Chapter Sixteen

CONSUMER PROTECTION
A consumer is someone who buys goods or services for personal, family, or household use. It
excludes one who buys goods from another consumer, or for business purpose. The regime of
consumerism and redress system for the consumer are characterised by a number of factors,
notably; problem of proof of the dangerous state of the unwholesome product, high cost of
litigation, uncertainties in litigation processes occasioned by legal technicalities,
predominance of illiteracy with a corresponding level of ignorance and poverty amongst
majority of consumers.
The foregoing scenario presents major challenges including consumerism and consumer
protection in certain areas of standardisation, product liability, merchandising marks, trade
marks and passing off. In this chapter, the usefulness and adequacy of applicable consumer
protection laws in the circumstances of prevailing socio-economic climate in Nigeria are
examined. An assessment is made of the role of courts through judicial pronouncements on
the overall regime of consumer protection, with particular reference to manufacturers'
liability for defective products.
Statutory provisions exist for the protection of consumers in Nigeria; but they are hardly able
to offer the expected protection to consumers. The penal sanctions are mild, obsolete, and
have practically outlived their usefulness in terms of achieving deterrence. Also enforcement
machinery is weak and easy for most offenders to circumvent. The foregoing shortcomings
are compounded by lack of awareness on the part of consumers, inadequate publicity and
public enlightenment by appropriate regulatory agencies of consumer rights. The
lackadaisical attitude of those responsible for enforcement of applicable laws further limits
the efficacy of consumer protection.
Consumer Protection Council
The Consumer Protection Council was established by the Consumer Protection Council
Decree,¹ to tackle in the main, sharp practices in the nation's consumer market fostered by
avaricious tendencies of most manufacturers, and other actors in the chain of distribution.
The Council entertains complaints from consumer victims of shoddy and hazardous products
and makes representation on their behalf against manufacturers, traders, distributors or
persons involved in the production and distribution of such harmful goods. Other functions of
the Council include:
(i) the provision of speedy redress to consumer complaints through negotiations, mediation
and conciliation;
(ii) seeking ways and means of removing or eliminating from the market hazardous products
and causing offenders to replace them;
(iii) encouragement of the establishment of voluntary consumer groups or associations for
consumers' well being;
(iv) making offending companies, trade association or individuals to protect, compensate,
provide relief and safeguards to injured consumers;
(v) issuance of guidelines to manufacturers, importers, dealers and wholesalers in line with
the intent and purposes of the Decree;
¹ No.66 of 1992, Now Consumer Protection Council Act.
450 / 451
Product Liability
Product liability 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, or injury to the ultimate consumer. It protects the consumer from
unfair trade practices by manufacturers and other key players in the chain of distribution who
put in the overt market potentially dangerous and shoddy consumer products, unwholesome
and adulterated food, fake and substandard drugs. The tort is often committed in the quest for
pecuniary gains without regard for consumer health and safety. The scenario which obtains in
the Nigerian market was aptly summed up in the evergreen dictum by Aniagolu JSC in
Constance Ngonadi v. Nigerian Bottling Co. Ltd² as follows:
"... nothing appears to be elementary in this country where it is often the unhappy lot of
consumers to be inflicted with shoddy and unmerchantable goods by some pretentious
manufacturers, entrepreneurs, middlemen and unprincipled traders whose avowed interest
seems only to be to maximize their profits at a discounted and shattered..."

In this case, the plaintiff/respondent operated a retail outlet for the sale of beer and soft
drinks. The defendant/appellant's sales representative introduced a kerosene refrigerator
called Evercold to her, and recommended that it was suitable for her trade. The plaintiff
relied on the skill and judgment of the defendant's sales personnel. The refrigerator was
manufactured by a foreign firm which appointed the defendant company as sole distributor of
the product in Nigeria. When it was put to use by the plaintiff, it exploded causing extensive
injury to the plaintiff's hair, skin and breasts to the extent that she was unable to breast-feed
her baby. The plaintiff brought an action in negligence against the defendant. The action
succeeded.
The locus classicus on the tort of product liability is Donoghue v. Stevenson.³ In this case,
Mrs. Donoghue (Nee M'Alister), went to a cafe in Paisley with a friend who treated her to a
bottle of Stevenson's ginger-beer which was in a dark opaque bottle. Having no reasons to
suspect any impurities in the liquid content, she poured some into a tumbler. In the course of
drinking she discovered that the ginger-beer contained decomposed remains of a snail which
floated out of the bottle during the refilling of the tumbler. As a result of the nauseating result
of the...
² Constance Ngonadi v. Nig. Bottling [Link] [1985] 1 NWLR (Pt.4) 732 where the
plaintiff/appellant sustained severe injury from a brand new kerosene refrigerator which was
sold to her by the defendant/respondent
³ (1932) A.C 562
452 / 453

merits. He summed this up in Cafaro Plc v. Dickman'as follows:

