Home » Nigerian Cases » Court of Appeal » Nigeria Breweries PLC V. David Audu (2009) LLJR-CA

Nigeria Breweries PLC V. David Audu (2009) LLJR-CA

Nigeria Breweries Plc V. David Audu (2009)

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OYEBISI FOLAYEMI OMOLEYE, J.C.A.

This is an appeal against the judgment of the High Court of Kogi State holden at Ankpa, delivered by Hon. Justice Y. Musa on the 3rd day of June, 2005.

The brief background facts of this matter according to the Respondent are that, on 26/11/2003 the Respondent was on a night out at about 8:00pm in company with two friends of his at Ochid Beer Parlour, Ankpa. There, he ordered for six bottles of star larger beer, a product of the Appellant. In the course of drinking his first bottle which he drank directly from the said bottle, he felt an object from the bottle in his mouth. He spewed out the object which was found to be the remains of dead cockroach. He subsequently took ill on the night in question, was taken to a hospital, treated for shock and gastroenteritis and discharged the following day.

On 1/12/2003, the Respondent as plaintiff instituted an action in suit no. AHC/13/2003 at the High Court of Kogi State against the Appellant as defendant “vide” a writ of summons and statement of claim. The Respondent claimed against the Appellant as follows:

“.. the sum of Five Hundred Million Naira (N500 Million) only being general damages for negligence and nervous shock.”

The Appellant upon being served with the writ of summons and statement of claim, entered appearance and filed its statement of defence as amended. Trial was subsequently commenced. The Respondent in proving his case called three witnesses including himself and tendered six exhibits. Among the said exhibits are the remaining content of the bottle of star larger beer from which the Respondent drank, exhibit D1 and exhibit D2 the unopened second bottle of star larger beer purchased by the Respondent on the night in question, which two bottles of beer allegedly contained remains of dead cockroach. On the other side, the Appellant in its defence called one witness.

At the close of the cases and submissions of counsel for both parties, the learned trial Judge after due consideration of these, gave judgment in favour of the Respondent. The sum of ten million Naira was awarded in favour of the Respondent as general damages for negligence against the Appellant.

The Appellant was not pleased with the said judgment of the trial Court, it therefore filed an appeal to this Court vide its notice and grounds of appeal. The notice and grounds of appeal dated 19/11/05 containing five grounds of appeal was filed on the same date. The said five grounds of appeal with their particulars are reproduced verbatim as follows:

“(i) ERROR IN LAW

The learned trial Judge erred in law when he held that exhibits D1 & D2 need not be subjected to any scientific laboratory analysis to establish the poisonous content of same.

PARTICULARS OF ERROR

a. There is noting before the trial Court to show that Exhibits D1 & D2 went through any known scientific laboratory analysis as to confirm the allegation of the respondent that the consumption of the content of Exhibit D1 caused the illness complained of.

b. The poisonous nature and/or content of exhibits D1 & D2 can only be established where same had been subjected to scientific laboratory analysis.

c. The Medical Doctor who treated the respondent was not called upon to give evidence and no reason whatsoever was given for his absence contrary to the provisions of Section 77 of the evidence Act.

d. There was no expert evidence as to whether the sighting of exhibits D1 & D2 by the respondent could lead to a state of shock.

e. The usage of the English dictionary by the Trial Judge to confirm the poisonous nature of exhibit D1 & D2 is unknown to law.

(ii) MISDIRECTION IN LAW:

The learned trial Judge misdirected himself on the established law by holding that the respondent position before the alleged injury was in the nature of N10,000,000.00.

PARTICULARS OF MISDIRECTION

a. There is nothing before the Trial Lower Court showing that the respondent suffered any loss (monetary or otherwise) as to be awarded the sum of N10,000,000.00.

b. The position of the law is that the respondent should be placed in the position he was before the alleged consumption of Exhibit D1.

c. The authorities relied on by the Trial judge to award the respondent N10,000,000.00 are quite distinct from the instant case.

d. There is noting before the trial lower Court to show that Orchid Beer Parlour is an agent of the appellant.

e. There is no credible evidence before the Trial Lower Court that exhibits D1 & D2 emanated from the appellant.

(iii) ERROR IN LAW

The learned Trial Judge fundamentally erred in law when in the course of the defendant’s evidence refused to allow the appellant state his case clearly as to the brewing stages of Star Larger Beer, but in its judgment used same in holding that the appellant was unable to divulge detailed information as to how Star Larger Beer is been produced, hence shutting out the appellant from defending his case and thereby occasioning unfair trial.

PARTICULARS OF ERROR

a. It is settled law that parties to a suit must be afforded fair hearing in the determination of any suit.

b. By refusing to hear the appellant on the issue of details of brewing Star Larger Beer, the Trial judge had remained biased against the appellant and thereby resulting in injustice.

c. The defendant’s application had the effect of correcting the anomalies raised by the Honourable Court suo motu in the filed statement of defence dated 8th day of January, 2004.

(iv) ERROR IN LAW

The Learned Trial judge erred in law to have entertained the suit in the absence of payment of the requisite filing fees thereto by the respondent.

PARTICULARS OF ERROR

a. The respondent’s claim before the Trial Lower Court was N500,000,000.00 and for which the respondent paid N2,100.00, which was contrary to the fees stipulated in first schedule of the Kogi State High Court Civil Procedure Rules 1991.

b. It is only on the payment of the requisite filing fees that the court can assume the jurisdiction over the filed suit.

(v) The judgment as delivered on 03/06/2005 is against the weight of evidence.”

Briefs were filed for and exchanged by both parties by their respective counsel pursuant to the rules of this Court.

