Global Investigations Review - The law and practice of international investigations

The Practitioner’s Guide to Global Investigations, Third Edition

Nigeria

Sofunde, Osakwe, Ogundipe & Belgore

General context and principles

1 Identify the highest-profile corporate investigation under way in your country, describing and commenting on its most noteworthy aspects as it relates to your country.

There have been a number of high-profile cases involving corporate investigations in Nigeria during 2018, many of which were not commenced in Nigeria. The majority of these cases involve Nigeria’s petroleum sector and, directly or indirectly, the national oil company – Nigerian National Petroleum Corporation. The following are the most worthy of note.

The National Assembly has continued to look into the involvement of Nigerian politicians and officials in alleged bribery by Shell and ENI in relation to the transfer to these companies of an oil prospecting licence previously held by a company called Malabu Oil and Gas Limited, in which a former oil minister in the Abacha government and members of the Abacha family are believed to have held beneficial interests. The allegations resulted in the criminal prosecution of Shell and ENI in Milan, and the admittance of Nigeria as a civil party in the proceedings, which remain pending.

A second investigation involves the oil minister in the government of former President Jonathan, Diezani Alison-Madueke, and companies associated with two individuals, Kola Aluko and Jide Omokore, who are alleged to have acted as fronts for the minister. Proceedings were commenced by the US Department of Justice in 2017, under its Kleptocracy Asset Recovery Initiative, against corporations in which both Aluko and Omokore are alleged to have interests, and a criminal prosecution is continuing against them in Nigeria. Media reports have indicated that proceedings involving the trio have also begun in the United Kingdom.

The Nigerian Senate has alleged, following investigations it has conducted, that there is a 50 billion naira (approximately US$140 million) cost variation in connection with the Egina oil field, which is located in water up to 1,750 metres deep 150 kilometres off the coast of Nigeria. The field, which is being developed by Total Upstream Nigeria (24 per cent) in partnership with the China National Offshore Oil Corporation, Nigeria’s Sapetro and Petrobras of Brazil, went into production in August 2018. The Senate investigation, which has little legal consequence, has failed to provide any evidence of wrongdoing.

2 Outline the legal framework for corporate liability in your country.

Many statutes create criminal offences for which corporations may be held liable. Each state of the Nigerian federation has its own criminal laws. In Lagos, the largest state in terms of population and the size of its economy, the Criminal Law at section 20 makes specific provision for corporate criminal liability. Any act or omission under the Law is attributable to the corporation when ‘it is done or omitted to be done by its officer’. In determining which officer of a corporation whose act or omission can be attributed to the company, a court must ‘have regard to all the circumstances, including the fact that the person has apparent or real authority to bind the company’. If the prohibited conduct is performed by a person who is not an officer of a corporation, it will nevertheless be criminally liable if the act or omission was carried out by the person in the performance of his or her duty as an employee of the corporation and if the corporation failed to take steps to prevent it.

3 In your country, what law enforcement authorities regulate corporations? How is jurisdiction between the authorities allocated? Do the authorities have policies relating to the prosecution of corporations?

Other than the body charged with the regulation of corporations, the Corporate Affairs Commission (CAC), no specific law enforcement authority regulates corporations. The CAC regulates and supervises companies from incorporation to dissolution. Its functions are listed in the Companies and Allied Matters Act. The CAC can impose penalties and sanctions for corporate misconduct, and for security market-related offences such as insider trading and market manipulation, most of which are pecuniary in nature.

In addition to the CAC, Nigeria’s Securities and Exchange Commission is charged with the regulation of investments and securities in Nigeria, and its functions are listed in section 8 of the Investments and Securities Act.

The Federal Inland Revenue Service is responsible for the taxation of corporations in Nigeria and may take tax enforcement action against corporations.

The various authorities are created by statute and, generally, there is rarely any overlap.

