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Nigerian Bottling Company v. Demola Olarewaju

Court of Appeal

Judgement delivered on Friday, July 14, 2006
Citation: 49 NIPJD [CA. 2006] 43/2004
Suit No. CA/IL/43/2004      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

MUHAMMED SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A. (Presiding)
TIJJANI ABDULLAHI, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the lead judgement)

Product Liability, Burden of Proof in Food Poisoning Cases — This case considered whether the trial court was right in holding that the plaintiff/respondent had established the liability of the appellant by virtue of the plaintiff/respondent’s consumption of a contaminated Coca-Cola drink manufactured by the appellant.

I. FACTS

On April 3, 2000, the plaintiff/respondent purchased two bottles of Coca-Cola, a product of the appellant from a retailer.  After drinking some of the content from the first bottle, he noticed visible particles in the liquid content of the bottle.  He also noticed similar particles in the unopened bottle.  About two hours after drinking the content, the plaintiff/respondent alleged that he felt unwell and consulted a doctor at the Epidemiology Unit of the Kwara State Ministry of Health. After recovery, his attempts to get in touch with the appellant company yielded no fruit.  He alleged that he wrote a letter (tendered as exhibit “D”), which he delivered at the security post at the appellant’s office to which he received no acknowledgement. He thereafter instituted an action for damages at the Ilorin High Court against both the appellant and the retailer. The plaintiff/respondent later withdrew his claim against the retailer.

At the trial, the plaintiff/respondent gave evidence, tendered the unopened bottle of coca-cola into evidence (exhibit “A”) and the medical report issued to him at the time of the incident and called the medical doctor at the Epidemiology Unit of the Ministry of Health who had examined and treated him. The medical doctor testified that he had treated the plaintiff/respondent but could not confirm that in fact the Coca-Cola caused the respondent’s discomfort. The trial judge, Justice M. A. Folayan, found for the plaintiff/respondent and awarded the sum of ₦11,500 claimed on the special damages and the sum of ₦50,000 on the general damages.

The appellant, dissatisfied with the decision appealed to the Court of Appeal. The appeal was successful on the ground that the plaintiff/respondent could not establish a direct link between the Coca-Cola he drank and his ailment. Reading the leading judgment, Ogunwumiju J.C.A stated:

What is most relevant in the circumstances of this case is whether or not the respondent was able to prove on a balance of probabilities that he drank a contaminated bottle of coca-cola and became ill as a result of  it…Merely brandishing Exhibit A, an unopened but obviously contaminated bottle of coca-cola is not enough.

II. FULL FACTS

This is an appeal against the judgment of Hon. Justice M. A. Folayan of the Kwara State High Court delivered on 24th May 2004. The appellant herein was the defendant and the respondent herein was the plaintiff.

Briefly the facts which gave rise to this appeal are stated as follows: The respondent gave evidence as PW1 that on the 3/4/2000 he purchased two bottles of Coca-Cola – a product of the appellant from one Mrs. Agnes Olaniyan, a retailer before he noticed visible particles in the liquid content of the bottle. He saw similar particles in the unopened bottle. After about two hours, the respondent felt unwell and consulted a doctor at the Epidemiology Unit of the G.R.A within the vicinity of his residence. After his recovery he made efforts to get in touch with the appellant company to lay complaint but was not allowed access to them. He however wrote letter Exhibit D which he delivered at the security post to which he received no acknowledgement. He thereafter by Writ of Summons filed 28/3/2001, Statement of Claim filed 21/5/2001 took an action at the High Court Ilorin against the appellant and the retailer of the Coca-cola – Mrs. Agnes Olaniyan. He asked for the following reliefs as contained in paragraph 14 of the Statement of Claim-

“14. WHEREOF the plaintiffs claims against the defendants jointly and severally as follows:

1. The sum of N11,500.00 (Eleven Thousand, Five Hundred Naira) the plaintiff expended on medical treatment.

2. The sum of N5m (Five Million Naira) general damages for the sundry inconveniences and discomfort the plaintiffs suffered on account of the defendants negligence.”

