One of the main pillars of the legal framework established by the Organization for the Harmonization of Business Law in Africa (l'Organisation pour l'Harmonisation en Afrique du Droit des Affaires ("OHADA")) is the simple, swift and effective recovery of debt by creditors across the 17 OHADA member states.
The revised Uniform Act Organizing Simplified Recovery Procedures and Enforcement Measures (the "Revised AUPRSVE") was adopted by the OHADA Council of Ministers on 17 October 2023 to facilitate this objective. Published on 15 November 2023 in the OHADA Official Gazette, the Uniform Act came into effect on 16 February 2024 and repeals and replaces its predecessor Uniform Act Organizing Simplified Recovery Procedures and Enforcement Measures which was adopted on 10 April 1998 ("1998 Uniform Act").
According to the OHADA Permanent Secretary, Prof Mayatta Ndiaye Mbaye, the improved Uniform Act "marks a major qualitative leap".
Some major innovations relate to the following provisions:
1. Scope and definitions (articles 1 and 1-1)
- The Revised AUPRSVE is not retroactive. This means that the provisions of the 1998 Uniform Act remain applicable to simplified recovery procedures and enforcement procedures initiated before 16 February 2024. On the other hand, recovery procedures and executions initiated from this date must be carried out in application of the new provisions of the Revised AUPRSVE.
2. Injunction/order for payment
- The President of the competent court has a period of three days from his referral to issue his order as stated in article 5. The same article now requires that in the event of rejection of all or part of the request, the order for payment, not subject to appeal for the creditor, must be reasoned.
3. Introduction of a criterion for admissibility of a request for an order for payment
- Article 8-1 introduces an action for annulment of the document serving the notice for an order for payment.
- The time limits for lodging an objection to an order for payment (new article 10) have been reduced from 15 to 10 days following service of the order.
- In addition to the parties and the registry of the court that issued the order, the opposing party is now also required to serve the order on the bailiff or the authority responsible for the sale (revised article 11).
4. The court will no longer be responsible for the preliminary attempt at conciliation between the parties
- According to the revised article 12, the court will now designate a judge responsible for conciliation, in chambers, within 15 days of his or her designation. If conciliation leads to a favourable outcome, the subsequent report replaces the order for payment, even if it contains the enforceable formula.
- If this attempt fails, the judge simply notes this and postpones the case to the next hearing. For this specific case, the new article 12 establishes a period of two months from the date of the first hearing to rule on the opposition.
5. Streamlining of the appeal procedure
- The appeal court rules were streamlined (articles 15 and 16) reducing the appeal period from from 30 to 15 days from the delivery of a contradictory decision, or from the notification of the decision rendered by default.
6. Institution of an action in enforcement of the order for payment for the benefit of the creditor
7. New rules on nullity
- The Revised AUPRSVE distinguishes in largely separate provisions between nullities for formal defects (new articles 1-16) and those for substantive defects (new articles 28-3 and articles 28-4).
8. Introduction of dematerialisation of the methods for drawing up and serving documents and for keeping of registers dedicated to payment order procedures
- Documents for the preservation or recovery of debts may be addressed (new article 1-5) or served (new article 1-8) by bailiffs and/or authorities empowered to serve either on paper or by electronic means. The formalities for service are detailed in articles 1-8 to 1-10.
9. Innovations relating to enforcement against juristic persons
- The Revised AUPRSVE clarifies the beneficiaries of immunity from execution, restricting them to juristic persons governed by public law (article 30, paragraph 1).
- Public persons are given the right to expressly waive immunity from execution.
10. Other amendments include:
- Revision of article 49 on the general provisions applicable to seizures of movables, and extension of the basis of assessment for movables; and
- Innovations relating to the seizure of immovable property.
It is anticipated that the revised Uniform Act will lead to a significant improvement in the legal framework for debt recovery and enforcement in OHADA member states.
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