General context, key principles and hot topics
1 Identify the highest-profile corporate investigation under way in your country, describing and commenting on its most noteworthy aspects.
No significant new corporate investigations have come into the public domain during the past 12 months. The cases that have received attention in the media were reported in the 2018 edition of this chapter, which mostly involved Nigeria’s petroleum sector and, directly or indirectly, the national oil company – Nigerian National Petroleum Corporation. They included the Malabu matter, in which the Federal Republic of Nigeria commenced fresh civil proceedings in the English High Court against JPMorgan Chase and others.
An interesting development, about which few details have emerged, is the announcement, made in July 2019, that the Nigerian Information Technology Development Agency (NITDA) was investigating several entities – from banks, financial technology companies and telecommunication companies, to the National Immigration Service – for alleged breaches of the Nigerian Data Protection Regulation (NDPR), specifically Article 2, which is focused on data retention, protection from theft and unnecessary transfer. The outcome of these investigations are awaited with great interest as they will provide some indication as to how NITDA will handle breaches of the NDPR.
The Niger Delta Development Committee (NDDC) was created in 2000 with the stated purpose of assisting the development of the Niger Delta region. It was responsible for the bulk of Nigeria’s oil production but has been neglected by successive governments over many years, and is now facing allegations of financial recklessness.
Under the management of the Interim Management Committee, which was initially appointed in October 2019, the NDDC allegedly misappropriated 81 billion naira in barely a year. An ad hoc committee was established to investigate the matter following a resolution by the Nigerian Senate in May 2020.
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’s 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, that person will nevertheless be criminally liable if the act or omission was carried out by him or her 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 Which law enforcement authorities regulate corporations? How is jurisdiction between the authorities allocated? Do the authorities have policies or protocols relating to the prosecution of corporations?
Other than the body charged with the regulation of corporations, the Corporate Affairs Commission (CAC), there is no specific law enforcement authority. 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, the 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 there is rarely any overlap.
There are a number of other regulatory agencies, such as the Central Bank of Nigeria (banking industry), the Department of Petroleum Resources (oil and gas industry) and the National Insurance Commission (insurance).
Other than these, the Nigeria Police Force and the Economic and Financial Crimes Commission (EFCC) also prosecute cases against corporations.
In February 2019, NITDA published the Data Protection Regulation, which empowers approved third-party entities to ensure compliance with the Regulation’s terms. The Regulation itself outlines a number of data protection requirements for any data controller, which is defined as any entity that collects data, including employee information, making it extremely widely applicable.
4 What grounds must the authorities have to initiate an investigation? Is a certain threshold of suspicion necessary to trigger an investigation?
There are no specified grounds on 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 some other written allegation that an offence has been committed, addressed to a law enforcement agency or regulatory authority.
5 How can the lawfulness or scope of a notice or subpoena from an authority be challenged in your country?
A subpoena may be challenged by making an application to a high court seeking to set it aside. The grounds on which a court will set aside a subpoena include the following:
- the scope of the documents or information requested unfairly burdens or prejudices the recipient of the subpoena;
- no factual or lawful basis was demonstrated for the issuance of the subpoena; and
- legal privilege, such as attorney–client privilege, spousal privileges and the right against self-incrimination.
6 Does your country make use of co-operative agreements giving immunity or leniency to individuals who assist or co-operate with authorities?
There are no formal rules relating to the granting of immunity or leniency to individuals who assist or co-operate with authorities. However, it is not uncommon for no action to be taken against such individuals.
7 What are the top priorities for your country’s law enforcement authorities?
The present Nigerian government, re-elected in March 2019, continues to emphasise that investigating corruption is one of its top priorities. In addition, in recognition of the country’s tax base (of a taxable population of between 75 and 100 million people, it has been reported that there are between 10 and 19 million registered taxpayers) and, given the recent decline in the price of crude oil – the country’s largest source of income – it has become increasingly important for the collection of tax and customs duties to be more efficient. Nigeria imports a significant amount of goods and there has historically been a significant amount of duty evasion.
There have been a number of arrests of high-profile social media personalities on charges of money laundering and fraud. It appears from these arrests, as well as public speeches, that combating internet-facilitated fraud is high on the list of priorities for law enforcement authorities.
