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Evidence hitch before the court: When dream never comes true

SOMETIMES a dream may come true. One may go to bed poor but wake up in the morning as a rich person. However, this was not to be for Winfred Mkumbwa, a resident of Mbeya City.

His intention of getting 100m/-from Pepsi company, SBC Tanzania Limited, only remained a dream. Our Staff Writer FAUSTINE KAPAMA reports on what happened.

ON February 1, 201, while in his office at Nzovwe Mbeya, Mr Winfred Mkumbwa, purchased three bottles of Pepsi, manufactured by SBC Tanzania Limited to quench his thirst; The product being one of his favourite drinks. He had a visitor identified as Jonathan Lameck in his office, so he offered him one of the bottles.

There remained one bottle unopened. While refreshing themselves with the drink, each started to experience stomach upset accompanied with vomiting and loss of consciousness. Later on when they recovered, he decided to examine the remaining unopened bottle of Pepsi and detected a kind of substance inside the bottle.

He referred the matter to Tanzania Food and Drugs Authority (TFDA) in Mbeya and later instituted a suit before a court of law. The suit commenced in the Resident Magistrates’ Court of Mbeya , seeking redress in the sum of 100,000,000/= as a result of breach of duty of care caused by the Company.

Mr Mkumbwa alleged that he consumed an adulterated Pepsi drink manufactured by SBC Tanzania Limited upon which he suffered nervous shock, psychological injury, emotional distress and loss of appetite. After a full trial, the trial court decided the suit in favour of the Company.

Aggrieved, he unsuccessfully challenged the findings of the trial court in the High Court. Still discontented, Mr Mkumbwa took the matter to Court of Appeal for further adjudications, advancing eight grounds in memorandum of appeal.

Justices Richard Mziray, Rehema Mkuye and Jacobs Mwambegele were assigned to determine the appeal in question. Having considered the submissions from either side, grounds of appeal and the entire record, the justices decided to deal with some issues calling for their immediate determination.

The first issue is whether SBC Tanzania Limited, the respondent in the appeal, breached his duty of care and secondly, whether Mr Mkumbwa, the appellant, suffered any damages from the breach of duty of care by the respondent.

In the judgment, the justices said as for the issue regarding the breach of duty of care that from the evidence adduced, there is no controversy that the respondent company is the manufacturer of the soft drinks known as Pepsi.

"We are settled that by virtue of being a manufacturer, the respondent is duty bound to ensure safety in its products to its consumers. Thus, the respondent owes a duty towards its customers. (He) owes a legal duty of care not only towards the appellant but also to all customers it is serving,” they said.

The justices referred to the famous case of Donoghue v. Stevenson [1932] where Lord Atkin propounded: “...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 of putting up of the product is likely to result in injury to the consumers life or property, owes a duty to the consumer to take that reasonable care”.

The justices were, however, quick to point out that for the claim of the appellant to sustain, then he was supposed to prove that the respondent had a duty of care; There was breach of that duty of care and as a result of that breach the appellant suffered damages.

However, the respondent through his evidence provided a scientific analysis of the whole process of sanitation and asserted that if the bottle will be contaminated with any unusual substance then it is hard for the said substance to remain, as the beverage could be interrupted in the process and remain half.

Deducing from the two types rival evidence, the justices were of the considered view that even though the respondent owes a duty of care to its customers but the appellant had failed totally to establish on a balance of probabilities that the duty of care was offended.

“We say so because the bottle contaminated with obnoxious substance was not the one which was consumed by (him). He tendered an exhibit which was not relevant for his case. He was supposed to tender the bottle containing the remaining substance which caused havoc to his health,” they said.

Further to that, the justices went on, the appellant asserted that he felt stomach upset and started to vomit and later lost consciousness. However, they noted with respect, the appellant never produced any proof to the effect that indeed he suffered health problems.

“We think that with such serious condition which resulted in loss of consciousness, he was supposed to attend hospital for medical examination and produce a medical report to that effect. He never did so, hence, we fail to agree with him that he suffered serious health problems,” the justices ruled.

Had he consumed an adulterated drink, ordinarily it was expected for the appellant to call his visitor the said Jonathan Lameck as a witness, who apparently was also allegedly affected by the drink, rather than calling a witness one Jedaiya Zebadia, who was a mere passerby and did not witness the incident.

Above all, the justices said, the unopened bottle of pepsi tendered was neither consumed by the appellant nor tested with laboratory analysis, or TFDA. According to the justices, in the absence of such evidence, the likelihood of the alleged drink to be tampered with cannot be wholly overruled.

In conclusion, the justices were strongly convinced that the appellant failed to show the connection of the unopened bottle of Pepsi he tendered as exhibit with the health problems he suffered. They pointed out that there was simply no nexus.

“As the bottle presented was not the one which the appellant consumed, obviously he failed to link the damages claimed with the unopened bottle. We are increasingly of the view that the appellant has failed to prove his claim, hence, he is not entitled to any award of damages,” they concluded.

The justices declared, “We dismiss this appeal for lack of merit and uphold the decisions of the two courts below. We did not see the logic behind denying the respondent costs in the High Court. No doubt the respondent was entitled to costs. We award (him) costs of this appeal and the two courts below.”

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Author: FAUSTINE KAPAMA

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