Product liability in Nigeria: a paradigm shift from fault-based to strict liability regime

Abstract

Until recently, civil liability for product defect in Nigeria was essentially fault-based under the law of contract and the tort of negligence. This made it extremely difficult for consumers to recover damages against manufactures and sellers of defective products and constituted a serious deterrence to consumers from seeking redress when they suffer loss or damage as a result of defective products. This article analyses the relevant provisions of the new Federal Competition and Consumer Protection Act 2018 and argues that they constitute a departure from the fault-based contract and negligence principles in favour of a strict product liability regime.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 No 1 of 2019.

2 Cap C32, Laws of the Federation of Nigeria (LFN) 2004.

3 The terms is also expressed as ‘products liability’ under the US system; see s 402d of the 2nd Restatement of the Law: Torts (1964) and chap 1 of the 3rd Restatement of the Law: Torts (1997) and the works of American authors such as JA Henderson, Jr and AD Twerski, Products Liability: Problems and Process (Aspen Publishers Wolters Kluwer, 2011); MI Krauss, Principles of Products Liability (Thomson, 2010); DC Owen, Product Liability in a Nutshell (Thomson West, 2008) and R W Eades, Mastering Products Liability (Carolina Academic Press, 2008). But under the European system the expression ‘product liability’ is commonly used; see the Consumer Protection Act 1987 (UK) pt 1 and works of English authors such as AM Clark, Product Liability, (Sweet & Maxwell, 1989); P Kelly and R Attree (eds) European Product Liability (Butterworths, 1992); J Stapleton, Product Liability (Butterworths, 1994) and C Campbell (ed) International Product Liability (Yorkhill Law Publishing, 2007).

4 John CP Goldberg and Benjamin C Zipursky, ‘The Easy Case for Product Liability Law: A Response to Professors Polinsky and Shavell’ [2010] 123(8) Harv Law Rev 1919–1948, 1923.

5 For example in the US, products liability is often narrowly confined to the liability created under the Restatements of Law (Torts). See for example, G T Schwartz ‘Foreword: Understanding Product Liability’ [1979] 67(3) Calif Law Rev 435; JA Henderson, Jr and A Twerski, ‘The Politics of the Product Liability Restatement’ [1997–1998] (26) Hofstra Law Rev 667.

6 Goldberg and Zipursky (n 4).

7 Criminal liability is not within the scope of the discourse here.

8 See Nigerian Breweries Plc v David Audu (2009) LPELR-8863(CA) per Omoleye, JCA 28.

9 Alistair Clark ‘The Conceptual Basis of Product Liability’ [1985] (48) Modern Law Rev, 325; Reed Dickerson, 'The Basis of Strict Products Liability' [1961] 16(10) Food Drug Cosmetic Law J 585–596; Reed Dickerson, 'Products Liability: How Good Does a Product Have to Be?' [1967] 42(3) Indiana Law J, 301–332; Donald M. Jenkins, ‘The Product Liability of Manufacturers: An Understanding and Exploration’ [1971] 4(2) Akron Law Rev 135–201; Gregory C Keating ‘Products Liability As Enterprise Liability’ [2017] 10(1) J Tort Law. https://doi.org/10. 10.1515/jtl-2017-0009; Freedman, 'Defect in the Products: The Necessary Basis for Products Liability in Tort and in Warranty' [1966] (33) Tenn L Rev 323; David A Fischer, ‘Products Liability–The Meaning of Defect’ [1974] 39 Modern Law Rev 339; Frank J Vandall ‘Design Defect’ in Products Liability: Rethinking Negligence and Strict Liability’ [1982] 43 Ohio State Law J 61; Jerry J Phillips, ‘The Standard for Determining Defectiveness in Products Liability [1977] (46) Univ of Cic L Rev 101; Abed Awad, ‘The Concept of Defect in American and English Products Liability Discourse: Despite Strict Liability Linguistics, Negligence Is Back with a Vengeance!’ [1998] 10 Pace Int’l L Rev 275.

10 See for example, William Powers, ‘A Modest Proposal to Abandon Strict Products Liability’ [1991] U Ill L Rev 639; AM Polinsky and S Shavell, ‘The Uneasy Case for Product Liability’ [2010] 123(6) Harv Law Rev 1437–1492.

11 AM Polinsky and S Shavell, ‘Skeptical Attitude About Product Liability is Justified: A Reply to Professors Goldberg and Zipursky’ [2010] 123(8) Harv Law Rev 1949.

