The current state of consumer protection witness in Nigeria has been moribund for years. However, stakeholders have begun to show more interest in consumer related issues. Recent efforts of the Consumer Protection Council, under the administration of the formal Director General1, have also raised the confidence of the general public as regards the attitude of relevant regulatory agencies to safeguarding the interests of consumers. Recently, the CPC on behalf of some selected consumer, 2 filed an action at the Federal High Court of Abuja against Coca-Cola Nigeria Limited and Nigerian Bottling Company for allegedly violating orders of the CPC relating to enhanced consumer welfare and safety standards. This was done pursuant to investigations carried out based on a filed consumer complaint about two half-empty cans of Sprite soft drink manufactured by NBC under Coca-Cola’s license.
In July 2012, the former Director General of the CPC, Mrs. Ify Umenyi, at a stakeholders meeting in Abuja, stressed the need for supermarkets to establish and maintain consumer redress desks in their stores to specially handle consumer complaints with a view to seamlessly resolving them.
Consumer organizations in the Country have begun to actively partake in the process by giving aggrieved consumers a voice. Actions and moves by the relevant agencies have drawn the attention of consumers around the Country and made them more aware of their rights. Nevertheless, there is still room for improvement. It follows, therefore, that in order for the existing framework for consumer protection to develop, amendments must be made to the existing legal structure. Also, extra-legal mechanisms must be put in place to support such legal structure.
CONSUMER AND CONSUMER PROTECTION: THE BACKGROUND
Staring with the broad meaning of consumerism which has been defined as a social movement that seeks to increase the rights and powers of consumers3 It is a great political force, which started from America, but has spread to many different countries of the world and has become a force that businesses must contend with. It is worthy of note that efforts to reduce the imbalance of power between buyers and sellers is not however limited to consumer and activist groups alone. Governments also have at one time or the other had to intervene to protect the rights of consumers in relation to producers.
1. Mrs. Dupe Atoki
2. The News Nigeria, October 30,2014,
3. Kotler, 1972; Perreault and McCarthy, 2002).
In Nigeria, the quest for excess profit and the get-rich quick syndrome have led most businesses to engage in unethical practices, which have endangered the lives of consumers, leading to sporadic complaints from individual consumers. There seems to be no real organized mass movement of consumers to fight for the protection of the rights of the consumers. This has left the bulk of the work of consumer protection at the door step of the government. A phenomenon that is common to most developing countries, where consumerism, according to has been more of a matter of government policy through legislation and efficient enforcement than a matter of engaged public support. Successive governments in Nigeria have set up agencies like the National Agency for Food and Drug Administration and Control (NAFDAC), Standards Organization of Nigeria (SON), and recently, the Consumers Protection Council of Nigeria (CPC), to protect and safeguard the rights of consumers against unwholesome practices of producers and suppliers. The Consumer Protection Council Act,5
DEFINITION OF CONSUMER:
There has been a series of discussions on the actual definition of the ‘consumer’ that needs to be protected. However, a modern definition of the consumer, according6 to Akomolede and Oladele (2006) is “… any person who purchases or is supplied goods, or uses or consumes goods and services at the end of a chain of production”. Two salient features can be pointed out from this definition. First is that the consumer is a buyer and/or user of a product or service, and the second is that the consumer is a member (in fact, at the end) of the production chain. These features underscore the importance of the consumer in both economics and marketing theories. That is, without the consumers (consumption) there can be no basis for production, and hence, no market. It is on this premise that the consumer is seen as the pivotal point of not only marketing, but of all business activities7 and whose interests must be served and protected at all times.
There is however a ‘paradox of importance’ in this philosophy of business, because the consumer, rather than being treated as the king as often advertised by business, is “in actual practice treated as a slave or servant”. This then brings to the fore, the proposition by that if business fails in its responsibility to help the consumer (out of his disadvantaged position), “… then the government or other parties must act on the consumers’ behalf”. In Nigeria, several factors exist that led to the necessity of consumer protection laws. That consumers are repeated sold sub-standard products and services is no longer news. And because of the absence of, or difficulty of access to major manufacturers or dealers, the Nigerian consumer would rather purchase from road-side shops which have no brand reputation or trademarks to protect consumers. In addition to this, the Nigerian consumer is described as “largely complacent”. This complacency claim is attributable to the choice that consumers make of their place of purchase, of especially electronic products (“At the Mercy,” 2008)7. It opined that rather than purchase from reputable dealers or major importers where the manufacturer’s warranty will more likely be honoured, most Nigerian consumers purchase from “…small time dealers…” who may not be in the position to offer refunds, exchange the goods or provide post- purchase services as the goods may have passed through a chain of middlemen before getting to such dealers.
