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In The Supreme Court of Nigeria
On Friday, the 25th day of
January 2008
Before Their Lordships
S.C. 67/2002
Between
And
Judgement of the Court
Delivered by
Francis Fedode Tabai J.S.C
The suit was commenced at the Ughelli
Judicial Division of the High Court of then of Bendel State but now of Delta
State on or about the 18/3/91. The Plaintiff therein is the Appellant herein
while the Defendants are the Respondents herein. The Appellant claimed
against the Respondents jointly and severally as follows:
(a)
The sum of
(b)
The sum of
(c)
The sum of
(d)
The sum of
(e)
The sum of
Total sum claimed
Pleadings were settled and
exchanged. The actual trial itself involved the testimony of five witnesses
for the plaintiff and two for the defence. The parties through their counsel
addressed the court. By its judgment dated the 23/3/1994 the learned trial
Judge, W.A.O. Onoriobe. J. allowed the claim of the appellant against the 2nd
respondent with costs which he assessed at
Dissatisfied, the appellant
has come on appeal to this court. The original notice of appeal dated the 22nd
of June 1998 contained 11 (eleven) grounds of appeal. With the leave of this
court the appellant was granted the leave of this Court to file and argue
four additional grounds of appeal. And the parties through their counsel
filed and exchanged their briefs of argument. The appellant's brief was
prepared by O.J. Oghenejakpor. He also prepared the appellant's reply brief.
They were filed on the 2/8/04 and 11/12/06 respectively. Mr Oluyele Delano
prepared the 1st respondent's brief and it was filed on the
7/3/06. The 2nd respondent's amended brief was prepared by
Oluseye Opasanya and same was filed on the 9/3/06.
In his brief, the appellant
submitted six issues for determination which are formulated as follows:
1.
Whether in the circumstances of this case the Justices of the Court
of Appeal were justified in reversing the firm findings of fact of the trial
court that contaminated Fanta orange drink containing a cockroach and
a germ called Shigema tendered as Exhibit H in this proceeding caused the
plaintiff ailment of stomach ache resulting in vomiting and stooling which
led to his hospitalisation?
2.
Whether the Justices of the Court of Appeal were justified in
reversing the findings of the trial court that the Fanta orange Exhibit H
which caused the plaintiff ailment was manufactured and bottled by the 2nd
defendant who sold same to the plaintiff through the 1st
defendant their retailer?
3.
Whether the Justices of the Court of Appeal were justified in
reversing the findings of the trial court that the 2nd defendant
was in breach of duty of care owed to the plaintiff and liable for damages
for negligence?
4.
Whether the
learned Justices of the Court of
Appeal were right in holding that the 1st
defendant who is the
retailer that sold the contaminated Fanta orange Exhibit "H" which caused
plaintiffs ailment is a mere conduit pipe and hence not liable in negligence
for the sale of the defective and contaminated Fanta orange Exhibit "H".
5.
Whether the learned Justices of the Court of Appeal were right in
holding that there was no modicum of evidence on record to support the claim
for damages for pain, shock, agony and discomfort and reversing the award of
(6)
Whether on the totality of the case as borne out by the records of
appeal, the learned Justices of the Court of Appeal were justified in
reversing the judgment of the trial court and in coming to their judgment in
dismissing the plaintiff/appellant's case.
For the first respondent the
following four issues were submitted for determination.
1.
Whether the Court of Appeal was right by holding that the plaintiff
failed to prove that his illness was caused by drinking contaminated Fanta
orange drink produced by the defendant?
2.
Whether the contamination was occasioned by the carelessness of the 2nd
defendant in breach of its duty of care to the plaintiff?
3.
Whether the 1st Plaintiff was in breach of any
duty of care to the Plaintiff?
4.
Whether the Court of Appeal was right to set aside the award of
And on behalf of the 2nd
respondent, the following four issues for determination were also proposed:
1.
Whether the evidence adduced by the plaintiff proves that the alleged
contaminated Fanta drink was manufactured by the 2nd defendant?
2.
If the answer to issue 1 is in the affirmative, whether the Court of
Appeal was right in holding that there was no evidence showing that the
drink in question was the cause of the plaintiffs ailment.
3.
Whether the Justices of the Court of Appeal were justified in
deciding that the evidence before the court did not support the claim in
negligence?
4.
