Nigeria Breweries Plc V. David Audu (2009)

LawGlobal-Hub Lead Judgment Report

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.