A Lagos High Court has dismissed an application filed before it by the Nigeria Bottling Company Plc, NBC, seeking the order of the court to stay execution of its judgement mandating an NBC warning on its products.
In February, the court ruled that the National Agency for Food and Drugs Administration and Control, NAFDAC, should mandate the NBC to include the warning on all bottles of Fanta and Sprite, soft drinks manufactured by the company.
According to the judgement, the NBC must state that content in such bottles of Fanta and Sprite cannot be taken with Vitamin C as they become poisonous if taken.
On Monday, the court ordered conditional stay of execution of 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 hearing and determination of the appeal filed by NAFDAC.
The ruling of the judge, Adedayo Oyebanji was sequel to an application filed and argued before the court by a Lagos lawyer, T.A. Busari, on behalf of the NBC.
Mr. Busari urged the court to stay the execution of the judgement on the ground that the order made by the court will adversely affect the operation of the company if the execution of same is not stayed pending the outcome of the appeal filed by the company. He argued that the order made by the court was prejudicial to its business, policy and reputation as a foremost beverage company.
Meanwhile, in a related development, another lawyer, Taiwo Osipitan, filed and argued an application for stay of execution of the judgement of the court on behalf of NAFDAC.
Mr. Osipitan contended that NAFDAC has appealed against the judgement of the court to the Court of Appeal, and the appeal raises jurisdictional issues which affects the competence of the suit and the validity of the judgement of the court. He explained that if the judgement is not stayed, NAFDAC appeal will be rendered academic.
However, in opposition, Abiodun Onidare, who is the counsel to the claimants, 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 NBC.
Mr. 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, Mrs. 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.”
Mrs. Oyebanji continued: “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 judgement is hereby granted in relation to the N2million 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 Register of the high court of Lagos state pending the hearing and determination of the appeal filed by the learned silk to NAFDAC.”
The court had earlier declared that NAFDAC failed the citizens of Nigeria by certifying products which failed basic human consumption tests in the United Kingdom and which become poisonous in the presence of Vitamin C, which can be freely taken by the unsuspecting public with the Fanta and Sprite.
The court also awarded a cost of N2 million against NAFDAC.
The judgement of the court was as a result of a suit filed by a Lagos businessman, Mr. Adebo, and his company, Fijabi Adebo holdings Limited, against the NBC and NAFDAC.
Mr. Adebo had urged 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 Fanta and Sprite soft drinks with excessive “benzoic acid and sunset ” additive.
He 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.
In amended statement of claim filed before the court by a Lagos lawyer, Abiodun Onidare, on behalf of the claimants, it was alleged that sometimes in March, 2007, Fijabi Adebo holdings company purchased from NBC 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 reportedly 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 were also corroborated by the Coca-Cola European Union and the products were found to have excessive levels of “Sunset Yellow and Benzoic Acid” thus making them 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 UK 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 NBC to any part of the world. In fact, NBC was aware that the 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 admitted received from the claimants.
However, the NBC in its amended statement of defence filed before the court by T. O. Busari admitted supplying the products.
It however contended that the products manufactured by the company are meant for local distribution and consumption as the company does not manufacture its products for export. The firm said Coca-Cola brand of soft drinks is manufactured and bottled by various Coca-Cola franchise holders in most countries of the world, including the UK.
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 NBC contended that the claims against it are speculative, frivolous and vexatious and should be dismissed with substantial cost.
NAFDAC DID NOT FILE ANY DEFENCE
In proving his case, Mr. Adebo testified for himself while being led in evidence by Mr. Onidare and tendered 12 exhibits, while the sales operation manager, Michael Nwosu, and the head of Central Laboratory, Abiodun Falana, both of the NBC, testified on behalf of the company and also tendered 12 exhibits.
But in her judgement, Mrs. Oyebanji said NAFDAC, by its grossly irresponsible and unacceptable action, would have caused great harm to the health of unsuspecting public.
Delivering her ruling, she said: “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 cent per annum until liquidation of the said sum.”