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Akinola vs Guffanti & Co. Ltd (1974)5 CCHCJ 671 at 673             --

Alban Pharmacy Ltd vs Sterling Products International Inc (1968)1 

--          72

All Nigerian Law Report 300                                                             --

--          75

Anns vs Merton London Borough Council (1978) AC 728               --

--          80

Boardman vs Gunness (Nig) Ltd (1980) NCLR 109                         --

--    68, 72

Caparo Industries Plc vs Dickman (1990)2 AC 605                          --

Constance Ngonadi vs Nigerian Bottling Company /Ltd 

--          81

(1985)1 NWLR. Pt 4 at P. 739                                                           --

--          65

Donoghue vs Stevenson (1932)AC. 562 at 599                     --         --      64,68,69,79

Dunlop pneumatic Tyre Co. Ltd vs Selfridge Ltd (1915) AC 487 at 853

--             78


Ebelamu vs Guiness Nig Ltd (1983) FNLR 42                      --          --

Environmental Defence Fund vs Costle (1977) 578 F. 2d 337, US Court 

--   14, 66


of Appeal, District  Columbia Circuit                                     --          --

--             28 


Grant vs Australian Knitting Mills (1936) A.C. 85                --          --

--             12 


Grant vs Sun Shipping Co. (1948) AC 549 at 567                             --

--             86


Greenman vs Yuba Power Production Inc (1963) 27 Cal. Report 697 

--    83,94 


Hedley Byrne & Co. Ltd vs Heller & Partners Ltd (1964) AC 465 

--             80


Heningsen vs Bloomfield Motors (1960)161 A 2d 69                       --

--             78


Home Office vs Dorset Yacht Co. Ltd. (1970) AC 1004 at 1027      

Iyke Medical Merchandise vs Pfizer Inc. & Anor 

--             80


(2001)6 NSCQR 997; (2001)10 NWLR (pt 722) 540                        --

--             75


Jones vs Bright (1892)5 Bing 533                                                      --

--             76 


Linus Onwuka & Anor. vs Omogui (1992) 3 N.W.L.R. (Pt. 230) 393. S.C. --             73

Management Enterprise Ltd vs Otusanya (1987) 2 NWLR. Pt 55 16 --        --            72  




Mason vs Williams & Williams (1955) 1 All ER. 808                        --

--           13

NBC Plc vs Okwejiminor & Anor (1998)8 NWLR. 295                   --

--           65

NBC vs Olanrewaju (2007) All Federated Law Report (Pt. 364) 360 

--           67

Okonkwo vs Guinness Nigeria Ltd (1980) 1 PLR 538                      --

--    13, 66

Osemobor vs Niger Biscuit Co. Ltd (1973) NCLR 382                     --

--           69

Pressley vs Burnett (1914) SC. 874                                                    --

--           86

Seixo vs Provezende (1866)1 Ch. App. 192 at 196                            --

--           74

Vacwell Engineering Co. Ltd. vs Buds Chemicals Ltd, (1971) 1 QB. 88

--           13




Benue State Sale of Goods Law, 2004           --          --          --          --          --         76

Clean Water Act, 1972 (US)                                       --          --          --          --         66

Consumer Protection Council (Establishment) Decree No. 66 of 1992          --         56

Consumer Protection Council Act, Cap. C. 25(LFN) 2004--  --   11, 65, 63, 64, 85,91

Drugs Related Products (Registration, etc) Decree No. 19 of 1993 --

--          42           

English Supply of Goods (Implied Terms) Act of 1973



--          76

Federal Water Pollution Act, 1972 (US)                    --



--          28

Food and Drugs Act, Cap F. 32 (LFN) 2004             --



--     43,44

Food and Drugs Decree No. 35 of 1974                    --



--      9,44

Hire Purchase Act Cap H. 4 (LFN) 2004                   --



--          76

Kaduna State Sale of Goods Law, 1990.                   --




National Agency for Food and Drug Administration and Control Act 

Cap (LFN) N1 2004               --          --





--     --   52,84,90

Safe Drinking Water Act, 1974 (US) 




--          --            29 

Sale of Goods Act, 1893                     




--             16, 76,87

Standards Organisation of Nigeria (Establishment) Decree No. 56 of 1974 --


Standards Organisation of Nigeria Act Cap. S.9 LFN, 2004 --         --          --


Trade Marks Act, Cap. T. 13 (LFN) 2004                  --          --          --          --


U.S Restatement (Second) of Tort: Product Liability, 1965  --          --          --


U.S Restatement (Third) of Tort: Product Liability, 1998     --          --          --








