I INTRODUCTION TO THE PRODUCT LIABILITY FRAMEWORK

Product liability is the liability of a manufacturer, supplier or retailer towards the customer for injury or loss resulting from a defect in that product. In a Nigerian context, product liability deals with the quality and safety of products between businesses (wholesalers, retailers, suppliers, manufacturers and distributors) and consumers. It is premised upon damage caused by a design, manufacturing, or instruction or warning defect in a product. When injuries occur as a result of use of a product acquired through a commercial transaction, the manufacturer may then be held liable for claims in tort, contract and criminal law if the product is defective.

The prevailing factor in determining the scope of product liability claims in Nigeria is consumer protection against the supply or production of defective products. This has been aptly stated by the nation’s Supreme Court in the Nigerian Bottling Co Ltd v. Ngonadi case,3 where the claimant or respondent sustained severe injuries from a brand of kerosene refrigerator that was sold to her by the defendant or appellant. Giving the concurrent judgment, Aniagolu JSC stated, inter alia:

… nothing appears to be elementary in this country where it is often the unhappy lot of consumers to be inflicted with shoddy and unmerchantable goods by some pretentious manufacturers, entrepreneurs, shady middlemen and unprincipled retailer whose avowed interest seems only, and always, to be to maximise their profits leaving honesty a discounted and shattered commodity.4

The manufacturer’s duty of care, long-established by the Appellate Committee of the UK House of Lords (now known as Supreme Court), in Donoghue v. Stevenson5 is well-recognised by the Nigerian courts. In fact, Donoghue v. Stevenson appears to be the locus classicus on the issue of duty of care in the realm of law of negligence in the country.6 However, for tortious liability to accrue in negligence, the evidence must demonstrate four basic components of the torts of negligence: (1) that there was a duty of care owed; (2) that the product was defective or there was a foreseeable misuse and thus the duty was breached; (3) that the defect caused the injury; and (4) that this was foreseeable and directly contributed to the plaintiff’s loss.7

Negligence is a question of fact, not law, and each case is decided in the light of its own particular facts.8 Until recently, claimants in Nigeria had found it difficult to succeed in their product liability claims largely because of the ‘foolproof’ production defence often employed by manufacturers to sway the judgments of the courts.9 The decision of the Supreme Court in Okwejiminor v. Gbekeji & Nigerian Bottling Co plc,10 which awarded liability for an ailment suffered by the appellant after drinking Fanta orange drink containing a dead cockroach, in spite of the foolproof production evidence advanced by the manufacturer, is, however, a welcome development for consumers. The manufacturer had argued that, although the presence of the cockroach in the Fanta orange drink might give rise to the inference of negligence, it took all reasonable care in its production process, and consequently, this care would have successfully rebutted negligence. The Court rejected this argument and affirmed that the manufacturer was liable in negligence to the appellant (Okwejiminor).

Product liability claims may also be brought for breach of contract, in particular of express terms relating to the products in question, under the United Kingdom Sale of Goods Act 1893, which has general application in the country as a pre-1900 English Statute of General Application.11 Although local sale of goods laws are now applicable in different states of Nigeria, these laws are largely a reproduction of the Sale of Goods Act 1893.12 Thus, a consumer who obtains a product by way of sale can sue the seller for any injury suffered in consequence under any of these sale of goods laws.

In addition, given the safety expectations of consumers in Nigeria, product liability claims may criminally lie against manufacturers in contravention of various statutes and regulations that prohibit various acts relating to defective product matters in terms of whether: (1) the product is sold; (2) the product is designed or manufactured in a defective manner; (3) the harm caused by the product is foreseeable; and (4) the manufacturer fails to warn the user of a non-obvious danger.13

II REGULATORY OVERSIGHT

The Consumer Protection Council (CPC), established under Consumer Protection Council Act 2004 (previously the Consumer Protection Council Decree 1992, which came into force on 29 November 1992), is the principal regulatory agency charged with the protection of consumer rights and redress mechanisms aimed at protecting these rights.

The CPC, as a parastatal of the Nigerian federal government is supervised by the Federal Ministry of Trade and Investment. The Council is made up of a chairman, a representative from each state in Nigeria and persons representing the ministries of Health, Commerce, Industry, Science and Technology, and Petroleum Resources.

