CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background to the Study

Water is the most essential resource to the survival of man. A reliable supply of clean and safe

water is very important to ensuring healthy living amongst the human populace in every

community, state or country.

In Nigeria, government owned public water utilities, such as Water Corporations or Boards, are

statutorily charged with the responsibility of supplying water from conventional water treatment

plants that use water from impounded reservoir (dams), flowing streams, lakes and deep

boreholes. As the country‘s population grew, the supply of water by the public utilities became

inadequate in quality and quantity. Also, many years of inadequate investment in public water

supply by the successive Nigerian governments has left safe drinking water insufficient and

unreliable, hence, the current adaptive measures of our society to fill the supply gap and alleviate

the problems of water inadequacy. Chief amongst these measures is the dependence on sachet

water popularly known as ‘pure water’. The manifestation therefore, is the emergence and

proliferation of private water enterprises that operate side by side with the government-owned

public water utilities.

The services of the category of private water enterprises selling packaged water in bottles were

initially adjudged satisfactory and reliable in the past years. They are however, more expensive

when compared to that provided by the government and the other category of private enterprises

that sell theirs in sachets. However, bottled water producers are patronized by the few elite in the

country, while majority of the people (who are usually the low income groups) in the country

patronize and drink sachet water because of its cheaper price. Sachet water was introduced in

1
1990 but its regulation by the National Agency for Food and Drug Administration and Control

(NAFDAC) started in 20021.

Access to clean drinking water is a fundamental requirement for human life, as its absence is a

grave health concern. According to WHO Report2, worldwide, over a million deaths per year

have been attributed to unsafe water and poor sanitation, with close to 90% of these deaths

occurring in children under five years of age. About 2.3 billion people suffer from diseases that

are linked to contaminated water and that water- related diseases are a growing human tragedy3.

According to Akunyili,4 the provision of water that is not only safe, but tasteless, or odourless and

clean in appearance is top priority in any country that cares for good health, and poverty

alleviation towards sustainable development. This is against the backdrop of the numerous

hazards posed to consumers by the packaging and sale of unwholesome and contaminated sachet

water by either unscrupulous or carefree manufacturers and retailers of sachet water who take

advantage of the inadequacies of regulation by government.

In Nigeria, the supply or provision of public drinking water is not reliable. As a result, this has

adversely affected the good health of Nigerians, most especially during the dry season. Ground

water and pipe borne (tap) water which are the major sources of drinking water are said to be

unsafe sources of drinking water because findings indicated that ground water sources contain

trace elements, dissolved solids and pathogens in excessive quantities that may be dangerous to

the health of people. Consequently, most of the investigations carried out on groundwater

samples from different parts of Nigeria revealed that nearly all of the available sources of water

1
NAFDAC News, Issue 3, 2012, p. 11
2
World Health Organisation (WHO) Report, (1996). Fighting Disease, Fostering Development, Geneva, Switzerland.
[Link] (last accessed on 14th March, 2015).
3
Ibid
4
Akunyili, D.N., (2003), The Role of Pure Water and Bottled Water Manufacturers in Nigeria, Paper presented at the
29th Water Engineering and Development Centre,
[Link]://[Link]/njeas/wpcontent/uploads/sites/2/2014/01/[Link] (last accessed on 2nd
January, 2014)

2
are polluted or contaminated, hence, were unfit for drinking purpose.5

The Millennium Development Goals (MDGs)6, with respect to environmental sustainability, target

that by 2015, the number of people without sustainable access to safe drinking water and basic

sanitation should be halved. The realisation of the renewed global commitment towards the

Millennium Development Goals by 2015 required the development of locally sourced alternative

low cost drinking water schemes that will provide sustainable access to safe drinking water in

both rural and urban areas in developing countries.7

An example of locally developed alternative of safe water provision in Nigeria is the drinking

water sold in polythene sachets. In carrying out this business, some small and medium scale

enterprises use various production techniques and technologies to purify and package water

sourced from springs, boreholes and public water mains and put in sachets that are sealed

electrically.

The National Agency for Food and Drug Administration and Control (NAFDAC) is mandated to

enforce compliance with internationally defined drinking water guidelines, but regulation of the

packaged water industry aimed at good quality assurance has remained a major challenge to the

Agency.8 Although water packaged in sachet is convenient to serve and the price is affordable,

there is great concern about its purity. The integrity of the majority of the water packaged in

sachets is questionable.

In a recent study9, to determine the bacteriological quality of drinking water sold in sachets in

5
Ogunbanjo, M. I., (2004), The Geochemical Evaluation of Water Resources in and round Ijebu-Ode Town, South
Western Nigeria and it Environmental Implications in Water Resources, Journal of the Nigerian Association of
Hydrogeologists, p. 20.
6
Goal No. 7
7
United Nations Department of Economic and Social Affairs (UNDESA), (2004) Urban Agglomerations, Population
Division of the Department of Economic and Social Affairs.
8
Consumer Affairs Movement of Nigeria (CAMON) (2007) NAFDAC to ban Sachet Pure Water. 97% Samples
Contaminated. Consumer link 1.1( last accessed 11th November, 2014).
9
Dada, A. C., (2009, January), Sachet Water Phenomenon in Nigeria: Assessment of the Potential Health Impacts,
African Journal of Microbiology Research, Academic Journals Vol. 3(1), pp. 015-021.

3
Lagos, Nigeria, one hundred samples of high and low demand sachet waters obtained from

vendors at hot spot locations were assessed using the multiple tube fermentation method based on

the Zero tolerance standards stipulated by the regulator (NAFDAC), a 22% non-compliance level

was recorded. In another more recent investigation10, it was stated thus;

… Presently, consumption of this sampled water in Ijebu North LGA, Ogun State, Nigeria is high

and may obviously not lead to immediate poisoning. However, long term effect if there is not

enough check may be of major concern. Consequently, close monitoring of heavy metals must be

carried out by the regulatory agency (e.g. NAFDAC) in Ijebu North LGA, In view of the possible

risks to the health of consumers, particularly in the processing and packing stages of the water.

It is therefore, obvious from the fore-going that despite all the well conceived consumer protection

laws, regulations and consumer protection institutions in Nigeria, a significant lot of Nigerians

still suffer health hazards as a direct consequence of the consumption of contaminated water.

Many manufacturers and sellers of sachet water, who may be either registered or unregistered by

NAFDAC, but dubious or careless, pay more attention to their selfish profit maximization motives

rather than ensure that their products are pure and safe for the ultimate consumers.

1.2 Statement of Problem

There is the problem of ascertaining whether so much of the sachet water in circulation is actually

fit for human consumption, because of contamination owing to such factors as unlicensed,

unregulated, or licensed, regulated but poorly handled manufacturing and distributive processes

which ultimately cause harm or injury to the consuming public.

10
David, T. W., Awoh, D. K. and Essa, G. A., (2013, January), Drinking Water (Sachet and Bottled) in Ago- Iwoye
and Environs, Ijebu North L.G.A., Ogun State, Nigeria, Scholarly Journals of Biotechnology Research, Vol. 2(1), pp.
1-6.

4
The National Agency for Food and Drugs Administration and Control (NAFDAC) is primarily

responsible for safeguarding the health of the nation and is thereby empowered to regulate the

production and distribution of packaged water, which includes sachet water. Also, the Consumer

Protection Council of Nigeria (CPC) is responsible for ensuring that safety standards prescribed

for products and services generally, are met by manufacturers and service providers. It is also

empowered by law to entertain complaints from consumers and enforce remedial and redress

measures on their behalf.

The question therefore, is whether or not the regulators, under the current laws have the legal

capacity to guarantee that sachet water is manufactured and distributed pure and wholesome to

consumers.

1.3 Objectives of the Study

The aim of this research is to evaluate the relevant extant consumer protection laws, the current

institutional and regulatory framework, case law and judicial attitude in product liability in

Nigeria, in order to determine whether or not NAFDAC and CPC have sufficient legal capacity to

safeguard consumers against the production and distribution of unwholesome sachet water.

In this regard, the objectives of this research are as follows;

i. To examine how the issues that arise from the production and distribution of contaminated

sachet water can be settled in law, where harm is caused or is likely to be caused to a consumer.

ii. To examine the extent that the current product liability law is able to provide protection or

remedy to an injured consumer of harmful sachet water either in contract or in tort.

iii. To examine the statutory mandates of the regulators i.e. The National Agency for Food and

Drug Administration and Control (NAFDAC), the Standards Organization of Nigeria (SON), and

5
the Consumer Protection Council of Nigeria (CPC) and also to appraise their capabilities or

otherwise in ensuring adequate protection or remedy to consumers of sachet water in Nigeria.

iv. To proffer solutions to problems identified

1.4 Research Questions

i. What are the issues that arise from the production and distribution of contaminated sachet

water?

ii. Are there any liabilities in law that provides protection or remedy to an injured consumer of

harmful sachet water either in contract or in tort?

iii. What are the statutory mandates of the regulators?

iv. Are there proffered solutions to problems identified?

1.5 Significance of the Study

The innovation of sachet water has, in addition to filling the supply gap in the provision of potable

drinking water to a majority of the citizens, also provides thousands of jobs for hitherto

unemployed people, especially the youth. This means that the business of sachet water cannot be

proscribed by legislation, at least, for now.

Laudable as this development is, the drawback associated with it is that there are so many fake

brands of sachet water in the market, which are usually unwholesome for safe human

consumption. Some unscrupulous producers package tap water or water fetched from streams in

sachets inside their houses and brand them as pure water for buyers who contract a variety of

diseases from the consumption, thereby constituting a major health challenge for the society.

Consequently, the government and regulatory agencies would fail in safeguarding the health of the

6
nation if the relevant laws and policies are not reviewed to introduce higher integrity to the

manufacturing and distributive processes of sachet water in Nigeria.

The outcome of this research will be useful to government and its regulatory institutions such as

NAFDAC and CPC by suggesting some necessary reforms to them which can be adopted either

through a more holistic application of existing provisions of their laws or through the amendment

of their relevant laws and regulations in order to safeguard the Nigerian consumers against the

proliferation of unwholesome sachet water.

It will also be useful to legal researchers and law students as it will enrich existing literature on the

subject matter of legal protection for consumers of sachet water in Nigeria.

1.6 Literature Review

The context subject of this research is quite novel and so there are no specific previous works on

it, except those that focus on consumer protection in food and drugs generally.

Monye, in her book11 analysed at considerable length, the issues involved in consumer protection

in Nigeria, especially in the areas of contractual liability of the seller or manufacturer, negligence

in tort, the regulation mandate and enforcement powers of the regulatory bodies such as the

Standards Organization of Nigeria (SON), the National Agency for Food and Drug Administration

and Control (NAFDAC) and the Consumer Protection Council of Nigeria (CPC). Her summary of

the legal position is that, the consumer is fairly protected, at least on paper, noting, however, that

there are some areas where protection is either inadequate or none existent. For example in the

area relating to exemption clauses, there is no statutory protection, hence case law applies. The

Supreme Court has adopted the rule of construction as the applicable rule, meaning that once an

offender can show that the exemption clause covers the breach that has arisen, the victim will be
11
Monye, F., (2005) Law of Consumer Protection, Spectrum Law Series, 2nd ed., Ibadan, pp. 46-67; 122- 437

7
left without remedy. This greatly affects the level of consumer protection since consumers in

Nigeria are in a weaker bargaining position as compared to the other contracting party.

Another loophole identified by her in the substantive law is the absence of provision for

compensation order to a victim of product defect. With the exception of the Consumer Protection

Council Act whose provisions are yet untested, no other existing law makes provisions for a

compensation order.

She observed further that the penalties stipulated by some existing statutes are too small to deter

offenders. Examples are; (i) the Food and Drugs Act, 1974 which stipulates a maximum penalty

of fifty thousand naira for all offences created therein. (ii) The Standards Organization of Nigeria

Act, 1971, under which the offence of unlawful use of industrial standard attracts a penalty of one

thousand naira only. In addition to these substantive defects, there are other legal principles which

abridge judicial discretion, such as privity of contract, caveat emptor and proof of negligence.

Her recommendations therefore, include an enhanced safety consciousness of the manufacturer,

establishment of Legal units in the various regulatory agencies to prosecute offenders of their

various laws rather than refer those cases to the police, where investigations are hardly conclusive

owing to corruption and lack of appreciation of the subject matter and a holistic review of penal

provisions in order to make the sentencing more stringent. Also recommended is the need to

significantly increase the fines, an amendment of the laws to grant award of compensation to the

injured consumer in addition to the criminal penalties of a manufacturer, an enhanced consumer

education and the adoption of strict liability in product liability cases.

According to her, there is need for some degree of judicial activism since the issues that often

arise in consumer protection cases are novel in character. This being so, in view of the corporate

might exhibited in matters relating to proof of negligence in product liability cases, she

8
recommended that a combination of legal principles and factual reality should influence judicial

decision in this area; otherwise, the consumer‘s voice will remain drowned by corporate

overwhelming strength.

It is the observation of the researcher that discussion on legal protection for consumers of sachet

water in Nigeria is not the primary focus of the learned author. The researcher is of the view that a

distinctive work on the legal protection for consumers of sachet water is very necessary in view of

the fact that its shelf life is uncertain and the delicate packaging exposes sachet water to greater

risk of contamination. This situation is caused by the inability of NAFDAC to clearly identify,

accredit and regulate all sachet water production plants in the country.

Kanyip, in his book12 analysed extensively the subject-matter of negligence as an instrument of

consumer protection. He summarised his conclusions as follows: one, liability based on

negligence provides inadequate protection to consumers. Two, proof of negligence is difficult or

even impossible especially if the product itself is damaged in the accident or made ineffective as

by exposure prior to laboratory analysis. Three, the consumer is disadvantaged by his lack of

familiarity with the manufacturing or production process especially if the manufacturer made an

affirmative showing of proper care as by showing a fool proof production process. Four, defects

frequently occur even in the absence of negligence (fault). Lastly, negligence therefore, is an

impractical theory of liability for defective products. He therefore, recommended strict liability as

an alternative basis of liability in product liability cases.

According to him, under a strict liability regime, the best risk bearer theory postulates that if the

consumer is the best risk bearer then he should shoulder the accident costs. Thus, the peculiarity

of an allergic plaintiff would work against him since it lies with him to avoid the resultant injury

12
Kanyip, B.B., (2005) Consumer Protection in Nigeria; Law, Theory and Policy, Rekon Books Limited, Abuja,
pp. 11-79; 279-377

9
as by discontinuing the use of the product in question. The strict liability theory is not one of

absolute liability. It admits of circumstances where the producer or manufacturer can go scot free.

The researcher, while agreeing with the views of the learned author in respect of consumer

protection generally, intends to write on the subject matter of sachet water because it was not the

focus of the author.

Malemi,13 in his book discussed product liability and consumer protection by re-enacting the

definition of a ‘Consumer’ as defined by the Consumer Protection Council Act,14 as ―an

individual, who purchases, uses, maintains or disposes of products or services. He also

defined the term―Product to include all types of goods and chattels, such as food, drinks,

industrial chemicals, cars, clothes, kiosks, lifts, tinned fish, machinery, hair-dye and so forth.

According to him, it is not necessary that the product must reach the consumer in the same sealed

package or container with which the producer dispatched it.

A producer remains liable, if it is shown that the product reached the consumer subject to its

inherent defect. The mere availability of opportunity for intermediate examination of the product

does not relieve the manufacturer of liability. He only escapes liability, if there is reasonable

probability that a test sufficient to reveal any defect in the product would be carried out. He will

also escape liability where the product carries a sufficient warning that it should not be used

without prior-examination or check. Therefore, he should ensure that any label or instructions

necessary for proper use is accompanying the product, and it is attached to a visible part of the

product and such instructions are sufficiently clear for the product to be safely handled or used.

The learned author went further to explain the flexibility of the subject of negligence as it extends

the duty of care situation to professionals, for instance, Accountants and Auditors, Architects,

13
Malemi, E., (2008) Law of Tort, Princetown Publishing Company Lagos, pp. 267-269
14
Cap. C. 25 (LFN) 2004. Sec.32

10
Bankers, Engineers, Legal practitioners and Medical practitioners. However, he did not discuss

the liability of manufacturers of sachet water to the consumers of their product where they are

negligent as well as the mechanisms of redress and remedies available to them. This is so because

his emphasis is on the general topic of negligence in tort.

Odion, J.O., and Okojie, E., in their article “Burden of proof in product liability law in Nigeria: A

case for the Application of res ipsa loquitur”15 expressed the view that current trends in the

manufacturing process and the sophisticated process that goes with the production and supply of

goods warrant that the manufacturer be fixed with a high standard of care to his ultimate

consumer. To them, one way of sustaining this standard is to fix on him the burden of disproving

negligence in the course of the manufacture of his goods.

Their justification is anchored on the following; authorities;

i. In the old English case of Grant vs Australian Knitting Mills,16 the appellant contracted

dermatitis of an external origin as a result of wearing a woolen garment which when purchased

from the retailers was in a defective condition owing to the presence of excess sulphites. The

Privy Council held that these facts established a duty to take care as between the manufacturer and

the plaintiff for breach of which the manufacturer was held liable in tort.