There are a number of other regulatory agencies, such as the Central Bank of Nigeria, which regulates the banking industry, the Department of Petroleum Resources, which regulates the oil and gas industry, and the National Insurance Commission, which regulates the insurance industry.

Other than these agencies, the law enforcement agencies that prosecute cases against corporations are the Nigeria Police Force and the Economic and Financial Crimes Commission.

4 What grounds must the authorities in your country have to initiate an investigation? Is a certain threshold of suspicion necessary to trigger an investigation?

There are no grounds laid down regarding which law enforcement authorities may initiate investigations. Consequently, it would appear that simple suspicion may be all that is required to trigger an investigation. Usually, however, investigations will only be initiated on the basis of a complaint or an allegation that an offence has been committed.

5 Does double jeopardy, or a similar concept, apply to prevent a corporation from facing criminal exposure in your country after it resolves charges on the same core set of facts in another country?

Under Nigerian law, persons may not be tried for an offence if they can show they have previously been ‘convicted or acquitted of the same offence by a competent court’ or ‘convicted or acquitted by a competent court on a charge on which he might have been convicted of the offence charged’. However, it is questionable whether this provision would be of assistance to corporations carrying on business in Nigeria, given that foreign corporations wishing to carry on business in Nigeria must incorporate in Nigeria and be separate and distinct from the non-Nigerian corporation. The Nigerian corporation would have to have been involved in the foreign proceedings to be able to take advantage of these provisions. Further, since a deferred prosecution agreement does not amount to an acquittal or conviction, this might pose additional challenges to the ability of a corporation to rely on the double jeopardy provisions to avoid being subjected to further action in Nigeria.

6 Does criminal law have general extraterritorial effect in your country? To the extent that extraterritorial effect is limited to specific offences, describe those which have extraterritorial effect, the statutory basis and any conditions that must be met for extraterritoriality to apply.

The criminal law in Nigeria does not purport to have extraterritorial effect. The state and federal criminal laws apply only to persons (natural and legal) within Nigeria.

7 Describe the principal challenges in your country that arise in cross-border investigations, and explain whether and how such challenges are dependent on other countries involved.

The principal challenge, and one that has arisen in relation to investigations conducted and concluded outside Nigeria, relates to corporations being pursued, and punished, in Nigeria for conduct that has been penalised outside Nigeria. This occurred, to some extent, to corporations involved in the Bonny Island bribery cases. Those corporations were subjected to sanctions imposed by the US Department of Justice and the Securities and Exchange Commission. While from a strictly legal perspective this is not a real problem as the corporation that would most likely be subjected to sanctions in Nigeria is likely to be Nigerian (foreign corporations are, generally, not permitted to carry on business in Nigeria unless they are locally incorporated), the corporations that were involved did consider action taken against their Nigerian subsidiaries and affiliates as amounting to being penalised for conduct that had already been sanctioned elsewhere.

8 What bearing do the decisions of foreign authorities have on an investigation of the same matter in your country?

Much depends on the foreign authority and the corporations involved, and on whatever policy considerations are at play. There appear to be no rules or other objective criteria available to enable an all-embracing answer to this question.

9 Do your country’s law enforcement authorities have regard to corporate culture in assessing a company’s liability for misconduct?

Corporate culture does not appear to have been a feature in the approach of law enforcement authorities in Nigeria to taking action against corporations.

10 What are the top priorities for your country’s law enforcement authorities?

Corruption has been stated by the present Nigerian government to be one of its top priorities. In addition, given the recent decline of the price of crude oil – the country’s largest source of income – more efficient collection of tax and customs duties have also become more important. However, the approach has been to focus more on recovering money than on pursuing transgressors.

11 How are internal investigations viewed by local enforcement bodies in your country?

As stated above, internal investigations involving external legal practitioners are rare in Nigeria. When they are conducted, they tend to be in the form of internal and external audits rather than investigations conducted by external counsel. Given their rarity, the authorities do not appear to have any position on them.