Uche8 (1990) is of the opinion that lack of avenue for checking manufacturer or advertisement claims on goods; as well as accepting to pay price for packaged goods without assurance of quality, and in some cases, quantity, are also challenges to consumers that 9 led to the establishment of Laws of Consumer Protection. According to Kanyip (2005) lack of competition in the market account for why defective goods and services are prevalent in the market.10
She argues that in the face of competition, consumers can express their preference by the choices they make and thereby drive out undesired suppliers of goods and services out of the market. The harsh economic realities in Nigeria have made many consumers to patronise cheaper products that are seemingly substandard, without warranty. In addition most consumers have little or no knowledge of labels or how to access information on safety, quality and in some cases, quantity of products.
In this regard, Umenyi (2007)11 posits that imperfections in the market not only lead to misleading information through deceptive advertisements, but also encourages proliferation of fake and sub-standard goods. These realities are detrimental to consumers and put the seller in the vantage position of exploiting the buying party in the exchange process (Monye 2005).12
5. CAP C25, 2004.
6. An Appraisal of the Legal Regime Available for the Protection of Consumers of Telecom Services in Nigeria; Journal of Law, Policy and Globalisation, Vol. 29,2014.
7. At the Mercy of Nigerian Traders (2008, March), (accessed on 20/11/10), www. Nigerian-Newspaper.com-traders.htm.
8. Uche, U.U. (1990), Consumer Protection and the Law in Nigeria,
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10. Kanyip, B. B. (2005), Consumer Protection in Nigeria: Law, Theory and Policy, Rekon Books Ltd
11. Umenyi, I. (2007), Federal Government Advises States on Consumer Protection,(accessed on 20/10/11),
12. Monye, F. (2005), Law of Consumer Protection, Ibadan, Spectrum Books.
THE ISSUES AND CHALLENGIES
Consumerism in Nigeria, like in most Less Developed Countries has remained at the lowest ebb in spite of the prevalence of unwholesome business practices. The Nigerian consumer is thus continuously saddled with substandard goods and services, coupled with the lack of information and limited choice in the market, thus necessitating political/government efforts. It was observed that although the CPC Act recognized the rights of consumers, it does not specifically provide for these rights as they are merely implied and subsumed into the functions of the council and the state committees established by the Act.
We therefore conclude that mere existence of the law is not enough. Specific protective and compensatory measures should be clearly stated for any infringement on any of the consumers’ rights. Doing so would strengthen the CPC Act in Nigeria. Further the Consumer Protection Council need to embark on sustained sensitization of consumers on their rights and also push for the amendment of specific sections of the CPC Act to give aggrieved consumers unfettered access to courts to pursue their rights.
For effective enforcement of the Act, the government established the Consumer Protection Council (CPC) to carry out the mandate of protecting the rights of the public.13 Fundamental provisions of the CPC Act 1992, which place powers on CPC to support public wellbeing and ensure corporate social reporting include:
(a) ensuring speedy solutions to public complaints on corporations through reconciliations,
(b) removal from the market hazardous products/services,
(c) publication from time to time, list of local and foreign products declared unfit for public consumption,
(d) compelling corporations to protect, compensate, provide relief and safeguards people and communities from adverse effects of technologies that are harmful, injurious, violent or highly hazardous, and
(e) providing awareness to the public on their rights. …
13 (Bello et al., 2012).
