COVID-19: We Are Not Compelling The FGN To Sue China, It Is A Class Action We Are Taking Against The People’s Republic Of China — Prof Epiphany Azinge (SAN)

* The Plaintiffs/Claimants In The Suit Are Nigerians In Representative Capacity
*Says our pedigree and antecedents should be seriously taken into account

Former Director General of the Nigerian Institute of Advanced Legal Studies (NIALS), Prof Epiphany Azinge (SAN), has affirmed that his team does not intend to compel the Federal Government of Nigeria to sue the People’s Republic of China, but that, they are taking a class action against the PRC themselves.

The Senior Advocate of Nigeria, made this statement in an interview with Independent Nigeria’s Stephen Ubimago. According to him, they are of the view that at this point in time, the Nigerian and Chinese governments are en­joying a cozy relationship; and he does think it would be within the niceties of diplomacy for two otherwise cordial countries to suddenly find themselves in a legal battle at the Internation­al Court of Justice (ICJ) on this kind of situation, and that they are very cir­cumspect about the government of Nigeria going to the ICJ to in­stitute such an action.

“This experience will enable everybody to wake up to the realities of technology and it’s application in court or in the legal business generally. It’s something which stakeholders must start considering critical­ly because we don’t know when this will end or when next we will find ourselves in this kind of situation again. We can’t afford this kind of economic paralysis as lawyers again. No, we are doing no such thing. We’re of the view that at this point in time, the Nigerian and Chinese governments are en­joying a cozy relationship; and I don’t think it would be within the niceties of diplomacy for two otherwise cordial countries to suddenly find themselves in a legal battle at the Internation­al Court of Justice (ICJ) on this kind of situation. We’re very cir­cumspect about the government of Nigeria going to the ICJ to in­stitute such an action. What we want to do is to push our luck and see how we can file a class action at the Federal High Court against the PRC. We’re obviously aware of the challenges and obstacles this entail.

“At the moment we’ll be suing the Peoples Republic of China and some of their institutions like the Wuhan Institute of Vi­rology, and the other institutions that are tangentially connected to what has happened which led to the global spread of the virus, to the extent that it reached Nige­ria. In any event, we feel strongly that we may face a major hurdle in terms of the question of sov­ereign immunities, as well as the question of municipal courts not possibly being in a position to handle the issue of sovereign im­munity. We will also be contend­ing with the issue of jurisdiction.In regard to jurisdictional is­sues we are alert and trying to wrap our heads around it. Within the realm of customary interna­tional law we have seen excep­tions to the rule where people have contracted out of the issue of sovereign immunity. So we are going to explore those exceptions and see how they will be useful to us. We are working flat-out on that. I am comfortable with the team we parade at this point. We’re exploring all options in-depth. We’re about 20 seasoned lawyers working on the team. There are 16 of us that are Senior Advocates of Nigeria (SAN). And the rest are high class interna­tional law scholars. And we are getting inputs from Canada, Qatar, UK, and the US. We also have some retired judges that are working with us, to see how we can wriggle out of these compli­cations,” he said.

Speaking on who the plaintiffs/claimants are, he said that the plaintiffs/claimants in the suit are Nigerians in representative capacity – that many are of the mis­conceived view that it’s only the families of persons who died of COVID, or who tested positive to the infection, that can bring such action. He disagreed and added that if you look at what we put out, they said the action is for loss of life, economic strangulation, trauma, hardship, and so on. He stressed that it’s not just the be­reaved family that suffered loss or hardship; that there are many oth­ers that did — that being in a lockdown alone is no child’s play; staying at home without food for so many people is also trauma of the high­est order — the restriction of your freedom, which has come with this pandemic, is a challenge of its own

“For now we make it that the plaintiffs/claimants in the suit are Nigerians in representative capacity. Many are of the mis­conceived view that it’s only the families of persons who died of COVID, or who tested positive to the infection, that can bring such action. No, because if you look at what we put out, we said the action is for loss of life, economic strangulation, trauma, hardship, and so on. So it’s not just the be­reaved family that suffered loss or hardship. There are many oth­ers that did. Being in a lockdown alone is no child’s play. Staying at home without food for so many people is also trauma of the high­est order. The restriction of your freedom, which has come with this pandemic, is a challenge of its own. Many Nigerians one way or another has suffered un­told hardship and incalculable loss, as such. One way or another, this thing has gravely affected ev­eryone beyond mere contracting of the disease. If you go to the CBN today or the budget office, you cannot imagine the loss that has occurred to this country. A situation where our oil is now selling at minus three dollars. So you can understand what has happened. When we say we are claiming $200billion it’s not something that will be personal to anybody. We’re hoping that ul­timately it will be something that will be good for all Nigerians.

