Remedies Available To Consumers Against Manufacturers of Defective Products, Goods and Services in Nigeria

INTRODUCTION:

Nigeria has so many laws and regulatory agencies aimed at protecting consumers from hazardous products, goods and service as well as securing 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 obtain in the course of their daily need for survival.

Just recently, the government of Nigeria promulgated the Federal Competition and Consumer Protection Act, 2019 (FCCPA), and this new piece of legislation have a propensity to introduce new developments in our economy while promoting fair, efficient and competitive markets in the Nigeria with a view to eliminating monopolistic practices of manufacturers of products and services. It also safeguards citizens from hazardous products, goods and 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 explore 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 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 person, 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 deaths of some children. However, the company reached an out of court settlement in the sum of USD75 Million to 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. However, 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 defective products.

HOW TO PROVE DAMAGES, LOSS AND INJURY ARISING FROM THE CONSUMPTION AND USE OF DEFECTIVE PRODUCTS, GOODS 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 our 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) grounds needed to prove a case of injury or loss arising from consumption and use of defective products, goods and service:

1. The product was defective,
2. The consumer suffered damage, and
3. There was a causal link between the defective product and the damage suffered.

However, 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. Any instructions for use of 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 product liability 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 an action, it is advised that such consumer should consult with a lawyer to seek legal advice and determine the appropriate cause of action.

For further legal assistance on property and real estate transactions, do not hesitate to contact the author:

Kingsley Izimah, Esq.

Principal Partner,

SK Solicitors

0806-809-5282

www.sk-solictorsng.com

[email protected] or

[email protected]