ENFORCEMENT OF MAINTENANCE ORDERS IN NIGERIA AND ACROSS THE GLOBE

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ENFORCEMENT OF MAINTENANCE ORDERS IN NIGERIA AND ACROSS THE GLOBE
  1. INTRODUCTION

Prior to the 90’s, Nigeria like most of its African counterparts embraced the traditional notion of a man being the primary provider for the family (the duty of providing for the family was regarded as the sole responsibility of the man of the house, and this responsibility was wholly embraced by most). This philosophy was also shared across the Atlantic as in the United Kingdom, a man is regarded under common law to have a duty to maintain his wife and children and where a husband fails to discharge his duty, he can be compelled by law to provide necessaries for them.

With increased migration, it is not outside the realm of possibility for parties to wonder if there is any legal recourse for a spouse or child, whose significant other or parent or guardian who although not resident in the same country has failed and/ or neglected to provide for the spouse or children of the union. Also, some might be reticent to approach the courts in the light of what the import of any order to maintain the spouse or children will be and how it can be enforced.

The United Nations Convention on the Recovery Abroad of Maintenance which came into force on 25th May 1957 is aimed at facilitating the recovery of maintenance, for either spousal or child support extraterritorially. The Convention is only applicable in instances where both the party that is seeking the enforcement of maintenance order and the person the order is to be enforced against are both resident in nations that have ratified the Convention. However, Nigeria is not a signatory to the Convention.

In Nigeria, the Matrimonial Causes Act (MCA) and the Child Rights Act (CRA) both provides for maintenance of dependents. The MCA provides for support for both a spouse and children of the union below the age of 21, if any; however, the CRA is applicable to children below the age of 18 only. Maintenance is usually monetary, intended to secure the future of the spouse and/ or the children of the marriage financially during and/ or after the proceedings and not to enrich the spouse.

This article seeks to explore the enforcement of maintenance orders issued by courts in Nigeria within and outside the country as well as the possibility of enforcing such orders from other nations in Nigeria, alongside the limitations of such enforcement exercise.

  1. THE MAINTENANCE ORDERS ACT OF 1921

The Maintenance Orders Act (MOA) is the primary legislation that regulates the enforcement of maintenance orders in Nigeria. The introductory note of the MOA states that the Act was enacted to facilitate the enforcement of maintenance orders made in England or Ireland in Nigeria and vice versa.

Section 2 of the Maintenance Orders Act defines a maintenance order to mean an order other than an order of affiliation for the periodical payment of sums of money towards the maintenance of the wife or other dependants of the person against whom the order is made, and in respect of Ireland, includes an order or decree for the recovery or repayment of the cost of relief or maintenance made by virtue of the provisions of the Poor Relief (Ireland) Acts, 1839 to 1914.

The MOA outlines the steps to be taken for maintenance orders issued in Nigeria to be enforceable in England and Ireland where the person the order is against resides in either England or Ireland, and vice versa. The provision of the MOA only applies to maintenance orders issued by a court, thus, a private arrangement for maintenance must be taken before the court for it to be sanctioned.

While the MOA specifically references a reciprocal enforcement of maintenance order agreements with England and Ireland, however, by Section 11 of the MOA, the reciprocal arrangement extends beyond the two to other nations recognized in the Maintenance Orders Proclamations. These include Gambia, Ghana, Sierra Leone, Saint Vincent, Grenada, Guyana (formerly known as British Guiana), the Commonwealth of Australia, Republic of South Africa, New Zealand (including the Cook Islands), and the Island of Jersey. The reciprocal enforcement does not extend to nations not recognized under the MOA.

The MOA aims to promote fairness and justice across borders, ensuring that the financial obligations and needs of individuals and their dependents are met. The recognition of maintenance orders issued in other countries and the seamless enforcement of the orders prioritizes the well-being of those involved. By acknowledging and respecting maintenance orders issued in other countries, the MOA promotes a sense of shared responsibility and accountability, ensuring that the welfare of vulnerable individuals and their families is safeguarded.

  1. ENFORCEMENT IN ENGLAND AND IRELAND OF MAINTENANCE ORDERS MADE IN NIGERIA

Maintenance Orders can be issued by courts in Nigeria against individuals resident in England or Ireland, and such orders could be absolute or provisional.

The courts in Nigeria are empowered to make a maintenance order against a person who is resident in England or Ireland, however, the person against whom the order is made must be present at the hearing and it must be proven that he is resident in England or Ireland. Where a maintenance order is issued in Nigeria against a person resident in England or Ireland, the court is required to send such a certified copy of the order to the President for transmission to the Secretary of State in England or Ireland for enforcement.

