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  • 2005-04-11
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Nigeria Bottling Co. Plc vs. Ojo

NIGERIA BOTTLING CO. PLC

V

MR. DAVID OJO

COURT OF APPEAL

( ILORIN DIVISION )

ABOYI JOHN IKONGBEH JCA (Presided)

WALTER SAMUEL NKANU ONNOGHEN, JCA

JA’AFARU MIKA’ILU JCA (Read the Lead Judgment)

CA/IL/M.12/2003

THURSDAY 10TH, JUNE 2004

APPEAL - Interlocutory appeal - Party appealing on every ruling of court which in actual fact may form an incident in the proceedings as a whole - Impropriety of

Issue:

Whether the learned trial Judge was right in granting the application of the respondent when he admitted the bottled products of the appellant (namely Fanta and Sprite) and ordered them to be sent to the Nigerian Standard Organisation (NSO) and National Agency for Food and Drug Administration and Control (NAFDAC) when they were not tendered through any witness as required by law.

Facts:

The respondent instituted an action in suit No. KWS/17/2002 before the Kwara State High Court of Justice, Ilorin claiming against the appellant:

(i)             Declaration that the presence of visible substance in the defendant’s products of mineral/soft drinks of Coca-Cola, Sprite and Fanta circulated and sold around May, 2001  at Kwara State is dangerous and injurious for consumption.

(ii)           Declaration that the consumption and sales by the plaintiff of

the defendant’s products of mineral/soft drinks in the brand of Coca-Cola, Fanta and Sprite which contained visible adulterated substance in May, 2001 at the National Youth Service Corps (NYSC) Camp at Yikpata, Kwara State has injured the health and business of the plaintiff due to the defendant’s negligence;

(iii)         The sum of N1 million (One million Naira), being damages ( special and general) suffered by plaintiff as a result of the consumption and sale of defendant’s adulterated mineral/soft drink products in the brand of Coca-Cola, Fanta and Sprite.

The respondent by a motion on notice dated the 31st of May 2002 prayed the trial court for an order admitting two of appellant’s corked bottled products namely Fanta and Sprite in possession of the respondent in evidence as exhibits and an order sending same to the Nigerian Standard Organisation ( NSO) and National Agency for Food and Drug Administration and Control ( NAFDAC) for the purpose of examination.

The trial court heard arguments of counsel in respect of the motion. In its ruling, the trial court granted the respondent’s application and ordered as prayed.

Dissatisfied with the ruling, the appellant appealed to the Court of Appeal.