Nigerian Bottling Company PLC V. Mr. Demola Olarewaju (2006)

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HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the judgment of Hon. Justice M. A. Folayan of the Kwara State High Court delivered on 24th May 2004. The appellant herein was the defendant and the respondent herein was the plaintiff.

Briefly the facts which gave rise to this appeal are stated as follows: The respondent gave evidence as PW1 that on the 3/4/2000 he purchased two bottles of Coca-Cola – a product of the appellant from one Mrs. Agnes Olaniyan, a retailer before he noticed visible particles in the liquid content of the bottle. He saw similar particles in the unopened bottle. After about two hours, the respondent felt unwell and consulted a doctor at the Epidemiology Unit of the G.R.A within the vicinity of his residence. After his recovery he made efforts to get in touch with the appellant company to lay complaint but was not allowed access to them. He however wrote letter Exhibit D which he delivered at the security post to which he received no acknowledgement. He thereafter by Writ of Summons filed 28/3/2001, Statement of Claim filed 21/5/2001 took an action at the High Court Ilorin against the appellant and the retailer of the Coca-cola – Mrs. Agnes Olaniyan. He asked for the following reliefs as contained in paragraph 14 of the Statement of Claim-

“14. WHEREOF the plaintiffs claims against the defendants jointly and severally as follows:

1. The sum of N11,500.00 (Eleven Thousand, Five Hundred Naira) the plaintiff expended on medical treatment.
2. The sum of N5m (Five Million Naira) general damages for the sundry inconveniences and discomfort the plaintiffs suffered on account of the defendants negligence.”

The Appellant later withdrew his claim against the 2nd defendant – Mrs. Olaniyan. Pleadings were filed and exchanged. At the trial, the respondent gave evidence as PW1 and tendered exhibit A -the unopened bottle of coca-cola, PW2 was Dr. Musbaudeen Adekunle Oladipo a medical doctor at the Epidemiology Unit of the Ministry of Health who had examined and treated the respondent at the time of the incident. He tendered exhibit B the medical report issued by him at the time. The appellant called 2 witnesses, Mrs. Ibidun Gomez as DW1, the Quality Assurance Manager of the appellant, Dr. Akanbi Ajibola a medical expert and Consultant Microbiologist working with the University of Ilorin Teaching Hospital.

At the end of the trial, the learned trial judge found for the plaintiff/respondent and awarded the sum of N11,500 claimed on the special damages and the sum of N50,000 on the general damages.

The Appellant, dissatisfied has appealed to this Court. The Appellant’s brief is dated 29/11/2004 and filed on 21/2/2004. The reply brief is dated 3/4/2006 and filed 4/4/2006. The respondent’s brief is dated 28/3/2006 and deemed filed the same day.

The Appellant’s counsel identified 3 issues for determination. They are set out below:

“(i) Whether the respondent established by credible evidence that he took a bottle of contaminated coke on the 3rd April, 2000 and suffered all the conditions he alleged and was treated at the Epidemiological Department of the Kwara State Ministry of Health, Ilorin.

(ii) Whether the trial court was right in holding that there was the presumption that it was only the appellant’s company that was manufacturing coca-cola in Nigeria on and the further holding that the bottle of coke alleged consumed by the respondent was the product of the appellant?

(iii) Whether the trial court was right in holding that the respondent established the liability of the appellant in negligence on account of consumption of contaminated coke and in relying on the testimonies of the PW1 and PW2 in so holdings.”

The Respondent’s counsel also distilled 2 issues for determination. They are also set out below-

“1. Whether the trial court was right in finding that on the preponderance of evidence the respondent established negligence against the appellant, and that the appellant did not discharge the burden of rebutting negligence against her in this case.

2. Whether the trial court was right in holding that the appellant was liable in damage to the Respondent.”

I will adopt the issues as distilled and set out by the appellant as they cover all the complaints in the grounds of appeal. Since issues 1 and 3 are substantially on whether the learned trial court made correct findings of fact in the circumstances, will take both together.