Litigation 2019 Second Edition

Last Updated December 05, 2019

Angola

Law and Practice

Author



FBL Advogados is an experienced law firm, their several senior partners having a wide, reputable and professional background going back to 1978. With headquarters in Luanda, the firm provides its services throughout the Angola territory. As a full range law firm, FBL Advogados provides legal services in various law matters, including corporate and private investment, finance and banking, natural resources, debt collection and insolvency, litigation, labour, industrial property, tax and administrative law, criminal law and others. In order to address the needs and concerns of its clients, whose activities and interests extend beyond Angolan borders, FBL Advogados keeps agreements with many reputable law firms throughout all continents. FBL Advogados is the exclusive Angolan member of Lex Africa, the largest and most prestigious law firm network in the continent. FBL Advogados has eight partners and around 30 lawyers, while its litigation team includes three of its partners and seven associate lawyers.

Angola's legal system is of the civil law type. Angola, being a former Portuguese colony, inherited this legal system from Portugal and still adopts some important legal diplomas that were in force before the date of its independence. The procedural model is dialectical and the parties are, generally, allowed to submit successive pleadings and applications. Every application filed, by either party, that may affect the rights of the opponent shall be notified to the other party for opposition purposes. The process is typically a written one, but provides for hearings for oral discussion of technical issues, for conciliation attempt, evidence and closing arguments.

The Constitutional Court is the highest court for constitutional matters while the Supreme Court is on the top of ordinary courts. Over the last thirty years the common jurisdiction has been based on only two levels of courts: the Supreme Court and Provincial Courts. The Law No 2/15, of 2 January 2015, created a new structure of the common judicial system, consisting of the Supreme Court, Courts of Appeal (designated as “Tribunais de Relação”) and District Courts (designated as “Tribunais de Comarca”). Therefore, there are three levels of courts. However, the commissioning of new courts is still in progress and it is expected that, by 2020, all the new courts will be operational.

All Courts have sections or chambers of specialised jurisdiction, such as sections or chambers of civil and administrative law, labour law, family law, criminal law and maritime law.

Access to and examination of the lawsuit is only permitted to the parties and their attorneys; there is no formal ban on opening hearings to the public, but there are many reasons why the court may prohibit the publicity of hearings; this is the case when it comes to matters or interests related to children or young people, intimacy or honour of persons, personal data, professional or trade secrets.

In most cases, the parties have to be represented by attorneys.

The practice of law in Angola is allowed only to lawyers registered with the Angolan Bar. No party may be represented in court by a lawyer not registered therewith. Although the registration of foreign lawyers with the Angolan Bar is not totally prohibited, such membership is currently very restrictive, which makes it almost impossible for foreign lawyers to register.

Litigation funding is not expressly provided for or practiced in Angola, but it is not expressly prohibited. Under the principle of contractual freedom, it must be assumed that such funding is permitted, in the terms of the Civil Code and commercial and financial regulations. 

As third-party funding is neither prohibited nor regulated, it is allowed for any type of proceedings.

As with 2.2 Third-Party Funding: Lawsuits, third-party funding should be considered admissible either for plaintiffs or defendants.

There are no minimums or maximums stipulated for third-party funding.

Any court costs, professional fees and other related costs may be considered for third-party funding.

Angolan law does not allow quota litis, ie, fees set exclusively in a contingency basis. However, success fees are allowed and commonly practiced.

There is no deadline for obtaining third-party funding.

No pre-trial action is legally required before starting a court case. Exceptions occur in labour lawsuits, where a pretrial conciliation attempt is compulsory in most cases.

The general limitation period for contractual liability is 20 years, while in case of non-contractual liability, the period is only three years. However, in the case of contractual liability, the limitations may be shorter in certain cases, such as accommodation or professional fees. In the case of non-contractual liability, if the fact giving rise to the obligation also constitutes a crime, the criminal statutes of limitations apply.

The jurisdiction of Angolan courts depends on any of the following circumstances:

  • if the jurisdiction is attributed to Angolan courts by the domestic rules of territorial jurisdiction;
  • if the facts on which the lawsuit is based were practiced in Angola;
  • if the defendant is foreign and the plaintiff is Angolan, provided that in reverse, the Angolan could be sued by the courts of the foreign country; and
  • if the effectiveness of the lawsuit is only possible in Angola, provided that there is any personal or material connection with Angola.