The stated effort to focus on this type of fraud has been handicapped by upheavals in one of the most prominent law enforcement agencies. The EFCC’s acting chairman up until July 2020, who was notably never ratified by the Senate in his role as chairman, was suspended from the post following numerous allegations of fraud against him, including the diversion of recovered funds and seized assets. These allegations have coincided with revelations about the activities of the NDDC.
The approach by the enforcement authorities continues to be focused more on recovering money than on pursuing transgressors.
8 To what extent do law enforcement authorities in your jurisdiction place importance on a corporation having an effective compliance programme? What guidance exists (in the form of official guidance, speeches or case law) on what makes an effective compliance programme?
Law enforcement agencies have not shown a great deal of interest in enforcing effective compliance programmes. In general, it appears that all the impetus to encourage best practices come from relevant regulatory agencies, with the Central Bank of Nigeria (CBN) being the most active in regulating its sector. The most significant enforcement activity appears to have been the imposition by the CBN of large fines on banks for not using proper procedures for repatriating money and for failing to ensure the collection of required data from their customers.
In addition, guidance on effective compliance programmes is largely left to private compliance firms. However, the CBN frequently gives explicit instructions on what it expects and requires of banks.
9 Does your country regulate cybersecurity? Describe the approach of local law enforcement authorities to cybersecurity-related failings.
NITDA regulates cybersecurity. All data controllers, as defined by the NDPR, must take security measures, including but not limited to ‘protecting systems from hackers, setting up firewalls, storing data securely with access to specific authorized individuals, employing data encryption technologies, developing organizational policy for handling personal data (and other sensitive or confidential data), protection of emailing systems and continuous capacity building for staff ’.
However, the NDPR is new and there is no case law yet to show its limits. NITDA has issued draft guidelines that provide for the creation of an Administrative Redress Panel to investigate any breaches of the provisions of the NDPR, which are to be treated as breaches of the National Information Development Agency Act.
Despite announcements of investigations into numerous entities (both public and private), as referred to in question 7, there is no public information about the outcome of these investigations as at August 2020. Some of the announcements were made in July 2019.
In December 2019, the Lagos Internal Revenue Service (LIRS) accidentally made taxpayers’ private data publicly accessible on its website. Once the situation had been rectified, and on being satisfied that the information was properly protected, NITDA decided to take no further action.
10 Does your country regulate cybercrime? What is the approach of law enforcement authorities in your country to cybercrime?
A Cybercrimes Act, passed in 2015, created specific criminal offences in respect of a variety of things, ranging from cyberstalking, the unauthorised access of information and trading in stolen information. It also imposed an obligation on financial institutions to verify the identities of its customers, through documentation, prior to allowing any online transactions. In addition, the statute led to the establishment of the Nigerian Computer Emergency Response Team, which is part of the Office of the National Security Adviser. The body receives reports of cybercrime incidents and issues guidance on cybersecurity best practices. In addition, the EFCC has been known to use the Act in its pursuit of fraudsters. The Act has also been used in the prosecution of persons who have published material that is critical of religious institutions and leaders, and the head of the EFCC.
Cross-border issues and foreign authorities
11 Does local criminal law have general extraterritorial effect? To the extent that extraterritorial effect is limited to specific offences, give details.
Nigerian criminal law does not purport to have extraterritorial effect. State and federal criminal laws apply only to persons (natural and legal) within Nigeria.
12 Describe the principal challenges that arise in your country in cross-border investigations, and explain whether and how such challenges depend on the 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 in the United States by the Department of Justice and the Securities and Exchange Commission. Although from a strictly legal perspective this is not a real problem, as the corporation that is most likely to be subjected to sanctions in Nigeria would probably 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.
13 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? Is there anything analogous in your jurisdiction to the ‘anti-piling on’ policy as exists in the United States (the Policy on Coordination of Corporate Resolution Penalties) to prevent multiple authorities seeking to penalise companies for the same conduct?
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 entities from non-Nigerian corporations. A 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. There is currently no policy similar to the Policy on Coordination of Corporate Resolution Penalties.
14 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. Given the possibility that matters in respect of which settlements reached outside Nigeria, where Nigerian authorities also have jurisdiction, may well be pursued, it is always advisable to obtain local advice and, if possible, seek to conclude a resolution of the Nigerian part at the same time as the external settlement.