The presumption of negligence by the Court shifted the onus of proof to the defendant to establish

safe manufacturing process that could explain the sudden presence of noxious sulphite in the

under pants. In the words of Lord Wright:

The presence of deleterious chemical in the pants due to the negligence of the manufacturer was a

hidden and latent defect, just as much were the remains of the snail in the bottle (donoghue‘s

case). It could not be detected by any examination that could reasonably be made--- the garments

15
Ahmadu Bello University Journal of Commercial Law (2003-2005), Vol.2 No. 2 . pp. 32- 43.
16
(1936) A.C. 85

11
were made by the manufacturer for the purpose of being exactly as they were worn in fact by

the appellant. It was not contemplated that they should first be washed.17

ii. In Vacwell Engineering Co. Ltd. vs Buds Chemicals Ltd 18 the defendants were found to be

negligent both in their underlying research into hazardous products and in failing to carry out

proper research within the literature available to them. This conclusion was reached in spite of the

fact that they referred to four modern books including standard works on the industrial use of

chemicals.

iii. In Mason vs Williams & Williams,19 the court observed thus;

I appreciate that I am faced with another problem as was indicated in the case of Donoghue vs

Stevenson that res ipsa loquitur does not apply and the court has to be satisfied and therefore, the

plaintiff has got to prove that there was negligence on the part of the manufacturers. Of course,

that cannot be proved normally by saying that on such and such date, such a workman did this,

that or the other… what the plaintiff says here is, this is your chisel, you made it, and I used it as

you made it and you never relied on any intermediate examination, therefore, I have discharged

the onus of proof by saying that this problem must have happened through some act in the

manufacturer of this chisel in your factory.20

Having referred to the above logical antecedents, the writers of the article in review wondered

how well the decisions in Okonkwo vs Guiness Nig. Ltd21 and Ebelamu vs Guinness Nig Ltd22 can

be rationalised.

In Okonkwo‘s case, the plaintiff accompanied his friend to a hotel owned by the defendant. They

bought some drinks manufactured by the 1st defendant, which was later discovered to contain
17
(1936) A.C. 85
18
(1971) 1 QB. 88
19
(1955) 1 All ER. 808
20
Ibid
21
(1980) PIR 583
22
(1983) FNLR 42

12
deleterious substances like roots, leaves, bark of tree, etc. the plaintiff who was injured was

however denied remedy by the court on the grounds that he did not establish that the foreign

materials in the bottle left the factory of the 1st defendant. This curious decision appeared to

have set the stage for similar cases which have in essence denied remedy to the consumer on his

failure to discharge this burden of proof. Prominent among them is Ebelamu vs Guinness Nig.

Ltd.,(supra) where the plaintiff allegedly became ill after drinking one of the defendant‘s

products. There were sediments in the bottle. The plaintiff sued for negligence, pleading res ipsa

loquitur, by reason of the presence of the sediments in the bottle of the defendant‘s product

complained of. The defendant contended amongst others that it had fool proof system and that the

algae sediment was not poisonous. The court held that the defendant used the process demanded

by general practice in beer making and that the defendant‘s conduct met the standard required of

them by the law to establish due and reasonable care not to bring harm to others with its products.

The authors submitted with due respect that the decisions in the above Nigerian cases were unduly

restrictive of the scope of negligence in product liability law. Arguing further, they raised the

questions whether the courts were suggesting that the presence of these deleterious substances in

the bottle did not raise a presumption of negligence or whether the plaintiffs‘ failure to prove the

impossibility of intermediate interference was a prime factor in the court‘s judgment. To them, it

must be agreed that the moment the courts consider the issue of possible interference more

seriously than the manufacturer‘s actual control of the manufacturing process, it would amount to

putting the cart before the horse. It equally places an unduly high standard of proof on the

consumer.

According to these writers, it should be reasoned that since the manufacturing process is outside

the knowledge of the plaintiff, the courts ought to have applied res ipsa loquitur as the plaintiff

13
need not specifically plead it as a means of proof nor give evidence in the alternative. Proof in

civil cases is based on balance of probabilities, therefore, if the burden of proof placed on the

plaintiff is so high as to suggest a standard of proof beyond reasonable doubt (as in criminal

cases), there is bound to be a problem.

Consequently, English authorities23 have realised this problem, and have held the presence of any

defect to be evidence of negligence on the part of the defendant no matter how perfect his

manufacturing process is and it is equally difficult for the plaintiff to point out who is negligent in

the chain of production. It should be noted, that the basis for the courts not holding the defendants

liable in the Nigerian cases reviewed by the learned authors is the defendants‘ proof of the fool

proof production process in their manufacturing, as well as the huge burden on the plaintiff to

prove the contrary.

In addition to the brilliant contributions of the above authors, the researcher intends to extend their

views to the sachet water segment of consumption.

Maccido and Akume, in their article24 focused on the subject-matter of product liability as an

aspect of consumer protection which deals with the liability of manufacturers, wholesalers or

retailers of products for injuries resulting from dangerous or defective products.25 They defined

the term ‘product’ to mean any tangible article, property or components thereof produced or

distributed for sale that is used for personal, family or household purposes, and not for business –

hence products that are subject to the product liability law range from food, drugs, electronics,

medical devices and implants, tobacco, cosmetics and other goods. At common law, the sale of a

product is viewed as a commercial transaction upon which only the parties to the transaction can

sue, but the law has evolved where, today, virtually anyone injured by a defective product can
23
Issue No.5 Product Liability & Staff Encyclopedia 1987 Edition, p. 1162
24
Maccido, U.A. and Akume, A.A., (2013) An Evaluation of Product Liability Law: Its Benefits and Costs Nigerian
Institute of Advanced Legal Studies Journal of Law and Principles of Consumer Protection, NIALS Press pp. 124-145
25
Section 19 of the US Restatement (Third) of Torts: Product Liability, 1998.

14
bring an action for damages against any party in the distributive chain of the product, whether it

be manufacturer, the wholesaler, or the retailer.

According to them, the concept of product liability is still emerging in Nigeria, like in most of the

developing nations of the world; therefore their ability to examine the key questions on the subject

is severely constrained due to the inarticulate nature of product liability law in Nigeria. There is

yet no elaborate or coherent body of ―product liability law‖ as it is United States (US) –US

Restatement (Third of Tort); Product Liability, 1998. Nigeria relies on the rules of liability under

the sale of goods laws and the rules of liability under the law of negligence. 26 However, liability

based on these rules provides inadequate protection to the consumers. The application of Sale of

Goods Act is manifestly unjust to the consumer because the consumer‘s recovery is limited to

only a contractual relationship with the seller. 27 The primary liability for defective products under

the Sale of Goods Law rests on the seller, who in most cases is a mere retailer while the actual

manufacturer is left out on the ground that no privity of contract exists between him and the buyer.

Moreover, most of the conditions and warranties provided by the Act are designed to exploit

consumers by allowing sellers to limit or exclude their obligations including those implied by law

under the contract of sale of goods.

Moreover, the law of negligence does not provide any meaningful protection to consumers. The

law places an unwarranted burden of proof on the consumer which makes the guilty manufacturer

to escape liability and leave the consumer without remedy.

The writers are of the view that the regulatory agencies, the Standards Organisation of Nigeria

(SON), the National Agency for Food and Drug Administration and Control (NAFDAC) and the

Consumer Protection Council of Nigeria (CPC) are weak in the discharge of their statutory

26
Sale of Goods Act of 1893, Donoghue vs Stevenson (1932) AC.380
27
Section 4 of the Kaduna State Sale of Goods Edict, 1990.

15
functions due to imperfect knowledge of the regulations, the budgetary constraints, and the fact

that they have been captured by the firms that they are responsible for overseeing.28

Their conclusion in part, reiterates the relevance of product liability law in Nigeria, since it is part

of the laws of most of the countries of the world. Indeed, product liability law derogates from the

general concern of the Nigerian constitution for the protection of individual rights and welfare of

the citizens. The legislature is empowered by the constitution to make laws on matters such as

trade and commerce, including prescribing standards for goods and services offered for sale to the

consuming public.29

Therefore, product liability law is conceived as a modernised amalgam of law of contract and tort

of negligence. It holds manufacturers and retailers accountable to persons victimised by their

wrongful conduct. It empowers the injured victim to invoke the law and the apparatus of the

government to vindicate their interests. It promotes the notion of equality before the law and

reinforces the norm of responsibility. And in so doing all these things, it contributes directly to

deterrence and provides welfare-enhancing compensation.

It is clear from the commentary of the learned authors that negligence does not provide the desired

protection for consumers, while re-iterating their observation that the regulatory agencies – the

Standards Organizations of Nigeria (SON), the National Agency for Food and Drug

Administration and Control (NAFDAC) and the Consumer Protection Council of Nigeria (CPC)

lack the necessary competence and functionality in the discharge of their statutory mandates.

In view of the fact that sachet water was not the focus of the above work, this research will go

further to assess the issues of legal protection for consumers of sachet water in Nigeria.

Badaiki, in his article30 defines ‘Consumer Protection’ as the legal means to serve consumers
28
See Part I of the Second Schedule to the Constitution of Federal Republic of Nigeria, 1999
29
Michael, E., ‘Regulatory Capture’. The New Pal grave Dictionary of economics and the Law (Peter
Newman Edition). 269.
30
Badaiki, A.D., (2013) Effect of Privatisation and Commercialisation on Consumer Protection in Nigeria Nigerian

16
‘interest against all forms of exploitation and unfair dealings including environmental and health

issues by those who supply goods, services and credit facilities in the course of business. He

clarified further that it has been understood to mean ―the prevention or reduction of wrongs or

injuries, and the provision of redress for an individual purchaser, user or disposer of any product

and service’31

To underscore the aim of consumer protection to achieve consumers‘ welfare in modern terms, he

referred to the United Nations resolution 39/248 of 9 th April, 1985 which the UN General

Assembly unanimously adopted as Guidelines for Consumer Protection for every member nation.

Implicit in these guidelines are government obligations and consumer rights, to wit, the right to

basic needs, the right to safety, the right to be informed, the right to be heard, the right to choose,

the right to consumer education, the right not to be exploited and the right to a healthy

environment.

The researcher intends therefore, to use the conceptual definitions and the United Nation

guidelines for consumer protection above as a basis for analysing the peculiar issue of consumer

rights as regards manufacture and distribution of sachet water, with the aim of making appropriate

recommendations that will enhance legal succour to consumers.

Nyor, in his article32 addressed the issues of food quality and safety in the light of policy

intervention on the part of government. In 2010, the Federal Government of Nigeria, in addition

to the establishment of SON, NAFDAC and CPC, launched the National Policy of Food

Hygiene and Safety as an integral part of the National Policy on Health. The overall goal of this

policy is the attainment of high standard of food hygiene and safety practices, which will promote

Institute of Advanced Legal Studies Journal of Law and Principles of Consumer Protection, p.164
31
Kanyip, B.B., (2005) Consumer Protection in Nigeria; Law, Theory and Policy, 1 st ed., Rekon Books Limited,
Abuja, p.30
32
Nyor, J.T., (2014, February) The Role of Regulatory Agencies in Food Quality Control in Nigeria SCSR Journal
of Agribusiness (SCSR-JA) Vol. 1, Issue 1, pp. 01-05 [Link], (Last accessed 5th March, 2015).

17
health, control food-borne diseases, minimise and finally eliminate the risk of diseases related to

poor food hygiene and safety.

According to him, this policy seeks to ensure standard of food in the areas of production, storage,

handling, processing, preservation, trade (importation and exportation), transportation and

marketing. It also seeks to improve the quality of health through ensuring that all food consumed

in Nigeria, whether imported or exported are wholesome, nutritious, free from contaminants and

accessible to the consumers at affordable prices. In other words, to meet international standards in

food quality control, preventive strategy based on thorough analysis of prevailing conditions,

which ensures that the objectives of the quality assurance programme are met by the food

industry. The Hazard Analysis and Critical Control Point (HACCP) and Total Quality

Management embodying these requirements are certified under the International Standard

Organization (ISO 90 00: Quality Management and Quality Assurance Standards guidelines for

selection and use).

He concluded by restating the Codex Alimentarius Commission33 guidelines that producers at all

stages of production, processing and distribution must be responsible for safety of food and should

establish food safety assurance programmes while the government on the other hand plays the

primary role of a regulator in the implementation of the food safety assurance system, the

hallmark of quality control.

The author having set forth the preventive safety policy of the Nigerian government regarding

food hygiene and quality control, has set the tone for this research to apply same to the water

industry, especially in the area of sachet water production, processing and distribution. Also, this

research will appraise the primary role of the regulators outlined in their enabling statutes and

regulations with a view to suggesting necessary amendments or re-emphasing their purposes and
33
[Link] (Last accessed 5th March, 2015).

18
how best they could be deployed by the regulators in achieving the objectives of ensuring the

production and distribution of safe drinking sachet water.

Asikhia and Oni-Ojo, in their article 34 examined the legal framework of marketing vis-à-vis the

regulatory Agencies established by government to regulate commercial transactions in Nigeria

and their activities. They also examined the contractual law of Sale of Goods Act, 1893 and

found that liability for breach can only by enforced if there is privity of contract between the

parties which invariably excludes non-parties to the contract from the burden and benefit attached

to the contract. However, while liability in contractual relationship is based on this doctrine, it is

not so in the law of tort where liability is based solely on negligence which presupposes the

existence of a nexus between the parties.

They opined further that negligence which was meant to be one of simple liability has become a

difficult principle in the Nigerian legal system, owing to the huge burden of proof demanded by

the courts. The courts usually require the defendants to establish a fool proof system of

production. This position according to the authors is too rigid as compared with what obtains in

developed countries, with the resultant effect of making product liability laws more favourable to

the manufacturers of defective products. They therefore advocated a liberal stance by the Nigerian

courts when the issues of negligence are raised by revisiting and relaxing the fool proof

production system rule in order to lessen the burden of proof of negligence on the plaintiff.

This research takes into cognisance the recommendations of the authors expressed above and goes

further to suggest the adoption of certain rules that will alleviate the burden of proof of negligence

as well as more proactive legal strategies the regulators should initiate in order to minimise or stall

the incidence of manufacture of unwholesome products by producers.

34
Asikhia, O. and Oni – Ojo, E.E., (2011, July) An Investigation Into the Legal Framework of Marketing in Nigeria
Australian Journal of Business and Management Research, Vol. 1, No. 4, pp 08 23.

19
Bello, Suleiman, and Danjuma, in their article35 posit that in Nigeria, like other parts of the world,

consumer protection is the concept designed to protect consumers from unscrupulous producers

and service providers. It denotes the attempt by government to provide regulatory framework to

protect and enforce the rights of people who pay for goods and services. The law of consumer

protection has a two folds purpose. On the one hand, it protects the interest, rights and safety of

end users of products and services; and on the other hand, to the extent that it derives from and

relates to contractual transactions, consumer protection can be said to be a means by which private

law relationships are regulated. It is in the interest of the public that the nature and deficiencies of

products and services be made known to customers, thus the need for public regulation of private

transactions. Regulation will have the end result of putting into market, the best possible products.

It is the view of the authors that the enactment of Consumer Protection Law in Nigeria, is only an

attempt at consumer protection, stating that the level of consumer awareness in Nigeria is still

very low, thus culminating in the near absence of consumerism or action against unwholesome

business practices. In their view, the ability to enforce the laws relating to consumer protection

will provide the necessary impetus for safeguarding the rights and safety of consumers in Nigeria.

This research adopts the view of the authors of the foregoing article especially as it relates to the

low level of awareness of consumers in Nigeria of their rights and of the existence of the

regulatory agencies, especially the Consumer Protection Council of Nigeria (CPC). The work

evaluates the specific functions of the CPC and makes a strong case for an enhanced public

enlightenment and awareness of its roles and responsibilities in resolving the plight of consumers,

especially in the context of sachet water.

It is also, the view of Oni-Ojo and Iyiola, in their research paper 36 that in recent years,
35
Bello, K.B.; Suleiman, J.B.A.; and Danjuma, I., (2012) Perspectives on Consumerism and Consumer Protection Act
in Nigeria, European Journal of Business and Management Research Vol. 4, No. 10, pp 74-77
36
Oni-Ojo, E.E. and Iyiola, O., (2014, April) Legal Implication of Manufacturers‘ Negligence and its effects on
Consumers: A study of West Nigeria, Global Scholars Journal of Marketing, Vol. 1, No. 1, pp 1-7

20
manufacturers have been making great impact on the standard of living of consumers; however,

product harms caused to the consumers through defective products have also increased

manufacturers liability in both developed and developing nations of the world. While thousands of

product liability cases are filed annually in developed countries, in many developing countries

especially in Nigeria the situation is different. They defined defective product to be a product in a

state whereby it fails to provide the safety which the consumer expects while according to them, a

product is dangerous when it increases the risk of harm to persons and their property.

