper notice of the appointment of an arbitrator or of the arbitration proceedings.
• The award deals with disputes not contemplated by or does not fall within the terms of the submission to arbitration.
• The award contains decisions on matters beyond the scope of the submission to arbitration.
• Improper composition of the arbitral tribunal (ie composition of the arbitral tribunal was not in accordance with the agreement of the parties or the AMA where there is no agreement by the parties) or arbitral procedure not in accordance with the agreement of the parties.
• Where the court finds that the subject matter of the dispute is not capable of settlement by arbitration under the laws of Nigeria.
• The award is against public policy.

e. Timelines to seek setting aside

An application for setting aside an award must be made within three months after the party seeking to make the application has received the award. However, where a party has made an application for the correction and interpretation of the award, it may bring an application for setting aside three months after the application for correction has been disposed of (AMA s55(4)).

f. Grounds to resist enforcement

A party has the right to request the court to refuse recognition or enforcement of an award on the same grounds as provided in AMA s55 for the setting aside of an award. Thus, where any of the grounds for setting aside an award exists, a party may make an application for the refusal of recognition or enforcement of that award and furnish the court with proof of the existence of such a ground (AMA s58).

Additionally, the enforcement of an award can be resisted on the ground that the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which the award was made or under the laws of which the award was made.

g. Which court to go to for setting aside?

An application to set aside an award may be made to the High Court of a state, the High Court of the Federal Capital Territory, or the Federal High Court unless the parties agreed otherwise. Additionally, recent trends and decisions of the courts lean toward registration and enforcement in the court whose jurisdiction covers the subject matter of the arbitral award sought to be enforced. Thus, it may be safer to apply this same principle to applications for setting aside.

h. Formal requirements before court can grant setting aside

The application must be in writing. The High Court of Lagos State Civil Procedure Rules 2019 Order 43 r1 provides that all applications shall be by motion, and Order 43 r1(3) further provides that every motion shall be on notice, unless otherwise provided or permitted by any law or rules. Therefore, an application for the enforcement of arbitral awards would be by a motion on notice. It must also furnish proof of existence of the grounds for setting aside under AMA s55 (provided in the answer to question II(5)(d) above).

i. Do courts grant stay on enforcement as an interim measure?

The courts do not grant stay on enforcement as an interim measure. Awards cannot, however, be enforced other than after the award has been recognised by the court.

j. What is the appellate mechanism against the decision of the court of first instance?

The law governing appeals in Nigeria is the Nigerian Constitution (Constitution of the Federal Republic of Nigeria 1999 (as amended); Arbitration Proceedings Rules 2020 r9), which provides for the appellate mechanism against decisions of the court of first instance. Under the constitution, appeals from a High Court lie to the Court of Appeal and from the Court of Appeal to the Supreme Court of Nigeria.

Part III: enforcing foreign awards

6. New York Convention applicability

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (New York Convention) is applicable and incorporated into the AMA. Section 60 of the AMA provides that:

Without prejudice to sections 57 and 58 of this Act, where the recognition and enforcement of any award made in an arbitration in a country other than Nigeria is sought, the New York Convention on the Recognition and Enforcement of Foreign Awards set out in the Second Schedule to this Act applies to an award, provided that the -

(a) country is a party to the New York Convention; and

(b) differences arise out of a legal relationship, whether contractual or not, considered commercial under the laws of Nigeria.

7. Timelines for enforcement

The Foreign Judgments (Reciprocal Enforcement) Act , Cap F35, Laws of the Federation of Nigeria 2004 (FJ(RE)A) provides that a person being a judgment creditor under a judgment to which this Part of the Act applies, may apply to a superior court in Nigeria at any time within six years of the date of the judgment, to have the judgment registered in such court (Part I s4(1)). The Act also defines judgment to include an arbitral award (s2(1)).

8. Which court to go to? Relation with location of assets?

The Federal High Court and the High Courts of the states. In a 2014 Court of Appeal decision, Kabo Air Limited v The O’Corporation Limited, the court’s reasoning suggests that in Nigeria, the appropriate court to enforce a foreign judgment arising from a dispute would be the one that originally held jurisdiction over the subject matter of that dispute.

Following this logic, when enforcing an arbitral award in Nigeria, it might be most effective to file the enforcement application in the Nigerian court (either a Federal High Court or a state High Court) that would have had the authority to hear the underlying dispute if it had gone to court instead of arbitration.

