1. Policy Development of Collective Redress/Class Action Mechanisms
1.1 History and Policy Drivers of the Legislative Regime
Class actions have evolved in Nigeria through court rules and judicial decisions. However, the concept is still evolving in Nigerian jurisprudence and is restrictive in nature.
Historically, class action procedure existed in Order 13 Rule 15 of the High Court of Lagos State (Civil Procedure) Rules of 1972 (the "Lagos 1972 Rules") and continues to be retained in subsequent re-enactments of the Rules in later years. Order 15 Rule 13 of the High Court of Lagos State (Civil Procedure) Rules 2019 (the "Lagos 2019 Rules"), which are the extant rules, provides for class action in cases relating to the administration of estates, or property subject to a trust, or land held under customary law, or construction of a written instrument, including a statute in Lagos State.
Other High Courts in the various states in Nigeria also mirrored the Lagos Rules by making provision for class actions in their various rules of court.
The emergence of the class action framework at the federal level in Nigeria can be traced back to the Federal High Court (Civil Procedure) Rules, 2009 (the "FHC Rules 2009"), which made provision for a class action procedure specifically for intellectual property rights cases. The Federal High Court (Civil Procedure) Rules, 2019 (the "FHC Rules 2019"), which are the extant rules, makes provision for class action with a limited scope for only disputes involving trademarks, copyright or patents and designs. This is in line with the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the "Constitution"), which vests the Federal High Court with the exclusive jurisdiction to entertain intellectual property-related actions.
Order 13 Rule 11 (5) of the National Industrial Court Civil Procedure Rules, 2017 incorporates the general provisions on class actions which are impari materia with the rules of the various High Courts of the States and those of the Federal High Court.
The major policy drivers/reasons for class actions in Nigeria have been aptly identified by the Supreme Court in the case of Adedeji v CBN [2022] LPELR – 57809 SC. Though the action is a representative action, the rationale proffered by the Supreme Court of Nigeria is apposite to the discourse with respect to class actions. The apex court held that it is a salutary and common-sense provision (in the rules of court in Nigeria) that if there are numerous parties, it will be extremely cumbersome and frustrating if all those interested parties are joined as a named party. The Court held in that case that it will find it difficult to determine a case justly by insisting that everyone interested should be named on the writ as a party. For the sake of convenience, the courts in Nigeria therefore approve of representative actions. Thus, given a common interest or a common grievance, a representative action is in order if the relief sought is in its nature beneficial to all whom the named plaintiffs proposed to represent. Class actions enjoy a broader perspective as class members need not have the same interest.
1.2 Basis for the Legislative Regime, Including Analogous International Laws
Generally, just as the principles of common law and equity were inherited from England, so also were the Rules of the old Supreme Court of Nigeria fashioned out of those applicable in the English County Courts. When the old Supreme Court was federalised, giving way to High Courts in each of the Regions and in the then Federal Capital of Lagos, these High Courts made their individual rules of court which were also substantially based on those of the defunct court. The rules of each High Court in the country therefore derived from the rules of procedure of the County Courts in England (Fidelis Nwadialo, Civil Procedure in Nigeria, 2nd Edition, Lagos; University of Lagos Press, page 12)
However, it is interesting to note that with respect to class actions, it does not appear that Nigeria modelled its provisions in the rules of courts on class actions after the regime in the UK as class actions are not allowed in the UK.
In the USA, Rule 23 of the Federal Rules of Civil Procedure (Fed R Civ P 23) (Rule 23) is the principal source of law relating to class actions in US federal courts. Most states have enacted standards analogous to Rule 23 that govern class action proceedings in their respective state courts. However, in 2005, the US Congress passed the Class Action Fairness Act, 28 USC § 1332(d) (CAFA). This is a salient difference with the Nigerian regime, and there is no legislation passed by the National Assembly (Parliament or Congress or legislative arm of government) that legislates solely for class actions.
The provisions of the Nigerian Rules of Court and Rule 23 of the Federal Rules of Civil Procedure in the USA are similar. However, some of the provisions of Rule 23 of the Federal Rules of Civil Procedure in the USA that are not contained in the Nigerian Rules are as follows.
- The court must be satisfied that prosecuting separate actions
by or against individual class members would create a risk of:
- inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class action; or
- adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would impair or impede their ability to protect their interests.
- There is a provision for a certification order whereby the court certifies the action as a class action, defines the class members, appoints the class counsel who must meet certain requirements, defines the class and the class issues, claims or defences. Such an order may be amended before judgment.
1.3 Implementation of the EU Collective Redress Regime
Nigeria is not an EU member state and is therefore not subject to the EU collective redress regime. Nigeria's jurisdiction operates under its own legal framework and regulations for class action lawsuits.
2. Current Legal Framework and Mechanisms Applicable
2.1 Collective Redress and Class Action Legislation
There are currently no principal laws governing collective redress/class actions in Nigeria. However, these types of action are recognisable and permissible by virtue of the provisions of existing civil procedure rules of the various High Courts of States in Nigeria, the Federal High Court and the National Industrial Court.
