FEDERAL COMPETITION AND CONSUMER PROTECTION ACT, 2018 – 3

Published by Law Nigeria Admin at 26th March 2019

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PART XII – REGUALTED INDSTRIES

Supremacy of the Federal Competition and Consumer Protection Act.

Notwithstanding the provisions of any other law but subject to the provisions of the constitution of the Federal Republic of Nigeria, in all matters relating to competition and consumer protection, the provisions of this Act shall override the provisions of any other law.

Designation of regulated industries

105(1) The operation by an undertaking in an industry subject to the authority of a regulatory agency set up by Act of the National Assembly or the Laws of a state is sufficient to make such an undertaking a member of a regulated industry for the purpose of this Act.

(2) In so far as this Act applied to an industry or sector of an industry that is subject to the Jurisdiction of another government agency by the provisions of any other law, in matters or conducts which affect competition and consumer protection, this Act shall be construed as establishing a concurrent jurisdiction between the commission and the relevant government agency, with the Commission having precedence over and above the relevant government agency.

(3) For the purposes of this Act, any government or regulatory agency whose mandate includes enforcement of competition and consumer protection Laws or principles is hereby recognized as a government agency for the avoidance of conflicts between the powers and functions of the Commission conferred by or under this Act and the powers and functions of any other government agency as contained in any other law, rule or regulation in force.

(4) The Commission shall negotiate agreements with all government agencies whose mandate includes enforcement of competition and consumer protection for the purpose of coordinating and harmonizing the exercise of jurisdiction over completion and consumer protection matters within the relevant industry or sector, and to ensure the consistent application of the provisions of this Act.

(5) A government agency or regulatory authority which, in accordance with the provision of an existing law or regulation, has jurisdiction in respect of an industry or sector, shall commence negotiation of agreements with the commission as anticipated in subsection (5) and shall conclude such negotiations within one year, and in respect of matters within its jurisdiction, may exercise its jurisdiction by way of such an agreement.

(6) An agreement under subsections (4) and (5) shall –

(a) identify and establish efficient procedures for the management of areas of concurrent jurisdiction;

(b) promote cooperation between the regulatory agency and the commission;

(c) preserve the coordinating and leadership role of the commission in relation to the exercise of the concurrent power as envisaged under this act

(d) provide for the exchange of information and the protection of confidential information, and

(e) be published in the federal government Gazette.

(7) Where the negotiations contemplated by subsections (4) and (5) are inconclusive, the areas of disagreement shall be referred to the attorney general and minister of justice in the case of a large merger, for advise on public interest grounds.

(8) In resolving the areas of disagreement as provided in (7), the attorney –General of the federation and minister of justice shall take into account the advice of the tribunal/

Exemption of regulated industries

106 (1) Whenever it is alleged that a provision of this act has been contravened by an undertaking acting or operating within any regulated industry designated under section 105 of this act, the undertaking against whom such allegation is made must demonstrate that the conduct in question was ordered or required by a regulatory agency possession jurisdiction over that regulated industry.

(2) Where the undertaking against whom an allegation referred to in subsection (1) is made demonstrates that the conduct in question was ordered or required by a regulatory agency possessing jurisdiction over the regulated industry, the commission may, subject to the agreement referred to in section 105, proceed with the issuance of a cease and desist order prohibiting the undertaking concerned from further violations of the provisions of this Act.

PART XIV – SPECIFIC OFFENCES AGAINST COMPETITON

Price – fixing

(1) An undertaking shall not directly or indirectly –

(a) By agreement, threat, promise or any other means, attempt to influence or conspire to influence upward or discourage the reduction of, the price at which any other undertaking supplies, offers to supply or advertises any goods or services; or

(b) refuse to supply goods or services to or otherwise discriminate against any undertaking because of the pricing policy of that undertaking.

(2) The provision of subsection (1) (a) shall not apply if the undertaking attempting to influence the conduct of another undertaking and that other undertaking are interconnected undertakings as defined by this Act or, as the case may be, principal and agent.

(3) For the purposes of subsection (1) (a), the publication by an undertaking, other than a retailer, of any notice or advertisement that mentions a resale price of any goods or services constitutes an attempt to influence upward the selling price of those goods or services, unless the resale price is so expressed as to make it clear to a reasonable person that the goods or service may be sold at a lower price.

(4) An undertaking that violates any of the provisions of this section commits an offence and –

(a) Where the undertaking is a natural person, is liable on conviction to imprisonment for a term not exceeding three years or to payment of a fine not exceeding #10,000,000.00 or to both the fine and imprisonment;

(b) Where the undertaking is a body corporate, is liable on conviction to a fine not exceeding 10% of its turnover in the preceding business year, and

(c) In the case of a corporate body referred to in paragraph (b), each director of the body corporate is liable to be proceeded against and on conviction dealt with as specified in paragraph (a)

Conspiracy

(1) An undertaking shall not conspire, combine, agree or arrange with another undertaking to –

(a) limit unduly the facilities for transporting, producing, manufacturing, storing or dealing in or supplying any goods or services;

(b) prevent, limit or reduce unduly, the manufacture or production of any goods or services or to unreasonably enhance the price of any goods or services;

(c) unduly reduce competition in the production, manufacture, purchase, barter, sale, supply, rental or transportation of any goods or services or in the price of personal or property insurance; or

(d) Otherwise unduly restrain or injure competition.

(2) Nothing in subsection (1) applies to a conspiracy, combination, agreement or arrangement which relates only to a service and to standards of competence and integrity that are reasonably necessary for the protection of the public –

(a) In the practice of a trade or profession relating to the service; Or

(b) In the collection and dissemination of information relating to the service.

(3) An undertaking that violates any provision of this section commits an offence and where the undertaking is –

(a) a natural person, is liable on conviction to imprisonment for a term not exceeding three years, or to payment of a fine not exceeding N10,000,000.00 or to both fine and imprisonment;

(b) a body corporate, is liable on conviction to a fine not exceeding 10% of its turnover in the preceding business year;

And

(c) a body corporate referred to in paragraph (b), each director of the body corporate is liable to proceeded against and on conviction dealt with as specified in paragraph (a)

Bid-rigging

(1) Subject to subsection (2), no two or more undertakings shall enter into an agreement whereby

(a) One or more of them agree not to submit a bid response to a call or request for bids or tenders; or

(b) as bidders or tenderers, they submit, in response to a call or request, bids or tenders that are arrived at by agreement between or among themselves.

(2) This section shall not apply in respect of an agreement that is entered into or a submission that is arrived at only by undertaking each of which, in respect of every one of the others, is an affiliate.

(3) An undertaking that violates any provision of this section commits an offence and where the undertaking is –

(a) a natural person, is liable on conviction to imprisonment for a term not exceeding three years, or to payment of a fine not exceeding N10,000,000.00 or to both fine and imprisonment;

(b) a body corporate, is liable on conviction to a fine not exceeding 10% of its turnover in the preceding business year and

(c) a body corporate referred to in paragraph (b), each director of the body corporate is liable to the proceeded against and on conviction dealt with as specified in paragraph (a)

Obstruction of investigation or inquiry

Any person, who, in any manner, impedes, prevents or obstructs any investigation or inquiry by the commission under this Act commits and offence and is liable, on summary conviction, to imprisonment for a term of not less than two years or to a fine of not less than N2,000,000.00 or to both the fine and imprisonment.

Offence against records.

111(1) An undertaking that –

(a) refuse to produce any document or supply any information when required to do so by the Commission under this Act.

(b) destroys or alters any document or causes a document to be destroyed or altered, or

(c) intentionally withholds the production of a document within his possession or control, Commits an offence under this Act.

(2) An undertaking that commits an offense under subsection (1), where the undertaking is a –

(a) natural person, is liable on conviction to imprisonment for a term not exceeding three, or to a payment of a fine not exceeding N10,000,000.00 or to both the fine and imprisonment;

(b) body corporate, is liable on conviction to a fine not exceeding 10% of its turnover in the preceding business year, and

(c) body corporate referred to in paragraph (b), each director of the body corporate is liable to be proceeded against and on conviction dealt with as specified on paragraph (a)

Giving of false or misleading information

112 An undertaking that gives to the commission or an authorized officer of the commission, any information which the undertaking knows to be false to be false or misleading commits an offence and where the undertaking is a –

(a) natural person, is liable on conviction to imprisonment for a term not exceeding two years, or to a payment of a fine not exceeding N10,000,00.00 or to both the fine and imprisonment;

(b) body corporate, is liable on conviction to a fine not exceeding 10% of its turnover in the preceding business year; and

(e) body corporate referred to in paragraph (b), each director of the body corporate is liable to be proceeded against and on conviction dealt with as specified in paragraph (a)

Failure to attend or give evidence

113(1) A person who has been required to appear before the Commission and –

(a) without reasonable excuse, refuses or fails to appear, or

(b) refuses to take an oath or to make an affirmation as a witness or to answer a question put to him.

Commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three years, or to a fine not exceeding N10,000,000.00 or to both fine and imprisonment.

(2) The commission may prosecute or refer violations of criminal offences created under this Act to the office of the attorney – general of the Federation and minister for justice fo prosecution and imprisonment.

PART XV – CONSUMERS’ RIGHTS

Right to information in plain and understandable language

114(1) The producer of a notice, document or visual representation that is required under this Act or any other law, to be produced, provided or displayed to a consumer must produce, provide or display that notice, document or visual representation –

(a) in the prescribed form, if any, for that notice, document or visual representauon; or

(b) in plain language, if no form has been prescribed for that notice, document or visual representation.

(2) For the purpose of this Act, a notice, document or visual representation is in plain language if it reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance, and import of the notice, document or visual representation without undue effort, having regard to –

(a) the context, comprehensiveness and consistency of the notice, document or visual representation;

(b) the organization, form and style of the notice, document or visual representation;

(d) the use of any illustrations, examples, headings or other aids to reading and understanding.

(3) The commission may publish guidelines on methods for assessing whether a notice, document or visual representation satisfies the requirements of subsection (1) and (2).

Disclosure of price of goods or services

(1) An undertaking shall not display any goods or services for sale without adequate displaying to the consumer a price of those goods or services.

(2) For the purposes of this subsection, a price is adequately displayed to a consumer if, in relation to any particular goods or services, a written indication of the price, expressed in the currency of the federal republic of Nigeria, is annexed or affixed to, written, printed, stamped or located upon, or otherwise applied to the goods or services or to any band, ticket, covering, label, package, reel, shelf or other things used in connection with the goods or services, or on which the goods or services are mounted for display or exposed for sale, or published in relation to the goods or services in a catalogue, brochure, newspaper, circular or similar publication available to the consumer, or to the public generally.

(3) An undertaking shall not require a consumer to pay a price for any goods or services higher than the displayed price or those goods or services, or if more than one price is concurrently displayed higher than the lower or lowest of the prices so displayed.

Product libelling and trade descriptions

116(1) For the purposes of this section, a trade description is applied to goods if its is –

(a) applied to the goods, or to any covering, label or reel in or on which the goods are packaged, or attached to the goods;

(b) displayed together with, or in proximity to, the goods in a manner that is likely to lead to the brief that the goods are designed or described by that description; or

(c) is contained in any sign, advertisement, catalogue, brochure, circular, wine list, invoice, business letter, business paper, or other commercial communication on the basis of which a consumer may request or order the goods.

(2) An undertaking shall not knowingly apply to any goods a trade description that is likely to mislead consumers as to any matter implied or expressed in that trade description or alter, deface, cover, remove or obscure a trade description or trade mark applied to any goods in a manner calculated to mislead consumers.

(3) An undertaking shall not supply, offer to supply or display any goods if the undertaking knows, reasonably could determine, or has reason to suspect, that –

(a) a trade description applied to those goods is likely to mislead consumers as to any matter implied or expressed in that trade description or

(b) a trade description or trade mark applied to those goods has been altered.

Disclosure of reconditioned or second-hand goods

117 An undertaking that offers or agrees to supply, or supplies, any goods that have been used or are second – hand or have been re-conditioned, re –built or re –made, must apply a conspicuous notice to those goods stating clearly that they have been used or are second – hand or have been re-conditioned, re – built or re-made.

Sales records

118 Except where it is impracticability to do so, an undertaking shall provide a written record of ach transaction to any consumer to any consumer to whom goods or services are sold or supplied, and include in the record at least

(a) the undertaking’s full name, or registered business name;

(b) the address of the premises at which, or from which, the goods or services were sold or supplied;

(d) a name or description of any goods or services supplied or to be supplied;

(e) the unit price of any particular goods or services supplied or to be supplied;

(f) the quantity of any particular goods or services supplied or to be supplied;

(g) the total price of the transaction, before any applicable taxes;

(h) the amount of any applicable taxes; and

(i) the total price of the transaction, including any applicable taxes.

Consumer’s right to select suppliers

An undertaking shall not require, as a condition of offering to supply or supplying any goods or services, or as a condition of entering into an agreement or transaction, that a consumer shall –

(a) Purchase any other particular goods or services from that undertaking.

(b) enter into an additional agreement or transaction with the same undertaking or a s=designated third party, or

(c) agree to purchase any particular goods or services from a designated third party, unless the undertaking can demonstrate that the convenience to the consumer in having those goods or services bundled outweighs the limitation of the consumer’s right to choice, or that the bundling of those goods or services results in economic benefit for the consumer.

Consumer’s right to cancel advance reservation , booking or order

120 (1) A consumer shall have the right to cancel any advance booking, reservation or order for any goods or services, subject to a reasonable charge for cancellation of the order or reservation by the supplier or service provider.

(2) For the purpose of this section, a charge is unreasonable if it exceeds a fair amount in the circumstances, having regard to –

(a) the nature of the goods or services that were reserved, booked or ordered;

(b) the length of notice of cancellation provided by the consumer;

(c) the reasonable potential for the supplier or service provider, acting diligently, to find an alternative consumer between the time of receiving the cancellation notice, and the time of the cancelled reservation, booking or order; and

(d) the general practice of the relevant industry

(3) A supplier or service provider may not impose any cancellation fee in respect of a booking, reservation or order if the consumer is unable to honor the booking, reservation or order if the consumer is unable to honor the booking, reservation or order because of the death or hospitalization of the person for whom, or for whose benefit the booking reservation or order was made.

Consumer’s right to choose or examine goods.

(1) Notwithstanding any statement or notice to the contrary, a consumer or potential consumer is not responsible for any loss or damage to any goods displayed by a supplier, unless the loos or damage results from action by the consumer amounting to gross negligence or recklessness, malicious behavior or criminal conduct.

(2) Where goods are displayed in or sold from open, a consumer has the right to select or reject any particular item from that stock before completing the transaction.

(3) Where a consumer has agreed to purchase solely, on the basis of a description or sample, or both provided by the supplier, the goods delivered to the consumer shall in all material respects and characteristics, correspond to that which an ordinary alert consumer would have been entitled to expect based on the description, or on a reasonable examination of the sample, as the case may be.

(4) Where the supply of goods is by sample, as well as by description, it is not sufficient that any of the goods correspond with the sample, if the goods do not also correspond with the description.

Consumer’s right to return goods

In addition to the consumer’s right to return unsafe or defective goods under any law or enactment, the consumer may return goods to the supplier and receive a full refund of any consideration paid for those goods, if the supplier has delivered –

(a) goods intended to satisfy a particular purpose communicated to the supplier and within a reasonable time after delivery to the consumer, the goods have been found to be unsuitable for that particular purpose; or

(b) goods that the consumer did not have an opportunity to examine before delivery, and the consumer has rejected delivery of the goods within a reasonable time after delivery to the consumer for the reason that the goods do not correspond with description, sample or that they are not of the type and quality reasonably contemplated in the sales agreement.