Proximity is, no doubt, a convenient expression so long as it is realised that it is no more than
a label which embraces not a definable concept but merely a description of circumstance
from which, pragmatically the courts conclude that a duty of care exists.
In other jurisdictions, strict liability is enforced against manufacturers who put defective
products in the overt market for consumers' use. In Greenman v. Yuba Power Production
Inc,⁸ a man was injured while using an all-purpose power tool given to him as present by his
wife. The injured consumer brought an action. The Supreme Court of California held the
manufacturer liable and stated in its judgment:
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 put such product on the market
rather than by the injured persons who are powerless to protect themselves.

⁷ (1990) 2 A.C 605 at 608

⁸ (1963) 27 [Link] 697
456

fitness for purpose for consumer goods. Section 14 provides:-

subject to the provision of this Act and of any statute in that behalf, there is no implied
warranty or condition as to the quality or fitness for any particular purpose of goods supplied
under a contract of sale, except there is an implied warranty or condition as to quality or
fitness for particular purpose which may be annexed by the usage of trade...
Remedies in the tort of negligence against manufacturers
imply that the manufacturer has breached the duty of care by reason of which the consumer
has suffered injury. This is usually difficult for the victim consumer because he can hardly
prove that the manufacturer was negligent in the course of manufacture, since he did not
witness how the good was manufactured.
Merchantability and Fitness for Purpose
The term merchantability lacks any precise definition in our statute books. This situation
complicates the consumer's difficulty in the quest to avail himself of a remedy, in the
circumstance of a breach of his right. This inadequacy has been duly acknowledged by
jurists. A learned author has described this deficiency in the following words;
...the absence of a definition of the term merchantability and the lack of agreement as to the
period in which goods must remain merchantable under the applicable statutes are very
unfortunate.¹³

¹³ [Link],in his article,Merchantability,Consumer protection and Sale of Goods Edict

1987
458

Strict liability is advocated against manufacturers of defective⁹ products. In Nigeria, products

include not only food and drinks, but any item or article made for normal domestic use,
underwear, hair dye, motor cars, houses and installations in houses. The greater the potential
danger inherent in a product, the more stringent the need to protect users against those
dangers are. See: Dominion Natural Gas Co. Ltd v. Collins and Perkins.¹⁰ In Solu v. Total
Nig. Ltd,¹¹ the plaintiff successfully maintained an action against the defendant company, for
injuries sustained by members of his family following the explosion of a refilled gas cylinder
which he had bought for cooking in the home.
An injured consumer could seek a remedy in tort or contract. If the action is founded on tort,
the cause of action would be predicated on negligence. If on contract, the cause of action
would be on breach of implied warranty as to fitness for purpose. It is easier to prove a case
on the basis of the latter since a product that occasions injury to a consumer in the course of
use is obviously not fit for purpose, and renders the manufacturer liable for breach of implied
warranty. In Constance Ngonadi v. Nigerian Bottling Company Ltd,¹² the plaintiff relied on
section 14 of the Sale of Goods Act, which stipulates implied warranty of...
There are three basic types of defects, namely; (1) manufacturing defect: where the product is
well designed, but the way in which it was made makes it unsafe; (2) design defect; where the
design or packaging line of the product is unsafe, such that the entire product line is
reasonably dangerous; (3) insufficient instructions or warnings, where the manufacturer
designs a product that is perfectly safe and has no manufacturing defects, but fails to include
proper warnings or instructions for safe operation.
¹⁰ (1909) A.C 640
¹¹ (1980) 1 C.L.R.,Q
¹²
457
Law of Torts
Smith L.J. further elaborated on the principle of proximity or nearness, in Le Lievre v.
Gould,⁵ in the following way:-
The decision in Heaven v. Pender was founded upon the principle that a duty to take care did
arise when the person or property of one was in such proximity to the person or property of
another that, if due care was not taken, damages might be done by the one to the other.

