A Lagos high court in Lagos state, south west Nigeria, has dismissed an application filed before the court by Nigeria Bottling Company Plc (NBC) seeking the order of the court staying execution of its judgement ordering National Agency for Ffood and Drug Administration and Control (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 in such bottles of Fanta and Sprite of such drinks cannot be taken with Vitamin C as same becomes poisonous if taken with Vitamin C.
However, 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 the determination of the appeal filed by NAFDAC.
The ruling of the presiding judge, Justice Adedayo Oyebanji was sequel to an application filed and argued before the court by a Lagos lawyer T.A. Busari SAN on behalf of Nigeria Bottling Company, urging the court to stay the execution of the judgement of the court 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, as it was perceived that the order made by the court was prejudicial to its business, policy and reputation as a foremost beverage company.
In a related development Professor Taiwo Osipitan SAN, also filed and argued an application for stay of execution of the judgement of the court on behalf NAFDAC, he contended that NAFDAC has appealed against the judgement of the court at 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, and if the judgement is not stayed NAFDAC appeal will be rendered academic and nugatory.
However, 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.
READ: Spectranet introduces Freedom, a new 4G LTE Mifi
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 NBC’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 that the resultant effect of the order sought to be stayed is the preservation of human life, the business interest of NBC cannot in my respected view take precedent over public health.
“The importance of public health is clearly demonstrated and under scored by the constitutional provision in section 45 thereof.”
“For the reasons herein adumbrated, it seems to me manifest that NBC 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 judgement is hereby granted in relation to the N2million cost awarded in favour of the claimants against NAFDAC.
“The N2million costs 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.
It will be recalled that in a judgement delivered by Justice Adedayo Oyebanji (Mrs) on 15 February 2017, the court ordered NAFDAC to forthwith mandate Nigeria Bottling Company Plc 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.