Under Section 2 of the Consumer Protection Council Act 2004 (the CPC Act), the functions of the CPC include:

  • a providing speedy redress to consumer complaints through negotiation, mediation and conciliation;
  • b seeking ways and means of eliminating hazardous products from the market and causing offenders to replace such products with more appropriate alternatives;
  • c causing an offending company or individual to protect, compensate, and provide relief and safeguards to consumers or communities injured by adverse effects of technologies that are inherently harmful;
  • d ensuring consumer interests receive due consideration at appropriate forums and provide redress for the exploitation of consumers; and
  • e encouraging the adoption of appropriate measures to ensure that products are safe for either intended or normally safe use.

Section 3 of the CPC Act gives additional powers to:

  • a apply to the court to prevent the circulation of any product that constitutes an imminent threat to public health or safety;
  • b compel manufacturers to certify that all safety standards are met in their products;
  • c require, as it deems necessary, quality tests to be conducted on consumer products;
  • d demand production of labels showing the date and place of manufacture of a commodity as well as certification of compliance;
  • e compel manufacturers, dealers and service companies, where appropriate, to give public notice of any health hazards inherent in their products;
  • f ban the sale, distribution, advertisement of products that do not comply with safety or health regulations.

Furthermore, Section 4 of the CPC Act provides for the establishment of a state committee to assist the CPC in each state in dealing with any alleged injury caused to the consumer who may seek redress in court. Section 6 of the 2004 Act also empowers consumers or communities to make a complaint in writing or to seek redress through the state committees for injury or loss suffered as a result of the use or impact of any products or services. The Court of Appeal in Nigerian Breweries plc v. David Audu underscored the broad consumer-focused provisions of the CPC Act and stated that it is unique in the sense that it seeks not only to preserve the consumers’ civil rights of action for compensation, but also to give power to the Council created under its auspices to use the courts to prevent the circulation of any product that may constitute a potential hazard to consumers.

Apart from the CPC, the National Agency for Food and Drug Administration and Control (NAFDAC) was established by the National Agency for Food and Drug Administration and Control Act 2004. The functions of the Agency include regulating and controlling the import, export, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, detergents, bottled water and chemicals in Nigeria.14

Under the NAFDAC Act 2004, NAFDAC has regulatory oversight over the quality and safety of the aforementioned items and is empowered to, after appropriate analysis, make rulings or prescriptions on how any identified shortcomings may be addressed. NAFDAC can also issue regulations on products that, inter alia, impose liability for breach and require certification of regulated products before they can be sold to the general public.

Section 26 of the NAFDAC Act 2004, also empowers NAFDAC to conduct criminal proceedings, subject to the approval of the Attorney-General of the Federation, in respect of offences under Section 25 of the NAFDAC Act, or Regulations made pursuant to Section 30 of the NAFDAC Act.

In exercising the powers conferred on it by Section 30 of the Act, NAFDAC, since inception, has produced subsidiary legislation aimed at protecting consumers against defective products.15

Another regulatory agency is the Standards Organisation of Nigeria (SON), established by an enabling Act No. 56 of December 1971, which was re-enacted as the Standard Organisation of Nigeria Act, Cap. S9 (LFN) 2004, now repealed by the Standard Organisation of Nigeria Act 2015 (the Act). The functions of the SON under the Act are to standardise methods of production within Nigerian industries, and to provide for other connected matters. The SON’s governing body is known as the Nigerian Standards Council, and exercises this function on behalf of the SON. In particular, the Standards Council is responsible for ensuring product safety by setting out Nigerian industrial standards and conducting tests to ensure compliance with product standards. In addition, the SON also regulates the quality of products manufactured in Nigeria.

III CAUSES OF ACTION

Black’s Law Dictionary defines a cause of action as ‘[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person’.16 The approach to causation in tort is that the defendant act must have caused the damage, but the defendant’s conduct may not be a cause of the damage if the damage would have occurred without it. In Egbe v. Adefarasin,17 the Supreme Court of Nigeria drew a distinction between a cause of action and the right to enforce a course of action, stating that a cause of action is ‘the factual situation that gives rise to judicial relief […] to be distinguished from a right of action [… which] is the right to enforce presently a cause of action’.18 This suggests that while a cause of action cannot be assigned, the right to enforce a cause of action may be assigned or undertaken by a third party on behalf of the claimant.

