By Rotimi Adeniyi-Akintola
The enforcement of the decision of any dispute resolution process is the most crucial part of the exercise. This is because, without the possibility of enjoying the fruit of the judgment or award, the entire dispute resolution process amounts to an exercise in futility.
In the case of arbitration, enforcement ordinarily ought to be a non-issue, as the arbitral process is initiated based on the express consent of the parties, with the intention that the final award of the tribunal is binding on the unsuccessful party. Where the unsuccessful party fulfills this intention and voluntarily complies with the terms of the award, the matter concludes on a seamless note. However, in practice, especially in international arbitration, it is not often the case that the unsuccessful party adopts this seamless approach. The successful party is therefore left with no alternative but to seek enforcement of the award.
In Nigeria, there are generally three ways to enforce foreign arbitral awards:
Enforcement through an action upon the award under common law.
Enforcement through the Foreign Judgment Registration and Enforcement Statues: Reciprocal Enforcement of Judgments Ordinance 1922, Cap. 175, Laws of the Federation of Nigeria (LFN) 1958 or the Foreign Judgments (Reciprocal Enforcement) Act, Cap. F35, LFN 2004.
Enforcement through the Arbitration and Conciliation Act, Cap. A18, LFN 2004.
Enforcement through an action upon the award
The Supreme Court in the case of Topher Inc of New York v Edokpolor affirmed the possibility of enforcing through suing upon a foreign award, even where there is no reciprocal treatment in the country where the award was obtained. In adopting this mode of enforcement, the successful/enforcing party must establish that there was an arbitration agreement, that the arbitration was properly conducted, and that the award was validly obtained. However, this mode of enforcement is the least ideal, as the substantive issues determined by the arbitral tribunal may be reopened during the course of the action.
Enforcement through the Foreign Judgment Registration and Enforcement Statutes:
There are two operating statutes which parties seeking to enforce may adopt: the Reciprocal Enforcement of Judgments Ordinance, 1922, Cap. 175, LFN 1958, or the Foreign Judgments (Reciprocal Enforcement) Act, 1990, Cap. F35, LFN 2004. Essentially, the statutes make provision for the enforcement in Nigeria of judgments given in foreign countries, which accord reciprocal treatment to judgments given in Nigeria. The enforcing party may, under these statutes, apply to a superior court in Nigeria to register the award within 12 months of the date of judgment under the 1922 Ordinance, or within 6 years under the 1990 Act. The 1922 Ordinance only applies to judgments or awards obtained in the United Kingdom and other Commonwealth countries which have a reciprocal treatment of Nigerian judgments, whereas the Act applies to judgments obtained in any country determined by the Minister of Justice on the basis of reciprocity. However the Minister is yet to make such direction, leaving the 1922 Ordinance, and its limited scope of application as the applicable statute as of the time of writing,
Whilst an arbitral award is recognised as a ‘judgment’ enforceable under the two statutes, a condition precedent to the use of this enforcement mechanism is that the award must have become enforceable in pursuance of the law in force in the place it was made, in the same manner as a judgment given by a court in that place. For example, if the award was granted in England under English Law, the award must have become enforceable by the English courts before it may be registered and enforced in Nigeria. In addition, in order to qualify for registration, the foreign award must be a money award for a sum certain i.e. can be ascertained by a simple arithmetical process. Ultimately, the award must be final and conclusive determination of the issues between the parties.
These conditions and the Ordinance’s limitation of scope mean that enforcement under this mechanism may not be straightforward where the unsuccessful party mounts a spirited challenge.
Enforcement through the Arbitration and Conciliation Act (ACA) Cap. A18, LFN 2004.
Under the ACA, there are two avenues with which to enforce a foreign arbitral award. The first and more significant of these is contained in section 51, which provides that all arbitral awards shall be recognised as binding and enforced by the court, irrespective of the countries in which they are obtained, upon application in writing to the court. This application is to be accompanied by an authenticated original award and a valid arbitration agreement between the parties, provided that where the award or arbitration agreement is not in the English language, a duly certified translation thereof into the English language shall be attached.
Section 54 of the ACA provides an additional route of enforcement of foreign arbitral awards under the New York Convention on Recognition and Enforcement of Arbitral Awards 1958, which is based on the reciprocal arrangement between the Contracting States.
With the direct and unequivocal avenue for enforcement under the ACA, the Act remains the most appropriate means through which foreign arbitral awards may be enforced. However, the multiplicity of enforcement mechanisms is an advantage, as it affords the enforcing party the luxury of alternative mechanisms to fit the peculiar circumstances of each case.
Challenges to the Enforcement of Foreign Arbitral Awards
One of the major advantages parties factors into their selection of arbitration, as their preferred dispute resolution mechanism, is that it is relatively less cumbersome than litigation. This advantage is significantly pronounced in Nigeria, given the laborious process of litigation within the jurisdiction. It is, therefore, an unfortunate irony that parties who deliberately avoid litigation and its associated stresses, have to resort to litigation in order to enforce the award of their chosen alternative to litigation.
Essentially, enforcement could be a cumbersome process where the unsuccessful party mounts a spirited challenge, as the legal system’s inadequacies such as lengthy delays, and undue weight on technicalities, could be manipulated to their advantage. Using an example of a case handled by our law firm, a consent judgment entered in the High Court of England was registered in Nigeria in 2003 for enforcement, however, the opposing party challenged the registration based on a technicality. Although the challenge was dismissed at the High Court and the Court of the Appeal (in 2013), the appellant further appealed to the Supreme Court. The matter is still yet to be heard by the Supreme Court, and we are in the year 2018, several years after the judgment was obtained. The point being made here is that the unsuccessful parties readily rely on loopholes, ambiguities and technicalities as a springboard to frustrate the hearing of applications seeking to enforce foreign arbitral awards and judgments.
The most efficient means of tackling this challenge would be the establishment of special courts tasked with the registration and enforcement of foreign arbitral awards or judgments, or alternatively: administrative recognition of all litigation involving arbitration as sui generis and worthy of being fast-tracked through the judicial process. Although these courses of action have long been recommended, we still await their implementation.
In the meantime, the best advice to concerned parties is to conduct their international arbitration as efficiently as possible, to avoid availing the unsuccessful party an opportunity to frustrate the recognition and enforcement of the award in Nigeria. Ideally, Nigerian counsel should be consulted before, during and after the conclusion of the arbitration proceedings to ensure the smooth enforcement of the award when obtained.
This article is provided for your convenience and does not constitute legal advice. It is prepared for the general information of interested persons. For further information, comments/advice/permission to use, please contact the writer, Mr Rotimi Adeniyi-Akintola at email@example.com or the Editor, at firstname.lastname@example.org. This article is protected by copyright. Material appearing herein may be reproduced or translated with appropriate credit. (Trading as John Edokpolor & Sons) (1965) 1 All N.L.R. 292.
 Nonetheless, there are instances where non-commonwealth judgments have been registered and enforced: Teleglobe America Inc v 21st Century Technologies Limited (2008) LPELR-CA/L/694/2006.
 Section 2 of the 1990 Act.
 Section 3 of the 1990 Act.]]>
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