Babalola v. Apple Inc (2021)

Babalolav.AppleInc.

OLUMIDE BABALOLA

(Representing himself and other Owners/

Users of Iphone 6 and Iphone 6 Plus in

Nigeria in a CLASS ACTION)

V.

APPLE INC.

COURT OF APPEAL

(LAGOS DIVISION)

CA/L/1300/2017

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Presided)

UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Read the Leading Judgment)

FRIDAY, 6TH DECEMBER 2019

ACTION – “Class action” – Meaning of.

ACTION – Class action – Nature of.

ACTION – Class action – Person representing another person orclass of persons in an action – When court may appoint.

ACTION – Class action – Representative action – Difference betweenboth.

ACTION – Right of action – When not exercisable.

194

CASE LAW – Adesola v. Ab idoye (1999) 14 NWLR (Pt. 637) 28 andBakare v. A.-G., Federation (1990) 5 NWLR (Pt. 152) 516 -Ratios therein – Whether applicable to provisions of sections 6and 8, Consumer Protection Council Act.

COMMERCIAL LAW – Consumer Protection Act, 1992 – Sections 6and 8 thereof – Whether provide for duty and sanction.

COMMERCIAL LAW – Manufacturer’s or seller’s warranty -Principles governing – Whether same as for privity of contract.

CONSUMER PROTECTION – Consumer Protection Act, 1992- Sections 6 and 8 thereof – Whether provide for duty andsanction.

CONSUMER PROTECTION – Manufacturer’s or seller’s warranty- Principles governing – Whether same as for privity ofcontract.

CONTRACT – Privity of contract – Principle governing – Whethersame as principles governing manufacturer’s or seller’swarranty.

.

EVIDENCE – Affidavit evidence – Counter-affidavit filed in suitheard on affidavit evidence – Fresh facts deposed to therein- Party disputing same – Duty on to deny or contradict by afurther affidavit – Failure of to do so – Effect.

EVIDENCE – Proof – Objection based on facts – Burden of proof inrespect of – On whom lies.

INTERPRETATION OF STATUTES – Construction of statutes -Cardinal principle guiding – Clear and unambiguous words instatute – How construed.

PRACTICE AND PROCEDURE – Affidavit evidence – Counter-affidavit filed in suit heard on affidavit evidence – Fresh factsdeposed to therein – Party disputing same – Duty on to deny orcontradict by a further affidavit – Failure of to do so – Effect.

PRACTICE AND PROCEDURE – “Class action” – Meaning of.

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PRACTICE AND PROCEDURE – Class action – Nature of.

PRACTICE AND PROCEDURE – Class action – Person representinganother person or class of persons in an action – When courtmay appoint.

PRACTICE AND PROCEDURE – Class action – Representativeaction – Difference between both.

PRACTICE AND PROCEDURE – Proof – Objection based on facts- Burden of proof in respect of – On whom lies.

PRACTICE AND PROCEDURE – Right of action – When notexercisable.

PRINCIPLES OF INTERPRETATION – Interpretation of statutes -Construction of statutes – Cardinal principle guiding – Clearand unambiguous words in statute – How construed.

STATUTE – Construction of statutes – Cardinal principle guiding- Clear and unambiguous words in statute – How construed.

TORT – Manufacturer’s or seller’s warranty – Principles governing- Whether same as for privity of contract.

WORDS AND PHRASES – “Class action” – Meaning of.

Issues:

1.Whether or not members in a class action ought toexpressly assign their contractual rights or execute anenforceable trust in favour of their court-appointedrepresentatives before such class actions can bemaintained on their behalf.

2.Whether or not the appellant’s originating summonswas not ripe for hearing when the respondent filed hernotice of preliminary objection

3.Whether or not the trial court was right to have heardthe respondent’s incompetent notice of preliminaryobjection which bordered on issues of facts.

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4.Whether or not sections 6 and 8 of the ConsumerProtection Council Act, 1992 constituted conditionsprecedent to the appellant’s exercise of his right toaccess the trial court for civil remedies.

5.Whether or not sections 6 and 8 of the ConsumerProtection Council Act, 1992 provide duty andsanction for its breach.

6.Whether or not the facts and circumstance of thedecisions in Adesola v. Abidoye (1999) 14 NWLR (Pt.637) 28 and Bakare v. A.G. Federation (1990) 5 (Pt.152) 516 are applicable to the appellant’s case.

7.Whether or not from paragraph 3 of the affidavit insupport of the originating summons, the appellant’scase was brought for breach of warranty arising out ofsale.

8.Whether or not the trial court was right to import andapply principles of law of contract to the appellant’scase of breach of manufacturer’s warranty andnegligence.

Facts:

The appellant commenced a class action against the respondentfor manufacturer’s breach of warranty and negligence in respect ofiphone 6 and iphone 6 plus. The appellant stated in the affidavit insupport of his originating summons that on 18th February 2016, hepurchased an iphone 6plus from an istore in Lagos State, whichstore is one of the respondent’s authorized resellers in Nigeria andthat there was a breach of manufacturer’s breach of warranty arisingout of use and negligence by the respondent. But the appellant didnot show that he made any complaint to the Consumers ProtectionCouncil before he filed his originating summons to commence hisaction at the trial court.

The appellant filed along with his originating summons, twomotions ex parte. The one for certification of the suit as a classaction and the other for leave to serve the originating processeson the respondent in the United States of America. Both motionswere granted by the trial court, and the respondent was served withthe originating process by courier service in the United States ofAmerica on 6th January 2017.

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In response to the suit, the respondents filed its memorandumof appearance on 6th February 2017 and also filed a notice ofpreliminary objection.

After hearing the respondent’s preliminary objection, the trialcourt delivered its ruling. It held that every iphone user has a separatecontract of sale; that the appellant did not at any time negotiateas an agent of all iphone users in Nigeria when the iphones werepurchased or present evidence that he had the right to enforce thecontractual rights of other members of the class of iphones users orthat an enforceable trust had been created. Further, the trial courtheld that the originating summons was not ripe for hearing becausethe appellant did not comply with the provisions of sections 6 and8 of the Consumers Protection Council Act as requisite conditionsprecedent for commencement of the action. Thus, the trial courtstruck out the appellant’s suit.

Dissatisfied with the ruling, the appellant appealed to theCourt of Appeal.

In determining the appeal, the Court of Appeal consideredsections 6 and 8 of the Consumers Protection Council Act, whichrespectively provide as follows –

“6(1) A consumer or community that has suffered a loss,injury or damage as a result of the use or impact of anygoods, product or service may make a complaint inwriting to or seek redress through a State Committee.

Where a consumer, or a person having an interest ina matter is an illiterate or is subject to any physicaldisability and thereby unable to write, the clerk or otherofficial working with the State Committee shall causesuch consumer or person’s statement to be written atno fee or payment of any kind from such consumer orperson.

8.Whereupon an investigation by the Council or StateCommittee of a complaint by a consumer it is provedthat:

(a)the consumer’s right has been violated; or

that a wrong has been committed by wayof trade, provision of services, supply ofinformation or advertisement, thereby causinginjury or loss to the consumer, the consumer(b)shall, in addition to the redress which the

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State Committee, subject to the approval ofthe Council, may impose, have a right of civilaction for compensation or restitution in anycompetent court.

The Court of Appeal also considered Order 13 rules 12 and13 of the High Court of Lagos State (Civil Procedure) Rules, 2012,which provide as follows:

“12(1) Where there are numerous persons having the sameinterest in one suit, one or more of such persons maysue or be sued on behalf of or for the benefit of allpersons so interested.

