1 Legal framework
1.1 What system of jurisprudence applies in your jurisdiction? What implications does this have for litigation?
Nigeria has an adversarial rather than an inquisitorial jurisprudential system. The judge sits as an impartial umpire and as such is not involved in the fact-finding inquiry of the dispute. The judge's role is restricted to issuing an independent and impartial judgment based on the evidence adduced before him or her by the parties, in line with applicable laws.
1.2 What rules govern litigation in your jurisdiction?
In Nigeria, litigation – whether civil or criminal – is governed by a variety of laws, which are generally characterised as either substantive or adjectival. These laws are applicable at the state and federal levels, and include the following:
- the Constitution of the Federal Republic of Nigeria 1999 (as amended);
- statutory law – laws of the Federation of Nigeria and various state civil or criminal laws; bylaws of various local government areas;
- procedural law – civil procedure rules of court; criminal procedure laws; practice directions;
- subsidiary law – regulations; guidelines; executive orders;
- received English laws; common law and principles of equity (which apply where there is a lacuna in the existing laws of Nigeria);
- statutes of general application in force in England as at 1 January 1900;
- case law; judicial precedents; and
- domesticated bilateral and multilateral treaties
1.3 Do any special regimes apply to specific claims?
Yes, several special regimes apply to specific claims in Nigeria and such matters are usually referred to distinctively as sui generis. They include admiralty proceedings, winding-up proceedings, matrimonial causes proceedings and fundamental rights enforcement proceedings.
1.4 Which bilateral and multilateral instruments have relevance to litigation in your jurisdiction?
There are multitudes of bilateral and multilateral agreements to which Nigeria is a signatory, most of which are relevant to both civil and criminal litigation in Nigeria. However, such treaties must have been domesticated to be operational and have the force of law in Nigeria by virtue of Section 12 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Relevant bilateral and multilateral instruments include the following:
- Human rights: Ratified international instruments with relevance to Nigerian litigation include:
- the International Covenant on Economic, Social and Cultural Rights 1966, which was domesticated in 1993;
- the International Covenant on Civil and Political Rights 1976, which was domesticated in 1993;
- the International Convention on the Elimination of All Forms of Racial Discrimination 1963, which was domesticated in 1967;
- the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women 1999, which was domesticated in 2004;
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1985, which was domesticated in 2001;
- the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 2002, which was domesticated in 2009; and
- the Convention on the Rights of the Child 1989 which was domesticated in 1991.
- the African Continental Free Trade Area Agreement 2018, which was ratified on 30 May 2019, but has not yet been domesticated.
- Alternative dispute resolution:
- the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, which was domesticated in 1988; and
- the Singapore Convention on Mediation 2020, which has not yet been domesticated.
- Intellectual property:
- the Agreement on Trade-Related Aspects of Intellectual Property Rights 1995, which has not yet been domesticated;
- the Berne Convention for the Protection of Literary and Artistic Works 1971, which has not yet been domesticated; and
- the Paris Convention for the Protection of Industrial Property 1967, which has not yet been domesticated.
- International carriage by air:
- the Montreal Convention (formerly the Convention for the Unification of Certain Rules for International Carriage by Air 1971), which was domesticated in 2006 pursuant to the enactment of the Nigerian Civil Aviation Act 2006.
- the double tax treaties between Nigeria and the United Kingdom, the Netherlands, Canada, South Africa, China, the Philippines, Pakistan, Romania, Belgium, France, Mauritius, South Korea and Italy.
- the Hong Kong International Convention for Safe and Environmentally Sound Recycling of Ships 2009, which was ratified in 2019;
- the Protocol Relating to Intervention on the High Seas in Case of Oil Pollution Casualties 1973, which was ratified in 2019;
- the Protocol on Limitation of Liability for Maritime Claims 1996, which was ratified in 2019; and
- the Protocol Relating to Carriage of Passengers and their Luggage by Sea 2002, which was ratified in 2019.
- Labour and employment:
- the Discrimination (Employment and Occupation) Convention 1958, which was ratified on 2 October 2002;
- the Minimum Age Convention 1973, which was ratified on 2 October 2002;
- the Forced Labour Convention 1930, which was ratified on 17 October 1960; and
- the Abolition of Forced Labour Convention 1957, which ratified on 17 October 1960.
2 Judicial structure
2.1 What courts exist in your jurisdiction and how are they structured?
Supreme Court: Established under Section 230 of the Constitution of the Federal Republic of Nigeria 1999, as amended, the Supreme Court is composed of the chief justice of Nigeria and up to 21 justices appointed by the president on the recommendation of the National Judicial Council (NJC), subject to confirmation by the Senate. The Supreme Court entertains appeals from the Court of Appeal and may exercise original jurisdiction in specific circumstances as stipulated by the Supreme Court (Additional Original Jurisdiction) Act (Cap S 16, Laws of the Federation of Nigeria 2004).
Court of Appeal: The Court of Appeal was established under Section 237 of the Constitution. It consists of the president of the Court of Appeal and 49 justices, of whom at least three must be learned in Islamic personal law and at least three must be learned in customary law. The justices of the Court of Appeal are appointed by the president on the recommendation of the NJC, subject to confirmation by the Senate. The Court of Appeal entertains appeals from the state high courts, the High Court of the Federal Capital Territory, the Federal High Court, the National Industrial Court, the Tax Appeal Tribunal and so on.
