On the 13th day of March, 2017, it was reported that the Lagos High Court sitting at Igbosere, in the judgment given by Justice Adedayo Oyebanji, awarded a cost of N2 million against NAFDAC. It also ordered the National Agency For Food and Drug Administration and Control (NAFDAC) to order the Nigerian Bottling Company (NBC) Plc to put a written warning on Fanta and Sprite bottles stating that both soft drinks are poisonous when consumed along with Vitamin C. The court further held that NAFDAC failed Nigerians by declaring, as fit for human consumption, products discovered by tests in the United Kingdom as turning poisonous when mixed with ascorbic acid (popularly known as Vitamin C).
The judgment was the outcome of a suit filed by a Lagos-based businessman, Dr. Emmanuel Fijabi Adebo, and his company, Fijabi Adebo Holdings Limited, against NBC Plc and NAFDAC. Mr. Adebo, in the suit, urged the court to declare that NBC was negligent to its consumers by bottling Fanta and Sprite with excessive levels of benzoic acid and sunset additives. They alleged that in March 2007, Fijabi Adebo Holdings Company bought large quantities of Coca-Cola, Fanta Orange, Sprite, Fanta Lemon, Fanta Pineapple and soda water from NBC for export to and subsequent retail in the United Kingdom.
But when the consignment arrived in the United Kingdom, health authorities in that country, precisely the Stockport Metropolitan Borough Council’s Trading Standard, Department of Environment and Economy Directorate, raised fundamental health issues on the contents and composition of Fanta and Sprite. On account of the irregularities and carcinogenic substances present in the drinks, Mr. Adebo and his company could not sell the Fanta and Sprite. This caused huge losses for the company, as the products were seized and destroyed by the United Kingdom health authorities.
The claimants equally alleged that NAFDAC did not carry out requisite tests to determine the safety of the drinks for human consumption. I am minded to think it is important for us to know that the term “negligence” in this case is not just limited to the day to day usage of the word in the English language jungle.
Points to Note:
1. Negligence is the failure to exercise the care that a reasonable and prudent man would naturally exercise in a similar situation.
2. In Law, for a person to be found liable for negligence, three elements must be proved as follows:
(i) Duty of Care
(ii) Breach of the Duty of Care
(iii) Damages resulting from the Breach
3. Firstly, a man cannot be held liable in law for every careless act even if it results in damage, except if he owes the plaintiff a legal duty of care.
4. “Duty of Care” is all about ‘foreseeablility’. You owe a duty of care to everybody who you can reasonably foresee would be likely to be injured by your acts or omissions. Yes! You owe anybody you offer a lift in your vehicle a duty of care to ensure they alight safely from your vehicle otherwise they can sue you for negligence.
5. Secondly, the plaintiff must prove that the defendant owed him a legal duty of care which he breached otherwise the action would fail.
6. Thirdly, it must be proved that the defendant has made the plaintiff suffer damage as a result of the breach of the legal duty to take care on his (the defendant’s) part.
7. However, it is pertinent to note that there are cases where the plaintiff need not prove this third element but can just relying on the doctrine of “res ipsa loquitur” which means “the fact speaks for itself”. For example, a person who lost his hand in an accident resulting from another’s negligent driving only need to show his amputated hand to the court and, of course, “the fact speaks for itself”.
8. In short, for an action founded on negligence to succeed, these three elements must have been established with cogent evidence before the court of Law.
In this case, NAFDAC owes a duty of care to every buyer/consumer of soft drinks ( as well as other drinks, drugs, cosmetics etc) to ensure they conduct proper laboratory test before giving approvals that the products are safe for use. This is because the consumers can suffer harm if the Agency omits to perform such duty.
There was a breach of the Duty of care when NAFDAC failed in its duty to carry out the proper test and detect the carcinogenic substances in the drinks.
Mr. Adebo and his company suffered from this breach of duty of care by NAFDAC when they bought the products, exported it to the UK but couldn’t sell it and found it destroyed by the appropriate health authorities because NAFDAC didn’t conduct proper test to warn the public of such harm or even ban such drinks.
MY LEGAL DIARY
Joseph Jagunmolu Ogunmodede