General standards for the marketing of goods and services

123 (1) A producer, importer, distributor, retailer, trader or service provider shall not, in pursuance of trade and for the purpose of promoting or marketing, directly or indirectly, goods or services make any representation to a consumer –

(a) in a manner that is likely to imply any false or incorrect representation concerning those goods or services;

(b) that Is reasonably misleading or likely to be misleading in any material respect concerning those goods and services;

(i) the nature, properties, advantages or uses of the goods or services,

(ii) the manner in, or condition on, which those goods or services may be supplied,

(iii) the price at which the goods or service may be supplied, or the existence of, or relationship of the price to, any previous price, or competitor’s price for comparable or similar goods or services;

(iv) the sponsoring of any event, or

(V) any other material aspect of the goods or services;

(d) in the form of a statement, warranty or guarantee of performance, efficacy or length of life of products that is not based on an adequate and proper test of the goods or services, the proof of which lies on the person making the representation;

(e) in a form that purports to be a warranty or a guarantee of any goods or services, or a promise to replace, maintain or repeat an article or any part thereof or to repeat or continue the service until it has been achieved a specified result, if the form of purported warranty, guarantee or promise is materially misleading or there is no reasonable prospect that it will be carried out;

(f) to falsely represent to the public in the form of a statement, warranty or guarantee that services are of a particular kind, standard, quality or quantity, or are supplied by any particular undertaking or any undertaking of a particular trade, qualification or skill;

(g) that is materially a misleading representation to the public concerning the price at which particular goods or services or like goods or services have been, are or will be ordinarily supplied.

(2) For the purpose of this Act, the following types of representations shall be deemed to be made to the public by, and only by, the undertaking who cause it to be expressed, made or contained, that is to say, a representation that is –

(a) expressed on goods or services offered or displayed for sale;

(b) expressed on anything attached to, inserted in or accompanying goods offered or displayed for sale, their wrapper or container, or anything on which the goods are mounted for display or sale;

(d) made in the course of selling goods or services to the ultimate consumer; or

(e) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner made available to a member of the public.

(3) Where the undertaking referred to in subsection (2) is outside Nigeria, the representation shall be deemed to be made –

(a) in a case described in subsection (2) (a) (b) or (e) by the undertaking that imported the goods or services; and

(b) in the case described in subsection (2) (c) by the undertaking that imported the display into Niger.

Right to fair deal

124 (1) An undertaking or any person acting on its behalf shall not use physical force, coercion, undue influence or pressure, harassment, unfair tactics or any other similar conduct against any person in connection with –

(a) marketing of any goods or services;

(b) supply of goods or services to a consumer;

(d) demand for, or collection of, payment for goods or services by a consumer; or

(e) the conduct of a legitimate business transaction.

(2) In addition to any conduct contemplated in subsection (1), an undertaking or any person acting on its behalf shall not knowingly to take advantage of the fact that a potential consumer was substantially unable to protect the consumer’s own interests because of physical or mental disability, illiteracy, ignorance, inability to understand the language of an agreement, or any other similar factor.

False, misleading or deceptive representations

125(1) Where in the marketing of any goods or services an undertaking or any person acting on its behalf by words or conduct –

(a) directly or indirectly expresses or implies a false, misleading or deceptive representation concerning a material fact to a consumer or prospective consumer, or

(b) Fails to correct an apparent misapprehension on the part of a consumer or prospective consumer, amounting to a false, misleading or deceptive representation or permit or require any other person to do so,

The undertaking is liable for damages to any person damages, and shall be ordered to make monetary restitution.

(2) A person acting on behalf of a supplier of any goods or services shall not –

(a) falsely represent that the person has any sponsorship, approval or affiliation, or

(b) engage in any conduct that the supplier is prohibited from engaging in under subsection (1)

Representation test and publication testimonials

126(1) An undertaking shall not, for the purpose of promoting, directly or indirectly, the supply or use of any goods or services or any business interest, make a representation to the public that a test as to the performance, efficacy or length of light of the goods or services has been made by any person or publish a testimonial with respect to the products, unless it can establish the matters specified in subsection (2).

(2) The matter referred to in subsection (1) are –

(a) that the representation or testimonial was previously made or published by the person by whom the test was made or the testimonial was given, as the case maybe; or

(b) that before the representation or testimonial was made or published, it was approved and permission to make or publish it was given in writing by the person who made the test or gave the testimonial, as the case may be, and it accords with the representation or testimonial previously made, published or approved.

Unfair, unreasonable or unjust contract terms

(1) An undertaking shall not –

(a) offer to supply, supply or enter into an agreement to supply, any goods or services at a price that is manifestly unfair, unreasonable or unjust or on terms that are unfair, unreasonable or unjust;

(b) market any goods or services, or negotiate, enter into or administer a transaction or an agreement for the supply of any goods or services, in a manner that is unfair, unreasonable or unjust; or

(c) require a consumer, or other person to whom any goods or services are supplied at the direction of the consumer to waive any rights assume any obligation or waive any liability of the undertaking, on terms that are unfair, unreasonable or unjust, or impose any term as a condition of entering into a transaction.

(2) Without limiting the generality of the provision of subsection (1), a transaction or agreement, a term or condition of a transaction or agreement, or a notice to which a term or condition is purportedly subject, is unfair, unreasonable or unjust if –

(a) it is excessively one-sided in favor of any person other than the consumer or other person to whom goods or services are to be supplied;

(b) the terms of the transaction or agreement are so adverse to the consumer as to be inequitable;

(c) the consumer relied upon a false, misleading or deceptive representation or a statement of opinion provided by or on behalf of the undertaking that supplied the goods or services concerned, to the detriment of the consumer;

Notice required for certain terms and conditions.

128(1) Any notice to consumers or potential consumers or provision of a consumer agreement, which purports to –

(a) limit in any way the risk or liability of an undertaking supplying goods or services or any other person,

(b) constitute an assumption of risk or liability by the consumer,

(c) impose an obligation on the consumer to indemnify an undertaking supplying goods or services or any other person for any cause; or

(d) be an acknowledgement of any fact by the consumer,

Shall be drawn to the attention of the consumer in a conspicuous manner and form that is likely to attract the attention of an ordinarily alert consumer having regard to the circumstances.

(2) Before the consumer enters into the transaction, or is required or expected to offer consideration for the transaction or agreement, the consumer shall be given adequate opportunity in the circumstances to receive and comprehend the provision or notice.

Prohibited transactions, agreements, term and conditions

129(1) An undertaking shall not make a transaction or agreement subject to any term or condition if –

(a) its general purpose or effect is to defeat the purposes and policy of this Act, mislead or deceive the consumer, or subject a consumer to fraudulent conduct;

(b) it directly or indirectly purports to –

(i) waive or deprive a consumer of a right to return defective goods or any right set out in this Act,

(ii) set aside or over ride the effect of any provision of this Act,

(iv) authorize the undertaking to do anything that is unlawful under this Act, and

(v) or fail to do anything that is required under this Act;

(i) limit or exempt the undertaking from liability for any loss directly or indirectly attributable to the gross negligence of the undertaking or any person acting for or controlled by the undertaking,

(ii) constitute an assumption of risk or liability by a consumer for the said loss,

(iii) impose an obligation on a consumer to pay for damage,

(iv) otherwise assume the risk of handling any goods displayed by the supplier

(d) it falsely expresses an acknowledgement by the consumer that before an agreement was made, no presentations or warranties were made in connection with the agreement by the undertaking or a person a person acting on behalf of the undertaking or the consumer has received goods or services, or a document that is required by this Act to be delivered to the consumer; and

(e) it expresses an agreement by the consumer to –

(i) deposit with the undertaking, or with any other person at the direction of the undertaking, an identity document, credit or debit card, bank account or automatic teller machine access card, or any similar identifying document or device, and

(ii) provide a personal identification code or number to be used to access an account.

(2) A purported transaction or agreement, provision, term or condition of a transaction or agreement, or notice to which a transaction or agreement is purported to be subject, is void to the extent that it contravenes the provisions of this section.

Rights pertaining to the quality and safety of goods and services

(1) When an undertaking agrees to perform any service for or on behalf of a consumer has a right to-

(a) the timely performance and completion of those services, and timely notice of any unavoidable delay in the performance of the services;

(b) performance of the services in a manner and quality that reasonable persons are generally entitled to expect;

(c) the use, delivery or installation of goods that are free of defects and of a quality that persons are generally entitled to expect, if the goods are required for the performance of the services; and

(d) the return of any property or control over any property of the consumer in at least as good a condition as it was when the consumer made it available to the undertaking for the purpose of performing the services, having regard to the circumstances of the supply, and specific criteria or conditions agreed between the undertaking and the consumer before or during the performance of the services.