On 19/11/08 when this appeal was heard by this Court, the learned counsel for the Appellant, Mr. P.Y. Garuba identified the Appellant’s brief of argument and made an oral application to withdraw ground (iii) and the first ground (iv) of the notice and grounds of appeal along with their respective particulars and for the second ground (iv) to be renumbered ground (v). The said application not opposed by the learned counsel for the Respondent was granted. Grounds (iii) and the first ground (iv) of the notice and grounds of appeal with their respective particulars are hereby struck out. The second ground (iv) is hereby renumbered ground (v) accordingly. The learned counsel for the Appellant then adopted the Appellant’s brief of argument dated 17/11/05 and filed on the same date. He urged this Court to allow this appeal and set aside the judgment of the trial Court. In the said Appellant’s brief of argument, three issues were formulated from the remaining valid grounds (i), (ii) and (v) of the notice and grounds of appeal, for the determination of the appeal. The three grounds are as follows:

(i) Can it be said that the damage to the Respondent was proved in the absence of an expert evidence of a scientific laboratory analysis of the content of Exhibits D1 and D2?

(ii) Was the learned trial judge right in awarding to the Respondent the sum of ten million Naira as general damages in the absence of any evidence to support same?

(iii) Whether from the totality of the evidence adduced at the trial Court, the Respondent was entitled to judgment?

On the other side, the learned counsel for the Respondent, Mr. P. D. Abalaka identified and adopted the Respondent’s brief of argument dated 15/5/06 filed on 16/5/06 but deemed properly filed and served on 7/11/06 by the order of this Court. He urged this Court to dismiss this appeal in its entirety and uphold the judgment of the trial Court. In the said Respondent’s brief of argument, two issues were identified for the determination of this appeal. The two issues state thus:

(i) Whether the trial Court was right when it held that the Respondent proved his claim of negligence against the Appellant?

(ii) Whether the damages awarded by the trial Court is fair and reasonable having regard to the circumstances of the case before it?

I am of the view that the three issues formulated by the learned counsel for the Appellant are adequate for the proper resolution of the complaints in this appeal. I shall therefore adopt and consider them along with the two issues formulated by the learned counsel for the Respondent, which two issues also embrace all the points raised in the said three issues identified in the Appellant’s brief of argument. I shall however take issues one (i) and three (iii) together because they are interrelated.

ISSUES ONE AND THREE

Can it be said that the damage to the Respondent was proved in the absence of an expert evidence of a scientific laboratory analysis of the content of Exhibits D1 and D2? Whether from the totality of the evidence adduced at the trial Court, the Respondent was entitled to judgment?

The learned counsel for the Appellant submitted that, damage must be proved in an action for the tort of negligence. That is, both negligence and actual damage must co-exist to give a cause of action. Hence, to succeed in a case of negligence, a plaintiff must prove factual cause and be able to persuade the court with credible admissible evidence that he has suffered a genuine and not a speculative harm. On this legal position, reliance was placed on the case of: International Messengers Nig. Ltd Vs. Engr. David Nwachukwu (2004) 6 SCNJ p. 56 at p. 72.

According to the learned counsel for the Appellant, the Respondent’s evidence that he suffered shock as a result of the contaminated content of Exhibit D1 consumed by him was not confirmed by any expert evidence. For the law requires the need for experts or persons specially trained or qualified in a particular discipline to assist the court by testifying on causation arising from certain phenomena studied by them. In this respect, he referred to the provisions of Section 57(1) & (2) of the Evidence Act and the cases of:

(1) Seismograph Service Ltd Vs. Benedict Etedjere Onokpasa (1972) All NLR p. 3.47 and

(2) Seismograph Service (Nig.) Ltd Vs. Robinson Kwavbe Ogbeni (1976) 1 NWLR p.290.

The learned counsel for the Appellant contended that the issue before the trial Court in the instant case, was: whether or not the content of Exhibits D1 & D2 was contaminated and that the consumption of part of Exhibit D1 by the Respondent caused the Respondent to have shock? In which case, there was the need for the Respondent to adduce expert evidence to authenticate that the content of Exhibit D1 was contaminated and that the consumption of same by him led to his ill-health. On this position, reference was made to the cases of:

(1) Agbonmagbe vs. CFAO (1966) 1 All NLR p. 130;

(2) Igbinovia Orhue Vs. N.E.P.A (1998) 5 SCNJ p.126 at p. 132 and

(3) P.E.A. Ogidi Vs. Guiness (Nig.) Ltd (1981) 1 FNR. p. 67 at p. 69.

It was argued in favour of the Appellant that the medical Doctor who treated the Respondent was not called as a witness and no reason was advanced for this gap as required by law. That although Exhibit C was issued by the said Doctor, the report did not qualify as an expert evidence. This is moreso, Exhibit C did not contain the fact that the Doctor actually saw the allegedly contaminated drink consumed by the Respondent. Also, the cause of the diagnosed ailment of the Respondent was not categorically linked to the said substance allegedly consumed by the Respondent. It was further contended in favour of the Appellant that the view held by the learned trial Judge that chemical analysis of the remaining substance, content of Exhibit D1 and that of Exhibit D2 was unnecessary in the circumstances of the case is unknown to law. That the learned trial Judge’s reliance on the dictionary meaning of cockroach and Exhibit C in the alternative amounts to speculation which cannot be taken as a substitute for relevant and necessary evidence. What is more the issue of the cockroach was not before the trial Court. This in fact led to the wrong and perverse decision of the trial Court which decision must be set aside by this Court. On this stand, he relied on the cases of:

(1) Ferdinard George Vs. U.B.A. Ltd (1972) 8/9 S.C p. 264 at p. 280;

