NIGERIA Law and Practice Contributed by: Adeyinka Aderemi, Omono Blessing Omaghomi and Ibukun Enigbokan, Streamsowers & Köhn
legal right or an entitlement or the position of the law but contains no specific order to be carried out by the successful party or enforced against the unsuccessful party. Declaratory relief is discretionary and granted only in circumstances where the court is convinced by credible evidence. Thus, declaratory relief is not given either in default of defence or on admissions without the court hearing evidence and being satisfied by such evidence that the plaintiff is entitled to the declaration sought. Injunctive Relief Injunctive relief is a readily available remedy in the private law field for preventing the commission of an unlawful act such as a tort or a breach of contract. However, in the public law field, it is a remedy avail- able against a public authority to prevent the commis- sion of or continuation of unlawful acts. The remedy would not be made available to a litigant who does not have a legal right to the subject matter of the action. The types of injunctions available are: • mandatory injunctions, which are granted by the court to compel a party to do a specific thing or action; • prohibitory injunctions, which seek to prevent someone from engaging in a particular act pending the determination of the case; and • perpetual injunctions, which are an ancillary relief granted to protect an established legal or equitable right ‒ where the substantive right has not been established, no injunctive relief would be granted. Damages Whether the matter complained about is a breach of contract or a tort, the primary theoretical notion is to place the plaintiff in as good a position ‒ as far as money can ‒ as the plaintiff would be in had the matter complained about not occurred. The principle envis- ages that a party that has been injuriously affected by the act complained of must be put in a position in which they would have been if they had not suf- fered the wrong for which they are being compen- sated. Damages awarded from a class action are in two categories: compensatory damages and punitive damages.
Compensatory damages are awarded to compensate for direct or actual loss suffered such as illness, loss of life or pain and suffering and could be further cat- egorised as follows. • General damages are compensation for losses that the law will presume to be the direct, natural or provable consequence of the act complained of, flowing naturally from the act of the defendant and which the plaintiff need not specifically set out or prove in their pleadings. • Special damages are compensation for the excep- tional, quantifiable losses suffered by the plaintiff that are the actual result of injury or harm com- plained of (eg, hospital bills already paid) and must be specifically claimed for and proved. Punitive damages, on the other hand, are a form of exemplary damages postulating a punishment for the defendant and not mere compensation for the plain- tiff. In addition, punitive damages must be specially claimed for the court to grant them. 3.12 Settlement and ADR Mechanisms Settlement Settlement of claims in a collective redress or class action is similar to settlement in individual civil claims brought before the court. Although the rules of various High Courts do not explicitly address the manage- ment of settlements or settlement agreements, the courts are enjoined to promote and encourage ami- cable settlement of claims filed by the parties. Parties involved in the proceedings may choose to pursue an out-of-court settlement. In such cases, where settle- ment is agreed, the terms of settlement are drawn up and filed in the court, which then adopts them as a consent judgment in the action. For a consent judg- ment to be granted, the parties must be in agreement, their consent must be voluntary, and the terms of set- tlement must be filed with the court. Once a consent judgment is issued, none of the parties have the right of appeal except with the leave of the court and only on limited grounds such as conspiracy or fraud. ADR There is no specific ADR mechanism exclusively designed for collective redress or class actions. Instead, general procedural law governs these pro-
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