Introduction
I
have brooded over the idea of penning a piece on ‘Class Actions in Nigeria’ but
always heckled by the choice of title that would captivate my target audience:
consumers (individuals and groups alike) and their lawyers – the main players.
have brooded over the idea of penning a piece on ‘Class Actions in Nigeria’ but
always heckled by the choice of title that would captivate my target audience:
consumers (individuals and groups alike) and their lawyers – the main players.
Fortuitously,
the wave-making judgement of the Lagos High Court in Fijabi Adebo Holdings
Liited & Anor. v Nigerian bottling Company & Anor.Suit No. LD/13/2008
re-invigorated me into rethinking and re-aligning the idea to stimulate the
prevalent mood of Nigerians towards the returns embedded in class actions
especially towards seeking recompense over widespread consumer rights
infringements.
the wave-making judgement of the Lagos High Court in Fijabi Adebo Holdings
Liited & Anor. v Nigerian bottling Company & Anor.Suit No. LD/13/2008
re-invigorated me into rethinking and re-aligning the idea to stimulate the
prevalent mood of Nigerians towards the returns embedded in class actions
especially towards seeking recompense over widespread consumer rights
infringements.
Although
the Fijabi Adebo’s case wasn’t a class action, the eye-popping testimony
of Abiodun Adebo Falana, NAFDAC’s Head of central laboratory at pages 9 and 10
of the judgement further revealed the perennially continuous, conscious and
deliberate assaults on the sensibilities of the Nigerian consumers in the
pretentious form of goods and services which may not pass quality standards tests
and/or end-users’ tolerance elsewhere in the World. Nigeria has over time,
sadly become the dumping-ground of all sorts.
the Fijabi Adebo’s case wasn’t a class action, the eye-popping testimony
of Abiodun Adebo Falana, NAFDAC’s Head of central laboratory at pages 9 and 10
of the judgement further revealed the perennially continuous, conscious and
deliberate assaults on the sensibilities of the Nigerian consumers in the
pretentious form of goods and services which may not pass quality standards tests
and/or end-users’ tolerance elsewhere in the World. Nigeria has over time,
sadly become the dumping-ground of all sorts.
Various
manufacturers’ default have been repeatedly and successfully redressed by class
actions predominantly in United States of America, Canada, Australia and other
parts of Europe where the procedure had gained widespread prominence, utility
and understanding as a veritable tool for consumer rights advocacy, protection
and compensation. Hence, it comes as no surprise, that hundreds of class
actions are filed annually in the U.S. in almost every facet of their goods and
services-delivery.
manufacturers’ default have been repeatedly and successfully redressed by class
actions predominantly in United States of America, Canada, Australia and other
parts of Europe where the procedure had gained widespread prominence, utility
and understanding as a veritable tool for consumer rights advocacy, protection
and compensation. Hence, it comes as no surprise, that hundreds of class
actions are filed annually in the U.S. in almost every facet of their goods and
services-delivery.
Meaning
of class action
of class action
A
class action, simply put, is a suit filed by a party/parties for
himself/themselves and on behalf of other unknown and/or unidentified persons
who are termed “class members” against common Defendant(s) who has/have wronged
the party/parties and members of his/their class.
class action, simply put, is a suit filed by a party/parties for
himself/themselves and on behalf of other unknown and/or unidentified persons
who are termed “class members” against common Defendant(s) who has/have wronged
the party/parties and members of his/their class.
Description of class action
Racheal
C. Mulheron in her book “The class action in common law legal systems: a
comparative perspective” (North America, Hart Publishing, 2004) broadly
described a class action as:
C. Mulheron in her book “The class action in common law legal systems: a
comparative perspective” (North America, Hart Publishing, 2004) broadly
described a class action as:
“A
class action is a legal procedure which enables the claims (or part of the
claims) of a number of persons against the same defendant to be determines in
one suit. On a class action, on or more persons (the representative plaintiff)
may sue on his or her own behalf and or on behalf of a number of other persons
(the class) who have a claim to a remedy for the same or a similar alleged
wrong to that alleged by the representative plaintiff and who have claims that
share questions of law or fact in common with those of the representative
plaintiff (common issues). Only the representative plaintiff is a party to the
action. The class members are not usually identified as individual parties but
are merely described.
class action is a legal procedure which enables the claims (or part of the
claims) of a number of persons against the same defendant to be determines in
one suit. On a class action, on or more persons (the representative plaintiff)
may sue on his or her own behalf and or on behalf of a number of other persons
(the class) who have a claim to a remedy for the same or a similar alleged
wrong to that alleged by the representative plaintiff and who have claims that
share questions of law or fact in common with those of the representative
plaintiff (common issues). Only the representative plaintiff is a party to the
action. The class members are not usually identified as individual parties but
are merely described.
