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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
However, the learned counsel for the appellant in the reply brief filed on
11/2/06 has contended that the issues formulated by learned counsel for the
respondents as reproduced above do not arise from the grounds of appeal
filed, neither do they arise from the judgment of the Court of Appeal which
is judgment being appealed against and thirdly that the issue of
contributory negligence and the like raised by the 2nd respondent
in this Court were not raised in their statement of defence nor formed part
of the case decided by the courts nor formed part of the grounds of appeal
of the appellant and consequently incompetent.
It is settled law that both the parties and the court are bound by the
pleadings filed in the suit and are not allowed to go outside the pleadings
either in introducing evidence or in deciding the issues in controversy. At
page 16 of the 2nd respondent's amended brief of argument,
learned counsel for the 2nd respondent raised the issue of
contributory negligence which he discussed at length but there is nothing in
the pleadings of the parties to ground that issue. That being the case it is
obvious that the issue as to whether the appellant was contributorily
negligent by not looking at the contents of the Fanta orange drink before
consuming same when there is no pleading in support of same, grounds to no
issue.
It is the submission of learned counsel for the appellant that the learned
Justices of the Court of Appeal were not justified when they overturned the
findings of fact of the trial court that the Fanta orange drink admitted as
exhibit H caused the plaintiff/appellant ailment/stomach ache, vomiting and
stooling which led to the plaintiff's hospitalization; that the lower court
was not justified in setting aside the finding of the trial court that the 2nd
defendant is the manufacturer and bottler of the contaminated Fanta orange
drink, exhibit H which was sold to the plaintiff through the 1st
defendant; that the lower court was also wrong in holding that the plaintiff
did not prove a case of negligence against the 2nd defendant that
the lower court was in error in coming to the conclusion that the 1st
defendant is a mer6 courier or conduit pipe and therefore bears no
responsibility to the plaintiff; and that the lower court was in error in
setting aside the award of
On his part, it is the submission of learned counsel for the 1st
respondent that the plaintiff failed to prove, on the balance of probability
that the defendant's product to wit Fanta caused him injury; that the 2nd
defendant on the other hand was able to establish that it took reasonable
care in its production process and as such was not in breach of its duty of
care to the plaintiff; that the 1st defendant took no additional
responsibility for the Fanta and as such was not in breach of her duty of
care to the plaintiff and that there was no reliable proof that the
plaintiff suffered shock and pain as to entitle him to damages awarded by
the trial court, and urged the court to dismiss the appeal.
On his part, learned counsel for the 2nd respondent submitted
that the plaintiff failed to produce evidence to prove that the Fanta orange
drink in question was manufactured by the 2nd respondent and that
it is not enough for the 1st respondent to have testified to the
fact that the crate from which the said drink was taken was one of those
supplied to her by the 2nd respondent; that the appellant did not
prove that his ailment was caused by the alleged contaminated drink; that
where there is more than one probable cause of the ailment or injury
complained of the plaintiff must establish that the defendant's action is
the substantial or material cause of the injury alleged, relying on
Mcghee v National Coal Board, (1971) 1WLR1; that PW2
admitted that the symptoms observed in the plaintiff could be the result of
food poisoning arising from the consumption of "any other kind of food" and
that when the case is viewed in the light of the evidence of PW3 that the
plaintiff ate bread and drank tea on the fateful day, it becomes evident
that the food poisoning could have been caused by anything other than the
Fanta allegedly drunk by the plaintiff; that the plaintiff did not prove
that the damage he allegedly suffered resulted from the failure of the 2nd
defendant to take reasonable care and that where there is a failure to so
establish the link, an action in negligence must fail; that the plaintiff
did not establish any breach of the duty of care neither has he proved any
damage resulting from the alleged breach and finally that there is no
evidence or enough evidence support of the claim for damages for pain, shock
etc and urged the court to dismiss the appeal.
