ABSTRACT
This work focuses on the legal protection of consumers of
telecommunications (telecoms) services in Nigeria. The justification for it
lies in the need for consumers to be adequately protected against the service
providers. Going by the individualism ideology (caveat emptor) a consumer is
his best protector representing the age old imbalance of powers between the
service providers and consumers of telecom services, thereby making consumers
perpetually complain and express one form of discontent or the other against
the activities of the service providers. In addition to discussing the concepts
of consumer of telecoms services and consumer protection, the study aims at
examining the legal and institutional framework for protection of such
consumers. The methodology employed in the study is doctrinal through the
perusal of the relevant and available texts and literature of law. Relevant
cases as well as statutes are collated, perused and critically analysed.
Chapter one is the general introduction of the work while chapter two defines
the relevant concepts. Historical and philosophical bases of consumer
protection of telecoms services are the subject of chapter three and set the
pace for appraising the legal and institutional framework. The analysis in
chapters four and five encapsulate the extent to which the legal and
institutional frameworks help to create the rights and allow expression of
complaints and give redress to aggrieved customers as discussed in chapter six.
Chapter seven is the legal protection of telecoms consumers in some foreign
jurisdictions. By the legal model of selected forms of jurisdictions,
suggestions for improved system of protection are advocated. The findings of
the research show that the extant telecommunication and anti-competition laws
as well as other laws on consumer protection are far from adequately protecting
the consumers of telecoms services. Call billing for dialed not heard, chargeable
unsolicited text messages, high tariff rates, slamming and cramming are
antithetical to the interest of the consumers. It is recommended that the
Nigerian Communications Act should be amended to provide for specialised
telecom Dispute Settlement and Appellate Tribunal to adjudicate any dispute
between a service provider and a group of consumers. The work contributes to
the rules for legal, policy and institutional reforms for better protection of
consumer of telecom services.
CHAPTER ONE
INTRODUCTION
1.1
BACKGROUND
TO THE STUDY
Telecommunication is a vital engine for development
of any economy. It is an essential infrastructural component that promotes the
development of other sectors including agriculture, education, industry,
health, banking, defence, transportation and tourism. It is indispensable in
times of national emergency or natural disaster. It also reduces the risks and
rigors of travel. To this end, the availability of a functional and efficient
telecommunications infrastructure is a sine
qua non for any country that wants to compete in today’s global economy.
Since the inception of telecommunications
development in Nigeria, the system has progressed through various stages of
development from the primitive communications equipment in its colonial days to
the enormous variety of technologies available today. The development of
telecommunications in Nigeria began in 1886, when a cable connection was
established between Lagos and the colonial office in London. By 1893,
government offices in Lagos were provided with telephone service which was
later extended to Ilorin and Jebba in the hinterland. In 1923, the first
commercial trunk telephone services between Itu and Calabar was established.
Between 1946 and 1952 a three channel line carrier system was commissioned
between Lagos and Ibadan and was later extended to Oshogbo, Kaduna, Kano, Benin
and Enugu, thus connecting the colonial office in London with Lagos and the
commercial centres in the country with local authority offices. No doubt
problems were faced by consumers in terms of delivery of telecommunication
services in Nigeria as many towns never had commercial trunk telephone services
let alone rural areas. There was the problem of not making timely investment
for network expansion.
In
1955, small-to-medium capacity systems employing Very High Frequency (VHF) and Ultra
High Frequency (UHF) radio were introduced[1].
The telecom sector, as vital as it is to human development and advancement was
not given the necessary priority attention it deserved by successive
governments since independence. At independence in 1960, the colonial
government bequeathed about 18,724 telephone lines. The population then was put
at 42.7 million translating into a teledensity of 0.044%[2].
The focus of attention in this
period was the expansion of the network to meet the needs of fledging
commercial and industrial, and the establishment of the Nigerian External
Telecommunications (NET) Limited. Unfortunately these objectives could not be
completely realised at the end of the decade, partly because of underfunding
and partly because of the disruption caused to the economy by the Nigerian Civil
War (1967–1970). Nevertheless, preparatory work towards the establishment of
NET as a limited company started during this period as well.
During the second decade, after
independence, that is 1970–1980, efforts were concentrated on the
reconstruction and rehabilitation of the telephone equipment and other
infrastructure damaged during the civil war. During this period, the
telecommunications arm of the Department of Posts and Telecommunication was
merged with the Nigerian External Telecommunications (NET) to form in 1985 the
Nigerian Telecommunications Limited (NITEL), a limited liability company that
administered both internal and external telecommunications services in Nigeria[3].
