NBC PLC & ANOR v. OGOR (2020)

NBC PLC & ANOR v. OGOR

(2020)LCN/14824(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/PH/388/2019

RATIO

EVIDENCE: THE PROOF OF CIVIL CAUSE

The proof of civil cause and matter as provided in Section 134 of Evidence Act 2011 is on the balance of probabilities, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. Civil cases are therefore determined on balance of probabilities and must be proved by credible evidence that is relevant to the issue in controversy. See ELIAS V. DISU (1962)1 ALL NLR 214; WOLUCHEM V. GUDI (1981) 5 SC 291. The burden of proof in civil cases is not static on the parties, while the plaintiff bears the burden of establishing his case, there are instances in which the defendant may be required to call evidence in proof or rebuttal of some point depending on the pleadings. See ADEGOKE V. ADIBI (1992) 5 NWLR (PT. 242) 410. PER AKEJU, J.C.A.

EVIDENCE: BURDEN OF PROOF IN AN ACTION FOR DAMAGES FOR NEGLIGENCE

The law is that the burden of proof in an action for damages for negligence rests on the Plaintiff who must show that he was injured by the negligent act or omission for which the defendant is responsible. The Plaintiff has the duty to show some duty owed to him by the defendant, a breach of that duty, and an injury to the Plaintiff as a result of the breach. See IYERE V. BENDEL FEED AND FLOUR MILL LTD (2008) 7 – 12 SC 151. PER AKEJU, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TO FINDINGS OF FACT OF THE TRIAL COURT

The law is quite settled that an appellate Court does not ordinarily interfere with the findings of fact made by the trial Court. See OLAREWAJU V. THE GOVERNOR OF OYO STATE (1992) 11/12 SCNJ 92. The appellate Court may however make its own findings where the findings do not involve the demeanour of witnesses. See BAMGBOYE V. RAIMI OLAREWAJU (1991)4 NWLR (PT.184)132. PER AKEJU, J.C.A.
DAMAGES: NATURE OF THE CLAIM FOR GENERAL DAMAGES

The claim for general damages is a claim at large and the quantum is always made by the Court upon the opinion of a reasonable man as to what is adequate compensation for the loss or inconvenience arising naturally or presumed by law to have arisen as a result of the conduct of the defendant. It does not depend upon calculation made and figure based on specific items. See UBN PLC V. AJABULE (2011) 12 SC (PT.IV)1. PER AKEJU, J.C.A.

DAMAGES: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH AN AWARD OF GENERAL DAMAGES BY THE TRIAL COURT

Before Our Lordships:

Isaiah Olufemi Akeju Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

1. NIGERIAN BOTTLING COMPANY PLC 2. THE GENERAL MANAGER NIGERIA BOTTLING COMPANY LTD. APPELLANT(S)

And

DAN OGOR RESPONDENT(S)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): By the Writ of Summons and Statement of Claim filed at the High Court of Rivers State on 1st December, 2016 the Respondent as the Claimant sought the following reliefs against the Appellants as the Defendants: –
a. The sum of N10,000,000.00 being and representing general and special damages as a result of the Defendant’s negligence in the processing and preparation of the Coca-Cola products that led to the claimant being critically sick and Hospitalised in the Hospital.
1. General Damages N9,000,000.00
2. Special Damages N1,000,000.00
3. Hospital Bill N50,000.00
4. Routine Checks N10,000.00
5. Transportation N10,000.00
6. Cost of Action N900,000.00
7. Anticipated gift N30,000.00
B. The sum of N2,000,000.00 being and representing the cost of litigation.

In their statement of defence filed on 5/6/2017, the Defendants/ Appellants denied the allegations of fact in the Claimant’s Statement of Claim. The Statement of Defence was deemed properly filed and served on 26/6/2017. The Appellants Claimed that they were not negligent but exercised all care in preparation of Coca Cola Products. They further denied any injury to the Respondent.

The Respondent had alleged that on 15th May, 2016, he purchased a crate of mineral for the purpose of celebrating his birthday, the crate of mineral was bought from a store in his neighbourhood and that from that crate of mineral he drank a bottle of Coca-Cola during the celebration of the birth day, but about 30 minutes after drinking the Coca-Cola he began to feel severe pains in his abdomen while he started to stool and vomit and consequently passed out as a result of which he was rushed to Braithwaite Memorial Hospital Port Harcourt where he was examined by the Doctor who confirmed that he (Respondent) drank some debris and cockroach from the Coca-Cola drink. When he got home after his discharge he checked the remaining coco-cola drink and discovered that the bottle of Fanta contained contaminations and harmful substances. The Respondent averred that he suffered psychological and physical trauma and loss as a result of which he instituted this action.

At the trial, the Respondent gave evidence as the CW1 and called another witness who gave evidence as the CW2. The CW1 adopted his written deposition and tendered exhibits A, B and C while the CW2 tendered medical report as exhibit D. The Appellants as the Defendants called one witness as Dw1. He adopted and gave evidence as to the care the Appellants took in preparing their products and denied the allegation that there was poisonous or harmful substance in their product.

After the final written address of the counsel to the parties, the learned trial Judge held that the Appellants owed a duty of care to the Respondent and awarded a sum of N5,000,000.00 in favour of the Respondent.

Dissatisfied with the Judgment of the lower Court the Appellants gave their Notice of Appeal which was filed on 19th June, 2019 with four grounds of appeal following which the Appellants’ Brief of Argument prepared by Abayomi A. Akinwumi of Counsel was filed on 24th September, 2019, and the Respondent’s Brief settled by Tamunotonye A. Ngeri of Counsel was filed on 24/10/2019.

The Appellants formulated two issues for determination as follows:
1. Whether the learned trial Judge was correct in finding that the Respondent suffered damages in any way as a result of

drinking any product made by the Appellants.
2. Whether the award of N5,000,000.00 damages by the learned trial Judge is justified by the evidence led before the Court.

According to the learned counsel for the Respondent, the issue for determination is whether the Judgment is against the weight of evidence.

The Appellants’ Reply Brief was filed on 31/10/19.
In his argument on the first issue, the learned counsel for the Appellants submitted that it is the Respondent that bears the burden of proving the negligence in this case, that the Appellants were negligent and breached their duty of care to the Respondent.

He submitted that in order to prove negligence on the part of the Appellants, the Respondent has to prove that he bought and consumed a product made by the Appellants and offered by them for sale to the public; that the product was defective and dangerous due to the negligence of the Appellants, and that the defective or dangerous product was responsible for harm or loss suffered by the Respondent.

It was submitted that the Respondent’s evidence in this case fell short of the foregoing requirements as he said he bought the crate of mineral drink from a neighborhood store and not from the Appellants and did not show that he bought same from authorized dealer or distributor of the Appellants. The Appellants having stated the mechanism their products pass through before sale to the public, the burden fell on the Respondent to prove that the coke he drank was dangerous as a result of the negligence of the Appellants.

It was contended that there was no evidence that the averments as to the production cycle stated by the Appellants was false or that it broke out, while there was nothing to show that the coke allegedly drank by the Respondent was produced by the Appellants nor was the chain of its custody traced to the Appellants. The learned counsel submitted that this lack of evidence is fatal to the case of the Respondent and the findings of the learned trial Judge are not supported by evidence; NBC V. OLAREWAJU (2007) 5 NWLR (PT. 1027) 255.

It was contended that the Respondent merely relied on his own ipse dixit without calling at least one person that was at the birthday party where the Respondent allegedly drank the cockroach or the bottle containing it and no explanation was given for not producing the bottle.

It was submitted that the Respondent failed to lead credible evidence in support or in corroboration of his own evidence and therefore failed to prove his allegations as required by the Evidence Act that the burden of proving his assertions was on the Respondent especially where the assertions are not admitted NIGERIAN BREWRIES PLC V. DAVID AUDU (2009) LPELR CA/A/235/05.

It was contended by the learned counsel that the Respondent as the CW1 sought corroboration in the evidence of the CW2, but the CW2 did not see the cockroach and based his evidence and report on the story told him by the Respondent. It was argued that there was no laboratory test that was presented to show that there was anything wrong with the Coke taken by the Respondent, the CW2 also did not state the type of test, whether it was laboratory test and the test was not tendered, the implication of which by Section 148(d) of the Evidence Act is that the result of the test must be presumed to be against the Respondent’s Claim. It was argued further that CW2 who tendered Exhibit D and stated that he observed the Respondent

vomiting and expelling ingested food particles and water did not state that the liquid was Coca-Cola or that the food particles or other things ingested by the Respondent were responsible for the discomfort he allegedly suffered. It was contended that the Respondent did not give evidence of the time he was rushed to hospital but it was the learned Judge that speculated to provide evidence for the Respondent contrary to the role of the Court and rules of fair hearing.

The learned counsel submitted that Courts do not decide cases on speculations or on unverified facts; COKER V. ADETAYO (1992) 6 NWLR (PT.249) 612; NDIWE V. OKOCHA (1992) 7 NWLR (PT. 252) 129. It was submitted also that Courts do not base their decision on facts not pleaded or on speculation; ADEFULU V. OKULAJA (1996) 9 NWLR (PT.475) 668; B.B.C. PLC V. SKY INCO (NIG) LTD (2002) 17 NWLR (PT.795) 86.

It was contended that there was material contradiction in the case of the Respondent especially between the evidence of the CW1 and CW2 as to the time and date the CW2 saw the CW1 and the learned trial Judge could not choose whose evidence to believe, and that was what the learned trial Judge

did in this case and thereby occasioned miscarriage of justice while the Trial Court’s decision must be set aside; ONUBOGU V. THE STATE (1974) 9 SC1; NWABUEZE V. THE STATE (1988) 4 NWLR (PT. 86) 16.

It was contended that there is no evidence that the complaint of the CW1 was caused by the Coca-Cola allegedly drank by him while the evidence of the CW2 that sought to corroborate that of the CW1 is marred by hearsay, suppression of evidence and material inconsistency with the evidence of the CW1 thereby rendering the finding of the lower Court that the Respondent proved negligence to be perverse, which this Court must set aside and order a dismissal of the case; NIGERIAN BREWRIES PLC V. DAVID AUDU (2009) LPER CA/A/235/05.

On whether the tendering of the Fanta drink by the Respondent was a proof of the Appellants’ negligence and proof of damages by the Respondent under the principle of Res Ipsa locquitor to show that particles were in the Fanta drink thereby establishing the negligence of the Appellants and removing the necessity to prove negligence by the Respondent, it was submitted that the learned Judge was in error because there was no evidence as to the cause of the particles in the bottle.

It was contended that the learned trial Judge fell into error because there is no evidence as to the cause of the particles in the Fanta and the alleged particles were not tested and its effect on the body and in all there is no evidence that the Respondent drank anything at all or that the coke he allegedly drank was contaminated.

It was submitted that the tendering of the Fanta is of no moment and does not relieve the Respondent of the burden to prove by scientific evidence that he ingested poisonous material in the product of the Appellants and thereby suffered damages. It was submitted that the principle of Res Ipsa Locquitor does not apply to food and drink cases; NIGERIAN BREWRIES V. AUDU (supra) and NBC V. OLAREWAJU (Supra). The learned trial Judge also fell into error when he relied on the evidence of CW2 as corroboration of CW1’s evidence when the CW2 did not conduct any separate test but based his own evidence on what he was told by the CW1, a piece of evidence that was hearsay. It was also contended that Exhibit D shows that the Respondent was observed to have vomited food and

water meaning that the Respondent also ingested other items; there is no conclusive evidence to separate these other items from culpability.

On issue No. 2, the learned counsel submitted that the award of N5 Million Naira (N5,000,000.00) as damages in this case is manifestly unsupportable even if the Respondent had proved his case. It was contended that the Respondent did not state his earnings, his lost for the period or how any amount of money would restore him to the situation he would have been or remedy his loss or damage; IFEANYI CHUKWU OSONDU CO. LTD V. AKHIGBE (1999)11 NWLR (PT.625)1; OCEANIC SECURITIES INTERNATIONAL LTD V. BALOGUN (2012) ALL FWLR (PT.643) 1880. The learned counsel argued that the amount of N5 Million awarded by the lower Court was excessively too large in the circumstances of this case and especially that no evidence of the sum was led and the sum of N500,000.00 would have been adequate even where the Respondent had proved the case.

On the lone issue raised by the Respondent which is whether the judgment of the lower Court is against the weight of evidence, the learned counsel for the Respondent contended that the evidence

of the Respondent that he bought a crate of minerals from a neighboring store at Chigbu Street, Mile 3 Diobu, Port Harcourt and drank a bottle of Coca-Cola therefrom and that within 30 minutes he noticed strange movement in his body followed by severe pains in his body, as well as the averments that he was admitted and treated at the Hospital were not denied in any material substance. The learned counsel submitted that facts not challenged are deemed to be admitted and will need no further proof; IRIRI V. ERHURHOBARA (1991) 2 NWLR (PT.173) 252. It was submitted that the Respondent was able to establish the ingredients of the tort of negligence and that the appellants owed him a duty of care. These ingredients are;
(1) The existence of a duty of care by the Appellants to the Respondent,
(2) the breach of that duty of care by the Appellants, and
(3) damages suffered by the Respondents as a result of the breach; UBA PLC V. G.S. IND. NIG. LTD (2011) 8 NWLR (PT.1250) 590.

It was contended that the evidence of the CW1 is clear to the effect that the Appellants were negligent in the production of their drinks that caused harm which evidence was also

corroborated by the evidence of the CW2 with Exhibits A and D respectively. It was contended that the credibility of CW1 was not shaken during cross examination and the lower Court was right to have believed his evidence; FRAMO NIG. LTD V. DAODU (1993)3 NWLR (PT.281) 372. It was submitted that a party is not bound to call a particular number of witnesses to establish his case and in the instant case the Respondent was not bound to call the persons that witnessed the incident; Sections 178 and 200 of Evidence Act, 2011 and the case of ABOKOKUYANRO V. THE STATE (2012)2 NWLR (PT.1285) 531. It was contended that the trial Court was justified in refusing to do technical justice which is no justice; ABUBAKAR V. YAR ADUA (2008)4 NWLR (PT.1078). It was submitted that the Courts are to do substantial justice based on the materials placed before them; DESTRA INV. LTD V. FRN (2017) 2 NWLR (PT.1550) 485; STATE v GWONTO (1983)1 SCNLR 142; OBENIKE V. EKELE (2001) 10 NWLR (PT.722) 677.

It was contended that there was no material contradiction in the case of the Respondent who stated his case in clear and unambiguous sequence how the incident happened. It was submitted that

the lower Court did not speculate on the evidence presented before it but relied and decided on the material facts presented to it; SEISMOGRAPH SERVICES (NIG.) LTD V. OGBENI (1976) 4SC 101; GODWIN IGABELE V. THE STATE (2006) 5 MJSC 96. It was further submitted that there was no material inconsistency and suppression of evidence in the Respondent’s case; LEADWAY ASSURANCE CO. LTD. V. ZECO NIGERIA LTD (2004) 6 MJSC 179.

The learned counsel submitted that the CW2 who gave an expert evidence was in support of the Respondent’s case.
The learned counsel contended that the lower Court had discretionary power in the award of damages and has the duty to calculate what amount will be reasonably awarded in the circumstance of the case, hence, the power of the lower Court in that regard cannot be questioned on appeal. It was further submitted that the award of damages in cases of negligence is based on the principle that a claimant should recover such sum as will place him so far as can be done by compensation in money as if the loss had not been inflicted on him; NITEL PLC V. AYU (2008) ALL FWLR (PT.411) 904. He urged Court to affirm the amount of

N5 Million awarded as damages by the lower Court out of the N10,000,000.00 claimed by the Respondent; UNIVERSAL TRUST BANK OF NIG. LTD V. OZOEMENA (2001) 7 NWLR (PT.713) 713.

The learned counsel submitted that the Appellate Court will not interfere with the finding or the lower Court except where the finding is perverse or based on wrong application of substantive or procedural law; OLORUNFEMI V. ASHO (1999)1 NWLR (PT. 585)1.

In the Appellants’ Reply Brief, the Appellants’ counsel submitted that where evidence is missing and necessary evidence is not placed before the Court, the remaining evidence will not be sufficient to cover the missing evidence and cannot sustain the judgment of the lower Court; IGWE V. ACB LTD (1999) 6 NWLR (PT. 605)1; IZE- IYAMU OSAGIE ANDREW V. INEC (2018) 9 NWLR (PT. 1625) 507. It was contended that the Respondent’s counsel attempted to fill in the gaps in the Respondent’s Brief by putting in pieces of facts that are not in the record of appeal. It was submitted that the Respondent’s Brief is not the place to testify or inject facts by speculation as this would be a breach of fair hearing;

BUHARI V. INEC (2008) 4 NWLR (PT.1078) 516. It was also submitted that the Brief of counsel no matter how brilliant cannot be substituted for the pleadings and evidence in the case; REYNOLDS CONSTRUCTION V. BREZINA BROWN (1993) 6 NWLR (PT.297) 122; TALLEN V. JANG (2011) LPELR 9231 (CA).

It is quite clear that the two issues raised by the Appellants and the lone issue by the Respondent are about the proof of the case and the award of damages to the Respondent.

After taking the evidence of the parties, the learned trial Judge stated at page 132 of the record of appeal that “I have considered the pleadings of the claimant and the evidence adduced by the claimant and his witnesses which included the exhibits tendered. I have also considered the pleadings of the Defendants and the sole witness of the Defendants. I have equally considered the issues formulated for determination and I have decided to use the sole issue formulated by the Defendants’ Counsel to consider this case. I say so because the issue No.1 of the Claimants is what this Court shall consider to see whether the claimant has by preponderance of evidence discharged the burden placed on him so as to be entitled to his claim against the Defendants.”

Also at page 137 of the record of appeal the lower Court stated as follows:-
“I have carefully and painstakingly considered the pleadings and evidence of the claimant and the Defendants and the final Written Addresses of both counsel for the opposing parties…. In the instant case the Claimant has

led evidence to show that he bought a crate of Coca-Cola mixed with Fanta which are products of the Defendants.
There is evidence from the claimant and the Defendants to show that there is in existence the duty of care by the Defendants to the Claimants (sic) and in fact to the general public who have decided to consume the products of the Defendants. It is therefore not in doubt that the existence of the duty of care by the Defendant to the claimant has been established in the instant case.”

The lower Court found as follows at page 141 of the record of appeal;
“It is therefore my considered opinion that the pleadings and evidence led by the claimant has established that the breach of the duty of care by the Defendants on the claimant’s consumption of the Defendants’ product has been established.”

At page 144 of the record of appeal, the learned trial Judge found as follows:
“I have finally considered the totality of the evidence adduced by the claimant and the Defendants in the instant case and my considered opinion is that the claimant has proved the existence of that duty of care by the Defendants

in the production of their product which the claimant consumed.
The claimant has also proved the breach of that duty of care by the Defendants because the Claimant suffered injury for which he was rushed to the hospital and treated after drinking the product of the Defendants. The Claimant finally proved damages he suffered as a result of the Defendants of the duty of care.” Whereupon the lower Court awarded N5 Million to the Claimant as general damages.

The case of the Respondent is based on the negligence of the Appellants. The law is that the burden of proof in an action for damages for negligence rests on the Plaintiff who must show that he was injured by the negligent act or omission for which the defendant is responsible. The Plaintiff has the duty to show some duty owed to him by the defendant, a breach of that duty, and an injury to the Plaintiff as a result of the breach. See IYERE V. BENDEL FEED AND FLOUR MILL LTD (2008) 7 – 12 SC 151.

I am satisfied that the findings of fact made by the learned trial Judge which I have quoted above are based on the pleadings and evidence of the parties and are therefore not perverse. They

are accepted by this Court. The law is quite settled that an appellate Court does not ordinarily interfere with the findings of fact made by the trial Court. See OLAREWAJU V. THE GOVERNOR OF OYO STATE (1992) 11/12 SCNJ 92. The appellate Court may however make its own findings where the findings do not involve the demeanour of witnesses. See BAMGBOYE V. RAIMI OLAREWAJU (1991)4 NWLR (PT.184)132.
I do not see any reason to interfere with the findings of the lower Court and I accordingly uphold them.

The learned trial judge awarded an amount of N5 Million to the Respondent as general damages from the wrong complained of.

It is the law that as a general principle an appellate Court would not interfere with an award of general damages by the trial Court but the Appellate Court will interfere with such an award where the appellate Court is satisfied that the trial Court either acted upon wrong principle of law, or that the amount awarded is ridiculously too high or too low or that the award was erroneous and unreasonable having regard to the circumstances of the case. See JAMES V. MID MOTORS (1978) 12 SC 31; ODUWOLE V. WEST (2010) 5 SCNJ 97.
I am of the view that in the circumstances of this case in which the Respondent bought only one crate of Coca-Cola and drank from one bottle thereof the award of N5 Million as general damages is manifestly too high and I so hold. I set aside the award of N5 Million and in its place I award N1,000,000.00 to the Respondent as general damages.

The appeal therefore succeeds partially and it is allowed.
It is ordered that parties should bear their own costs of this appeal.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the Judgment delivered by my learned brother, ISAIAH OLUFEMI AKEJU, J.C.A. and I am in complete agreement with the reasoning and

conclusion reached therein. The appeal succeeds in part and it is accordingly allowed. I abide by all other consequential orders.

Appearances:

Akinwola Esq. with him, T. H. Ogunwala For Appellant(s)

A. Ngeri, Esq. For Respondent(s)