It is settled law that the evaluation of evidence and ascription of
probative value thereto is the domain of the trial court and that an
appellate court is always reluctant to interfere with the findings of fact
by the trial court except when the same was made without regard to the
evidence adduced or is perverse or not supported by the evidence or contrary
to substantive law, or that of procedure, etc, etc. It is therefore clear
that in appeals against the finding of facts the issue of credibility of the
witnesses who testified at the trial cannot be taken before the appellate
court.
In the instant case, the trial court heard the evidence and made findings of
fact and believed the evidence of PW2, and PW4 and found as, a fact that the
Fanta orange consumed by the appellant caused the ailment, and entered
judgment for the appellant as plaintiff. Now the findings of fact by the
trial court were reversed by the lower court resulting in the instant
appeal. The trial court had made the following specific finding of facts
based on the pleadings and evidence before the court, at page 83:
"I therefore found as a fact that the plaintiff took the Fanta orange drink
Exhibit "H" which gave him stomach pain and led to vomiting and stooling and
was treated in the hospital by PW2. I accept that plaintiff stool was tested
along with the sample of the Fanta orange Exhibit "H" and that plaintiff
ailment was caused by the Fanta orange drink which is contaminated and
contained a bacterium called "Shegella". I therefore hold that the plaintiff
suffered damage as a result of the consumption of Exhibit "H".
The above findings were set aside by the lower court when it held, at pages
239 - 240 of the record as follows:
"Those answers do not rule out the possibility of other agents not from the
alleged Fanta caused the infection, the plaintiff/respondent suffered from.
There was no evidence from PW2 and PW4 at the trial that the
plaintiff/respondent by taking the alleged contaminated Fanta orange drink
caused the injury pleaded or complained of or caused any injury or illness
revealed by both medical practitioner or laboratory test"
The question is whether the lower court was right in reversing the findings
of the trial court on the issues involved or whether the findings of the
trial court is not supported by the evidence on record. It is settled law
that where evaluation of evidence does not involve the credibility of the
witness who testified at the trial an appellate court is in as good a
position as the trial court to evaluate the evidence on record and where
necessary reverse the findings of the trial court particularly where the
same are demonstrated to be perverse-See
Akinloye v Eyiyola (1968) NMLR 92 at 95; Mogaji v Odofin (1978) 45.C 91 at
93: Ebba v Ogodo (1984) 4 S.C 84; Wolichern v Gudi (1981) 5.S.C 291 at 326 -
330
etc, etc.
In this case, the trial court had found at page 82 of the record thus:-
"The evidence of the plaintiff and his witnesses were cogent, convincing and
reliable. I watched their demeanour and they appear 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 reversing the findings the lower court held that Exhibits "H & J"
were not tendered contrary to the evidence on record. That the
plaintiff/appellant ought to have sent bread and tea for laboratory tests to
prove that they did not cause the ailment; that bread and tea was taken
along with the Fanta orange by the appellant whereas such facts were never
pleaded nor evidence given in support of same; that there is no evidence of
the adequacy of the laboratory firm that conducted the tests on the
appellant's stool and the remnant of the consumed Fanta orange drink and
that it is the duty of the plaintiff/appellant to prove that the bread and
tea did not cause his ailment. From the record the entire crate of mineral
purchased by the appellant was tendered and admitted at page 53 of the
record as Exhibit "G" without objection while the Fanta orange
drink with the cockroach partially consumed by the plaintiff was admitted as
Exhibit "H" also at page 53. Also tendered and admitted at the
same page 53 of the record as Exhibit "J" is the unopened
Fanta orange drink with a dead fly therein and the Learned Trial Judge made
use of the Exhibits in his judgment at page 86 of the record when he stated
thus:-
"That the crate was tendered before me as Exhibit "G" I saw and examined the
crate. The contaminated Fanta taken half way by the plaintiff is 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 his proceeding"
From the above, it is very clear that the lower court was obviously in error
when it held that the said items were not tendered or before the trial court
and that error is very grave.