A salient point in the above commentary is that there is very slow development of Product

Liability Law in developing countries, especially in Nigeria. The reasons are that consumers are

not aware of their rights to claim against manufacturers and in most of the cases, where they are

aware, due to lack of a coherent body of product liability laws, they attempt to claim under the law

of contract where the privity rule excludes third parties from the benefits of the action. Where the

consumers also attempt to claim in the tort of negligence, the burden of proof is usually heavy,

because of the courts‘ inclination towards the defendants‘ proof of a fool proof production

process.

The analyses above did not capture the specific legal interest of consumers of sachet water

because it was not the focal point of the research. Therefore, this research would fill that gap.

1.7 Research Methodology

The methodology used in this research is doctrinal. The primary sources of materials for this

research are statutes and case law; while the secondary sources are textbooks, regulations,

journals, law reports, and internet resources. Administrative policy documents of various

21
agencies such as the Federal Capital Territory (FCT) Water Board, the Standards Organization of

Nigeria (SON), and National Agency for Food and Drug Administration and Control (NAFDAC)

are specifically used in chapter four of this work. They also form the basis for the conclusion of

this dissertation. All authors and intellectual sources are duly acknowledged.

1.8 Scope of the Study

This research focuses on issues of consumer protection with regard to the water Industry in

Nigeria; with particular emphasis placed on the issue of legal protection for consumers of sachet

water. It also appraises the current legal and regulatory regime that governs the product, with a

view to proposing innovations and amendments for a significantly enhanced protection for

consumers of sachet water.

However, lack of full disclosure by the regulators hindered the extent to which the researcher

could have gone in gathering more evidence to support the research.

1.9 Synopsis of the Study

This research work is made of five chapters.

Chapter one focuses on general introduction and preliminary issues like background to the study,

statement of problem, objectives of the study, research questions, significance of the study,

literature review, research methodology, scope of the study, and synopsis of the study.

Chapter two examines the standards for safe drinking water, which involves, global perspectives

to water safety, Millennium Development Goals and timelines for safe drinking water supply in

Nigeria, World Health Organization (WHO) water and health quality strategy, Nigerian standard

for drinking water quality, NAFDAC regulations for packaged water, evidence of sachet water

22
contamination in Nigeria, and the impact of contaminated water on the health of consumers.

Chapter three dwells on regulatory framework on consumer protection on packaged water in

Nigeria. This involves introduction, the National Agency for Food and Drug Administration and

Control (NAFDAC), the Standards Organization of Nigerian (SON), the Consumer Protection

Council of Nigeria (CPC), and bottlenecks to enforcement and implementation.

Chapter four discusses Consumer Protection and Product liability in Nigeria. This includes

introduction, consumer rights, application of res ipsa loquitur in product liability cases in Nigeria,

relevance of Trade Marks Act provisions to the interest of the consumer, protection in the law of

contract, privity of contract in consumer production, protection under criminal provisions of

NAFDAC and CPC Acts, due care and prudence of the consumer, and the burden of proof of

negligence on an injured consumer of contaminated sachet water.

Chapter five concludes the research work with a view to providing the summary, conclusion and

recommendations.

CHAPTER TWO

STANDARDS FOR SAFE DRINKING WATER

2.0 Introduction

Safe drinking water is a universal resource, and as such, it is characterised by global significance

23
and interest. Therefore, the laws and policies for its regulation and control draw from international

standards and quality parameters set by some developed countries and international institutions

like the United States, Canada, Australia, the European Union, and the World Health

Organisation.

This chapter evaluates all these along with the Nigerian policy called the Nigerian Standard for

Drinking Water Quality, and the NAFDAC Regulations for packaged water with a view to

ascertaining what is responsible for the proliferation of contaminated sachet water in Nigeria.

2.1 Global Perspectives to Water Safety

Many developed countries specify standards to be applied in their own jurisdictions. In Europe,

these include the European Drinking Water Directives and in the United States of America (USA),

the United States Environmental Protection Agency (EPA) which establishes standards as

required by the Safe Drinking Water Act, 1974. For countries without a legislative or

administrative framework for such standards, the World Health Organization publishes guidelines

on the standards that should be achieved37. China adopted its own drinking water standard:

GB3838-2002 (type II), enacted by the Ministry of Environmental Protection in 200238. Where

drinking water quality standards do exist, most are expressed as guidelines or targets rather than

requirements, and very few water standards have any legal basis or, are subject to enforcement39.

Two exceptions are the European Drinking Water Directive and the Safe Drinking Water Act in

the USA, which require legal compliance with specific standards. In the European Union,

includes a requirement for Member States to enact appropriate local legislation to mandate the
37
WHO: Guidelines for Drinking Water Quality, (2011) Forth Edition World Health Organization
[Link] Int/gdwq/en (last accessed 30th March, 2015).
38
China Department for Water Resources: Environmental quality standard for surface water‖
[Link] (last accessed 12 March, 2015).
39
Safe Drinking Water for Canada. What is the purpose of Drinking Water Quality Guidelines/Regulations?
[Link] (last accessed on 12th March, 2015).

24
European Drinking Water Directive in each country. Routine inspection and, where required,

enforcement is enacted by means of penalties imposed by the European Commission on non-

compliant nations.

The Protocol on Water and Health to the 1992 Convention on the Protection and Use of Trans-

boundary Watercourses and International Lakes is the first major international legal approach for

the prevention, control and reduction of water related diseases in Europe. The protocol was

adopted in 1999 at the Third Ministerial Conference on Environment and Health, and entered into

force in 2005, becoming legally binding for the ratifying countries. So far 36 countries have

signed and 24 have ratified it.

Signatories agreed to establish and maintain comprehensive national and/or local surveillance and

early warning systems to prevent and respond to water related diseases. They also agreed to

promote international cooperation, to establish joint or coordinated system for surveillance and

early warning systems, contingency plans, responses to outbreaks, incidents of water related

diseases and significant threats of such outbreaks. WHO/Europe and the United Nations

Economic Commission for Europe (UNECE) provide the Joint Secretariat for the Protocol,

coordinating activities for its implementation: WHO handles the health aspects, while UNECE

handles the legal and procedural aspects.

By adopting the protocol, the signatory countries agreed to take all appropriate measures to

achieve:

a. Adequate supplies of wholesome drinking water;

b. Adequate sanitation of a standard that sufficiently protects human health and environment;

c. Effective protection of water resources used as sources of drinking water, and their related

water ecosystems, from pollution from other causes;

25
d. Adequate safeguards for human health against water-related diseases; and

e. Effective systems for monitoring and responding to outbreaks or incidents of water related

diseases40.

Countries with guideline values as their standards include Canada, which has guideline values for

a relatively small suite of parameters; New Zealand, where there is a legislative basis, but water

providers have to make ‘best endeavours’ to comply with the standards41; and Australia, where

drinking water quality standards have been developed by the Australian Government National

Health and Medical Research Council (NHMRC) in the form of the Australian Drinking Water

Guidelines42. These guidelines provide contaminant limits (pathogens, aesthetic, organic,

inorganic and radiological) as well as guidance on applying limits for the management of drinking

water treatment and distribution.

In the United States of America (USA), National, State, and Local regulations interact to form a

variety of drinking water quality regulations across the country.

Nevertheless, drinking water quality remains a policy concern and a management

challenge43. There is considerable uncertainty that must be resolved concerning whether current

environmental regulations are sufficiently protective of public heath, water quality, and aquatic

systems. Between 1991 and 2003 there were about 183 documented out breaks of waterborne

diseases44. Waterborne illnesses from drinking water impact an estimated 19.5 million Americans

40
WHO: Protocols on water and health [Link] (last
accessed 9th March, 2015)
41
New Zealand Water Standard: Drinking water for New Zealand [Link] (last
accessed 12th March, 2015)
42
Department of Health of Australia: Australian Drinking Water Guidelines (2011)
[Link] ( last accessed 12th March, 2015)
43
Derrington, E. Drinking Water in the United States: Are we planning for a sustainable future?; Consilience: The
Journal of Sustainable Development. pp.69
44
About 75% of these outbreaks, except for highly published 1993 Milwankee Cryptosporidium outbreak that
infected 400,000 people, involved groundwater. About 65% involved individual wells which were subject to less
water quality regulation – per Anisfeld, S. (2010). Water Resources. Island press

26
annually, a figure that does not include illnesses caused by chemicals or toxins45.

In 2003, a study46 concluded that safe drinking water in U.S. cities is increasingly at risk,

revealing troubling outcomes in source water protection, water delivery infrastructure, and

treatment systems. In addition to known waterborne disease outbreaks and demand pressures on

public water infrastructure, cumulative compound impacts of chemical contaminants from natural

and human sources are being linked to long-term health impacts.

Back in 1972, the Federal Water Pollution Act, also known as the Clean Water Act (CWA),

established the first comprehensive national water quality protection programme. It mandated that

federal agencies to cooperate with state and local agencies to develop solutions ‘to prevent,

reduce, and eliminate pollution in concert with programmes for managing water

resources’47. Under the Clean Water Act, states were required to establish water quality standards

based on ―use designations‖, ranging from high quality waters used for consumption and

recreational use to low quality waters, often used in industrial processes.

In 1974, The US Congress established the Federal Safe Drinking Water Act (SDWA) to address

evidence of unsafe contaminant levels in drinking water48. The SDWA authorized the EPA to

establish drinking water quality criteria and reporting requirements. The original approach to

drinking water protection under the 1974 SDWA passed with ‘Overwhelming’ congressional

approval. They mandated ‘State developed critical well head protection programmes’, increased

drinking water quality criteria, and banned lead and copper in plumbing infrastructure. These

amendments targeted improved source water assessment, source protection, and enhanced public

45
Toxic Waters: A Series About the Worsening Pollution in America. The New York Times 2009-2010.
[Link] (Last accessed 3rd January, 2015)
46
The Natural Resources Defense Council, NRDC (2003). Study finds Safety of Drinking Water in U.S. Cities are at
Risk. [Link] (Last accessed 5th January, 2015)
47
Environment Defense Fund vs Costle (1977) 578 F.2d 337. United States Court of Appeals, District of Columbia
Circuit.
48
EPA Reports: 1986, 2004; EPA SDWA Report, 2009.

27
participation to ensure high quality drinking water49.

Today, the SDWA is implemented through health based standards: Maximum Contaminants Level

Goals (MCLGs) and Maximum Contaminants Levels (MCLs)50. While MCLGs are aspirational

guidelines established to protect against any adverse human health effects, MCLs are enforceable

standards determined by balancing health risks against the cost and feasibility of implementing

control measures.

Current EPA rule making is aimed at expanding the SDWA coverage of certain pollutants, as

well as changing the regulatory scheme to target ‘ contaminant groups’ In November 2010, the

EPA‘s Office of Chemical Safety and Pollution Prevention Partnered with EPA‘s Office of Water

to identify a list of 134 Chemicals to be screened as potential endocrine system disrupters, and the

two offices are continuing to collaborate to develop Human Health Benchmarks for pesticides in

drinking water and a tool for States and the public to use to interpret drinking water information.

Administrator Jackson51 reaffirmed the EPA goals to ―update our laws in a way that is sensible

and practical for protection of the health of the American people,‖ as well as evaluate the

feasibility and affordability of treatment technologies, and the costs and benefits of potential

standards. She concluded her testimony by emphasizing that: ‘Clean and safe water is the

foundation of healthy communities, healthy families, and healthy economies as well as the right

of all American52.

It is therefore, instructive for the water resources management instrumentalities of government,

stakeholders and the civil society to work in collaboration in order to replicate the American

model so as to ensure that contaminant levels in drinking water in Nigeria is either reduced
49
Ansfeld, S. (2010) Water Resources. Island Press
50
United States Environmental Protection Agency Drinking Water Strategy, 2010: A New Approach to
Protecting Drinking Water and Public Health.
51
Lisa P. Jackson, Administrator, US EPA.
52
United State Environmental Protection Agency. Administrator Lisa P. Jackson, Testimony before the US. Senate
Committee on Environment and Public Works (02 February, 2011).

28
drastically or eliminated in the interest of the consuming public. Regulators in Nigeria, in

furtherance of their monitoring functions especially in the area of packaged/sachet water, should

adopt the Quality Monitoring System in the United States of America known as ‘Consumer

Confidence Report’53.

This is a compulsory annual report that every private water provider must publish and post to

consumers, detailing every important information about the water he supplies to the community.

The CPC should partner with NAFDAC to work out an integrated model for implementing this

kind of strategy in order to hold manufacturers and distributors of packaged/sachet water more

accountable to the authorities and consumers by such frequent formal undertakings and

commitments.

2.2 Millennium Development Goals and timeline for safe drinking water supply in Nigeria

The United Nations‘ Millennium Development Goals were created to dramatically improve the

lives of the world‘s poorest. Much of these eight goals are water-related.54

By the year 2015 (the target date for all Millennium Development Goals), the United Nations has

resolved to halve the proportion of people who are unable to reach or to afford safe drinking water

and who lack basic sanitation.55 According to the National Planning Commission56 the policy

thrust of Nigeria‘s Poverty Reduction Strategy, the National Economic Empowerment and

Development Strategy (NEEDS), commits to the eradication of water-borne diseases and to

improving water supply and management for other economic activities. In implementing NEEDS‘

53
Centers for Disease Control and Prevention. Consumer Confidence Reports (CCR) [Link]
healthywater/drinking/ public/[Link] (last accessed 3rd December 2014)
54
Safe Drinking water is Essential-Millennium Development Goals [Link]
[Link]/html/en/overview/millenniumdevelopementgoals (last accessed 9th March, 2015)
55
Goal 7, Target (C) Millennium Development Goals
56
NPC. National Economic Empowerment and Development Strategy (NEEDs). National Planning Commission
(NPC), Nigeria, 2004

29
programme of managing water resources in an integrated and sustainable manner, the policy drive

of the Nigerian government therefore, is building on the National Water Resources Management

Strategy, which involves all stakeholders to ensure integrated management and development of

water resources in the country. The thrust is more on sustainable water resources management to

meet the nation‘s present and future water resources needs in all demand sectors. The key

objectives of the policy include:

i. Ensuring the development and management of water Resources in an integrated manner and as

a national strategic resource;

ii. Protecting water resources and the environment for balanced socio-economic development;

iii. Involving all stakeholders particularly the private sector in the sustainable development of the

water sector through coordinated management and holistic utilization;

iv. Optimizing the use of water resources at all times for the present generation to survive on

without compromising water supplies for future generations.

It is however disheartening to note that even in the target date of 2015, it does not appear that

Nigeria has recorded remarkable progress in meeting this sensitive target of water availability to

the citizenry. Therefore, it is submitted that the persistent scarcity of safe drinking water, still

amply justifies the reliance of the majority of the populace on alternative sources which include

prominently, sachet water.

2.3 World Health Organization (WHO) Guidelines and Benchmarks

The World Health Organization (WHO) developed a document titled ‘Water Quality and Health

Strategy (2013)’57. This document sets out the strategy adopted by WHO to manage water quality

with a view to protecting and promoting human health. This is against the backdrop of the

57
WHO ( 2012) Consultation on the Development of a strategy on Water Quality and Health
([Link] sanitation health/dwq/en/ (last accessed 9th March, 2015)

30
realization, that the quality of water, whether used for drinking, domestic purpose, food

production or recreational purpose has an important impact on health. Water of poor quality can

cause disease outbreaks and it can contribute to background risk of diseases manifesting

themselves on different time scales. Initiatives to manage the safety of water do not only support

public health, but often promote socio- economic development and wellbeing as well.

The Water Quality and Health Strategy is a framework for action by the WHO Secretariat. It was

prepared through a consultative process, building on past World Health Assembly resolutions, in

particular WHA64/24 expert consultations, and feedback from a wide range of stakeholders on

WHO water quality guidelines and associated activities. It also builds upon the MDGs, the human

rights to water and sanitation and the post 2015 MDG process, which give increased attention to

water quality aspects. It defines strategic objectives and includes activities to guide the water

quality work of WHO.

The Strategy which centered on primary prevention of waterborne and water- related diseases, has

the following five strategic objectives for the period 2013 to 2020.

i. Obtain the most rigorous and relevant evidence regarding water quality and health,

ii. Provide up-to-date, harmonized water quality management guidelines and supporting

resources,

iii. Strengthen capacity of Member States to most effectively manage water quality to protect

public health,

iv. Facilitate implementation of water quality and health activities through partnerships and

support to Member States,

v. Monitor the impact of these activities on policies and practice to more effectively inform

decision making.

31
For each strategic objective, WHO‘s broad responsibilities are defined and associated outputs are

included. In meeting these objectives, the following four strategic outcomes will be achieved:

1. Reliable, up-to-date technical and policy advice on water quality management, informed by

research conducted on water quality and health,

2. Increased number of countries with effective water risk management of drinking water, waste

water and recreational water and harmonized management of water – related hazards and risks,

3. Improved risk management and risk communication practiced by all stakeholders responsible

for water safety,

4. Effective networks and collaborations supported and strengthened to exchange resources, raise

awareness and respond to specific water quality and health issues.

The mission is for WHO to be the authoritative source on health-based water quality information,

for use by water and health regulators, policy makers, their advisors and other stakeholders

including practitioners and NGOs. This includes the provision of information on health based

assessments on the various microbial, chemical, radiological and physical human health hazards

that may be present in the water cycle and the approaches to manage those associated risks.