Federal High Court: This court was established under Section 249 of the Constitution. It is headed by the chief judge of the Federal High Court and comprises any number of judges as allowed by an act of the National Assembly. However, it will be properly constituted if each sitting court consists of at least one judge of the court. The Federal High Court has a division in each of the 36 states in Nigeria. The Federal High Court has exclusive jurisdiction over matters expressly contained in Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
National Industrial Court: Established under Section 254(a)(i) of the Constitution of the Federal Republic of Nigeria 1999 (Third Alteration) Act, the National Industrial Court consists of a president and at least 12 other judges, or such number as may be prescribed by an act of the National Assembly. The National Industrial Court has an exclusive jurisdiction over matters expressly contained in Section 254(c) of the Constitution.
High Court of the Federal Capital Territory, Abuja: This court was established under Section 255 of the Constitution. It is headed by a chief judge and consists of such other number of judges of the court as may be prescribed by an act of the National Assembly. By virtue of Section 257 of the Constitution, the jurisdiction of the High Court of the Federal Capital Territory (FCT) is unlimited, but subject to the jurisdiction of the National Industrial Court and the Federal High Court.
High court of each state of the Federal Republic of Nigeria: Established under Section 270 of the Constitution, the high court of each state of the Federal Republic of Nigeria is headed by a chief judge and consists of such other number of judges of the court as may be prescribed by a law of the House Assembly. By virtue of Section 272 of the Constitution, the jurisdiction of the state high court is unlimited, but subject to the jurisdiction of the National Industrial Court and the Federal High Court.
Sharia Court of Appeal of the FCT, Abuja: Established under Section 260 of the Constitution of the Federal Republic of Nigeria 1999, as amended, this court consists of the Grand Kadi and such number of Kadis as may be prescribed by an act of the National Assembly. The court's jurisdiction is contained in Section 262 of the Constitution.
Sharia courts of appeal of various states: These courts are established by Section 275 of the Constitution in every state that requires them. Each consists of the Grand Kadi and such number of Kadis as may be prescribed by the House of Assembly in each state.
Customary Court of Appeal of the FCT, Abuja: Established under Section 265 of the Constitution, this court is comprised of a president and such number of judges of the Customary Court of Appeal as may be prescribed by an act of the National Assembly
Magistrates' or district courts: These are established under the respective laws of the Houses of Assembly of each state, which usually spell out the various magisterial districts (Southern Nigeria) or districts (Northern Nigeria) within the state. There is usually no restriction as to the number of magistrates.
Customary or area court: These courts are established by laws passed by the Houses of Assembly of the States of the Federation pursuant to power derived from Section 6(4)(a) of the 1999 Constitution. Customary or area courts are comprised of a chairman and such number of members as may be prescribed by the House of Assembly of each state.
2.2 What specialist courts or tribunals exist in your jurisdiction?
There are several specialist courts and tribunals in Nigeria, including:
- the Competition Law Tribunal;
- court martial;
- the Tax Appeal Tribunal;
- the Investment and Securities Tribunal;
- the Juvenile Court;
- the Coroner's Court;
- the election petition tribunals; and
- the small claims court.
3.1 What formalities apply before litigation can be commenced in your jurisdiction?
The formalities applicable before litigation can be commenced depend on:
- the cause of action;
- the nature of the claim;
- the mode of commencement; and
- the court.
For instance, a pre-action protocol is required (by statutes, rules of court or practice direction) before certain litigation can be commenced. This involves sending a pre-action notice to a potential defendant in a civil action and often applies to actions against government agencies. Furthermore, certain courts have also established claim-specific pre-action protocols, with which litigants must comply with before the commencement of any suit. For instance, the pre-action protocol of the High Court of Lagos State generally requires a litigant to sufficiently explore different means of alternative dispute resolution (ADR) such as negotiation and mediation before litigation can be commenced.
3.2 Do any pre-action protocols or similar rules apply prior to the commencement of litigation? What are the consequences of non-compliance?
Yes. See question 3.1.
Non-compliance with a pre-action protocol will likely lead to the suit being struck off the court's cause list by the court.
3.3 What other factors should a party consider before commencing litigation in your jurisdiction?
Other factors to be considered before commencing an action in the Nigerian courts include the following:
- the cause of action and the nature of the claim;
- the court with jurisdiction to hear the matter;
- whether the matter is statute barred (ie, whether it falls outside the limitation period for commencement as prescribed by relevant limitation laws);
- whether the claimant has the legal standing to institute the matter and the proper parties have been brought before the court;
- whether the matter has been commenced before the right judicial division or district of the court;
- whether all conditions precedent for the institution of the matter, such as pre-action protocols, have been met;
- where the defendant resides and the necessity for service within or outside the jurisdiction;
- whether all agreed and/or available ADR remedies have been explored and exhausted;
- the cost of litigation and the practicality of enforcing a judgment;
- whether the defendant has immunity or is protected by law;
- the proper form of commencement; and
- the burden of proof, on whom it rests and how it should be discharged.
4 Commencing litigation
4.1 What rules on limitations periods apply in your jurisdiction?
In Nigeria, several rules on limitation periods apply, which bar the institution of actions once a certain period has elapsed from the date on which the cause of action arose. These limitation periods vary according to the subject matter of the dispute and the nature of the claim. Such limitation periods can be found in specific laws, including:
- the limitation laws of various states;
- the Nigeria National Petroleum Company Act (Cap N123, Laws of the Federation of Nigeria 2004);
- the Public Officers Protection Act (Cap P41, Laws of the Federation of Nigeria 2004);
- the Fundamental Rights (Enforcement Procedure) Rules 2009; and
- the Foreign Judgment (Reciprocal Enforcement) Act (Cap F35, Laws of the Federation of Nigeria 2004).
4.2 What rules on jurisdiction and how this is determined apply in your jurisdiction?
Jurisdiction in Nigeria may be substantive, territorial or procedural. In Madukolu v Nkemdilim (1962) 2 SCNLR 341, the Supreme Court held that a court is vested with the requisite jurisdiction to hear and determine a suit where:
- the court is properly constituted;
- the subject matter is within the court's jurisdiction; and
- the case has been initiated by due process of the law.