On the taking of bread and tea by the plaintiff along with the Fanta there
is nothing like that on record and the fact that bread and tea was taken by
the plaintiff along with the Fanta orange drink was never pleaded and
therefore ground to no issue at all. On the issue of the onus to send any
bread and tea for laboratory test or to prove that the bread and tea did not
cause the ailment of the appellant, it has been held that the matter was
never pleaded by either party and therefore not relevant and the lower court
was in error when it held at page 240 of the record that .......
"it is the plaintiff/respondent who should have produced the
bread and tea he admitted he took in the morning for laboratory test to show
that it was not contaminated".
When a fact is not pleaded, it cannot be relevant to the determination of a
case. In the instant case, none of the parties pleaded that the ailment of
the appellant was caused by the bread and tea taken at breakfast. The case
of the plaintiff, both on the pleading and evidence, however, remains that
it was the contaminated Fanta orange drink, Exhibit "H" that caused his
ailment and he proved, to the satisfaction of the trial court that this was
so - there is laboratory test to confirm that the same bacteria found in the
half consumed Fanta orange drink was also found in the appellant's stool and
that the bacteria or germ so found caused the stomach ache, vomiting and
stooling suffered by the appellant. What else does the lower court want
having regard to the state of the pleadings of the parties and the evidence
on record?
It should, however, be noted that the question whether or not appellant
consumed bread and tea for breakfast on the day in question arose from the
cross examination of PW3, the wife of the appellant. It has been argued very
forcefully, as usually is the case, that under cross examination the sky is
the limit and that evidence elicited there from can be used in the
proceedings. While that proposition remains good law and of general
application, it is, like every general principles of law, subject to
exceptions. Since the principle fall within the domain of the Law of
Evidence, it follows that the principle of relevance in admissibility of
evidence in any proceeding is crucial and the fact that any fact which the
said evidence is intended to prove or establish must have been pleaded,
otherwise it grounds to no issue must equally be taken into consideration;
it does not matter whether the said evidence came through evidence in chief
or under cross examination the fact must be pleaded. It therefore follows
that there is really a limit to cross examination which is designed to
ensure that only relevant and pleaded facts are admissible and can be made
use of in the proceedings.
From the above, it is very clear that the lower court did not reverse the
findings of fact by the trial court under known legal principles relevant
thereto which renders the reversal erroneous and liable to be set aside as
the same has resulted in a miscarriage of justice, I therefore restore the
findings of fact made by the trial court.
It is for the above reasons and the more detailed ones contained in
the-lead judgment of my learned brother Tabai, J.S.C that I agree that the
appeal be allowed. I order accordingly and abide by the order as to costs
contained in the said Lead Judgment.
Appeal allowed.
Judgment delivered by
Ibrahim Tanko Muhammed J.S.C
The plaintiff at the Ugheili Judicial Division of the High Court of Justice
of the then Bendel State made the following claim against the defendants:
"1.
The sum of
2.
3.
The sum of
4.
The sum of
5.
Pleadings were filed and exchanged. Trial commenced on 24th
March, 1992. Four witnesses were called by the plaintiff. The 1st
defendant called no witness but testified on his own behalf. 2nd
defendant called one witness who testified in his favour. Parties addressed
the trial court, at the conclusion of the trial, the learned trial judge
delivered his judgment on 23rd March, 1994. He found that the
particulars of negligence pleaded by the plaintiff were proved. He
consequently granted most of plaintiffs reliefs.
Dissatisfied the 2nd defendant appealed to the Court of Appeal,
Benin Division. The plaintiff also cross-appealed challenging the dismissal
of the case against the 1st defendant and the refusal of the
trial court to award some of the heads of damages. At the end of hearing,
the court below reversed the findings of the trial court.
Dissatisfied further, the plaintiff appealed to this court on ten original
and four additional grounds of appeal.
The following six issues were distilled by the appellant in his brief of
argument. They are 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 shigelia tendered as Exibit 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
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 cause 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 Trial Court that the 2nd defendant
was in breach of duty of care owed to the plaintiff and liable for damages'
for negligence? (Additional grounds 1)
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. Exibit H which caused plaintiff ailment is a mere
conduit pipe and hence not liable in negligence for the sale of the
defective and contaminated Fanta orange Exibit H. (Original grounds 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 in reversing 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 Trial court and in coming to their judgment in
dismissing the plaintiff/appellant case. (Additional Grounds 3)."