Before an internal investigation

12 How do allegations of misconduct most often come to light in companies in your country?

Allegations of misconduct usually surface through whistleblowers, internal audits and media reports. A matter of concern when allegations arise from whistleblowing is the victimisation and dismissal of whistleblowers by corporations.

13 Does your country have a data protection regime?

Nigeria does not have any specific data protection regime. The protection that does exist can be found in section 37 of the Nigerian Constitution (which provides that the ‘privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected’) and a number of industry-specific regulations. For example, the Nigerian Communications Commission (NCC) requires that all its licensees (telecom service providers) must take reasonable steps to protect customer information against ‘improper or accidental disclosure’ and ensure that this information is securely stored. In addition, there is a requirement that information must not be transferred to any party except as otherwise permitted or required by other applicable laws or regulations.

The National Information Technology Development Agency (NITDA) is the authority responsible for planning, developing and promoting the use of information technology in Nigeria. It is empowered to issue guidelines that may prescribe data protection requirements relating to the collection, storage, processing, management, operation and technical controls for information and, in 2017, it issued data protection guidelines. These guidelines, which remain in draft form, are currently the only set of regulations that contain any comprehensive provisions relating the protection, storage, transfer or treatment of data in Nigeria. In the draft guidelines, personal data is defined as ‘any information relating to an identified or identifiable natural person, information relating to an individual, whether it relates to his or her private, professional or public life. It can be anything from a name, an address, a photo, an email address, bank details, posts on social networking websites, medical information or a computer’s IP address’. Data controllers are obliged to prevent any transfer of data to any country that does not ensure an adequate level of protection within the prescribed context of the guidelines. The guidelines also recommend that the processing of all data collected shall not take place without the consent of the data subject.

Not only do the guidelines remain in draft form, even if they are formally issued by the NITDA, they would only be guidelines. They are not mandatory. Even if they were, there are no mechanisms for their enforcement in either the guidelines themselves or the legislation that established the NITDA. Consequently, their value, if and when issued, is open to question.

14 How is the data protection regime enforced?

As indicated in question 13, there is no mechanism for the enforcement of the data protection guidelines. Consequently, other than under the NCC’s regulations or under the provisions of the Constitution, there are no procedures for the enforcement of data protection provisions.

15 Are there any data protection issues that cause particular concern in internal investigations in your country?

In the absence of general data protection laws, it would appear that there are few data protection issues likely to cause concern in the conduct of internal investigations in Nigeria. As long as other provisions of the law are not infringed, data protection, generally, tends not to pose any particular problems to investigations.

16 Are search warrants or dawn raids on companies a feature of law enforcement in your country? Describe any legal limitations on authorities executing search warrants or dawn raids, and what redress the company has if those limits are exceeded.

Search warrants and dawn raids are a rarity in Nigeria. When a search warrant is required, it is issued by a magistrate, which is the lowest rank of judicial officer in Nigeria. In order to obtain a warrant, the law enforcement authority must show that there are reasonable grounds to believe the search will provide evidence that a crime has occurred or is likely to occur, and that evidence relating to this is believed to be in the premises to be searched. Unfortunately, search warrants, and the process for obtaining them, have rarely been subjected to any significant judicial scrutiny. Anecdotal evidence indicates that warrants are issued on request and magistrates do not scrutinise the grounds for them.

In theory, if a law enforcement authority fails to comply with the terms of a warrant, a court may preclude it from using any improperly or illegally obtained evidence in a court proceeding.

17 How can privileged material be lawfully protected from seizure during a dawn raid or in response to a search warrant in your country?

According to section 144 of the Administration of Criminal Justice Act, searches are conducted when law enforcement authorities show there are reasonable grounds to believe that the search will provide evidence that a crime has occurred or is likely to occur. All material deemed to be connected to the commission of a crime can be seized, whether privileged or otherwise. The issue as to the admissibility of the material and the weight to be attached to it can only be resolved in the courts when, and if, a party to the proceedings seeks to rely on such material.

