27/09/2017
Wednesday Morning Talk...Part 3
VEHICLES ARE PARKED AT OWNER'S RISK.
JUDICIAL ATTITUDE TO CONSUMER PROTECTION IN NIGERIA
The haves not, see judiciary as their last hope, it is seen by the common man as the hope when he is hopeless and the legally injured as the help when he is helpless. In the parlance of conflict and conflict resolution, the relationship between the consumer and producer of goods and services, the consumer is seen as a weeping child. He therefore, looks up to the court for protection from the excesses and antics of unscrupulous service providers, who would usually embark on dubious and unfair trade practices to maximize profits at the consumer's expense.
Consumer protection is seen as one of the citizen's constitutional right enshrined in the constitution of the federal republic of Nigeria, 1999 as amended in 2011. Section 33 of the constitution provides for right to life. This encapsulates right to water, air, services and other things necessarily incidental to sustenance of the citizen's life. Despite this acknowledgement of the right of the citizen - right to life, the consumer protection appears to be a concept that is yet to be fully acknowledged by the court. This could be seen in the way they handled some cases bordering on consumer protection.
For instance, in the case of HILL STATION HOTEL LTD V. ADEYI (1996) 4 NWLR (Pt. 442) 294 at 312 where Edozie, JCA said " I have myself scanned through the law of the country but have not been able to find any statute bearing on the subject of Hotel Proprietors and Innkeepers Liability. This seems doubtful if there exists any law in this country similar to the English Hotel Proprietors Act (1956)."
Apart from taking recourse to the English Common Law or Statute of General Application where there exists no Nigerian law in relation to the subject matter, the court entered into a hastily conclusion. It is a well known fact that at common law innkeepers were held strictly liable for the loss of their guests' goods, this position was clothed with a statutory garment by the English Innkeepers Act of 1368. At the material time when the case was decided - 1996, there were local legislations in Nigeria similar to the English Hotel Proprietors Act (1956), albeit statutory powers of regulating hotels and hotel proprietorship is vested on the states in 1987 by the law reform commission. Hence, we had Innkeepers and Hotel Proprietors laws of Rivers State in 1988 and Akwa-Ibom and Kaduna in 1990 among others. One will be left with no choice but to form an opinion that, albeit courts are enjoined by law to take judicial notice of all legislations in section 122 (2) (a) and (b) of the Evidence Act, 2011 (former section 74 (1) (a) and (b) of the Evidence Act, 1990), however, possibilities are are that the courts may not just be familiar with the concept of consumer protection.
In ANYAH V. IMO CONCORDE HOTELS LTD & 2 ORS (2002) 12 NSCQLR, 231. The appellant was at Owerri for a book lunch. He booked for an accommodation for a night at the 1st respondent Hotel. At the entrance of the hotel, 2nd and 3rd respondents, who were the hotel security men on duty, registered the number plate of the appellant's car and issued him with a plastic disc No. 2. The appellant drove in, parked his car in the parking space provided by the by the hotel within its premises, and checked into the room allocated to him.
In the morning, the appellant found that his car had been stolen. He reported the incident to the hotel management, later sued the respondents for the value of the car and other expenses as a result of the absence of the car. The Supreme Court while deciding on the matter placed a difficult to prove condition on the discharge of the burden of proof on the consumer, where it held per Kalgo JSC:
"....the appellant gave evidence of the loss of his car but gave no detailed evidence of the fact and circumstances giving rise to the loss of the car. Nor did he explain the relationship between him and the respondents upon which the duty of care for his car would arise, and how that duty was breached."
The big question here is, how could these facts contemplated in the judgement be within the the knowledge of the consumer? Most surely, a man who parked his car an proceeded to his room to sleep could not have seen the car being stolen to be expected to give such a detailed evidence on the circumstances giving rise to the loss of his car, as required by the court. The burden of proof laid down by the court in this case is onerous.
More so, the appellant did not just walked into the 1st Respondent's hotel, he went through all necessary security processes required of him by the hotel, as directed by the 1st respondent's security men. Is this not enough to establish a duty of care on the respondents? It is surprising that the Supreme Court came to the decision in Anyah's case without adverting its mind to the English case of WILLIAMS V LINNITT (supra), despite the two cases were in all fours.
The consumer's dream of having a robust regime that will ensure his protection was further shattered in KABO AIR LTD. V. OLADIPO (1999) 10 NWLR 517 (CA) putting reliance on IBIDAPO V LUFTHANSA AIRLINE (1997) 4 NWLR 124 (SC). Where the respondent boarded the appellant's aircraft from Kaduna to Lagos. He checked in his luggage and was issued with a luggage tag. Upon arriving at Lagos, he discovered that his luggage was not checked into the aircraft he boarded. He made all attempts to have his luggage but could not have it, as non of the subsequent aircraft of the appellant's aircraft coming to Lagos was carrying it. The matter was tried by the High court, where it was dismissed for lack of jurisdiction. It went on appeal, where the Court of Appeal held that the High Court has no jurisdiction on matters involving carriage by air, the matter should be handled by the Federal High Court. The Supreme Court in this case and many others sacrificed the consumer's interest on the alter of technicalities.
From the cases highlighted within these 3 weeks, one will understand that apart from the legislative loopholes, the court has to man-up and be open minded wherever a consumer approaches it for redress. Until this is achieved, interdicts and judicial activism are the only ways to go.
As it is in Nigeria today, "VEHICLES ARE PARKED AT OWNER'S RISK" is a complete cover ! Guard your belongings!!!