9. Can non-parties resist enforcement?

No. The right to refuse or resist enforcement of an arbitral award is conferred on “a party” to the arbitration agreement (AMA s58; LSAL s57(1)).

10. Compelling disclosure of local assets? How to identify assets available for enforcement?

The Nigerian law does not provide for any special means of compelling disclosure of local assets and neither does it provide guidance on how to identify assets available for enforcement. Nonetheless, Nigerian High Courts have the authority to issue specific orders, like freezing a person’s assets or requiring them to reveal their assets, under certain conditions and these disclosure orders may, in appropriate circumstances, be sought as ancillary relief in enforcement proceedings.

11. Are third-party funded awards enforceable?

The AMA recognises third-party funding and the rules against champerty and maintenance do not apply to third-party funding. Hence, an award from such an arbitration proceeding is enforceable (AMA ss61 and 62).

12. What interim reliefs are available pending enforcement of awards? Which of those reliefs are granted ex parte?

Interim relief that would be available in other instances may also be available in support of enforcement proceedings, dependent upon the actual circumstances of each case.

13. Formal requirements for enforcement application: what documents need to be filed in court?

An originating motion, supported by an affidavit and written submission, is needed to obtain recognition (Arbitration Proceedings Rules 2020 r2(1)). The party applying for the enforcement shall supply: (1) the original award or a duly certified copy of it; (2) the original arbitration agreement or a duly certified copy of it; and (3) a duly certified translation of the award into English where the award or arbitration agreement is not made in English (AMA s57; LSAL s56(2)).

14. Enforcing awards that have been annulled/set aside at other courts. Enforcing when an annulment application is pending at a foreign court

Recognition and enforcement of an arbitral award may be precluded where a competent court of the arbitral seat has issued an order setting aside or suspending the award. In such instances, courts presented with a request for enforcement are highly likely to adjourn the proceedings pending the final determination of the annulment action at the seat of arbitration or ask the other party seeking enforcement to provide security.

AMA s58(3) provides that where an application to set aside an award has been made to a court, the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.

15. Once application for enforcement is allowed, how does the actual enforcement against assets work? What are the remedies available for tracing assets during enforcement proceedings including for assets disposed of by fraud?

Enforcement would be in the same manner as enforcement of a High Court judgment, and all the mechanisms available to trace assets would also be available.

16. What is the procedure for repatriation of sums awarded after obtaining an order for enforcement?

The repatriation of monies obtained following enforcement proceedings would be done through commercial banks in accordance with regular procedures for remittances abroad.

17. Do courts grant orders for security for costs?

Yes, the High Courts are empowered by the Rules of Courts to grant orders for security of costs.

18. Exchange control regulations: do they affect payments to foreign award holders?

Nigeria no longer has specific exchange control regulations. Rather, there are regulations issued to commercial banks by the Central Bank of Nigeria. Remittances are subject to the availability of foreign currency.

19. Enforcing awards from non-New York Convention places

Awards from non-New York Convention places can be enforced pursuant to the FJ(RE)A or AMA s57.

20. Enforcing against sovereigns

Although this is not expressly provided for, a sovereign may resist enforcement of an award on the ground that it is contrary to public policy. Additionally, where the enforcement is against Federation funds, the attorney general’s consent must first be sought and obtained before enforcement of an award involving monetary claims (Sheriffs and Civil Processes Act, Cap S6, Laws of the Federation of Nigeria 2004 (SCPA) s84).

21. Appellate mechanism available?

The law governing appeals in Nigeria is the Nigerian Constitution (Arbitration Proceedings Rules 2020 r9), which provides for the appellate mechanism against decisions of the court of first instance. Under the constitution, appeals from a High Court lie to the Court of Appeal and from the Court of Appeal to the Supreme Court of Nigeria.

Part IV: enforcing domestic awards

22. Timelines for enforcement

The Statutes of Limitation applicable in Nigeria must be taken into consideration regarding the timeline for enforcement of an award. An action to enforce an arbitration award cannot be brought after six years of accrual of the cause of action (Limitation Act 1966 (LA) s7(a)). If an arbitration agreement is under seal, an action to enforce the award cannot be brought after 12 years of the accrual of the cause of action. The cause of action for enforcement accrues from the date when the claimant either acquired a right of action or a right to require that an arbitration takes place on the dispute concerned (Murmansk State Steamship Line v Kano Oil Millers Ltd; City Eng (Nig) Ltd v NAA).