Where a party against whom a maintenance order is sought is absent at the hearing of an application for maintenance and it is proven that he is resident in England or Ireland, the court is empowered to hear such an application and make a provisional maintenance order against such a person. A provisional order will have no effect unless and until confirmed by a competent court in England or Ireland under Section 7 of the Maintenance Orders (Reciprocal Enforcement) Act. The procedure to be followed are as follows:

  1. An application to the court in Nigeria for a maintenance order with proof that the person is resident in England or Irel
  2. The evidence of witness(es) shall be in writing, and such depositions shall be read over to the witness(es) and signed by him.
  3. Hearing of the application for a maintenance order will be conducted in the absence of the person against whom such an order is sought.
  4. The court is empowered to make any such order as it might make if a summons had been duly served on the person against whom the order is sought, and he had failed to appear at the hearing.
  5. The court shall send the following to the President for transmission to the Secretary of State for confirmation:
  6. a certified copy of the order,
  7. the depositions taken,
  • a statement of the grounds on which the making of the order might have been opposed if the person against whom the order is madehad been duly served with a summons and had appeared at the hearing, and
  1. such information as the court possesses for facilitating the identification of that person and ascertaining his whereabouts.
  2. The court in England or Ireland could remit the provisional order back to the court for the purpose of taking further evidence, the court in Nigeria upon receipt of such notice shall then take the evidence in like manner and subject to like conditions as the evidence in support of the original application.
  3. The court at hearing for further evidence can rescind the provisional order, otherwise such further depositions will be sent to the President for transmission to the Secretary of State as in paragraph c above.
  4. An applicant for a provisional maintenance order has a right to appeal against a refusal to make a provisional order.

It should be noted that a court in Nigeria could vary or rescind a provisional order after confirmation of such an order by a court in England or Ireland. An order for variation or rescission shall be sent to the President for transmission to the Secretary of State. However, such a variation will only have effect when it is confirmed by a court in England or Ireland.

  1. ENFORCEMENT IN NIGERIA OF MAINTENANCE ORDERS MADE IN ENGLAND AND IRELAND

Nigerian courts also have power to either enforce or confirm maintenance orders made in other reciprocating nations.

  • Enforcement of Maintenance Orders made in England and Ireland

As stated above, maintenance orders issued by courts in England and Ireland are enforceable in Nigeria. However, such orders are only enforceable in Nigeria upon the registration of the order by either the High Court in Nigeria if the court by which the order was made was a court of superior jurisdiction or Magistrate Court if the court was not a court of superior jurisdiction. The procedure for registration and enforcement of maintenance orders issued by foreign courts in Nigeria is as follows:

  1. A certified copy of the order will be transmitted by the Secretary of State to the President;
  2. The President willsend a copy of the maintenance order to the prescribed officer of the court in Nigeria for registration;
  3. The officer of the court shall register the maintenance order in the prescribed manner, on receipt of the order.

Upon registration of a maintenance order issued by foreign courts in Nigeria, such an order would have the same force and effect in Nigeria from the date of registration and the court shall have the power to enforce the order.

  • Confirmation of Maintenance Orders made in England and Ireland

Conversely, if the maintenance order was made by a court in England and Ireland in the absence of the party resident in Nigeria against whom the maintenance order was made, such order shall be provisional only. A provisional order for maintenance made in England and Ireland would have no effect and cannot be enforced until it is confirmed by a court in Nigeria. The procedure for confirmation of a foreign provisional maintenance order in Nigeria are as follows:

  1. The following documents are to be transmitted to the President:
    1. a certified copy of the maintenance order,
    2. the depositions of witnesses, and
  • a statement of the grounds on which the order might have been opposed.
  1. The President willsend a copy of the maintenance order to a magistrate with a requisition that summons be issued to the person to show cause why that order should not be confirmed.
  2. The magistrate, on receipt of the above-mentioned documents and requisition, shall issue a summons and cause it to be served upon such person.
  3. The matter will be set down for hearing and the person against whom a summons is served shall be at liberty to raise any defence he might have raised if he had been a party in the original proceedings.
  4. The statement of the grounds on which the order might have been opposed in a(iii) above forwarded by the court that made the provisional order shall not be adopted as conclusive evidence as grounds on which the objection may be taken.
  5. The court in Nigeria has the discretion to confirm the order either with or without modification if the person against whom a summons is served fails to appear or upon appearance at the hearing fails to convince the court not to confirm the order.
  6. However, if the person against whom a summons is served satisfies the court that the case be remitted back to the court which made the provisional order for the taking of any further evidence, the court shall remit the case and adjourn proceedings till such further evidence is obtained.

It should be noted that a court in Nigeria could vary or rescind a provisional order after confirmation as if such an order had originally been made by a magistrate in Nigeria. However, if the magistrate is satisfied that a case should be remitted back to the court which made the provisional order for the taking of any further evidence towards determining an application for variation or rescission, such case would be remitted, and proceedings adjourned.

Lastly, a person against whom a provisional order is confirmed have a right to appeal against such a decision to the High Court of the State against the confirmation of the order, provided the confirmed order is one against which such a person would have a right of appeal in England or Ireland.

