Theoretical Foundations of Disgorgement of Profits as a Private Law Remedy in Nigerian Law

Disgorgement of profits, which strips a defendant of gains obtained through wrongdoing regardless of loss suffered by the plaintiff, remains theoretically contested and practically underutilised in Nigerian private law, despite its growing prominence in English and Commonwealth jurisprudence. This study develops an original theoretical foundation for disgorgement of profits as a private law remedy in Nigerian law, addressing the persistent debate about whether disgorgement is a restitutionary, punitive, or sui generis remedy, and providing a principled framework for its deployment in fiduciary, contractual, tortious, and equitable contexts. Using a pluralist theoretical methodology combining philosophical analysis of the justifications for disgorgement with doctrinal analysis of 50 Nigerian cases from 2010 to 2024 and comparative study of English, Australian, and Canadian disgorgement jurisprudence, the research advances a Gain-Based Liability Theory adapted to the Nigerian private law context. Field interviews with 30 leading commercial and equity lawyers in Lagos, Abuja, and Enugu provide empirical grounding for the theoretical analysis. Findings reveal that Nigerian courts have applied disgorgement in an unprincipled and inconsistent manner, frequently conflating it with compensatory damages, and that the absence of a theoretical foundation limits its effective use. This research constitutes an original contribution to Nigerian private law theory by providing the first systematic theoretical treatment of disgorgement as a standalone remedy. Recommendations include appellate court guidance, legislative recognition of disgorgement, and academic engagement with gain-based liability theory. Keywords: disgorgement of profits, gain-based liability, remedies, private law theory, unjust enrichment