May 11, 2025
Legalpedia Citation: (2014) Legalpedia (CA) 15645 In the Court of Appeal Mon Feb 10, 2014 Suit Number: CA/C/37/2011 CORAM PARTIES ETUKUDO EKEFERE NSIMA APPELLANTS NIGERIAN BOTTLING COMPANY PLC. RESPONDENTS […]
CORAM
PARTIES
ETUKUDO EKEFERE NSIMA APPELLANTS
NIGERIAN BOTTLING COMPANY PLC. RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Appellant brought an action at the trial Court claiming a declaration that the Defendant/Respondent was negligent in the manner of bottling its products, which negligence has caused injury to the Plaintiff/Appellant and the sum of Fifty Million (N50, 000,000.00) Naira being damages. At the end of the trial, the Court dismissed the Appellant’s case in its entirety. Dissatisfied with the outcome of his case at the trial court, the Plaintiff/Appellant has appealed to this court while the Defendant/Respondent cross- appealed.
HELD
Appeal Dismissed, Cross Appeal Succeeds
ISSUES
1. Whether the learned trial Judge was not right in holding that the doctrine of Res Ipsa Loquitur Aid 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”?4. Whether having regard to the pleadings and evidence before the court, the learned trial Judge was right to hold that there was a link or business relationship between the plaintiff and defendant as at 8/3/2003 when the plaintiff allegedly purchased exhibits B; C and D from PW2 which link established sufficient relationship or proximity between plaintiff and defendant in proof that exhibits B; C and D were the products of the defendant and that the defendant owed the plaintiff a duty of care in the circumstances?
RATIONES DECIDENDI
ACTION FOR NEGLIGENCE – A PARTY MUST PLEAD ALL THE PARTICULARS OF NEGLIGENCE ALLEGED IN SUFFICIENT DETAIL AND THE DUTY OF CARE OWED BY THE DEFENDANT TO SUCCEED IN AN ACTION FOR NEGLIGENCE
“For a plaintiff to succeed in an action for negligence, he or she must plead all the particulars of the negligence alleged in sufficient detail and the duty of care owed by the defendant. Above all, they must be supported by credible evidence at the trial; Koya v. U.B.A. [1997] 1 NWLR (pt.481) 251; UTBN v Fidelia Ozoemena(supra).”PER C. C. NWEZE, J.C.A
PLEADINGS –PLEADINGS DO NOT CONSTITUTE EVIDENCE
“Pleadings do not constitute or are not tantamount to evidence. Also, that where there is no evidence in support of any pleading, that pleading or averment is deemed to have been abandoned, Raimi Olarewaju v Amos Bamigboye and Ors[1987] 3 NWLR (pt 60) 353, 359 -362; Alhaji Bala and Ors v Bankole[1986] 3 NWLR (pt 27) 141; Magnusson v Koiki and Ors(1993)12 SCNJ 114, 124; [1993] 9 NWLR (pt 317) 287.”PER C. C. NWEZE, J.C.A
CONFLICTS IN EXPERT TESTIMONY – DUTY OF THE COURT TO GIVE REASONS FOR BEING MORE IMPRESSED WITH THE EVIDENCE OF ONE EXPERT OVER THE OTHER WHERE THERE ARE CONFLICTS IN EXPERT TESTIMONY
“Where there are conflicts in expert testimony, the court is not duty-bound to give reason for being more impressed with the evidence of one expert than it is with that of another expert, Ozigbo v COP[1976] 2 SC 67, per Alexander CJN; SPDC v Farah [1995] 3 NWLR (pt 382) 148”. PER C. C. NWEZE, J.C.A
RES IPSA LOQUITUR –ELEMENT OF RES IPSA LOQQUITUR
“The said Latin maxim, res ipsa loquitur, [the thing speaks for itself], whose essential element is that the mere fact of the happening of the accident should tell its own story so as to establish a prima facie case against the defendant, W. V. H. Rogers, Winfield and Jolowicz, Tort, (supra), paragraph 5-81, page 261, only operates under certain conditions. They are:
(1) Proof of the happening of an unexplained occurrence;
(2) The occurrence must be one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and
(3) The circumstances must point to the negligence in question being that of the defendant rather than that of any other person,
See, PSHS Management Board and Anor v Goshwe(2012) LPELR-9830 (SC), citing Royal Ade Nig Ltd v NOCM Co Plc [2004] 8 NWLR (pt 874) 206”.PER C. C. NWEZE, J.C.A
NEGLIGENCE – CORE INGREDIENT FOR THE TORT OF NEGLIGENCE
“As has been, unanswerably, observed “duty” is the core ingredient of the tort of negligence, see, W. V. H. Rogers, Win field and Jolowicz Tort, (supra) 143. This is, truly, the position in Nigerian law for, as the Supreme Court held in Anya v Imo Concorde Hotel Ltd [2002] 18 NWLR (pt 799) 377: The most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of the duty of care against the defendant, the action must fail [italics supplied]”.
See also, Benson v Otubor (1975) 3SC 19, Okoli v Nwagu (1960) SCNLR 48, (1960)3 fsc 16, Nigeria Airways Ltd. Abe (1988) 4 NWLR (Pt. 90) 524, Strabag Construction(Nig) Ltd. Ogarekpe(1991) 1NWLR (Pt. 170) 733.” PER C. C. NWEZE, J.C.A
NEGLIGENCE –CONDITIONS FOR COMPLETENESS OF THE TORT OF NEGLIGENCE
“In the trenchant words of the urbane and debonair Umaru Atu Kalgo JSC in UTBN v Fidelia Ozoemena (2007) LPELR -3414 (SC) 13, E-G: “(n)egligence is a tort and it is complete when three conditions are satisfied. These are: (1) The defendant owes a duty of care to the plaintiff; (2) The defendant has acted or spoken in such a way as to break that duty of care; (3) The conduct of the defendant was careless,” citing Clerk and Lindsel on Torts, (14th Edition), 474; Agbonmagbe Bank Ltd. v C.F.A.O. [1966] 1 All NLR 140; [1966] 1 SCNLR 367; Oyidiobu v. Okechukwu [1972] 5 SC 191; Orhue v.NEPA [1998] 7 NWLR (pt.557) 187”. PER C. C. NWEZE, J.C.A
APPLICATION OF RES IPSA LOQUITUR – ESSENTIAL QUALIFICATION FOR THE APPLICATION OF RES IPSA LOQUITUR
“An essential qualification to the application of res ipsa, is “the absence of explanation by the defendants’, Scott v London and St Katherine Docks Co (1865) 3 H and C 596, 601, cited in V. Harpwood, “Negligence: Breach of Duty” in A. Grubb (ed), Butterworths Common Law Series, The Law Of Tort (supra), paragraph 13. 47, page 625; also, W.V. H. Rogers, Winfield and Jolowicz, Tort, (supra), page 263; Royal Ade Nig LtdV NOCM Co Ltd [2004] 8 NWLR (pt 874) 206, 223; Flash Fixed Odds Ltd v Akatugbai [2001] 9 NWLR (pt 717) 46, 61”.PER C. C. NWEZE, J.C.A
CASES CITED
STATUTES REFERRED TO
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