12 Goldberg and Zipursky (n 4) 1948.

13 See for example the Administration of Criminal Justice Act (Nigeria) s 319; FCCPA, s 154; Powers of Criminal Courts (Sentencing) Act, 2000 (UK) s 130.

14 J Macleod, Consumer Sales Law (Cavendish Publishing Ltd, 2002) 512.

15 AM Clark, Product Liability (London: Sweet & Maxwell, 1989) 74–74.

16 Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal 2n 453, 2nd 436 (1994).

17 BB Kanyip, Consumer Protection in Nigeria: Law, Theory and Policy (Rekon Books Ltd., 2005) 296.

18 See Comment c to s 402A of the American Restatement (2nd) of Torts, 1965.

19 See RS Summers, ‘Strict Liability in Tort for Personal Injuries Caused by Dangerously Defective Products – Aspects of the American Experience’ in L Kalliomaa (ed) Lectures on Products Liability: Report from a Jubilee Seminar (Department of Private Law, University of Helsinki) 1990, 23–47.

20 Kanyip (n 17) 298.

21 Ibid.

22 See, for example, AD Badaiki, ‘The Legal Regime of Products Liability in Nigeria’ [2001] 5(1) Modern Pract J Finance Investment Law 36; AD Badaiki, ‘Towards an International Legal Regime of Consumer Protection for Developing Countries: Nigeria as a Case Study’ [1993] 6(4) Justice 43; KA Apori, ‘Towards a Strict Liability Standard in Defective Product Law’ [1991/92] BENSU Law J 3; O Ajai, ‘Caveat Venditor: Consumer Protection Decree No 66 of 1992 Arrives in the Nigerian Market Place’ [1992/93] Niger Curr Law Rev 23; Felicia Monye, ‘The Defence of Foolproof System of Production’[2005] 1 Consumer J; Felicia Monye, Law of Consumer Protection (Spectrum Books 2003) 271–272; Benedict Kanyip, Consumer Protection in Nigeria: Law, Theory and Policy (Rekon Books Ltd., 2005) 295–299.

23 56 & 57 Vict Ch 71 1893. This used to be a statute of general application in Nigeria but is no longer so except for any state in the former Northern and Eastern Regions that has not enacted a sale of goods law. The authors are not aware that there is such a state.

24 1979 Ch 54.

25 For example Contract Law, Cap 26, Revised Laws of Enugu State 2004 (CL Enugu) ss 542 − 544; Sale of Goods Law of Kaduna State 1990 (SGL Kaduna), ss 15 − 17; Sale of Goods Law, Cap S2, Laws of Lagos State, 2003 (SGL Lagos), ss 14 − 17; Sale of Goods Law, Cap S1 Cross Rivers State 1991 (SGL Cross River) ss 12 − 14.

26 See the cases of Ogwu v Leventis Motors [1963] NRNLR 115 (on compliance with description); Plastic Manufacturing Co Ltd v Toki of Nig Ltd. [1976] 12 CCHCJ 270; DIC Industries v Jimfat (Nig) Ltd (1975) 2 CCHCJ 175 and Opia Ijoma v Mid Motors (Nig) Co Ltd (1974) 9 CCHCJ 1325 (on fitness for purpose); British Overseas Credit Ltd v Animashawn [1961] 1 All NLR 343; Henry Stevens Engineering Co v Complete Home Comfort Enterprises [1987] 1 NWLR (Pt 47) 40 (on merchantability) and Boshali v Allied Commercial Exporters Ltd [1961] 1 All NLR 917 and Friedrisdorf & Co v Fuja [1967] LLR 115 (on correspondence with sample).

27 [1985] 1 NWLR (Pt 4) 739, SC.

28 CL, Enugu, s 545(2); SGL, Lagos, s 12(2); Onotu v Adeleke & Anor. [1975] NNLR 130; Amadi v Thomas Aplin Co Ltd [1972] 1 All NLR 409.

29 CL Enugu, s 573(2); SGL Lagos, s 52; SGL Kaduna, s 53; Paye v Gaji [1996] 5 NWLR (Pt 450) 589, 605.

30 CL Enugu, s 457; Union Beverages Ltd v Pepsi Cola International [1994] 3 NWLR (Pt 330) 1, 17; 7Up Bottling Co Ltd v Abiola [1995] 4 NWLR (Pt 389) 287.

