Enforcement of Judgments 2022

Last Updated August 02, 2022

Mozambique

Law and Practice

Authors



Dentons FL&A was incorporated in 1995, as a result of the association of two highly reputable and experienced lawyers, Fernanda Lopes and Teodato Hunguana, and since then has been growing steadily year after year. As a result of this growth, the firm has taken on five more partners: Amália Garrine, Rafique Albuquerque, Reginaldo Cumbane, Zaida Lumbela and Jorge Salomão. Dentons FL&A also has six experienced associates and two dynamic and highly skilled candidate lawyers. The firm has extensive experience in providing consultancy services to large national companies, some of which are among the ten largest companies nationally, operating in the areas of energy, water, beverages, real estate, and banking. Dentons FL&A also helps and provides advice to multinational companies. The firm was renamed Dentons FL&A after Fernanda Lopes & Associados Advogados entered into a partnership with Dentons, one of the largest law firms in the world, in 2021.

In principle, there are two ways for an interested party to know the asset position of the other party: the extrajudicial way and the judicial way.

In the extrajudicial manner, the options available in Mozambique to identify the patrimonial position of another party are only available for:

  • immovable property;
  • movable property subject to registration; and
  • shares in a commercial company.

For this purpose, the interested party must request this information from the Land Registry Office, the Automobile Registry Office, and the Registry Office of Legal Entities.

In the judicial form, the interested party requires the court to ask all relevant public and private entities to provide information about the assets of the other party (for example, they may request for banks to provide information on bank balances, insurance companies to provide information on the creation of any insurance, registry offices of legal entities to find out if the other party has any shares in commercial companies, and land and automobile registry offices to find out if there is any real estate or movable assets subject to registration).

The interested party may provisionally obtain the seizure of the debtor's assets by means of urgent proceedings.

Information about the other party's assets is available to the public at these registry offices, and it is up to the interested party to request the information. However, information about bank balances and insurance is (because of the duty of secrecy) subject to a request from the court or from the National Criminal Investigation Service if the matter constitutes a crime.

Freezing orders are usually ordered within a judicial or criminal investigation proceeding. Such freezing orders are registered in the certificates of the respective registry offices, depending on which property the freezing order relates to (Land Registry, Automobile Registry or Legal Entity Registry).

The obligation to disclose assets applies only to public officials, and these declarations can be consulted by the public. This means that information about the disclosure of assets is available to the public.

Internal decisions may result from the type of application brought, as follows:

  • sentences of condemnation, which aim to demand the provision of a thing or fact, presupposing or foreseeing the violation of a right;
  • sentences that aim to obtain only the declaration of the existence or non-existence of a right or fact;
  • sentences that aim to authorise a change in the existing legal order;
  • judgments that are of a provisional nature resulting from urgent procedures, such as provisional maintenance, where the petitioner requests that a monthly amount be fixed as provisional maintenance, pending a final decision;
  • provisional restitution of possession, where a petitioner who has been violently dispossessed requests provisional restitution of possession;
  • suspension of corporate resolutions, where the petitioner challenges resolutions that are contrary to the law passed by associations or companies of any kind;
  • authorisation to perform certain acts, where the plaintiff asks the court to authorise them to perform a certain act in order to prevent a serious and difficult-to-repair injury to their right;
  • subpoena to refrain from certain conduct, where the plaintiff asks that the other party be ordered not to perform certain acts that may cause serious and difficult-to-repair injury to their right, or the delivery of movable or immovable property, where the plaintiff asks that a certain movable or immovable property be provisionally delivered to them;
  • judicial seizure of goods, where the plaintiff requests that the court seize the other party's goods when the plaintiff fears that the debtor's assets will be lost;
  • embargo of a new construction, where the plaintiff requests that the court suspend the construction of the work, due to an offence to their right of ownership or possession; and
  • the inventory of goods or documents, when the plaintiff perceives that there is a fear that the debtor intends to lose or dissipate goods, whether movable, immovable, or documents.

In Mozambique, the procedure for the enforcement of a domestic judgment is judicial. Thus, the law requires the enforcer to bring an execution action against the debtor.

It is the writ of execution that indicates what form the process will take: ordinary execution or summary execution.