However, in determining whether a court has jurisdiction to hear a matter, the claimant's claim shall be considered with reference to the enabling law setting out the jurisdiction of the court. The jurisdiction of the courts is thus determined on the basis of various determining factors, including:
- the parties to the action;
- where the dispute arose;
- the cause of action;
- the value of the dispute;
- the constitution of the court or tribunal;
- whether all conditions precedent to the commencement of the matter have been complied with;
- the effective form of commencement;
- the service of originating processes; and
- other factors as may be designated or determined by the Constitution of the Federal Republic of Nigeria 1999 (as amended) or other federal or state acts and laws. These laws include:
- the laws of the Federation of Nigeria and of various states;
- the Supreme Court Act (Cap S15, Laws of the Federation of Nigeria 2004);
- the Supreme Court (Additional Original Jurisdiction) Act (Cap S 16, Laws of the Federation of Nigeria 2004);
- the Federal High Court Act (Cap F12, Laws of the Federation of Nigeria 2004;
- the Court of Appeal Act (Cap C37, Laws of the Federation of Nigeria 2004);
- the High Court laws of different states;
- the magistrates' court laws; and
- the civil procedure rules and practice directions of various courts.
4.3 Are class actions permitted in your jurisdiction?
Class actions are permitted in Nigeria through the mechanism of representative action. If, in any proceedings, the person or class of persons or members of that class interested in the subject matter cannot be ascertained or, if ascertained, cannot be found; or, if ascertained and found, it is expedient that one or more of them be appointed for the purpose of representing the class, the judge may make the appointment of such persons for the purpose of proceedings and the decision of the court shall bind all persons so represented.
4.4 What are the formal requirements for commencing litigation?
Actions are instituted in various ways, depending on the nature of the claim, the cause of action and the court. However, it is important first to ascertain which court has jurisdiction to entertain the matter and confirm that all conditions precedent have been complied with prior to commencement. For civil matters, commencing litigation requires filing the necessary originating processes in line with the relevant laws and rules of court where such action is brought.
Generally, civil litigation in a superior court of record, sitting as a court of first instance, requires the filing of a writ of summons, an originating summons, an originating motion or petition, and must be accompanied by specific frontloaded documents as specified by the relevant rules of court. Praecipe forms for each form of commencement are usually annexed to the civil procedure rules for each court.
4.5 What are the procedural and substantive requirements for commencing litigation?
The substantive requirements for commencing litigation include determination of:
- a cause of action;
- the legal standing of the claimant;
- confirmation that the court has jurisdiction to hear the matter;
- confirmation that the action is not statute barred;
- confirmation of the proper parties to the suit; and
- the proper mode of commencement of action.
As regards the procedural requirements, it is important that pre-action protocols are complied with, including the notification of claim and/or the exploration of alternative dispute resolution. Thereafter, the originating processes to be filed must meet the required form before proceeding to the registry of the relevant court for filing to signify the commencement of litigation. Once the originating processes have been filed, the claimant must effect proper service of all originating processes on all defendants named in the suit in the manner prescribed by the relevant laws and rules of court.
4.6 Are interim remedies available in your jurisdiction? If so, how are they obtained?
Yes, interim remedies are available in Nigeria. Interim remedies are types of temporary relief granted to the claimant at the commencement of the suit or while the suit is pending, normally in the form of an interim injunction. Interim remedies are sought for several purposes, including:
- preserving the res (ie, the subject matter of the suit);
- attaching funds, stock or shares;
- arresting a vessel or its cargo;
- halting an ongoing act;
- making a payment into court or a court-ordered bank account;
- maintaining the status quo ante bellum until a named date or until a further order of the court.
Interim remedies are generally obtained as follows:
- filing an application for an interim injunction order by way of an ex parte motion, supported by an affidavit of fact and a written address;
- filing an affidavit of urgency; and
- in most cases, filing an accompanying application via a motion on notice for interlocutory injunction supported by an affidavit of fact and a written address, to be served and heard after the court has ruled on the interim relief via the ex parte motion.
4.7 Under what circumstances must security for costs be provided?
The circumstances in which security for costs must be provided include the following:
- when seeking interim and/or interlocutory injunctions or specific injunctions such as a Mareva injunction, an Anton Pillar injunction, a quia timet injunction, and mandatory and preservatory injunctions;
- upon the commencement of certain actions, such as election petitions and admiralty actions;
- where the claimant or defendant is ordinarily resident outside the jurisdiction of the court;
- where the claimant or defendant changes its address during the course of the proceedings with a view to evading the consequences of litigation; and
- when commencing certain appeals, such as appeals against government agencies (eg, the Asset Management Corporation of Nigeria).
5.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply to certain types of documents?
Rules on frontloading and interrogatories apply to disclosure in civil litigation in Nigeria. Frontloading seeks to negate an element of surprise by submitting all documents sought to be relied on at the commencement of the suit; while interrogatories give either party the opportunity to seek further disclosure of material evidence or information in possession of the other party. The rules of various courts provide for frontloading, interrogatories and how such applications for interrogatories may be made. However, there are exceptions to the disclosure of documents and information such as statements contained in documents marked "Without Prejudice", as well as documents conveying privileged communications expressly contemplated by the Evidence Act 2011.