Where there are numerous persons having the sameinterest in one suit and they seek to defend the action,a Judge may allow one or more of such persons todefend the action on behalf of, or for the benefit of all(2)persons so interested.

13(1) Where in any proceedings concerning:

(a)the administration of an estate or

(b)property subject to a trust; or

land held under customary law as family or(c)community property; or

the construction of any written instrument(d)including a statute, a Judge is satisfied that:

the person, the class or some membersof the class interested cannot beascertained or cannot readily be(i)ascertained:

the person, the class or some membersof the class interested if ascertained(ii)cannot be found;

though the person or the class and thethereof can members be ascertainedand found; it is expedient for thepurpose of efficient procedure thatone or more persons be appointedto represent that person or class ormember of the class, the Judge maymake the appointment. The decisionof the Judge in the proceedings shallbe binding on the person or class of(iii)persons so represented.

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Notice of appointment made by a judge underthis rule and all processes filed in court shall be(2)served on a person(s) so appointed.

(3)If in any proceedings mentioned in sub-ruleof this Rule, several persons having thesame interest in relation to the matter to bedetermined attend the hearing by separateLegal Practitioners, then, unless the Judgeconsiders that the circumstances justifyseparate representation, not more than one setof costs of the hearing shall be allowed to thesepersons, and the judgment or order shall be(1)framed accordingly.

In this Rule, the word ‘class’ includes thepersons recognized by Customary Law asmembers of a family or as members of a land(4)owning community.”

Held (Unanimously dismissing the appeal):

1.On Whether Sections 6 and 8 of Consumer ProtectionAct, 1992 provide for duty and sanction –

Sections 6 and 8 of the Consumer ProtectionAct, 1992 contain duty and sanction. Under theprovisions, a consumer who has suffered any injuryarising from a manufacturer’s breach must firstmake a complaint in writing to the State Committeeof the Council, which will then investigate thecomplaint and make appropriate sanction to theerrant manufacturer. (P. 223, paras. D-E)

2.On When right of action is not exercisable –

For a right to have arisen is one thing; for suchright to be exercisable is another thing. In thiscase, the appellant’s right of action in court mayhave arisen at the time of the injury alleged to havebeen suffered by the appellant by reason of therespondent’s purported breach of warranty. Butthe appellant’s failure to comply with the provisionsof sections 6 and 8 of the Consumers Protection

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Council Act, which state a requisite preconditionfor commencement of the action before the trialcourt, robbed the suit of competence at the trialcourt. Put differently, the appellant’s originatingsummons before the trial court was premature andhasty. Thus, the trial court rightly struck out thesuit on the ground that the originating summonswas not ripe for hearing. (P. 216, paras. E-G)

3.On Principles guiding interpretation of statutes –

Rules of statutory interpretation are the rulesor principles governing the interpretation ofstatutory provisions. The cardinal principle andrule of statutory interpretation is to ascertainthe true intention of the legislature. Thus, wherethe words used in an enactment are plain, clear,and unambiguous, they should be accorded theirordinary and grammatical meanings without anycolouration except where to do so will result inabsurdity. In other words, courts have no jurisdictionto introduce an interpretation or construction notborne out from the clear and unambiguous languageof a statute. In this case, the provisions of sections 6and 8 of the Nigerian Consumer Protection Act areclear and unambiguous. So, the provisions must beaccorded their ordinary and natural grammaticalmeaning without any embellishments. [Ekulo FarmsLtd. v. U.B.N. Plc (2006) LPELR-40141; Lawal v.G. B. Ollivant (1972) 3 SC 124; Berliet v. Kachalla(1995) 9 NWLR (Pt. 420) 478 referred to.] (P. 221,paras. B-G)

4.On Difference between principles of privity of contractand principles guiding seller’s or manufacturer’swarranty –

.The principles governing privity of contract,and those governing seller’s warranty andmanufacturer’s warranty are not the same. Theformer are principles of contract, while the latterare principles of torts. Torts and contract are

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distinguishable from one another in that the dutiesin the former are primarily fixed by law, while inthe latter they are fixed by the parties themselves.Moreover, in tort the duty is towards personsgenerally; in contract, it is towards a specific personor specific persons. If the claim depends on theproof of the terms of the contract, the action doesnot lie in tort. [G. B. Ollivant Nig. Ltd. v. Agbabiaka(1972) 2 SC (Reprint) 127; Okwejiminor v. Gbakeji(2008) 5 NWLR (Pt. 1079) 172 referred to.] (Pp.227-228, paras. F-B)

5.On Meaning of “class action” –

.A class action is a lawsuit in which the courtauthorizes a single person or a small group of peopleto represent the interests of a larger group. It isspecifically a lawsuit in which the convenience eitherof the public or of the interested parties requiresthat the case be settled through litigation by oragainst only a part of the group of similarly situatedpersons and in which a person whose interests areor may be affected does not have an opportunity toprotect his or her interests by appearing personallyor through a personally selected representative, orthrough a person specially appointed to act as atrustee or guardian. (Pp. 211, paras. A-C)

6.On Nature of class action –

.In a class action, the class must be so large thatindividual suits would be impracticable. Theremust be legal or factual questions common to theclass. The claims or defences of the representativeparties must adequately protect the interests of theclass. [Adesanya v. President, F.R.N. (1981) 1 NCLR236; Gallaher Ltd. v. B.A.T. Co. Ltd. (2015) 13 NWLR(Pt. 1476) 325 referred to.] (P. 211, paras. C-E)

7.On Differences between class action and representativeaction –

.A class action is restricted to interpretation of

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written instruments, statutes, administration ofestates, property subject to trust, and customary,family or communal property. On the other hand, arepresentative action may be brought on any causeof action. A class action requires appointment bythe Judge whereas a representative action doesnot require leave of court. In a class action, noticeof appointment is required, whereas notice ofrepresentation is not required in a representativeaction. Class members may not be identifiableand ascertainable in a class action, but interestedpersons are ascertainable in a representativeaction. In class actions, members are only to haveinterest whereas in representative actions, membersmust have same interest. This case was based onalleged manufacturer’s breach of warranty to itsfinal consumers. The appellant did not make outany case of breach of contract of sale between theappellant and the respondent. Neither did he atany point in trial allege a case of existence of anyprivity of contract of sale between him and therespondent. So, the case is distinguishable from acase of contractual breach. Thus, the trial courterred when it held that there must be assignmentsof contracts of members represented or that anenforceable trust must be created in a class action.(Pp. 211, paras. F-H; 214, paras. A-B)

8.On When court may appoint person as representativeof another person or class of persons in an action –

A Judge is empowered to appoint one or morepersons to represent a person or class or membersof the class in instances where the Judge is satisfiedthat:

a person, the class or some members of the(a)class interested cannot be ascertained;

the person, the class or some members of the(b)class interested, cannot be found; or

the person, class and the members thereof(c)cannot be ascertained and be found.

