IOSR Journal Of Humanities And Social Science (IOSR-JHSS)

Volume 20, Issue 9, Ver. VI (Sep. 2015) PP 10-19

e-ISSN: 2279-0837, p-ISSN: 2279-0845.
www.iosrjournals.org

No Longer at Ease: The Contract-Based Liability Posture of the

Nigerian Law toward Consumers of Hospitality Services
Dr.EtefiaEkwereEkanem* andDr.MojisolaEseyin**
1

LL.B, LL.M, PhD in Commercial and Property Law (Consumers Protection Law) (Nig.), B.L., ChMC; Senior
Lecturer, Department of Public Law, Faculty of Law, University of Uyo, Uyo, Nigeria;
2
LL.B, LL.M, PhD (Cal.), B.L.; Senior Lecturer, Department of International Law and Jurisprudence, Faculty of
Law, University of Uyo, Uyo, Nigeria.

Abstract: The object of consumers protection law is the advancement of consumers interest in
theunequalrelationshipthat exists betweenconsumers andbusinesses. Consumersofhospitality services in Nigeria
who are victims ofdefective goods or deficient services offered to them have a serious hurdle tocross before they
can successfullyclaim againstthe serviceproviders. The existence of a contractwith thehoteliersis adeterminant
ofwhether Nigerian legislation provides protectionfor the consumers or not. This papercalls into question this
position of the law, and appraises the level ofprotection it affords the consumer and comes to the conclusion
that things are no longer at ease for the consumer of hospitality services in Nigeria.

I.

Introduction

Proprietors of hotels and other hospitality enterprises are expected to provide safe and secure
environment for guests and their property. Hotels are homes away from home, the nature of hospitality business,
creates a greater burden of care than most businesses have to meet. When guests valuables are damaged, lost, or
stolen, they turn to the hotel for relief. 1 Recognizing this burden on the hospitality industry, regulations have
been enacted to address the responsibilities of service providers to consumers. These regulations, as well as tort
law and contract law set out the nature, scope and extent of liability of service providers to the consumer in the
course of supplying services in the hospitality business. This paper discusses the extent to which the innkeeper
or the hotel proprietor is held responsible for damage to the property or the person of the guest. Attempt is made
to discover whether such responsibility exists regardless of the business negligence, or where the damage was
occasioned by the negligence or fraud of the guest, or by an act of God or the "public enemy. In doing this,
standard of proof in consumer protection cases are also appraised.

II.

Liability Regime in General

The major concern of most consumers to whom goods have been supplied and services rendered is that
the goods or services conform to the requisite quality or standard, whether set by law or by contract. The rules
which define liability for defective goods and services serve to protect a consumer who has suffered loss from
defects in goods or deficient services procured. Generally, the standard required by law is that the goods or
services shall be of reasonable quality, although the particular agreement may impose higher standards.2
Alternatively, or in addition, a general duty, irrespective of any contractual duty, may be imposed on the
supplier, that in putting goods into circulation or performing services, to take care that his activities do not cause
harm to consumers. In these cases liability is imposed on the supplier of goods or provider of services to ensure
the protection of the consumer.
There appears to be yet any comprehensive legislation that has set out a liability regime for the
provision of services in Nigeria. Further, there is no coherent set of laws strictly speaking that may be referred to
as Nigerian Consumer Protection Law. What is in place is the Consumer Protection Council Act, 1992 3 which
is only a statute that establishes a regulatory agency, in addition to what has been described as scattered
statutory rules and case law that can be assembled under the rubric of consumer law. 4

National Specialty Underwriters Inc., Innkeepers Liability- Guide to Compliance, March 2009,
available
at
http://www.nsui.com/pdf/innkeeper_statutes_manual.pdf (accessed August 6, 2012).
2
For example the English Unfair Contract Terms Act, 1977, s 5 provides for a consumer guarantee for goods, where loss or damage is
attributed to either, one arising from the good proving defective while in consumer use, or where it is as a result of the negligence of the
manufacturer or distributor of the goods. SA Duru, and OW Igwe, The Law of Negligence and Liability for Defective Product (2007) XI
TheCalabar Law Journal 154, 169; and J Mickleburgh, Consumer Protection, (Professional Books 1979) 182.
3
Consumer Protection Council Act Cap C25 Laws of the Federation of Nigeria 2004.
4
BB Kanyip, Service Liability under Nigerian Consumer Law (2005) 1 No. 1 Consumer Journal 79.
1

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No Longer at Ease: The Contract-Based Liability Posture of the Nigerian Law toward Consumers...
While there is clearly a fairly delineated notion of liability for defective goods, there appears to be none
yet for services. Moreover, the protection of consumers of services seems to be a rather neglected aspect of the
law. Adumbrating on this, Kanyip posits:
Relative to consumer of goods, the protection accorded the consumer of services is a more neglected
aspect for the legal regulation and enforcement. The rules which regulate the provision of services are not only
submerged within the crevices of the law of obligations, part appear incapable of any practical relevance in
view of the fact that the attendant consumer complaints in the service subsector are often viewed as mere
nuisance. Yet it is our firm believe that we should be able to develop a concept of service liability in the
manner in which that of product(s) liability developed. 5
This observation reflects the position in Nigeria, that is, the near absence of the notion of service
liability. Even elsewhere, Europe to be precise, it appears that the notion of a concept of service liability is
still very cloudy. Reich and Micklitz, have concluded that there are no indications on a broad scale in any of the
EU countries amounting to an extension of the principles of manufacturers liability to the suppliers of services. 6
Liability of the suppliers of services for injuries to the consumer, if any, is generally regarded as a problem of
contractual liability. 7

III.