5.2 What rules on third-party disclosure apply in your jurisdiction?
The Evidence Act 2011 and the rules of various courts allow either the claimant or the defendant to request third-party disclosure through oral evidence, documentary evidence or both, by the use of:
- a subpoena duces tecum, which compels the attendance of a third-party witness to tender document(s);
- a subpoena ad testificandum, which compels the attendance of a third-party witness to give oral evidence and tender document(s); or
- a habeas corpus ad testificandum, which compels the attendance of a detained third-party witness to give evidence.
5.3 What rules on privilege apply in your jurisdiction? Does attorney-client privilege extend to in-house counsel?
The Evidence Act 2011 sets out the rules on privilege in Nigeria. The Nigerian courts also recognise absolute and qualified privilege as possible defences in a cause of action for defamation.
Communication between counsel and their clients is privileged and counsel cannot be compelled to disclose such privileged communication by virtue of Section 192(1) of the Evidence Act and Rule 19 of the Rules of Professional Conduct for Legal Practitioners 2007, except in the following instances:
- The information relates to the commission of a crime;
- The client consents to such disclosure;
- The communication is made in furtherance of any illegal purpose; or
- The disclosure is necessary to establish or collect counsel's fees or to defend himself or herself, or his or her employees or associates, against accusations of wrongdoing.
Section 16 of the Freedom of Information Act 2011 also recognises that attorney-client confidentiality is an exception to the general rule on disclosure of information. Attorney-client privilege continues even after the relationship has been terminated and extends to the legal practitioner's employees such as associates, clerks and interpreters.
An in-house counsel employed by a private employer in the position of general counsel, company secretary or legal adviser is a legal practitioner as defined by the Legal Practitioners Act (Cap L11, Laws of the Federation of Nigeria 2004), and as such, privilege will apply as long as the in-house counsel's name is included on the Roll of Legal Practitioners kept by the registrar of the Supreme Court of Nigeria.
5.4 How have technological advances affected the disclosure process in your jurisdiction?
There are no rules that promote electronic disclosure in Nigeria. It is expected that Nigeria will follow the lead of other jurisdictions, where the rules of courts have generally been amended to adopt technologies which enable predictive coding for pre-trial disclosures and a streamlined document-gathering ‘menu approach'. For the time being, however, the traditional medium of disclosure is still operative.
5.5 What specific considerations should be borne in mind during the disclosure process, for both plaintiff and defendant?
Claimants and defendants should be mindful of the following when disclosure commences:
- the risk of exposing weaknesses in its own or the opponent's case;
- prevention of the disclosure of confidential information;
- the rules of privilege that apply in Nigeria;
- the possibility to use disclosed information or documents for other purposes outside the scope of the legal action in question; and
- the right to object to disclosure on the grounds of being irrelevant, inadmissible or against public policy.
6.1 What types of evidence are permissible in your jurisdiction?
The types of evidence that are recognised under the Evidence Act of 2011 include the following:
- oral evidence, also known as ‘testimonial evidence' – that is, assertions and statements made by parties and witnesses in court, including writing and signs by dumb witnesses;
- real evidence – which, according to Section 258(1) of the Evidence Act, is anything other than testimony, admissible hearsay or a document whose contents are offered as evidence of a fact at a trial, which is examined by the court as a means of proof of such fact;
- circumstantial evidence – that is, evidence not on the facts in issue, but on other facts from which the facts in issue may be inferred;
- documentary evidence – that is, any statement made in a document which is offered to the court in proof of any fact in issue or relevant. This is also referred to as ‘best evidence';
- hearsay evidence, where relevant and admissible;
- opinion evidence, which is generally inadmissible except where relevant and admissible as provided by Sections 68 to 76 of the Evidence Act;
- expert evidence, where relevant and admissible; and
- character evidence, where relevant and admissible.
6.2 What rules apply to expert evidence in your jurisdiction? What specific considerations should be borne in mind when preparing and presenting expert evidence?
Section 68 of the Evidence Act provides for the admissibility of expert evidence in Nigeria. The court can resort to expert evidence when it must form an opinion about a foreign law, custom or customary law, point of science or art, or the identity of handwriting or fingerprints. The expert need not have formal training, unless his or her claim to expertise is based on formal training. Otherwise, it is sufficient if he or she has acquired knowledge and skill from exposure to activities or engagement in a particular vocation. It is important to confirm, before presenting the expert witness, that the evidence sought to be tendered is relevant to the fact in issue and admissible under the laws and rules of practice. In order to establish the credibility of an expert witness and ensure that the judge attaches the proper weight to his or her evidence, it is advisable for the expert witness statement on oath to state the following:
- his or her academic or professional qualifications in his or her chosen field of expertise (where applicable);
- the extent of his or her practice, experience or exposure in his or her chosen field of expertise or occupation; and
- similar cases that he or she has handled directly or been exposed to in the past or prior to the case at hand.
6.3 What other factors should be borne in mind when preparing and presenting evidence in your jurisdiction?
Other factors to be considered in presenting evidence in Nigeria include:
- the probative value of the evidence; and
- the weight to be attached to evidence upon admission
7 Court proceedings
7.1 What case management powers do the courts have in your jurisdiction?
In Nigeria, the rules of courts have aided the effective and speedy dispensation of justice, through the machinery of pre-trial or case management conference procedures. These procedures are designed to enable a judge to guide the parties through possible options to effectively resolve their disputes without the requirement of proceeding to trial or, if a pre-trial resolution is impracticable, to create a proper framework for the progress of the trial. Interlocutory applications are usually determined at this case management or pre-trial stage. In addition, the judge may issue such orders and directions as are necessary to the future course of the proceedings.
7.2 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?
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 pronouncement of rulings and judgments, to take place in public.
However, Section 36(4) sets out noteworthy exceptions. It states that a court or tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners:
- in the interests of:
- public safety;
- public order;
- public morality;
- the welfare of minors; or
- the protection of the private lives of the parties; or
- to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice.
