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RULING The claimant took up a complaint in accordance with the general Form of Complaint dated and filed on 26th July 2011. The claimant was stated to be “Olatunde Sirajudeen Animasaun (For and on behalf of all others similarly situated)”. In consequence, the Court raised the issue of the competence of the capacity in which the claimant is suing and asked the parties to address it on the issue. The parties filed written their respective address, starting with the claimant. The claimant did not, however, file any reply on points of law, saying that he did not deem it necessary to do so as the respondent’s address did not address any of the issues the claimant canvassed. The claimant’s counsel framed the issue for determination as – …an enquiry into the competence of the Class Action as presently constituted. Put simply, the question is whether OLATUNDE SIRAJUDEEN ANIMASAUN (the named claimant) can maintain a Class Action on behalf of others similarly situated, even though the unnamed claimants are identifiable and have separate claims. To the claimant’s counsel, as to the membership of the class, this is clearly defined in paragraph 7 of the Statement of Claim, namely, employees of the defendant who are still being owed their back emoluments and in some cases their gratuities from the defendant and some amongst them whose pension deductions have not been paid over to Pension Fund Administrators or any Escrow Account. In summary, that the class comprises employees of the defendant to whom the defendant is indebted (notwithstanding how the debts are categorized by reasons of their employment. The claimant’s counsel continued that in multi-party actions, where as in the present instance, several claimants have claims against the same defendant arising from the same or similar transactions the options open to the claimants are – (i) For the claimants to take out separate writs on an individual basis, no matter how numerous they may be and then apply for consolidation at a later date – This may be cumbersome and inexpedient where the class may be so expensive. (ii) For the claimants to be joined in one action, but to have their causes of action separately pleaded and their reliefs separately and individually claimed – This suffers the same vice as (i) above. (iii) For the claimants to take out separate writs on an individual basis and the named claimant to apply to prosecute as his own action as a test action with the parties (claimants and defendant) abiding the result of the judgment “mutatis mutandis” – This suffers the same vice as above and is also dependent on the agreement of the Defendant and the Court to the selection of a Test case. (iv) For the named claimant to seek to represent the other claimants in a representative action. See Order 4 Rule 2 of the National Industrial Court Rules 2007 – The limitations in this type of procedure is the requirement of counsel and that the named claimant and the represented parties must have the same (not similar) interests, that is to say there must be only one cause of action for all the claimants – See the case of Adediran v. Interland Transport Ltd [1991] 9 NWLR (Pt. 214) 155 at 197 – 198. (v) For the claimant to institute a class action as presently constituted, placing reliance on Order 15 of the National Industrial Court Rules 2007 which enables the Court to adopt such procedure as will, in its view, do substantial justice where no provision is made in the National Industrial Court Rules as to practice and procedure or where the provisions are inadequate. All emphases are the claimant’s. The claimant’s counsel continued that the claimant has opted for a class action because it is flexible enough to avoid the structures of multiple actions and at the same time overcome the limitations of the representative action. That though there are different procedural rules for class action in various jurisdictions, the salient features of the class action procedure are – (i) One or more than one claimant prosecutes a claim against the same person on behalf of unnamed class members, even though the members are ascertainable; (ii) The claims of the class members are in respect of or arise out of the same, similar or related circumstances; (iii) give rise to substantial common issues of law or notwithstanding that this include claims for damages that would require individual assessment; and (iv) Whether or not the proceeding is concerned with separate transactions between the defendant and individual class members. To the claimant’s counsel, the consent of class member is not required provided that such a member can opt out, referring to the Federal Court of Australia Act 1976, Pt IVA (Appendix A attached to the claimant’s written address). In the circumstances, the claimant’s counsel submitted that the present class action is competent as the Statement of Claim filed has all the attributes of a proper class action. In conclusion, the claimant’s counsel urged the Court to allow the action to proceed in line with the Federal Court of Australia Act 1976, Pt