Preliminary Issues in Evolving a Service Liability Regime

Some preliminary issues need to be raised and commented on to properly articulate matters concerning
service liability in Nigeria. The first issue has to do with the proposal that a concept of service liability be
developed in a manner akin to product liability. 8 Although, the concept of product liability is yet to be properly
developed and articulated in Nigeria, Kanyipadvocates the need for the concept of service liability to be
evolved.9 There are, however, obvious setbacks to the actualisation of this proposition. The first is that its
application may be restrictive and may relate to only those situations where the consumers complain of shoddy
services; while it may remain inapplicable in addressing the difficulties encountered in cases of late service
delivery and overcharging. The nature of service compared to product is unique. The major characteristic of
services has to do with separating them neatly from products. The distinctiveness of service is buried in what
can be described as the impossibility to separate supply from consumption, the impossibility to preserve or store
services, their non-material quality, transience and heterogeneity. 10 These difficulties include the fact that
production and consumption are simultaneous, which is characteristic of most services. This raises the issue of
harmonising offer and demand for services. The same service can be rendered by different persons in different
ways, so that heterogeneity also counts among characteristics of services that differentiate them from products.
Implicit in this, is the problem of having a standard for services. Thus, since services have no tangible
parameters, and have, in the past been far less standardised than products has perhaps, resulted in it being more
difficult to draft apposite general provisions and on reliance being placed rather on definite regulation of
particular industry. 11 These days, consumers seem to be involved more in service than goods transactions. 12
The next is that the provision of hospitality services comes in a variety of ways. This raises some
difficulties. There is the problem of categorisation of services, particularly in the hybrid cases, where the
question is blurred as to whether the transaction involves services or products or both. 13 The next has to do with
how liability is to be determined. 14 Different liability rules may operate in given circumstances; it may be faultbased15or strict.16 The last is that liability may differ depending on whether it is a person, chattel, or both that are
involved.
5

BB Kanyip, Consumer Protection in Nigeria: Law, Theory and Policy, (Rekon Books Ltd 2005) 171.
N Reich, and HW Micklitz, Consumer Protection in the EC Countries: A Comparative Analysis, (Van Nostrand Reinhold Company 1980)
108.
7
Ibid.
8
D Harland, Recent Developments in Product and Service Liability in the Asian Pacific Region (1998) 6 Consumer Law Journal 21; Kanyip
(n 4).
9
BB Kanyip, Consumer Protection and Product Liability in Nigeria(2005) 1 No 1 Ahmadu Bello University Journal of Commercial Law
145.
10
J Grini, Concepts of Service Quality Measurement in Hotel Industry (2007) xvi Ekon.MisaoPraksaDbk. GodBR.1, 81-98, available
athttp://eprints.undip.ac.id/3396/1/CONCEPTS_OF_SERVICE_QUALITY_MEASUREMENT.pdf (accessed on October 20, 2012).
11
Harland (n 8) 29.
12
These days, e-transaction has extended to almost every sphere of commercial, social and economic life of people the world over. With the
advancement in ICT, electronic transaction is gradually forcing out the commodity transaction, so that goods are now freely p urchased, and
delivered to the purchaser from any part of the world through internet services; EE Ekanem, et al, Publication of Legal Materials in The
Twenty-First Century being a paper presented by the Faculty of Law, University of Uyo, Nigeria, at the Annual Law Teachers Conference
held at Kogi State University, Anyigba, from 17 20 May 2010; Harland, (n 11); D Harland, Consumer Action Plan 1999 2001 (1999) 7
Consumer Law Journal 59 61.
13
For detailed discussion on classification of hospitality services see EE Ekanem, Appraisal of the Legal Framework for the Production and
Consumption of Hospitality Services in Nigeria being a PhD Thesis of University of Nigeria, 2013, pp. 74-81.
14
Kanyip, Service Liability under Nigerian Consumer Law (n 8) 80-81.
15
The Innkeepers and Hotel Proprietors Law Cap 63 Laws of AkwaIbom State of Nigeria 2000, ss 2-4 and 6(a); the Innkeepers and Hotel
Proprietors Edict No. 12 vol. 1 Laws of Imo State of Nigeria 1994, ss 4- 6 and 8(a); the Innkeepers and Hotel Proprietors Law Cap 76 Laws
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No Longer at Ease: The Contract-Based Liability Posture of the Nigerian Law toward Consumers...
Finally, there is the issue of the nature of relations between consumers and service providers. This
relationship is outstandingly different from that in respect of contract for the sale of goods. 17While goods are
manufactured in factories, away from the consumer, services involve more personal, face-to-face contact
between the consumer and the service provider. 18It is reasoned that when things go wrong, it becomes less
difficult and more straightforward to identify those responsible for the deficient service. 19 It is however doubtful
how apposite this view holds sway in the hospitality industry, especially in large firms like five star hotels,
where services are departmentalised, based on specialisation. For instance, cooks prepare the cuisines, waiters
wait on the guests and dish out the food and also serve if not a buffet, while stewards wash dishes. For drinks,
they could have been manufactured in a factory miles away, supplied to the service provider by a distributor
through a contractor. It is not clear how less complex it would be to identify those responsible when things go
wrong in such circumstance.

IV.

Liability in Contract

In the hospitality industry, the relationship between consumers and service providers is essentially a
species of contract. 20 This contractual relationship is very crucial in attempting to locate where liability lays, and
the notion of contractual freedom excludes non-parties from the burden to a bargain. This is the doctrine of
privity of contractin practice21 andit raises a number of issues while considering the service providers liability
to the consumer. 22 The first is whether a non-party to a contract acquires rights and benefits under it. The second
is whether a contract imposes duties and obligations on non-parties.
On the first issue, the doctrine of privity of contract remains a hurdle to be surmounted by strangers to a
contract out of which a claim arises.23Dunlop Pneumatic Tyre Co. Ltd. v Selfridge Ltd., 24which stressed the
fundamental motive of the principle remains the locus classicus on the doctrine. Agomo views that the
recognised exceptions to the doctrine are of peripheral importance to the issue of consumer protection. 25 This
view is premised on Monyes position that the principle of privity of contract applies to liability in consumer
protection. 26 In contractual claims therefore, only parties to the contract are liable.
The doctrine poses a problem to the ultimate consumer of hospitality service where such service was
reserved by one person for the benefit of another, that other being the ultimate consumer. By section 1 of the
Innkeepers and Hotel Proprietors Law of AkwaIbomState, 27privity of contract seems to be the basis of supplying
hospitality service and facility to guests. The section provides:
An innkeeper shall receive in his inn any person presenting himself as requiring any of the services or
facilities offered by the inn and who appears able and willing to pay a reasonable sum for such services and
facilities, and who is in a fit state to be received, unless the service provider has reasonable ground for refusal.
This problem seems to confront the hospitality industry in a rather peculiar way. Because of the
restriction imposed by the principle of privity of contract, many consumers find it difficult to institute contractbased actions; they are almost compelled to base their action on tort of negligence. 28 It is common practice for
hotel accommodation to be reserved by employers for their employees who are on engagements outside their
stations. In such instancesthe employees not being privy to the contract can hardly maintain a claim against the
service provider.

