Sources of lawProduct liability statutes
Is there a statute that governs product liability litigation?
There is no specific statute in Nigeria that governs product liability litigation.Traditional theories of liability
What other theories of liability are available to product liability claimants?
In Nigeria, the theories of liability available to product liability claimants are fault liability and strict liability. The main sources of product liability law are English common law, as adopted from the United Kingdom, domesticated by local statutes and further developed in Nigerian case law and Nigerian statutes. Product liability claims are usually based on contract and tort law, as well as Nigerian consumer protection statutes. Claimants mostly seek damages for breach of duty of care or negligence that results in damage.
The common law principle enunciated in Donoghue v Stevenson (1932) AC 562 constitutes the guiding principle on negligence in Nigeria. The principle was cited with approval and applied by the Supreme Court in Nigerian Bottling Company Limited v Ngonadi  1 NWLR (Pt 4) 739 and Okwejiminor v Gbakeji. It postulates that, where a party has suffered injury as a result of a breach of duty of care owed by a manufacturer, the manufacturer may be liable to compensate the injured party if the injury is a reasonably foreseeable consequence of the act of the manufacturer. For a claimant to succeed in his or her claims, however, the injury must not be too remote from the act of the manufacturer.
Product liability claims may also be commenced under contract law where a party has breached the terms of a contract in respect of the specification of the goods supplied or has failed to supply goods that are fit for purpose or are of merchantable quality. A party need not have suffered any injury to institute a product liability claim under contract law.Consumer legislation
Is there a consumer protection statute that provides remedies, imposes duties or otherwise affects product liability litigants?
The following consumer protection statutes provide remedies and impose duties and obligations that affect product liability claims.
Federal Competition and Consumer Protection Act 2018 (FCCPA)
The FCCPA establishes the Federal Competition and Consumer Protection Commission (FCCPC) to:
- initiate broad based policies and review economic activities in Nigeria to identify anti-competitive, anti-consumer protection and restrictive practices which may adversely affect the economic interest of consumers and make rules and regulations under the FCCPA and any other enactment with regards to competition and protection of consumers;
- protect and promote consumer interests;
- regulate and seek ways and means of removing hazardous products from the markets and cause offenders to replace such goods or services with safer and more appropriate alternatives;
- publish lists of products, the consumption and sale of which have been banned or restricted, or have not been approved by Nigerian or foreign governments; and
- ensure the adoption of appropriate measures to guarantee that goods and services are safe for intended use or normally safe for use.
The FCCPA vests the following powers on the FCCPC, to:
- establish specialised departments and units as are considered necessary for the effective and efficient discharge of its functions under the FCCPA;
- prevent the circulation of goods or services which constitute a public hazard or an imminent public hazard;
- compel manufacturers, suppliers, dealers, importers, wholesalers, retailers, providers of services and other undertakings to comply with the provisions of the FCCPA;
- cause quality tests to be conducted on consumer goods as it deems necessary; and
- compel manufacturers, dealers and service companies, where appropriate, to certify that all standards are met in manufacturing their goods and providing their services; and give public notice of any health hazard inherent in their products.
A consumer or community that has suffered loss, injury or damage as a result of the use of any good, product or service may file a complaint in the prescribed manner and form through the FCCPC. Upon investigation, if it is established that the consumer’s right has been violated or a wrong has been committed by way of trade, provision of services or advertisement that has caused injury or loss to the consumer, the FCCPC may take such action as it deems necessary, in addition to the right of the consumer to pursue legal action. The FCCPA, therefore, provides relief that is supplemental to redress by way of litigation.
Sale of Goods Law
The English Sale of Goods Act 1839 has been domesticated with relevant modifications in the various states of Nigeria.