The Appellant later withdrew his claim against the 2nd defendant – Mrs. Olaniyan. Pleadings were filed and exchanged. At the trial, the respondent gave evidence as PW1 and tendered exhibit A -the unopened bottle of coca-cola, PW2 was Dr. Musbaudeen Adekunle Oladipo a medical doctor at the Epidemiology Unit of the Ministry of Health who had examined and treated the respondent at the time of the incident. He tendered exhibit B the medical report issued by him at the time. The appellant called 2 witnesses, Mrs. Ibidun Gomez as DW1, the Quality Assurance Manager of the appellant, Dr. Akanbi Ajibola a medical expert and Consultant Microbiologist working with the University of Ilorin Teaching Hospital.

At the end of the trial, the learned trial judge found for the plaintiff/respondent and awarded the sum of N11,500 claimed on the special damages and the sum of N50,000 on the general damages.

The Appellant, dissatisfied has appealed to this Court. The Appellant’s brief is dated 29/11/2004 and filed on 21/2/2004. The reply brief is dated 3/4/2006 and filed 4/4/2006. The respondent’s brief is dated 28/3/2006 and deemed filed the same day.

The Appellant’s counsel identified 3 issues for determination. They are set out below:

“(i) Whether the respondent established by credible evidence that he took a bottle of contaminated coke on the 3rd April, 2000 and suffered all the conditions he alleged and was treated at the Epidemiological Department of the Kwara State Ministry of Health, Ilorin.

(ii) Whether the trial court was right in holding that there was the presumption that it was only the appellant’s company that was manufacturing coca-cola in Nigeria on and the further holding that the bottle of coke alleged consumed by the respondent was the product of the appellant?

(iii) Whether the trial court was right in holding that the respondent established the liability of the appellant in negligence on account of consumption of contaminated coke and in relying on the testimonies of the PW1 and PW2 in so holdings.”

The Respondent’s counsel also distilled 2 issues for determination. They are also set out below-

“1. Whether the trial court was right in finding that on the preponderance of evidence the respondent established negligence against the appellant, and that the appellant did not discharge the burden of rebutting negligence against her in this case.

2.  Whether the trial court was right in holding that the appellant was liable in damage to the Respondent.”

I will adopt the issues as distilled and set out by the appellant as they cover all the complaints in the grounds of appeal. Since issues 1 and 3 are substantially on whether the learned trial court made correct findings of fact in the circumstances, will take both together.

Issues One and Three: Whether the respondent established by credible evidence that he took a bottle of contaminated coke on 3rd April 2000 and suffered all the conditions alleged and was treated at the Epidemiological Department of the Kwara State Ministry of Health. If answer to that is YES, whether the liability of the appellant in negligence has been established by the evidence of PW1 and PW2.

Learned appellant’s counsel argued that the learned trial judge was wrong to have held in his judgment at page 97 of the record that the evidence that the Respondent drank a contaminated bottle of coke was not properly challenged by the appellant’s pleadings. He submitted that there an implied joinder of issues on the pleadings last served and that in this case the trial court had misconstrued the case of the parties and his judgment should be aside. He cited Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) page 643 at page 661; Ifeajuna v. Ifeajuna (1997) 7 NWLR (Pt.513) pg.405 at 416-7.

On this point, learned respondent’s counsel replied that a general denial is wholly inadmissible and inadequate and that each specific allegation should have been specifically denied. He submitted that a plea that is evasive cannot raise any issue in relation to the plaintiff’s allegation. He cited Oguma Associated v. IBWA (1988) 3 SCNJ 13 at pg.32; (1988) 1 NWLR (Pt.73) 658.

The learned trial judge on this point held inter alia in his judgment at page 97 of the record as follows –

“The evidence of the plaintiffs that he drank a coke containing contaminant was not challenged both in the statement of defence and evidence on oath…..

There is nothing in the defence evidence to show that the plaintiff never drank any contaminated coke. The defendant in their statement of defence merely denied the relevant paragraphs (4 & 5) in the statement of claim and puts the plaintiff to the strictest proof, so we cannot say they have effectively joined issue with the plaintiff on the fact that the plaintiff actually consumed half a bottle of a contaminated coke and their paragraphs 2 & 6 of the statement of defence have not effectively traversed paragraphs 4 & 5 of the statement of claim.