(2) Edem Archibong & 6 ors. Vs. Asuquo Itong Ita (2004) 1S.C.N.J p.141 at p. 161

(3) Igbinovia Orhue vs. N.E.P.A. (supra) at p.132;

(4) D. Ivienagbor Vs. H. O. Bazuaye & Anor. (1999) 6 S.C.N.J. p.235 and

(5) E. Adeniran vs Alao & Anor. (2001) 12 SCNJ p.337

The learned counsel for the Appellant further submitted that, the Respondent did not adduce credible evidence at the trial Court to establish that the content of Exhibits D1 & D2 emanated from the Appellant company. It was the defence of the Appellant at trial vide DW1 that Exhibit D1 is not the Appellant’s product and that PW2, the owner of Orchid Beer Parlour, Ankpa is not one of its accredited distributors. The Respondent did not adduce evidence by way of production of document indicating that Exhibits D1 & D2 emanated from one of the Appellant’s outlets in Ankpa. The said defence of the Appellant which was not challenged by the Respondent ought not to have been rejected by the learned trial Judge. On this legal position, reliance was placed on the case of: Broadline Enterprises Ltd Vs. Monterey Maritime Corporation (1995) 10 SCNJ. p.1. What is more, under the law, the Respondent was expected to take reasonable care to avoid acts or omissions which he can foresee or contemplate would likely injure him. Hence, if the Respondent after the purchase but before the consumption of Exhibit D1 had stayed in a well lit place and examined the bottle of drink, he would not have drank the beer which allegedly caused him an injury. On this position, the Appellant’s learned counsel relied on the case of: Igbinovia Orhue Vs. NEP.A. (supra) at p. 133.

In further contention in favour of the Appellant, the learned counsel for the Appellant stated that, the evidence adduced by the Respondent at trial was at variance with his pleadings regarding the injury allegedly suffered by him, that is, the Respondent. While the Respondent pleaded that after drinking part of the content of Exhibit D1, he became very drowsy and vomited, in his evidence on oath, he testified that he almost vomited and was drowsy. The learned trial Judge ought to have rejected the evidence. For, the law is settled that evidence which is at variance with a pleaded fact will not be utilized by court. On this legal principle reliance was placed on the case of: Anyanwu & Anor. Vs. Iwuchukwu (2000) 12 S.C.N.J p.168 at p.194. It was opined by the learned counsel for the Appellant that the evidence adduced at the trial Court by the Respondent did not support the decision reached by the learned trial Judge. He urged this Court to set aside the said decision.

Replying, the learned counsel for the Respondent submitted that, the tort of negligence is breach of a legal duty to take care which results in damage to the plaintiff which damage was not desired by the defendant. Therefore for a plaintiff in the instant case, the Respondent to succeed in a claim for the tort of negligence, he must prove all the following essential elements:

(a) That the Defendant owed him a legal duty of care;

(b) That the Defendant was in breach of the duty of care and

On the above legal position, reliance was placed on the cases of:

(1) Donoghue Vs. Stevenson (1932)AC p. 562;

(2) Grant Vs. Australian Knitting Mills Ltd (1936) AC p. 85;

(3) Agbomagbe Bank Ltd Vs. CFAO (supra) and

(4) Benson Vs. Otubor (1975) 3 SC p.9.

Regarding the establishment of the element of duty of care; it was canvassed for the Respondent that, it must be shown that the Appellant owed the Respondent a duty to exercise due care in the brewing and packaging of Exhibits D1 and D2. Accordingly, it is settled law that a manufacturer of products owes a duty to take reasonable care that the products reach the ultimate consumer in the form in which they left the manufacturer with no reasonable possibility of intermediate examination. That the absence of reasonable care in the preparation or putting up of the product will result in an injury to the consumer’s life or property. The Respondent’s learned counsel contended that in the instant case, the Respondent as plaintiff before the trial Court pleaded and adduced evidence that the star larger beer exhibits D1 and D2 was manufactured by the Appellant company. Hence, the beer was intended to reach the consumer, in this case the Respondent in the form it left the Appellant, the manufacturer. Evidence was also adduced by the Respondent that there was no possibility of any intermediate examination. The owner of the beer parlour who sold the two bottles of beer in dispute to the Respondent gave evidence that the beer is a product of the Appellant and that he personally opened one of the said bottles exhibit D1 from which the Respondent immediately and directly consumed part of its content.

On the second element of a breach of the duty of care, the learned counsel for the Respondent submitted that, evidence was also adduced by the Respondent that the content of both bottles, exhibits D1 and D2 contained the remains of dead cockroach. In the process of drinking the content of exhibit D1, some of the remains of dead cockroach got into his mouth and system. The second bottle exhibit D2 was then examined and found to also contain remains of dead cockroach. This is indicative of a breach of the duty of care owed by the Appellant. For if reasonable care had been exercised by the Appellant, the dead cockroach would not have been present in the bottles. Therefore, the onus of proof shifts to the Appellant to show that they exercised reasonable care but somehow the contamination occurred. The Appellant in this case had the burden to explain how the beer got contaminated. This is the doctrine of res ipsa loquitor. On this stand, reliance was placed on the cases of:

(1) Grant Vs. Australian Knitting Mills Ltd (supra) and

(2) Lockhart Vs. Barr (1943) SC (H.L) p.1

It did not avail the Appellant to argue that the Respondent should have examined the content of the bottles of beer brought by him in a well lit place before consuming same. This is because the Respondent as a consumer is entitled to presume that the content of the bottles would not contain any noxious substance in view of the Appellant’s owed duty as the manufacturer to exercise reasonable care in its manufacture and presentation for sale.