Appeal Cases









Association of Table Water Producers 



Consumer Confidence Report



Consumer Affairs Movement of Nigeria






Certified Copy of the High Court Judgments



Chief Judge



Chief Justice of Nigeria






Clean Water Act 



United States Environmental Protection Agency



European Union



Federal Department of Food Drug Administration and Control



Federal Government of Nigeria



Good Manufacturing Practice



Generally Regarded as Safe



Hazard Analysis and Critical Control Point






International Standard Organization






Justice of the Court of Appeal



Laws of the Federation of Nigeria 




Local Government Area



Limited Liability Company



Maximum Contaminants Level



Minister Department and Agencies 



Maximum Contaminants Level Goals



Ministries, Departments and Agencies            



Millennium Development Goals



Magnetic Ink Card Reader



National Agency for Food and Drug Administration and Control



National Space Research and Development Agency



Nigerian Bottling Company



National Consumer Disputes Redressal Commission (India)



Nigerian Commercial Law Reports



National Council on Water Resources



National Drug Law Enforcement Agency



National Economic Empowerment and Development Strategy



Non-Governmental Organisations



National Health and Medical Research Council






Nigerian Industrial Standards



National Planning Commission



Nigerian Supreme Court Quarterly Report



National Standard for Drinking Water Quality



Nigerian Weekly Law Reports






Package Insert



Public Limited Liability Company









Poly Vinyl Chloride



Safe Drinking Water Act



Standards Organisation of Nigeria



Standard Operational Procedure



State Security Service                                                                                                 



United Nation Economic Commission for Europe



United States



United States of America



Ultra Violet



Water Sanitation and Health



World Health Assembly



World Health Organisation



The indispensability of safe drinking water to man cannot be over-emphasized. This research has traversed the allowable length and breadth of the applicable laws, regulations, as well as international and national policy frameworks on safe drinking water. It has also examined cases and legal principles that should be applied to instances where consumers’ rights to safe drinking water, especially sachet water arise. However, acceptable and affordable as the innovation may seem, its associated downside is the proliferation of contaminated sachet water, the consumption of which has often brought upon the consumers the toll of harm, diseases and malignancies. This situation is compounded by the obvious inability of the regulatory agencies of government to effectively monitor and control this anomaly. More so, is the dilemma of the consumers to know which field of law they can seek their legal redress, either in contract, or in tort, or in the law of crimes, where they may be harmed or injured by the consumption of contaminated, untreated or over-treated sachet water. The lack of sufficient awareness of their rights as well as the regulatory and enforcement mandates of the statutory watchdogs like the National Agency for Food and Drug Administration and Control (NAFDAC),Consumer Protection Council (CPC) and Standards Organisation of Nigeria (SON) puts a bitter icing  on the cake of this malaise. The methodology used in this research is doctrinal as it dwelt essentially on the primary sources such as statutes, case law; and secondary sources such as academic publications, regulations, administrative policy documents, and other relevant materials sourced from the internet. The work is summed up with findings to the effect that government regulation in this field is not holistic as to provide the desired protection to consumers. Also, the conservative attitude of the courts that does not easily allow for res ipsa loquitur to be successfully pleaded in product liability cases by the plaintiff, but rather insists on the plaintiff proving the negligence or fault of the manufacturer/defendant was analysed. The work recommends that the National Agency for Food and Drug Administration and Control (NAFDAC) should take advantage of the enforcement provisions of the NAFDAC Act, 2004, in order to restrict the registration of operators of sachet water production and distribution to only qualified, capable and verifiable applicants. NAFDAC should ensure that the labeling and use instruction on sachet water be written with translation into the local language of the area of coverage while the Consumer Protection Council of Nigeria should increase its public enlightenment functions in order to bring to the notice of Nigerians the awareness of its existence and its functions. Also, it is recommended that the Consumer Protection Act should be amended to go beyond a requirement of safety certification by manufacturers, to holding them liable if as a result of no fault of the consumer, harm is caused by the use of such products. It is further recommended that the fines for product failure in the Act be increased significantly to deter malpractice. Finally, it is recommended that Nigerian courts should adopt and apply legal principles like res ipsa loquitur and strict liability that should attenuate the burden of proof of negligence on the consumer in product liability cases, especially in the area of packaged sachet water. 






Title Page                                --          --          --          --          --          --          --         i

Declaration-------------------------------------------------------------------------------------------------- ii

Certification------------------------------------------------------------------------------------------------ iii

Dedication-------------------------------------------------------------------------------------------------- iv

Acknowledgements--------------------------------------------------------------------------------------- v

Table of Cases--------------------------------------------------------------------------------------------- vii

Table of Statutes------------------------------------------------------------------------------------------ ix

Abbreviations----------------------------------------------------------------------------------------------- x

Abstract---------------------------------------------------------------------------------------------------- xiii

Table of Contents---------------------------------------------------------------------------------------- xiv