The 1st respondent on his part formulated four issues. They are
as follows:
"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 2nd respondent formulated four issues as well. They 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 1 is in the affirmative, whether the Court of
Appeal was light 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 of
The fact giving rise to this appeal as per the plaintiff/appellant's version
is that on the 13th of February, 1991 the plaintiff returned from
work very hungry and thirsty and as the food was not ready he reached out
for a bottle of Fanta orange drink contained in the crate of mineral
purchased from the 1st defendant earlier that day. As he was
goiging the Fanta orange drink he felt some sediments and rubbish down his
throat and he stopped the drink half way. On a closer look he discovered
that the bottle contained a dead cockroach. The plaintiff had taken enough
of the mineral and this gave him discomfort leading to his incessant
spitting and loss of appetite. Plaintiff went to bed without his dinner. At
the midnight, which is the early hours of 14/2/1991, plaintiff started to
develop stomach pain and later found himself groaning in pain. This
attracted
neighbours
including the 1st defendant who was sharing the same compound
with the plaintiff. She was informed that the Fanta orange drink bought from
her was the problem.
Early in the morning the plaintiff was rushed to the Government general
hospital, which is known as Mariere hospital but as the treatment at general
hospital was becoming sluggish he was rushed to a private hospital known as
Galeo clinic managed by Dr. Alred Emasoga PW2. PW2 preliminary examination
gave a symptom of food poisoning and on his inquiries it was disclosed that
the plaintiff took a Fanta orange drink which he took half way. He sent for
the Fanta orange drink taken half way and PW3 the wife of the plaintiff went
and fetched the Fanta orange drink. The doctor took the sample of the Fanta
orange drink and the stool of the plaintiff for laboratory test.
PW4, a medical laboratory scientist is the owner of the laboratory who
performed the test on plaintiffs stool and the Fanta orange sent by PW2. He
produced Exhibits B & D in which he found from his scientific analysis that
the stool and the Fanta orange had a common germ called shigella, which
caused the stomach pain and prescribed the medical solution to the ailment,
which PW2 applied and succeeded. The crate of mineral bought from the 1st
defendant was tendered as Exhibit G while the Fanta orange taken half way by
the plaintiff was tendered as EXHIBIT H. There was another unopened Fanta
orange bottle containing a fly in the same crate and was tendered as EXHIBIT
J.
1st defendant admitted selling crate Exhibit G to the plaintiff
and confirmed that she knew plaintiff's ailment. She however insisted that
she did not adulterate the drinks supplied her by the 2nd
defendant. She maintained that Exhibit G was supplied to her by the 2nd
defendant on 9/2/1991 and tendered the route card issued to her by the 2nd
defendant showing the supply as Exhibit K.
2nd defendant did not give evidence to rebut the case of the
plaintiff as to the cause of plaintiff’s ailment nor led evidence as to the
source of the Fanta orange. They led no evidence in support of paragraphs 12
and 13 of their statement of defence, which was the main thrust of their
defence. Their evidence through DW1 superficially torched on their
manufacturing process and never answered the life issues involved at the
trial.
At the end of hearing, the learned trial judge held that it was the Fanta
orange drink Exhibit 'H' that caused the plaintiffs ailment. The court below
overturned the trial court's finding as above on the ground that the
plaintiff failed to prove that the Fanta orange caused his ailment and
hospitalization and that the defendants were not liable in negligence to the
plaintiff.
In agreeing with my learned brother Tabal, J.S.C in allowing the appeal., I
think, I should stress the point that this case is purely on the torts of
negligence. Alderson B, in the old case of
Biyth v Birmingham Waterworks Co. (1856) 11 EXCH. 781 at 784,
defined negligence as follows:
"Negligence is the omission to do something which a reasonable man, guided
upon those considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and reasonable man
would not do."