3. Scope and Definitional Aspects of the Legal Framework
3.1 Scope of Areas of Law to Which the Legislation Applies
The applicable civil procedure rules of various courts in Nigeria determine the areas of law such rules permit for class action lawsuits; some of these are mentioned below.
Order 15 Rule 13 (1) of the Lagos 2019 Rules provides that class actions can be instituted in the following areas of law:
- the administration of estates;
- properties subject to a trust;
- land held under customary law as family or community property; and
- the construction of any written instrument, including a statue.
Order 9 Rule 4 of the FHC Rules 2019 provides that class actions can be instituted with respect to trade marks, copyright or patents and designs.
Order 13 Rule 11 (1) of the National Industrial Court of Nigeria Civil Procedure Rules, 2017 (the "NICN Rules") empowers one person or more to sue or be sued on behalf of or for the benefit of persons so interested with respect to labour and employment law matters. The NICN Rules do not expressly refer to such actions as class actions but as actions by numerous persons with same interest in a suit.
Order 13 Rules 14 and 15 of the High Court of the Federal Capital Territory Civil Procedure Rules, 2018 expanded the scope of the class action regime for suits instituted at the Federal Capital Territory by providing that class actions can be brought for proceedings concerning the administration of estate, property subject to a trust or land devolved under other interest as family or community property, the construction of any written instrument, including a statute, or torts or any other class action.
For an order of class action to be granted, Nigerian courts must ascertain that the class of persons cannot be ascertained, readily ascertained or be found.
3.2 Definition of Collective Redress/ Class Actions
There is no statutory definition of a class action or collective redress save for the provisions in procedural rules of the various courts in Nigeria.
The common denominator in the various rules of court is that class actions are actions where one or more persons are appointed by the judge to represent that person(s) or class or members of the class in a lawsuit where the person, class or some members of the class interested in the lawsuit cannot be ascertained or cannot readily be ascertained or, if ascertained, cannot be found, or for purposes of expediency and efficiency if they can be ascertained or found.
Nigerian courts have also interpreted what constitutes a class action. In the cases of Abraham Adesanya v President of Federal Republic of Nigeria (1981) 5 S.C. 69 and Gallaher Ltd. & Another v British American Tobacco Co. Ltd. & Others (2015) 13 NWLR (Part 1476) 325, it was held that a class action must be centred on the principle of commonality, ie, there must be common factual questions or legal interest with the claims and defences of the larger group to be represented being protected.
In the case of Babalola v Apple Inc [2021] 15 NWLR 193, the Court of Appeal in accordance with Black's Law Dictionary gave the definition of "class action" as: "a lawsuit in which the court authorises a single person or a small group of people to represent the interests of a larger group, specifically, a lawsuit in which the convenience either of the public or of the interested parties requires that the case be settled through litigation by or against only a part of the group of similarly situated persons and in which a person whose interests are or may be affected does not have an opportunity to protect his or her interests by appearing personally or through a personally selected representative, or through a person specially appointed to act as a trustee or guardian".
In that case, the Court further pronounced on the peculiarity of class action as follows: "[i]n a class action, the class must be so large that individual suits would be impracticable. There must be legal or factual questions common to the class. The claims or defences of the representative parties must adequately protect the interests of the class".
4. Procedure for Bringing Collective Redress/Class Actions
4.1 Mechanisms for Bringing Collective Redress/Class Actions
In Nigeria, class actions can be commenced at the Federal High Court and the various State High Courts. Inasmuch as these actions can be commenced in these courts, the rules guiding the causes of action are different under the various rules of court, for example:
- by the provisions of Order 15 Rule 12(1) of the Lagos 2019 Rules, the institution of class actions is restricted to proceedings concerning the administration of an estate, property that is the subject of a trust, land held under customary law as family or community property, or the construction of any written instrument including a statute;
- by virtue of Order 9 Rule 4(1) of the FHC Rules 2019, a class action may be brought in any matter concerning trade marks, copyright or patents and designs; and
- by Order 13 Rule 15 (1) of the Federal Capital Territory Abuja, (Civil Procedure) Rules, 2018, class actions can be brought for proceedings concerning the administration of estate, property subject to a trust or land devolved under other interest as family or community property, the construction of any written instrument, including a statute, or torts or any other class action.
In all the provisions stipulated above, where the court is satisfied that it is expedient to do so, it may appoint one or more persons to represent a person, a class or members of a class where:
- the person, the class or some members of the class interested cannot be ascertained or readily be ascertained; or
- the person, the class or some members of the class interested if ascertained cannot be found.
There is no exclusive procedure or mechanism for commencement of collective redress/class action under the rules of the various courts. This is because the mechanism for commencement of a class action under the various rules of court is not different from that which is obtainable in commencement of other types of civil actions. These are usually by way of a writ of summons or by originating summons and shall be accompanied by relevant documents as specified by the rules of court.
