[2001] UGHC 119

## THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 345 OF 1998

SSENDI EDWARD PLAINTIFF

Versus

CROWN BEVERAGES LTD. DEFENDANT

### BEFORE : THE HON. MR. . JUSTICE G. TINYINONDI

# **• J U D G M E N T**

The Plaintiff claimed Shs. 30 million/= (Shillings Thirty Million only) in general damages mirinda-fruity which had been manufactured and sold by the Defendant. Thai the Defendant negligently manufactured it by leaving starchy substances in it That after drinking two-third of it he developed, inter alia, weakness in his genitals and was likely to become impotent. He alleged he drunk a

The salient paragraphs ol the plaint are -

"1.

*->* The Defendant is a limited liability company incorporated in Uganda and cneaeed in the business of manufacture and sale of soft drinks upon whom the Plaintiffs Advocates undertake to effect court process.

- The Plaintiff's cause of action and/or claim against the Defendant is for General damages amounting to Uganda Shillings 30 million arising out ol negligence. - 4. The Plaintiff's cause of action and/or claim against the Defendant arose as hereunder - (a). That sometime back in December, 1997 the Plaintiff bought two sodas - Mirinda Fruity and a Mirinda Lemon. - (b). After drinking around 2/3 of the Mirinda Fruity, the Plaintiff noticed that there were some suspended substances in the soda. - (c). The second Mirinda Lemon which was not opened by the Plaintiff had a starchy substance suspended in it. - (d). The Plaintiff developed abdominal pains, vomiting, vomitus with blood stains and started walking with difficulty after taking the said Mirinda Fruity and consequently was put on analgesics, anti-emetis. anti-acids and anli-biotics. - (e). were as Annexlure "A"). On presenting the two bottles to the Government analyst for laboratory tests, they were found to be unsafe for human consumption. (A photocopy of the Senior Government analyst MR. NSUBUGA EMMANUEL is attached hereto and marked - **(0** the Plaintiff was further treated with anti-biotic and anti-diarrhea when he further developed severe abdominal discomfort with bloody diarrhea. (A photocopy of Busabala Road Nursing Home treatment notes is attached hereto and marked as Anncxture "B"). - (g)- As a result of drinking the Soda, the Plaintiff developed weaknesses in his genitals and his penis has started to shrink and is unable to erect therefore likely io result into impotence. (A photocopy of Busabala Road Nursing Home's comments is attached hereto and marked as Annexlure "C"). - **30** (h). The Plaintiff's disability is staled io be above 60% according io Annexlure "B" and is likely io become permanent thus denying our client his natural rights.

#### 5. PARTICULARS OF NEGLIGENCE

- Producing and bottling Mirinda Fruity and Mirinda Lemon with starchy substances suspended therein. (a). - (b) . Failure to detect the said starchy substances. - (c) . Putting on market the said sodas sealed with starchy substances inside. - (d). Knowing that the said sodas would reach the Plaintiff with no reasonable possibility of intermediate examination.

(e). Injuring the Plaintiff's life as shown by Annexture "B" causing him ^a 60% permanent disability thus denying him the enjoyment of his natural rights.

- 6. The Plaintiff shall aver that the Defendant's negligent acts are likely to deny him his. natural and biological right to procreate. - 7. The Plaintiff shall further aver that the Defendant 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 Plaintiff as a consumer and with no reasonable possibility of inter-mediate examination of which knowledge they were well aware that absence of reasonable care in the preparation or putting up of the product would result in an injury to the Plaintiff. - 8. - 9.

The Defendant's written statement of defence reads :

**"1.** 0

**IS**

- Save what is hereinafter expressly admitted, the Defendant denies each and every allegation in the plaint as if the same were set forth specifically and traversed seriatim. - 2. Paragraphs ¹ and 2 of the plaint are admitted, save that the defendant's address of service in this suit shall be Ssebalu and Lule Advocates, EADB Building. 4 Nile Avenue, P. O. Box 2255. Kampala.