The learned counsel for the Respondent contended that the dead cockroach spewed out by the Respondent from and found in the content of both exhibits D1 & D2 was in evidence, hence the carrying out of scientific analysis of the said content was unnecessary. He rested his contention on the cases of:

(l) Osemobor Vs. Nig. Biscuit Co. Ltd (1973) 6 C.C.H.C.J p.71 and

(2) Soremi Vs. Nig. Bottling Co. Ltd (1977) 12 C.C.H.C.J p.2735.

He distinguished the instant case from the case of: Ogidi Vs. Guiness (Nig.) Ltd (supra) relied on by the Appellant. According to him in the “Ogidi’s” case, the bottle of the Harp larger beer containing an alleged black sediment was not tendered in evidence. There was also the possibility that the cup used in drinking the beer by the complainant was contaminated. Also, the beer in dispute in that case was not proved to be the product of Guinness Nig. Ltd. In that situation, chemical analysis was imperative to establish the identity and noxious nature of the product in dispute.

It was argued in favour of the Respondent as touching on the third and final element that, the Respondent after consuming part of the content of exhibit D1 which contained dead cockroach, he took ill and was rushed to a hospital where he was admitted, treated for shock and severe gastroenteritis and discharged the following day. It was opined that the ailment suffered by the Respondent was the direct result of the consumption by him of the beer in dispute. The Respondent duly paid for the treatment received by him in the hospital. The receipts in this regard were tendered in evidence at trial by the Respondent. The medical report exhibit C was turned in to show the diagnosis of and treatment received by the Respondent. It was immaterial that the doctor who treated the Respondent was not called as a witness at trial. He further referred to the case of: Osemobor vs. Nig. Biscuit Co. Ltd (supra) on this point. He equally distinguished the instant case from the case of: Orhue Vs. N.E.P.A. (supra). In the Orhue’s case, there was no evidence that the plaintiff or members of his family suffered any injury for which they were treated in any hospital.

The learned counsel for the Respondent concluded that all the three essential elements of the tort of negligence were established by the Respondent at the trial Court and that Court’s findings in that regard were properly based on the said evidence.

I have duly perused the record of appeal and the submissions of both learned counsel in favour and against this appeal. I consider it apposite to give a short introduction of how the laws on product liability evolved in Nigeria. This is because the instant matter is a typical case of product liability. Product liability simply refers to manufacturers liability under the law in respect of their products meant for public consumption. In the past, it was observed that manufacturers of products had the upper hand over the consumers of their goods. The consumers were unable to negotiate for their economic rights. The manufacturers produced what they had and sold to the consumers with little or no regard for the merchantability of the goods for their selfish economic gains.

Hence, manufacturers engaged in what is called deceptive and unfair trade practices which is better described than defined. Deceptive and unfair practice includes, causing a dishonest and unjust relationship in the process of exchange of goods, services and other facilities for economic gains. It covers causing a person or many consumers to accept as true or genuine something (goods, services, credit facilities, rights, etc) that is false. It connotes misleading information and pictorial misrepresentation and all forms of trade malpractices. It is a term that refers to all manifestations of unconscionable practice on the part of certain traders towards consumers.

The production of sub-standard goods and services for public consumption which ultimately cause personal injury to the consumer is well illustrated in the case of: N.B.C Ltd Vs. N.C. Onadi (1985) 1 NWLR (Pt. 4) p.739 where Aniagolu J.S.C. (Rut) said thus:

“Nothing appears to be elementary in this country where it is often the unhappy lot of consumers to be inflicted with shoddy and unmerchantable goods by some pretentious manufacturers, entrepreneur, shaddy middle men and unprincipled retailers whose avowed interest seems only and always to be, to maximize their profit leaving honesty a discounted and shattered commodity. The respondent in this appeal has been one of those consumers whose modest investment with the Appellant in the Ever-cold Refrigerator has netted her the unexpected return of serious personal injury for which she suffered severelly.”

It is not uncommon for goods of a manufacturer to result in the death or injury of a consumer or an innocent by-stander. As a result of this bad and horrible trend, the government of Nigeria has come out to protect the consumers. There are various criminal sanctions imposed by law in Nigeria aimed at protecting the consumer’s safety. Some of the statutes involved are:

Consumer Production Council Act, the Food and Drugs Act, the National Agency for Food and Drug Administration and Control Act (NAFDAC), the Drugs and Related Products Act, etc. By the nature of these legislations the right to produce or supply a particular good or offer a particular service is made to depend on the maintenance of minimum standards considered to be necessary for the protection of the users of the products or services. In order to ensure the enforcement of such standards, the law attaches penalty for non-compliance and set up regulatory bodies. The most protective of the legislations is the Consumer Protection Council Act Cap. C25, Laws of the Federation of Nigeria, 2004 which seeks not only to preserve the consumer’s civil right of action for compensation but also empowers the Council to apply to the Court to prevent the circulation of any product which constitutes an imminent public hazard, or ban the sale, distribution, advertisement of products which do not comply with safety or health regulations.

The instant case is therefore one in which the Respondent as a consumer of the product of the Appellant, sought to exercise his civil right of action for compensation at the trial Court for an alleged injury suffered by him after drinking star larger beer, product of the Appellant which was allegedly contaminated.

Negligence has been defined as the omission to do something which a reasonable man guided upon consideration which ordinarily regulates the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. A manufacturer of products owes the consumers of his products duty of care in ensuring that such products reach the ultimate consumer in the good form in which the products left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property. This principle of law was laid down in the locus classicus case of: Donoghue Vs. Stevenson (1932) A.C. p. 562.

The question of what is duty of care in negligence and to whom it is owed has to be approached in two stages. First, one has to ask whether as between the wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighborhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negate, or to reduce or limit the scope of the duty of the class of persons to whom it is owed or the damage to which a breach of it may give rise. See the cases of:

(1) Enyika Vs. Shell B. P. Petroleum Development Company (1997) 10 NWLR (pt.526) p.638 and

(2) Aliyu vs. Aturu (1999) 7 NWLR (Pt.611) p.536.