15 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. On the occasions when foreign authorities have taken decisions in respect of matters that are related to Nigeria, any action taken by Nigerian authorities has tended to be shrouded in secrecy, as the Nigerian authorities tend not to provide information to the public. Consequently, only the authorities and the affected parties (with their advisers) tend to have knowledge of any steps that have been taken.
Economic sanctions enforcement
16 Describe your country’s sanctions programme and any recent sanctions imposed by your jurisdiction.
We are not aware of Nigeria having any sanctions programme.
17 What is your country’s approach to sanctions enforcement? Has there been an increase in sanctions enforcement activity in recent years, for example?
Given the absence of any Nigerian sanctions programme, there is no enforcement activity.
18 Do the authorities responsible for sanctions compliance and enforcement in your country co-operate with their counterparts in other countries for the purposes of enforcement?
Nigeria has no sanctions programme and tends to be the subject of sanctions imposed by foreign governments, rather than a jurisdiction that imposes sanctions.
19 Has your country enacted any blocking legislation in relation to the sanctions measures of third countries? Describe how such legislation operates.
Nigeria has not enacted any blocking legislation in relation to sanctions imposed on it, or on other countries or individuals.
20 To the extent that your country has enacted any sanctions blocking legislation, how is compliance enforced by local authorities in practice?
Nigeria has not enacted any blocking legislation.
Before an internal investigation
21 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.
22 Does your country have a data protection regime?
In February 2019, NITDA turned its Data Protection Guidelines into the NDPR. The document, on its face, claims to be binding on all entities that process data in Nigeria. It limits the power of data controllers to share that data for anything that is not to the benefit of the owner of the data. It also restricts the ability of controllers to transfer data to another country, particularly countries with weaker data protection laws. In addition, certain industries are subject to data protection regulation from their own regulating bodies. For example, the Nigerian Communications Commission (NCC) requires that all its licensees (telecommunications service providers) 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.
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 draft data protection guidelines. These guidelines, which form the basis of the NDPR, are the only set of regulations that contain any comprehensive provisions relating to the protection, storage, transfer or treatment of data in Nigeria. Personal data is defined in the draft guidelines 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. This 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.
The NDPR also states that NITDA shall create an Administrative Redress Panel to investigate any breach of the provisions of the NDPR. Any such action shall be treated as a breach of the National Information Development Agency Act. The basis for such a provision is unclear as the Act does not confer power on NITDA to create such an offence.
23 To the extent not dealt with above at question 9, how is the data protection regime enforced?
NITDA inaugurated an Administrative Redress Panel (ARP) in October 2019. The function of the ARP is to hear, investigate and determine appropriate redress within 28 working days. However, as at August 2020, the available information concerning the Panel is still very limited. It does not have its own website and there is no information about it on the NITDA website. The procedure to contact the Panel is equally opaque and there is no public information about exactly who is on it.
A Data Breach Investigation Team was inaugurated on 20 September 2019. It is stated to be a ‘group of professionals who will work with the Nigeria Police and other law enforcement agencies to investigate cases of alleged data breaches, among other things’.
As the regulations are still new, it is impossible to say how likely enforcement action will be. While it appears that NITDA intends to be very proactive in its enforcement of the NDPR, it remains to be seen how serious it will be about enforcement.
The NDPR outlines fines for non-compliance based on the size of a company: a fine of 10 million naira or 2 per cent of annual gross turnover for the preceding year, whichever is greater, for controllers processing the data of 10,000 subjects, and a fine of 2 million naira or 1 per cent of gross turnover for the preceding year for controllers processing the data of fewer than 10,000 subjects.
Additionally, the NDPR does not restrict the ability of data subjects to seek redress in a court of competent jurisdiction.
This is all in addition to the existing law based partly on the constitutional guarantee of privacy, which is rather broad, and the NCC’s Regulation for Telecommunication Companies.
24 Are there any data protection issues that cause particular concern in internal investigations in your country?
In the absence of clear general data protection laws, data protection issues have not been a major cause of concern in the conduct of internal investigations in Nigeria. The introduction of the NDPR has yet to have any noticeable effect on internal investigations, but clearly attention needs to be paid to its provisions. In the past, data protection issues have, generally, not posed any particular problems in respect of internal investigations.
25 Does your country regulate or otherwise restrict the interception of employees’ communications? What are its features and how is the regime enforced?
This has not been directly addressed in the NDPR. However, the Constitution contains the following, somewhat broad, guarantees in respect of private communications: ‘The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.’