Whether the Court of Appeal was right that there is no modicum of
evidence on record to support the award by the Court of
First of all, let me react to
what appears to be a novel submission of learned counsel for the 1st
respondent. The submission is that in order to identify the correct issues
for determination one has to consider not only the grounds of appeal and the
decisions of the lower courts, but also the basic principles laid down, in
Donoghue's case. The settled
principle of law is that issues for determination in an appeal must relate
to the grounds of appeal filed and the judgment appealed against. Such
issues should not be framed in the abstract but must relate to the grounds
of appeal which represent the questions in controversy in the particular
appeal. See Western Steel Works Ltd v
Iron 7 Steel Workers Union of Nigeria (1987) 1 N.W.L.R. (Part 49) 284 at
304; Okonkwo v Okolo (1988) 2 N.W.L.R, (Part 179) 632; Olowosago v Adebanjo
(1988) 4 N.W.L.R. (Part 88) 275; Okpala v Ibeme (1989) 2 NWLR (Part 102) 208
at 220; Akilu v Fawehinmi (No.2) (1989) 2 NWLR (Part 102) 122 at 161.
Since the appellant insists by this appeal that the respondents are liable
in negligence for damages, the principles of
Donoghue v Stevenson (1932) AC 562
may be called into play on the question of causation. I do not think that
the principles in Donoghue v
Stevenson (supra) falls for consideration on the formulation of issues
for determination.
With respect to the issues for
determination proposed by counsel for the parties, the appellant's 6th
issue seems to encompass all other issues both of the appellant and the
respondents. It is whether on the totality of the case as borne out by the
evidence on record the Court of Appeal was justified in reversing the
judgment of the trial court and in coming to their judgment dismissing the
appellant's claim. I would therefore adopt the said issue as the main issue
for determination. In the course of this judgment, however I shall restate
the substance of the arguments of the parties as they are set out in their
respective briefs.
Under the appellant's issue 1,
references were made to the trial court's findings on Exhibit "H" and the
reversal of same by the Court of Appeal and submitted that there was no
legal basis for the interference since the findings of the trial court were
supported by the evidence and therefore not perverse. Reliance was placed on
Sha v Kwan (2000) 5 SC 178 at 194;
Akinloye v Eyilola (1968) NMLR 92 at 95; Lion Building Ltd v Shadipe (1976)
12 SC 135 at 152; Mogaji v Odofin (1978) 4 SC 91 at 93; Woluchem v Gudi
(1981) 5 SC 291 at 326-330; Ebba v Ogodo (1984) 4 SC 84; Balogun v Labiran
(1988) 3 NWLR (Part 80) 66; Shell BP Dev. Co. Nig Ltd v His Highness Pere
Cole & Ors (1978) 3 SC 183 at 194. Learned counsel for the appellant
referred to the finding of the trial court at page 82 of the record and
submitted that the finding is supported by the pleadings and evidence. He
also made reference to the reliance of the Court of Appeal on the issue of
bread and tea and contended that the question of the appellant's breakfast
of bread and tea was not made an issue in the pleading, submitting that the
court must restrict itself to the pleadings. The appellant relied on
Niger Construction v Okugbeni (1987)
4 NWLR (Part 67) 787 at 792; Lewis & Peat Ltd v Akhimien (1976) 7 SC 157 at
160-162; Nig. Engineering Works Ltd v Denlap Ltd & Ors (1997) 10 NWLR (Part
525) 481 at 591; Igwe v AICS
(1994) 8 NWLR Part 363, 459 at 481.
Learned counsel for the
appellant pointed out that the issue of bread and tea came up only in
cross-examination and submitted that evidence in cross-examination on
matters not pleaded goes to no issue.
He relied on Nsirim v Onuma
Construction Co. Ltd (2001) FWLR (Part 44) 405 at 416 and the reaction
of the learned trial judge at pages 81-82 of the record when the issue was
raised. Counsel further referred to the question of how well equipped the
laboratory at 24 Post Office Road Ughelli was and submitted that the
question was not an issue raised in the pleadings and therefore goes to no
issue. It was the submission of the Appellant that the court below reversed
the judgment of the trial court on issue not canvassed by the parties.
Under its issue two learned
counsel for the appellant referred to the pleadings of the parties including
admissions, the evidence of the parties particularly that of the 1st
respondent, Exhibits G, H, J and K. and argued that the trial courts finding
about the 2nd respondent being the manufacturer and bottler of
the contaminated Fanta orange drink Exhibit "H" is unassailable.