The Sale of Goods Law of Lagos State, Chapter S1 of the Laws of Lagos State 2015 (SGL) stipulates that, where a contract provides for sale of goods by specification, an implied condition that the goods shall correspond with the said specification arises. Also, where the buyer has expressly or impliedly made known to the seller the particular purpose for which the goods are required, an implied condition arises that the goods shall be reasonably fit for such purpose and that the goods are of merchantable quality. If the seller breaches any of the implied warranties or conditions, the buyer may maintain an action against the seller for damages for breach of warranty or condition. It provides a supplementary cause of action to the rights of the consumer under common law. The SGL, however, expressly permits the insertion of exclusion clauses in contracts of sale with negative implied warranties or conditions. Over the years, Nigerian courts, in response to growing consumerism, challenged the efficacy of exclusion or exemption clauses in contracts of sale of goods by drawing a distinction between general implied warranties or conditions and those warranties or conditions that constitute the fundamental terms of a contract. Fundamental terms were regarded as terms of a contract of sale that were so critical to its existence that they go to its root and neither party was permitted to resile from them. The breach of such terms entitled the innocent party to treat the contract as having been repudiated and to terminate it. In contrast, breach of a non-fundamental term would entitle the innocent party to claim only damages for the breach. (See A Ogwu v Leventis Motors Ltd (1962) NNLR 115.) Nigerian courts eventually softened their approach to exclusion or exemption clauses. In Narumal & Sons v NBTC Ltd  2 NWLR (Pt 106) 730 at 751-752 H-A and 768 E, the Supreme Court held that an exclusion or exemption clause could, under certain circumstances, defeat a fundamental term of a contract, and that in each case, the question is one of construction of the contract as to whether the parties intended that an exclusion clause was to exempt the defaulting party from the consequences of a fundamental breach of the contract of sale. If the answer was in the affirmative, the exclusion clause would be upheld. Otherwise, it would be nullified.
Law Reform (Torts) Law
The Law Reform (Torts) Law of Lagos State, Chapter L82 of the Laws of Lagos State 2015 (LRTL) created a statutory cause of action by imposing strict liability on producers of defective products. It stipulates that a manufacturer or producer, importer, supplier or retailer is liable for damage caused wholly or partly by a defective product. The LRTL, however, prohibits exclusion clauses in contracts of sale of goods where the statutory cause of action created under the LRTL forms the basis for the claim.
Consumer Protection Agency Law
The Consumer Protection Agency Law of Lagos State, Chapter C13 of the Laws of Lagos State 2015 (CPAL) establishes the Lagos State Consumer Protection Agency (CPA). The CPAL contains provisions similar to those of the LRTL set out above mutatis mutandis. Additionally, the CPAL sets out the following functions of the CPA, inter alia:
- ensure the replacement of hazardous products with safe products and seek ways and means of eliminating hazardous products from the market in conjunction with the relevant government agencies;
- initiate investigation in its own name, whether upon the receipt of a complaint or not;
- cause an offending company, firm, trade association or individual to compensate or provide relief to injured consumers or communities as a result of adverse effects of harmful products;
- cause, where necessary, quality tests to be concluded on a consumer product; and
- apply to court to prevent the circulation of any product that constitutes an imminent public hazard, enforce and protect the rights of consumers, or seek relief or compensation for injured consumers where negotiation, conciliation or mediation fails.
There is also the Standards Organisation of Nigeria Act (No. 14 of 2015), which empowers the relevant government agency to formulate and apply standards in the regulation of both imported and domestically manufactured goods.
Certain statutes that address specific products provide remedies and causes of action. These include:
- the National Agency for Food and Drugs Administration and Control Act, Chapter N1 of the Laws of the Federation of Nigeria 2004;
- the Food, Drugs and Related Products (Registration, etc) Act, Chapter F33 of the Laws of the Federation of Nigeria 2004;
- the Tobacco Smoking (Control) Act, Chapter T6 of the Laws of the Federation of Nigeria 2004;
- the Trade Malpractices (Miscellaneous Offences) Act, Chapter T12 of the Laws of the Federation of Nigeria 2004; and
- the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act, Chapter C34 of the Laws of the Federation of Nigeria 2004.
Can criminal sanctions be imposed for the sale or distribution of defective products?
Under the Federal Competition and Consumer Protection Act 2018, any person who contravenes any Nigerian consumer right, in the case of a natural person, is liable on conviction to imprisonment for a term not exceeding five years, or to payment of a fine not exceeding 10 million naira or to both the fine and imprisonment; in the case of a body corporate, is liable on conviction to a fine of not less than 10 million naira or 10 per cent of its turnover in the preceding business year, or whichever is higher. Each director of the body corporate is liable to be proceeded against and dealt with in the same manner as that of a natural person. Further, all of the consumer legislation statutes (except the Sale of Goods Law) impose criminal sanctions, such as imprisonment and fine for breach of duties, standards or obligations imposed or stipulated in relation to the sale or distribution of defective products.Novel theories
Are any novel theories available or emerging for product liability claimants?
There are no novel theories available or emerging for product liability claimants, as product liability litigation is still evolving in Nigeria.Product defect
What breaches of duties or other theories can be used to establish product defect?