18 Are there any privileges in your country that would prevent an individual or company from providing testimony? Under what circumstances may an individual’s testimony be compelled in your country? What consequences flow in your country from such compelled testimony?

The Evidence Act provides for competence and compulsion of witnesses. Privileges that prevent individuals from providing testimony include attorney–client privilege, spousal privilege and those relating to self-incrimination.

19 What legal protections are in place for whistleblowers in your country?

There is currently no general law providing protection for whistleblowers in Nigeria. The Senate passed a Whistleblower Protection Bill in 2017, but the House of Representatives has yet to pass the Bill. The Federal Ministry of Finance unveiled a whistleblowing programme in December 2016. Under this, persons providing information relating to the violation of financial regulations, the mismanagement or misappropriation of public funds and assets, theft, solicitation and collection of bribes, procurement frauds and other infractions are entitled to receive rewards, calculated as a percentage of monies recovered, and to do so without their identities being revealed publicly. The Investments and Securities Act provides a framework for the disclosure of information in respect of capital market operators and public companies. In 2011, Nigeria’s Securities and Exchange Commission released a Code of Corporate Governance for Public Companies, which includes a provision that all public companies establish a whistleblowing mechanism for the reporting of illegal and unethical behaviour. In addition, the Financial Reporting Council of Nigeria released the National Code of Corporate Governance, which also provides comprehensive guidelines for the protection of whistleblowers in the private sector.

20 What rights do employees possess under local employment law that determine how they are treated within a company if their conduct is within the scope of an investigation? What employment rights would attach if they are deemed to have engaged in misconduct? Does it differ for officers and directors of the company?

Generally, employees have no specific rights under employment laws that determine how they should be treated if their conduct brings them within the scope of an internal or external investigation. The rights and obligations of an employee are, by and large, regulated by the terms of the employment contract. When employees are accused of misconduct, employment law does not afford them any specific rights.

21 Are there disciplinary or other steps that a company must take in your country when an employee is implicated or suspected of misconduct, such as suspension or in relation to compensation? Can an employee be dismissed for refusing to participate in an internal investigation?

The steps an employer may take when an employee is suspected of misconduct depend on the terms of the employment contract. Generally speaking, and without specific provisions in the employment contract, corporations may take any number of disciplinary actions against employees suspected of misconduct, including suspension and termination. When an employee is deemed to have engaged in misconduct, upon conclusion of investigations, the company may dismiss the employee summarily and report the conduct to the appropriate law enforcement authority.

Commencing an internal investigation

22 Is it common practice in your country to prepare a document setting out terms of reference or investigatory scope before commencing an internal investigation? What issues would it cover?

As stated in question 11, the involvement in Nigeria of external counsel in corporate investigations is uncommon and, as a result, it is difficult to discern any general practices. However, to conduct an internal investigation properly, there must be some terms of reference, and it would be expected that such a document would include a summary of ascertained facts, the objectives and scope of the investigation, the procedures for the conduct of the investigation and any limitations that there may be in carrying out the investigation.

23 If an issue comes to light prior to the authorities in your country becoming aware or engaged, what internal steps should a company take? Are there internal steps that a company is legally or ethically required to take?

When a company becomes aware of issues before the Nigerian authorities do, the first step should be to seek local legal advice. There is no positive obligation to ensure that records are secured and retained. However, the destruction or suppression of such records could result in obstruction of justice charges. Similarly, there is no requirement to self-report to regulatory or law enforcement agencies. Any decision as to whether to self-report should be made on a case-by-case basis. Currently, it is extremely rare that companies self-report to the authorities. In one instance where a publicly quoted company self-reported issues relating to its accounts, arising from the fraudulent conduct of an individual executive that resulted in the incorrect reporting of stock, all the members of the board were sanctioned and barred from holding office as company directors, including those who had no involvement in the wrongdoing. While the sanctions were eventually overturned, following successful litigation against the regulators, this occurrence reinforces the view that, presently in Nigeria, the best course of action may not involve any self-reporting, given the absence of any reporting framework. It might well be that the best thing to do, once an investigation has been concluded, is to keep the information private and secure and wait to see what action, if any, the relevant regulatory or law enforcement agencies might take.

