September 20, 2019

«back to Cases and Principles

NLIPW Cases and Principles

Nathaniel Ebelamu v. Guinness Nigeria Ltd.
Court of Appeal (Lagos)

Judgement delivered on January 24′ 1983
Citation: 26 NIPJD [FCA. 1983] L/101/82
Suit No. FCA/L/101/82  Jurisdiction: Nigeria

ADEMOLA, J.C.A.
NNAEMEKA-AGU, J.C.A.
MOHAMMED, J.C.A.

Appearances: Adegunle for the Plaintiff/Appellant
Tunde Benson (with him Odunlami) for the Respondent

Negligence, Product Liability, Food Poisoning, Principles of Res Ipsa Loquitur, Onus of Proof etc. — This appeal was based on whether Respondent had been negligent in the preparation of its product, the beer which is alleged to have caused injury to the Appellant and others.

I. FACTS

On May 20, 1977, the Plaintiff/Appellant, Nathaniel Ebelamu, arranged a party in his house at Agege to mark the tenth anniversary of his wedding. Prior to the day of the party, he had purchased a carton of Harp beer from Kingsway Stores, Ikeja. The party started at 9 p.m. and his friends arrived shrotly thereafter. Different types of food and drinks were served and people ate and drank. The Appellant also eat the food and had some drinks and water.  Shortly after drinking Harp beer, the Appellant started feeling unwell and went to restroom to defecate and vomited. While he was in pain he noticed that other people on the same table with him were also going into the toilet and vomiting.

By the midnight of that evening, the Appellant and his friends who have were in pains and had vomited were taken to Bibi Hospital, Agege and were attended to by a medical doctor. The party, it was said, was thrown into confusion by  this incident and people left for their places. The Appellant and his friends were admitted into the hospital where they were for five days.

The Appellant alleged that he paid the doctor‟s professional fees for the treatment of himself and his friends. He continued treatment as an out-patient in that hospital for three months. The medical doctor who treated the Appellant gave evidence. His findings were that the people he treated that night in his hospital including the Appellant suffered from gastroenteritis and he treated them with antibiotics, anti-diarrhea and for dehydration. The doctor diagnosed the cause of the sickness of the Appellant and his friends to be food poisoning.

The food and drinks used at the party were brought to the hospital. The Doctor did not query the food items brought but saw sediments in two opened bottles of Harp beer and also in the third unopened bottle and sent the three bottles for analysis and for a report back which is Exhibit “A” in this suit. The report revealed that the sediment in the beer contained algae and was therefore unwholesome and not fit for human consumption. The Government Analyst who prepared the report gave evidence. The analysis done was on the unopened bottle though he did not receive the bottles of beer brought personally. The other two witnesses called by the Appellant gave evidence of what happened at the party as already narrated by the Appellant.

The Respondent‟s evidence through an expert, was devoted mainly to the process of beer-brewing and how it made free of impurities up to and after the bottling stages. It was admitted that bad storage conditions can produce sedimentation in the product produced yet such sedimentation is mere protein breakdown which does not constitute poison. The bottles Exhibits “K-K2” produced, which are found to contain extraneous or deleterious substance were not as the Respondent contended his products.

After a review of the evidence and a consideration of the many authorities cited  to him, the learned trial judge dismissed the Appellant’s case against the Respondent with costs

“Finally one must now consider whether the plaintiff ever established that it was the beer complained of that caused the injury. Plaintiff never complained that it was the unopened sample reported upon in Exhibit‟ A nor Exhibits K to „K2‟ that caused the injury. The injury complained of was due to food poisoning according to 1st P.W. and this might be caused through contamination of the food and drinks used at the party. The surroundings and the drinking glasses used should be considered along.”

The Appellant filed an appeal.

 

II. JUDGEMENT

ADEMOLA, J.C.A.: This appeal raises no new legal principle; it is the principle of law in the famous and old case of Donoghue v. Stevenson that is revisited. Its social significance in our merriment loving society is the point of interest here. I shall set out the facts that led to the case more fully than I am accustomed to doing when dealing with an appeal that turns on facts. The appellant arranged a party in his house at Agege on 20/5/77 to mark the tenth anniversary of his wedding. He had before the day of the party purchased a carton of Harp beer from Kingsway Stores, Ikeja. The party started at 9 p.m. and his friends, male and female came in. Different types of food and drinks were served and people ate and drank. The appellant partook of the food and drinks and water. He drank Harp beer and noticed that he started having stomach pain and had to go the toilet to defecate and later vomited. While he was in pain he noticed that other people on the same table with him were also going into the toilet and vomiting.

By the midnight of that evening, the appellant and his friends who have suffered the stomach pains and had vomited were taken to Bibi Hospital, Agege and were attended to by a medical doctor. The party, it was said, was thrown into confusion by  this incident and people left for their places.