To fulfill its mission and to ensure achievement of the recommendations in WHA 64/24, the

Water Quality and Health Strategy includes five strategic objectives and associated functions and

outputs which include (for the purpose of our context); obtaining the most rigorous and relevant

evidence on water quality and health in which case WHO will;

a) Establish a research agenda to address major knowledge gaps and emerging issues on water

quality and health,

b) Conduct health–based assessment of existing and emerging hazards in water for their

potential risks.

32
c) Coherently present health–related evidence to inform water quality management decision

making indifferent settings and contexts throughout the water cycle,

d) Carryout revised assessments of the burden of disease attributable to unsafe drinking-water,

waste water and recreation water,

e) Examine the water Sanitation and Health (WASH) contribution to health outcomes in

integrated efforts addressing multiple conditions of ill-health.

2.4 Nigerian Standard for Drinking Water Quality58

Drinking water quality standard ensures the safety of the drinking water supplies and the

protection of public health. The establishment of Nigerian Standard for Drinking Water Quality

(NSDQW) is geared towards ensuring the protection of consumers.

Consensus on the content of the Nigerian Standard for Drinking Water Quality was reached

through extensive consultations with all stakeholders including development partners with

responsibilities in the management of water quality. This standard is therefore based on general

principles of preventive, integrated and collaborative multi- agency approach59.

The Nigerian Standard for Drinking Water Quality (NSDQW) contains mandatory limits

concerning constituents and contaminants of water that are known to be hazardous to health

and/or give rise to complaints from consumers. The standard includes a set of procedures and

good practices required to meet mandatory limits.

In 2005, the National Council on Water Resources (NCWR) recognized the need to urgently

establish acceptable Nigerian Standard for Drinking Water Quality because it was observed that

the ‘Nigerian Industrial Standard for Potable Water’ developed by Standards Organization of

58
NIS (Nigerian Industrial Standard) 554: 2007 1CS 13.06-20
59
Nigerian Industrial Standard NSDWQ; para. 1.1

33
Nigeria and the ‘National Guidelines and Standards for Water Quality in Nigeria’ developed by

the Federal Ministry of Environment did not receive a wide acceptance by all stakeholders in the

country60.

Since water quality issues are health related issues, the Federal Ministry of Health, collaborating

with the Standards Organization of Nigeria (the only body responsible for developing National

Standards in Nigeria) and working through a technical committee of key stakeholders developed

this Standard.

The effective protection of public health against water related diseases requires a preventive

integrated management approach which includes;

a) The protection of drinking water from catchment and source to its use by consumers;

b) A collaborative multi-agency approach that involves all agencies with responsibilities in the

management of water quality;

c) Water quality standard that is comprehensive, realistic and implementable within the resources

of the implementing agencies;

d) The development of procedures and requirements that ensure good water quality management

in order to meet the maximum allowable limits. These procedures also protect the environment;

e) An independent surveillance agency with strong enforcement authority and functions

decentralized to local government level;

f) An effective drinking water quality data management system to enable the generation of data

for the development of coherent public – centered policies and practices61.

The selection of parameters and the determination of maximum allowable limits have been

conducted taking into consideration the WHO guidelines for drinking water quality62.

60
Nigerian Industrial Standard NSDWQ; para.1.2
61
Ibid; para. 1.3 (principles)
62
Nigerian Industrial Standard NSDWQ; para. 1.4 (Technical approach)

34
The standard shall be reviewed every three years and/or as when necessary. The Technical

committee shall meet once a year to address new water quality issues and to prepare for the

review of the Nigerian Standard on Drinking Water Quality63.

The Nigerian Standard for Drinking Water Quality covers all drinking water except mineral water

and packaged water. The Standard applies to:

i. Drinking Water Supplied by State Water Agencies

ii. Drinking Water Supplied by community managed drinking water system

iii. Drinking Water Supplied by Water Vendors and Water Tankers

iv. Drinking Water used in public or privately owned establishments

v. Drinking Water used in food processing by manufacturers

vi. Drinking Water from privately owned drinking water system and used solely for the family

residence.

Mineral water and packaged water shall comply with the Nigerian Industrial Standards for Natural

Mineral water (NIS 345: 2003) and Potable Water (NIS 306: 2004) and used for regulation and

certification by the National Agency for Food and Drug Administration and Control (NAFDAC)

and the Standards Organization of Nigeria (SON) respectively. The standards for mineral water

and packaged water have different allowable limits and NAFDAC Regulation64.

According to the Nigerian Standard for Drinking Water Quality 65, the National Agency for Food

and Drug Administration and Control (NAFDAC) shall:

a. Enforce packaged water quality standard;

b. Regulate the use of water treatment chemicals While the Consumer Protection Council (CPC)

shall:

63
Ibid; para. 1.5 (Recommended Revision period)
64
Ibid; para. 1.6 (Scope)
65
Ibid; para. 1.5

35
 i. Receive complaints and/or observed lapses and use appropriate institutional framework to

ensure adequate corrections;

ii. Seek redress and compensation for aggrieved consumers or community as provided in

the CPC Act;

iii. Undertake awareness campaigns to enlighten consumers on their rights to safe and

wholesome drinking water as generally provided for in the CPC Act.

Regarding Drinking Water Quality, the NSDWQ66 contains tables of parameters and maximum

permitted limits for contaminants. The substances contained therein are simply divided into

physical/organoleptic, chemical organic and inorganic constituents, disinfectants and disinfectant

by-products, radionuclide and microbiological parameters.

All drinking water shall at all times meet the requirements set out in table 1, table 2, table 3, table

4, table 5, table 6 and table 7 67. All water sources intended for human consumption shall comply

with the guidelines above and shall receive authorization from the Ministry of Health before being

supplied to the population.

A. Parameters and Maximum Allowable Limits Table 1: Physical/Organoleptic Parameters

Parameter Unit Maximum Permitted Levels Health Impact Note

Colour TCU 15 None

Odour Unobjectionable None

Taste Unobjectionable None

66
Nigerian Industrial Standard NSDWQ; para. 5 (Requirements)
67
Nigerian Industrial Standard NSDWQ Pp. 15-20.

36
Temperature Celsius Ambient None

Turbidity NTU 5 None

This table shows the physical/organoleptic parameters and their maximum allowable limits in

drinking water. In this case it has no negative health impact.

Table 2: Chemical Parameters (Inorganic Constituents)

Parameter Unit Maximum Health Impact

Permitted

Aluminum (AI) mg/L 0.2 Potential Neuro-degenerative disorders

Arsenic (As) mg/L 0.01 Cancer,

Barium mg/L 0.7 Hypertension

Cadmium (Cd) mg/L 0.003 Toxic to the kidney

Chloride (CI) mg/L 250 None

Chromium (Cr +) mg/L 0.05 Cancer

Conductivity PS/Cm 1000 None

Copper (Cu +2 ) mg/L 1 Gastrointestinal disorder,

Cyanide (CN-) mg/L 0.01 Very toxic to the thyroid and the nervous

system

Fluoride (F-) mg/L 1.5 Fluorosis, Skeletal tissue (bone teeth)

morbidity

Hardness(as CaCO3) mg/L 150 None

Hydrogen Sulphidemg/L 0.05 None

37
 (H2S)

Iron (Fe+2) mg/L 0.3 None

Lead (Pb) mg/L 0.01 Cancer, interference with Vitamin

metabolism, affect mental

development in infants, toxic to central and

peripheral nervous systems

Magnesium (Mg+2) mg/L 0.20 Consumer acceptability

Manganese (Mn+2) mg/L 0.2 Neurological disorder

Mercury (Hg) mg/L 0.001 Affects the kidney and central nervous

system

Nickel (Ni) mg/L 0.02 Possibly carcinogenic

Nitrate (NO3) mg/L 50 Cyanosis, and asphyxia (blue-b syndrome")

in infants under 3 months

syndrome") in infants under 3 months

Nitrite (NO2) mg/L 0.2 Cyanosis, and asphyxia (blue-Lung

syndrome") in infants under 3 months

pH 6.5-8.5 None

Sodium (Na) mg/L 200 None

Sulphate (SO4) mg/L 100 None

Total Dissolvedmg/L 500 None

Solids

Zinc (Zn) mg/L 3 None

Note 1: Parameter to be monitored only if aluminum chemicals are used for water.

38
This table shows the chemical parameters otherwise known as inorganic constituents of drinking

water. It also indicates the maximum allowable limits of these constituents. If these limits are

exceeded, the indicated health impact will manifest.

Table 3: Organic Constituents

Parameter Unit Maximum Permitted Levels Health Impact Note

Detergents mg/L 0.01 Possibly carcinogenic

Mineral oil mg/L 0.003 Possibly carcinogenic

Pesticides mg/L 0.01 Possibly carcinogenic

Phenols mg/L 0.001 Possibly carcinogenic

Poly Aromaticmg/L 0.007 Possibly carcinogenic

Hydrocarbons

Total Organic mg/L 5 Cancer

Carbon

Oxidisability

The table above shows the organic constituent parameters of drinking water with their maximum

allowable limits. If these limits are exceeded, the potential health impact is indicated.

Table 4: Disinfectants and their By-products

Parameter Unit Maximum PermittedHealth Impact Note

Levels

Free residual mg/L 0.2-0.25 None Note 2

39
Chlorine

Trihalomethanes Total mg/L 0.001 Cancer Note 2

2,4,6-trichlorophenol mg/L 0.02 Cancer Note 2

Note 2: For chlorinated water only

The table above shows disinfectants and their By–products in drinking water with their

maximum permitted levels as well as potential health impacts when they exceed these

levels.

Drinking water providers shall increase the amount of residual chlorine during epidemics or

special cases according to instructions of Ministry of Health.

The presence of the following contaminants shall not exceed limits specified in Table 5.

Table 5: Radioactive Constituents

Parameter Unit Maximum Permitted Levels Health Impact Note

Radionuclides Bq/L 0.1 Cancer

The table above shows the radioactive parameters for safe drinking water in the form of

radionuclides, its maximum permitted level and the potential healthy impact which is cancer.

Table 6: Microbiological Constituents

Parameter Unit Maximum PermittedHealth Impact Note

levels

Total Coliform countcfu/mL 10 Indication of fa

ec

40
Chlorine contamination al

Thermo tolerantcfu/100mL 0 Urinary tract infections,

Coliform or E. coli bacteraemia, meningitis,

diarrhea, (one of the main

cause of morbidity and

mortality among

children), acute renal failure

and haemolytic anaemia

Faecal Streptococcus cfu/100mL 0 Indication of recent fa

contamination ec

al

Clostridium cfu/100mL 0 Index of intermittent

perfringens spore faecal

contamination

The table above shows the microbiological parameters for safe drinking water. Their maximum

permitted levels, as well as the potential health impact if they exceed the maximum permitted

levels are indicated.

B. Routine Monitoring

Inspectors in charge of Drinking Water Quality Surveillance shall conduct regular verification

water quality tests and sanitary inspections to determine whether water utilities, community

water committees, food processing industries, private or public establishment and private water

system owners meet standard for drinking water quality.

41
C. Minimum Parameters for Monitoring

The following set of simple parameters indicators of quality of drinking water shall be

controlled on regular basis:

Table 7: Routine Monitoring Parameters

Parameters Notes

Taste

Odour

Colour

Turbidity

pH

Conductivity

Iron

Nitrates

Aluminum Note 1

Residual chlorine Note 2

E. coli Note 3

Fluoride

Note 1: Parameters subject to monitoring water treated using aluminum compound

Note 2: Parameters subject to monitoring water treated using chlorine compound

Note 3: 95% compliance over a one-year period

2.5 NAFDAC Regulations for packaged water

42
Packaged water is categorised as ‘regulated product’ under the provisions of NAFDAC Act. The

registration of every regulated product is made compulsory by the Drugs and Related Products

(Registration etc) Decree No 19 of 199368 which provides that no processed food, drug, drug

products, cosmetics, medical device or packaged water shall be manufactured, imported, exported,

advertised, sold or distributed in Nigeria unless it has been registered in accordance with the

provision of the Act or regulations made under it69.

The establishment of NAFDAC is an expression of the resolve of the government to ensure the

well being of the generality of Nigerians. The reason is that the human body is composed of

certain combination of chemical molecules and entities, which it is familiar with and which do not

cause any harm when introduced from outside the body in small or reasonable amounts.

Uncontaminated water, for instance, does not do harm to the body since a good proportion of the

body mass is composed of water molecules. Apart from such familiar chemical molecules, the

body is also able to tolerate varying reasonable amounts of compounds for which it has

mechanism to metabolize to compounds normally present in the body. Some other chemical

substances, which are Generally Regarded As Safe (GRAS), are not toxic to the body in

reasonable amounts70.

In carrying out its mandate, therefore, NAFDAC seeks to ensure that the public is protected not

only from substandard and fake processed foods, medicines, drugs, cosmetics and

bottled/packaged water, but also from those products which contain the right composition but due

to lapses in raw materials, methods of preparation, machinery, environment, or personnel, may

introduce contaminants whose harmful effects may be immediate or so delayed that the cause

effect association may never be known even when a lot of people are affected.

68
As Amended by Act No. 20 of 1999
69
See also S.1, Food and Drug Act, Cap F 32 (LFN) 2004
70
NAFDAC Guidelines for Lawful Transactions in Regulated Products (para. 3.2)

43
The methods used in the production of regulated products for public consumption to greatly

minimise human errors, avoid contamination, and ensure consistent, effective and safe products

are known as Good Manufacturing Practice (GMP), which varies in detail and scope with the

product and the circumstances71.

To enforce the indispensability of GMP to public health and well being, the Federal Military

Government of Nigeria in 1974, promulgated the Food and Drugs Decree72 which mandates the

registration of regulated products i.e. medicine, processed foods, cosmetics, medical devices,

packaged water and chemicals to be registered with NAFDAC before manufacture, importation,

exportation, distribution, advertisement and Sale etc. so that during the process of registration, the

level of compliance with GMP requirements can be established.

Product registration is a task undertaken by government to evaluate, monitor and document all

regulated products in order to ensure their efficacy, quality, safety or wholesomeness for the

benefit of those who consume them. It is the conception of the Nigerian regulatory regime73 that in

cases where there is an error or discrepancy, a registered product can easily be recalled from

circulation.74 It is however pertinent to note that this cannot be wholly effective as sachet water is

usually hawked or sold in unregistered premises.

In line with the foregoing statutory authority, NAFDAC drew up the general guidelines for the

registration of packaged bottled water as well as the production requirements thereof.75

The National Agency for Food and Drug Administration and Control (NAFDAC) by its

registration regulations, emphasises more on the inspection and accreditation of production

71
Ibid (para. 3.5)
72
No. 35 of 1974; re-iterated by Decree No. 19 of 1993; an amendment Decree No. 20 of 1999 and Re- enacted and
codified lately as Food and Drugs Act, Cap F 32 (LFN) 2004
73
S. 2 (b); S.3(a) Consumer Protection Council Act Cap C 25, LFN 2004.
74
Ladan, M.T., (2008) The Limits of Legal Protection and Enforcement/Regulatory Framework in Consumer
Protection Against Counterfeit and Pirated Products:- The Nigerian Experience. CALS Review of Nigerian Law and
Practice, Vol. 2 (1) pp.34, 53
75
See Appendix 1 for NAFDAC Guidelines for the Registration of packaged water in Nigeria.

44
sites, plants and methods without paying adequate attention to the distributive chain of sachet

water across the country. This may be due to corruption on the part of the staff of the Agency who

ought to know that if the distributive processes are not closely monitored by them, abuse on the

part of unscrupulous producers will be inevitable.

At present, the registration and certification for operators of sachet water business in Nigeria is

rather slack as nearly every street has either an unregistered or a registered but ill-monitored

sachet water factory (usually residential apartments) where both wholesome and unwholesome

‘pure’ water is packed and sold. These quack operators generate fake NAFDAC Registration

number, untraceable factory addresses and either fake or imitated trade marks on the sachet for the

market. The market is also convoluted with too many genuine and fake brands of sachet water

with all manners of labeling that are at best valued for mere aesthetic appeal76.

In 2012, NAFDAC shut down over ten (10) sachet water manufacturing factories in Port Harcourt

metropolis and its environs when it discovered that some sachet water producers were operating

under very poor/unhygienic conditions without Good Manufacturing Practice (GMP) while some

were illegal operating without NAFDAC license but were affixing fake NAFDAC number on

their sachet. More mischievous was the act of some of these producers imitating the labels and

NAFDAC numbers of law biding and genuine pure water producers in the area.77

According to the publication78, NAFDAC could only achieve the feat of tracing and shutting down

the premises in question with the assistance of the Association of Table Water Producers

(ATWAP) which is an umbrella association of practitioners in the sector. Apart from useful

information ATWAP provided to NAFDAC, it also complemented the manpower of NAFDAC

which was not sufficient to cover the entire area. Currently, NAFDAC estimates that there are

76
NAFDAC News (A Publication of NAFDAC) Issue 3, 2012, ISSN 1118-4086, p.51
77
Ibid
78
Ibid

45
over 8,679 packaged water factories in Nigeria, thereby creating more tasks for regulation

especially in terms of adequate manpower and finance79.

