Court of Appeal upholds N898 Million damages awarded against NAFDAC for misuse of power.

National Agency for Food and Drug Administration and Control (NAFDAC) established by National Agency for Food and Drug Administration and Control Act, Cap N.1 LFN 2004. is a Federal Government agency established to regulate and control the importation, exportation, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, bottled water and chemicals. The institution’s core mandate therefore is to guarantee the quality and safety of food, drugs, cosmetics, etc. NAFDAC collaborates with other agencies like National Drug Law Enforcement Agency (NDLEA) in measures to eradicate drug abuse in Nigeria.

The Agency has contributed immensely in ensuring the safety of Nigerians. The remarkable success recorded in the times of its former Director General, the Late Dora Akunyili can never be forgotten; the country witnessed aggressive battle against fake drugs.

In carrying out its mean activities, there are bound to be issues and challenges which the Agency would have to confront from time to time. The Agency has been enjoined to be sensitive and show due care in discharging its duties. Failure to heed to such advice can be calamitous as seen in the recent case of NAFDAC v. Reagan Remedies [2019] 17 NWLR (Pt. 1700) 1.

NAFDAC v. Reagan Remedies

Reagan Remedies (“the Respondent”) is a company in the business of drug production and compounding in Nigeria. The Respondent’s factory and premises were closed down and sealed up by NAFDAC (“the Appellant”) in exercise of its statutory powers. It happened that the Appellant was unable to successfully prosecute the Respondent as the charge filed was dismissed and the subsequent appeal was dismissed for want of diligent prosecution. The Respondent subsequently gained access into its premises after about 5 years. Consequently, it filed an action against the Appellant, claiming damages among other reliefs for injury and losses suffered. The trial Court granted its claims, awarding damages up to N898 Million. The Appellant appealed against the Judgment, raising some technical issues of law. The Court of Appeal dismissed the appeal for lacking in merit and upheld the findings by the trial Court. The Court concluded that “The act of the Appellant in sealing up the company of the Respondent for about five years after it had granted it the permission to manufacture pharmaceutical products, was callous, unreasonable and unjustifiable.” Per Andenyangtso, JCA at 57.

In his Lordship’s contribution, Mbaba, JCA expressed the following compelling views:

“I also think this case should serve as useful caution or warning to government agencies, to act within the scope of the law that created them, and with human face, in dealing with fellow humans/citizens when they (institutions) exercise their discretion in service. Sealing up the Respondent for about 5 years, in the circumstances that Appellant did, grounding Respondent’s business and services, and hounding down the company, as shown in the unsuccessful prosecution of the Respondent in the courts, in my view, smacks of high-handedness, prosecution, impunity and misuse of statutory powers. With a little show of sensitivity and due care, Appellant would still have discharged its oversight function over the Respondent without so much injury, and saved the situation and the huge damages it has now caused itself and the nation by its misadventure. Appellant is expected to learn from this decision and pronouncement of Court in its conduct and services, and be properly guided in the discharge of its duties.” Per Mbaba, JCA at 57-58.

As seen above, his Lordship used the opportunity afforded by the instant case to also call upon other agencies of government to be most considerate in the performance of their statutory functions. This is important.

NAFDAC must be tactful and diligent on all fronts in the discharge of its duties.

 



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a Legal Practitioner, Consultant, Mediator and Social Entrepreneur. He is the Managing Attorney at Splendour Legal Consultants. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts. Desirous of implementing new legal solutions, he founded Stephen Legal, a firm in the business of providing innovative legal insights and easy solution in this information age. Stephen serves as a volunteer at Prof. Pat. Utomi’s Centre for Values in Leadership in Lagos, given his passion for capacity building and leadership development. He is also a member of the Continuing Professional Development (CPD) Committee of the Nigerian Bar Association (Lagos Branch).
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