[2004] UGCA 43

### THE REPLiBLIC OF TIGANDA IN THE COL:RT OF APPIAL OF T'G.\NDA AT IC{MP.{LA

# CORANI: HON. JUSTICE A. E. N. NIPAGI-BAHIGEINE, J. A. HO\. JUSTICE S. G. ENGlVALI,. I.\. HON. JUSTICE C. N. B. I(I'T LIMB.{, JA.

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# SSENDI EDWARI) APPELLANT \. ERSLS

#### CIRO!vVN BEVAR{GES LTD RESPoNDENT

lAppeal fronr decision of Hon- Justicc C. Tinyinondi in thc High Court of Lgxodx irt Kxmprlx delivered on 27.1l.200ll

# ,IL-DGENIENT OF A. E.\. IIPA(;I-BAHICEI\E.. I. A.

This appeal is against the dismissal of HCCS No.345 of 1998, on ?7 .11 .2001, by the High Court at I(ampala.

The appellant, Sendi Edward, filed suit in negligence against the respondent, Crown Beverages Ltd, who are manut'acturers of the soft drinks known as Mirinda-Fruitv and Mirinda-Lemon.

The background facts were that, on the 22nd December 1997, the appellant bought a bottle ol Mirinda-Fruity tiom a retailer's shop who opened it for him to drink. As he gulped dowu sorne of its contents he sensed some small stones on his tongue iind when he looked at the bottle he detected some dilt in it. While he complained to the seller he noticed yet another bottle of Mirinda-Leraon on the rack also containing some dirt. After reluctantly paying for the drink, he ,r0

decided to take both bonles to the Chairman LCl, where he reported the matter and was advised to take the bottles to the Government Chemist Nsubuga Emmanuel, PW5, who analysed the contents and found some starch substance suspended therein which was unsafe for human consumption. He made his report- ExP3.

On returning home the sarre day the appellant developed nausea, vomiting and diarrhea. He visited his doctor at Busabala clinic, Dr. James Balongo, PW4, who prescribed some treatment tbr him. He, however, did not complete the treatment due to lack ol funds. PW4 ret'erred him to a specialist neurologist after he complained about his diminishing sexual prowess and shrinking manhood. He never consulted the neurologist due to lack of funds. He decided to sue the respondent tbr Shs.30,000,000/: as general damages in negligence for breach ofduty and the resultant injuries he had sutfered.

By paragraph 4 (g) of his plaint he claimed that:

- "-l (g) As a result of drinking the soda, the plaintiff developecl weaknesses in his genitals and his penis has started to shrink and is unable to erect therefore likely to result into impotence. (A photocopy of Busabala Road Nursing Home's comments are attached hereto and marked as Annexture "C"). - (h) The plaintilfs disability is stated to be above 607o according to Annexture "B" irnd is likely to become permanent thus denying our client his natural rights."

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The paniculars ol negligence were itemised in paragraph 5 as tbllows:

- "5 (a) Providing and bottling Nlirinda Fruity and Nlirinda Lemon with starchY substances suspended therein. - (b) Failure to detect the said starch substances. - (c) Putting on the market the saicl sodas sealed with starch su bstirnces inside. - (d) Knowing that the said sodas would reach the plaintiff with no reasonable possibilit"v of intermediate examination. - (e) Injuring the plaintiffs life as shown by Annerture."B" causing him a 607u permanent disabiliry" thus denying him the enjoyment of his natural righ ts."

By paragraph 7 of the plaint the appellant averred that: "the respondent owed him a duty of care which he breached by manufacturing the said soft drink (sodas) and sold them in a form he intended them to reach the plaintilT as a consumer and with no reasonable possibility of inter-medi:rte ex:rmination of which knowledge they were well aware that absence of reasonable care in the preparation or putting up the product rvould result in an injury to the plaintiff."

The respondent denied the appellant's claims contending that in their factory they adhere to strict quality control standards set by the Uganda National Bureau of Standards and denied responsibility for the adulteration of the drink consumed by the appellant.

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The Iearned Jr-rdge dismissing the suit held that the appellant had tailed to prove that the respondent had breached the duty olcale owed to the appellant The memorandurn ol appeal comprises t'ive grounds:

- wrongly evaluating the evidence on record. - 2. The learned trial . Iudge erred in law and fact when he held that the appellant had failecl to prove that the Nlirinda-Fruity that he had drank had the same dirt as it had when it left the Respondent's factorv. - 3. The learned trial Judge erred in law and fact when he held that the Appellant had not proven that the Respondent had breached the duty of care of it owed him. - -1. The learned tri:rl Judge erred in law and lact by failing to hold that the evidence of Appellant to the effect that when he clrunk the Mirinda Fruity he sustained bodily injury stood unchallenged. - 5. The learned trial Judge erred in law and fact by' basing his judgment on mere assumptions, speculation and manulrrctured evidence."

