DAR ES SALAAM : THE High Court, Dar es Salaam District Registry, has dismissed a suit lodged by a customer, Lightness Mruma, who was demanding 2bn/- compensation from SBC Tanzania Limited for consuming Mirinda fruity soda allegedly containing hydroxide and noxious chemicals.
Judge Hamidu Mwanga ruled in favour of SBC Tanzania Limited, the defendant, after holding that the customer failed to prove her claims to the required standard, which is on the balance of probability.
“(….) the plaintiff never pleaded nor proved the financial loss claims of the tort of negligence, alleging that the defendant has wrongfully acted or omitted upon. In this event, the plaintiff is entitled to no relief. Under the circumstances, as a result of this, I entirely dismiss the suit,” he declared.
Before reaching into a conclusion, the judge had to determine some issues, including whether the defendant owed the duty of care and breached the same by negligently manufacturing, packaging and marketing Mirinda Fruity drink and whether the plaintiff suffered any injury by consuming the drink.
After going through the evidence tendered by both parties, he concluded that the plaintiff failed to establish three conditions of negligence, which are duty of care on the part of the defendant, breach of duty of care and damages resulting from the defendant’s breach.
There was evidence that, on a fateful day, the plaintiff went to a retail shop owned by PW2, where she drank the Mirinda fruity soda manufactured by the defendant. After the drinks, the two observed the soda with a decomposed substance and that the plaintiff suffered stomachache and vomiting.
Nevertheless, the counsel for the defendant contended that there is no receipt to prove that the plaintiff bought the said product from the defendant and the alleged shop owner never tendered anything to prove that she owns the shop in question.
In his judgment delivered recently, the judge subscribed to the arguments by the defendant’s counsel and pointed out that it is reasonable and equitable that relationships of duty between the manufacturers must exist and the plaintiff was duty-bound to prove that she bought and drank the soda of Mirinda.
“The plaintiff’s failure to tender the said bottle of soda with the battery inside alleged to be consumed necessitates the requirement of the receipt mandatory. Again, nothing was brought to the court’s attention that the (alleged shop owner) sold the product to the plaintiff,” he said.
Above all, the judge noted, the plaintiff never tendered to court a Tanzania Bureau Standards (TBS) analysis report or Chief Government Chemist report to prove that the soda, the defendant’s product, contained hydroxide as alleged by her.
“Those would also be useful to establish the link between manufacturer and customer relationship, which is essential in the cases of negligence of torts,” he said.
In the premises, the judge joined the defendant’s counsel argument that it is impossible to establish whether the plaintiff consumed the defendant’s beverage product as alleged.
On the issue of whether there was a breach of duty of care, the plaintiff claimed that on the August 8, 2019, she went to the shop and ordered a bottle of Mirinda Fruity contained in an opaque bottle, and she drank that soda.
Due to that act of consuming the said drink with the decomposed substance, it floated out of the bottle she suffered stomachache and vomiting. She was rushed to the hospital for medication and claimed to undergo miscarriage three times due to the soda she took.
However, the judge said, the plaintiff never brought the said bottle with battery in court for proof nor to the Chief government chemist for the chemical test as to the chemical composition of that Mirinda Fruity drink.
“Again, certainly, Plaintiff needed to identify the unique features of the soda allegedly to be consumed. (….) the onus of proof lies on the party who alleges, I profoundly believe that the plaintiff has failed to prove to the court’s satisfaction that there was breach of duty of care on the defendant’s part,” he said.
The plaintiff had alleged that on August 8, 2019, while coming from wedding teachings at the Archdiocese of Roman Catholic Church within Dodoma Region went to the shop and ordered a bottle labeled Mirinda Fruity.
The shop owner served her with a Mirinda Fruity opaque bottle and Plaintiff drank the contents. A decomposed substance floated out after the plaintiff swallowed the last content from the bottle.
Immediately after that, she felt stomachache and vomited; consequently, she was rushed to the hospital. The medical examination revealed that the plaintiff suffered internal damages from the build-up of hydroxide and chemical contents.