However, during the case management or pre-trial conference stage, the parties may opt for settlement via alternative dispute resolution (through either a court-appointed or party-agreed forum), in which certain matters relating to the dispute will be regarded as confidential and dealt with discreetly between the parties.
7.3 How is the applicable law determined? What happens in the event of a conflict of laws?
The applicable law in civil litigation is generally determined by the cause of action and the nature of the claim.
Certain rules apply in the event of a conflict of laws, which include the following:
- The Constitution is supreme and remains so above any other law, which is invalid to the extent of its inconsistency with the Constitution (Section 1(3) of the Constitution).
- Where two judgments of the Supreme Court are in conflict, the doctrine of precedence comes into play and all courts are bound by the latest decision of the Supreme Court.
- Where two judgments of courts of coordinate jurisdiction are in conflict, the latter in time prevails.
- Lower courts are generally bound by decisions of higher courts, based on the doctrine of judicial precedence.
- Where there is a conflict between any law enacted by a state House of Assembly and any law validly made by the National Assembly, the state law shall be void to the extent of the conflict or inconsistency.
- Subordinate legislation is prima facie ultra vires if it is inconsistent with the substantive provisions of the statute by which the enabling power is conferred on any other statute.
- In case of a conflict between subsidiary legislation and principal legislation, the principal legislation will supersede and override such subsidiary legislation to the extent of its inconsistency.
7.4 What rules apply to the joinder of third parties?
The joinder of third parties is a procedural matter regulated by the various rules of court. For example, Order 13, Rule 21 of the High Court of the Federal Capital Territory (Civil Procedure Rules) 2018 and Order 15, Rule 19 of the High Court of Lagos State (Civil Procedure) Rules 2019 provides that all persons that have a joint interest in the subject matter of the suit or that may be jointly interested in a claim or relief to be obtained from the court may be joined as co-plaintiffs in the suit. This general rule may be waived where the interests of the parties conflict or where the joint trial of their claims could delay the trial of the action. Also, all persons against which the claimant has reliefs or claims, and reliefs or claims originating from a common cause of action, interest or transaction, may be joined in a single suit.
7.5 How do the court proceedings unfold in your jurisdiction? What specific considerations should be borne in mind at each stage of the process, for both plaintiff and defendant?
The procedural steps in civil litigation will largely depend on the court and the method of commencement of a legal action. This is largely driven by the nature of the dispute and the claim between the parties.
For instance, in an action where the parties are likely to be in dispute as to the facts in issue, the claimant must file a writ of summons along with other frontloaded originating processes, and ensure service within the lifespan of the writ of summons (subject to renewal with leave of the court). Where the writ is to be served outside the jurisdiction of the court, it must be marked as a ‘concurrent writ' for service outside the jurisdiction, in accordance with Section 98 of the Sheriffs and Civil Processes Act (Cap S6, Laws of the Federation of Nigeria 2004).
Upon receipt of the claimant's originating processes, the defendant is expected to enter an appearance by filing either a memorandum of appearance or a conditional appearance (where the defendant intends to challenge the jurisdiction of the court) in the manner prescribed by the relevant rules of court. The defendant must then file and serve a statement of defence with all necessary accompanying processes and documents within 30 to 42 days, depending on the nature of the matter. The defendant is also at liberty to file a counterclaim alongside its statement of defence where it deems this necessary.
The claimant shall respond to the statement of defence by filing and serving a reply to the defence (optional) within 14 days. The claimant may accompany its reply with a defence to the counterclaim.
After issues have been joined and pleadings have been settled, some courts allow for a case management or pre-trial conference, at which:
- interlocutory applications are taken;
- alternative dispute resolution is further explored before a pre-trial judge;
- issues are narrowed down;
- admissions are made; and
- judgment may be given on the basis of the admissions, discoveries and interrogatories and relevant documents exchanged.
Courts with no provision for a case management or pre-trial conference will receive all interlocutory applications, interrogatories and discoveries prior to the date fixed for trial.
After the pre-trial conference, the case is set down for trial and transferred to a trial judge, who is different from the pre-trial judge. On the close of trial and the adoption of final written addresses, the court must issue its judgment within 90 days. An aggrieved party may appeal within three months of the date of a final judgment or within 14 days of the date of an interlocutory decision/ruling.
7.6 What is the typical timeframe for the court proceedings?
The timeframe for court proceedings in Nigeria largely depends on:
- the nature of the claim;
- the mode of commencement; and
- the court.
In the Lagos state jurisdiction, for instance, court proceedings at a magistrates' court are expected to be determined within six months of the date on which the suit is commenced, because of the summary jurisdiction of the magistrates' court; while an action before a small claims court is expected to be determined within three months. A suit commenced via writ of summons may last anywhere between six months and two years, subject to intervening factors such as:
- the number and availability of witnesses to be examined in court;
- interlocutory applications and interlocutory appeals;
- starting trial de novo;
- transfer or elevation of judges;
- industrial actions affecting judicial officers; and
- tactical delay of proceedings by litigants.
Under the Lagos State High Court (Civil Procedure) Rules 2019, matters that qualify for fast-track proceedings should be determined within nine months. The timeframes will generally vary depending on the court, the state and the parties.
8 Judgment and remedies
8.1 What types of judgments, orders and other remedies are available in your jurisdiction?
There are various types of judgments in Nigeria, which include the following.
Consent judgment: This is a binding compromise – an agreement by the parties to settle a court action during the pendency of the suit by filing terms of settlement duly executed by all parties to the suit and their respective legal representatives. The agreement as adopted by the parties will be pronounced upon as a consent judgment. The judgment becomes binding on the parties and enforceable just like any court judgment.