of Kaduna State of Nigeria 1990, ss 5-7 and 9(a); the Innkeepers and Hotel Proprietors Law Cap. 71 Laws of Rivers State of Nigeria 1999,
ss 2-4 and 6(a).
16
The Innkeepers and Hotel Proprietors Law of AkwaIbom State, s 6(b); the Innkeepers and Hotel Proprietors Law of Imo State, s 8(b); the
Innkeepers and Hotel Proprietors Law of Kaduna State, s 9(b); and the Innkeepers and Hotel Proprietors Law of Rivers State, s 6(b).
17
C Scott and J Black, Cranstons Consumer and the Law (3rd edn, Butterworths 2000) 197; R Cranston, Consumers and the Law
(Weidenfeld& Nicolson 1978) 134-135.
18
Kanyip, (n 14) 81.
19
Ibid 82; Scott and Black (n 17); J Chait, Continuing the Common Law Response to the New Industrial State: The Extension of Enterprise
Liability to Consumer Services (1974) UCLAR LR 401, 405.
20
The Innkeepers and Hotel Proprietors Law of AkwaIbom State, s 1; the Innkeepers and Hotel Proprietors Law of Imo State, s 3; the
Innkeepers and Hotel Proprietors Law of Kaduna State, s 4; and the Innkeepers and Hotel Proprietors Law of Rivers State, s 1.
21
AD Badaiki, Towards an International Legal Regime of Consumer Protection for Developing Countries: Nigeria as a Case Study (1993)
6 No. 4 Justice, A Journal of Contemporary Legal Problems 43, 45.
22
CK Agomo, Liability for Defective Products (2005) 1 No 1Consumer Journal 68, 70; and JC Smith, The Law of Contract (3rd edn,
Sweet and Maxwell 1998) 89.
23
Pan African v Shoreline Liftboats Ltd [2010] 42 NSCQR (pt. 1) 25 SC, per Adekeye, JSC, 43; First Fuels Ltd. v The Vessel Leona II
[2002] 12 NSCQR 43; see also Agomo, ibid 71.
24
[1962] 1 All E. R. 1.
25
Agomo, (n 23) 71.
26
FN Monye, Law of Consumer Protection (Spectrum Books Ltd 2003) 136; Nigerian Bottling Co. Ltd v Ngonadi [1985] 1 NWLR (pt 4)
739 SC; VeeGee (Nig.) Ltd. V Contract (Overseas) Ltd (1990) 2 NWLR (pt. 266) 503.
27
The Innkeepers and Hotel Proprietors Law of Imo State, s 3; the Innkeepers and Hotel Proprietors Law of Kaduna State, s 4; the
Innkeepers and Hotel Proprietors Law of Rivers State, s 1.
28
FN, Monye, The Defence of Foolproof System of Production (2005) vol. 1 No. 1 Consumer Journal 1.

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No Longer at Ease: The Contract-Based Liability Posture of the Nigerian Law toward Consumers...
Sometimes, service providers in the industry contract aspects of their services to independent
contractors. Such contractors make their supplies either directly to the consumers or to the service providers,
who in turn pass on the supplies to the consumers. For example, a hotel may provide facilities and
accommodation while it engages the services of a contractor, say a caterer, for the sale and supply of food and
drinks. Here, the consumer may reasonably believe that he is contracting with the service provider for the supply
of accommodation, and food and drinks. Where in the circumstance, the consumer has any complaint in respect
of the food or drinks supplied to him by the sub-contractor, the service provider may attempt to evade liability
using the privity of contract doctrine. Where the service provider served food and drinks supplied him by the
contractor, it appears that the consumer would be prevented from reaching the sub-contractor for lack ofprivity.
However, following the process of tortification of contract,both the service provider and the contractor may
jointly and severally be liable to the consumer in these circumstances. The Supreme Courts decision in Anyah v
Imo Concorde Hotels Ltd,29 does not seem to follow this position, which was applied in the Indian case of
SashikantKrishnaii Dole v ShitshanPrasarakMandali,30 where the National Commission held that failure to
provide basic safeguards inthe swimming pool amounts to deficiency in service. In that case a schoolowned a
swimming pool and offered swimming facilities tothe public on payment of a fee. The school conducted
winterand summer training camps to train boys in swimming and for this purpose engaged a coach. The
complainantshad enrolled their only son in the swimming class underthe guidance of the coach. It was alleged
that due to thecoachs negligence, the boy drowned and died. The schooldenied any responsibility on its part.
The coach claimed thathe had considerable experience in coaching young boys inswimming. When the deceased
was found to have beendrowned, the coach immediately took him out of the waterand removed the water from
his stomach and gave him artificialrespiration and thereafter took him to a doctor. Thedoctor advised that the
boy be taken to the nearest hospitalwhere the boy died. The State Commission held the schooland the coach
negligent in rendering service to the deceased. On appeal, the order was upheld by the National Commission.
Although there was no privity of contract between the boys parents and the coach, the coach was held liable for
negligence.
This implies that were such deficient service rendered by a hospitality enterprise, in the circumstances,
it would have been held liable. It appears that in finding the service provider liable, in the circumstance, it was
immaterial that the injury or damage occurred as a result of the negligence, fault of an independent contractor,
the coach.
The second issue, that is, whether a contract imposes duties on non-parties, seems to be a public policy
matter. Prima facie, a duty should not be imposed on non-parties to the contract. However, within the precinct of
the law of tort, where the neighbourhood principle comes in, a duty is placed on everyman to be responsible for
his action.
As regards product in both the UK and the USA, liability is essentially strict given the difficulty that
consumers face when proving their cases against producers of defective products. 31 In Nigeria liability is also
admittedly strict under the sale of goods law, but based on fault under negligence. 32 Under the sale of goods law,
liability for product is regulated by the implied duties of the seller to the buyer, 33 particularly, the implied
obligation as to quality. 34
Generally, within the sphere of hospitality services, there is little room for the law to imply terms of an
all-embracing nature like those implied into contracts of sale. 35 The non-existence of codes akin to the sale of
goods law, and the customary use of standard form contracts in hotels further explainthis position. A visit to
hotels, inns and guest houses across Nigeria reveals the use of pre-prepared documents, with terms and
conditions, which are simply issued to would-be guests to fill in their names, addresses and other personal
information and endorse. Most times, it is only after the contract has been sealed and payment made that the
document is issued to the guest.
A service provider is bound by the terms of the contract he has entered with the consumer. He is under
a duty to provide all the services and facilities he has by contract undertaken to supply to his guest. In Okogie v
Epoyun,36 it was held per Alagoja, JCA, that agreements or contracts are entered into by parties based upon
29

[2002] 12 NSCQR (pt. II) 231.

