Category: Law

Today, our convoy has gotten to the street of Negligence in the famous city of Tort. Being a broad street, we shall only be visiting the home of Product Liability.

In law, when someone acts carelessly and causes an injury to another person, under the legal principle of negligence, the careless person will be legally liable for any resulting harm. Hence, the tort of negligence is a legal wrong that is suffered by someone at the hands of another who fails to take proper and reasonable care to avoid what a reasonable person would regard as a foreseeable risk. For instance, a person who forgets to remove a banana peel on the floor in a house after several hours consequently leading to the injury of another person may likely be liable for negligence. This is because there is a foreseeable risk that someone will go through that place and most likely get injured.

To succeed in an action for negligence, the plaintiff (the one who suffered harm due to the omission of the other party) must establish three things:
(a). He must prove the existence of a duty of care owed by the defendant to the plaintiff.
(b). He must prove the breach of that duty of care by the defendant.
(c). He must prove the damage resulting from the breach.

For the first requirement, a duty of care can be viewed as a social contract – the implicit responsibilities – held by individuals to act with thoughtfulness and exercise reasonable care towards another. Over time, through constant judicial pronouncements, there have been some recognized care of duty instances that have gained prominence. One of such is Product Liability.

Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others in the supply chain, who make products available to the public are held responsible for the injuries those products cause. For example, let us imagine you bought a Coca-Cola drink from one mummy Tope in your street and while drinking, you saw a dead mice in the drink, who will be held liable? Is it mummy Tope or the manufacturing company? Most times, it is the latter that will be held liable because all manufacturers owe a duty of care to their final consumer and the former will escape liability if it can be proven that she didn’t tamper with the products when gotten from the manufacturer.

In the celebrated case of Donoghue v Stevenson [1932] A.C. 562, Donoghue bought and drank a bottle of ginger beer in a café. A dead snail was in the bottle. She fell ill, and she sued the ginger beer manufacturer, Mr. Stevenson. The House of Lords held that the manufacturer owed a duty of care to her, which was breached because it was reasonably foreseeable that failure to ensure the product’s safety would lead to harm to consumers. Even though the contract was between Donoghue and the retailer, the court held that manufacturers owe the final consumer of their product a duty of care (at least in the instance where the goods cannot be inspected between manufacturing and consumption) and there need not be a contractual relationship, or privity between the final consumer and the manufacturer, in order for the final consumer to sue in negligence.

Being a locus classicus, the principle in the celebrated case of Donoghue has found its way into Nigerian jurisprudence. In the case of Osemobor v Niger Biscuits Co. Ltd (1973) 7 CCHCJ 71, the plaintiff, in course of chewing a biscuit purchased at a supermarket, felt something hard in her mouth which turned to be a decayed tooth. As a result, she became ill. Finding the defendants liable in negligence, the court, per Kassim J (as he then was), held that: I am satisfied that there was no probability of an intermediate examination of the biscuits before they reached the plaintiff and I find myself unable to uphold the submission of the learned counsels for the defendants that she was bound to look at the biscuits before she put them in her mouth…. 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 damage to person or property.

This decision also received a stamp of approval by the Supreme and Appeal Courts in Okwejiminor v Gbakeji & Anor (2008) LPELR-2537(SC) and Nigeria Bottling PLC v Jokotade Ibrahim (2016) LPELR-41943(CA).

At this juncture, it is pertinent to note a product liability is not limited to defects in drinks. It also includes all medical devices, commercial/personal vehicles, aircraft, and consumable goods such as food and prescription drugs. In Nigeria, agencies such as Standard Organisation of Nigeria (SON), National Agency for Food and Drugs Administration and Control (NAFDAC); the Federal Competition and Consumer Protection Commission (FCCPC) are some of the regulatory agencies saddled with the responsibility of ensuring consumers’ protection.

In conclusion, manufacturers owe a duty of care to all those who can reasonably be expected to make use of their product and a claim in negligence is not limited by the doctrine of privity of contract, which states that only a party to a contract can sue under it.

Thank you for reading. See you next week.

It is a settled principle in Criminal Law that before any person can be charged with an offence and convicted for the commission of that offence, there must be a written law that can be referred to. This long-standing principle has a constitutional backing by virtue of S.36(12) of the Constitution and several judicial hortatories in cases such as Aoko v Fagbemi (1961) 2 All NLR 400; AG Federation v Isong (1996) 1 QLRN p. 75, Bode George v Frn (2011) 10 NWLR (PT 1254) 66, etc.

Moving on, the question then is can the directive given by the Governor of a state amounts to a law in which penalty can be attached to? In determining this question, the Court of Appeal held in negative. In this case under review, one Faith Okafor was arrested by officials of the Lagos State government for violating the restriction of movement order during the Environmental Sanitation on the last Saturday of the month. She was arraigned before the Special Offences Court on a charge of wandering and loitering in violation of the compulsory monthly environmental sanitation exercise. She pleaded guilty and was fined the sum of N2,000.00.