IVA by virtue of Order 15 of the National Industrial Court Rules, which allows adoption of any procedure which will do substantial justice where the National Industrial Court Rules do not make adequate provision. That in the event that the Court is not persuaded that the named claimant can maintain the class action, the Court is respectfully urged, that the named claimant be allowed to prosecute the action for himself while the Court may with respect run a blue pencil over all those averments which relate to the class. The claimant’s counsel then urged the Court to allow the action to proceed in the interest of justice. In reaction, the defendant’s counsel contended that the claimant commenced the present suit for himself and on behalf of some unnamed individuals purportedly ‘similarly situated’. That the gravamen of the claimant’s complaint as stated in paragraph 6 of the Statement of Fact dated 26th day of July 2011 is that “between June 2009 and December 2010, the defendant failed to pay emoluments to their employees, neglected to pay gratuities to those who were entitled and omitted to remit pension deductions to Pension Fund Administrators or any Escrow Account. In particular, the claimant is owed 16 Months back emoluments within the period spanning January 2009 to December 2010. In the latter month the defendant by Notice in writing dated 8th December 2010 suspended their operations.” Without going into the veracity or otherwise of the above allegations, the defendant submitted that a fundamental issue that requires resolution, and one that goes to the competence of this suit and thus the jurisdiction of the Court to entertain same, is whether the present suit is properly constituted. The defendant answered in the negative. To the defendant, the claimant in this suit purports to act for himself and some other unnamed individuals purportedly similarly situated. That for all practical purposes, and irrespective of the words or other appellations with which the claimant is wont to describe the suit, the present suit is one brought in a representative capacity i.e. a representative action. That by way of definition, a representative action is an action brought by or against one or more persons as representing other persons together with whom the one or more persons have a common interest in the subject matter of the action. The defendant then submitted that the critical requirement for the competence of a representative action is that the parties should have a common (not similar) interest in the subject matter of the action. That according to Fidelis Nwadialor in his book, Civil Procedure in Nigeria, 2nd Edition, at page 112, paragraph 2 – For a proper institution of a representative action, it is necessary that the persons representing the others and those represented by them should have the same interest in the proceedings. The condition in turn requires that all these persons, i.e. the representatives and those they represent, should have a common interest, and a common grievance and that the relief sought by the claim is in its nature beneficial to all of them. This requirement has been described as the fundamental requirement underlying suits brought in representative capacity. Furthermore, that in Idise v. Williams Int. Ltd [1995] 1 SCNJ 120, the Supreme Court clearly and unequivocally stated the principle that the essential condition for sustaining a representative action is that the persons who are to be represented shall have the same interest as the plaintiff in one and the same cause or matter. In order words, there must be a common interest alike in the sense that its subject or its relation to that subject must be the same. Thus according to the court, mere identity or similarity of circumstance in litigation may not necessarily result in the parties thereto having a common interest and a common grievance. To the defendant, an excellent illustration of this principle is provided in S. Oragbaide v. Chief S. J. M. Oniyuu [1962] 1 ANLR 32, a case where the plaintiff brought the proceedings on his own behalf and on behalf of a certain community claiming an area of land as communal property. The evidence adduced by the plaintiff, however, showed that he and others represented by him claimed to have each an individual farm of his within the area in dispute. That this meant that the whole community could not have owned the whole area as communal land. Accordingly, it was held that the plaintiff and the community could not be said to have the same interest and the former could not sue on behalf of the latter. According to the defendant, another relevant case where the principle is aptly illustrated is Adenike v. Interlant Transport Nig. Ltd [1991] 9 NWLR 155 where the plaintiffs were held to have wrongly brought a representative action for injuries arising from nuisance created by the defendant transport company. The company operated in the neighbourhood of the plaintiffs who undoubtedly suffered damages caused by the nuisance. But then the nature and extent of their damages varied from one plaintiff to another represented and