There is a global recognition of the fact that there exists real and perceived imbalance of power relations between the producers and consumers of goods and services. This imbalance of power, as noted by several scholars in the field of marketing and business in general appears always to the advantage of the producers, who are strengthened by the traditional legal maxim ‘Caveat emptor’ (buyer beware) and the ever growing free market philosophy, which seems to put the producers at liberty to do whatever they want (Eze, Eluwa, and Nwobodo, 2010).14
This is in spite of the strong emphasis on consumer sovereignty as the moral basis of marketing theory with emphasis on such concepts as ‘customer orientation’, ‘customer focus’, and ‘customer-driven strategies’ in most definitions of marketing, whether in theory or practice. The consumers have thus over the years expressed one form of discontent or the other against the activities of organizations, with which they engage in trade relationships.
This has led to the growth of mass movements (a phenomenon referred to as consumerism) that have forced marketing and business firms in general in most developed countries, especially in Europe and America to respond favourably and adopt better ways of delivering goods and services to the consumers (Arndt, Barksdale and Perreault, 1980).15
These mass movements comprise those formed by direct consumer groups or consumer representative groups, as well as the government. The activities of these groups have been a source as well as beneficiary of a distinct school of marketing thought known as the ‘activist’ or ‘consumerism’ school of marketing thought, which came about as a result of observance of some “obvious problems in the market place” by marketing scholars, and sought to “provide an advocacy position in terms of developing and protecting the rights of the consumers” (Sheth and Gardner), 1982.16
This school of thought focuses on both empirical research and conceptual thinking related to the issues of consumer welfare and consumer satisfaction and thus covers such areas of consumer complaints as deceptive advertising, high pressure sales tactics, product safety, and disclosure of information among others (Sheth and Gardner, 1982). 17
The Law of Consumer protection has a two-fold purpose. On the one hand, it protects the interests, rights and safety of end-users of products and services; and on the other hand, to the extent that it derives from and relates to contractual transactions, consumer protection can be said to be a means by which private law relationships are regulated. It is in the interest of the public that the nature and deficiencies of product and services be made known to consumers, thus, the need for public regulation of private transactions.
The CPC Act18 does not in any of its sections specifically provide for rights of a purchaser or consumer in that term, but the Act provides for the establishment of a Consumer Protection Council. The rights of consumers are implied and subsumed into the functions of the Council and into the duties of the State Committees established by the Act.
The governmental agency responsible for the rights of consumers is the Consumer Protection Council (the council) established in 1992 by the Consumer Protection Act,(The Act). These rights are provided for, in the Act, sometimes by implication and not necessarily under any captions. The components of good quality consumer protection manifest as the rights sought to be protected under the Act whether they are so stated out rightly or they are implied and they include:
- RIGHT TO SAFETY: Right to safety connotes that consumers and their families not be exposed to undue risk of physical harm, injury or death resulting from the use of a product. As relates to safety, the council has a duty to ensure that products are safe for the purpose for which they are intended (Section 2(j)). To further ensure safety, the Council could also notify the public of health hazards inherent in products (Section 3 (e)) and ban the “sale, distribution, advertisement of products that fall short of safety and health regulations (Section 3 (f)). It is noteworthy that such safety and health regulations are not contained in the Act and to ascertain what they are, one would have to look into other pieces of legislations like the Standard Organization of Nigeria Act, 2004 and the National Agency for Food and Drug Administration and Control Act, 2004. Monye (2005), Akomolede & Oladele (2006) 19are all agreed on the imperative for such legal rigmarole and the fact that it may be detrimental to the interest of the Nigerian Consumer.
14. Eze, K. O., Eluwa N., and Nwobodo, B (2010), The Nigerian Consumer @ 50 (accessed on 13/11/2011) http://m2weekly.com/cover-cover/the-nigerian-consumer-50/ Ho, S. C (2001),
15. Arndt, J., Barksdale, H. C., and Perreault, W. D. “Comparative Study of Attitudes Toward Marketing, Consumerism and Government Regulation: (1980),
16. Sheth, J. N., and Gardner, D. M. (1982), History of Marketing Thought: an update, Faculty working paper No 857, College of commerce and business administration, University of Illinois at Urbana Champaign Thorelli, H. B. (1981), “Consumer Policy for the Third World,” Journal of Consumer Policy, 3: 197-211.
