The month of October 2022 may have gone but it will be remiss of us not to bring to your attention the favourable judgments secured by The Law Suite (TLS) in the said month in two of the matters we are handling for our Clients. One of the judgments is particularly significant as it addressed the knotty issue of no-refund policy often faced by the public when transacting or doing business with service providers and business owners in Nigeria. Before we dive into the reports, what is no-refund policy?
No Refund Policy
A No Return or No Refund Policy is simply a policy where customers or clients are informed that they are not allowed to return or get refunds for products or services they have purchased or pre-ordered. Many businesses and service providers insert a No Return or No Refund Policy in their contracts to make it difficult for customers or clients to demand refund. The recourse to “No Refund Policy” or “No Refund of Money After Payment” provision is common among business owners and service providers in Nigeria. Typically the so-called no refund policy appears as small print in tickets, receipts, invoices and standard contracts issued by service providers and business owners making it difficult for the customers or clients to notice such provision. For many others, little or no attention is paid to the implication of the exclusionary clause in contracts and business documents. It is when circumstances change or disputes arise between the parties leading to a demand for refund of money already paid or cancellation of booking, that the business owner or service provider for the first time draws the attention of the client or customer to the existence of such clause. Sometimes, customers or clients demand refund or cancellation of booking or order for other reasons even when there is no dispute. With the enactment of the Federal Competition and Consumer Protection Act, 2018 (FCCPA), the legality or otherwise of No Refund Policy is gradually becoming a subject of judicial scrutiny. The combined effect of sections 120 and 129(1)(a)(b)(iii) of the FCCPA is to outlaw the practice of no refund policy in Nigeria subject to the exception provided under the Act. The Nigerian Courts inspired by the said provisions are gradually rising to the occasion and have in recent times struck down such obnoxious practices which many business owners and service providers have used as a shield in order to escape liability for shoddy services or sometimes to arm-twist the customer or client to patronize their services.
Below are the reports on the cases recently won by TLS starting with the one on no refund policy.
SUIT NO. SCC/LAG/184/2022: EDEM EWA EKENG & ANOR V. WAKANOW.COM LIMITED
LAGOS COURT NULLIFIES NON-REFUND POLICY OF A TRAVEL COMPANY AND DECLARES THE PRACTICE ILLEGAL
The Magistrate Court of Lagos in Suit No. SCC/LAG/184/2022: Edem Ewa Ekeng & Anor v. Wakanow.com Limited has nullified the non-refund policy of Wakanow.com Limited and ordered the Company to refund the money paid by the Claimants for air tickets. The Court also awarded monetary reliefs for damages caused by the Company’s delay and failure to reschedule the flight despite payment of the sum agreed by the parties. TLS represented the Claimants in this case and the Team is led by Mr Prince Nwafuru, one of our Founding Partners.
The Claimants had in 2016 booked a flight to London using Wakanow.com’s website. All payments were made directly to Wakanow.com. Thereafter the Claimants instructed the Company to open the ticket and change the destination from London to Maryland USA which the Company did. The Claimants also paid for additional tickets and then requested that the old ticket be rescheduled to a new date together with the additional tickets to be purchased. Despite paying the sum agreed by the parties, the Company negligently failed to purchase the new tickets and also failed to reschedule the flight until the price went up. The Claimants could not travel with the old ticket as a result of the negligence of the Company. Piqued by the Defendant’s negligence, the Claimants demanded refund to enable them purchase the tickets from another source. Rather than refund the entire sum paid, the Defendant only refunded the money paid for the additional tickets and refused to refund the initial sum paid, claiming that the ticket had already been issued. The Defendant premised its refusal on its non refund policy which it claimed was written on the ticket. The Claimants sued in April 2022 to recover the money paid and also claimed damages. The Defendant in its defence challenged the jurisdiction of the Court and argued that the Claimants’ case was statute barred despite a clear evidence that the cause of action arose on 21 June 2016 when the demand for the refund was made and lapsed on May 2022 (one month after the Suit was filed). Aside the jurisdictional challenge and no refund arguments, the Defendant also argued that it is an agent of a disclosed principal (the airline) and that the Claimants ought to have claimed refund from the airline. The Claimants were represented by The Law Suite Team led by Prince I. Nwafuru.
In its ruling delivered on 05 October 2022, the Court upheld all the submissions of The Law Suite and rejected the counter arguments of the Defendant both on the jurisdictional challenge and the substantive issue. It was held that the Defendant was liable having acted negligently in failing to reschedule the ticket as agreed by the parties. The Court specifically held that the purported no refund of payment policy of the Defendant which was only communicated to the Claimants after the Claimants have made payment for the flight tickets is illegal, null, void and not binding on the Claimants.
The significance of this decision is not in the monetary value of the judgment but in the expected impact in the business environment where many consumers and recipients of services are often barred by business owners and service providers from recovering amounts paid for services not rendered or in some cases where there are changed circumstances requiring the cancellation of booking or orders.