2.6 Evidence of Sachet Water Contamination in Nigeria

A full length research paper titled‖ Investigation of Heavy Metals in Drinking Water (Sachet and

bottled) in Ago-Iwoye and Environs, Ijebu North LGA, Ogun state, Nigeria80 contains the

following report excerpt;

All the data and information are obtained from analysis of sachet and bottled water samples from

different manufacturers consumed in the study area, which covers Ago-Iwoye, Ijebu—Igbo, Oru,

and Ijebu-Ode on November 03, 2008. Five (5) sachets and three (3) bottled packaged water were

collected from different manufacturers. All manufacturers refused access to their factories for

understanding of their water treatment processes and source of water, but it is believed that the

sources of their water are from boreholes. All the sachets and bottled water have NAFDAC

registration number. NAFDAC is Nigeria‘s health and safety regulatory body which ensures

among other things, the quality of water intake by Nigerians the study area inclusive…. This

investigation of the concentration of heavy metals in the samples gave a good indication of the

present state of metal contamination of both bottled and sachet water in Ijebu North LGA,

comprising Ago-Iwoye, Oru and Ijebu-Ode which is at a very low level. Presently, consumption

of this sampled water in Ijebu North LGA, Ogun State, Nigeria is high and may obviously not

lead to immediate poisoning. However, long term effect if there is not enough check may be of

major concern. Consequently, close monitoring of heavy metals must be carried out by the

79
NAFDAC News (A Publication of NAFDAC) Issue 3, 2012, ISSN 1118-4086, p.13, 51
80
David, T.W., Awoh, D.K. and Essa, G.A., (2013, January), Drinking Water (Sachet and Bottled) in Ago- Iwoye
and Environs, Ijebu North L.G.A., Ogun State, Nigeria, Scholarly Journals of Biotechnology Research, Vol. 2(1),
pp. 1-6.

46
regulatory agency (e.g. NAFDAC) in Ijebu-North LGA., in view of the possible risks to the health

of consumers, particularly in the processing and packing stages of the water.

According to the Report of another study81, to determine the bacteriological quality of drinking

water sold in Lagos, Nigeria, in which one hundred samples of high and low demand sachet water

obtained from vendors at hot spot locations were assessed using the multiple tube fermentation

method. It was discovered that based on the zero tolerance standards stipulated by NAFDAC,

there was a 22% non-compliance level.

It also stated that the quality of the packaged water is compromised significantly as it moves from

the manufacturer to the consumer owing to the nature of the packaging material, the conditions of

storage and transportation. Regulatory activities that promote core hygiene values, for instance,

hand washing, general cleanliness of storage environment and vendor containers as well as proper

handling culture could produce the desired improvements rather than a tenacious focus of end-

product monitoring, which does not always give a complete picture in terms of microbiological

risk assessment.

The two reports above show that;

(a) The hygiene of the production plants and processes required significant improvement, stricter

regulation and monitoring,

(b) That sachet water, even though properly treated and well packaged from the production

factories, can still be contaminated in the distribution chain as a result of poor handling and

storage environment,

(c) That sachet water even though contaminated, may not manifest its hazardous effect on the

health of the consumers immediately. The harm will usually build up over a course of

81
Dada, A.C., (2009, January), Sachet Water Phenomenon in Nigeria: Assessment of the Potential Health Impacts,
African Journal of Microbiology Research, Academic Journals Vol. 3(1), pp. 015-021.

47
consumption.

The researcher adopts the fore-going conclusions on the basis that they are the empirical scientific

opinions of the authors82 who are eminently qualified and competent to embark on the research

and draw those conclusions.

Furthermore, in 2012, NAFDAC,83 admitted that the Agency received a lot of complaints about

sachet water containing floating particles and sediments in year 2011.

The Agency then did some research by taking samples off the shelves and from the streets for

analysis. It found out that the sachet water cannot stay beyond two months, so the shelf life was

pegged at approximately two months. Even after this, the agency later found out that most of the

sachet water is either badly produced or has fungal growth. NAFDAC therefore decided to

conduct a recertification of water for a period of one or two years, after re-assessing every sachet

water producing factory for Good Manufacturing Practice (GMP).

2.7 The Effect of Contaminated Drinking Water on the Health of the Consumers

According to the United States Environmental Protection Agency (USEPA) 84 (a global model), the

factors that could undermine the quality integrity of drinking water are: Microorganisms,

disinfectants, disinfection by-products, inorganic chemicals and radionuclides. The contaminants

above must not exceed their Maximum Contaminants Levels (MCLs) if drinking water must be

ascertained safe for human consumption.

The potential health effect from long-term exposure to these contaminants above the Maximum

Contaminants Levels (MCLs) include:- Gastro-intestinal illness (such as diarrhea, vomiting, and
82
See appendix 2 for the particulars of the Scientific Journals and Editorial Boards.
83
[Link]., p.45
84
USEPA. Drinking Water Contaminants, National Primary Drinking Water Regulations.
[Link] (last accessed 30th March, 2015)

48
cramps), legionnaire‘s Disease (a type of pneumonia), increased risk of cancer, Anemia in infants

and young children: (nervous effects), liver, kidney or central nervous system problems, eye and

nose irritation, stomach discomfort, increase in blood cholesterol, decrease in blood sugar,

increased risk of developing benign intestinal polyps, increase in blood pressure, allergic

dermatitis, cardiovascular system or reproductive problems, adrenal gland problems, cataracts,

skin damage, thymus gland problems, immune deficiencies, Typhoid, bacillary dysentery and

cholera diseases.

Nigeria, with an ailing public health sector cannot cope with the treatment and management of all

the sicknesses associated with the consumption of contaminated water on a Universal Health

Insurance Scheme, hence an invidious dilemma for the consumers of unwholesome sachet water

who may be harmed thereby.

The way out for Nigeria, therefore, is for NAFDAC to concentrate more of its regulatory,

monitoring and enforcement capacity on prevention of malpractice by the manufacturers through

the initiatives that are proffered by the writer in the next chapter of this work.

2.8 Conclusion

This chapter has so far evaluated both the international and national policies on safe drinking

water to the end that NAFDAC regulations for packaged water were formulated from their general

safety parameters. It is the researcher‘s view that NAFDAC‘s emphasis which is mainly on

monitoring ―production processes‖ is rather self-restricting, as it has always focused its

attention on only inspecting and accrediting production sites, plants and methods (which is only

the first phase) of the production and supply circle as conceived by the NAFDAC Act, 2004;

hence, falling short on monitoring the entire chain of distribution of sachet water. This is rather

strange, because in the drug segment of its purview, NAFDAC does not only control importation

49
and local manufacture, it also conducts pharmacovigilance in drug stores, pharmacies and

hospitals to ensure that fake drugs are not sold and prescription drugs are neither put on the shelf

nor abused. This is a reflection that NAFDAC‘s monitoring and enforcement mechanism in the

packaged drinking water area is weak either due to manpower challenge, corruption, obsolete

devices/technology, inadequate funding or infrequent update and review of initiatives and field

strategies.

CHAPTER THREE

REGULATORY FRAMEWORK ON CONSUMER PROTECTION ON PACKAGED WATER IN

NIGERIA

3.0 Introduction

This chapter examines the statutory mandates of the regulatory agencies with a view to evaluating

their capability or otherwise in ensuring adequate protection or remedy to consumers of sachet

water in Nigeria.

The institutions to enforce consumer protection laws in Nigeria are set up by government and

charged with the task of implementing the provisions of the relevant Laws for the overall benefit

of the consumer. These bodies are empowered by statutes to enforce the laws and regulations

50
governing consumable products, their manufacturers, importers and distributors. The major

institutions in this sector are:-

i. The National Agency for Food and Drug Administration and Control (NAFDAC);

ii. The Standards Organization of Nigeria (SON), and

iii. The Consumer Protection Council of Nigeria (CPC).

3.1 The National Agency for Food and Drug Administration and Control (NAFDAC)

It is the duty of every government to ensure that its citizens are protected from the negative health

exposures that could arise from the production, distribution and sale of fake, unwholesome,

contaminated and adulterated consumables, i.e. food and drugs (including packaged drinking

water).

In Nigeria, this responsibility is given to the Federal Ministry of Health. Until December 1992, the

responsibilities relating to food and drugs were handled by the Department of Food and Drugs

Administration and Control (FDAC) within the Federal Ministry of Health. The downside of this

state of affairs is that it was not independent of the typical bureaucratic culture of the civil

service system expressed in the slow mobilization of ideas, initiatives, human resources and

sufficient materials; poor funding of programmes; insensitivity of management to the core values

of the Department; poor salaries and allowances to the staff and general low level of discipline.

As a result of these problems, the military Administration of General Ibrahim B. Babangida,

established the National Agency for Food and Drug Administration and Control NAFDAC as a

parastatal under the Federal Ministry of Health by Decree No. 15 of 1993. By Section 5 of the

enabling legislation85 NAFDAC was mandated to:

a) Regulate and control the importation, exportation, manufacture, advertisement, distribution,

85
NAFDAC Act, Cap N1, (LFN), 2004

51
sale and use of drugs, cosmetics, medical devices, bottled water and chemicals;

b) Conduct appropriate tests and ensure compliance with standard specifications designated and

approved by the Council for the effective control of quality of food, drugs, cosmetics, medical

devices, bottled water and chemicals and their raw materials as well as their production processes

in factories and other establishments.

c) Undertake appropriate investigation into the production premises and raw materials for food,

drugs, cosmetics, medical devices, bottled water and chemicals and establish relevant quality

assurance system, including certification of the production sites and of the regulated products;

d) Undertake inspection of imported food drugs, cosmetics medical devices, bottled water and

chemicals and establish relevant quality assurance systems, including certification of the

production sites and of the regulated products;

e) Compile standard specifications and regulations and guidelines for the production, importation,

exportation, sale and distribution of food, drugs, cosmetics, medical devices, bottled water and

chemicals;

f) Undertake the registration of food, drugs, medical devices, bottled water and chemicals;

g) Control the exportation and issue quality certification of food, drugs, medical devices, bottled

water and chemicals intended for export;

h) Establish and maintain relevant laboratories or other institutions in strategic areas of Nigeria as

may be necessary for the performance in its functions;

i) Pronounce on the quality and safety of food, drugs, cosmetics, medical devices, bottled water

and chemicals, after appropriate analysis;

j) Undertake measures to ensure that the use of narcotic drugs and psychotropic substances are

limited to medical and scientific purposes;

52
k) Grant authorization for the import and export of narcotic drugs and psychotropic substances as

well as other controlled substances;

l) Collaborate with National Drug Law Enforcement Agency in measures to eradicate drug abuse

in Nigeria;

m)Advise Federal, State and Local Governments, the private sector and other interested bodies

regarding the quality, safety and regulatory provisions on food, drugs, cosmetics, medical devices,

bottled water and chemicals;

n) Undertake and co-ordinate research programmes on the storage, adulteration, distribution and

rational use of food, drugs, cosmetics, medical devices, bottled water and chemicals;

o) Issue guidelines on, approve and monitor the advertisement of food, drugs, cosmetics, medical

devices, bottled water and chemicals;

p) Compile and publish relevant data resulting from the performance of the functions of the

Agency or from other sources;

q) Sponsor such national and international conferences as it may consider appropriate;

r) Liaise with relevant establishments within and outside Nigeria in pursuance of its functions;

s) Determine the suitability or otherwise of medicines, drugs, food products, cosmetics,

medical devices or chemicals for human and animal use; and

t) Carryout such activities as are necessary or expedient for the performance of its functions

under the Act.

These functions are implemented through NAFDAC product registration which ensures that any

registered product by the agency is certified fit for human consumption. When the provisions of

its rules and regulations are breached, punitive measures such as revocation of registration license,

closure of production sites and seizure of the defective products are taken against the defendant.

53
However, NAFDAC needs to do more in the area of registration and certification of sachet water

production businesses, methods and sites, by ensuring more stringent background checks on

applicants, their plants and storage facilities with a view to building a fool proof and accurate

database of genuine producers and distributors who would be held accountable for product

defects. Also, the distributive chain and end point retailers must be closely monitored in order to

avoid or reduce the prevailing incidents of transit contamination as sachet water moves from the

manufacturing sites to the consumers. NAFDAC can do this by introducing tracking technology

and also by collaborative action with other agencies of government as outlined in its functions.

3.2 The Standards Organization of Nigeria (SON)

Established under Decree No. 56 of 1974 as amended by Decree No. 32 of 1984 and subsequently

re-enacted in the 1990 Laws of the Federation (LFN) 86, the purpose of the enactment is to

establish an organization for the standardization of methods and products in Nigerian industries

and to provide for other matters relating thereto.

S.3 of the Act vests it with the following functions, to wit;

(a) To advise the federal government generally on the national policy on standards, standards

specifications, quality control and metrology;

(b) To designate, establish and approve standards in respect of metrology, materials,

commodities, structures and process for the certification of products in commerce and industry

throughout Nigeria;

(c) To provide the necessary measures for quality control of raw materials and products in

conformity with the standard specification.

Under S.4 of the Act, the organization is assigned specific functions which include, inter alia, the
86
SON Act Cap. S.9 LFN, 2004.

54
duty;

(1) To organize tests and do everything necessary to ensure compliance with standards

designed and approved by the council;

(2) To undertake investigations necessary into the quality of facilities, materials and products

in Nigeria and establish quality assurance systems including the certification of factories, products

and laboratories.

(3) To ensure reference standards for calibration, verification of measures and measuring

instruments.

(4) To develop methods for testing of materials, and equipment including items purchased for

use of departments of the federation or of a state and private establishments;

(5) To compile an inventory of products requiring standardization, and Nigerian Standards

Specification;

(6) To register and regulate standards, marks and specifications;

(7) To undertake preparation and distribution of standards samples;

(8) To establish and maintain such number of laboratories and other institutions as may be

necessary for the performance of its functions under the Act.

The essence of the Standards Organisation of Nigeria is to ensure that buyers and consumers of

both imported and locally manufactured goods alike are protected against the circulation of

defective and substandard goods when they enter into commercial transactions. It also helps in

eradicating most uncertainties that parties encounter when buying and selling products, hence the

requirement of manufacturers‘and importers‘strict compliance with the standardization function

of the SON.

However, it should be noted that the jurisdiction of the Standard Organization of Nigeria (SON)

55
does not cover the specific area of packaged drinking water. It only covers and regulates water,

both drinking and for other uses, sourced from public water mains and designated for public use.

3.3 The Consumer Protection Council of Nigeria (C.P.C)

The Council was established under Decree No. 66 of 199287 and assigned extensive functions

and powers. Its functions are set forth in Section 2 as follows:-

i. To provide speedy redress to consumer complaints through negotiations, mediation and

conciliation;

ii. To seek ways and means of removing or alienating from the market hazardous products and

causing offenders to replace such products with safer and more appropriate alternatives;

iii. To publish from time to time lists of products whose consumption and sale have been

banned, withdrawn, severely restricted or are not approved by the federal government or

any foreign government;

iv. To cause an offending company, firm or trade association or individual to protect,

compensate, provide relief and safeguards to injured consumers or communities from

adverse effect of technology that is inherently harmful, injurious, violent or highly

hazardous;

v. To undertake and organize campaigns and other forms of activities as will lead to increased

public consumer awareness.

vi. To encourage trade, industry and other professional associations to develop and enforce in

their various fields quality standards designed to safeguard the interest of consumers;

vii. To issue guidelines to manufacturers, importers, dealers, and wholesalers in relation to their

obligations under the Act;

87
Consumer Protection Act, Cap. C25 (LFN), 2004.

56
viii. To encourage the formation of voluntary consumer groups or association for consumer well

being;

ix. To ensure that consumers‘ interests receive due consideration as appropriate for and to

provide redress to obnoxious practices or the unscrupulous exploitation of consumers by

companies, firms, trade association or individuals;

x. To encourage the adoption of appropriate measures to ensure that products are safe for

either intended purpose or normally safe for use.

2. Section 3 of the Act further 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 place of manufacture of commodity as

well as certification of compliance;

5. Compel a manufacturer, dealer or service company where appropriate, to give public

notice of any health hazard inherent in their products;

6. Ban the sale, distribution or advertisement of products which do not comply with safety

or health regulations.

It is noteworthy that the CPC has a remarkably direct mandate on the consumer, and if its

functions are effectively harnessed, it will redress whatever complaints that exist in contractual

transactions. This is in addition to the fact that it is yet the only regulatory agency that has

compensatory provision for the benefit of the injured consumer against an erring manufacturer.

However, the Consumer Protection Council needs to embark on sustained sensitisation of

57
Consumers on their rights, as lack of public awareness of the existence of the Council has fettered

its relevance and hence, stalled the development of product liability regime in Nigeria.

