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^[1]’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.

* 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^[1]’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.