In order to raise an issue of fact, a defendant should properly transverse an averment in the statement of claim either expressly or by necessary implication. See the case of A. I. Egbunike & 1 Or v. AFR. Continental Bank Ltd (1995) 2 SCN Pg.55 at 78-99 holden 20; (1995) 2 NWLR (Pt.375) pg.34.

So neither the Statement of Defence not the evidence on oath of the 2 witnesses say that the plaintiff did not consumed half of the alleged contaminated coke. An unchallenged evidence is to be accepted and acted upon by the court. See A. J. Egbunike (supra).

(Pages 97 – 98 of the Records).

The law is that a plaintiff’s averment of facts must be met by the defendant frontally and categorically. Once a traverse is not met directly, the defendant is taken to have admitted it. See Owosho v. Adebowale v. Dada (1984) 7 SC pg.149. Such traverse to be valid must be related to the proceeding and subsequent paragraphs of the statement of defence. See Aja v. Okoro (1991) 7 NWLR (Pt.203) pg. 260.

Paragraphs 2 & 6 of the Statement of Defence are set out below:

“2. The 1st defendant denies paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the claim and hereby put the plaintiff to a very strict proof of the averment contained in the aforementioned paragraphs of the claim.

6. The 1st defendant denies paragraph 4, 5, 6, 7 and 8 of the claim and put the plaintiff to a very strict proof of the averments in those paragraphs at the trial.”

They contain denial of the allegations contained in some paragraphs of the plaintiff’s statement of claim. Paragraph 6 contain denial of events within the peculiar knowledge of the Plaintiff as contained in the statement of claim. I do not think the authorities require more categorical denial than that contained in paragraph 6 of the statement of defence where it relates to facts claimed by the plaintiff within his exclusive knowledge. It is quite another matter if the statement of defence only contained traverse that the defendant is not in a position to deny or admit the claims of the plaintiff. In such a case, the traverse would be held quite insufficient. See Gbaniyi Osafile v. Paul Odi (1994) 2 SCNJ 1 (1994) 2 NWLR (Pt.325) pg.125.

In the circumstances, it is my view that the statement of defence adequately traversed the pleading of the plaintiff to the purpose that issues could be joined on the facts so traversed. Also the statement of defence further specifically challenged other facts in the statement of claim. There was challenged in the pleadings and the record of proceedings of the respondent’s claim by the appellant.

The 2nd point is whether the respondent at the trial court discharged the onus of proof that he actually consumed the said half bottle of coke, he took ill and was treated. Learned appellant’s counsel urged this Court to disbelieve the evidence on oath of the respondent and to hold that the whole story was concocted by the respondent. He argued that the failure of the respondent to produce the left over drink consumed and the lack of laboratory test on such drink was fatal to the respondent’s case. He also urged the court to disbelieve Exhibit B and the evidence of PW2 in this regard. Learned respondent’s counsel submitted that there is sufficient credible evidence to ground the case of the respondent and to support the finding of the trial court.

The trial court was of the opinion that “the fact that the plaintiff suffered abdominal pain, diarrhea and vomiting is not in contention, their argument is that ailments have not been fixed by laboratory test to the consumption of the coke….” (Page 97 of the Records)

The argument of the appellant’s counsel is that the judgment was perverse because the judge was of the opinion that the fact that the respondent actually drank a half bottle of coke was not challenged. The appellants are claiming that this is a misdirection which has occasioned a miscarriage of justice.

For reasons given earlier, I agree that with the appellant’s counsel that the learned trial Judge was wrong in his assumption that there was no challenge to the respondent’s claims. Where there is an error by that trial court, it is the duty of this court to decide whether the decision of the lower court was right rather than whether its reason for the decision was right or wrong. See The State v. John Ogbubunjo & Anor. (2001) 1 SCNJ 86; (2001) 2 NWLR (Pt.698) pg. 576; Allied Bank v. Jonas Akubueze (1997) 6 SCNJ 116; (1997) 6  NWLR (Pt.509) pg.374.