- 3. The allegations that the Plaintiff bought two sodas, Mirinda Fruity and Mirinda Lemon is not within the knowledge of the Defendant and the Plaintiff shall be put to strict proof thereof. - 4. But without prejudice, the Defendant shall aver that if al all the Plaintiff purchased two soda boules the contents of which were bottled by it, they did not contain any starchy substances, since the Defendant adheres io strict quality control standards set by the Uganda National Bureau of Standards. - 5. The allegations that the Plaintiff suffered any damage as a result of consuming the said adulterated soda is not within the Defendant's knowledge and the Plaintiff shall be pin io strict proof thereof."

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offals in one of them. From there he repaired to another place where he bought a mirindafruily from an off-the counter seller ("lejja-lejja"). When he drunk it he felt as if it saw impurities. He showed it to the seller. Mayanja, and told him he would not pay as the drihk was dirty. He asked Mayanja to accompany him to the Local Committee members to sort out the issue of payment. As they were leaving for the LC's place he picked a bottle of contained impurities. The Chairman of the LC advised the Plaintiff to pay because Mayanja did not bottle He, however, advised the Plaintiff to resort to the Government the drink. Chemist. The Plaintiff obliged in both respects. contained small pieces stones. He did not slop but drunk more of it. He again fell like lie ^I mirinda-lemon from the shop rack and took it also to the LC's. He took it because it also repaired to Kiyembe, Kampala, for breakfast in the local restaurants. He ate matooke and PW1 testified as follows. He dealt in secondhand clothes. On 22/12/97 ai 10.00am. he was chewing small stones. Fie decided io examine/observe the contents in the bottle. He


The Plaintiff further testified that indeed he took the two bottles to the Government Chemist, asked him to examine the soda because he had drunk and suspected it could cause him problems. The Government Chemist told him that he was busy at the time and asked the Plaintiff to leave him with the bottles and return later.

Throughout that night he vomitted and had diarrhea. At 6.00am he dressed up and went to Busabala Road Nursing. Home where he was examined and was given a drug. He used it and fell some relief. A few days later he again felt bad. When he tried to have sex with his wife he failed because of abdominal pain. When he returned to report the failure the doctor advised him to seek an alternative hospital. gave, him a drug. He used it but got no relief. his chest. He failed to finish bathing. He sat in a chair and felt nausea. When he arrived at home, he started bathing. In that process he fell something turning in He returned to the Home and told of his plight. The doctor

Thereafter the Plaintiff resorted to local treatment. He went to Ms. Namaganda in Jubilee Park, Kibuye, who gave him a five litres of a herbal mixture to drink over a period of four months. When he sensed no improvement he abandoned this treatment. In April 1999. he he felt relief but again relapsed. went io Mulago hospital. He received treatment from a doctor on three occasions. Al first

At the- time of this hearing, the Plaintiff testified, he was feeling dizzy. His penis had developed white and black spots. He was distressed by the prospect of not ever producing He had one son and one daughter at the time. now ⁱ another child living alone: the son was living with his paternal grandmother while the daughter was His wife had deserted. He was with her mother. back to the Government Chemist who had given him back the bottles. He had not brought them to court because no one asked him to bring them along. He had sold all his household property. He had in the meantime gone