3.4 Bottlenecks to Enforcement and Implementation

In a Consumer Protection Council of Nigeria (CPC)‘s consumer feedback document in 201488 it

was stated that as lofty and well-crafted as the objectives of the regulatory agencies (NAFDAC

and CPC) are, the true test of their impact on the Nigerian consumers lies in their deliverables. To

what extent have these bodies protected the Nigerian Consumers? The ability of the agencies to

answer this question rests squarely on the extent of their success in combating the following key

socio-political and legal obstacles, to wit;

1. Poor constitutional Framework - Inherent weakness in the enabling laws such as non-definition

of consumer‘s rights and inadequate provisions for enforcement, (especially in the Consumer

Protection Council Act); duplication of functions for the regulatory agencies and absence of a

robust network for effective collaboration amongst them.

2. Bureaucratic bottlenecks - This is a common feature of all government Ministries, Departments

and Agencies (MDAs). Nigerians are generally averse to the idea of utilizing government

instrumentalities to process anything or claim, except if it is the only option available to them.

They would rather prefer any other alternative even if it means forfeiting their hard earned money

and accepting their loss. This is usually as a result of the disenchantment of the citizens with the

tardy procedure of obtaining institutional redress.

3. General lack of awareness of the existence of these agencies and their mandates, especially the

Consumer Protection Council of Nigeria. The predominance of illiteracy in our society,

88
Nigerian Consumers: how protected are Nigerian consumers? [Link] (last accessed on
30th March, 2015)

58
inadequate publicity and public enlightenment by the regulatory agencies make matters worse.

4. The corruption and ineptitude of Law Enforcement Apparatus is another factor. It is a truism

that every law or policy is only as viable as the degree to which it is enforced. It is the

enforcement of a Law, and not its formulation that delivers benefit to the people.

5. The Regulatory Agencies are grossly under – staffed, the few staff they have are mostly ill –

motivated, unequipped, and poorly trained to effectively handle the enforcement aspect of our

regulatory statutes.

It is provided under sections 6-8 of the CPC Act, that a consumer who has suffered a loss, injury

or damage as a result of the use or impact of any goods, products (sachet water inclusive) or

service, may make a complaint in writing or seek redress through the State Committee of the

Council. The committee is empowered to inquire into the complaint and if substantiated and

subject to the approval of the Council can impose a redress but without prejudice to any other

civil remedy the consumer may have.

Under Section 10, the council or any State Committee may request and obtain satisfactory written

assurance from any person whose conduct of business has been detrimental to the interest of

consumers that such person shall refrain from such conduct. If such person fails to give such

assurance or having done so he acts contrary to it, the Council or State Committee may notify the

Federal Attorney-General who may proceed against the offender for violation.

These provisions further compound the plight of the injured consumer due to its indirect approach

to litigation. Hence, it is rightly observed by Ladan, M.T.,89 thus;

Although the protection afforded is apparently well packaged … the procedure for obtaining

redress is so cumbersome by its indirect approach, especially for the illiterate or uninformed

89
Ladan, M.T., (2008) The Limits of Legal Protection and Enforcement/Regulatory Framework in Consumer
Protection Against Counterfeit and Pirated Products:- The Nigerian Experience. CALS Review of Nigerian Law and
Practice, Vol. 2 (1) p. 17

59
consumers that most Nigerian consumers are. Again, many provisions or injunctions are not

positive enough to elicit prompt compliance or action against an erring manufacturer, company,

trade association or individual. In the final analysis, whether an action for redress is taken or not

depends essentially on the willingness of the Council, State Committee or the Federal Attorney-

General. Doubtless, these factors will make the lofty ideals and policies encompassed in law

difficult to accomplish. Again the Council needs to do a lot more, given the general indolence,

apathy and illiteracy of the Nigerian consumer, to bring to their notice or awareness of the

existence of the Council, State Committees and their functions and powers and above all, the

rights of the consumer.

Also, S. 3 (2) of the CPC Act which empowers the Council ―to compel a manufacturer to

certify that all safety standards are met in their products‖ appears to give the impression of the law

seeking a mere ceremonial gesture of manufacturers which is not positive enough to deter

malpractice. This position of statute has created an escape route for defaulting manufacturers

because it has reduced their duty of care and diligence only to ‘meeting certain standard’. The

question is: What happens if injury or harm occurs to a consumer even if this regulatory

condition is satisfied by the manufacturer, in the absence of intermediate tampering and/or

contributory negligence on the part of the consumer? Should the defendant not take his victim as

he finds him? Herein lies the implicit foundation for the reliance of the courts on the evidential

proof of the ‘full proof’ production process by the manufacturers to exonerate them of liability.

In the light of the foregoing challenges, it is not strange that the average consumer is exposed to

widespread abuse by manufacturers and distributors, leaving him with no choice than to accept his

losses, injury, harm and even death, more especially where the aggrieved consumer is up against a

major player in the economy.

60
3.5 Conclusion

The various regulatory agencies and their statutory mandates discussed in this chapter have been

doing their utmost in ensuring some level of consumer protection in Nigeria. What is curious is

the observation that despite their sustained efforts, there is still a prevalence of fake and

substandard products in the market, including sachet water. This is due to a number of factors

which include corruption, lack of collaborative efforts by the agencies to tackle most of the antics

of unscrupulous manufacturers and distributors; absence of an exhaustive recourse to, and

implementation of their statutory mandates and infrequent update of their regulations, rules and

strategies to beat emerging trends invented by defaulters to circumvent the regulatory capabilities

of the agencies.

CHAPTER FOUR

CONSUMER PROTECTION AND PRODUCT LIABILITY IN NIGERIA

4.0 Introduction

Nigeria does not yet have an articulated body of laws termed ‘Product liability law’ as there is in

developed countries like the United States of American. For the protection of consumers in

Nigeria, there is reliance on the rules of liability under the law of contract, the law of negligence

and also under the criminal provisions of NAFDAC and CPC Acts.

This chapter therefore examines the extent that the current consumer protection laws are able to

provide protection or remedy to an injured consumer of harmful sachet water either in the law of

contract, the law of tort or under the criminal provisions of the Natural Agency for Food and Drug

Administration and Control, NAFDAC Act and the CPC Act.

The Consumer Protection Act90 in Section 32 defines a consumer to mean ―an individual,
90
Cap. C25 (LFN) 2004.

61
who purchases, uses, maintains or disposes of products or services. Consumer protection therefore

means the prevention or reduction of wrongs or injuries, and the provision of redress for an

individual purchaser, user or disposer of any product or service91.

According to Ese Malemi92 Product liability or liability for defective products is the liability of a

person for defective products made or supplied by him. Product liability may be borne by a

producer or person holding out himself as a producer for instance by having his name, or mark on

a product; importer, distributor and so forth. Thus, manufacturers of products and sometimes

persons involved in the distribution chain owe a duty of care to consumers of their products and

where a person is harmed by a defective product, they become liable in negligence for breach of

this duty.

A manufacturer‘s duty of care to consumers of his product was established in 1932 by Lord Atkin

in his watershed judgment in the leading case of Donoghue vs Stevenson that:

A manufacturer of products which he 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 that reasonable care93.

In this case, the House of Lords held that the defendants who were manufacturers of drinks, owed

a duty of care to the plaintiff, who became sick after drinking a bottle of the manufacturer‘s ginger

beer, bought for her by a friend at a restaurant and which contained the decomposed remains of a

snail. Before this case was decided, the absence of contractual relationship between a

manufacturer and a consumer of his products had been a bar to a successful claim in negligence.
91
Kanyip, B.B., Consumer Protection in Nigeria; Law, Theory and Policy, 1st edition, Rekon Books Limited,
Abuja, p.27.
92
Malemi, E., Law of Tort, Princetown Publishing Company, Lagos, 1st ed. p. 267
93
(1932) AC. 562 at 599

62
The decision in this case corrected the position, and thereby gave to consumers the right of action

in negligence. The current law is that, an action in tort for negligence can arise without a contract

existing between the parties, once a plaintiff has suffered damage. This position underlines

Section 32 of the Consumer Protection Council Act 94 . Which defines a consumer as: ‘an

individual, who purchases, uses, maintains or disposes of products and services’.

Product liability95 is a tort which imposes liability on manufacturers and sellers of products that

are manufactured or sold in defective condition. A product is defective if it is unreasonably

dangerous to the user. Liability is tied to physical or emotional injury to the ultimate consumer as

was held in Constance Ngonadi vs Nigerian Bottling Co. Ltd 96. The greatest challenge to the

consumer in product liability cases is in the area of food poisoning, adulteration of drinks and

contaminated sachet water.

The courts are inherently disposed to holding the presumption of due exercise of care in favour of

manufacturers of unwholesome food and drinks, despite genuine and obvious proofs to the

contrary by the injured consumer. The burden of proving negligence is on the person who alleges

it. In order to discharge this burden, it is usually necessary for the plaintiff to prove specific acts

or omissions on the part of the defendant which will qualify as negligent conduct. More

particularly in the context of liability for defective products, the consumer must establish that his

damage resulted from defects in the product and was caused by the defendant failing in his duty

to take reasonable care97

This state of affairs leaves the injured consumer in a state of helplessness, frustration and loss of

94
[Link]., p. 63
95
The tort protects the consumer from unfair trade practices by manufacturers and other key players in the chain of
distribution who put in the market potentially dangerous and shoddy consumer products, unwholesome and
adulterated food, fake and substandard food and fake drugs.
96
(1985) 1 NWLR pt.4 p.739 – where the Plaintiff/Appellant sustained severe injuries from a brand of
Kerosene refrigerator which was sold to her by the defendant/Respondent.
97
Mickleburgh, J. Consumer Protection, p.213

63
confidence in the judicial process as can be observed from the following cases:

a. In NBC Plc. vs Okwejiminor & Anor98, the respondent bought a crate of coca-cola drink from

the appellant. While drinking a bottle of fanta, he felt some sediment down his throat and stopped

drinking and discovered that it contained some particles of foreign bodies. He also discovered that

another bottle in the same crate contained identical foreign bodies. He developed stomach pain

and was rushed to the hospital where he was first confirmed to be suffering from poisoning which

could have been caused by the fanta he drank. The trial court awarded the plaintiff the sum of

N950, 000.00k. However, the court of Appeal reversed the decision and held that because the

consumer ate breakfast earlier on that day (bread and Coffee) before leaving his house, it could not be

concluded that the fanta orange caused the injuries complained of.

b. In Okonkwo vs Guinness Nigeria Ltd99, the plaintiff drank small stout, brewed by the

defendant. The drink contained particles of roots, leaves, and back of tree. The plaintiff relied on

Res ipsa loquitur. The trial judge rejected the plaintiff‘s case and held that the plaintiff could not

establish that the defendant was the manufacturer of that particular bottle of stout; and that he

could not also prove when the drink left the manufacturer. He finally held that the principle of Res

ipsa loquitur did not apply to the case. In his words, Obi-Okoye J. summed up his judgment as

follows;

In conclusion, let me say this, Donoghue vs Stevenson did not create a magic for the recovery of

damages against manufacturers of drinks by ultimate consumers of the drinks. A plaintiff in a case

of this nature realizes that unless he has obtained admission of certain facts from those he sues,

the burden which he has assumed of establishing his case is enormous: no presumptions exists in

his favour; all the ingredients of the case must be proved by credible evidence at the trial. If

therefore, he is not in a position to discharge such burden, it is pointless instituting the action at
98
(1998) 8 NWLR. 295
99
(1980) 1 PLR 538.

64
all.

c. In Ebelamu vs Guinness Nig. Ltd100, the plaintiff at the occasion of the 10th Anniversary of his

wedding organized a party and treated his guests to food and drinks, some of the invitees who

drank harp beer, a product of the defendant‘s developed stomach pains, vomiting, and were rushed

to a nearby hospital, where they were diagnosed with food poisoning.

One unopened and two opened bottles of the harp beer were sent for laboratory analysis, and

were found to be poisonous. Despite the overwhelming evidence, the court dismissed the

plaintiff‘s claim and stated inter alia, that no nexus had been created between the opened bottle

and the unopened ones; and that a manufacturer owed no duty to ensure that its product was

perfect, beyond taking reasonable care to ensure that no injury is done to the consumer. In his

Judgment, Oshodi J., held that:

i) There was no nexus between the opened bottles and the unopened ones;

ii) A manufacturer owed no duty to ensure that the goods are perfect, but merely to take

reasonable care that no injury is done to the consumer or ultimate purchaser;

iii) The principle of Res ipsa loquitur has no place in a case of this nature.

d. In NBC vs Olanrenwaju101, the plaintiff/respondent purchased two bottles of coca- cola, a

product of the defendants/appellants. After taking some content of the drink, he noticed visible

particles in it. He also saw similar particles in the unopened bottle. Thereafter, the respondent felt

unwell and consulted a doctor. He thereafter instituted an action for damages at the Ilorin High

Court, and was awarded damages. On appeal by the appellant, the court of Appeal, Ilorin,

reversed the appeal on the ground that the respondent could not establish a direct link between the

coca-cola he drank and his ailment. In his Judgment, Ogunwumiju J.C.A stated;

100
(1983) FNLR 42.
101
(2007) All FWLR (pt. 364) 360

65
What is most important in the circumstances of this case is whether or not the respondent was able

to prove on a balance of probabilities that he drank a contaminated bottle of coca-cola and became

ill as a result of it… merely brandishing Exhibit = A, an unopened but obviously contaminated

bottle of coca-cola is not enough.

Also, in Boardman vs Guinness (Nig.) Ltd102, the plaintiff drank an unwholesome liquid content of

harp beer in an ill lit room. It was found to contain a considerable quantity of sediments. The

plaintiff filed an action for negligence against the defendant, for the manufacture of adulterated

beer. The defendant in its defence gave a detailed account of the manufacturing process to show

that the drink was produced under the strictest scientific brewing and quality control process, such

that the presence of extraneous or deleterious substance could easily be ruled out. The court

discountenanced the laboratory report which revealed that the beer contained certain bacteria and

held that the plaintiff had failed to show that the defendant was guilty of negligence. This was in

spite of the fact that the case appeared clearly to be on all fours with Donoghue vs Stevenson103.

From the foregoing decisions, it appears that the principle enunciated in Donoghue vs Stevenson

no longer represents the law in Nigeria in cases relating to the manufacture of unwholesome food

and drinks. It is strange to note that the courts have actively contributed through judicial

pronouncements to further weakening the protection hitherto afforded the consumer in this area of

law.

The extreme rigidity of the Nigerian Courts in cases of this nature is hinged on the question of

whether the plaintiff consumer has adduced sufficient evidence to show that the defect

complained of was present when the article left the defendant manufacturer (proof of producer‘s

fault). The evidence must unerringly show that the defect cannot be attributed to any intermediary

102
(1980) NCLR 109
103
Supra

66
or even to unlawful interference by the plaintiff himself. This task is enormous, as the courts may

not be willing to take the issue for granted. The courts, therefore ought to be a bit liberal as to

strike a balance between the interests of the consumer and those of the defendant. They should be

prepared (in the public interest) to make some reasonable assumptions where there is reasonable

circumstantial evidence against the defendant, in favour of the claimant/plaintiff.104

The courts ought not to deviate from the earlier judicial landmark set in 1973 in the case of

Osemobor vs Niger Biscuit Co. Ltd and Nassars and Sons held (in line with the principle in

Donoghue vs Stevenson) that;

A manufacturer of product which he 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 knowledge that the absence of reasonable care in the

preparation or putting up the product will result in an injury to the consumer‘s life or property

owes the duty to the consumer to take that reasonable care105.

4.1 Consumer Rights

The United Nations General Assembly by its Resolution 106 unanimously adopted Guidelines for

Consumer Protection which member nations are expected to implement. Although the Resolution

has not been domesticated by Nigeria, its guidelines laid down basic principles in the nature of

consumer rights and governmental obligations that should apply in all economies.

In general, therefore107, the Guidelines make provision in respect of the following matters:

104
Monye, F., (2005), Law of Consumer Protection, 2nd ed., Spectrum Law Series, Ibadan, pp. 181- 182.
105
In this case, the plaintiff in the course of eating the biscuit manufactured by 1 st defendant, and sold by the 2nd
defendant in its supermarket found a decayed tooth in it, and in consequence became hysterical and physically ill.
The court held that the consumer of biscuit would reasonably not be expected to carry out an examination of the
product before consuming it. The defendants were held liable.
106
Resolution 39/248 of 9 April, 1985.
107
Kanyip, B.B., [Link]., p. 21

67
1. that countries should adopt appropriate measures to ensure that products are safe for either the

intended or normally foreseeable use,

2. that government policies should enable consumers obtain optimum benefit from economic

resources, and achieve the goals of satisfactory production and performance standards;

3. That governments should formulate and promote the elaboration of standards at both national

and international levels for the safety of goods and services and give them appropriate

publicity;

4. That governments should ensure the efficient distribution of goods and services to

consumers;

5. That governments should establish and maintain legal and/or administrative

measures to enable consumers or relevant organisations to obtain redress expeditiously and

inexpensively;

6. That governments should develop and encourage the development of general consumer

education and information programmes and which should be an integral part of the

basic curriculum of the educational system, preferably as a component of existing subjects;

7. That governments should adopt and maintain the standards of food security, safety and

adequate supply laid down by the Food and Agriculture Organisation (FAO), the World

Health Organisation (WHO) and Codex Alimentarius Commission;

8. That governments should ensure the supply and distribution of good and quality drinking

water;

9. That governments should develop and maintain adequate standards and regulations for the

supply of appropriate medicare through a National Drug Policy; and

10. That governments should develop, review, maintain or strengthen appropriate mechanisms for

68
 the exchange of information on material policies and measures, in co-operation with other

countries at the international level or among different tiers of government at the domestic

level.

