Defective Products, Goods and Services: Available Remedies to Consumers Against Manufacturers in Nigeria

The importance of consumer protection has grown in recent years. Industrialization has led to the creation and distribution of advanced items worldwide. Consumer protection legislation must be broad and dynamic to protect against potential risks. Consumers are exposed to greater hazards. Consumer dissatisfaction is common when sellers refuse to address legitimate issues and the government fails to protect consumers' interests. Consumers need to be safeguarded from trade misconduct. Unfair marketplace practices can include misleading advertising, unfair marketing, and exclusion clauses.

Nigeria has a number of laws and regulatory authorities in place to safeguard customers against potentially dangerous products, goods, and services. The Federal Competition and Consumer Protection Act (FCCPA) of 2019 is a vital piece of legislation that promotes fair, efficient, and competitive markets while protecting citizens from hazardous products and services.

This article examines the consumer's rights and remedies, as well as the numerous legal frameworks that enable a customer who experienced damages, loss, or injury as a result of consuming or using defective products or services to seek remedy.

Meaning of a consumer

A consumer is described as someone who buys goods and services for personal use rather than for manufacturing or reselling. This concept applies to entities such as companies, firms, communities, agencies, and governments that are influenced by products, goods, or services from manufacturers.

Section 2(d) & (11) of the Consumer Protection Council Act used the terms "consumer" or "communities". Section 6(1) used the "term consumer or community" while Section 6(2) utilized the terms "a consumer, or a person having an interest in a matter". Section 32 of the Consumer Protection Council Act states "in this Act unless the context otherwise requires - "consumer" means an individual who purchases, uses maintains or disposes of product or otherwise." A communal consideration of the above reveals that a consumer could be an individual within the intendment of Section 32 of the Act. It could be a community or communities within the import of Section 2 (d) and (1) of the Act or Section 6 (1). While Section 6 (2) states that a consumer "could be a consumer or a person having an interest in a matter". See FCMB v. Consumer Protection Council (2021) LPELR-55804(CA)

Legal Framework for the Protection of Consumers’ Rights

The protection of the duties owed by the manufacturer to the customers is provided by numerous legal frameworks. Some of these legislations are:

• The Federal Competition and Consumer Protection Act (FCCPA)
• Sales of Goods Act.
• Food, Drugs and Related Products (Registration, etc) Act.
• The Tobacco Smoking (Control) Act.
• The Trade Malpractices (Miscellaneous Offences) Act.
• The Counterfeit and Fake Drugs and Unwholesome
• Processed Food (Miscellaneous Provision) Act.
• Standard Organization of Nigeria Act.
• National Agency for Food and Drug Administration and Control Act.
• The Law Reform (Tort) Laws of Lagos. 

Rights of a Consumer

A right can be described as a power, privilege, or immunity provided by a constitution, statute, or case law, or claimed through long usage. Consumer’s rights include but are not limited to:

• Right to Information and Education in Plain Language
• Right of Disclosure of Prices of Goods and Services
• Right to Adequate Trade Description and Labelling
• Right to Disclosure of Second-Hand or Reconditioned Goods
• Right to be Given Adequate Information of Every Transaction
• Right Not to be Given a Condition Before Making a Purchase
• Right to Cancel Advance Reservation, Booking or Order
• Right to Reject Goods Before Completing the Transaction
• Right to Safe and Quality Goods
• Right to basic needs
• Right to safety
• Right to choose and healthy environment
• Right to redress

Duties of manufacturers to consumers

Manufacturers have several duties and obligations to consumers under Nigerian law.

They include:

• Duty to provide accurate information: Manufacturers have an obligation to provide consumers with honest and accurate information and descriptions about their products and services. They cannot misrepresent the nature, quality, or features of their products.
• The duty to withdraw hazardous goods: If a manufacturer becomes aware of any unforeseeable hazard emerging from the usage of products they have already placed on the market, they have a duty to withdraw those hazardous products.
• Duty to Properly Label Goods: Under the FCCPA, manufacturers are required to correctly label goods so that they can be easily traced. Breach of this obligation can lead to imprisonment or fines.
• Implied duty of quality and suitability: Manufacturers have an implied duty to ensure that their products adhere to their description, are of merchantable quality, and are suitable for their intended purpose. This duty cannot be excluded by the contract.
• Duty to maintain the product approval process: Manufacturers must maintain, manage, and review a process for approving new products or modifications to existing ones. This approval procedure must take into account the target market, distribution strategy, and fair value analysis.

