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. 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 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 filed 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.
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. 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 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 filed 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.
Read more https://nairalaw.com/beware-lagos-court-insists-taking-fanta-sprite-with-vitamin-c-is-poisonous/