Remedies Available To Consumers Against Harmful Products And Services In Nigeria By Kingsley Izimah, Esq | Nairalaw

INTRODUCTION:

Nigeria has so many laws and regulatory agencies aimed at
protecting consumers from harmful products and services, which also
secures the rights of consumers from sharp practices of some
manufacturers, service providers and product dealers in
Nigeria.

From telecommunications to digital satellite television to
electricity supply to imported and exported goods to market
commodities to health care facilities and aviation services;
citizens earnestly yearn for improvement in the quality of
products, goods and services which they get in the course of their
daily need for survival.

Recently, the government of Nigeria promulgated the Federal
Competition and Consumer Protection Act, 2019 (FCCPA) and this
piece of legislation have introduced new developments in our
economy by promoting fair, efficient and competitive markets in the
Nigeria with a view to eliminating monopolistic practices of
manufacturers of products and services. It also safeguard citizens
from consumption of hazardous products, goods and inefficient
services while encouraging competitive price rates among various
brands of commodities in the market and most importantly, opens up
channels for companies to invest in areas of business that has been
monopolized by some companies such as digital satellite television
and power supply.

In this article, we explore the rights and remedies available to
a consumer as well as discuss the various legal frameworks that
guide a consumer who has suffered damages, loss or injury as a
result of consumption or use of defective products or inefficient
services to seek redress.

WHO IS A CONSUMER?

According to Webster’s Dictionary, a consumer is a person who
purchases goods and services for personal use and not for
manufacture or resale. It went further to define a consumer as
someone who can make the decision whether or not to purchase an
item at the store and someone who can be influenced by marketing
and advertisements. The dictionary also referred a consumer as a
purchaser, buyer, customer, client, user and shopper.

From the above definition, a company, firm, community, village,
agency, department, state and federal government can be a consumer
so long as they need or affected by products, goods or services
from manufacturers.

WHAT ARE THE RIGHTS OF A CONSUMER?

The fundamental rights of a consumer are:

1. Right to basic needs: This guarantees
   survival, adequate food, clothing, shelter, health care, education
   and proper sanitation,
2. Right to safety: This places emphasis on
   safety of products and guards against production, advertisement and
   circulation of harmful products, goods and services,
3. Right to information and education: Before any
   product, good or services are made available for public consumption
   or use, adequate awareness and sensitization campaign are to be
   carried out,
4. Right to choose and healthy environment: To
   avoid monopoly, the consumer has a choice to patronize diverse
   brands, sizes and colours from different manufacturers at a
   competitive price rate and most importantly, in a healthy
   environment.
5. Right to redress: In line with section 36 of
   the 1999 Constitution of the Federal Republic of Nigeria, every
   consumer has a right to approach any court, tribunal or committee
   to seek redress over any injury, loss or damage arising from
   defective product or misrepresentation and be adequately
   compensated in the event that a manufacturer is found guilty.

The above rights relates to the reason why it is often said that
“customer is king” and without a consumer, there would be no need
to produce or manufacture any goods or provide services.

LAWS PROTECTING NIGERIAN CONSUMERS:

Apart from regulatory agencies such as National Agency for Food
Drug Administration and Control (NAFDAC), Standard Organization of
Nigeria (SON), Nigeria Communications Commission (NCC) and Nigerian
Civil Aviation Authority (NCAA), the Consumer Protection Council
Act CAP C25 Laws of the Federation of Nigeria, 2004 was promulgated
to protect consumers from hazardous products, goods and services
which are in the market and by virtue of section 2 of the Act, the
Council is empowered to carry out the following oversight functions
such as:

1. Provide speedy redress to consumers’ complaints through
   negotiation, mediation and conciliation;
2. Seek ways and means of removing or eliminating from the market
   hazardous products and causing offenders to replace such products
   with safer and more appropriate alternatives;
3. Publish from time to time, the list of products the consumption
   and sale of which have been banned, withdrawn, severely restricted
   or not approved by the federal government or foreign
   governments,
4. Cause an offending company, firm, trade, association or
   individual to protect, compensate and provide relief and safeguards
   to injured consumers or communities from adverse effects of
   technologies that are inherently harmful, injurious, violent or
   highly hazardous,
5. Organize and undertake campaigns and other forms of activities
   as will lead to increased public awareness,
6. Encourage trade, industry and professional associations to
   develop and enforce their various fields quality standards and
   designs to safeguard the interest of consumers,
7. Issue guidelines to manufacturers, importers, dealers and
   wholesalers in relation to their obligations under the Act,
8. Encourage the formation of voluntary consumer groups or
   associations for consumers wellbeing,
9. Ensure that consumer’s interest receive due consideration at
   appropriate forums and provide redress for obnoxious practices or
   the unscrupulous exploitations of consumers by companies, firms,
   trade associations or individuals,
10. Encourage adoption of appropriate measures to ensure that
    products are safe for either intended or normally safe use,