This is an Indian cases cited by GK, Kapoor, Defective Goods and Deficiency of Service vis-a-vis Consumer in Consumer Education
Monograph Series, ed. by SS Singh, R Gupta, and S Chanda, (Indian Institute of Public Administration 2006) p. 32, available at
http://consumereducation.in/defectivegood.pdf (accessed on January 17, 2012).
31
BB.Kanyip, Legal Issues in Consumer Protection in Nigeria being a paper presented at the Refresher Course for Judges and Kadis, held
at Andrews OtutuObaseki Auditorium, National Judicial Institute, Abuja, Nigeria, from March 23 to 27, 2009, 18
32
Ibid.
33
Sale of Goods Act 1893, ss 12-15; the Sale of Goods Law of AkwaIbom State, ss 11-14; the Sale of Goods Law of Kaduna State, ss 1417.
34
Sale of Goods Act 1893, ss 14-15; Sale of Goods Law of AkwaIbom State, ss 13-14; the Sale of Goods Law of Kaduna State, ss 16-17;
Kanyip, Legal Issues in Consumer Protection in Nigeria (n 32).
35
Mickleburgh (n 2) 191.
36
[2010] 11 NWLR (pt. 1206) 456 CA, 479.
30

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No Longer at Ease: The Contract-Based Liability Posture of the Nigerian Law toward Consumers...
what they intend should govern them with respect to that transaction. Thus, in Trackman v New Vistas Ltd,37
the contract specified accommodation in a hotel but the consumer was given a room in an annexed some two
hundred yards away. The Court of Appeal said that a hotel meant not only sleeping facilities but also other
amenities, like meals, sitting rooms, etcetera, and that the consumer was entitled to move to another hotel nearby
and charge the service provider, who was in breach of the contract, with the difference. It can be posited that a
service provider that falls short of statement in a brochure is liable of misrepresentation to a consumer who
relied on such statement and acted to his disadvantage.

V.

Statutory Intervention and Contract-Based Liability

In ancient Rome, an innkeeper was deemed responsible for any theft committed by his guests on his
premises.38This effectively meant that if one guest robbed another then the hotel proprietor would be liable to
pay double damages to the robbed guest. 39 The same rule applied if an employee of the hotel or the hotel
proprietors slave committed a theft on a guest.
Liability in the hospitality industry is essentially statutorily regulated and each state of the Federation
has its law, that is, the Innkeepers and Hotel Proprietors Law, 40 in addition to the Nigerian Tourism
Development Corporation Act41 and the Hospitality and Tourism Establishments (Registration, etc.)
Regulations.42 The Innkeepers and Hotel Proprietors laws provide in the main for the regulation of civil
liabilities of parties to hospitality service transactions, while the Act and the Regulations provide for criminal
liability of service providers, having also established the Nigerian Tourism Development Corporation Act, an
agency charged with the responsibility of regulating industry standard. The liability regime provided for by the
innkeepers and hotel proprietors law is contract based. 43
By section 2 of the Innkeepers and Hotel Proprietors Law of AkwaIbom State, an innkeeper is liable
for the safety of the person of the guest. 44 The law makes a distinction between innkeepers and hotel
proprietors, 45 in that liability of the innkeeper is both to the person and goods of guests, while that of the hotel
proprietor relates only to the goods of the guests.46 The innkeepers liability to ensure the safety of the person of
the guest under the law does not seem to extend to a hotel guest. In the words of Kanyip, This means that
hoteliers cannot be held responsible for the safety of the guests person.47 More so, there is no provision in the
law akin to section 2 that places similar liability on the hotel proprietor for the safety of the person of his guest. 48
One wonders why the lawmakers would only make provisions for the protection of the person of a guest in an
inn, or an establishment that offers food and drink, to the exclusion of the guest of a hotel, an inn offering, ...
accommodation.49 It would appear however, that the liability imposed by the law on the provider of inn
services includes hotel services for a number of reasons. One is that the hotel is defined in the law as a species
of inn. Section 12 provides inter alia, hotel means an inn offering, if so required, sleeping accommodation.
Two, the meaning ascribed to inn in the law seems to include a hotel. Section 12 provides further:
Inn means an establishment held out by the keeper or proprietor as offering food or drink without
special contract, to any person presenting himself who appears able and willing to pay a reasonable sum for the
services and facilities provided and who is in a fit state to be received, and in the case of a hotel, which offers
sleeping accommodation if so required.
37

[1959] C. L. Y. 527. See also Cook v Spanish Holiday Tours (London) Ltd. (1959) 103 Sol. J. cited in Cranston (n 17) 133; AngloContinental Holidays v Typaldos (London) [1967] 2 Lloyds R. 61; Stedman v Swans Tours (1951) 95 Sol. J. 727, where promise of rooms
with sea views were unfulfilled; Jackson v Horizon Holidays Ltd. [1975] 1 W. L. R. 1468; [1975] 3 All ER 92.
38
Liability
of
the
Hotelier,
this
can
be
sourced
online.
It
is
available
athttp://www.olivermagro.com/Hospitality_Law/Liability_of_the_Hotelier.htm (accessed on February 15, 2012).
39
Ibid.
40
The Innkeepers and Hotel Proprietors Law of AkwaIbom State; the Innkeepers and Hotel Proprietors Law of Imo State; the Innkeepers
and Hotel Proprietors Law of Kaduna State; and the Innkeepers and Hotel Proprietors Law Rivers State.
41
Cap. N137 Laws of the Federation of Nigeria 2004.
42
The Hospitality and Tourism Establishments (Registration, Grading and Classification) Regulations 1997, B185 made pursuant to ss 4(2)
and 20 of the Nigerian Tourism Development Corporation Act.
43
The Innkeepers and Hotel Proprietors Law of AkwaIbom State, ss 1 and 12; the Innkeepers and Hotel Proprietors Law of Imo State, ss 2
and 3; the Innkeepers and Hotel Proprietors Law of Kaduna State, ss 3 and 4; and the Innkeepers and Hotel Proprietors Law of Rivers State,
ss 1 and 12.
44
The Innkeepers and Hotel Proprietors Law of Imo State, s 4; the Innkeepers and Hotel Proprietors Law of Kaduna State, s 5; the
Innkeepers and Hotel Proprietors Law of Rivers State, s 2.
45
The Innkeepers and Hotel Proprietors Law of AkwaIbom State, s 12; the Innkeepers and Hotel Proprietors Law of Imo State, s 2; the
Innkeepers and Hotel Proprietors Law of Kaduna State, s 3; the Innkeepers and Hotel Proprietors Law of Rivers State, s 12.
46
The Innkeepers and Hotel Proprietors Law of AkwaIbom State, ss2-11; the Innkeepers and Hotel Proprietors Law of Imo State, ss 4-13;
the Innkeepers and Hotel Proprietors Law of Kaduna State, ss 5-14; the Innkeepers and Hotel Proprietors Law of Rivers State, ss. 2-11.
47
Kanyip, (n 31) 22.
48
The Innkeepers and Hotel Proprietors Law of Imo State, s 4; the Innkeepers and Hotel Proprietors Law of Kaduna State, s 5; and the
Innkeepers and Hotel Proprietors Law of Rivers State, s 2.
49
The Innkeepers and Hotel Proprietors Law of AkwaIbom State, 12; s. the Innkeepers and Hotel Proprietors Law of Imo State, s 2; the
Innkeepers and Hotel Proprietors Law of Kaduna State, s 3; the Innkeepers and Hotel Proprietors Law of Rivers State, s 12.