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The parties opted to t-rle written submissions under rule 97 of the Rules of this court. This was as far back as 5'h May 2002. Apparently, the process came to a halt when a member of the panel had to leave the country before the judgment could be written.

I was co-opted to replace hirn on 10.09.2004

Turning to the substance of the appeal, Mr Lumweno argued grounds 1,2 and 3 of the appeal together. He asserted that there was overwhelming evidence

on record to support the appellant's claim that at the time he drank the adulterated Mirinda it contained dirt and that the said Mirinda-Fruity was in the same state as it had left the respondent's factory. He submitted that this was not controverted by the respondent and that theretbre it stood unchallenged.

Citing the holdings in Donoghue vs Stevenson (1932) AC at pp.599 and 622 bv Lord Atkin and Lord llacmillan , respectively, Mr Lumweno asserted that the facts in the appellant's case were on all fours with the l0 authority cited and that the appellant had established that the respondent had breached the duty of care it owed the appellant. He submitted that the appellant's case was so clear that the doctrine of res ipasa loqiutor was applicable to it.

He prayed court to t-rnd that the appellant was entitled to the reliefs sought.

The respondent opted not to reply to grounds 1,2 and 3.

Their view was that it was only ground 4 that merited consideration.

However, the learned Judge ruled:

"I find and hold that on evidence of P!Vl, PW3 and PW5 the Plaintiff lailed to prove that the Nlirinda-Fruit"v in the present case, had the same 'dirt' as it had when it left the Respondent's factory. The Plaintiff has not proved on a balance of probabilities, that the Defendant breachetl the dutv it owed him."

It was incumbent upon the appellant to establish that the defect which caused the injury was present in the article when it left the tbctory, that the defect was occasioned by the careiessness of the manufacturer, and that the circumstances were such as to cast upon the manufacturer duty to take care

not to injure the consumer/appellant. There is no presumption of negligence in such a case nor is there any justification for applying the maxim of res ipsa loqiutor as contended by Mr Lumweno. Negligence must be both averred and proved.- See Donoghue vs Stevt4rq4 paragraph). And Bonnington Castings Ltd. vs W:rrd Law (1956) I AER 6l s. (sLrpra) page 622 - (last

The appellant's evidence \r'as that he bought a bottle of Mirinda-Fruity from a retailer in the workshop of Mayanja Gerald, PWi, who opened it for him. He testified:

'oI got soda from the fridge I opened it and offered it to him with ^a straw.. He started drinking in the meantime he told me the taste \ryas not palatable. . . I opened the soda mvself. ."

The Government Chemist, PW5 stated:

". . He (the plaintill) brought the N irinda-Fruity and Mirinda-Lemon.

. I examined the exhibits. The exhibits were in liquid state in bottle with bottle tops. The Nlirind:r-Fru itv rvas aiready opened and one third full. The Nlirinda-Lemon was firctory sealed and still intact. In mv analysis of the Nlirinda-Lemon, Serial No'G 210197 the bottle was intact, starch substance was fbund suspended inside on the top. Such starch substance is tbreign to Mirinda-Lemon it was unsat'e for human consuntption.

The Nlirinda-Fruity-Seri:rl No.239/97 rvas a third filled-had been Iilled and some of it either drunk or poured out' Some dirt was found in the stuff, may be due to poor cleaning of bottle (sic)' This stuff was also unsafe for human consumption' 'Ex'P3'"

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In view of the above evidence, a prima f-acie case was clearly established by the appellant that when he bought the Mirinda-Fruity it was sti11 intact, in the same way it had left the factory, with no extemal intervention until PW3 opened it for him and he consumed some of its contents. The respondent opted not to controvert this evidence. The respondent is thus deemed to have accepted that the dirt was present in the bottle when it letl the t-actory. This was due to the respondent's carelessness who was clearly in breach of duty owed to the consumers of whom the appellant was one.

Grounds 1,2 and 3 would succeed.

Regarding ground No.4 that the trial Judge erred in lact and law in f-ailing to uphold the evidence of the appellant to the effect that when he drunk the Mirinda-Fruity he sustained bodily inj ury which evidence stood unchallenged, Mr Lumweno submiued that the only probable inference from all the evidence was that it was the Mirinda-Fruity and not any other food that had been eaten by the appellant which caused hirn to suffer severe abdominal pains, diarrhea and vomiting blood.

- l0 Learned counsel, however, did not dispute the Judge's findings that: - "(a) There was no expert medical evidence to prove that "the disability was likely to result into permanent impotence. Even if such evidence had been attempted I would have rejected it as were conjecture unless it lvas conclusive. - (b) Counsel's submission thrrt the Plaintiff testified that his wife had abandoned him because he cotrld no longer perlbrm maritzrl duties lvas a creation of his own imagination. There wls no such evidence adduced."

He submitted that despite the foregoing there was other evidence of injuries suffered by the appellant to warrant an award of Shs.20,000,000/: as general damages for the pain and sut-fering as a result of drinking the Mirinda-Fruity which was nor fit for human consumption.