In a well considered judgment, Lord Atkin concluded that the overall effect of the above legal
exposition irresistibly pointed to the fact that there need not be a direct contractual
relationship, or physical proximity between a manufacturer and the ultimate consumer who
suffers harm in order to make the former liable to the latter. He opined⁶ thus:-
I think that this sufficiently states the truth if proximity be not confined to mere physical
proximity, but be used, as I think it was intended, to extend to such close and direct relations
that the act complained of directly affects a person whom the person alleged to be bound to
take care would know would be no directly affected by his careless act.

Lord Oliver however disagreed with the concept of proximity, probably or most presumably
on account of the fact that it appears patently too wide, if not vague, such that it becomes
unsafe to pass liability unto a manufacturer to its detriment. He therefore strongly advocated
that every case should be decided on its own peculiar facts and
⁵ (1893) 1 Q.B 491
⁶ At page 580
455
Law of Torts
where they were diagnosed of food poisoning. Two opened, and one unopened bottles of the
Harp beer were sent for laboratory analysis, and were found to be poisonous. Despite this
evidence at the trial, the court dismissed plaintiff's claim. In his judgment, the learned trial
judge, Oshodi J, held as follows;
(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 cases of food poisoning resulting from
unwholesomeness of packaged food and drinks.
It was obvious that the other guests who did not consume Harp beer along with food did not
suffer stomach disorder. Yet, the court held that the plaintiff could have suffered health
discomfort from the food consumed at the occasion. Nigerian courts have hardly afforded the
desired protection to consumers in their decision making process.
In Boardman v Guinness (Nig) Ltd,²⁷ 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
²⁷ [1980] NCLR 109
465

Law of Torts
In Grant v. Australian Knitting Mills Ltd,¹⁴ Lord Wright remarked;
Whatever else merchantable may mean, it does mean that the article sold, if only meant for
one particular use in ordinary course, is fit for that use.

The definition offered by Lord Wright is of no juristic assistance in the sense that it ties
merchantability to fitness for purpose. A product might be merchantable and yet remain unfit
for the purpose for which it is meant. Merchantability only bears its relevance to saleability.
In Bristol Tramways Co. Ltd v. Fiat Motors Ltd,¹⁵ Farwell L.J held:
The phrase merchantability, in my opinion is used as meaning that the article is of such
quality and in such condition that a reasonable man acting reasonably would after a full
examination accept it under the circumstances of the case in performance of his offer to buy
that article whether he buys it for his own use, or to sell again.

In a similar exposition, Salmon J, in Taylor v. Combined Buyers Ltd,¹⁶ described his

perception of the term in the manner following:-
"I think that goods sold by description are merchantable in the legal sense when they are of
such quality, as to be saleable under that description to a buyer, who has full and
¹¹ (1936) A.C.85 at 99
¹⁵ (1990) 2 K.B 831 at 841
¹⁶ (1924) NZLR 627
459

Consumer Protection
accurate knowledge of that quality and who is buying for the ordinary and normal purposes
for which goods are bought under that description in the market.
In Andrew v. Hopkins,¹⁷ the plaintiff bought a car from the Sales Manager of a dealer in
second-hand cars who assured him that the car was good, and added - "You will have no
trouble with it. I would stake my life on it". A week after the purchase, the plaintiff was
injured in a collision owing to defect in the car-failure of the drag-link joint of the steering-
which was not safe or fit for use on the highway. The plaintiff succeeded in an action against
the defendant for putting a defective car which was not fit for purpose for sale to the plaintiff.
In Bristol Tramways Carriage Co. Ltd v. Fiat Motors Ltd,¹⁸ the defendant supplied buses to
plaintiff who had specifically ordered for vehicles that would be suitable for heavy passenger
work in Bristol, a hilly city. The buses turned out to be unsuitable for this purpose. The seller
was held liable. In Asford Shire Council v. Dependable Motors Limited,¹⁹ the defendant was
held liable for selling to plaintiff tractors not fit for road construction work. In Grant v.
Australian Knitting Mills,²⁰ the plaintiff bought some underpants which were manufactured
by the defendant. The plaintiff wore the pants and contacted dermatitis due to the fact that it
contained excess sulphite. At the trial, the defendant established that it had manufactured
4,737,600 pairs of underpants and put same in the market yet no one contained excess
sulphite.
¹⁷ (1957) 1 QB 229
¹⁸ (1990) 2 K. B 831
¹⁹ (1961) A.C 336
²⁰ (supra)
460

