⦿ CASE SUMMARY OF:
Nigerian Bottling Company Ltd. v. Constance Obi Ngonadi (1985) – SC
by PaulPipAr
⦿ TAG(S)
– Negligence;
⦿ PARTIES
APPELLANT
Nigerian Bottling Company Ltd.
v.
RESPONDENT
Constance Obi Ngonadi
⦿ CITATION
(1985) NWLR (Pt.4) 739;
(1985) 5 S.C 317;
(1985) LPELR-2017(SC)
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Oputa, JSC
⦿ APPEARANCES
* FOR THE APPELLANT
– Mr. K.S. Okeaya-Inneh, S.A.N.
* FOR THE RESPONDENT
– Mrs. Ndidi Edewor.
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⦿ FACT (as relating to the issues)
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 12/12/1975. 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.
On the evidence and findings thereon, the learned trial judge concluded: “On the whole I am satisfied that the plaintiff has established her case against the defendant and her action succeeds.” The plaintiff/respondent was then awarded N435.50 special damages and N30,000.00 as general damages.
The defendant/appellant appealed from the above decision of Maidoh, J. to the Court of Appeal, Benin Division.
In a well-considered judgment Pepple, J.C.A. (Omo-Ebo and Okagbue, JJ.CA. concurring) upheld the judgment and award of the learned trial judge and dismissed the defendant’s/appellant’s appeal.
The defendant has further appealed to this Supreme Court.
⦿ ISSUE(S)
1. Whether from those facts one could have drawn the inference of negligence as the trial court and the Court of Appeal did?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH N300 COST]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. From the above, there is absolutely no merit in this ground. 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. Also from the evidence which was not controverted, the refrigerator was not inspected by the plaintiff. It was delivered to her in a crate at Agbor where it was unpacked and installed by servants of the defendant/appellant on 12/2/75. Two days after that delivery, the defect manifested itself. It was therefore a latent defect. If it were otherwise an open defect which the plaintiff/respondent saw and was aware of there will be no need for the oral warranty given to the plaintiff/respondent by the defendant/appellant; and there too, the doctrine of caveat emptor might have become an important issue for consideration. There was ample evidence on which the trial court and the court below were fully justified in finding that the Evercold Refrigerator sold to the plaintiff/appellant had latent defect.
ii. What is more important is that the court of trial and the Court of Appeal both made concurrent findings of fact with regard to the defective nature of the refrigerator sold to the plaintiff/respondent by the defendant/appellant. Both courts held that in the peculiar and surrounding circumstances of this case, the defendant/appellant was negligent in selling a defective refrigerator to the plaintiff/respondent. The principle that has been stated times without number in this Court is that it will not generally interfere with concurrent findings of fact of both the trial court and the Court of Appeal. Such findings cannot here be disturbed merely because there was an alleged omission in the pleadings of the word “latem” in describing the defect in the refrigerator. There has been no miscarriage of justice, no serious violation of some principle of law or procedure to warrant a departure from the general rule of noninterference with concurrent findings.
⦿ REFERENCED
⦿ SOME PROVISIONS
Sale of Goods Law of Bendel State Cap 150 of the Laws of Bendel State of Nigeria 1976:
“15(a) Subject to the provisions of this Law and of any written law in that behalf there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:- (a) where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he, be the manufacturer or not), there is an implied condition that the goods will be reasonably fit for such purpose…”
⦿ RELEVANT CASES
Lord Atkin in his famous dictum in Donoghue v. Stevenson (1932) A.C. 562 at p.580 observed: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyer’s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.”
Samuel Fadiora & Anor. v. Festus Gbadebo and Anor. (1978) 3 SC. 219 at p. 248 stressed that 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. This is however subject to the proviso that the point is a substantial point of law. The Court may however refuse to entertain the question of law sought to be raised for the first time if it is satisfied that the court below would have been in a more advantageous position to deal with the matter.
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⦿ NOTABLE DICTA
* PROCEDURAL
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. – Oputa, JSC. NBC v. Ngonadi (1985)
* SUBSTANTIVE