(2) Where an undertaking fails to perform a service to the standards contemplated in subsection (1), the consumer may require the undertaking to either-

(a) remedy any defect in the quality of the services performed or goods supplied; or

(b) refund to the consumer a reasonable portion of the price paid for the services performed and goods supplied, having regard to the extent of the failure

Consumer’s rights to safe, good quality goods

(1) Every consumer has a right to receive goods that-

(a) are reasonably suitable for the purposes for which they are generally intended;

(b) are of good quality, in good working order and free of defects;

(c) will be useable and durable for a reasonable period of time, having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply; and

(d) comply with any applicable standards set by industry sector regulators.

(2) In addition to the right set out in subsection (1), if a consumer has specifically informed an undertaking of the particular purpose for which the consumer wishes to acquire any goods, or the use of which the consumer intends to apply those goods, and the undertaking ordinarily offers to supply such goods or acts in a manner consistent with being knowledgeable about the use of those goods, the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that the consumer has indicated.

Implied warranty of quality

132.(1) In any transaction or agreement pertaining to the supply of goods to a consumer, there is an implied warranty that the goods shall comply with the requirements and standards contemplated in section 131 (1) and (2) of this Act.

(2) Within three months after the delivery of any goods to a consumer, the consumer may return the goods to the undertaking that supplied those goods, without penalty and at the undertaking’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in section 131 (1) of this Act and the undertaking shall either repair or replace the failed, unsafe or defective goods or refund to the consumer the price paid by the consumer for the goods.

Safety monitoring and recall

(1) The Commission shall promote the development, adoption and application of industry-wide codes of practice providing for effective and efficient systems to-

(a) receive notice of consumer complaints or reports of product failures, defects or hazards; the return of any goods because of a failure, defect or hazard personal injury, illness or damage to property caused wholly or partially as a result of a product failure, defect or hazard and other indication of failure, defect or hazard;

(b) monitor the sources of information con template in paragraph (a), and analyse the information received with the object of detecting or identifying any previously undetected or unrecognized potential, risk, to the public from the use of or exposure to those goods;

(d) notify consumers of the nature, causes, extent and degree of the risk pertaining to those goods; and

(e) if particular goods are unsafe, recall those goods for repair, replacement or refund.

(2) Where the Commission has reasonable grounds to believe that any goods may be unsafe, or that there is a potential risk to the public from the continued use of or exposure to the goods, and the undertaking that produced, distributed or imported those goods has not taken any step required by an applicable code contemplated in subsection (1), the Commission by written notice, may require that undertaking to recall the goods on any term required by the Commission.

PART XVI – DUTIES OF MANUFACTURERS, IMPORTERS, DISTRIBUTORS AND SUPPLIERS OF GOODS AND SERVICES

Duly to label goods properly

A manufacturer, importer or distributor of goods shall label or describe the goods in a manner that will be easily traceable to the manufacturer; importer or distributor.

Duty to withdraw hazardous goods from the market

(1) Upon becoming aware of any unforeseen hazard arising from the use of goods already placed on the market, the manufacturer or distributor of such goods shall notify the general public immediately of such risk or danger and cause such goods to be withdrawn from the market.

(2) An undertaking that violates the provision of section 134 of this Act or subsection (1) commits an offence and-

(a) where the undertaking is a natural person, is liable on conviction to imprisonment for a term not exceeding three years or to payment of a fine not exceeding ₦10, 000,000.00 or to both the fine and imprisonment;

(b) where the undertaking is a body corporate, is liable on conviction to a fine not exceeding 10% of its turnover in the preceding business year;

(3) In the case of a body corporate referred to in subsection (2)(b), each director of the body corporate is liable to be proceeded against and on conviction dealt with as specified in subsection (2) (a).

(4) Where a consumer suffers loss or injury by then violation of any person of provision of section 134 of this Act or subsection (1), the consumer shall have a right to be awarded compensation by the Commission.

Liability of defective goods

(1) Where a damage is caused wholly or partly by defective goods or the supply of a service, the undertaking that supplied the goods or service is liable for the damage.

(2) For the purpose of this Act, damage includes personal injury and damage to the consumer’s property.

(3) An undertaking that supplied the defective goods or service is liable whether or not the user or consumer bought the goods or service from or entered into any contractual agreement with the undertaking.

(4) A person affected by the defective goods or services has the right to sue under this section.

(5) The liability of any undertaking under this section shall not be excluded or restricted.

Liability arising from sale or supply of goods not to be excluded

(1) In the case of goods of a type ordinarily supplied for a private use or consumption, where loss or damage arises from the goods proving defective while in consumer use or results from the negligence of an undertaking concerned in the manufacture or distribution of the goods, liability for the loss or damage cannot be excluded or restricted by reference of the goods.

(2) For the purpose of this section-

(a) goods are to be regarded as “in consumer use” when a person is using them or has them in his possession for use, otherwise than exclusively for the purposes of a business and

(b) anything in writing is guarantee if it contains or purports to contain some promise or assurance (however worded or presented) that defects will be made good by complete or partial replacement, or by repair, monetary compensation or otherwise.

Liability for breach of implied obligations by law

(1) Liability for breach of the obligation arising from a seller’s implied undertaking as to title not be excluded or restricted by reference to any contract term.

(2) As against a person dealing as a consumer, liability for breach of the obligation arising from seller’s implied undertakings as to conformity of goods with description or sample, or as to their quality or fitness for a particular purpose, shall not be excluded or restricted by reference to any contract term.

(3) As against a person dealing otherwise than a consumer, the liability specified in subsection (2) may be excluded or restricted by reference to a contract term only if the term satisfies the requirement of reasonableness.

Miscellaneous contracts under which goods pass

(1) Where the possession or ownership of goods pass under or in pursuance of a contract, subsections (2), (3) and (4) apply as regards the effect, if any, to be given to contract terms excluding or restricting liability for breach of obligation arising by implication of law from the nature of the contract.

(2) As against a person dealing as a consumer, liability in respect of the goods’ correspondence with description or sample or quality or fitness for any particular purpose shall not be excluded or restricted by reference to any contract term.

(3) As against a person dealing otherwise than as a consumer, liability may be excluded or restricted by reference to a contract term only if the term satisfies the requirement of reasonableness.

(4) Liability in respect of-

(a) the right to transfer ownership of the goods or give possession, or

(b) the assurance of quiet possession to a person taking goods pursuant to a contract, shall not be excluded or restricted by reference to any contract term, except if the term satisfies the requirement of reasonableness.

Liability for misrepresentation

Where a contract contains a term which excludes or restricts any liability to which a part of a contract may be the subject by reason of any misrepresentation made before the contract was made, or any remedy available to another party to the contract by reason of such a misrepresentation, that term shall have no effect.

Evasion by means of secondary contract

(1) A person is not bound by any contract term prejudicing or taking away the person’s rights arising under, or in connection with, the performance of another contract, so far as those rights extend to the enforcement of another’s liability which this Act prevents that other from excluding or restricting.

(2) This Act prevents-

(a) the exclusion or restriction of any liability;

(b) making any liability or its enforcement subject to restrictive or onerous conditions;

(c) excluding or restricting any right or remedy in respect of the liability or subjecting a person to any prejudice in consequence of the person pursuing any such right or remedy; and

(d) excluding or restricting rules of evidence or procedure.

(3) An agreement in writing to submit present or future differences to arbitration is not to be treated under this Act as excluding or restricting any liability.

Supply of services

(1) A contract is a contract for the supply of a service for the purposes of this Act whether or not goods are also transferred or to be transferred, or bailed or to be bailed by way of hire, under the contract and whatever is the nature of the consideration for which the service is to be carried out.

(2) For the purpose of this Act, a contract for apprenticeship is not a contract for the supply of a service.

(3) In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.

Implied term about time for execution of contract

Where under a contract for the supply of a service where the supplier is acting in the course of a business, the time for the service to be carried out is not fixed by the contract, left to be fixed in a manner agreed by the contract or determined by the course of dealing between the parties, it is implied that the supplier will carry out the service within a reasonable time.

Exclusion of implied terms

(1) Where a right, duty or liability would arise under a contract for the supply of a service, it may be negated or varied by express agreement or by the course of dealing between the parties or by such usage as binds both parties to the contract provided that an express term does not negate a term implied by the section unless it is inconsistent with it.

(2) A supplier of service shall not, while dealing with a consumer, exclude or restrict its liability for breach of any term implied under sections 142 (3) and 143 of this Act.

(3) Nothing in this section shall prejudice any rule of law which imposes on the supplier a duty stricter than that imposed by section 143 of this Act.