24 At what point must a company in your country publicly disclose the existence of an internal investigation or contact from law enforcement?

Privately owned companies are not required to publicly disclose the existence of internal investigations or contact from law enforcement. However, Rule 187 of Nigeria’s Securities and Exchange Commission’s Rules and Regulations, which applies to companies listed on public exchanges, provides that ‘[a]ll information likely to affect the financial condition of a company shall be made available to the Commission by the company and the Commission shall disclose it on the trading floor immediately the information is made available’.

25 When would management typically brief the board of a company in your country about an internal investigation or contact from law enforcement officials?

There are no legal requirements as to when management should brief the board about an internal investigation or contact from law enforcement. To a great extent, this would depend on the company in question. Clearly, it would normally be best that the board be kept informed of any such developments.

26 What internal steps should a company in your country take if it receives a notice or subpoena from a law enforcement authority seeking the production or preservation of documents or data?

The power to issue subpoenas in Nigeria stems from provisions in civil and criminal procedure legislation. Accordingly, they may only be issued by a court in the context of ongoing proceedings. Consequently, law enforcement agencies and regulatory authorities do not, as a general rule, issue subpoenas. Upon the receipt of a properly issued subpoena, the recipient must, in the case of a witness summons, attend the court at the designated time and, in the case of a documents subpoena, attend to produce the documents listed in the subpoena.

27 How can the lawfulness or scope of a notice or subpoena from a law enforcement authority be challenged in your country?

A subpoena may be challenged by making an application to the court seeking to set aside the subpoena. The grounds on which a court will set aside a subpoena include:

  • the scope of the documents or information requested unfairly burdens or prejudices the recipient of the subpoena; and
  • legal privileges, such as attorney–client privilege, spousal privileges and the right against self-incrimination.

Attorney–client privilege

28 May attorney–client privilege be claimed over any aspects of internal investigations in your country? What steps should a company take in your country to protect the privilege or confidentiality of an internal investigation?

Attorney–client privilege may only be claimed under Nigerian statutory law where a legal practitioner has been engaged and has received information from his or her client ‘in the course of and for the purpose of his employment as such legal practitioner by or on behalf of his client’. Legal practitioners may also not disclose the contents of documents with which they have become acquainted, or the contents of any advice given, in the course and for the purpose of their employment as legal practitioners. In addition, the Rules of Professional Conduct for Legal Practitioners impose a duty to keep confidential all communications with clients. There is some doubt as to whether in-house counsel have the same duty, and the issue has yet to be determined in Nigeria. To ensure that privilege attaches to an internal investigation, it would be advisable to engage external counsel.

29 Set out the key principles or elements of the attorney–client privilege in your country as it relates to corporations. Who is the holder of the privilege? Are there any differences when the client is an individual?

Under the Evidence Act, legal practitioners may not, except with the consent of the client, disclose ‘communications made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment’. This privilege is the client’s and does not extend to communications made in furtherance of illegal purposes.

The Rules of Professional Conduct for Legal Practitioners state the obligations differently, providing that all communications made by a client to a ‘lawyer in the normal course of professional employment’ are ‘privileged’. It goes on to prohibit a lawyer from revealing a ‘confidence or secret of his client’. Again, it is clear that the privilege is that of the client. There is no distinction between a client that is an individual and one that is a corporation.