Various statutes provide standards, regulations and warning requirements that a manufacturer must fulfil before its products are placed on the market. Any breach of such standards, regulations or warning requirements may be used to establish product defect. An example is the Sale of Goods Law, which creates implied warranties that a product matches its specification, is fit for purpose and is of merchantable quality. A breach of the implied warranties may be a basis for establishing product defect. Also, a breach of the Tobacco Smoking (Control) Act’s requirement that the packaging of tobacco products must bear warnings and a description of the content of the product could result in liability under the statute. Further, a breach of the duty of care under the law of tort, in addition to the resulting damage, will establish product defect.Defect standard and burden of proof
By what standards may a product be deemed defective and who bears the burden of proof? May that burden be shifted to the opposing party? What is the standard of proof?
Each consumer legislation statute sets product standards for manufacturers and sellers. A product is deemed defective when these standards are not met.
The burden of proof is borne by the party claiming to have suffered injury as a result of a defect in the product. The general principle is that the onus of proof lies on the party who asserts, not on the party who denies (section 131 of the Evidence Act (No. 18 of 2011)). In civil litigation, while the legal burden of proof is fixed on the claimant, the evidential burden shifts from one party to the other. The evidential burden of proof lies on the party against whom judgment would be given if no further evidence were adduced. The burden oscillates until all the issues in the parties’ pleadings are exhausted. However, the legal burden may lie on the defendant if the plaintiff pleads the doctrine of res ipsa loquitur (‘the thing speaks for itself’) in a claim for negligence. The doctrine of res ipsa loquitur may not apply in all cases of negligence. Its applicability is dependent on the peculiar circumstances surrounding each case. The Court of Appeal, in the case of Nigeria Breweries Plc v David Audu 52 NIPJD [CA 2009] 235/2005, held that, for the doctrine of res ipsa loquitur to apply, ‘there must be reasonable evidence of negligence’ and certain conditions must exist. These are:
- proof of the occurrence of an unexplained event;
- the occurrence would not have happened without the negligence of a party other than the plaintiff; and
- the circumstances must point to the negligence of the defendant specifically. See Etukudo Ekefere Nsima v NBC (2014) LPELR-22542 (CA), in which the Court of Appeal held that ‘the essence of the maxim is that an event which in the ordinary course of things, was more likely than not to be caused by negligence was by itself evidence of negligence depending, of course, on the absence of explanation’.
Hence, the doctrine was not applied in Nsima v NBC because an explanation for the occurrence of the event complained of was offered by the claimant in his pleadings and evidence. In Nigerian Bottling Company Plc v Olanrewaju  5 NWLR (Pt 1027) 255 at 267–268 H-A and 269 C-F, the Court of Appeal held that the doctrine of res ipsa loquitor does not apply in food poisoning cases. It further held that a high standard of proof applies in such cases. The claimant must establish a direct link between the food or drink ingested and the subsequent ailment that he or she suffered. The rationale for the foregoing is the imperative of stemming a floodgate of spurious claims against manufacturers of consumables that would defeat the very mischief sought to be cured by placing on such manufacturers a duty of care to consumers of their products.
The standard of proof in civil cases is proof by a preponderance of evidence on a balance of probabilities.Possible respondents
Who may be found liable for injuries and damages caused by defective products? Is it possible for respondents to limit or exclude their liability?
In a claim for negligence, the liability for injuries and damages caused by defective products is borne by those persons that the claimant proves owed him or her a duty of care. This usually includes the seller or retailer and the distributor of the defective product, the wholesaler and any other person in the chain of distribution, up to the manufacturer, producer or importer. The Supreme Court in Okwejiminor v Gbakeji held that an injured party may commence a product liability action against a manufacturer or its agents.
In a contractual claim, liability is borne solely by the defaulting party to the contract. In the case of consumer protection statutes in which statutory causes of action with strict liability have been created, the manufacturer or producer or any other participant in the chain of distribution may be found liable for injuries or damages caused by defective products.Causation
What is the standard by which causation between defect and injury or damages must be established? Who bears the burden and may it be shifted to the opposing party?
The claimant must establish that the injury or damage suffered was a direct consequence of the defect in the product. Thus, to succeed in a product liability action, a claimant is required to establish a connection between the defective product and the injury suffered and to prove that the defect in the product resulted from the negligence of the defendant. In doing so, he or she must prove that the damage is not too remote and that it was a foreseeable consequence of the defendant’s action.Post-sale duties
What post-sale duties may be imposed on potentially responsible parties and how might liability be imposed upon their breach?
Under the Federal Competition and Consumer Protection Act, manufacturers and distributors, on becoming aware of any unforeseen hazard arising from the use of a product that they placed on the market, are required to notify the general public of such risk or danger and to immediately cause the product to be withdrawn from the market. Failure to comply with the foregoing or any other corrective actions renders the defaulter liable, on conviction, to a fine of 50,000 naira or imprisonment for five years, or both.