Arguing the 3rd
issue learned counsel for the appellant referred again to the pleadings and
the evidence and submitted that the 2nd respondent owed the
appellant a duty of care which duty it breached and therefore liable in
negligence to the appellant and the trial court correctly so found. He
argued therefore that the Court of Appeal was wrong in disturbing the
finding.
Under his issue 4 the
appellant raised the question of the 1st respondent's
liability. Both courts below found her not liable. According to the
trial court she was a mere "carrier". And the Court of Appeal described her
as a conduit pipe. It was argued that the 1st respondent having
admitted the sale of Exhibit "H" to the appellant for
With respect to the 6th
issue it was submitted that there was no appeal against the quantum of
Next is the argument of
learned counsel for the 1st respondent in
her brief. He concedes some submissions of the
appellant which I shall highlight later.
Apart from that his submissions centered on the
principles of causation as espoused in
Donoghue v Stevenson (1932) AC 562.
He pointed out what he regarded as lapses in the
evidence of the Appellant and his witnesses.
He pointed to the evidence of the
PW2 under cross-examination to the effect that the stooling and
vomiting could have been caused by cholera or
typhoid fever or indeed over eating and
submitted that the appellant did not exclude by evidence
the possibility of his illness having been caused
otherwise than by the Fanta orange drink.
It was submitted therefore that the finding of the
Court of Appeal cannot be faulted.
It was further argued that the appellant
had to prove that the cockroach was present in the bottle at the
time the drink left the 2nd
respondent's factory. Counsel referred to
Daniel’s
and Daniel’s v White (R) & Sons Ltd (1938) KBD
258 and
Clerk and Lindsell on Tort 16tb Edition at page 691
and submitted that where a defendant is able
to show that he has taken all
reasonable care in his production process he
would have successfully
rebutted negligence. He argued that although the
presence of the
cockroach in the Fanta orange drink gives rise to
the inference of the 2nd respondent's negligence, it was
sufficiently rebutted by the evidence of the DW2 about its reasonable care.
With respect to the 1st
respondent, it .was argued that she incurred no liability for negligence as
she was only an innocent retailer. The 1st Respondent was just in
as good a position as the Appellant to detect defect in the Fanta orange
just by visual examination of the bottle.
On the issue of the
On behalf of the 2nd
respondent the following represent the substance of the submissions of
learned counsel. It was the submission that where the medical evidence fail
to conclusively link the contaminated Fanta orange Exhibit “H” to the
ailment complained of, then the manufacturing company cannot be liable in
negligence. He referred to portion of the evidence of the PW2 and PW4 under
cross-examination and submitted that there was a total failure to link the 2nd
respondent's Fanta orange to the ailment suffered by the appellant. He
argued that the possibility of ailment having been caused by factors other
than Exhibit "H" was not excluded. Reliance was placed on
Nathaniel Ebenalu v Guinness Nig Ltd
(1979) 7-9 CCHJ Vol. 1. He argued therefore that the court was right in
reversing the judgment of the trial court. The appellant, he argued, failed
to prove that the 2nd respondent breach its duty of care to the
appellant.
With respect to the 1st
respondent learned counsel argued that there was no evidence on record
against the 1st respondent, she being only an agent to a
disclosed principal and who performed within the scope of her agency. For
this submission he relied on M.S.L.
(Nig) Ltd v N.M.A. (2000) 9 NWLR (Part 672) 391;
By way of conclusion learned
counsel submitted that in order to succeed the plaintiff/appellant must
prove:
1.
Duty of care
2.
Breach of duty of care and
3.
Damage resulting from the breach of duty of care.
He relied on
Donoghue v Stevenson (supra)
Merchantile Bank v Abusomwan (1986) 2 NWLR (Part 22),
In the appellant's reply brief
of argument, learned counsel for the appellant referred to the concessions
at page 5 of the 1st respondent's brief and submitted that in the
light of those concessions, the lower courts reversal of the decision of the
trial court cannot be sustained. He reproduced the entire evidence of the
PW2 and PW4 and contended that the respondent's statement of the evidence of
these witnesses contained distortions. It was his farther submission that
the evidence of the PW2 and PW4 under cross-examination on possible other
causes of stooling and vomiting was evidence in respect of which there was
no pleading and which was therefore inadmissible and cannot therefore be
relied upon. Learned counsel referred to the statement of Lord Macmillan in
Donoghue v Stevenson at page
622-623 and described same as a sweeping obiter and urged this court not to
be bound by it and that there should be a presumption of negligence and that
there should be justification of the maxim res
ipsa loquitor.