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[Adesanya v. President, F.R.N. (1981) 1 NCLR 236referred to.] (P. 213, paras. G-H)

9.On Burden of proof of objection based on facts –

The burden of proof rests with a party objecting, tojustify the objection by adducing facts contained inan affidavit, failure of which the court must rejectthe objection. (P. 218, para. C)

10.On Effect of failure to contradict or deny fresh factsdeposed to in counter-affidavit –

In a trial by affidavit evidence, where a counteraffidavit states facts not contained in the affidavit itis responding to, the other party who does not agreewith the new facts and seeks to dispute same, mustfile a further affidavit denying or contradicting thenew facts. This is because any fact in an affidavitin a case that is not denied or contradicted in anyother affidavit in that case, stands unchallenged.[Iwuchukwu v. A.-G., Anambra State (2015) LPELR-24487 referred to.] (Pp. 218-219, paras. G-A)

11.On Whether the ratios in Adesola v. Abidoye (1999) 14NWLR (Pt. 637) 28 and Bakare v. A.-G., Federation(1990) 5 NWLR (Pt. 152) 516 applicable to provisionsof sections 6 and 8 of the Consumer Protection CouncilAct –

The courts’ decisions in Adesola v. Abidoye (1999) 14NWLR (Pt. 637) 28 and Bakare v. A.-G., Federation(1990) 5 NWLR (Pt. 152) 516 have no nexus withthe provisions of sections 6 and 8 of the ConsumerProtection Council Act or with facts of this case. Sothe decisions are not applicable in the case. (P. 225,para. C)

Nigerian Cases Referred to in the Judgment:

Addax Petroleum Dev. (Nig.) Ltd. v. Ibeh (2007) All FWLR(Pt. 380) 1569

Adeleke v. O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608

Adesanya v. President, F.R.N. (1981) 1 NCLR 236

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Adeso la v. Abidoye (1999) 14 NWLR (Pt. 637) 28

Agbareh v. Mimra (2008) 2 NWLR (Pt. 1071) 378

Ameh v. Nwankwo (2007) 12 NWLR (Pt. 1049) 552

Apeh v. P.D.P. (2016) 7 NWLR (Pt. 1510) 153

Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536

Bakare v. A.-G., Fed. (1990) 5 NWLR (Pt. 152) 516

Berliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478

Ekulo Farms Ltd. v. Union Bank Plc (2006) LPELR-40141

G.B. Ollivant Nig. Ltd. v. Agbabiaka (1972) 2 SC (Reprint)127

Gallaher Ltd. v. B.A.T. Co. Ltd. (2015) 13 NWLR (Pt. 1476)325

Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423

Iwuchukwu v. A.-G., Anambra State (2015) LPELR-24487

Kabo Air Ltd. v. Mohammed (2015) 5 NWLR (Pt. 1451) 38

Lawal v. G. B. Ollivant (1972) 3 SC 124

Nigercare Dev. Co. Ltd v. A.S.W.B (2008) 9 NWLR (Pt. 1093)498

Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172

Orakul Resources Ltd. v. N.C.C. (2007) 16 NWLR (Pt. 1060)270

P.D.P. v. Ugba (2011) LPELR – 4838

Sholanke v. Somefun (1974) 1 SC 141

Foreign Cases Referred to in the Judgment:

Abercoway v. Whetnall (1918) 87 LJ Ch 524

C.B.S. Songs Ltd. v. Amstrad Consumer Electronics Plc CA(1988) Ch 61, (1987) RPC 42

Cheung Et Al. v. Kings Land Developments Inc. (2002) 55 OR(3d) 747 (SCJ)

John v. Rees (1970) Ch.D 345

Martin v. Davis Ch. D (1970) 1 Ch. 345, (1968) 2 All ER 275

Nigerian Statutes Referred to in the Judgment:

Chieftaincy Law, Cap. 21, Vol. 1, Laws of Oyo State, S. 22

Consumer Protection Council Act, 1992, Ss. 6 and 8

Consumer Protection Council Act, Cap. C.25, Laws of theFederal Republic of Nigeria, 2004, Ss. 9, 12

Evidence Act, 2011, S. 128

Nigerian Communications Act, Ss. 86 and 88

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Nig erian Rules of Courts Referred to in the Judgment:

Federal High Court (Civil Procedure) Rules, 2009, O. 9 4

High Court of Lagos State (Civil Procedure) Rules, 2012, O.13 rr. 12(1)(2); 13(1)(a)(b)(c)(d)(i-iii), (2)(3)(4); O. 17 16

Books Referred to in the Judgment:

Black’s Law Dictionary, 8th Ed., p. 267

Black’s Law Dictionary, 10th Ed., p. 1541

Clerk and Lindsell on Torts, 12th Ed., p. 3, para. 5

Appeal:

This was an appeal against the ruling of the High Courtstriking out the appellant’s class action. The Court of Appeal, in aunanimous decision, dismissed the appeal.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal wasbrought: Court of Appeal, Lagos

Names of Justices that sat on the appeal: BiobeleAbraham Georgewell, J.C.A. (Presided); UgochukwuAnthony Ogakwu, J.C.A.; Jamilu Yammama Tukur,J.C.A. (Read the Leading Judgment)

Appeal No.: CA/L1300/2017

Date of Judgment: Friday, 6th December 2019

Names of Counsel:.Appellant appeared in person

High Court:

Name of the High Court: High Court of Lagos State, Ikeja

Name of the Judge: Okuwobi, J.

Suit No.: ID/1284GCM/16

Date of Ruling: Thursday, 14th July 2017

Counsel:

Appellant appeared in person

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TUKUR, J.C.A. (Delivering the Leading Judgment): This is anappeal by the appellant who sued as claimant at the trial court againstthe ruling of the High Court of Lagos State (Coram: Justice D. T.Okuwobi) dated 14th day of July 2017, striking out the appellant’sclass action in Suit No. ID/1284GCM/16 in limine. The class actionwas commenced by the appellant via an originating summonstogether with the affidavit in support, exhibits and written addressall dated 5th September 2016.

The appellant filed along with the originating summons amotion ex parte dated 5th day of September 2016 for certificationof the suit as a class action. The appellant also filed a motion exparte for leave to serve the originating processes on the respondentin the United States of America. The trial court granted the motionfor certification and motion for service on the 9th day of December,2016. The respondent was served with the originating processon Friday 6th day of January, 2017 via UPS courier service in theUnited States of America.

The material facts of the case culminating in this appeal arethat the respondent filed its memorandum of appearance dated6th February, 2017 and notice of preliminary objection dated 13thFebruary, 2017. The appellant filed his written address dated 16thFebruary, 2017 in opposition to respondent’s notice of preliminaryobjection. The respondent filed its reply on points of law dated23rd February, 2017. On 27th day of February, 2017 the trial courtheard the respondent’s notice of preliminary objection and reservedruling. On the 14th day of July, 2017 the trial court delivered itsruling and struck out the appellant’s class action.

Dissatisfied with the ruling, the appellant filed a notice ofappeal dated 20th August, 2017. The appellant filed an amendedNotice of Appeal dated 30th day of October, 2017 with 10 groundsof Appeal.

The appellant’s brief of argument is dated 7th day of November,2017 and filed on the 8th day of November, 2017. The appellant’scounsel formulated eight issues for determination of this appeal towit:-

Whether or not members in a class action ought toexpressly assign their contractual rights or execute anenforceable trust in favour of their court-appointedrepresentatives before such class actions can bei.maintained on their behalves?

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B

C

D

E

G

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ii. Whether or not the appellant’s originating was not ripefor hearing when the respondent filed her notice ofpreliminary objection?

iii. Whether or not the trial court was right to have heardthe respondent’s incompetent notice of preliminaryobjection which bothered on issues of facts?

iv. Whether or not sections 6 and 8 of the ConsumerProtection Council Act, 1992 constituted conditionsprecedent to the appellant’s exercise of his right toaccess the trial court for civil remedies?

v. Whether or not sections 6 and 8 of the consumerProtection Council Act, 1992 provide duty andsanction for its breach?

vi. Whether or not the facts and circumstance of thedecisions in Adesola v. Abidoye (1999) 14 NWLR(Pt. 637) 28 and Bakare v. A.-G., Federation (1990) 5NWLR (Pt. 152) 516 are applicable to the appellant’scase?

vii. Whether or not from paragraph 3 of the affidavit insupport of the originating summons, the appellantscase was brought for breach of warranty arising out ofsale?

viii. Whether or not the trial court was right to import andapply principles of law of contract to the appellant’scase of breach of manufacturer’s warranty andnegligence?