“Granted it’s a private action since it’s not the government that is instituting it. But we say we’re doing it on behalf of the people of Nigeria. To that extent Nigeria should be interested in what we are doing. It’s a class action, but it’s also a public interest litiga­tion. So somehow, to a very large extent, the Nigerian government will become interested. Even if we don’t receive damages, we will be comfortable if at the end of the day it will help us to write off some of the debts Nigeria is said to be owing China, etc. We’ve said it earlier: it’s the Government of China, the Wu­han Virology Institute, etc. But mind you we have yet to file the suit. Neither is it merely contemplative, because we’re se­riously working on it. But one thing I will want people to know is that it will be sheer stupidity and it wouldn’t suit our elevat­ed position within the legal community for us to just jump into the court knowing full well that nothing will come out of it. What we are doing is that we are working flat-out. As regards some of the challenges our suit will face, we’ve identified some in our team that will address them, and would be concluding their opinion maybe by today or tomorrow, so that by tomor­row or the weekend we would have been finalizing everything. It’s for us to agree in principle where we are heading. I am sure that before the end of the first week of May, we would have been putting in our paper. There are quite a lot of hurdles we must sidestep: Are we filing in the Federal High Court or are we filing in Enugu or any other place? We are shopping around because of convenience. Now the Rules of the Federal High Court in Nigeria says that for class action purposes, only issues within the realms of intellectual property, patent, copyright, trademark, etc can be entertained. So, can you sue for any other civil tort within the same legal framework? Can we sue in individual capacity? Then we will be confronted with the question of locus standi. With these obstacles, we’re still fighting. The only other way we can file this class action is to restrict ourselves to the fundamental human rights enforce­ment procedure at the Federal High Court. It’s either they put up a representation and plead sovereign immunity, then the municipal court will have no jurisdiction; or they may not even show up at all. That’s neither here nor there. Mark you we are working with the precedent of what has happened in other climes or jurisdictions. The fact that we have not tried it in Nigeria doesn’t mean we can’t make it a test case.

Speaking on whether there is a contemplation that the action may move from the territory of municipal law to the realms of international law, he said that ideally that is the way it ought to pro­ceed.

“Ideally that is the way it ought to pro­ceed. If that is the way it would go, then it must be at the behest of the Federal Government. Mind you I am one of few Nigerian lawyers that have worshipped at the ICJ, because I was a member of the Bakassi case. At the time, I was in the Ministry of Justice, and was a member of the legal team at the ICJ that handled the Nigeria/Cameron boundary dispute. So I understand the protocols and nuanc­es of the ICJ. And to that extent I know how the court operates. It can only be at the behest of the Nigerian government. Individuals cannot go there. But what I’ve said ab initio is that the PRC has a cordial relationship with the Nigeria. Nigeria will not be disposed to suing them at this point in time. So, automatically that option is dead on arrival. What option do we have left? States in the US have gone as far as taking their case to the International Criminal Court (ICC). They went there as a state not a country. They are pleading that what China has done is equivalent to a war crime, a crime against humanity, and to that extent are bringing criminal action against China. If we have the sup­port of any of the states in Nigeria, we can proceed internationally.

“Constitutionally we have challenges that tend to flow from the exclusive legislative list, among other things. Those items in the exclusive list seem to circumscribe and dilute the powers of the state to a very large extent. So when it comes to external affairs and engagements, the states seem to be whittled down. So the states in Nigeria, as opposed to the states in America, may have some challenges in doing some of the things the American states can do on the in­ternational stage, because theirs is more or less a full-fledged federalism, whereby the powers of the states are quite enormous. That notwithstanding, when we are done with our extrapolations or conjecturing in terms of our best bet, I believe that we’ll be gradually coming into that inescapable conclusion that we have to test the Federal High Court. The only thing now is whether we’re in a position to convince our judges who may not be students of international law to be sufficiently persuaded in what we are bringing to the table.

“Our pedigree and antecedents should be seriously taken into account. Not just that I have in the past served the country, I’m by the grace of God still serving as a Judge of the Commonwealth Court of Arbitration in London. I have my accom­plishments as former Director General of the Nigerian Institute of Advanced Legal Studies (NIALS). I can say that without fear of immodesty. So we should be rated according to our antecedents. Regardless of what Nigerians want to say, we are do­ing all this in the interest of the country. I don’t believe we should merely follow what America or Canada has done. We believe that we are at par with anybody, and we can stand toe-to-toe with them anywhere and at any point in time. So the misgivings of people saying ‘why don’t we wait to see what America is doing’ is to say the least misconceived. Nigerians should have confidence in the ability of their people. Our own as lawyers is to lead advocacy and make our arguments clear. Whether the courts will entertain our arguments shouldn’t stoke anxiety. But let it be on record such that when we are asked by the next generation, ‘what did you do?’ we will not just be looking like we don’t know what happened. We will tell our grandchildren that when it happened we rose up to the occasion. That when others were rising up, we also stood up and brought an action. Whether the action succeeds or not, it’s not for us to say. It will be for the court to determine. And we can’t prejudge what the court will determine. But whether we are going to give it the best shot, certainly I can assure you that we, with all the knowledge at our disposal, are going to give it the best shot,” he added.