30 Does the attorney–client privilege apply equally to in-house and external counsel in your country?

This is unclear, as there have been no judicial statements on the matter. The answer turns on how in-house counsel are viewed – as employees in general, or as lawyers whose client is their employee. As Nigeria is a common law jurisdiction, the views in other common law jurisdictions are relevant. Generally, in-house counsel are lawyers for privilege purposes. Ultimately, the burden of demonstrating that an in-house counsel’s communication is privileged falls on the corporation. To establish the privilege, the corporation must show that the in-house counsel’s communication:

  • was made for the purpose of obtaining or providing legal advice to the corporation;
  • involved subject matter within the scope of the employee’s responsibilities for the corporation;
  • was known by the parties to the communication to be for the purpose of legal advice; and
  • was confidential when made and has remained confidential.

31 To what extent is waiver of the attorney–client privilege regarded as a co-operative step in your country? Are there any contexts where privilege waiver is mandatory or required?

We are not aware of any instance where this issue has arisen. There are no situations where the waiver of privilege is mandatory. Generally, the privilege may only be waived by the client – the corporation – but the obligation to maintain client confidentiality is not mandatory:

  • when the communication is made in furtherance of any illegal purpose and the acts of the client constitute a crime or fraud or other illegal acts; and
  • where permitted by law or to comply with a court order.

32 Does the concept of limited waiver of privilege exist as a concept in your jurisdiction? What is its scope?

In theory, given the nature and extent of legal privilege, the client may stipulate the extent to which it waives that privilege, and should be able to require parties to which disclosure is made to maintain the confidentiality with regard to further disclosures. This issue has, however, not been considered by the courts in Nigeria.

33 If privilege has been waived on a limited basis in another country, can privilege be maintained in your own country?

Privilege generally can only be waived with the consent of one’s client. In relation to attorney–client privilege, no attorney is permitted, unless with the client’s express consent, to disclose any communication made to him or her in the course and for the purpose of his or her employment. Accordingly, information that is not treated as privileged in another country may still attract privilege in Nigeria, if it comes under what the law determines to be privileged communication.

34 Do common interest privileges exist as concepts in your country? What are the requirements and scope?

As a common law jurisdiction, Nigeria would recognise, in appropriate circumstances, common interest privileges. Such privilege would attach to communications between a legal practitioner and other parties who share a common interest with the client, provided such communications are made with a view to developing legal advice in anticipation of, or collecting evidence for, litigation. This privilege also applies to all documents obtained or prepared with a view to litigation.

35 Can privilege be claimed over the assistance given by third parties to lawyers?

Where the third party acts under the direction of a legal practitioner, the third party is bound by the same obligations as the legal practitioner.

Witness interviews

36 Does your country permit the interviewing of witnesses as part of an internal investigation?

The interviewing of witnesses, as part of an internal investigation, is permitted as there are no laws prohibiting the practice.

37 Can the attorney–client privilege be claimed over internal witness interviews or attorney reports in your country?

Communications made with a view to developing legal advice in anticipation of litigation, or collecting evidence for litigation, is privileged. Therefore, privilege may be claimed where internal witness interviews take place with litigation in contemplation.

38 When conducting a witness interview of an employee in your country, what legal or ethical requirements or guidance must be adhered to? Are there different requirements when interviewing third parties?

There are no legal or ethical requirements or guidance currently stipulated in Nigeria when conducting witness interviews of employees. However, the wise course is to adhere to international best practices.

39 How is an internal interview typically conducted in your country? Are documents put to the witness? May or must employees in your country have their own legal representation at the interview?

There is no prescribed way to conduct internal interviews. This would be mainly down to the nature of the investigation and any internal company policy and guidelines. Investigations are usually document-heavy so, most probably, documents will be put to the witness if they are relevant to the investigation. Ordinarily, employees do not require their own legal representation; however, there is no law prohibiting it. The only concern for most employees is that the use of legal representation may appear to suggest some measure of guilt on their part.

Reporting to the authorities

40 Are there circumstances under which reporting misconduct to law enforcement authorities is mandatory in your country?

Under certain legislation, such as the Independent Corrupt Practices Commission Act (reporting the solicitation of bribes) and the Money Laundering (Prohibition) Act, the reporting of certain types of conduct is mandatory.