Let me now deliberate on the
case by examining the pleadings, the evidence of the parties, the judgment
of the trial court and the judgment of the Court of Appeal to see if the
reversal of the trial court's judgment by the Court of Appeal is
justifiable. First is the issue of causation. Was there on the balance of
probability, such evidence that linked the 2nd respondent to the
ailment and eventual hospitalisation of the plaintiff/appellant? The Court
of Appeal carried out some re-evaluation of the evidence for the appellant,
particularly the evidence of the appellant himself, the PW2, PW3 and PW4
under cross-examination and at pages 239-240 had this to say:
"The above answers to cross-examination of the PW2, PW3, PW4 and the
plaintiff/respondent/cross-appellant have greatly punctured the case for the
plaintiff/respondent that the Fanta orange drink complained of caused
injuries or any injury to the plaintiff/respondent/cross-appellant. These
answers do not rule out the possibility that other agents not from the
alleged Fanta caused the infection the plaintiff/respondent suffered from.
There was no evidence from the PW2 and PW4 at the trial that the
plaintiff/respondent by taking the alleged contaminated of Fanta orange
drink caused the injury pleaded or complained or caused any injury or
illness revealed by both the medical practitioner or the laboratory tests.
It seems to me that there was a total failure to link the 2nd
defendant/appellant's company with the alleged Fanta orange drink in
question nor the inference of duty of care. See Ogbimi v Guinness (Nig)
Ltd (1981) 1 FNL 67 at 69-70."
In the first place the
evidence elicited under cross-examination on which the Court of Appeal based
its findings quoted above was not founded on issues raised in the pleadings.
I am therefore persuaded by the submission of learned counsel for the
Appellant that they go to no issues for it is settled that evidence obtained
in cross-examination but on facts not pleaded is inadmissible. See
Dina v New Nigerian Newspapers Ltd
(1986) 2 NWLR (Part 22) 353, Agnocha v Agnocha (1986) 4 NWLR (Part 37) 366.
On this issue of whether the bread and tea taken by the appellant in the
morning of 13/2/91 could be a possible cause of the appellant's ailment and
eventual hospitalisation the learned trial judge at page 81 of the record
reacted as follows:
"With the greatest respect to the learned counsel to the 2nd
defendant this submission is unfounded and without merit if considered with
the established facts of this case. Firstly, the 2"d defendant
never pleaded the fact that the plaintiff injury was caused by bread and tea
taken at breakfast. No bread was tendered before me, nor is there any report
showing that the plaintiff suffered injury from any bread tendered before
me. Counsel submission was
based on unpleaded and speculative evidence and hence goes to no issue ...."
I agree entirely with the
above opinion of the learned trial judge. It embodies the true state of the
law on pleadings and evidence.
Still on this issue of
causation the learned trial judge embarked upon a reasonably extensive
evaluation of the evidence adduced before the court in the light of the
facts pleaded. Specifically, at pages 84-85 he examined paragraphs 12 and 13
of the 2nd respondent's statement of defence and paragraphs 3 and
7 of the 1st respondent's statement of defence the testimony of
the plaintiff as to the source of Exhibits "G" "H" and "K", the evidence of
the 1st respondent and made crucial findings. And after remarking
that the 2nd respondent failed to tender any evidence in proof of
paragraphs 12 and 13 he made the following findings:
“On the whole I accept the 1st defendant evidence given in
support of her pleadings that it was the crate supplied to her by the 2nd
defendant that she sold to the plaintiff on the 13/2/91. I also accept that
the 2nd defendant made the supply of Exhibit "G" to the 1st
defendant on the 9/2/91 as reflected in Exhibit "K", the Route Card. The
plaintiffs case is that the contaminated Fanta drink Exhibit "H" is taken
from the crate Exhibit "G". There is no contrary evidence to this averment
The crate was tendered before me as Exhibit "G". I saw and examined the
crate. The contaminated Fanta
taken half-way by the plaintiff was also tendered before me as Exhibit "H".