The ground work and effort to
deregulate and liberalise the sector commenced with the promulgation of the
first Nigerian Communications Act[4]
in November 1992 and the subsequent inauguration of the first board of the
Nigerian Communications Commission (NCC) in 1993. The effort did not bear much
fruit as the law had a limiting effect on the liberalisation of the sector. The
Act still allowed NITEL to retain its monopoly over the wire line systems, long
distance transmission services and international gateway services, thereby
retaining its sole national carrier status. Furthermore, due to the fact that
the nation was under a military government the first seven years of its life,
the commission did not have the necessary freedom and powers to carry out its
functions. The rules of the game were not clear and the regulatory body that
was to act as referee neither had the autonomy nor resources to guarantee a
predictable market place for potential investors.
Problems
were faced by the consumers in terms of protection in delivery of telecommunication
services. NITEL, the government – owned
operator at the time was either unwilling or unable to handle the volume of
demand for telecommunication services by the increasing Nigerian population.
Its services when available were mostly characterised by low call completion
rates, congestion of trunk lines and exchanges and call billing errors. NITEL
also had the problems of poor system maintenance and not making timely
investment for network expansion to meet the demand for telecom services. There
were incidences of contested bills which subscribers argued they never incurred
– some complained of receiving outrageous and unbelievable bills even while
their phones were disconnected and not in use and usually high subscription fee
for obtaining phone lines. The waiting time for connection to a NITEL line was
as long as two years. In 1999, it was estimated that there were over 10 million
people on the waiting list of NITEL who had applied for telephone lines.[5]
But how far can it be said that the Nigerian
Communications Act has achieved its objectives and addressed the challenges
faced by the consumers prior to its promulgation? If it has not, what factor
accounts for its failure? And in what ways could the Act be amended and or
reformed to be able to address the challenges facing protection of consumers of
telecommunication services in Nigeria of the 21st century. The main
complaints relating to telecommunication services tend to be as follows: the
price of services (particularly the high cost of local calls on fixed lines);
network congestion; poor network coverage; failed calls (both not completed and
cut-off); phone and handset-related; loss of pre-paid credit after loading;
charges for Short Message Services (SMS) not delivered to voice-mail when the
network is congested; wrong billing (particularly with illegal use of lines);
and the quality of fixed lines; slow responses to complaints; the frequency of
“down-time”; and the slow response to repair and maintenance problems.
According to
the United States Federal Communications Commission (FCC), the most common
consumer complaints about local phone service in the US are related to billing
errors and questionable fees. Consumers file complaints with the FCC about
credits, refunds, or adjustments allegedly owed to the subscriber and about
specific line item charges. Two types of these complaints to the FCC are
“slamming” and “cramming”. Slamming is when a consumer’s service provider is
changed or switched to another company without the consumer’s permission.
Cramming on the other hand is when the consumer’s bill has unauthorised,
misleading, or deceptive charges[6].
This includes the practice of billing a consumer for services the consumer
never bargained for. These problems are as real in Nigeria as in the United
States, and the consumer is the victim of these problems. It is therefore
apposite to research into the extent the consumers of telecom services are
protected in the country.
1.2
STATEMENT OF THE PROBLEM
That there is a high incidence of substandard
products and supply of services in Nigeria is an uncontroversial truism. More
often than not, consumers of telecommunication services in Nigeria find
themselves saddled with poor network coverage, billing for dialled but not
heard calls, provided the send key had been pressed and unsolicited text
messages and calls. The supply of shoddy products and services constitutes a
big problem to the consumers. The consumer is denied proper worth for the money
spent.
In the light of the above, the
Government feels concerned about this problem. This concern is aptly
demonstrated by the various measures being taken to ensuring that the service
providers pay for offences committed by them by enacting statutes which impose
penalties for consumer-related offences. By the various statutes enacted by the
government, the law makes fair provisions for the protection of consumers of
telecommunication services in Nigeria, at least on paper. The industry is
however, not without its challenges. There are some areas where protection is
inadequate or non- existent. The disadvantaged position of consumers in their
dealing with service providers on ground of inequality of bargaining power
accentuated by the flow of information, resources and technical know-how
controlled by the service providers cannot be over- emphasised. The Nigerian
Communications Act has not satisfactorily cured these mischief in that
unsolicited call and text messages, cloning and cramming still remain the order
of the day.
1.3 LITERATURE REVIEW
A
review of relevant literature reveals scholarly and legal problems inherent in
legal protection of consumers of telecommunication services in Nigeria. A lot
is definitely wrong with the present regime of legal protection of consumers of
telecommunication services in Nigeria, against the backdrop of information
technology advancement and superhighway of the present age.
In 1984, in the
post–war period, the United Nations sought through its Universal Declaration of
Human Rights to identify a number of basic rights that should be common to all.
