Background

Frequency of use

How common is commercial litigation as a method of resolving high-value, complex disputes?

Commercial litigation is the most common dispute resolution process in Nigeria for resolving high-value and complex disputes. Quite a number of complex and high-value disputes are also resolved through commercial arbitration, and anecdotal evidence suggests that commercial arbitration is fast becoming the preferred method of resolving such disputes in Nigeria.

Litigation market

Please describe the culture and ‘market’ for litigation. Do international parties regularly participate in disputes in the court system in your jurisdiction, or do the disputes typically tend to be regional?

Generally, disputes tend to be domestic: that is, between Nigerian parties. Participation of international parties occurs when there is a Nigerian connecting factor such as the place of performance or the location of the subject asset, or the domicile of one of the parties. Purely international disputes with no Nigerian connecting factor are rare in Nigeria.

Legal framework

What is the legal framework governing commercial litigation? Is your jurisdiction subject to civil code or common law? What practical implications does this have?

Commercial litigation is governed by the Constitution, statutes, rules of court, judicial decisions on litigation procedure as found in the procedural rules of the different levels of court, statutes on litigation procedure and practice directions. Nigerian commercial litigation was developed from English common law. Under this system, the law develops through the judges, who play a non-inquisitorial role in adjudication while the parties seek the outcome most favourable to their position. The jury system is not used in the administration of justice.

Bringing a claim - initial considerations

Key issues to consider

What key issues should a party consider before bringing a claim?

Before bringing a claim, a party should consider the following:

  • the limitation period for commencing the action;
  • the appropriate court with jurisdiction to entertain the claim;
  • the issuance of pre-action notices where government agencies and departments are involved;
  • where companies are involved, the correct names of the companies as registered at the Corporate Affairs Commission;
  • whether any alternative dispute resolution (ADR) mechanisms can be used or whether parties have agreed to submit to any ADR mechanism;
  • whether all available remedies have been exhausted before embarking on litigation;
  • the cost of litigation;
  • the possibility, practicalities and potential difficulties of enforcing the judgment; and
  • the civil procedure rules of the relevant court.
Establishing jurisdiction

How is jurisdiction established?

Jurisdiction is established by the Constitution as amplified by judicial decisions of the superior courts of record. Subject matter rules can be found in Chapter VII (7) of the Constitution, which prescribes the jurisdiction of the superior courts of record. The civil procedure rules of various courts determine how the court would exercise jurisdiction over foreign parties.

Jurisdictional challenges are available and are usually grounded on the court’s lack of subject matter jurisdiction or jurisdiction over the parties, or both. The principle of abuse of court process is available to stop a defendant from starting an overlapping process in another jurisdiction in Nigeria. With regard to foreign jurisdictions, generally speaking, there is no protection available to stop a defendant from starting an overlapping process in a foreign jurisdiction preferred by it.

Preclusion

Res judicata: is preclusion applicable, and if so how?

Preclusion is available in Nigeria, and it operates to prevent the re-litigation of a matter that has already been settled between the same parties by a competent court. Issue preclusion is also available to prevent the re-litigation of issues that have already been decided between the same parties by a competent court.

Applicability of foreign laws

In what circumstances will the courts apply foreign laws to determine issues being litigated before them?

The courts will not apply a foreign law to determine issues litigated before them unless the contract between the parties contains a valid choice of law clause in favour of the laws of a foreign jurisdiction. It must be noted, however, that where there is no settled Nigerian law position on an issue or matter, a settled foreign law position regarding the issue or matter may have a persuasive effect on the Nigerian court.

Initial steps

What initial steps should a claimant consider to ensure that any eventual judgment is satisfied? Can a defendant take steps to make themselves ‘judgment proof’?

A claimant is able to take initial steps such as filing an application at the relevant court to restrain a defendant from disposing of its assets or moving them outside the jurisdiction of the relevant court pending the determination of the dispute (known as a Mareva application). The claimant is also able to engage experts to make discreet enquiries about the location and quantum of the assets of the defendant. The claimant must, however, convince the court in its Mareva application that the claimant would likely dissipate its assets or move them outside the jurisdiction of the court. The claimant must also satisfy the requirements laid down by judicial authorities for obtaining an injunction, which are as follows:

  • that there is a prima facie case against the defendant and that the same is a serious question that needs to be tried by the court;
  • that the balance of convenience lies in the applicant’s favour;
  • that the applicant is not guilty of any delays in bring the said application;
  • that damages will not be sufficient compensation for the applicant for the remedy sought from the court; and
  • that the applicant is willing and able to give an undertaking as to damages.

