NKUMBA UNIVERSITY

SCHOOL OF LAW AND INSTITUTE OF CRIMINAL JUSTICE

COURSEWORK

INDEX NUMBER: 150010089LECTURER: Mr. Bashir kabakubyaCOURSEWORK: Law of Sale of Goods

INTRODUCTIONThe contemporary era is marked as the era of consumers. As soon as a person is born, s/he starts consuming. He needs clothes, milk, oil, soap, water, and many more things and these needs keep taking one form or the other all along his life. Thus we all are consumers in the literal sense of the term. No country can knowingly or unknowingly disregard the interest of the consumers. This can be argued on the basis of fast enactment of consumer protection laws in almost all part of the world. Apart from the consumer protection laws in developed world, we could find the accelerated rate of lawmaking for consumers in developing countries like Thailand, Sri Lanka, Korea, Mongolia, Philippines, Mauritius, China, Taiwan, Nepal, Indonesia, Malaysia and South Africa. Uganda is however an exception to this rule. When we approach the market as a consumer, we expect value for money, that is, right quality, right quantity, right prices, information about the mode of use among others but there may be instances where a consumer is harassed or cheated.The Government understood the need to protect consumers from unscrupulous suppliers, and several laws have been made for this purpose. We have the Contract Act, the Sale of Goods Act, the Dangerous Drugs Act, the Prevention of Food Adulteration Act, the Standards of Weights and Measures Act, among many others which to some extent protect consumer interests. However, these laws require the consumer to initiate action by way of a civil suit involving lengthy legal process which is very expensive and time consuming. This is evidenced in the case of Kalemera Godfrey & Ors v Unilever (U) Ltd & Anor[footnoteRef:2] [2: Accessed online at http://www.ulii.org/ug/judgment/high-court/2008/23]

There is no specific framework on consumer protection to provide a simpler and quicker access to redressal of consumer grievances. The term consumer is not defined among the current laws. The rights of a consumer are scattered in various statutes. CONSTITUTIONAL PERSPECTIVEThe 1995 Constitution of Uganda in objective XIV and Article 21 provides that the state shall endeavour to make sure that every Uganda enjoys a right of access to clean water and food. Still every person shall be equal under the law in respect to economic status and shall enjoy equal protection under the law[footnoteRef:3]. [3: Article 21 (1) of the 1995 Constitution of Uganda]

DEFINITION OF A CONSUMER

In the absence of a specific legislation on consumer protection in Uganda, the term consumer is not defined and thus the authorities relied upon for this definition is either textbooks or legal dictionaries. The Oxford dictionary of Law[footnoteRef:4] defines consumers as, those who contract otherwise than in the course of a business to obtain goods or services from those who supply them in the course of a business. [4: Oxford Dictionary of Law 5th Edition (2003) Edited by ELIZABETH A. MARTIN at page 111]

Very often than not, Ugandan laws usually resemble Indian laws. For the purposes of the definition, the Indian consumer protection Act defines a consumer as, any person who(i)buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or(ii)hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;There is one basic thought that consumers need to be protected. Another thought is how he can be protected? Now, when we say that there is need to protect the consumers, a question arises - consumers are protected against what? Thus some rights of consumers which need to be protected are[footnoteRef:5]: [5: Available online at http://www.consumerrights.org.in/international-protection-council.htm]

Right to safety - It is right to be protected against the marketing of goods and services which are hazardous to life and property.Right to information - It is right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, with a view to protect the consumer against unfair trade practicesRight to choose - The right to choose can be made meaningful by ensuring access to a variety of goods and services at competitive prices.Fair and effective competition must be encouraged so as to provide consumers with the widest range of products and services at the lowest cost.Right to represent - It is right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums.Right to redressal - It is a right to seek redressal against unfair trade practices or restrictive trade practices or unserpulous exploitation of consumers.Right to education - The right to consumer education is a right which ensures that consumers are informed about the practices prevalent in the market and the remedies available to them.WHAT REALLY IS CONSUMER PROTECTION?

The above paragraphs have defined a consumer, and declared his rights that need protection under the law. How what really does consumer protection mean?

The Oxford Dictionary of Law[footnoteRef:6] defines consumer protection as, The protection, especially by legal means, of consumers (those who contract otherwise than in the course of a business to obtain goods or services from those who supply them in the course of a business). [6: Supra note 2]

It is the policy of current legislation to protect consumers against unfair contract terms. In particular they are protected against terms that attempt to exclude or restrict the seller's implied undertakings that he has a right to sell the goods, that the goods conform to either description or sample, and that they are of satisfactory quality and fit for their particular purpose.