I saw the cockroach and other sediments in it I also saw another unopened
Fanta orange containing a fly in the same crate (Exhibit "G") tendered as
Exhibit "J" in this proceeding”
Continuing, the learned trial
Judge stated as follows:
"I
believe the evidence of the
plaintiff that the Fanta orange Exhibit "H" was taken from the crate of
minerals Exhibit "G" bought from the 1st defendant who is the
retailer of the mineral produced and bottled by the 2nd defendant
I found as a fact that the 2nd defendant bottler of the
contaminated Fanta orange Exhibit "H" which the plaintiff bought and
consumed on the 13/2/92 and which caused plaintiff stomach pain, vomiting
and stooling and led to the plaintiff admission in hospital I also held that
the 2nd defendant is the manufacturer of Exhibit "G" including
Exhibit "H" and "J" ....."
(See pages 85-86 of the
record)
The above findings and beliefs
are all supported by evidence on record
including
evidence from the
respondent. There was in the circumstances, no basis for any interference
with the findings as they were amply supported by the evidence on record.
Still on this issue of
causation, while both learned counsel for the respondents placed reliance on
the principle in Donoghue v Stevenson
(supra), learned counsel for the appellant advocated a shift from the burden
of proof on the injured party as stated in the obiter by Lord Macmillan.
Stating the duty of care owed to the ultimate consumer of a product by the
manufacturer Lord Atkin at page 599 of the report said:
"by the Scots and English Law alike an manufacturer of products, which he
sells in such a form as to show that he intends them to reach the ultimate
consumer in the form in which they left him with no reasonable possibility
of intermediate examination, and with the knowledge that the absence of
reasonable care in the preparation or putting up of the products will result
in an injury to the consumer's life or property owes a duty to the consumer
to take reasonable care."
On his part., Lord Thankerton
at page 603 of the report stated the legal relationship between the
manufacturer of some type of products and the ultimate consumer in the
following terms:-
"That the respondent (manufacturer), in placing his manufactured article of
drink upon the market has intentionally so excluded interference with, or
examination of the article by any intermediate handler of the goods between
himself and the consumer, with the result that the consumer is entitled to
rely upon the exercise of diligence by the manufacturer to secure that the
article shall not be harmful to the consumer. If that
contention be sound, the consumer,
on her showing that the article has reached her intact and that she has been
injured by the harmful nature of the article, owing to the failure of the
manufacturer to take reasonable care on its preparation prior to its
enclosure in the stated vessel, will be entitled to reparation from the
manufacturer."
Lord Macmillan spoke in the
same vein at page 622 of the report.
In this case it is not
contested that the Fanta orange drink exhibit "H" was manufactured and
bottled by the 2nd defendant. It was sealed in such a manner as
to exclude interference with or examination by an intermediate handler like
the 1st respondent. And the appellant received it in the form in
which it was bottled and sealed by the 2nd respondent. In such a
situation there is an implied warranty by the 2nd respondent to
the ultimate consumer that the contents of Exhibit "H" are safe for human
consumption. In such a circumstance, the manufacturer, which in this case is
the 2nd respondent, owes a duty of care to the appellant. And
once it is established that the appellant was injured by the contents of
Exhibit "H" that duty is breached entitling the appellant to reparation from
the 2nd respondent.
On that issue the learned
trial Judge at page 87 of the said remarked:
"The plaintiff is the final consumer of the Fanta orange drink Exhibit "H"
manufactured and bottled by the 2nd defendant. Plaintiff is a
person closely and directly affected by the act of the 2nd
defendant and he owes the consumers including the plaintiff the duty of care
or that the drinks manufactured by them should not do damaged to the
consumers."
I have no cause to fault this reasoning. The consequence therefore is that
there was equally no basis for the conclusion of the Court of Appeal at page
241 of the record to the effect that causation was not established.
Next is the question of the damages awarded. At page 244 of the record the
Court of Appeal found in respect of the damages awarded by the learned trial
judge. The court said:-
"I must say that there is no modicum of evidence to support the claim that
the plaintiff/respondent/cross appellant suffered any shock pain agony and
discomfort as a result of the consumption of the contaminated Fanta orange
drink manufactured and bottled by the 2nd defendant/appellant.