Not surprisingly, given the humanitarian, social and economic circumstances,
almost all of these rights relate to the behaviour of government to its
citizens. Only one clause–stating that everyone has the right of equal access
to public services–seems to have any direct bearing on the topic being
addressed. It was not until 1985 that the UN adopted Guidelines for Consumer
Protection that was later expanded in 1999[7].
Taken
in broad spectrum, Nigerian jurisprudence on the subject of legal protection of
consumers of telecommunication services is relatively sparse. While academic
exposition by way of books and journal articles particularly those on consumer
rights law are rather scanty, case reviews on competition law, telecoms and
internet law as well as self-regulatory frameworks are less than satisfactory.
Most
of the cases on the subject reflect the traditional application of defective
product law where proof of negligence is a must in Nigeria. The gap signposts
the need for legal development to match technological advancement in areas of
telecommunications and other areas that use telecommunications based tools such
as internet, electronic money transfer, e-commerce and Automated Teller Machine
(ATM).
A
lot of the literature in this subject, are those in general consumer protection
law. Among other relevant books which treated the subject of Consumer
Protection Law include Consumer Protection, freedom of contract and the law[8]
, Consumer Protection and Standard Form Contracts in Nigeria[9],
the Law of Consumer Protection and Fair Trading[10],
Historical Analysis of Consumer Protection Law in Nigeria[11],
Consumers, Producer Hegemony and the Nigerian Economy[12]
and Consumer Protection Law, Text, Cases and Material[13],
Law of Consumer Protection [14],
Consumer Protection in Nigeria Law, Theory and Policy[15],
and Law and Principles of Consumer Protection[16].
Some other learned writings and articles in Nigeria which treated the subject
of Consumer Protection Law include “Deceptive and unfair trade”[17],
“Towards an International Legal Regime of consumer Protection for developing
countries; Nigeria as a case study”[18],
Telephone and the Consumer[19].
A number of papers and addresses have been delivered
on Consumer Protection Law in relation to telecommunication and electronic
money transfer, e-commerce and Automated Teller Machine (ATM) which cannot be
possible without the assistance of telecommunications or telecommunications
based-tools, which could be telephonic, telegraphic, wireless radio messaging
or satellite telephony are, current trends and future development in
Telecommunications in Nigeria[20],
address by the Minister of Communications on the occasion of the 18th
World Telecommunication Day[21],
Contemporary Legal Issues in Electronic Commerce in Nigeria[22].
Other writings which treated Consumer Protection Law in relation to
telecommunication and electronic money transfer, e-commerce, and automated
teller machine are Enhancing Electronic Payments[23],
Analysis of the Negative Effects of the Automated Teller Machine (ATM) as a
channel for Delivering Banking Services in Nigeria[24],
Electronic Commerce Definitions[25],
Modes of Deregulation and liberalisation of Telecommunications for Africa and
Middle East[26],
Address by the Minister of Communications on occasion of the 22nd
World Telecommunication Day[27],
An empirical study of Automated Teller Machine Service and customer
satisfaction in Pakistani banks[28],
The telecommunication Revolution in Nigeria being the text of the convocation
lecture delivered at the Igbinedion University, Okada[29],
Banking services: The Emergence and Impact of Electronic banking[30],
Telecommunications in focus, 10th Anniversary Lecture for 2 way
Communications[31],
The adoption of Automated Teller Machines in an application of the theory of
diffusion of innovation[32],
Electronic Commerce: Structures and Issues[33],
Exit, Voice and Indifference: case study of consumers in the Nigerian Global
Systems for Mobile (GSM) service market[34],
Consumer Protection and Telecommunications Services in Nigeria: Regulatory and
Policy Issues[35].
In his book, Badaiki traced the
genesis of consumer protection to the Biblical Old Testament injunction[36]
where God enjoined Babylon and Israel to take care of their design and
construction of their houses lest any man falls from their houses and bring
blood upon their houses[37].
According
to him, “it is doubtful whether the customary law evolved any position on
consumer protection law strictum sensu”[38].
This contrasts with the rules that developed during the industrial age.
Indeed
in Nigeria, the first call for a deliberate push towards consumer protection
and consumerism can be found in the case of
Nigeria Bottling Co. Ltd v. Ngonadi[39],
wherein Aniagolu JSC, stated:
But
nothing appears to be elementary in this country where it is often the unhappy
lot of consumers to be inflicted with shoddy and un-merchantable goods by pretentious
manufacturers, entrepreneurs, shoddy middlemen and unprincipled retailers whose
avowed interest seem only, and always, to maximise their profits leaving
honesty a discounted and shattered commodity.