Onus of proof

Where it is alleged that goods or services are defective, the onus of proof shall lie on the undertaking that supplied the goods or services.

PART XVII – ENFORCEMENT OF CONSUMERS’ RIGHTS

Enforcement of rights by a consumer

(1) A consumer may seek to enforce any right under this Act, a transaction or agreement, or otherwise resolve any dispute with an undertaking that supplied the goods or services to the consumer by-

(a) referring the matter directly to the undertaking that supplied the goods or services;

(b) referring the matter to the applicable industry sector regulator with jurisdiction, if the undertaking is subject to the jurisdiction of the regulator; or

(2) Notwithstanding the provisions of subsection (1), an aggrieved consumer can directly approach a court with appropriate jurisdiction to seek redress

Conclusion by industry sector regulator

Where an industry sector regulator concludes that there is no reasonable probability of the parties resolving their dispute through the process provided for in the relevant industry code, the industry sector regulator may terminate the process by notice to the parties and the party who referred the matter to the industry sector regulator may then file a complaint with the Commission.

Enforcement of rights by the Commission

(1) A consumer shall file complaint with the Commission in the prescribed manner and form, alleging that an undertaking has acted in a manner inconsistent with the provisions of this Act.

(2) The Commission shall directly initiate a complaint concerning any allegedly prohibited conduct on its own motion, an industry sector regulator or an accredited consumer protection group.

(3) Upon initiating or receiving a complaint under this Act, the Commission may-

(a) issue a notice of non-referral to the complaint in the prescribed form, if the complaint appears to be frivolous or vexatious or does not allege any fact which would constitute grounds for a remedy under this Act;

(b) refer the complaint to an industry sector regulator with jurisdiction over the matter for investigation or resolution; or

(4) At any time during investigation, the Commission may designate one or more persons to assist the inspector conducting the investigation.

(5) After receiving a report of an investigation into a complaint, the Commission shall-

(a) issue a notice of non-referral to the complaint in the prescribed form;

(b) make an order; or

Consent order

(1) Where a matter has been investigated by the Commission, and the Commission and the respondent agree on the proposed terms of an appropriate order, the agreed terms shall be made on the order of the Commission.

(2) The Commission may, if it deems fit, register the order in a court of competent jurisdiction and the Court, without hearing any evidence, may confirm that agreement as a consent order.

(3) An order of the Commission or a consent order confirmed pursuant to the provision of this section may include an award of damages to the complainant.

Compliance notice

(1) The Commission may issue a compliance notice in the prescribed form to an undertaking or association of undertakings whom the Commission on reasonable grounds believes has engaged in prohibited conduct, provided that before issuing a notice to a member of a regulated industry, the Commission shall consult the industry sector regulator that issued a licence to that regulated entity.

(2) A Compliance notice shall set out-

(a) the undertaking or association of undertakings to whom the notice applies;

(b) the provisions of this Act that have not been complied with;

(d) steps that are required to be taken and the period within which those steps shall be taken; and

(e) the penalty that may be imposed under this Act if those steps are not taken.

(3) A compliance notice issued pursuant under this section remains in force until it is set aside by a court, or until the Commission issues a compliance certificate upon being satisfied that there has been sufficient compliance with the compliance notice.

(4) If an undertaking or association off undertakings to whom a compliance notice has been issued fails to comply with the notice, the Commission shall-

(a) shut down or close any premises from which the notice continues to be breached until the breach or non-compliance is remedied;

(b) impose the appropriate administrative fine; or

Redress by civil society groups

(1) The Commission may collaborate with, facilitate, or otherwise support any of the following carried out by a consumer protection group-

(a) consumer advice and education activities and publications;

(b) research, market monitoring, surveillance and reporting;

(d) representation of consumers, either specifically or generally, in court;

(e) alternative dispute resolution through mediation or conciliation; and

(f) participation in national and international associations, conferences or forums concerned with consumer protection matters.

(2) An accredited consumer protection group may-

(a) commence or undertake any act to protect the interest of a consumer individually, or of consumers collectively, in any matter of before any forum contemplated in this Act; and

(b) intervene in any matter before any forum contemplated in this Act, if the interests of consumers represented by that group are not otherwise adequately represented in that forum.

(3) In addition to any other authority set out in this Act, an accredited consumer protection group may direct a generally stated concern or complaint to the Commission in respect of any matter within the purpose of this Act

(4) The Commission may accredit a consumer protection group if that group –

(a) functions predominantly to promote or represent the interests o all or a specific category of consumers generally;

(b) is committed to achieving the purposes of this Act; and

(5) The Commissioner may impose reasonable conditions for the accreditation of a consumer protection group to provide the objectives of this Act and shall monitor the effectiveness of any such accredited consumer protection group and may reasonably require any accredited consumer protection group to provide information necessary for monitoring purposes.

Redress by the court

Where upon an investigation by the Commission of a complaint by a consumer, it is proved that –

(a) The consumer’s right has been violated; or

(b) a wrong has been committed by the way of trace, 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 Commission may impose, have a right of civil action for compensation or restitution in a court of competent jurisdiction.

Power to obtain satisfactory written assurance

(1) Where it appears to the Commission that an undertaking has in the course of business persisted in a course of conduct which is detrimental to the interests of consumers, the Commission shall use its best endeavors to obtain from the undertaking concerned a satisfactory written assurance that it will refrain from a continuation of that course of conduct.

(2) Where the Commission is unable to obtain from the undertaking in question the assurance referred to in subsection (1), or if that undertaking has given such assurance and it appears to the Commission or the States office that the undertaking has failed to observe the assurance, the Commission shall cause proceedings to be commenced against such undertaking in a court of competent jurisdiction to refrain the undertaking from continuing that course of conduct.

(3) The Commission may order a temporary closure of any premises of facilities reasonably believed to be carrying on in a manner detrimental to the interest of consumers until the Commission is satisfied otherwise or pending the commencement of action.

Compensation order

(1) A court by or before which an undertaking is convicted of an offence under this Act may, in addition to dealing with such undertaking in any other way, make an order requiring the undertaking to pay compensation for any personal injury, loss or damage resulting from that offence of such amount as it may deem fit or assessed by competent professional authority.

(2) In determining whether to make a compensation order against any undertaking, and in determining the amount to be paid by any undertaking under such an order, the court shall have regard to the means of the undertaking if appear or are known to the court.

Contravention of consumer rights

Except where otherwise provided for in this Act, any person who contravenes any consumer right commits an offence under this Act and –

(a) in the case of a natural person, is liable on conviction to imprisonment for a term not exceeding five years, or to payment of fine not exceeding ₦10,000,000.00 or to both the fine and imprisonment;

(b) in the case of a body corporate, is liable on conviction to a fine of not less than ₦100,000,000.00 or 10% of its turnover in the preceding business year whichever is higher; and

(c) in the case of a body corporate referred to in paragraph (b) of this section, each director of the body corporate is liable to be proceeded against and dealt with as specified in paragraph (a).

PART XVIII – MISCELLANEOUS PROVISIONS

Limitation of suit against the Commission and the Tribunal

(1) Subject to the provisions of this Act, the provisions of the Public Officers Protection Act applies in relation to any suit instituted against any member or employee of the Commission or the Tribunal.

Cap. P41 LFN, 2004

(2) further to the provisions of subsection (1), a suit shall not lie or be instituted in any court against any member of the Commission, the Secretary or any other officer or employee of the Commission or the Chairman, members, staff, officers or employees of the Tribunal for any act in pursuance or execution of the provisions of this Act or any other enactment or law, or of any public duty or authority in respect of any alleged neglect or default in the execution of the provision of this Act or such enactment or law, duty or authority unless –

(a) it is commenced within three months next after the act, neglect or default complained of; or

(b) in the case of continuation of damage or injury, within six months next after the damage or injury ceases.

(3) A suit shall not be commenced against any member of the Commission, the Secretary or any other officer or employee of the Commission or the chairman, members, staff, officers or employees of the Tribunal before the expiration of a period of 30 days after a written notice of intention to commence suit shall have been served upon the Commission or Tribunal by the intending [plaintiff, or the agent or other lawful representative of the plaintiff.

(4) The notice referred to in subsection (3) shall clearly state, the –

(a) cause of action;

(b) particulars of the claim;

(d) reliefs sought by a plaintiff.

