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.