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GUIDE ON LITIGATION PROCESSES IN NIGERIA

By Ehi Esezobor , Esezobor & Partners/TCM Nigeria | Jul 20, 2020

General characteristics of processes in Nigeria 

JURISDICTION/CAUSE OF ACTION 

The jurisdiction of courts to processes in Nigeria is distributed between the Federal Government and 36 state governments as well as the Federal Capital Territory, Abuja.

The proper forum for any dispute will depend on the subject matter, the parties and the place where the subject occurs. For instance, commercial disputes are resolved through litigation before the various State High Courts or the Federal High Court, or by arbitration before arbitrators appointed by the parties for that purpose.

Contracts

Actions of processes in Nigeria are to be commenced in the jurisdictions in which the contracts ought to be performed or in which the defendants reside or carry on business. Foreign parties may, therefore, be sued in Nigerian courts in cases involving contracts where the contracts are to be performed in Nigeria.

Tort

If the tort was committed within Nigeria by a foreign party, then the tort is actionable in Nigeria.

Arbitration

Where parties have inserted arbitration clauses in their agreements, any disputes that fall within the scope of the arbitration clause are referred to arbitration according to the provisions of the clause for processes in Nigeria.

There any circumstances in which the Nigerian courts would Claim jurisdiction over a dispute irrespective of the choice of Jurisdiction expressed in the contract. Generally, Nigerian courts observe the provisions of any choice of jurisdiction clause included in a contract between the parties and tend to uphold them, under the principle of pacta sunt servanda (parties are to be held to the bargain which they have entered).

This rule is, however, not inflexible. Nigerian courts have the discretion to decline to give effect to a choice of the jurisdiction clause.

JURISDICTION OF COURTS FOR PROCESSES IN NIGERIA 

The Magistrate Court – LAGOS STATE 

This is a court of inferior jurisdiction. Civil jurisdiction of magistrates’ court in personal actions arising from contract, tort etc., where the debt/damage claimed, whether as a balance of account or otherwise, is not more than NGN 10, 000, 000. 00 (Ten Million Naira) as at the time of filing.

For processes in Nigeria, appeals from the Magistrate Court lie with leave of the Magistrate Court to the Lagos State High Court.

Superior Courts of Record

The system, for civil litigation to general processes in Nigeria, is made up of High Courts (Federal and State), a Federal Court of Appeal and a Supreme Court. Appeals may be made as of right against final decisions of High Courts; against decisions (final or interlocutory) where the appeal involves questions of law alone, the interpretation or application of the Constitution and against certain other types of decisions, the most relevant of which for these purposes are decisions “determining the case of a creditor or the liability of a contributory or other officers under any enactment relating to companies in respect of malfeasance or otherwise”. Other appeals may be made with leave of either the High Court or the Court of Appeal. When we talk about processes in Nigeria, appeals to the Supreme Court lie as of right against decisions of the Court of Appeal, where the appeal involves questions of law alone and the interpretation or application of the Constitution. Other appeals may be made with leave of the Court of Appeal or the Supreme Court. The Supreme Court is the court of final appeal.

The Federal High Court is a court of limited jurisdiction and this is set out in the Constitution of the Federal Republic of Nigeria in such a manner that enables the federal legislature to expand its jurisdiction. In civil proceedings, where jurisdiction is vested in the Federal High Court, no other court may exercise jurisdiction over such matters.

Under the Constitution, State High Courts, subject to the exclusive jurisdiction of the Federal High Court and the National Industrial Court for processes in Nigeria, have unlimited jurisdiction over all other matters.

The National Industrial Court is vested with exclusive jurisdiction over all labour and employment processes in Nigeria.

Nigeria operates a common law system and the common law system of judicial precedence. Decisions of the Supreme Court are binding on all other courts, and those of the Court of Appeal bind the High Court.

INSTITUTING AN ACTION IN NIGERIAN COURTS

Proceedings are commenced by the issuance of a court process out of the registry of a court. Institution of a suit may be commenced by filing a Writ of Summons, an Originating Summons, a Petition or Originating Motion. The processes in Nigeria operate an adversarial system of justice, and the courts determine causes upon materials presented by the parties.

Statement of Claim

When we talk about processes in Nigeria, under most High Court rules, claims are commenced by writs, which are endorsed with a statement of the relief sought from the court. The writ is also required to be accompanied by a statement, in summary, form, of the material facts relied upon to establish the claim. In addition, statements of all witnesses are required to be delivered along with the writ and statement of claim. Defendants are entitled to seek, where they are absent, particulars of allegations made in the statement of claim.