Origin of class action
Although,
the United States of America is widely touted as the home of class actions,
history has it that the special procedure was actually ‘imported’ into Yankee
from England were it originated in the 12th Century. This seemingly
controversial part of history was written by Raymond B. Marcin, an Emeritus
Profession of Law of the Columbus School of Law in his article “Searching for
the Origin of Class Action” published in 1974 as part of the Catholic
University of America, Washington D.C.’s scholarship repository (23, CATH U.L.
REV. 515 (1974).
the United States of America is widely touted as the home of class actions,
history has it that the special procedure was actually ‘imported’ into Yankee
from England were it originated in the 12th Century. This seemingly
controversial part of history was written by Raymond B. Marcin, an Emeritus
Profession of Law of the Columbus School of Law in his article “Searching for
the Origin of Class Action” published in 1974 as part of the Catholic
University of America, Washington D.C.’s scholarship repository (23, CATH U.L.
REV. 515 (1974).
In
the article, Marcin, relayed the amusing facts of the most prominent of the
earliest class actions filed in England – Brown v Vermuden 22 Eng. Rep. 796,
802 (Ch. 1676) where in Debyshire (a county in east midlands of England),
the Vicar of Worselworth (Reverend Carrier who was later replaced by Reverend
Brown) was distraught that mine owners were not paying tithes, he filed an
action against the mine owners and workers claiming entitlement to one-tenth of
the lead-ore output of the mines.
the article, Marcin, relayed the amusing facts of the most prominent of the
earliest class actions filed in England – Brown v Vermuden 22 Eng. Rep. 796,
802 (Ch. 1676) where in Debyshire (a county in east midlands of England),
the Vicar of Worselworth (Reverend Carrier who was later replaced by Reverend
Brown) was distraught that mine owners were not paying tithes, he filed an
action against the mine owners and workers claiming entitlement to one-tenth of
the lead-ore output of the mines.
The
miners named four of their number to defend the suit but when the Vicar
judgement was given in favour of the Vicar, Mr. Vermuden (one of the miners)
intervened after the judgement and argued before the court that he ought not be
bound by the judgement as he was not a party. The Chancellor however held that
all the other mine owners and workers were bound by the outcome of the suit
even though they were not individually named in the suit.
miners named four of their number to defend the suit but when the Vicar
judgement was given in favour of the Vicar, Mr. Vermuden (one of the miners)
intervened after the judgement and argued before the court that he ought not be
bound by the judgement as he was not a party. The Chancellor however held that
all the other mine owners and workers were bound by the outcome of the suit
even though they were not individually named in the suit.
However,
Marcin doesn’t appear standing alone on this tract of history-writing, as his
account on the origin of class actions was corroborated by Professor Stephen
Yeazell (an American Professor of Law Emeritus) in his book published as far
back as 1987 titled “From Medieval Group Litigation to the Modern Class Action”
New Haven: Yale University Press.
Marcin doesn’t appear standing alone on this tract of history-writing, as his
account on the origin of class actions was corroborated by Professor Stephen
Yeazell (an American Professor of Law Emeritus) in his book published as far
back as 1987 titled “From Medieval Group Litigation to the Modern Class Action”
New Haven: Yale University Press.
To a
large extent, it seems scholars agree to a large extent that class action or
its strong procedural pretences emanated from England but what seems unsettled
is the year, it erupted: while some schools of thought posited 12th century
others chose later centuries.
large extent, it seems scholars agree to a large extent that class action or
its strong procedural pretences emanated from England but what seems unsettled
is the year, it erupted: while some schools of thought posited 12th century
others chose later centuries.
For
instance Marcin says the history of class action goes beyond the “pale of
chancery itself to the misty era of the Eyres of thirteenth and fourteenth
century” backing same with the fourteenth century petition of Hilgay v Wasnam
10 SELD. Society 44 (No. 41, Ch. 1399) (1896) and Discart v Otes, 30 SELD.
Society 137 (No. 158, P.C. 1309) (1914).
instance Marcin says the history of class action goes beyond the “pale of
chancery itself to the misty era of the Eyres of thirteenth and fourteenth
century” backing same with the fourteenth century petition of Hilgay v Wasnam
10 SELD. Society 44 (No. 41, Ch. 1399) (1896) and Discart v Otes, 30 SELD.
Society 137 (No. 158, P.C. 1309) (1914).
The Nigerian experience
Coming
back home, although, provisions on class actions have existed in the varying
rules of court especially the Lagos High Court Civil Procedure Rules as far
back as 1972 Rules (Order 13 Rule 15) the special procedure has not, to my
mind, been adequately utilized by legal practitioners.
back home, although, provisions on class actions have existed in the varying
rules of court especially the Lagos High Court Civil Procedure Rules as far
back as 1972 Rules (Order 13 Rule 15) the special procedure has not, to my
mind, been adequately utilized by legal practitioners.
