The claimant brought proceedings to enforce in England an arbitration award made in Nigeria against the Federal Republic of Nigeria, together with a judgment of the Nigerian Federal Court which had been entered by way of enforcement of the award. The claimant was granted permission to register the award, under section 101 of the Arbitration Act 1996, and the Nigerian judgment, under section 9 of the Administration of Justice Act 1920. The claimant subsequently obtained a final charging order in respect of premises in London, owned by Nigeria and leased to a company for the purpose of providing, inter alia, Nigerian visa and passport services. Nigeria challenged, on state immunity grounds, the permission to enforce the award and the Nigerian judgment in England. It also applied to set aside the charging order on the ground that, by section 13 of the State Immunity Act 1978, the premises in question, as property of a state, were immune from any process for the enforcement of a judgment or arbitration award, and the exception for property “in use … for commercial purposes” did not apply.
On the application—
Held, (1) since Nigeria had agreed to the arbitration and since proceedings to enforce an award under section 101 of the Arbitration Act 1996 were “proceedings which relat[ed] to an award”, the arbitration exception to state immunity in section 9 of the State Immunity Act 1978 applied. The claimant was, therefore, entitled to register the award for recognition and enforcement under section 101 of the 1996 Act. As for the Nigerian judgment, just as an application to enforce an arbitration award was a proceeding which related to the arbitration, so too was an application to enforce a judgment, which was in effect an award which had been converted into a judgment under a foreign statutory provision. Accordingly, Nigeria was also not immune in respect of the application for registration and enforcement of the judgment and there was no bar to the exercise of discretion in favour of enforcement, pursuant to section 9 of the Administration of Justice Act 1920 (paras 21–23, 26–28).
(2) Application granted. Whether the property was “in use … for commercial purposes” depended on what was actually done on the property in question. In the instant case the use (or at least the primary use) to which the property was being put was the processing of Nigerian visa and passport applications, which was the performance of a public function on behalf of the state. That was so regardless of whether that function was carried out by the defendant state itself or by an agent to whom performance of the function in question had been outsourced. Accordingly, the property was immune from execution under section 13 of the State Immunity Act 1978 and the charging order would, therefore, be set aside (paras 30, 36, 38, 40, 44, 51).
Zahra Al-Rikabi (instructed by Anthony Seddon Solicitors) for the claimant.
Hilda Ephraim-Adejumo (instructed by Gromyko Amedu Solicitors) for defendants.