In computing time for the commencement of proceedings to enforce an arbitral award, the AMA provides that the period between the commencement of the arbitration and the date of the award shall be excluded (AMA s34(4) and LSAL s35(5)).

23. Which court to go to? Relation with location of assets?

The High Court of any state or the Federal High Court have jurisdiction to entertain an application to enforce an award. In a 2014 case, Kabo Air Limited v The O’Corporation Limited, the Court of Appeal’s reasoning suggests that in Nigeria, the appropriate court to enforce a foreign judgment arising from a dispute would be the one that originally held jurisdiction over the subject matter of that dispute.

Following this logic, when enforcing an arbitral award in Nigeria, it might be most effective to file the enforcement application in the Nigerian court (either a Federal High Court or a state High Court) that would have had the authority to hear the underlying dispute if it had gone to court instead of arbitration.

Thus, the court before which an application for recognition and enforcement of an award is brought must have jurisdiction, either by virtue of the award debtor being resident in the jurisdiction, or the subject matter being within jurisdiction. This is an important consideration in deciding which court to go to.

24. Compelling disclosure of local assets? How to identify assets available for enforcement?

SCPA s55 provides for enforcement by Judgment Summons where a judgment debtor in default of payment of any sum recovered against them is required to appear and be examined on oath as to their means. Such application is territorial in nature and can only be brought in the court in the division where the debtor resides or carries on business.

The court also has the power to grant orders to attach (garnish) sums of money outstanding and due from a judgment debtor that is in the custody of a third party upon an application by the judgment creditor.

Also, although there are no express provisions under Nigerian law for the grant of disclosure orders, there are decisions where the courts have granted such orders to enable the identification of assets and to compel the disclosure of information that would assist an applicant in identifying assets against which recovery might be made.

25. Are third-party funded awards enforceable?

Yes, the AMA recognises third-party funding of arbitration (ss61 and 62).

26. What interim reliefs are available pending enforcement of awards? Which of those reliefs are granted ex parte?

Nigerian courts are generally empowered to grant interim measures, depending on the circumstances of the case, pursuant to their inherent jurisdiction, and the provisions of AMA s19 and LSAL s21.

A party may secure a freezing order pertaining to a specific asset. This order is granted upon a demonstration of sufficient justification, justifying the asset’s preservation. The order restrains the opposing party from dissipating, dealing with, or removing the asset from the court’s jurisdiction. The issuance of such an order remains subject to the court’s discretionary powers and is granted ex parte.

27. Formal requirements for enforcement application: what documents need to be filed in court?

An originating motion, supported by an affidavit and written submission, is needed to obtain recognition (Arbitration Proceedings Rules 2020 r2(1)). The party applying for the enforcement shall supply: (1) the original award or a duly certified copy of it; (2) the original arbitration agreement or a duly certified copy of it; and (3) a duly certified translation of the award into English where the award or arbitration agreement is not made in English (AMA s57).

28. Filing for enforcement when application for annulment is pending

AMA s58(3) provides that where an application to set aside an award has been made to a court, the court before which recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.

29. Once application for enforcement is allowed, how does the actual enforcement against assets work? What are the remedies available for tracing assets during enforcement proceedings including for assets disposed of by fraud?

The mode of enforcement of an award against assets is largely governed by the SCPA. A judgment creditor may bring an application to the court for the registrar of the court to issue a writ of attachment and sale whereby the sheriff of the court shall be empowered to levy or cause to be levied by distress and sale of goods and chattels, wherever they may be found within the division or district of the court, the money payable under the judgment and the cost of the execution (SCPA ss20 and 44).

SCPA s29 also provides for sale of goods retrieved under a writ of execution by way of a public auction not less than five days after the goods have been seized (s29(3)).

There are no express provisions on remedies available for tracing assets disposed of by fraud. Identification is usually done through special investigation methods and interim measures may be granted by the courts based on the report of such investigations.

30. Do courts grant orders for security for costs?

Yes, the High Courts are empowered by the Rules of Courts to grant orders for security of costs.

31. Appellate mechanism available

The law governing appeals in Nigeria is the Nigerian Constitution (Arbitration Proceedings Rules 2020 r9), which provides for the appellate mechanism against decisions of the court of first instance. Under the constitution, appeals from a High Court lie to the Court of Appeal and from the Court of Appeal to the Supreme Court of Nigeria.