CPC v. Coca-Cola: A case of abuse of judicial process?

Pundits haven’t ceased advancing arguments in favour of abiding merits of preserving judicial or quasi-judicial powers in administrative/statutory bodies; criticisms have also continued to trail their operations and methods, considering the less-than-savoury experience which many (individuals and corporates) have had to endure upon interfacing with some of them.

Granted, they help to implement government policies and aid expeditious resolution of disputes, among others. Granted, they’re established by enabling statutes in that regard, and are thus regarded as sine qua non to efficient running of the machinery of state all over the world.

However, the narrative of Coca Cola Nigeria Limited and its bottling partner, Nigerian Bottling Company (NBC) Limited, in the hands of the Consumer Protection Council (CPC) has tended to confirm charges to the effect that their informal procedures and near indifference to the rules of natural justice and fair hearing not only constitute their major pitfall but also invest serious question marks in their continued relevance to the cause of justice.

According to papers filed by the parties in court, on September 5, 2013, the CPC had addressed a letter titled “Notice of Complaint of Alleged Violation Pursuant to the Consumer Protection Council Act CAP C25 LFN 2004” to the managing director/ CEO of Coca Cola Nig. Ltd, Adeola Adetunji. A similar letter was also addressed to the managing director/CEO of NBC Limited, Ben Langat.

In a veiled (if not pre-determined) attempt to hold the two companies liable in what looks like negligence and breach of certain implied conditions as to quality and fitness for purpose, the CPC alleged therein that a consumer had lodged a complaint before it to the effect that on purchase of its product, ‘Sprite’, in Abuja, he discovered certain defects that raised questions about its manufacturing practices. It stated inter alia that it “received a complaint on September 3rd 2013 involving the sale to a consumer of your product, ‘Sprite’, within Abuja, FCT”. “The allegation essentially suggests that the products in question did not conform to ordinary standards of care and the implied assurances and reasonable expectation that they are of average grade, quality, and value as similar products sold under similar circumstances.”

It added that “the consumer/complainant claims he has suffered loss by not being able to enjoy or receive the benefit or actualize the full purpose for which the consumer/complainant purchased the product”, maintaining it was “commencing an investigation on this incident pursuant to its powers under sections 3, 4, 6, 8 and 18 of the CPC Act”.

The long and short of the melodrama set on course by the said letter is that by some dint of legal gymnastics, the CPC found Coca-Cola Nigeria and NBC Limited liable of the allegations lodged against them and ordered the company to pay (1) the sum of N50,000.00 to the complainant; (2) the sum of N40 million as the pecuniary civil penalties; and (3) N60 million as cost of the investigation. But far more interesting in the development is that despite the pendency of an application for a certiorari order to quash the said CPC determination, brought by the manufacturer before Honorable Justice A. R. Muhammed of a Federal High Court in Abuja, the CPC went ahead to procure the office of the Attorney General of the Federation to have it file criminal charges against the manufacturer in October 2014.

In light of the development, many Nigerians have taken to the query mode: the CPC Act, which established the council, has suddenly become a subject of great public interest. Many are now perusing the document, but are in pains to reconcile the determination of the CPC against Coco-Cola Nigeria and NBC Limited with the powers conferred upon it by its enabling statute.

The CPC had stated that the complainant in the instant case is the Ministry of Industry, Trade and Investment, which indeed is the council’s supervising ministry. It alleged that according to the complainant, there was a short-fill in the liquid content of two cans of Sprite purchased in Abuja, for which it deemed it expedient to slam hefty civil penalties against the manufacturer to the tune of N100 million. How the CPC arrived at its controversial determination has, however, remained rather curious. And the development appears to have unlocked a floodgate of legal difficulties warranting definitive judicial pronouncements.

According to Garuba Sunday Irunoje, a legal practitioner, the development raises procedural and substantive issues bordering on locus standi, natural justice and fair hearing generally, among others. “If the intendment of the framers of the Act is to protect the interest of ‘Consumers’, can the supervising ministry of the CPC itself be admitted as a proper consumer/complainant within the contemplation of section 32 of the CPC Act?” he wondered.

In other words, given the definition of ‘Consumer’, pursuant to s. 32 of the Act, as “an individual who purchases, uses, maintains or disposes of product or services”, can the Industry, Trade & Investment Ministry be correctly annexed into the conceptual legal umbrella of ‘consumer’ to be able to muster the legal right or locus standi to lodge a complaint before the CPC? In view of the fact that the CPC performs supervisory and adjudicatory functions under the direction of the Industry, Trade and Investment Ministry, is it in doubt that the council was both a prosecutor and a judge in its own cause by acting on a complaint lodged by its supervising ministry?

In contemplating these difficulties, Irunoje submitted that the procedure adopted by the CPC in hearing, investigating and determining the complaint that gave rise to the dispute between it and the two companies violates the fair hearing clause under section 36 (1) of the 1999 Constitution.

The said section 36 (1) of the Constitution provides: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” This constitutional safeguard against impartiality is also amplified in the common law doctrine of natural justice, whose second leg states: “Nemo judex in causa sua”, or rather, “nemo debet esse judex in propria causa”. Respectively, the foregoing translates as, “You cannot be a judge in your own cause”, or “No one should be both a prosecutor and a judge in a matter in which he is a party, or has an interest, or stake”.

Needless to point out, however, that these questions were hardly lost on the lawyers for Coca-Cola and NBC, who following CPC’s determination, timeously applied for an order of certiorari to quash the said controversial verdict. Lawyers for the manufacturers have maintained that claims by the CPC that Coca-Cola and NBC or their representatives failed to appear before it when summoned (for which it slammed huge civil penalties on the company) were “untrue allegations”. They maintain that the CPC seemed to have deliberately employed arm-twisting methods to limit their ability to act or comply with their orders or meet their fastidious demand. “Coca-Cola Nig. Ltd was not allowed to have access to the letter of complaint and the Sprite cans until the (very day of the) proceedings of October 22, 2013,” they stated in their affidavit evidence.

Despite this patent breach on the fair hearing rule and the pendency of Coca-Cola’s action at the Federal High Court in Abuja against the CPC, the latter did not deem it important to advert the attention of office of AGF to the pending suit. It rather goaded it to institute criminal action against the manufacturer and its chief executive officer.

“The action of the CPC is shocking, mala fide, and an affront on the integrity of our judicial system and an abuse of the judicial process,” said Gbolanha Elias (SAN), counsel to Coca-Cola.

On his part, Robert Igbinedion, also a lawyer, said the proper and bona fide action which the CPC ought to have taken when met with the complaint against Coca-Cola was to elect to be guided by the provisions of the Act establishing it, adding, “Apparently, they didn’t. It appears they nursed other motives.”

Section 2 of the CPC Act states the functions of the council to include (a) providing speedy redress to consumers’ complaints through negotiations, mediation and conciliations. But rather than pursue the route of negotiation, mediation and reconciliation in the exercise of its adjudicatory remit in the instant case, the CPC appeared to have acted as if focused on awarding a verdict that was pecuniary in nature.

It is against this background that the submission of Justice Felix Frankfurter of the US Supreme Court becomes relevant both in generally assessing the role of administrative bodies as the CPC; and in the need to subject the latter’s present controversial act to judicial review. He said: “The power which must more and more be lodged in the administrative institutions, like all powers, is prone to abuse unless its exercise is properly circumscribed and zealously scrutinized; for we have greatly widened the field of administrative discretion and thus opened the doors to arbitrariness.”

Godwin Udoma