Final judgment: This term generally refers to a judgment in which all rights and obligations of the parties brought before the court are decided upon, leaving nothing pending. Such a judgment may be executory, declaratory or both.
Interlocutory judgment: This term is used in contradistinction to ‘final judgment'. A judgment is interlocutory where it does not meet the threshold test for a final judgment.
Default judgment: This is a judgment obtained as a result of non-compliance with a statutory provision or a rule of practice of a court, or default in carrying out an order of court.
- a judgment in default of appearance (failure to enter an appearance within the prescribed time or any other time as prescribed by the court after proof of service); and
- a judgment in default of pleadings (failure to file pleadings within the prescribed time or any other time as prescribed by the court after proof of service)
Summary judgment: This is a judgment obtained without trial, especially where the claim is for liquidated money and/or it is believed that the defendant has no defence to the claim.
Judgment in rem: This is a decision of a court of competent jurisdiction which pronounces on the status of a particular thing or subject matter, including a person. The judgment is binding on all parties, not just the parties to the action.
Judgment in personam: This is a judgment that has binding effect only on the parties that are before the court.
Judgment or order upon admission of facts: This is a judgment or order granted by the judge on admitted facts, based on the application of the party in whose favour the facts have been admitted.
Order of dismissal: This order is available against a claimant which has failed to prove its case by evidence. It means that the action has been heard on its merits and the court becomes functus officio. It differs from a striking-out order, which temporarily terminates a suit.
Non-suit: This is an order of temporary dismissal of a suit, but without extinguishing the claimant's right to re-litigate the same action. It occurs where, on the one hand, there is no satisfactory evidence to entitle the claimant to judgment; but on the other, the defendant cannot be allowed to get away with dismissal of the case.
Consequential or ancillary order: This is made consequent to a substantive order or to give effect to a substantive order.
Equitable remedies: These are remedies which evolved from the courts of equity and were adopted by the Nigerian civil jurisprudence. They include the following:
- Order of specific performance: An order imposing a duty on a party to do what has by contract been agreed to be done.
- Injunction: This is equitable relief granted by a court, forbidding a party from doing some act or permitting a party to carry out an act.
- Rescission: This equitable order relieves a party from further obligations under a contract in the event of a breach of a fundamental term of the contract by the other party.
Award of damages: This is a common law remedy which involves a monetary award to compensate the claimant for present or future wrongs or losses suffered or to be suffered, including special damages, general damages and exemplary damages.
9.1 On what grounds may a judgment be appealed in your jurisdiction?
In Nigeria, grounds of appeal may be based on grounds of law, facts or mixed law and facts. Grounds can also include misdirection and error of law.
9.2 What is the appeals process? Is the judgment stayed while the appeal is pending?
The appeal process begins by either:
- filing a notice of appeal with the appeals section of the registry of the lower court (where the appeal is as of right or against a final judgment of court), after which an appeal is deemed to have been filed; or
- filing an application for leave to appeal (if the appeal is not as of right) at the court of first instance (ie, the court that issued the decision being appealed), unless there are special circumstances which make it impossible or impracticable to apply to the lower court, in which case the application can be made to the court of appeal. Where such application is refused by the lower court, a similar application (by motion on notice) may be filed with the court of appeal within 15 days of such refusal (Order 6, Rule 3 of the Court of Appeal Rules 2016). The application for leave to appeal should include:
- a copy of the proposed notice of appeal;
- a certified true copy of the decision of the lower court sought to be appealed; and
- where leave has been refused by the lower court, a certified true copy of the order or ruling refusing leave of appeal
Compilation, settlement and transmission of records of appeal: Within seven days (where the appeal concerns an interlocutory decision) or 60 days (where the appeal concerns a final judgment) of filing of the notice of appeal, the registrar of the high court will compile and transmit the record of appeal to the court of appeal which will hear the appeal against the final judgment of the lower court. The parties are invited to settle on the records to be compiled and transmitted to the upper court (Order 8 of the Court of Appeal Rules).
Filing of briefs of argument: The appellant must file 10 copies of its brief of argument within 45 days of receipt of the records of appeal from the lower court. The respondent must file its brief of argument within 30 days of receipt of the appellant's brief. Where necessary, the appellant may file a reply to the respondent's brief within 14 days of receipt of the respondent's brief (Order 19 of the Court of Appeal Rules).
If the appellant fails to file its brief of argument within the timeframe specified by the Court of Appeal Rules or within the timeframe extended by the appellate court, the appellate court may, suo motu or upon an application by the respondent, dismiss the appeal for want of diligent prosecution. However, where the respondent fails to file its brief of argument within the timeframe specified by the Court of Appeal Rules or within the timeframe extended by the appellate court, the appellant may apply to the appellate court to hear the appeal solely on its own brief of argument.
The appeal hearing is fixed by the appellate court and is usually conducted by the adoption of brief of argument filed by each party to the appeal, after which judgment is delivered.
The judgment or proceedings at the lower court may be stayed during the appeal where the appellant applies for a stay of execution or stay of proceedings. Such applications pending appeal should rightfully be made to the lower court before being made at the court of appeal. The courts have held on numerous occasions that an appeal does not by itself operate as a stay of proceedings. See Alioke v Oye (2018) LPELR-45153 (Supreme Court).
The appeal procedure is quite similar at the Supreme Court.