Causation in contract liability claim, however, rests, on the key provision of the Sale of Goods Act 1893 mentioned in Section I, supra. This Act creates an implied term that goods sold ‘in the course of the seller’s business’ are of ‘merchantable quality’.19 This appears to protect the weaker party (usually the buyers or consumers) from the stronger party (usually the manufacturer or carrier). In the main, taking into account any description of the goods and the cost/consideration provided for sale, if the goods bought are not fit for any purpose for which the goods are normally used, the vendor may be liable under the Nigerian law, because the goods are not of merchantable quality. Thus, the injured party is entitled to damages because breaches of conditions in this regard are treated as breaches of warranty. The injured party may also ask for repudiation barring the event stated by Section 11(1)(c) of the Sale of Goods Act 1893:

Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, or where the contract is for specific goods, the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract, express or implied, to that effect.

Furthermore, liability in contract is usually (but not always) strict; in other words, there is no need to prove an element of negligence. For example, an innocent misrepresentation, if it induces the purchase of the product in question, can give rise to a claim for breach of the implied terms. Secondly, claims can be made in contract for pure financial losses.

With regard to criminal liability, Section 10(2)(b) of the the CPC Act 2004 empowers the Attorney-General of the Federation to institute action against a person who acts in breach of the provisions of the Act. Breach of these provisions can lead to one or possible offences under the following sections:

  • a Section 9(1): failure to notify immediately the general public of a risk or danger of defective product and cause to be withdrawn from the market such product;
  • b Section 11: issue or aid in issuing any wrong advertisement about a consumer item;
  • c Section 12(a)(b): sell or offer for sale any unsafe or hazardous goods (and provide any service or proffer any information or advertisement thereby causing injury or loss to a consumer);
  • d Section 18: negligence or refusal to appear and give evidence before the Council or the State Committee or to answer any lawful enquiry, or produce required document;
  • e Section 19: deliberately make false entry or statement in any report, account, record or memorandum; and
  • f Section 21: violation of any order of the Council or State Committee.

In particular, the penalty in relation to the above offences is fine or imprisonment, or both fine and imprisonment, but the Act provides no statutory defence for these offences. It might seem that whether the defence is made out will be a question of fact in each case.

Further, by virtue of paragraph 3(e) of the Fundamental Right (Enforcement Procedure) Rules 2009, anyone acting on behalf of another person may institute an action for the enforcement of a fundamental right of the person in whose behalf he or she acts. Also, the essential elements that constitute a cause of action are the wrongful act of the defendant that gives the claimant the cause of complaint and the consequential damage.20

Again, by virtue of the provisions of the CPC Act, charges can only be brought against producers of defective products by the CPC or a state committee alone.21 This indicates that action will only take place after an investigation by the CPC or state committee of any alleged injury caused to the consumer seeking redress in court. Yet, such approach seems to run contrary to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which entitles every Nigerian to unfettered rights to institute actions in the courts or other tribunals established by law.

IV LITIGATION

i Forum

The Constitution of the Federal Republic of Nigeria 1999 (as amended) vests the High Court of any state with the jurisdiction to hear and determine any civil (or criminal) proceedings in the country.22 Nigeria has no less than eight different systems of courts generally classified as superior, subordinate and other courts.23 The Federal High Court, consisting of a chief judge assisted by other judges, is conferred with exclusive jurisdiction to try offences committed in contravention of federal law, including product liability provisions under the federal laws as mentioned above.24

Unless specifically prescribed as exclusive, the state high court in each of the 36 federating units, consisting of a judge, who could form the required quorum,25 has concurrent jurisdiction with the Federal High Court in every other matter, including product liability claims. In Ompandec v. Ajoku26 the Court of Appeal stated that under Article 230(1)(q), (r), and (s) of the 1979 Constitution, which is Article 251(1) (q), (r) and (s) of the 1999 Constitution as amended, noted above, the Federal High Court enjoys exclusive jurisdiction in matters specified and no other court is competent to adjudicate. Interpretation of this provision must be ordinary as codified.27

