Nov 7, 2018

Advertisers Liability in Nigeria and the Eco-Contort Principle | Akpan, Emaediong Ofonime





1.0     Introduction

The first victim of advertisement suffered the lack of redress solely because the liability regime in existence was heavily laden with the caveat ‘buyer beware.’ This caveat reads thus; ‘….but the fruit of the tree which is in the midst of the garden…….God has said you shall not eat it, neither shall you touch it …’ [ii]  This caveat may be said to have allowed the advertiser act with reckless abandon, transferring in whole, the liability of his actions on the consumer’s inability to adhere to warnings. It leaves out the question of the consumer’s ability to understand such warning and re-enforces the advertiser as king who has usurped the powers of the consumer.




Another bone of contention has been largely predicated on the nature of relationship between the advertiser and the consumer who has been injured. It must be mentioned at this point that the business relationship that resulted in Eve being harmed was without any consideration or contractual relations, and centuries after such liability regime has continued to work hardship for consumers especially the vulnerable. The liability of an advertiser has been the also been the bone of contention from time immemorial. It is evident in the brief argument that ensued between Adam and Eve on the one part, and God on the other after they had consumed the product advertised to them. While Adam placed the liability on Eve (the retailer or distributor); Eve if probably asked would have placed the liability on the Serpent (the advertiser) and the Serpent would have placed the liability on God (the producer).[iii] This argument is vital because it determines, the duty of care, the demarcating lines for proving negligence and the right to claim redress.



Nigeria is yet to have an articulated body of laws termed ‘Advertiser’s Liability Law’ or an aspect of its advertising law that deals solely on the liability of the advertiser.[iv] For the protection of consumers, there is a reliance on the rules of liability under the laws of contract, tort and also under criminal powers of some regulatory frameworks. Most of the parameters for situating liability have been developed extensively on goods as opposed to services.[v]

2.0     The Liability Regime in Nigeria

The liability for defective products is borne by the producer or such a person that holds out himself as a producer. These include persons who mark or name appears on the product, the importer or distributor and so forth.[vi] This implies that the manufacturer of products and sometimes the person in the distribution chain owe a duty of care to the consumer of that product. This position was enunciated in Donoghue v Stevenson[vii] where the House of Lords held that the defendants who were manufacturers of drinks, owed a duty of care to the plaintiff, who became sick after drinking a bottle of the manufacturer‘s ginger beer, bought for her by a friend at a restaurant and which contained the decomposed remains of a snail.



Product liability[viii] is a tort which imposes liability on manufacturers and sellers of products that are manufactured or sold in defective condition. A product is defective if it is unreasonably dangerous to the user. Liability is tied to physical or emotional injury to the ultimate consumer as was held in Constance Ngonadi vs Nigerian Bottling Co. Ltd.[ix] The consumer is saddled with proving that a manufacturer was negligent.[x] The privity of contract has created a lot of hardship for the assignment of liability in the case of advertisements. However it is workable for goods since it is hinged on consideration;[xi] hence it defines the scope for persons who can hold the producer liable for defective goods.[xii] The loopholes in the privity of contract were addressed by the exceptions of negligence and duty of care. The current test for a duty of care can be found in the judgment of Caparo Industries Plc vs Dickman.[xiii] Lord Oliver‘s speech in the above case sets the test for a duty of care thus;



(a) The harm which occurred must be a reasonable foreseeable result of the defendant‘s conduct;

(b) A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage;

(c) It is fair, just and reasonable to impose liability.



3.0     The Monstrosities in Evolving a Service Liability Regime for Advertisers



While the last limb of the test on reasonable and just need to impose liability may be appropriately applied to the advertising sector it may be difficult or almost impossible to establish the existence of a sufficient relationship of proximity and neighbourhood since advertisements are simply an invitation to treat and not in itself sufficient to import a contractual relationship. It is also difficult to place the advertiser or manufacturer within a water tight compartment to establish mens rea. This is because the manufacturer in defence may state that such advertisements were outsourced to an advertising agency who was supposed to act as a professional. Conversely the advertiser may state that the advertisements were subject to final verification by the manufacturer hence they acted solely on his instructions as an employee as opposed to a contract for service. While jurisdictions like China place liability on the advertisers giving them the responsibility of verifying the contents and claims of advertisements which they put out or consumers. In the light of the foregoing it has become necessary to examine the Eco-Contort Principle as a possible liability principle for advertisements with a few modifications.[xiv] The eco-contort principle is a combination of economic or business consideration, privity of contract and the neighbourhood principle within the precinct of tortious liability. This presupposes an amalgamation of other liability regime to ensure that consumer redress is not sacrificed on the altar of a tight compartment of strict rules. However, the eco-contort liability principle still makes consideration a paramount factor thereby almost leaving the consumer who has not acted upon the advertisement to mature into a contractual relation without a basis for his claims. This will continue to allow the advertiser the leeway to continue with reckless abandon the exploitation of the vulnerable consumer.



