NLIPW Trademark Law Volume 1 Number 20
(Product Liability and Consumer Protection Disputes)
November 10, 2013
- Edward Okwejiminor v. G. Gbakeji and Nigerian Bottling Company Plc
- Nigerian Bottling Company Ltd v. Constance Obi Ngonadi
- Osemobor v. Niger Biscuits Co. Ltd and Nassars & Sons
- Nigerian Bottling Company Plc v. Demola Olarewaju
- Boardman v. Guinness Nigeria Ltd
- Okonkwo v. Guinness Nigeria Ltd
- Nathaniel Ebelamu v .Guinness Nigeria Ltd
|| Product liability and Consumer Protection ||
Suit No. S.C. 67/2002
The appellant (Edward Okwejiminor) purchased a crate of Coca-Cola drinks including a Fanta Orange drink manufactured and bottled by the 2nd respondent [Nigerian Bottling Company (NBC)] and sold by the 1st respondent (G. Gbakeji). The Fanta Orange drink was alleged to have been contaminated as it contained a cockroach and a germ called Shigema, causing the appellant to suffer stomach ache, vomiting and other ailments. The appellant alleged that this eventually led to his hospitalization. The appellant also alleged that another unopened bottle that contained a fly, which was tendered into evidence at the trial court, was purchased from the 1st respondent. At the trial court, although the court found that the 1st respondent (1st defendant at the time) was not liable as she was a mere “carrier”, the court awarded the appellant (plaintiff at the trial court) the sum of ₦950,000 in damages.
At the Court of Appeal, the trial court’s decision was reversed. The Court of Appeal held that because the plaintiff had eaten breakfast consisting of bread and tea on the day in question, there was no evidence to support his claim that he had suffered any shock, pains, agony and discomfort as a result of consumption of the contaminated Fanta Orange drink. It is important to point out that at the trial court NBC never pleaded that the plaintiff’s injury was caused by the bread and tea taken at breakfast.
At the Supreme Court, the Court of Appeal’s decision was set aside. Francis Fedode Tabai J.S.C, delivering the lead judgement held that the Court of Appeal’s findings were not based on issues raised in the pleadings.
In this case, the Court of Appeal formed its opinion on the propriety or otherwise of the amount of ₦950,000 awarded because of its erroneous finding that the claim was not sustainable. I have examined the award made by the learned trial judge and I do not find any strong reason to interfere with the exercise of his discretion in the award. The result is that I would not disturb the award made by the learned trial judge…Francis Fedode Tabai J.S.C
Suit No: SC.103/1984
The plaintiff/respondent sustained severe injuries following the explosion of a brand of kerosene refrigerator, which was sold to her by the defendant/appellant. The plaintiff/respondent was involved in the business of selling beer and soft drinks on a retail basis (popularly referred to as a beer parlour business in Nigeria). The plaintiff/respondent bought from the defendant/appellant a kerosine fridge known as Evercold Refrigerator/Cooler Serial Number S/W.77464 OM. 2812, for use in her beer parlour and it was established that before she bought the fridge, the proposed use was made known to the Manager of the defendant/appellant’s company.
On February 12, 1975, the defendant/appellant delivered the fridge to the plaintiff/respondent. Two days after delivery, the fridge caught fire while in use. The plaintiff/respondent promptly reported this incident to the defendant/appellant who sent one of its technicians to accompany the plaintiff/respondent to her beer parlour at Agbor to repair the fridge. On August 29, 1975, the fridge exploded while in use in the plaintiff/respondent’s beer parlour, causing extensive personal and physical injuries to the plaintiff/respondent. On these facts the plaintiff/respondent sued the defendant/appellant claiming ₦50,000 being general and special damages for negligence.
At the trial court, the plaintiff/respondent was held to have established her case against the defendant and her action succeeded. The plaintiff/respondent was then awarded ₦435.50 special damages and ₦30,000 as general damages.
“I am satisfied that the defendant knew that the Plaintiff was operating a beer parlour wherein beer and soft drinks were sold. I am equally satisfied that the Plaintiff relied on the Defendant’ opinion that the fridge would be suitable for the running of a beer parlour as the one proposed by the Plaintiff… there is implied condition as to the qualify of fitness of the goods sold to the plaintiff by the defendant…it does not lie in the mouth of the defendants to assert that they merely sell and do not manufacture refrigerators. The implied condition is that the goods shall be reasonably fit for such purpose of sale. The defendant owes a duty of care to the plaintiff.”….Maidoh, J.