In addition to the above highlighted functions of the Consumer
Protection Council, the Act by virtue of section 3 also empowers
the Council to:

1. Apply to court to prevent the circulation of any product which
   constitutes an imminent public hazard,
2. Compel a manufacturer to certify that all safety standards are
   met in their products,
3. Cause, as it deems necessary, quality tests to be conducted on
   a consumer product,
4. Demand production of labels showing date and places of
   manufacture of a commodity as well as certificate of
   compliance,’
5. Compel manufacturers, dealers and service companies, where
   appropriate to give public notice of any health hazards inherent in
   their products,
6. Ban the sale, distribution, advertisement of products which do
   not comply with safety or health regulations

Flowing from the above functions and powers of the Consumer
Protection Council, it is apparent that the Council has been
adequately empowered to ensure that consumer rights are protected
and enforced, but complaints from consumers is an everyday
occurrence from the available products and services in the
market.

REMEDIES AVAILABLE TO CONSUMERS WHO HAVE SUFFERED
INJURY, LOSS OR DAMAGE ARISING FROM CONSUMPTION AND USE OF
DEFECTIVE OR HAZARDOUS PRODUCTS, GOODS AND SERVICES:

By virtue and pursuant to section 6 of the Consumer Protection
Act, where a consumer or community has suffered a loss, injury or
damage as a result of the use or impact of any goods, products or
service may make a complaint in writing to or seek redress through
a State Committee. Although this process of seeking redress through
a State Committee as provided by section 6 of the Act may appear
cumbersome due to bureaucratic bottlenecks; however, the courts
have always thrown its doors wide open to entertain complaints and
cases relating to loss, injury and damages arising as a result of
the use or impact of any defective or hazardous goods and services
from manufacturers as well as order payment of the necessary
compensation where needed.

One important manifestation of this case of consumer protection
is the liability of manufacturers to consumers who fall victim of
loss, injury and damages arising from the consumption or use of
defective or hazardous products, goods and services. Thus, in the
case of Donoghue v. Stevenson (1967) 1 W.L.R 912
the court held that:

“A manufacturer of products which her sells in such a form
as to show that he intends them to reach the ultimate consumer in
the form in which they left him with no reasonable possibility of
intermediate examination and with the knowledge that the absence of
reasonable care in the preparation or putting up of the products
will result in an injury to the consumer’s life or property, owes a
duty to the consumer to take reasonable care” see also (1932) A.C
562, 599.

Instances where heavy costs have been paid as compensation by
manufacturers to consumers for consumption and use of hazardous
products are as highlighted below:

Sometime around 1996 in Kano State, Nigeria, in a bid to protect
the welfare of consumers from hazardous products by manufacturers,
an action for damages and compensation in the sum of US6.95 Billion
was instituted against Pfizer pharmaceutical company in the
celebrated case of Abdullahi v. Pfizer Inc, 2002 WL
31082956 at 2 (S.D.N.Y 2005) over the illegal trial of an
unregistered drug which led to the death of some children. The
company reached an out of court settlement in the sum of USD75
Million with the affected families.

Also in the case of Bodo Community & Others v. Shell
Petroleum Development Company of Nigeria Ltd (2014) EWHC 1973
TCC, some communities in the Niger Delta instituted an
action for compensation and damages in the sum of £300 Million over
an oil spill from Bomu-Bonny pipeline in Bodo Community belonging
to Royal Dutch Shell which affected people living in the area.
Royal Dutch Shell offered the sum of £55 Million as compensation to
the affected farmers and communities.

In essence, the ultimate remedy available to consumers is always
to seek redress in appropriate courts, tribunal or committee set up
to inquire about product liabilities and apply for relief in
damages and compensations from the manufacturers of such defective
products and services.

HOW TO PROVE DAMAGES, LOSS AND INJURY ARISING FROM THE
CONSUMPTION AND USE OF DEFECTIVE PRODUCTS AND
SERVICES:

It is an established doctrine that where a reasonable injury,
damage or loss is foreseen, no matter how slight to the consumer,
assuming him to be a normal person before the consumption and use
of the products, goods or services, then the manufacturer is
answerable for the full extent of the injury which the consumer may
sustain owing to such consumption or use.

In order for consumers to prove cases of compensations and
damages against any manufacturer as a result of the consumption or
the use of any product, goods or services, product liability law
under Torts Law has been developed by the courts to mitigate the
loss and injury as well as ensure that adequate compensations and
damages are paid to consumers as remedy in situations where such
cases are proved to have occurred.

Thus, these are the 3 (three) basic grounds needed to prove a
case of injury or loss arising from consumption and use of
defective products, goods and service which are:

1. The product was defective,
2. The consumer suffered damage, loss or injury as a result of the
   defective product, and
3. There was a causal link between the defective product and the
   damage suffered.