18. Chapter C25. (Decree No 66 of 1992). Laws of the Federation of Nigeria
- RIGHT TO INFORMATION AND ADVICE : Right to Information and advice With the reality of the proliferation of goods and services, information is vital, or indeed, indispensible for consumer The information will put the consumer in the position to compare the quality of various products and services as they relate, not only to cost, but also safety, content, ingredients and expiry date etc. For the information provided to be meaningful, it must be correct and not fraudulent and advertisements and labeling must not be misleading or false. In addition to the above kinds of information, the Act also mandates the Council to publish a list of products that have been banned, withdrawn, restricted or not approved for consumption (Section 2 (c)) and to organise campaigns and other sensitization avenues that will lead to public and consumer awareness. Also sections 2(e) and 2(h)
- RIGHT TO CHOICE : Right to choice Inherent in the right to be informed lays the right to choose as information of various products and services offers the consumer the opportunity of picking one product or service as opposed to In addition to this however, the right to choose also presupposed competition. It is believed in the world of business that competition regulates the market. The concept of competition is in contra-distinction to the concept of monopoly. Thus in places like the United States of America, there is a whole body of Laws (Antitrust Laws) that prohibit monopoly and guarantee competition which serves the purpose, amongst other things, to guarantee consumer choose.
- RIGHT TO BEING HEARD : Right to be heard Section 2(a) mandates the council to provide “speedy redress” to consumers by means of the pacific measures of negotiation, mediation and conciliation and by section 2(i), it offers compensation to injured consumer. In an effort to bring relief closer to the public, the Act also provides for State Committees to receive complaints and investigate the complaints and act on Also, the Council has the power to apply to court to prevent the circulation of any product which constitutes an imminent public hazard.
- PRE EMPTIVE RIGHTS IN FAVOUR OF CONSUMER :Pre-emptive rights in favour of consumer In addition to the safeguards already discussed above which the council is empowered to provide, the council is also empowered to implement “precautionary measures to forestall consumer injury” and this may include requiring trade professional bodies and industries to creation and maintain quality standards (section 2 (f)) to constitute benchmarks for quality to ensure consumer Also, by the provision of Section 3 (b)-(f), the council may cause consumer products to by subjected to quality test and to compel providers of consumer products give certification that benchmarks as regards safety standards have been met and to notify the public of any inherent health hazards in products. In addition, another pre-emptive measure is for the council to ban products from being put in the market, or even the advertisement of such products which have not complied with the regulations relating to safety and health as provided for in the Act. Section 3(f) Furthermore, by the provisions of Section 9, when a manufacturer or dealer has puts goods in the market and thereafter becomes aware of previously unseen hazards of the product, he has a duty to notify the general public of such risks and to withdraw the products from the market and failure to do so give rise to a criminal offence Section 9(2).
- ENFORCEMENT RIGHTS : While the provisions defining rights of consumers and those that seek pre-emptive measure to protect consumers are designed to prevent injury to the consumer in the first place, the Act also anticipates that despite all of these provisions, consumer injury will still occur and has put in place provisions for enforcement. The Act provides for compelling producers compliance with provisions of the Act.
ENFORCEMENT BY INJURED CONSUMER
The right of an injured consumer to institute an action in court for consumer related injuries as provided by the Act is curious. By virtue of Section 8(a) and (b) of the Act, it would appear that the right of an injured consumer to apply to court arises only after the council or a state committee has investigated the consumer complaint and the consumer has proved to the council/committee that his/her consumer rights have been infringed that such a consumer may go to court. Section 8 provides:
“whereupon an investigation by the council or state committee of a complaint, it is proved that- (a) the consumer’s right has been violated; or (b) that a wrong has been committed by way of trade, provision of services, supply of information or advertisement thereby causing injury or loss to the consumer; The consumer shall, in addition to the redress which the state Committee, subject to the approval of the council may impose, have a right of civil action for compensation or restitution in any competent court.”
This section provides a condition for which an injured consumer may approach the courts. The word “whereupon” means “as a result of”20 . So it is only as a result of the investigation by the council which shows that the consumer has proved some injury caused to his consumer rights that a consumer may seek redress in court. The imposition of this condition is clearly inconsistent with Section 36 of the constitution21 which entitles a person to unfettered rights to institute actions in court, “in the determination of his civil rights…a person shall be entitled to a fair hearing…by a court or other tribunal…” The position of the law is relatively settled that any provisions of any law that is inconsistent with the provisions of the constitution shall be null and void to the extent of the inconsistency in accordance with Section 1(3) of the constitution.