Statement of Defence

Upon being served with the originating process, a defendant is required to file a memorandum of appearance and serve it on the claimant. In addition, the defendant must submit a statement in summary form containing the defence to the claim. Dealing with processes in Nigeria, the defence must answer claims and where denials are made, these may not be evasive. The defendant is also required to submit statements of witnesses intended to be called at the trial as well as copies of all documents intended to be relied on.

Final Arguments for processes in Nigeria

At the conclusion of oral hearings, parties are required to submit a written closing argument, which will be considered by the court at a final oral hearing.

PUBLICITY

All court proceedings are required to be held in public and the court filings are also available to the public upon an application to the appropriate official in whose custody the processes in Nigeria are kept.

Pretrial Settlement and Alternative Dispute Resolution (ADR)         

Advice and Settlement Proposals

A Claimant/Plaintiff is mandated at the time of filing his claim to take out a Pre-action Protocol Form 01, which essentially requires the Claimant/Plaintiff to state the attempts he has made to have the matter settled out of Court with the Defendant and how such attempts proved unsuccessful and the Claimant/Plaintiff is also required to provide evidence of such attempt to processes in Nigeria.

Mediation

The courts encourage parties to settle disputes for processes in Nigeria in all jurisdictions, and some provide access to ADR mechanisms as part of the court framework.

INTERIM RELIEF

Dealing with processes in Nigeria most courts are empowered to grant orders directing parties to do, or refrain from doing, acts specified in the order during the pendency of an action. All interim reliefs available under the common law are available in Nigeria, such as orders of an injunction and the appointment of receivers, and Nigerian courts have adopted and issued Mareva (freezing injunctions) and Anton Piller (discovery and seizure) type of orders.

An applicant for interim relief for processes in Nigeria normally has to establish the following basic matters:

an action that discloses the existence of a serious issue to be tried, and a good arguable case;

  1. that damages would not be an adequate remedy for the damage the applicant alleges will be suffered if the relief is not granted; and
  2. the risk of irreparable damage being done to the applicant outweighs the damage that the order sought would do to the defendant.

To obtain a freezing order, when we talk about processes in Nigeria an applicant also needs to satisfy the court that the defendant has assets within Nigeria that are likely to be dissipated to avoid the consequences of a final order, or otherwise put them out of the applicant’s reach. 

DECISIONS 

For processes in Nigeria, courts are empowered to order the payment of sums of money, direct that certain acts be done or not be done, and that goods be delivered up. 

Timing of decisions

The courts will ordinarily render decisions at the end of the case, after considering all the representations of the parties. Nevertheless, when we talk about processes in Nigeria the courts are empowered, in appropriate circumstances, to summarily terminate proceedings by dismissing actions where it is clear that the action discloses no cause against a defendant, is frivolous or otherwise amounts to improper use of the judicial process, or by granting summary judgment where it is clear that the defence proffered is no answer to the claim made. Applications for summary dismissals and judgments are provided for in the procedural rules of all High Courts in Nigeria. 

Default judgment for processes in Nigeria 

Default judgments may be made where a defendant fails to enter an appearance to an action or fails to file a defence to a claim for a debt or liquidated demand. 

Summary judgment 

Summary Judgment is one entered in favour of the Plaintiff or Claimant summarily without going through a full trial, i.e. hearing of evidence and written address by counsel. Talking about processes in Nigeria, the judgment is based on the writ of summons, the statement of claim and sometimes, statement of defence. In some circumstances, there may be no pleadings, but just an affidavit by the Plaintiff and a counter affidavit by the Defendant.

There are various types of summary judgments under the rules of courts dealing with processes in Nigeria. There is summary judgment based on admission of facts, summary judgment on application of accounts, summary judgment under Order 13 of the Lagos State High Court Rules and summary judgment under the undefended list procedure. A consent judgment is also a form of summary judgment but it differs on the ground that it is agreed on by the parties without adjudication by the court. 

Summary Judgments under Order 13 (Lagos State)

This procedure is used for processes in Nigeria where the Claimant believes that there is no defence to his claim. It may also be used where it will amount to a delay to allow the Defendant to defend the action or where the facts are straight forward and uncontested by the Defendant. At the time of filing, the Claimant shall accompany his writ of summons with the following:

  1. Statement of claim;
  2. The exhibit to be relied on at the trial; and
  3. The depositions of his witnesses.

In addition to the above documents, when we talk about processes in Nigeria, the Claimant shall also file an application for summary judgment, supported by an affidavit stating the grounds for his belief that there is no defence to his claim. Furthermore, he shall file a written brief i.e. arguments in support of the application.

Although the Rules of Court are silent on the mode of bringing the application for summary judgment before the court; however, dealing with processes in Nigeria, it is suggested that it should be by motion on notice given that all applications to the court except otherwise required, shall be by way of motion supported by affidavit. 