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No Longer at Ease: The Contract-Based Liability Posture of the Nigerian Law toward Consumers...
The use of the words, and in the case of a hotel, which offers sleeping accommodation if so required,
in the definition of an inn presupposes that a hotel is a type of inn. An innkeeper has an obligation to
reasonably protect guests from injury while at the inn. This duty of reasonable care requires vigilance in
protection of the guests from foreseeable risks. The innkeeper must protect guests from injury in the hands of
other guests and from assaults and negligent acts of his or her own employees. Also the liability placed on the
innkeeper for the safety of the person of his guest appears to be only restricted to the person of the guest and
does not seem to extend to his privies, associates and visitors. In some cases, the guest uses the services or
facilities of the service provider only to have a transaction with business associates, family members or friends,
persons whose safety, incidentally, the law does not seem to provide for. The innkeepers liability for the safety
of the guest is restricted only to the period he is the innkeepers guest. The ambiguity as to whether the safety
provisions in section 2 of the law apply to hotel guest or to visitors of the guest or not can be cured by amending
the law to deal with the privity problem. Section 2 of the law can be amended to read, It is the duty of an
innkeeper or hotel proprietor to take reasonable care for the safety of the person of the guest and those of his
visitors to the facility, so that they are not injured while in the premises or facility.
Secondly, both an innkeeper50 and a hotel proprietor51 are liable for the safety of a guests chattel. The
liability of the innkeeper from the wording of the law seems to be fault based, that is, where the injury is caused
to the guest through the misconduct or negligence of the innkeeper or his servant. An innkeeper is only liable
for the property of his guest which is lost, stolen or damaged within the premises of the inn where the loss or
damage is caused by his or his servants misconduct or negligence. 52 It would appear that the hotel proprietor
would be liable where the damage or lost has been caused, voluntarily or through negligence or lack of skill,
even in the slightest degree, by him,his servant or privy. A duty is therefore placed on every hotel proprietor to
be responsible for his action and to watch over the conduct of every person in his service, and take special care
that nothing contrary to the law or morality takes place on the premises. This presupposes a fault-based liability
regime.53 Where, however, the loss or damage is caused by the misconduct or negligence of the guest who
suffers the loss or damage, his servant or employee; or the loss or damage arises from an act of God or of alien
enemies; or the loss or damage is in respect of a motor vehicle or property left therein, according to the
provisions of section 4 of the law, the hotel proprietor is insulated from liability. Section 5 of the Innkeepers and
Hotel Proprietors Law of AkwaIbom State provides thus:
(1) without prejudice to any other liability incurred by a hotel proprietor with respect to property brought to the
hotel by a guest, the hotel proprietor shall not be liable to make good to any guest any loss of or damage to such
property except where(a)
at any time of the loss or damage, sleeping accommodation at the hotel has been engaged for the guest;
and
(b)
the loss or damage occurred during the period of engagement for which the person was a guest at the
hotel and entitled to use the accommodation so engaged.
(2)
without prejudice to any other liability or right, a hotel proprietor shall not be liable to make
good to any guest of his any loss of or damage to any motor vehicle or trailer brought to the hotel or any
property left therein; but nothing in this Law shall be construed as precluding the hotel proprietor and the guest
from entering into a contract for the safety of the motor vehicle or property therein. 54
The section, just like section 4 further qualifies the hotel proprietors liability. The section presents
three qualifications; that is, the loss or damage must relate to property belonging to a guest who has taken up
sleeping accommodation in the hotel or for whose benefit such accommodation has been reserved, the loss or
damage must occur during the period of such engagement for which the person was a guest and entitled to use
such accommodation, and in the absence of any special contract to the contrary liability does not include loss of
or damage to guest vehicles. The section raises some issues for the consumers. The first is that consumers who
reserved services other than sleeping accommodation in a hotel cannot have their property protected while in the
hotel. For such consumers, the section is a reaffirmation of the common law doctrine of caveat emptor. That
means consumers who engage the services and facilities of hotels for seminars, workshops, Annual General
Meetings, relaxation, games, exhibitions, fairs, etcetera, without sleeping accommodation are excluded from
50

The Innkeepers and Hotel Proprietors Law of AkwaIbom State, s 3; the Innkeepers and Hotel Proprietors Law of Imo State, s 5; the
Innkeepers and Hotel Proprietors Law of Kaduna State, s 6; and the Innkeepers and Hotel Proprietors Law of Rivers State, s 3.
51
The Innkeepers and Hotel Proprietors Law of AkwaIbom State, s 4; the Innkeepers and Hotel Proprietors Law of Imo State, s 6; the
Innkeepers and Hotel Proprietors Law of Kaduna State, s 7; the Innkeepers and Hotel Proprietors Law of Rivers State, s 4.
52
Agomo (n 22); Kanyip, Service Liability under Nigerian Consumer Law (n 18); Monye, The Defence of Foolproof System of
Production (n 28).
53
Although Kanyip, relying on ss 5 and 6 of the Innkeepers and Hotel Proprietors Law of Kaduna state, posits that liability of the innkeeper
is fault based in respect of both persons and goods, while that of a hotel proprietor from s 7 is strict but not absolute; Kanyip, Consumer
Protection in Nigeria: Law, Theory and Policy (n 5) 178. The position of strict, but not absolute liability for hotel proprietor leaves this
writer with the conclusion that for both innkeepers and hotel proprietor liability is fault based.
54
The Innkeepers and Hotel Proprietors Law of Imo State, s 7; the Innkeepers and Hotel Proprietors Law of Kaduna State, s 8; the
Innkeepers and Hotel Proprietors Law of Rivers State, s 5.