4.2 Overview of Procedure
Under the High Court rules of various states and the Rules of the Federal Capital Territory Abuja, there is no exclusive procedure for the commencement of a class action. However, Order 43 Rule 1 of the Lagos 2019 Rules provides that whereby any application is authorised to be made to a judge, such application shall be made by a motion which may be supported by an affidavit and shall state the rule of court or law under which the application is brought.
According to the provisions of the various procedural rules of court, the procedure for commencing a class action is as follows.
- The action may be brought by way of writ of summons or originating summons, subject to the provisions of the rules of court and shall be accompanied by the relevant documents as specified by the rules of court.
- An application by way of motion ex-parte (without notice to the other parties) must be made to the judge seeking leave to appoint one or more persons (named in the originating process filed) to represent a person, class, or some members of the class in a subject matter suit.
- The motion ex-parte will contain a relief to advertise/publicise the action in the interest of the persons, class or some members of class in a subject matter so as to be aware of the pendency of the action with the option to opt in/out by any member of the class or person(s).
- Upon hearing an application, the judge appoints one or more persons to represent the class or some members of the class.
4.3 Standing
In Nigeria, persons who have standing to bring collective redress/class action suits are persons having an interest in the suit, which may be commenced or defended by one or more such persons, for the benefit of other interested persons. In a class action, it is sufficient for members of the class to have common issues without necessarily having the same interest.
By Order 13 Rule 15 (1) of the Federal Capital Territory Abuja, (Civil Procedure) Rules, 2018, Order 15 Rule 13 (1) of the Lagos 2019 Rules and Order 9 Rule 4(1) of the FHC Rules 2019, a judge is empowered to appoint one or more persons to represent the a person, members of a class, or class of persons interested in a class action.
4.4 Class Members, Size and Mechanism – Opting In or Out
Determination of Persons Who Belong to a Relevant Class for the Purposes of Collective Redress/Class Action
In Nigeria, the determination of persons who belong to a relevant class for the purposes of collective redress/class action litigation is dependent on whether the persons have an interest in the subject matter of the suit. There must also be legal or factual questions common to the class.
Limits on the Number Within a Class/Size of Classes
In the Nigeria legal regime, there are no limits on the number of persons who constitute a class. The rules of the various High Courts in Nigeria recognise that a class may be made of persons interested in a class action some of which:
- cannot be ascertained;
- cannot be rightly ascertained; or
- if ascertained, cannot be found.
This presupposes that there is no restriction on the number of persons in a class or the size of classes.
Mechanism for Joining an Action Opt In/Out
Order 9 Rule 4 (3) and (4) of the FHC Rules 2019 provides that a person or member of a class may, in any class proceedings, apply to the court or a judge in chambers to opt in or opt out of the class and the court or judge in chambers may then, on good and justifiable cause, permit such person or member of a class to opt in or opt out of the class action.
The application to the court or judge in chambers is by a motion which sets out the grounds which the party making the application intends to rely on, supported by an affidavit setting out the facts which the party making the application intends to rely on, and a written address. Generally, all motions are to be made on notice to any party affected by it. However, motions ex-parte (without notice to the affected party) are granted by the court, if it is satisfied that to delay the motion till notice is given to the affected party would entail irreparable damage or serious mischief to the party making the application.
There are no specific provisions in the relevant High Court rules of various states in Nigeria and the Federal Capital Territory stating the procedure for opting in or out of a class action proceeding. However, generally, applications are allowed to be made to a court for the grant of any orders.
By making an application to opt in in the course of proceedings, a class member takes formal steps to be bound by any decision made in the suit; by applying to opt out, a class member would not be bound by the outcome of the suit and is at liberty to commence an individual action.
4.5 Joinder
Generally, under the rules of the various High Courts in Nigeria, any application to add a plaintiff/claimant or defendant to any suit pending before the court may be made to a judge by a motion on notice. Such application shall be accompanied by the proposed statement of claim or defence as the case may be, all the documents intended to be used and the depositions of all the witnesses. The same procedure is applicable while seeking to add further parties to a collective redress/class action.
4.6 Case Management Powers of Courts
Unlike some other jurisdictions, Nigeria does not have a well laid out case management system for class actions, especially as there is a dearth of provisions under the various rules of courts to guide the court in the management of class action cases. However, in relation to case management for class action, Order 56 Rule 8 of the FHC Rules 2019 provides that the court shall adopt such procedure in similar rules of court or such procedure as will in its view do substantial justice to the parties.
The general provisions and -stipulated in the various court rules for the filing of originating processes are applicable for class actions. The time-frame varies according to the various processes and the courts. Upon the service of the originating processes and accompanied documents on the defendant, the defendant is mandated to file its defence within the time prescribed by the rules of court. The claimant/ plaintiff may then file any reply to the defence filed by the defendant. Once these processes are filed, pleadings are deemed closed, and a pre- trial conference will be held by the pre-trial judge who tries to settle the matter amicably or narrow down the issues for trial. Where the claims cannot be settled amicably, the matter would be assigned to a trial judge and the trial would commence. After the close of trial, the defendant files its final written address, followed by the plaintiff's final written address after which the defendant files a reply. The judgment is delivered at a later date.
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Originally Published by Chambers And Partners
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