Following internal territorial rules, jurisdiction should still be attributed to Angolan courts in case, among others, of a lawsuit relating to real estate located in Angola or when the lawsuit action seeks the fulfilment of obligations that must occur in Angola or the payment of a compensation.

The initial complaint must be addressed to the court with jurisdiction, indicate the parties and the form of the proceedings, common or special; if common, the proceedings may be ordinary or summary. The complaint should describe the subject matter and applicable law, ending with the sought remedies. All documents supporting the alleged subject matter should be lodged alongside with the complaint.

The plaintiff is also required to file a power of attorney, an evidence of fulfilment of income tax duties (in the case that the claim is related to any activity subject to tax payment) and, if it is a company, also its certificate of incorporation.

The summons is always served by the court. When possible, the summons is always served by an official or court clerk to the person of the defendant. If the defendant is a corporation, the summons shall be served to the person of its legal representative; in exceptional circumstances, where it is proved that it was not possible to summon the legal representative, the summons may be served to any company employee. If the summons cannot be served personally due to unknown whereabouts of the defendant, it may be made by publication of edicts.

Servicing of defendants residing in a foreign country is usually by registered letter, unless otherwise provided for in any Convention or Treaty.

If the defendant does not reply to the complaint, the facts alleged by the plaintiff are considered proven, provided that they are related to disposable rights. Once the facts are considered proven, the plaintiff will be given a notice for filing closing written arguments and the court shall issue the judgment in accordance with the applicable law.

The commencement of collective actions is a right enshrined in constitutional law. However, although this right is reflected in several other laws, the form of its exercise is not specifically regulated. Therefore, it is commonly admitted that collective actions are allowed in some cases, such as actions brought by unions, professional or consumer associations. Collective actions follow the procedure provided for in the civil procedural law.

Lawyers' fees are freely set between lawyer and client. It is advisable that an engagement letter is produced, or at least that the conditions are set by written communication.

The court tax code (Código de Custas Judiciais) sets the court fees amounts and other applicable court costs. The value of the court fees is calculated on the basis of the value attributed to the lawsuit by applying the legal table. This table of fees is regressive, ie, the rate decreases as the process value increases. Also, there is a maximum limit for the court tax, regardless of the lawsuit value.

Interim applications are allowed only for certain purposes, such as injunctive relief and early proof production.

An early judgment is admitted, either in respect of procedural matters or on the merits. The parties may apply, in the pleadings, for an early judgment in respect of legal matters such as the jurisdiction of the court, the legal standing of the parts and any other legal questions that may refrain the court from issuing a judgment on the merits. Besides, regarding the judgment on the merits, irrespectively of any request for this purpose, the court should consider whether there are sufficient grounds for a safe early judgment, ie, when there is no need for further evidence of the relevant facts. If so, the court may issue the judgment on the merits immediately. However, the law does not foresee partial judgments on the merits.

As stated in 4.2 Early Judgment Applications, only in foreseen pleadings is it allowed to discuss the matter of fact or of law. However, the parties are allowed to file late applications regarding supervening facts that may lead to dismissal or affect the judgement.

Interested parties are allowed to intervene in the process in various circumstances. This intervention can be provoked by either party or be voluntary. The intervention provoked by the defendant is intended to share or exclude their responsibility and is based on the assumption that the new party has an interest identical or competing with one of the initial parties. The procedural position of the called person may be parallel to that of the plaintiff or of the defendant.

Interested parties may also intervene as assistants of the plaintiff or of the defendant, in which case they will only have an auxiliary role for that party.

In the case of an intervention at the request of the defendant, they shall request it within the time limit for the opposition. If such request is filed by the plaintiff, the time limit will be the one for replying to the opposition. Where intervention is voluntary (to intervene as part or to assist one of the initial parties), such request should be submitted spontaneously at any time provided that before the date of the trial has been designated or, if no trial is to take place, until judgment has been handed down.

The defendant cannot request the plaintiff to make a security payment of the defendant's costs.