In all any breach of duty of care, whether grave or venial, which causes a loss constitutes negligence.

The gravamen of issues one and three is whether the Respondent at the trial Court discharged the onus of proof that he actually consumed part of the content of exhibit D1 and that the content of exhibit D1 contained remains of dead cockroach, he took ill thereafter and was treated for the alleged ailment. The learned counsel for the Appellant urged this Court to disbelieve the evidence on oath of all the witnesses called to establish the claim of the Respondent at trial.

The trial Court was of the opinion on the evidence of both the Respondent himself and the sale witness of the Appellant, the labels and covers of exhibit D1 and D2 and the fact that no one had ever been prosecuted for imitating the Appellant’s products that:

“It is therefore no longer in doubt that Exhibit (sic) D1 and D2 is (sic) the product of the defendant. Defendant is therefore the Brewer of the beer been (sic) consumed by the plaintiff.”

See lines 25 to 28 at page 64 and lines 1 to 3 at p. 65 of the record of appeal.

The answer to the question whether or not the defendant is the manufacturer of the said exhibits D1 and D2 is that, there is a legal presumption that the Nigeria Breweries Plc licensed by the Corporate Affairs Commission and the NAFDA Care the only company producing and marketing the brand name “Star Larger Beer”, 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 only disputed the fact that exhibits D1 and D2 could be the product of the Appellant with the dead cockroach found in them. He did not dispute the fact that the Appellant is the manufacturer of Star Larger Beer. The conclusion of the learned trial Judge also that only the Appellant company produces and markets star larger beer in itself therefore has no injurious effect on or vitiate the judgment. What is more relevant in the circumstances of the instant case is: whether or not the Respondent was able to prove on a balance of probabilities that he drank a contaminated bottle of star larger beer and became ill as a result of this? The Respondent presented in evidence exhibit D1, the half empty bottle of star larger beer (with or without some remains of dead cockroach), backed up by the evidence of the witnesses for the Respondent that at the time the Respondent was drinking the other half of the content of the said exhibit D1, the Respondent spewed out some remains of dead cockroach. The Respondent also presented in evidence exhibit D2 an unopened but obviously contaminated bottle of star larger beer. The above stated evidence presented by the Respondent in my firm view was not enough.

The law is quite trite that, he who asserts must prove. For in civil cases, the burden of proof is on the party who asserts a fact to prove the fact. The burden of proof of negligence falls upon the plaintiff, in this case, the Respondent who alleged negligence. This is because negligence is a question of fact, not law, and it is the duty of the one who asserts it to prove it. By virtue of Section 135(1) of the Evidence Act, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Therefore, failure to prove the particulars of negligence pleaded is fatal to the plaintiff’s case. See the cases of:

(1) Alh Otaru & Sons Ltd Vs. Idris (999) 6 NWLR (pt.606) p.330;

(2) Onagoruwa Vs. JAMB (2001) 10 NWLR (pt.722) p.742:

(3) Makwe Vs.Nwukor (2001) 14 NWLR (pt. 733) p. 356 and

(4) Ololo Vs. Nig. Agip Oil Co. Ltd (2001) 13 NWLR (pt.729) p.88.

A plaintiff in an action for negligence must discharge both the legal and evidential burden of proof. In the instant case, the Respondent did not call or subpoen the wholesaler to confirm that the retailer who was called as a witness actually purchased the product from them. In the alternative, the retailer could have tendered in evidence the purchase receipt from the wholesaler in that regard. The laboratory analysis of the remaining half of the consumed drink, exhibit D1 was not carried out to establish the alleged noxious nature of same. The medical doctor that treated the Respondent was not also called or subpoened to give evidence on oath and of course be cross-examined to establish that the alleged illness of the Respondent was as a direct result of the portion of exhibit D1 consumed by him. For it was quite possible that the Respondent had eaten or drank some other consumables that day prior or subsequent to drinking the star larger beer in dispute. Without delving into the propriety of the admissibility of exhibit C at the trial court, the report can not be said to be satisfactory evidence on its own. It could also not be conclusively said that the private hospital where the Respondent was treated is properly licensed and the doctor who allegedly administered treatment on the Respondent is a qualified and licensed medical doctor. The said medical report, exhibit C is somewhat suspect. This is moreso when one is faced with the story of the Respondent and his witnesses that, the Respondent on the night in question purchased six bottles of star larger beer, two for himself and two for each of his two friends who were on the outing with him. It was just the two bottles given to the Respondent that allegedly contained remains of dead cockroaches. To a discerning mind, this story appears funny, quite intriguing and indeed stranger than truth. Personally, I am of the view that there is more to the scenario presented by the Respondent than meets the eye.

The legal maxim res ipsa loquitor means that the thing speaks for itself and it is applicable whenever it is so improbable that an accident would have happened without the negligence of the defendant. However, before the principle of res ipsa loquitor could apply, there must be reasonable evidence of negligence. The effect of the application of the maxim is that the onus of proof of negligence normally placed on the plaintiff, shifts. The defendant is therefore required to establish that there was in fact no negligence on his part. See the cases of:

(1) S.P.D.C Ltd. Vs. Adamkue (Z003) 11NWLR (Pt. 832) p. 533;

(2) Shell Pet. Dev. Ltd Vs. Amaro (20002 10NWLR (pt. 675) p.248 and

(3) Flash Fixed Odds Ltd Vs. Akatugba (2001) 9NWLR (Pt.717) p.46.

