Introduction
For most of the history of our received civil procedure, a person who stood wholly outside a dispute, who had done no wrong and owed no duty, could not be drawn into a separate action brought solely to extract information from him. This was the mere witness rule: information could not be obtained by discovery from one who would in due course be compelled to give that same evidence as a witness at trial.1
Discovery was auxiliary, dependent on an existing cause of action, and no freestanding suit lay merely to gather evidence or unmask a wrongdoer from a stranger to the controversy.
The rule answered two main concerns: preventing harassment and preserving the structure of litigation. The first, allowing any person with a tangential link to an issue to be sued or examined merely because he might know something useful would license oppressive fishing expeditions against innocent bystanders. The second, preserving the ordinary architecture of litigation, in which discovery binds the parties while witnesses are compelled only within proceedings already on foot.
It is this deadlock that has driven courts, increasingly in Nigeria, to compel disclosure from third parties mixed up in a wrong. This article examines that departure as it relates to private persons, corporations, and government agencies.
The Traditional Mere Witness Rule: Origin, Rationale, and Limits
Discovery, the compelled disclosure of facts or documents before or during trial, was unknown to the old common law courts of England. Relief lay only in the Court of Chancery, through the bill of discovery, a separate suit in equity whose sole office was to extract from an opponent, or a third person, matter that would assist the moving party.2 Strictly auxiliary, it created no substantive right but aided a party with a cause of action recognised elsewhere, and it reached only parties or those implicated in the transaction, never a stranger holding relevant information. That confinement hardened into the mere witness rule, resting, as Lord Reid later explained, on the assumption that the evidence would be available at trial, compellable by subpoena once proceedings were properly constituted.
The rule was never absolute. Equity recognised early that a person who had participated in or facilitated a wrong, without incurring liability, stood differently from the true bystander. In Upmann v Elkan3 disclosure was ordered against a carrier holding counterfeit goods, and in Orr v Diaper4 against shipping agents who had unwittingly forwarded infringing goods. These authorities marked a spectrum from the immune mere witness, through the facilitator mixed up in the wrong, to the party properly sued, the line between the first two still contested.
Nigerian civil procedure, drawn from the English rules, likewise confines discovery and interrogatories to the adverse party in a pending suit,5 reaching a stranger only by subpoena after filing. The presumption against a party who suppresses evidence, under section 167(d) of the Evidence Act 2011, assumes an adversary already before the court,6 and offers nothing where the wrongdoer hides behind a bank, a carrier, or the Corporate Affairs Commission. That gap the departure below is designed to fill, received through equity administered under the High Court Laws.7
Norwich Pharmacal: An Equitable Exception to the Mere Witness Rule
The breakthrough came in Norwich Pharmacal Co v. Customs and Excise Commissioners.8 The patentees found from customs records that other people were importing their patented compound in breach of the patent. They could prove that a wrong was being done. They could not name a single importer. Without a name they could not sue. Only the Commissioners of Customs knew who the importers were. When asked, the Commissioners refused, relying on the mere witness rule. The question was whether they could be made to disclose.
The House of Lords held that they could. Lord Reid did not abolish the mere witness rule. He accepted it as a sound rule but held that it did not apply here. The rule assumes that the evidence will later be available in a case. Here there could be no case at all until the importers were named. He also refused to go to the other extreme. A court cannot compel information from anyone who merely happens to hold it. The Commissioners stood in between. They were innocent and acting under a statutory duty, yet the goods passed through their hands, and without them the wrong could not have been done. Hence the principle that one who “gets mixed up in the tortious acts of others so as to facilitate their wrongdoing” must assist the party wronged by disclosing the wrongdoers’ identity.9
Two points define the jurisdiction. First, the departure is real but limited. A true bystander who only holds relevant information stays protected. Only a third party who has helped the wrong can be compelled. Secondly, the duty rests on justice, not fault, so innocence is no defence. Being equitable, the relief stays discretionary, guided by the factors Lord Cross set out.10
The modern remedy is the Norwich Pharmacal order. Its three conditions were stated by Lightman J in Mitsui & Co Ltd v Nexen Petroleum UK Ltd 11 an arguable wrong by a wrongdoer; a real need for the order so that the wrongdoer can be sued, the relief being a last resort;12 and a respondent who helped the wrong and can supply the information needed. It remains exceptional, never a licence for a fishing expedition.
Footnotes
1 Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (HL) 175 (Lord Reid), where the mere witness rule is restated and its leading exception established.
2 Daniel Morman, ‘The Complaint for a Pure Bill of Discovery: A Living, Breathing, Modern Day Dinosaur?’ (2004) 78 Florida Bar Journal 50
3 Upmann v Elkan (1871) LR 12 Eq 140, affirmed (1871) LR 7 Ch App 130
4 Orr v Diaper (1876) 4 Ch D 92
5 CFAO (Nig) Plc v Sanu (2008) 15 NWLR (Pt 1109) 1
6 Evidence Act 2011, s 167(d); Kwenev v State (2022) 13 NWLR (Pt 1847) 273.
7 High Court Law of Lagos State, ss 11 and 13.
8 Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (HL).
9 ibid 175 (Lord Reid).
10 ibid (Lord Cross of Chelsea).
11 Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch), [2005] 3 All ER 511 [21] (Lightman J).
12 Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch), [2005] 3 All ER 511 [21] (Lightman J).
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