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It is an undeniable fact that the Internet has grown to take a very important role in everyone’s daily life. The expansion of the use of the Internet can be seen across all countries, age groups, professions educational institutions, and many other aspects of life. Perhaps the first online activity that comes to mind these days is online commerce/ shopping or Electronic Commerce (E-Commerce).
Online shopping continues to grow in popularity—evidence that most customers are satisfied with their online shopping experience. Still, despite the best efforts of merchants and consumers, problems, and even disputes, sometimes arise. When that happens, consumers can take steps to resolve the issue that will, more often than not, lead to a satisfactory outcome.
The most common disputes in online shopping include; package not delivered, refund not given by merchant, amount not credited to the account, defective appliances, invalid voucher, the wrong package delivered, returned Item not picked up yet, empty package delivered, not accepting returns for damaged product, merchant fraud, etc.
In Nigeria, The Federal Competition and Consumer Protection Act, 2018 (“FCCPA”) is the primary legislation that governs and protects the rights of consumers in Nigeria. The FCCPA established the Federal Competition and Consumer Protection Commission (“FCCPC”) to, amongst others:
The FCCPA defines a consumer in section 167(1) to include any person:
The provisions of the FCCPA apply to certain conduct occurring outside Nigeria where such conduct is carried out by:
The rights of a consumer under the Nigerian FCCPA 2018 include:
Consumer’s right to information in plain language: The Act requires a producer to make a virtual representation of the goods or services offered in a clear language that is direct and unambiguous. The producer is allowed to use illustrations or headings to give examples of the visual representations.
Right to disclosure of goods and service prices: When a vendor is displaying the goods for sale, the price of the goods should also be adequately displayed. According to section 115 (2) of FCCPA 2018, price is adequately displayed when the currency of the Federal Republic of Nigeria is displayed in writing, stamps, or annexed to the goods or covering of the goods or services.
Labeling products and trade description: It is unlawful for an undertaking to knowingly apply to goods a trade description that is likely to mislead consumers in regard to any matter implied or expressed in the trade description or alter, deface, cover, remove, or obscure a trade description or trademark applied to any goods in a way calculated to mislead consumers.
Disclosure of reconditioned or second-hand goods: An undertaking that offers or agrees to supply used or refurbished goods must attach a conspicuous notice stating the condition of the goods. For instance, if the goods have been rebuilt or reconditioned, a clear notice should be attached saying so.
Sales record: By virtue of section 118 of the FCCPA 2018, an undertaking should provide a written record of each transaction to a consumer except where it is impracticable to do so. An example of such a written record is a receipt of a purchase or an invoice.
The sales record should include details such as the vendor’s name or registered business name, address, the date of transaction, description or name of goods sold, the unit price and quantity and total price before tax, amount of tax, and total price including taxes.
Consumer’s right to select a supplier: An undertaking shall not require, as a condition of offering to supply or supplying any good or service, or as a condition of entering into an agreement or transaction, that a consumer shall buy any good or service from that undertaking or a third party unless the vendor can demonstrate that such condition would be of convenience or benefit to the customer.8 One of the purposes of forbidding such conditions is to prevent anti-competitive agreements and conducts.
Right to cancel an advance reservation booking of order: A consumer has the right to cancel any advance booking reservation or order for any good or service, subject to a reasonable cancellation fee of the order or reservation by the supplier or service provider.
Right of consumers to choose or examine goods: Where goods are displayed openly by a supplier, the consumer has the right to choose and reject any item displayed before the transaction is completed.
Where a consumer has agreed to purchase goods solely on the basis of a description or sample, or both provided by a supplier, the goods delivered to the consumer should in all material respects and characteristics, correspond to what an ordinary alert consumer would have been entitled to expect based on the description, or on a reasonable examination of the sample.
A consumer isn’t liable for damage to goods displayed by the supplier except if the goods were damaged by the consumer’s action which amounts to gross negligence, recklessness, malicious behavior, or criminal conduct.
Consumer’s right to return goods: The right to return goods is one of the most useful consumer rights in Nigeria and it is also a right that many consumers are not aware of. A consumer has the right to return delivered goods within a reasonable time if the goods are incapable of being used for the required purpose for which they were bought. By virtue of section 122(1)(a) of FCCPA 2018, such required purpose must have been communicated to the supplier.
A consumer also has the right to return goods that do not correspond with description, sample or the type and quality reasonably contemplated in the sales agreement.
Right to fair dealings: It is unlawful for an undertaking or its representative to apply physical force or harass a customer or a potential consumer when goods are being marketed, supplied, or negotiated. This also applies when an undertaking is demanding payment from a consumer.
It is unlawful for an undertaking or its representative to knowingly take advantage of a potential consumer’s ‘mental disability, illiteracy, ignorance, inability to understand the language of an agreement, or any other similar factor’.
False or deceptive misrepresentation: It is unlawful for an undertaking or its representative to either directly or indirectly by words or conduct mislead a consumer as to the representation of material facts in respect of goods or services.
Right pertaining to quality of goods and services: When a vendor is performing a service or installing goods the customer has a right to receive quality goods or services. If the undertaking fails to render quality service or uses goods with defects, the consumer has the right to demand a remedy or a refund.
Consumer Right to Safe and Quality Goods: Every consumer has the right to receive goods that are suitable and durable.
To Enforce consumer rights under the FCCPA 2018, the Competition and Consumer Protection Tribunal (“CCPT”) was established pursuant to section 39 of the FCCPA to adjudicate over conduct prohibited under the FCCPA.
The CCPT (as it relates to the protection of consumers) has, among others, the powers to:
Section 146 of the FCCPA 2018 provides that a consumer can enforce his/her rights in a transaction or agreement in the following ways:
Now, in the case of disputes in a cross-border online transaction, where the merchants and sellers do not reside in Nigeria or are they citizens of Nigeria, the issue would be determining the applicable law to the dispute and the court with the competent jurisdiction to settle the case as the FCCPA 2018 cannot address the issues. These matters could take some time to resolve. For these reasons, alternative dispute resolution methods (ADR) and then, Online Dispute Resolution (ODR) mechanisms as laid down by the UN Commission for International Trade (UNICTRAL) in its Technical Notes on Online Dispute Resolution published in 2017 set out procedural rules for the settlement of disputes that arise from cross-border electronic commerce transactions.
The three biggest alternative dispute resolution mechanisms are Negotiation, Mediation, and Arbitration. ODR utilizes the same principles as ADR to settle disputes through an online network. ODR is the deployment of applications and computer networks for resolving disputes with ADR methods.
In conclusion, while the use of ODR in Nigeria is not well known or in operation in our laws, however, it is safe to say that the time to resort to the use of ODR is now when practically all transactions can and are being done over the internet and across borders.
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Written by Adenike Badaru for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com