unrepresented. It was held that in the circumstances each plaintiff suffered a separate and distinct tort actionable at his instance. A representative action was thus held to be improper, as there was only similarity in the acts of the defendants in creating the nuisance in the area that affected all the complainants but their grievances were different and varied. The defendant then submitted that the relations between the defendant and the claimant, as well as that between the defendant and the persons purportedly represented by the claimant is one created by private treaty i.e. contracts of employment between the defendant and each particular individual involved. Consequently, that the rights and obligations flowing from such a private treaty inures to the parties individually. That they are neither rights held in common nor obligation borne in common. Thus where any of the parties wishes to enforce his/her rights under the private treaty, that particular party can only properly do so by action instituted in a personal capacity, not by way of a representative action. The defendant further submitted that while representative actions are mostly taken in cases dealing with communal land, where all the members of the community have common or the same interest in the land thus making representative action proper (Imam Lawani Lediju v. Daini Odulaja [1943] 17 NLR 15), or in chieftaincy family matters, where the members of the chieftaincy family have a common interest to see that a candidate nominated by them became the holder of the office thus making representative action a competent one (Adefulu v. Oyesile [1989] 5 NWLR 377), such actions are rare in contract or torts. The defendant continued that according to the Supreme Court Practice 1982 at page 238, paragraph 15112.2A, representative action in suits in contract and quasi-contract are possible only “where the persons sought to be represented have same rights or are all under the same liability and have the same defences and no others as those representing them as plaintiffs or defendants in respect of the claim for which the action is brought.” The defendant then submitted that the reliefs being claimed by the claimant do not inure in common to the claimant and the respective individuals that the claimant purports to represent. Continuing, the defendant contended that the claimant had alleged in the Statement of Facts that between the months of June 2009 and December 2010, the defendant had failed to pay salaries and other benefits to those entitled. In particular, that the claimant alleged that the defendant owes him a total of 16 months’ salaries. That there was no allegation as to how many months’ salary the defendant owes the other unnamed individuals whom the claimant purports to represent; and for which the claimant does not know. Also that the defendant does not know the exact number of persons on whose behalf the claimant makes the said claim. That is why in the claims section of the Statement of Claim, the claimant could only articulate his own claims with some reasonable level of specificity. To the defendant, it is clear from the above that the claimant’s case as presently constituted is far from clear and largely incomplete. That the Court will be required to institute an inquisition in order to be able to come to the kind of judgment expected by the claimant in this suit. To do this, the Court will have to wholly and practically prosecute the claimant’s case for the claimant. That that is not the due and proper role of this Court. Consequently, that the claimant’s case must of necessity fail, being incompetent. To the defendant, it is the Rules of Court that provide for representative actions. However, that there is no provision for such actions under the Rules of this Court. That the claimant has thus invoked the provisions of Order 15 of the Rules of this Court to urge the Court to allow the action to proceed in line with the “Federal Court of Australia Act 1976”. The question that, however, arises is whether any need exists for the Court to travel as far away as Australia to seek guidance in order to meet the interests of justice on this point. As a matter of fact, that copious provisions exist in the various High Court (Civil Procedure) Rules in Nigeria on the question of representative/class action and the Court would do well to guide itself by the provisions therein. A case in point is the provisions of Order 11 Rules 8 of the Uniform High Court Civil Procedure Rules which states as follows: Where more person than one have the same interest in one suit, one or more of such persons may with the approval of the court, be authorized by the other persons interested to sue or to defend such suit, for the benefit of and on behalf of all parties so interested. The defendant continued that similar provisions exist under Order 13 of the Lagos State High Court (Civil Procedure) Rules 2004 and Order 9 of the Federal High Court (Civil Procedure) Rules 2009. That the common trends running through the various Rules of court in Nigeria on this point are – (a) The requirement of