Debt collection in Congo

This guide concerns debt recovery in the Republic of the Congo, also known as Congo-Brazzaville, and not the Democratic Republic of the Congo. The initial review should establish the origin and amount of the claim, the civil or commercial nature of the obligation and the debtor’s exact legal identity. It should also determine whether the claim is sufficiently supported by contracts, invoices, proof of delivery or service performance, correspondence, partial payments, acknowledgments of debt and information on any pending court or enforcement proceedings.

It is also important to establish where the debtor actually conducts its business — in Brazzaville, Pointe-Noire or another commercial area, whether the debt is connected with local delivery, services, transit, port operations, energy, construction, distribution or cross-border trade, and whether bank accounts, receivables, movable property, real estate or claims against third parties can be reached in Congo.

If the debtor continues business activity, its representatives can be identified and the documents support the claim, an out-of-court debt collection stage may be used before court proceedings. This stage is most useful when negotiations can obtain payment, fix the debtor’s position in writing or prepare the evidence needed for judicial debt collection.

At the amicable stage, the creditor may send a payment demand, specify the amount claimed, refer to the documents supporting the debt and propose a settlement solution that corresponds to the nature of the obligation. Such solutions may include full payment, an installment schedule, return of goods, set-off where the legal and contractual conditions are met, transfer of the obligation to another debtor or another commercially acceptable arrangement.

Communication with the debtor should be organized in a way that preserves the date, content, recipient details and the debtor’s response. Written replies, partial payments, promises to pay and signed settlement proposals may later become important evidence of the debt, the amount due, the debtor’s position and the calculation of the statute of limitations.

If the debtor refuses to pay, avoids communication, disputes the debt without sufficient grounds, breaches a payment promise, transfers assets or is already involved in other court or enforcement proceedings, the creditor may proceed to court debt collection through the competent procedure.

The Republic of the Congo is a member of the Organization for the Harmonization of Business Law in Africa. In debt cases, this legal framework works together with Congo’s national procedural law. National rules remain relevant for jurisdiction, filing, service of documents, ordinary court proceedings and remedies, while the uniform business law rules are central for commercial obligations, simplified recovery procedures, enforcement measures, security interests and collective proceedings.

This interaction is important in Congo-related commercial disputes because many claims are connected with Brazzaville, Pointe-Noire, transport, port operations, energy, construction, supply contracts and cross-border trade. The creditor’s strategy should therefore be built around the documents proving the debt, the debtor’s place of business, the competent court, the applicable procedure and the assets available for enforcement.

Before initiating judicial debt collection, the creditor must assess the applicable statute of limitations. For civil claims falling under the general national regime, actions are generally subject to a thirty-year limitation period. For obligations arising from commercial transactions between merchants or between merchants and non-merchants, the uniform commercial rules provide a five-year limitation period, unless a shorter special period applies to the specific obligation.

The effect of the expiry of the limitation period is considered when the debtor relies on it. Acknowledgment of the creditor’s right by the debtor, filing a court claim and enforcement action may interrupt the limitation period. For commercial obligations governed by the uniform commercial rules, the parties may shorten or extend the period by agreement, but it may not be reduced below one year or extended beyond ten years, and additional contractual grounds for suspension or interruption may be agreed.

Judicial debt collection in the Republic of the Congo may be carried out through ordinary court proceedings or through an order for payment. Ordinary proceedings are appropriate when the debtor disputes the debt, the evidence must be examined in detail, counterclaims are possible, the case involves several contractual obligations or the claim is not suitable for a simplified procedure.

The ordinary judicial procedure begins with the filing of an application in the registry of the competent court. After the filing, the clerk issues a summons to the plaintiff or the plaintiff’s representative, indicating the date of the hearing at which the case will be heard. A minimum of 30 days must elapse between sending the summons to the debtor and the hearing date. This period is extended to a maximum of three months if the defendant has no domicile or residence in Congo.

On the appointed day, the parties appear in court in person or through their representatives. If the defendant does not appear and the summons has been properly served, the case may be heard without the defendant. If the court does not have evidence of proper service, the defendant is summoned again.

At the beginning of the hearing, the parties may be invited to try to reach a settlement. If the parties agree, the case is referred to a settlement hearing; otherwise, it proceeds to the public hearing that follows. The settlement hearing is held behind closed doors. If the settlement is successful, an enforceable settlement record is drawn up. If no settlement is reached, the case proceeds to public hearing.

The case is heard in an adversarial manner. Each party is informed of the statements, written materials, arguments and documents submitted by the opposing party and is given an opportunity to respond. After hearing the parties and reviewing the evidence, the court may issue a decision if the relevant facts are clear and established.

If the facts are not sufficiently established, the court may order the personal appearance of the parties, witness examination, expert examination, verification of the authenticity of documents or other necessary evidentiary measures. After these measures are completed, the court holds the parties’ debates and issues a final decision.

The order for payment is a simplified recovery procedure used for certain monetary claims. It is available when the debt is certain, due and owing and arises from a contract, a negotiable instrument or an unpaid cheque. To start this procedure, the creditor files an application with the competent court and attaches documents proving the existence, amount and due status of the debt.

The application should state the amount claimed and provide a clear basis for the debt. If the creditor is not domiciled in the state of the competent court, the application should also indicate an address for service within that jurisdiction. The court examines the application and may issue an order for payment if the claim appears justified in whole or in part.