Seventy eight years thereafter, Lord Wright had this to say in defining
negligence:
"In strict legal analysis, negligence means more than heedless or careless
conduct, whether in omission or commission. It properly connotes the complex
concept of duty, breach and damage thereby suffered by
the person to whom the duty was owing."
(underlining supplied for emphasis)
See the case of
Lochgelly Iron and Coal Co. v M'Mullan (1934) A. C. 1 at p. 25.
The latter definition spells out for us the three basic components of the
torts of negligence:
(a)
duty of care
(b)
breach of the duty of care
(c)
damage caused by the breach.
My sole aim of laying this foundation is in order to afford me appreciate
the findings made by the two courts below
vis-a-vis
the legal
principles involved
in the
law of
negligence with
reference to the three basic components stated above. For instance, courts
of law are concerned in a case of negligence with the actual relations which
come before them in actual litigation and it is sufficient to say whether
the duty exists in those circumstances. If it exists, the question that
follows then is: was the defendant under any duty of care at all, and if so,
did he observe the standard required in the circumstances of the case?
In the present appeal, it was found by the trial court that it was
the Fanta orange drink containing cockroach and a germ "shigella", Exh. 'H',
bought from the 1st defendant that caused the appellant's ailment
of stomach ache
resulting in
vomiting and
stooling which
led to
his hospitalization. Permit me my Lords, to quote the exact holdings
of the learned trial judge on same:
"In this case defendants offered no evidence whether expert or otherwise to
challenge the plaintiff and his witnesses nor were they discredited under
cross-examination. I therefore found as a fact that the plaintiff took the
Fanta orange drink Exhibit "H" which gave him stomach pain and led to
vomiting and stooling and was treated in the hospital by PW2.
I accept that plaintiff ailment was caused by the Fanta orange drink, which
is contaminated and contained a bacteria called "Shigelia". I therefore hold
that the plaintiff suffered damage as a result of the consumption of Exhibit
'H'."
While concluding his summing up of the evidence before him, the learned
trial judge stated:
"On the whole, I accept 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 13/2/1991 ... I also accept that
the 2nd defendant made
the supply of EXHIBIT G to the 1st Defendant on 9/2/91 as
reflected in Exhibit K, the route card. The plaintiff case is that the
contaminated Fanta drink Exhibit H is taken from the crate Exhibit G. There
is no contrary evidence to this averment. That crate was tendered before me
as Exhibit G. I saw and examined the crate. The contaminated Fanta taken
half way by Plaintiff is 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 Exibit J
in this proceeding.
I believe the evidence of the Plaintiff that the Fanta orange Exhibit H was
taken from the crate of minerals Exhibit 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 13/2/91 and which caused plaintiff stomach pain in vomiting and stooling
and led to plaintiff admission in the hospital. I also hold that the 2nd
defendant is the manufacturer of Exhibit G including Exhibit H and J."
Earlier on, the 1st respondent averred in her statement of
defence
admitting that she sold the Fanta drink to the appellant and that the Fanta
drink was supplied to her by the 2nd respondent. Below are the
averments:
"3.
the defendant admits paragraph 5 only to the extent that plaintiff
bought a crate of minerals containing Fanta orange, Fanta tonic and coca
cola from the defendant on or about 13th February, 1991.
4.
In answer to paragraphs 6 and 7 of the statement of claim the
defendant avers that it was plaintiff's wife who came to her that one of the
bottles of Fanta she sold to plaintiff which the plaintiff drank was found
to contain some sediments.
5.
Further that the next day defendant later heard that the plaintiff
had taken ill and was in hospital but defendant is not in a position to know
what caused plaintiff's illness as the extent.
6.
The defendant further denies paragraphs 8 and 9 of the statement of
claim and in further answer to the said paragraphs stated that she was not
careless in selling any drinks to the plaintiff.
7.
The defendant will contend at the trial, that [I] she neither the
manufacturer (sic) nor the bottler of the alleged drinks or any drink I'll]
All the mineral drinks that is, Fanta tonic and orange, cocacola and sprite
she sells are supplied by the 2nd defendant [i] The crate of
mineral drinks mentioned in paragraph 3 above was among the crates supplied
by the 2nd defendant on or about 9/02/91.