The respondent in turn, filed its brief of argument on 17th dayof September, 2019 and deemed filed on 28th day of October, 2019wherein the learned counsel for respondent distilled three issues fordetermination of this appeal to wit:-

Was the lower court right when it held that theconditions precedent for the sections 9 and 12 of theConsumer Protect Council Act, Cap. C25, LFN 2004,have not been met in the case as to vest jurisdiction ini.the honourable court to entertain the suit as constituted?

ii. Was the lower court right when it held that theappellant’s suit before the lower court was rooted inalleged breach of warranty which is a contract and istherefore not available as a class action given that eachguarantee or warranty is a separate contract?

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iii. Whether the lower court was right to have held that theappellant’s suit was not ripe for hearing in the face ofa pending notice of preliminary objection and whetherthe said notice of preliminary objection was competentwithout any affidavit in support of same?

The learned counsel for the appellant on his part filed his replybrief on behalf of the appellant on 24th day of September, 2019 anddeemed filed on 28th day of October, 2019. In his reply brief, theappellant counsel replies as follows:-

On the respondent’s omission to address the appellant’sissue on the effect of the word “MAY” in the section6 of the Consumer Protection Council Act on the issueof condition precedent, he submitted that this courtshould hold that the respondent has admitted that theword “MAY” makes the provision of section 6 of theConsumer Protection Council Act to be discretionarybut not a condition precedent, hence the suit at thetrial court was not premature. He referred to FederalMinistry of Commerce and Tourism v. Chief BenedictEze (2006) 2 NWLR (Pt. 964) 221; Nwankwo v.Yar’Adua (2010) 12 NWLR (Pt. 1209) 518 amongsti.others.

ii. On whether class actions can only be brought inrespect of customary law, counsel to the appellantfurther submitted that the word “include” in the rulesof trial court does not limit the meaning of “class”rather it enlarges same to include family membersunder customary law, and as such, the word enlargesthe meaning of the word “class” in actions but it doesnot restrict same to family members in customary lawonly.

He referred to Okesuji v. Lawal (1991) LPELR- 2447(SC), (1991) 1 NWLR (Pt. 170) 661.

Issue 1:

Whether or not members in a class action ought toexpressly assign their contractual rights or execute anenforceable trust in favour of their court-appointedrepresentatives before such class actions can bemaintained on their behalves?

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Arguments:

On issue one as distilled by the learned counsel for theappellant, the learned counsel referred to the trial court’s positionon page 199, quoted paragraph 2 of the record of appeal andargued that the said paragraph 2 of the record of appeal replays therecurring wide spread but erroneous juxtaposition of class actionswith representative actions which duo are although similar butdistinct in several material respects.

The learned counsel for the appellant referred to the case ofAbraham Adesanya v. President of Federal Republic of Nigeria(1981) 5 SC 69, (1981) 1 NCLR 236 where the Supreme Courtheld on the peculiarity of class actions thus:-

“Thus, in some instances, a suit known as a class actionis permitted when a litigant has only a minor personalinterest but is acting for a large number of persons in aparticular situation.”

He accordingly, submitted that class actions are sui generisand are of immense public interest which ought to be handled withcaution and tact especially in our legal system where cases are fewand far between.

The learned appellant’s counsel further argued that the Courtof Appeal in Gallaher Limited v. British American Tobacco Co.Ltd (2014) LPELR (CA); (2015) 13 NWLR (Pt. 1476) 325, whileinterpreting the provision of Order 9 rule 4 of the Federal HighCourt (Civil Procedure) Rules 2009 on class actions held thus:-

“By this rule, a Judge is empowered to appoint one ormore persons to represent a person or class or membersof the class, once the Judge is satisfied that:

a person, the class or some members of the(a)class interested cannot be ascertained

the person, the class or some members of the(b)class interested, cannot be found

the person, class and the members thereof(c)cannot be ascertained and be found.”

It is also the argument of the learned counsel for the appellantthat in spite of dearth of authorities, Order 13 rule 13 of theLagos State High Court (Civil Procedure) Rules 2012 makesprovision for class actions and that the learned trial Judge fell intothe easily besetting erroneous juxtaposition of class actions withrepresentative actions. Relying on John v. Rees and Others (1970)

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Ch.345; Martin and Another v. Davis and Others Ch. D (1970) 1Ch. 345, (1968) 2 All ER 275, CBS Songs Ltd v. Amstrad ConsumerElectronics Plc CA (1988) Ch 61, (1987) RPC 42, and Abercowayv. Whetnall (1918) 87 LJ Ch 524) the appellant’s counsel submittedthat contrary to the learned trial judge’s position, assignment ofcontracts or creation of trust need not be done before a court-appointed representative can validly represent his members in aclass action especially where the issues are similar and/or commonto them all based on the principle of commonality and that in theappellant’s case, all iphone 6 users have same manufacturer’swarranty.

Counsel for the appellant further argued that the appellant inthis case has the same manufacturer’s warranty containing sameterms and conditions with those of the members of his class,the issues (breech of warranty) affecting them are same and thetrial court ought to adjudicate over the suit using the appellant’sscenario based on the principle of commonality of issues. Theappellant counsel also relied on the court decision Apeh v. PDP(2016) LPELR-0726, (2016) 7 NWLR (Pt. 1510) 153 and theCanadian case of Cheung Et Al. v. Kings Land Developments Inc.Et Al. (2002) 55 OR (3d) 747 (SCJ), where the court held thus:

“The plaintiffs allege they entered into agreements ofpurchase and sale as a result of representations made tothem by the Kings Land defendants … there is commonground that occupancy was to be made available by nolater than March 3, 2000 … there is common groundthat each of the agreements of purchase and salesigned by the purchasers of units contained identicalterms hence, each purchaser was subject to the sameterms applying to the use of funds held in trust and inrespect of the aborted Final Occupancy Date of March3, 2000. There is common ground that the vendor didnot own the property when the agreements to purchasewere signed … A class proceeding must be preferableprocedure for the resolution of the common Issues.”

Resolution

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

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“A lawsuit in which the court authorizes a singleperson or a small group of people to represent theinterests of a larger group, specifically a lawsuit inwhich the convenience either of the public or of theinterested parties requires that the case be settledthrough litigation by or against only a part of thegroup of similarly situated persons and in which aperson whose interests are or may be affected does nothave an opportunity to protect his or her interests byappearing personally or through a personally selectedrepresentative, or through a person specially appointedto act as a trustee or guardian.”

In a class action, the class must be so large that individual suitswould be impracticable. There must be legal or factual questionscommon to the class. The claims or defences of the representativeparties must adequately protect the interests of the class. See:Abraham Adesanya v. President of Federal Republic of Nigeriawherein it was held as follows:-

“Thus, in some instances, a suit known as a class actionis permitted when a litigant has only a minor personalinterest but is acting for a large number of persons in aparticular situation.”

See also Gallaher Ltd. v. British American Tobacco Co. Ltd. (2014)LPELR (CA) (2015) 13 NWLR (Pt. 1476) 325, supra.

