Debt collection in Togo

The debt collection procedure in Togo begins with a legal, financial and procedural assessment of the case. This assessment covers the origin of the debt, the exact identity of the debtor, the debtor’s residence or registered address, actual business activity in Togo, contracts, invoices, delivery or service performance records, partial payments, possible debt acknowledgements, pending court cases, ongoing enforcement proceedings and the likelihood of the debt being disputed.

In a Togo-related case, debtor analysis should not be limited to confirming that the debt exists. It is also important to determine where the debtor is actually located, whether there is an operating business address, where attachable assets are situated, whether bank accounts or claims against third parties can be identified, and whether procedural documents can be properly served. These factors affect the choice between amicable recovery, ordinary court proceedings, a payment order and enforcement measures.

If the debtor continues commercial activity and the debt is sufficiently documented, the creditor may start the amicable debt collection stage. This stage may include sending a demand for payment, written communication with authorized representatives, proposing a payment schedule, return of goods, set-off where there is a contractual basis, or another settlement method consistent with the nature of the obligation.

Communication with the debtor should be preserved in a way that allows the creditor to prove its date, content, receipt and the debtor’s position. A written response, partial payment, promise to pay or acknowledgement of debt may strengthen the creditor’s position, especially when proving the existence of the debt, its amount and the fact that payment has become due.

If the debtor refuses to pay, does not respond, disputes the debt without sufficient grounds, reduces available assets or is already pursued by other creditors, the case may move to the stage of judicial debt collection before the competent court in Togo.

The Republic of Togo is a member of the Organization for the Harmonization of Business Law in Africa. For a creditor starting debt collection in Togo, this means that a commercial claim may be assessed under both Togo’s national procedural rules and the common business law rules applicable in the member states of this legal system. This connection is especially important where the debt arises from a commercial contract, a negotiable instrument, an unpaid cheque, company activity, collective debt settlement proceedings or enforcement measures.

Togo has a specific place in this legal framework because the common act on general commercial law was adopted in Lomé. For commercial debts pursued in Togo, the rules on general commercial law, simplified recovery procedures, enforcement measures and collective settlement of liabilities should therefore be considered together.

Before starting court action, the creditor should determine the applicable limitation period. For obligations arising from commercial transactions between merchants or between merchants and non-merchants, a five-year period applies, unless a shorter special period is relevant to the specific claim. Acknowledgement of the debt by the debtor, filing a court claim or taking an enforcement step may affect the calculation of the period depending on the nature of the case.

Judicial debt collection in the Republic of Togo may be carried out through ordinary court proceedings or through a payment order, depending on the characteristics of the case. The choice of procedure depends on the nature of the debt, the extent of the debtor’s objections, the available documents, the debtor’s residence or registered address, the amount claimed and the scope of review required from the court.

The ordinary court procedure begins with filing an application with the registry of the competent court. The application should identify the parties, their capacity, residence or registered address, the subject of the claim, the facts relied upon and the grounds on which the creditor bases the claim. In personal actions, the case is generally brought before the court of the defendant’s residence or, if there is no residence, before the court of the defendant’s place of stay.

After the application is filed, the registry asks the claimant to deposit the advance required to cover court costs and issues a receipt with the case registration number. A summons is then prepared and served on the defendant in accordance with Togo’s civil procedure rules.

If the defendant resides in the prefecture where the competent court is located, the ordinary period for appearance is eight days. If the defendant resides in an immediately neighboring prefecture, the period is extended by one week. If the defendant resides in another, non-neighboring prefecture, the period is extended by two weeks. If the defendant resides outside Togo in a state served by a regular air route with a stopover in Togo, the period is extended by one month. If the defendant resides outside Togo in a state without a direct air connection with Togo, the period is extended by two months.

In urgent cases, the judge may shorten the periods for appearance. If a document intended for a party residing in a place that gives the right to an extended period is served personally in another place, the time limits applicable to the place of actual service apply.

If the defendant does not appear, the court examines whether service was regular, whether the application is admissible, whether the debt is supported by evidence and whether the creditor’s claim has a legal basis. If the applicable conditions are met, the case may be examined on the merits even without the defendant’s participation.

On the date fixed for appearance, the parties appear in person or through a representative. The court hears the parties, examines the documents produced and may order the measures required to clarify the facts where the available evidence is not sufficient to decide the dispute immediately.

During the preparation and examination of the case, the parties may be required to exchange documents, provide additional evidence or respond to the other party’s arguments. The court may hear witnesses, appoint an expert, request documents from third parties or take other legally admissible measures to establish the relevant facts of the dispute.

When the court considers that the case file contains the elements required to decide, it examines the debt, its amount, its due status, the defendant’s defenses and any ancillary claims. The court then closes the hearing and gives a decision on the merits, granting the creditor’s claim in whole or in part, or rejecting it if the legal conditions are not met.

A payment order may be used to recover a debt that is certain, quantifiable and due. This procedure is available where the debt has a contractual basis or arises from the issue, endorsement, guarantee or acceptance of a negotiable instrument, or from the issue of a cheque without sufficient funds.