Issuance of notices by or on behalf of Commission

(1) Any notice given by the Commission under, or for the purpose of this Act shall be –

(a) given in writing, under, the seal of the Commission signed by the Executive Chairman, or by one or more of the members of the Commission, or by any person purporting to act under the direction of the Commission; and

(b) served in accordance with section 158 of this Act on the person or persons primarily concerned or on any person or persons deemed by the Commission to represent the person or persons primarily concerned

(2) All documents purporting to be signed by or on behalf of the Commission or to be sealed with the seal of the Commission shall, in all courts and in all proceedings under this Act, be deemed to have been so signed or sealed with due authority unless the contrary is established.

Service of notice

(1) Any notice or document required or authised to be served on or given to any person for the purpose of this Act may be served or given by delivering it to that person, or by leaving it at that person’s usual or last known place of residence or business or at the address specified by that person in any notice application, or other document made, given or tendered to the Commission under this Act, or by posting it by registered mail to the person at that place of residence or business or at that address.

(2) Where any notice or other document is sent to a person by registered mail, then, unless the contrary is shown, it shall be deemed delivered to the person when it would have been delivered in the ordinary course of posting a mail, unless the contrary established.

(3) in proving the delivery contemplated under subsection (2), it shall be sufficient to prove that there is return post office slip showing actual delivery.

(4) Where, for any purpose under this Act, a notice or document is required to be served on an undertaking, the notice or document may be served on the secretary, executive officer, manager, or other officer holding a similar position in the undertaking and for the purpose of this Act, service on an association or body shall, unless otherwise directed by the Commission, be deemed to be service on all persons or undertakings who are members of the association or body or who are represented on the association or body by those members.

Offences under this Part

(1) Subject to the provision of this Act, a person shall not –

(a) without reasonable excuse, refuse or fail to comply with a notice issued under sections 157 and 158 of this Act;

(b) in purported compliance with such a notice, furnish information, or produce a document, or give evidence, knowing to be false or misleading; or

(c) resist, obstruct, or delay an employee of the Commission acting pursuant to a warrant issued under section 30 (3) of this Act.

(2) A person shall not attempt to deceive on knowingly mislead the Commission in relation to any matter before it.

(3) A person, having been required to appear before the Commission pursuant to the provision of section 29 (2) of this Act, shall not, without reasonable excuse, refuse –

(a) or fail to appear before the Commission to give evidence;

(b) to take an oath or make an affirmation as a witness; or

(4) Subject to the provision of subsection (3), a person who violates any of the provisions of this section commits an offence and is liable on summary conviction –

(a) in the case of a natural person, to a fine not exceeding ₦1, 000,000.00 or to a term of imprisonment not exceeding three months, or to both the fine and imprisonment; and

(b) in the case of a body corporate, to a fine not exceeding ₦10,000,000.00.

Decisions of the Commission to be in writing

(1) Any finding or decision given by the Commission under or for the purpose of this Act shall be sufficiently given in writing under the seal of the Commission or if signed by one or more members of the Commission or by an officer or employee of the Commission authorised for that purpose.

(2) A copy of a finding or decision of the Commission, certified to be true copy by an officer or employee of the Commission authorised in that behalf to certify copies determinations or decisions of the Commission shall be received in all courts as evidence of the determination or decision.

(3) A document purporting to be a copy of determination or decision of the Commission and certified to be true copy in accordance with subsection (2), unless the contrary is established, shall be deemed to be a copy and to be so certified.

Delegation by the Commission

(1) The Commission may delegate any of its powers subject to such conditions and restrictions as it may deem fit, and the delegation may be made either generally or in relation to any particular matter or class of matters.

(2) A person to whom the Commission delegates its power shall be either a member or an officer of the Commission.

(3) Subject to any general or special direction given or condition or restriction imposed by the Commission, any person to whom any power or function is delegated may exercise the power or perform the function in the same manner and with the same effect as if it had been conferred directly by this Act.

(4) Any person purporting to act pursuant to any delegation under this section shall be presumed to be acting in accordance with the terms of the delegation, in the absence of proof to the contrary.

(5) Delegation of any power or function under this section shall not prevent the exercise of that power or performance of that function by the Commission.

(6) Until it is revoked or amended, every delegation shall continue in force according to its terms.

Civil or criminal proceedings in respect of any action of the Commission

(1) No proceedings, civil or criminal, shall lie against the Commission for anything it may do or fail to do in the course of the performance or intended performance of its functions, unless it is shown that the Commission acted without reasonable care or bad faith.

(2) No civil proceedings shall lie against any member of the Commission, or any officer or employee of the Commission, for anything that member, officer or employee may do or say or fail to or so or say in the course of carrying out of the functions of the Commission, unless it is shown that the person acted without reasonable care or in bad faith.

(3) A person shall not be excused from –

(a) complying with any replacement to furnish information, produce documents, or give evidence under this Act;

(b) appearing before the Commission;

(c) answering any question or producing any document, on the grounds that to do so might tend to incriminate that person of another person.

(4) Expect as may be required under any law, rule or regulation, no court or person is entitled to require any member of the Commission, or any officer or employee of the Commission or any other person at any meeting of the Commission, to divulge or communicate any information furnished or obtained, documents produced, obtained or tendered, or evidence given, in connection with the function of the Commission.

(5) Anything said, or information furnished or document produce or tendered, or evidence given by any person to the Commission shall be privileged in the same manner as if that statement, information, document, or evidence were made, furnished, produced or given in proceedings in a court.

Power to make regulations

(1) The Commission may make regulations and issue guidelines and notices for the effective implementation and operation of the provisions of this Act, and in particular, prescribing –

(a) the procedures to be followed under this Act with regard to applications, notices to and proceedings of the Commission;

(b) the forms of applications and related documents required for the purposes of this Act;

(d) how information required can be obtained or accessed to confidential information.

(2) The regulations, guidelines and notices referred to in subsection (1) may include procedural and enforcement rules, and regulations or guidelines –

(a) for the application of Part VII of this Act prohibiting restrictive agreements;

(b) for the application of Part IX of this Act prohibiting abuse of a b]dominant position;

(d) on the assessment of Mergers under Part XII of this Act;

(e) on the consumer protection regulation under Parts XV-XVII of this Act;

(f) on market definition;

(g) on leniency programme; and

(h) any other regulation, guideline and notice as may be needed for the implementation of this Act.

Application of other enactments.

The provisions of any other enactment, including the Investment and Securities Act, regulations or subsidiary laws in force relating to or connected with the subject matter of this Act shall be read with such modifications as are necessary to bring them in conformity with the provisions of this Act.

Repeals and saving

Cap. C35, LFN, 2004

(1) The Consumer Protection Council Act, Cap. C25, Law of the Federation of Nigeria, 2004, section 118, 119, 120, 121, 122, 124, 124, 125, 126, 127 and 128 of the Investment and Securities Act, Cap. 125, Laws of the Federation of Nigeria, 2004 are repealed.

(2) Without prejudice to section 6 of the Interpretation Act, the repeal of the Act specified in subsection (1), shall not affect anything done under or pursuant to the Act.

(3) There shall be vested in the Commission all assets, funds, resources and other immovable property which before the commencement of this Act, were vested in the Consumer Protection Council established under the repealed Act.

(4) All rights, interest, obligations and liabilities of the Consumer Protection Council under the repealed enactment in place before the commencement of this Act under any contract or instrument, or in law or equity shall, by virtue to this Act, be assigned to and vested in the Commission established under this Act.

(5) Any contract or instrument referred to in subsection (4), shall be of the same force and effect against or in favour of the Commission established under this Act and shall be enforced as fully and effectively as if, instead of the Consumer Protection Council under the repealed Act, the Commission established under this Act had been named or had been a party.

(6) The Commission established under this Act shall be subject to all obligations and liabilities to which the Consumer Protection Council under the repealed Act was subject to before the commencement of this Act.

(7) Any proceeding or course of action pending or existing before the commencement of this Act against the Consumer Protection Council under the repealed Act in respect of any right, interest, obligation or liability of the Consumer Protection Council under the repealed Act may be continued, or as the case may require, be commenced and the determination of any court of law or other authority or person may be enforced by or against the Commission established by this Act to the same extent that such course of action or determination might have continued, or enforced by or against the Consumer Protection Council under the repealed Act.