9.3 What specific considerations should be borne in mind during the appeals process, for both plaintiff and defendant?
The considerations to be borne in mind during an appeal include the following:
- the timeframes for taking specific steps and their consequences. Such steps include the compilation and transmission of records, the filing of respective briefs of argument, the filing of preliminary objections and so on;
- the nature, formulation and classification of the grounds of appeal. As a general rule, the grounds of appeal must flow from the judgment being appealed; but a party may seek leave to raise fresh grounds of appeal not contemplated by the judgment being appealed;
- whether leave to appeal is required. In this regard, the parties should bear in mind the circumstances in which a decision may be appealed as of right and where leave of court is required before an appeal can be properly filed;
- the requirements of the appellate courts in relation to the font sizes and number of pages of the briefs of argument;
- the elements of a good and effective brief of argument, to avoid submitting defective briefs; and
- the competence of the appeal and the need to raise preliminary objections (where necessary).
10.1 How are domestic judgments enforced in your jurisdiction?
Domestic judgments are enforced within two years of the date on which the judgment is delivered. Most domestic civil judgments are enforced through one or more of the following procedures, depending on the nature of the judgment (eg, monetary, declaratory, executory or injunctive):
- garnishee proceedings;
- writ of fieri facias;
- writ of sequestration;
- judgment summons;
- order for payment in instalments;
- writ of possession;
- writ of delivery;
- order of committal; and
- execution of deed or negotiable instrument
Domestic judgments may be executed through any of the above methods of enforcing judgments used in appropriate cases. Domestic judgments may be executed within the state in which the judgment was delivered or interstate.
The process for enforcement of judgments interstate is as follows:
- The judgment creditor applies to the registrar of the court where the judgment was given for the issue of a certificate of judgment containing details and particulars of the judgment (Section 104 of the Sheriff and Civil Process Act (Cap S56, Laws of the Federation of Nigeria 2004)).
- The registrar issues the certificate of judgment, which the registrar must sign and seal.
- The judgment creditor or its counsel takes the certificate of judgment to the registrar of the court, or any other court with coordinate jurisdiction in any other state where judgment is to be executed.
- The registrar of the court will register the certificate of judgment in the register of judgments of that state (Section 105 of the Sheriff and Civil Process Act).
- The judgment creditor must swear an affidavit in support of the registered certificate of judgment before it can execute judgment, stating that:
- the amount for which process is proposed to be issued is actually due and unpaid;
- an act ordered to be done remains undone; or
- a party ordered to forbear from doing an act has disobeyed the order.
- Once the judgment has been registered in the court's record, it will be regarded as a judgment of that court outside the jurisdiction and will be eligible for execution by every lawful means available. After execution, the registrar of the enforcing court will notify the registrar of the court that delivered the judgment that the judgment has been satisfied, either in whole or in part, by filing a report under seal of the court.
The process for enforcement of judgments intrastate is as follows:
- The registrar of the court that delivered the judgment issues the appropriate procedure for enforcement of the judgment and sends it to the registrar of the court of the judicial division in which the judgment will be enforced.
- The procedure for enforcement shall be accompanied by a warrant in Form 11 in the First Schedule of the Sheriff and Civil Process Act requesting the execution.
- The enforcing court registrar shall enforce the judgment and pay over the money realised and report to the home court registrar using Form 12.
10.2 How are foreign judgments enforced in your jurisdiction?
Foreign judgments in Nigeria may be enforced either by reciprocity or by action at common law.
Enforcement by reciprocity is governed by:
- the Reciprocal Enforcement of Judgments Ordinance (Chapter 175 of the Laws of the Federation of Nigeria and Lagos 1958);
- the Foreign Judgments (Reciprocal Enforcements) Act (Cap F35, Laws of the Federation of Nigeria 2004; and
- the Judgment Enforcement Rules of 2004.
In order for judgments of a superior court of any foreign country to be recognised and enforceable in Nigeria under the Foreign Judgments (Reciprocal Enforcements) Act, the Nigerian minister of justice must be assured of reciprocity of treatment (ie, that judgments of the Nigerian superior courts will be executed in that foreign country) (see Section 3(1) of the Foreign Judgments (Reciprocal Enforcements) Act).
The ordinance is expressly applicable to certain countries, such as England, Ireland, Scotland, Ghana and Sierra Leone.
The following judgments are enforceable:
- judgments of superior courts of the foreign country (Section 3(1) of the Foreign Judgments (Reciprocal Enforcements) Act), provided that, as at the date of application for registration in Nigeria, the judgment is yet to be wholly satisfied or could be enforced by execution in the country of the original court;
- judgments issued before the commencement of the minister's order and registered within 12 months of the date of the judgment or such longer period as may be allowed by a superior court in Nigeria; and
- judgments registered under the ordinance at the time of the coming into operation of the minister's order.
In order for a foreign judgment to be enforceable in Nigeria, it must be final and conclusive, fixed and certain, and not for charges, rates, levies or fines (Section 3(2) of the Foreign Judgments (Reciprocal Enforcements) Act).
The procedure for enforcement is as follows:
- The foreign judgment creditor applies to the high court of any state or the Federal Capital Territory, or to the Federal High Court, within six years of issue of the judgment, to have the judgment registered (Section 4(1) of the Foreign Judgments (Reciprocal Enforcements) Act).
- The application is made by petition supported by an affidavit of fact.
- Upon registration, the high court has the power to deal with the judgment as though it were its own judgment.
- Where the sum payable under the foreign judgment is in foreign currency, the Nigerian court will convert it into Nigerian currency at the prevailing rate.
The judgment debtor may apply to have registration of the judgment set aside on any of the following grounds as stipulated by Section 6(1) of the Foreign Judgments (Reciprocal Enforcements) Act:
- The judgment does not comply with the Foreign Judgments (Reciprocal Enforcements) Act;
- The judgment was obtained by fraud;
- The judgment debtor did not receive notice of the proceedings in good time and counsel did not defend the action;
- The foreign court lacked jurisdiction over the matter;
- Enforcement of the judgment would be contrary to public policy in Nigeria; or
- The party that applied for registration of the judgment has no right to the judgment.
