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IT is proposed to comment on the
decision by the High Court in two
cases: Acquah v. The Republic1 and
Adom v. The Republic2, and also
the Import and Exports (Special
Licence) Regulations, 1980 (L.I.
1248), all of which deal with the
issue of consumer protection which
may broadly be defined to include
the plentiful supply of consumer
goods for the satisfaction of the
consumer as well as the usage of
the law as an instrument to
maintain standards of quality and
to regulate prices of consumer
goods aimed at a greater
protection for the buying and
consuming public. Consumer
transactions cover a wide field.3
They range from consumer services
and bailments to banking,
insurance and travel.
Since the last two decades,
increasing prominence has been
given in Ghana by successive
governments to the necessity for
protecting the ordinary consumer
in his day to day dealings with
the business community. The plight
of the ordinary purchaser of goods
in an era of shortages or scarcity
of goods with its attendant
kalabuleism4 on the part of
suppliers of consumer goods may be
said to account for the increasing
governmental concern for the
consumer.
A
consumer is a person who does not
either manufacture, produce or
supply what he buys for his use
and consumption. In other words,
he is one who obtains consumer
goods for his own private use and
consumption, such goods being
obtained under a contract of
sale.5 Thus, 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
purpose of a business.6
Consumer protection is one problem
area that has been identified as
critical and echoed in virtually
every government policy since the
1960s. It has acquired some
prominence for various reasons:
First the country does not have
enough foreign exchange to import
all of the goods to go round the
consuming and buying public.
Secondly, our factories do not
produce at full capacities. Thus,
goods are in short supply.
Thirdly, certain activities of
traders such as hoarding and
smuggling have worsened the
consumer’s plight. Fourthly, the
business sector is dominated by
traders who have not only
monopolised the distributive
outlets, but also, sell at high
prices largely with impunity.
There is, therefore, the need for
State intervention. This is
especially so when prices of
consumer goods change almost every
week in the wake of acute shortage
of consumer goods with its
resultant high prices for such
goods. For these reasons, the
protection of the consumer from
the manipulations of commercial
firms’ managers and retailers has
become important. Successive
governments have recognised that
unfair practices are widespread in
consumer transactions. The
consumer may either be too
ignorant or under too many
pressures to resist concluding
imprudent and harsh bargains. The
ordinary worker’s minimum daily
wage is ¢12. He buys a loaf of
bread at between ¢12 and ¢30. A
tin of sardine which a housewife
needs to prepare her stew costs
¢10. A box of matches is ¢1. The
control price of a bag of rice is
¢200. When it can be found at all,
it is offered for anything up to
¢1,000. Because of the acute
shortages, there is always a
milling crowd of consumers who
queue in the scorching sun to
obtain their needs. A greater
number of consumers do not have
access to the goods, When they
have access at all, the prices are
so high that the consumer is
unable to satisfy his needs. Thus
“it is understandable and proper
for the State to be concerned
about the things on which people
spend their money and even to use
persuasion to influence the scale
of values implied by their
expenditure patterns.7” It is in
this light that various
institutions exist to afford
effective protection to the
consuming and buying public. Some
of these institutions include
administrative bodies such as the
Ghana Standards Board, the Prices
and Incomes Board, the Price
Inspectorate, the police,
vigilante groups and the courts.
There is widespread agreement that
the courts can afford effective
protection to the consumer by
enforcing price control
regulations. In other words, “. .
. however complete and favourable
the framework of legal protection
is, it might as well not exist if
the rules are not adequately
enforced, if they can be ignored
with impunity.8
It is proposed from our subsequent
discussion to test a hypothesis
that there is a divergence between
popular expectation and the law’s
attitude. In Acquah v. The
Republic9, the appellant was
charged with keeping eleven bags
of rice in a manner likely to
create a shortage of that
commodity to the public. She was
found guilty by the trial circuit
judge. A fine of ¢50 was imposed
in default of which she was to go
to prison for two months with hard
labour. She felt aggrieved at this
and appealed on the ground that
“(a) The judgment is unreasonable
and cannot be supported having
regard to the evidence adduced at
the trial.”
At the hearing of the appeal
counsel for the appellant
challenged the interpretation of
the learned trial circuit judge of
paragraph (b) of section 6 (1) of
the Price Control Decree, 1972 (N.R.C.D.
17). The appellant's counsel
argued that failure to display the
goods did not constitute keeping
goods in a manner likely to create
shortages. He contended that there
ought to have been some evidence
that the appellant refused to
sell. In dismissing the appeal,
Charles Crabbe J. (as he then was)
held that lack of display of goods
constituted “keeping goods in a
manner likely to create or
contribute to a shortage of those
goods available to the public” and
constituted hoarding under section
5 of N.R.C.D. 17. His reason was
that the display of goods by a
trader at his place of business
was the only way by which the
public could know that a trader
dealt in those goods. It was
stressed that the Price Control
Decree10:
“. . . imposes an imperative and
positive duty on the public to do
or refrain from doing certain acts
. . . It is thus . . . a penal
Decree. It must in that cast be
construed strictly. It is the type
of legislation . . . which does
not admit of a reasonable
interpretation which will avoid
the penalty it imposes.”