That case marked the clarion call for a radical
approach to consumer protection issues. It must be noted from the outset that
the pursuit of civil claims in civil law courts on issues bordering on
liability is tedious[40]
and sometime remedies may be quite inadequate[41].
There is the problem of burden of proof[42]
and the constant assertion by manufacturers that they use facilities and
equipment which run on fool proof mechanisms, thereby not allowing for any kind
of defect in their product[43].
There is the problem of delays in civil proceedings[44]
and the reluctance of the courts to allow claimants to rely on the doctrine of res ipsa loquitur in product liability
cases[45]
and the problem of the quantum of damages[46]
and the cost involved in pursuing litigation.
Murphy
noted:
In
consumer transactions, unfair practices are widespread: The existing law is
still founded on the principles known as caveat
emptor meaning let the buyer beware; that principle may have been
appropriate for transactions conducted in village markets. It has ceased to be
appropriate as a general rule. Now the marketing of goods and services is
conducted on an organised basis and by trained business executives. The
untrained consumer is no match for the business man who attempts to persuade
consumer to buy goods or services on terms and conditions suitable to render. The
consumer need protection by the law and this bill provide such protection[47].
Kanyip[48]
however noted:
The
existing normative and regulatory provisions in Nigeria are of very limited
impact in terms of protecting consumers. Not only is their application in
practice difficult but sometimes impossible, they are often even theoretically
indefensible. Consumers generally, lack the resources to monitor the
enforcement process that give meaning to their protection and the law is
fraught with so many short comings that often consumers lack the motivation and
courage to go through it. Adjudication is almost a gamble since a consumer can
never be certain that the verdict will be in his favour no matter how
meritorious his claims may be.
To
Adam Smith[49];
Consumer
is the sole end and purpose of production and the interest of the producer
ought to be attended to, only so far as it may be necessary for promoting that
of consumer. The maxim is so perfectly self-absurd to attempt to prove it. But
in the mercantile system, the interest of the consumer is almost constantly
sacrificed to that of the producer and it seems to consider production and not
commerce.
The case of Kano State v. Pfizer Inc.,[50]
demonstrates the general limitations of product liability law in achieving its
compensation goal. In this case, Pfizer, an American Pharmaceutical Company, conducted
a drug test on two hundred children in Kano State. As a result of the test,
eleven children died while one hundred and eighty children were left with
different deformities. The case that was first instituted in the Connecticut
State in the United State was dismissed on the ground that the forum was not convenient.
The case lasted for fifteen years but finally, it was settled out of court. The
company agreed to pay thirty five million dollars ($35, 000, 000) as
compensation to the two hundred victims affected by the drug test. The sum of
ten million dollars ($10, 000, 000) had already been paid to the legal team
that represented the Plaintiff in court and in negotiating with the company. To
each of the seven members of the disbursement committee for every sitting, one
million naira was also being paid as sitting allowances. A medical committee
was set up to conduct a deoxyribonucleic acid (DNA) test on the Claimants and
only eight out of the two hundred participants passed the DNA test. This is a
clear demonstration of the general limitations of product liability law in
achieving its compensation goal.
It should be pointed out here that
the concept of Consumer protection in Nigeria is actively a recent phenomenon.
In fact, it is a twentieth century development. Although this is also true of
other jurisdictions[51].
This does not, however, deny the validity of Badaiki’s[52]
view that the genesis of attempting to protect the consumer is as old as human
creation. If it is agreed that the
genesis of attempting to protect the consumer is as old as human creation,
emphasis was not placed on the need to protect consumers as enjoined by God
until recently. In an attempt to protect the interest of the consumer
government has enacted statutes in regulating product manufacturing and
rendering of services to meet acceptable standards. Thus, the desire to produce
or supply goods and services depends on the maintenance of minimum standards
considered to be necessary for the protection of users of the product or
services. Some of these statutes are: The Counterfeit and Fake Drugs and Unwholesome
Processed Food (Miscellaneous Provision) Act[53];
Trade Malpractices (Miscellaneous Offences) Act[54];
Weight and Measures Act[55];
Standard Organisation of Nigeria Act[56];
Food and Drugs Act[57];
Hire Purchase Act[58];
National Agency for Food and Drugs, Administration and Control (NAFDAC) Act[59];
Advertising Practitioners (Registration etc) (APR) Act[60]
and the Consumer Protection Council Act (CPC Act).[61]
The most potent of all these laws is the
Consumer Protection Council Act[62]
which provides inter alia for Consumer Protection Council:
To
seek ways and means of removing or eliminating from the market, hazardous
products and causing offenders to replace such product with safer and more
appropriate alternatives; publish from time to time, a list of products whose
consumption and sale have been restricted or not approved by the Federal
Government or Foreign Government; cause an offending company, firm, trade
association or individual to protect, compensate, provide relief and safeguard
to injured consumers or communities from adverse effect of technologies that
are inherently harmful, injurious, violent or highly hazardous; encourage the
adoption of appropriate measures to ensure that products are safe for use.