31 See Price v Easton (1833) 4 B & Ad. 433 and Tweddle v Atkinson (1861) 1 B & S 393. See Nigerian cases of Negbenebor v Negbenebor (1971) 1 All N.L.R. 210; Ikpeazu v African Continental Bank Ltd (1965) 1 NMLR 374 at 379 and Shuwa v Chad Basin Authority [1991] 7 NWLR (Pt 205) 550.

32 Ikpeazu v African Continental Bank Ltd (1965) 1 NMLR 374; Negbenebor v Negbenebor, ibid; Shuwa v Chad Basin Authority, ibid; Makwe v Nwuko (2001) LPELR-1830.

33 The recognised exceptions include: covenants running with land (Tulk v Moxhay (1848) 2 Ch 744); agency, assignment and novation (Laibru Ltd v Building and Civil Engineering Contractors (1962) 1 All NLR 387); charter parties (De Mattos v Gibson [1859] 4 De G & J 276) and contracts of insurance (Married Women’s Property Act 1882, s 11; Motor Vehicles (Third Party) Insurance Act, Cap M22, LFN, 2004, s 6(3)).

34 [1938] 4 All ER 258

35 [1990] 2 NWLR (Pt 133) 520, CA.

36 For example: CL Enugu, s 575; SGL Lagos, 55. The sale of goods laws of some states do not allow the exclusion of implied terms. Example are SGL Kaduna, s 66(2); SGL Cross River, s 63(2).

37 Rufus A Mmadu, ‘Application of Implied Terms in the Sales of Goods act to Consumer Transactions in Nigeria: Between Consumers Protection and Safeguarding the Sanctity of Contracts’ [2014] 2(2) J Bus Law Ethics 63.

38 CL Enugu, s 545(2); SGL Lagos, s 12(2); SGL Kaduna, s 13. This means that even what the buyer-consumer perceives from the express terms of the contract to be a condition may after all not be so.

39 Although the principles of law of tort generally are of common law origin states in Nigeria have codified the law of tort; for example, the Torts Law, Cap 150, Vol VI, Revised Laws of Enugu State, 2004; Law Reform (Torts) Law, Laws of Lagos State, 2003.

40 (1932) 1 AC 562.

41 Osemobor v Niger Biscuits (Nig) Ltd (1973) NCLR 382; Soremi v Nigerian Bottling Co Ltd (1977) 12 CCHCJ 2735.

42 Watson v Buckley [1940] 1 All ER 174; Nigerian Bottling Co Ltd v Constance Ngonadi [1985] 1 NWLR (Pt. 4) 739, SC.

43 Burfit v A & E Kille [1939] 2 KB 743.

44 Andrew v Hopkinson [1957] 1 QB 229.

45 Donoghue v Stevenson (n 40) per Lord Aktin, 599.

46 Torts Law of Enugu State, s 219; Adeosun v Adisa [1986] 5 NWLR (Pt 40) 227.

47 Felicia Monye, ‘The Defence of Foolproof System of Production’ (n 23) 2 and Felicia Monye, ‘Liability for Defective Products’ (1994–1997) 6 Niger Juridical Rev 13–157.

48 [1936] AC 85.

49 (1980) 1 PLR 581.

50 (1980) NCLR 109.

51 FCA/L/101/82.

52 (2014) LPELR-22542(CA).

53 Ibid, Nweze JCA, (as he then was) 53–54, paras B–C.

54 BB Kanyip, ‘Consumer Protection and Product Liability in Nigeria’ [2002] 1(1) ABU J Commercial Law 978. Monye, ‘The Defence of Foolproof System of Production’ (n 23) 1–34.

55 See for example the cases of Onyejekwe v Nigerian Breweries Ltd (unreported) Suit No E/1972, 1 June 1973; Okonkwo (n 50); Boardman (n 51).

56 (2008) 5 NWLR (Pt 1079) 172 SC; (2008) LPELR-2537(SC)

57 For detailed discussion of this case, see Felicia Monye, ‘Product Liability in Nigeria: Okwejiminor v Gbakeji & Nigerian Bottling Co Plc’ [2009] 35 Commonw Law Bull 649.

58 The doctrine relieves the plaintiff of the evidential burden, which is then cast on the defendant to show that he exercised all reasonable care to avoid the accident. For the doctrine to apply, however, the plaintiff must prove that the thing, which caused the accident was under the care and control of the defendant; that the occurrence is such that it could not have happened if the defendant had exercised reasonable care and that there is no evidence as to how the occurrence took place. See WVH Rogers, Winfield and Jolowicz on Tort (17th edn London: Sweet and Maxwell, 2006) 261; Audu v Ahmed [1990] 5 NWLR (Pt 150) 287, CA; Torts Law of Enugu State, s 226.

