Jun 8, 2017

Consumer Rights Protection And The Nigerian State | Ahmed Adetola-Kazeem


Being the text of a paper delivered by Ahmed Adetola-Kazeem, MCIArb (UK) at alecture organized by the Nigeria Association of Muslim Law Students (NAMLAS) Olabisi Onabanjo University chapter in honour of Hon. Justice M. O Abimbola, Chief Judge of Oyo State.

INTRODUCTION
The recent Judgment of Hon. Justice Adedayo Oyebanji in suit no. LD/13/2008- Adebo Holdings Ltd &Anor v. Nigerian Bottling CompanyPlc&Anorhas brought to the fore Nigeria’s lackadaisical attitude towards the protection of consumers just as it is in other facet of its national life.


The black’s law dictionary 9th edition defines a consumer as a person who buys goods or services for personal, family or household use, with no intention of resale; a natural person who uses product for personal rather than business purposes. A consumer has been defined by the Consumer Protection Council Act, CAP C25 Laws of the Federation, 2004 as an individual who purchases, uses, maintains or disposes of products or services.

ADEBO HOLDINGS LTD &ANOR V. NIGERIAN BOTTLING COMPANYPLC&ANOR REVISITED

The court held in Adebo Holdings Ltd & Anor v. Nigerian Bottling Company Plc & Anor that high levels of benzoic acid and sunset additives in the coca-cola products could pose a health risk to consumers when mixed with ascorbic acid, commonly known as vitamin C.

Justice Adedayo Oyebanji ordered the Nigerian Bottling Company (NBC) to place written warnings on Fanta and Sprite bottles against drinking them with vitamin C, and awarded costs of two million naira ($6,350) against the National Agency For Food and Drug Administration and Control (NAFDAC) for failing to ensure health standards.

The court said "It is manifest that NAFDAC has been grossly irresponsible in its regulatory duties to the consumers of Fanta and Sprite manufactured by Nigeria Bottling Company, NAFDAC has failed the citizens of this great nation by its certification as satisfactory for human consumption products which become poisonous in the presence of ascorbic acid."

A background to what transpired leading to the filing of the action against NBC and NAFDAC was given by Dr. Fijabi Adebo in an interview granted to Punch Newspaper on the 26th of March 2017[1]. He said,

“When the Coca Cola European Union alleged that the products our trading company, EFAD Limited brought into the UK were fake and unsafe for human consumption which made the UK Customs and Excise to act by destroying the products, we had to query the NAFDAC which plays supervisory roles in safeguarding public health as an agency of the Federal Government. We had to ask what it was doing when products unfit for human consumption were being manufactured in the country. That was why we joined them in the suit. In fact, our initial prayer was to stop the production of Fanta with sunset yellow because it really alarmed us and according to the UK findings, it could cause injury to children and others. Justice Taiwo in 2009 ruled that NAFDAC should go to the premises of NBC and make it reduce the content of sunset yellow in Fanta. They obeyed the order and reduced the content considerably. Before then, you would notice that whenever children drank Fanta, their tongue would be yellowish. If they knew that it was not injurious to consumers’ health, why did they reduce the sunset yellow? After that, we got another ruling against NAFDAC compelling it to henceforth do things right after being negligent by allowing manufacturers do things their way. It was after we concluded those ones that we faced Coca Cola. Our lawyers wrote them and they were so arrogant. They were not interested in our loss as a customer who bought products from them. Their response to our lawyers was a little less insulting. We then thought that if we had been so badly treated in England on issue that was a fault of a manufacturer in Nigeria, I would not come to my country and be so treated. I therefore swore to pursue the case until justice was served.”

“My main aim was to save Nigerians. I later got rulings compelling the NBC to reduce the sunset yellow in Fanta and make NAFDAC responsible in discharging its responsibilities. I also got an order for the continuous monitoring of the content of Coca Cola products. The rulings were satisfying to me. At the time we got the rulings, one would have expected them to act in a normal, serious and corporate manner. But all we got was that we did not tell them we were taking the products to the UK. What law says I should tell them where I was taking the products to? By law, I have a right to export to anywhere in the world? Through the Nigerian company law, I have a limited liability company and also a licensed company in the UK. I brought a shipping company to their premises to load the drinks including customs to check the products. What else do they want me to do?”

Lawyers for the NBC argued that the products were not intended for export on the grounds that the UK standards limit benzoic acid in soft drinks to a maximum of 150 mg/kg. Both Fanta and Sprite have benzoic levels of 200 mg/kg which is lower than the Nigerian regulatory limit of 250 mg/kg, but Justice Adedayo Oyebanji rejected this defense.

The Honourable Judge said, "Soft drinks manufactured by Nigeria Bottling Company ought to be fit for human consumption irrespective of color or creed.”

NAFDAC and NBC have appealed the decision of the Lagos High Court, it remains to be seen which side of the divide the appellate court will tilt.

