COMPARATIVE ANALYSIS OF THE ENFORCEMENT OF FAIR AND UNFAIR CONTRACT TERMS UNDER THE NIGERIAN FEDERAL COMPETITION AND CONSUMER PROTECTION ACT (FCCPA) 2018

Abstract

The Nigerian Federal Competition and Consumer Protection Act (FCCPA) hereinafter referred to as the Act) which is modelled after the South African Competition Act, established two institutions for the purposes of enforcing its provisions. These are the Federal Competition and Consumer Protection Commission (FCCPC) and the Competition and Consumer Protection Tribunal (CCPT). It saddled them with the responsibility of promoting competition in the Nigerian market by eliminating monopolies, prohibiting abuse of a dominant position and penalizing other restrictive trade and business practices. The FCCPA is applicable to all commercial activities within, or having effect in Nigeria; and in order to ensure a cordial relationship and guard against power tussle between sector- specific regulators and the FCCPC, the Act mandates the FCCPC to negotiate agreements with sector specific regulators having competition and consumer protection competence to co-ordinate as well as harmonise the exercise of jurisdiction over competition and consumer protection matters within the relevant industry or sector. This paper undertook a comparative legal analysis of the enforcement mechanisms for fair and unfair contract terms across three distinct jurisdictions: Nigeria under the Nigerian Federal Competition and Consumer Protection Act (FCCPA), the United Kingdom and the Association of South-East Asian Nations (ASEAN) Jurisdictions. The study addressed the contemporary challenge of ensuring contractual fairness, particularly in consumer transactions, by examining the statutory frameworks, judicial interpretations, as well as practical enforcement realities within each region. The approach adopted was doctrinal method of legal research with references to the Act as well as other legal writings in position papers delivered at seminars, workshops and conferences; journals and textbooks as well as relevant case law. The analysis revealed that while the FCCPA provides a modern legislative foundation for scrutinising unfair terms in Nigeria, its enforcement track record as well as specific judicial tests for fairness are still developing. In contrast, the United Kingdom offers a more mature regime with a robust history of case law, primarily driven by consumer protection legislation which distinguishes between negotiated and standard terms. The ASEAN approach, which comprises ten diverse member states, presents a multifaceted picture, highlighting varying degrees of harmonization, consumer protection maturity and sector-specific regulations. The study is relevant in this contemporary time in Nigerian history because it identified best practices and enforcement gaps. Additionally, this study is relevant because several Nigerians in recent times, have complained of arbitrary inflation of prices by traders and service providers, and the traders in turn blame the currency devaluation, foreign exchange and fuel crises engendered by the recent removal of fuel subsidy for their reckless and indiscriminate actions. The findings suggested that Nigeria and other developing jurisdictions could benefit from adopting clearer statutory lists of terms presumed unfair, strengthening the proactive role of the competition and consumer protection authority and enhancing access to specialized dispute resolution mechanisms, drawing lessons from established frameworks of the United Kingdom and select ASEAN Member states.