A defendant is able to make itself judgment proof by hiding its assets or moving the same outside the jurisdiction of the relevant court.

Freezing assets

When is it appropriate for a claimant to consider obtaining an order freezing a defendant’s assets? What are the preconditions and other considerations?

Obtaining a freezing order is appropriate where there is a risk that the defendant may dispose of or remove its assets out of the jurisdiction of the court in order to frustrate any order or judgment that may be made against it. In such a circumstance, a claimant can apply to the court to attach such assets pending the hearing and determination of the suit.

To obtain such a freezing order, the applicant must satisfy the following preconditions:

  • it has a cause of action against the defendant, which is justiciable;
  • there is a real and imminent risk of the defendant disposing of its assets or removing them from the jurisdiction of the court and thereby rendering nugatory any judgment that the claimant may obtain;
  • it has made full disclosure of all material facts relevant to the application;
  • it has given full particulars of the assets within the jurisdiction;
  • the balance of convenience is on the side of the applicant; and
  • it is prepared to give an undertaking as to damages.
Pre-action conduct requirements

Are there requirements for pre-action conduct and what are the consequences of non-compliance?

In most states, the claimant is required to complete a pre-action protocol form before commencing a matter in court. In Lagos, for instance, a claimant is required to attach evidence of its prior unsuccessful attempts to settle a dispute before filing a claim. Should the claimant fail to comply with the pre-action protocol, the claim may not be accepted for filing.

Where government agencies or departments are involved, the statutes creating such agencies often provide for a pre-action letter to be served on the agency or department prior to the filing of a claim. Failure to comply with the provisions of such statutes will render the action incurably defective.

Other interim relief

What other forms of interim relief can be sought?

There is a wide variety of interim relief available to parties in a dispute. These reliefs are often granted by way of an injunction restraining a party from carrying out certain actions or directing a party to perform certain actions. Such relief includes but is not limited to:

  • interim injunctions;
  • interlocutory injunctions;
  • Mareva injunctions;
  • orders to account for profits;
  • orders to disclose;
  • orders for production of documents; and
  • Anton Pillar orders.
Alternative dispute resolution

Does the court require or expect parties to engage in ADR at the pre-action stage or later in the case? What are the consequences of failing to engage in ADR at these stages?

Parties are encouraged to resolve their dispute by utilising ADR mechanisms. The court is able to refer parties to ADR centres created by the courts (eg, the Lagos State Multi Door Court House).

Usually, the court refers parties to ADR at the commencement of proceedings and before trial. If parties are referred to ADR and are unable to resolve their dispute amicably, they will be referred back to court for trial.

At the pre-action stage, the consequence of attempting to engage in ADR is that the suit might not be accepted for filing at the court’s registry. During the course of proceedings before the court, the consequence of failing to comply with an order of court to engage in ADR might be the initiation of contempt proceedings against such a party. The courts are, however, always mindful that parties cannot be compelled to settle amicably.

Claims against natural persons versus corporations

Are there different considerations for claims against natural persons as opposed to corporations?

In respect of claims against corporations, there are certain considerations a claimant must pay attention to, such as:

  • the precise name of the corporation must be stated as registered at the Corporate Affairs Commission, which is the Nigerian companies registry;
  • originating processes must be served on the company through a director, secretary or other principal officer of the company or by leaving the same at the registered office of the company;
  • where a corporation is created by statute, relevant requirements contained in the statute must be considered;
  • for natural persons, processes (particularly originating processes) must be served on the person personally. The court is, however, able to order substituted service where there are compelling facts to show that personal service is impossible; and
  • the correct name of the natural person must be the name used; otherwise, the suit may be deemed incompetent.
Class actions

Are any of the considerations different for class actions, multi-party or group litigations?

The considerations are the same for class actions, multi-party and group litigations.

Third-party funding

What restrictions are there on third parties funding the costs of the litigation or agreeing to pay adverse costs?

There is no law that prohibits third-party funding.