The doctrine of res ipsa loquitor hinged upon by the Respondent does not apply in food or drink poisoning cases. There is no law to the effect for example that, if A consumes boiled potatoes and he thereafter have stomach upset, then that is it; the boiled potatoes is the cause of the upset. There must be more direct and positive proof of the actual cause of the stomach upset. The onus is factually placed on the Respondent in the present case to establish the nexus between the consumed star larger beer and his alleged ailment. This burden in my view was not discharged on a balance of probabilities. It is the duty of the trial Court to properly determine this based on the evidence adduced before it and not presume any fact for either or both part(ies). Each case is decided in the light of its own facts. See the cases of:

(1) Ngilari Vs. Mothercat (1999) 13 NWLR (Pt. 636) p. 626:

(2) Flash Fixed Odds Ltd Vs. Akatugba (2001) 9 NWLR p. 46 and

(3) Osigwe Vs. Unipetrol (2005) 5 NWLR (Pt.918) p.261.

I agree with the learned counsel for the Appellant that taken on its face value, exhibit C, it is quite obvious that the doctor who issued it made his diagnosis on mere suspicion and not based on even the direct clerking of the Respondent by him. There was no confirmation that in fact the star larger beer caused the condition complained of by the Respondent. The remaining content of exhibit D1 was not even presented to the said doctor, who could have possibly ordered a laboratory analysis of same. For a better appreciation, I reproduce hereunder the content of exhibit C as follows:

“OMEGA HOSPITAL, 16 BALEWA ROAD, ANKPA, KOGI STATE.

27.11.03

TO WHOM IT MA Y CONCERN MEDICAL REPORT

RE: Mr. David Audu.

The above named man was brought to us at about 8.10pm last night with a sudden on set diarrhea and vomiting associated with fever and at altered consciousness said to have started after taking beer said to have been contaminated with cockroaches. On examination, he was drowsy, febrile with cold clammy extremities. His BP = 60/ and Pulse Rate = 112/mm Fast and faint. A working diagnosis of hypovolemic shock secondary to severe gastroenteritis was made and he was admitted and managed as such.

He has improved remarkably and is being discharged this morning.

Thanks.

Yours sincerely,

Dr. Akubue A J. (MBBS)”

(The underlined are mine for emphasis)

In the case of: NBC Plc Vs. Olarewaju (2007) 5 NWLR (pt. 1027) p, 255, this Court held that, there is enough medical and science laboratory advancement in this country for a plaintiff in circumstances similar to those of the instant case, to have been taken full advantage of in determining whether or not the drink in dispute was contaminated, noxious and actually led to the illness of the consumer/plaintiff in that case. I feel strongly compelled to reiterate hereunder as follows the very succinct opinion of Ogunwumiju JCA in the said case of: N.B.C Plc, Vs. Olarewaju (supra) at page 269, paragraphs C-P.

“The Benin Division of this court decided in N.B.C. Vs. Okwejiminor (1998) 8 NWLR (Pt. 561) pg. 295 at pg. 308 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 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.”

Further on this point, see the cases of:

(1) Osigwe Vs. Unipetrol (2005) 5 NWLR (pt. 918) p. 261 and

(2) C&C Const. Co. Ltd Vs. Okhai (2003) 18 NWLR (Pt. 851) p.79.

In the case of: C&C Const. Co. Ltd Vs. Okhai (supra) the great jurist, Pats-Acholonu, J.S.C. of blessed memory at pgs. 100-101 paras. D-H stated as follows:

“The testimony of the appellants is full of patently clear contradictions laced with hyperboles and exaggerations.

To my mind, when the testimony of a witness has reached or attained the height of insipid or impotent exaggerations it should be disregarded as mere petulance and treated with ignominy. It is manifestly evident that it was when the crushing damage was done that it occurred to the appellants that the switch was still on hence the haste to switch it off.

The appellants had equally stated that the respondent having averred that:

“It was mechanically and scientifically impossible for the crane to energize itself”

did not adduce any mechanical or scientific evidence to prove his averment.

With greatest respect to this uncanny type of submission, it is mind boggling to expect the respondent to prove this. The averment of the equipment energizing itself was made by the appellants. It is therefore their onerous responsibility to prove that such a situation could occur or has occurred before and they had in the course of their work and experiences witnessed this sort of phenomenon. It is invidious and I dare say quizzical for the appellants to indulge in this type of reasoning and expect the court to take them seriously when they mired their argument by shifting the onus of proof of a particular assertion which they raised to the respondent. That frame of mind appears to me as an affront to reason, intelligence and of course law.”

(The underlined are mine for emphasis.)

I am in complete tune with the opinions of the courts in the above referred cases. I disagree with the Respondent’s learned counsel that the onus to prove that the content of exhibit D1 part of which was allegedly consumed by him was contaminated and led to his illness had shifted to the Appellant. Just as the learned trial Judge was wrong to presume or infer by just visualizing dead cockroach in the unopened bottle, exhibit D2 (which was not consumed by the Respondent), that the drink in question, part of exhibit D1 itself which was allegedly consumed by the Respondent was contaminated and led to his – the Respondent’s illness, without the chemical analysis of at least the remainder of the said consumed drink, exhibit D1 to confirm the noxious nature of same. Also, exhibit C which influenced the learned trial Judge’s mind in favour of the Respondent was not satisfactory evidence that, to the exclusion of all other consumables which the Respondent may have ingested on the day in question, it was the drink in dispute that led to the illness of the Respondent.

