Edward Okwejiminor Vs G. Gbakeji & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C.

The suit was commenced at the Ughelli Judicial Division of the High Court of then 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 fanta orange 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 Plaintiff’s 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 fanta drink 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. The parties through their counsel addressed the court. By its judgment dated the 23/3/1994 the learned trial Judge, W.A.O. Onoriobe J. allowed the claim of the appellant against the 2nd respondent with costs which he assessed at N2,500.00. He however dismissed the claim against the 1st respondent with N1000.00 costs. Dissatisfied with the said judgment the respondents appealed to the court below. The appellant was also dissatisfied with the award of damages and filed a cross-appeal in respect thereof to the court below. By its judgment on the 23/4/98 the appeal was allowed and cross-appeal dismissed. Dissatisfied, the Appellant has come on appeal to this Court. The original notice of appeal dated the 22nd of June 1998 contained 11 (eleven) grounds of appeal. With the leave of this Court the Appellant was granted the leave of this Court to file and argue four additional grounds of appeal. And the parties through their counsel filed and exchanged their briefs of argument. The Appellant’s brief was prepared by O.J. Oghenejakpor. He also prepared the appellant’s reply brief. They were filed on the 2/8/04 and 11/12/06 respectively. Mr Oluyele Delano prepared the 1st Respondent’s Brief and it was filed on the 7/3/06. The 2nd Rrespondent’s amended brief was prepared by Oluseye Opasanya and same was filed on the 9/3/06.

In his brief, the appellant submitted six issues for determination which are formulated as follows:

1. Whether in the circumstances of this case the Justices of the Court of Appeal were justified in reversing the firm findings of fact of the trial court that contaminated Fanta Orange drink containing a cockroach and a germ called Shigema tendered as exhibit H in this proceeding caused the Plaintiff ailment of stomach ache resulting in vomiting and stooling which led to his hospitalisation
2. Whether the Justices of the Court of Appeal were justified in reversing the findings of the trial court that the Fanta Orange exhibit H which caused the Plaintiff ailment was manufactured and bottled by the 2nd Defendant who sold same to the Plaintiff through the defendant their retailer
3. Whether the Justices of the Court of Appeal were Justified in reversing the findings of the trial court that the 2nd defendant was in breach of duty of care owed to the plaintiff and liable for damages for negligence
4. Whether the learned Justices of the Court of Appeal were right in holding that the 1″ defendant who is the retailer that sold the contaminated fanta orange exhibit “H” which caused plaintiff’s ailment is a mere conduct pipe and hence not liable in negligence for the sale of the defective and contaminated fanta orange Exhibit “H”.
5. Whether the learned Justices of the Court of Appeal were right in holding that there was no modicum of evidence on record to support the claim for damages for pain shock, agony and discomfort and reversing the award of N950,000.00 made by the trial court.

(6) Whether on the totality of the case as borne out by the records of appeal, the learned Justices of the Court of Appeal were justified in reversing the judgment of the trial court and in coming to their judgment in dismissing the plaintiff/appellant’s case.

For the first respondent the following four issues were submitted for determination.

1. Whether the Court of Appeal was right by holding that the plaintiff failed to prove that his illness was caused by drinking contaminated fanta orange drink produced by the defendant
2. Whether the contamination was occasioned by the carelessness of the 2nd defendant in breach of its duty of care to the Plaintiff
3. Whether the plaintiff was in breach of any duty of care to the plaintiff
4. Whether the Court of Appeal was right to set aside the award of N950,000.00 as damages to the Plaintiff against the 1st and 2nd defendants

And on behalf of the 2nd respondent, the following four Issues for determination were also proposed:

1. Whether the evidence adduced by the plaintiff proves that the alleged contaminated fanta drink was manufactured by the 2nd defendant
2. If the answer to issue 1 is in the affirmative, whether the Court of Appeal was right in holding that there was no evidence showing that the drink in question was the cause of the Plaintiff’s ailment.
3. Whether the Justices of the Court of Appeal were justified in deciding that the evidence before the court did not support the claim in negligence
4. Whether the Court of Appeal was right that there is no modicum of evidence on record to support the award by the Court of N950,000.00 damages for pain shock agony and discomfort

First of all, let me react to what appears to be a novel submission of learned counsel for the 1st Respondent. The submission is that “in order to identify the correct issues for determination one has to consider not only the grounds of appeal and the decisions of the lower courts, but also the basic principles laid down in Donoghue’s case. The settled principle of law is that issues for determination in an appeal must relate to the grounds of appeal filed and the judgment appealed against. Such issues should not be framed in the abstract but must relate to the grounds of appeal which represent the questions in controversy in the particular appeal. See Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1987) 1 N.W.L.R. (Part 49) 284 at 304; Okonko v. Okolo (1988) 2 N.W.L.R. (Part 179) 632; Olowosago v. Adebanjo (1988) 4 N.W.L.R. (Part 88) 275; Okpala v. Ibeme(1989) 2 NWLR (Part 102) 208 at 220; Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Part 102) 122 at 161. Since the appellant insists by this appeal that the Respondents are liable in negligence for damages, the principles of Donoghue v. Stevenson (1932) AC 562 may be called into play on the question of causation. I do not think that the principles in Donoghue v. Stevenson (supra) falls for consideration on the formulation of issues for determination.