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21. CFRN Cap C14 LFN 2004
Enforcement by council or committee for compliance failure: By the provisions of Section 3 (a), the council may apply to court to obtain orders to prevent the circulation of products that are imminently hazardous to the public. The State Committees have powers to hold hearings, make decisions and make recommendations of remedies to the Council for violations of consumer rights as enshrined in the Act. Specifically, Section 5 of the Act empowers the committee to receive complaints of injury suffered by consumers, to conduct negotiations between the parties (i.e. the injured consumer and the alleged defaulting seller) to bring about an amicable settlement or for the committee to make recommendations to the council for the payment of compensation by “the offending person to the injured consumer.” Section 5 (c) The Act thus confers on the state committees the status of Administrative Tribunal or an Alternative Dispute Resolution mechanism. Thus, the council in conjuncture with the committee act as non-judicial alternative compensation mechanism.
Monye (2006)22 offers one explanation. She asserts that case law show that judges are inclined to accept the “foolproof system” of production; often used as defence by alleged violators of consumer rights. She cites the cases of Boardman v Guiness (Nig) Ltd.23; Okonkwo v. Guinness (Nig.) Ltd.24 and Ebelamu v. Guiness (Nig.) Ltd.25 to illustrate such instances. Other authors such as Akomolede, and Oladele, (2006)26 have asserted that “…the law has only succeeded in providing a regulatory framework for consumer protection…” without adequate enforcement. It would appear that emphasis is still being put, by our justice system, on contractual obligations which still places the caveat emptor (buyer beware) burden on consumers. The absence of judicial enforcement still leaves consumers in the perilous position of being easily exploited by producers, sellers and service providers with impunity. We propose that one way to address the above pitfalls is the establishment of a specialized court for consumer protection. Section 6(4) (a) of the constitution empowers the National Assembly to establish courts as exigencies may demand. 27
It is believed that such courts will no doubt apply the provisions of the Act more fully than the generalized courts such as the High Courts do. This is as a result of the narrow focused jurisdiction to which cases brought before the courts will be routed.
Redress for consumers against offending product providers The Act provides for five main categories of reliefs for consumer against offending product providers.
- PROHIBITIVE INJUNCTIONS: Prohibitive injunctions may be ordered by the court where a person who has persistently carried out acts or practices detrimental to consumers and at the request of the council/committee, has either failed to make “written assurance” to desist from the practices (Section 10 (1)), or has defaulted in the assurances written, then, upon a case filed by the Federal Attorney General, an injunction may be ordered by the court prohibiting the offender or refraining him from continuing that course of conduct. (Section 10 (3))
- CRIMINAL CONVICTIONS: The Act provides that criminal convictions and sentence of five years imprisonment or N50,000 fine or both may be passed on the following categories of offenders: – Manufacturer or distributors of products, who after placing a product in the market, subsequently become aware of any hazards in the products, fail to promptly notify the public of the hazard and withdraw the product s from the market. Section 9 (1) & (2) – A person who makes or aids in the making of “wrong advertisement” relating to a consumer product. (Section 11) – A person who contravenes the provisions of the Act by selling or offering for sale products which are unsafe or hazardous; or causes injury or loss to a consumer by providing service, information or advertisement contrary to the spirit and letter of the Act . (Section 12)
- COMPENSATION: In addition to the sentences already mentioned, a person convicted of violation of consumer rights may be ordered to pay compensation for any injury, loss or damages suffered as a result of his violations. (Section 13)
- POSITIVE ORDERS: Upon the application of the Attorney General, a court may make an order commanding that the provisions of the Act and any orders made by the Council pursuant to the Act be complied with. (Section 16)
- SEIZURE BY INSPECTING OFFICER : A person, who by the provisions of Section 15 (1) of the Act is designated an inspector, may, by the provisions of Section 15 (2) (e), seize or detain consumer goods that contravene the provisions of the Act.
It is observed that largely while four of such relies are judicial, (a-d), one, (e) is administrative.