In my view, class action is restricted to interpretation ofwritten instruments, statutes, administration of estates, propertysubject to trust customary, family or communal property, whereasa representative action on the other hand, may be brought on anycause of action. A class action requires appointment by the judgewhereas a representative action does not require leave of court. Ina class action, notice of appointment is required, whereas noticeof representation is not required in a representative action. Classmembers may not be identifiable and ascertainable in a class action,but interested persons are ascertainable in a representative action.No doubt, I am aware that in class actions, members are only tohave interest whereas in representative actions, members musthave same interest. See: Order 13, rule 12 and Order 13, Rule 13 ofthe High Court of Lagos State Civil Procedure Rules, 2012 whichprovides as follows:-

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Order 13, rule 12:

“(1) Where there are numerous persons having thesame interest in one suit, one or more of suchpersons may sue or be sued on behalf of or forthe benefit of all persons so interested.

Where there are numerous persons havingthe same interest in one suit and they seek todefend the action, a Judge may allow one ormore of such persons to defend the action onbehalf of, or for the benefit of all persons sointerested.”

Order 13, rule 13:

“(1) Where in any proceedings concerning:

(a)the administration of an estate or

(b)property subject to a trust; or

land held under customary law as family or(c)community property; or

the construction of any written instrument(d)including a statute, a Judge is satisfied that:

the person, the class or some membersof the class interested cannot beascertained or cannot readily be(i)ascertained:

the person, the class or some membersof the class interested if ascertained(ii)cannot be found;

though the person or the class and themembers thereof can be ascertainedand found; it is expedient for thepurpose of efficient procedure thatone or more persons be appointedto represent that person or class ormember of the class, the Judge maymake the appointment. The decisionof the Judge in the proceedings shallbe binding on the person or class of(iii)persons so represented.

Notice of appointment made by a Judge under this ruleand all processes filed in court shall be served on a(2)person(s) so appointed.

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If in any proceedings mentioned in sub-rule ofthis Rule, several persons having the same interestin relation to the matter to be determined attend thehearing by separate Legal Practitioners, then, unlessthe Judge considers that the circumstances justifyseparate representation, not more than one set of costsof the hearing shall be allowed to these persons, and(3)the judgment or order shall be framed accordingly.

In this Rule, the word “class” includes the personsrecognized by Customary Law as members of a family(4)or as members of a land owning community.”

Part of the trial court’s decision which the appellant has takenissue one with is as contained on page 199, paragraph 2 of therecord of appeal and for purposes of convenience, I shall reproducesame thus:

“It is a fact that every iphone user has a separatecontract of sale when the purchase was made. Theclaimant did not at any time negotiate as an agent ofall iphone users in Nigeria when the iphones werepurchased. A contractual relationship is founded onthe basis of privity. There is no evidence of assignmentof the contractual rights of other members of the classor that an enforceable trust has been created.”

Contrary to the position taken on issue one by the trial court,a careful examination of the facts of this case and issue one asdistilled by the appellant counsel, reveals that the appellant, inhis originating processes before the trial court, did not make outany case of breach of contract of sale between the appellant andthe respondent. Neither did he at any point in trial allege a caseof existence of any privity of contract of sale between him andthe respondent. Rather, the appellant’s case as contained in theOriginating processes is that of breach of warranty. See pages 3 to8 of the record of appeal.

There is no gainsaying the fact that a Judge is empoweredto appoint one or more persons to represent a person or class ormembers of the class in instances where a Judge is satisfied that aperson, the class or some members of the class interested cannotbe ascertained, the person, the class or some members of the classinterested, cannot be found, the person, class and the membersthereof cannot be ascertained and be found. See Abraham Adesanyav. President of Federal Republic of Nigeria (supra).

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For the avoidance of doubt, the instant case before the lowercourt for all purposes, has to do with manufacturer’s breach ofwarranty to its final consumers. It is distinguishable from a case ofcontract breach. Thus, the lower court, in my view, went on a frolicof its own in its position that there must be assignments of contractsof members represented or that an enforceable trust must be createdin a class action. Accordingly, issue 1 is resolved in favour of theappellant and against the respondent.

Issue 2:

Whether or not the appellant’s originating summonswas not ripe for hearing when the respondent filed herNotice of Preliminary Objection?

Arguments

On issue 2, the learned counsel for the appellant, referringto the holding of the trial court on page 186, paragraph 1 of therecord of appeal, argued that contrary to the trial court’s position,the High Court (Civil Procedure) Rules 2012 provides otherwise onwhen an originating summons would be ripe for hearing as far asthe respondent is concerned. Appellant counsel cited and relied onOrder 17 rule 16 of the High Court (Civil Procedure) Rules 2012.For the purpose of convenience, same is reproduced here thus:

“A respondent to an originating summons shall filea counter affidavit together with all the exhibits heintends to rely upon and a written address within 21days after service of the originating summons.

Accordingly, the learned counsel for the appellant arguedthat the respondent only had 21 days to respond after which theoriginating summons would be ripe for hearing, relying on Order17 rule 16 of the High Court (Civil Procedure) Rules 2012 supra,and Sholanke v. Somefun (1974) 1 SC 141 where the Supreme Courtheld thus:

“Rules of court are meant to be complied with …Rules of Court are made to be followed. They regulatematters in court and help parties to present their casefor purposes of fair and quick trial. It is the strictcompliance with these rules of court that makes forquicker administration of justice.”

It is the submission of the counsel for the appellant that theoriginating summons was ripe for hearing as far back as the time

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the respondent filed its memorandum of appearance on the 6th dayof February, 2017.

Counsel for the respondent in his turn argued that by the literalrule of interpretation, it is clear that the provisions of the ConsumerProtection Council Act are the penal provisions by which theConsumer Protection Council is vested with the powers to pursuecriminal sanctions against the manufacturer or provider of unsafeor hazardous products or services that pose any danger or risk to theconsumer.

He further contended that in order for any claim to be cognizableunder these provisions, the cause of action by a consumer of suchproducts or service must be predicated on injuries sustained fromthe use of unsafe or hazardous product or service as provided bysection 12(a) of the Act.

Resolution:

At this point, it is apposite to state that the question of whetheror not the appellant’s originating summons was ripe for hearingcan be well determined following the provisions of sections 6 and8 of the Consumers Protection Council Act and the facts borne bythe record this appeal. For the sake of convenience, same is herebyreproduced: –

Sections 6 and 8 of the Consumers Protection Council Act.

Section 6

“(1) A consumer or community that has suffered aloss, injury or damage as a result of the use orimpact of any goods, product or service may Imake a complaint in writing to or seek redressthrough a State Committee.

Where a consumer, or a person having aninterest in a matter is an illiterate or is subjectto any physical disability and thereby unable towrite, the clerk or other official working withthe State Committee shall cause such consumeror person’s statement to be written at no fee orpayment of any kind from such consumer or(2)person.”

Section 8.

“Whereupon an investigation by the Council or StateCommittee of a complaint by a consumer, it is provedthat-

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(a)the consumer’s right has been violated/or

that a wrong has been committed by wayof trade, provision of services, supply ofinformation or advertisement, thereby causinginjury or loss to the consumer, the consumershall, in addition to the redress which theState Committee, subject to the approval ofthe Council, may impose, have a right of civilaction for compensation or restitution in any(b)competent court.”

By the record before this court, the respondent was servedwith the originating summons on Friday 6th day of January, 2017.In response, the respondent filed its memorandum of appearance on6th day of February, 2017. The question now is, was the appellant’soriginating summons ripe before the lower court? The answer is inthe negative. Admittedly, I a cursory glance at the above provisionsof sections 6 and 8 of the Consumers Protection Council Act, andthe facts as contained in the record of appeal, would show thatthe originating summons was not yet ripe for commencementbefore the court as at the time the matter was commenced. To mymind, there is no evidence of the appellant’s compliance with thepreconditions as stipulated by law under sections 6 end 8 of theConsumers Protection Council Act supra before approaching thetrial court. I think I should prefactorily make a point here: for aright to have become arisen is one thing; for such right to becomeexercisable is another thing.