59 Scott v London & Katherine Docks & Co Ltd (1965) 3 H & C 596; NEPA v Alli & Anor [1992] 8 NWLR (Pt 259) 279, SC.

60 G Woodroffe and R Lowe, Woodroffe and Lowe’s Consumer Law and Practice (London: Sweet and Maxwell, 2010); J Mickleburgh, Consumer Protection (Professional Books, 1979) 215.

61 See Monye, Law of Consumer Protection (n 23) 173–179, for detailed discussions on these views.

62 (2007) 5 NWLR (Pt 1027) 255.

63 PS Atiyah, The Sale of Goods (London: Pitman, 1995) 227; Monye, Law of Consumer Protection (n 23) 191.

64 [1972] 1 QB 373, 396.

65 CPCA, s 2.

66 Ibid, s 6.

67 Ibid, s 8.

68 Monye, Law of Consumer Protection (n 23) 63.

69 Art 5. The Guidelines were first adopted by the General Assembly in resolution 39/248 of 16 April 1985, later expanded by the Economic and Social Council in resolution 1999/7 of 26 July 1999, and revised and adopted by the General Assembly in resolution 70/186 of 22 December 2015.

70 Consumers International Regional Office for Africa, Model Law for Consumer Protection in Africa (Zimbabwe 1996) art 3.

71 CPC Act, s 2(a).

72 South African Consumer Protection Act, No 68 of 2008, Chap 3, ss 8–67.

73 OJ Oluwatola, ‘The Role of the Consumer Protection Council (CPC) in Consumer Protection’ NAFDAC Consumer Safety Bulletin, Vol. 3 No. 3 (NAFDAC, 2004) 24–25. See also http://www.commerceng.org/index.html, the official website of the Federal Ministry of Commerce, accessed on 26 January, 2014.

74 See I Umenyi, ‘The Role of the Consumer Protection Council in a Liberalised Economy’ [2006] 2(1) Consum J 68.

75 For example, Lagos, Kano, Kogi, Kaduna, Gombe, Niger and Jigawa states set up such committees under their own initiatives while Enugu, Ekiti, Akwa Ibom and Imo states set up their own committees under the CPCA scheme. Many states did not set up a consumer protection committee either under the CPC scheme or otherwise.

76 Although the Bill for the enactment of the Act had earlier been passed by the National Assembly in 2018, it only received Presidential assent on 30 January 2019 but was officially gazetted as ‘Federal Competition and Consumer Protection Act 2018’. See Federal Government Printer ‘Government Notice No 5’, Federal Republic of Nigeria Official Gazette No 18 Vol 106 (Lagos: Federal Government Printer, 2019) A1-96.

77 FCCPA s 1(1).

78 Ibid s 1(2).

79 Ibid s 1(3).

80 These are the rights to satisfaction of basic needs; safety; information; choice; to be heard; redress; consumer education; and healthy and sustainable environment. See Consumer International, ‘Consumer Rights’ at http://www.consumersinternational.org/who-we-are/consumer-rights/ (accessed 15 September 2019).

81 FCCPA ss 114–117.

82 Ibid ss 119 − 122.

83 Ibid ss 123–129.

84 Ibid ss 130 and 131.

85 Ibid ss 132 and 136.

86 Ibid s 134.

87 Ibid s 135.

88 Ibid ss 135(3) and 155(c).

89 Ibid s 135(4).

90 Damage includes personal injury and damage to consumer’s property; FCCPA, s 136(2).

91 See for example, America’s Third Restatement of Tort, s 2 (b) and (c) on design and information defect; Consumer Protection Act 1987 (UK) – s 3(2) – warning defect) and South African Consumer Protection Act 2008 – s 61(c) – information defect.

92 FCCPA, s 136(5).

93 Chap 50 1977.

94 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 purposes of a business; FCCPA s 137(2).

95 FCCPA, s 138(1).

96 Ibid s 138 (2) and (3). The inclusion of non-consumer contracts and the test of reasonability for the validity of exclusionary clauses may be considered inappropriate in a statute designed wholly for the protection of consumers. Thus, in UK, in addition to the provisions of the UCTA 1977, specific provisions relating to exclusionary clauses are contained in the Consumer Rights Act, Cap 15, 2015.

