NIGERIA Law and Practice Contributed by: Tamuno Atekebo, Chinasa Unaegbunam, Naomi Kabowei and Favour Osayuwamen, Streamsowers & Köhn
3.3.3 Register of Mortgages and Charges There is no specific register of mortgages and charges maintained by the NCAA. The interests of an aircraft mortgagee or security trustee are noted in the aircraft register maintained by the NCAA. The NCAA is yet to establish the legal interest registry stipulated under the Nig.CARs. The notation of the mortgage/charge interest on the aircraft register helps establish the priority of the mort - gagee’s or chargee’s claim over the aircraft in case of any disputes or insolvency proceedings. It also alerts potential buyers or other interested parties about the existing security interest, which can impact their deci - sions regarding the aircraft. 3.3.4 Statutory Rights of Detention or Non- Consensual Preferential Liens Statutory rights of detention and non-consensual rights can arise over an aircraft and/or on a fleet-wide basis. There is no specific law prohibiting an applica - tion on a fleet-wide basis. 3.3.5 Verification of an Aircraft’s Freedom From Encumbrances To verify if an aircraft is free of encumbrances, a poten - tial purchaser of an aircraft in Nigeria could search the aircraft register maintained by the NCAA. The aircraft register includes information on all the interests that have been created over a specific aircraft. A potential purchaser could also conduct a search at the Corporate Affairs Commission, the body that regulates corporate entities in Nigeria. Companies are enjoined to file notices of charges created over their assets. 3.4 Enforcement 3.4.1 Differences Between Enforcing Security Assignments, Loans and Guarantees The key difference lies in the nature of the underlying assets and the mechanisms for recovery. Enforcing a security assignment is focused on the recovery of the specific collateral, which in many cases is the aircraft, whereas enforcing a loan or guarantee involves the recovery of debt and may – if the debt is of a certain amount – require application for summary judgment and, where summary judgment is given, garnishee
proceedings to attach monies belonging to the debtor or guarantor. 3.4.2 Security Trustees’ Enforcement of Their Rights A security trustee may enforce its rights under a secu - rity assignment pursuant to a notice and acknowl - edgement executed by the lessor and lessee. 3.4.3 Application of Foreign Laws Domestic courts will uphold foreign law as the gov - erning law of a finance or security document if the parties have validly chosen that law to govern their agreement. Similarly, submission to a foreign jurisdic - tion is respected if the parties have agreed to it in their contract. A court in Nigeria will, however, take certain factors into consideration when faced with a challenge of a suit filed in breach of a foreign jurisdiction clause. Such factors are listed in 2.1.2 Application of Foreign Laws . 3.4.4 Recognition and Enforcement of Foreign Judgments and Arbitral Awards Domestic courts in Nigeria recognise and enforce foreign court judgments and arbitral awards without re-examining the matter. 3.4.5 Secured Parties’ Right to Take Possession of Aircraft To the extent that the right to take physical posses - sion of an aircraft is one agreed by the parties to be exercisable without the lessee’s or operator’s consent, a secured party can take physical possession of an aircraft to enforce a security agreement. 3.4.6 Domestic Courts Competent to Decide on Enforcement Actions The Federal High Court in Nigeria is competent to determine enforcement actions under a security agreement/aircraft mortgage. 3.4.7 Summary Judgments or Other Relief In Nigeria, a secured party can seek equitable or other injunctive relief pending final resolution of judicial pro - ceedings. The facts necessary for the granting of such reliefs include showing that irreparable harm, that may not be compensated by monetary relief, will result if such relief is not granted. It is also important for the
446 CHAMBERS.COM
Powered by FlippingBook