CORAM

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Andrews Otutu Obaseki-Justice of the Supreme Court of Nigeria

Anthony Nnaemezie Aniagolu-Justice of the Supreme Court of Nigeria

Muhammadu Lawal Uwais-Justice of the Supreme Court of Nigeria

Boonyamin Oladiran Kazeem-Justice of the Supreme Court of Nigeria

Chukwudifu Akunne Oputa-Justice of the Supreme Court of Nigeria

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PARTIES

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NIGERIAN BOTTLING COMPANY LTD.

APPELLANTS 

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CONSTANCE OBI NGONADI

RESPONDENTS 

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AREA(S) OF LAW

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AREAS OF LAW: SALE OF GOODS, CONTRACT LAW, NEGLIGENCE, CONSUMER PROTECTION, DAMAGES, PRODUCT LIABILITY, CONSTITUTIONAL LAW, TORT LAW, EVIDENCE

 

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SUMMARY OF FACTS

The plaintiff/respondent operated a beer parlour and purchased an Evercold Refrigerator/Cooler (Serial Number S/W.77464 OM. 2812) from the defendant/appellant on February 12, 1975, in Benin City. Two days after delivery, on February 14, 1975, the refrigerator developed problems, which were reported to the defendant/appellant. The defendant sent a technician to repair the refrigerator. However, on August 29, 1975, while in use, the refrigerator exploded, causing severe burns and injuries to the plaintiff/respondent. She was treated in several hospitals and incurred considerable medical expenses. The plaintiff/respondent sued the defendant/appellant for N50,000.00 in general and special damages for negligence.

 

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HELD

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1. The appeal was dismissed

2. The concurrent findings of both lower courts regarding the defendant’s negligence were upheld

3. The award of N30,000.00 as general damages and N435.50 as special damages was affirmed

4. The Supreme Court awarded costs of N300.00 to the respondent

 

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ISSUES

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1. Whether the defendant/appellant was negligent in selling a defective refrigerator to the plaintiff/respondent?

2. Whether Section 15(a) of the Sale of Goods Law of Bendel State was correctly applied to create an implied warranty of fitness?

3. Whether the quantum of damages awarded was excessive?

4. Whether the defense of contributory negligence was established?

 

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RATIONES DECIDENDI

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IMPLIED WARRANTY OF FITNESS – WHETHER APPLICABLE TO DISTRIBUTORS:

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“Section 15(a) of the Sale of Goods Law of Bendel State Cap 150 of 1976 does not draw that distinction. In express language, its provisions apply” whether he be the manufacturer or not.”- Per CHUKWUDIFU AKUNNE OPUTA, J.S.C.

 

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DUTY OF CARE – RELATIONSHIP BETWEEN SELLER AND BUYER:

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“The defendant/appellant’s company sold the refrigerator to her; that company through its Manager, assured her that it was safe and suitable; that company had a duty of care not to sell dangerous articles to buyers, that company was in breach of that duty." – Per CHUKWUDIFU AKUNNE OPUTA, J.S.C.

 

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ASSESSMENT OF DAMAGES – FACTORS TO BE CONSIDERED:

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“In assessing damages in this kind of cases, the trial court is bound to consider the pain and suffering the plaintiff/respondent underwent, whether or not she had permanent disability or disfigurement, the period she spent in hospital etc.” – Per CHUKWUDIFU AKUNNE OPUTA, J.S.C.

 

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CONTRIBUTORY NEGLIGENCE – BURDEN OF PROOF:

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“To establish contributory negligence, there ought to be evidence of what the plaintiff/respondent did or failed to do that either caused or contributed to the explosion.”- Per CHUKWUDIFU AKUNNE OPUTA, J.S.C.

 

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IMPLIED WARRANTY – REQUIREMENTS FOR APPLICATION:

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“The facts stated above fully and squarely brings the defendant/appellant within the warm embrace of Section 15(a) of the Sale of Goods Law of Bendel State Cap 150 of 1976. There was thus an implied warranty as to the fitness and safety of the refrigerator.” – Per CHUKWUDIFU AKUNNE OPUTA, J.S.C.

 

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DEFECTIVE PRODUCTS – SELLER’S LIABILITY:

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“The effort of the appellant’s employees to amend the defect can be described as fruitless as the subsequent explosion clearly reveals. It was negligence on the part of the appellant to have sold it in the first instance and negligence in failing to realise that it constituted a dangerous chattel.- Per ANDREWS OTUTU OBASEKI, J.S.C.

 

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CONSUMER RIGHTS – PROTECTION AGAINST DEFECTIVE PRODUCTS:

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“Nothing appears to be elementary in this country where it is often the unhappy lot of consumers to be inflicted with shoddy and unmerchantable goods by some pretentious manufacturers, entrepreneurs, shady middlemen and unprincipled retailers." – Per ANTHONY NNAEMEZIE ANIAGOLU, J.S.C.

 

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CONCURRENT FINDINGS – APPELLATE COURT’S APPROACH:

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“Concurrent findings of fact cannot be glossed over lightly and treated as if they do not exist when the success or failure of an appeal depends on their being set aside or affirmed.” – Per ANDREWS OTUTU OBASEKI, J.S.C.

 

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QUANTUM OF DAMAGES – APPELLATE INTERVENTION:

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“The burden is on the defendant/appellant to satisfy this Court that the award of general damages in this case was manifestly so excessive as to amount to an erroneous estimate vis-a-vis the evidence.”- Per CHUKWUDIFU AKUNNE OPUTA, J.S.C.

 

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SELLER’S DUTY – SCOPE OF LIABILITY:

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“The ultimate consumer has an option either to sue the person who sold to him or anyone in the chain of distributorship up to the manufacturer.- Per CHUKWUDIFU AKUNNE OPUTA, J.S.C.

 

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PROXIMITY – BASIS OF LIABILITY:

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“On the notion and doctrine of proximity as laid down by Lord Esher in Heaven v. Pender (1882) 11 Q.B.D. 503 at p. 509 the nearest person to the plaintiff/respondent in this case was the defendant/appellant.”- Per CHUKWUDIFU AKUNNE OPUTA, J.S.C.

 

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SUPREME COURT’S JURISDICTION – NEW POINTS OF LAW:

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“The Supreme Court as a Court of last resort is competent to entertain a point of law raised for the first time before it when the justice of the case so dictates.” – Per CHUKWUDIFU AKUNNE OPUTA, J.S.C.

 

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PLEADINGS – EFFECT OF OMISSION:

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“All that the rules of pleading required of the plaintiff was an averment that the Evercold Refrigerator sold to her by the defendant/appellant was defective. This was done.”- Per CHUKWUDIFU AKUNNE OPUTA, J.S.C.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Sale of Goods Law Cap 150 Vol. VI Laws of Bendel State 1976

2. Sale of Goods Act 1893 (UK)

3. Sale of Goods Act 1979 (UK)

 

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