Dawn raids and search warrants
26 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 a 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. 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 tend to be 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, and may direct the return of any improperly obtained material.
27 How can privileged material be lawfully protected from seizure during a dawn raid or in response to a search warrant in your country?
Searches are permitted when law enforcement authorities are able to show that 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 may be seized, whether privileged or otherwise. The relevance of privilege, in relation to seized material, will arise when, and if, a party to proceedings seeks to rely on such material. At that point, the issue as to the admissibility of the material and the weight to be attached to it will need to be addressed by the court before which the question is raised.
28 Under what circumstances may an individual’s testimony be compelled in your country? What consequences flow from such compelled testimony? Are there any privileges that would prevent an individual or company from providing testimony?
The Evidence Act regulates the competence and compellability of witnesses. Privileges that prevent individuals from providing testimony, which are presently recognised in Nigeria, include attorney–client privilege, spousal privilege and the constitutional provision preventing a person who is being tried for a criminal offence from being compelled to give evidence at trial.
Whistleblowing and employee rights
29 Describe the whistleblowing framework in your country. What financial incentive schemes exist for whistleblowers? What legal protections are in place for whistleblowers?
There is currently no general law in Nigeria providing protection for whistleblowers. A Whistleblower Protection Bill, introduced in the National Assembly in 2017, continues to make its way through the legislature. 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.
The Financial Reporting Council of Nigeria has issued the Nigerian Code of Corporate Governance (enacted in January 2019), which also provides comprehensive guidelines for the protection of whistleblowers in the private sector.
30 What rights does local employment law confer on employees whose conduct is within the scope of an investigation? Is there any distinction between officers and directors of the company for these purposes?
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. Similarly, save where there are express provisions creating liability of officers and directors, the rights and obligations of officers and directors are governed by the terms of their contracts with the company.
31 Do employees’ rights under local employment law differ if a person is deemed to have engaged in misconduct? Are there disciplinary or other steps that a company must take when an employee is implicated or suspected of misconduct, such as suspension or in relation to compensation?
When employees are accused of misconduct, employment law does not afford them any specific rights.
The steps an employer may take when an employee is suspected of misconduct depend on the terms of the employment contract. In general, and without specific provisions in the employment contract, corporations may take any number of disciplinary actions against employees suspected of misconduct, including suspension and dismissal. When an employee is deemed to have engaged in misconduct, upon the conclusion of investigations, the company may dismiss the employee summarily and report the conduct to the appropriate law enforcement authority.
32 Can an employee be dismissed for refusing to participate in an internal investigation?
If such a refusal can be construed as a breach of a contract of employment, for which dismissal would be a lawful sanction, an employee may be dismissed for refusing to participate in an internal investigation.
Commencing an internal investigation
33 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 discussed further in question 37, the involvement of external counsel in corporate investigations is not common in Nigeria 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.
34 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, 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 in each individual case. 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. Although 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.
35 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?
As stated in question 34, 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. 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 issue subpoenas, as a general rule. 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 or, in the case of a documents subpoena, attend to produce the documents listed in the subpoena.
36 At what point must a company in your country publicly disclose the existence of an internal investigation or contact from a law enforcement authority?
Privately owned companies are not required to publicly disclose the existence of internal investigations or contact from law enforcement. However, Rule 187 of the Securities and Exchange Commission’s Rules and Regulations, which applies to companies listed on public exchanges, provides: ‘All 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.’
37 How are internal investigations viewed by local enforcement bodies in your country?
As stated in question 33, 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 general position on them. There have been instances in which a law enforcement authority has used the product of internal investigations as the basis of a prosecution, in essence merely repeating the process undertaken by the internal investigations to obtain evidence for use in the prosecution.
38 Can the 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 when 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. Therefore, to ensure that privilege attaches to an internal investigation, it would be advisable to engage external counsel.
Nigeria is a common law jurisdiction, so it would be open to Nigerian courts to adopt common law privilege rules, as exist in other common law jurisdictions. It does not appear that this issue has been the subject of any reported cases in Nigeria. Therefore, the extent to which the common law rules may be accepted in Nigeria remains unclear.
39 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, a legal practitioner 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’. The Rules also 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 who is an individual and one that is a corporation.
40 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.
41 Does the attorney–client privilege apply equally to advice sought from foreign lawyers in relation to (internal or external) investigations in your country?