During cross-examination, the Plaintiff testified as herebelow. In December J997, he was married to Sarah Namakula, daughter of Kasule, who also resided in Namasuba as did the Plaintiff. Both his offspring were produced with Sarah. The boy was about six years old, while the girl was about two and a half. He had stayed with Sarah for five years or so. On 22/12/97 he did not eat lunch or supper. He did not have breakfast at home. Previous to 22/12/97 h'is last meal was dinner consisting of matooke and meal and water. After the Kiyembe breakfast he had had tea and bread on 24/12/97. He had not drunken beer on 21/12\*. 22/12 and 23/12. He used to eat breakfast cither at home or in Kiyembe. The shop was both a workshop for repairing television sets, radios, flat irons, electric kettles as well as selling sodas. Mayanja was the mechanic in the shop. The Plaintiff did not recall names the dale material to this suit, he found Mayanja seated but not repairing anything. He did Although when he first drunk the soda he Tell stone-like particles he had thought it was due to the food he had just eaten. So he had a second sip. Once again he felt the same and spat it out. He had read the Chemist's **'b** He had gone to the Government chemist at midday after which he returned to his work. He did not recall when he picked of the lady who sold these sodas. When the Plaintiff went to this workshop at 10.20am on where, he bought the aforesaid soda had a signpost on it but he did not recollect the name. It not know if Mayanja had earlier on repaired anything. report but he did not recall reading stone-like particles. the results from the Government Chemist

**5**


When he was referred io annexture "B" io the plaint, the Plaintiff testified that it was his medical ieport. He had reported to the home for a second time on 24/2/98. When he again went for the third time three weeks later, the doctor told him that he could not afford the medical bill. He decided to resort to Jubilee Park for herbal treatment by Ms. Namaganda who was operating from a kiosk.

PW2, Martin Byekwaso, testified that he was a businessman and LC. I Chairman Nakasero IV Parish, Sultan village. The Plaintiff operated business in his area. In December 1997, the Plaintiff. reported to the witness' office with a bottle of mirinda-fruity and mirindalemon claiming to have picked them from the seller. He told that when he was drinking it he found it contaminated. He was seeking PW2's advice. PW2 advised him to see a physician as well as the Government Chemist. The Plaintiff returned the following day to report to PW2 that he had followed the advice but had also had a bad night

consumed the soda. He did not know if the Plaintiff had actually seen the doctor. In cross-examination, PW2 testified that he was not present when the Plaintiff bought or

workshop in Kiyembe. Kampala, called "Gaba Electrical Workshop". He knew the Plaintiff as a hawker in fabrics. The workshop was about 3 square meters. One Namusisi sold sodas in the same workshop. In 1997 the Plaintiff bought a soda from this workshop. PW3 picked the soda from a fridge, opened it. and offered it to the Plaintiff with a straw for PW3, Mayanja Gerald, testified as follows. He was an electrical mechanic, who operated a drinkinu. As he drank the Plaintiff told PW3 that the taste was not palatable. When PW3

asked for money the Plaintiff refused saying that the soda was wrong and he was going to report to the authorities.

**-^1-**

**•Z'**

**)**

contaminated sodas which they had put aside with a view to returning them to the factory. The Plaintiff grabbed one of these bottles and headed for the office of the LC. I Chairman. PW3 went along with him. On the way they met Namusisi who joined them. They found the office overcrowded. However, the Plaintiff entered leaving PW3 and Namusisi outside. PW3 did not know what transpired inside the office; but the Plaintiff paid for the soda when he came out. PW3 further testified that during the operations of their soda sales they had come across

In cross-examination, PW3 testified that Namusisi was the one running the soda business. water in this workshop. element in an electric iron using pliers and a screw driver. When the Plaintiff asked for the soda,. PW3 pul aside the electric iron and went ahead to serve him. There was no running The Plaintiff came for. the soda between 10-11 am. At that lime PW3 was repairing an PW3 did not repair television sets and radios. He had known the Plaintiff for two years.

PW4, Balongo James testified that he was a general practitioner in human medicine. He owned a clinic/Nursing home along Busabala Road. He did not know the Plaintiff before He walked with difficulty. The Plaintiff told PW4 that he had drunk a mirinda-fruiiy which contained impurities. PW4 the Plaintiff came for treatment on 23/12/97 in the morning hours. That lime the Plaintiff administered antibiotics, antiacids, antiemeiics and anti diarrheas. The following day the had severe abdominal pain and was vomiting blood.