Executions can be for payment of a certain sum, for the delivery of a certain thing, and for the provision of a fact:

  • in executions for payment of a certain sum, the debtor is summoned to pay the amount due;
  • in executions for delivery of a certain thing, the debtor is summoned to deliver the object of the action;
  • in executions for delivery of a fact, the debtor is summoned to deliver the fact requested in the lawsuit.

They follow as ordinary executions when the enforcement order is not a condemnatory court decision – a court or arbitral award that orders the performance of an obligation that needs to be liquidated in execution of a judgment.

In ordinary executions, the debtor is summoned to pay or appoint assets for attachment within ten days. If the debtor does not pay or appoint assets to be attached within the deadline, the creditor may indicate the debtor's assets to be attached.

Once the attachment has been made, the creditors of the judgment debtor are summoned, and their claims are verified.

The sale of the attached assets can be judicial or extrajudicial. If the debtor's assets are not sufficient to pay the debts, any of the creditors can petition for bankruptcy or insolvency of the debtor.

Summary executions based on conciliation or mediation minutes, court decisions or arbitral awards, even if illiquid, are subject to summary execution, as long as the liquidation depends on a simple arithmetic calculation.

In summary executions, the creditor may name assets for attachment right from the initial petition, and if the attachment is ordered, the debtor is notified simultaneously of the initial petition and the order that orders the attachment of assets. The judgment debtor has five days to pay or file an opposition.

In the case of execution of a debt with a real guarantee, the summons must be served after the seizure has been ordered. Since the debt is certified with a real guarantee, it is incomprehensible that the seizure is not ordered and perhaps done immediately. Because the asset is attached to the debt, the sooner the asset is attached, the sooner the objective of the execution will be achieved, which is the effective redress of the violated right.

The attachment of assets may affect the property of a third party, and when this happens, the interested party must file a third-party attachment with the court, to recover possession of the property.

Civil cases are subject to costs, which comprise the court tax, stamps, and charges.

During the proceedings, the costs are the initial costs, subsequent costs, costs for trial and the final costs, which generally do not exceed 10% of the value of the proceedings.

The tax in executions will be equal to two thirds of that fixed for actions of the same value. Charges include the costs of the court's coffers, the cost of each paper, the cost of statistical entries, expenses incurred in requesting an assistant to testify, the cost of publishing notices, sums owed to public offices, remuneration or compensation to persons who accidentally intervene in the case or assist in any proceedings, movement expenses, legal fees, and the cost of documents and loose papers.

The others, which are not strictly procedural, include the administrative costs for the recognition of signatures, the authentication of copies of documents, copies of documents, and travel.

The time cannot be fixed because it depends on the volume of cases pending in the court, the judge's flexibility, and other factors, such as the complexity of the case, the existence or not of a heavy workload, and the judge's other professional occupations that force them to be absent from their post. The execution can last from nine months to two years or more.

The post-judgment procedure to determine what assets the defendant owns and where they are located coincides with an extrajudicial procedure, which means that the enforcer must take all necessary steps to ascertain the existence and location of the debtor's assets. They may request information regarding the debtor's real estate assets, movable assets subject to registration and shareholdings at the respective registry offices: the Land Registry Office, the Automobile Registry Office and the Registry Office of Legal Entities.

The procedure recommended to determine what assets the defendant owns and where they are located should be carried out by the enforcer and indicated in the execution action. If the executor does not know what the defendant's assets are and where they are, they may ask the judge to take measures to that end, to be carried out while the legal proceedings are pending.

Under the Mozambican Code of Civil Procedure, the defendant may contest by way of objection or appeal against the order of service, depending on the grounds they intend to put forward in their defence.

When the enforceable title is a judgment, the debtor's defence may only have any of the following grounds:

  • non-inexistence or unenforceability of the title;
  • falsity of the process or of the translation, or its infidelity, when one or the other influences the terms of the execution;
  • illegitimacy of the enforcer or of the party subject to the execution action, or its representation;
  • undue accumulation of executions or illegal coalition of enforcers;
  • lack or nullity of the first summons to declaratory proceedings, when the defendant has not intervened in the proceedings;
  • uncertainty or unenforceability of the enforceable obligation;
  • res judicata prior to the judgment being enforced; or
  • any fact extinguishing or modifying the obligation, provided that it is subsequent to the conclusion of the discussion in the declaratory proceedings and is proven by a document.

If the enforcement order is not based on a judgment, in addition to the above grounds, the debtor may defend themselves by alleging any other grounds that would be lawful as a defence in the declaration proceeding.

To stay execution, the defendant must give security in the amount of the enforceable obligation. This means that if the defendant only presents their defence and does not post a bond, the execution will not be stayed, and attachment of their assets will be ordered.

When the defendant has not been validly served with notice/citation, they may appeal that act, and the execution is stayed until the appeal is resolved.

It is only possible to execute a sentence pending appeal if the appeal has been given a purely devolutive effect. Therefore, the defendant's defence that they filed an appeal in the process whose sentence constitutes an executive title in the execution will not proceed.

For judgments to be enforceable, they must satisfy the formal requirements of the law; namely, they must have become final and the obligation must be certain and enforceable. Consequently, sentences that do not satisfy these requirements cannot be enforced. In other words, there are sentences that cannot be executed, for lack of requirements, and obviously will not be enforceable titles. However, there are sentences that have not become final that can be executed. These are the cases of sentences pending appeal, for which a merely devolutive effect has been set.

Mozambique does not have a central registry of all judgments. However, in all the courts, there is a dedicated book where all court cases are listed. This allows the interested party, judges, and court clerks to know how many cases have been submitted to the court, as well as how many cases have been judged, how many cases have not been judged, and how many cases have gone to appeal.

The respective books contain information about the plaintiff, the defendant, the form of the lawsuit, the section to which the lawsuit was distributed, the case number, and the identification of the judge of the case.

There is no procedure for a debtor who has paid their debt to remove a judgment from the record made in the relevant book. This information will remain in the court records. The payment of the debt by the debtor does not make room for the debtor to be subject to an execution action by the creditor in connection with that debt.

In Mozambique, no decision rendered by a foreign court is effective without being reviewed and confirmed by the Supreme Court. Only after this review and confirmation process does the foreign judgment become enforceable, and therefore capable of being executed. This means that the interested party must bring an action before the Supreme Court for revision and confirmation of a foreign judgment that it wishes to be effective in Mozambique.

Regardless of the type of judgment, the foreign judgment must be reviewed and confirmed by the Supreme Court to be effective. Only the Supreme Court has jurisdiction to review and confirm a foreign judgment.

However, enforcement based on a foreign judgment is carried out by annexation to the review, and the executioner must request the Supreme Court to transfer the enforcement to the first-instance court that has jurisdiction. In this case, there are different types of jurisdictions for the execution of the sentence, which means that the judicial process can be distributed to a civil or a commercial section, depending on the object of the execution.

Foreign sentences in which the defendant has not been duly summoned and that contain decisions contrary to the principles of Mozambican public order shall not be executed in Mozambique.

For a foreign judgment to be upheld by the Supreme Court:

  • there must be no doubt as to the authenticity of the document on which the judgment is based or the intelligence of the decision;
  • it must have become final and conclusive under the law of the country in which it was delivered;
  • it must come from a court that has jurisdiction under the conflict-of-jurisdiction rules of Mozambican law;
  • the exception of lis pendens or res judicata cannot be invoked on the basis of a case assigned to a Mozambican court, unless the foreign court has prevented jurisdiction;
  • the defendant has been duly summoned, unless the cause is one for which Mozambican law would dispense with an initial summons;
  • if the defendant was later convicted for lack of opposition to the claim, that summons has been served on the defendant's own person;
  • it must not contain decisions that are contrary to the principles of Mozambican public policy; and
  • it must not be in conflict with the provisions of Mozambican private law.

As mentioned, the effectiveness of a foreign judgment is dependent on its revision and confirmation by the Supreme Court.

Once the foreign judgment has been reviewed and confirmed, the interested party must file the enforcement action attached to the judicial proceeding that reviewed and confirmed the foreign judgment with the Supreme Court and request the court to order the case to be transferred to the competent first-instance court.