The appellant and his friends were admitted into the hospital where they were for five days. Appellant paid the doctor‟s professional fees for the treatment of himself and his friends. He continued treatment as an out-patient in that hospital for three months. The medical doctor who treated the appellant gave evidence. His findings were that the people he treated that night in his hospital including the appellant suffered from gastro- enteritis and he treated them with antibiotics, anti-diarrhea and for dehydration. The diagnosis made by him as to the cause of the sickness of the appellant and his friends was food poison.

The food and drinks used at the party were brought to the hospital. The Doctor did not query the food items brought but saw sediments in two opened bottles of Harp beer and also in the third unopened bottle and sent the three bottles for analysis and for a report back which is Exhibit “A” in this suit. The report revealed that the sediment in the beer contained algae and was therefore unwholesome and not fit for human consumption. The Government Analyst who prepared the report gave evidence. The analysis done was on the unopened bottle though he did not receive the bottles of beer brought personally. The other two witnesses called by the appellant gave evidence of what happened at the party as already narrated by the appellant.

The respondent‟s evidence through an expert, was devoted mainly to the process of beer-brewing and how it made free of impurities up to and after the bottling stages. It was admitted that bad storage conditions can produce sedimentation in the product produced yet such sedimentation is mere protein breakdown which does not constitute poison. The bottles Exhibits “K-K2” produced, which are found to contain extraneous or deleterious substance were not as the respondent contended his products.

After a review of the evidence and a consideration of the many authorities cited  to him, the learned trial judge concluded thus:

“Finally one must now consider whether the plaintiff ever established that it was the beer complained of that caused the injury. Plaintiff never complained that it was the unopened sample reported upon in Exhibit‟ A nor Exhibits K to „K2‟ that caused the injury. The injury complained of was due to food poisoning according to 1st P.W. and this might be caused through contamination of the food and drinks used at the party. The surroundings and the drinking glasses used should be considered along.”

Whereon he dismissed appellant‟s claim against the respondent with costs. It is against such dismissal that the appeal has been brought. There were seven grounds of appeal argued and I shall summarise the argument on all of them without setting them down serially.

Mr. Adegunle for the appellant complained that the onus placed on respondent to rebut presumption of negligence on its part for the preparation of its product has not been discharged. Reading out some passages from the evidence of the expert called by the respondent, learned Counsel submitted if the respondent could concede that its products could become sedimented under certain circumstances and the bottles of beer produced here Exhibits “K”-”K2″ have been found to contain sediments the issue of negligence placed on the respondent has not been discharged. Res ipsa locquitu would still apply for the appellant has suffered injury by drinking beer similar that in Exhibits “K”-”K2.”

Dealing particularly with the extract from the learned judge‟s judgment quoted above, Mr. Adegunle submitted on another ground in this appeal that there is sufficient nexus between what the Appellant consumed and the unopened bottles of beer Exhibits “K”-K2″ and the beer examined in the Report Exhibit “A” on the balance of probability of the evidence led in this matter. Learned Counsel for the appellant then shifted his attention to the Statement of Defence of the respondent and complained that if the respondent wanted to give evidence of the bottling of what is brewed the act of bottling must be pleaded which was not done here. He contended that paragraph 6 of the Statement of Defence filed does not meet his objection. He referred the Court to the  case of Ayodele James v. Mid Motors Ltd. (1978) 11 & 12 SC p.31 at p.63. He also referred to N.I.P.C. v. Thompson [1969] 1 All N.L.R. p.158 to show that his failing to object at the trial does not preclude the point being raised on appeal.

Other points in the learned Counsel‟s argument are that the extract from the learned judge‟s judgment quoted above were not in accordance with the pleadings and some  irrelevant  matters  not  pleaded  have  been  imported  into  the  case.  He    also

contended that it is not right in law to say, as the learned judge has said in part of his judgment, that the respondent must examine the contents of the beer before drinking it; see Clerk and Lindsell on TORT 13th Edition paragraph 878 at page 489.

Mr. Benson for the respondent in reply, after referring to the conclusion of the learned judge that no negligence has been proved against the respondent, asked for a dismissal of the appeal; Donoghue v. Stevenson [1932] A.C. 562 at p.622; Grant v. Australian Knitting Mills [1936] A.C. p.85. He further submitted that the doctrine of res ipsa loquitur does not apply to this type of cases. Negligence must be proved and it is not to be presumed in this case; Beckley v. Sierra Leone Brewery Ltd. [1972] African Law Reports page 276.

Learned Counsel said that the appellant has not attacked the finding of the learned judge in this case which was that there was no negligence proved. Furthermore the issues of sedimentation and storage have not been taken into account by the judge and those matters could only be relevant if the primary issue of negligence has been resolved against the respondent Company.

On paragraph 6 of the Statement of Defence complained of by the appellant, learned Counsel submitted that the paragraph referred to covered the whole process of making the beer which was drunk.