For the respondent, it was argued that according to his pleadings the appellant had specitically claimed Shs.30,000,000/= as general damages for the respondent's negligence causing him to consume a contaminated soda, as a result of which he lost his manhood and a right to procreate. It w.as contended that the appellant did not base his claim of Shs.30,000,000/: on the alleged other injuries he suffered but on impotence. Citing Bonnington Castinss Ltd. rs \l'ardllaw ( l9s6) AER 615, counsel lurther submitted that the appellant had to prove breach ofduty and that such breach had caused the injury complained of. The injury complained of was specitically irnpotence and that since his counsel had conceded that there was no evidence to sustain the injury of impotence the entire claim lacked basis.

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The principle in Bonnington Castin\_ss, Ltd. (supra)reads:

"In an action lbr damages for negligence xt common law, the onus of proving that the lault complained of caused, or materially contributed to, the injury complained of, as well as of proving the negligence or breach of duty lies on the plaintiff. The same onus of proof, viz, of proving breach of duty and that the breach caused or materially contributed to the injury applies in an action for damages for breach of

# statutory'duty, unless the statute or statutorv regulation in question expressly or impliedly provides otherwise. ."

This is sirnilar to the principle in Donoqhue alreadl- set out above.

While it is correct that the appellant had not discharged his burden of proving that the consumption of the adulterated soda had caused or led to his impotence, it is not correct to say that his claim for Shs.30,000,000/= was specifically prayed tbr that disability alone.

l0 Impotence was only' part of and was the ultimate permanent inj ury of the injuries he sustained as paragraph 5 (e) ofthe plaint indicates:

> "5 (e) Injuring the plaintifls life as shown by Annexture "B" causing him a 60%o permanent disability thus denying him the enjoyment of his natural rights."

Amexture "B" are the treatment notes made tbr the appetlant by Dr Balongo, PW4, which read in part:

# 'pains and vomiting and diarrhea with blood stains experienced after taking Mirinda-Fruity soda.'

The respondent's claim therelore that impotence is the only inj ury the appellant based his clairn on, is without basis considering that his prayer in paragraph 9 olthe plaint reads:

'Wherefore the plaintiff prays for j udgement and orders, against the defendant that:

(a) The defendant pays the plaintiff general damages amounting to Ug. Shs.30,000,000/=

It cannot therefore be disputed as indicated above that the appellant's pleadings averred and that the appellant proved other injuries apart tiom impotence. The Iearned trial Judge ered to have overlooked this.

Where a claimant proves an injury he is entitled to a remedy. It should be noted that there were two bottles of sodas with foreign substances at the same shop. This reflected a very serious laxity and dereliction of the duty ofcare owed to the unsuspecting consumer by the respondent. This trend of things should serve as a wake-up tbr the National Bureau of Standards whose regulations the respondent claims to adhere to strictly. For the resultant pain and suffering occasioned to the appellant I would award a sum of Shs. 15,000,000/= (fifteen million) general damages with a 1/3 of the costs here and below.

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Since my Lords Engwau and Kitumba JJ. A both agree, the appeal succeeds to that extent.

Dated at Kampala this ?\) t4 Cctc,b e, day of 100.+

I-I}.\H I(; NE

OF.\PPE

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA CORAM: HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE C. N. B. KITUMBA, JA

#### CIVIL APPEAL NO. 17 OF 2002

#### **BETWEEN**

#### SENDI EDWARD ::::::::::::::::::::::::::::::::::::

#### **AND**

#### CROWN BEVERAGES LTD. ::::::::::::::::::: RESPONDENT

[Appeal arising from the judgment and orders of the High Court (Tinyinondi, J) dated 27 - 11 - 2001 in HCCS No. 345 of 1998]

#### JUDGMENT OF ENGWAU, JA

I had the benefit of reading in draft the judgment of Mpagi-Bahigeine, JA, and I agree with her findings and orders made therein. I have nothing more to add.

Dated at Kampala this ....................................

S. G. Engwau JUSTICE OF APPEAL.

$10$

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. $\mathsf{S}$ HON. JUSTICE S. G. ENGWAU, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

### CIVIL APPEAL NO. 17 OF 2002

### SENDI EDWARD ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### CROWN BEVERAGES LTD. ::::::::::::::::::::::::::::: RESPONDENT 15

#### [Appeal from decision of (Hon. Justice G. Tinyinondi) in the High Court of Uganda at Kampala delivered on 27/11/2001]

$10$

# JUDGEMENT OF C. N. B. KITUMBA, JA.

I have had the benefit of reading in draft the judgement of Mpagi-Bahigeine, JA. I agree with it. I have nothing useful to add. 25

11 CHCbC+ 2004. Dated at Kampala this ...

Nets, Kilu C. N. B. KITUMBA JUSTICE OF APPEAL

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