If the application to set aside is refused, the judgment creditor may proceed to execution using any appropriate method of execution.
By action at common law: A foreign judgment creditor may commence an action in a high court in Nigeria via a writ of summons making recognition and enforcement of the foreign judgment the cause of action.
There is no need for a lengthy trial, as the foreign judgment creditor can institute an action under the summary judgment procedure. However, the high court must have jurisdiction over the subject matter in relation to which the judgment was obtained. The judgment must be that of a superior court, final and conclusive, for a fixed sum and not rates, taxes or levies.
10.3 What specific considerations should be borne in mind during the enforcement process, for both plaintiff and defendant?
The parties should bear in mind the type of judgment sought to be enforced, as this will determine the mode of enforcement. The parties should also consider the rules on reciprocity. A writ of execution is valid for one year only from the date of its issue (Order 4, Rule 10 of the Judgment Enforcement Rules).
11 Costs, fees and funding
11.1 What costs and fees are incurred when litigating in your jurisdiction?
Except for government agencies, which are allowed to file actions at no cost, the registries of each court are empowered to assess and determine the appropriate fees to be paid for filing an action in Nigeria. The filing fees may vary, depending on the cause of action, the value of the claims and the types of relief sought. While underpayment of filing fees is a mere irregularity, often blamed on the court registries and easily curable by the appropriate order of court, non-payment of filing fees is a fundamental and mandatory requirement before any action is said to have been validly commenced, without which the action should be struck out.
Other fees which are incurred when litigating include:
- the cost of serving processes on the defendant;
- the costs of procurement and attendance of witnesses; and
- professional fees and expenses for counsel.
In civil litigation in Nigeria, it is generally accepted that costs follow the event, and the court may award costs for and against either party as the circumstance may require. Under the current civil litigation procedure, the court may also award costs in favour of the court where proceedings are truncated by either party. This serves as a deterrent to the incessant adjournment of trials and hearing. Costs are also awarded in certain instances to compensate a successful party for delay caused by interlocutory motions and costs may be awarded in response to avoidable requests for adjournments. The courts are empowered to order that parties bear the costs of their opponent.
11.2 Are contingency fees and similar arrangements permitted in your jurisdiction?
Contingency fees are recognised in Nigeria. The concept of contingency fee arrangements received judicial recognition in Oyo v Mercantile Bank (Nig) Ltd (1989) 3 NWLR (Pt 108) 213, where the court described them as an agreement by a lawyer to receive a portion of the pecuniary benefits accruing from successful conduct of a civil suit.
In addition to the foregoing, Rules 50 and 51 of the Rules of Professional Conduct for Legal Practitioners (2007) clearly permit a lawyer to enter into contingency fee arrangements/contracts, provided that:
- the contract is reasonable in all circumstances of the case, including the risk and uncertainty of the compensation; and
- the contract is not:
- vitiated by fraud, mistake or undue influence; or
- contrary to public policy.
11.3 Is third-party funding permitted in your jurisdiction?
Under Nigerian law, third-party funding of litigation is generally regarded as champertous if it involves a third party's election to maintain and bear the costs of an action for another to share the proceeds of the action or suit. In Nigeria, parties to civil actions are usually responsible for their litigation costs. On occasion, however, claims may be sponsored by third parties with no prior connection to the suit for pecuniary, financial or proprietary reasons. For instance, in most oil spillage, pollution and communal land matters, some of the claims may be funded by independent third parties in view of the impecuniosity of the litigants.
11.4 What other strategies should parties consider to mitigate the costs of litigation?
- Exploring alternative dispute resolution such as mediation and negotiation;
- Engaging and retaining experienced legal counsel; and
- Using electronic communication tools, both in pre-litigation and during litigation.
12 Trends and predictions
12.1 How would you describe the current litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
The Nigerian litigation landscape can hardly be described as attractive for various well-documented reasons, including:
- difficulties in enforcing judgment;
- the complacency of some judicial officers; and
- delays in concluding matters, due to an insufficient number of judges/magistrates to handle current court caseloads.
In response to the impact of the global COVID-19 pandemic on judicial systems, the Nigerian judiciary has embraced the use of technology at various stages of the litigation process, such as:
- electronic filing of court processes;
- electronic service via email and social media handles;
- virtual hearings and trials; and
- virtual delivery of judgments.
The High Court of Lagos State has issued its Civil Procedure Rules of 2019 as well as other pre-action protocols to the general effect that parties are to approach the courts only as a last resort, once all other means of alternative dispute resolution (ADR) have been exhausted. Other measures have also been put in place at the Lagos court to ensure the speedy dispensation of justice, such as the backlog elimination programme and the fast-track procedure.
In recent times, other courts have shown themselves willing to follow in the footsteps of the High Court of Lagos State. Consequently, it is expected that all Nigerian courts will adopt an ‘ADR first' approach.
It is hoped that this will go a long way towards solving the challenges facing lawyers and litigants in Nigeria.
13 Tips and traps
13.1 What would be your recommendations to parties facing litigation in your jurisdiction and what potential pitfalls would you highlight?
We would advise parties to explore and exhaust other alternative dispute resolution mechanisms before resorting to litigation as a last resort. Litigation can be cumbersome, costly and combative in style; and the practicalities of judgment enforcement may be considered a pitfall of the adjudicatory process – challenges include bureaucracy in registering foreign judgments and difficulties in tracing assets of a judgment debtor. The importance of competent counsel cannot be overemphasised, as a litigant's case may stand or fall on the knowledge and experience of its legal representatives.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.