Conducting litigation in Nigeria

Litigation

What is the structure of the civil court system?

Nigeria is a federal republic consisting of 36 states and a Federal Capital Territory. Courts are organised at state, territory and federal levels. At state level, there are two tiers of civil courts. The lower tier consists of magistrates’ and customary courts. Appeals from these courts go to the High Court of the state or territory, which is the upper tier. The lower courts are, for these purposes, of very little importance. Decisions of state High Courts and of the High Court of the Federal Capital Territory can be appealed to a federal court of appeal, and from there to a federal Supreme Court, which is the final appellate court.

In addition to state High Courts, there is a Federal High Court. The jurisdiction of all the High Courts is set out in the Constitution of the Federal Republic, with the Federal High Court possessing exclusive jurisdiction in certain areas, such as admiralty, aviation, taxation, revenue, trademarks, patent rights and corporate matters. State High Courts have unlimited jurisdiction over all other matters in respect of which the Federal High Court does not have exclusive jurisdiction. In Lagos, the High Court is divided into five geographical judicial divisions, and into seven subdivisions according to subject matter. There is no maximum number of judges in the High Court, and there are presently 51 judges in the Lagos State High Court, although the High Court [Amendment] Bill, 2018 which is currently being passed, is seeking to increase the number of judges to 120 so as to cater for the population of Lagos.

The Constitution was amended a few years ago to elevate the Nigerian Industrial Court to the status of a superior court of record and, at the same time, to limit rights of appeal from decisions of that court. Appeals from final decisions of High Courts and interlocutory appeals on grounds of law alone may be pursued as of right, while interlocutory decisions may be appealed with leave on grounds other than law. Appeals from the decisions of the National Industrial Court as at 2017 can be pursued in the same circumstances as from other High Courts, and are not limited to appeals involving fundamental rights. Further appeals from the Court of Appeal to the Supreme Court on all decisions may be made where the grounds of appeal are grounds of law. In all other circumstances, appeals require the leave of the lower court. Where leave is denied, a further application for leave to appeal may be made to the appellate court.

Apart from the superior courts of record expressly created by the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the National Assembly or the House of Assembly of the State are also empowered to create specialist courts, with limited jurisdiction over specific subject matters. Some of these special courts are the Investment and Securities Tribunal for the purpose of adjudicating over capital market issues, and the Tax Appeal Tribunal for the purpose of adjudicating on all tax disputes arising from operations of the various tax laws. The House of Assembly of Lagos State also created a fast-track court to entertain liquidated monetary claims in excess of 100 million naira (approximately US$275,000).

What is the role of the judge and the jury in civil proceedings?

In Nigeria, which is a common-law jurisdiction, civil proceedings operate on the adversarial model. Parties to civil actions are required to present all the evidence and arguments in support of their cases before the court. The role of the judge in civil proceedings is to control the proceedings as well as to act as the arbiter of issues of law and fact. While the judge is empowered to ask questions of witnesses and counsel, the judge ought not to take any inquisitorial or investigative role in civil proceedings. There are no jury trials in Nigeria, be it in civil or criminal proceedings.

The appointment of the Chief Justice of Nigeria, other Supreme Court Justices, the President of the Court of Appeal, and the Chief Justice of the Federal High Court is made by the President on the recommendation of the National Judicial Council, subject to confirmation of the Senate. On the other hand, the Justice of the Court of Appeal and other Federal High Court Justices are appointed by the President on the recommendation of the National Judicial Council, without the requirement of the Senate’s confirmation. As for the Justices of State High Courts, they are to be appointed by the Governor of each state on the recommendation of the National Judicial Council. However, the appointment of the Chief Justices of each state shall be subjected to the confirmation of the House of Assembly of the State.

Appointments to the federal bench are made based on the federal character principle, as enshrined in the Constitution. The principle ensures that no tribe and region of the country is left out in the appointment. Aside from the federal character, there is no specific provision or written policy that encourages a gender-diversified bench. However, the Constitution strictly prohibits discrimination against any citizen on the basis of sex, religion, political opinion, place of origin or ethnic group.

What are the time limits for bringing civil claims?

There are time limits for bringing civil claims. These limits are set out by the statutes of limitation of each state and vary according to the subject matter of the claim. Most limitation periods are between three months and six years (12 years for claims for land) from the date the cause of action arose or ought to have been discovered, and may be waived either expressly or by conduct.

Are there any pre-action considerations the parties should take into account?