8.
In further traverse the defendant aver (sic) that the sells (sic) her
drinks in the same condition as they are supplied and has never doctored or
in any way tempered with the drinks she sells.
9.
The defendant shall contend at the that that the plaintiff has no
claim against her in law or equity.
10.
the defendant shall further contend at the trial that she was neither
negligent nor liable for damages as claimed in paragraph of the statement of
claim and shall urge the court to dismiss the claim with costs."
In her evidence in chief, the 1st defendant admitted that she
sold the Fanta drink to the appellant. This is what she said:
"I am a trader. I trade provisions, cosmetics and soft drinks. I know the
plaintiff. He is my customer. I also know 1st (sic) defendant.
They are my customers. They supply me soft drinks, on 13th
February, plaintiffs wife bought a crate of Coca-cola Fanta orange. Later
plaintiff's (sic) drink Fanta and found something inside and showed it to
me. Later about 12 midnight, she came to inform me that her husband has been
ill and that he has been taken to the hospital. She informed me that the
cause was due to the drinks he took. The crate of minerals was supplied by 2nd
defendant. The 2nd (sic) supplied the drinks on 9th
February, 1991."
While being cross-examined, 1st defendant told the trial court
that she was the agent of 2nd defendant and that the crate of
mineral she sold to the appellant was manufactured and bottled by the 2nd
defendant.
Basically, therefore, there existed a duty of care imposed by the law on the
defendants to the plaintiff. And in the preparation, production and supply
of their products, the defendants/respondents were required by the law to
have reasonable foresight and have in contemplation the effect of their
products on the ultimate consumer. Where she required care has not been
taken, as in this appeal, where foreign elements found their way into the
product, the law can hardly exonerate the defendants as the law presumes
them to foresee the kind of harm that occurred. The learned counsel for the
2nd respondent argued strenuously that;
“For an action in negligence to succeed, the plaintiff must be able to link
the breach of duty of care, which occasioned the injury to the defendant.
Where there is a failure to establish a connection, an action in negligence
will not lie for negligence is a matter of facts and not law and each case
ought to be approached on its particular facts. See Anfi v New Concord
Hotel Ltd, (202) 18 NWLR (Pt.799) 377 at 411; Gbolade v Oladejo (1994) 8
NWLR (Pt.362) 281; Umar v Ahunqwa (1997) 1 NWLR (Pt.483) 601.
As indicated above, the evidence of PW2, PW3 and PW4 operate to negative any
exclusive link between the purported breach of duty of care and the harm
suffered by the plaintiff."
Yes! that is the correct position of the law. I must point out however that
the learned counsel in view of what I have reproduced above, has not been
fair to the trial court. It was not the trial court that manufactured all
the evidence especially that of PW and DW1 which properly-linked the ailment
suffered by the plaintiff which was as a result of the Fanta drink he took,
which undeniably, was manufactured and bottled by the 2nd
respondent. 1st respondent who had been a seasoned "agent" to the
2nd respondent gave full evidence in support of the link between
the plaintiff and the 2nd respondent. The learned trial judge who
heard and watched all the witnesses and their demeanours accepted their
testimonies and made a finding that there was a breach of that duty by the 2nd
respondent. The settled principle of the law is that it is within the
province of the trial judge who heard the evidence and watched the demeanour
of witnesses to assign probative value to their evidence and make finding of
facts on the issues in contention between the parties.
Of course that is what makes him
a "trial"
Judge because he
tries all
the issues
and satisfies
his conscience on the merit of the case of each party and weighs one
side against the other to find where the scale of justice tilts.
