Nigerian Bottling Company Ltd. V. Constance Obi Ngonadi (1985)
LawGlobal-Hub Lead Judgment Report
A. OPUTA, J.S.C.
The essential facts of this case are in the main not in dispute. What seems to be in dispute is whether from those facts one could have drawn the inference of negligence as the trial court and the Court of Appeal did.
The plaintiff in the court of first instance and respondent in this Court “trades on beer and soft drinks on a retail basis or runs a beer parlour.” For the purposes of the said beer parlour, the plaintiff/respondent bought from the defendant/appellant “a kerosine fridge known as and called Evercold Refrigerator/Cooler” Serial Number S/W.77464 OM. 2812.
The said refrigerator was delivered by the defendant/appellant to the plaintiff/respondent on 1212175. On or about 14/2/75, the said fridge sold to the plaintiff/respondent caught fire while in use. The plaintiff/respondent promptly reported this incident to the defendant/respondent who instructed one of its technicians to accompany the plaintiff/respondent to her beer parlour at Agbor and there effect necessary repairs to the now apparently and visibly faulty refrigerator.
This was done. On or about the 29th August, 1975 again while in use in the plaintiff respondent’s beer parlour, the refrigerator exploded resulting in extensive personal injuries to the plaintiff/respondent. She was severely burnt and suffered pain and shock. She was treated in several hospitals and she incurred considerable medical expenses.
On these facts the plaintiff/respondent sued the defendant/appellant claiming N50,000.00 being general and special damages for negligence. Pleadings were ordered, filed and duly exchanged. There were several amendments to the pleadings on either side. The case was ultimately tried on the issues rightly raised on the plaintiffs/respondent’s Re-Amended Statement of Claim and the defendant’s/appellant’s further Amended Statement of Defence.
After due hearing, the learned trial judge Maidoh, J. observed;
“1 have fully considered the evidence before me and Exhibits tendered in the proceedings ….. The parties agreed that the Defendant Company sold the Evercold Refrigerator to the Plaintiff on or about the 12th of February, 1975 in Benin City. It is not disputed that two days after the purchase the Plaintiff reported to the Defendant Company that the fridge was giving trouble. It is also common ground that Defendant sent one of its workers to rectify the anomaly in the fridge. It is not disputed that on or about the 29th day of August, 1975, the fridge exploded and injured the plaintiffs person. The extent of the pain or injury to the plaintiff was never contested.”
As) mentioned earlier on, the main factual props of this case are not in dispute. The above observation of the learned trial judge confirmed this. What was in dispute seemed to be:
- whether the defendant/appellant knew for what purpose the plaintiff/respondent bargained for and bought the fridge
- whether the defendant/appellant gave to the plaintiff/respondent an oral warranty of fitness of the fridge for the aforementioned purpose
On these two points, the learned trial judge found on the evidence before him:
“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.”
Having so found as above, the learned trial judge concluded:-
“I therefore accept the submission of Mrs. Edewor, learned counsel for the plaintiff, that the provisions of Section 15 Sale of Goods Law Chapter 150 Vol. V) Laws of Bendel State of Nigeria 1976 apply. That being so, there is implied condition as to the qualify of fitness of the goods sold to the plaintiff by the defendant. Having regard to the wording of Section 15(a) of the Sale of Goods Law, 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.”
The next question that naturally and consequentially arose was – Was there a breach of this duty or was the explosion due to the negligence of the plaintiff/respondent It is relevant here to note that the defendant/appellant pleaded contributory negligence. From the pleadings of the parties, the onus was on the plaintiff/appellant to prove negligence and on the defendant/appellant to prove contributory negligence. Each side had to lead evidence from which negligence or contributory negligence could be inferred. Where, as in this case, a warranty was implied by Statute and the plaintiffs/respondent’s action was based on the breach of that warranty, in other words, the warranty formed the basis of the action in negligence, the onus was still on the plaintiff/respondent to prove the special relationship out of which arose the duty of care and what amounted to a breach of that duty.