Remedies available to consumers of defective products.

When there is an injury, there must be a remedy. Consumers can sue manufacturers for failing to fulfill their duty of care by producing defective products. The consumer might take legal action against manufacturers in the following ways:

• Institute criminal proceedings against the offending party
• Sue for a breach of strict liability
• Sue for breach of contract of sale
• Sue for negligence
• Consumers can claim damages and compensation if they sustained injury, loss, or damage due to the use of defective or hazardous goods.
• Consumers can file a warranty claim if the product does not satisfy the warranty terms.

Remedy under Criminal Law

The Federal Competition and Consumer Protection Act prescribes criminal punishments for the violation of consumer rights, including imprisonment and fines. According to Nigeria's Criminal and Penal Code Acts, selling unfit-for-consumption items is an offense punishable with imprisonment.

Other statutory offenses apply to the manufacturing and distribution of specific products in the country. Examples include the Food and Drug Act, Weight Act, Trade Practices (Miscellaneous Offences Provision) Act, Counterfeit Fake Drugs Act, and Unwholesome Food (Miscellaneous Provision) Act.

Strict Liability for Defective Products

In tort, a manufacturer is held strictly accountable if a defective product is placed on the market and causes harm to consumers. To prove causation, the consumer must establish that the damage was caused by the faulty product and that it was defective when it left the manufacturer's control. Typically, circumstantial evidence is used to prove that a flaw was present in the product when it left the manufacturer's control and caused the injury.

The burden to prove an allegation of food poison is on the Claimant. He who asserts must prove. A high standard of proof is required from the Complainant in food poisoning cases. Thus, there must be proven direct link between the food or drink ingested and the subsequent ailment of the complainant. See NBC Plc v. Olarewaju (2006) LPELR-7696(CA)

The Federal Competition and Consumer Protection Act holds manufacturers strictly liable for any damages caused by defective goods, whether totally or partially. This liability cannot be excluded or limited under contract.

Lagos State's Law Reform (Torts) Law imposed strict liability on producers of defective products, establishing a statutory cause of action. The law holds manufacturers, producers, importers, suppliers, and retailers liable for any damages caused by a defective product.

Remedies under contract law

In Nigeria, the Sales of Goods Act governs the contract of sale of goods, and manufacturers are required to fulfill implied obligations under the law.

According to the Sales of Goods Act, a contract for the sale of goods by specification implies that the commodities must meet the specifications. If the consumer specifies the purpose of the products, the seller is obligated to ensure that they are reasonably suited for that purpose and of merchantable quality. If the seller violates any implied guarantees or conditions, the buyer might seek damages for breach of warranty or condition.

Consumers can reject the goods and request a return if the goods do not adhere to the contract of sale and obtain a full or partial refund. If a consumer requests a repair or replacement, the business must do it within a reasonable period and without undue inconvenience to the consumer.

Sue for Negligence

Negligence is a tortuous liability, it means conduct that is blame-worthy because it falls short of the legal standing required of a reasonable person in protecting individuals against foreseeable risk, or harmful acts of another member of the society. Therefore, negligent behavior towards others gives them the right to be compensated for the harm to their body, property, mental well-being, financial status, or relationship. It therefore suffices to say that the tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached. For a plaintiff to succeed in an action for negligence he must prove by a preponderance of evidence or the balance of probabilities that (a) The defendant owed him a duty of care (b) The duty of care was breached (c) The defendant suffered damages arising from the breach. See the cases of Anyah v. Imo Concorde Hotels (2002) SC (part 11) 77. 

Negligence properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owed. See the case of Lochgelly Iron and Coal Co. v. M'mullan (1934) A.C. 1 at 25. This definition spells out for us the three basic components of the torts of negligence:

1. duty of care
2. breach of the duty of care
3. damage caused by the breach.

It is settled that for a claim of negligence to succeed, the plaintiff must necessarily prove that the defendant owes him or it a duty of care and that it was in breach of that duty. See Oyidiobu v. Okechukwu (1972) 5 SC 191. The consumer must prove that the goods was defective due to the manufacturer's negligence and that the defect resulted in harm. The manufacturer is held to the standard of care that a prudent person in the same situation would use when designing, producing, and warning about a product to prevent injury to individuals who may be exposed to it.