Efforts to protect the interest of
the consumer appears to have been advanced with the coming of the CPC Act. The
only statute that appears to address the issue of legal protection of consumers
of telecommunication services in Nigeria is the Nigerian Communications Act[63],
but the statute still leaves much to be desired in that the Act did not capture
unsolicited text messages and calls and consumers are made to pay for them most
especially when deactivating from the unsolicited short message service (SMS)
with the number recommended by the sender. There is also the problem of Nigeria
Communications Commission making the service providers to pay penalties for low
quality of service without the consumers who actually suffered benefiting from
the money. No doubt, these statutory
enactments are laudable, but their implementation leaves much to be desired.
This is also true of judicial approach in protecting the consumer where the
theory for the recovery by the consumer for product reliability requires
proving negligence and due care.
Another
notable issue according to Kanyip[64],
is that there are advantages and disadvantages of promotion of products and
services from both the perspectives of the producer and the consumer. From the
point of view of the producer, advertisement is useful in sales promotion in
that it boosts sales especially if it has the effect of creating brand loyalty
amongst customers and thereby causing privatised and commercialised enterprises
to record profitability. In the long run, there is its negative effect on the
consumer because it entrenches producer hegemony over the market and thus
undermines consumer sovereignty, somewhat perpetuating monopoly power. To Giwa[65],
equally devastating to the consumer are the various marketing ploys especially
sales promotions by privatised and commercialised enterprises, who in the drive
to make profit, for examples, enjoins consumers to buy a particular product and
by means of a coupon win an item more expensive than the product. Items to be
won by the consumers include television, refrigerator, cars and in extreme
cases an helicopter. Many unsuspecting consumers enter into such transactions
not knowing that most of such sales promotions amount to wager, that is, that
act of staking money or money’s worth to await the determination of an
uncertain event. A contract of gaming
and wagering is null and void.
Though
the Consumer Protection Council Act[66]
offers protection to the consumers who may have suffered loss from the use of a
product, a comparison of the Act with international best practice, reveals that
a lot has to be done to modify the Act to meet up with international standards.
In the U.K. for example, product liability directive has been transposed into
law. The legislation imposes strict liability on producers/suppliers for harm
caused by defective product. The 1999 directive was transposed in England and
Wales by the Consumer Production Council Act, 1987 (product liability)
(modification order) 2000. This means that people who have suffered loss by
defective products can sue for compensation without having to prove the
producer negligence provided that they can prove that the product was
defective. The locus classicus of
this principle is the English case of Rylands
v. Fletcher[67]
wherein it was stated that anyone who brings, collects and keeps on his
property anything likely to do damage, if it escape is liable for the
consequences of its escape. The English Court of Appeal ruled for the first
time on the terms of the Consumer Protection Act going against the trend of
judgements in lower courts that the product supplier though not negligent, the
claimant was entitled to damages under the Act[68].
The facts of the case are that the
claimant’s mother purchased in 1990 a cosy toes sleeping bag, designed to be
attached to a child’s push chair with elastic straps. Shortly after the
purchase, the claimant who was aged 12 at that time helped his mother attached
the product to his younger brother’s push chair. One of the elastic straps
slipped and lashed back. The buckle attached to the elastic strap hit him in
the eye causing serious permanent damage. The claimant sued Mother Care, the
supplier of the product, claiming damages in negligence and also under the
Consumer Protection Act. Mother Care conceded that it was the producer of the
product within the meaning of part 1 of the Act. As part of its defence, Mother
Care argued that: the product was supplied because there have been no previous
instances of this type of injury and in 1990, consumers could not reasonably
have expected the product to be designed differently so as to avoid the risk of
the type of injury; even if the products were defective, the respondent was
entitled to use the development risk defence in a product if the state of
scientific and technical knowledge at the relevant time was not such that a
producer might be expected to have discovered the defect; for the same reason,
it did not act negligently in 1990 by supplying the product in that form and
the claimant acted carelessly in trying to attach the product and was therefore
partly responsible for his own injury.