The defendant/appellant appealed. At the Court of Appeal, Pepple, J.C.A. (Omo-Ebo and Okagbue, JJ.CA. concurring) upheld the judgment and the award issued by the trial judge and dismissed the appeal.
At the Supreme Court, the Court of Appeal’s decision was affirmed, the appeal failed and was dismissed with costs to the plaintiff/respondent which was assessed at ₦300.
There is an implied warranty that the Evercold Refrigerator is reasonably fit for such purpose of sale. Accordingly, the appellant owed a duty of care to the respondent not to sell a defective refrigerator to the respondent. The defect in the refrigerator sold having given early warnings, the clear duty of the appellant was to have replaced it with a new trouble free one. The effort of the appellant’s employees to amend the defect can be described as fruitless as the subsequent explosion clearly reveals. It was negligence on the part of the appellant to have sold it in the first instance and negligence in failing to realise that it constituted a dangerous chattel and liable to cause damage to life and property in the state it was in. The appellant cannot, in the circumstances, escape liability for damages for negligence…Obaseki, J.S.C. (Presiding)
3. Osemobor v. Niger Biscuits Co. Ltd and Nassars & Sons (1973)
The plaintiff purchased a packet of biscuits from a supermarket. The biscuits were manufactured and packed by the defendant. While chewing a biscuit she felt something hard in her mouth, which turned out to be a decayed tooth. She became ill shortly after and required medical attention. Holding the defendants liable in negligence, the learned judge said:
“I am satisfied that there was no probability of an intermediate examination of the biscuits before they reached the plaintiff, and I find myself unable to uphold the submission of the learned counsel for the defendants that she was bound to look at the biscuits before she put them in her mouth…A person who manufactures goods, which he intends to be used or consumed by others, is under a duty to take reasonable care in their manufacture, so that they can be used or consumed in the manner intended, without causing physical damage to person or property”…Kassim J.
Suit No: CA/IL/43/2004
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.
|| The Guinness Cases ||
5. Boardman v. Guinness (Nig) Ltd (1980)
In the case of Boardman v. Guinness, the plaintiff while drinking the contents of a Harp beer in an ill-lit room noticed that the beer contained a considerable quantity of sediments. The plaintiff filed an action for negligence against the defendant for the manufacture of adulterated beer and tendered into evidence a laboratory report showing that the beer contained certain bacteria. In its defence, the defendant provided a detailed account of the manufacturing process to show that the drink was produced under the strictest scientific brewing and quality control process and as such the presence of extraneous substances could easily be ruled out. Notwithstanding the laboratory report, the court held that the plaintiff had failed to show that the defendant was guilty of negligence.
This case is highly criticized for its decision and the burden it places on consumers.
6. Okonkwo v. Guinness Nigeria Ltd (1980)
Another highly criticized judgement is the case of Okonkwo v. Guinness Nigeria Ltd. After drinking from a small stout brewed by the defendant, the plaintiff noticed that the drink contained particles of roots, leaves and the back of tree. Relying on the principle of Res Ipsa Loquitur, the plaintiff instituted an action against the defendant. At the trial court, the judge rejected plaintiff’s case on the grounds that the plaintiff could not establish that the defendant was the manufacturer of that particular bottle of stout.
In conclusion, let me say this, Donoghue v. Stevenson did not create a magic for the recovery of damages against manufacturers of drinks by ultimate consumers of the drinks, A plaintiff in a case of this nature realizes that unless he has obtained admission of certain facts from those he sues, the burden which he has assumed of establishing his case is enormous: no presumption exists in his favour; all the ingredients of the case must be proved by credible evidence at the trial. If therefore he is not in a position to discharge such burden, it is pointless instituting the action at all…Obi-Okoye J.
7. Nathaniel Ebelamu v. Guinness Nig. Ltd (1983)
In celebration of the 10th anniversary of his wedding, the plaintiff organized a party and treated his guests to food and drinks including harp beer. Some of the guests who drank harp beer at the event, a product of the defendant, developed stomach pains and vomiting. They were subsequently rushed to a nearby hospital, where they were diagnosed as suffering from food poisoning. An unopened harp beer bottle and two opened bottles were sent for laboratory analysis, where they were found to be poisonous. An action was instituted against the defendant as manufacturers of the beer. Dismissing the plaintiff’s claim, Oshodi J. stated that no nexus had been created between the opened bottle and the unopened ones and that a manufacturer owed no duty to ensure that its product was perfect, beyond taking reasonable care to ensure that no injury was done to the consumer.
This article is intended to provide general information about the subject matter. Professional legal advice should be sought about specific circumstances.