Parties are required, in most states, to complete some pre-action protocols or steps in advance of instituting action in civil cases, and to provide evidence that this has been done as part of the process of commencing actions. This normally requires notification of the claim and an invitation to the adverse party to settle the claim so as to avoid the action. Such notices will, in some jurisdictions, require that the availability of some ADR procedures be mentioned in the notice. In other instances, primarily in relation to actions against certain government agencies and officials, pre-action notices may be required. For instance, some government agencies such as the Asset Management Corporation of Nigeria, and several others, require a 30-day notice in writing before an action can be brought against them by any individual.

How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?

Civil proceedings are commenced by way of originating processes issued and served by the courts. There are various types of originating process. These include writs of summons, originating summonses, originating motions and petitions. In Nigeria, actions in which the facts are disputed must be commenced by writ of summons. The Lagos State High Court (Civil Procedure) Rules 2019 provides for a system under which originating process must be accompanied by a statement of the claim, a list of witnesses, list of documents to be relied on and the sworn statements of the witnesses. In Lagos, the writ of summons is to be served within six months from the date of issuance. A writ may be renewed for a further three months no more than twice, as no writ can be valid for more than 12 months from the date of issuance. A number of other state jurisdictions have now adopted this procedure, which was first introduced in Lagos State.

Courts (especially those in highly commercial cities such as Lagos and Abuja) do experience capacity issues, which substantially affects their ability to attend to cases in a timely manner. However, some jurisdictions have invested heavily in various alternative dispute resolution mechanisms, to relieve the courts of their congested caseload. In Lagos State, the ‘multi-door courthouse’ was created to encourage out-of-court settlement. The Court of Appeal Mediation Centre has also been launched, to create a two-path justice system in the Court of Appeal - litigation and mediation. Courts are constantly enjoined to refer parties to the multi-door courthouse to have disputes resolved out of court and expeditiously. Various courts have also reviewed their procedural rules and practice procedures for the purpose of encouraging resolution of disputes through other alternative dispute resolution mechanisms. For instance, the High Court of Lagos State (Civil Procedure) Rules 2019 makes it mandatory for parties to have taken steps to have their disputes resolved amicably prior to taking out a writ of summons and evidence of such steps must be included in the originating processes; otherwise, the action shall be dismissed as being null. Furthermore, the High Court of Lagos State (Civil Procedure) Rules 2019 introduced the Backlog Elimination Programme to give special attention to matters that have been lingering in courts for five years and above. The Court of Appeal Mediation Rules 2018 also provides that all appeals will be screened by the court to determine their suitability for mediation, and resolved at the centre if found appropriate.

What is the typical procedure and timetable for a civil claim?

The rules and procedural steps in civil claims throughout Nigeria are now more or less the same, with most jurisdictions having adopted, to varying extents, the procedural rules first introduced in Lagos. Below is a summary of the steps to be taken in a civil action commenced in the Lagos State High Court:

• the claimant prepares its originating process, statement of claim together with a list of documentary evidence, list of witnesses and their sworn written statements (front loading) and ensures service within six months, which is the lifespan of the writ;
• the defendant files and serves a statement of defence together with a list of documentary evidence, list of witnesses and their sworn written statements within 42 days of service of the statement of claim;
• the claimant shall respond to the statement of defence by filing and serving a reply on the defendant (optional) within 14 days;
• after issues have been joined and pleadings have been settled, there is a pre-trial conference, which is referred to as the Case Management Conference (CMC). This is where the issues are narrowed down, admissions are made and judgment may be given on the basis of admissions, discoveries and interrogatories and relevant documents are exchanged. CMC shall not exceed three months from its commencement;
• after the CMC, the case is set down for trial and transferred to another judge who did not conduct the CMC;
• trial takes place within one to 12 months after the CMC, depending on the number of witnesses, the length of the documents to be tendered and the schedule of the court;
• at the conclusion of the trial, the court must give its judgment within a maximum of 90 days; and
• unsuccessful parties may appeal to a court of appeal within three months of the date of a final judgment, and 14 days from the date of an interlocutory decision.

Parties may file motions at any time during the course of litigation, although the pre-trial procedure is designed to ensure that all matters requiring the filing of motions are disposed of in advance of a case proceeding to trial.

Can the parties control the procedure and the timetable?

The case management techniques introduced by the new civil procedure rules have, to a very large extent, placed control of timetables and procedures with the court. Nevertheless, parties may make applications to abridge the times stipulated for taking a step in the proceedings, and may also seek extensions of time within which to take steps. The court has discretion whether to grant such applications and as a general rule, such discretion is to be applied judicially and judiciously.

Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?

There is no specific duty to preserve documents and other evidence pending trial. Parties wishing to ensure the preservation of evidence in advance of trial may apply to the court for preservation orders. There is no obligation, in the absence of a specific request from the adverse party, to share relevant documents or disclose their existence.

Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?

Certain categories of documents are privileged as a result of statutory provisions. These include official communications to or from judicial and police officers, and unpublished official material relating to state affairs. It would appear that an in-house lawyer would also be able to take advantage of the general protection afforded to legal practitioners under the statute, in addition to any common law protection that the courts might recognise. This area has received little attention from the courts and, consequently, there are no judicial precedents upon which reliance might be placed. The privilege granted to lawyers is not absolute and does not extend to material, for example, made in furtherance of any illegal purpose, or disclosing the commission of crime or fraud by a third party.

Do parties exchange written evidence from witnesses and experts prior to trial?

The Civil Procedure Rules of most jurisdictions in Nigeria require parties to exchange written evidence prior to trial, and in most states such evidence must be delivered along with statements of the parties’ cases. This procedure is required for both expert witnesses and witnesses of fact.

How is evidence presented at trial? Do witnesses and experts give oral evidence?

Evidence at trial is, almost universally, by way of viva voce evidence. However, as a matter of practice, where a witness or expert has provided written testimony, that witness or expert will only be subjected to cross-examination by the adverse party. The trial commences with the claimant calling its witnesses, examination in chief takes place, afterwards such witnesses are cross-examined by the defendant and the claimant has the option to re-examine the witness where there may be any ambiguities during the cross-examination. Evidence in court is always conducted in accordance with the Evidence Act 2011.

What interim remedies are available?

Interim relief available under common law in the courts of England and Wales is generally available in the High Courts in Nigeria, applying rules and principles as are applied in England and Wales and other common law jurisdictions where such relief is available. Accordingly, injunctive relief, freezing, disclosure and seizure orders may be sought from superior courts in Nigeria.

What substantive remedies are available?

A wide range of substantive remedies is available. The most common type of remedy sought is an order for the payment of compensatory monetary damages. Interest, if claimed, may be awarded on money judgments. Punitive and aggravated damages are available in very limited circumstances. Behavioural remedies, such as permanent injunctions, may be granted by the court, which may also grant declaratory relief. Generally, any relief granted must be specifically sought by a party. However, the court may grant consequential relief even where such relief is not sought by the party.

What means of enforcement are available?

There are various means of enforcing judgments. Monetary judgments are enforceable by the seizure and sale of the assets (both fixed and immovable) of the judgment debtor. Garnishee (attachment) orders may be obtained against debtors of the judgment debtor. Contempt proceedings are also available to enforce non-monetary judgments and to compel compliance with orders of the court by the judgment debtor.

Are court hearings held in public? Are court documents available to the public?

Section 36(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) requires all proceedings of superior courts of record, including the announcing of decisions, to take place in public. Accordingly, members of the public are entitled, subject to the capacity of individual courtrooms, to attend court proceedings. This right of access does not, however, give members of the public an automatic right to obtain information in relation to court proceedings. A person desiring information regarding specific proceedings must comply with the prescribed application process, which is usually payment of a relatively small official fee.

Does the court have power to order costs?

The courts have power to order that parties bear the costs of their opponent. The general principle as contained in the rules of court is that costs follow the event, meaning that the successful party is entitled to recover its costs from the unsuccessful party. The court has the discretion to determine the amount of costs to be paid. This general principle is not absolute - in certain instances, the courts may award costs against the successful litigant to encourage parties to consider offers to settle and as a punitive measure against parties who refuse to accept reasonable offers. Costs are also awarded to compensate the successful party for its troubles and delay caused by interlocutory motions, and punitive costs are usually awarded to parties who suffer from unnecessary adjournments and delays because of the fault of an opposing party.

It must be emphasised, however, that under the current practice of courts in Nigeria, costs are very rarely awarded on a compensatory basis and are frequently nothing more than symbolic, bearing little or no relationship to the amount actually expended by a party in the prosecution of the case. In some jurisdictions, such as Lagos, there is a movement towards the award of more realistic sums as costs. However, in the appellate courts - a Court of Appeal and the Supreme Court - costs awarded continue to be no more than symbolic.