This approach and interpretation
of the section seem more in line
with the intention of the
legislature and popular
expectation. The decision is
socially desirable, particularly
his view that the Decree11:
“shows that it forms part of quite
an impressive line of social
legislation existing for more than
a decade now, which seeks to deal
a deadly blow at political and
sociological individualism. No
longer are persons in Ghana so
free in initiative and well-being
as to allow the individual an
unfettered right to pursue his own
good at the dictates of his own
taste without the interference of
the State in some measure.”
It was again stressed that the
Decree must be enforced vigorously
“taking into consideration the
cause and necessity for the issue
of the Decree.”12 The writer is of
the view that this would seem to
be the proper approach to the
construction of any Price Control
Decree. It is vigorous enough and
thus preferable. It seeks to
remove any doubts about the
divergence between popular
expectation and the law’s
attitude. It is suggested that
other judges should follow Charles
Crabbe J.’s example. This is
because it accords more with the
intention of legislature which is
the eradication of trade
malpractices or kalabule. It is
difficult to escape this
conclusion.
The second case is Adom v. The
Republic13. In that case, the
appellant was arraigned before the
District Court Grade I, Techiman,
on a charge of refusing to sell a
bar of key soap contrary to
sections 2 and 3 (1) (b) of the
Price Control Decree, 1972 (N.R.C.D.
17). He pleaded not guilty and
after his trial he was found
guilty, convicted and sentenced to
three months’ imprisonment with
hard labour. His appeal against
this conviction was allowed by the
appellate High Court. It is
interesting to contrast the manner
in which the problem of consumer
protection was dealt with in this
case at the magistrate court and
High Court respectively. The trial
magistrate held that the words “at
the controlled price” in the
section were inserted ex abundanti
cautela. Thus, they were
unnecessary and that under the
section an offence was committed
if one refused to treat or offer
for sale a commodity otherwise
intended for sale. He added14:
Without prejudice to the
generality of section 2, any of
the following acts shall
constitute a contravention of a
price control order made under
section 1—namely; ‘having goods
intended for sale, and refusing to
sell those goods.’ To my
understanding therefore refusing
to sell means, refusing to treat
or offer for sale a commodity
otherwise intended for sale.”
On appeal to the High Court,
Osei-Hwere J. held that the trial
magistrate had erred in failing to
give section 3 (1) (b) of N.R.C.D.
17 its ordinary meaning and in
construing that section without
giving effect to the words “at the
controlled price.” He stressed15:
Merely to enter a shop and ask for
a commodity to buy and the seller
saying that he has none will
certainly not contravene section 3
(1) (b) of N.R.C.D. 17. There must
surely be a clear indication on
the seller's part that he is
refusing to sell at the controlled
price.”
It is possible to interprete the
High Court’s decision as holding
that exposing consumer goods to
the public view and not selling it
is not a crime. It has to be
proved that the seller has sold
above the controlled price. The
writer believes that one of the
purposes of the Decree would be
defeated if it was open to a
seller to refuse to sell. Refusing
to sell is one of the very evils
against which the section was
directed. In so far as Osei-Hwere
J., held that it is only when the
seller refuses to sell that he
violates section 3 (1) (b) of the
Decree, his decision is socially
and economically undesirable. His
conclusion (with the greatest
respect) misses the mark because
he was not concerned with selling
above the controlled price. Thus,
on this ground, the judge’s
reasons appear unpersuasive.
Ghanaian consumers have been
urging government to eliminate
kalabule. To succeed, the courts
must break this social evil by
dealing ruthlessly with dishonest
trades. It would appear that
Osei-Hwere J. arrived at his
decision in the Adom case under a
mistaken view of section 3 (1) (b)
of N.R.C.D. 17. He failed, with
the greatest respect, to
appreciate the cause and necessity
for the issuing of the Decree,
which is that the country faces a
shortage of the basic goods. The
Decree is intended to remedy the
defect in our economic system
which allows some people to obtain
goods at reasonable prices and
hoard them, thereby selling them
at unreasonably high prices, and
at times, to a select few.
The two cases determined by the
High Court would appear to suggest
a conflict of judicial opinion
which has arisen and awaits
resolution by the higher courts.
In the meantime, it seems to the
present writer that the approach,
interpretation and conclusion of
Charles Crabbe J. (as he then was)
is more preferable. The
alternative view put forward by
Osei-Hwere J., will not protect
the interests of the consumer, and
deal with the mischief sought to
be remedied by the legislature.
The better approach, like that of
Charles Crabbe J., is to construe
the sections contra proferentem,
that is, in favour of the
consumer. Such an approach would
enhance consumer protection in
Ghana, which would appear to be
the desired hope of the consumer.