If the application is rejected in whole or in part, the creditor cannot appeal that rejection. The creditor may still pursue the debt through the ordinary judicial procedure, where the case will be examined in adversarial proceedings.

Copies of the application and the payment order must be served on the debtor within three months. If this service is not completed within that period, the order becomes invalid. After service, the debtor must either pay the debt or file an objection within ten days.

If the debtor files an objection, the registry or the competent officer summons the parties to a hearing within thirty days. The court first attempts conciliation within fifteen days. If conciliation succeeds, an enforceable conciliation record is drawn up and signed by the parties. If conciliation fails, the case proceeds to a public hearing, and the court decides the whole dispute within the framework of adversarial proceedings.

The decision issued after the objection replaces the original payment order. If no objection is filed within the ten-day period, or if the debtor withdraws the objection, the creditor may request the executory formula within the prescribed period. Once the order is endorsed with the executory formula, it becomes an enforceable title and may be used for compulsory enforcement.

A first-instance judgment in ordinary proceedings may be appealed to the Court of Appeal within one month. For parties present or represented when the judgment is delivered, the period runs from the date of the judgment. For parties who were not present or represented, the period runs from notification of the judgment.

A decision rendered in last instance may be challenged before the Supreme Court of Congo by a cassation appeal. The cassation period is two months from notification of the decision to the party in person or at domicile. If the party resides abroad, the cassation period is three months. A cassation appeal is directed at legal defects, such as violation of essential procedural forms, insufficient or contradictory reasons, violation of the applicable law or conflict between final decisions.

For a decision issued after an objection to an order for payment, the uniform simplified recovery rules provide a separate appeal period of fifteen days. The time limit for this appeal and the appeal itself suspend enforcement of that decision. In ordinary proceedings, an appeal period and an appeal may also affect enforcement, while a cassation appeal is suspensive only in specific cases or where the Supreme Court orders a stay to prevent irreparable harm.

If the creditor already has a foreign court decision, the recognition and enforcement of foreign judgments is a separate stage before compulsory measures are used in Congo. Under the uniform enforcement rules, foreign court decisions, foreign acts and arbitral awards may serve as enforceable titles after they have been declared enforceable by a final decision in the state where enforcement is sought.

For an international creditor, this means that a judgment obtained outside Congo does not automatically allow seizure of assets located in the Republic of the Congo. The creditor first needs a locally enforceable title and then may proceed to enforcement measures against bank accounts, receivables, movable property, real estate, securities, company rights or other attachable assets identified in Congo.

Once the court decision or another enforceable title has entered into force, the creditor may initiate enforcement proceedings. A judgment may be enforced within the thirty-year period applicable to personal actions under the national civil regime. In practice, the effectiveness of enforcement depends on whether attachable assets can be identified in Congo and whether the creditor can direct enforcement toward accounts, receivables, movable property, real estate, securities, company rights or assets held by third parties.

Before attachment and sale of movable property, the debtor is served with a summons to pay and at least eight days must pass before attachment can proceed. If the debtor does not pay, the enforcement officer may carry out attachment and sale in accordance with the applicable enforcement rules. If no attachable property is found, or if the property has no market value, a report may be drawn up stating that no attachable assets were found.

For larger claims, enforcement may also focus on real estate, business assets, receivables or rights against third parties. Sale of real estate follows special formalities before the competent court of the place where the property is located. This makes the asset search and the quality of the enforceable title essential parts of compulsory enforcement in Congo.

Another recovery route is the opening of bankruptcy or collective proceedings where the debtor’s financial situation justifies this procedure. In the Republic of the Congo, collective debt settlement is governed by the uniform insolvency rules applicable in the member states of the common business law system. A creditor may rely on this route when the claim is certain, liquid and due, and the debtor’s financial condition shows that ordinary payment of debts has become impossible.

Depending on the debtor’s situation, the procedure may lead to judicial reorganization or liquidation of assets. Judicial reorganization is relevant where the debtor’s business may still be preserved and liabilities can be treated within a collective framework. Liquidation is used where the debtor’s position no longer allows continuation of activity and the debtor’s assets must be realized for the benefit of creditors.

If the debtor’s property is insufficient to satisfy creditors, the insolvency framework allows certain transactions made during the suspect period to be challenged. These transactions include gratuitous transfers of property, agreements where the debtor’s obligations significantly exceed the obligations of the other party, early repayment of debts that were not yet due, provision of security for previously existing obligations and transactions made for consideration where the other party knew of the debtor’s financial insolvency.

Cancellation of such transactions allows assets or their value to be returned to the liquidation estate, increasing the amount available to satisfy creditors’ claims and cover the costs of the collective procedure. Where the insufficiency of assets is linked to management fault, management liability may also become relevant for persons who legally or actually managed the debtor’s business, including cases involving misuse of company assets, continuation of loss-making activity or conduct that contributed to the debtor’s insolvency.

Grandliga assists with debt collection in Congo at every practical stage of the case: review of documents and the debtor’s position, preparation of a payment demand, negotiations, ordinary court proceedings, order for payment, recognition of a foreign decision, enforcement against assets and participation in collective proceedings. The work is organized around the creditor’s evidence, the debtor’s activity in Brazzaville, Pointe-Noire or another part of Congo, and the practical possibility of converting an enforceable title into real payment.

23.12.2024

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