The plaintiff/respondent proved her relationship (buyer/seller) with the defendant/appellant. She proved that contrary to the assurance of fitness and safety given to her by the defendant/appellant, the refrigerator that was sold to her was a hidden danger, a “time bomb” which exploded on the 29th August, 1975. The defendant/appellant merely suggested several ways in which the tank of a refrigerator can catch fire. How did the trial court deal with the evidence tending to establish negligence or contributory negligence The learned trial judge believed the plaintiff/respondent and the 6th P.W. as to how the explosion occurred and held:
“I believe the evidence of the plaintiff and the 6th plaintiff’s witness as to how the accident happened. The evidence was never controverted and it remains unchallenged in the proceedings. In an attempt to refute the evidence, however, the Defendant suggested various ways in which the tank of a fridge could be involved in an explosion. I must say out-right that the evidence was speculative and I prefer the evidence of the plaintiff in this regard, in arriving at my decision”….. The plaintiffs contention had been that the defendant sold to her a fridge which was defective or which the defendant ought to know to be defective, if reasonable care, was taken by the defendant. This negligence on the part of the defendant occasioned the injury on the plaintiff.”
On the evidence and findings thereon, the learned trial judge concluded:
“On the whole I am satisfied that the plaintiff has established her case against the defendant and her action succeeds.”
The plaintiff/respondent was then awarded N435.50 special damages and N30,000.00 as general damages. The defendant/appellant appealed from the above decision of Maidoh, J. to the Court of Appeal Benin Division. In a well-considered judgment Pepple, J.C.A. (Omo-Ebo and Okagbue, JJ.CA. concurring) upheld the judgment and award of the learned trial judge and dismissed the defendant’s/appellant’s appeal. Only two issues were agitated before the court below, namely:-
- That neither in the Summons nor in her pleadings did the plaintiff/respondent plead and set out the Particulars of the Negligence she alleged nor the Particulars of her injury. There was therefore no basis for the award of general damages of N30,000.00 or special damages of N435.50.
- That the trial judge was wrong in not considering the contributory negligence of the plaintiff/respondent.
The court below rejected the defendant’s/appellant’s submissions and dismissed the appeal. The defendant/appellant having lost in two courts, has now appealed to this Court.
The 1st ground of appeal complained:-
“1. That the learned Justices of Appeal erred in law in holding that the defendant/appellant was negligent in the sale of the refrigerator that had latent defect when there was no basis for such conclusion on appeal.”
If I understand this ground of appeal properly, the only quarrel is over the word latent which did not appear in the pleadings to qualify the word defect. The defect was pleaded in paragraph 8 of the Re-Amended Statement of Claim where the plaintiff/respondent pleaded that:-
“8(i) … The defendant sold and delivered to the plaintiff the said Evercold Refrigerator which the defendant knew or ought to have known to be defective.
8(ii) The defendant failed to remedy or properly remedy the defect in the said Evercold Refrigerator which manifested itself on 14/2175 and which defect was reported to the defendant by the plaintiff on 15/2/75.”
From the above, there is absolutely no merit in this ground. All that the rules of pleading required of the plaintiff was an averment that the Evercold Refrigerator sold to her by the defendant/appellant was defective. This was done. Also from the evidence which was not controverted, the refrigerator was not inspected by the plaintiff. It was delivered to her in a crate at Agbor where it was unpacked and installed by servants of the defendant/appellant on 12/2/75. Two days after that delivery, the defect manifested itself. It was therefore a latent defect. If it were otherwise – an open defect which the plaintiff/respondent saw and was aware of there will be no need for the oral warranty given to the plaintiff/respondent by the defendant/appellant; and there too, the doctrine of caveat emptor might have become an important issue for consideration. There was ample evidence on which the trial court and the court below were fully justified in finding that the Evercold Refrigerator sold to the plaintiff/appellant had latent defect. This ground therefore fails.