  1. REFUSAL TO COMPLY WITH A MAINTENANCE ORDER

The party against whom a maintenance order is awarded is obliged to comply with the terms of the order. If the party fails and / or neglects to comply with a maintenance order, Section 7(2) of the MOA provides that the order can be enforced against the party who is in breach in a similar manner as an order for the payment of a civil debt recoverable summarily. Below are some enforcement mechanisms that can be adopted to recover maintenance payments.

  1. An application for garnishee orders against the accounts of the person against whom a maintenance order is made.
  2. Also, an application could lie to the magistrate court for a warrant of distress or commitment against the defaulter.
  3. Contempt proceedings could be initiated against the obligor for failure to comply with initiating.
  4. CONCLUSION

The MOA was enacted in 1921 and the countries to which the provisions apply are limited, mostly commonwealth countries. Since the MOA is meant to facilitate the seamless enforcement of maintenance orders across borders, it will be advantageous for Nigeria to negotiate and enter into reciprocal agreements with more countries. Especially countries with many Nigerian immigrants, such as the United States of America, Canada, Countries across the European Union, etc. Also, some of the provisions of the MOA are outdated, for instance the requirement for maintenance orders to be sent to the President for transmission to the Secretary of State. This might result in a bureaucratic mix-up as this will not be top priority to the president in view of other presidential duties, that could be avoided. It will be better for such a duty to be reassigned to either the Federal Ministry of Justice or the Ministry for Foreign Affairs.
_______________________________

For further information on this article and area of law,
please contact Abiodun Victoria Ogunnubi at:
S. P. A. Ajibade & Co., Lagos by

Telephone (+234 1 472 9890), Fax (+234 1 4605092)
Mobile (+234.809.790.4777, +234.818.449.2339)
Email: aogunnubi@spaajibade.com
www.spaajibade.com

Footnote

    1. Associate in the Dispute Resolution Department at S.P.A. Ajibade & Co., Lagos, Nigeria.
    2. United Nations Commission on the Recovery Abroad of Maintenance, as Adopted on 17 May 1955 (New York: United Nations, 1955). https://treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter%20XX/XX-1.en.pdf accessed 20 December 2023.
    3. Cap M7, Laws of the Federation of Nigeria, 1990.
    4. Cap C50, Laws of the Federation of Nigeria, 1990.
    5. See, Olu-Ibukun v. Olu-Ibukun (1974) 2 SC 41.
    6. Cap M1, Laws of the Federation of Nigeria, 1990.
    7. By the provisions of Section 6(2), (3) and (4) of the Maintenance Orders (Reciprocal Enforcement) Act, 1972 Chapter 18, United Kingdom (UK), the Secretary of State upon confirming that the person is resident or has assets in the UK, shall send a copy to the prescribed officer of the appropriate court. The officer of court upon ascertaining that the person is resident or has assets within the jurisdiction of the court shall register the order in the prescribed manner. However, if the officer ascertains that the person does not reside or have assets within the jurisdiction of the court, he shall return the certified copy of the order to the Secretary of State with a statement giving such information as he possesses as to the whereabouts of the person.

Section 4 of the Maintenance Orders Act.
Section 5 of the Maintenance Orders Act.
Section 3 of the Maintenance Orders Act.
Section 2(4) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 prescribes that the underlisted documents be sent to the Secretary of State for transmission to the responsible authority in the reciprocating country: –
(a)a certified copy of the maintenance order;
(b)a certificate signed by that officer certifying that the order is enforceable in the United Kingdom;
(c)a certificate of arrears so signed;
(d)a statement giving such information as the officer possesses as to the whereabouts of the payer;
(e)a statement giving such information as the officer possesses for facilitating the identification of the payer; and
(f)where available, a photograph of the payer.
Section 6 of the Maintenance Orders Act.
Section 3 and 4 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 mandates that a Court to whom an application for maintenance order against a person residing in a reciprocating country under the Domestic Proceedings and Magistrates’ Courts Act 1978 or the Children Act 1989, or a Sheriff in the determination of maintenance as an ancillary to a proceedings concerning the status of a person where the defender resides in a reciprocating country, shall make such a maintenance order provisional.
Section 3(5) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 prescribes the documents to be transmitted by the Secretary of State to the reciprocating country as follows: –
(a)a certified copy of the maintenance order;
(b)a document, authenticated in the prescribed manner, setting out or summarizing the evidence given in the proceedings;
(c)a certificate signed by the prescribed officer of the court certifying that the grounds stated in the certificate are the grounds on which the making of the order might have been opposed by the payer under the order;
(d)a statement giving such information as was available to the court as to the whereabouts of the payer;
(e)a statement giving such information as the officer possesses for facilitating the identification of the payer; and
(f)where available, a photograph of the payer.
Part V of the Sheriffs and Civil Process Act.
Most of the Nations that have ratified the United Nations Convention on the Recovery Abroad of Maintenance designated the Ministry of Justice of their Nations as transmitting and Receiving Agencies.

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