In Tamara Egbedi v. (Our Daily Manna ) The Registered Trustees of the Chapel of Liberty[xv] the plaintiff,  Ms Egebedi a lawyer approached the court to enforce the payment of damages she incurred in acting on an advertisement for a religious crusade by the defendants popularly known as Our Daily Manna which she attended and sustained injuries. Candide Johnson in delivering the judgement stated that the defendants put themselves forward as spiritual shepherds and hence owed a duty of care to the public whom they had invited through advertisements to their spiritual crusade. If this be the case that a plaintiff who offered no consideration towards an advertisement then it follws that the vulnerable consumer who only views an advertisement can also bring a claim against the proprietors of such advertisement. This is favourable to the vulnerable consumer as it will no longer allow the advertiser avoid liability on the basis of a non-existent contractual relationship.





4.0     Conclusion/Recommendation

          If the eco-contort liability principle is expanded to accommodate the court’s decision in Tamara Egbedi v. (Our Daily Manna ) The Registered Trustees of the Chapel of Liberty[xvi] it will offer some amount of protection to the vulnerable consumer who has not furnished any consideration towards the maturity of any advertisements into  a contractual relationship but is nevertheless affected by the mere viewing of such advertisements. It may also open a floodgate of law suits thereby stifling economic activities but it will offer vulnerable consumers the much needed protection and afford regulatory agencies the necessary parameters for achieving a balance.





END NOTES



[i] Akpan, Emaediong Ofonime is currently undergoing postgraduate studies at the University of Uyo and majors in Consumer Protection. She can be reached at akpanemaediongofonime@gmail.com.
[ii] King James, Easy Reading  Version :The Holy Bible , Genesis Chapter 3: 1 King James Version  G.E.M Publishing,   2001 p. 2-5. Eve the first woman according to Christian theological history was made out of man and both lived in the Garden of Eden.
[iv] A model example is Advertising Law of the People’s Republic of China 2015
[v] E Ekanem ‘No Longer at Ease: The Contract-Based Liability Posture of the Nigerian Law Toward Consumers of Hospitality Services’ (2015) Journal of Humanities and Social Science. Pp.10-19.
[vi] Malemi, E., Law of Tort, Princetown Publishing Company, Lagos, 1st ed. p. 267
[vii] (1932) AC. 562 at 599
[viii] The tort protects the consumer from unfair trade practices by manufacturers and other key players in the chain of distribution who put in the market potentially dangerous and shoddy consumer products, unwholesome and adulterated food, fake and substandard food and fake drugs.
[ix] (1985) 1 NWLR pt.4 p.739 – where the Plaintiff/Appellant sustained severe injuries from a brand of Kerosene refrigerator, which was sold to her by the defendant/Respondent.
[x] I Omadane Edegbo ‘An Assessment Of Consumer Rights In Nigeria: A Case Study of The Sachet Water Industry’ Masters’  Dissertation Ahmadu Bello University,
[xi] Dunlop Pneumatic Tyre Co. Ltd vs Selfridge Ltd.  (1915) AC 487 at 853
[xii] Sagay, I., (2000).Nigerian Law of Contract, Spectrum Law Series, Ibadan p. 489
[xiii] (1990) 2 AC 605
[xiv] E E Ekanem ‘No Longer at Ease: The  Contract-Based Liability Posture of the Nigerian Law Towards Consumers of Hospitality Services ’ (2015) Journal of Humanities and Social Sciences 20(9)pp10-19. Retrieved from www.iosjournals.org.Aceessed 1/1/2018.
[xv] Suit no: LD/359/2011. Retrieved from www.thenigerialawyer.com Accessed 1/6/2018.
[xvi] Suit no: LD/359/2011. Retrieved from www.thenigerialawyer.com Accessed 1/6/2018.



Akpan, Emaediong Ofonime
Emaediong Akpan is a postgraduate student passionate about consumer protection. Her interests also spans grey areas of Law including but not limited to IVF and cybercrime


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