Snapshot: evidentiary issues and damages in product liability litigation in Nigeria

Evidentiary issues and damages

What is the nature and extent of pretrial preservation and disclosure of documents and other evidence? Are there any avenues for pretrial discovery?

In states where reformed rules have been adopted, the rules of court provide for mandatory preliminary hearings called ‘pretrial conferences’, or ‘case management conferences’ in Lagos state (Order 25 of the Lagos Rules). The pretrial or case management conference is presided over by a judge and all interlocutory matters, including discovery, are concluded at this stage.

Relevance is the basis for discovery under Nigerian law. An application may be made, usually within seven days of the close of pleadings, for discovery on oath of any document that is or has been in the possession, custody or control of the other party relating to any matter in question in the suit. This procedure permits general discovery requests, provided that they are relevant to facts in issue in the case. The other party has a period of seven days to file an answer on oath exhibiting copies of the requested documents. If a party intends to object to the production of the requested documents, such a party may refuse to provide the requested documents and state the grounds for refusal in an affidavit – for example that the documents are not relevant to the facts in issue, as disclosed in the pleadings filed in the action, or that they are privileged.

The rules of court also provide for the delivery of interrogatories in writing on either party for his or her examination on oath on any issue related to the case, usually within seven days of the close of pleadings. The other party is required to file an answer on oath within seven days and in that answer may object to answering any of the interrogatories on the ground that it is scandalous, irrelevant or tantamount to fishing. The objection would be heard at the pretrial or case management conference.

An application for discovery may be refused if it is considered unnecessary. In cases of default, the court may order the attachment of a party for disobedience. Counsel may also be the subject of attachment for disobedience if it is shown that he or she neglected, without reasonable excuse, to give notice of the discovery request to his or her client.

How is evidence presented in the courtroom and how is the evidence cross-examined by the opposing party?

At trial, evidence is presented under examination-in-chief by the witness to a party on whose behalf evidence is proffered. During the examination-in-chief, introductory questions are directed at the witness and he or she is required to adopt his or her written statement on oath filed at the commencement of the suit. Aside from introductory questions, only questions that lay a foundation for the tendering of pleaded documentary evidence are permitted.

Counsel to the opposing party has a right to cross-examine the witness for the purpose of testing his or her veracity or impugning his or her credibility. Thereafter, if necessary, counsel to the party that called the witness may re-examine him or her solely for the purpose of clarifying any ambiguity arising during cross-examination.

May the court appoint experts? May the parties influence the appointment and may they present the evidence of experts they selected?

The court has the power to appoint an expert where it would be in the interest of justice to do so. Such an appointment would be made to assist the court in reaching a just determination of the dispute between the parties. This occurs where expertise is required in a particular field of science or foreign law relevant to the case. The court has the discretion to make the appointment suo motu or to hear parties on the appointment. The expert may present evidence by oral testimony and written report. When appointed, the expert is a witness of the court and not that of either party to the proceedings. Parties to the suit may cross-examine the expert only with leave of the court.

Parties may appoint experts to present evidence on their behalf. Such evidence is usually presented in the form of oral testimony and may be accompanied by a written report. Generally, the role of an expert witness is to assist the court in gaining a proper understanding of the issues that arise in the suit that fall within his or her area of expertise, regardless of the party who selected him or her to give evidence.

The procedure for examining, cross-examining or re-examining an expert witness is the same as for any other witness. The evidence of an expert must be proffered by way of a written statement on oath and the academic qualifications and experience of the expert must be set out therein. It is usual for pleaded documentary evidence in the nature of an expert opinion prepared by the expert to be tendered in evidence through him or her. The testimony of the expert is not binding on the court, as it is the duty of the court to determine the issues in question by, inter alia, evaluating the testimony of the expert in relation to the pleadings and the totality of evidence presented by the parties and generally, from the perspective of common sense. It is the duty of the expert to provide the court with relevant parameters within his or her field of expertise by which the court may test his or her opinion.

What types of compensatory damages are available to product liability claimants and what limitations apply?

The injured party in a product liability claim is entitled to damages for bodily injury, such as pain or illness, and for psychological injury, such as agony, discomfort or negative feeling. Damages may also either be purely economic, such as loss of income, loss of or damage to property, loss of business or expectation of profit; or non-economic, such as loss of life expectancy. In addition, the injured party may also recover the cost of medical expenses and purchase of a defective product. On this point, see the decision of the Supreme Court in Okwejiminor v Gbakeji [2008] 5 NWLR (Pt 1079) 172.

The guiding principle in the award of damages is the doctrine of restitutio in integrum. This means that the plaintiff would be awarded such monetary compensation as will restore him or her to his or her former position prior to the injury suffered, to such extent as is possible.

Under Nigerian law, damages are categorised generally as either ‘general’ or ‘special’. General damages represent compensation for the direct natural or probable consequence of the action complained of by the claimant. Special damages represent compensation for the exact or precise loss of the claimant, as strictly pleaded and strictly proven by the claimant adducing credible evidence at the trial. There are other categories of damages such as nominal, exemplary, prospective or anticipatory damages.

There is no statutory limitation on the quantum of damages to be awarded. However, there are a few common law limitations that affect the wholesale application of the doctrine of restitutio in integrum. These limitations are that:

• a judge, eschewing sentiments, is expected to be fair and reasonable in the award of damages, having regard to the pleadings and evidence placed before him or her (see the decision of the Supreme Court in Lagos State City Council v Unachukwu (1978) 1 ANLR 92);
• a judge is required to give reasons for an award of damages based on his or her assessment of the quantum of such damages from evidence adduced before him or her (see Lagos State City Council);
• the award of damages must be on a case-by-case basis, having regard to the peculiar facts and circumstances of each case;
• although, as a matter of law, there may be a presumption that general damages flow from a wrong complained of by the claimant, he or she must establish the quantum by evidence; and
• in negligence claims, once a claimant has established that the defendant owes him or her a duty of care and is in breach of that duty, which has caused damage, then he or she must demonstrate that the damage was sufficiently proximate to the breach to entitle him or her to compensation. The claimant must also show that the damage was reasonably foreseeable; otherwise, this limits the extent of compensation accruable to the claimant.

Are punitive, exemplary, moral or other non-compensatory damages available to product liability claimants?

Punitive or exemplary damages are awarded sparingly, only in cases where the injury caused to a claimant is one arising from an intentional or malicious act of the defendant.

The Supreme Court held in Odogu v AG Federation & Others [1996] 6 NWLR (Pt 456) 508 that punitive or exemplary damages are only awarded where they are specifically pleaded by the claimant, and the claimant must establish that the defendant acted with malicious intent, recklessness, cruelty or with flagrant disregard of the law (see Odiba v Azege [1998] 9 NWLR (Pt 566) 370 at 382 B-F).

May a court issue interim and permanent injunctions in product liability cases? What other forms of non-monetary relief are available?

Nigerian courts have inherent and statutory judicial powers to grant interim, interlocutory and perpetual injunctions generally and in respect of product liability claims. The various rules of court also confer discretion on the court to grant interim and interlocutory injunctions. Case law, however, requires that such discretion must be exercised judicially and judiciously on the basis of cogent and sufficient material being placed by the applicant before the court.

The courts also have judicial power to grant a declaration of the rights or other legal relations of the parties in their final judgment. This is a non-monetary relief and it is not enforceable by the successful party. The claimant must adduce credible evidence for a court to grant a declaration in his or her favour and such relief cannot be obtained by the claimant relying on any defect or weakness in the case of the defendant. A claimant must rely on the strength of his or her case to secure a declaration.