Furthermore, pursuant to Article 251(1) of the Constitution, as amended, where a person seeks relief against the federal government or any of its agencies for damages, injunction or specific performance, both the high court of the state and the Federal High Court enjoy concurrent jurisdiction. For the issue of whether a court enjoys jurisdiction is determined by the claim as reflected in the writ of summons and the statement of claim.28

ii Burden of proof

The golden rule is that the onus of proof is on the claimant to discharge the burden of proving the assertion made.29 In Nigeria, the claimant in an action for negligence must discharge both the legal and evidential burden of proof.30 Since negligence is a question of fact, not law, it is the duty of the party who asserts it to prove it. Failure to prove the particulars of negligence pleaded renders the claimant’s case unprovable.31

Lord Wright, in Grant v. Australian Knitting Mills,32 stated that negligence is ‘a specific tort in itself and not […] simply […] an element in some more complex relationship or in some specialised breach of duty’.33 In this sense, as a tort in its own right, negligence is a crucial issue in product liability and has to be approached within the framework of the ordinary meaning of defect. Strict liability is not a general theory for tort liability in Nigeria.34 As such, in bringing a product liability claim, the claimant has to show that the act of negligence caused of the injury suffered.

iii Defences

The manufacturers or producers of consumer products have a number of defences available if any claims are made against them. For example, it is a valid defence to show that:

  • a the production process followed a foolproof system of production and that there was a lack of nexus between the act complained of and the alleged injury or damage suffered;
  • b the product defect was not discoverable within the limitations of science and technology at the time of distribution; and
  • c the product complied with the standards or requirements with respect to the alleged defect.35

Contributory negligence is also a defence but the burden of proving it rests on the defendant, although this may also be inferred from the claimant’s own evidence, or a balance of probability from the facts.36

As governing powers are divided between the federal government and those of each state of the country, different limitation periods are specified by the limitation laws of the respective states. The general rule is that the limitation period with regard to contract and torts claims is six years, and the time starts to run from the date when the cause of action accrued. Where a tort claim is in respect of a claim for damages for negligence, nuisance or breach of duty, the action must be brought within three years of the accrual of the cause of action.

iv Personal jurisdiction

In Nigeria, by virtue of the requirements of the courts to exercise concurrent jurisdiction with English courts,37 suits may be maintained against any person who has no connection with Nigeria other than a transient presence. For this reason, product liability claims may be brought against foreign-based product manufacturers, distributors or sellers of defective products in the country.

But having regard to such matters as the convenience of parties and witnesses, and the interest of justice, Nigerian courts do apply forum conveniens in the context of an application for stay of an action that has commenced in Nigeria or other originating process outside Nigeria,38 or an action that has commenced in breach of an exclusive jurisdiction clause selecting a different forum other than Nigeria.39

Further, having regard to the prospects of settling or winning a lawsuit, the probable amount of recovery, the likely costs of litigation, and the length of time required to resolve the dispute, the defendant has the responsibility to protest the absence of jurisdiction by a court to entertain a dispute.40

v Expert witnesses

An expert witness may be required to give evidence about a scientific, technical or professional issue – such as handwriting or foreign law;41 however, the person giving the evidence must be called as a witness and must state his or her qualifications, training, experience and profession to satisfy the court that the person is an expert on the subject on which he or she gives an opinion, stating clearly the reasons for arriving at that opinion.42

vi Discovery

Claimants need access to a great deal of information to pursue their claims successfully. Accordingly, under the respective Civil Procedure Rules (CPR) of the various states in Nigeria, there are provisions for the parties to a litigious proceeding to give each other advance notice of any material documentation they intend to tender and rely upon at trial. Furthermore, any party may, in writing, request another party to produce documents that are, or have been, in its possession, custody, power or control, relating to any matter in question in the case.43

A court may also, at the insistence of either party to a legal proceeding, order (by the issuance of a subpoena) disclosure against a third party where the document of which disclosure is sought is in the custody or control of such third party and is likely to support the applicant’s case or adversely affect the case of one of the other parties to the proceedings.44

vii Apportionment

The law permits apportionment of liability among entities other than the named defendant in ongoing proceedings as a defendant, in an action in which the right to any relief is alleged to exist, whether jointly, severally or in the alternative.45 In Chief Otonyeseigha Ololo v. Nigerian Agip Oil Company Ltd & Anor,46 a case involving an accident resulting in total wreckage of the claimant’s local passenger and goods boat MV Ololo near Degema along Nembe (Port Harcourt inland waterway), only the first defendant (the owner of a 40-metre long dumb barge named NOAC 502) was originally sued, but on application, the claimant was granted leave to join the second defendant who was a subcontractor of the first defendant at the time of the accident.