In short, consumer protection simply means to protect and uphold the rights of consumers.

LAWS CURRENTLY PROTECTING CONSUMERS IN UGNADA

There is at present no legislation in Uganda which deals specifically with consumer protection. There are, however, legislations, that deal with certain aspects of consumer protection. These include but not limited to the following;

Contract Act, Cap. 73The Contract Act is a substantive law[footnoteRef:7] that regulates the formation and operation of contracts in Uganda. There have however not been any amendments to the Act since its enactment. [footnoteRef:8]Due to economic, social and political developments, there is dire need to update the Act to meet the current developments. This means that where a consumer is cheated and he or she takes the matter to court, the Ugandan courts will use the English common law relating to contracts but simply modify it to suit the particular case. It is important to note that the United Kingdom has since enacted a number of laws to protect its consumers. These include the Unfair Contracts Act and the Consumer Protection Act. There is therefore a need to enact a new contract Act to cater for the numerous problems that Ugandan consumers encounter on the market each day. [7: Substantive law defines rights and duties as opposed to giving the rules by which rights and duties are established.] [8: Uganda Law Reform Commission A STUDY REPORT ON SELECTED TRADE LAWS CONSUMER PROTECTION LAW Kampala, Uganda 2004]

The Sale of Goods Act, Cap. 82The Sale of Goods Act is an act that relates to r governs the sale of goods in Uganda. The Act addresses the lopsided position among parties to contracts by establishing exceptions to the general rule of autonomy of contract. Under the doctrine of caveat emptor (buyer beware), it cautions consumers to rely on their own resources and devices when contracting[footnoteRef:9]. [9: Ibid. 7]

The Act has a number of weaknesses. For example section 54 permits parties to contract out of the provisions of the Act by stipulating that where any right, duty or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement or the course of dealing between the parties, or by usage, if the usage be such as to bind both parties to the contract. In practice, most vendors and suppliers make consumers accept the exclusion or limitation of the protective provisions embodied in the Act. Section 5 of the Sale of Goods Act requires that a contract for the sale of goods of the value of two hundred shillings or more has to be in writing if it is to be enforceable. This provision is also very limiting first, because in Uganda today, two hundred shillings has lost value. Secondly, you cannot write a written contract simply because you have bought a bunch of matooke at 15,000. Therefore, a consumer who buys defective goods may fail to enforce the breach in a court of law because the contract of sale was not in writing.

The Weights and Measures Act, Cap. 103.The foremost purpose of this Act is to impart and to regulate the use of weighing and measuring equipment. It seeks to ensure that a consumer of goods should be given the right quantity of goods and to achieve this by laying down detailed procedures of how weighing or measuring equipment is certified as fit for use in trade. The Act also makes it an offence to sell or expose for sale under weight goods. The commission has noted that one general weakness about the Weights and Measures Act as amended is its heavy reliance on penal sanctions to enforce compliance. Moreover the offences created throughout the Act attract very paltry fines ranging between five hundred shillings and two thousand shillings. These fines have never been revised upwards. A consumer who has bought underweight goods as a result of a trader using false equipment is not interested in seeing the trader going to jail. A consumers need is just to get compensated or to be given the right quantity of goods that he or she had paid for. This Act should be amended so as to provide for more up to date ways of appeasing a cheated consumer, most preferably through compensation or being given the right amount of goods.

The Uganda National Bureau of Standards Act, Cap. 327.This Act establishes the Uganda National Bureau of Standards (UNBS). The main functions of UNBS are to formulate, determine, modify, endorse and enforce standards for commodities and codes of practice. The functions of UNBS which are of specific relevance to consumer protection are to enforce standards in protection of the public against harmful ingredients, dangerous components and shoddy material; to provide for testing of locally manufactured or imported commodities to determine whether such commodities conform to the standard specifications.There is however, no provision in the Act that boldly states that the UNBS may receive complaints from the consuming public in case a consumer is cheated or has bought substandard products.

National Drug Policy and Authority Act, Cap. 206.This is the prime law regulating drug use in Uganda. Regulation of the consumption of drugs is very important because there is no person who can do without drugs. Besides, drugs, if not used properly, can lead to devastating consequences. Under the Act, National Drug Authority is established to regulate importation, exportation and sale of pharmaceuticals in Uganda and to approve the National List of Essential Drugs. Under the National Drug Authority Act, no person will import or sell any drug unless it appears on the National Drug Formulary. The National Drug Authority Act is a recent legislation that has generally gone a long way in ensuring that drug users or consumers are protected. Some of the main challenges to the National Drug Authority Act relate to its implementation or enforcement. One of the most glaring lacunae in the Act however is the lack of regulation of herbal medicines.