Consumer Protection
out. The court discountenanced the laboratory report which revealed that the beer contained
certain bacteria, and held that the plaintiff failed to show that the defendant was guilty of
negligence. This was inspite of the fact that the case was clearly on all fours with that of
Donoghue v. Stevenson.²⁸
The contemporary position of the law is that there must be a direct link between the
food/drink ingested and the subsequent ailment of the complainant. In NBC v. Okwejiminor,²⁹
the Court of Appeal, Benin division held that the onus was on the cross-appellant/ respondent
to discharge the burden of proving the assertion that the fanta he drank caused his illness. In
this case, the respondent bought a crate of Coca-Cola mineral from the appellant. While
drinking a bottle of Fanta, he felt some sediment down his throat and stopped drinking. After
a close look at the bottle, he discovered that it contained another bottle in the same crate
contained the same foreign bodies. He felt uncomfortable and went to sleep without food.
In the early hours of the following day, he developed stomach pain and was rushed to
hospital where he was confirmed to be suffering from poisoning which could have been
caused by the Fanta he drank. The plaintiff was awarded the sum of ₦950,000.00k. It was
however reversed on appeal on two grounds namely that the judgment was read by another
judge, being that the judge who heard the case and wrote the judgment was ill. The second
reason was that neither the medical evidence nor laboratory tests tendered at the trial was able
to link
²⁸ (supra)
²⁹ [1998] 8 NWLR (Pt.561) 295
466

Consumer Protection
bright lights of the drinking parlour were switched on, the stout drink was found to contain
particles of roots, leaves, and back of tree.
The plaintiff relied on the principle of Res Ipsa Loquitur. The trial judge 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. The trial judge, Obi-
Okoye.J summed up his judgment in favour of the defendant manufacturer as follows;
In conclusion, let me say this, Donoghue v. 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 realises 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
presumption 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 all.

In Nathaniel Ebelamu v Guinness Nig. Ltd,²⁶ the plaintiff on the occasion of his 10th
anniversary of his wedding organised a party and treated his guests to food and drinks. In the
process, some of the invitees who drank Harp beer, a product of the defendant developed
stomach pains, vomiting, and were rushed to a nearby hospital
²⁶ [1983] 1 FNLR 42
464

Consumer Protection
such that in the reasonable contemplation of the former, carelessness on his part may be
likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly,
if the first question is answered affirmatively, it is necessary to consider whether there are
any consideration which ought to negative, or to reduce or limit the scope of the duty or the
class of person to whom it is owed or the damages to which a breach of it may give rise
Similarly, in Junior Books Ltd. v. Veitchi Co. Ltd,²² the plaintiff undertook to build a factory.
The plaintiff's architects nominated the defendants as the subcontractors (The defendants
being specialists in flooring) to lay the floor with magnesium ox chloride. It was the
defendant's duty to mix and lay the flooring to specification such that danger of physical
damage to persons or their property. Unfortunately, the defendants were in breach of this
duty. Consequently, the flooring began to develop cracks, which necessitated a replacement
of it.
This breach resulted in other extensive consequential losses such as the removal of heavy
duty machinery from the factory to enable work to be done, loss of profits due to disturbance
of business, wages of employees thrown away, overheads thrown away, investigation of
necessary treatment of flooring etc. The defendant inter alia in its defence contended that
there was no contractual relationship between the factory
²² (1983) A.C 520
462

Law of Torts
In Osemobor v. Niger Biscuits Co. Ltd and Nassars & Sons,³⁴ the court held that the
consumer of biscuit would reasonably not be expected to carry out an intermediate
examination of the product before consuming it. In this case, the plaintiff in the course of
eating the biscuit manufactured by 1st defendant, and sold by 2nd defendant in its
supermarket found a decayed tooth in it, and in consequence became hysterical and
physically ill. In his judgment, Kassim J. found the defendants liable and stated thus;-
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 of putting up of the product will result in an injury to the consumer's life or
property owes a duty to the consumer to take that reasonable care³⁵