This is unclear. The statutory provisions in the Evidence Act are unlikely to apply to foreign lawyers because the provision relates, specifically, to ‘legal practitioners’ and that term has been interpreted to refer to persons on the roll of legal practitioners kept in the Supreme Court of Nigeria. Therefore, unless the foreign lawyer is also enrolled as a legal practitioner in Nigeria, the provisions in the Evidence Act cannot apply to such a person. However, to the extent that common law privilege rules are adopted in Nigeria, attorney–client privilege may extend to such advice.
42 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 when this issue has arisen. There are no situations in which 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.
43 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. However, this issue has not been considered by the courts in Nigeria.
44 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 the 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 constitutes what the law determines to be privileged communication.
45 Do common interest privileges exist as concepts in your country? What are the requirements and scope?
As a common law jurisdiction, Nigeria would recognise common interest privileges, in appropriate circumstances. The privilege would attach to communications between a legal practitioner and other parties who share a common interest with the client, provided those 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.
46 Can privilege be claimed over the assistance given by third parties to lawyers?
When a third party acts under the direction of a legal practitioner, the third party is bound by the same obligations as the legal practitioner.
47 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.
48 Can a company claim the attorney–client privilege over internal witness interviews or attorney reports?
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 when internal witness interviews take place with litigation in contemplation.
49 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.
With regard to third parties, who would have to consent to being interviewed, the situation should be the same as for employees.
50 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 documents will probably 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
51 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.
52 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 provide information anonymously as to the nature of a certain 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.
53 What are the practical steps you need to take to self-report to law enforcement in your country?
As indicated in question 52, we would generally not advise self-reporting. However, when 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
54 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?
Subpoenas may only be issued by courts in the context of ongoing proceedings. Since law enforcement authorities are not authorised to issue subpoenas or notices, generally requiring the production of material, this is not a matter that arises very often. That notwithstanding, it is not uncommon for companies to engage with law enforcement authorities, on an unofficial basis, for discussion both before and after charges are brought.
55 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.
56 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 54, 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.
57 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.
58 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 with which the sharing of information is not unlawful.
59 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.
60 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.
61 Does your country have secrecy or blocking statutes? What related issues arise from compliance 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.
62 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 the material will be used by the relevant 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.
Prosecution and penalties
63 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 fines and forfeitures.
64 Where there is a risk of a corporate’s suspension, debarment or other restrictions on continuing business in your country, what options or restrictions apply 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.
65 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.
Resolution and settlements short of trial
66 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.
67 Does your jurisdiction provide for reporting restrictions or anonymity for corporates that have entered into non-prosecution agreements or deferred prosecution agreements until the conclusion of criminal proceedings in relation to connected individuals to ensure fairness in those proceedings?
The lack of a formal framework for non-prosecution or deferred prosecution agreements means that it is unclear whether or not there would be reporting restrictions or anonymity for corporates that have entered into such agreements.
68 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.
69 To what extent do law enforcement authorities in your country use external corporate compliance monitors as an enforcement tool?
The Federal Inland Revenue Service and the CAC rely on externally audited financial statements from licensed accountants for publicly listed companies. Additionally, NITDA issues licences to data protection compliance organisations for the purposes of auditing, training and consulting. The NDPR provides that licensees shall act on behalf of NITDA, which implies that licensees would perform audits, not the NDPR. However, as NITDA does not currently require data controllers to engage licensed auditors, it seems that, for the time being, internally produced audits are sufficient for compliance with the Regulation.
70 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
71 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.
72 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.
73 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 in the path of persons seeking access 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 the restriction of 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
74 Is disclosure to the market in circumstances where a settlement has been agreed but not yet made public mandatory?
Under the rules of the 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.
75 Do you expect to see any key regulatory or legislative changes emerge in the next year or so designed to address corporate misconduct?
NITDA has been extremely active of late, having made frequent statements relating to the NDPR, and making promises to enforce it. The specifics of this remain to be seen, however. Given the broad range of entities that have obligations under the NDPR, it is likely that there will be a number of developments related to it. With the creation of its new departments, it continues to be likely that NITDA and its offspring will make headlines.
 Babajide Ogundipe is a senior partner and Olatunde Ogundipe is an investigator and analyst at Sofunde, Osakwe, Ogundipe & Belgore.