➥ CASE SUMMARY OF:
Nigerian Bottling Company Plc v. Mr. Demola Olarewaju (2006) – CA
by PipAr Chima
Court of Appeal – CA/IL/43/2004
➥ JUDGEMENT DELIVERED ON:
Friday, the 14th day of July, 2006
➥ AREA(S) OF LAW
Burden of proof
➥ NOTABLE DICTA
⦿ ADMISSION OF AVERMENTS
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. – Ogunwumiju JCA.
⦿ ERROR CANNOT SET-ASIDE JUDGEMENT
An error of the lower court will not result in appeal being allowed unless it is substantial and miscarriage of justice is occasioned thereby. – Ogunwumiju JCA.
⦿ NOT THE DUTY OF APPEAL COURT TO RE-EVALUATE FACT
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. Ogunwumiju JCA.
⦿ PROOF SHOULD BE DIRECT LINK BETWEEN POISON AND FOOD CONSUMED
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. – Ogunwumiju JCA.
Nigerian Bottling Company Plc
Mr. Demola Olarewaju
➥ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju, J.C.A.
⦿ FOR THE APPELLANT
K. K. Eleja.
⦿ FOR THE RESPONDENT
Mr. J. S. Bamigboye.
➥ CASE HISTORY
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.
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.
➥ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED, N10,000 cost against the Respondent]
I. 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?
RULING: IN APPELLANT’S FAVOUR.
I.A. 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.
II. 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?
II.A. 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.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)