(8) Any regulation, order, bye-law or notice made or issued or deemed to be made or issued by, or for the purposes, of the Consumer Protection Council under the repealed Act existing before the commencement of this Act shall be deemed to have been made or issued by or fr the purpose of the Commission established under this Act and shall continue in force until revoked or amended subject to such modifications as may be applicable to the Commission established under this Act.

(9) As from the commencement of this Act, any disciplinary proceeding pending or existing against any staff or employee of the Consumer Protection Council shall be continued and completed by the Commission established under this Act.

Transitional provisions

The provisions of this Act shall have effect with respect to matters arising from the transfer by this section to the Commission of the property of the Council before this act, and with respect to the other matters mentioned in the Second Schedule to this Act.

Interpretation

(1) In this Act –

“acquiring undertaking” means an undertaking that –

(a) as a result of a merger within the meaning of section 93 of this Act would directly and indirectly acquire, or establish, direct or indirect control over the whole or part of the business of another undertaking; or

(b) as a result of a merger within the meaning of section93 of this Act has direct or indirect control over the whole or part of the business of an undertaking referred to in paragraph (a).

“Act” means the Federal Competition and Consumer Protection Act, 2017;

“agent” means a person who is authorised to act for another person (“the principal”) through employment or by contract, whether express or implied;

“agreement” includes a contract, arrangement, understanding, written or oral and a concerted practice;

“authorised officer” means any person appointed as such by the Commission for the purposes of implementation of the provisions of this Act;

“business” includes any activity that is carried on for gain or reward, or in the course of which goods or services are acquired or supplied or any interest in land is acquired or disposed of, otherwise than free of charge

“business secret” means trade, business or industrial information that belong to a person which has a particular economic value and is not generally available to or known by others;

“close corporation” means a corporation whose shares are not publicly traded and are held by a limited number of persons;

“Code of Conduct” means a set of moral principles or rules of conduct or behavior drawn up by the Commission for the Commission, its employee and a person acting through the authority of the Commission;

“company” includes any entity registered under the Nigeria Companies and Allied Matters Act or the laws of any other country;

“complainant” means a person who initiates a complain;

“Commission” means the Federal Competition and Consumer Protection Commission established under section 3 (1) of this Act;

“concerted practice” means a practice involving direct or indirect contacts between competitors falling short of an actual agreement;

“consumer” includes any person –

(a) who purchases or offers to purchase goods otherwise than for the purpose of resale but does not include a person who purchases any goods for the purpose of using them in the production or manufacture of any other goods or articles for sale; or

(b) to whom a service is rendered;

“court” means the Court of Appeal;

“dealer” means a person who buys goods or services for resale;

“document” means a document in any form, whether signed or otherwise authenticated by it maker or not, and includes any –

(a) writing on any material;

(b) information recorded or stored by means of any tape-recorder, computer, or other device, and any material subsequently derived from information so recorded or stored;

(c) label, making, or other writing that identifies or describes anything of which it forms part, or to which it is attached by any means;

(d) book, map, plan, graph, or drawing; and

(e) photograph, film, negative, tape, or other device in which one or more visual images are embodied so as to be capable(with or without the aid of some other equipment) of being reproduced;

“enterprise” means any person involved in business;

“exclusive dealing” means any practice whereby an undertaking as a condition of –

(a) supplying goods and services to a customer –

(i) requires the customer to deal only or primarily in goods or services supplied or designed by undertaking or its nominee, or refrain from dealing in a specified class or kind of goods or services, except as supplied by the undertaking or its nominee, or

(ii) induces a customer to met such condition by offering to supply goods or supply goods or services to the customer on more favourable terms or conditions if the customer agrees to meet that condition;

(b) purchasing a specified class or kind of goods or services from a supplier, requires the supplier to refrain from supplying the same class or kind of goods or services to other undertakings.

“Executive Chairman” means the Executive Chairman of the Commission;

“Executive Vice-Chairman” means the Chief Executive of the Commission;

“Federal” refers to the Federal Republic of Nigeria;

“function” includes powers and duties;

“give effect to”, in relation to a provision of a contract, arrangement or understanding, includes:

(a) doing an act in pursuance of or in accordance with that provision; and

(b) enforcement or purport to enforce that provision;

“goods”-

(a) when used with respect to particular goods, includes any other goods that are reasonably capable of being substituted for them, taking into account ordinary commercial practice or geographical, technical and temporal constraints;

(b) includes –

(i) ship, aircraft, and vehicles,

(ii) minerals, trees and crops, whether on, under, or attached to land or not,

(iii) gas and electricity;

“Government of the Federation” means the Federal, State and any of the Local Governments of the Federation;

“judge” means Judge of the Court of Appeal;

“members of the Commission” means the Executive Chairman and the Commissioners of the Commission;

“merger” means a transaction falling under the definition of section 93 of this Act;

“Minister” means, unless otherwise stated, the Minister responsible for trade matters;

“President” means the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria;

“person”, includes any natural or legal person, whether incorporated or not;

“prescribed” means prescribed by regulations under this Act or by the Commission;

“price” includes any _-

(a) charge or fee or valuable, consideration in any form, whether direct or indirect; and

(b) consideration that in effect relates to the acquisition or supply of goods or services or the acquisition or disposition of any interest in land, although ostensibly relating to any other matter or thing;

“principal” means a person who authorizes or empowers another person to act as its representative or agent;

“products” includes goods or services;

“Public Service Rules” means the version of the Public Service Rules currently in force;

“respondent” means a person against whom a complaint is made;

“restrictive practices” means practice in restraint of trade or which otherwise hinder competition;

“retailer” means a person who sells goods or services to consumers;

“repealed enactment” includes sections 118, 119, 120, 121, 122, 123, 124, 125, 126, 127 and 128 of the Investment and Securities Act, Cap. I24 Laws of the Federation of Nigeria, 2004 and the Consumer Protection Council Act Cap. C25 Laws of the Federation of Nigeria, 2004;

“service” includes –

(a) a service of any description, whether industrial, trade, professional or any other service; and

(b) the sale of goods, where the goods are sold in conjunction with the rendering of a service;

“sale” includes advertisement for sale, display for sale, and offer for sale and “sell”;

“selling”, and “sold” have corresponding meanings;

“share” means a share in the share capital of a company or other body corporate, whether or not it carries the right to vote at general meetings, and includes-

(a) a beneficial interest in any such share;

(b) a power to exercise, or control the exercise of, a right to vote attaching to any such share that carries the right to vote at meetings of the company;

(d) a perpetual debenture and perpetual stock;

“State office” means an official position, division or agency of a Local, state of Federal Government;

“supplier” means a person who supplies goods or services to another person;

“supply” in relation to –

(a) goods, includes supply, or re-supply by way of gif, sale, exchange, rent, lease, hire, or hire purchase; and

(b) services, includes provide, grant, or confer and “supply” as a noun, and “supplied” have corresponding meanings;

“target undertaking” means an undertaking which as a result of a merger within the meaning of section 93 of this Act –

(a) the whole or part of whose business would be directly or indirectly controlled by an acquiring undertaking; or

(b) would directly or indirectly transfer control of the whole or part of, its business to an acquiring undertaking;

“turnover” means the amount of money taken by the business in a determined period;

“trade” includes any business, industry, profession, occupation, activity of commerce or undertaking relating to the supply or acquisition of goods or services or to the disposition or acquisition of any interest in land;

“Tribunal” means the Competition and Consumer Protection Tribunal established under section39 (1) of this Act;

“undertaking” includes any person involved in the production of, or the trade in, goods, or the provision of services;

(2) In this Act, a reference to “engaging in conduct” shall be read as a reference to doing or refusing to do any act, including the entering into, or the giving effect to a provision of, a contract or arrangement.

(3) In this Act –

(a) a reference to the “acquisition of goods” includes a reference to the acquisition of property in, or right in relation to, goods in pursuance of a supply of the goods;

(b) a reference to “the supply or acquisition of goods or services” includes a reference to agreeing to supply or acquire goods or services;

(c) a reference to “the supply or acquisition of goods” includes a reference to the supply or acquisition of goods together with other property or services or both; and

(d) a reference to “the supply or acquisition of goods” includes a reference to the supply or acquisition of services together with property or other services or both.