What is more important is that the court of trial and the Court of Appeal both made concurrent findings of fact with regard to the defective nature of the refrigerator sold to the plaintiff/respondent by the defendant/appellant. Both courts held that in the peculiar and surrounding circumstances of this case, the defendant/appellant was negligent in selling a defective refrigerator to the plaintiff/respondent. The principle that has been stated times without number in this Court is that it will not generally interfere with concurrent findings of fact of both the trial court and the Court of Appeal. Such findings cannot here be disturbed merely because there was an alleged omission in the pleadings of the word “latem” in describing the defect in the refrigerator. There has been no miscarriage of justice, no serious violation of some principle of law or procedure to warrant a departure from the general rule of non-interference with concurrent findings. Ground I therefore does not prima facie show good cause for interfering with the two concurrent judgments in favour of the plaintiff/respondent. See Stool of Abinabina v. Enyimadu (1935) 12 WACA. 171; Mogo Chinwendu v. Nwanegbo Mbamali 1980) 3/4 SC: 31 at p. 53 and at p. 75; Chief E.A. Lamai v. Chief C. K. Orbih (1980) 5 SC. 28 at p. 29; Ukpe Ibodo & Ors. v. Iguasi Enarofia & Ors. (1980) 6/7 SC. 42 at p.50.
The next issue agitated and canvassed before us was the issue of the quantum of general and special damages awarded by the courts below N30,435.50 which was described as “fantastic or excessive.” It was also argued that the court below erred by not considering the defence of contributory negligence. These were the complaints in Grounds 3 and 5 of the grounds of appeal which were treated together in the appellant’s/defendant’s Brief and argued together before us.
In assessing damages in this kind of cases, the trial court is bound to consider the pain and suffering the plaintiff/respondent underwent, whether or not she had permanent disability or disfigurement, the period she spent in 1985 1 NWLR Nig. Bottling Co. Ltd. v Ngonadi (Oputa, J.S.C.) 747 hospital etc. The medical officer who treated the plaintiff/respondent after the explosion, Dr. Samuel Ozomokhua called as the 1st P.W. testified as follows:-
“I medically examined her and found as follows:-
1st and 2nd degree burns of the right side of the face extending to the right side of the ear and neck.
2nd and 3rd degree burns of the breast muscle, right axilla (armpit) extending to the right chest and the right lower quadrant of the abdomen.
2nd and 3rd degree burns of the right shoulder and the whole of the right arm up to of the dorsum of the right hand (upper skin caner of the finger).”
Continuing his evidence, the 1st P.W. added:
“3rd degree burn is where the whole structure of the skin is burnt……It leaves back depigmented scar i.e., the scare cannot get back the original colour of the skin.”
Testifying as to the resulting effect of the plaintiffs/respondent’s injuries, the medical witness – 1st P.W. concluded:-
“There was incomplete restoration of muscular flexibility and power. Therefore the plaintiff/respondent cannot lift heavy loads with the right hand; nor withstand muscular assault: ….. She cannot properly wash clothes, grind pepper or pound yam …. She will easily get tired in discharging domestic duties.
Breast Affectation
…..This would affect the breast feeding of her children….”
“Cosmetic Affectation
As a young lady the pigmented colour can never be restored. She cannot use normal female’s cosmetics ….. otherwise she may have cancer of the skin.
Social Affectation
She cannot take part in cultural dances where the breast and hands are exposed. She has to wear long sleeves to avoid exposure of the ugly scar left there after the burns.
Remote Affectation
Quick ageing of the hand and skin, some minor or major mental disturbances.”
I have to note that this witness was not shaken at all by the defendant’s/appellant’s cross-examination.
On the above medical evidence, I wonder how it can be seriously contended that the award of N30,000.00 general damages was fantastic or excessive.” What would be the cost in Naira and Kobo of pain and suffering, of loss of muscular flexibility, of inability to breast feed one’s children, of permanent disfigurement of one part of the body, of possible major mental disturbances The court of first instance took account of all these and arrived at the figure of N30,000.00 (to my mind a very conservative assessment). The defendant/appellant is just fortunate that the plaintiff/respondent did not appeal against the award of only N30,000.00. The court below found no reason to disturb or vary the award. In one sense, this Court is now being asked to vary the concurrent findings of these two courts on the quantum of general damages. The burden is on the defendant/appellant to satisfy this Court that the award of general damages in this case was manifestly so excessive as to amount to an erroneous estimate vis-a-vis the evidence. This burden has not been discharged. The special damages based on receipts tendered in evidence cannot be disturbed. This ground of appeal therefore fails.