To the extent that they do not fall under the common procedure, interim applications are considered incidents subject to additional court fees. When lodged, the court sets the amount of these fees in accordance with the legal cost table. 

There is a general deadline of five calendar days for the judge to rule on any claims submitted by the parties. For certain specific acts of the judge, this period may differ. To these deadlines, the deadlines that officers have to comply with their acts should always be added.

In cases of legally considered urgent procedures, some deadlines may be exceptionally short. However, these deadlines are not binding for the court and therefore any applications may remain not ruled for a much longer time.

There are no discovery mechanisms in civil cases. However, there is a general duty of co-operation which allows either party to request that any person or the opposing party to deliver documents in their possession.

Only applying for a court order can prompt third parties to deliver documents in their possession.

The law of civil procedure enshrines the principle of the co-operation of all persons to discover the truth, whether parties or third parties. But the production of evidence within this co-operation is ruled by court's orders under either parties' request. Lawyers are not entitled to request directly any documents or information from any other person, except to public registries.

The evidence may consist of documents, confessions of the parties, expert evidence, judicial inspection and witness evidence. Evidence must be produced at the trial on the initiative of the parties and the court has the power to take all steps necessary to obtain such evidence. The parties must present the documents in their possession as evidence of the facts they claim alongside the pleadings.

Expert evidence, judicial inspections and witness evidence should be indicated by the interested party previously to the trial. Confession may take the form of statements or of omission of a response from either party in the pleadings concerning material facts alleged by the other party.

Prior to the commencement of proceedings, or pending proceedings, the court may be requested to allow the earlier obtaining or production of evidence, including third-party testimony, where there is reason to fear that such evidence may not be produced later.

The law recognises attorney-client privilege, including the facts transmitted to each other as well as the work carried out with respect to the subject matter of the dispute.

However, this privilege is controversial in the case of in-house lawyers. Neither the law nor the scarce case-law make it possible to ensure that in this case the privilege is maintained.

There are circumstances in which the party may refuse to submit documents, such as if such presentation violates the privacy of personal and family life, human dignity or professional secrecy, causes serious harm to the honour and consideration of person or close family member, or causes serious property damage to such persons.

However, the party may never refuse to submit books and documents relating to its business accounts.

Injunctive relief is allowed whenever someone has a justified fear that someone else, before the action is brought or when it is pending, may cause serious injury which becomes difficult to remedy. A further requirement is that the relief sought does not cause greater harm than the one intended to be avoided.

There are different kinds of relief injunctions specified by law, namely:

  • seizure of assets;
  • impounding of goods;
  • suspension of corporate deliberations;
  • provisional restitution of possession;
  • embargo of new construction; and
  • provisional maintenance.

In addition, there are unspecified relief injunctions, usually seeking authorisation to practice certain acts, subpoena for the other party to refrain from certain conduct or delivery of assets to a depositary.

The procedure for inhibiting someone from taking legal action in another jurisdiction is not foreseen; in any case, such inhibition would only have effect in the Angolan jurisdiction, as would not be binding in that other jurisdiction.

Alongside the application the applicant will offer summary evidence of the threatened right and the fear of injury to that right. The court may order the notice of the opposing party if this does not endanger the purpose of the injunction. It may also decide to hold a hearing for production of evidence, if deemed necessary.

There is no possibility to request the action outside court hours.

The relief may be obtained without notice of the opposing party for the purpose of opposition, in some cases determined by law and where such notice may compromise the purpose of the relief injunction.

If the injunction is found to be unjustifiable or lapses for reasons attributable to the claimant, the claimant is liable for any damage caused to the other party. The court may rule that the relief granted be made subject to the lodging of a bond by the claimant. In certain circumstances, the relief granted may be replaced by a defendant's bond.

The court may not make a ruling to provide the relief to cover assets located worldwide.

Injunctive relief cannot usually be obtained against third parties. However, it may affect third parties to the extent that they may hold any assets on behalf of the defendant.

If the defendant fails to comply, the consequences depend on the kind of the relief awarded. When enforcement is possible (for example, seizure or impounding of goods), the court will adopt all necessary means for such enforcement. In other cases, where enforcement is not possible, the defendant is liable for the damage they have caused the claimant by not complying.