An error of the lower court will not result in appeal being allowed unless it is substantial and miscarriage of justice is occasioned thereby. See: Taofik Adesheinde Oyefolu & Ors. v. Durosinmi (2001) 7 SCNJ 108; (2001) 16 NWLR (Pt.738) 1; Lawani Alli & Anor. v. Chief Gbadamosi A. Alesinloye (2000) 4 SCNJ 264; (2000) 6 NWLR (Pt.660); Jeje Oladele v. Oba Adekunle Aromolaran II (1996) 6 SCNJ 1; (1996) 6 NWLR (Pt.453) pg. 180.   Generally, the duties of an appellate court does not involve re-evaluation of the evidence of witnesses. An appellate court may only interfere when the findings are perverse or wrong because of violation of some principles of law or procedure. Sec Onyia Nwagwu Ngwu & Ors v. Ani Ozougwu & Anor. (1999) 11 SCNJ 1; (1999) 13 NWLR (Pt.636) 512.

The findings of fact by the learned trial judge to my mind is wrong because the premise on which he based his finding – that is – legally shifting the burden of proof from the plaintiff to the defendant is wrong.

To my mind the assumption of the learned trial judge has made it impossible for him to arrive at a just decision. By assuming that there was no denial of these issues of fact, he did not examine whether or not the respondent discharged the legal burden of proof placed on him. He who asserts must prove. In civil cases, the burden of proof is on the plaintiff. He must discharge both the legal and evidential burden of proof. The Respondent did not call or subpoen the retailer – the initial 2nd defendant to confirm that he actually bought 2 bottles of coke on that day from her. Laboratory tests on the half consumed bottle of coke which was thrown away a few days later would have gone a long way to confirm the facts sworn to by the respondent. The respondent admitted eating and drinking other consumables that day prior to drinking the coke. The doctrine of res ipsa loquitor does not apply in food poisoning cases. There is no law to the effect that if A consumes rice and he thereafter feels stomach discomfort, then viola! The rice is the cause of the discomfort. There must be more direct and positive proof of the cause of the discomfort. The onus placed on the respondent to establish a nexus between the consumed coke and his ailment was not in my view discharged on a balance of probabilities.

There is enough medical and science laboratory advancement in this country for the respondent to have taken full advantage of in the circumstances of this case, PW2 who gave evidence on his behalf could not confirm that in fact the coke caused the complaints. When exhibit E is read as a whole, it is clear that PW2 made his diagnosis on suspicion based on the history taken from the respondent and the presence of exhibit A the 2nd bottle shown to him. Exhibit E is set out below:

“TO.WHOM IT MAY CONCERN

MEDICAL REPORT ON RE: MR. DEMOLA OLAREWAJU

The above named adult role was seen on 3rd April, 2000 at 7.00pm with c/o stomach upset vomiting and abdominal pains, following injection of almost a full bottle of Coca-Cola, around 5.00pm.

Two(2) bottles of Coke was said to have been bought from a Neighbours Shop in Sunmonu Close GRA, Ilorin, of which one was drank and found to have particles along with the unopened bottle (brought along).

O/E an anxious young man, visibly disturbed and worried as to consequence of drinking contaminants. He was non febrile, but in moderate discomfort/pains. Abdominal sounds revealed Hypertonia +++

Problems identified-

(1) Anxiety +++/+++

(2) Abd-Cramps 2to food poisoning

(3) Vomiting

An assessment of: food poisoning secondary to contaminated Coke and Anxiety was made and patient managed with Tab. Co-trintoxazole, Tab. Buscopen, Tab.laxotan and reassurance.

He was reviewed the next day and showed marked improvement in abd symptoms. However he retains a marked distrust for consumption of bottled food products/drinking which is understandable following his recent experience.

He is advised to avoid all bottled food products/drinks for a while to avoid psychosomatic illness.

(SGD)

DR. M. A. OLADIPO.”

Under cross-examination PW2 admitted that the presence of exhibit A the unopened and obviously contaminated bottle of Coca-Cola influenced his diagnosis. We are here concerned with Coca-Cola actually injected not the one still intact.