Contingency fee arrangements

Can lawyers act on a contingency fee basis? What options are available? What issues should be considered before entering into an arrangement of this nature?

Lawyers are able to act on a contingency fee basis. The Rules of Professional Conduct in Nigeria provide that a lawyer may enter into a contract with his or her client for a contingency fee in respect of a civil matter undertaken or to be undertaken for that client, whether contentious or non-contentious, provided that:

  • the contract is reasonable in all the circumstances of the case, including regarding the risks involved and uncertainties of compensation; and
  • the contract is not vitiated by fraud, mistake or undue influence, or contrary to public policy, and, if the employment involves litigation, it is reasonably obvious that there is a bona fide cause of action.

Lawyers are prohibited from entering into contingency fee arrangements in criminal cases, and from acquiring a direct or indirect interest in the subject matter of a litigation that her or his firm is conducting. Lawyers are also under an obligation to advise clients on the effect of a contingency fee arrangement before entering into such an arrangement.

The claim

Launching claims

How are claims launched? How are the written pleadings structured, and how long do they tend to be? What documents need to be appended to the pleading?

Claims can be launched in four ways:

  • through a writ of summons;
  • through an originating summons;
  • through a petition; or
  • through an originating motion.

Pleadings are structured in numbered paragraphs, which must contain material facts setting out the cause of action and claim against the defendant. In pleading material facts, parties are not allowed to plead law, legal arguments or conclusions. There are no word or page limits for pleadings. Documents that the parties intend to rely upon at trial must be appended or attached to pleadings.

Serving claims on foreign parties

How are claims served on foreign parties?

Service of claims on foreign parties is guided by the Sheriffs and Civil Process Act and the rules of court. The position of the law in Nigeria is that no originating process shall be served on a foreign party or outside the jurisdiction without obtaining leave to issue and serve the claim on the foreign party or outside the jurisdiction. The process for obtaining leave is by filing an ex parte application with an affidavit exhibiting an unsigned copy of the claim. Upon securing the leave of the court, the claim can be served on the foreign party or outside the jurisdiction via registered post, courier or any other mode as may have been requested of and granted by the court in the applicant’s ex parte application.

Key causes of action

What are the key causes of action that typically arise in commercial litigation?

The key causes of action that arise in commercial litigation in Nigeria are breach of contract, negligence and other torts, banker-customer relationship disputes and real estate disputes.

Claim amendments

Under what circumstances can amendments to claims be made?

Usually, there are two stages in proceedings when a party can apply to amend its pleading, and in each of the stages different considerations apply. Before trial, an application to amend or add to a claim would be granted if made within a reasonable time before trial but would not be allowed if the amendment would introduce a new cause of action. After trial, an amendment may be allowed if evidence regarding it is already before the court. An amendment may also be allowed to make pleadings fall in line with evidence already before the court, the reasoning being that the amendment should be allowed so that the court would be at liberty to use evidence already before it to resolve the real issues in dispute. An application for an amendment of pleadings would not be allowed where, if granted, it would occasion injustice to the other party, where the applicant is acting in bad faith or where the applicant has done some injury by its blunder that cannot be compensated by costs.

Remedies

What remedies are available to a claimant in your jurisdiction?

There are a wide range of remedies available, including the following: monetary remedies (such as restitutio in integrum in cases of breach of contract, general damages, special damages and punitive or exemplary damages), declaratory remedies and perpetual injunctions. The general rule, however, is that the courts can only grant remedies sought by the claimant in its claim, except where the remedy is a consequential relief.

Recoverable damages

What damages are recoverable? Are there any particular rules on damages that might make this jurisdiction more favourable than others?

Damages recoverable in commercial litigation in Nigeria include general damages, special damages and punitive or exemplary damages.

General damages

These are the damages that the law presumes or implies in every breach and every violation of a legal right. They are the losses that flow naturally from the defendant’s wrongful acts, and the quantum need not be pleaded or proved by the claimant as these damages are generally presumed by law.

Special damages

This type of damages is not presumed by law. It must be specifically pleaded and proved strictly. In order for a claimant to be entitled to special damages, the details of the losses for the special damages must be clearly set out and established by evidence to the satisfaction of the court.

Punitive or exemplary damages

Punitive damages are awarded as a penalty to deter any flagrant, unconstitutional or reckless breach of duty.