Where the Defendant Intends to Defend

If the Defendant who is served with the processes in Nigeria has a defence to the claim and intends to defend same, he must do so by filing the following documents within the time stipulated for defence:

  1. Statement of defence
  2. Deposition of his witnesses
  3. Exhibits to be relied on; and
  4. A written brief in reply or opposition to the application for summary judgment.

This means that the Defendant is no longer required to file a counter-affidavit when we talk about processes in Nigeria. All he needs to do is file his statement of defence along with the aforementioned documents within the time stipulated for defence which is 42 days from the day of service of the originating process and accompanying documents. The Defendants must also file a reply brief to the one filed in support of the application. Note, however, that his statement of defence must disclose a valid prima facie defence on the merit. Where the statement of defence discloses no reasonable defence to the claim, the Claimant shall be ordinarily entitled to summary judgment.

Where a Defence is Disclosed

On the day of hearing of the application, for processes in Nigeria, the Judge shall look at the statement of defence and if it appears to him that the Defendant has a good defence, he shall grant the Defendant leave to defend in which case, the matter will be entered in the general cause list to be tried fully. 

Where no Defence is Disclosed 

If it appears to the judge that no good defence has been disclosed by the Defendant, he may enter judgment in favour of the Claimant and such judgment is a final judgment having been delivered on the merit; it can only be set aside on appeal. Where, however, the Defendant fails or neglects to comply with the requirements of the Rules, like failing to file his defence and written brief, for instance, the judgment entered thereon would be a default judgment and may be set aside where good cause is shown by the Defendant. It should be noted that, for process in Nigeria, the Defendant may disclose a good defence to only a part of the claim. In such circumstances, the Judge may enter judgment in respect of the part to which no defence has been disclosed and grant leave to defend that part to which a defence has been disclosed. It is also noteworthy that where there is more than one Defendant, the Judge may enter judgment against those Defendants who do not disclose a defence to the claim, but shall grant leave to those who disclose a defence. Parties are at liberty to advance oral submissions in elucidation of their written briefs. 

Duration of proceedings

The time taken, for processes in Nigeria, depends on the nature of the case and the jurisdiction in which the case is being determined. More complex cases will inevitably take longer. However, in jurisdictions such as Lagos, where the courts are fully active, cases tend to take less than 6-18 months and frequently much lesser.

When we talk about processes in Nigeria, under the new High Court of Lagos State (Civil Procedure) Rules 2019, claims for liquidated monetary or counterclaim in a sum of One Hundred Million Naira, mortgage transaction, charge or other securities, and a liquidated monetary claim by a non-Nigerian national or non-resident in Nigeria, are qualified to be commenced in the fast track court, where the time spent on litigation must not exceed nine months from the date of commencement of the action till final judgment. Under this procedure, the Judge is to endeavour to deliver its judgment within 60 days from the completion of the trial. 

PARTIES 

Third parties – joinder, third-party notice, intervenors 

There are provisions in the procedural rules of courts for intervenors and third parties to join in an action for processes in Nigeria. The failure to join a party to a particular case will only preclude the claim from being brought later if the claim is caught by limitation laws (claim preclusion). Otherwise, the fact that the same or similar claim has previously been brought against another party will not preclude that claim being maintained against another party. A Defendant may seek the joinder of a third party in proceedings for the sole purpose of making that party bound by the court’s decision where the court is of the opinion that such third party is a necessary party for the adjudication of the particular case. A party who desires the order of the Court to bind a third party has the duty to join such third party in the action. 

TAKING AND ADDUCING EVIDENCE

When we talk about processes in Nigeria, it is up to the individual parties to present such evidence as is considered material and necessary for each individual case. 

Disclosure

Each party is entitled to seek disclosure of evidence in the possession or control of the adverse party by application either under the rules of court (by the administration of interrogatories) or under the Evidence Act dealing with processes in Nigeria. 

Witnesses of fact 

The purpose of witness evidence is to establish the existence or non-existence of facts in issue in a particular case. When we talk about processes in Nigeria a witness may only give evidence of facts directly within his or her knowledge. 

Expert witnesses

The parties appoint expert witnesses. Generally, opinion evidence is inadmissible. However, when the court has to form an opinion on foreign law, customary law or custom, science or art, the identity of handwriting or finger impressions, the opinions of persons specially skilled in such matters are admissible for processes in Nigeria. 

Party witnesses

Parties to civil proceedings are competent witnesses.

Foreign law and documentation

Foreign law is required to be proved as fact for processes in Nigeria’s courts, and the courts will receive the opinions of experts “who in their profession are acquainted with such law as admissible evidence” of such foreign law. Foreign language documentation is usually required to be translated into English and the translator will be required to attest that the translation is true and accurate. 