Besides, the ruling made on it by the learned judge, upon which there was no appeal, is enough answer to the appellant‟s complaint on this point.

I think before going any further to a consideration of the substantial point on which this appeal turns, I might as well state clearly that I shall not dignify other submissions made to me in this appeal by my giving them other than perfunctory or no consideration at all. I put the submission made to bottling, the pleadings, sedimentation and the doctrine of res ipsa loquitur into this category.

This appeal turns on whether respondent has been negligent in the preparation of its product, the beer which it is alleged caused injury to the appellant and others when it was drunk. The respondent led evidence of how fool-proof its preparation of its products are. That may be well so but there is still the odd chance of a defect and that is where its liability begins. The respondent itself concedes that sedimentation of its products might happen due to poor storage and other circumstances, the fact of interference by third parties with the contents of its products which may relieve it of its primary liability to consumers of its products. The question here is, as m all type of cases where liability has been established, has the act of the respondent caused the damage complained of? The learned judge has answered this in the negative in the passages quoted earlier on, hence this appeal. This then leads me to a consideration of the way the appellant has put his case; it is like this: I gave a party in my house. 1 drank Harp beer and ate some food. Others did the same. We fell ill and were taken to the hospital and treated. The doctor who treated him saw sediments in three bottles of beer. Two of the bottles were already opened and partly drunk and one bottle was unopened. The bottles were sent for analysis. A report was given in Exhibit “A” to the doctor.

The Analyst gave evidence at the trial which runs thus:

“The Harp Beer was received between May and June, 1977. Looking at the bottle with naked eye there was a lot of sediment; from Exhibit “A” it is clear that I received  one sample of Harp Beer. About two or three bottles were brought and the  only unopened one was received as sample for analysis. It is our practice not to receive opened bottles. What I received for my analysis was a whole bottle of Harp Beer unopened. The date quoted on Exhibit A is the date of the reminder sent to us by Dr. Afilaka.

It is on these pieces of evidence that appellant hopes to succeed on the issue as to the cause of his injury. Some observations flow from the evidence of the Analyst. The partly drunk beer, if at all it was drunk by the appellant and his friends, his evidence is not direct on this, was not analysed so as to know what the sediments are. Not all sediments are poisonous sedimentation. The other is that the bottle analysed and found to contain poisonous sediment was not drunk by the appellant as the bottle was not opened before its analysis. From these facts, it is clear that appellant has not connected himself with the three bottles of beer which were Exhibit “K”-K2″ in the suit.

Mr. Adegunle has submitted that on the balance of probability the injury to the appellant must have been caused by the sediments of a similar nature in another bottle of beer as in the unopened bottle reported on in Exhibit “A.” It may well be so, but as Lord Macmillan succinctly put in Donoghue v. Stevenson [1936] A.C. at pages 618 and 619:

“The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence.”

Having thus reduced the evidence on which the appellant hopes to succeed in this appeal to its bare bones, I have no difficulty in agreeing with the learned trial judge that the appellant has failed to establish that the Harp beer he drunk that night was the  cause of the injury. With that firm conclusion reached by me, there is no useful point in discussing any further principle of law canvassed in this appeal. The appeal is dismissed and is hereby dismissed with costs in favour of the respondent at N250.00.

NNAEMEKA-AGU, J.C.A.: I would also dismiss the appeal as lacking in substance.  I agree that there is no proper nexus between the unopened bottle of beer, which was analysed, and the other two bottles which had been opened and consumed. I should emphasize that the principle of res ipsa loquitur has no place in a case of this nature.  See Grant v. Australian Knitting Mills [1936] A.C. 652, page 622. In any case, one indispensable requirement of application of the principle is that the defendant must be wholly and exclusively in charge of the res which causes the damage complained of. In the instant case, the suggestion was that the deterioration of the beer was due to long  or improper storage, not due to negligent manufacture. But there is no evidence that Kingsway Stores, Ikeja, from whom the plaintiff appellant bought the beer was an agent or distributor of the respondent such as to make the respondent responsible for their negligent or improper storage, if any.

I therefore dismiss the appeal with the same order as to costs as made by my brother, Hon. Adenekan Ademola.

MOHAMMED, J.C.A.: I have had the advantage of reading the draft judgment of my learned brother A. Ademola, J.C.A. in this appeal and I agree with him that since the remains of the beer in the bottle which the appellant had drunk was not analysed to established whether it was the cause of the appellant‟s illness the link between the appellant and the beer had not been established. The examination of a different bottle of the same brand of beer is not enough to establish that a bottle of Harp beer was the cause of the appellant‟s illness. I shall also dismiss the appeal and accordingly it is dismissed with N250.00 costs to the respondent.

NLIPW-Logo

Print Friendly, PDF & Email
FILE A TRADEMARK
error: Alert: Content is protected !!