Implicit in these Guidelines, therefore, are the basic rights of consumers, namely;

i. The right to basic needs

ii. The right to safety

iii. The right to be informed

iv. The right to choose

v. The right to be heard

vi. The right of redress

vii. The right to consumer education

viii. The right to a healthy environment, and

ix. The right not to be exploited.

4.2 Application of Res ipsa loquitur in Nigerian Cases

Res ipsa loquitur108 is a Latin maxim which means ‘the thing speaks for itself’. The term is

used to refer to anything that is plain, clear, or self-explanatory and needs no further explanation,

proof, or clarification. Res ipsa loquitur is a rule of the law of evidence whereby the mere fact

that a thing happened raises an inference of negligence on the part of the defendant so that there

is a prima facie case and he has to make his defence. The application of this doctrine

automatically shifts the burden of proof to the defendant to exonerate himself from liability in

negligence.

However, it was observed in Management Enterprises Ltd vs Otusanya,109 as follows:

108
Erle, C.J. in the case of Scott vs London & St. Katherine‘s Dock (1865) 159 B.R. 465
109
(1987) 2 NWLR pt. 55, p.16

69
If there is evidence the occurrence took place, an appeal to Res ipsa loquitur is misconceived and

inappropriate. There, again, the defendant‘s negligence must be determined on the available

evidence. In other words, the doctrine of Res ipsa loquitur is never meant to supplant inconclusive

evidence of negligence on the part of the plaintiff, it is meant to apply where there is no other

proof of negligence than itself.

It therefore means that for the doctrine to be applied to any case, three conditions must be met, to

wit:

1. There must be an absence of explanation of the occurrence by the plaintiff,

2. The thing that caused the harm must have been under the management or control, of the

defendant or his servant; and,

3. The accident or harm must be one which in ordinary course of things, does not happen without

negligence on the part of the defendant.

Adefarasin, Ag. CJ Lagos State (as he then was) rightly pointed it out in Akinola vs Guffanti &

Co. Ltd110 that:

The maxim is no more than a rule of evidence affecting onus. It is based on common sense, and its

purpose is to enable justice to be done, when the facts bearing on causation and on care exercised

by the defendant are at the outset unknown to the plaintiff and are, or ought to be within the

knowledge of the defendant.

In the case of Boardman vs Guiness (Nig) Ltd (Supra), even though the doctrine of Res ipsa

loquitur was held inapplicable to the facts of the case, it was admitted that a plaintiff could be

justified in invoking it in appropriate cases. Iguh, J. (as he then was) refused to accept the

submission of counsel for the defendants that the principle can never be applied to product liability cases.

He stated;

110
(1974) 5 CCHCJ 671 at 673

70
To the extent that the plaintiff must aver and prove negligence against the defendant, I am in

complete agreement. I am however unable to agree that the doctrine of Res ipsa loquitur can never

be applied by a plaintiff to prove negligence in this class of cases. In my view, proof of the

presence of foreign or deleterious matter in a consumable or other product which irresistibly

suggests negligence on the part of the manufacturer or other class of person is sufficient to

establish a prima facie case of negligence founded on the doctrine of Res ipsa loquitur.

The application of Res ipsa loquitur will avail the plaintiff (injured consumer of unwholesome

sachet water) the leverage to approach the courts more easily because his dilemma in most cases is

that he did not know and there are no avenues beyond mere labeling of sachet water to make him

know whether or not the water is pure. It must be emphasised that the injury caused must be one

that affects more than a few plaintiffs who have proof that they consumed the same brand of

sachet water which was manufactured by the defendant in the same area and manifesting the same

disease symptom and syndrome at about the same time.

However, the Supreme Court of Nigeria, held in the case of Linus Onwuka & Anor vs Omogui111

that the principle only shifts the burden of proof, which is adequately met by showing that despite

the accident, the defendant was not in fact, negligent.

If this is successfully done, the burden shifts back to the plaintiff to show that the defendant was

in fact, negligent.

4.3 Relevance of Trade Mark Act Provisions to the Interest of a Consumer

A trade mark is any visible sign adopted by a manufacturer to distinguish his product from goods

of the same general description.112 An infringement of trade mark which could be against goods or

111
(1992)3 N.W.L.R. (pt. 230) 393. S.C

112
The definition given to trade mark in the Trade Marks Act, Cap. T. 13 (LFN) 2004 i.e. S. 67 and S. 43.

71
trade consists of the unauthorized use or colourable imitation of a trade mark on substituted goods

of the same class as those for which the trade mark has been appropriated with the result that

intending customers could readily confuse one product for the other. The law of trade mark was

summed up by Lord Cramworth L.G, in Seixo vs Provenzende113 as follows:

Where a manufacturer has been in the habit of stamping the goods which he has manufactured

with a particular mark or brand so that persons purchasing goods of that description know them to

be of his manufacture, no other manufacturer has a right to adopt the same stamp.

Distinctiveness has always been the fundamental essence of granting injunction in favour of

objectors against the simultaneous use by imitators of trademarks similar to those of the objectors.

It is therefore clear, that the endless conflicts and litigation between manufacturers over the

protection of merchandising marks is, primarily to safeguard their economic interest and also

ensure continuity in the use of distinctiveness of the marks. A manufacturer would hardly resort to

litigation against the imitator of his product, for the singular purpose of protecting the consumer of

his product. The fact that the consumer ends up being protected from being fed with imitation is

coincidental and consequential.

The foregoing allusions are eloquently attested to by the following judicial authorities;

In Alban Pharmacy Ltd vs Sterling Products International Inc 114, Ademola, CJN opined that the

criterion for determining what constitutes an infringement was that ―the mark sought to be

registered must not when compared with what is already registered, deceive the public as to

cause confusion‖. In this case, the owners of the trade mark ‘castorina’ objected to the

defendant‘s application to use the mark ‘castorina’ on medicines of the same type as sold by

the objector. The court was of the view that the objector‘s apprehension about the possibility of

113
(1866) 1 Ch. App. 192 at 196.
114
(1968) 1 All NLR 300

72
confusion was well founded, having regards to the similarity in the dominant syllables in both

marks. On the same footing, in Iyke Medical Merchandise vs Pfizer Inc. & Anor 115, the

plaintiff/respondent (Pfizer Inc) had been engaged in the manufacture and sale of a

pharmaceutical product, a worm expeller for the treatment of worms in children and adults,

known as ‘combantrin plus’ duly registered under trade mark No. 31159. Thereafter, the

defendant/appellant (Iyke Medical Merchandise) also a pharmaceutical outfit, sought to put in the

market a product known as ‘ Combiterin’ which is also for the treatment of worms in both

children and adults. The plaintiff‘s action for injunction, order of delivery up for destruction of

the infringing product (Combiterin) and general damages succeeded.

The relevance of this exposition on trade mark to the subject matter of this research is that the

lack of effective pro-active measures to ward off trademark imitation by the relevant agencies has

left hapless consumers of sachet water unprotected against the antics of some unscrupulous

individuals who forge the trademarks of established and safety complaint manufacturers of sachet

water on bags which they use to sell untested, unapproved and contaminated water to the

consumers who simply buy on the basis of their confidence in the quality of the real product. This

action is both an infringement on the trade mark rights of the original holders and infliction of

health hazard on the buying but unsuspecting public. It is submitted that infringement of trade

mark should be made actionable in tort and in crime. That the laws should be amended to

prescribe definite deterrent punishment, i.e. a long term of imprisonment for convicted defaulters

instead of limiting penalties to seizure and/or forfeiture only.

4.4 Protection in the Law of Contract

Implied Terms (Merchantable Quality).

115
(2001) 6 NSCQR 997; (2001) 10 Nigerian Weekly Law Report (Pl. 722) 540.

73
By section 14 (2) of the Sale of Goods Act, 1893, goods bought by description from a seller who

deals in those goods must be of merchantable quality. The condition, however, does not apply if

the buyer has examined the goods and fails to detect defects which such an examination ought to

have revealed. However, the Sale of Goods Act, 1893 does not apply to the whole of Nigeria as

the old Western Region repealed it and replaced it with Sale of Goods Law, 1959 (subsequently

adopted by all the states that were hitherto in old Western Region), as well as Kaduna and Benue

States which have enacted the Sale of Goods Law, 1990 and 2004 respectively.

The decision that gave birth to the doctrine of implied terms which subsequently found expression

in the Sale of Goods and Hire purchase Acts116 is that of Jones vs Bright117, wherein Sir William

Best had this to say:

It is the duty of the court in administering the law to lay down rules calculated to prevent fraud, to

prevent persons who are necessarily ignorant of the qualities of a commodity they purchase and

to make it the interest of manufacturers and those who sell to furnish the best article that can be

supplied… if a man sells an article, he thereby warrants that it is merchantable that is, fit for some

purpose.

Merchantable quality is defined in the English Supply of Goods (Implied Terms) Act of 1973 to

mean;

Goods of any kind are of merchantable quality within the meaning of this Act if they are fit for the

purpose or purposes for which goods of that kind are commonly bought as it is reasonable to

expect having regard to any description applied to them, the price (if relevant) and all other

relevant circumstances.

Merchantable quality: is construed to be ‘satisfactory quality’ due to the

116
Ladan, M. T., (2008) The Limits of Legal Protection and Enforcement/Regulatory Frameworks in Consumer
Protection Against Counterfeit and Pirated Products:- The Nigerian Experience. CALS Review of Nigerian Law and
Practice, vol. 2 (1) p. 17
117
(1892) 5 Bing 533

74
impreciseness of it. Thus, goods are of a satisfactory quality if they meet the standard that a

reasonable person would regard as satisfactory; taking account of any description of goods, the

price (if relevant) and all the other relevant circumstances. Where the buyer deals as a consumer,

these relevant circumstances ‗include any public statements on the specific characteristic of the

goods made about them by the seller, the manufacturer, or his representative, particularly in

advertising or in labelling‘ (i.e. that the sachet water is pure). Manufacturers/sellers can however,

avoid liability for non conformity with these public statement and assurances, if they can show

that when the contract was made:

(a) they neither knew nor could reasonably have been aware of the statement,

(b) the statement had before the contract was made, been publicly withdrawn or corrected, or

(c) the decision to buy the goods could not have been influenced by the particular statement118.

Actions under the Sale of Goods Act have a number of advantages over proceedings in tort. There

is no need to prove fault; only defectiveness, thus, making the remedy potentially wider than in

the tort of negligence. Furthermore, in contrast to the position in tort, no distinction is drawn

between dangerous and ineffective goods, or between physical and economic loss; all losses are

recoverable, provided they are not too remote – save that such liability only applies between

parties to a contract of sale 119. But in the case of Heningsen vs Bloomfield Motors120, the

development in the U.S. was amply reflected in the judgment which emphasized that the

manufacturer‘s contractual liability ensures to the benefit of the ultimate consumer. This therefore

seems to obviate the privity rule as far as the consumer rights against the manufacturer in product

liability matters are concerned. It is therefore, edifying for Nigeria.

118
Dugdale, A.M., (Ed.) (2006). Clerk & Lindsell on Torts. 19th ed., London, Sweet & Maxwell, 11-05, 698
119
Elliot, C., and Quinn, F., (2007) Contract Law, 6th ed., LexisNexis, London.
120
161 A. 2d 69 (1960).

75
4.5 Privity of Contract and Consumer Protection

As a general principle, a contract cannot confer enforceable rights or impose obligations arising

under it on any person, except parties to it. Thus, only parties to a contract can sue on it. It also

follows that only those who have furnished consideration towards the formation of the contract

can bring an action on it121.

Therefore, Lord Haldane stated in Dunlop Pneumatic Tyre Co. Ltd vs Selfridge Ltd. thus;

My Lords, in the Law of England, certain principles are fundamental. One is that only a person

who is a party to a contract can sue on it. Our law knows nothing of a jus quaesitum tertio arising

by way of contract. Such a right may be conferred by way of property, as for example, under a

trust, but it cannot be conferred on a stranger to a contract as a right in personam to enforce the

contract122.

However, the law of negligence and the duty of care concept embodied therein present an

interesting exception to the privity doctrine. In English tort law, an individual may owe a duty of

care to another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty

is found to be breached, a legal liability is imposed upon the tort feasor to compensate the victim

for any loss or damage they incur.

The idea of individuals owing strangers a duty of care where beforehand such duties were only

founded from contractual agreements developed at common law, through the 20th century. The

doctrine was significantly developed in the case of Donoghue vs Stevenson123. Following this, the

duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim

in negligence. The common law position regarding negligence recognized strict categories of

negligence. The position was significantly changed in Donoghue vs Stevenson, in 1932, which

121
Sagay, I., (2000).Nigerian Law of Contract, Spectrum Law Series, Ibadan p. 489
122
(1915) AC 487 at 853
123
Supra

76
established that a duty of care applied despite absence of prior relationship or interaction and was

not constrained by privity of contract. Here, a duty of care was found to be owed by a

manufacturer to an end consumer, for negligence in the production of his goods. Mrs. Donoghue‘s

claim for damages for gastroenteritis and nervous shock where allowed, where a ginger beer

manufacturer had negligently allowed a snail into a bottle, which she had consumed. Lord Atkin

established liability on the basis that a neighbourhood principle existed between the two parties, to

ensure reasonable care was taken in the production of the ginger beer, so as not to cause Mrs.

Donoghue any unreasonable harm;

There must be, and is, some general conception of relations giving rise to a duty of care, of which

the particular cases found in the books are but instances…. The rule that you are to love your

neighbour becomes in law you must not injure your neighbor; and the lawyer‘s question: Who is

my neighbor? receives a restricted reply. You must take reasonable care to avoid acts or omissions

which you can reasonably foresee would be likely to injure your neighbor. Who, then in Law is

my neighbour? The answer seems to be persons who are so closely and directly affected by my

act that I ought reasonably to have them in contemplation as being so affected when I am

directing my mind to the acts or omissions that are called in question124.

This speech of Lord Akin‘s established a neighbour principle, or a general duty that individuals

must take reasonable care in their actions or omissions, so as not to cause harm to others

proximate to them. It did not matter that Mrs. Donoghue was unidentified or unknown to the

manufacturer; as the type of harm which occurred was foreseeable through the negligence of the

ginger beer manufacturer.

Following the firm establishment of the neighbour principle in negligence, it became clear in

subsequent years that it did not represent an easily applicable approach to new forms of duty, as
124
(1932) AC. 562 at 599

77
to unprecedented situations of negligence 125. As such, new categories of negligence evolved, as in

Hedley Byrne & Co. Ltd vs Heller & Partners Ltd126, to cover different types of negligent acts, i.e.

negligent misstatements occasioning economic loss for instance, rather than a coherent doctrine or

ratio being taken from Donoghue vs Stevenson.

Some forty years after Donoghue was decided, in Home Office vs Dorset Yacht Co. Ltd.127, Lord

Reid stated judicially that; ―the time has come when we can and should say that it ought to

apply unless there is some justification or valid explanation for its exclusion.‖ It was not until the

case of Anns vs Merton London Borough Council 128, however, that the neighbour principle was

adopted in a formal test for negligence. The case involved the negligent construction of a block of

maisonettes, commissioned by the Merton London Borough Council. The flats, finished in 1972,

had poorly constructed foundations, resulting in sloping of floors, and cracks in the walls. The

Lessees of the maisonettes sued the Council in negligence, alleging a duty of care existed for the

building to be properly constructed and in a usable state.

The House of Lords unanimously found a duty to exist. The test established by Lord Wilberforce

known as the Anns test imposed a prima facie duty of care where;

(a) A sufficient relationship of proximity or neighborhood exists between the alleged wrongdoer

and the person who has suffered damage, such that the carelessness on the part of the former is

likely to cause damage to the latter.

(b) There are no considerations relevant which may reduce or limit the scope of any imposed

duty.

The current test for a duty of care can be found in the judgment of Caparo Industries Plc vs

125
Elliott, C., and Quinn, F., [Link]., p.35
126
(1964) AC 465

127
(1970) AC 1004 at 1027
128
(1978) AC 728

78
Dickman129.

Lord Oliver‘s speech in the above case sets the test for a duty of care thus;

(a) The harm which occurred must be a reasonable foreseeable result of the defendant‘s

conduct;

(b) A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer

and the person who has suffered damage;

(c) It is fair, just and reasonable to impose liability.

It is submitted that this should form the basis for the liability of manufacturers of unwholesome

sachet water whenever the consumer is harmed or injured by its contaminants. More so, that the

health of the consumers is of the utmost priority to government, hence bringing acts and/or

omissions that endanger it under breaches of public interest and policy.

It is salient to opine that proof of unwholesomeness of packaged water which causes harm or loss

or death to a consumer satisfies the first ingredient, i.e.; ‘the harm which occurred must be

a reasonably foreseeable result of the defendant‘s conduct’.