The court may, however, give judgment against one or more defendants as may be found liable according to their respective liabilities, without any amendment. The measure of damages is apportioned according to the level of blame attached to each party responsible for the damage, taking into account both causation and blameworthiness, and the amount recoverable will be allocated as the court thinks just and equitable according to the claimant’s share in the responsibility for the damage.47

viii Mass tort actions

Mass tort actions are recognised in Nigerian legal jurisprudence under the various rules of courts in the 36 states of the federation. For example, the High Court of Lagos State (Civil Procedure) Rules 2012 permit claimants to join as parties to the same actions all or any of other persons severally – or jointly and severally – liable on any one contract, including parties to bills of exchange and promissory notes.48 Similarly, the Federal High Court (Civil Procedure) Rules 2009, Order 9 Rule 4 permits class action in cases concerning trademarks, copyrights, patents and designs.

Also, in seeking redress for damages resulting from a defective product, Section 6 of the CPC Act provides that a consumer or community that has suffered a loss, injury or damage as a result of the use or impact of any goods, product or service may make a complaint in writing to or seek redress through a state committee. This indicates that the redress available to individuals also extends to ‘communities’. Hence, in this sense the CPC Act can be said to contemplate class actions.

ix Damages

A distinction is drawn between general and special damages in Nigerian law. To succeed, a claim for special damages must be pleaded with distinct particularity and strictly proved;49 however, general damages do not require proof, although the court is entitled to make its own assessment of the quantum of such general damages and, on appeal, such general damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely wrong principle of law as to make it, in the judgment of the appellate court, an entirely erroneous estimate of the damages to which the claimant is entitled.50

The court may also award the payment of interest at a rate of at least 10 per cent per annum to be paid upon the judgment.51 In addition, the courts may also award costs to the successful party to cover the expenses incurred during the proceedings, as well as compensating the party for the time and effort expended in coming to court.52

Legal remedy is also available to claimant against manufacturer of a defective product in both the Criminal and the Penal Code Acts of Nigeria.53 Again, the Food and Drugs Act54 makes several provisions for the regulation of the manufacture, sale and advertisement, etc., of food, drugs and cosmetics.55

V YEAR IN REVIEW

The CPC recently signed a memorandum of understanding (MOU) with the Economic and Financial Crimes Commission (EFCC) on matters affecting consumers’ economic and financial well-being. The objective of this MOU is to protect consumers and combat scams using a three-pronged approach: complaint data analysis to establish patterns, trends and hotspots; consumer education and sensitisation campaigns across the country; and case investigations, prosecution and redress.56

In the past year, the National Agency for Food Drug Control and Administration and the Standards Organisation of Nigeria, alongside the CPC, made giant strides in their efforts to protect consumers against the manufacturers for any product defects that cause them injury.57

In addition, the Consumer Protection Agency (CPA) Law, 2014, enacted by the Lagos State government, has also helped to improve consumer rights protection since its enactment. The CPA Law, which repealed the Lagos State Consumer Protection Committee Law,58 is, however, not a federal law. This means that the law is only applicable in Lagos State.

Nevertheless, Lagos State is considered the most populous city in Nigeria, and the commercial capital of the country. The CPA Law is imbued with all the powers of a body corporate and has representatives from the ministries of Health, Commerce and Industry, Manufacturers Association of Nigeria and the SON, as well as two representatives from recognised private-sector organisations. The CPA Law complements the national CPC, in terms of promoting and protecting rights of consumers, and ensuring that their interests will always receive due attention.

In particular, Section 6 of the CPA Law provides for the use of negotiation, mediation and conciliation to allow for speedy redress of consumer complaints and to ensure replacement of hazardous products and their elimination from the market. Under this Section, the CPA is also empowered to list banned, withdrawn, restricted or unapproved products and require offending businesses to compensate their consumers or provide relief to them from the results of adverse effects of harmful products.