The appellant’s right of action in court may have becomearisen in this case as at the time of the injury alleged to have beensuffered by the appellant by reason of the respondents purportedbreach of warranty. The appellant, having failed to comply with theprovisions of sections 6 and 8 of the Consumers Protection CouncilAct, had robbed the suit at the trial court of its competence. Thus,the learned trial Judge was right in his finding that the originatingsummons was not ripe for hearing. The appellant had failed tocomply with sections 6 and 8 of the Consumers’ Protection CouncilAct (supra) which is a requisite precondition for commencement ofthe action before the court.

Hence, the appellants originating summons before the lowercourt was premature and hasty and the trial court was right inits decision on same. I therefore resolve issue 2 in favour of therespondent and against the appellant.

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Issue 3:

Whether the lower court was right to have held that theappellant’s suit was not ripe for hearing in the face ofa pending notice of preliminary objection and whetherthe said notice of preliminary objection was competentwithout any affidavit in support of same?

Arguments:

On issue 3, learned counsel for the appellant argued that therespondent’s notice of preliminary objection contained at pages118 to 139 dangerously flirted with issues of facts but was notaccompanied by affidavit contrary to settled principles of law inthat regard.

Relying on Ameh v. Nwankwo (2007) 12 NWLR (Pt. 1049)552 at 578, paras. A -C, the appellant’s counsel argued further thatthe essence of an affidavit in support of a preliminary objectionis to give evidence which court· must consider before making itsdecision on the issues of fact.

In view of the above, the learned counsel for the appellantsubmitted that the respondent’s submission at paragraph 4.1.13and 4.22 on pages 130 to 131 of the record of appeal in respect ofthe cause of action being on contract is a matter that can best beestablished by facts, which facts are already contentious even in theabsence of affidavits.

It is the appellant’s counsel’s further submission that theexistence of a contract between the appellant and the respondentis a question of fact, which can only be established by evidenceespecially when the appellant had denied the existence of anycontract between him and the respondent.

Relying on Okwejiminor v. Gbakeji & Anor (2008) 1 SC (Pt.III) 263 at 284 lines 5-25; (2008) 5 NWLR (Pt. 1079) 172, Section128 of the Evidence Act and Agbareh v. Mimra (2008) 2 NWLR(Pt. 1071) 378 SC, the appellant counsel maintained that it is tritethat there is no privity of contract between a manufacturer and enduser/consumer. Accordingly, the learned counsel for the appellantsubmitted, relying on Addax Petroleum Dev. (Nig.) Ltd v. Ibeh (2007)All FWLR (Pt. 380) 1569 at 1575, that grounds 3, 4 and 7 of therespondent’s notice of preliminary objection which presupposed theexistence of a contract and other material facts ought to have beenbacked by an affidavit in support and the absence of same therebyrendered the notice of preliminary objection incompetent. For the

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purpose of convenience, the court’s decision in Addax Petroleumcase supra is reproduced thus:

“ … but when the preliminary objection strays intofacts of the case, the party relying on the preliminaryobjection can only justify the objection by deposing toan affidavit. Failure to depose, court would be left withno alternative but to reject the preliminary objection.”

Resolution:

Having carefully examined the arguments as canvassed by theappellant’s and respondent’s counsel on issue 3 herein, I have nodoubt in my mind, as it is trite that the burden of prove rests with aparty objecting, to justify the objection by adducing facts containedin an affidavit, failure of which the court must reject the objection.To my mind, the provision of Section 128 of the Evidence Act 2011is very clear and unambiguous. The case of Iwuchukwu & Anor v.A.G. of Anambra State & Anor (2015) LPELR-24487(CA) is alsoinstructive on this issue. For the sake convenience, same is hereinreproduced:-

Section 128 of the Evidence Act 2011:

128(1) When a judgment of a court or any other judicial orofficial proceeding, contract or any grant or otherdisposition of property has been reduced to the formof a document or series of documents, no evidencemay be given of such judgment or proceeding or of theterms of such contract, grant or disposition of propertyexcept the document itself, or secondary evidence ofits contents in cases in which secondary evidence isadmissible under this Act; nor may the contents of anysuch document be contradicted, altered, added to orvaried by oral evidence…”

In Iwuchukwu & Anor v. A.-G. of Anambra State & Anor(2015) LPELR-24487(CA), on the position of law where a counteraffidavit deposes to facts not contained in the affidavit, the courtheld thus:-

“It is settled law that in a trial by affidavit evidence,where a counter affidavit deposes facts not containedin the affidavit it is responding to, the other partywho does not agree with the new facts and seeks todispute same, must file a further affidavit denying orcontradicting the said facts. This is because any fact in

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an affidavit in a case, that is not denied or contradictedin any other affidavit in that case, stands unchallengedand undenied. See Ola v. University of Ilorin v. & Ors(2014) 15 NWLR (Pt.1431) 453 at 473 & 477 held 5& 6.”

Per Emmanuel Akomaye Agim, J.C.A (Pp. 24-25,paras. F-C)

Hence, the above is a well-settled position of law. The issueis accordingly resolved in favour of the appellant and against therespondent.

Issue 4:

Whether or not sections 6 and 8 of the ConsumerProtection Council Act, 1992 constituted conditionsprecedent to the appellant’s exercise of his right toaccess the trial court for civil remedies?

Arguments:

Counsel for the appellant argued that a condition precedenthas been repeatedly held to be an act, which delays the vesting ofa right until the happening of an event. In canvassing the issue, herelied on Nigercare Dev. Co. Ltd v. A.S.W.B. (2008) 9 NWLR (Pt.1093) 498; Adeleke v. O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608 at71 and Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536.

The learned counsel for the appellant further argued thatconditions precedent by their nature, are express end unequivocalas to the act which delays the vesting of a right, and that statutescontaining conditions precedent are always unequivocal in theirprovision. He relied on Orakul Resources Ltd. v. N.C.C. (2007)16 NWLR (Pt. 1060) 270 and sections 86 and 88 of the NigerianCommunications Act and argued that unlike the instant case, theprovision of sections 86 and 88 of the Nigerian CommunicationsAct (supra) makes it clear that the right to approach the court isdelayed until exhaustion of all other remedies.

Thus it is the submission of the learned counsel that nowherein the Act is it expressly provided that the right to access the courtis subject to prior written complaint to the Council, hence suchought not to be imported into it. He relied on P.D.P. v. Ugba (2011)LPELR – 4838 (CA) and further submitted that the Court of Appealheld thus:

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“The court must not import into legislation words thatwere not used by the Legislature, and which will givea different meaning to the text of the statute as enactedby the Legislature.”

It is also the submission of the learned appellant’s counselthat the draftsman never intended any condition precedent in theprovisions of sections 6 and 8 of the Act, rather the provisionscreate co-existing rights of seeking redress in favour of consumers.

Learned counsel for the respondent in his turn, argued thatfor an action to be properly constituted under the CPC Act, as tovest jurisdiction in the lower court like the appellant’s case, certainconditions precedent must be met and they include:-

Making a complaint to the State Committee in respectof the injury, loss or damage suffered from the use of ai.hazardous or harmful product or service:

ii. The State Committee shall then conduct investigationsinto complaint and a conclusion reached by the StateCommittee that there is violation of the right of theconsumer flowing directly from the use of hazardousor harmful product or service;

iii. Such violation must also lead to injury, loss or damagesuffered by such consumer;

iv. The State Committee must reach a finding that theconsumer is entitled to redress; and

v. Any right of civil action must be subject to the approvalof CPC.