1.1       Background to the Study                    --          --          --          --          --         1

1.2       Statement of Research Problem          --          --          --          --          --         4

1.3        Aim and Objectives of the Research --          --          --          ---        --         5

1.4       Scope of the Research                        --          --          --          --          --         6

1.5        Research Methodology                       --          --          --          --          --         6

1.6       Justification of the Research               --          --          --          --          --         7

1.7       Literature Review                               --          --          --          --          --         8

1.8       Organizational Layout            --          --          --          --          --          --          23








2.1       Introduction    --          --          --          --          --          --          --          --         25

2.2        Global Perspectives to Water Safety --          --          --          --          --         25


2.3        Millennium Development Goals and Timeline            

             For Safe Drinking Water Supply in Nigeria. --          --          --          --         30

2.4       World Health Organization (WHO) Guidelines and Benchmarks     --         32 

2.5       Nigerian Standard for Drinking Water Quality

            NIS 554:2007  ICS 13:06.20                          --          --          --          --         34

2.6       NAFDAC Regulations for Packaged Water               --          --          --         42

2.7       Evidence of Sachet Water Contamination in Nigeria --          --          --         46

2.8        The Effect of Contaminated Sachet Water on the Health of Consumers -- 48

2.9       Conclusion      --          --          --          --          --          --          --          --         49



3.1       Introduction                --          --          --          --          --          --          --         51

3.2       The National Agency for Food and

             Drug Administration and Control (NAFDAC)         --          --          --         51

3.3       The Standards Organisation of Nigeria (SON)           --          --          --         55

3.4        The Consumer Protection Council of Nigeria (CPC) --          --          --         56

3.5       Bottlenecks to Enforcement and Implementation      --          --          --         59

3.6       Conclusion      --          --          --          --          --          --          --          --         62



4.1       Introduction                            --          --          --          --          --          --         63

4.2        Consumer Rights        --          --          --          --          --          --          --         69

4.3         Application of Res ipsa loquitor in Nigerian Cases --           --          --         71

4.4       Relevance of Trade Marks Act Provisions to the

            Interest of the Consumer        --          --          --          --          --          --         73

4.5       Protection in the Law of Contract      --          --          --          --          --         76

4.6        Privity of Contract in Consumer Protection --           --          --          --         78

4.7        Strict Liability             --          --          --          --          --          --          --         82

4.8        Protection under Criminal Provisions of NAFDAC and CPC Acts --          84

4.9       Due Care and Prudence of the Consumer --               --          --          --         86 

4.10     The Burden of Proof of Negligence on an Injured Consumer of 

                 Contaminated Sachet Water --          --          --          --          --          --         86


4.11     Conclusion      --          --          --          --          --          --          --          --         87



5.1        Summary                     --          --          --          --          --          --          --         89

5.2       Findings                      --          --          --          --          --          --          --         90

5.3       Recommendations      --          --          --          --          --          --          --         91

             Bibliography               --          --          --          --          --          --          --         95

            Appendix 1     --          --          --          --          --          --          --          --         99

            Appendix 2     --          --          --          --          --          --          --          --         110 





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 1990 but its regulation by the National Agency for Food and Drug Administration and Control (NAFDAC) started in 2002[1].

Access to clean drinking water is a fundamental requirement for human life, as its absence is a grave health concern.  According to WHO Report[2], 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 waterrelated diseases are a growing human tragedy[3]

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 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 study[9], to determine the bacteriological quality of drinking water sold in sachets in 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

investigation[10], 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 Research 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.

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        Aim and Objectives of the Research

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 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       Scope of the Research

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. 


1.5       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 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.  


1.6        Justification of the Research  

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 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


1.7           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 book[11] 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 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 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 book[12] 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 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 reenacting the definition of a ―Consumer‖ as defined by the Consumer Protection Council Act,18 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, 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”[14] 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,20 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 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.[15]       


ii.                  In Vacwell Engineering Co. Ltd. vs Buds Chemicals Ltd,[16] 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,[17] 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.[18]


Having referred to the above logical antecedents, the writers of the article in review wondered how well the decisions in Okonkwo vs Guiness Nig. Ltd[19] and Ebelamu vs Guinness Nig Ltd[20] 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 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 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 authorities[21] 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 article 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. 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 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. 

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.33 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 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.34 

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.35

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 article defines ―Consumer Protection‖ as the legal means to serve consumers‘ 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‖

To underscore the aim of consumer protection to achieve consumers‘ welfare in modern terms, he referred to the United Nations resolution 39/248 of 9th 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 article 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 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 Commission 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 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 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.

Bello, Suleiman, and Danjuma, in their article41 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 fold 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 paper42 that in recent years, 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.


1.8        Organisational Layout

This research work is made of five chapters.

Chapter one focuses on general introduction and preliminary issues like background to the research, statement of research problem, aim and objectives of the research, scope of the research, research methodology, justification of the research, literature review, and organizational layout.

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 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, findings and recommendations.

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