Senegal
1. Are freezing orders (or their equivalent referred to below) available in civil legal proceedings in this jurisdiction and what is their effect?
Yes. A seizure order allows the claimant to seize the assets and receivables owned by the debtor either within the jurisdiction or worldwide to preserve them until judgment has been obtained.
The debtor is forbidden from disposing of any property covered by the seizure order until a specific date (for example, a judgment or payment) or further order of the Court releasing the seizure order.
2. Are other interim orders commonly made in conjunction with a freezing (or equivalent) order?
No.
3. Briefly what is the relevant legal test?
The legal test for a seizure order is as follows:
(i) a claim which appears to be justified in principle;
(ii) the respondent has assets in Senegal or overseas; and
(iii) there must be a real risk of misappropriation of the seized assets in order to avoid the execution of a judgment.
4. Briefly what is the process for obtaining a freezing (or equivalent) order?
An applicant makes an application to the competent Court of the respondent’s domicile or residence setting out the reasons for the request together with evidence of their claim and the basis on which the test above is met. It is not necessary to give notice of the application to the respondent.
5. Does the applicant have to provide any form of security or commit to compensation if its claim is ultimately unsuccessful and any freezing (or equivalent) order granted causes loss and damage to the respondent?
No. However, the respondent can sue for abuse of process.
6. Can it be sought against third parties?
Yes.
A third party may be made a party to the seizure order if there are reasonable grounds to assume that the third party holds the assets of the defendant in the underlying litigation.
7. What assets are covered by a freezing (or equivalent) order?
The seizure order may cover all tangible movable assets or intangible assets owned by the respondent.
However, if these assets are insufficient for the claimant to enforce its debt, the execution of the seizure could be sought against immovable assets, such as land or properties.
8. Can a freezing (or equivalent) order be made in support of substantive proceedings abroad?
Yes.
9. Can a freezing (or equivalent) order be made in support of arbitration proceedings or awards?
Yes.
10. At what stage of proceedings can a freezing (or equivalent) order be sought?
At any stage, including before commencement of the claim or after judgment to assist with enforcement.
11. Are there typically any exceptions to the general prohibition on the respondent’s use of assets subject to a freezing (or equivalent) order?
The seizure of tangible movable assets (such as a vehicle) does not prohibit the respondent from continuing to use those assets. However, the defendant is prohibited from disposing of those assets.
For the seizure of receivables (such as bank accounts) the respondent is prohibited from dealing with the seized money. There are no exceptions to this.
12. What happens after a freezing (or equivalent) order is granted?
For receivables seizures:
(i) the applicant must notify third parties (such as banks) who might hold assets of the respondent of the seizure order within three months’ of the order being made. Failure to do so will render the order invalid;
(ii) the third parties are then required to provide information and supporting documents relating to the respondent’s accounts;
(iii) once a third party has frozen the account/s it is the applicant’s responsibility to notify the respondent of the order;
(iv) the applicant must issue proceedings within one month of seizure.
For tangible movable asset seizures:
(i) once the respondent’s movable assets have been seized, it is the applicant’s responsibility to notify the respondent within eight days, otherwise the seizure order will expire. Once notified, the respondent has one month to contest the seizure;
(ii) as with receivables, the applicant must issue proceedings within one month of seizure.
13. Who pays the costs of the application for a freezing (or equivalent) order?
The enforcement costs, such as costs of a bailiff to seize the assets, are paid by the defendant, unless it is clear that those costs were not necessary at the time they were incurred.
The costs incurred in requesting a seizure order, such as Court fees, are otherwise borne by the applicant, unless the applicant can prove that the defendant acted in bad faith, in which case the applicant can ask the judge to charge the defendant with all the costs of the procedure.
14. What protections are there typically in a freezing (or equivalent) order for third parties to such orders?
If assets belonging to the third party have been seized on behalf of a debtor, the third party can request that those assets be removed from the seizure.
A third party can also claim the procedural costs and possibly compensation in cases of abusive procedure.
In addition, please note that:
(i) a third party is not prevented from exercising any rights of set-off arising prior to its notification of the seizure order;
(ii) a third party does not need to enquire as to the application of any money withdrawn by the respondent if the withdrawal appears to be permitted by the seizure order;
(iii) a seizure order only affects third parties outside of the jurisdiction in certain circumstances;
(iv) as regards assets outside of the jurisdiction, a seizure order does not prevent a third party from complying with (a) what it reasonably believes to be its obligations under the law of the country where the assets are located or the law of any contract between itself and the respondent or (b) any orders of the Courts of the country where the assets are located;
(v) in cases of abuse of process or some other fault attributable to the applicants, applicants may undertake to pay the reasonable costs of any third party which have been incurred as a result of the order, and to compensate them for any loss caused by it. But such payments are at the discretion of the judge.
15. What are the consequences of breach of a freezing (or equivalent) order?
A respondent or third party who knowingly breaches a seizure order may be ordered to pay damages or imprisoned where assets have been misappropriated.
16. Does a third party notified of (but not a party to) a freezing (or equivalent) order owe a duty of care to the applicant (meaning it can be liable to the applicant for non-compliance)?
Yes. Third parties who breach a seizure order may be ordered to pay damages or in some cases face imprisonment.
17. Can a freezing (or equivalent) order be enforced abroad?
Potentially, however, the conditions of execution abroad will be subject to the laws of the relevant jurisdiction.
18. Can freezing (or equivalent) orders from overseas jurisdictions be enforced in this jurisdiction?
No. Seizure of assets in Senegal must be ordered by the Senegalese Courts.
Contacts
Mr. Khaled A. El Houda Managing Partner Cabinet Houda Dakar, Senegal k.houda@avocatshouda.com www.avocatshouda.com Mr. Malick Lo Partner Cabinet Houda Dakar, Senegal m.lo@avocatshouda.com www.avocatshouda.com Mrs. Haby Mballo Senior Legal Counsel Cabinet Houda Dakar, Senegal haby.mballo@avocatshouda.com www.avocatshouda.com
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