Consumers are owed a duty of care, even if they may not be expected to qualify. The foreseeability rule is a significant factor in identifying potential consumers. The concept was developed in Heaven v Pender (1883) 11QBD 503 and endorsed by Lord Atkin in the case of Donoghue v. Stevenson (1932) A.C. 562 at 580. The court acknowledged a duty between a consumer and a manufacturer, stating that a manufacturer of products, that he sells in such a form as to show that he intended 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 of care to the consumer to take that reasonable care.

Nigerian courts adopted the principle established in the aforementioned case in point. The manufacturer must take reasonable care to prevent injury to individuals who use or consume the product as intended. In Osemobor v Niger Biscuit (1973) 7 CCHCJ 71, the court held that a person who manufactures goods, which he intends to be used or consumed by others, is under a duty to take reasonable care in their manufacture, so that they can be used or consumed in the manner intended, without causing physical damages to person or property.

Damages

If a claimant can prove that a duty was breached, resulting in injury, the claimant is entitled to compensation in the form of damages. It is important to point it out straightaway that once a Claimant leads evidence which creditably and cogently established a duty of care owed him by the Defendant, the breach of that duty by the Defendant and the resultant damages, he is entitled to his claim for damages for negligence. But if on the other hand, the Claimant fails to establish by credible evidence all or any of the three ingredients of the tort of negligence, such a claim fails and ought to be dismissed. See Oyidiobu v. Okechukwu (1972) 5 S.C. Page 191; Ehimen v. Benin Electricity Distribution Co. Plc (2016) LPELR-40814(CA)

Government agencies and other organizations (Alternative Dispute Resolution) 

The Federal Competition and Consumer Protection Council (FCCPC): In Nigeria, the FCCPC advises and assists consumers in seeking relief for defective products and services. Consumers can file a written complaint or seek remedy through a State Committee if they have suffered loss, injury, or damage as a result of using defective or dangerous goods.

Defences available to the manufacturers

Manufacturers of defective products and services have several defenses available to them in product liability cases. 

They are as follows:

• Contributory negligence or misuse of the product by the user: If the user acts carelessly or misuses the product in an unforeseen manner, so contributing to their own injury, the manufacturer's liability may be reduced or eliminated. For instance, failing to use the safety features offered by the manufacturer.
• Using the product despite being aware of a harmful defect: If the user intentionally and unreasonably assumes the risk of a known hazard, the manufacturer may not be held liable for the subsequent injuries. For example, deliberately electrocuting oneself with a product.
• The product was not unreasonably dangerous: If a product has known inherent dangers, and the seller clearly advises of the dangers while properly packaging and labeling the goods, the seller may not be held strictly liable. This could apply to experimental pharmaceuticals or other goods that have recognised dangers.
• Significant alteration after leaving the manufacturer's control: If a product was materially altered after leaving the manufacturer's control, and the alterations were not foreseeable and were a superseding cause of the damage, the manufacturer may be absolved of liability.
• Cutting-edge defences: In design defect lawsuits, a manufacturer may avoid liability by demonstrating that they employed the best available technology and design to ensure the product's safety. If there are no known safer designs, the manufacturer may not be liable.
• Limitation period: If an action is not commenced within the time frame specified by the Act, it becomes statute-barred. In some States, tort actions have a six-year limitation period.
• The claim is against the person who did not supply the product in question.
• The product was not produced or offered in the course of business.
• The defect did not exist when the product was distributed.

Conclusion

Consumers in Nigeria have several legal remedies available to seek redress against manufacturers of defective products, goods, and services. These remedies include seeking redress through State Committees, filing civil lawsuits, claiming compensation, and relying on regulatory enforcement. 

Various laws and regulations protect Nigerian consumers, and criminal sanctions are imposed for contraventions of consumer rights. The Federal Competition and Consumer Protection Council Act being the primary legislation that establishes consumer rights and empowers regulatory agencies to enforce these rights. The laws aim to promote fair competition, prohibit unfair practices, and ensure consumers receive safe and quality products.

Note: The content of this article is anticipated to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstance.