Judgement of the Court

The suit was commenced at the Ughelli Judicial Division of the High Court of then of Bendel

State but now of Delta State on or about the 18/3/91. The Plaintiff therein is the Appellant herein

while the Defendants are the Respondents herein. The Appellant claimed against the

Respondents jointly and severally as follows:

(a) The sum of N551.00 being medical expenses borne by the plaintiff as a result of the

negligent acts of the defendants in bottling and selling a contaminated and poisonous

Fantaorange drink to the plaintiff.

(b) The sum of N27.00 being costs of the crate of mineral purchased from the 1st

defendant.

(c) The sum of N299,000.00 being loss of business expectation profits or income for the

period of the plaintiffs treatment and time for recuperation.

(d) The sum of N700,422.00 being general damages for loss of life expectancy.

(e) The sum of N1,000,000.00 being damages for shock pain, agony and discomfort

suffered by the plaintiff as a result of the contaminated Fantadrink bottled and sold

by the defendant.

Total sum claimed N2, 000,000.00.

Pleadings were settled and exchanged. The actual trial itself involved the testimony of five

witnesses for the plaintiff and two for the defence.

Mr. E Okwejiminor alleged at the trial that he bought and drank a bottle of Fanta orange from

Mrs. Gbakeji, a distributor of Nigerian Bottling Company (N.B.C.) that contained a dead

cockroach and a germ called Shigema, leading to his vomiting, stooling and illness. The trial

court ruled in his favour on the grounds that it must be assumed that the drink must have been

manufactured by N.B.C.

The Appeal Court ruled in favour of N.B.C. on the grounds that there was no evidence to supportMr. Okwejiminor's claim as N.B.C.'s had shown that its production process was good and that itmust be strictly proved that nothing else might have caused his illness. The Court of Appealmade an issue of the fact that appellant mentioned in cross-examination that he had bread and teaon the morning of the incident that might have been the cause of the illness. It was argued by Mr.Okwejiminor's lawyer that Mrs Gbakeji having admitted the sale of Exhibit "H" to the appellantfor N27.00 and having regard to the established fact that she was one of the sources throughwhich the 2ndrespondent marketed her products there was an implied warranty on her part thatthe said Exhibit "H" was safe for human consumption. Exhibit "J" which had not been openedalso contained a fly and same was also sold by the 1strespondent, it was pointed out.

Both theTrial and Appeal courts excused Mrs. Gbakeji from liability on the ground that she was merely aconduit pie in the whole matter.Lawyer for N.B.C. pointed to the evidence of the PW2 under cross-examination to the effect that

the stooling and vomiting could have been caused by cholera or typhoid fever or indeed over

eating and submitted that the appellant did not exclude by evidence the possibility of his illnesshaving been caused otherwise than by the Fanta orange drink. It was submitted therefore thatthe finding of the Court of Appeal cannot be faulted. It was further argued that the Mr.Okwejiminor had to prove that the cockroach was present in the bottle at the time the drink leftthe 2ndrespondent's factory.

Counsel referred to Daniel's and Daniel's v White (R) & Sons Ltd(1938) KBD258 and Clerk and Lindsell on Tort 16tb Edition at page 691and submitted thatwhere a defendant is able to show that he has taken all reasonable care in his production processhe would have successfully rebutted negligence.

By way of conclusion learned counsel for N.B.C. submitted that in order to succeed the

plaintiff/appellant must prove, but had failed to prove:

1. Duty of care by N.B.C. to Mr. Okwejiminor

2. Breach of duty of care; and

3. Damage resulting from the breach of duty of care.

Questions:

1. Do you agree with the argument of NBC's counsel?

2. Should Mrs. Gbakeji have been let off?

3. What lessons can you take away for your own business?