Learned counsel for the respondent accordingly, submitted thatin order for this claim to be properly situated within the provisionsof the CPC Act, the above listed conditions must have been satisfied.He also maintained that it is now settled that when a law providesfor a particular method of doing thing regulated by that law, it isonly that method and no other that should be adopted. He cited andrelied on Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423, 590paragraphs G-H. The learned counsel for appellant also submittedinvoking the jurisdiction of the lower court, the lower court wasright that having swept aside the mandatory provisions under theCPC Act in invoking the jurisdiction of the lower court, the lowercourt was right to have undone the certification of the suit as classaction, same having been done in contravention of the mandatoryprovisions of the CPC Act. He therefore urged this court to dismiss

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the appeal for lacking in merit; proper condition for the invocationof sections 8 and 9 of the CPC Act having not been complied withby the appellant.

Resolution:

The legal poser raised by issue 4 herein emphasizes thecrucial nature of the rules of statutory interpretation. Rules ofstatutory interpretation are the rules or principles governing theinterpretation of statutory provisions. The cardinal principle andrule of statutory interpretation is to ascertain the true intention ofthe legislature. Thus, where the words used in an enactment areclear and unambiguous, they should be accorded their ordinary andgrammatical meanings without any colouration. See: Ekulo FarmsLtd & Anor v. Union Bank Plc (2006) LPELR-40141 (SC) wherethe court held thus:-

“It is now firmly settled in a line of decided authoritiesin several different languages or pronouncements, thatin the interpretation of statutes and/or Constitution,words therein should be given their ordinary meaning.

Per Ikechi Francis Ogbuagu, J.S.C. (Pp. 31-39, paras.C-F)

The law is settled that in the construction or interpretation ofa statute, where the words are plain, clear and unambiguous, effectshould be given to them in their ordinary and natural meaning,except when doing so, will result in absurdity. Courts have nojurisdiction to introduce an interpretation or construction not borneout from the clear and unambiguous language of the statute. See:Lawal v. G. B. Ollivant (1972) 3 SC 124 at 137 where court heldthat:-

“It is a cardinal rule of construction that plain wordsmust be given their plain meanings.”

Per Udo Udoma, J.SC (P. 21, para. A).

To my mind, the provisions of Sections 6 and 8 of the NigerianCommunications Act (supra) are obedient to clarity and unambiguity.In this wise, the law decrees that it must be accorded its ordinaryand natural grammatical meaning without any embellishments. See:Berliet (Nig.) Ltd. v. Kachalla (1995) 125 SCNJ 147, (1995) 9 NWLR(Pt. 420) 478 where the court held as follows:-

“I am of the view that it is firmly established that whatfalls for determination in this appeal is the constructionto be given to Order 27 rule 8 of the State High Court(Civil Procedure) Rules which provides as follows:

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‘Unless otherwise ordered by the court, interestshall be paid on outstanding judgment debts at therate of 10% from the date of judgment whether ornot the judgment debtor is allowed time to pay orto pay by installments.’

As it is glaring that the provisions of the above statuteare clear and free from any ambiguity, the position inlaw is that those words shall be so construed as to giveeffect to their ordinary or literal meaning and enforcedaccordingly.”

Per Sylvester Umaru Onu, J.SC (P. 18, paras. A -E)

Accordingly, I quite well agree with the trial Judge in hisinterpretation of sections 6 and 8 of the Nigerian CommunicationsAct (supra) which is clear and unambiguous. One thing is for aright to have arisen, and another thing is for such right to becomeexercisable. The originating summons of the appellant, in theopinion of this court, was not proper, before the lower court. Itherefore resolve the issue in favour of the respondent and againstthe appellant.

Issue 5

Whether or not sections 6 and 8 of the ConsumerProtection Council Act, 1992 provide duty andsanction for its breach?

Arguments:

On issue 5, the appellant’s counsel cited and relied on KaboAir Ltd. v. Mohammed (2015) 5 NWLR (Pt. 1451) 38 and arguedthat the Court of Appeal in that case, defined the word “duty” as:

“An act that which the law requires to be done orforborne to a determinate person or the public atlarge, correlative to vested and co-existent right insuch person or in the public and the breach of whichconstitutes negligence.”

He also relied on page 1541 of the Black’s Law Dictionary,to” Edition and contended that “sanction” is defined as:

“A penalty or coercive measure that results fromfailure to comply with a law or order.”

It is also the contention of the learned appellant’s counselthat it is difficult to find any portion that contains “an act that iscorrelative to a vested right” or “any penalty for failure to comply”

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with the provision imported by the trial court contrary to settledprinciples of law that forbids a court from importing extraneousmatters and/or interpretation into statures.

Learned counsel for the appellant thus submitted that the trialcourt erroneously and unjustifiably imported “duty” and “sanction”into the provisions of sections 6 and 8 of the Consumer ProtectionAct, and that rather, the provisions create co-existing rights orseeking redress in favour of consumers.

Resolution:

I have carefully read through the provision of sections 6 and8 of the Consumer Protection Act and it is pertinent to state thatthe position taken by the lower court as disclosed at page 19 of itsruling (page 196 of the record of appeal) is in concord with settledprinciples on the interpretation of statutes.

There is no doubt that sections 6 and 8 of the ConsumerProtection Act (supra) are clear enough. In my view, they do containduty and sanction. By every stretch of imagination, a consumerwho has suffered any injury arising from a manufacturer’s breachmust, as a first port of call, make a complaint in writing to the StateCommittee of the Council, which will then investigate the complaintand make appropriate sanction to the errant manufacturer. For thesake of convenience, section 6 and 8 of the Consumers ProtectionCouncil Act is herein reproduced:-

Section 6

“(1) A consumer or community that has suffered a loss,injury or damage as a result of the use or impact of anygoods, product or service may I make a complaint inwriting to or seek redress through a state committee.

Where a consumer, or a person having an interest ina matter is an illiterate or is subject to any physicaldisability and thereby unable to write, the clerk or otherofficial working with the State Committee shall causesuch consumer or person’s statement to be written atno fee or payment of any kind from such consumer or(2)person.

Section 8.

Whereupon an investigation by the Councilor StateCommittee of a complaint by a consumer it is provedthat-

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(a)the consumer’s right has been violated; or

that a wrong has been committed by wayof trade, provision of services, supply ofinformation or advertisement, thereby causinginjury or loss to the consumer, the consumershall, in addition to the redress which theState Committee, subject to the approval ofthe Council, may impose, have a right of civilaction for compensation or restitution in any(b)competent court.”

Thus, issue 5 is accordingly, resolved in favour of therespondent and against the appellant.

Issue 6:

Whether or not the facts and circumstances of thedecisions in Adesola v. Abidoye (1999) 14 NWLR (Pt.637) 28 and Bakare v. A.G. Federation (1990) 5 NWLR(Pt. 152) 516 are applicable to the appellant’s case?

Arguments:

On issue 6, it is the contention of the appellant’s counsel thatthe trial court’s holding, relying on Adesola v. Abidoye (1999) 14NWLR (Pt. 637) 28 and Bakare v. A.G. Federation (1990) 5 NWLR(Pt. 152) 516, was a misconception of the provisions of sections 6and 8 of the Consumer Protection Act (supra). He further arguedthat the trial court’s misconception explains why it relied on thedecisions in Adesola v. Abidoye and Bakare v. A.G. Federation(supra), and that the cases are not applicable to the appellant’s case.

The appellant’s counsel further argued that the trial courtearlier in its judgment at page 195 held that the sections constitutecondition precedent which the appellant, as a consumer, must fulfillbefore accessing the court but now, at page 196 the court held thatit is a duty on the public officer while relying on the decisions inBakare and Adesola (supra).