In Barnett v. H & J Packer & Co,³⁶ the plaintiff, a retail trader bought a box of sweets
manufactured by the defendant from a distributor. While displaying the sweets on a tray, a
piece of wire in one of the sweets injured his finger. The court held the sweet manufacturers
liable in negligence. In Grant v. Australian Knitting Mills Ltd,³⁷ the claimant suffered
dermatitis from the use of wooly underpants manufactured by the defendant due to the
presence of excess sulphite. It was held that the plaintiff
³⁴ (1973) N.C.L.R.382
³⁵ at page 386
³⁶ (1940) 3 ALL E.R 575
³⁷ (supra)
469

Consumer Protection
What is most relevant 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.
The learned Justice justified this legal stand point by emphasizing that the contrary would
open a floodgate of litigation based on spurious and untrue assertions against manufacturers.
This would have the reverse effect of defeating the very mischief sought to be cured by
placing a burden of care on manufacturers of consumables.
Thus, it can be safely argued that the principle enunciated in Donoghue v Stevenson³³ is not
applicable to food poisoning cases in Nigeria.
Opportunity of Intermediate Examination.
The factor of opportunity of intermediate examination of a product is predicated on the fact
that where the defect is latent and causes injury to the consumer, the manufacturer is liable.
On the other hand, where the defect is patent, the consumer is presumed to have had the
opportunity of an intermediate examination of the product. Consequently, a product
presumably ceases to be dangerous to the health and safety of the consumer and becomes
merely defective where the defect is patent or discovered before use.
³³ supra
468
Consumer Protection
was not expected to carry out intermediate examination of the product or wash the underpants
before putting them to use.
In Clay v. Crump & Sons Ltd,³⁸ demolition contractors were demolishing a building to enable
builders construct a new one under the supervision of the defendant architect. On the
defendant's advice, a wall was left standing on the site. It subsequently fell on the plaintiff,
the builder's employee. The defendant pleaded that the demolition/building contractors and
their employee had the opportunity of intermediate examination. It was held that the rule of
intermediate examination did not apply. The defendant was held liable.
Recently, a number of consumers of adulterated DPK (kerosene) across the country suffered
various degrees of burns and incapacitation arising from the purchase and use of adulterated
kerosene in their stoves and hurricane lamps. The Consumer Protection Council has
apparently made no position statement on the issue, let alone assist injured consumers to avail
them of appropriate redress.
The only known reported case so far in this respect, is Nzekwe v NNPC and Unipetrol Nig
Ltd,³⁹ which was prosecuted without assistance from any regulatory body. In this case, the
wife of plaintiff who was eight months pregnant died from the injuries she sustained when
adulterated kerosene mixed with petrol (manufactured by 1^{\text{st}} defendant and
marketed by 2^{\text{nd}} defendant exploded after being poured into a lamp and lit. The
plaintiff, on behalf of other dependants of his deceased wife instituted an action against the
defendants and claimed the sum of ₦1million as damages for negligence of the defendants, in
³⁸ (1964) 1 Q.B 533
³⁹ [1990] 5 NWLR (Pt.153) 691
470

Consumer Protection
be any offender who has been prosecuted for this offence by law enforcement agents.
The rationale behind electrical voltage specification is to allow electricity consumers enjoy a
reasonably stable electricity supply in their homes and offices. Power supply in Nigeria is
epileptic and characterised by incessant power outages and voltage fluctuations, culminating
in extensive damage to consumers' electrical appliances and lighting system. The Weights
and Measures Act⁴² takes no cognisance of agricultural products. Substandard and adulterated
fertilizers are packaged as high quality products, and poor quality seedlings sold as exotic
breed by firms and middlemen in the agricultural sector to unsuspecting peasant and most
times, illiterate farmers.
Food and Drug
The Food and Drug Administration and Control Department of the Federal Ministry of
Health and Social Services used to be the regulatory agency charged with the responsibility
of ensuring standardisation in the sale and distribution of food and drug;⁴³ it was transformed
into a body corporate now known as the National Agency for Food and Drug Administration
and Control (NAFDAC)⁴⁴. The body is responsible for the regulation and control of the
importation, exportation, manufacture, advertisement, distribution, sale, and use of food,
drugs, cosmetics, medical devices, bottled water and chemicals. The organisation has made
remarkable impact in the drastic reduction of the influx of fake drugs, and
⁴² Cap W.3, LFN, 2004
⁴³ The Department however ceased to exist by the promulgation of Decree No of 1993, which
established in its place the National Agency for Food and Drug Control Administration and
Control(NAFDAC) on 1^{\text{st}} October 1992
⁴⁴ Section 1 (a) & (b)
472