The law is settled that if there is an allegation that an error has been made by a trial court, it is the duty of an appellate court to decide whether the decision was right or wrong. See the cases of:

(1) The State Vs. John Ogbubunjo & Anor. (2001) 1 SCNJ p. 86;

(2) Allied Bank (Nig) Ltd Vs. Jonas Akubueze (1999) 6 SCNJ p. 116 and

(3) N.B.C Plc. Vs. Olarewaju (supra)

An erroneous decision of a lower court will not automatically result in an appeal against same being allowed unless the error is substantial and a miscarriage of justice has been occasioned thereby. See the cases of:

(1) Taofik Adesheinde Oyefolu & Ors. Vs. Durosinmi (2001) 7 SCNJ p.108;

(2) Lawani Alli & Anor. Vs. Chief G.A. Alesinloye (2000) 4 SCN p.264,.

(3) Jeje Oladele Vs. Oba Adekunle Aromalaran II (1996) 6 SCNJ p.1.

Generally, it is not the duty of an appellate court to re-evaluate the evidence of witnesses. The real reason behind this attitude of appellate courts is that the court hearing the appeal is at a disadvantage as to the demeanour of the witnesses in the lower court as they are not seen and heard by the appellate court. See the cases of:

(1) Ebba vs. Ogodo (1984) 1 SCNLR p.372;

(2) Duru Vs.Nwosu (J989J 4 NWLR (Pt.113) p.24;

(3) Oniah Vs. Onyia (1989)1 NWLR (Pt, 99) p.514 and

(4) Osadebay Vs. Ikejiofor (2001) 8NWLR (Pt.714) p.164.

An appellate court will however interfere with findings of fact where such findings of fact do not relate to the evidence or are not even in evidence, in which case the court relied on facts not in evidence before it or when some facts in evidence are not adverted to or considered by the trial court. Such findings are regarded as perverse or wrong because of violation of some principles of law or procedure. See the cases of:

(1) Onyia Vs Onuiqbo (1999) 11SCNJ p.1,;

(2) Onwuka Vs. Ediala (1989)1 NWLR (Pt.96) p. 182 and

(3) Idika Vs. Erisi (1988)2 NWLR (Pt.78) p.563.

To my mind, in the instant case, the findings of fact by the learned trial Judge were wrong and the decision therefrom was unjust because the findings were not the evidence adduced before him- that is-that the drink in dispute was noxious and that the drink led to the illness of the Respondent. It is settled law and our law reports are replete with a plethora of decided cases, one of them is the case of: U.B.N (Nig.) Plc. Vs. Emole (2001) 18 NWLR (Pt.745) p.501 that, it is not the duty of the court to make a case for a party or both parties different from the party/parties’ case(s) in a matter before it. It was held in that case that a person who claims that his account in a bank has been debited by the bank needs to prove the assertion by tendering the debit notes covering the sum or his statement of account which would be binding on the bank. That the respondent in the referred case having failed to prove that the sum in dispute was debited to his account, the trial court was held to be wrong to have ordered that the sum be credited into his account. In the present case, the assumption of or presumption by the learned trial Judge that the drink consumed by the Respondent, part of exhibit D1 was contaminated just because exhibit D2 contained remains of dead cockroach made it impossible for him to arrive at a just decision. It is therefore the bounding legal duty of this Court to disturb and reverse the said unjust decision of the trial Court. In all, issues one and three are fated to succeed. They are hereby resolved in favour of the Appellant and against the Respondent.

ISSUE TWO

Was the learned trial Judge right in awarding to the Respondent the sum of ten million Naira as general damages in the absence of any evidence to support same?

The learned counsel for the Appellant submitted that the law is trite that negligence is only actionable if actual damage is proved. He contended that the Respondent was silent at trial as to the actual loss or damage suffered by him to entitle him to the sum of Ten Million Naira awarded to him. The Respondent did not adduce evidence as to the loss in terms of job opportunities and or incapacitation. There can not be liability where there is no proof of loss or damage. The Respondent herein accordingly was not entitled to any form of compensation in damages. This contention was rested upon the case of: International Messengers Nig. Ltd Vs. Engr. D. Nwachukwu (2004) 6 SCNJ p.56 at p.73.

It was further argued in favour of the Appellant that the law is settled that where the quantum of loss is certain, an award of general damages is improper. The Respondent was only able to establish that he expended the sum of Three Thousand Naira only for the purchase of the two bottles of beer in dispute. This amount can only qualify as special damages, which unfortunately was not specifically claimed. Hence, the awarded general damages could not be said to be consequential to the unclaimed special damages. It is a settled principle of law that a court can not grant to a party what he did not ask for in his claim. On the above positions, the following cases were relied upon by the Appellant’s counsel:

(1) Ekpeyong Vs. Nyong (1975) 2 SC p.71;

(2) Nuba Commercial Farms Ltd & Anor. Vs. NAL Merchant Bank Ltd & Anor (2003)F.WL.R. (Pt.145) p.661.

(3) Owena Bank (Nig.) Vs. Mg. Stock Exchange Ltd (1997) 7 SCNJ p. 160 at p. 172 and

(4) Soetan & Anor. Vs. Ogunwo (1975) 6 S.C p. 67 at p. 75.

It was submitted in favour of the Appellant that, from the totality of the evidence adduced at trial, the learned trial Judge misdirected himself both in facts and law by awarding the said sum to the Respondent as general damages. This Court being empowered, was urged to set aside the awarded sum. He rested this submission on the cases of:

(1) Messsrs Dumez (Nig.) Ltd Vs. P.N Ogboli (1972) All NL.R. p. 244 and

(2) Shell Petrol Co. of Nig. Ltd Vs. G.B.A. Tiebo VII (2005) 4 SCNJ p. 39 at p. 58.