See:
Nwankwo v
Nwankwo (1995) 5 NWLR (Pt.394) 153; Mogaji v Odafin (1978) 4 SC;
A court of appeal is primarily concerned with the appeal brought
before it and is circumscribed by it. It seldom goes into assigning
probative value to a matter on appeal before it unless where that was never
done by the trial court or done improperly. Any of the parties can ask the
appeal court to exercise powers conferred upon it as a trial court to
evaluate the evidence. See:
Akinloye v Eyivola (1968) NWLR
92 at p.95; Lion Building Ltd v Shadipe (1976) 12 SC 135 at p.152; Moqaji v
Odofin (1978) 4 SC 91 at p.93, Wolucheni v Gudi (1981) 5 SC 291 at pp 326 -
330; Sha v Kwan (2000) 5 SC 178 at p.194.
I think the English case of
Donoghue v Stevenson (1932) AC 562,
appears to be the
locus classicus
on the issue of duty of care in the realm of law of negligence. There was an
attempt in that case by the House of Lords in 1932, to formulate some
general criterion for the existence of the proximity which would give rise
to duty of care. In that case, the pursuer averred that she had suffered
injury as a result of seeing and drinking the contaminated contents of a
bottle of ginger beer manufactured by the respondent and bought from him by
the owner of a cafe, from whom in turn it had been bought by a friend of the
pursuer. The House of Lords, by a fare majority, held that if the pursuer
could prove that which she averred she would have a good cause of action.
Thus, this case is an authority to say that even where there is absence of
privity of contract between plaintiff and defendant that per se, does not
preclude liability in tort. It also gives the proposition that manufacturers
of products owe a duty of care to the ultimate consumer or user.
Now, whether the issue of tea and bread were the cause of appellant's
stomach upset. This Issue is not pleaded by the parties at all. It was an
issue surreptitiously introduced by the learned counsel for the respondents
at the court below in his issue No 6. So no issue was joined on it.
There was no appeal to court below on it. It is no need wasting time and
energy on this issue. The law is well pronounced upon that no matter how
brilliant the address of counsel is it cannot be a substitute for pleadings
or evidence. Courts are only enjoined to limit and restrict themselves to
pleaded and proved
facts. See:
Lewis & Peat Ltd v Akheimen (1976) 7 SC 157 at page 160; Niger Construction
v Okuqbeni (1987) 4 NWLR (Pt.67) 787 at p.792; Igwe v AlCS (1994) 8 NWLR
(Pt.363) 459 at p.481.
The court below had no business considering that issue as it was not
properly brought before it. And, as a general rule, no court is permitted to
make a case not made by the parties. See the cases of
Incar Nig. Ltd. v Benson Transport Ltd. (1975) 3 SC 117; African Continental
Seaways Ltd v Nigerian Dredging Roads and General Works Ltd (1977) 5 SC; 235
at pp. 245-250; Unical v Essien (1996) 12 SC; 304 at p. 326.
Thus, by looking at the way the learned trial judge tackled the evidence led
on the facts pleaded, I have no option than to agree with him that the 2nd
defendant/respondent is liable in negligence to the plaintiff/appellant, I
affirm his holdings in that respect.
I have noted that there is an invitation by learned counsel for the
appellant to make a pronouncement on the principles of law relating to
liability of an agent/retailer in a business transaction with a third party
as was the position of the 1st respondent who was exenorated by
the two lower courts.
The appellant, in paragraph 2 of his statement of claim averred that 1st
respondent was an agent to the 2nd respondent. The 1st
respondent herself admitted that fact, (see paragraph 2 of her statement of
defence). The 2nd defendant, admitted that fact as well, (see
paragraph 3 of its statement of defence). An agent may be of different
kinds. The general law relating to agency, however, may be defined as the
relationship which exists or arises where one person has the authority or
capacity to create legal relations, i.e. the "agent" who acts on behalf of
another called the "principal", whereby the latter undertakes to be
answerable for the lawful acts of the former with a third party, provided it
was done within the scope of his authority or ratified later by the latter.