The neighbour principle that operates between the manufacturer/retailer/seller of sachet water and

the ultimate consumer underscores the satisfaction of the second ingredient – i.e; ‘a sufficient

relationship of proximity or neighbourhood exists between the alleged wrong doer and the

person who has suffered damage’; and, because the health and well being of the citizens is such a

serious priority of government, it would only be fair, just and reasonable to treat issues that relate

to the safety or otherwise of food, drugs, packaged water, etc. as constituting public policy

concerns, thus satisfying the third ingredient – i.e., ‘it is fair, just and reasonable to impose

liability’.

129
(1990) 2 AC 605

79
4.6 Strict Liability

Strict liability makes a person responsible for the damage and loss caused by his acts and omission

regardless of culpability (or fault in criminal law terms, which would normally be expressed

through mens rea – ‘guilty mind’ requirement. Strict liability is the legal responsibility for

damages, or injury, even if the person found liable was not at fault or negligent.130

It is important to, and finds ample application in product liability and consumer protection cases.

For reasons of public policy, certain activities may be conducted only if the person conducting

them is willing to insure others against the harm that results from the risks the activities or in-

activities create.

In the United States of America, strict liability is enforced against a manufacturer who puts

detective products in the market for consumers‘ use. In Greenman vs Yuba Power Production

Inc.131 a man was injured while using an all-purpose power tool given to him as a present by his

wife. This injured the consumer who brought an action. The Supreme Court of California held the

manufacturer liable and stated in its judgment as follows;

A manufacturer is strictly liable in tort when an article he places on the market knowing that it is

to be used without inspecting for defects, proves to have a defect that causes injury to a human

being…. The purpose of such liability is to ensure that the costs of injuries resulting from

defective products are borne by the manufacturer that puts such product on the market rather than

by the injured persons who are powerless to protect themselves.

Also, Comment C‘ to Section 402 A of the US Restatement (Second) of Torts, 1965, is cited thus:

On whatever theory, the justification for strict liability has been said to be that the seller, by

marketing his product for use or consumption, has undertaken and assumed a special

130
Fatula, O. A., (2011) Fundamentals of Tort, S.A. Printers, Lagos, p.123
131
(1963) 27 Cal. Report 697

80
responsibility towards any member of the consuming public who may be injured by it, that the

public has the right to expect and does expect in the case of products which it needs and for which

it is forced to rely upon the seller, the reputable sellers will stand behind their goods, that the

burden of accidental injuries caused by products intended for consumption be placed upon those

who market them, and be treated as a cost of consumption against which liability insurance can

be obtained; and that the consumer of such product is entitled to the maximum protection against

injury at the hands of someone and the proper persons to afford it are those who market the

products.

The reason for the consumer protection provision above is that the manufacturer or distributor, by

his skill and means, is in a better position to insure against possible risks. In addition, by putting

his product on the market, the manufacturer or distributor impliedly guarantees the quality of such

products. He should therefore, be held liable for any harm that may arise there from.132

The same applies to manufacturers and distributors of sachet water.

4.7 Protection under Criminal Provisions of NAFDAC and CPC Acts

Under Section 25 of NAFDAC Act133, any person who contravenes the provisions of any

regulations made under this Act is guilty of an offence and liable on conviction to the penalties

specified in the regulations. Where no penalty has been specified, the person shall be liable to a

fine of N50, 000.00 or imprisonment for a term of one year.

Regulation 8, NAFDAC Bottled Water Registration Regulations provides that, if any person fails

to comply with the provisions of these regulations, the Agency may prohibit that person from

carrying on the importation, exportation, manufacture, distribution, sale or use of the bottled water

either absolutely or for such a period of time as the Agency may declare, in addition to the
132
Monye, F., [Link]., p. 69
133
Cap N 1, LFN 2004

81
payment of a fine of N50, 000.00.

Regulation 14, NAFDAC Bottled Water (Advertisement) Regulations provides that, if any person

fails to comply with the provisions of these regulations, the Agency may prohibit that person from

carrying on the importation, exportation, manufacture, distribution, sale or use of the bottled water

either absolutely or for such a period of time as the Agency may declare, in addition to the

payment of a fine of N5, 000.00.

Regulation 16, NAFDAC Bottled Water (Labelling) Regulations provides that, if any person fails

to comply with the provisions of these regulations, the Agency may prohibit that person from

carrying on the importation, exportation, manufacture, distribution, sale or use of the bottled water

either absolutely or for such a period of time as the Agency may declare, in addition to the

payment of a fine of N50,000.00.

Under section 9 of the Consumer Protection Council Act 134 it is provided that it shall be the duty

of the manufacturer or distributor of a product, on becoming aware after such a product has been

placed on the market, of any unforeseen hazard arising from the use of such product to notify

immediately, the general public of such risk or danger and cause to be withdrawn from the market

such product. Any person who violates this provision is guilty of an offence and liable on

conviction to N50,000 fine or imprisonment of five years or both such fine and imprisonment.

Under section 11 of the Act, any person who issue or aids in issuing any wrong advertisement

about a consumer item, is guilty of an offence and liable on conviction to a fine of N50,000 or to

imprisonment of five years or both such fine and imprisonment

Also, under section 12 of the Act, any person who, in contravention of any enactment whatsoever

for the protection of the consumer-

(a) sells or offers for sale any unsafe or hazardous goods, or

134
Cap C25 (LFN) 2004

82
(b) provides any service or proffers any information or advertisement thereby causing injury or

loss to a consumer is guilty of an offence under the Act and liable on conviction to N50,000 fine

or both such fine and imprisonment.

Section 13(1) of the CPC Act135 gives the court the discretion to make a compensation order in

favour of an injured consumer, in addition to the conviction of the offender in deserving cases.

It should be noted that only the CPC Act makes provision for compensation of a victim. This

gives it a superior remedial stance over NAFDAC and SON whose legislation do not provide

for compensation order in addition to the conviction of an offender.

The view of the writer is that the fines appropriated for various contraventions of the above

criminal provisions are too meager to deter infractions by defaulters.

4.8 Due Care and Prudence of the Consumer

There is need to mention here, an arm of contributory negligence regarding anticipating danger. A

reasonable claimant (consumer) must not generally expect that others will always observe due

care in their conduct, as simply put by Lord Du Parcq in Grant vs Sun Shipping Co.136: ―A

prudent man will guard against the possible negligence of others, when experience shows such

negligence to be common.‖ Normally, a claimant (consumer) should, for his own protection, keep

his eyes open and take proper precautions to guard against the occurrence of contamination or

harm. However, it has been held137 that where the claimant has been thrown off his guard by the

conduct of the manufacturer (as by labeling on sachet water), and reasonably induced to believe

that he may proceed with safety (by the assurances of NAFDAC that the sachet water is regulated

by it as shown by its authentication number), a lesser degree of care and circumspection may be

135
Ibid
136
(1948) A.C. 549 at 567.
137
Pressley vs Burnett (1914) S. C. 874.

83
required of him.

4.9 The Burden of Proof of Negligence on an Injured Consumer of Contaminated Sachet

Water

It is the view of the writer that, in order to consider the viability or otherwise of an injured

consumer seeking redress against a manufacturer or distributor or retailer or any other defendant

under case law, it is pertinent to note that in the law of tort, i.e. negligence, the burden of proof

is quite enormous on the plaintiff. In addition to the requirement that the plaintiff must prove

fault on the part of the manufacturer, the third ingredient of liability under a duty of care situation

is explicit proof of harm or injury. Thus, in cases of injury from the consumption of contaminated

sachet water, the indicator of the health hazard in the form of sickness or malignancy is

cumulative and usually long term. This creates a problem of proving a direct, distinguishable

connection between the contaminated water and the ailment in question (injury), except the

ailment is widespread amongst the consumers of the same brand of sachet water at the same time

and in the same area in the form of an epidemic in which case, liability may be inferred from

prevailing circumstances.

Another challenge with the burden of proof of negligence against the manufacturer or distributor

is the disequilibrium in wherewithal and influence between the rich manufacturers (usually

limited liability Companies) and an indigent consumer of sachet water who has an uphill task of

litigating against an organized corporate colossus.

4.10 Conclusion

84
From the foregoing examination, liability based the law of contract and the law of negligence

provides inadequate protection to the consumer. The consumer‘s recovery under the Sale of Good

Act138 is limited to only a contractual relationship with the seller 139. The primary liability for

defective products is on the seller, who is often a mere retailer while the actual manufacturer

escapes liability on the ground that there is no privity of contract between him and the buyer.

Also, the law of negligence places an undue burden of proof on the consumer which usually

makes a guilty manufacturer to escape liability and leave the consumer without remedy. Again,

the fines appropriated for the various contraventions of the criminal provisions of both the

NAFDAC Act and the CPC Act are inadequate to deter malpractice. Therefore, the application of

the principle of Res ipsa loquitur and the strict liability rule by the courts, in addition to amended

criminal provisions of the relevant statutes with significantly increased fines, will go a long way in

providing adequate protection for consumers in Nigeria.

138
1893
139
Section 4 of the Kaduna State Sale of Goods Edit, 1990

85
 CHAPTER FIVE

SUMMARY, CONCLUSION AND RECOMMENDATIONS

5.1 Summary

This research has been able to assess the drinking water safety policies of Nigeria with emphasis

on the subject of sachet water. The dissertation set the tone for discussion with such preliminary

issues as background to the study, statement of problem, objectives of the study, research

questions, significance of the study, literature review, research methodology, scope of the study,

and synopsis of the study. Further, the work focused on standards of safe drinking water.

Drinking water being a resource of global significance and interest, its regulation in Nigeria draws

from international standards and quality parameters set by some developed countries like the

United States of America, Canada and Australia, as well as a global institution like the World

Health Organization (WHO). Also discussed are evidences of sachet water contamination in

Nigeria, and the effect of contaminated sachet water on the health of the consumers.

Also, it dealt with the regulatory framework on consumer protection on packaged water in Nigeria

by highlighting the statutory mandates of the National Agency for Food and Drug Administration

and Control (NAFDAC), the Standards Organization of Nigeria (SON), and the Consumer

Protection Council of Nigeria (CPC). It concluded with an analysis of the impediments to the

effective enforcement and implementation of the statutory mandates of the regulatory institutions.

In addition, the research considered whether there is protection in the tort of negligence, in the law

of contract (Sale of Goods) or in the criminal provisions of the NAFDAC and CPC Acts. Issues as

to burden of proof, conditions on how it can be discharged and the complexities of duty of care

86
situation were analyzed, to the end that given the current conservative attitude of the courts as

far as the burden of proof of negligence is concerned, the consumer/plaintiff will always go

without remedy if the courts do not allow room for flexibility by admitting the doctrines of Res

ipsa loquitur and strict liability in cases arising from edible product defect generally, and

contaminated sachet water in particular.

5.2 Conclusion

In view of the far reaching legal impetus given to NAFDAC by Section 5 (a) – (t) of the

NAFDAC Act140, it is clear that current registration and certification for operators of sachet water

business in Nigeria as well as its monitoring strategies are not wholly effective relative to the

extent of its powers. It is obvious that the increase in the business of sachet water production and

distribution has overwhelmed NAFDAC in terms of operational coverage, which explains why

there are so many illegal production plants and so many brands of unregistered, non-certificated

and unregulated sachet water in circulation in the country.

One of the major contamination risk factors for sachet water is the fragile nature of the sachet

containers which are used for packaging the liquid content. That is why the contamination usually

occurs in transit between the manufacturing plant and the point of sale. Also, illegal producers in a

bid to evade liability do not provide all the relevant information that is required by NAFDAC

Regulations on the bags.

There is pervasive illiteracy among the citizenry and also lack of adequate awareness of the

existence of the regulatory institutions and their statutory functions especially as pertains

consumers‘ complaints and redress avenues. This constitutes a huge clog to the wheel of a robust

consumer protection regime in the country.

140
Cap. N1 (LFN) 2004.

87
The provision of Section 3 (b) of the CPC Act 141, that the Council shall have power to compel a

manufacturer to certify that all safety standards are met in their products, falls short of total

protection for the consumer in the sense that it leaves the consumer without legal remedy where

for instance, the product still proves harmful to him even after the manufacturer has satisfied this

condition. The implication here is that it reinforces the basis for the courts to rely on the evidence

of fool proof production process by the defendant to deny an injured plaintiff his claim. Also, the

prescribed penalties in respect of infraction of the criminal provisions of the CPC are not stiff

enough to either deter malpractice or adequately punish for it.

In seeking civil redress against the manufacturer or distributor of contaminated sachet water, the

consumption of which injures or harms a consumer, the consumer is confronted with the uphill

task of successfully proving negligence. In the context of the subject of sachet/packaged water, it

seems as difficult to establish the breach of duty of care as it is painful to avoid the issue of

holding manufacturers and distributors liable for producing and distributing unwholesome sachet

water.

5.3 Recommendations

1. NAFDAC should resort to Section 5 (f), (r) and (t) of the NAFDAC Act which empowers it to

‘undertake the registration of food, drugs, medical devices, bottled water and chemicals’; to

liaise with relevant establishments within and outside Nigeria in pursuance of its

functions‖ and also to ―carry out such activities as are necessary or expedient for the

performance of its functions under the Act‖ respectively, in order to restrict the registration of operators to

only qualified, capable and verifiable applicants. This reform can be commenced by issuing notices for all

operators to reapply for ‘Provisional Operational License’. In the process, a proper audit and

141
Cap. C 25 (LFN) 2004.

88
inspection can be conducted nationwide while illegal operators will be detected and phased out by

NAFDAC working with the security agencies.

For the effective take off of the proposed scheme, NAFDAC should modify the licensing scheme

by delineating the entire country along operationally convenient and realistic geographic margins.

This will enable it to grant license only to competent operators who have proven capacity and

have satisfied the strictest safety standards of NAFDAC to cover each geographical sector. All the

sectors should be allotted computerized codes for ease of monitoring.

In order not to infringe on the freedom of trade of other sachet water manufacturing operators

who may not have the capacity to totally cover any given NAFDAC operational sector, NAFDAC

should allow the manufacturing majors (licensees) to grant franchise rights to thoroughly screened

nominees for them to operate at smaller intra sector scales under the franchise of the major

manufacturers and distributors under the name of the franchisor.

NAFDAC should collaborate with the National Agency for Space Research and Development

(NASRDA) Abuja with the aim of utilizing the Global Information System (GIS) coverage of the

agency to monitor the performance of this initiative. This can be achieved by logging in the

delineated sector map coordinates as well as the digitized particulars of sachet water production

plants and major distributors to the NSDRDA satellite program for effective monitoring and

supervision.

2. NAFDAC should commence centralization of sachet production under its control and

supervision. The sachets would bear different security identification features representing the

different geographical sectors; sector codes; the embossed NAFDAC Certification Seals/Number;

Trademarks of the licensee and the standard labeling for sachet water-containing all the nutritional

facts, purification method, volume of water, expiry/best before date, address and contact details of

the packaging outfit.

89
Under the proposed scheme, only NAFDAC should accredit and closely monitor the production of

these sachets under a regulated out sourcing venture or Public Private Partnership (PPP). The

advantages of this proposition are infinite. Beyond giving NAFDAC a vice-grip on the

‘production processes’ and ‘distributive processes’ of sachet water, it will also aid in tracking

malpractice and corruption as well as identifying the manufacturer, distributor or retailer for the

purpose of investigation, prosecution and liability. It also assists in recalling any batch of

particular sachet water that is discovered to be unwholesome and unfit for consumption.

The entire distributive process will easily be monitored because a standard term of the Provisional

Operational License to the manufacturer would be that he must conduct frequent (duration as may

be prescribed) safety and environmental inspection of the storage facilities of the distributors and

retailers with whom he deals, as well as undertake to be vicariously liable for any error in the

satisfaction of the Standard Operational Procedures (SOPs) he hands to them in the supply

contract, should any contamination occur and is exposed either by NAFDAC random

inspection/test or injury to a consumer.

3. NAFDAC should ensure that the labeling and use instructions on packaged water (especially

sachet water) must in addition to being comprehensive, be written with translation into the local

language or dialect of the area of coverage. The CPC needs to increase its public enlightenment

function in order to bring to the notice of Nigerians the awareness of its existence, its State Committees, its

organs, powers and most importantly, the rights of the consumers.

i. It is recommended that Section 3 (b) of CPC should be further armored by amendment, with a

liability note to the manufacturer to cover the consequence of the likely failure of such

certification, and also, the prescribed fine in Section 9 of the Act in respect of a manufacturer

or distributor who becomes aware of any unforeseen hazard in its product and fails to inform

the public in the sum of fifty thousand naira (N50, 000.00), is not high enough to punish or

90
 deter defaulters. It should be reviewed upwards by amendment to one million naira (N1,

000,000.00).

ii. It is recommended that Nigerian courts should adopt a strict liability approach to cases of

product liability and food poisoning (i.e. contaminated sachet water) as it is done in other

jurisdictions142.

Res ipsa loquitur should be accorded a higher pride of place by the Nigerian courts as its

applicability in product liability cases of this sort will significantly attenuate the burden of proof

of negligence which the law places on the plaintiff (consumer of contaminated sachet water).

142
Greenman vs Yuba Power Production Inc. (Supra)

91
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