If the enforcement is in the court of first instance, the enforcement procedure will be the same as for domestic enforcement, which means that the jurisdiction of the court of first instance will be determined according to the internal rules. That is, for enforcement, the court of the place where the obligation is to be performed has jurisdiction. However, if the execution is for the delivery of a certain thing or for a debt with real security, the court of the place where the thing is located or the court of the location of the encumbered property will have jurisdiction, respectively. Additionally, when the execution must be commenced in the court of the domicile of the debtor and they are not domiciled in Mozambique, but have assets, the court of the location of the assets shall have jurisdiction for the execution.

The creditor can immediately indicate the debtor's assets to be attached in the execution petition. The court will order the attachment of the assets and serve notice to the debtor of the attachment of their assets and of the execution action.

The debtor may appeal the decision that ordered the attachment, after being notified of the attachment of their property and the execution action, and may file an opposition to the execution action.

However, if the debtor only opposes the execution, they must provide a bond in the amount of the enforceable obligation under penalty of the execution continuing and their assets being put up for sale.

As mentioned, the enforcement of a foreign judgment is carried out by the court of first instance that has jurisdiction.

The procedures will be the same as those applied for the enforcement of a domestic judgment. Thus, during the proceedings, the costs are the initial costs, subsequent costs, costs for expenses and for the trial, and the final costs, which generally do not exceed 10% of the value of the proceedings. The fee in executions will be equal to two thirds of the fee set for actions of the same value.

There is no time limit in Mozambique's Code of Civil Procedure for the court to execute a judgment. What does exist is a 15-day time limit for the judge to pronounce their sentence. Therefore, the time cannot be fixed because it depends on the volume of pending cases in the court and the judge's flexibility, among other factors, such as the complexity of the case, the existence or not of a heavy workload, and the judge's other professional occupations that force them to be absent from their post.

The execution can last from nine months to two years or more.

In Mozambique, a foreign judgment is only effective after it is reviewed and confirmed by the Supreme Court. For a foreign judgment to be confirmed by the Supreme Court, the necessary requirements for its confirmation must be met, which prevents it from being confirmed if the judgment does not become final under the law of the country where it was delivered, or is pending appeal in that foreign country, as well as offending the principles of Mozambican public order.

In any case, the debtor's defence can only be based on one of the following grounds:

  • inexistence or unenforceability of the title;
  • falsity of the process or of the translation, or its infidelity, when one or the other influences the terms of the execution;
  • illegitimacy of the executioner or of the party subject to the execution action, or of their representation;
  • undue accumulation of executions, or illegal coalition of executioners;
  • lack or nullity of the first summons for declaratory proceedings, when the defendant has not intervened in the proceedings;
  • uncertainty or unenforceability of the enforceable obligation;
  • res judicata prior to the judgment being enforced; or
  • any fact extinguishing or modifying the obligation, provided that it is subsequent to the conclusion of the discussion in the declaratory proceedings and is proven by a document.

In principle, foreign arbitral awards are enforceable under the same terms as other foreign awards, and it is true that, in a special way, Mozambique has adhered, under the Investment Law, to the Washington Convention and the New York Convention on International Arbitration, with the particularity that the former has not been published together with the resolution approving it, which raises questions about its effectiveness. This means that foreign arbitral awards rendered under the Washington Convention are not enforceable in Mozambique, precisely because they have not been published in the Mozambican legal system, unlike any other foreign arbitral award that had been decided under the rules of the New York Convention, since these become effective after their review and confirmation by the Supreme Court.

As mentioned, the effectiveness of the foreign award is dependent on its review and confirmation by the Supreme Court.

Once the foreign award has been reviewed and confirmed by the Supreme Court, the interested party should file the enforcement action attached to the judicial proceeding that reviewed and confirmed the foreign award with the Supreme Court, and request the Supreme Court to order the case to be transferred to the competent first-instance court.

As the enforcement is in the court of first instance, the enforcement procedure will be the same as for domestic enforcement. Thus, the jurisdiction of that court of first instance is assigned according to the subject matter (eg, civil section, commercial section), which means that if the subject matter of the foreign arbitral award is civil, the enforcement will be assigned to the respective civil section.