The Benin Division of this Court decided in NBC v. Okwejiminor (1998) 8 NWLR (Pt.561) pg.295 at pg.208 that the onus was on the Cross-appellant/respondent to discharge the burden of proving the assertion that the Fanta he drank caused his illness. The learned Justices of the Court of Appeal appeared to have demanded a high standard of proof from the Complainant in food poisoning cases. Thus there must be proven direct link between the food/drink ingested and the subsequent ailment of the complainant. I have no reason to disagree with this stand. To make the standard of proof less might open a floodgate of litigation based on spurious and untrue assertions against manufacturers. This would have the reverse effect of defeating the very mischief sought to be cured by placing a burden of care on manufacturers of consumables. As opined earlier, there is high standard of advancement in technology in Nigeria to enable a genuine person aggrieved by the negligence of multinational companies to affix liability on them by linking their products directly with the ailment complained of.

Issue Two: Whether the trial court was right in holding that there was a presumption that it was only the appellant’s company that was manufacturing coca-cola in Nigeria and the further holding that the bottle of coke allegedly consumed by the respondent was the product of the appellant.

Appellant’s counsel argued on this issue that the appellant was consistent at the trial court in disowning both the alleged contaminated coke purportedly consumed by the respondent together with Exhibit A – the unopened bottle of coke and that the evidence of DW1 was taken out of context by the trial court. The bottle and contents actually consumed was not tendered before the trial court and DW1 was never questioned on it. He submitted that the learned trial judge misdirected himself when he held at page 96 of the Record as follows:

“The line of defence argument is that the content of the coke the plaintiff consumed is not their product but the bottle and cork belong to the Defendant….”

He submitted that the trial court had shifted the onus on the appellant to prove that the content of exhibit A and indeed the consumed but untendered coke was not its product. He submitted that the learned trial Judge was wrong in holding that there was a presumption that the appellant was the sole manufacturer of coke in Nigeria. He submitted that the misplacement of this onus of proof has caused an unfair trial which has vitiated the judgment of the trial court and it should be set aside as perverse. He cited Baridam v. The State (1994) 1 NWLR (Pt. 320) pg.250 at 260; Ezewusim v. Okoro (1993) 5 NWLR (Pt.294) pg.478 at 500.

The respondent’s counsel made no reply at all in his brief to the appellant’s counsel’s argument. This is very unfortunate and leaves a lot to be desired. None of the salient legal points raised in the issues distilled by the appellant’s counsel from the grounds of appeal were confronted by the respondent’s counsel. Rather, the respondent’s counsel went on a totally different track to argue points of facts without replying the points of law raised by the appellant’s counsel.

There is a short answer to this issue. There is a legal presumption that the Nigeria Bottling Company licenced by the Corporate Affairs Commission and the NAFDAC are the only company producing and marketing the brand name “coca-cola” in Nigeria. This is a notorious fact within public knowledge and needs no proof from the respondent. DW1 – the Appellant’s witness and their staff did not dispute this fact. She only speculated on oath that there have been rumours that their products are being tampered with by their competitors in order to discredit them. The assumption that only the appellant produce and market coca-cola by the learned trial judge in itself does not vitiate the judgment. What is most relevant in the circumstances of this case is whether or not the Respondent was able to prove on a balance of probabilities that he drank a contaminated bottle coca-cola and became in as a result of it. As said earlier, merely brandishing exhibit A an unopened but obviously contaminated bottle of coca-cola is not enough.

For reasons given above, the issues are resolved in favour of the appellant and this appeal succeeds. The judgment of the trial court is hereby set aside. N10,000 costs to the appellant against the respondent.

MUHAMMED SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.: I was privileged to have read before now the judgment of my learned brother Ogunwumiju J.C.A. and I have no reason to hold otherwise.

I completely agree with her conclusion. I too allow the appeal and endorse the order as to costs.

TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my Learned brother H. M. Ogunwumiju, J.C.A. I agree with her reasoning and conclusion that the appeal is meritorious and ought to be allowed.

It is now settle beyond argument that he who asserts must prove. I am in complete agreement with my learned brother that the respondent had not discharged that burden. I accordingly allow the appeal with N10,000 costs against the respondent in favour of the appellant.

III. CASES REFERRED TO

The following cases are referred to in the judgement:

IV JUDGEMENT

APPEAL from the judgement delivered by Honorable Justice M.A. Folayan of the High Court of Kwara State, delivered on May 24, 2004.

This appeal was unanimously allowed by the Court of Appeal.
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