(Reported)
Class actions in Nigeria are few and far between. In fact, the writer is aware
of only one reported Court of Appeal decision on the subject matter in the case
of Gallaher Limited & Anor. v British American Tobacco Co. &
Ors. (2015) 13 NWLR (Pt. 1476) 325 which was filed under the Federal
High Court Civil Procedure Rules 2009 against infringement of patent/trademark.
Class actions in Nigeria are few and far between. In fact, the writer is aware
of only one reported Court of Appeal decision on the subject matter in the case
of Gallaher Limited & Anor. v British American Tobacco Co. &
Ors. (2015) 13 NWLR (Pt. 1476) 325 which was filed under the Federal
High Court Civil Procedure Rules 2009 against infringement of patent/trademark.
It
may safely be said here that the origin of class actions in Nigeria is more traceable
to the existence of procedural rules of court on the subject than to the filing
and/or certification of the suit itself but without prejudice to the ones filed
but not given adequate publicity and/or law reporting.
may safely be said here that the origin of class actions in Nigeria is more traceable
to the existence of procedural rules of court on the subject than to the filing
and/or certification of the suit itself but without prejudice to the ones filed
but not given adequate publicity and/or law reporting.
So
from the foregoing, if the origin of class action is traceable to law reporting
in Nigeria, then we may say that if recently got its first appellate judicial
upholding on the 19th day of December 2014 when the Ilorin division of the
Court of Appeal in Gallaher’ s case made express pronouncement on class
actions and when a court would made an order of appointment especially under
the Federal High Court Rules.
from the foregoing, if the origin of class action is traceable to law reporting
in Nigeria, then we may say that if recently got its first appellate judicial
upholding on the 19th day of December 2014 when the Ilorin division of the
Court of Appeal in Gallaher’ s case made express pronouncement on class
actions and when a court would made an order of appointment especially under
the Federal High Court Rules.
It
is however worthy of note that, the Nigerian Institute of Advance Legal Studies
organized a Round Table on Class Action organized in 2013 and published a
Communiqué which (arguably) states that:
is however worthy of note that, the Nigerian Institute of Advance Legal Studies
organized a Round Table on Class Action organized in 2013 and published a
Communiqué which (arguably) states that:
“the
first and successful class action suit was instituted in 2001 and concluded in
2010 by Mr. Lucius Nwosu SAN on behalf of Ejama-Ebubu community in Tai Eleme
Local Council of Rivers State of Nigeria which clearly shows that despite its
many advantages, paucity of legal provisions on class action litigation seem to
create a murky environment that somewhat impedes such suits in Nigeria.”
first and successful class action suit was instituted in 2001 and concluded in
2010 by Mr. Lucius Nwosu SAN on behalf of Ejama-Ebubu community in Tai Eleme
Local Council of Rivers State of Nigeria which clearly shows that despite its
many advantages, paucity of legal provisions on class action litigation seem to
create a murky environment that somewhat impedes such suits in Nigeria.”
The
suit alluded to above is Shell Petroleum Dev. Co. Nig. Ltd. v Edamkue &
Ors. (2009) 14 NWLR (Pt. 1160) 1 – the propriety or otherwise of its
allusion as a class action is not the purport of this write up.
suit alluded to above is Shell Petroleum Dev. Co. Nig. Ltd. v Edamkue &
Ors. (2009) 14 NWLR (Pt. 1160) 1 – the propriety or otherwise of its
allusion as a class action is not the purport of this write up.
Confusion with representative actions
From
procedural point of view, the confusion of representation actions with class
actions seem the stagnating-devil of the latter as both practitioners and
judges often juxtapose the two similar but distinct procedures.
procedural point of view, the confusion of representation actions with class
actions seem the stagnating-devil of the latter as both practitioners and
judges often juxtapose the two similar but distinct procedures.
This
confusion may however be explained away on the reality that there exists no
separate substantive legislation on class actions in Nigerian where provisions
for class actions are only found (side-by-side with representative actions) in
the procedural rules of courts which often tie the procedure to the judicial
discretion unlike in other jurisdictions of the World where justiciable rights
to file class actions are guaranteed by substantive law. For instance, see the
Class Action Fairness Act 2005 of the United States; Federal Court of Australia
Act (Part IVA), Class Proceedings Act of Canada 1992.
confusion may however be explained away on the reality that there exists no
separate substantive legislation on class actions in Nigerian where provisions
for class actions are only found (side-by-side with representative actions) in
the procedural rules of courts which often tie the procedure to the judicial
discretion unlike in other jurisdictions of the World where justiciable rights
to file class actions are guaranteed by substantive law. For instance, see the
Class Action Fairness Act 2005 of the United States; Federal Court of Australia
Act (Part IVA), Class Proceedings Act of Canada 1992.