The defendant/appellant also complained that the learned Justices of the Court of Appeal “failed to consider the defences of contributory negligence pleaded and urged in submission.” To plead contributory negligence is one thing but it is an entirely different thing to establish the contributory negligence thus pleaded by credible evidence. In this case, there was not an iota of evidence to establish any contributory negligence on the part of the plaintiff/respondent. In this regard, the learned trial judge, Maidoh, J. observed:
“The defendant suggested various ways in which the tank of a fridge could be involved in an explosion. I must say out-right that the evidence was speculative.”
I entirely agree. To establish contributory negligence, there ought to be evidence of what the plaintiff/respondent did or failed to do that either caused or contributed to the explosion. On this point, the Court of Appeal observed:-
“Allegation was made in paragraph 8 of the further Amended Statement of Defence that the respondent was negligent in operating the refrigerator, but Mr. Monday Edo who represented the appellant did not prove the allegation; no evidence whatsoever was led as to her negligence. The respondent said she operated the refrigerator in the way she was taught to do by Bayo, the appellant’s technician. But Bayo was not called to say what he taught her to do which she failed to do, or did wrongly, or what she did which she was not supposed to have done.”
The court below therefore, contrary to the point here being urged, did consider the question of contributory negligence pleaded but found that it was not established by evidence. The mere pleading of Contributory Negligence is not enough. The particulars of such negligence ought to have been pleaded and proved in evidence before this ground of appeal could be urged at all with any seriousness. This ground is devoid of any merit. It therefore fails.
Ground 4 of the grounds of appeal complained that:-
“4 The learned Justices of Appeal erred in law in their consideration of Section is of the Sale of Goods Law Cap 158 Laws of Bendel State was correctly applied by the learned trial judge in this case in favour of the plaintiff/respondent when the learned Justices of Appeal held as follows:-
“It seems to me that not only was the appellant negligent in selling to the respondent a refrigerator in which there was a latent defect which caused it to explode……..as found by the learned Judge.”
Particulars
(a) The appellant was clearly established to be distributor and not a manufacturer of the said Refrigerator.
(b) The issue of latent defect not pleaded nor established by the respondent.
The Section cited does not envisage the risk or absolute liability of a distributor like the appellant.
From the evidence on both sides, it was clear that the said Refrigerator was of a foreign make.”
I have already dealt with the issue of the pleadings and the omission of the word “latent” to qualify the defect therein clearly pleaded. I will not under ground 4 above, consider the liability of the defendant/appellant who, it is conceded on both sides, was merely the distributor and not the manufacturer of the refrigerator that exploded and injured the plaintiff/respondent.
From the pleadings and the evidence of the parties, it is common ground that it was the defendant/appellant who sold the refrigerator that exploded to the plaintiff/respondent in Benin City in Bendel State. There is therefore no doubt that the Sale of Goods Law of Bendel State Cap 150 of the Laws of Bendel State of Nigeria 1976 will apply to that contract of sale. Section 15(a) of that Law stipulates:-
“15(a) Subject to the provisions of this Law and of any written law in that behalf there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:-
(a) where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he, be the manufacturer or not), there is an implied condition that the goods will be reasonably fit for such purpose …..”
In this case, the plaintiff/respondent gave evidence which was believed:-
(i) That she told the Manager of the defendant’s company that she needed the refrigerator for her beer parlour.
(ii) That the Manager said that the refrigerator was well suited for that purpose.
(iii) That the Manager encouraged her to buy the refrigerator which he said was newly invented.
(iv) That the Manager introduced her to one Bayo – the Company’s technician who was asked to accompany her from Benin to Agbor to instal the refrigerator.