A consulting engineer retained as
an expert witness by the parties concluded that in 1990, no manufacturer of
child care products could reasonably have recognised the potential risk of this
type of accident because at that time, even experts in the safety of child care
products had not recognised the problem. The trial judge found that Mother Care
was liable for the claimant’s injuries and rejected the claim of contributory
negligence on the part of the claimant though the trial judge did not make
clear whether his ruling was based on common law negligence or strict liability
under the Consumers Protection Act or both. Mother Care appealed. The Court of
Appeal rejected Mother Care’s appeal finding that whilst Mother Care had not
been negligent, the product was defective for the purposes of part 1 of the
Consumer Protection Act. The Court of Appeal also ruled that the respondent was
not entitled to the benefit of development risks defence. The Court of Appeal
accepted the expert’s evidence that no prudent manufacturer would have
anticipated the risk at that time. Therefore, there had been no breach by
Mother Care of any common law duty of care. The Court of Appeal further held
inter alia that the producer was found liable under the consumer protection Act
strict liability provisions even though it was not negligent. The exercise of
all proper care will not necessarily protect the producer from strict liability
if a consumer is injured by a defect in the product; a manufacturer or supplier
may be liable under strict liability even if the risk could not have been
recognised at the time of supply; the development risks defence will be
available only where there has been some scientific or technical advance since
the time of supply which enables the defect to be identified.
Although the strict liability
provisions have not been encapsulated in Nigeria’s law, a customer who
institutes an action under the Consumer Protection Council Act can rely on this
case in the apparent absence of decisions on product liability in Nigeria. Reliance, however, can only be persuasive as
the judges are not bound to follow such decisions.
1.4 OBJECTIVES
OF THE STUDY
The overall aim of the study is to examine the
nature and extent of protection given by the law to the consumers of
telecommunication services in Nigeria.
The
specific objectives of the study are as follows:
a.
To discuss the concepts
of consumer and consumer protection.
b.
To highlight the problems
encountered by consumers of telecommunication services.
c.
To discuss the current
legal and institutional regime for protection of consumers of telecommunication
services in Nigeria.
d.
To identify and discuss
the provisions of the Nigerian Communications Act, other relevant statutes and
telecommunication policies in the country and their effect on consumer
protection.
e.
To examine the
telecommunication laws of some foreign jurisdictions with a view to borrowing,
if necessary, a leaf from their experiences.
1.5 RESEARCH
METHOD
The research approach is doctrinal[69].
The research methodology is analytical and historical. An indepth evaluation of
the problems of the Act is undertaken in order to achieve the objectives of
this study. The information relied on in the work is derived from primary[70]
and secondary[71]
sources. The primary sources include Nigerian statutes particularly the
Nigerian Communications Act, the Constitution of the Federal Republic of
Nigeria 1999, (as amended) as well as foreign statutes. Judicial authorities, both
Nigerian and foreign also constitute a main primary source of information. The
secondary sources include materials on the internet, text books, essays, newspapers
and magazines, articles in journals and conference proceedings (published and
unpublished).
1.6 SCOPE
AND LIMITATIONS OF THE STUDY
The study is restricted to what obtains in
telecommunications industry. Occasionally, references will be made to what
obtains in other organisations. The study is limited to the legal perspective
while appreciating the social, political, economic and commercial points of
view. Some factors which are beyond the control of the researcher have
introduced some limitations to the scope of the study. Efforts are, however made to minimise the
effects of these factors. The major limitation was that the study was largely self-sponsored
and therefore financially constrained to expand the scope of the research
topic, and undertake extensive travel for elaborate field work to administer questionnaires.
1.7 SIGNIFICANCE
OF THE STUDY
The Significance of the study is born out of the strategic but
vulnerable position of the consumers in dealing with the service providers.
Even after sector reforms and government–sponsored programs have been
implemented, telecommunication complaints are generally at the top of the
overall consumer complaints. There are inadequacies in the legal rules, not
mindful of the interventionist role of the government and its agencies. To this
end, the work is about the adjustment of power relations between the consumers
and the service providers so as to bring to the fore the need to have a legal
development to match technological advancement in areas of telecommunications;
and also to regulate and provide uniform and effective guiding principles that
would minimise customers grievances and ensure satisfactory position of telecom
services by the service providers as well as ensuring that there is a
consumer-oriented law which will encourage a non-called-billing for dialled not
heard and discourage the service providers from placing restrictions or time
limitation on validity of airtime on bonus received whenever they are doing
sales promotion so that subscribers are not compelled to utilise their call
minutes.
Furthermore, the work will also bring to light the need to amend the Nigerian
Communications Act in order to capture unsolicited text messages and calls, as
well as reflect some aspects of the laws and best practices in some foreign
jurisdictions. Such should include criminalisation of excessive charging of
tariff rates by telecom service providers and outright prohibition of
unsolicited telecommunication messages; provision of 50% discount to all calls
and other telecom uses for public schools and training institutions as well as
compulsory provision of national emergency public numbers by telecom service
providers.