In view of the High Court Judgment in Adebo’s case and other worrisome cases, how has Nigeria faired in protecting its consumers from the claws of manufacturers, business men and service providers whose main aim is to make profit at the expense of unsuspecting Nigerians?

It will be wrong to suggest that there are no adequate laws that govern consumer protection in Nigeria. The problem is not the non-availability of laws but ignorance of the laws by consumers and the unwillingness of those in authority to implement the laws.  Nigeria’s situation was best described by a former MD of Nestle Plc, when he said “Nigeria is over-legislated but under-governed.

CONSTITUTIONAL RIGHTS OF CONSUMERS
Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999(as amended) contains the fundamental rights of all citizens and persons in Nigeria. These are the rights to life; dignity of human person; personal liberty; fair hearing; private and family life; freedom of thought, conscience and religion; freedom of expression and the press; peaceful assembly and association; freedom of movement; freedom from discrimination; and the right to acquire and own immovable property anywhere in Nigeria.

These rights can be said to have some affinities with consumer protection. Some actually have direct bearing on consumer Protection. For instance the right to fair hearingaddresses the principle of access to justice which is a cardinal principle of consumer protection. [2]Section 36(1) of the Constitution provides:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

In addition, on the strength of the Constitution, Any citizen whose rights has been violated under any law including consumer protection laws can approach the court or any other appropriate body for redress, under section 46. The Fundamental rights are so important that failure to observe them in any case vitiates the proceedings. They cannot be derogated from except to the extent allowed by law. Describing the primacy of a fundamental right, Eso,J.S.C, In Ransome Kuti v. Attorney General of the Federation (1985) 2 NWLR (Pt.6) 211  said:

“It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our Constitution, since independence … is to have these rights enshrined in the Constitution so that the rights could be “immutable” to the extent of “non immutability.”

CONSUMER PROTECTION COUNCIL
The Consumer Protection Council is the body saddled with the responsibility of the protection of the rights of consumers in Nigeria. Other agencies saddled with the duties of consumer protection in various specific sectors are:
1.     National Drug Law Enforcement Agency (NDLEA)
2.     Nigeria Electricity Regulation Commission(NERC)
3.     Nigerian Communications Commission (NCC)
4.     National Agency for Food and Drug Administration and Control (NAFDAC)
5.     Central Bank of Nigeria (CBN)
6.     Nigeria Deposit Insurance Corporation (NDIC)etc.
Whilst the agencies listed above individually deals with specific sectors, the Consumer Protection Council has a wider coverage and has the power to deal with any consumer complaints against any manufacturer or service provider.
FUNCTIONS OF CONSUMER PROTECTION COUNCIL
Some of the functions of the Council as provided in section 2 of the Consumer Protection Council Act are as follows:
a)    Providing speedy redress to consumers complaints through negotiation, mediation and conciliation; 
b)    Seeking ways and means of removing from the markets hazardous products and causing offenders to replace such products with safer and more appropriate alternatives;
c)     Publishing from time to time list of products whose consumption and sale have been banned, withdrawn, severally restricted or not approved by the Federal Government;
d)    Causing an offending company, firm, trade association or individual to protect, compensate, provide relief and safeguards to injured consumers or communities from adverse effects of technologies that are inherently harmful, injurious, violent or highly hazardous;
e)    Organising and undertaking campaigns and other forms of activities that will lead to increased public consumer awareness;
f)      Encouraging trade, industry and professional associations to develop and enforce in their various fields, quality standards designed to safeguard the interest of consumers;
g)    Issuing guidelines to manufacturers, importers, dealers and wholesalers in relation to their obligation under the CPC enabling law;
h)    Encouraging the formation of voluntary consumer groups or associations for consumers’ well being;
i)      Ensuring that consumers’ interest receive due consideration at appropriate fora and providing redress to obnoxious practices or the unscrupulous exploitation of consumers by companies, firms, trade associations or individuals;
j)      Registering and monitoring products, services and sales promotions in the market place.

Section 3 of the CPC act gives additional powers to the Council to do the following:

(a) Apply to court to prevent the circulation of any product which constitutes an imminent public hazard;
(b) Compel a manufacturer to certify that all safety standards are met in their   products;
(c) Cause as it deems necessary, quality tests to be conducted on a consumer product;
(d) Demand production of label showing date and place of manufacture of a commodity as well as certification of compliance;
(e)Compel a manufacturer, dealer and service company where appropriate, to give public notice of any health hazards inherent in their products;
(f) Ban the sale, distribution, advertisement of products which do not comply with safety or health regulation.