Law of Torts
the sale of the adulterated kerosene to the members of the public including the wife of the
plaintiff. The court below found the defendants liable in negligence, and awarded the sum of
₦35,000 to the plaintiff and other dependants of the deceased. It is observed that the
judgment sum here is too meagre for such a painful and pathetic loss.
Standardisation
Standardisation relates to the ascertainment of items in terms of length, area, volume,
capacity, weight or number. The word "item" refers to consumer products, including food,
drinks, oil (edible and lubricating), premium motor spirit (petrol), and repackaged goods. The
Weights and Measures Act⁴⁰ is enacted primarily to ensure that consumer goods conform
with set standards. It stipulates the unit, means and modes of weighing and measuring items
used in trade with regard to weight, length, capacity, volume, area, with a view to ensuring
compliance with Nigerian trade standards⁴¹. It is an offence to sell, offer, or expose to
consumers, any loaf of bread that is less than 225 grammes in its net weight. Such offender is
liable to a fine of ₦500, or imprisonment for one year, in the case of an individual, and
₦5,000.00, in the case of a corporate body. To the best of the author's knowledge, there is yet
to
⁴⁰ Cap.467,LFN,1990
⁴¹ The various types of measurements are expressed in metric units as follows: length to be in
millimetre, centimetre, decimetre, metre or kilometre; area to be in square millimetre, square
centimetre, square metre or hectare; capacity to be in litre or hectolitre, volume to be in cubic
millimetre, cubic centimetre, cubic metre; weight to be in gramme, kilogramme or tonne;
electricity to be in volt and electrical power in watt; text line to be in ...
471

Law of Torts
to the toilet. While he was in pains, he observed that other people on the same table with him
were also going into the toilet and vomiting. They were eventually taken to a nearby hospital
and treated for food poisoning. Subsequently, the appellant sued the respondent, claiming
damages for negligence. The appellant called an expert witness who testified that there were
sediments in two opened bottles of Harp Beer and also in a third unopened bottle recovered
from the party. The report of the expert showed that the sediment in the beer contained algae
and therefore was unfit for human consumption.
The analysis was carried out on the unopened beer bottle. The respondent contended that its
products are free from contamination but admitted that bad storage can produce
sedimentation in the product, such sedimentation is however protein breakdown which does
not constitute poison. The trial Judge dismissed the claim against the respondent on the
ground that the appellant never complained that the content of the unopened, beer caused him
damage. The appellant appealed arguing that the onus placed on the respondent to rebut the
presumption of negligence has not been discharged.
Held:
(1) The principle of Res Ipsa Loquitur has no place in a case of this nature. Negligence must
be proved and is not to be presumed. One indispensable requirement of application of the
principle is that the defendant must be wholly and exclusively in charge of the res which
causes the damage complained of.
(2) Since the remains of the beer in the bottle which the appellant had drank was not analysed
to establish whether it was the cause of the appellant's illness
477