1.8 ORGANISATION
OF THE WORK
The research work is divided into eight chapters,
each treating various aspects of the legal
protection of consumers of telecommunication services in Nigeria. From the
introduction in chapter one to chapter eight, the research work extensively
discusses the background to the study, concept of consumer, history and bases
of consumer protection in telecommunication services, legal frame work for the
consumers of telecoms services, regulatory frame work for the consumer of
telecoms services, rights, complaints and remedies in telecommunication
services and lessons from other jurisdictions. All the above discussed related
areas culminated in the findings, conclusions and recommendations.
Chapter one examines the background to the study,
statement of the problem, literature review, research method, scope and
limitations of the study, significance of the study, and organisation of the
work. In chapter two the concepts of consumer, consumer protection, telecommunication,
telecommunication services and service providers will be extensively discussed.
Given that these concepts are central to the study, it is necessary to
understand who is to be protected, what that protection should be, against whom
the protection is made and the quality of services to be rendered.
Chapter three examines legal history of consumer in
telecommunication services and bases of consumer protection in
telecommunication services. The chapter intends to find out the philosophical
bases of consumer protection, need for consumer protection, United Nation Guidelines
for consumer protection and policy issues in Nigeria. It will examine the
extent to which the National Telecommunications Policy provides appropriate
sanctions for anti-competitive practices by business organisation in order to
ensure a level playing ground.
Chapter four is on the legal framework
for the consumer of telecoms services. It highlights the role of civil and
criminal law in protecting the consumers whose rights are breached by service
providers. The aim is to determine whether given the activities of the legal
framework, there is virtue in regulation as a pattern for consumer protection. Chapter
five discusses the concept of regulatory framework for the consumer of telecoms
services. To achieve this, it examines self-regulatory
framework; regulatory issues; regulatory institutions such as Nigerian
Communications Commission, Consumer Protection Council and National Regulatory
Agency; telecoms consumer interest groups and Consumer Affairs Bureau. All efforts
were geared towards the assessment of an effective consumer protection regime
in the industry. Chapter six discusses consumer complaints, rights and remedies
(regulatory and administration). It also examines the redress available to the
consumers of telecommunication services in Nigeria.
Chapter seven examines lessons from other jurisdictions
on legal protection of telecom consumers. To this end, lessons from developed
and developing jurisdictions were examined. The chapter argued for law reform
and amendment of the Nigeria Communication Act so that Nigerian Communications
Commission will have power of a superior court with respect to attendance of
witnesses and enforcement of decision and also to establish Specialised Telecom
Dispute Settlement and Appellate Tribunal to adjudicate any dispute between a
service providers and a group of consumers.
Chapter eight
comprises summary, conclusion, recommendations and contributions to knowledge.
It points out the importance of protecting telecoms consumers in Nigeria, like
all other third world countries that desire to close the gap between them and
the advanced countries of the world. It further highlights that protecting
telecom consumers is imperative if the consumer is to be taken as the king. The
study establishes a great deal of merit for telecom rights. It also makes a
case for the reform and enlargement of the powers of the Nigerian
Communications Commission.
paper presented at the Annual
Conference of the Nigerian Association of Radio Science, Lagos
1988. Ayuba, A. T., “Address by the Minister of
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Africa and Middle East”, paper presented
at Africa Telecom Cairo Egypt
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A. B., “Address by the Minister of Communications" on the occasion of the
22nd
World Telecommunication
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Anniversary Lecture
for 2 way Communications Ltd., Lagos, November 1991.
[2] Ndukwe E., “The telecommunication
Revolution in Nigeria” being a paper presented at the Annual convocation ceremony of Igbinedion
University, Okada on 22nd December 2011.
[3] Attah, M. E., op.cit.
[4] Cap. N 97 LFN 2010.
[5] Ndukwe, E., op. cit.
[6] Russell, S., “Consumer Protection
in the Digital Age: Accessing Current and Future Activities”,
being a paper
presented at the Global Seminar on Quality of Service and Consumer Protection
at Geneva,
Switzerland, 31st August-1st September 2006.
[7] United Nations
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[9] Badaiki, A. D., Consumer Protection and standard form
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[10] Harvey, B. W., Parry D. I., The Law of consumer Protection and Fair
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[12] Kanyip, B. B., Consumers, Producers Hegemony and the Nigerian Economy (Kaduna Law
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[13] Oughton, D. W., A consumer Protection Law, Text, Cases and
Material (Blackstone Press Ltd.,
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[15] Kanyip, B.B., Consumer Protection in Nigeria Law, Theory
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[16] Adedeji, A., and
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[17] Badaiki, A. D., Deceptive and Unfair Trade (1988) vol. 2
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[18] Badaiki, A. D., Towards an International Legal Regime of
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[20] Attah, M. E., Current trends and future development in Telecommunications in
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[21] Ayuba, A. T.,“Address by the
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[22] Akomolede, T.I., Contemporary Legal Issues in Electronic
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[23] Ayorinde, D., Enhancing Electronic
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[25] Clarke, “Electronic Commerce
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[26] Iromantu, O. C., “Modes of
Deregulation and liberalisation of Telecommunications for Africa and
Middle East”, paper presented at Africa Telecom Cairo
Egypt April 1994.