STANDARDS ORGANISATION OF NIGERIA
The Standards Organisation of Nigeria Act28 establishes the Standards Organisation of Nigeria (the “Organisation”) which is a body corporate with perpetual succession and a common seal and also creates the Standards Council of Nigeria (the “Council” ) which serves as the governing body of the Organisation.
23. (1980) NCLR 109 at 126
24.  NCLR at 130
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28. SON Act, Cap.S9, LFN, 2004.
Pursuant to Section 4 of the Act, these functions include but are not limited to establishing and approving standards in relation to commodities, products and processes in commerce; providing measures for quality control and advising the Federal Government on standards and quality control mechanisms to implement and employ in accordance with the national policy.
Section 5 provides for the functions of the Organisation. They are required to organize tests and do everything necessary to ensure compliance with standards designated and approved by the Council; undertake investigations into the quality of facilities, materials and products in Nigeria, and establish a quality assurance systems including certification of factories, products and laboratories; ensure reference standards for calibration and verification of measures and measuring instruments; to compile an inventory of products requiring standardization; to compile Nigerian standards specifications; to foster interest in the recommendation and maintenance of acceptable standards by industry and the general public; to develop methods for testing of materials, supplies and equipment including items purchased for use of
Section 1 and 3(1) of the Act provides that Departments of the Government of the Federation or a State and private establishments; to register and regulate standards marks and specifications; to undertake preparation and distribution of standards samples; to establish and maintain such number of laboratories or other institutions as may be necessary for the performance of its functions under this Act. Section 5(2) provides that the Organisation may carry out research as it deems fit and have the power to use research facilities of other institutions, whether public or private, in furtherance of this function. Pursuant to Section 17 of the Act, the Director-General is vested with the power to exercise seizure or destruction of goods which he is satisfied are hazardous or detrimental to life or property. He may also prohibit the sale of such goods and seal up the premises where the goods are manufactured or stored and direct the manufacturer to resolve or cure the defect in the product. The powers vested on the Director-General under this section can only be enforced after an application for an order to carry out these powers has been made to the Magistrate Court having jurisdiction in the area.
RESOLUTION BY ALTERNATIVE DISPUTE RESOLUTION
Lowe and Woodroffe is of the opinion that rather than resorting to litigation and court action, these departments are more inclined to resolve consumer complaints by conciliation. This brings us to Settlement. It is important for consumers to be open to settlement of disputes through Alternative Dispute Resolution (ADR). Thus, the matter may be resolved through arbitration, negotiation or conciliation. Where such efforts are fruitless, the consumer may file a complaint with the relevant regulatory agency such as CPC, NAFDAC or SON. It is suggested that the consumer should seek litigation as a last resort. This is due to a number of reasons. For example, the judicial process in Nigeria can be rather costly and time consuming. As such, litigation should not be the first and immediate choice of the consumer especially where the gravity of the injury is not severe.
The enactment of consumer protection Law In Nigeria, is only an attempt at consumer protection. The level of consumer awareness in Nigeria is still relatively low, thus culminating in the near absence of consumerism or action against unwholesome business practices. Nigerian consumers are continuously confronted with substandard goods and services, lack of information and limited choices in the market. The ability to enforce the laws relating to consumer protection will provide the necessary impetus for safeguarding the rights and safety of consumers in Nigeria. In this regard, we recommend that:
- Nigerians should be sensitized about their consumer protection rights and how to enforce those rights. The current weekly programme ‘consumers speaks’ on the national radio network is a step in the right direction, but efforts should be extended to local radio stations and the programmes aired in local languages to aid the understanding of the local populace.
- A more comprehensive legal regime in consumer protection should be enacted specifying consumer rights and obligations of marketers rather than the present regime where these are subsumed into the functions of the Council.
- Anti-trust laws should be enacted to encourage competition in the market place and invariably, guarantee the right of choice to consumers. 4. The Consumer Protection Council and the State Committees should be more proactive in the performance of their statutory functions.
- The media should assume the role of whistle-blowers with a view of checkmating unwholesome business practices by unscrupulous entrepreneurs and organisations
Lastly, Section 8 of the CPC Act should be amended to give aggrieved consumers unfettered access to the courts. In addition, the Section should provide for special court for consumer protection matters.