Consumer Protection
their products. Regulatory agencies must be alive to the responsibility of aggressive public
enlightenment campaign for consumers' benefit. Existing enforcement machinery deserves to
be overhauled.
Proven cases of harmful products should be accorded the magnitude of publicity that is wide
enough to expose mischievous manufacturers' true identity as deterrence against sharp
practices. Distributors, wholesalers, or retailers, howsoever remotely connected to the chain
of distribution, once sued by an injured consumer should always join the manufacturer by
way of third party proceedings. Standardisation facilities and statutory protection should take
cognisance of agricultural produce. Relevant regulatory bodies should be empowered by law
to blacklist and periodically publish in the print and electronic media erring manufacturers. A
pragmatic implementation of the foregoing suggestions would create a level playing field for
manufacturers and consumers, and the latter would be better for it.
FEDERAL COURT OF APPEAL (LAGOS)
[Ademola, Nnaemeka-Agu, Mohammed, J JCA]
NATHANIEL EBELAMU V GUINNESS NIGERIA LTD.
[1983] 1FNLR 42
Facts
The appellant arranged a party in his residence to mark the tenth anniversary of his wedding
for which he bought a carton of Harp beer from Kingsway Stores, Ikeja. At the party the
appellant drank part of the beer and noticed that he started having stomach pain and had to go
476
Law of Torts
Adulterated food into the overt market for consumers' use. The Consumer Protection Council
should in like manner, be empowered by law to seal up premises where unwholesome
products are stored or sold, and prosecute offenders, where necessary.
Liability of Service Providers.
Areas of services where consumers suffer considerably, and which deserve extension of
consumer protection, include:
(i) contract for the supply of services in trade and commerce such as insurance, laundry,
travel agencies, telecommunication;
(ii) contract for the supply of professional services, for example, lawyers, doctors, engineers
etc;
(iii) service by public utilities, like railway, power supply and airways.
In some of these cases, the service providers conceal exemption clauses in tiny prints at the
back of receipts or tickets, such that the consumer is left without meaningful remedy in the
event of loss, damage to article, or personal injury while in transit. Examples include laundry
and travel agencies. The use of exemption clauses by suppliers of these services should be
prohibited, or severely limited.
Standards required of professionals in the performance of their duties are usually specified in
their respective enabling statutes. Section 7 of the Consumer Protection Council Act
empowers the Council or the State Committee to require the executive or officials of a
professional body to investigate complaints of consumers against its members. Standards
required of members by these statutes are usually high.
473

dangerous and causes injury to person or property. But it is not the law that I am liable to him
for the loss he suffers because what is paid money is not ginger-beer but water.
A strict liability approach is advocated. A model consumer protection law that affords a
remedy on the basis of defect in consumer good rather than resultant injury is recommended.
Litigation is expensive in Nigeria in terms of time, financial implication and effort. This
adversely affects consumers' desirability to seek redress when appropriate. An alternative
dispute resolution system or, special consumer protection courts for speedy and
inexpensive dispensation of justice should be in place at the Federal level and established in
all the state capitals. A genuine effort at improving consumer welfare must include a package
of highly subsidised legal aid services.
Manufacturer's liability for unwholesome packaged food, drinks, or drug should be strict.
Proven cases of storage of food or drug item should not constitute a defence to actions
brought against manufacturers. It is assumed that any packaged food, drink, or drug which is
capable of being stored should be produced with enduring preservative constituents to enable
it stand the test of time and long storage.
Penal provisions in applicable statutes are mild, obsolete, and incapable of deterring
prospective offenders. Provisions relating to pecuniary penalties in relevant statutes are
overdue for reform. The defence of development vs risk should be de-emphasised.
Manufacturers should be mandated by law to enlighten distributors and wholesalers on proper
storage system of
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Consumer Protection
In Amadi v Essien⁴⁵, the Court of Appeal held that NEPA was immune from being sued in
respect of any conduct, whether bonafide or malafide, although he condemned the immunity
clause was removed by section 3 of the NEPA (Amendment) Decree No. 28 of 1998. In the
supply of services in trade and commerce, the standard required is lower than that
required in supply of products. The supplier of services in the course of business is
required to carry out his services with reasonable care, and skill in a workman-like manner.
So, at common law, a supplier of services owes a duty of "reasonable care and skill" to
consumers in the performance of his job. In Curtis v Chemical Cleaning & Dyeing Co,⁴⁶ a
cleaner was held liable for staining a wedding gown. These common law rules are now
codified in the UK Supply of Goods and Services Act 1982 in sections 12 - 16. These are are
implied terms and like the Sale of Goods Act, they cannot be excluded or restricted in
consumer transactions. Consumer Protection Legislation for service liabilities should
therefore be enacted.
Conclusion
The regime of product liability ties manufacturer's liability to injury sustained from the use or
consumption of defective products. The foregoing scenario was summarised by Stamp L. J in
Dutton v. Bognor Regis U.D.C⁴⁷ as follows:-
I may be liable to one who purchases in the market a bottle of ginger-beer which is carelessly
manufactured and which is