See:
James v Mid motors Nig. Co. Ltd. (1978) 11 - 12 SC 31 at page 67; Olufosoye
v Fakorede Ass. Nig. Ltd. & Ors v Aswani Textile Ind. Ltd. (1991) 12 NWLR
(Pt.176) 639 at p. 667. In the English case of Kennedy v De Trafford (1897)
A. C. 180, at page 188,
Lord Herschell stated that:
“No word is more commonly and constantly abused than the word "agent". A
person may be spoken of an "agent". , and no doubt in the popular sense of
the word may properly be said to be an "agent", although when it is
attempted to suggest that he is an "agent" under such circumstances as
create the legal obligations attaching to agency that use of the word is
only misleading,”
In the
Stroud's Judicial Dictionary of words and phrases. (6th edition),
vol. 1, page 82
an agent is sometimes referred to as "one who has no principal, but who on
his own account, sells some particular article having a special name (Wheeler
& Wilson v Shakespear, 39 LJ Ch. 36)
That was perhaps why, in this appeal, the learned counsel for the 1st
respondent in his brief of argument decided to name 1st
respondent as "retailer" or "distributor." A "retailer" is defined as "a
person engaged in making sales to ultimate consumers. One who sells personal
or household goods for use or consumption." (Blair's
Law Dictionary, sixth edition; page 1315).
"Distributor" on the other hand, is defined as:
"Any individual, partnership, corporation, association, or other legal
relationship which stands between the manufacturer and the retail seller in
purchases, consignments, or contracts for sale of consumer goods. A
Wholesaler, jobber or other merchant middleman authorized by a manufacturer
or supplier to sell chiefly to retailers and commercial users."
See: Blacks Law Dictionary (supra) page 476. It is clear from the nature of
the transactions between the appellant and the respondents, there was no
middleman in between. Thus, the description given to the 1st
respondent by her learned counsel that she was a distributor can hardly find
any place in this appeal.
On the role of 1st respondent whether she was an "agent" to the 2nd
respondent, the trial court held as follows:
"It will appear however, that in a claim for liability for negligence the
issue whether the agent has a disclosed principal is neither here nor there.
An agent can be held liable if on her own she did something that injure
(sic) the plaintiff. In such case both agent and principal can be sued
jointly and severally. But on the facts of their case has the plaintiff
proved any act or omission committed by the 1st defendant? I
think not. 1st defendant admitted she is a retailer of the
2nd defendant's product she has been selling for them for the
past 8 years or so she was supplied with the crate Exhibit G and she sold
same to plaintiff. Plaintiff has not shown what in particulars 1st
defendant was in breach of his duty and I cannot see in what respect
that the 1st defendant is liable, she is to me like a carrier
and I hold that 1st defendant tendered her route card to show the
source of Exhibit G, H and J she is not liable to the plaintiff in
negligence."
(underlining supplied by me)
The court below agreed with the above finding and holding of the trial
court. It went on to add that:
"The first defendant is an innocent conduit pipe and she did nothing
whatsoever from the evidence of this case to make her liable in negligence
to the plaintiff/respondent/cross-appellant.
Surely from the totality of the evidence adduced by the
respondent/cross-appellant before the trial court it would amount to a
serious miscarriage of justice to hold the 1st defendant liable
in negligence to the plaintiff/respondent/cross-appellant. "
(underlining supplied by me)
I think the law on the circumstances in which an agent of a disclosed
principle will be liable for damages in never a recondite area. I need not
go into that. The totality of the findings of the trial court and the court
below on the status of the 1st respondent is that she was a
"carrier" or a "conduit pipe." Whatever these expressions may connote, I
feel more comfortable to accept that 1st respondent was a
retailer to the 2nd respondent. Thus, whatever expression the 1st
respondent may have used calling herself an agent, and however true and
applicable they may have been in a popular sense, in point of law and in
their legal sense they are meaningless. 1st respondent was not
the agent of the 2nd respondent. If that be so, there is an end
of the fiduciary relationship between 1st respondent and the
appellant. Unless there was evidence to establish any breach by 1st
respondent, I cannot see how, as a retailer, she can suffer damages which
she wasn't the cause.
For these and the more detailed reasons of my learned brother, tabai, J.S.C,
I too allow this appeal. I abide by all orders made in the lead judgment
including order as to costs.
Counsel
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