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No Longer at Ease: The Contract-Based Liability Posture of the Nigerian Law toward Consumers...
whatever responsibility the hotel proprietor owes his guests for the protection of their property. It is not only
guests who engage sleeping accommodation that the hoteliers would be liable for their propertyin the hotels. In
the United States of America, the simple invitation theory has been identified as a criterion for liability. 55
According to the theory, in deciding whether a defendant is liable or not for the safety of the plaintiff, the
question whether the plaintiff was a (legal) invitee of the defendant has to be first answered. There is however
no sign that this theory is making any impact in the courts, and the Canadian Courts continue to cling to the
material benefit standard.56 Accordingly, the following plaintiffs have been held to be invitees by the court:
customers in stores; 57 golfers on golf courses; 58 a lorry driver collecting luggage at the quarry; 59 the owner of a
property who has been given right of entry by the contractor to examine work in progress. 60 In these cases the
element of economic or material benefit to the business owner is clear. On the contrary, where the economic
benefit link is weak, entrants have been considered to be mere licensees. 61 An element of elasticity seems to
have been introduced into the term, material benefit. For example, babies accompanying their parents in a
supermarket have been held to be invitees of the store owners. 62 In Creighton v Delisle Union Memorial
Hospital,63 a pastor, who was visiting a hospital outside visiting hours, slipped on a floor which was being
waxed and was injured, and the Canadian Court was willing to hold that the pastor was an invitee. The
jurisprudence of the Supreme Court in Anyah gives judicial insight into how Nigerian courts would reason if
faced with situation similartoCreighton.Nigerian courts would perhaps have focused on the nonexistence of a
contract between the pastor and the proprietors of the hospital to determine the latters liability.
In the hotel business, the hotel proprietor makes material gains by way of income from guests who take
up accommodation and from other services and facilities. Whether the consumer lodges in the hotel or not, or
uses other facilities in the hotel, the hotels derive economic benefit from him, and it has been posited that an
entrepreneur that derives economic benefit from his relationship with another should be made to share in the
losses incurred by that other in the course of the transaction. 64 To leave consumers who engage hotel services,
no contract for accommodation, without any protection for their property amounts to the law encouraging
service providers to exploit the consumers. Service providers make economic gains from their contracts with
these consumers but leave them with no protection. This is absurd and appears to conflict with the English
position. In the English case of Williams v Linnitt, 65 the Plaintiff stopped, parked his car in the parking lot of an
inn to have a drink, he did not retain any sleeping accommodation. An hour later he discovered that his car had
been stolen. Despite a disclaimers notice displayed at the parking lot, the proprietor of the inn could not evade
liability in an action for recovery of the stolen vehicle by the Plaintiff. 66The plaintiff did not enter into a second
contract solely for the safety of his vehicle as required in Nigeria. 67
The second issue is that the loss or damage must have occurred during the period when the consumer
was a guest at the hotel and was given lodgings therein. 68 The third issue relates to the liability for loss of motor
vehicles. There is no liability, except specifically contracted, for loss or damage to motor vehicle or property
therein. The idea of duty of care has been identified as a thread that runs through the issue of liability for loss
of consumers vehicle within the hotel premises.69 The liability of a hotel proprietor for lost cars within the
hotels premises has been an issue decided upon by the Nigerian courts. In Anyah the fact were almost in all
fours with those of Williams, and the Supreme Court held that the respondent owed no duty of care to the
appellant, thereby, denying liability, when the appellant, who had lodged in the hotel had his car stolen. The
effect of the Supreme Courts decision is that in the absence of a special contract for the safe keeping of the
consumers vehicle, there is no duty on the service provider to provide security and ensure the safety of his
BME McMahon, Occupiers Liability in Canada (1973) 22 International and Comparative Law Quarterly 515 pp 518-519.
Paton, Invitees (1942) 27 Minn. L. Rev. 75; McMahon, ibid, p 518.
57
Boss v Robert Sumpson Eastern Ltd. (1969) 2 DLR (3d) 114; Joubert v Davidner (1969) 3 DLR (3d) 148; Gartshore v Stevens (1967) 64
DLR (2d) 582; Nernberg v Shop-Easy Stores Ltd. (1966) 57 DLR (2d) 471.
58
Ellison v Rogers (1968) 67 DLR (2d) 21.
59
Fiddles v Rainer Construction (1964) 45 DLR (2d) 367.
60
Foster &Robillard v C. A. Johannsen& Sons Ltd (1964) 43 DLR (2d) 493.
61
McMahon, (n 56) 519.
62
Gwynne v Dominion Stores Ltd. (1964) 43 D.L.R. (2d) 290; Caplan v Canada Safeway Ltd. (1968) 68 DLR (2d) 627.
63
(1962) 34 D.L.R. (2d) 606; in Pringle v Price (1970) 73 W.W.R 705, or 13 D.L.R. (3d) 346 the
plaintiff and the defendant had a loose
social reciprocal arrangement whereby they helped each other with their gardens. While so engaged one day, the plaintiff was injured by the
collapse of the defendants antenna pole. It was held that the plaintiff was an invitee and that the defendant was liable.
64
D Marshall, Liability for Pure Economic Loss Negligently Caused French and English Law Compared (1975) 24 The International and
Comparative Law Quarterly, 748, 750, 752- 761.
65
[1951] 1 All ER 278.
66
This, however, contrasts with the Nigerian position as represented by the Supreme Court in Anyah v Imo Concorde Hotels Ltd (supra).
67
Anyahs case, cfthe Innkeepers and Hotel Proprietors Law of AkwaIbom, s 5(2); the Innkeepers and Hotel Proprietors Law of Rivers
Sates, s. 5(2); the Innkeepers and Hotel Proprietors Law of Imo, s 7; the Innkeepers and Hotel Proprietors Law of Kaduna States, s 8.
68
This writer has dealt with this elsewhere. EE Ekanem, Safety and Quality of Hospitality Services in Nigeria: An Appraisal of the Legal
Framework (2010) vol. 8 University of Maiduguri Law Journal, 278, 281-282.
69
MO Adediran, and OS Oyelade, Responsibility of Hotel Proprietors for Loss of Lodgers Properties: An Examination of Anyah v. Imo
Concorde Hotel &Ors (2004) 3 No 1 Ibadan BJ, at p. 132.
55
56