(4) For the purpose of this Act, any two undertakings or associations of undertakings are to be treated as affiliated if –

(a) one of them is an undertaking of which the other is a subsidiary, as the subsidiary is understood under the provision of the Companies and Allied Matters Act, Cap. C20, Laws of the Federation of Nigeria, 2004;

(b) both of them are subsidiaries (within the meaning of those sections) of the same undertaking; or

(c) both of them are affiliated with undertakings that, in accordance with paragraph (a) or (b) of this subsection, are affiliated

(5) In this Act, “competition” means workable or effective competition in relation to the supply of goods in any given market and unless the context otherwise requires, references to the lessening of competition include references to the hindering or preventing of competition.

(6) For the purpose of this Act, the effect on competition in a market shall be determined by reference to all factors that affect competition in the market, including competition from goods or services supplied or likely to be supplied by undertakings not resident or not carrying on business in Nigeria.

(7) For the purpose of this Act –

(a) a provision of a contract or arrangement shall be deemed to have had, or to have, a particular purpose; if –

(i) the provision was or is included in the contract or arrangement or is required to be given, for that purpose or purposes that included or include that purpose, and

(i) that purpose was or is a substantial purpose;

(b) a person is deemed t have engaged, or to engage, in conduct for a particular reason if that reason or for purposes or reasons that included or include that purpose or reason, and that purpose or reason was or is a substantial purpose or reason.

(8) In this Act, a reference to –

(a) a contract shall be construed as including a reference to a lease of, or a license in respect of, any land or a building or part of a building, and shall be so construed notwithstanding any express reference in this Act to the lease or licence, but does not mean a reference to the memorandum of association or articles of association of a company;

(b) making or entering into a contract, in relation to a lease or licence, shall be read as a reference to granting or taking the lease or licence; and

(c) a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by or entitled to the benefit of, any provision contracted in the lease or licence.

(9) For the purposes of this Act, any contract or arrangement entered into by an association or body is deemed to have been entered into by all the persons or undertakings who are members of the association or body.

(10) Nothing in subsection (9) shall apply to any member of an association or body who –

(a) expressly notifies the association or body in writing that he disassociates himself from the contract, or arrangement or any provision thereof;

(b) establishes that he had no knowledge and could not reasonably have been expected to have had knowledge of the contract, arrangement, or undertaking.

(11) In this Act, a reference to –

(a) Federal Government means the Federal Government of the Federal Republic of Nigeria;

(b) State Government means the Government of any of the States that constitute the territories of the Federal Republic of Nigeria, as recognised by the Constitution of the Federal republic of Nigeria, 1999.

(12) Every reference in this Act to the term, “market” is reference to a relevant market in Nigeria for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them and the meaning of the term relevant market shall be based on examination of demand substitutability, supply substitutability and potential competition.

(13) For the purpose of this Act, the term –

(a) “regulatory agency” means any Government agency established to regulate the terms and conditions for demand and supply of goods and services in any given industry and in this respect, the regulatory agency in question is one established either by the Federal or State Government;

(b) “regulated industry” means an industry which is designated as such by the Commission and which is under the regulatory authority of a regulatory agency.

(14) For the purpose of this Act, the term, “professional association” means the professional associations mentioned in the First Schedule to this Act

Citation

This Act may be cited as the Federal Competition and Consumer Protection Act, 2018.

SCHEDULES

FIRST SCHEDULE Section 167 (14)

PROFESSIONAL ASSOCIATIONS

The associations and their governing bodies established by the under listed enactments are professional associations for the purposes of this Act-

(a) Architects (Registration, etc.) Act, Cap. A19, Laws of the Federation of Nigeria, 2004;

(b) Institute of Chartered Accountants Act, Cap. I11, Laws of Federation of Nigeria, 2004;

(d) Engineers (Registration, etc.) Act, Cap. B11, Laws of the Federation of Nigeria, 2004;

(e) Estate Surveyors and Valuers (Registration, etc.) Act, Cap. E13, Laws of the Federation of Nigeria, 2004;

(f) Legal Practitioners Act, Cap. L11, Laws of Federation of Nigeria, 2004;

(g) Medical and Dental Practitioners Act, Cap. M8, Laws of Federation of Nigeria, 2004;

(h) Nursing and Midwifery (Registration, etc.) Act, Cap. N143, Laws of Federation of Nigeria, 2004;

(i) Pharmacists Commission of Nigeria Act, Cap. P11, Laws of Federation of Nigeria, 2004;

(j) Quantity Surveyors (Registration, etc.) Act, Cap. Q1, Laws of Federation of Nigeria, 2004;

(k) Surveyors Registration Commission of Nigeria Act, Cap. S18, Laws of Federation of Nigeria, 1990;

(l) Town Planners (Registration, etc.) Act, Cap. T7, Laws of Federation of Nigeria, 2004;

(m) Veterinary Surgeons Act, Cap. V3, Laws of Federation of Nigeria, 2004; and

(n) any other professional association created by any law and designated as such by the Commission, provided that any designation of an association as a professional association shall be published by the Commission by regulations for the purpose of inclusion in this Schedule.

SECOND SCHEDULE Section 166 (2)

TRANSITIONAL PROVISIONS

Transfer of assets

(1) All Assets and funds which immediately before the commencement of this Act were vested in the Consumer Protection Council (hereinafter referred to as “the Council) shall by virtue of this Act be vested in the Federal Competition and Consumer Protection Commission herein after referred to as “the Commission”)

(2) All bonds, hypothecations, securities, deeds, contracts, instruments, documents, and working arrangements with respect to the assets transferred, that subsisted immediately before the commencement of this Act and to which the Council was a party shall be as fully effective and enforceable against or in favour of the Commission as if, instead of the Council, the Commission had been named therein.

(3) Any cause of action or proceeding which existed or was pending with respect to the assets transferred by or against the Council immediately before commencement of this Act, shall be enforced or continued, as the case may be, by or against or in favour of the Commission in the same way that it might have been enforce or continued by or against the Council had this Act not been passed.

(4) No action or other proceeding shall be commenced against the Commission in respect of an employee or asset that has been transferred to the Commission, if had there been no transfer, the time for commencing the action or other proceeding would have expired.

(5) Nothing in this Act and nothing done as a result of a transfer under subparagraph (1) of this paragraph shall create any new cause of action in favour of –

(a) a holder of a debt instrument that was issued by the Council before the commencement of this Act;

(b) a party to a contract with the Council that was entered into before the commencement of this Act.

(6) Any guarantee or surety-ship given or made by the Federal Government or any other person in respect of any debt or obligation of the Council, and which was effective immediately before the transfer of the principal debt or obligation, shall remain fully effective against the guarantor or surety on and after the transfer date in relation to the payment of the debt or the performance of the obligation, as the case may be, by the Commission, to which the principal debt or obligation was transferred.

Transfer of employees

(1) Upon the commencement of this Act, such number of persons employed by the Council, as may be required by the Commission shall be deemed to be staff of the Commission and shall be transferred to the service of the Commission on a merit and value basis and on terms not less favourable than those enjoyed immediately prior to the transfer.

(2) The service rendered by an employee transferred under subparagraph (1) of the Council shall be deemed to be service with the Commission for the purpose of determining employment related entitlements as specified in the relevant laws of employment in Nigeria.

(3) Until such time as conditions of service are drawn up by the Commission –

(a) the terms and conditions of service applicable to employees of the Council shall continue to apply to every person transferred to the Commission as if every such person were still in the service of the Council; and

(b) the Commission shall continue to contribute towards any pension scheme to which the Council was contributing in respect of persons in the employment of the Council prior to the transfer date.

(4) Nothing in this paragraph shall operate to –

(a) prevent any employee of the Council from resigning or being dismissed from service; and

(b) create an entitlement for any employee of the Council to become an employee of the Commission.

Directions to the Council

(1) The Minister may give the members of the Board of the Council directions in writing in order to ensure the proper transfer of the assets of the Council to the Commission and the Council shall without delay comply with every such direction.

(2) Without derogating from subparagraph (1), directions given under that subparagraph may provide for –

(a) the cessation of all or any of the functions of the Council;

(b) the termination of any contract entered into between the Council and any person, provided that no such direction shall authorise the Council to breach the provision of any such contract; and

(c) the production of any report and the provision of any information concerning the conduct of the Council or the members of the Board of the Council or anything done by or on behalf of the Council or the members of the Council.

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