However, it may be re-assuring to
the consumer that his protection
appears to have been considered by
our legislators with the
promulgation of the Imports and
Exports (Special Licence)
Regulations, 1980. The passage of
these regulations is to enable
Ghanaians who have money abroad to
bring in consumer goods. Section 1
(1) of the regulations provides
that any person may import maize,
edible oil, sugar cube, granulated
sugar, milk, fish frozen, soap,
detergents and toilet rolls.16
Since the announcement of the
government’s trade liberalisation
policy following upon the
enactment of L.I. 1248, some of
the consumer goods which were in
short supply are on sale at the
markets, although at exorbitant
prices. This has given the
unmistakable impression that
consumer goods are in adequate
supply. However, the fact that the
shelves of our shops continue to
be empty illustrate the stark
truth that there is scarcity of
consumer goods. One would have
thought that in the light of
chronic shortages and high prices,
any legislation passed purporting
to remedy the situation would take
account of present realities.
However, it would appear that L.I.
1248 is of limited scope at the
moment. This is because basic
goods such as rice, baby foods,
sardine and mackerel are excluded
from the list of goods specified
in the schedule. The better policy
will be to widen the scope of
goods which can be imported to
reflect the reality of the
situation. There are no local
substitutes at the moment and if
the trade liberalisation policy is
to succeed no restrictions should
be placed on Ghanaians who have
money abroad and who may wish to
take advantage of the trade
liberalisation.
L.I. 1248 may also be said to be
yet another piece of legislation
which controls prices of consumer
goods. By its section 4 (1), no
goods imported under a special
licence for commercial purposes
shall be sold in the country
except in accordance with the
price specified for such goods
under the Price Control Decree,
1974 (N.R.C.D. 305). In this
regard, section 4 (2) of L.I. 1248
seeks to authorise the Minister of
Trade to regulate the prices of
any imported goods specified in
the schedule under the Special
Licence. Plainly, this discretion
has not been exercised with the
result that such goods are sold at
unreasonably high prices. This
has, no doubt, caused severe
hardships to the consumer, the
mischief which the liberalisation
policy sought to cure.
The view of your commentator is
that in the light of present
woeful economic conditions, the
minister may not be able to
regulate the prices of any goods
brought into the country under L.I.
1248. The stark truth is that
small importers and retailers who
have taken advantage of this
legislation have had to indulge in
“black market” deals. Against the
background of ever-increasing
black market currency deals, the
Minister of Trade will find it
almost impossible to fix prices
for goods “imported” under L.I.
1248. Any prices fixed by him
would seem reasonable from the
point of view of government and
the consumer. However, it may be
unreasonable to the importer who
may decide not to bring in more
goods. To avoid such a situation,
the discretion under section 4 (2)
may take sometime to be exercised
by the Minister of Trade.
Meanwhile, the consumer has to
protect himself. This is by no
means an easy task. Wherein,
therefore, lies the protection
that section 4 (1) and (2)
purports to accord the consumer?
FOOTNOTES
*
Post-graduate LL.M. Student,
Faculty of Law, University of
Ghana, Legon; Barrister and
Solicitor of the Supreme Court of
Ghana.
1. [1973] 2 G.L.R. 117.
2. [1976] 1 G.L.R. 59.
3. See Borrie and Diamond, The
Consumer, Society and the Law
(Pelican, 1964) at p. 11.
4. Kalabule is a term used to
describe the fraudulent deals and
cheating which go on in the
process of buying and selling. It
is believed to have originated
somewhere in 1976 when Ghana faced
a real crisis with regard to
consumer goods. Some Ghanaians
began to engage in trade
malpractices, bribery and
corruption. In 1979 when these
activities became uncontrollable
the term was replaced by ginabu
which describes the art of buying
from trader A and re-selling the
same item to a consumer or buyer
at the same spot for five or six
times the original price. A critic
has suggested, however, that the
word probably sprang from the
Hausa expression “Kere kabure”—“Keep
it quiet.”
5. See Atiyah, The Sale of Goods
(Pitman, 1975) at p. 4
6. See section 5 (2) (a) of the
Unfair Contract Terms Act, 1977 of
the United Kingdom. See also
section 81 of the Sale of Goods
Act, 1962 (Act 137).
7. See Harvey, The Law of
Consumer Protection and Fair
Trading (Butterworths, (1978)
citing the Crowther Committee, at
p. 117.
8. See, Borrie and Diamond,
op.cit. at p. 117.
9. Above.
10. [1973] 2 G.L.R. 117 at p. 121.
11. Ibid., at p. 120. In Osei v.
The Republic [1971] 1 G.L.R. 449
which also dealt with consumer
protection, Hayfron-Benjamin J.
(as he then was), observed in an
obiter that by virtue of article
28(1) of the Constitution, 1969,
it would appear that the Control
of Prices Act, 1962 (Act 113), was
invalid as being an infringement
on the right of freedom of
contract.
12. Ibid., at p. 125
13. Above.
14. [1976] I G.L.R. 59 at p. 62.
15. Ibid., at p. 63.
16. These do not exhaust the range
of goods specified in the schedule
to L.I. 1248. |