Section 11 of the CPA Law provides that if a complaint is filed by one or more consumer, the CPA or CPC may allow the complaint to be proceeded with or rejected within seven days, and whatever decision is reached ‘may be taken to a court of Law if either of the parties is not satisfied with the decision of the Agency or Committee’.59

The draft Competition and Consumer Protection Bill, whose objective is to modernise the legal provisions for consumer protection in Nigeria, and at the same time build the required synergy between competition and consumer protection in the country, has been languishing at the National Assembly since 2009. The 8th National Assembly of the Federal Republic of Nigeria, inaugurated on 9 June 2015, is expected to give due consideration to this Bill in order to further protect the interest of consumers.


Footnotes

1 Afe Babalola SAN is the principal of Afe Babalola SAN & Co (Emmanuel Chambers).

2 The information in this chapter is accurate as of April 2016.

3 [1985] 1 NWLR (Pt. 4) 739.

4 Ibid., at 753.

5 [1932] AC 562.

6 Cases where liabilities in tort were recognised include: Ebelemu v. Guinness (Nig) Ltd (Unreported) FCA/1/101/82 (1993); Boardman v. Guinness (Nig) Ltd [1980] NCLR 109; Soremi v. Nigerian Bottling Co Ltd [1977] 12 CCHCJ 2735; Dumuje v. Nigerian Breweries plc (Unreported) Suit No. ENC/ 236/94; 4 July 2001.

7 See, e.g., Nigerian Bottling Co (Nig) Ltd v. Ngonadi [1985] 1 NWLR (Pt.4) 739; Ebelemu v. Guinness (Nig) Ltd; Soremi v. Nigerian Bottling Co Ltd; Dumuje v. Nigeria Breweries plc (Unreported) Suit No. ENC/236/94,4 July 2001.

8 See Kalla v. Jarmakani Transport Ltd (1961) All NLR 747.

9 To give a few pertinent examples: in Onyejekwe v. Nigerian Breweries Ltd (Unreported) Suit No. E/129/72, 1 June 1973 at 7, Anyah, J responding to the defence of the ‘fool-proof’ system of production put up by the manufacturer stated: ‘I am convinced by the evidence of this witness, that is, DW 1, that the beer and the bottles undergo complete pasteurisation and sterilisation before the bottles leave the factory and that in these circumstances no living organisms can be found in the bottles unless afterwards tampered with.’ In Okonkwo v. Guinness (Nig) Ltd [1980] 1 PLR 581 at 592, Obi-Okoye J, commenting on similar evidence demonstrated by the brewery manager of the defendants, said: ‘In short, their precautionary measure was fool-proof and left no room for roots, leaves or bark of trees to be bottled with their stout. There was no rebutting evidence against which his evidence can be weighed. I am satisfied he knew what he was talking [about] and that he was not deceiving the court. I believe his evidence.’ A similar statement was made by Iguh J in (Boardman v. Guinness (Nig) Ltd. His Lordship stated: ‘If the system by which a manufacturer produced his commodity was as near perfection as human ingenuity could make it, the manufacturer in those circumstances would have proved that he had not been negligent’ (at 126).

10 (2008) 5 NWLR (Part 1079) 172.

11 See Orojo, JO (1983) Nigerian Commercial Law and Practice (London, Sweet and Maxwell), p. 6. See also Mwalimu, C (2009) The Nigerian Legal System, Vol. 2 (New York, Peter Lang), p. 410.

12 For example, Sale of Goods Law 2003, Lagos State; Kaduna State Sale of Goods Law 1990; and Contract Law of Enugu State 2004.

13 These statutes include the following: the CPC Act (Cap. C25, Laws of the Federation of Nigeria (LFN) 2004); The Consumer Protection (Products and Services Monitoring and Registration) Regulations 2005; National Agency for Food and Drug Administration and Control Act 2004; Standard Organisation of Nigeria Act of 2015; Criminal Code Act (Cap. C38, LFN 2004); Penal Code (Northern States) Federal Provisions Act 2004; and Trade Malpractices (Miscellaneous Offences) Act (Cap. T12, LFN 2004).

14 See Section 31 of the NAFDAC Act.

15 Subsidiary legislation includes: (1) National Agency for Food and Drug Administration and Control Tariff Charges Regulation; (2) Drug Products Advertisement Regulations; (3) Pre-Packaged Food (Labelling) Regulations 2005; and (4) Bottled Water (Advertisement) Regulations.