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No Longer at Ease: The Contract-Based Liability Posture of the Nigerian Law toward Consumers...
guests motor vehicle, even when the service provider has engaged the services of the police and other security
personnel. The courts position was made clear when it held that:
The measures referred to here are that the security men were employed by the hotel and in addition
policemen have also been engaged and were present in the hotel at the time. This alone does not ipso facto
create any legal relationship between the appellant and the respondent to ensure the security of the appellants
car parked in hotel. It must be noted that the hotel itself has its own properties to protect and unless there is an
existing legal duty for it to protect the properties of others who came into the hotel, it has no duty of care owed
to them and the presence of security men and policemen in its premises alone cannot be taken to be security to
protect the properties of its visitors. 70
The reasoning of the Supreme Court, with the greatest respect, appears odd, though in tandem with the
provisions of Nigerian legislation.71 The Court has been said to have sounded too legalistic. 72 One wonders how
legalistic the reasoning of the Court in this case was, for if it were, the decision would have been in favour of the
appellant. The reasoning of the Supreme Court, with respect, was simply absurd, because it is common legal
sense that duty of care, as put forward in Donoghue v Stevenson, 73can reasonably be stretched to encompass the
fact of Anyahs case. 74The bane of Anyahs case was the absence of a specific contract for the safety of the
vehicle in addition to that for accommodation.
In Hill Station Hotel Ltd v Adeyi,75 the issue for determination was basically the same with
Anyahscase, that is, whether the hotel in question was liable for the missing vehicle parked within the premises
by the hotel guest. In Hill Station Hotel Ltd., the Court of Appeal, per Edozie, JCA agreed with the statement of
principle that generally, the proprietor of a hotel as an innkeeper, is an insurer of the property of his guests,
which is lost or stolen within the hospitium of the inn and he is under the same liability to make good to his
guest, any damage to the guests property brought to the hotel as though the goods were lost. 76 Although, the
conclusion reached by the court in this case is plausible, as it reveals an indication of the court to advance the
cause of the consumer, it has been contended that the premise upon which the case was decided cannot support
the use of the case as precedent in future cases as such, it may not survive a Supreme Court scrutiny. 77 Probably,
the dictum of the court to the effect that it had searched through the laws of Nigeria, and had not been able to
find a statute similar to the English Hotel Proprietors Act, 1856, 78 accounted for the shaky premise on which the
case was decided. Anyah, 79 which was decided four years later, seems to have confirmed the fears expressed by
Kanyip, when the Supreme Court refused to return a verdict of liability. Both Anyah and Hill Station Hotel were
decided without reference to the applicable legislation; the English Hotel Proprietors Act of 1856, or the
respective Innkeepers and Hotel Proprietors Laws applicable in the states. Although these statutes were not
brought to the attention of the court, but given the duty of the court to take judicial notice of legislation, one then
wonders if the Supreme Court decision in Anyah can be sustained in future cases even at the lower courts.
It appears that where motor vehicles or property in them are lost or damaged within the premises of the
hotel, there is no liability on the part of the service provider except contracted for. 80 For the consumer to
maintain an action against the service provider in contract for the recovery of his vehicle or other property in it,
damaged or lost within the hotel premises, the consumer must establish the existence of a distinct and separate
contract with the service provider for the safety of such vehicle or property therein, before the service provider
could be held liable. This implies that beside the contract for lodging, for the safety of the guests vehicle or
safety of property in such vehicle can only be guaranteed by the service provider, if the guest enters into a
70

(Supra) 246.
The Innkeepers and Hotel Proprietors Law of AkwaIbom State, s 5(2); the Innkeepers and Hotel Proprietors Law of Rivers Sates, s. 5(2);
the Innkeepers and Hotel Proprietors Law of Imo, s 7; the Innkeepers and Hotel Proprietors Law of Kaduna States, s 8.
72
Adediran, and Oyelade (n 69) 133.
73
[1932] AC 562
74
Ekanem, Safety and Quality of Hospitality Services in Nigeria: An Appraisal of the Legal Framework (n 68) 278 -298; EE Ekanem,
Institutional Framework for Consumer Protection in Nigeria: An Analysis. (2011) vol. 2, No. 1 International Journal of Advanced Legal
Studies and Governance, 35-48 for a detailed appraisal of the position of the Supreme Court in Anyahs case, available at
http://www.icidr.org/ijalsg_vol2no1_april%202011/Institutional%20Framework%20for%20Consumer%20Protection%20in%20Nigeria.pdf
(accessed on January 24, 2015).
75
[1996] 4 NWLR (Pt 442) 294.
76
Kanyip, Consumer Protection in Nigeria: Law, Theory and Policy (n 53) 177.
77
Ibid, 175 -199; BB Kanyip, Liability in Bailment: a Critical Appraisal of the Regime in Nigeria (2002) Vol 1 No.1 Benue State
University Law Journal, at pp. 138 -173.
78
Hill Station Hotel Ltd. v Adeyi(n 75) per Edozie, JCA, 312.
79
Anyah v Concorde Hotel was filed in March 1987 at the High Court of Imo State, the Supreme Court delivered judgment on December 13,
2002 in the appeal that was filed in 1995. Until December 30, 1990, there were no local legislation regulating services supplied by Hotel
Proprietors and Innkeepers in Imo State, the Laws of Eastern Nigeria 1963 was in force in Imo state. Although, the Innkeepers and Hotel
Proprietors Edict of the state was promulgated in 1994, the law was never referred to either by counsel or the courts. More so neither the
parties nor the court made any reference to the English Hotel Proprietors Act of 1856. Perhaps if the laws had been referred to the Supreme
Court would have held otherwise.
80
For instance the Innkeepers and Hotel Proprietors Law of AkwaIbom State, s 5(2); the Innkeepers and Hotel Proprietors Law of Imo State,
s 7(2); s the Innkeepers and Hotel Proprietors Law of Kaduna State, s 8(2); the Innkeepers and Hotel Proprietors Law of River s State, s 5(2).
71

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No Longer at Ease: The Contract-Based Liability Posture of the Nigerian Law toward Consumers...
separate contract with the hotel, irrespective of the impression of adequate security within the premises given by
the service provider. This position is most absurd and can be described as anti-consumer protection.