Nigerian courts have treated damages as compensation that ought to be awarded to a successful claimant in deserving circumstances. Damages are awarded by the trial court based on credible evidence. However, where the trial court fails to award damages, the appellate courts are eminently qualified to make proper award as dictated by the evidence on record. Section 22 of the Supreme Court Act empowers the Supreme Court of Nigeria to award damages to deserving parties. This principle was given the force of law by the Court in the case of Baliol (Nigeria) Ltd v Navcon Ltd (2010) 16 NWLR (Pt 1220) 619 SC at 633. Furthermore, where an award of damages is improperly made by a trial court, the appellate court can review the same. In such circumstance, the review of the damages can be upwards or otherwise. Awards of damages for breach of contract are at the discretion of the court unless special damages are pleaded and satisfactorily proved.

There are no rules on damages that make Nigeria more favourable than other jurisdictions.

Responding to the claim

Early steps available

What steps are open to a defendant in the early part of a case?

Generally, the defendant files a statement of defence in answer to the statement of claim. In the statement of defence, the defendant can plead the following:

  • traverse: this is a denial of any fact in the statement of claim;
  • admission: this is an admission of any fact in the statement of claim;
  • confession and avoidance: the defendant can admit to any fact but proceed to avoid the effect of the admission by raising new facts that result in a different consequence to the admission;
  • set-off: this is a monetary claim pleaded by the defendant in defence of the claimant’s monetary claim;
  • counterclaim: this is a separate and independent cross-action included in a statement of defence, where the defendant has a cause of action against the claimant; or
  • objection on a point of law: the defendant may plead a point of law in the statement of defence that the defendant intends to raise before or after the trial of the suit.

The other options available to the defendant are as follows:

  • filing of a notice of preliminary objection: the notice can be filed to challenge the jurisdiction of the court to hear the suit on various grounds such as lack of locus standi, lack of subject matter jurisdiction, abuse of court process and failure to comply with a condition precedent;
  • third-party notice: this notice is served on a third-party defendant where a defendant claims against a party not already a party to the action that he or she is entitled to contribution or indemnity; or where he or she is entitled to any relief or remedy relating to, or connected with, the original subject matter of the action, and substantially the same as the relief or remedy claimed by the claimant; or that any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant, and should properly be determined not only as between the plaintiff and defendant but as between the plaintiff and the defendant and the third party, or between any or either of them;
  • filing an application for joinder: if the defendant is of the opinion that the necessary parties are not before the court, the defendant can file an application joining another party to the suit; or
  • proposing settlement.
Defence structure

How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?

In a statement of defence, the defendant pleads facts that form the basis of its defence against the claim of the claimant; in other words, the grounds upon which the claim should not be granted. The rules of court usually stipulate the time limit within which the defendant must file and serve its defence. For example, the Lagos State High Court (Civil Procedure) Rules 2019 provide that a statement of defence must be filed and served within 42 days of service of the statement of claim on the defendant by the claimant. Documents that the defendant intends to rely upon at the trial must be appended or submitted along with the statement of defence.

Changing defence

Under what circumstances may a defendant change a defence at a later stage in the proceedings?

A defendant seeking to change its defence must file an application for amendment. The defendant may change its defence if it intends to rely on different facts or grounds for refuting the claimant’s claim or if it intends to rely on further and better particulars or pleadings. Under the civil procedure rules of most High Courts in Nigeria, a defendant is able to change its defence twice upon commencement of trial.

Sharing liability

How can a defendant establish the passing on or sharing of liability?

A defendant passes on or shares liability with a third-party defendant (or more than one) by filing and serving a third-party notice on a third-party defendant. The defendant must, however, establish through its pleadings and cogent evidence that the third-party defendant ought to share or assume liability for the claim.

Avoiding trial

How can a defendant avoid trial?

A defendant can avoid trial through:

  • settlement: the parties can decide to settle the matter out of court and file the terms of settlement in court, which will be entered as the judgment of the court in the suit and will therefore be enforceable; or
  • a preliminary objection: depending on the circumstances of the case, the defendant can apply to dismiss the case without a trial on the grounds that the court does not have jurisdiction to hear the matter; that the matter constitutes an abuse of court process; or that the matter discloses no reasonable cause of action.
Case of no defence

What happens in the case of a no-show or if no defence is offered?