Class
actions are similar to representative actions in that, they both have
personally named parties representing groups but that seems the only
string-attached as far as the two procedural rules of court are concerned.
actions are similar to representative actions in that, they both have
personally named parties representing groups but that seems the only
string-attached as far as the two procedural rules of court are concerned.
For
the purpose of clarity and convenience, the dissimilarities of the two
procedures have been outlined in the table below:
the purpose of clarity and convenience, the dissimilarities of the two
procedures have been outlined in the table below:
(Rep
Action) Provided under Order 13 Rule 12 of the Lagos High Court Civil Procedure
Rules 2009
Action) Provided under Order 13 Rule 12 of the Lagos High Court Civil Procedure
Rules 2009
(Class
action) Provided under Order 13 Rule 13 of the Lagos High Court Civil Procedure
Rules 2009
action) Provided under Order 13 Rule 13 of the Lagos High Court Civil Procedure
Rules 2009
(Rep
Action)May be brought on any cause of action with few exceptions.
Action)May be brought on any cause of action with few exceptions.
(Class
action) Restricted to interpretation of written instruments, statutes,
administration of estate, property subject to trust, customary, family or
communal property
action) Restricted to interpretation of written instruments, statutes,
administration of estate, property subject to trust, customary, family or
communal property
(Rep
action) Does not require leave of court
action) Does not require leave of court
(Class
action)Requires appointment by Judge
action)Requires appointment by Judge
(Rep
action) Notice of representation is not required
action) Notice of representation is not required
(Class
action) Notice of appointment is required
action) Notice of appointment is required
(Rep
action) Interested persons are identifiable and ascertainable
action) Interested persons are identifiable and ascertainable
(Class
action) Class members may not be identifiable and ascertainable
action) Class members may not be identifiable and ascertainable
Representatives
are appointed or authorized by members
are appointed or authorized by members
(Class
action( Representatives are appointed by Court
action( Representatives are appointed by Court
(Rep
action) Outsiders can not opt-in
action) Outsiders can not opt-in
Class
members can opt-in and opt-out
members can opt-in and opt-out
(Representatives
are answerable to their members.
are answerable to their members.
Court
takes an active role in the event of compromise/settlement
takes an active role in the event of compromise/settlement
In
representative actions, Members must have ‘same interest’
representative actions, Members must have ‘same interest’
In
class actions, Members are only to have ‘interest’
class actions, Members are only to have ‘interest’
Conclusion
As
much as the rules of court are not particularly elaborate on the special
procedure of class actions, we are of the respectful view that, frequent use
and insistence by lawyers, on the special procedure would open up and enrich
our case law on the subject thereby leading to fast and expedient development
of the procedure together with its good to our legal and social systems.
much as the rules of court are not particularly elaborate on the special
procedure of class actions, we are of the respectful view that, frequent use
and insistence by lawyers, on the special procedure would open up and enrich
our case law on the subject thereby leading to fast and expedient development
of the procedure together with its good to our legal and social systems.
Sadly,
there is not one reported decision on consumers’ class action in Nigeria
despite rampant reported incidents of consumer rights violations in our country
on a daily basis. Perhaps this is traceable to the disinclination of majority
of public interest lawyers to take advantage of the procedural provisions in
the rules of court since 1972 especially under the Lagos High Court (Civil
Procedure) Rules.
there is not one reported decision on consumers’ class action in Nigeria
despite rampant reported incidents of consumer rights violations in our country
on a daily basis. Perhaps this is traceable to the disinclination of majority
of public interest lawyers to take advantage of the procedural provisions in
the rules of court since 1972 especially under the Lagos High Court (Civil
Procedure) Rules.
If
the status quo of disinclination toward class actions changes, Consumers would
also been inspired to insist on their rights and seek redress en bloc in the
very likely event of violations by manufacturers and service providers on the
one hand while manufacturers and service providers would also respect consumer
rights by doing what is right at all times.
the status quo of disinclination toward class actions changes, Consumers would
also been inspired to insist on their rights and seek redress en bloc in the
very likely event of violations by manufacturers and service providers on the
one hand while manufacturers and service providers would also respect consumer
rights by doing what is right at all times.
Ultimately,
our society, justice system and economy would be the biggest beneficiaries of
the attendant effect of such boom in the number class actions, regardless of
their success, in the dockets of our court.
our society, justice system and economy would be the biggest beneficiaries of
the attendant effect of such boom in the number class actions, regardless of
their success, in the dockets of our court.
By
Olumide Babalola, a Lagos-based
consumer rights lawyer.
Olumide Babalola, a Lagos-based
consumer rights lawyer.
olumidebabalolaesq@gmail.com
Source: LinkedIn
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