VI.

The Way Forward

This paper reveals that the liability of the service provider to the consumer of hospitality services in
Nigeria under the law, apart from criminal liability, 81 is premised on the existence of a contract between the
service provider and the injured consumer. The claim must be in relation with the particular subject matter of the
contract, so that where the contract was for accommodation, food and drinks, as was the case in Anyah, the
service provider was held not liable on the ground that the contract for accommodation did not specifically
include the missing car. The car was never found not to be missing. The consumer in that case, incidentally a
judge, left the court unsatisfied, unlike the one in the English case of Williams, a case that was decided over half
a century before Anyah.
It would appear that Nigerian courts are rather too dogmatic in clinching religiously to the contractbased liability to the detriment of consumers. A number of factors could have accounted for this. The first is the
fact that the Nigerian bench might just be lacking in judicial activism. Years back, Lord Denning had divided
his fellow judges into groups, the timorous souls who were fearful of allowing a new cause of action and the
bold spirits who were ready to allow it if justice so required. 82It has been expressed elsewhere that fewer judges
on the Nigerian bench appear to belong to the second group, the bold spirits. 83 This may account for why
Nigerian judges continue to hold fastidiously to the contract-based liability regime. The second is the myth
about hospitality services in Nigeria. It is generally believed that Nigerians are very religious people and
religion is very sacred and central to the existence of most of them irrespective of social class or status.84 Many
Nigerians perceive hotels with contempt; they do not want to be identified with hotels and hotels services as it is
generally felt that hotels are for women of easy virtue, men of the underworld, and where immorality thrives
contrary to religious inclination of the people. This, with the attitude of the courts in matters affecting
consumers of hospitality services, perhaps, explains the dearth of Nigerian cases on the subject matter. It is
difficult also not to reason that the attitude of the Nigerian judiciary has no connection with the general
perception of the industry by the people. Undoubtedly, it can be gleaned from the foregoing that the consumers
of hospitality services in Nigeria are no longer at ease with the contract-based liability regime that leaves them
with little or no protection.
Although the contract-based liability regime is still very important in any discussion on service
providers liability, at least for the purpose of not opening a flood gate of law suits, privity of contract alone no
longer serves the interest of justice from the consumers standpoint. It is recommended here that the adoption of
an eco-contort liability regime will greatly improve the status of the consumer of hospitality services in Nigeria.
By eco-contort liability, it is meant a combination of economic or business consideration, privity of contract and
the neighbourhood principle within the precinct of tortious liability that have all been discussed in this paper. A
legislative intervention is proposed in the form of amendment of the existing laws on the subject matter in
Nigeria to bring the position in Nigeria at per with those of other countries, like India and UK. While waitingfor
the legislature to intervene, the judiciary has a duty to rise to the occasion and make bold to adopt the ecocontort liability regime whenever the justice of the case require toease the existing burden of consumers of
hospitality services in Nigeria.

VII.

Conclusion

The concept of privity of contract seems to pose a problem in charting a liability regime in the
hospitality industry, not necessarily because there are some remote producers falling outside the contract, but
because the person intended to eventually benefit from the contract is held not to be a party to it. 85 The problems
posed by the privity doctrine, appear, have been addressed by the court through the process of using the tort type
of liability in contract or the economic or business benefit consideration as was in the cases ofCreighton, 86
Williams87and SashikantKrishnaii Dole.88 In Ross v Caunters, 89 for the plaintiff to succeed, the course of action
A research on the criminal liability of service providers to hotel guests has been done elsewhere; EE Ekanem, Criminal Law: What
Remedy for the Consumer of Hospitality Services? (2013) vol. 11 Judicial Review, pp. 1-18 available at
http://unn.edu.ng/sites/unn.edu.ng/files/unn.edu.ng/files/[user]/Article%201.pdf (accessed on January 24, 2015}.
82
Denning, Freedom under the Law (Hamlyn Lectures, 1949); Candler v Crane, Christmas & Co [1951] 2 KB 164, 178; [1951] All ER 426,
432; see also Gordon Borrie, The Development of Consumer Law and Policy- Bold Spirits and Timorous Souls (Steven &Sons 19884) xi.
83
EEEkanem, The Judiciary and Democratic Governance in Nigeria: So Far, How Far? (2013) Vol. 2 No. 1 UyoBar Journal, 153.
84
IzereImosemi, Religion and the Nigerian society, Punch Newspaper, September 17, 2012, available at
http://www.punchng.com/opinion/religion-and-the-nigerian-society/ (accessed January 24, 2015)
85
Pan African v shoreline Liftboats(n 23) per Adekeye, JSC, 43; Duru, and Igwe(n 2) 166-168; Scott and Black, (n 19) 198; Tweddle v
Atkinson (1861) 18 & S 393; Incar v Ojomo (1986) 5 NWLR (Prt 39) 42; Badaiki, (n 21); ADBadaiki,Consumer Protection and Standard
Form Contracts in Nigeria (Christdom Publishers 1999) 24;Agomo (n 52) 70-71.
86
(n 63).
87
(n 65).
88
(n 30).
81

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had to be framed in tort in order to steer through the privity problem. From the foregoing, a serious concern has
been identified in this paper inhibiting the consumer of hospitality services in Nigeria from having his right
protected. Importantly, for a guest in Nigeria to have his vehicle in the hospitium of the hotel where he is
lodging protected is the requirement of a separate distinct contract for the safety of the vehicle. This is a very
worrisome position, which is in contrast with the position in England.
Both a legislative and judicial intervention is required to address this problem, in a bid to elevate the
status of the Nigerian consumer of hospitality services. There is need to review the extant laws on the subject
matter, play down on contract as a basis for liability in favour of eco-contort liability regime, while in
appropriate cases, the courts should be guided by a desire to do justice and protect the ultimate consumers.With
these, it is hoped that the burden of the consumers of hospitality services in Nigeria would be greatly eased.

89

[1980] Ch. 297.

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