After the pleadings, there is usually a trial hearing. The hearing is intended for the production of evidence and closing arguments of the parties. Witnesses, experts and parties may be heard. During the trial, a judicial inspection may also be carried out.

The length of the trial depends, essentially, on the number of witnesses or the quantity of other evidence to be produced, as well as the complexity of the factual evidence. The number of witnesses is limited to five witnesses for each fact and 20 witnesses in total. In the simplest cases, there is usually only one hearing. In some more complex cases there may be two or more hearings, for the reasons described above.

There are no deadlines for the hearings. The speed of the proceedings depends on the availability of the court, the complexity of the case and the diligence of the parties.

In civil cases, there are no jury trials.

The subject matter regarding which evidence is admissible is previously fixed by the court; therefore, only the production of evidence on this subject is allowed.

Evidence to be produced at the trial is provided by the parties in advance, once the matter subject to evidence is ruled by the court. Production of all evidence that the party intends to present, such as questioning witnesses, experts and judicial inspections, as well as requesting documents and information from third parties, should be applied for within the specific deadline for that purpose.

However, documents intended to establish the grounds of the action or of the defence must be filed alongside the pleading in which the facts which those documents purport to prove are relied on. When presented later, up to the end of the pleadings, the party who presented it will be subject to a fine unless it can be shown that it could not have presented the information before. After the pleadings, it is not possible to add documents unless the interested party demonstrates that they could not have been presented earlier.

Notice may be given to the opposing party requesting the submission of documents in its possession that may be of interest to the case. The court may also be required to request documents or information from any other parties.

Parties are permitted to require the production of evidence by experts. The court may also take the same initiative.

The trial hearing is public, except when the court decides otherwise to safeguard people's dignity and public morality, to keep confidentiality of any evidence or to ensure their normal functioning.

The judge is free to intervene not only to maintain the proper functioning of the hearing, but also to question witnesses or experts, to obtain clarifications or information from third parties, whenever they deem it appropriate.

The lawsuit starts with the filing of the initial complaint at the court. After the opposing party has been served the summons, they may reply within a legal deadline (usually 20 days). The defendant may present a counter-claim in the same pleading. A further pleading of the plaintiff and of the defendant is allowed. In the case there is a counter-claim, or the defendant has raised legal questions precluding further proceedings, the plaintiff may also reply with a new pleading.

After this phase, new pleadings will only be admitted if they relate to supervening facts of interest to the cause. If this happens, the opposing party can always respond.

Although it is not compulsory, the judge will then designate the date for a pretrial hearing seeking a possible conciliation and/or the discussion of some legal aspects raised by the parties in their pleadings.

In pursuing the proceedings, the court will examine the preliminary legal issues and will rule whether or not there is any obstacle for the lawsuit to proceed to the merits of the case.

If the court then finds that it has all the facts to that effect, it may render its judgment on the merits. If it considers that there still is factual matter to be discussed, it must first rule which specific facts it considers to be proven and which facts must be substantiated.

This order is subject to the parties' claim and appeal to a higher court. If this happens, the lawsuit will only continue at the lower court after the appeal has been heard in the higher court.

After this stage, the parties will indicate the evidence that they intend to produce at the trial. The court will then designate the date of the trial hearing. After the trial, the court will render the judgment.

Provided that there are no interim appeals or incidents, and in the case that the lawsuit is not complex, all these proceedings could be finished within one year. However, it commonly takes much longer due to the slowness of courts. If the lawsuit is complex and/or there are several procedural incidents or appeals, the case will drag on for a few years.

The parties are free to settle the case, subject to subsequent approval of the court. The court will award its approval unless the settlement agreement violates any principles of public interest.

The court-approved agreement is part of the judgment and is therefore not considered confidential. However, the court may keep it confidential, under request of the parties, if there are justified reasons for doing so.

Settlement agreements approved by the court may be enforced in the same way as any other court judgment.

Once approved by the court, the settlement agreements have the value of a judgment; however, they may be annulled or declared null and void in the same terms as other acts of the same kind by legal action to that effect.