Plaintiff reported diarrhea. The stool contained blood. He was still vomiting. PW4 advised continuation of the above treatment. On 25/12/97 the Plaintiff reported improvement. PW4 asked him to return for more treatment but the Plaintiff said he had no more money. However, on 28/12/97 the Plaintiff returned this lime complaining that his penis was shrinking and failing to erect. PW4 advised him to go to a Chemist to test the mirindafruity containing the impurities. Plaintiff told him that had been done already [The treatment notes were admitted as exhibit "Pl"].

-7'

PW4 further testified that the treatment he gave to the Plaintiff was not enough because the Plaintiff did not have money for more treatment. PW4 also prepared a medical report. He wrote therein that "the percentage of disability is more than 60% . He told that the ) percentage is determined by the severity of the disability. That due to the complaint presented, the percentage would be high. That he had advised the Plaintiff to go to a specialist but he had no money. [The report was received without objection as exhibit "P2"].

In cross-examination, PW4 testified as hereunder. On the morning of 23/12/97 the Plaintiff found him at the clinic but not vice-versa. He normally reported at the clinic at 8.30am but not at 6.00am. He advised the Plaintiff to go to a specialist because PW4 is not a specialist in the field of eurology.

PW5. Nsubuga Emmanuel, testified that he worked at the Government Chemist, Ministry of 2) Internal Affairs. Wandegeya. At the time of this hearing, he was ^a Principal Government Analyst since 1999. Between January 1995 - 98 he was a Senior Government Analyst. He held a Batchelor in Chemistry (MU) and trained and obtained a diploma from Vienna International Centre in instrumentation and identification of drugs. He had eight years' experience at the Office of the Government Chemist where he analysed suspected poisoned exhibits, adulterated foodstuff, fake currency notes and fake precious gem. He met the Plaintiff for the first time on 22/12/97" when the Plaintiff brought exhibits for analysis. They were two bottles, one of mirinda-fruity and the other of mirinda-lemon. He examined opened already and was one third full. The 'lemon' bottle was still factory sealed and ) the reception desk. The person exhibiting fills a form showing his name and address. The receptionist then sends them to the analysis. The analyst does not interview the person exhibiting. In this case the exhibits were not accompanied by any documents. When he analysed the 'lemon' which was marked serial No. G 240/97 he found a starch substance suspended on the top. Since starch substance is foreign to mirinda-lemon it was unsafe for human consumption. ) intact. The witness described the procedure at their office thus. The exhibits are placed at them. They were in liquid state, in boules with bottle tops. The 'fruity' bottle had been

*-a-*

Some din was found in the staff probably it was due to poor cleaning of the boule. full. This stuff was also unsafe for human consumption. He compiled a report referenced without objection]. He gave the report and exhibit to the Plaintiff. **.0** PW5 analysed the second boule marked SNo. 239/97 containing the fruity. It was one third 937/1935 on 22/12/97 and signed it. He addressed it to ''Sendi". [Exhibit "P3" received

*7•f*

In cross-examination. PW5 testified that he could not account for the chain an exhibit passes through before it reaches his office, especially when it is open. It is possible for anything to be susceptible to foreign elements. As far as the bottle containing the lemon was concerned For the fruity, however, he could not say the dirt was bottled in the factory. Normally the analysts indicate what substance they find in the liquid analysed. In the fruity he found dirt. PW5 could say that the starchy substances were bottled in the factory.

