AFRICA-WIDE: An Introduction to Corporate/Commercial: OHADA Specialists

OHADA: Entry Into Force of the New “Uniform Act Organizing Simplified Recovery Procedures and Enforcement Measures”

Debt recovery is central to the legal framework of the Organization for the Harmonization of Business Law in Africa (OHADA): one of the first pieces of legislation it has enacted is the “Uniform Act Organizing Simplified Recovery Procedures and Enforcement Measures” (the “Uniform Act”), adopted on 10 April 1998. A revised version of this act was published in the OHADA Official Journal on 15 November 2023, and will be in force as of 16 February  2024. Described as a “major qualitative leap” by the OHADA Permanent Secretary, the revised version of the Uniform Act aims at improving debt recovery processes across the 17 member States of the organisation.

The main mechanisms provided for by the Uniform Act

The Uniform Act essentially provides for four main mechanisms, the objective of which is to simplify, accelerate and secure the recovery of debts.

The injunction to pay (Articles 2 to 18) 

This recovery procedure is available to creditors whose debts arising from a contract, a negotiable instrument or a cheque are certain, liquid and due. It allows the creditor to obtain, quickly and at a low cost, an enforceable court order requiring the debtor to pay the debt claimed. In the absence of execution, and subject to the debtor’s opportunity to object to the order, the creditor may take enforcement action against the debtor.

The injunction to deliver or return (Articles 19 to 27)

This recovery procedure is intended for debtors who have an obligation to deliver or return a specific movable property. Like the injunction to pay procedure, the injunction to deliver or return procedure allows the creditor to obtain, quickly and at a low cost, an enforceable court order against the debtor, ordering the debtor to deliver or return the movable property in question.

Provisional measures (Articles 54 to 90) 

These measures make the debtor’s assets unavailable when the creditor proves that there are facts that could threaten the recovery of their debt. They can be implemented without an enforceable title and cover all movable assets belonging to the debtor, including their shares and securities or their bank accounts.

Enforcement measures (Articles 91 to 334) 

The Uniform Act provides for a variety of enforcement measures. These allow the creditor to render the debtor’s assets unavailable, to have them sold, or to have them assigned to them. These measures can be implemented provided that the creditor has an enforceable title. The debtor’s movable property, debts owed to them by third parties, remuneration due from their employer, their shares and securities, as well as their real estate, can thus be subject to enforcement measures.

The main new features of the revised version of the Uniform Act

The revised version of the Uniform Act contains numerous improvements and innovations. The most significant ones are presented below.

Scope and definitions 

In a new preliminary chapter, the scope of application of the Uniform Act is now clearly defined: it covers the procedures for injunctions to pay, to deliver or to return, enforcement measures and provisional measures with the exception of those covered by international treaties, by the national law of each OHADA Member State in the context of public debt recovery, and by other OHADA uniform acts (Article 1). Additionally, the effort to clarify the Act’s scope is further supported by the inclusion of a new article dedicated to definitions (Article 1-1).

Strengthening of the investigative powers of bailiffs and judicial officers (Articles 1-3)

Bailiffs and enforcement authorities can now obtain a court order requiring public administrations to provide information on a debtor’s assets. This significantly increases the chances for the creditor to recover their debt.

Introduction of the electronic form of acts related to provisional and enforcement measures (Articles 1-5)

Acts drawn up for the purpose of preserving or recovering debts can now be made in electronic form. These acts will have the same legal effect as those drawn up on paper.

Harmonisation of acts of bailiffs and judicial officers 

The Uniform Act mandates specific elements to be included in all acts drawn up by bailiffs and enforcement authorities. These mandatory elements must appear in the acts, and failure to include them can lead to the act being declared null and void (Articles 1-6). However, this nullity depends on proving that the omission of these elements has caused a grievance (Articles 1-16).

Extension of the injunction to pay procedure’s scope (Article 2)

From now on, in addition to contractual claims and claims relating to negotiable instruments and cheques, claims arising from the endorsement or guarantee of a negotiable instrument or cheque may also be recovered through the injunction to pay procedure.

Improvement of the speed of injunction procedures 

Judges must now issue the injunction to pay, deliver or return within three days of being seized (Article 5). The time limits for opposition and appeal in these procedures, previously fifteen and thirty days respectively, have been reduced to ten and fifteen days (Articles 10 and 15). The appeal proceedings may not exceed three months from the receipt of the file by the competent court (Article 15).

End of the obligation to first proceed with enforcement measures on movable property before turning to immovable property (Article 28)

The previous obligation to first enforce against movable property before considering immovable property has been removed. Now, creditors have the discretion to select the enforcement measures they believe will most effectively recover their debt or protect their rights, whether that involves movable or immovable property.

Clarifications concerning immunity of States and public legal persons (Articles 30 to 30-3)

The new Uniform Act now expressly lists the persons benefiting from immunity from enforcement: States, local authorities and public institutions. It also includes various new provisions relating to debts held against public bodies and their recovery.

Extension of the scope of the debtor’s assets that may be subject to provisional or enforcement measures

Provisional and enforcement measures may now cover livestock (Article 73-1 et seq., Article 152 et seq.), goods placed in a safe deposit box belonging to a third party, such as a bank (Articles 152-16 et seq.) and goodwill (Article 245-1). Electronic money, which is making its entry into the Uniform Act, may also be subject to enforcement measures (Article 153).