Where the defendant fails to show up or file a defence in response to the claimant’s claims, the claimant can apply to the court for a judgment in default of appearance. Depending on the nature of the claim, the claimant might be required to make an application for the matter to be set down for trial and go ahead with proving its case before judgment is given notwithstanding the absence of a defendant or a defence. Where the claimant’s claim is for declaratory relief, for example, the matter must be set down for trial and the claimant must establish its claim notwithstanding the absence of a defendant or defence.

Claiming security

Can a defendant claim security for costs? If so, what form of security can be provided?

Under the civil procedure rules of most High Courts in Nigeria, a defendant is able to make an application to the court for the claimant to provide security for its costs, especially in a case where the claimant resides outside the jurisdiction. The form and amount of security are at the discretion of the court.

Progressing the case

Typical procedural steps

What is the typical sequence of procedural steps in commercial litigation in this country?

The typical sequence of procedural steps in commercial litigation in Nigeria is as follows:

  • the claimant institutes the action by filing the originating processes (writ of summons, statement of claim, a list of witnesses to be called at trial, sworn written statements of the witnesses and copies of every document to be relied on at the trial) in court and serving them on the defendant;
  • the defendant, where it intends to defend the action, will file a statement of defence, which will be accompanied by a list of documents to be relied upon, plus a list of witnesses and their sworn written statements. These will then have to be served on the claimant within the period stipulated by the rules of court;
  • the claimant has a right to file a reply to the statement of defence within 14 days of the service of the statement of defence;
  • parties are at liberty to file applications seeking various types of relief in the course of proceedings;
  • during or after the exchange of pleadings, the court fixes a hearing date for the case management conference, where:
    • all pending interlocutory applications are heard and determined;
    • the judge tries to resolve the dispute between the parties;
    • discoveries and inventories are exchanged; and
    • contested issues are narrowed down;
  • in the event that the court is unable to resolve the dispute at the case management conference, the case file is returned to the administrative judge for reassignment to a trial judge;
  • the trial commences with each party calling his or her respective witnesses, who will be examined-in-chief, cross-examined and reexamined accordingly. Documents will also be tendered through the witnesses and admitted into evidence by the judge in accordance with the rules of admissibility under the Evidence Act;
  • upon close of trial, parties will be ordered by the court to file their respective final written addresses, which will be adopted by the parties at the next adjourned date;
  • following the adoption of final addresses, judgment will be delivered within 90 days of adoption of final written addresses or at a later date as communicated to the parties by the court;
  • upon delivery of judgment, the judgment debtor is entitled to file a notice of appeal against the judgment of the court either as of right or with the leave of the court depending on the grounds of appeal and the nature of the judgment. The judgment debtor is also able to make an application to the court to stay the execution of the judgment of the court pending the determination of the appeal; and
  • the judgment creditor also files post-judgment applications to enforce the judgment of the court.

The above sequence applies to suits commenced by writ of summons. Suits commenced by other modes of commencement, such as originating summons or petitions, are heard on their merits or on the basis of the facts deposed in the contending affidavits filed by the parties, without the need for a trial.

Bringing in additional parties

Can additional parties be brought into a case after commencement?

Yes, additional parties can be brought into a case after commencement of an action. This can be done upon the application of the claimant, defendant or a party seeking to join.

Consolidating proceedings

Can proceedings be consolidated or split?

The civil procedure rules of most High Courts in Nigeria provide for the consolidation of separate proceedings before the same court. With the leave of the court, proceedings can also be split or bifurcated upon the successful application of one of the parties.

Court decision making

How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?

In civil proceedings, the court considers the allegations or averments made by each party and whether cogent evidence was provided in support of the allegations. The court weighs the evidence offered by each party and gives judgment to the party whose evidence is weightier and more credible.

Generally, the burden of proof in civil proceedings is imposed by law on the party who would fail if no evidence at all were given on either side. The onus of proof does not, however, remain static, but shifts from side to side. On the standard of proof, in civil proceedings, the burden of proof shall be discharged on the balance of the probabilities or preponderance of evidence.

How does a court decide what judgments, remedies and orders it will issue?