16 Garner, BA (ed.) (2009) Black’s Law Dictionary, 9th edn. (St. Paul, Minnesota, West). p. 251.

17 (1987) NWLR (Pt. 47) 1.

18 Ibid, per Oputa JSC at 20. See also Adimora v. Ajufo (1988) 1 NSCC 1005, at 1018.

19 Section 14.

20 See generally, Gbadehan v. Kiladejo & Ors (2012) 16 NWLR (1326) 392, at 413–414 (per Kekere-Ekun, JCA; Ojukwu v. Yar’Adua (2009) 12 NWLR (1154) 50, at 131–132 (per Niki Tobi, JSC).

21 Section 8 provides:

Whereupon an investigation by the Council or State Committee of a complaint by a consumer, it is proved that–

a the consumer’s right has been violated; or

b that a wrong has been committed by way of trade, provision of services, supply of information or advertisement thereby causing injury or loss to the consumer.

22 Section 272(1). See also, INEC v. RTCN (Anglican Communion Diocese) of Orlu (2010) All FWLR (Pt. 511) 1015; Lagga v. Sarhuna (2008) 16 NWLR (Pt. 114) 427.

23 Superior Courts include the Supreme Court (the highest court), the Federal Court of Appeal (the second-highest court), the Customary Court of Appeal, the Shariah Court of Appeal in the Federal Capital Territory and also in each of the 36 states of Nigeria, the Federal High Court, the High Court in the Federal Capital Territory of Ahuja, state High Courts, and the Court of Resolution in northern parts of the country. Lower or subordinate courts include magistrates courts, district courts in the north (the equivalent of magistrates courts in the south), customary courts in the south and area or shariah courts in the north. Area or shariah courts include lower and upper area courts. Other courts are juvenile courts, coroners’ inquests, the price control courts, the national industrial courts and military courts (Mwalimu, C (2005) The Nigerian Legal System, Vol. 1 (New York, Peter Lang), p. 305.

24 The CPC Act 2004, National Agency for Food and Drug Administration and Control Act, 2004; and Standards Organisation of Nigeria Act, 2004.

25 Section 273 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

26 (2001) 8 NWLR 379.

27 See Alli v. Central Bank of Nigeria (1997) 4 NWLR. 92; see also University of Abuja v. Ologe (1996) 4 NWLR 706.

28 Akinfolarin v. Akintola (1994) 3 NWLR 659.

29 Chapman v. Oakleigh Animal Products Ltd (1970) 8 KIR 1063 at 1072, CA, per Davies LJ (‘I must not be taken, with respect, to be agreeing with the editor’s observations about onus of proof. I think that it might be much safer to stick to the golden rule that the onus of proof is on the plaintiff’). See also Section 131 of the Evidence Act 2011.

30 NBC v. Okwejiminor (1998) 8 NWLR (Pt. 561) 295, at 208.

31 Nigerian Breweries plc v. David Audu (2009) LPELR-8863 (CA) at 33 (per Omoleye, JCA). See also Nigerian Bottling Company plc v. Olarewaju (2007) 5 NWLR (pt. 1027) at 255; Nigerian Bottling Company plc v. Okwejiminor (1998) 8 NWLR (Pt. 561) at 295 and 308.

32 [1936] AC 85.

33 Ibid, at 103.

34 The concept of strict liability hinges on the idea that liability exists for no other reason than the mere existence of a defect. No breach of contract or act of negligence is required in order to incur responsibility and manufacturers will be liable for compensation if their products cause injury (Keeting, GC (2014) ‘Strict Liability Wrongs’. In John Oberdiek (ed.) Philosophical Foundations of the Law of Torts (Oxford, Oxford University Press), p. 301).

35 See, generally, Okwejuminor v. Gbekeji Nigerian Bottling Company (2008) LPELR-2537(SC); (2008) LPELR-2537(SC); Onyejekwe v. Nigerian Breweries Ltd; Boardman v. Guinness (Nig) Ltd; Okonkwo v. Guinness (Nig) Ltd; Ebelamu v. Guinness (Nig) Ltd FCA/101/82; Dumuje v. Nigerian Breweries plc & Ors; Soremi v. Nigerian Bottling Co Ltd; Nigerian Breweries plc v. David Audu.

