Difference Between Class Actions And Representative Actions: Court of Appeal Clears the Air – Olumide Babalola

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Christmas came quite early for me as the Court of Appeal delivered a landmark judgment in my appeal against Apple Inc. clarifying the difference between class actions and representative actions. It was a journey of three years which began on the 5th day of September 2016 when I filed a class action against the makers of iPhone (Apple Inc.) over their detective iPhone 6 which was universally plagued with the touch-screen disease.

The suit was certified as a class action by Hon. Justice D. T. Okuwobi after which the certification order was advertised in national dailies and the originating processes subsequently served on the American company at their office in California, USA.

The Defendant was represented by the first female maritime lawyer to take silk, Mrs. Funke Agbor, SAN of the firm of Adepetun Caxton Martins, Agbor & Segun who filed an objection to the competence of my suit on the ground of non-fulfilment of condition precedent under the now repealed Consumer Protection Council Act, LFN 2004.

My Lord, Okuwobi, J. agreed with the learned silk, upheld her objection and consequently struck out the suit. The court specifically held that:

“It is a fact that every iPhone user has a separate contract of sale when the purchase was made. The Claimant did not at any time negotiate as an agent of all iPhone users in Nigeria when the phones were purchased. A contractual relationship is founded on the basis of privity. There is no evidence of assignment of the contractual rights of       other members of the class or that an enforceable trust has been created in his favour. There are also no statutory exception, it is therefore my considered view that the breach of warranty sought in     this action is not proper in a class action.” (Emphasis mine)

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The emphasized part of the above holding formed the plint of Ground 1 of my notice of appeal. The appeal was heard in October and judgement delivered on the 6th day of December, 2019 as follows:

On the meaning of class action, My Lord, J.Y. Tukur, JCA who read the leading judgement held at page 15 thus:

“As a first port of call, it is very expedient to draw a distinction between class actions and representative actions. According to Black’s Law Dictionary, Eighth Edition, page 267, defines a class of actions as:

“A lawsuit in which the court authorizes 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.”

On the peculiarity of class action, the court held at page 16 that:

“In 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.”

On the distinction between class action and representative action, the court held at page 17 that:

“(1)In my view, class action is restricted to interpretation of written instruments, statutes, administration of estates, property subject to trust, customary, family or communal property, whereas a representative action on the other hand, may be brought on any cause of action.

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(2)A class action requires appointment by the judge whereas a representative action does not require leave of court.

(3)In a class action, notice of appointment is required, whereas notice of representation is not required in a representative action.

(4)Class members may not be identifiable and ascertainable in a class of action, but interested persons are ascertainable in a representative action.

(5)No doubt, I am aware that in class actions, members are only to have interest whereas in representative actions, members must have same interest. See: Order 13, Rule 12 and Order 13, Rule 13 of the High Court of Lagos State Civil Procedure Rules, 2012.”

Conclusively on the issue, the court summed it up as follows:

There is no gainsaying the fact that a judge is empowered to appoint one or more persons to represent a person or class or members of the class in instances where a judge is satisfied that a person, the class or some members of the class interested cannot be ascertained, the person, the class or some members of the class interested, cannot be found, the person, class and the members thereof cannot be ascertained and be found…Thus, the lower court, in my view, went on a frolic of its own in its position that there must be assignments of contracts of members represented or that, an enforcement trust must be created in a class action. Accordingly, issue 1 is resolved in favour of the Appellant and against the Respondent.”

Although, I lost the appeal on the ground relating to non-fulfilment of condition precedent (which ought to be tested at the Supreme Court) the silver-lining in this decision for me, is the comprehensive consideration given to class action procedure which has been repeatedly, in different fora, been confused with the representative actions.

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On the whole, I am grateful to the learned Justices of the Court of Appeal for pronouncing extensively on this procedural phenomenon which remains underutilized in our courts even till this day.

Olumide is the Managing Partner of Olumide Babalola LP and he writes from Lagos, Nigeria.

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