*-C*

**■■T**

**t)**

PW6. Sentimba Imran, testified as follows. He was a Government Chemist. On 22/12/97 at 2.00pm, the Plaintiff came to the witness' offices on plot ¹ Lourdel Road, Kampala. He had At the counter the Plaintiff told PW6 he had drunk of (he mirinda-fruily which had had an effect on him and he numbered them "G.239" and "G.240/97" respectively to acknowledge receipt, and delivered them to the analyst. He gave the Plaintiff a form, a copy of which must be presented when collecting the report while (he other remains on the office file [Document received without objection as exhibit "P4"]. In cross-examination, PW6 testified that at his place of work He had completed senior secondary six education. He had had no training in chemical analysis. This evidence closed the Plaintiff's case. his designation is "receptionist." was requesting that the contents of the two sodas be analysed. PW6 received the boules, two boules - one of mirinda-fruily and the other mirinda-lemon.

Counsel for the Defendant informed court that after consideration of the Plaintiff's evidence, the Defendant did not wish to call any evidence. Thereafter, both Counsel opted to file written submissions. They were accordingly received and filed.

That a vs. STEVENSON 11932] AC 562 Lord Atkin staled : manufacturer owes a duty of care to the consumer is well settled. In DONOGHUE

My Loids, if your Lordships accept the view that this pleading discloses a relevant cause of action you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or properly, owes a duty to the consumer to take reasonable care.

**/**

It is a proposition which ^I venture to say no one in Scotland or England who is not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense."

The pleadings before me, paragraphs 2 of the plaint and 2 and 4 of the written statement of defence are at one that the Defendant was a manufacturer of mirinda products, the subject of contained mirinda products was not seriously challenged, let alone controverted. ^I therefore hold that the Defendant was a manufacturer of mirinda products. Automatically, therefore. the Defendant "had the duty to take reasonable care in the manufacture of his product, and failure to take such care would render him liable to any consumer or user whose person ⁱ is injured by his product provided the present suit. The evidence of PW1, PW2, PW3 and PW5 that the boules in question

- the product causing the injury has the same defect as it had when it left the i) manufacturer: and - the manufacturer should have contemplated that the product would be ii) consumed or used in the same condition as it was when it left him.''

•CHARLESWORTH & PERCY ON NEGLIGENCE (9(b Edition) Paragraph ¹⁴ - ⁶9.1 [See

Which statement of the law bring, producing, bottling and putting on the market a defective mirinda-fruity and mirinda-lcmon with the mirinda fruity in my judgement because according to paragraph 4(b) of the plaint and the evidence of PW1 this is the product which was actually consumed and caused the Plaintiff's alleged plight. s me to the first issue as framed by the Plaintiff's Counsel. to wit. whether the Defendant breached the duty of care it owed to the Plaintiff in soda with starchy substances suspended in them. ^I hasten to note here that I am concerned

In his submissions on this issue, Counsel for the Plaintiff slated in somewhat vague terms that the Defendant had breached this duly. Counsel relied on the evidence of PW1. PW2. PW3. PW4. PW5 and PW6. [See : page 6 of Counsel's written submissions].

Oh the other hand, defence Counsel submitted that no adequate evidence had been adduced Defendant especially so when there was no evidence that the person who served the soda was at the time carrying out repair work and that there was no evidence that he washed his hands before serving Secondly, that the Government Chemist'^s analysis did not the soda. determine the correlation between the dirt and whether it was capable of causing the Plaintiff's ailments. to show that the fact of the soda being unfit for consumption was attributable to the

14-70 states : ^I prefer to deal with the issue of the burden of proof. CHARLESW0RTI-I (ante) paragraph

Negligence on the part of the producer must be proved before liability can be established, and proof is the same as in any other case of negligence. In DONOGHUE (ante) Lord Macmillan said :

*Cs-*

'There is no presumption of negligence in such case as the present one Negligence must both be averred and proved' The mere fact of the presence of a snail in a stoppered and sealed boule of ginger beer would appear to be within the maxim (res ipsa loquitur), because, owing to retention of effective control by the manufacturer until the ginger beer reached the consumer, there is a greater probability of negligence on the part of the manufacturer than on the part of any other person."

Il is my finding and holding that the evidence o.f PW5 was not challenged or controverted in as far as his analysis (exhibit "P3") revealed that ^a third of the mirinda-fruity contained "some dirt suspended in the stuff."