The court considers the relief sought by the party in whose favour it has resolved the issues raised in the suit. A judgment can only be for what is claimed, or less, but never more. The court cannot grant judgments, remedies or orders beyond what is claimed by the parties.

Evidence

How is witness, documentary and expert evidence dealt with?

Under Nigerian law, all these forms of evidence are admissible and dealt with at trial. Witness evidence is in the form of witness statements on oath, which should contain facts and not legal conclusions or opinions. The witnesses are required to adopt their statements on oath as their testimony. Witnesses are cross-examined by opposing counsel to test the veracity of the contents of their witness statements. The same rules are applicable to expert witnesses, save that experts are expected to provide opinions and not factual evidence.

Parties are able to use the evidence process to achieve tactical advantages by objecting to evidence offered by the opposing party that is not in compliance with the requirements stipulated in the Evidence Act.

Documents must be tendered through witnesses save for certified true copies of public documents, which can be tendered directly by counsel. Original copies of documents are preferred by the courts. Photocopies are, however, admissible provided appropriate foundation is laid for their admissibility in accordance with the provisions of the Evidence Act. With regard to documentary evidence, where any of the documents is computer-generated, for it to be admissible it must be shown that the conditions in subsection (2) of section 84 of the Evidence Act 2011 are satisfied in relation to the statement and computer in question.

Documentary evidence is the best kind of evidence and is the proof of its contents; hence, no oral evidence will be allowed to discredit or contradict the contents thereof, except where fraud is pleaded. Oral evidence on the other hand is inadmissible to contradict the contents of a document. According to the Supreme Court in Egharevba v Osagie (2010) All FWLR (Pt 513) 1255 SC, documentary evidence is more reliable than oral evidence and is used to test the credibility of oral evidence. Documents when tendered and admitted in court are like words uttered, and so speak for themselves. They are more reliable and authentic than words as the documents are neither transient nor subject to distortion and misrepresentation, but remain permanent.

How does the court deal with large volumes of commercial or technical evidence?

Generally, it is the responsibility of the party adducing such evidence to assist the court by calling an expert to aid the court with understanding the technical aspects of the evidence and identifying the vital pieces of evidence within the pool. In other words, the onus of calling an expert to interpret or assist with such evidence lies on the party whose case would fail if such evidence is not comprehended by the court.

Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?

A witness resident in Nigeria cannot be compelled to give evidence in a foreign court unless such a witness is subject to the jurisdiction of the foreign court. Equally, a foreign witness cannot be compelled to give evidence in Nigeria unless that witness is subject to the jurisdiction of the Nigerian courts.

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

Witness and documentary evidence are tested during cross-examination. The court also observes the demeanour of witnesses and examines the appearance and contents of documents before ascribing probative value to them.

Time frame

How long do the proceedings typically last, and in what circumstances can they be expedited?

Generally, the longevity of proceedings before the High Courts is dependent on the peculiarities of the dispute and the attitude of the parties, their counsel and the judge. The average duration of proceedings, however, is 18 to 24 months.

The civil procedure rules of Lagos and Kano states provide for the expedition of proceedings through the fast-track procedure under the following circumstances:

  • the action is commenced by writ of summons; and
  • an application is made to the registrar by a claimant or counterclaimant; and
  • the claim is for a liquidated monetary claim or counterclaim in a sum not less than 100 million naira; or
  • the claim involves a mortgage transaction, charge or other securities; or
  • the claimant is suing for a liquidated monetary claim and is not a Nigerian national or resident in Nigeria, and such facts are disclosed in the pleadings.
Gaining an advantage

What other steps can a party take during proceedings to achieve tactical advantage in a case?

A party to an action can achieve tactical advantages in a case through any of the following steps:

  • by making an application to the court to strike out the suit (or any process filed by the adverse party) on the grounds of a deficiency in the same, albeit a deficiency that can be cured;
  • by making an application to the court to dismiss the matter on the grounds that the claimant has abused the process of the court. Categories of action that constitute an abuse of the process of the court are not closed; however, a party that employs the process of the court to irritate, harass or annoy the other party might have its matter struck out for constituting an abuse;
  • by making an application to the court to enter default judgment against the defendant for its failure to enter an appearance in the suit or to file a defence. This does not, however, apply to claims for declaration of a right, declaration of title to land and recovery of premises, which must proceed to trial before judgment is given; or
  • by making an application to the court for summary judgment against the defendant, where a claimant believes that the defendant has no defence to the suit. Summary judgment is a judgment on the merits of the case and can only be set aside on appeal.
Impact of third-party funding

If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?

