➥ CASE SUMMARY OF:
Fijabi Adebo Holdings Limited & Dr. Emmanuel Fijabi Adebo V. Nigeria Bottling Company Plc & National Agency For Food And Drug Administration And Control (NAFDAC) (SUIT NO. LD/13/2008 • 15 Feb 2017)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Negligence.
Product consumption.
➥ CASE FACT/HISTORY
This suit was commenced against the defendants herein, by a writ of summons sealed on 8 January 2008. A statement of claim was filed along with the writ. In opposition, the 1st defendant filed a statement of defence dated 8 May 2008. Though served with the originating processes and other processes filed in this suit, the 2nd defendant failed and/or neglected to file a defence to this suit. With the leave of court, pleadings were severally amended. At the trial, the claimants relied on an amended statement of claim dated 26 January 2010 and filed on 27 January 2010, while the 1st defendant relied on an amended statement of defence dated 10 March 2010. In compliance with the rules of court, frontloaded documents were filed and exchanged.
The claims of the claimants as per their amended statement of claim dated 26 January 2010 were as follows: “i. A declaration that the 1st defendant was negligent and breached the duty of care owed to their valued customers and consumers which includes the claimants, in the production of contaminated Fanta and Sprite soft drinks with excessive “benzoic acid and sunset yellow” addictive.
From the pleadings and evidence led, the following facts are not in dispute between the parties. That the claimant bought from the 1st defendant, crates of soft drinks which were exported to the United Kingdom. That while the Coca-Cola soft drinks exported were al owed into the United Kingdom, the Fanta and Sprite soft drinks were destroyed in the United Kingdom on the ground that the benzonic acid and sunset yellow content exceeded the recommended level for safe human consumption. That the 2nd defendant is the regulatory body in Nigeria saddled with the responsibility of ensuring inter alia that the consumable products manufactured in Nigeria are safe for human consumption 4. That the 2nd defendant upon the orders of the court made on 13 October 2008 and 27 November 2008 carried out routine laboratory tests of all the soft drinks and allied products of the 1st defendant and as a result issued a report – exhibit D1. That pursuant to a court order made on 15 September 2008, the 1st defendant has refunded to the claimant, the sum of N1,622,000.00 (one million, six hundred and twenty-two thousand naira), being the sum admitted had and received from the claimants by the 1st defendant. That pursuant to the orders of the court made on 13 October 2010, the 1,277 empty crates deposited with the 1st defendant by the claimants has been converted to cash and the said sum refunded to the claimants.
➥ ISSUE(S)
I. Whether the 1st defendant was negligent and breached the duty of care owed to its valuable customers including the 1st claimant, in the production of its Fanta and Sprite soft drinks which, according to the claimants, allegedly contained excessive sunset yellow and benzoic acid?
II. Whether the claimants are entitled to the reliefs sought in their claims?
➥ RESOLUTION(S) OF ISSUES
[CLAIM FAILS]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE 1ST DEFENDANT OWES THE CLAIMANT A DUTY OF CARE AS A PRODUCER OF SOFT DRINKS PRODUCT
‘While the 1st defendant in its amended statement of defence admitted paragraph 4 of the amended statement of claim it denied paragraph 8 and averred that the claimant shall be put to the strictest proof thereof, but in paragraphs 7 and 9 admitted that the claimant purchased its products whether the products purchased were to the knowledge of the 1st defendant meant for export will be dealt with later in this judgment. It is manifest that the 1st defendant being a manufacturer of soft drinks which are meant for consumption, must undoubtedly exercise reasonable care in the production of the said soft drinks. It is therefore clear that the 1st defendant owed a duty of care to the claimants and indeed to all consumers of its products to ensure that its products are safe for human consumption. The claimants have therefore established that the 1st defendant owesthe claimants and all other consumers of its soft drinks products, a duty of care.’