41 In what circumstances might you advise a company to self-report to law enforcement even if it has no legal obligation to do so? In what circumstances would that advice to self-report extend to countries beyond your country?

Generally, we would not advise a company to self-report to any law enforcement agency or regulatory authority. If, as a result of a good relationship with an agency or authority, it were possible to anonymously provide information as to the nature of some infringement and to obtain assurances that the resulting official investigation would not be conducted oppressively, we might advise that a report be made. Otherwise, our routine advice would be not to self-report.

42 What are the practical steps you need to take to self-report to law enforcement in your country?

As indicated in question 41, we would generally not advise self-reporting. However, where self-reporting is contemplated, no information should be passed on to the authorities until attempts have been made to understand how the authority would respond and after assessing that any action that would be taken would not be oppressive or inordinate. Only where there is a high level of confidence would self-reporting be advised.

Responding to the authorities

43 In practice, how does a company in your country respond to a notice or subpoena from a law enforcement authority? Is it possible to enter into dialogue with the authorities to address their concerns before or even after charges are brought? How?

Law enforcement authorities do not issue subpoenas. They may only be issued by courts in the context of ongoing proceedings.

44 Are ongoing authority investigations subject to challenge before the courts?

The exercise of investigative powers by law enforcement authorities can be challenged by an application to the court if it is considered unlawful. If declared unlawful, the court can order various remedies, such as terminating the exercise of that power or awarding damages. Generally, however, the courts tend not to interfere with the conduct of investigations by law enforcement authorities.

45 In the event that authorities in your country and one or more other countries issue separate notices or subpoenas regarding the same facts or allegations, how should the company approach this?

As indicated in question 43, subpoenas may only be issued by courts in the context of ongoing proceedings. Unless an authority in a foreign country can exercise authority over a Nigerian company, disclosure cannot be enforced against the Nigerian company. Of course, there may be other factors that would influence how a company might react to foreign demands for material. However, there are no data protection laws or blocking statutes in force in Nigeria that would be relevant.

46 If a notice or subpoena from the authorities in your country seeks production of material relating to a particular matter that crosses borders, must the company search for and produce material in other countries to satisfy the request? What are the difficulties in that regard?

Subpoenas are only issued by courts, and Nigerian courts have no extraterritorial reach, nor do they profess to have. Consequently, if material sought by a properly issued subpoena is not under the control of the company to which the subpoena is addressed, the company is under no obligation to seek to obtain such material and will not be sanctioned for its inability to produce the material.

47 Does law enforcement in your country routinely share information or investigative materials with law enforcement in other countries? What framework is in place in your country for co-operation with foreign authorities?

Information is shared, both formally and informally, with countries with which Nigeria has treaties, conventions or other agreements, and informally with other friendly countries where the sharing of information is not unlawful.

48 Do law enforcement authorities in your country have any confidentiality obligations in relation to information received during an investigation or onward disclosure and use of that information by third parties?

Any such obligations would depend on how the information is shared. If there is an agreement under which the information is shared, and that agreement stipulates some confidentiality obligations, the Nigerian authorities would most likely abide by them.

49 How would you advise a company that has received a request from a law enforcement authority in your country seeking documents from another country, where production would violate the laws of that other country?

Unless the law enforcement authority in Nigeria may request the production of the documents, we would advise against providing them.

50 Does your country have blocking statutes? What related issues are implicated by complying with a notice or subpoena?

Nigeria has neither blocking statutes nor any general privacy laws, other than the general constitutional right to the privacy of homes, correspondence, telephone conversations and telegraphic communications.

51 What are the risks in voluntary production versus compelled production of material to authorities in your country? Is this material discoverable by third parties? Is there any confidentiality attached to productions to law enforcement in your country?

The primary risk of voluntary production of material is that there are no guarantees as to how such material will be used by the Nigerian authority or agency. The material may also be subject to disclosure under freedom of information legislation. Although there are no confidentiality rules attached to productions to law enforcement in Nigeria, and Nigerian law enforcement agencies are generally unwilling to share information with non-official bodies, there can be little confidence that such material will not be leaked.