A product is said to be defective if the safety of the product
is not what persons are generally entitled to expect, taking into
account these factors:

1. The manner in which and the purpose for which the product has
   been marketed,
2. No instructions for use or warning,
3. What might reasonably be expected to be done with or in
   relation to the product, and
4. The time when the product was supplied (that is, a product is
   not unsafe just because a safer product was subsequently developed
   or because industry safety standards were raised after the products
   was supplied). In support of this ground is the case of
   Wilkes v. Deputy (2016) EWHC 3096 QB.

It is important to note that, the evidence that a consumer will
need to prove a case of defective products will largely depend on
the particular circumstances of the case. In defective product
liability suits, there are basically 4 (four) key grounds which are
as follows:

1. The consumer must prove that he has been injured or suffered
   some loss or damages,
2. The consumer must prove that the product, goods or services
   involved was defective or lacked proper warning or instruction, the
   result of which led to the injury, loss or damage he/she
   suffered,
3. The consumer must prove that the defect or lack of warning or
   instructions was the specific cause of the injuries, loss or
   damages being suffered, and
4. The consumer must prove that when he/she was injured or
   suffered the loss or damage, he/she was using the injury-causing
   product, goods or service in the manner in which it was intended to
   be used. In support of this ground are the cases of
   Longbrook Properties Ltd. v. Surrey County Council &
   Ors (1970) 1 W.L.R 161 at 1778, Williams v Beesley (1973) 1 W.L.R
   1295.

DEFENCE TO PRODUCT LIABILITY:

There are various defences to a product liability claim and
these are some of the grounds upon which a manufacturer may not be
held liable for a defective product:

1. Where the manufacturer issued a warning notice,
2. Where the consumer discovers the defect, but proceeds to use
   the product, goods or service,
3. Where the product left the manufacturer in good condition and
   there is no reason to anticipate it would become dangerous between
   the time it left the manufacturer to the time it got to the
   consumer,
4. Where a property is completely dilapidated and the defect
   existed before it was sold, the seller will not be held liable as a
   result of any injury arising after sale,
5. There will not be any liability if the use to which a product,
   goods or services is put, is different from that which it was
   intended by the manufacturer,
6. The action is time barred.

An important case in support of defence to product liability is
Howmet Ltd v. Economy Drives Ltd & Ors (2016) EWCA Civ
847 where the court held that a user’s knowledge of the
defect in the product before any damage occurred could be used by
the producer to exclude liability if the user voluntarily continued
to use that product.

TIME LIMIT IN PRODUCT LIABILITY CASES:

The time limit in which proceedings can be brought is set out in
the Limitation Act, 1980, which stipulates that there is a
limitation period of six (6) years for action in respect of simple
contracts and actions in tort occasioning claims for damages other
than personal injury.

For Consumer Protection Act claims, the Limitation Act states
that the general rule is that a claimant must bring an action
against a defendant within three years of either:

The date on which the cause of action came into existence.

The date of knowledge of the claimant or of any person in whom
the cause of action was previously vested, if earlier.

There is a shorter limitation period of three (3) years from the
date on which the cause of action came into existence or the date
on which the injured person gained knowledge of the injury, where
damages claimed include damages in respect of a personal injury to
the consumer.

There are a few exceptions to this general rule (for example,
any period in which the person seeking to bring an action was under
a legal disability for unsoundness of mind is not counted).
However, an absolute long-stop exists of ten years from when the
defective product was first put into circulation. Generally, “put
into circulation” is accepted to mean when the product is taken out
of the manufacturing process and enters a marketing process in
which it is offered to the public to be consumed.

CONCLUSION:

Consumption is the main essence of production of goods and
services without which human needs cannot be met. But where
products, goods and services have been provided for consumption and
use by consumers, albeit defectively; product liability arises to
mitigate the loss or injury that may adversely affect the health,
property and lives of consumer.

However, where an injury, damage or loss arises; recourse to
file a complaint, petition or institute an action in court against
a manufacturer of such products, goods and services without being
armed with verifiable evidence and substantial proof to back up
such allegations of defective product causing injury, may attract
dire consequences on the part of the consumer.

To ensure that consumer meets the legal requirements to back up
a claim of defective product before filing a petition or an action,
it is advised that such consumer should consult with a lawyer to
seek legal advice and determine the appropriate cause of
action.

If you are injured or suffer other damages or loss because of a
product you used or services rendered by any manufacturer, you may
be able to file a petition or lawsuit to recover compensation for
your injuries and damages and to find out how to make the best case
for yourself and win your personal injury claim, get in touch with
the author on: 0806-809-5282 or send an email at:
kingsley.izimah@gmail.com^[1] for more
details.

Kingsley Izimah, Esq.

Lagos, Nigeria