Third-party litigation funding is legitimate in Nigeria and such funding would have no negative impact on the case.

Impact of technology

What impact is technology having on complex commercial litigation in your jurisdiction?

Technology has had a significant impact on commercial litigation in Nigeria, particularly in Lagos and Abuja, where the civil procedure rules of the High Courts encourage parties to employ the use of technology in the course of proceedings. Parties are able to file and serve processes and documents electronically, and the courts have developed processes to manage such electronic documents. Case materials, however, cannot be accessed electronically by non-court officials. Fact and expert witnesses are also not able to give testimony via video link as the court infrastructure does not support this. However, some judges in Lagos court have been known to listen to the testimony of foreign-domiciled witnesses via Skype.

The usual practice, though, is that witnesses must attend court to give evidence at all times.

Parallel proceedings

How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?

Under Nigerian law, criminal proceedings take precedence over civil proceedings, which must be stayed pending the determination of the criminal proceedings. Where there are parallel proceedings in the above regard, the steps to be taken by a party would depend on the circumstances of both proceedings. Private prosecutions are possible where a private party is able to obtain the fiat of the Attorney-General of the state or of the federation, as the case may be.

Trial

Trial conduct

How is the trial conducted for common types of commercial litigation? How long does the trial typically last?

The usual conduct of the trial in commercial litigation cases in Nigeria is outlined as follows:

  • the claimant’s witnesses are called one after the other and examined-in-chief by adopting their witness statements on oath and tendering documents referred to in their witness statements;
  • the claimant’s witnesses are cross-examined by the defendant’s counsel;
  • the claimant’s witnesses are reexamined by the claimant’s counsel to clarify any ambiguities in their testimonies;
  • the claimant applies to close its case;
  • the defendant opens its case by calling its witnesses one after the other, who would be examined-in-chief by adopting their witness statements on oath and tendering documents referred to in their witness statements;
  • the defendant’s witnesses are cross-examined by the claimant’s counsel;
  • the defendant’s witnesses are reexamined by the defendant’s counsel to clarify any ambiguities in their testimonies;
  • the defendant applies to the court to close its case and the court adjourns for the adoption of final written addresses; and
  • written addresses are filed, with the defendant’s counsel filing first and the claimant’s counsel filing 21 days after having been served with the defendant’s final address. The defendant is at liberty to file a reply address to the claimant’s final address within 14 days of being served with the claimant’s address.

The length of trial will typically depend on the number of witnesses, the availability of the witnesses to testify as scheduled, the volume of the documents to be tendered and the court’s schedule. Trial will typically last for three to eight months.

Use of juries

Are jury trials the norm, and can they be denied?

Jury trials are not available in Nigeria.

Confidentiality

How is confidentiality treated? Can all evidence be publicly accessed? How can sensitive commercial information be protected? Is public access granted to the courts?

All documents and processes filed and evidence adduced in the course of proceedings are accessible to members of the public, who are able to make an application to the court to obtain certified true copies of such documents upon payment of the official fees.

To protect access to sensitive commercial information, parties are able to make an application to the court to restrict access to such information. The court has full discretion to allow or refuse such an application; however, where such order Is granted, it would be difficult to Implement.

The courts are accessible to members of the public, who are able to attend any court proceedings and also to obtain certified true copies of documents filed in any matter.

Media interest

How is media interest dealt with? Is the media ever ordered not to report on certain information?

The 1999 Constitution of the Federal Republic of Nigeria (as amended) guarantees freedom of expression and of the press. However, this freedom is not absolute and may be derogated from where it is reasonably justifiable for the purpose of maintaining the authority and independence of courts. Accordingly, there are restrictions and guidelines put in place to guide the media in reporting matters that are before the court.

Proving claims

How are monetary claims valued and proved?

Parties are expected to lead evidence to establish the value of their monetary claims through their witnesses and documents. The court would assess the evidence adduced by each party and arrive at a decision accordingly. Split trials for the purposes of assessing damages are not commonplace in Nigeria.