It is also the argument of the learned counsel for the appellant,relying on the Supreme Court’s decision in Adesola (supra), thatwhile section 22 of the Chieftaincy Law Cap. 21 Vol. 1, Laws ofOyo State contemplates a decision, section 6 and 8 only providefor investigation, and that while redress can be legally sought overa decision, same cannot be said of investigation which lies in thediscretionary powers of the investigators, hence this case is notapplicable. He further contended that the apex court’s decision in

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Bakare ’s case (supra) also has nothing to do with the sections 6 and8 of the Consumer Protection Council Act which provisions do notentrust power on the consumer but optional right to seek redressthrough the State Committee or regular courts. Accordingly, it isthe submission of the learned counsel for the appellant that theabove decisions are not applicable to the appellant’s case as thetrial court erroneously relied on them.

Resolution:

Having carefully read the provision of section 6 and 8 ofthe Consumer Protection Council Act, side by side with the courtdecisions in Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) 28 andTowers v. A.-G. Federation (1990) 5 NWLR (Pt. 152) 516, I have noiota of doubt in my mind that there is no nexus between the Adesolaand Bakare’s and the instant case. They do not have any bearingwith the provisions of sections 6 and 8 of the Consumer ProtectionCouncil Act. Hence, they are not applicable in the instant case.The reasoning and the conclusion of the lower court has not beenadequately attacked by the appellant and I am therefore constrainedto uphold the finding of the trial court on the issue. This issue isaccordingly resolved in favour of the respondent and against theappellant.

Issue 7:

Whether or not from paragraph 3 of the affidavit insupport of the originating summons, the appellant’scase was brought for breach of warranty arising outof sale?

Arguments:

On issue 7, learned counsel for the appellant, referring toparagraph 3 of the appellant’s affidavit found at page 5 of therecord of appeal, argued that the appellant never deposed to thefact that he bought the phone directly from the respondent, ratherthat he bought from the respondent’s resellers which was not even aparty to the suit at the trial court. He further argued that throughoutthe appellant’s affidavit in support, he never deposed to breachof warranty arising from sale, rather the breach of warranty arosefrom manufacturer’s warranty arising out of use as given by therespondent the manufacturer.

He therefore, submitted that it is worthy of note that thereliefs sought on the face of the originating summons which reliefsexpressly border on breach of iphone warranty and negligence allgoverned by law of tort.

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With regard to the above submission of the appellant’scounsel, counsel for the respondent submitted that the appellant’ssuit before the lower court which is predicated on contract cannotbe made out as a class action under the provisions of Order 13 rule13 of the High Court of Lagos State (Civil Procedure) Rules2012. It is also the submission of the respondent’s counsel that theappellant has made out a case for breach of warranty; not one forbreach of duty or negligence and as such, he cannot turn around tosay that privity of contract does not apply to his case.

Resolution:

The appellant’s affidavit in support of his originatingsummons and the reliefs sought as contained in the summons havebeen carefully read by me. For convenience sake, paragraph 3 ofthe affidavit in support of the appellant’s originating summons ascontained at page 5 of the record of appeal is hereby reproducedthus:

“That on the 18th day of February 2016, I purchaseda space grey 16 GB iphone 6plus (Model Number:A1687FCCID: BGG-E2944A C:579CE2944A CE0682) from the is tore at Ikeja City Mall, Lagos whichstore is one of the defendant’s authorized resellers inNigeria.”

Contrary to the finding of the trial court, a careful examinationof the appellant’s affidavit in support of the originating summons andthe reliefs sought reveal no claim laid down for breach of warrantyof sale but rather that of manufacturer’s breach of warranty out ofuse as given by the manufacturer and negligence. The finding of thelearned trial Judge did not emanate from the case of the appellantand I therefore resolve issue 7 in favour of the appellant.

Issue 8:

Whether or not the trial court was right to import andapply principles of law of contract to the appellant’s caseof breach of manufacturer’s warranty and negligence?

Arguments:

With regard to issue 8, the learned counsel for the appellantargued that the trial court repeatedly applied the principle ofprivity of contract to the appellant’s case thereby confusing seller’swarranty with manufacturer’s warranty. Relying on the Black’s LawDictionary, 10th Edition, page 1820, he argued that the dictionarydefines manufacturer’s warranty as:-

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“A warranty given by a products manufacturer againstdefect in the components and workmanship andpromising to cure defects.”

Learned counsel for the appellant further contended that thetrial court failed to take cognizance of the fact that the warranty wasnot given by the seller but the manufacturer, hence the principle ofprivity of contract is inapplicable to the appellant’s case. Relyingon Okwejiminor v. Gbakeji (2008) 1 SC. (Pt. III) 263 at 284; (2008)5 NWLR (Pt. 1079) 172, wherein the learned counsel argued thatthe court held that:

“In such a situation, there is an implied warranty bythe 2nd respondent to the ultimate consumers that thecontents of exhibit “H” are safe for human consumption.In such a circumstance, the manufacturer owes a dutyof care 10 the appellant. And once it is established thatthe appellant was injured by the contents of exhibit“H” that duty is breached entitling the appellant toreparation from the 2nd respondent.”

Learned counsel for the appellant relying on G.B. Ollivant Nig.Ltd v. Agbabiaka (1972) 2 SC (Reprint) 127, supra thus, submittedthat the trial court erred in law when it failed to take cognizance ofthe fact that the manufacturer’s warranty is regulated by law of tortas opposed to the law of contract.

Resolution:

I have examined the arguments of the learned counsel inline with his brief of arguments and the record of appeal, takingcognizance of authorities cited therein and I find same to be thetrue reflection of the position of the principles of law of contractand law of tort. It is trite that the principle of privity of contract,seller’s warranty and manufacturer’s warranty are all not one andthe same. On the distinction between tort and contract, the court inG. B. Ollivant Nig. Ltd v. Agbabiaka (1972) 2 SC (Reprint) 127;Okwejiminor v. Gbakeji (2008) 1 SC. (pat. III) 263 at 284, (2008) 5NWLR (Pt. 1079) 172 held as follows:-

“At page 3 paragraph 5 of Clerk and Lindsell on Torts(12th Edition), the learned authors stated as follows inconsidering the relation of tort and contract; “Sir PercyWinfield drew the distinction as follows:

‘At present day, tort and contract aredistinguishable from one another in that the

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duties in the former are primarily fixed by law,while in the latter they are fixed by the partiesthemselves. Moreover, in tort the duty is towardspersons generally; in contract it is towards aspecific person or specific persons.’

If the claim depends on the proof of the terms of thecontract, the action does not lie in tort, so a claim forwrongful dismissal is a claim in contract.”

Per Charles Olusoji Madarikan, J.S.C. (P. 9, paras.C-F)

In line with the above, this issue is resolved in favour of the appellantand against the respondent.

With the resolution of issue 2, 4 and 5 which are the epicenterof the case of the appellant, in favour of the respondent it followstherefore that the appeal lacks merit and same is dismissed.

The decision of the lower court in suit No: ID/1284 GCM/2016delivered on 14th July, 2017 is affirmed.

Parties to bear their respective costs.

GEORGEWILL, J.C.A.: I had the privilege of reading in draftthe lead Judgment of my learned brother Jamilu Yammama Tukur,J.C.A. just delivered with which I agree and adopt as mine. I havenothing more to add.

OGAKWU, J.C.A.: I was privileged to read in draft the decisionjust rendered by my learned brother, Jamilu Yammama Tukur,JCA. I entirely agree with the said decision with nothing more toadd.

Appeal dismissed.

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