However, she filed an action at the Lagos State High Court claiming that her arrest and detention amounted to an infringement on her rights to personal liberty and freedom of movement. Despite her action being dismissed, she proceeded to the Court of Appeal where the court ruled in her favour by holding that: “I find worrisome the contention of the Respondents that the directive of the Governor can be equated to a Law for which criminal sanctions will lie, and a person tried and convicted for the offence of violating the directives of the Governor…I shudder at this submission which in its elastic ramification takes us back to the dark ages of the Hobbesian state of nature.

Though the respondent(other party) agreed that there was no written law in Lagos State which restricts the movement of people on environmental sanitation days and making it an offence, the counsel still posited that the restriction was valid having being directed by the Governor. To this end, the court held that: I find it shocking that the disobedience of the directive of the governor in this regard has been elevated to a crime for which criminal sanctions attach, as in the conviction of the Appellant and the fine imposed on her.”

Though not entirely within the purview of this discourse, the writer submits, as an aside, that the conviction of the popular actress, Funke Akindele, early this year for ‘flouting’ the Covid-19 directives will likely be set aside on appeal. Some of the reasons will be that her offence was unknown in law, the principle of Covering the Field wasn’t followed among others. The reason for this was that most executive orders that were given to contain the spread of Covid-19 were made without fulfilling some constitutional and statutory provisions. Of importance here was the unlawful demolition of two hotels in Rivers State by Governor Wike.

Nevertheless, an order or directive can become binding when it is backed up by a law enacted by the National Assembly or State House of Assembly for a state. As such, an order by a Governor that all suspects must be treated with dignity will be binding because such a right has already been guaranteed by the Constitution. See S.34 of the Constitution.

In conclusion, a Governor cannot suo moto (on his own), no matter his good intention is, turns a directive into a law which violation of it will result in criminal liability.

Thanks and see you next week.

In life, there are some things we don’t have control over. One of them is that children can’t be involved in the selectional process of their biological parents. On this issue, we can’t sòrò sókè. Nevertheless, there are still some people that are being referred to as bastards (illegitimate) in society. In Nigeria, the concept of legitimacy is very important because of the social stigma that is associated with it. Nobody likes being called a bastard.

Under Family Law, a child is considered illegitimate if born outside of a valid marriage. It is important to note that the issue associated with illegitimacy is always heightened during succession. Fortunately, this issue doesn’t pose as a problem provided the deceased died testate, that is, he died leaving a Will behind. The rationale is that the testator has the right to give any of his/her properties to his/her child or anybody whatsoever, whether the child is born within or out of wedlock or not born by him at all.

Conversely, this issue is heightened when the deceased died intestate; that is without a Will on how his assets should be distributed, and this problem is further compounded where the paternity of the child is not acknowledged by the deceased before his death, either because he did not know about the existence of that child, or for one reason or the other.

Furthermore, S.42 of the Constitution of the Federal Republic of Nigeria 1999 as (amended) houses the Right to Freedom from Discrimination and subsection(2), by extension, particularly provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth. While the provision of the supreme law is appreciated, the writer still submits that this provision tends to encourage promiscuity in most homes. The reason is that a father or mother, having known, that no child will be discriminated against based on sex may be motivated to walk the path of adultery.

Since the Courts will not allow the law to be used as a mechanism to perpetrate acts contrary to public opinion, they have, through their various judicial pronouncements, extended the requirements which include either acknowledgment by the father or presentations of clear and convincing evidence. Based on this, the Court in Okonkwo v. Okonkwo, (2014) 17 N.W.L.R (pt 1435) 18 held that: by virtue of section 42 of the Constitution of the Federal Republic of Nigeria 1999, children born out of wedlock but whose paternity was acknowledged by the intestate have equal share with the children of the marriage.

What if the father doesn’t acknowledge the child? Is that the end of the road for such a child on the voyage of inheritance? No. In addition to the acknowledgment of paternity by the intestate, the paternity of a child can be established by proof such as a birth certificate, forms, photographs, and other forms of documentary evidence. The case of Ukeje v. Ukeje (supra) is very illustrative of this point as the respondent won the case solely on documentary evidence. The court held that per Olabode Rhodes-Vivour JSC: ….on the issue of whether the respondent was the daughter of L.O. Ukeje (deceased), family photographs may have helped to resolve the issue, but the birth certificate of the respondent was decisive in settling the issue.

It is also noteworthy that the paternity of a child can also be proven using scientific test. This test is also recognized by the Child Rights Act. According to S.63(1)(a) of the Act: In any civil proceedings in which the paternity or maternity of a person falls to be determined by the court hearing the proceedings, the court may, on application by a party to the proceedings give a direction (sic) for the use of scientific tests, including blood tests and Deoxyribonucleic Acid tests to show that a party to the proceedings is or is not the father or mother of that person.

In conclusion, the process of proving the paternity of an illegitimate child is cumbersome, particularly where the deceased died intestate. However, once it is proven, the web of stigmatization hitherto placed on such an individual will be removed and he/she will be on the same pedestal as the legitimate child consequently giving him/her the right to partake in the succession process.

Thank you. See you next week. Please do not forget to comment and share.💝