Standard of proof 

When we talk about processes in Nigeria, the standard of proof in civil litigation is the balance of probabilities and in criminal litigation, it is proof beyond a reasonable doubt. Where the commission of a crime by a party to any proceeding is directly in issue in civil proceedings, it must be proved beyond a reasonable doubt. 

Appeals 

Options for appeal dealing with processes in Nigeria 

An appeal from the decision of High Courts lies with the Court of Appeal. Appeals against final decisions of High Courts may be made ‘as of right’. Where the ground of appeal involves questions of law alone, the interpretation or application of the Constitution, where an injunction or the appointment of a receiver has been made or refused, and decisions “determining the case of a creditor or the liability of a contributory or other officers under any enactment relating to companies in respect of malfeasance or otherwise”, appeals are also as of right. When we talk about processes in Nigeria, other appeals may be made with leave of either the High Court or the Court of Appeal. Appeals from decisions of the Court of Appeal lie with the Supreme Court, the court of final appeal. Appeals may be made as of right against decisions of the Court of Appeal where the appeal involves questions of law alone and the interpretation or application of the Constitution. Other appeals may be made with leave of the Court of Appeal or the Supreme Court. 

Standard of review 

An appeal is by way of rehearing, but only upon the record from the lower court. Evidence is only taken afresh in extremely rare circumstances for processes in Nigeria. The appellate courts have the duty to re-evaluate the evidence led at the trial court and the application of the law to the evidence. 

Duration of appellate proceedings

The time taken to obtain a decision in an appeal to the Court of Appeal for processes in Nigeria depends upon the jurisdiction from which the appeal is made. Generally, appeals in as little as eight to nine months or may take as much as five or six years. Appeals from the Court of Appeal may take as long as eight or more years before a decision is obtained. This is because the Supreme Court sits in only one division, and cases from 16 divisions of the Court of Appeal are heard by the Supreme Court, which has a constitutional limit of 21 justices, and sits in panels of a minimum of five justices. 

SPECIAL PROCEEDINGS 

Derivative actions 

When we talk about processes in Nigeria, in corporate proceedings, a member of a company may apply to the court for leave to bring an action in the name or on behalf of a company, or to intervene in an action to which the company is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the company. The rights being pursued or defended are rights belonging to the company, and the member seeking to exercise it on behalf of the company needs to allege that those rights are not being pursued or defended, or not being properly pursued or defended.

FAST-TRACK PROCEEDINGS 

The Lagos State Judiciary has issued fast-track rules for certain types of processes in Nigeria. Cases assigned to the fast track route are to be concluded within nine months from their commencement. In order to qualify for the fast-track procedure, there must be a claim or counterclaim equivalent to at least US$630, 000. 00 or involves a non-resident investor in Nigeria, or a mortgage transaction.

LANGUAGE OF THE COURTS FOR PROCESSES IN NIGERIA 

The official language of the court in Nigeria is English. If any other language needs to be used, an interpreter of that language into English is required.

JUDGEMENT AND ENFORCEMENT

Judgments are binding on the parties to the action and their legal successors or privies. 

Enforcement procedure 

When we talk about processes in Nigeria, domestic judgments may be enforced in a number of ways. Money judgments are most frequently enforced by the attachment of goods and chattels belonging to the judgment debtor by a Sheriff. Money judgments may also be enforced by the attachment of debts owed to the judgment debtor by third parties as well as through insolvency proceedings – winding up for companies. Other methods of enforcement are sequestration and committal proceedings to enforce injunctions and similar orders. Some of the options available include taking out a writ of fieri facias, garnishee order, writ of attachment or sequestration. 

Enforcement of foreign judgments 

Foreign judgments may be enforced under treaty provisions or by the commencement of an action to enforce the foreign judgment. As for processes in Nigeria only have agreements for the reciprocal recognition and enforcement of foreign judgments with countries of the Commonwealth (through a registration process), judgments from other countries are only enforceable in Nigeria by civil actions. 

Costs 

The position in Nigeria is that a successful party is entitled to recover its costs from the unsuccessful party. 

CONTINGENCY FEES

Contingency fee arrangements are permitted for processes in Nigeria, subject to an express prohibition against a legal practitioner purchasing or otherwise acquiring an interest in the subject matter of litigation that he or she is conducting. 

FEE SCALES

Generally, there is no fixed scale of fees applicable to the conduct of processes in Nigeria. However, the amount chargeable depends on the nature, the required work done, and indeed the facts and circumstances of the case. For instance, the higher the amount claimed or in contention, the higher the billing; the burdensome the workload, the higher the required payment.


TCM Group Global Debt Collection
Ehi Esezobor
Esezobor & Partners/TCM Nigeria

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