The creditor files an application with the registry of the competent court. The application should state the identity of the parties, the exact amount claimed with a breakdown of its components and the basis of the debt. Supporting documents should be attached in originals or certified copies. If the creditor is not located in the state of the court seised, the application should indicate an address for service within the jurisdiction of that court.

The president of the competent court or the appointed judge gives a decision within three days after the application is filed. If the claim appears justified in whole or in part, a payment order is issued for the determined amount. If the application is rejected in whole or in part, the decision should state the reasons and cannot be appealed by the creditor, although the creditor retains the right to bring an ordinary court claim.

The application and the payment order should be served on the debtor at the creditor’s initiative within three months from the date of the order. If service is not made within that period, the order loses effect. The service document should require the debtor to pay within ten days or file an objection within the same period, with any applicable extension based on distance.

An objection is filed by an out-of-court act before the competent court. The party filing the objection should notify the parties, the person responsible for enforcement and the court registry, and should summon the parties to appear on a fixed date that cannot be later than thirty days from the filing of the objection.

After an objection is filed, the court appoints a judge to attempt conciliation. That judge conducts the conciliation attempt within fifteen days after appointment. If the parties reach an agreement, a record is drawn up and may be given enforceable effect. If conciliation is not reached, the case is referred to the nearest public hearing and the court decides on the recovery claim within two months from the first hearing. The decision on the objection replaces the payment order previously issued.

If the debtor does not file an objection within the applicable period or withdraws the objection already filed, the creditor may apply to the registry for the payment order to be given enforceable effect. This application should be filed within two months after the objection period expires or after the debtor withdraws the objection. A payment order given enforceable effect has the same effect as a decision issued in adversarial proceedings.

A decision of the court of first instance may be appealed within one month, unless a special rule provides otherwise. If the value of the dispute does not exceed five hundred thousand African Financial Community francs in principal or fifty thousand African Financial Community francs in annual income, the court decides in first and last instance and no appeal is available.

A special rule applies to the decision given on an objection to a payment order. Such a decision may be appealed within fifteen days. If the decision is adversarial, the period runs from the date it is pronounced; if it is given in default, the period runs from service. The appeal and the appeal period suspend enforcement, unless the court has ordered provisional enforcement.

Final-instance decisions may be challenged before the Supreme Court of Togo within two months. Such a challenge does not suspend enforcement of the contested decision, except in cases provided by law. The applicant may request the President of the Supreme Court to suspend enforcement if enforcement could create an irreversible situation; such suspension may be made conditional on providing security.

If the creditor already has a foreign court decision or an arbitral award, recognition and enforcement of foreign decisions in Togo is a separate stage of debt collection. Under the rules on enforcement, foreign court decisions and arbitral awards may serve as enforcement titles when they have been declared enforceable by a court decision of the state in which they are invoked and that decision is not subject to a remedy that suspends enforcement.

After a court decision, a payment order given enforceable effect, an enforceable conciliation record or a decision declaring a foreign decision enforceable, the creditor may start compulsory execution against the debtor’s attachable assets.

Compulsory execution requires an enforcement title and a debt that is certain, quantifiable and due. Depending on the assets identified in Togo, the debt may be recovered by attachment of funds in bank accounts, attachment of claims against third parties, attachment of securities, attachment and sale of movable or immovable property, and other enforcement measures allowed by the applicable rules.

Debt recovery may also be connected with collective settlement of liabilities where the debtor’s financial condition requires such a mechanism. In Togo, this framework may include conciliation, preventive settlement, judicial reorganization or liquidation of assets, depending on the actual situation of the debtor’s business, cessation of payments and the prospects for continuing operations.

The creditor should protect its rights in such proceedings, file the claim where required, follow the actions of the court bodies and appointed administrator, and take into account the statutory order of payment. This is especially important where the debt is certain, quantifiable and due, but the debtor’s assets are not sufficient for ordinary payment of obligations.

If the debtor’s assets are insufficient to satisfy creditors, certain transactions made during the suspect period may be ineffective against the body of creditors. Such transactions may include gratuitous transfers of movable or immovable property, contracts in which the debtor’s obligations clearly exceed those of the other party, payment of debts that were not yet due, abnormal payment of debts already due, creation of security interests for pre-existing debts, and transactions with a party that knew about the debtor’s cessation of payments.

The ineffectiveness of such transactions may result in restitution of the asset, reimbursement of its value, loss of effect of a contract not yet performed, or return of improperly received amounts to the estate. Where judicial reorganization or liquidation of assets of a legal entity reveals an insufficiency of assets, the liability of legal or actual managers may also be examined under the applicable conditions.

If your case concerns international debt collection in Togo, Grandliga can support the creditor at every stage: analysis of the debt and the debtor, amicable recovery, preparation of the court strategy, application for a payment order, handling of appeals, recognition of a foreign decision, compulsory execution and actions related to collective settlement of liabilities. Our work is focused on structuring the case legally, selecting the appropriate recovery route and protecting the creditor’s rights up to the enforcement stage.

12.12.2024

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