[27] Mark, D. A. B., “Address by the
Minister of Communications on occasion” of the 22nd World Telecommunication Day Lagos, May 1990.
[28] Muhammad, A.K. An empirical study of Automated Teller Machine Service and Customer
Satisfaction
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[30] Ogunsemor, A.O. Banking services: The Emergence and Impact
of Electronic banking – The Nigeria
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[31] Salawu, R. I., “Telecommunications
in focus”, 10th Anniversary Lecture for 2 ways Communications
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1991.
[32] Wole, M.O., and Louisa, J.I. The Adoption of Automated Teller Machines in
an Application of the Theory
of Diffusion of Innovation Issues in Informing Science and Information
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[33] Zwass, v., Electronic Commerce: Structures and Issues, International
Journal of Electronic Commerce
1996.
[34] Obani, P., Exit, Voice and Indifference: case study of
consumers in the Nigerian Global Systems for Mobile
(GSM) service market, University of Benin Journal of Business Law Vol. 1,
No. 1 2013.
[35] Asagh, J.M., Consumer Protection and Telecommunications
Services in Nigeria: Regulatory and Policy
Issues, Law and Principles of Consumer Protection, NIALS, Lagos, 2013.
[36] Deuteronomy 22:8.
[37] Badaiki, A.D., Consumer protection and Standard Form contracts in Nigeria,
Chrisdom publishers
Lagos 1999. P.16.
[39] (1985)
5 SC. 317; (1985) 1 NWLR (PT.4) 739.
[40] Kanyib, B. B., “Consumer Redress”
MPJFIL VOL. 2 NO. 2 1998 pp 76-98.
[41] Ibid.
[42] Ibid.
[43] Ibid.
[44] Ibid .
[45] Ibid.
[46] Ibid.
[47] Murphy (then Australian
Attorney-General) Introducing the Trade Practices Bill at the
Common Wealth of
Australia in the protection and the Trade practices Act 1974 of Deral L, Rev.
At
286.
[48] Kanyip, B.B., Consumer Protection in Nigeria: Law, Theory and Policy, Recon Books
Ltd. Abuja,
2005 P. 36.
[49] Smith, A., Inquiry into Nature and causes of the wealth of Nation (Liberty
classics Indianapolis) 1981
P. 660.
[51] Oughton, D. W., A Consumer Protection Law, Text, Cases and
Materials (Blackstone Press Ltd.,
London) 1991 P. 11–
12.
[52] Badaiki, A. D., Towards an International Legal Regime of
Consumer Protection for Developing
Countries;
Nigeria as a case study
(1993) Justice Vol. 6 No. 4 P.43.
[53] Cap. C34 LFN 2010.
[54] Cap. T12 LFN 2010.
[55] Cap. W3 LFN 2010.
[56] Cap. S9 LFN 2010.
[57] Cap. F32 LFN 2010.
[58] Cap. H4 LFN 2010.
[59] Cap. N1 LFN 2010.
[60] Cap. A7 LFN 2010.
[61] Cap. C25 LFN 2010.
[62] Ibid.
[63] Cap. N97 LFN 2010.
[64] Kanyip, B.B., Consumers, Producer and the Nigerian Economy, International Law Centre, Kaduna
1999 p .36.
[66] Cap. C 25 LFN 2010.
[67] (1886)
K.B. 1 EX. 265.
[68] Abouzaid
v. Mother Care (U.K) Ltd. 2000 B3/00/227.
[69] Gasioku, M.O.U., “Legal Research
and Methodology”, Chenghlo Limited (2006) at 13 defined it as the research into law in a normative science.
That is, a science which lays down norms and standards for human behaviour in a specified situation or
situations, enforceable through the sanction of law.
[70] It is defined as a statement of the
law itself from a governmental entity, such as a court, legislature
and executive agency. See
Georgetown University Law Library Legal Research Definitions http://www.11.georgetown.edu/tutorials/definitions/primary
source.html accessed 21/08/2014.
[71] It is defined as materials that
discuss, explain, interpret and analyse what the law is or what it should
be. They provide extensive
citations to primary legal materials and other relevant secondary sources.
See Georgetown University Law
Library Legal Research Definitions http://www.11.georgetown.edu/tutorials/definitions/secondary
source.html accessed 21/08/2014.
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