36 See, for example, Baker v. Longhurst & Sons Ltd (1933) 2 KB 461; Gibby v. E Grinstead Gas and Water Co (1944) 1 All ER 358).

37 Section 10 of the High Court of Law (Cap. 52) 1973: ‘The High Court shall, in addition to any other jurisdiction conferred by the Constitution of the Federation or by this or any other enactment possess and exercise, within the limits mentioned in, and subject to the provisions of, the Constitution of the Federation and this enactment, all the jurisdiction, powers and authorities which are vested in or capable of being exercised by the High Court of Justice in England.’

38 See Barsoum v. Clemessy International [1999] 12 NWLR (Pt. 632) 516; Herb & 2 Ors v. Devimco [2001] 52 WRN 19.

39 See Sonnar Ltd & Anor v. Partenree Nordwind 1987 NWLR (Pt. 66) 520; Nika v. Lavinia [2002] 8 WRN 95. CA; (2008) 10 CLRN 1SC; (2008) 16 NWLR (Pt. 1114) 509.

40 See Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508.

41 Sections 67 to 71 of the Evidence Act 2011.

42 See Shell Dev Co Ltd v. Otoko (1990) 6 NWLR (Pt. 159) 693.

43 See, e.g., High Court of Lagos State (Civil Procedure) Rules 2012, Order 26, Rule 8; Federal High Court (Civil Procedure) Rules 2009, Order 43, Rule 8; High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004, Order 32, Rule 9.

44 See, e.g., High Court of Lagos State (Civil Procedure) Rules 2012, Order 32, Rule 16; Federal High Court (Civil Procedure) Rules 2009, Order 20, Rule 15; High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004, Order 41, Rule 27.

45 See, e.g., High Court of Lagos State (Civil Procedure) Rules 2012, Order 13, Rule 4; Federal High Court (Civil Procedure) Rules 2009, Order 9, Rule 5.

46 (2001) LPELR-SC.82/1996.

47 Ibid. See also Stapley v. Gypsum Mines Ltd (1953) AC 663; Davies v. Swan Motor Co (Swansea) Ltd (1949) 2 KB 291.

48 Order 13, Rule 7.

49 Universal Trust Bank Nig Ltd v. Adams Ajagbule & Anor (2006) 8 CLRN 88. See also Dumez (Nigeria) Limited v. Ogboli (1972) 3 SC (Reprint) 188; (1972) 1 All NLR 241; Osuji v. lsiocha (1989) 6 SC (Part II) 158; (1989) 3 NWLR (Part 111) 623 and Jaber v. Basma (1952) 14 WACA 140; Benin Rubber Products Limited v. Ojo (1997) 9 NWLR (Part 521) 388.

50 See, e.g., Zik Press Limited v. Ikoku (1951) 13 WACA 188; Idahosa v. Orosanye (1959) 4 FSC 166; Bola v. Bankole (1986) 3 NWLR (Part 27) 141; Ijebu-Ode Local Government v. Balogun and Company Limited (1991) 1 SC (Part I) 1; (1991) 1 NWLR (Part 166) 136.

51 See High Court of Lagos State (Civil Procedure) Rules 2012, Order 35, Rule 4.

52 Ibid. Order 49, Rule 1.

53 Section 243 of Chapter XXIII of the Criminal Code (Cap. 77, LFN); and Section 184 of Penal Code (Cap 53, LFN 2004).

54 Cap. F32 LFN 2004.

55 Other consumer-focused statutes are: the Weight Act 1974 (Cap. W3, LFN 2004); Trade Practices (Miscellaneous Offences Provision) Act No. 67, 1992 (Cap. T12 LFN 2004) and Counterfeit Fake Drugs and Unwholesome Processed Food (Miscellaneous Provision) Act (Cap. C3, LFN 2004).

56 CPC press release, ‘Consumer Protection Council Signs Memorandum of Understanding (MOU) with EFCC’, 27 February 2015. Available online at http://cpc.gov.ng/?p=1391. Accessed 6 February 2016.

57 Okeke, J (2015) ‘Have Consumers Fared Well This Year?’ The Nations, 27 December. Available online at: http://thenationonlineng.net/have-consumers-fared-well-this-year/. Accessed 6 February 2016.

58 Cap. L15, Laws of Lagos State 2003.

59 Section 11(3).