Foreign arbitral awards will not be enforced if they:

  • violate the provisions of Mozambican private law;
  • contain decisions contrary to the principles of Mozambican public order;
  • have not become final according to the law of the country where they were made;
  • decide on unavailable rights,
  • decide on labour matters; or
  • were rendered in accordance with the Washington Convention, because the convention was not published together with the resolution that approved it and is therefore not effective in Mozambique.

The enforcement of an arbitral award shall be requested at the competent court. The application shall be accompanied by:

  • certified copies of the arbitral agreement;
  • the arbitral award, its rectification, interpretation, and additional award; and
  • proof of notification to the parties and presentation of the arbitral award.

The creditor will immediately indicate the debtor's assets that they want the court to seize, and the judge will order the seizure of these assets.

The debtor will be summoned/notified to pay (if the execution seeks to obtain payment of a certain sum), as well as notified of the order that ordered the seizure of their assets. The debtor may file an opposition or appeal the order for seizure of their assets.

For the debtor to obtain a stay of execution, they must provide security in the amount of the enforced obligation.

Enforcement of an arbitral award is by judicial means and takes place as with any domestic award.

Typical costs are the costs of the court action, which comprise the court tax, stamps and charges. The normal court costs in executions have to do with the progress of the case, and the costs are the initial costs, subsequent costs, costs for judgment, and the final costs, which generally do not exceed 10% of the value of the case. The tax in executions will be equal to two thirds of that fixed for actions of the same value.

As for the time, it can no longer be fixed because it depends on the volume of cases pending in court and the judge's flexibility, among other factors, such as the complexity of the case, and can vary from months to years. In the meantime, the judge has a legal deadline of 15 days to hand down their sentence.

In Mozambique, a foreign judgment is only effective after being reviewed and confirmed by the Supreme Court. The defendant may challenge the execution and allege:

  • non-existence or unenforceability of the title;
  • falsity of the process or of the translation or its infidelity, when one or the other influences the terms of the execution;
  • illegitimacy of the enforcer or of the defendant, or their representation;
  • undue accumulation of executions or illegal coalition of enforcers;
  • lack or nullity of the first summons to declaratory proceedings, when the defendant has not intervened in the proceedings;
  • uncertainty or unenforceability of the enforceable obligation;
  • res judicata prior to the judgment being enforced; and
  • any fact extinguishing or modifying the obligation, provided that it is subsequent to the conclusion of the discussion in the declaratory proceedings and is proven by a document.

If the enforceable title is not based on a judgment, in addition to the above grounds, the debtor may defend themselves by alleging any other grounds that would be lawful as a defence in the declaration proceeding, the pendency of an appeal in the foreign court, and any other fact that extinguishes or modifies the obligation.

If an appeal is pending in the foreign court, the arbitral award will not be reviewed and confirmed by the Supreme Court. In any case, the ground that an appeal is pending in the foreign jurisdiction is an effective means of defence for the debtor.

If the nature of the foreign arbitral award is not in accordance with the principles of public and private law in the Mozambican legal system (eg, an award on labour matters), it is also a ground for defence of the debtor, since in the Mozambican legal system, only Labour Courts have jurisdiction to settle labour disputes.

Dentons FL&A

Rua Frente de Libertação de Moçambique, No 224
(ex-R.Pereira do Lago)
Maputo
Mozambique

+258 86 403 2611

Rafique.albuquerque@dentons.com www.dentons.co.mz
Author Business Card

Law and Practice

Authors



Dentons FL&A was incorporated in 1995, as a result of the association of two highly reputable and experienced lawyers, Fernanda Lopes and Teodato Hunguana, and since then has been growing steadily year after year. As a result of this growth, the firm has taken on five more partners: Amália Garrine, Rafique Albuquerque, Reginaldo Cumbane, Zaida Lumbela and Jorge Salomão. Dentons FL&A also has six experienced associates and two dynamic and highly skilled candidate lawyers. The firm has extensive experience in providing consultancy services to large national companies, some of which are among the ten largest companies nationally, operating in the areas of energy, water, beverages, real estate, and banking. Dentons FL&A also helps and provides advice to multinational companies. The firm was renamed Dentons FL&A after Fernanda Lopes & Associados Advogados entered into a partnership with Dentons, one of the largest law firms in the world, in 2021.

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