In order for the Plaintiff to succeed on the first issue, the Plaintiff has to prove, inter alia. that

manufacturer." "the product causing the injury has the same defect as it had when it left the

The evidence before me revealed that the room in which this soda was sold was at the same lime a soda from a fridge, opened ii arrived for the soda, PW3 who was operating these repairs, was fixing an element in an electric iron. When the Plaintiff asked for the soda. PW3 put aside the electric iron got the workshop where repairs for electric irons simultaneously go on. When the Plaintiff himself and offered it to the Plaintiff. It was also PW3\s

**1°**

opening the soda. PWl's evidence is inter alia, that PW3 washed his hands before evidence that theie is no tunning water in the workshop. The Plaintiff did not lead evidence

. ^I again felt ^I was chewing small stones. I decided to look up at the bottle. ¹ saw din." "When ^I drank ¹ fell like there drank some more were some pieces of stones, ^I did not mind much. ^I

observed the dirt - The significance of this evidence, in my humble view, is that the Plaintiff allegedly

a). after PW3 had opened the bottle with his unwashed hands; and

b). after the Plaintiff had had two sips/gulps on the bottle.

**^I** I make two assumptions based on the evidence which in my view may not be farfetched.

First, since PW3 testified that just before opening the soda he was engaged in repairing an hands, there is a possibility that din could have come off his hands and found its way in the d/unk from the bottle some of the soda in his mouth could have circulated back into the bottle. Recall that the Plaintiff had just eaten offals and matooke. The soda in his mouth could have washed particles of this food in his mouth and headed for the bottle. This second assumption is further fortified by the Plaintiff's evidence that he only observed the dirt in the bottle not right from the moment it was handed to him but after he had taken two ¹ p. 622 stated On top of this, PW5's evidence did not describe what was analysed as some sips/gulps. dirt This analysis was, in my view, valueless. Lord Macmillan in DONOGUE (ante) at electric iron and the Plaintiff did not lead evidence that PW3 first washed/clcaned his bottle. Secondly, his is a principle in physics. There is a possibility that as the Plaintiff

I can conceive that where a manufacturer has parted with his product and it has passed into othei hands it may well be exposed to vicissitudes which may render it defective oi noxious, for which the manufacturer could not in any view be held to blame."

Defendant s factoiy. The Plaintiff has not proved, on a balance of probabilities, that the Defendant breached-the duty of care it owed to him. ^I find and hold that on the evidence of PW1, PW3 and PW5 the Plaintiff has failed to prove that the mirinda-fruity in the present case had the same "dirt" as it had when it left the

With regard to the second issue of what remedies is the Plaintiff entitled to, Counsel for the

**)** Plaintiff-submitted -

⁴⁴According to the Plaintiff, he was 28 years old, married to Namakula in 1997 and prior to the Defendant's negligence they had two children together............... he currently feels dizzy and his penis has started developing while substances on the skin and could no longer erect PW1 also told court that his wife had abandoned him because he could no longer perform his marital duties like sexual intercourse. According to exhibit "P2" the Plaintiff's disability was projected at 60% because the disability was likely to result into permanent impotence.............. It is therefore submitted and prayed that the Plaintiff be awarded (U) Shs. 30 million in general damages for loss of his manhood and natural right to procreate."

To this issue I say (he following -

a). result into permanent impotence". Even if such evidence had been to attempted ^I would have iejected it as conclusive. there was no expert medical evidence to prove that ''The disability was likelv mere conjecture unless it was

b). Counsel' s submission that the Plaintiff testified him because he could no that his wife had abandoned longer perform marital duties was a creation of his own imagination. There was no such evidence adduced.

For the above Il IS dismissed with costs io the Defendant. reasons, the Plaintiff's suit fails.

G. Tinyinondi

JUDGE

27/11/2001