THERE IS NO BREACH OF DUTY ON THE PART OF THE 1ST DEFENDANT
‘the head of laboratory of the 2nd defendant, (the subpoenaed witness) in analysing exhibit D1 was unambivalent that the chemical component particularly benzoic acid in the 1st defendant’s soft drinks was as stated therein, satisfactory and within the prescribed limit for human consumption set by 2nd defendant. The said witness went on to state that sunset yellow had no limit in Nigeria, the percentage of sunset yellow found in the 1st defendant’s soft drinks was according to the witness, safe for consumption in Nigeria. Considering the totality of the pleadings and evidence led in this case, particularly exhibits C, C1 and C2, the certificates issued by the 2nd defendant to the 1st defendant certifying the 1st defendant’s soft drinks, exhibit D1 issued by the 2nd defendant pursuant to the orders of the court and the testimony of DW2 before this court, all of which are to the effect that all soft drinks manufactured by the 1st defendant were certified by the 2nd defendant (the regulatory body charged with the responsibility of setting standards for the manufacture of consumable products in Nigeria) as being fit for human consumption, the chemical component of same being within acceptable limits, the court has therefore come to the inevitable conclusion that there is no breach of duty of care on the part of the 1st defendant in this case.’
‘The court would have arrived at a totally different conclusion if exhibits C, C1 A and C2 were not issued by the 2nd defendant in favour of the 1st defendant. May I add that from the pleadings and evidence led in this case, it is manifest that the regulation governing the chemical component of Coca-Cola products in Nigeria is different from that which is applicable in the United Kingdom. Whilst it was the claimants’ case that the product bought from the 1st defendant was exported to the United Kingdom with the knowledge of the 1st defendant, the 1st defendant ‘has vehemently denied being aware of such export stating that its products are meant for consumption in Nigeria and that there was a different Coca- Cola franchise holder in the United Kingdom. The position of the law remains that he who asserts must prove.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE RELIEF ON NEGLIGENCE DOES NOT SUCCEED
‘In the instant case, having come to the conclusion that there is no evidence before the court in proof of the alleged breach of duty of care on the part of the 1st defendant, principally because the 2nd defendant has certified the soft drinks of the 1st defendant fit for consumption inspite of the chemical content of the products, can the claim of the claimants against the 1st defendant for damages succeed? I think Not.’]
.
.
.
✓ DECISION:
‘By its certification as satisfactory, Fanta orange and Sprite products manufactured by the 1st defendant without any written warning on the products that it cannot be taken with Vitamin C, the 2nd defendant would have by its grossly irresponsible and unacceptable action caused great harm to the health of the unsuspecting public. Though this is stricto sensu , not a consumer protection case, the court in the light of the damning evidence before it showing that the 2nd defendant has failed to live up to A expectation, cannot close its eyes to the grievous implication of allowing the status quo to continue as it is. For the reasons herein adumbrated in this judgment, the court hereby orders as follows: 1.That the 2nd defendant shall forthwith mandate the 1st defendant to, within 90 days from the date hereof, include on all the bottles of Fanta and Sprite soft drinks manufactured by the 1st defendant, a written warning that the content of the said bottles of Fanta and Sprite soft drinks cannot be taken with Vitamin as same becomes poisonous if taken with Vitamin C. The court has also considered the claimants’ argument that they are not bound by the franchise agreement between Nigeria Bottling Company and Coca-Cola International and the court agrees with the argument on the premise that a contract affects only the parties to it and cannot be enforced by or against a person who is not privy to the contract, however the claimants who were the exporter had the responsibility of confirming the acceptable limit of additives in the United Kingdom before exporting the products to that country. May I commend the claimants for bringing this gross irresponsibility to the limelight at great cost to them particularly as their claim for general and special damages have failed for reasons adumbrated in this judgment. Lastly, on the claim for N3,000,000.00 (three million naira) as the cost of instituting and prosecuting this suit. This is specie of special damages which must be specifically proven. Sadly, the claimants’ pleadings and written statement on oath are bereft of facts which will entitle the claimants to this claim. The claimants have failed to prove the said claim: It therefore fails. In the final analysis, based upon the pleadings and evidence led in the case, the claim of the claimants fails. In consideration of the fact that this case was filed in 2008 and that it has been in court for about 9 years, costs of N2,000,000.00 (two million naira) is awarded against the 2nd defendant. Interest shall be paid on the costs awarded at the rate of 10% per annum until liquidation of the said sum. This is the judgment of the court.’
➥ FURTHER DICTA:
⦿ NEGLIGENCE IS THE OMISSION TO DO SOMETHING
Negligence is the omission to do something, which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. The three basic components of the tort of negligence are: duty of care; (b) breach of the duty of care; and (c) damage caused by the breach. See Edward Okwejiminor v. G. Gbakeji and Anor. (2008) All FWLR (Pt. 409) 405, (2008) 5 NWLR (Pt. 1079) 172. — Oyebanji J.
➥ LEAD JUDGEMENT DELIVERED BY:
Oyebanji (Mrs.) J.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)