Post-trial

Costs

How does the court deal with costs? What is the typical structure and length of judgments in complex commercial cases, and are they publicly accessible?

Generally, costs are awarded at the discretion of the court. This discretion must be exercised judicially and judiciously. Costs are typically awarded on the basis of the costs follow the event principle. In Nigeria, costs awarded are not actual costs, but a nominal sum awarded as a ‘token of victory’.

The typical structure of a judgment of court in Nigeria is outlined below:

  • an introduction and brief history of the case;
  • a reproduction of the positions of each party;
  • an ascertainment of the legal issues to be determined in the case;
  • an evaluation of the evidence adduced during the trial and an elucidation of the relevant legal principles and legal arguments offered by both parties;
  • a finding on liability and quantum of damages based on the pleadings and evidence before the court; and
  • the date and signature of the judge.

The length of a judgment depends on the circumstances of the case but is typically 20 to 30 pages. Relevant factors include, but are not limited to, the number of witnesses called by each party, the number and technicality of issues raised for determination and the volume of documents tendered. Once delivered, a judgment forms part of the records of the courts that anyone can have access to upon application and approval by the court.

Appeals

When can judgments be appealed? How many stages of appeal are there and how long do appeals tend to last?

In commercial litigation, an appeal or leave to appeal shall be filed within three months of the date the judgment was delivered. From the Magistrate Court there are three stages of appeals, which are as follows: appeals from the Magistrate Court to the High Court; appeals from the High Court to the Court of Appeal; and appeals from the Court of Appeal to the Supreme Court, which is the apex court.

Appeals at each stage tend to last for two to three years. This, however, depends on the diligence of the parties in prosecuting the appeal and the court’s schedule.

Enforceability

How enforceable internationally are judgments from the courts in your jurisdiction?

Judgments delivered by superior courts in Nigeria can be enforced in other Commonwealth countries, British protected territories and territories under mandate or trusteeship of the United Nations as accepted by the president of Nigeria.

How do the courts in your jurisdiction support the process of enforcing foreign judgments?

In Nigeria, the courts are very supportive in enforcing local and foreign judgments. The courts support the enforcement process by narrowly construing the grounds upon which a judgment debtor can resist enforcement.

Other considerations

Interesting features

Are there any particularly interesting features or tactical advantages of litigating in this country not addressed in any of the previous questions?

The cost of litigation in Nigeria is affordable in comparison with other notable jurisdictions such as London, New York and Paris.

Jurisdictional disadvantages

Are there any particular disadvantages of litigating in your jurisdiction, whether procedural or pragmatic?

In Nigeria, there are certain disadvantages of litigating as follows:

  • time: the pace of the judicial process is often slow. Long adjournments and the possibility of frivolous interlocutory appeals can significantly delay the hearing and determination of a matter;
  • difficulty in enforcement: the enforcement process in Nigeria is not efficient enough to guarantee the successful recovery of the judgment debt from the judgment debtor. Judgment debtors are also able to delay the enforcement process through multiple levels of appeals; and
  • costs regime: the costs regime is inadequate to discourage the filing of frivolous actions. A party is not able to recover the actual costs of litigation from the losing party. Professional fees of counsel are also not recoverable from the losing party. Costs are often awarded at a nominal sum as a token of victory to the successful party.
Special considerations

Are there special considerations to be taken into account when defending a claim in your jurisdiction, that have not been addressed in the previous questions?

No.

Updates and trends

Key developments of the past year

What were the key cases, decisions, judgements and policy and legislative developments of the past year?

Key developments of the past year56 What were the key cases, decisions, judgments and policy and legislative developments of the past year?

A key decision from last year is the decision of the Supreme Court in Centre for Oil Pollution Watch v Nigerian National Petroleum Corporation. In this case, the Supreme Court liberalised the interpretation of the locus standi rule and permitted a non-governmental organisation (NGO) to file an action challenging the degradation of the environment caused by the respondent’s pipeline, which ruptured and spewed its entire contents into the surrounding streams and rivers. Prior to this decision, NGOs seeking to challenge the degradation of the environment were usually caught up by the locus standi rule, which permitted only persons directly affected by the environmental damage to file an action in court. This decision paves the way for NGOs and other public interest groups to file actions challenging damage caused to the environment by corporations even when they are not directly affected by the damage.