RIGHTS OF CONSUMERS
 The Consumer Protection Council Website[3] lists some rights which consumers are entitled to and must insist on as follows:
·         The Right to Satisfaction of Basic Needs Access to basic goods and services necessary for survival, such as food, water, energy, clothung, shelter, health-care, education and sanitation. Goods and services must meet the standard of quality promised such that there is value for money in the purchase.
·         The Right to Safety Protection from hazardous products, production processes and services.
·         The Right to Information Provision of information enabling informed consumer choice as well as protection from misleading or inaccurate advertising and labeling.
·         The Right to Choose Access to variety of quality products and services at competitive prices.
·         The Right to Redress Compensation for misrepresentation, shoddy goods and unsatisfactory public and private services, including the right to adequate legal representation
·         The Right to Consumer Education Acquisition of the skills required to be an informed consumer throughout life
·         The Right to Consumer Representation Advocacy of consumers’ interest and the ability to take part in the formulation of economic and other policies affecting consumers i.e. the right to be heard
·         The Right to a Healthy Environment Habitation is a place that is safe for present and future generations and which will enhance the quality of their lives.

RECENT STRIDES OF THE CONSUMER PROTECTION COUNCIL
It is interesting to note that the Council has made giant strides towards the protection of consumers' rights in Nigeria. In 2015, the Council issued Volkswagen Nigeria a 7 days ultimatum to provide information on the status of its vehicles as regards the emissions of cheating software which is reported to have affected 11 million cars worldwide. The Council went on a nationwide sensitization campaign to checkmate smuggled poultry products in the Country. Upon numerous complaints of subscribers to Digital Satellite Television ("DSTV"), in July 2015 the Council commenced investigative sittings into the operations of Multichoice Nigeria, the franchise owners of DSTV. [4] The Council later announced that it had “substantiated” allegations of abuses of consumer rights brought before the council against MultiChoice Nigeria, the owner of DSTV. In August 2015, the Council waded into a complaint of Bauchi State Goverment of excess bank charges by First City Monument Bank, the Council upon conclusion of investigation ordered the bank to refund N1.543 Billion Naira unlawful deductions. The Council also investigated the activities of VIP Express Tourism Limited, a Nigerian hospitality company upon receipt of complaints that the operations of the company is against the rights of their subscribers, the company was ordered to refund N25 Million Naira to aggrieved consumers.

It is also interesting to note that the Council has commenced independent investigation into safety of additives in Nigerian Bottling Company’s Fanta and Sprite. The Director of CPC in a recent statement said, “Indeed the judgment only serves as the subject of bringing this information to CPC’s attention, the Council would conduct its own independent investigation. The reason for CPC’s interest is not far-fetched. For years, Fanta, Sprite and Coca Cola have arguably and consistently been the most widely consumed beverages in Nigeria. The spectrum of consumption is also perhaps the widest, with consumption starting as early as age four and far into adult years.”

“In addition, Vitamin C is one of the most consumed medications for both children and adults, both as a matter of prescription/ over the counter and, or as dietary supplement. Essentially, both the NBC products and Vitamin C are routinely consumed in Nigeria with absolutely no restrictions to access and availability” she added.
FAILINGS OF THE CONSUMER PROTECTION COUNCIL
In spite of these achievements, there is still a lot of work to be done. The Nigerian market is flooded with substandard products and products which are not registered with the Council. Many Nigerian consumers are not aware of their  rights or how to enforce them. It is difficult for the Council to suspend the business activities of big multi-nationals such as DSTV or MTN in proven cases of abuse of consumer's rights. It is also difficult for the Council to enforce consumer rights against Federal Government agencies which are mandated to provide essential services to the citizenry.

RECOMMENDATION AND CONCLUSION
It is important for the Council to devise creative means of ensuring that its orders are obeyed, particularly by multinationals and government agencies. The Council’s taskforce should intensify its efforts by carrying out regular monitoring of factories, markets and shops to ensure that products sold to Nigerian consumers are not substandard and are duly registered with the Council. The Nigerian Customs service and other security agencies must ensure the security of our borders and ports through which many substandard products enter the country.

More sensitization campaign should be carried out in schools, churches, mosques, print media, electronic media and social media to create awareness on the rights of consumers and how to get redress when such rights are infringed upon. The Council must be attentive to complaints against the products of foreign or local companies, big and small enterprises, private establishments and government agencies if it is to adequately achieve its statutory mandate.

[2] Ebun Adegboruwa, “Challenges of Consumer Rights Protection in Nigeria”. A paper delivererd at the NBA Conference 2015.
[3] http://www.cpc.gov.ng/index.php/consumers (accessed on 23rd May 2017)
[4] Nigeria: An Appraisal Of The Role Of The Consumer Protection Council In Protecting Consumers' Rights In Nigeriahttp://www.mondaq.com/Nigeria/x/459154/Consumer+Law/An+Appraisal+Of+The+Role+Of+The+Consumer+Protection+Council+In+Protecting+Consumers+Rights+In+Nigeria (accessed on 23rd May 2017)


Ahmed Adetola-Kazeem
AHMED ADETOLA-KAZEEM, MCIArb(UK) is a counsel at Gani Adetola-Kaseem (SAN) LP and ExecutiveDirector of Prisoners' Rights Advocacy Initiative (PRAI).
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Ed's Note - Article was first published here
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