authority of the parties for the plaintiff to proceed; and (b) The requirement of leave of court for the plaintiff to do so. That the claimant has neither demonstrated that he has the authority of the various persons that he purports to represent nor has he obtained the leave of this Court. In conclusion, the defendant submitted that the present action and every other proceeding founded thereon, is incompetent being improperly constituted. As a result, this Court has no jurisdiction to entertain same. Furthermore, that that in the event that the Court finds that this action is improperly constituted, the proper order for the Court to make is an order striking out and/or dismissing the present suit. Consequently, the defendant urged the Court to strike out and/or dismiss the present suit and every other proceeding founded thereon with substantial cost. In considering this matter, I must state that I agree with the claimant that the submissions of the defendant are essentially on representative actions. What is in issue is not representative action but class action; and the defendant did not address this issue in all of its submissions. The defendant’s submissions are, therefore, not helpful in the instant case. The claimant’s counsel in his submission referred the Court to the Federal Court of Australia Act 1976, Pt IVA, attached as Appendix A to the claimant’s written address. Aside from the inappropriateness of having to refer this Court to a foreign statute given that foreign statutes are not applicable in Nigeria and are not even of persuasive authority except specifically made applicable, what the claimant’s counsel actually attached as Appendix A are two legislation – the Federal Court of Australia Act 1976, Pt IVA (to be found at pages 481 – 490 of the attachment) and the Class Proceedings Act, 1992, SO 1992, c6 of Ontario (to be found, incomplete as it is, at pages 490 - 491). While the Federal Court of Australia Act 1976, Pt IVA deals only with representative actions, it is the Ontario Class Proceedings Act, 1992, SO 1992, c6 that deals with class actions; and even at this section 2(2) and (3) of the Ontario legislation requires leave of court to be first obtained before a class action can be maintained. What counsel to the claimant has done, therefore, is that he referred the court to a legislation, the Federal Court of Australia Act 1976, Pt IVA, which is inapplicable in Nigeria and even if applicable is irrelevant to the issue at hand. The legislation that deals with the issue at hand, the Ontario Class Proceedings Act, 1992, SO 1992, c6, was actually not referred to by counsel to the claimant although it was part of the attachment labeled Appendix A, it is nevertheless incomplete as only sections 1 – 5 can be seen. So, not all of the provisions relating to class actions are disclosed to the Court. In the circumstance, neither the Federal Court of Australia Act 1976, Pt IVA Federal Court of Australia Act 1976, Pt IVA nor the Ontario Class Proceedings Act, 1992, SO 1992, c6 can be used for present purposes. Even if the Ontario Class Proceedings Act, 1992, SO 1992, c6 is to be used, it enjoins leave of court to be first sought; and this the claimant has not done in the instant case. The Australian and Ontario legislation are accordingly disregarded for present purposes. The issue in dispute is whether the suit as couched i.e. whether the claimant in suing for himself and on behalf of all others similarly situated, renders the present action incompetent. The claimant thinks the action is competent given that the action is one that is a class action. To the claimant, the claimants referable in this action, even though are unnamed claimants, are identifiable and have separate claims. I do not see how this class of claimants is identifiable and how separate the claims of members of this class are for purposes of this suit. If this court is to hear this matter as couched by the claimant and the claimant is successful, I do not see how the orders made thereby would bind the class of claimants the claimant is talking of. In that sense, I do not think that this action is competent. The claimant did not help matters in referring to foreign legislation that is not even of persuasive authority in the country. No attempt was made by the claimant to refer to case law authorities on how other jurisdictions have treated the subject matter of class actions. As an alternative argument, the claimant urged the court, if it is not minded to allowing the action as couched, to permit the claimant to pursue the claims in his own right, thereby discounting the class action. This would require the amendment of all the processes in the case file to accommodate the alternative prayer of the claimant. This would be untidy. The best course of action that the claimant needs to take in the circumstance is to file a fresh cause of action in his own right if he still desires to pursuit his claims. For all the reasons given, I hold that the present action as couched is incompetent and so is hereby struck out. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip