By Kayode Ogundele
A Lagos high court has insisted that its order that the National Agency for Food, Drug Administration and Control (NAFDAC) must mandate the Nigeria Bottling Company (NBC) to include on all bottles of Fanta and Sprite soft drinks manufactured by the company a written warning that the content in such bottles of Fanta and Sprite cannot be taken with Vitamin C as same becomes poisonous if taken with Vitamin C, subsists.
The court dismissed an application filed by the Nigeria Bottling Company Plc seeking an order of the court staying execution of the order.
However, the court ordered conditional stay of execution of the N2 million cost awarded against NAFDAC, but ordered the agency to pay the money into an interest yielding account in the name of the Chief Registrar of the court, pending the determination of the appeal filed by NAFDAC.
The ruling delivered by Justice Adedayo Oyebanji was sequel to an application filed before the court by a Lagos lawyer, T.A. Busari SAN on behalf of NBC urging the court to stay the execution of the judgment of the court on the ground that the order made by the court will adversely affect the operations of the company, if the execution of same is not stayed, pending the outcome of the appeal filed by the company.
In a related development Professor Taiwo Osipitan SAN, also filed an application for stay of execution of the judgment of the court on behalf NAFDAC.
He contended that NAFDAC has appealed against the judgment of the court at the Court of Appeal.
In opposition, Barrister Abiodun Onidare, who is the counsel to the claimants, Dr Emmanuel FIJABI Adebo and his company, Fijabi Adebo Holding, argued that the paramount interest of the public was what mattered most and not the business policy and reputation of the Nigeria Bottling Company.
Onidare further argued that the application for stay must fail because the defendant has failed to put before the court, materials which will necessitate the grant of same .
In her ruling justice Oyebanji said: “It seems to the court evidence that in the event of a refusal of the application for stay of execution, if the business interest of the Nigeria Bottling company is consequently adversely affected, a return to status quo can be achieved if Nigeria Bottling Company’s appeal at the Court of Appeal succeeds. It is beyond argument that if the application for stay is granted and human health is consequently adversely affected, it is most unlikely that there can indeed be a return to status quo.
”It is imperative to add the resultant effect of the order sought to be stayed is the preservation of human life, the business interest of Nigeria Bottling Company cannot in my respected view take precedent over public health. The importance of public health is clearly demonstrated and underscored by the constitutional provision in section 45 thereof.
”For the reasons herein adumbrated, it seems to me manifest that Nigeria Bottling Company has failed to disclose any special circumstances which would warrant the grant of this application. Accordingly, Nigeria bottling company ‘s application for stay of execution fails and it is hereby dismissed.
”Upon a consideration of the fact that the kernel of the complaint of NAFDAC as contained in its notice of appeal is premised on an alleged lack of jurisdiction of the court to adjudicate upon this case in relation to NAFDAC, the court has come to the conclusion that in the circumstances of this case it is expedient to grant a conditional stay.
”Accordingly, a conditional stay of execution of the judgment is hereby granted in relation to the N2 million cost awarded in favour of the claimants against NAFDAC. The N2 million cost shall be paid into an interest yielding account in the name of the Chief Registrar of the high court of Lagos state pending the hearing and determination of the appeal filed by the learned silk to NAFDAC.
It will be recalled that in a judgment delivered by Justice Oyebanji on 15 February 2017, the court ordered the NAFDAC to forthwith mandate NBC to include on all bottles of Fanta and Sprite soft drinks manufactured by the company a written warning that the content of the said bottles of Fanta and Sprite soft drinks cannot be taken with Vitamin C as same becomes poisonous if taken with vitamin C.
The court also declared that NAFDAC has failed the citizens of this great nation by its certification as satisfactory for human consumption, products in which in the United Kingdom failed sample test for human consumption and which become poisonous in the presence of Ascorbic Acid ordinarily known as Vitamin C,which can be freely taken by the unsuspecting public with the Fanta and Sprite.
The court also awarded a cost of N2million against NAFDAC.
The judgment of the court was as a result of a suit filed by a Lagos businessman, Dr Emmanuel Fijabi Adebo and his company, Fijabi Adebo Holdings Limited, against NBC Plc and NAFDAC, urging the court to declare that NBC was negligent and breached the duty of care owed to their valued customers and consumers in the production of contaminated Fanta and Sprite soft drinks with excessive “benzoic acid and sunset ” addictive.
Dr Fijabi also urged the court to direct NAFDAC to conduct and carry out routine laboratory tests of all the soft drinks and allied products of the company to ensure and guarantee the safety of the consumable products, produced from the Nigeria Bottling Company factory.
In an amended statement of claim, a Lagos lawyer, Barrister Abiodun Onidare, on behalf of the claimants, alleged that sometime in March, 2007 Fijabi Adebo Holdings company purchased from Nigeria Bottling Company large quantities of Coca-Cola, Fanta Orange, Sprite, Fanta Lemon, Fanta Pineapple and soda water for export to the United Kingdom for retail purposes and supply to their customers in United Kingdom.
When the consignment of the soft drinks arrived in United Kingdom, fundamental health related matters were raised on the contents and composition of the Fanta and Sprite products by the United Kingdom Health Authorities, specifically the Stockport Metropolitan Borough Council’s Trading Standard Department of Environment and Economy Directorate.
The findings of the United Kingdom were also corroborated by the Coca-Cola European Union and products were found to have excessive levels of “Sunset Yellow and Benzoic Acid “which are unsafe for human consumption.”
Due to the irregularities and harmful content of the soft drinks which can cause cancer to the consumer, the claimants could not sell the Fanta and Sprite products resulting in appreciable losses, as they were certified unsuitable for consumption and were seized and destroyed by the United Kingdom health authorities.
The claimants alleged further that NAFDAC failed to carry out necessary tests to determine if the soft drinks were safe for human consumption.
The claimants averred that as a registered exporter with the Nigerian Export Promotion Council, they could lawfully export the products of Nigeria Bottling Company to any part of the world, in fact Nigeria bottling company was aware that their products they purchased were meant for export.
Consequently, apart from other reliefs, the claimants were demanding for the sum of N15,119,619.37 as special damages and N1,622,000 being the money NBC admitted receiving from the claimants.
Nigeria Bottling Company in its amended statement of defence filed before the court by Mr. T. O.Busari SAN, admitted supplying the products but contended that the products manufactured by the company were meant for local distribution and consumption as the company does not manufacture its products for export, as Coca-Cola brand of soft drinks is manufactured and bottled by various Coca-Cola franchise holders in most countries of the world, including the United Kingdom.
The company denied that it was negligent in the manufacturing of its products as alleged as stringent quality control procedures were adopted in its production process to ensure that its products are safe for consumption of the final user.
The company denied that the damages alleged by the claimants was occasioned by its negligence or any fault from the company as the level of the chemical components in its soft drinks is safe for consumption in Nigeria.
Consequently, the claimants cannot recover any damages from the company occasioned by their unlawful exportation of products, which are meant for local distribution within Nigeria.
Nigeria Bottling Company contended that the claimants claims were speculative, frivolous and vexatious and should be dismissed with substantial cost
NAFDAC did not file any defence.
In proving his case, Dr Fijabi Adebo testified for himself while being led in evidence by Mr Abiodun Onidare and tendered 12 exhibits, while the Sales Operation Manager Micheal Nwosu China and the Head of Central Laboratory Abiodun Adeola Falana, both of Nigeria Bottling Company testified on behalf of the company and also tendered 12 exhibits.
In her judgement, justice Oyebanji said: “It is imperative to state that the knowledge of the Nigeria bottling company that the products were to be exported is immaterial to its being fit for human consumption. The court is in absolute agreement with the learned counsel for the claimants that soft drinks manufactured by Nigeria bottling company ought to be fit for human consumption irrespective of color or creed.
”It is manifest that NAFDAC has been grossly irresponsible in its regulatory duties to the consumers of Fanta and Sprite manufactured by Nigeria bottling company. In my respective view, NAFDAC has failed the citizens of this great nation by its certification as satisfactory for human consumption, products which in the United Kingdom failed sample test for human consumption and which become poisonous in the presence of Ascorbic Acid ordinarily known as Vitamin C, which can be freely taken by the unsuspecting public with the company’s Fanta or Sprite. As earlier stated, the court is in absolute agreement with the learned counsel for the Claimants that consumable products ought to be fit for human consumption irrespective of race, colour or creed.
”By its certification as satisfactory, Fanta and Sprite products manufactured by Nigeria Bottling Company without any written warning on the products that it cannot be taken with Vitamin C, NAFDAC would have by its grossly irresponsible and unacceptable action caused great harm to the health of unsuspecting public. The court in the light of the damming evidence before it showing that NAFDAC has failed to live up to expectation, cannot close its eyes to the grievous implication of allowing the status quo to continue as it is.
”For the reasons herein adumbrated in this judgement, the court hereby orders as follows:
”That NAFDAC shall forthwith mandate Nigeria Bottling Company to, within 90 days hereof,include on all the bottles of Fanta and Sprite soft drinks manufactured by the company, a written warning that the content of the said bottles of Fanta and Sprite soft drinks cannot be taken with Vitamin C as same becomes poisonous if taken with Vitamin C.
”In consideration of the fact that this case was filed in 2008 and that it has been in court for 9 years, costs of N2 million is awarded against NAFDAC. Interest shall be paid on the costs awarded at the rate of 10% per annum until liquidation of the said sum.