The successful litigant must be reinstated to their previous position, either in kind or in compensation. The costs of the proceedings shall be borne by the unsuccessful party and the winning party shall be reimbursed for the amounts it has paid in advance to the court. The winning party is also awarded a fee corresponding to forensic representation fees; however, this amount is calculated according to legal criteria and does not usually correspond to the amounts actually paid to lawyers. If the parties have agreed an amount to be paid as legal fees, this is the amount to be awarded to the winning party.

If success is only partial, these awards should be attributed in proportion to that success.

The general rule is that damages should be paid in such a way as to reinstate the offended property as if their right had not been violated. This compensation comprises the gains that the offended party failed to obtain. Compensation must also include moral damage, where it exists.

Civil liability exists, regardless of fault, when someone charges someone else on a particular commission, for the damage caused by the commissioner, provided that the commissioner also has an obligation to compensate.

Where liability is based on mere fault, compensation may, subject to specific circumstances, be set at a lower value than the damage caused.

The indemnity resulting from a traffic accident or damage caused by gas or power installations, when there is no fault of the responsible person (liability based on the interest or risk of the activity), has certain limits established by law, according to the kind of consequences and number of injured people.

The winning party is entitled to interest for the period prior to the judgment, from the due date of the obligation to interest accruing after the commencement of the action until the obligation has been fulfilled. In either case, the claim for interest must be filed in the initial complaint and must be expressly granted by the court in the judgment.

In order to enforce a national judgment, enforcement proceedings shall be initiated and attached to the lawsuit in which the judgment was handed down.

Enforcement may be for payment of a certain amount, for delivery of specific thing, or for de facto performance.

Once the enforcement procedure is initiated, the opposing party is given a notice to voluntarily comply. If it fails to comply, the necessary means of enforcement shall be used, which may include, inter alia, the attachment and sale of goods or the judicial delivery of goods to the claimant.

The enforcement in Angola of a judgment rendered by a foreign court is subject to the prior review and confirmation of that judgment by an Angolan higher court. The reviewing and confirmation of the judgment is a lawsuit in which the court does not hear the decision on the merits, but enforces certain legal requirements, namely:

  • that there is no doubt about the authenticity of the document containing the judgment or about its intelligibility;
  • that the judgment is final, that is, not subject to appeal or any other way of ordinary challenge under the rules of the country of origin;
  • that it has been delivered by a court with jurisdiction;
  • that lis pendens or the existence of res judicata cannot be invoked, based on legal action carried out at an Angolan court;
  • that the defendant has been duly summoned and that, if they have been convicted ex parte (due to non-opposition), their service has been given in person;
  • that does not contain decisions contrary to the principles of Angolan public order; and
  • that when the judgment is handed down against an Angolan defendant, it does not offend the provisions of Angolan private law when the matter should be resolved by the Angolan conflict of law rules.

In recent decades, the judicial system has been based on only two instances, Provincial Courts and Supreme Court. The replacement of Provincial Courts by District Courts (judicial circumscriptions usually smaller than the provincial division) is currently legislated, as is the creation of Courts of Appeal. With this judicial structure there will be three levels of courts.

However, the implementation of this structure is not complete, depending on the commissioning of some new courts. It is expected that during the year 2020 all new courts will become operational.

It is possible to appeal against judgments given by the lower courts, subject to jurisdiction rules, primarily minimum controversial amount. Either party is entitled to appeal in the part where the judgment was unfavourable to it.

The awards of the Courts of Appeal are subject to appeal to the Supreme Court but limited to matters of law.

The deadline for lodging an appeal is eight days from the notice of the judgement rendered. The application for an appeal shall be lodged with the court that delivered the judgment (court a quo) and that will rule its admission. The lawsuit is then remitted to the higher court (court ad quem) for further prosecution of its terms. The arguments on the appeal shall be submitted after a notice for that purpose given by the higher court.

The appeal may concern the facts of the case or matters of law, or both. However, at the Supreme Court the arguments may only concern matters of law. The appeal consists of written arguments containing the criticism of the judgment under appeal.

As regards the facts, there is no further hearing at the higher court for producing evidence. The arguments concerning the evidence should rely on the evidence already on file. The trial of the appeal consists of the conference of judges who make up the Court of Appeal and who will discuss and issue the award.

There are no court-imposed conditions for admission of an appeal.

