Etukudo Ekefere Nsima V. Nigerian Bottling Company (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A.:(Delivering the Leading Judgment)

At the High Court of Akwa Ibom State, Eket Judicial Division, the appellant in this appeal [as Plaintiff] commenced an action by a Writ of Summons against the respondent herein [as defendant] He claimed the following reliefs:

(a) Declaration that the defendant was negligent in the manner of bottling its products, which negligence has caused injury to the plaintiff;

(b) Fifty Million Naira (N50,000,000.00) being general and exemplary damages for negligence.

Pleadings were, duly, settled, viz, the Statement of Claim; Statement of Defence and Reply to the Statement of Defence. Parties, also, amended their pleadings, thus: Amended Statement of Defence and Amended Reply to the Amended Statement of Defence. The matter went on trial. Three witnesses including the plaintiff himself [as PW1), testified in proof of the plaintiff’s case. PW2 and PW3 were the dealers who, allegedly, sold the defendant’s supposed product and the Medical Doctor who allegedly, treated the plaintiff, respectively.

The defendant, stoutly, resisted the plaintiff’s case through its two witnesses DW1, Quality Assurance Manager and DW2, a medical practitioner from the Abia State University Teaching Hospital, respectively. In its judgment, the court (hereinafter referred to as the lower court) dismissed the plaintiff’s case in its entirety. Dissatisfied with the outcome of his case at the lower court, the plaintiff appealed to this court. He formulated four issues for the determination of his appeal. They were framed thus:

(1) Whether the judgment of the trial court is supported by the weight of evidence adduced by the parties?

(2) Whether the doctrine of res ipsa loquitur applies to this case?

(3) Whether, having regard to the failure of the plaintiff/appellant to call other eye witnesses, the plaintiff/appellant had failed to prove negligence by withholding evidence?

(4) Whether the injury suffered by the plaintiff/appellant was related to his consumption of the contaminated product of the defendant/ respondent?

On its part, the respondent set out three issues for the resolution of this appeal. In addition, they cross appealed and put forward a lone issue for its resolution. We shall return to this later in this judgment. Its three issues for the determination of the main appeal were couched thus:

(1) Whether the learned trial Judge was not right in holding that the doctrine of Res Ipsa Loquitur did not apply to this case having regard to the state of the pleadings and evidence before him?

(2) Whether having regard to the pleadings and evidence before the court, the learned trial Judge was not right when he invoked and applied the provisions of Section 149(d) of the Evidence Act, 2004, to hold that the appellant’s failure to produce the evidence of the two eye witnesses who allegedly saw him consume exhibit “B” and discovered a decomposed cockroach therein, was fatal to the appellant’s case?

(3) Whether the plaintiff/appellant proved his allegation of negligence against the defendant/respondent and in particular that he suffered any injury or damage resulting from the alleged consumption of exhibit “B”?