Food and Drugs ActThis Act makes provision for the prevention of adulteration of food and drugs. The Act prohibits the sale for human consumption food or drugs rendered injurious to health. Any person found selling adulterated food or drugs commits an offence and is liable on conviction to a fine of two thousand shillings or imprisonment not exceeding three months. The Act makes it an offence for any person to display food with a label that falsely describes the food or is calculated to mislead as to its nature, substance or quality. The Act establishes a Food Hygiene Advisory Committee with a Chairperson and members appointed by the Minister. However, the Act does not clearly spell out the functions of this committee but merely says that the Minister may from time to time refer to the committee for consideration and advice on any questions relating to the Act as it applies to food. Like the Weights and Measures Act, this Act has good provisions which if implemented, would curb the sale of adulterated food and drinks. However, the Act also lacks effective provisions that would ensure compliance and also relies on penal sanctions to enforce compliance and these are very low. In a situation where the majority of consumers are very poor, what matters to the majority of the consumers is availability of food as opposed to the quality of food.

The Public Health ActThe Public Health Act is intended to make provision for securing and maintaining health. It covers a wide range of public health and consumer matters such as sanitation, housing, prevention of infectious diseases, and protection of foodstuffs, public water supplies, meat and milk.

From the above analysis of the laws currently regulating consumer protection, it is now plausible to conclude that there is a pressing need to enact a consumer protection law that boldly lays down the rights of consumers, the obligations of the suppliers and the remedies open to aggrieved consumers. There is also an imperative need for the establishment of consumer protection courts or tribunals to quickly redress consumer whinges.

ATTEMPTS TOWARDS A SPECIFIC CONSUMER PROTECTION LAW

It would be unequivocal not to recognise attempts made towards the codification of a specific legal framework on consumer protection. A report on consumer protection was published in 1999[footnoteRef:10]. It mainly advocated for the need for a consumer protection Act in Uganda. This eventually led to the birth of the 2004 Consumer Protection Bill. Reid & Priest have proposed the promulgation of a Consumer Protection Act whose objective is to provide sufficient breadth in its application in order to curtail innovative business fraud schemes that could occur in the future. Nevertheless, it is restricted to the prohibition of fraudulent and deceptive practices and does not regulate the quality of goods or the prices charged for them[footnoteRef:11]. The public concern about substandard goods that are also excessively priced, are more appropriately dealt with under Consumer Product Safety legislation while the quality of products is governed by the SOGA[footnoteRef:12]. Prices of consumer goods are regulated by the market and healthy competition. Nevertheless, the proposed Consumer Protection Bill prohibits unfair competition by banning fraud and deception which forestall consumers from access to adequate and accurate information about the products they buy. [10: A report by Reid & Priest on consumer protection in Uganda, published in 1999] [11: Ibid. 9] [12: Sale Of Goods Act in Uganda.]

CONCLUSIONUganda currently lacks a specific framework on consumer protection. There is however a bill on Consumer Protection drafted in 1999 and 2004. Two reports have been published specifically on the need for consumer protection in Uganda. First a report by Reid & Priest in 1999 and Secondly by Uganda Law Reform Commission in 2004. Consumers are however currently protected by various legislations as enunciated above. There is thus a pressing need for a specific framework to deal with consumer whinges. With inspiration from the Consumer laws in UK and India and even South Africa there is also a need for consumer protection courts or tribunals.

REFERENCES

STATUTES1995 Constitution of UgandaContract Act, Cap. 73The Sale of Goods Act, Cap. 82The Weights and Measures Act, Cap. 103.The Uganda National Bureau of Standards Act, Cap. 327.National Drug Policy and Authority Act, Cap. 206.The Public Health ActFood and Drugs ActUnfair contracts Act UKConsumer Protection Act India

WORKING PAPERS

A report by Reid & PRIEST ON CONSUMER PROTECTION IN UGANDA published in 1999.

Uganda Law Reform Commission A STUDY REPORT ON SELECTED TRADE LAWS CONSUMER PROTECTION LAW Kampala, Uganda 2004

WEB PAGES

http://www.consumerrights.org.in/international-protection-council.htmhttp://www.ulii.org/ug/judgment/high-court/2008/23