The Court of Appeal may uphold, annul or replace the judgment under appeal.

Responsibility for the costs of litigation is ruled by the court in the judgment. The liability for court costs shall be attributed to the unsuccessful party, but in the case of partial success the liability may be assigned to both parties in proportion to their failure.

Recoverable costs are the costs paid upfront to the court. The court should also award compensation to the winning party for attorney costs, but this calculation follows a formula that generally does not respect these actual costs. Where there is an agreement between the parties on the costs of litigation to be borne by the unsuccessful party, the court shall order the unsuccessful party to pay such amount as agreed between the parties.

When there is no contractual arrangement between the parties, the costs are always calculated according to legal rules and limits. The court may also award compensation to the winning party when it considers that the losing party has litigated in bad faith and the winning party requests such compensation.

Interest is not calculated on court costs.

Law No 12/16 of 12 August 2016 provides for conflict mediation and conciliation rules. The establishment of these conflict resolution mechanisms is still a recent addition to Angola law, and is becoming increasingly accepted for minor conflicts.

These conflict resolution mechanisms are always voluntary and constitute a non-judicial form of conflict resolution. Usually, the proceedings are initiated on the initiative of one of the interested parties. These proceedings may also be requested by a court, Labour General Inspectorate or public prosecutor, but in these cases the procedure will only continue if the parties agree to mediate or conciliate. However, the final agreements between the parties in the mediation or conciliation proceedings may be enforced by a court.

The law provides for public and private mediation and conciliation centres. The existing ones have an acceptable level of organisation and their procedures are reasonably quick.

Voluntary arbitration is governed by Law No 16/03 of 25 July 2003. The arbitration may be conducted by an ad hoc court or by an institutional one, chosen by the parties. There currently exist a reasonable number of institutional arbitral courts.

Disputes over non-disposable rights or even those disputes subject to obligatory arbitration or to judicial courts are excluded from voluntary arbitration.

Some restrictions apply to the signing of voluntary arbitration agreements by the State, which are only allowed to litigate on private law issues, administrative contracts and in other cases specifically provided for by law.

Arbitration agreements on behalf of minors, interdicted or disqualified are not permitted, although in the event of inheritance succession they may intervene in arbitration proceedings entered into by those succeeded.

Arbitral awards may be challenged on the following grounds:

  • the subject matter of the dispute is legally excluded from arbitral award;
  • the award was given by an arbitral court without jurisdiction;
  • the arbitration agreement has expired;
  • the award was given by an irregularly constituted court;
  • lack of reasoning;
  • offense to any of the principles of equal treatment of the parties, opportunity for defense at all stages of the proceedings and opportunity for closing arguments, either oral or written, prior to the final award;
  • the arbitral court has ruled on matters that should not hear or has not ruled on questions on which it should have ruled; and
  • breach of principles of public interest of the Angolan legal system.

The award of an Angolan arbitral court may be enforced by judicial courts in the event of a failure to comply. The judicial court will confirm the jurisdiction of the arbitral court, upon application of the interested party, and enforcement proceedings will follow the same rules as applicable to the enforcement of a judicial court judgment.

In 2017, Angola acceded to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and has since then adopted the provisions of that Convention.

FBL Advogados

Rua dos Enganos nº 1
7º andar
Luanda
Angola

+244 222 397 073

+244 222 393 273

fbl@fbladvogados.com www.fbladvogados.com
Author Business Card

Law and Practice

Author



FBL Advogados is an experienced law firm, their several senior partners having a wide, reputable and professional background going back to 1978. With headquarters in Luanda, the firm provides its services throughout the Angola territory. As a full range law firm, FBL Advogados provides legal services in various law matters, including corporate and private investment, finance and banking, natural resources, debt collection and insolvency, litigation, labour, industrial property, tax and administrative law, criminal law and others. In order to address the needs and concerns of its clients, whose activities and interests extend beyond Angolan borders, FBL Advogados keeps agreements with many reputable law firms throughout all continents. FBL Advogados is the exclusive Angolan member of Lex Africa, the largest and most prestigious law firm network in the continent. FBL Advogados has eight partners and around 30 lawyers, while its litigation team includes three of its partners and seven associate lawyers.

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