Suit No. FHC/L/ 1227/2022: ADEOYE ADELAJA v. PDP & 2 ORS
FEDERAL HIGH COURT OF LAGOS AFFIRMS THE NOMINATION OF HON. EBENIZER KEN OBIOMA AS THE AUTHENTIC AND VALID CANDIDATE OF PDP FOR OSHODI/ISOLO II FEDERAL CONSTITUENCY IN LAGOS STATE.
THE COURT DISMISSED THE SUITS CHALLENGING THE PRIMARY AND THE SUBMISSION OF HIS NAME TO INEC AND REFUSED THE PRAYER OF THE PLAINTIFF SEEKING TO NULLIFY THE PRIMARY.
On 11 October 2022, the Federal High Court Lagos (coram: Justice Oweibo) affirmed the nomination of Hon. Ebenizer Ken Obioma as the validly elected candidate of the Peoples Democratic Party (PDP) for Oshodi/Isolo II Federal Constituency in Lagos State. The Court in its judgment dismissed the Suit filed by the Plaintiff, Mr Adeoye Adelaja who claimed to have won the election.
The Plaintiff had sought amongst other reliefs a declaration that the PDP is obliged to apply and comply with the provision of section 84(5)(C)(ii) of the Electoral Act, 2022 in the selection or nomination of its candidate for Oshodi/Isolo 2 Federal Constituency in 2023 general election. Premised on the declaratory relief, the Plaintiff sought for an order mandating PDP to forward his name as validly nominated candidate for 2023 general election and an order nullifying the forwarding of the name of Hon.Ebenizer Ken Obioma or any other person as the PDP Candidate. The Plaintiff equally sought for alternative reliefs nullifying the nomination of Hon. Obioma and an Order mandating PDP to refund the Plaintiff the sum of N20 Million being the cost of Nomination and Expression of Interest Form paid by the Plaintiff.
The PDP and the 3rd Defendant, Hon. Obioma vehemetly opposed the Suit and indeed filed robust Defence processes. The Law Suite team led by Mr Prince I. Nwafuru (a Partner at the Firm) represented Hon. Obioma in the Suit. The Law Suite had argued that the Plaintiff failed in all respects to prove his case and further demonstrated that the case of the Plaintiff was built on nothing as he failed to exhibit the result of the purported Primary held on 06 June 2022 which he claimed to have won. The crux of The Law Suite arguments is that:
- The 3rd Defendant (Hon. Obioma) was and remains the winner of the Primary election held on 22 May 2022 having scored the highest votes cast at the election as shown by the valid result sheet exhibited by the 3rd Defendant in his Counter Affidavit to the Originating Summons
- The decision of PDP to conduct repeat Primaries on 06 June 2022 across Lagos State was because of the issues that arose from the Primaries held in other Constituencies outside Oshodi/Isolo 2 Federal Constituency. The Primary held in Oshodi/Isolo 2 Federal Constituency on 22 May 2022 was and remains valid and the 3rd Defendant emerged the winner of that Election. This was further confirmed by the PDP National Working Committee (NWC) and NEC.
- The repeat Primary of 06 June 2022 which the Plaintiff premised its purported victory on, was inconclusive as shown by the INEC’s report that was exhibited by the Plaintiff and the Defendants. The INEC Report revealed that the Primary of 06 June 2022 was not monitored by INEC because of violence that characterised the whole exercise. INEC in the said report concluded that the Primary was inconclusive. It was shown that in the absence of any conclusive Primary and valid result, the case of the Plaintiff collapsed like a house of cards. The inconclusiveness of the 06 June 2022 Primary prompted the NWC and NEC of PDP to hold an emergency meeting where it resolved to agreed to rely on the Primary held on 22 May 2022 which was adjudged free and fair.
- The score sheet relied on by the Plaintiff was fake and fictitious as it did not conform with the format of the result as stipulated under the PDP Guidelines and Constitution.
- The failure to produce the result sheet of the Primary Election which he claimed to have won is not only fatal to the Plaintiff’s case but goes to show that either the Plaintiff does not have any result at all or that if he has a result which is adverse to his case.
In a well considered judgment, the Court dismissed the case of the Plaintiff and held that he was unable to present the result of the election which he purportedly won – a fundamental defect and lacuna in his case as one cannot place something on nothing and expects it to stand. The Court noted that the 3rd Defendant, Hon. Obioma not only tendered a valid result sheet he went further to exhibit other documents to show that he won the valid Primary held on 22 May 2022 and that his name was validly submitted to INEC as the authentic Candidate of PDP for Oshodi/Isolo 2 Federal Constituency. The Court also refused the alternative reliefs made by the Plaintiff to recover the sum of N20 Million he paid for the purchase of Nomination and Expression of Interest Forms.
The Court had on the same day earlier dismissed a related Suit (Suit No. FHC/L/CS/1006/2022) filed by one Mr. Adewunmi Alade Benjamin against PDP, INEC and Hon. Ken Obioma Ebenizer challenging the same Primary. Mr Benjamin in his own case had claimed that he won both the Primaries held on 22 May 2022 and 06 June 2022.
These two decisions have further established The Law Suite as a law firm with expertise in commercial litigation and political disputes.
For more information or inquiry.