Are ‘no win, no fee’ agreements, or other types of contingency or conditional fee arrangements between lawyers and their clients, available to parties? May parties bring proceedings using third-party funding? If so, may the third party take a share of any proceeds of the claim? May a party to litigation share its risk with a third party?

‘No win, no fee’ arrangements are permitted in Nigeria, as are conditional fee arrangements. Under the 2017 Rules of Professional Conduct for Legal Practitioners, lawyers may enter into a contingent fee arrangement in respect of civil matters. Such arrangements are required to be ‘reasonable in all the circumstances of the case’ and must not be contrary to public policy, and it must be ‘reasonably obvious’, where the arrangement is in respect of a claim, that ‘there is a bona fide cause of action’.

There are no express provisions preventing third-party funding of litigation, or against third parties sharing the proceeds of a successful claim. Similarly, there are no provisions preventing a party to litigation sharing its risk with a third party. There is a school of thought that the common law crimes and torts of champerty and maintenance continue to exist in Nigeria. However, the authors do not share this view. The common law crimes of maintenance and champerty, if they were ever part of Nigerian law, ceased to be so upon the 1960 Constitution coming into effect and, not being written, are not part of Nigerian law under the 1999 Constitution. The common law torts of champerty and maintenance, in the opinion of the authors, no longer being actionable under the common law in England and Wales, are also not actionable in Nigeria. Therefore, it is submitted that, other than where the arrangements are contrary to public policy, third-party funding, the sharing of proceeds of successful claims and the sharing of litigation risks with third parties are all permitted in Nigeria. The formal use of third-party funding in Nigeria is, however, extremely rare, and the authors have no knowledge of any instance where third-party funding has been used. Legal practitioners, however, are prohibited from acquiring, directly or indirectly, an interest in the subject matter of litigation in which they or their firms are involved in conducting.

Is insurance available to cover all or part of a party’s legal costs?

The use of such insurance in Nigeria remains rare, if such cover has ever been used.

May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?

There are, at present, no provisions that permit class actions in Nigeria. Notwithstanding this, a number of actions have been instituted on behalf of persons claiming to belong to a class, and presenting claims on the basis that they are class actions. To succeed, the claimants must plead and prove that they have the same interests, and each claimant is required to establish his or her individual claim. The courts, however, appear to have disregarded this requirement, and there have been a number of cases, mostly related to claims in respect of alleged environmental damage, in which communities have been granted relief. This notwithstanding, we believe that Nigerian law, as it presently stands, does not provide for class actions because of the need for each claimant to plead and prove the loss or damage alleged to have been suffered. It appears that this issue has not been taken to the level of the Supreme Court.

On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?

Appeals may be pursued, as of right, from final orders of the High Court. The grounds of such appeal may be grounds alleging errors of law, fact, or a mixture of law and fact. Appeals against final decisions must be lodged in the registry of the High Court within three months of the decision. Appeals against interlocutory decisions may be pursued, as of right, where the error complained of is one of law, and where an injunction has been granted or refused. All other interlocutory appeals require the leave of the High Court or, where leave is denied in the High Court, a court of appeal. There are rights of further appeal from the court of appeal to the Supreme Court, as of right, where the error complained of is one of law. All other appeals require the leave of the court of appeal or of the Supreme Court.

An appeal against an interlocutory order must be made within 14 days from the date such order was made. Extensions are available, subject to the discretion of the court.

What procedures exist for recognition and enforcement of foreign judgments?

Nigeria has agreements for the reciprocal recognition and enforcement of foreign judgments with countries of the Commonwealth and other foreign countries: the Reciprocal Enforcement of Judgments Act of 1958 (the 1922 Ordinance) and the Foreign Judgments (Reciprocal Enforcement) Act of 1960 (the 1960 Act). In the past, the Lagos State High Court had declined to permit foreign judgments to be enforced by actions upon the judgment itself, even where there was no reciprocal agreement for the recognition and enforcement of judgments from Commonwealth countries. However, the Supreme Court has held that this position was erroneous, and it is now clear that foreign judgments are enforceable in Nigeria. Court judgments from certain Commonwealth countries can currently be registered and enforced in Nigeria under the 1922 Ordinance, and judgments from other countries are enforceable only within 12 months of their delivery (or such a longer period as may be granted by the court) under section 10(a) of the 1960 Act by virtue of statute. Such judgments may, however, be enforceable under common law by an action in court.

Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?

The rules of civil procedure of Lagos contain no provisions for the obtaining of oral or documentary evidence in Lagos for use in civil proceedings in other jurisdictions.