⁴⁵ [1994] 7 NWLR 91
⁴⁶ (1951) K.B 805
⁴⁷ (1972) 1 ALL E.R 462
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Consumer Protection
the link between the appellant and the beer had not been established. The examination of a
different bottle of the same brand of beer is not enough to establish that a bottle of Harp beer
was the cause of the appellant's illness.
Appeal dismissed
Case Study for Chapter Sixteen
SUPREME COURT OF NIGERIA
[Andrews Otutu Obaseki, (Presided) Anthony Nnaemeka Aniagolu, Muhammadu
Lawal Uwais, Chukwudifu Akunne Oputa, JJSC (Read the lead Judgment)]
Friday 24th May 1985
SC.103/1984
NIGERIA BOTTLING CO. LTD.......... DEFENDANT/APPELLANT
V.
CONSTANCE OBI NGONADI.......... PLAINTIFF/RESPONDENT
Facts
The plaintiff/respondent traded on soft drinks on retail basis, and operated a beer parlour. She
bought from the defendant/appellant, a kerosene refrigerator known as Evercold refrigerator.
Before she bought the refrigerator, she told the Manager of the appellant company
(distributor of Evercold Refrigerator) not only informed her that the refrigerator was well
suited for that purpose; he actively encouraged the respondent to purchase it. The plaintiff
relied on
478

Law of Torts
appellant's manager's opinion, skill and judgment, and paid for the refrigerator after which
she transported same in a crate to Benin where the plaintiff resided from Agbor where the
appellant carried on business. The respondent did not examine or test the refrigerator before it
was transported.
It was installed on 12th February, 1975. On 14th February, 1975, it caught fire and it was
repaired. On 29th August 1975, the refrigerator exploded resulting in extensive personal
injuries to the respondent. She was hospitalised and the injuries she sustained made her to be
unable to breast feed of her children, the colour of hairs, breasts and hands were affected by
the burns. The respondent then sued for negligence. The trial Judge considered the evidence
and found the appellant liable in negligence he awarded a total of ₦30,435.00 to the
respondent.
The Court of Appeal confirmed all the findings of the learned trial judge and affirmed his
decision. Being dissatisfied with the Court of Appeal judgment, the appellant appealed to the
Supreme Court. The Supreme Court in a unanimous judgment affirmed the judgments of the
lower courts dismissed the appeal and held as follows:
1. an action for negligence, the onus is on the plaintiff to prove the
ingredients of the tort;
2. where a breach of implied warranty forms the basis of the
negligence, the onus is on the plaintiff to prove the special
relationship out of which arose the duty of care and what amounts
to a breach of that duty;
3. in an action for breach of implied warranty of fitness under section
15(a) Sale of Goods Law Bendel State, all that the plaintiff needs do
is to plead that the commodity was defective. There is no need to
plead that the defect is latent or patent;
479
Consumer Protection
4. where it is shown that the plaintiff had no opportunity of examining
the goods before they were sold and very shortly afterwards, the
defect manifests itself, such defect would be deemed a latent
defect;
5. where the defect in the commodity is an open one that the plaintiff
ought to have discovered, there will be no need for oral warranty
and caveat emptor rule applies;
 6. the Sale of Goods Law Bendel State Cap 105 applies to all actions
relating to breach of contract of sale of goods in Benin City, Bendel
State;
7. where a buyer relies on seller's expert opinion skill and judgment
that the commodity sold to him was suitable and safe for the
purpose for which the buyer wishes to use that commodity, such
seller, by virtue of section 15(a) Sale of Goods Law Bendel State
gives an implied warranty as to the fitness and safety of such
commodity;
8. a breach of the implied warranty as to fitness for purpose gives the
buyer a right to sue for damages;
9. section 15(a) did not make a distinction between manufacturer and
distributor, both can be liable for breach of implied warranty as to
fitness;
10. the rule in DONOGHUE v. STEVENSON also made no distinction
between manufacturer and distributor in cases of negligence but
merely extended the limit of liability to the manufacturer;
11. the consumer thus has an option either to sue the
manufacturer or anyone in the chain of distributorship up to the
manufacturer.

Appeal dismissed. Judgments of the trial court and Court of

Appeal upheld
480