NIGERIA Law and Practice Contributed by: Abubakar Anafi, Larry Nkwor, Justice Uka-Ofor and Ayomide Abiodun, G Elias
• a person cannot be compelled to produce any document that another person would be entitled to refuse to produce if the document was in their possession; • a public officer cannot be compelled to disclose communications (oral or written) made to the officer in official confidence if they believe this is against public interest (such communication may be given to the judge in chambers); • the court cannot compel the disclosure of informa- tion covered by attorney–client privilege; • a court will not compel the disclosure of communi- cation between spouses during their marriage; • a statement in any document marked “without prejudice” made during the settlement of a dispute out of court is protected from disclosure and is inadmissible in court; and • classified matters under the Official Secrets Act, 2011 are not to be disclosed to the public, as such disclosure would be prejudicial to the security of Nigeria. 5.4 Alternatives to Discovery Mechanisms There are no alternatives to discovery mechanisms in Nigeria. 5.5 Legal Privilege Attorney–client privilege is statutorily recognised. In law, a legal practitioner must not disclose any com- munication made to them by or on behalf of their client in the course of the practitioner’s employment except where: • the client has expressly consented to the disclo- sure; • the communication was made in furtherance of an illegal purpose; or • the legal practitioner discovers that crime or fraud has been committed. This legal privilege continues to subsist after employ- ment. There is a distinction between external and in-house counsel under Nigerian law. In-house counsel cannot: • appear in court for their employer except where they are employed by the government; or
• sign pleadings, instruments, agreements, legal opinions, or file the same for their employer. In-house counsel typically liaises with external coun- sel, who will represent their employers in court. 5.6 Rules Disallowing Disclosure of a Document See 5.3 Discovery in This Jurisdiction . 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief The types of injunctions available include interim, interlocutory, mandatory, Mareva, Anton Piller, and perpetual injunctions. Interim and Interlocutory Injunctions Interim and interlocutory injunctions are granted to preserve the subject matter of the suit or to prevent serious or irreparable damage. While interim injunc- tions are made ex parte on an urgent basis pending the hearing and determination of a motion on notice for order(s) of interlocutory injunction, orders of interlocu- tory injunction are made on notice pending the hearing and determination of the substantive suit. Interim and interlocutory injunctions are granted where: • a legal right or interest is to be protected; • there are serious triable issues; • the balance of convenience is in favour of the applicant; • damages are not an adequate remedy; • the applicant gives an undertaking as to damages; and • the applicant is not guilty of reprehensible conduct. Orders freezing assets or preventing parallel proceed- ings may be granted through interim or interlocutory motions. Mandatory Injunctions Mandatory injunctions are granted to compel a party to take a specific action where damages will not be an adequate remedy. Mandatory injunctions are also granted to undo an act that has already been commit- ted to overreach the applicant and the court.
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