Thus the above findings of the learned trial judge are not borne out of the
evidence adduced before the court by the respondent/cross-appellant. "
It is clear from the judgment of the Court of Appeal that it was prodded
into the above erroneous conclusion because of its heavy reliance on the
evidence extracted under cross-examination but which was not in support of
any of the issues raised in the pleading. On the issue of the damages
awarded the learned trial judge stated at page 91 of the record thus:
"The plaintiff also claimed the sum of
Earlier the learned trial judge had allowed some other heads of claim and
dismissed some. With respect to the special damages awarded there is
practically no challenge. The only area of some complaint is with respect to
the award of
(a)
the trial court proceeded on a wrong principle of law; or
(b)
the amount awarded is so high or so low as to make it an entirely
erroneous estimate of damages to which the claim is entitled.
See
Ogunkoya v Peters (1954) 14 WACA 504; Soleh Boneh Overseas (Nig) Ltd v
Ayodele (1989) 1 NWLR (Part 199) 549.
It is also settled that the award of general damages is essentially that of
the trial court's exercise of discretion and being a discretion an appellate
court must ordinarily be circumspect in an invitation to interfere with the
amount awarded. In the award of general damages therefore it is not for the
appellate court to interfere on the promise that on a balance of opinion
that a higher or low amount of award would have been preferred. See His
Highness Uyo I v Egware (1974)
1 AH NLR 293 at 295; Nwachukwu v Egbuchu (1990) 3 NWLR (Part 139) 435; Bello
v Ringim (1991) 7 NWLR (Part 206) 668.
In this case the Court of Appeal formed his opinion on the propriety or
otherwise of the amount of
On the whole, it is my view that the Court of Appeal was in grave error to
interfere with the very reasoned judgment of the learned trial judge. And in
view of all I have been saying above I hold that there is merit in the
appeal which ought to be and is hereby allowed. The judgment of the Court of
Appeal be and is hereby set aside and that of the trial court restored in
its entirety. I assess the costs of this appeal at
Judgment delivered by
Aloysius Iyorgyer Katsina-Alu.
JSC
I have had the advantage of reading in draft the judgment delivered by my
learned brother Tabai J.S.C. I agree with it and, for the reasons he has
given I too, allow the appeal. I abide by the order as to costs.
Judgment delivered by
George Adesola Oguntade. JSC
I have had the advantage of reading in draft a copy of the lead judgment by
my learned brother Tabai J.S.C. I agree with him that this appeal ought to
be allowed. It is necessary for me to say here that the court below would
appear to have put an unreasonably heavy and unnecessary burden on the
plaintiff by its insistence on the need for the plaintiff/respondent to
prove how well equipped the laboratory at 24 Post Office Road is, to enable
P.W.4 carry out accurately the sensitive tests he said he did as per
exhibits ‘B’ and 'D'. There was no issue joined at the trial as
to whether or not the laboratory of P.W.4 was well equipped.
The pleading of the plaintiff/appellant was that he drank the Fanta Orange
from the bottle purchased from the 1st defendant on 13-2-91.
Hearing in the case did not commence until 24-3-92 which was about a year
after the plaintiff/appellant drank the Fanta orange said to be
contaminated. But strangely, the court below at page 240-241 of its judgment
reasoned thus:
“Furthermore the cockroach and fly said to be found in Exhibits H and J
(Fanta bottles) were not tendered before the trial court by anyone. It is
not just sufficient as was said at page 53 line 34 of the evidence of the
plaintiff that the content of the Fanta is exhibit 'D'”
The trial court in its judgment at pages 81-82 of the record in accepting
the evidence called by the plaintiff in support of his case said:
"Plaintiff testified to the fact that he bought Exhibit H, drank (sic) he
had stomach pain and was rushed to hospital where he was admitted and
treated. He tendered Exhibit 'A' which supports that plaintiff was 1st
examined at the Mariere Memorial Hospital also called in these proceedings
as General Hospital and thereafter he was admitted at Galeo Clinic Ughelli.
P.W. 2 is the Medical Director of Galeo Clinic. He testified as to the
details of the treatment he gave to plaintiff and the result of the
laboratory test of plaintiff stool and the sample of the Fanta drink Exhibit
H. He tendered Exhibits B, C and D, P.W.4 is the laboratory scientist who
examined these samples and issued Exhibits B & D and identified his
signature before me. P.W.3 is the wife of the plaintiff she gave detailed
and vivid evidence of all the events leading to her husband's
hospitalization and treatment. The evidence of the plaintiff and his
witnesses were cogent, convincing and reliable. I watched their demeanour
and they appeal to me as witnesses of truth. I believe them. The defence on
their part led no evidence in rebuttal to the evidence adduced by the
plaintiff and their general traverse as in paragraphs 2 and 11 of their
statement of defence will not tilt the scale of justice in their favour. In
Imana v Robinson [1974] 4-4 SC 1
at 8,
per Anioagolu J.S.C (as he then was) said 'Not having given evidence either
in support of her pleading or in challenge of the evidence of the accepted
the facts adduced by the plaintiff not withstanding her general
traverse...'"
It cannot escape notice that the defendant as stated in the passage above
did not call any evidence in rebuttal of the evidence called by the
plaintiff. The trial court accepted the plaintiff’s evidence and that of his
witnesses. It was not open to the court below to disparage settled issues of
fact based on the evidence accepted by the trial court. The ascription of
probative value to the evidence called by parties is the exclusive function
of the trial court and the appellate court has no business interfering with
and dismantling the solemn findings of facts made by the trial court. See
Fatoyinbo v Williams (1956) 1 FSC 87; Akinloye v
Eyiyola (1968) NML.R. 92:
I would therefore allow this appeal as in the lead judgment of my
learned brother Tabai J.S.C. I abide by the order on costs.
Judgment delivered by
Walter Samuel Nkanu Onnoghen J.S.C
This is an appeal against the judgment of the Court of Appeal holden at
Benin City in appeal No CA/B/160/95, delivered on the 23rd
day of April 1998 in which it allowed the appeal of the 2nd
defendant/appellant and dismissed the cross appeal of the present appellant
and the entire suit.
The appellant as plaintiff in suit No UHC/45/91 claimed the following
reliefs against the defendants therein and respondents in the -instant
appeal:
1.
The sum of
2.
3.
The sum of
4.
The sum of
5.
The case of the appellant is that on the 13th day of February,
1991 he returned from his place of work feeling very hungry and thirsty and
as there was no food, he reached out for a bottle of Fanta orange drink from
a crate of mineral he purchased from the 1st defendant earlier
that day.
While drinking the Fanta orange he allegedly felt some sediments and rubbish
down his throat and stopped half way to take a closer look at the contents
of the bottle only to discover that the bottle contained a dead cockroach.
Appellant contends that the quantity he had consumed gave him much
discomfort which led to incessant spitting and loss of appetite resulting in
his going to bed that night without dinner, that at midnight the
plaintiff/appellant developed stomach pain which attracted the attention of
his neighbours including the 1st defendant/respondent who lived
in the same compound with the appellant; that the 1st respondent
was informed that the Fanta orange purchased from her was the cause of the
problem.
The appellant was subsequently rushed to the government general hospital
known as Mariere Hospital but was eventually further rushed to a private
hospital as the service at the general hospital was too slow. The private
hospital is Galeo clinic managed by Dr. Alfred Emasoga who testified as PW.2
in the suit. It is the case of the appellant that PW.2 found, as a result of
his investigations or diagnosis that the appellant was suffering from food
poisoning after sending a sample from the half consumed Fanta orange and
stool of the appellant for laboratory analysis. PW.4 is the medical
laboratory scientist who performed the lab tests on the appellant's stool
and Fanta orange drink and produced exhibits B & D in which he found that
the stool and fanta orange drink both had a common germ known as Shigella
and that this caused the stomach pain and accordingly prescribed the
appropriate remedy which PW.2 applied and the appellant had a relief. The
crate of mineral in question was tendered and admitted as exhibit G while
the half consumed bottle of Fanta orange drink was admitted as exhibit H.
Apart from exhibit H, there was another bottle of Fanta orange which was
unopened but contained a fly in the same crate of minerals which bottle was
admitted as exhibit J.
The 1st respondent admitted selling the crate, exhibit G. to the
appellant and that she knew of the appellant's ailment. The 1st
respondent however insisted that she did not tamper with or adulterate the
bottled drinks supplied to her by the 2nd respondent on 9/2/91
and tendered the route card issued to her by the 2nd respondent
as exhibit K.
The 2nd respondent testified as DW1 on the manufacturing process
of the products of the 2nd respondent and denied liability for
the ailment of the appellant.
On the 23rd day of March 1994 the High Court of Delta State,
holden at Effurum and presided over by W.A.O. Onoriobe. J. delivered a
judgment in which he held that the particulars of negligence pleaded by the
appellant were proved and entered judgment in favour of the appellant
finding therein that:
1.
the plaintiff suffered damages from the consumption of the Fanta
orange which caused the plaintiff's ailment.
2.
the 2nd defendant is the manufacturer of the contaminated
Fanta orange drink - exhibit H, which caused the ailment of the plaintiff.
3.
the 2nd defendant is negligent in the manufacturing of the
Fanta orange drink exhibit H as they bottled impurities in the said Fanta
orange which caused the plaintiff the ailment.
4.
the 1ST defendant as a retailer of the Fanta orange drink
was a mere courier therefore not liable in negligence.
5.
the 2nd defendant is liable to the plaintiff in the sum
of:
(a)
(b)
(c)
The above judgment resulted in an appeal by the 2nd defendant and
a cross appeal by the plaintiff. As stated earlier in the judgment, the
appeal was allowed while the cross appeal was dismissed, giving rise to the
instant appeal, the issues for the determination of which have been
identified by the learned counsel for the appellant, O.J. Oghenejakpor.Esq.
in the amended appellant's brief of argument filed on 2/8/04 as follows:-
"1.
Whether in the circumstances of this case, the Justices of the Court
of Appeal were justified in reversing the firm findings of fact of the trial
court that the contaminated Fanta orange drink containing a cockroach and a
germ called shigella tendered as Exhibit H in this proceedings caused the
plaintiff ailment of stomach ache resulting in vomiting, stooling which led
to his hospitalization? (original grounds 1,2,3,4,5,7 & 8);
2.
Whether the Justices of the Court of Appeal were justified in
reversing the findings of the trial court that the fanta orange Exhibit H
which caused the plaintiff ailment was manufactured and bottled by the 2nd
defendant who sold same to the plaintiff through the 1st
defendant their retailer? (Original Grounds 6);
3.
Whether the Justices of the Court of Appeal were justified in
reversing the findings of the trail court that the 2nd defendant
was in breach of duty of care owed to the plaintiff and liable for damages
for negligence? (Additional Ground 1);
4.
Whether the Justices of the Court of Appeal were right in holding
that the 1st
defendant who is the retailer that sold the contaminated Fanta orange
Exhibit H which caused the ailment is a mere conduct pipe and hence not
liable in negligence for the sale of the defective and contaminated Fanta
orange Exhibit H (original ground 10).
5.
Whether the Learned Justices of the Court of Appeal were right in
holding that there was no modicum of evidence on record to support the claim
for damages for pain, shock, agony and discomfort and reserving the award of
6.
Whether on the totality of the case as borne out by the records of
appeal, the Learned Justices of Court of Appeal were justified in reversing
the judgment of the trail court and in coming to their judgment in
dismissing the plaintiff/appellant case (additional grounds 3)"
On the other hand, learned counsel for the 1st respondent Oluyele
Delano Esq, in the 1st respondent's brief of argument filed on
7/3/06 identified the following four issues for the determination of the
appeal:
"1.
Whether the Court of Appeal was right by holding that the plaintiff
failed to prove that his illness was caused by drinking contaminated Fanta
orange drink produced by the defendant?
2.
Whether the contamination was occasioned by the carelessness of the 2nd
defendant in breach of its duty of care to the plaintiff?
3.
Whether the 1st defendant was in breach of any duty of
care to the plaintiff?
4.
Whether the Court of Appeal was right to set aside the award of
The learned counsel for the 2nd respondent Oluseye Opasanya Esq,
also identified four issues for determination of the appeal in the 2nd
respondent's brief of argument filed on 9/3/06. These are as follows:-
"1.
Whether the evidence adduced by the plaintiff proves that the alleged
contaminated Fanta drink was manufactured by the 2nd defendant.
2.
If the answer to issue is in the affirmative, whether the Court of
Appeal was right in holding that there was no evidence showing that the
drink in question was the cause of the plaintiff's ailment.
3.
Whether the Justices of the Court of Appeal were justified in
deciding that the evidence before the court did not support the claim in
negligence.
4.
Whether the Court of Appeal was right that there is no modicum of
evidence on record to support the award by the trial court at |