Food Poisoning, Proof And Liability: Lessons From The Marwako Court Of Appeal Decision

INTRODUCTION

When people walk into a restaurant, they expect to leave satisfied, not hospitalised. The duty placed on food vendors is not merely commercial, but is closely tied to public health and safety. Eating food prepared by others is an act of trust, and the law intervenes when that trust is broken.

In Ghana, the Food and Drugs Authority (FDA), acting under the Public Health Act, 2012 (Act 851), is responsible for ensuring that food businesses meet minimum hygiene and safety standards. Yet, where regulatory oversight proves insufficient, the courts remain the final line of protection for consumers.

The recent Court of Appeal decision in Winifred Tse & 2 Others v. Marwako Fast Food Ltd (Civil Appeal No. H1/25/2026) demonstrates how failures in food safety can result in significant legal liability. More importantly, it highlights a recurring challenge in negligence claims involving food: How does a claimant prove that a particular meal caused their illness?

BACKGROUND

The dispute began with an ordinary food purchase. On 8th May 2022, Winifred Tse (the 1st Plaintiff) bought six packs of fried rice from Marwako’s East Legon branch and shared the food with her two brothers, Rodger Bismark Tse and Walter Tse (the 2nd and 3rd Plaintiffs). All three siblings claimed that shortly after consuming the food, they fell ill. By the next morning, they experienced severe abdominal pain, vomiting and diarrhoea. Their symptoms persisted for two days and were severe enough to require medical attention.

The 1st Plaintiff was diagnosed with acute infective gastroenteritis at Nyaho Medical Centre, while the 2nd and 3rd Plaintiffs were diagnosed with food poisoning at Holy Trinity Medical Centre.

The incident did not occur in isolation. Reports of multiple customers falling ill triggered an investigation by the Food and Drugs Authority (FDA). The FDA’s inspection revealed troubling conditions across the East Legon, Abelenkpe and Labadi branches of the Marwako franchise, including poor hygiene, unsafe storage practices, and heavily contaminated food samples. At the East Legon branch, inspectors observed that freezer temperatures were unacceptably high, ingredients in the freezer were left uncovered, and the staff washroom opened directly into the food preparation area. The restaurant also lacked proper documentation of key safety processes, such as sanitation and pest control.

THE CIRCUIT COURT DECISION

In January 2023, the Plaintiffs brought an action in negligence at the Adentan Circuit Court. They argued that Marwako had failed in its duty to ensure that the food it served was safe and fit for consumption.

The trial court agreed. It found that the food sold by the restaurant was contaminated and that the conditions under which it was prepared fell below acceptable standards. Importantly, the court held that this negligence extended to all three Plaintiffs.

Damages totalling GH¢1,070,215.48 were awarded, including general damages for each Plaintiff, special damages and costs.

THE COURT OF APPEAL DECISION

On appeal, Marwako challenged both their liability and the quantum of damages awarded. Its arguments were straightforward; the food was not proven to be contaminated, the 2nd and 3rd Plaintiffs were not proven to have consumed the same food, and no duty of care extended to them. The Court of Appeal reviewed the entire record and approached the case with careful attention to the evidence adduced at the trial.

Ultimately, it partly affirmed the Circuit Court’s decision, concluding that only the 1^st Plaintiff was entitled to damages. There was insufficient evidence to show that the 2^nd and 3^rd Plaintiffs consumed the food purchased on 8^th May 2022 and that their illness was linked to that food. Accordingly, the duty of care owed by the restaurant to the 1^st Plaintiff did not extend to her brothers.

The following are the key considerations in the appellate court’s decision.

1. The FDA Report and Proof of Contamination

The Court upheld the finding that the food sold to the 1st Plaintiff was contaminated. Relying heavily on the FDA report, it accepted that the food contained harmful pathogens. As His Lordship Justice Emmanuel Senyo Amedahe observed:

“Based on the FDA report tendered by the Appellant, it is a proven fact that the food served to the 1st Respondent contained harmful microorganisms, which are harmful to the human body. The Appellant did not proffer any evidence, nor did they provide any justification for the presence of such a harmful microbial load, which the FDA said was linked to the reported food–borne diseases.”

The Court considered these failures to reflect major and critical non-compliance with food safety standards.

2. Negligence and Duty of Care

The Court reaffirmed the established principles of negligence as articulated in Allasan Kotokoli v. Moro Hausa [1967] GLR 298–304 and Donoghue v. Stevenson [1932] AC 562. To succeed in a negligence action, the plaintiff must establish that the defendant owed him a duty of care, the defendant breached the duty of care, and this breach resulted in the Plaintiff suffering damage.

Moreover, the English case of Donoghue v Stevenson (supra) clarified that a person owes a duty of care to avoid acts or omissions which are reasonably foreseen as likely to injure one's “neighbour.” In law, your neighbour is anyone closely, directly or indirectly affected by your actions. In applying this principle, the restaurant owes a duty of care to all its customers. When the 1st Plaintiff purchased the food from Marwako, the restaurant ought to have reasonably foreseen that its action was likely to affect her in particular.

The appellate Court emphasised the fundamental duty owed by restaurants to their customers and stated:

“When a customer sits down to order a meal, the most fundamental duty a restaurant owes its client is to serve food that is fit for human consumption. Food must be stored, handled, and cooked in accordance with health department standards to prevent foodborne illnesses (such as Salmonella or E. coli). This is basic.”

Applying these principles, the Court held that Marwako owed a duty of care to the 1st Plaintiff and had clearly breached that duty by serving contaminated food.

3. Insufficient Evidence to Prove 2^nd and 3^rd Plaintiffs’ Claim

A central issue on appeal was whether the Plaintiffs had proven that the food purchased on 8^th May 2022 caused their illness.

For the 1st Plaintiff, the Court found that the evidence (including her purchase records, the timing of her illness, her medical report and the FDA findings) was sufficient to establish negligence of the restaurant on a balance of probabilities. Her medical report indicated that she experienced symptoms on the 9^th and 10^th of May, presenting a more accurate version of events.

However, the claims of the 2nd and 3rd Plaintiffs failed. Their medical reports indicated that they fell ill on dates that were inconsistent with the 8^th May purchase. According to their medical reports, they experienced symptoms on the 13^th and 11^th of May, respectively, after eating fast food “the previous day”. The previous day would not have been the 8^th of May, the day they claimed to have eaten Marwako’s unwholesome food. In effect, their oral testimony, given by the 1^st Plaintiff on their behalf, conflicted with their medical reports.

The Court applied the principle that where oral and documentary evidence conflict, documentary evidence prevails, as held in Koglex Ltd v Field (2000) SCGLR 175.

Without a clear evidential link between the brothers’ illness and the food purchased by the 1st Plaintiff, their claims could not be sustained.

THE OUTCOME AND VARIATION OF DAMAGES

The Court of Appeal therefore varied the Circuit Court’s decision.

It upheld the finding of negligence in favour of the 1st Plaintiff and affirmed the award of GH¢345,000.00 in general damages. However, it set aside the awards made in favour of the 2nd and 3rd Plaintiffs and reduced the special damages awarded to GH¢2,879.00. The total award was reduced from GH¢1,070,215.48 to GH¢347,979.00 in the 1^st Plaintiff’s favour. The 2^nd and 3^rd Plaintiffs were not entitled to any damages.

IMPLICATIONS FOR FOOD BUSINESSES, CONSUMERS AND REGULATORS

The Marwako decision does not introduce a new legal principle. Rather, it shows how Plaintiffs in food negligence actions can benefit from established principles.

Firstly, the decision underscores the evidentiary weight of regulatory findings. Reports from bodies such as the FDA are not merely administrative. They can play a decisive role in establishing liability.

Secondly, it reinforces the principle that documentary evidence carries greater probative value than oral testimony where inconsistencies arise. To avoid facing the same fate as the 2^nd and 3^rd Plaintiffs, claimants must ensure their documentary evidence is consistent with their claim.

For food businesses, the message is clear. Liability may arise not only from a single act of negligence but from a pattern of systemic failure. Hygiene standards, internal processes and proper documentation are not only matters of internal compliance. They are central to managing legal risk.

For consumers, the decision offers reassurance. It recognises the practical difficulty of proving food contamination and allows claims to succeed where the evidence reasonably supports negligence, on the balance of probabilities.

For regulators, the case highlights a persistent challenge. Enforcement often occurs after harm has already been done. The effectiveness of the legal system, therefore, depends not only on judicial intervention but also on consistent and proactive regulatory oversight.

CONCLUSION

The Marwako case serves as a reminder to food businesses and regulators to ensure compliance with food safety standards. The Marwako decision is ultimately a classic case about proof of negligence and food poisoning.

Food poisoning claims are rarely straightforward. Evidence may be incomplete, timelines could be uncertain, and causation could be difficult to establish with precision. Yet, as this case demonstrates, the law does not demand perfect proof. It demands sufficient evidence.

By affirming liability where it was properly established and rejecting claims where it was not, the Court of Appeal struck a careful balance between fairness and accountability. In doing so, it sends a clear message:

Where food is served to the public, safety is not optional. It is a legal obligation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.