The learned counsel for the Respondent replying under this issue submitted that, the Respondent claimed five hundred million Naira as general damages for the injury suffered as a result of the Appellant’s negligence. It is clear from the evidence before the trial Court that the Respondent suffered damages. He expended money to buy the drinks that occasioned the damage. He expended money for treatment in the hospital. He also went through pain and suffering while the ailment lasted.

It was argued for the Respondent that he did not claim special damages and so the issue of strict proof did not arise. His only claim was in general damages and the law does not foist on him the duty to prove by particularizing his claims as required in respect of special damages. General damages are such that the court will award in the circumstances of a case. The yardstick for the assessment of an award of general damages is that of the expectation of a reasonable man. General damages are presumed by law to be the direct natural probable consequence of the act complained of and generally incapable of exact calculation. On this legal position reference was made to the cases of:

(1) Nwachukwu Vs. Egbuchu (1990) 3 NWLR (Pt.139) p.435:

(2) A.N.T.S. Vs. Atoloye (1993) 6 NWLR (Pt.298) p.233 at p. 255;

(3) Lar Vs. Stirling Astaldi (Nig.) Ltd (1977) 11-12 S.C. p. 53;

(4) Odulaja Vs. Haddad (1973) 11 SC 357 and

(5) Ezeani Vs. Ejidike (1964) 1 All NLR p.402.

In determining the amount to award as general damages, a trial court must make its own assessment of the quantum of such damage in the light of the evidence before it. The matter is in the discretion of the court to award a fair and reasonable compensation having regard to all the circumstances of the particular case. On this stand, reliance was placed on the cases of:

(1) West African Shipping Agency vs. Kalla (1978) 3 SC p.21;

(2) Okuneye Vs. Lagos City Council (1973) 2 CCHCJ p.38;

(3) Anumba Vs. Shohet (1965) 2 All NLR p.183 and

(4) UAC (Nig.) Plc vs. Irole (2001) 5 NWLR (Pt.707)p. 583.

In an award for general damages, if the issue of liability is established, a trial Judge is entitled to make his own assessment of the quantum of such general damages and, on appeal, such general damages will only be altered or varied if they are shown to be either so manifestly too high or extremely too low or that they were awarded on an entirely wrong principle of law as to make it in the judgment of the appellate court an entirely erroneous estimate of the damage to which plaintiff is entitled. On this principle of law, reference was made to the cases of:

(1) Neka Ltd Vs. A.C.B. (2004) 1 SCNJ p, 193 at p. 219, Zik’s

(2) Press Ltd Vs. Ikoku (1951) 13 WACA p.88; and

(3) Bola vs. Bankole (1986) 3 NWLR (Pt.27) p. 141.

The learned counsel for the Respondent submitted that in the instant case the Respondent claimed five hundred million Naira as general damages and the trial Court in its wisdom awarded only ten million Naira. The Appellant has not shown that this award is unreasonable or based on a wrong principle of law. In view of the circumstances of the case the award is fair and reasonable.

I have given due consideration to the submissions of the learned counsel for both parties for and against the complaint under issue two. On the meaning, nature and ingredients of actionable negligence, I wish to refer to the decision of the Supreme Court in the case of: Makwe Vs. Nwufor (2001) 14 NWLR (Pt.733) p.356. My Lord Iguh, J.S.C. (Rtd.) at pgs.374-375 paras.E-D had the following to say:

“In the first place, it is a basic principle of law that there can be no action in negligence unless there is damage. Negligence is only actionable if actual damage is proved. The gist of the action is damage and there is even no right of action for nominal damages. See Munday Ltd. L.C.C. (1916) 2 KB 331, Hambrook Vs. Stokes Bros. (1925) 1 KB 141 at 156. As Lord Reading, C. J. observed in Munday Vs. London County Council (1916) 2KB 331 at 334; a statement of law which received the approval of the judgment of Her majesty’s Privy Council per Viscount Simon, L.c. in E. Suffolk Rivers Catchment Board Vs. Kent (1941) AC 74 at 86.

“Negligence alone does not give a cause of action; damage alone does not give a cause of action, the two must co-exist”

In the second place, the essential ingredients of actionable negligence are:-

(i) the existence of a duty to take care owed to the complainant by the defendant.

(ii) failure to attain that standard of care prescribed by the law.”

(iii) damage suffered by the complainant, which must be connected with the breach of duty to take care.

Once these requirements are satisfied, the defendant in law will be held liable in negligence.

Negligence as a tort may thus be described as the breach of a duty to take care imposed by common or statute law, resulting in damage to the complainant. In Lochgelly Iron and Coal Co. Vs. M’ Mullan (1934) AC 1 at 25, Lord Wright succinctly put the matter thus:-

“In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission.” it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.”

See too The Wagon Mound (No.1) (1961) AC 388 at 425. And I ask myself whether having regard to all that I have stated above, it can be said that the appellant’s action against the respondents is in negligence. I think not.”

On the issue of damages, it is trite that generally, an appellate court will not interfere or disturb the trial court’s assessment or award of damages unless it is manifest that the trial court acted on a wrong principle of law or that the amount awarded is so high or so low as to constitute an erroneous estimate of damages. See the cases of:

(1)Francis Osawe Eseigbe Vs. Friday Agholor & Anor. (1993) 9 NWLR (pt.316) p.128;

(2) Elf (Nig.) Ltd Vs. Opere Sillo & Anor. (1994) 6 NWLR (Pt.350) p.258;

(3)Alphansus Ibeanu & Anor. Vs. Peter A. Ogbeide (1998) 12 NWLR (Pt 576) p.1;

(4) Joseph Onwu & Ors. v. Ezekiel Nka & Ors. (1996) 7 SCNJ p.240 and

(5) A.CB. Ltd & Ors. Vs. B. B. Apugo (2001) 2 SCNJ p.248.

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