97 FCCPA s 141.

98 Ibid s 104.

99 Consumers International, Open Society Initiative of West Africa and Consumer Awareness Organisation, Research Report on the State of Consumer Protection in Nigeria: A Review of Consumer Protection in the Telecommunications Sector in Nigeria (2014) 8, <http://www.consumersinternational.org/media/2255/consumer-protection-in-nigeria-research-report-eng.pdf> accessed 26 November 2019; see also Consumer Awareness Organisation, Consumer Handbook (Consumer Awareness Organisation, 2018) 1 and F Monye, ‘An Overview of Consumer Law in Nigeria and Relationship with Laws of Other Countries and Organisations’ (2018) 41 J Consum Policy 373–393, 374 <https://doi.org/10.1007/s10603-018-9385-0>

100 Such as Food and Drugs Act 1974; Consumer Protection Council Act 1992; National Agency for Food and Drug Administration and Control Act 1993; Food, Drug and Related Products (Registration, etc.) Act 1993; Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act 1999; National Tobacco Control Act, 2015; Standards Organisation of Nigeria Act 2015; Electric Power Sector Reform Act, 2005.

101 Sale of Goods Laws of various states of the Federation; Hire Purchase Act 1965; Trade Malpractices (Miscellaneous Offences) Act 1992; Weights and Measures Act, 1973 and Price Control Act 1977.

102 Laws in this category will include Nigerian Communications Act, 2003; Banking and Other Financial Institutions Act 200; Central Bank of Nigeria Act 2007; Nigerian Civil Aviation Act as well as laws regulating various professional services such as Legal Practitioners Act and Nigeria Medical and Dental Practitioners Act.

103 Torts Laws of various states of the Federation.

104 Contract Laws of various states of the Federation.

105 Ibid s 3.

106 Ibid, s 39 (1).

107 Ibid, s 17.

108 Ibid, s 18.

109 Ibid s 47.

110 Ibid s 54.

111 Ibid s 55(2).

112 Ibid s 146(1) and (2).

113 Appropriate court will be the court that has jurisdiction to determine the dispute based on the subject matter or the quantum of damages being claimed.

114 FCCPA s 152. It is hoped that ‘shall’ here will be interpreted as discretionary and not mandatory.

115 See FCCPA, s 155. The terms of imprisonment and fines have been highlighted in para 4.1 above.

116 Ibid, s 154.

117 See CFRN 1999 (as amended) s 251(r).

118 Consumers International, Open Society Initiative of West Africa and Consumer Awareness Organisation (n 99) 139 – 144.

119 Clark (n 8) 1.

120 Consumer Protection Act Cap 43 of 1987 s 3.

121 Third Restatement of Tort (Product Liability) 1997, chap 1 s 2.

122 See Consumer Protection Act No 68 of 1986 s 2(1)(e).

123 Richard W Wright, ‘The Principles of Product Liability, in Symposium, Products Liability: Litigation Trends on the 10th Anniversary of the Third Restatement’, (2007) 26 Rev Litigation, 1067 − 1122, 1072 − 1078 < http://scholarship.kentlaw.iit.edu/fac_schol/719> accessed 26 November 2019.

124 Tyrus V Dahl Jr., ‘Strict Products Liability: The Irrelevance of Foreseeability and Related Negligence Concepts’ (2013) 14 Tulsa Law J 338–382; Gregory C Keating, ‘Is There Really No Liability Without Fault: A Critique of Goldberg & Zipursky’ [2017] 85 Fordham Law Rev 24.

Additional information

Notes on contributors

Festus Okechukwu Ukwueze

Festus Okechukwu Ukwueze, PhD (Nig), Senior Lecturer and currently acting head, Department of Commercial and Corporate Law, Faculty of Law, University of Nigeria, Enugu Campus, Enugu State, Nigeria; barrister and solicitor of the Supreme Court of Nigeria; member Nigerian Association of Law Teachers. He teaches various aspects of commercial law notably Consumer Protection Law, Competition Law and Electronic Commerce Law.

Ebelechukwu Lawretta Okiche

Ebelechukwu Lawretta Okiche, PhD (Nig), lecturer, Department of Jurisprudence and Legal Theory, Faculty of Law, University of Nigeria, Enugu Campus, Enugu State, Nigeria; barrister and solicitor of the Supreme Court of Nigeria; member Nigerian Association of Law Teachers and International Federation of Women Lawyers. She teaches Law of Consumer Protection and Jurisprudence and Legal Theory.