(v) That the refrigerator arrived Agbor in a crate which was opened at Agbor.
(vi) That the Manager told her that the refrigerator was safe, easy to operate and performs wonderfully.
On the evidence before him, the learned trial judge, Maidoh, J. was satisfied that the defendant/appellant knew the plaintiffs/respondent’s purpose for buying the refrigerator and further that she (the plaintiff) relied on the defendant’s expert opinion that the refrigerator was suitable and safe. In my view, the facts stated above fully and squarely brings the defendant/appellant within the warm embrace of Section 15(a) of the Sale of Goods Law of Bendel State Cap 150 of 1976. There was thus an implied warranty as to the fitness and safety of the refrigerator. The breach of this warranty gives the plaintiff/appellant the right to sue for damages.
A point was raised under ground 4(a) of the grounds of appeal that the defendant/appellant was merely the distributor of the goods sold (the refrigerator) and not the manufacturer. The defendant/appellant cannot be serious here. For one thing, Section 15(a) of the Sale of Goods Law of Bendel State Cap 150 of 1976 does not draw that distinction. In express language, its provisions apply “whether he be the manufacturer or not.” Secondly it is far too late in the day to draw that distinction. Lord Atkin in his famous dictum in Donoghue v. Stevenson (1932) A.C. 562 at p.580 observed:-
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyer’s question, who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.”
In this case, who can be closer to the plaintiff/respondent than the defendant/appellant The defendant/appellant’s company sold the refrigerator to her; that company through its Manager, assured her that it was safe and suitable; that company had a duty of care not to sell dangerous articles to buyers, that company was in breach of that duty. On the notion and doctrine of proximity as laid down by Lord Esher in Heaven v. Pender (1882) 11 Q.B.D. 503 at p. 509 the nearest person to the plaintiff/respondent in this case was the defendant/appellant. It does not make any difference that the plaintiff/respondent in this case could equally have sued the manufacturer. But from the logistics of this case, it is much better and easier for the plaintiff/respondent to sue the defendant/appellant. In Andrews v. Hopkin (1957) 1 Q.B.D. 229 the plaintiff bought a car from the Sales Manager of a dealer in second-hand cars who assured him that the car was good and added “you will have no trouble with it. I would stake my life on it.” A week after the purchase, the plaintiff was injured in a collision owing to defect in the car- failure of the drag-link joint of the steering which was not safe or fit for use on the highway. It was held inter-alia that the plaintiff could maintain an action in negligence against the dealer for putting “into circulation in the hands of his customer a car which was in a dangerous condition and was accordingly also liable in negligence for the like damages.”
I have dealt with this aspect of the appeal “rather gratuitously.” It was not taken up in the Court of Appeal. But this Court in Samuel Fadiora & anor. v. Festus Gbadebo and anor. (1978) 3 SC. 219 at p. 248 stressed that the Supreme Court as a Court of last resort is competent to entertain a point
of law raised for the first time before it when the justice of the case so dictates. This is however subject to the proviso that the point is a substantial point of law. The Court may however refuse to entertain the question of law sought to be raised for the first time if it is satisfied that the court below would have been in a more advantageous position to deal with the matter: Agnes Deborah Ejiofodomi v. H. C. Okonkwo (J 982) 11 SC. 74 at p. 111. J do not here see any advantage the Court of Appeal would have had over this Court in deciding whether the plaintiff/respondent was right in suing the defendant/appellant rather than the manufacturer of the faulty refrigerator. The House of Lords in Donoghue v. Stevenson (supra) merely extended the limit of liability (far beyond the actual seller or the article to the ultimate consumer) to the manufacturer. The ultimate consumer has an option either to sue the person who sold to him or anyone in the chain of distributorship up to the manufacturer. In other words, the manufacturer can be reached although the goods were purchased from a distributor to whom the manufacturer sold. This ground therefore also fails.
In the final result, all the grounds urged before us and/or argued in the appellant’s Brief fail. The appeal fails and should be dismissed. It is hereby dismissed with costs to the respondent which I assess at N300.00
SC.103/1984
