Nigerian Bottling Company Ltd. V. Constance Obi Ngonadi (1985)

LawGlobal-Hub Lead Judgment Report

A. OPUTA, J.S.C. 

The essential facts of this case are in the main not in dispute. What seems to be in dispute is whether from those facts one could have drawn the inference of negligence as the trial court and the Court of Appeal did.

The plaintiff in the court of first instance and respondent in this Court “trades on beer and soft drinks on a retail basis or runs a beer parlour.” For the purposes of the said beer parlour, the plaintiff/respondent bought from the defendant/appellant “a kerosine fridge known as and called Evercold Refrigerator/Cooler” Serial Number S/W.77464 OM. 2812.

The said refrigerator was delivered by the defendant/appellant to the plaintiff/respondent on 1212175. On or about 14/2/75, the said fridge sold to the plaintiff/respondent caught fire while in use. The plaintiff/respondent promptly reported this incident to the defendant/respondent who instructed one of its technicians to accompany the plaintiff/respondent to her beer parlour at Agbor and there effect necessary repairs to the now apparently and visibly faulty refrigerator.

This was done. On or about the 29th August, 1975 again while in use in the plaintiff respondent’s beer parlour, the refrigerator exploded resulting in extensive personal injuries to the plaintiff/respondent. She was severely burnt and suffered pain and shock. She was treated in several hospitals and she incurred considerable medical expenses.

On these facts the plaintiff/respondent sued the defendant/appellant claiming N50,000.00 being general and special damages for negligence. Pleadings were ordered, filed and duly exchanged. There were several amendments to the pleadings on either side. The case was ultimately tried on the issues rightly raised on the plaintiffs/respondent’s Re-Amended Statement of Claim and the defendant’s/appellant’s further Amended Statement of Defence.

After due hearing, the learned trial judge Maidoh, J. observed;

“1 have fully considered the evidence before me and Exhibits tendered in the proceedings ….. The parties agreed that the Defendant Company sold the Evercold Refrigerator to the Plaintiff on or about the 12th of February, 1975 in Benin City. It is not disputed that two days after the purchase the Plaintiff reported to the Defendant Company that the fridge was giving trouble. It is also common ground that Defendant sent one of its workers to rectify the anomaly in the fridge. It is not disputed that on or about the 29th day of August, 1975, the fridge exploded and injured the plaintiffs person. The extent of the pain or injury to the plaintiff was never contested.”

As) mentioned earlier on, the main factual props of this case are not in dispute. The above observation of the learned trial judge confirmed this. What was in dispute seemed to be:

1. whether the defendant/appellant knew for what purpose the plaintiff/respondent bargained for and bought the fridge
2. whether the defendant/appellant gave to the plaintiff/respondent an oral warranty of fitness of the fridge for the aforementioned purpose

On these two points, the learned trial judge found on the evidence before him:

“I am satisfied that the defendant knew that the Plaintiff was operating a beer parlour wherein beer and soft drinks were sold. I am equally satisfied that the Plaintiff relied on the Defendant’ opinion that the fridge would be suitable for the running of a beer parlour as the one proposed by the Plaintiff.”

Having so found as above, the learned trial judge concluded:-

“I therefore accept the submission of Mrs. Edewor, learned counsel for the plaintiff, that the provisions of Section 15 Sale of Goods Law Chapter 150 Vol. V) Laws of Bendel State of Nigeria 1976 apply. That being so, there is implied condition as to the qualify of fitness of the goods sold to the plaintiff by the defendant. Having regard to the wording of Section 15(a) of the Sale of Goods Law, it does not lie in the mouth of the defendants to assert that they merely sell and do not manufacture refrigerators. The implied condition is that the goods shall be reasonably fit for such purpose of sale. The defendant owes a duty of care to the plaintiff.”

The next question that naturally and consequentially arose was – Was there a breach of this duty or was the explosion due to the negligence of the plaintiff/respondent It is relevant here to note that the defendant/appellant pleaded contributory negligence. From the pleadings of the parties, the onus was on the plaintiff/appellant to prove negligence and on the defendant/appellant to prove contributory negligence. Each side had to lead evidence from which negligence or contributory negligence could be inferred. Where, as in this case, a warranty was implied by Statute and the plaintiffs/respondent’s action was based on the breach of that warranty, in other words, the warranty formed the basis of the action in negligence, the onus was still on the plaintiff/respondent to prove the special relationship out of which arose the duty of care and what amounted to a breach of that duty.