Global settlements

52 Prior to any settlement with a law enforcement authority in your country, what considerations should companies be aware of?

The primary considerations would be with regard to whether the settlement needs to be kept confidential, and whether it would have any adverse consequences outside Nigeria.

53 What types of penalties may companies or their directors, officers or employees face for misconduct in your country?

The penalties applicable to companies are fines and forfeiture of assets. Directors and officers of companies, on the other hand, are subject to imprisonment as well as to fines and forfeitures.

54 What do the authorities in your country take into account when fixing penalties?

The authorities will consider the gravity of the offence, the punishment prescribed by the law, whether the offender is a first-time offender, any mitigating circumstances and the interest of the public, among other things.

55 Are non-prosecution agreements or deferred prosecution agreements available in your jurisdiction for corporations?

Nigeria has no formal framework of non-prosecution or deferred prosecution agreements.

56 Is there a regime for suspension and debarment from government contracts in your country? Where there is a risk of suspension or debarment or other restrictions on continuing business in your country, what are the options available to a corporate wanting to settle in another country?

Nigeria has no formal framework for suspension or debarment from government contracts, and settlements in other jurisdictions are not usually relevant to the award of contracts in Nigeria.

57 Are ‘global’ settlements common in your country? What are the practical considerations?

Simultaneous resolutions are uncommon. However, companies that have had issues in other jurisdictions have, on occasion, also had to resolve issues relating to the same misconduct separately in Nigeria.

58 Are parallel private actions allowed? May private plaintiffs gain access to the authorities’ files?

Private civil actions can be undertaken at the same time as prosecutions. Private individuals have limited rights to undertake the prosecution of criminal offences. However, Nigeria does not have the concept of complainants being parties to prosecutions undertaken by the state, and complainants have no rights to access the authorities’ files.

Publicity and reputational issues

59 Outline the law in your country surrounding publicity of criminal cases at the investigatory stage and once a case is before a court.

There is no law regulating publicity of criminal cases at either the investigatory stage or once the case is before a court. Although persons accused of criminal offences are presumed to be innocent until proven guilty, the absence of jury trials in Nigeria makes it extremely difficult for defendants to contend that pretrial publicity has created a real risk that they will not be afforded a fair trial.

60 What steps do you take to manage corporate communications in your country? Is it common for companies to use a public relations firm to manage a corporate crisis in your country?

Large companies will frequently use public relations firms to manage crises, but this is rarely made public.

61 How is publicity managed when there are ongoing, related proceedings?

If there is public (or media) interest in ongoing proceedings, they will be covered by Nigeria’s print and electronic media. Proceedings in court are generally open to the public although they cannot be televised or otherwise broadcast. Documents filed in court are accessible to the public, theoretically, though many courts will place obstacles to access in the path of persons seeking to obtain them. For example, judges may direct court registrars to restrict access to court documents to the parties to a legal action. Though there is no legal backing for restricting access, there is a lack of understanding among some of the judiciary of the rights of persons to access information under the Freedom of Information Act.

Duty to the market

62 Is disclosure to the market in circumstances where a settlement has been agreed but not yet made public mandatory?

Under the rules of Nigeria’s Securities and Exchange Commission, publicly quoted companies must disclose to the Commission ‘all information likely to affect the financial condition’ of the company. There is also a requirement to disclose that information ‘on the trading floor immediately the information is made available’. Therefore, if a settlement has been agreed with a publicly quoted company and it is ‘likely to affect the financial condition’ of the company, that must be disclosed to the Commission, which would then disclose it on the floor of the exchange.


Footnotes

Babajide Ogundipe is a partner, Benita David-Akoro is an associate and Olatunde Ogundipe is an investigator/analyst at Sofunde, Osakwe, Ogundipe & Belgore.

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